## Facts

- The Meriam people are the Indigenous inhabitants of the Murray Islands (Mer, Dauar, and Waier) in the Torres Strait and claimed rights to land according to their traditional laws and customs.
- In 1879, the Murray Islands were annexed to the Crown, and Queensland contended that any Indigenous rights to land were displaced by Crown sovereignty.
- In 1982, Eddie Koiki Mabo and other Meriam plaintiffs commenced proceedings in the High Court of Australia seeking declarations that their traditional land rights (often described as “native title”) existed and were recognized by Australian common law.
- The High Court referred factual questions about Meriam society, landholding, and connection to the Supreme Court of Queensland for findings.
- While that factual inquiry was underway, Queensland enacted the *Queensland Coast Islands Declaratory Act 1985 (Qld)*, which purported to declare that any Islander land rights had been extinguished from the time of annexation, without compensation.
- In *Mabo v Queensland (No 1)* (1988), the High Court held that 1985 Act invalid for inconsistency with the *Racial Discrimination Act 1975 (Cth)*, allowing the plaintiffs’ substantive claims to proceed.
- The case returned to the High Court to decide whether Australian common law recognizes native title, its content, and whether it had been lost through annexation or later government action.
- By the time judgment was delivered on 3 June 1992, some original plaintiffs, including Eddie Mabo, had died.

## Issues

1. Whether, upon annexation and the Crown’s acquisition of sovereignty, all land in the Murray Islands became the absolute property of the Crown so that no continuing rights of the Meriam people could be recognized.
2. Whether Australian common law recognizes a form of native title arising from the traditional laws and customs of Indigenous peoples, and, if so, what its nature and content are.
3. Whether any native title held by the Meriam people had been validly extinguished by annexation, Crown grants, reservations, legislation, or other executive acts.

## Decision

- The High Court (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Dawson J dissenting) held that Australian common law recognizes native title.
- The Court rejected the idea that Australia was “terra nullius” in a way that denied Indigenous proprietary rights and treated that approach as a legal fiction inconsistent with the contemporary common law.
- The Court held that the Crown’s acquisition of sovereignty brought radical title (a root of title) but did not, by itself, give the Crown full beneficial ownership free of Indigenous interests.
- Native title could survive sovereignty where the relevant community maintained its connection with the land under traditional laws and customs and where native title had not been validly extinguished.
- The Court held that extinguishment requires a clear intention, shown by legislation or executive action that is inconsistent with the continued enjoyment of native title; it is not presumed.
- Applying those principles, the Court declared that the Meriam people held native title to most of the Murray Islands, subject to particular exceptions where interests had been lawfully created or reserved in a manner inconsistent with native title.
- Dawson J dissented, concluding that the Crown acquired full ownership such that proprietary native title was not recognized at common law.

## Legal Principles

- Native title is recognized (not created) by the common law where rights and interests in land existed under Indigenous traditional laws and customs before the Crown’s sovereignty and continue to be observed.
- The Crown’s acquisition of sovereignty gives the Crown radical title and the capacity to grant interests in land, but radical title may be burdened by native title.
- The content of native title depends on the traditional laws and customs of the claimant group and may be communal or individual; it can include rights to possess, occupy, use, and exclude others, depending on the tradition proved.
- Continuity of native title turns on continued connection to land through ongoing acknowledgment and observance of traditional laws and customs; loss of connection may mean loss of native title.
- Extinguishment of native title requires a clear and plain intention shown by valid government acts that cannot stand together with the continued enjoyment of native title; general assertions of sovereignty or ownership are not enough.
- Crown grants and reservations that confer rights inconsistent with native title (for example, grants conferring exclusive possession) can extinguish native title to the extent of the inconsistency.
- State action aimed at removing Indigenous property rights on a racially discriminatory basis may be invalid or inoperative where inconsistent with the *Racial Discrimination Act 1975 (Cth)*, as confirmed by the earlier *Mabo (No 1)* ruling.

## Conclusion

*Mabo v. Queensland* held that Australian common law recognizes native title held under Indigenous traditional laws and customs, rejected terra nullius as a basis for denying such rights, and explained that native title survives sovereignty unless it is lost through a break in connection or clearly extinguished by valid and inconsistent government action; on the facts, the Meriam people were declared entitled to native title over most of the Murray Islands.


Mabo v. Queensland, (1992) 175 CLR 1, 5; 107 A.L.R. 1; 1992 WL 1290806 (1992)