Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. The effective result of the judgement was to make irrelevant the declaration of terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement British colonisation in 1788, and to recognise a form of native title. It is argued by some historians that the Royal Proclamation of 1763 was seen to apply to Australia at the time of settlement, and therefore governed unceded territories. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined.
The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Murray Islands in the Torres Strait). They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept. The Plaintiffs were represented by Ron Castan, Bryan Keon-Cohen and Greg McIntyre.
The action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer (Murray Island), Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to European contact the Meriam people had lived on the islands in a subsistence economy based on cultivation and fishing. Land on the islands was not subject of public or general community ownership, but was regarded as belonging to individuals or groups.
In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act 1985, which declared that on annexation of the islands in 1879, title to the islands was vested in the state of Queensland "freed from all other rights, interests and claims whatsoever". In Mabo v Queensland (No 1) (1988) the High Court held that this legislation was contrary to the Racial Discrimination Act 1975.
The plaintiffs sought declarations, inter alia, that the Meriam people were entitled to the Murray Islands "as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands".
The decision was based on the findings of fact made by Justice Moynihan of the Supreme Court of Queensland: that the Murray Islanders had a strong sense of relationship to the islands and regarded the land as theirs. All of the judges, except Justice Dawson, agreed that:
The Mabo decision presented many legal and political problems for the Federal Government and the states, including:
In response to the Mabo judgment and to the subsequent and potential reactions, the Australian Federal Parliament (then controlled by the Labor Party led by Paul Keating) enacted the Native Title Act 1993. This was amended in 1998 following the 1996 Wik Decision.
The Act enacted a statutory definition of native title based on that made by Justice Brennan in the case (s233 NTA), and provided a means for validating acts, providing compensation and determining native title. The Act also provides for a Native Title Tribunal.
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