Mabo decision

Eddie Koiki Mabo:

In 1770 Lieutenant James Cook claimed ownership of the east coast of Australia on behalf of Great Britain.

This claim was based on the concept of terra nullius, or land of nobody, whereby Britain assumed that Aboriginal people did not have any form of political organisation and therefore no leaders with the authority to sign treaties.

It meant in effect that, according to British law, Australia’s Indigenous population had no legitimate claim to the land on which they had lived for thousands of years.

In 1835 grazier and explorer John Batman used a treaty to buy land around Port Phillip Bay (present-day Melbourne) directly from its Aboriginal inhabitants.

However, Governor Bourke’s Proclamation of 10 October that year stated that people found dwelling on land without the authority of the government would be considered trespassers.

This proclamation quashed the treaty and codified the concept of terra nullius. Aboriginal people therefore could not sell land, nor could individuals acquire it, except directly through the Crown.

Significance of Mabo

The judgements of the High Court of Australia in the Mabo case No. 2 introduced the principle of native title into the Australian legal system. In acknowledging the traditional rights of the Meriam people to their land, the court also held that native title existed for all Indigenous people.

This decision altered the foundation of land law in Australia and rendered terra nullius a legal fiction.

In recognising that Indigenous people in Australia had a prior title to land taken by the Crown since Cook's declaration of possession in 1770, the court held that this title exists today in any portion of land where it has not legally been extinguished.

The decision proved to be socially divisive. Many politicians and commentators claimed that non-Aboriginal Australians would be in danger of forfeiting the land they legally owned.

But the ruling clearly stated that native title claims only apply to land such as vacant Crown land, national parks and some leased land. Even then it is necessary for Aboriginal claimants to either go to court or a tribunal and prove that they have continually maintained their traditional association with the land in question.

The Mabo judgement also ensures that whenever there is conflict between titles granted by the Crown and the native title, the Crown prevails.

This does not however detract from the huge symbolic importance of the ruling and subsequent legislation, both of which recognise the connection between land, identity and continuity of family and community felt by Aboriginal and Torres Strait Islander people.