Indigenous Law Bulletin
by Brian Keon-Coen
From volume 2, issue number 56 of the Aboriginal Law Bulletin, June 1992.
Eddie Mabo and Ors v The State of Queensland
High Court of Australia, Full Bench, 3 June 1992
The Mabo case has involved several remarkable features. For example, the case ran ten years from the issue of the writ in May 1982 to delivery of judgment by the Full High Court on 3 June 1992. Further, this was the High Court’s first opportunity since its establishment in 1901 to confront the central question of the existence and nature of native title in Australian law. Another remarkable feature is that the case survived at all. In 1985 the Queensland (Bjelke-Petersen) Government, by legislation, sought to retrospectively extinguish the Islanders’ claimed traditional rights, and thus kill the case. But, by the narrowest of margins, the Full High Court declared the Queensland legislation invalid as contrary to ss 9 and 10 of the Racial Discrimination Act 1975 (Cth) (see Mabo (No. 1) (1988) 166 CLR 186).
During the course of proceedings, three of the five plaintiffs died, as did several important witnesses. At the trial before Moynihan J in the Queensland Supreme Court, problems of proof, especially the technicalities of the hearsay rule, again threatened the ability of the plaintiffs and other witnesses to give oral evidence of their customs and traditions, and their interests in and dealings with land. Statements such as ‘my father told me that this land would belong to me when he died’ caused over 600 objections and considerable (in the event unresolved) legal argument about the admissibility of such evidence when the case concerns the nature and existence of the interests in the land spoken of.
Over the decade, the case generated considerable interest, public comment, parliamentary questions, criticism, and some misunderstandings and significant expectations among Indigenous people. For example, the case does not say anything about sovereignty, statehood or claims to increased self-government: the case concerns whether the Queensland Crown or Murray Islanders own Murray Island. Not that this was a narrow, solely legalistic exercise. The presentation of evidence for the trial of facts, and the preparation of legal argument, involved extensive forays into history, anthropology, government administration, international law, constitutional law, evidence, property, trusts, procedure, statutory interpretation, native rights jurisprudence (overseas), and other miscellaneous matters such as contempt and how many times can a statement of claim be amended?
Against this unusual, sometimes traumatic background, it is perhaps appropriate now to be able to say that the Islanders’ high expectations of this case have been largely realised. For the judgments are, without question, the most remarkable aspect of this lengthy saga. By a 6/1 majority, the High Court has upheld the plaintiffs’ claims, and entirely rewritten the common law on the effect of colonisation upon Indigenous communities; has set a new agenda for national debate on black-white relations; has presented all governments with an awesome challenge which they will avoid at their peril; and has provided some dignity, a measure of justice, real legal clout and renewed hope for Indigenous people. In all this, the Court clearly and deliberately wrote for Aboriginal and Islander communities throughout Australia. Indeed, the Court dealt with the entire relevant history of Australian colonisation, i.e. from 1788, not just from the date of annexation of the Torres Straits in 1879. In the process, the High Court also cemented its role as the ultimate source of the common law of Australia. The judgments say as much about the Court’s perception of its role in the Australian legal and constitutional framework, and its role in developing an Australian common law as they do about the existence and nature of native title.
Brennan J wrote the main judgment, Mason CJ and McHugh J joined with him. Deane and Gaudron JJ wrote a joint judgment; and Toohey J wrote his own judgment thus completing the majority. Dawson J alone dissented.
The majority comprehensively rejected the much criticised notion of terra nullius. The Judges saw this doctrine as a convenient legal justification whereby colonial and state governments, since 1788, have wrongfully and shamefully dispossessed Aboriginals. The majority held that, under the introduced English common law of 1788 and thereafter, Australia was not, legally or in fact, a vacant, non-occupied territory, but was occupied and possessed by Indigenous communities with traditions and customs of their own.
Brennan J summarises his reasons as follows:
(1) The Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.
As noted above, the extension of British sovereignty was never challenged in this case, nor could it be. Brennan J continued:
(2) On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
(3) Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.
Here, ‘radical’ title means the ultimate or underlying right of the Crown to control or administer that territory. This ultimate title sits with other titles such as a fee simple, a lease, a licence – and native title. The Crown retains its radical title, while at the same time granting out, for example, a fee simple title to a citizen. Native title arises independently of the Crown’s bundle of titles; is recognised by Australian common law (following Mabo); but is not sourced in the common law. Native title arises from the customs and practices of the community involved and is a burden upon the Crown’s title.
Brennan J states:
(4) Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g. authorities to prospect for minerals).
These are important statements, the full ramifications of which have yet to be worked out. Whether the title continues (despite the granting by the Crown of other interests over the same land), is a question of both fact and law. For example, Brennan J states that the title continues ‘where the appropriation or use of Crown lands is consistent with the continuing concurrent enjoyment of native title over land (e.g. land set aside as a national park).’ Again, these are significant statements. It means, for example, that under current Queensland ‘land rights’ legislation, land claims cannot be made under that statute by Aboriginals or Islander groups to National Parks, but such areas could be claimed under the High Court rulings. Additional areas of Queensland are thus potentially opened up for land claims following the Mabo decision.
Again, one cannot improve upon Brennan J’s summary. He states:
(6) Native title to particular land... its incidents, and the persons entitled thereto are ascertained according to the laws and customs of the Indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general connection between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
These statements appear to open up the prospect of land claims at common law to many more Indigenous communities in Australia then hitherto was thought possible. A community’s tradition and custom need not be ‘pristine’ or unaffected by colonisation to found a successful claim. It need not be frozen in time. To what extent traditional practices – even language – must still be manifested in any particular community in order to substantiate a claim for native title, again, will need to be worked out in the future on a case-by-case basis.
The judgments contain many more innovations and radical departures from the former law. In particular, Toohey J finds the existence of an enforceable fiduciary or trust relationship between Indigenous communities and government. Toohey J states that the ‘power of the Crown (to alienate land to which the Meriam people enjoy traditional rights) and the corresponding vulnerability (of the indigenous community) give rise to a fiduciary obligation on the part of the Crown’. As a result of its fiduciary duty ‘the obligation of the Crown in the present case is to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the title holders.’ Thus, if the Crown (i.e. the Queensland Government) sold the land off to developers for a tourist complex, contrary to the wishes or interests of the Indigenous titleholders, the Crown would be in breach of its fiduciary duty and liable in damages. These statements again represent important new developments in Australian law. These rulings provide, over and above the Racial Discrimination Act mentioned above, additional legal protection to vulnerable legal communities against oppressive governments.
Further, Toohey J finds that native title may be founded on an entirely different basis as argued by the plaintiffs, i.e., simply by reason of the community’s long occupation (in law ‘possession’) of the land in question. Thus, the communities with the best chance of succeeding in any future claims will be those who were on the subject land in 1788 (or the relevant date for those parts of Australia which were not within the original British claim to sovereignty), and have occupied the land ever since. This ‘occupation’ does not require constant physical presence. Again, depending on all the circumstances, visits from time to time may constitute occupation and legal ‘possession’ for this purpose, and thus provide a basis for a successful claim. If this approach is taken, the community need not show any ‘traditional’ features of social life, or that land is held in the community under traditional customs or practices. As Toohey J states:
Prima facie all indigenous inhabitants in possession of their land (at the time of colonisation) are presumed to have a fee simple title.
Toohey J then explores whether the Crown, upon its extension of sovereignty, and by reason of common law fictions associated with feudal land law acquired a better possessory title than the Miriam people enjoyed to Murray Island. He concludes that the Crown did not, and that ‘the Meriam people may have acquired a possessory title on annexation’. The result on this aspect is not conclusive, but Toohey J’s discussion opens up, in accordance with the plaintiffs’ arguments, an entirely new and valuable basis for many ‘non-traditional’ Aboriginal and Islander communities across Australia who remain on or in close association with their ancient lands, to consider a claim for native title to those lands.
The judgments will need to be closely analysed by communities and their advisers in the months ahead. Indeed, anybody engaged in Aboriginal and Islander affairs should understand that the Judges have not only radically changed the law: they have dramatically altered the relationships between Indigenous communities and governments, cast a heavy onus on governments to justify any denial of native title when it can be properly claimed. Justices Gaudron and Deane leave the nation in no doubt that history must not be repeated. They refer to Governor King’s actions in 1804 along the Hawkesbury River as illustrating:
the first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame.
These are strong words, deliberately written, from the highest Court in the land. They will be widely read not only in Australia, but throughout the common law world. Remarkably the Court appears to be offering moral, as well as legal, guidance to the nation. But, then, this always was a remarkable case. The question now is: having achieved this result, having (albeit after 200 years) re-written legal history and presented a new set of principles by which native title may be claimed and enjoyed, what legacy will the nation now leave for future generations of its Indigenous peoples?
Bryan Keon-Cohen QC is currently the Principal Legal Officer with Mirimbiak Nations Aboriginal Corporation, the Aboriginal representative body for Victoria. He has appeared in significant constitutional and Indigenous rights cases, including Mabo, Wik and Yorta Yorta .