Mabo and Native Title header image

The momentous Mabo case finally acknowledged the history of Indigenous dispossession in Australia, abolished the legal fiction of “terra nullius”, and altered the foundation of Australian land law.

The momentous Mabo case finally acknowledged the history of Indigenous dispossession in Australia, abolished the legal fiction of “terra nullius”, and altered the foundation of Australian land law.


Terra Nullius

Terra nullius is a Latin term meaning “land belonging to no one”. British colonisation and subsequent Australian land laws were established on the claim that Australia was terra nullius, justifying acquisition by British occupation without treaty or payment. This effectively denied Indigenous people’s prior occupation of and connection to the land.

In the 1971 Gove land rights case, Justice Blackburn ruled that Australia was terra nullius prior European settlement. This judgement was unsuccessfully challenged by subsequent cases in 1977, 1979 and 1982. However, on the 20th May 1982, Eddie Koiki Mabo and 4 other Indigenous Meriam people began their legal claim for ownership of their traditional lands on the island of Mer in the Torres Strait.

Mabo and his companions claimed that the Meriam people had:

  • continuously inhabited and exclusively possessed these lands
  • lived in permanent settled communities
  • had their own political and social organisation [1]

On these grounds, the Mabo case sought recognition of the Meriam people’s rights to this land.

Mabo v. Queensland

The case was heard over ten years, progressing from the Queensland Supreme Court to the High Court of Australia. On the 3rd of June 1992, the High Court ruled by a majority of six to one that the Meriam people were “entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands”.

Three of the plaintiffs did not live to hear this ruling, including Eddie Mabo, who passed away just months before the decision was handed down.

The High Court’s judgement in the Mabo case resulted in the introduction of the doctrine of native title into Australian law, removing the myth of terra nullius and establishing a legal framework for native title claims by Indigenous Australians. The judgement ruled that the common law as it existed:

  • violated international human rights norms
  • denied the historical reality of Indigenous people's dispossession [2]

Native title:

  • recognises that Indigenous Australians have a prior claim to land taken by the British Crown since 1770
  • replaces the “legal fiction” of terra nullius, which formed the foundation of British claims to land ownership in Australia [3]

"It is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.” The High Court's judgement on the Mabo Case, 1992.

Eddie Koiki Mabo

Eddie Koiki Mabo was born on the 29th June 1936 in the community of Las on the island of Mer in the Torres Strait (also known as Murray Island. He was raised by his Uncle, Benny Mabo, following the death of Eddie's mother during childbirth.

At the age of 16, Eddie was exiled from Murray Island for breaking customary law. He moved to mainland Queensland, where he worked at various jobs, including deck hand, cane cutter and railway labourer.

In 1959, aged twenty-three, Eddie married Bonita Nehow. They eventually settled in Townsville, Queensland, where they raised ten children.

In Townsville, Eddie became a spokesperson for the Torres Strait Islander community. He was involved with the trade union movement and the Aboriginal and Torres Strait Islander Advancement League. He also helped to found the city's Aboriginal and Islander Health Service, and co-founded and directed the Townsville Black Community School.

In 1974, while working as a grounds keeper at James Cook University, Eddie discovered during a discussion with Henry Reynolds that what he regarded as his people's traditional land was actually owned by the Government. This discovery inspired Eddie to challenge land ownership laws in Australia.

At a Land Rights Conference in 1981, a lawyer suggested there should be a test case to claim land rights through the court system. Five Meriam men, Eddie Koiki Mabo, Sam Passi, Father Dave Passi, James Rice and Celuia Mapo Salee, decided to challenge for land rights in the High Court. [4]

In May 1982, led by Eddie Mabo, they began their legal claim for ownership of their lands.

 

You can read a copy of the Native Title Act 1993 here

 


Stop and think: putting things right

Imagine how you would feel if someone took something very important and valuable from you. What if they told everyone it didn’t belong to you in the first place so they were allowed to take it? What if that same person was in a position of power over you so you were powerless to do anything about it? How do you think it would feel if, a long time later, the truth was finally revealed? How important is it that our country’s values, laws and historical stories reflect the truth?

The Mabo verdict was a watershed moment for Australian law, politics and history. The subsequent apology by Prime Minister Kevin Rudd further reinforced the reality of this ruling and what it meant for our story as Australians. However, whilst our understanding as a nation of the fact that the British did not arrive to vacant land, this has not made much difference to the day to day reality of most Indigenous Australians.