Mabo v Queensland (No 2) (LAWS2381 - Property, equity and trusts 1)

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Note: Mabo is a massive and prolific case which is discussed in many of the subjects offered on this site. To maintain the pages relevant and succinct, we have a dedicated Mabo page for each one of the subjects in which it is covered, which only contains the issues relevant to that subject.
This case only considers Mabo in the context of the subject Property, equity and trusts 1. Only issues which are relevant to this particular subject are considered here.

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

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 234-41 [3.84]


Background Facts

  • The Plaintiff [Mabo, representing the Merriam people] had occupied certain islands in Queensland long before colonial occupation. The present inhabitants were direct descendents of those people described in colonial reports.
  • The islands were annexed to the Crown in 1879.
  • After being challenged by the Plaintiff in the past, the Queensland government enacted the Queensland Coast Islands Declaratory Act 1985 (Qld). This declared that upon annexation of the islands in 1879, everything became vested solely in the state of Queensland.
  • The Plaintiff opposed this, seeking a declaration that this legislation was invalid as it was contrary to the Racial Discrimination Act 1975 (Cth).
  • In Mabo (No 1), the court held that the new legislation was indeed contrary to the Racial Discrimination Act. This case concerned the question of ownership and title, in particular, whether the common law doctrine of tenure could coexist with native title.


  • Plaintiffs:
    1. The Plaintiffs were entitled to use and enjoy the islands as owners, possessors, occupiers or as persons entitled to use and enjoy the islands;
    2. The islands were not and never had been ‘Crown land’ per the Land Act 1962 (Qld) and previous Crown lands legislation;
    3. The Defendant was not entitled to extinguish the title of the Plaintiff.
  • Defendant:
    1. When the land became part of the Crown’s dominions, the law of England applied to the colony.
    2. The Crown thus acquired absolute beneficial ownership of all land.
      • The Crown is absolute owner because ‘there is no other proprietor’ (terra nullius).
      • When English law was brought to Australia with and by British colonists, the common law to be applied in the colonies included the feudal doctrine of tenure (the feudal basis) .
      • All land in a colony is ‘patrimony of the nation’. The Crown acquired ownership of the patrimony on behalf of the nation (the patrimony basis).
      • The Crown acquired property in all land on the Royal Prerogative (the prerogative basis).
    3. No right or interest in any land could be possessed by any person thereafter, unless granted by the Crown.

Legal issues

  • Native title
    • Whether the Crown acquired full beneficial ownership[1] or radical title[2] to the land in the Murray Islands.
      • The nature and extent to which the feudal doctrine of tenure applied in Australia, as a colony of England.
      • The nature and incidents of native title claims, and the extent to which they burden the Crown’s radical title, having survived the Crown’s acquisition of sovereignty.
      • The Crown’s power to extinguish native title – circumstances which do, do not or just conditionally extinguish native title.
      • Whether rights under common law native title are true legal rights which are recognised and property by the law, whose extinguishment would give rise to a claim for compensation under s 51 (xxxi) of the Constitution.


Radical Title

  • Upon arrival in Australia, the Crown acquired radical title. If Australia were truly terra nullius, this radical title would become into absolute beneficial title of the Crown. However, since Australia was inhabited (and not terra nullius), radical title did not mean full beneficial ownership.
  • The Crown’s radical title only conferred sovereignty. Sovereignty did not extinguish native title by default.

The Applicability of the Feudal Doctrine of Tenure in Australia

  • Once the Crown made a land grant, that land was thereafter held on the basis of tenure, and the Crown got full beneficial ownership over that land. A title thus acquired cannot be disturbed.
  • However, land which was not the subject of such 'grants' were not acquired by the crown and thus are not subject to the doctrine of tenure.

Native Title

  • The common law of Australia recognises a form of native title. This title reflects the rights of the indigenous inhabitants in accordance with their laws and customs.
  • Native title exists where:
    • The indigenous can prove a continuous connection (from before the time of colonisation) to the land through traditional customs; and
    • This title hasn’t been extinguished or modified subsequently (ie, the Crown hasn't 'granted' it to someone).
  • Only the indigenous can have native title, and once it is lost (eg, by purchase, voluntarily, by losing connection with the land, if it was extinguished by the Crown), it is lost forever.
  • Native title may be protected by legal and equitable remedies, provided it is not repugnant to ‘natural justice, equity and good conscience’.
  • Possession under native title may be enforced by representatives of the indigenous clan or group.

The Crown’s Power to Extinguish Native Title

  • As the sovereign power, the Crown has the power to extinguish native title. Once the native title of the Indigenous inhabitants expires, the radical title of the Crown expands to a full beneficial title.
  • There are certain requirements for the Crown to extinguish native title, the most important being 'a clear and plain intention to do so'.
    • Circumstances which do not evince a clear and plain intention include:
      • A law merely regulating the enjoyment of native title.[3]
      • A law creating a regime of control consistent with the continued enjoyment of native title.[4]
      • A law authorising the reservation of land from sale to permit indigenous inhabitants to enjoy native title.

Compensation for Inconsistent Grants and Extinguishment of Native Title

  • Extinguishment of native title by the Crown does not entitle the native title-holders to compensation under s 51 (xxxi) of the Constitution. However, they may possibly rely on the Racial Discrimination Act 1975 (Cth) to establish compensation.[5]


  1. Allodial title, complete ownership
  2. Ownership which does not automatically extinguish native title rights
  3. R v Sparrow [1990] 1 SCR 1075, 1097.
  4. United States v Santa Fe Pacific Railroad Co (1941) 314 US 339. 353–4
  5. This section requires that Commonwealth acquisition of property be on ‘just terms’.
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