Mabo – what it means, what it doesn’t mean

Most Australians would be aware, at least, of the High Court’s decision in Mabo, which was handed down on 3 June 1992. Many would also recognise the phrase terra nullius and would know that it has something to do with the Mabo decision.

However, there has historically been a lot of misinformation about the meaning of Mabo, and on this, the 17th anniversary of the decision (and the final day of Reconciliation Week this year), I thought it was worth posting about what it means, what it doesn’t mean, and some of the current issues related to native title.

Question #1: Did Aboriginal and Torres Strait Islander people have any land rights prior to the Mabo decision in 1992?

They did, but these were very limited – basically, between the early 1960s and the Mabo decision, most states had put into place legislation (as the Federal government had done for the Northern Territory) which granted Aboriginal and Torres Strait Islander people some ownership of land which had been reserves. Notably, Western Australia did not have any such legislation – and as you can imagine, that’s a big deal, given it’s the largest state.

Question #2: If there was already legislation, what was the significance of Mabo?

Well, first of all, the legislation only gave a very specific group of Aboriginal and Torres Strait Islander people any rights to land (again, any Aboriginal people from Western Australia didn’t have any protection!).

But the real significance of Mabo (in terms of how it protected land rights) was the recognition of native title in the Australian common law. Before Mabo, there had been a case (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141) in the Northern Territory in which a judge had rejected the concept of native title, essentially on the basis that there had never been any governmental recognition of native title.

This decision was criticised for a while, but (possibly because of the limited land rights granted to some Aboriginal and Torres Strait Islander people by legislation) the question of native title didn’t come up again properly until Mabo.

Question #3: Did Mabo grant Aboriginal and Torres Strait Islander people any land rights?

No. In fact, ironically enough, it actually validated the dispossession of Aboriginal and Torres Strait Islander people that took place before 31 October 1975. The significance of that date is that on that day, the Racial Discrimination Act 1975 commenced.

In Mabo, the High Court held that there was no general restriction in Australian law (either under the Constitution, general principles of common law or other legislation) that prevented the dispossession of Aboriginal and Torres Strait Islander people before the Racial Discrimination Act came into force. As a result, any land granted (ie no longer held by the Crown) before 31 October 1975 cannot be subject to native title claims. This includes most land in urban areas, and a significant amount of land in other areas.

However, the Court held that any attempted extinguishment of native title after 31 October 1975 is subject to the Racial Discrimination Act. That means that native title can be extinguished after 31 October 1975, but there must be a clear intention in the legislation to extinguish native title. (The High Court split on the issue of compensation.)

Question #4: You haven’t mentioned terra nullius yet. What’s that all about?

Although terra nullius is one of the “take-home” phrases from Mabo, the concept is actually not enormously important to the decision.

One judge (Brennan J) did focus on the concept, but this appears to be because he felt it necessary to overrule previous cases which he thought applied. Other judges seemed to simply accept that the concept of “native title” could exist whether or not a place was terra nullius. Whether or not Australia was terra nullius prior to the arrival of the British was irrelevant, and in fact, most of the Court did not actually reject the concept.

Question #5: What must Aboriginal or Torres Strait Islander people prove in order to establish native title?

They have to prove that native title has not been extinguished as described above.

They also have to prove a continuing connection with the land. (Since Mabo, this is governed by the Native Title Act 1993.)

This means that people who were forcibly removed from their land suffer a double-whammy. Where a group of people was entirely dispersed, it is likely to be very difficult to establish a native title claim.

The current Chief Justice of the High Court of Australia, Justice French, has recently suggested that the system is unfair and unwieldy. [NB: that link is a .pdf - there's a .html list of speeches here.] His Honour is widely quoted as saying that there should be a reversal of the onus of proof – that is, that rather than the native title claimants having to prove their continuous connection to the land, that the other party should have to disprove it. This is not stated in terms in the speech, but there is a suggestion that the difficulties faced by native title claimants are opposed to the generally beneficial purpose of the Native Title Act.

Some current issues

One current issue is that referred to French CJ: the difficulty that native title claimants still face in proving their continuous connection to the land in question. This means that native title cases tend to take years to resolve, with enormous amounts of evidence put before the court. This puts a strain on the parties (as litigation always does, and particularly because it is an issue which is so important to so many people) and on the justice system.

I’d highly recommend reading the Chief Justice’s paper, which I hope is reasonably accessible to non-lawyers.

Another current issue is the NT Intervention. One very topical issue is the pressure the Federal government is placing on some Aboriginal groups in the NT to enter into leases, with the Aboriginal groups leasing their land to the Federal government in return for an “investment”.

It’s not directly related to native title in the Mabo sense, but it raises the same sorts of questions – and makes many people fear that the government has some ulterior motive in requiring the leases to be granted.

There are other current issues, but this post is already long enough, so I’ll leave them to be raised in comments.

Cross-posted.