Mabo v Queensland (No 2)
High Court of Australia
Full case name	Mabo and Others v Queensland (No. 2)
Date decided	June 3, 1992
Citations	(1992) 175 CLR 1, [1992] HCA 23
Judges sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ
Case history
Prior actions:	Mabo v The State of Queensland (1988)
Subsequent actions:	none
Case opinions
(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ) (7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... Image File history File links Download high-resolution version (922x693, 1523 KB) Summary Transparent copy of [1] Edited by Ansett 1means the typographical arrangement and layout of a published work. ... is the 154th day of the year (155th in leap years) in the Gregorian calendar. ... Year 1992 (MCMXCII) was a leap year starting on Wednesday (link will display full 1992 Gregorian calendar). ... Sir Anthony Mason KBE AC, former Chief Justice of the High Court of Australia. ... Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ... This article or section does not cite any references or sources. ... Sir Daryl Dawson AC KBE CB (born 1933), Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997. ... John Leslie Toohey - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ... Mary Genevieve Gaudron (born 5 January 1943) was the first female judge of the High Court of Australia. ... Justice Michael McHugh Justice Michael Hudson McHugh (b. ... It has been suggested that this article or section be merged into Mabo v Queensland. ... Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians. ... (7:0) grants of land which are inconsistent with native title extinguish the native title (4:3) no consent or compensation is required at common law in the event that native title is extinguished (per Mason CJ, Brennan, Dawson & McHugh JJ)

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. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined. A landmark decision is the outcome of a legal case (often thus referred to as a landmark case) that establishes a precedent that either substantially changes the interpretation of the law or that simply establishes new case law on a particular issue. ... High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... is the 154th day of the year (155th in leap years) in the Gregorian calendar. ... Year 1992 (MCMXCII) was a leap year starting on Wednesday (link will display full 1992 Gregorian calendar). ... Terra nullius (English pronunciation , Latin pronunciation IPA: ) is a Latin expression deriving from Roman Law meaning no mans land, i. ... For the historic phenomenon of colonization and imperialism, see main article colonialism (and also decolonization). ... 1788 was a leap year starting on Tuesday (see link for calendar). ... Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians. ... This article or section does not cite any references or sources. ...

The case

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. Indigenous Australians should be aware that this article may contain pictures and names of deceased Aboriginal people and or images of their art work. ... Mer (Murray Island), in the eastern group of Torres Strait Islands off the northern tip of Australia, is home to the Miriam people. ... Murray Island (known by Torres Strait Islanders as Mer) is a small island of volcanic origin, populated by the Melanesian Meriam people and situated in the eastern section of Torres Strait, near the Great Barrier Reef. ... Torres Strait and islands The Torres Strait - Cape York Peninsula is at the bottom; several of the Torres Strait Islands can be seen strung out towards Papua New Guinea to the north. ... Year 1982 (MCMLXXXII) was a common year starting on Friday (link displays the 1982 Gregorian calendar). ...

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 gardening 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 case law, a Test Case is a legal action whose purpose is to set a precedent. ... Murray Island (known by Torres Strait Islanders as Mer) is a small island of volcanic origin, populated by the Melanesian Meriam people and situated in the eastern section of Torres Strait, near the Great Barrier Reef. ... Torres Strait and islands The Torres Strait - Cape York Peninsula is at the bottom; several of the Torres Strait Islands can be seen strung out towards Papua New Guinea to the north. ... Year 1879 (MDCCCLXXIX) was a common year starting on Wednesday (link will display the full calendar) of the Gregorian calendar (or a common year starting on Monday of the 12-day slower Julian calendar). ... Media:Example. ... A gardener Gardening is the practice of growing flowering plants, vegetables, and fruits. ... Fishing is the activity of hunting for fish by hooking, trapping, or gathering. ...

In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act, which declared that on annexation of the islands in 1879, they 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. This article is about the year. ... Queensland Government Logo The Government of Queensland is commonly known as the Queensland Government. ... Ceremonies during the annexation of Hawaii. ... Year 1988 (MCMLXXXVIII) was a leap year starting on Friday (link displays 1988 Gregorian calendar). ... The Racial Discrimination Act 1934 is a statute passed by the Parliament of Australia under the Government of former Labor Prime Minister Gough Whitlam. ...

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". A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... This page includes English translations of several Latin phrases and abbreviations such as . ...

• Plaintiff's arguments: The plaintiff argued for a possessory title by reason of long possession.
• Defendant's arguments: The Queensland government argued that when the territory of a settled colony became part of the Crown's dominions, the law of England became the law of the colony and, by that law, the Crown acquired the "absolute beneficial ownership" of all land in the territory

For other uses, see England (disambiguation). ...

The decision

Five judgments were delivered in the High Court, by (1) Justice Brennan, (2) Justice Deane and Justice Gaudron, (3) Justice Toohey, (4) Justice Dawson, and (5) Chief Justice Mason and Justice McHugh. Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ... This article or section does not cite any references or sources. ... Mary Genevieve Gaudron (born 5 January 1943) was the first female judge of the High Court of Australia. ... John Leslie Toohey - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ... Sir Daryl Dawson AC KBE CB (born 1933), Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997. ... Sir Anthony Mason KBE AC, former Chief Justice of the High Court of Australia. ... Justice Michael McHugh Justice Michael Hudson McHugh (b. ...

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 Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland. ...

• there was a concept of native title at common law;
• the source of native title was the traditional connection to or occupation of the land;
• the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs; and
• native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.

• Rejection of terra nullius: The decision recognised that the indigenous population had a pre-existing system of law, which, along with all rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action. The Court purported to achieve all this without altering the traditional assumption that the Australian land mass was "settled". Instead, the rules for a "settled" colony were said to be assimilated to the rules for a "conquered" colony.

• Repudiation of absolute beneficial title of all lands: The majority in Mabo also rejected the proposition that immediately upon the acquisition of sovereignty, absolute beneficial ownership of all the lands of the Colony vested in the Crown. The majority rejected the traditional feudal development of the doctrine of tenure as inappropriate for Australia, and rather saw that upon acquisition of sovereignty the Crown acquired not an absolute but a radical title, and that title would be subject to native title rights where those rights had not been validly extinguished. Thus the court accepted that a modified doctrine of tenure operated in Australia, and that the law of tenure (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions), though where there had been a valid grant of fee simple by the Crown the latter title would be extinguished.

• Fragmentation of proprietary interests: Justice Toohey made the argument that common law possessory title could form the basis for native title claims by indigenous Australians. This has not subsequently been pursued.

Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to hold the land. ... John Leslie Toohey - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ...

Consequences

The Mabo decision presented many legal and political problems for the Federal Government and the states, including:

• the necessity to validate titles issued after the commencement of the Racial Discrimination Act 1975 which might have been rendered invalid by that Act;
• a requirement to make provision for permitted future development of land affected by native title;
• provide a regime for the speedy and efficient determination of issues of native title.

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 Racial Discrimination Act 1934 is a statute passed by the Parliament of Australia under the Government of former Labor Prime Minister Gough Whitlam. ... Type Bicameral Houses House of Representatives Senate Speaker of the House of Representatives David Hawker, Liberal Party since 16 November 2004 President of the Senate Alan Ferguson, Liberal Party since 14 August 2007 Members 226 (150 Representatives, 76 Senators) Political groups Liberal Party ALP National Party Country Liberal Party Greens... ALP redirects here. ... For other persons named Paul Keating, see Paul Keating (disambiguation). ... The Wik Decision is a decision of the High Court of Australia in Wik Peoples v. ... Year 1998 (MCMXCVIII) was a common year starting on Thursday (link will display full 1998 Gregorian calendar). ... Year 1996 (MCMXCVI) was a leap year starting on Monday (link will display full 1996 Gregorian calendar). ... Wik Peoples v Queensland - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ...

The Act enacted a statutory definition of native title based on that made by Chief 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. The Wik Decision is a decision of the High Court of Australia in Wik Peoples v. ... The Wik Decision is a decision of the High Court of Australia in Wik Peoples v. ...

See also

• Common law
• Torres Strait Islander
• History of Australia
• Terra Nullius
• Native title
• Milirrpum

This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Torres Strait Islanders are the indigenous people of the Torres Strait Islands, part of Queensland, Australia. ... The history of Australia began when people first migrated to the Australian continent from the north, at least 40,000-45,000 years ago. ... Terra nullius (English pronunciation , Latin pronunciation IPA: ) is a Latin expression deriving from Roman Law meaning no mans land, i. ... Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians. ... In December 1968, the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Supreme Court of the Northern Territory against the Nabalco Corporation, which had secured a twelve-year bauxite mining lease from the Federal Government. ...

References

• Richard Bartlett, "The Proprietary Nature of Native Title" (1993) 6 Australian Property Law Journal 1.

External links

• Mabo and Another v The State of Queensland and Another [1989] HCA 69; (1989) 166 CLR 186
• Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1
• The Native Title Act 1993 (Cth)
• The Hon. Sir Gerard Brennan, convention paper regarding Mabo to an International Conference
• Papers of Edward Koiki Mabo, held by the National Library of Australia