1. AREA OF STUDY 4 Unit 2 A question of rights

2. The Mabo Case In this area of study, you will consider the case of:
Mabo v Queensland (No 2) (1992) 175 CLR 1

3. A test case
There are many ways that the law can be influenced or changed. One of the ways that the common law can change is through a test case.
It is mounted to establish a precedent in an area of law in which no current precedents exist
These are cases that may try to correct a problem with the law; seek recognition of a previously unrecognised right; test whether a piece of legislation is constitutionally valid, or push the law in a new direction.

4. Results of a test case
Test cases can result in a significant change in the law. They are sometimes launched by individuals or interest groups with the intention or effect of:
correcting a defect in the law; This could be something that is wrong in legislation or common law. Parliament may create a law that an individual or group perceives as wrong.
challenging the validity of a law; A test may be launched to correct a law. Challenge the validity of a law- A test case may challenge the validity of a law. The law in question could be about the rights of a particular group or individual to do or not to do something in particular.
clarifying a gap in the law; A test A test may be launched to correct a law. Challenge the validity of a law- A test case may challenge the validity of a law. The law in question could be about the rights of a particular group or individual to do or not to do something in particular.
bringing greater political, academic and social awareness to an issue; Often an individual or group may not be certain that they will succeed in a test case, but may perceive that the test case will be given media attention and public interest.
gaining international attention about an issue; A test case may be used to bring international attention to an issue that has not been able to be resolved within Australia.

5. British Settlement
In 1770 Captain Cook claimed the land we now call Australia as British territory. He was able to do this because under international law at the time Cook could claim land that is Terra nullius
Terra nullius is a Latin term meaning land belonging to no one, or uninhabited land.
It was a doctrine of international law used by the British to claim ‘uninhabited’ Australia as their own and import British law into Australia.
The impact of British settlement on Australia’s Indigenous population was severe, with many driven off their land, forcibly removed, placed in reserves, or sometimes killed by British settlers.

6. Land rights not recognised
Although the land was inhabited, the British did not recognise the Aboriginal people as having any legal title over the land.
There was no written legal titles of land although in fact the Aboriginal groups that lived in different parts of the country had their own system of ownership and usage
The British made no attempt to learn about how this system worked
Aboriginal use of the land was well established for tens of thousands of years

7. Indigenous relationship to the land
Aboriginal people inhabited the continent of Australia around and years
Around 250 different indigenous nations existed before British colonisation, each had its own language, culture, traditions
They lived a nomadic hunter-gatherer existence
Each recognised the territory and boundaries of the neighbouring clans
Land was not owned by individuals but shared by members of a clan
There was a strong spiritual connection to the land

8. Eddie Mabo; Background
Eddie Mabo was born on the Murray Island in the Torres Strait in 1936
He grew up with the traditions of his people, using the land and sea in family groups to survive
In 1967 he moved to Townsville and worked as a gardener at a University where he met many academics
One of these friends was Henry Reynolds, a historian who researched the relationship between Indigenous people and early years of European settlement

9. Launching a test case
During his discussions with Reynolds and others Eddie realised that his people did not legally own their land
He was invited to speak to lawyers and academics at a conference about the traditional land ownership and inheritance system on the Murray Island
The time was right to launch a test case before the High Court to challenge the Queensland Government’s control of the Islands of the Torres Strait.

10. Mabo was a long-running case launched by the Meriam people of the Murray Islands to challenge the validity of state land laws and seek recognition of rights to land for the Aboriginal people
It involved the High Court considering the application of Australian law to the rights of Indigenous Australians, in particular regarding the legal concepts of terra nullius and native title.

11. Native title is a legal right of Indigenous Australian communities to live on and use traditional land with which they have an ongoing association.
It can belong to a group or community, based on the traditions and customary law of that group.
It is important because it legally recognises that the customs and traditions of Indigenous Australian communities have existed since prior to European settlement and continue today.

12. From 1985 and 1992, Eddie Mabo and other residents of the Murray Islands in far north Queensland took action on behalf of the Meriam people against the Queensland Government.
They sought recognition of their rights to the land they inhabited, which Queensland was trying to deny.
The first case questioned the validity of a Queensland state law that tried to limit their rights, while the second case (called Mabo (No. 2)) concerned the right to occupy and control the land.

13. In May 1992, in a six to one judgment, the High Court overruled the original application of terra nullius in Australian law.
It recognised that Indigenous communities had always had, and continued to have, customary laws and traditions that formed the basis of their rights and interest in the land.
The case introduced native title into Australian law and awarded the Meriam people native title rights over the Murray Islands against the Queensland Government.

14. Following the outcome of the case, the Commonwealth Government introduced the Native Title Act 1993 (Cth), which confirmed the rights set out by the High Court in Mabo and clarified the processes for making a claim.
The case had an enormous impact on the concept of Australian law for all Australians. It recognised that law in some form existing prior to the importation of British law, and that the same particular rights of Indigenous Australians continue to this day.