Mabo v Queensland (No 2)
High Court of Australia · 1992
Mabo v Queensland (No 2) [1992] HCA 23
If the Crown became sovereign over inhabited land, did it also become the owner of it?
The Native Title Act 1993 (Cth) now supplies the statutory framework, and s 223(1) defines native title as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where they are possessed under the traditional laws acknowledged and traditional customs observed, where those laws and customs give a connection with the land or waters, and where the rights and interests are 'recognised by the common law of Australia'. That last limb matters for how this case is used: the statute does not replace the common law recognition established here, it incorporates it as a condition of the statutory definition. A present-day claim proceeds under the Act, and the connection requirement in s 223(1)(b) is where much of the subsequent litigation has been fought.
What happened?
The Meriam people brought proceedings claiming rights to the Murray Islands, which they and their ancestors had occupied and cultivated under their own laws and customs long before and ever since the Crown asserted sovereignty. Queensland's answer was that sovereignty had carried beneficial ownership with it, so the islands were simply Crown land.
What did the Court decide?
That answer was rejected. The Crown acquired radical title — the title that underpins the doctrine of tenure and follows from sovereignty — but not beneficial ownership of land already held under the traditional laws and customs of its inhabitants; those rights survived the change in sovereignty as a burden on that radical title. The Court declared that the land in the Murray Islands is not Crown land within the Queensland Land Act, and that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of it — setting aside Dauer and Waier, a parcel leased to the Trustees of the Australian Board of Missions, and any parcels validly appropriated to uses inconsistent with that enjoyment. The title was declared subject to the power of the Parliament of Queensland and of the Governor in Council.
Proposition
What is the principle?
A mere change in sovereignty does not extinguish native title: the rights and interests possessed under the traditional laws and customs of the indigenous inhabitants survive, to the extent not validly extinguished, as a burden on the radical title the Crown acquires.
Why does this case matter?
Two limits are built into the decision and both matter constantly in practice. The first is extinguishment: a grant or appropriation inconsistent with the rights can end them. The second is that the entitlement is defined by the community's own laws and customs, so what it consists of is a question of fact about a particular people and a particular place, and not a standard bundle that can be asserted in the abstract.
The order repays careful reading on the first point, because the parcels it sets aside were set aside for different reasons and the judges did not agree about all of them. On the two-acre parcel leased to the London Missionary Society and later held by the trustees of the Australian Board of Missions, Brennan J held that whatever native title had been enjoyed there was extinguished by the granting and renewal of the lease. Dauer and Waier drew a split: Deane and Gaudron JJ thought it likely that the purported twenty-year lease, which had recognised and protected the Islanders' usufructuary rights and was later forfeited, neither extinguished native title nor had any continuing adverse effect even if it was valid, while Brennan J considered that a valid lease would have extinguished the traditional rights, and Toohey J left the question unanswered. Reading a carve-out in the order as an established finding of extinguishment therefore gets the case wrong twice over — extinguishment has to be established for the particular land, and here it was genuinely contested.
Brennan J's remarks about international law are often quoted more broadly than he put them. He said the common law had to march in step with international law in the specific sense of supplying the law applicable in newly acquired territory, and elsewhere that "the common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights". Influence is not obligation.
Exam and application relevance
Start from the traditional laws and customs and what connection they establish, because that is where the content of the right comes from — and today, where s 223 of the Native Title Act sends you. Deal with extinguishment parcel by parcel and dealing by dealing, saying what was granted and whether it was inconsistent, rather than raising it as a general objection. And do not overstate the holding: sovereignty was not in issue in this case, so an answer that argues about it has left the question asked.
Check your understanding
The Court accepted that the Crown acquired radical title to the Murray Islands. Why did that not make the islands Crown land?