A brief outline of The Mabo Judgement and its implications

The High Court Recognition of Native Title - The Mabo Judgement and Its Implications

Stan Pelczynski vicnet.net.au 27th July 1993

Eddie Mabo

Bonita Mabo

Born: Eddie Koiki Mabo
29 June 1936
Mer, Torres Strait Islands, Queensland, Australia
Died: 21 January 1992 (aged 55)
Brisbane, Queensland, Australia.

Acquiring the Mabo Papers

Bonita Mabo
Pictured: Bonita Mabo

The story behind the acquisition of the personal papers of the human rights activist and land rights campaigner Edward Koiki Mabo (1936-1992) which were formally passed into the National Library of Australia

National Library of Australia

What is Mabo?
The term "Mabo", as used in the media reports, refers to all issues relating to the Australian High Court judgement in the Mabo v. Queensland case.

The Court's judgment
On the 3rd of June, 1992, after a decade of litigation, the High Court ruled that the land title of the Indigenous Peoples, the Aborigines and Torres Strait Islanders, is recognised at common law. This Indigenous Peoples' land title, or native title, stems from the continuation within common law of their rights over land which pre-date European colonisation of Australia. In the absence of an effective extinguishment by the crown, this title presents through inheritance the original occupants' right to possession of their traditional lands in accordance with their customs and lores. The judgement has, at long last, rejected the "Terra Nullius " legal fiction, bringing Australia almost in line with remaining common law countries, ie USA, Canada and New Zealand.

Recognition of Aboriginal and Torres Strait Islanders land ownership prior to the Mabo judgment
Aboriginal ownership of land has always been recognised by Britain. This is clear from the very earliest dispatches to Australia from the British Colonial Office, proclamations in the House of Commons and private correspondence between officials. The clearest expression of this comes from the 1837 House of Commons select committees report on Australian Colonies stating ' that the native inhabitants of any land have an incontrovertible right to their own soil however, which seems not to have been understood ' ( Henry Reynolds " The Law Of The Land" ).

Aboriginal ownership of land has also been recognised by International Law, to which Britain is a party from before its colonisation of Australia. In spite of the British recognition of Aboriginal land ownership, the colonists in Australia managed to officially disregard such recognition. founding Australian law on the economically convenient concept of ' Terra Nullius ': that is, on the fiction that Australia was ' unoccupied ' at the time of colonisation. This obviously false legal basis and the injustice that stemmed from it, has been challenged from the very earliest days of colonisation by Aborigines and their supporters.

Court cases, such as the Milirrpum v Nabalco case of the 1971 and the Mabo v. Queensland case. and moves for special land rights legislation are some of the recent ways in which the disregard of Aboriginal land ownership has been challenged up to now.

The effect of the Mabo judgment on non-Aboriginal land tenure.
The Mabo judgment in no way challenges the legality of non-Aboriginal land tenure. In fact, the Court went to considerable length to establish that the impact of its judgment will be minimal on non-Aboriginal Australians.

Only land such as vacant crown land, national parks and possibly some leased land, where the lease is subject to Aboriginal rights of access to the land, can be subject to claims by the Aboriginal owners.

Further, no native title is automatically recognised in law. The Aboriginal claimants have either to go to court, or possibly tribunals, and prove that they continually maintained their traditional association with the land they are claiming. Any one can appeal against the claims and the Mabo judgment ensures that whenever there is conflict between titles granted by the crown and the native title, the native title loses. It is only in the case of titles newly established since 1975 that Aborigines can even claim compensation for extinguishment of title.

The effect of the Mabo judgment on mining
Because the Mabo v. Queensland case primarily deals with the Meriam People's land tenure, the court's ruling does not make it clear whether native title bestows mineral ownership and the rights to veto mining on the title holder or not. These need to be determined by further court test cases or by government legislation.

Mineral ownership by private land owners is not alien to Australia and the fight to veto mining is not restricted to Aboriginal owners of land under Land Rights legislation. Thus-
some private land owners who hold titles to land issued in the 1800's and early 1900's still do own minerals in their land, and, in the case of Queensland, as recently as 1971, the state parliament amended the Mines Act to ensure that these land holders would be fully compensated for the value of minerals as well as land in the event of land acquisitions by the state. ( Frank Brennan ' Right Reasons for Aboriginal Land Rights ' p.30 in Finding Common Ground ' by Frank Brennan, John Egan and John Homer)
Such private mineral ownership does not in any way affect mineral developments -- only state control over the developments. In point of fact, native title should also bestow mineral ownership on the title holders, because, were it not for the ' Terra Nullius ' fiction. this would have been the case under the British common law application to Australia as was the case for the 1800's titleholders.
b) owners of land do have the right to veto mining on their so called ' improved' land or on suburban blocks as mining of these lands would threaten their economical security. The definition of - improved - land varies from state to state, while in WA the definition is broad enough to include uncleared land which is used from time to time for agistment of stock. (See Mines Act for individual states and Senator F. Chaney, "Land Rights Dispute", West Australian, 5.8.78)
c) religious denominations have the right to veto mining on consecrated Lands and on buffer land around churches and other registered places of worship (For example see the Mines Act of Victoria, section 301, paragraph 5.)
Both of the above veto rights are much stronger than the veto rights granted to Aborigines under land rights legislation in Northern Territory and Victoria as they cannot be overruled by the parliament. Yet there is no evidence that these rights affect mining development in any way Other than forcing the mining companies to negotiate with the private land owners it they want to explore or mine minerals on privately owned Land.

The comparison of mining developments between states and territories with land rights and without land rights also Shows that there is no evidence that the veto rights granted to Aborigines under the Land Rights legislation do in any way affect mining development in Australia ( Hon. Gerry Hand: ' Land Rights - A Question of Social Justice ' 9.2.1986. ) In fact, the examination of reports on mining in financial pages of the newspapers never mention any of the above rights as factors effecting the mining performance of the companies.

It is therefore clear that the Mabo ruling, irrespective of whether it will bestow mineral ownership and or the right to veto mining on the native title holders, will not affect mining development in Australia.

Why does the Mining Industry object to the Mabo ruling?
The objections to and the propaganda against Mabo ruling by the mining industry is not new. It is a repeat of old objections to the Land Rights legislation in 1970's in the Northern Territory, in the 1980's in the Western Australia and Victoria and in 1990's in Queensland and so on. Yet the mining companies which are operating in Australia either have experience in the U S A. or their subsidiaries or parent companies have such experience of dealing with Indigenous People who have much stronger rights over mining than were ever proposed for Aborigines within Australia.

For in the USA, the Indigenous People have the status of sovereign home nations and as such they have right to raise taxes. veto mining. negotiate with mining companies on exploration and after they learn the exploration results, they have the right to veto mining or negotiate mining with companies including others than those who carried out the exploration work, if they do not like the terms proposed by them. ( Stuart McGill and G. J. Crough ' Indigenous Resource Rights and Mining Companies in North America and Australia -.Report prepared for the Department of Aboriginal Affairs Feb.1986 ). And their performance there is in no way hampered by these rights.

This suggests that the mining industry motive for opposing the restoration of land to Aboriginal owners is not economics but ideology and attempt to protect its privileges to mine Aboriginal lands without negotiations.

The effect of Mabo judgment on the Australian economy.
The restoration of land to Aboriginal ownership will have a positive effect on the Australian economy. It is not. as those opposed to such restoration would like us to believe. a loss of land or economic resources to Australia, just a transfer of control from one group of Australians. or crown, to another.

Most of the land which has been so far restored to Aborigines under the existing land rights legislations or which will be open for claims under native title, is land which rich Aborigines did not wont in the first place, ie it is mainly land with no economic value other than possibly mining and tourism. The success of Aboriginal enterprises such as the first Australian emu farm in WA, the Noonkanbah pastoral enterprise and the management of Uluru, indicate that restoration of land to Aboriginal owners will not only restore their cultural security but in many cases provide them with economic security and independence This clearly is beneficial to all.

Native title and the right to inheritance
The native title is effectively the recognition at law of the right of Aborigines to inherit land from their families. As such, it is the same right as is being enjoyed by rich Aboriginal Australians since colonisation.

Native title and the right to compensation
Non-Aboriginal Australians have had the right to compensation for the acquisition of their land by the crown Such compensation has always been denied to Aborigines, Under the Mabo judgment , no Aborigines will be entitled to compensation for any land acquisitions by the crown before 1975, and only some Aboriginal native title holders may be entitled to compensation for such acquisitions of some of their lands since 1975, the year the Racial Discrimination Act was passed by the Commonwealth Parliament.

Mabo judgment, justice and Aboriginal rights
The Mabo judgment is a very important step towards the achievement of justice in Australia. Contrary to claims by its opponents. it does not bestow any privileges on Aborigines that no other Australians already enjoy. In fact, it still leaves Aborigines at a disadvantage relative to other Australians as well as to the Indigenous Peoples in the USA , Canada, and New Zealand. It is a matter of justice that the judgment is not weakened but strengthened by further reforms recognising the rights of Aborigines to compensation for past injustice, to self determination, to practice of their religion and to the protection of their cultural and religious inheritance.

It is the duty of all concern with justice. that they make the effort to ensure that such reforms are achieved.

Stan Pelczynski for Action for Aboriginal Rights - 27th July 1993