Common Law Native Title in Australia — An Analysis of Mabo v Queensland [NO 2]
| DOI | 10.1177/0067205X9302100205 |
| Date | 01 June 1993 |
| Published date | 01 June 1993 |
| Author | Fiona Wheeler |
| Subject Matter | Article |
COMMON
LAW
NATIVE
TITLE
IN
AUSTRALIA
-
AN
ANALYSIS
OF
MABO
vQUEENSLAND [NO
2J
FIONA WHEELER·
INTRODUCTION
Maho
vQueens/and [No 2Jl is alandmark decision. The High Court held, by
asix to one majority, that the common law
of
Australia recognises aform
of
native land title which survived the Crown's acquisition
of
sovereignty over
Australia. The effect
of
the Crown's acquisition
of
sovereignty, according to the
High Court, was simply to expose common law native title to the possibility
of
extinguishment by avalid exercise
of
inconsistent sovereign power.
Thejudgments in Maho [No 2J range widely across issues
of
constitutional
law and the law
of
real property. These issues are explored below in a
description and analysis
of
the case. In addition, mention is made
of
the
techniques
of
legal reasoning adopted by the majority judges. The majority did
not shy away from the fact that they were making law.2The justifications
which they gave for assuming this role and the sources which they employed in
fashioning anew common law
of
land titles for Australia provide some idea
of
the forces which will be brought
to
bear on the future development
of
our
common law.
THE FACTS AND HISTORY OF THE MABO LITIGATION
The case concerned the Murray Islands in the Torres Strait. Since time
immemorial, the Islands had been continuously occupied by the Meriam
people. The Meriam people lived in an organised community which recognised
individual and family rights
of
possession and occupation
of
identified areas
of
land.3The plaintiffs, including Eddie
Mabo,
were all members
of
the Meriam
people. In 1982, they instituted proceedings in the High Court
of
Australia
against the State
of
Queensland seeking adeclaration
of
their legal entitlement
to their traditional lands.
The Murray Islands were annexed to the Colony
of
Queensland in 1879,
whereupon they became subject to the laws
of
Queensland, including the
common law. By the common law, the Crown acquired aradical (in the sense
•
1
2
3
Lecturer in Law, Australian National University.
(1992) 175 CLR
1.
Thatjudges make law is,
of
course, no revelation. See, for example, MMcHugh,
"The Law-making Function
of
the Judicial Process" (1988) 62
ALl
15-31
(Pt I)
and 116-127 (Pt ll). What was notable about thejudicial role inMabo
[No
2J
was
the openness with which this law-making function was assumed, and the fact that
the new legal rule fonnulated by the Court represented adramatic departure from
the previous legal position.
Mabo
[No
2J
(1992) 175 CLR 1, 115 per Deane and Gaudron JJ, drawing from
the
fmdings
of
fact
of
Moynihan J
of
the Supreme Court
of
Queensland.
271
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