Native Title

In Mabo v. Queensland (No. 2), judgments of the High Court inserted the legal doctrine of native title into Australian law. The High Court recognised the fact that Indigenous peoples had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia as a nation.

The new doctrine of native title replaced a seventeenth century doctrine of terra nullius on which British claims to possession of Australia were justified on a wrongful legal presumption that Indigenous peoples had no settled law governing occupation and use of lands. In recognising that Indigenous peoples in Australia had prior rights to land, the Court held that these rights, where they exist today, will have the protection of the Australian law until those rights are legally extinguished.

In Mabo No 2 MASON C.J. AND McHUGH J at paragraph 2 declared that "In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown."