High Court under the microscope - The Eddie Mabo Case

Mabo v Queensland

This was a 1992 Australian High Court decision that was the first time in Australian history when the native title for the Australian Aboriginal People was recognized. Eddie Mabo brought the case to the high court on behalf of the Meriam People who are from the Mer Islands. This is in the Torres Strait area. The proceedings commenced in in 1982 after the Queensland Amendment Act was initiated.

The act worked to establish a system of land grants by trust for aboriginals and Torres strait islands. However, this system was inept and the mer islanders were unhappy.

The high court eventually received the case and was asked to consider whether indigenous Australians had a just and legal claim to their lands which could overturn the notion of terra nullius. Further the request to the court asserted that it was time for the common law to be ‘put to rights’

The success of the case was difficult to determine and it was largely regarded by the legal field as a mere test. Testing the court is very common as there are multiple complexities that run through the fabric of legal decisions. Issues such as;

·        Political values

·        Social concern

·        Financial constraints

·        Corporation concerns

 The High Court held that the doctrine of terra nullius was void. This doctrine had worked to import all English laws into the Australian country at the time of English colonization. This was done because the indigenous people were originally thought to be ‘uncivilized’ which gave the colonizers the right to claim the land as belonging to the British people.

The court held that the rules of reception that applied were not those that were originally called for but that the existing customary laws which were present at the time of settlement took priority over the imported English law. However, land rights could be extinguished by crown title. Any native title claims which were inconsistent with native title would be extinguished and the crown land would survive.

The decision was made by seven judges in five judgements of the high court;

Ø  Justice Brennan

Ø  Justice Deane

Ø  Justice Gaudron

Ø  Justice Toohey

Ø  Justice Dawson

Ø  Chief Justice Mason

Ø  Justice McHugh

There were several common threads of agreement between the five judgements. The basis of these threads of agreement is that the native title existed due to the nature of the indigenous use and connection to the land and that determined the nature and content of native title. It also rejected the concept of terra nullius and attempted to provide repudiation to those grounds that had lost the benefit of their lands.

The consequences of this decision are most commonly felt by corporations and land developers as they see the most of the native title claims. There is a difficultly in negotiating with many aboriginal groups who claim native title over key development areas. This difficulty is generally solved with skilled negotiators but can take some time.