Proctor : June 2018
18 PROCTOR | June 2018 The importance of Mabo Day and the Native Title Act 1993 Aboriginal peoples and Torres Strait Islanders should be aware that the names of deceased persons appear in the article below. Many Australians mistakenly think that native title began with the historic High Court of Australia decision in Mabo and others v Queensland (No.2)1 (the Mabo decision). However, native title is the recognition of the long-held traditional laws and customs of Australia’s Aboriginal peoples and Torres Strait Islanders. These traditional laws and customs have existed and been practised since time immemorial. All native title cases post-Mabo have been about the recognition of pre-existing and ongoing native title rights and interests by traditional owner groups in different parts of Australia. British Empire’s assertion of sovereignty At the time sovereignty was asserted by the British Empire it was not uncommon for the colonial power to acquire sovereignty over territories with existing populations, laws and property rights. The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. In part, the rules depended on the distinction between settled and conquered (ceded) colonies.2 In a ‘settled’ or ‘desert and uninhabited’ colony, the laws of England, if not inconsistent with local circumstances, were imported on acquisition of sovereignty. The doctrine of continuity was thought not to pertain to settled colonies; logically, if there were no local laws then there were no rights of property to respect.3 Aboriginal peoples and Torres Strait Islanders were understood factually to have been present at sovereignty in Australia, but their social systems and governance were not recognised by British law—it was, in this sense only, terra nullius ‘desert and uninhabited’. By the 1860s, it was increasingly accepted that Aboriginal peoples and Torres Strait Islanders were to be treated as British subjects. Thereafter, only common law would apply to govern Aboriginal peoples and Torres Strait Islanders within Australia. 4 By the 1980s more than 200 years of anthropology and historical study of Aboriginal peoples and Torres Strait Islanders had clearly demonstrated that, far from lacking a system of laws and customs, the Aboriginal peoples and Torres Strait Islanders of Australia had, over tens of thousands of years, developed complex forms of social organisation, including laws relating to ownership and management of land. However, because of the ethnocentric view of the British Empire in 1788, they wrongly believed that the Aboriginal peoples and Torres Strait Islanders did not have a system of land law deserving recognition by the common law. Up until 1992 that remained the law.5 The significance of the Mabo Decision Legal proceedings for the Mabo case began in 1982, when a group of Meriam people, Eddie Koiki Mabo, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice (who are all now deceased), brought an action against the State of Queensland and the Commonwealth of Australia, in the High Court, claiming ‘native title’ to the Murray Islands. When the High Court handed down its judgment on the matter in 1992, the judges acknowledged that, in the face of the historical facts and modern attitudes to human rights, the common law of Australia, in good conscience, could no longer refuse to recognise the native title of the Aboriginal peoples and Torres Strait Islanders of Australia. In effect, the judges said that, knowing what we know now, it would be unjust for the common law of Australia to maintain the fiction that Australia in 1788 was terra nullius.6 3 June marks the anniversary of the decision which declared that the “Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands”. 7 The decision did not give benefits to the Aboriginal peoples and Torres Strait Islanders in the form of rights that they did not have before; rather it belatedly recognised rights to ownership of land which the Aboriginal peoples and Torres Strait Islanders had possessed for thousands of years before 1788.8 What is ‘native title’? According to the Mabo decision, the rights and interests that constitute native title have their origins in those rights and interests acknowledged under traditional laws and customs which pre-existed the assertion of British sovereignty. Native title, though recognised by the common law, is not an institution of the common law.9 Native title acknowledges that Aboriginal peoples and Torres Strait Islanders have a direct and continuing connection to the land since time immemorial. In addition to this, native title is the legal recognition that they have access to their land and seas to carry out their traditional practices and customs.