What did the High Court decide in Mabo v Queensland (1991:1)? This is a question which no one can answer with any degree of certainty, as the following analysis of the case demonstrates.
Mabo v Queensland was a case involving the claims of the Meriam peoples to the Murray Islands. The High Court in upholding this claim, also held that similar principles should be applied to the situation of the Aboriginal people on the mainland of Australia.
Lawyers use the term "ratio decidendi" to describe the rules of law enunciated in a decision of a superior court which are binding on courts of inferior jurisdiction (and sometimes on courts of co-ordinate jurisdiction). What is ratio decidendi?
A superficial and simplified description is provided for the non-lawyer. What is referred to as ratio decidendi are the rules of law essential to dispose of the issues which divide the parties to a dispute in a litigation before the Court. This involves extracting the relevant facts and issues on which the parties were divided and determining the rules of law which were essential for the Court to enunciate in order to conclusively decide the dispute.
Technically the determination about the rights of the Aboriginal people was not part of the ratio decidendi. But the fact that it was made led to a great deal of debate on the subject and a reliance on the decision as establishing rights for the Aboriginal people.
The Mabo Edict was the final consequence of a claim by the Meriam people to the Murray Islands. The claim was substantially upheld by six judges of the High Court with Dawson J dissenting. The reasons are briefly summarized (briefness militates against accuracy).
i The present inhabitants of the Islands (the Meriam people) are descended from those described in the early European records.
ii The Meriam people are entitled as against the whole world to , occupation, use and enjoyment of the lands of the Murray Islands.
a The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian court.
b On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
iv Native titles to land survived the Crown's acquisition of sovereignty and radical title.
v 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.
vi on the subject of how and in what circumstances extinguishment (wholly, partly, improperly) of native title could take place and whether and in what circumstances a right to damages is available are issues on which the six judges provided complex answers, drew fine distinctions, disagreed among themselves and left many issues uncertain or unresolved. For a succinct summary of the judgment on extinguishing native title, (Butt:1992:444).
vii Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled to it are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land.
viii Native title could also be extinguished by the actions of the indigenous people (as distinct from the exercise of sovereign power (v)). This did not arise in the context of the claims of the Meriam people.
Mason CJ, Brennan and McHugh JJ thought that native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.
Deane and Guadron JJ were of the opinion that such native title is extinguished if the tribe or group becomes extinct or abandons its connection with the land. They also appeared to imply that the abandonment of traditional customs and ways would not extinguish the native title, at least where the relevant tribe or group continues to occupy or use the land. Brennan J was prepared to accept that the traditional laws and customs could have been developed to accommodate European settlement. A question arises whether this equates, in substance, with the views of Deane and Gaudron JJ.
Mason CJ, Brennan, Deane, Gaudron and McHugh JJ were of the opinion that native title over any parcel of land can be surrendered to the Crown voluntarily by all those clans or groups who, by the traditional laws and customs of the indigenous people, have a relevant connection with the land, but the rights and privileges conferred by native title are otherwise inalienable to persons other than in accordance with traditional law and custom.
Dawson J (Dissenting) held that Aboriginal title was a type of occupancy the existence of which depended on the permission of the Crown, the withdrawal of which (which was the same as the extinction of Aboriginal title) might be effected by specific legislation or inferred from a course of action by the Crown inconsistent with the continued existence of Aboriginal title. He held on the facts of the case that any rights of the native inhabitants which might have existed in the land were not recognized by the Crown or were extinguished by the Crown on annexation. Dawson J concurred with the rest of the Court on (iii) above, but dissented on other issues.
The ratio decidendi of the case strictly analysed would include propositions (i) to (v) and (vii) in the context of the claims of the Meriam peoples to the Murray Islands. (vi) and (viii) did not arise for determination on the facts of the case.
The six judges of the High Court however expressed the view (analysed further below) that the same principles would apply to mainland Aborigines. This was a strange finding because
i there was no argument before the court on that issue and
ii the Meriam Islanders were a settled agricultural people and not a nomadic people like the mainland Aborigines.
An important dimension to the decision was that there was great uncertainty about native title and its application to mainland Aborigines.
The pre-Mabo law on the consequences of British Sovereignty on land title is succinctly summarised by Sir Paul Hasluck
The discovery, exploration and settlement of the Australian continent by Europeans certainly meant that in the course of two centuries land once occupied by Aborigines was occupied by Europeans. The Aborigines were dispossessed. The view commonly held by the white settlers was that the act of possession, solemnly made on the occasion of discovery or first settlement, meant that all the land in Australia was at the disposition of the Crown and the only title to own or to have the use of a particular plot of land was a title granted by the Crown and registered by one of the several Lands and Titles Offices in Australia. Land not so granted ("not alienated" was the formal term) remained as Crown land. Decisions regarding the alienation, allotment and use of land were made in the name of the Crown by the various governments which had been set up in Australia under the constitutional powers of the British Parliament. When these colonial governments became representative and then responsible they acted in land matters (as in other phases of government) in keeping with the views and to serve the interests of the Australian citizens. They made decisions from time to time to alienate more and more Crown land, to promote settlement, to developer communications and services, to facilitate prospecting and mining for minerals and to exploit forests. Australian legislatures made laws regarding land and Lands Departments administered these laws. Rights in land did not exist outside this process. The popular understanding of the history of the foundation of settlement in Australia was that the early colonists had moved into unoccupied land. A scant Aboriginal population was nomadic and there were none of those signs of occupation or ownership of land familiar to Europeans, such as permanent dwellings, villages, towns, farms, herds, cultivation, enclosures, ditches, hedges, earthworks or clearings. There had been no conquest or surrender of territory but a gradual process of occupying land that was waste land in the sense that nobody was using it in the way in which Europeans used land. In any case, the greater part of the immigrant whites arrived in the continent during the second century of the history of settlement. These late-comers, attracted to Australia by the prospect of making a new life for themselves in a new land, found little in the southern half of the continent to remind them of the earlier inhabitants. As a matter of course they obtained their piece of land, whether a farm or suburban building lot, by buying it on the open market or becoming an applicant under some scheme of government-promoted settlement. They were not aware that the vanished Aborigines had prior right to the piece of land to which the immigrant had received the title deeds. (Hasluck 1988:101-2)
Prior to Mabo the Australian courts had clearly laid down that customary native land title (assuming that it existed) was extinguished upon the acquisition by the Crown of a colony. (Attorney-General v Brown 1847:30; Milirrpum v Nabalco Pty Ltd 1971:141; Hasluck 1988:101-2). This line of cases was ignored in Mabo. In the opinion of the Court in Mabo, the British Crown's acquisition of sovereignty over a colony on the land mass of Australia did not automatically extinguish customary native title. The common law could, and did, accommodate native customary title. The Crown's sovereignty carried "beneficial" ownership only over areas where no native title to the land in fact existed. The Crown's radical title empowers the Crown to appropriate land to itself or alienate land to others; but until the Crown so acts, any traditional native interests in the land that existed under native law or custom when the colony was established, survive.
Sir Paul Hasluck's summary would have been accepted as a statement of law prior to the Mabo Edict by lawyers and legal academics — though some would have argued that the law was unjust and should be reformed.
I fundamentally disagree with Galligan's view of the High Courts law making functions. Judges do legitimately make law in narrowly defined situations. But the High Court has stepped far beyond the law making role of modern courts in the common law tradition. The role of the judges in the modern era of parliamentary dominance is very restricted. What the High Court has done in the Mabo Edict is more fundamental, far reaching and political than what it has done in any previous decision.
|« NEXT »||« Part II—Mabo Edict »||« Part I—Perspectives »||« Mabo Decision »||« Home »|