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Common Law Native Title in Australia — An Analysis of Mabo v Queensland [No 2]

Published online by Cambridge University Press:  24 January 2025

Fiona Wheeler
Fiona Wheeler*
Affiliation:
Australian National University
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Extract

Mabo v Queensland [No 2] is a landmark decision. The High Court held, by a six to one majority, that the common law of Australia recognises a form 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 a valid exercise of inconsistent sovereign power.

The judgments in Mabo [No 2] 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.

Type
Research Article
Information
Federal Law Review , Volume 21 , Issue 2 , June 1993 , pp. 271 - 278
Copyright
Copyright © 1993 The Australian National University

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References

1 (1992) 175 CLR I.

2 That judges make law is, of course, no revelation. See, for example, M McHugh, “The Law-making Function of the Judicial Process” (1988) 62 AL.I 15-31 (Pt I)and 116-127 (Pt II). What was notable about the judicial role in Mabo [No 2] was the openness with which this law-making function was assumed, and the fact that the new legal rule fonnulated by the Court represented a dramatic departure from the previous legal position.

3 Mabo [No 2] (1992) 175 CLR I, I15 per Deane and Gaudron JJ, drawing from the findings of fact of Moynihan J of the Supreme Court of Queensland.

4 Section 3.

5 Section 5.

6 (1988) 166 CLR 186.

7 (1992) 175 CLR 1, 179. See also 25-26 per Brennan J and 77 per Deane and Gaudron JJ.

8 Ibid 26.

9 For example, Attorney-General v Brown (1847) l Legge 312; Williams v Attorney-General for New South Wales (1913) 16 CLR 404; Randwick Corporation v Rutledge (1959) 102 CLR 54; New South Wales v Commonwealth (the “Seas and Submerged I.ands” case) (1975) 135 CLR 337.

10 Cooper v Stuart (1889) 14 App Cas 286,291.

11 (1992) 175 CLR 1, 40.

12 Id.

13 “Swearing in of Sir Owen Dixon as Chief Justice” (1952) 85 CLR xi, xiv.

14 (1992) 175 CLR I, 109.

15 Ibid 30.

16 Ibid 42.

17 Id.

18 Ibid 29, 43 per Brennan J.

19 Ibid 48-49 per Brennan J; 81, 86-87 per Deane and Gaudron JJ.

20 Ibid69-71.

21 Ibid 69 per Brennan J; 89, 110 per Deane and Gaudron JJ.

22 Ibid 68 per Brennan J.

23 Ibid 69 per Brennan J.

24 Ibid 69-70 per Brennan J; 89-90, 110 per Deane and Gaudron JJ.

25 This seems to be the effect of the majority judgments. See id.

26 Ibid 70 per Brennan J.

27 Ibid 66 per Brennan J.

28 See, in particular, ss 9 and 10 of the Racial Discrimination Act 1975 (Cth).

29 The same guarantee appears in the two Territory self-government Acts. See Northern Territory (Self-Government) Act 1978 (Cth) s 50(1) and Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1Xa).

30 This difference of opinion is summarised (with the endorsement of the otl1er members of the Court) in the judgment of Mason CJ and McHugh J. See Mabo [No 2] (1992) 175 CLR 1, 15-16.

31 Ibid 59, 70 per Brennan J; 85-86 per Deane and Gaudron JJ; 187-188 perTooheyJ.

32 Ibid 58, 70 per Brennan J; 88, 110 per Deane and Gaudron JJ.

33 Ibid 70 per Brennan J.

34 Id. Deane and Gaudron JJ expressed themselves in- slightly different terms. They agreed with Brennan J that the rights attaching to common law native title would be lost “by the abandonment of the connexion with the land or by the extinction of the relevant tribe or group”. However, they added that such rights would not necessarily be lost by the abandonment of traditional customs and ways “at least where the relevant tribe or group continues to occupy or use the land”. See ibid 110. Toohey J denied that the modification of traditional society entailed the extinction of traditional title. In his Honour's opinion: “[T]raditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way oflife”. See ibid 192.

35 Ibid 70. See also 88, 110 per Deane and Gaudron JJ.

36 Ibid 61 per Brennan J; 112-113 per Deane and Gaudron JJ.

37 M McHugh, “The Law-making Function of the Judicial Process - Part Il” (1988) 62 ALJ 116, 124.