Mabo v Queensland (No 2)
[1992] HCA 23
High Court of Australia
Facts:
Derived from the doctrine of terra nullius (‘nobodies land’), pre-colonial Indigenous Australian property interests were not recognised by the Australian legal system. This was done to import English property law to the newly founded colony.
The Pacific Islanders Protection Act 1975 disavowed ‘any claim or title whatsoever to dominion or sovereignty over any such islands or places’ and any intention ‘to derogate from the rights of the tribes or people inhabiting such islands or places, or of chiefs or rulers thereof, to such sovereignty or dominion’. Queensland authorities still exercised de facto control.
Queen Victoria later passed a Letters Patent that authorised the Governor of Queensland to declare that the islands were part of the Colony. The Queensland Legislature passed the relevant statute, and the island became subject to the laws of the Colony. The people were no longer entitled to occupy the land their ancestors had lived on for centuries.
Legal Issues:
The status of pre-colonial land interests of Indigenous Australians within Australia’s common law.
Whether the transaction of absolute ownership to the Crown applied to the islanders.
Whether the Crown has the capacity to extinguish their property rights.
Claimants (Mabo) Arguments:
M, a Torres Strait Islander, requested declaration from court that Indigenous Australians are entitled to property rights ‘as owners; as possessors; as occupiers; or as persons entitled to use an enjoy’.
The Crown acquired radical / unlimited title, but not absolute beneficial ownership.
The indigenous people were there first, so retained a native title that survived colonisation. Their customs and laws should be allowed to prevail as they have good title. A deed cannot therefore be granted to another without proper compensation.
Defence (Queensland) Arguments:
Q is not bound to recognise the property rights of M and others. When the law of England became the law of the colony in Australia, the Crown acquired absolute beneficial ownership of all land, including what was used or occupied by the Indigenous people.
Judgement (Mason CJ, Bennan J, Deane J, Dawson J, Toohey J, Gaudron J and McHugh J):
Property ownership that is in accordance with Indigenous customary law is to be recognised by the Australian courts at common law. Conditional on the customary laws not being extinguished by subsequent colonial laws. The radical title of the Crown does not in itself extinguish native title interests.
Native title recognised at common law.
Terra nullius doctrine rejected.
Nature and content of native title dependant on ongoing traditional laws and customs.
Native title could be extinguished by an exercise of government power that was inconsistent with an ongoing native title interest.
Crown had acquired radical title, but not absolute beneficial ownership.
Common law did not require compensation to be awarded for extinguishing native title interests.
Brennan J:
‘interests of indigenous inhabitants in colonial land were extinguished so soon as British subjects settled in a colony, though the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest. According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilised standard, such a law is unjust…’
It is important to remember that the court is not free to change common law rules to align with contemporary notions of justice and human rights. This would undermine precedent. The court is not bound anymore by English precedent, but it is bound by the precedent that was earlier followed.
International law recognises conquest, cession and occupation of territory that was terra nullius as effective ways of acquiring sovereignty.
In the case of Australian colonisation, the terra nullius doctrine was enlarged to include territories that, though inhabited, could be treated as ‘desert uninhabited’. This assumed that there was no local law already in existence. Thus, English law became the law of the territory and not merely the personal law of the colonists.
This shouldn’t have applied as the Indigenous people were not ‘barbarians’ living in the ‘absence of law’. The theory that was used to strip them of their rights was discriminatory; the law ought to not ‘be nor be seen to be frozen in an age of racial discrimination’.
Distinguishes between the Crown’s title to a colony and the Crown’s ownership of land in said colony. Territory and property are not the same concepts.
Native title is recognised by the common law but is not an institution of it or alienable by it. The title and relevant interests in it is governed by the traditional customary laws and can be protected under Australian law. The Australian legal system will enforce the laws and customs of the indigenous inhabitants as long as they are ‘not so repugnant to natural justice, equity and good conscience’.
Native title may be surrendered on purchase or voluntarily. This would expand the Crown’s radical title to absolute ownership. Native title of a group or clan loses its connection to the land upon the death of the last member. The Crown then becomes the absolute beneficial owner.
Toohey J:
The rights claimed by M do not correspond to the concept of ownership. The term ‘title’ simply refers to M’s right in property, not ownership itself.
It is clear that the Islands were not terra nullius. The Crown did not acquire a proprietary title to any territory except that which was truly uninhabited.
‘Even more startling is the consequence that, immediately on annexation, all indigenous inhabitants became trespassers on the land on which they and their ancestors had lived.’
Traditional / native title is rooted in physical presence. Presence need not amount to possession to be considered occupancy.
The fact that the society and culture of the indigenous people has changed and evolved over time since annexation is not of relevance as to whether they still hold native title.
‘Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist.’
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