In the spirit of reconciliation, Thomson Reuters acknowledges the Traditional Owners of Country across Australia and pays our respects to their Elders, past and present.

The judgments in Mabo v Queensland (No 2) (1992) 175 CLR 1; 66 ALJR 408 entrenched two important landmarks in Australian jurisprudence: one recognising First Nations’ cultural and spiritual attachment to country; the other recognising that Australia has its own mature and independent common law.  In a brief joint judgment introducing the court’s reasons for upholding the existence of native title, Chief Justice Sir Anthony Mason and Justice Michael McHugh wrote:

[S]ix members of the Court (Dawson J dissenting) are in agreement that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland.

(Emphasis added.)

Gone was the all-pervading influence of the English common law, which in the opinion of the Judicial Committee of the Privy Council applied automatically to any “tract or territory practically unoccupied, without settled inhabitants or settled law, which is peaceably annexed to the British dominions …” (Cooper v Stuart (1899) 10 NSWLR (Eq) 172 (PC)).  This was how the law defined “terra nullius”.  Looking at it with modern eyes it seems inconceivable that anyone could have defined Australia in those terms.

The High Court in Mabo (No 2) declined to follow Cooper v Stuart and a number of subsequent decisions, including some of its own, which had accepted the concept of terra nullius as applicable to Australia.  Among these were Williams v Attorney General of New South Wales (1913) 16 CLR 404; 13 SR (NSW) 539, which proceeded on the premise that the Crown quietly assumed the ownership of Australian land which thereafter “belonged to the Crown until the Crown chose to grant it” and New South Wales v Commonwealth  (1975) 135 CLR 337; 50 ALJR 218, a tussle between Commonwealth and State over which of the two owned the territorial seas and continental shelf.

Mabo (No 2) also explicitly disapproved the tack taken by the Supreme Court of the Northern Territory in Milirrpum v Nabalco Pty Ltd (the Gove Land Rights Case) (1971) 17 FLR 141. Royal Letters Patent establishing the “Province of South Australia” contained a proviso saving the rights of indigenous peoples to occupy and enjoy their lands.  Blackburn J held that this was “no more than the affirmation of a principle of benevolence”; that it did not operate as a constitutional guarantee of First Nations’ rights; and did not extend to the Northern Territory which wasn’t part of South Australia when the Letters Patent were issued (!).  Fortunately some of the edge of that decision was taken off a few years later when the Commonwealth enacted the Aboriginal Land Rights (Northern Territory) Act 1976.

Coe v Commonwealth (1979) 53 ALJR 403 is cited in a footnote in Mabo but wasn’t considered at length.  It too took terra nullius as a given.  While Jacobs J observed that there was no actual decision of either the High Court or the Privy Council that Australian colonies were “settled”, Gibbs and Aickin JJ held that it was “fundamental to our legal system” that the colonies became “British possessions by settlement … not conquest” and that native title claims were “legally untenable”. Coe wasn’t expressly disavowed by Mabo No 2, probably because the appeal was inconclusive in its outcome and of no lasting legal force.

Thirty years on from Mabo No 2, it’s worthwhile to pause and reflect on how dramatically this case changed what was for so long accepted as “settled” law.

Wouldn’t it be great if every schoolkid in Australia could recite the words in bold above?

If you’d like to explore more information on Eddie Mabo and the Mabo case, the following links are a great place to start:
https://www.jcu.edu.au/mabo-decision 

https://www.reconciliation.org.au/commemorating-mabo-day/

https://www.indigenous.gov.au/eddie-mabo-the-man-behind-mabo-day.

Raising awareness of First Nations challenges is a core element of the work of the Thomson Reuters Indigenous Peoples Network, instituted in 2021. For more information on the work of Thomson Reuters Indigenous Peoples Network, please contact Kevin Stokes (kevin.j.stokes@thomsonreuters.com).