M4 - Learner Manual

Mabo v The State of Queensland (No 2)[1992] HCA 23

In 1982, Eddie Mabo, a Meriam man, and four other Torres Strait Islander people went to the High Court of Australia claiming that their island, Mer (Murray Island), had been continuously inhabited and exclusively possessed by them, therefore, they were the true owners. They acknowledged that the British Crown had exercised sovereignty when it annexed the islands, but claimed that their land rights had not been validly extinguished.

On 3 June 1992 the High Court of Australia handed down its decision in, ruling that the treatment of Aboriginal and Torres Strait Islander property rights based on the principle of terra nullius was wrong and racist. Sadly, Eddie Mabo never heard the ruling, as he died of cancer in January of that year. [1]

This legal recognition of Aboriginal and Torres Strait Islander ownership is called ‘native title’. The Court ruled that in each case native title must be determined by reference to the traditions and customary law of the Aboriginal and Torres Strait Islander owners of the land.

The judgment of the High Court in the Mabo case inserted the legal doctrine of Native Title into Australian law. In recognising the traditional rights of the Meriam people to their islands in the eastern Torres Strait, the court also held that native title existed for all Aboriginal and Torres Strait Islander people in Australia prior to Cook's instructions and the establishment of the British Colony of New South Wales in 1788. This decision altered the foundation of land law in Australia- debunking the legal myth of terra nullius.

In recognising that Aboriginal and Torres Strait Islander 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.

Section 223 of the Native Title Act 1993 (Cth) was drafted primarily from the judgment of Brennan J in the Mabo case. However, the courts have repeatedly made it clear that the Native Title Act, not the common law, is the primary authority on any native title inquiry, cases such as Mabo are merely contextual.[2] Therefore, the Federal Court’s process of determining native title is basically a statutory interpretation exercise[3].

Wik Peoples v Queensland [1996] HCA 40

In 1996, in the Wik decision[4] the High Court by a 4:3 majority held that pastoral leases do not necessarily extinguish any native title interest that may have survived. The court held that that native title rights could coexist on land held by pastoral leaseholders but that where there is conflict between native title rights and interests and the rights of pastoralists, the latter will prevail.

The High Court decided that:

• A pastoral lease does not necessarily give rights of exclusive possession on the pastoralist. Native title rights could ‘co-exist’ alongside the rights of pastoralists on cattle and sheep stations.
• The rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted.
• The mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights.
• When pastoralists and Aboriginal rights were in conflict, the pastoralists’ rights would prevail, giving pastoralists certainty to continue with grazing and related activities but not necessarily ‘exclusive possession’ of the land [5]

The Wik decision led to great controversy at the time. Despite the fact that pastoralists did not really lose any rights, farmers and conservative leaders demanded that native title be extinguished, or wiped out, on pastoral leases altogether. Previous to this decision many people had believed that all such leases completely extinguished native title.[6]

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002]

The Yorta Yorta peoples lodged a native title determination application with the National Native Title Tribunal (NNTT) on 21 February 1994. The Yorta Yorta claimed native title in the public lands and waters (‘the claim area’) within their original homelands. The Yorta Yorta sought the right to possession, occupation, use and enjoyment of the claim area and its natural resources. Following unsuccessful mediation of the claim through the National Native Title Tribunal, the matter was heard before the Federal Court of Australia.

 

The Federal Court decision

The Federal Court dismissed the Yorta Yorta people’s application on the basis that:

“by 1881 those through whom the claimant group [sought] to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided for the present native title claim”.[7]

One of the reasons for the decision of Justice Olney, was that in 1881, 42 men referred to as ‘Aboriginal natives’ who were ‘residents of the Murray River’ had signed a petition to the Governor of the Colony at the time seeking ‘farming assistance’. According to Olney J this was evidence of a departure from the traditional practices and customs.[8]

Following an unsuccessful appeal to the Full Court of the Federal Court of Australia, the Yorta Yorta People appealed to the High Court of Australia.

 

The High Court decision

A critical issue of the case was whether the Yorta Yorta people could demonstrate the requisite connection to the area through evidence of a continued observance of traditional law and custom.[9]  Similar to Mabo (No 2) the court was divided over what satisfied the requirement of connection:

• The majority (Gleeson CJ, Gummow, and Hayne JJ) found that the acknowledgment and observance of traditional law and custom “must have continued substantially uninterrupted since sovereignty”[10] and that only those customs and laws which existed “before the assertion of sovereignty by the British Crown” were to be regarded as authentically traditional to satisfy the purposes of native title law.[11]
• Gaudron and Kirby JJ disagreed stating that section 233(1)(b) only required that there be a present connection to land and waters and that this connection did not need to be physical. It was argued that continuing occupancy could also be spiritual[12]… to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values of the customs and practices of the people who acknowledge and observe those laws and customs”.[13]

However, in the end the majority of the High Court dismissed the Yorta Yorta people’s appeal and in doing so placed a positive obligation on future native title claimants to prove that their traditional law and customs have continued substantially uninterrupted since 1788.[14]