Mabo (No 2)

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Citation: Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1.

This information can be found in the Textbook: Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 233-249


Background Facts

  • The island of Mer, part of the Murray Islands, lies in the Torres Strait - in 1982, the Islanders initiated action against the government in claiming they owned their own land and had always owned it.
  • Hence, Mabo no. 1 held that the Act was invalid because of the racial discrimination act 1975 - case was remitted to the Supreme Court of Queensland.
  • The HCA then heard arguments, and Brennan J reflects the majority judgment.

Legal Issues

  • Independent attitudes, race and justice - Race and Justice
    • Did the Meriam people have a claim to the island of Mer in the Torres Strait as original owners of the land?
    • Did the crown have absolute ownership of and legal possession of all land in the Murray Islands? Assuming that it is a ‘settled’ colony (as it wasn’t conquest or cession), then the case is not restricted to Murray islands but goes for all settled colonies.
    • This became a very complex issue of who owned or had title to the land and when and what rights created or extinguished for each party.


Brennan J:

  • Meriam people were in occupation generations before European contact. Initial contact was few and sporadic, such as passing ships but then the London Missionary Society came to the Murray Islands in around 1871 and moved its Torres Strait headquarters to Mer in 1877.
  • The theory of universal and absolute Crown ownership:
    • The clearest argument against Mabo is in Attorney General v. Brown (1847) I Legge 312, where the SC of New South Wales that all colonies were under the universal control of the Crown.
    • This is confirmed in New South Wales v. The Commonwealth (the seas and Submerged Lands case) (1975) 135 CLR 337 - as soon as British subjects arrived, they assumed control of everything and indigenous rights were extinguished.
    • This is fundamentally immoral and should be questioned by common law - however, he acknowledges that the court cannot adopt contemporary rules of justice if their adoption would fracture the ‘skeleton of principle which gives the body of our law its shape and internal consistency.’
    • Also reluctant to disagree with a case in this own court - acknowledges the conflict about whether the overturning of a traditional rule would disturb things more than it would benefit things.
    • The idea that the Crown has control lies on the assumption that indigenous people did not have a proprietary interest in the land - it belonged to no one. To deal with this, he moves to sovereignty and acquisition issues.
  • The acquisition of sovereignty:
    • The law in force depends on the manner of acquisition - there were three ways of acquiring sovereignty, which were conquest, cession or occupation of lands terra nullius (ie settlement).
    • European nations had claimed that ‘backward people’ had given them the right to occupy land, and ideas about the benefits of Christianity and European civilisation were advanced.
    • Some theories were about cultivated land or not - either way, the Meriam people were ardent gardeners so this theory does not apply.
  • Reception of the common law:
    • According to Blackstone, common law would prevail upon first settlement of a ‘desert, uninhabited’ country or by the Sovereign’s legislative power over a conquered or ceded country.
    • If it was conquered, the laws of the country would continue until they were altered by the conqueror - same applied to ceded colonies although they usually had treaties to outline such things.
    • The indigenous people were hence taken to be without laws and without a sovereign, and thus primitive in their social organisation.
    • English law became the law of the land, binding colonists and ind people alike - hence, the Meriam people in 1879, like Australian Aborigines earlier on, became British subjects owing allegiance to the imperial Sovereign.
  • The basis of the theory of universal and absolute Crown ownership:
    • The facts we currently know don’t fit the absence of law or barbarian theories underpinning the initial colonial reception of the common law of England - in 1837, a Select Committee on Aborigines reported to the House of Commons that the Aborigines were barbarous and so socially remedial that their claims to own the land have been discredited.
    • However, this kind of judgement would not apply today - hence, do we dismiss the concept altogether or do we merely differentiate the Meriam people from this lower, backward category.
    • The theory of terra nullius was examined by the International Court of Justice in its Advisory Opinion on Western Sahara (1975) ICJR, where it decided that Spain in 1884 when occupied by nomadic peoples was not terra nullius.
    • Claims that any immoral theory advanced during colonial times is of such a nature as not to be applicable to today’s standards - this is seen in international law also which, while not binding, is influential.
    • Still, he knows that changing things may fracture a skeletal principle of our legal system.
  • Crown title to colonies and Crown ownership of colonial land distinguished:
    • Cases in the past say that the Crown had all control - he draws the distinction between owning the land and its title to territory, and the general rule of common law was that ownership could not be accquired by occupying land already occupied by another.
    • A basic doctrine of the land law is the doctrine of tenure, which is a doctrine that cannot be overturned for ‘skeletal’ reasons and gives our land law its shape and consistency, derived from feudal origins.
  • The feudal basis of the proposition of absolute Crown ownership
    • Every parcel of land in England is owned by the King, but the relationship of tenure claims that both lord and tenant have an interest in the land - when England accquired other lands, the assumption was that the tenure rule would still apply.
    • However, this wasn’t the case in Scotland as some lands remained in the Orkney and Shetland islands - nevertheless, land in Australia which has been granted by the crown is held on tenure of some kind and the titles under land law cannot be disturbed.
    • The Crown was treated as having the radical title to all land in the territory - however, if the common law was in place which would recognise the rights of the indigenous people, there could not be completely radical title given to the Crown.
    • He then says it’s not necessary to the structure of the legal system to refuse the recognition of the rights and interests of the Indigenous inhabitants.
    • Claims that there is no reason why land within the Crown’s territory is not subject to native title: it’s only when the falsehood of equating sovereignty with beneficial ownership of land (which isn’t the case) that we get this idea of native title being extinguished by the acquisition of sovereignty.
    • He claims that there can be no legitimate impediment to the recognition of individual proprietary rights.
    • Hence, he accepts that Indigenous inhabitants occupied a territory and enjoyed proprietary interests when the Crown acquired sovereignty - this creates a burden on the idea of radical title and dismisses the idea of feudal principles allowing this.
    • He also dismisses alternate arguments about ‘the patrimony of the nation’ basis and the royal prerogative bases.
    • He then considers the idea that native title can only exist if the Sovereign positively recognises it - he doesn’t agree with this and cites the fact that people in settled colonies should have the same rights and interests as those in ceded colonies or conquered colonies.
    • He comes back to the moral injustice of pursuing the idea of terra nullius and the argument that the Aboriginal people were socially backward.
  • The nature and incidents of native title:
    • Native title originates from the traditional laws and customs by the Indigenous inhabitants - it is not an institute of the common law and hence not alienable by the common law; It can only by alienated by the laws from which it is derived.
    • Hence, the principle that common law recognises a customary title only if it is consistent with the common law is subject to an exception in favour of traditional native title.
    • When a clan or group has continued to acknowledge and practice the rules and customs based on their traditions, and their connection with the land has been substantially maintained, their traditional title can be maintained.
    • However, if time has washed these away, then native title has also been washed away.
  • The extinguishing of native title:
    • The exercise of a power to extinguish native title must have a clear and plain intention to do so, and since this has not been exercised; there is no way that there has been extinction of rights on the Murray Islands.
    • He summarises towards the end, including that a general connection with traditions and customs must be maintained - if native title to any parcel is extinguished, the Crown automatically becomes the beneficial owner.


  • Hence, he declares that the Murray Islands is not a Crown land and that the Meriam people are entitled to it. Mason CJ and McHugh J concurred, and all the judges except Dawson J agreed that native title could exist at common law and it was determined by traditional customary law, required traditional connection to the land and could only be extinguished by a clear and plain intention.


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