On this day: Mabo sets native title precedent

By Natalie Muller 7 November 2013
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On 3 June 1992, the High Court handed down the historic Mabo decision on native title.

Warning: this story contains references to deceased Aboriginal persons.

AT A TIME WHEN the push to recognise indigenous land rights in Australia was gaining momentum, Eddie Mabo was living in Townsville on Queensland’s north coast – a long way from his Murray Island home in the Torres Strait.

He was working as a gardener at James Cook University and it was there that he crossed paths with land-rights advocates and legal minds who would become instrumental in his later bid to have the indigenous right to land recognised in the courts.

Mabo became famous for his role in the 10-year legal battle, known as the ‘Mabo’ case, which culminated in a landmark decision handed down by the High Court of Australia on 3 June 1992.

The court declared for the first time that indigenous people had ownership of the land long before European settlement, striking down the doctrine of terra nullius (‘land belonging to no one’).

“Mabo corrected the history of this country and that shouldn’t be underestimated,” says Brian Wyatt, CEO of the National Native Title Council. “In terms of identity and who peoples of this country believe that they are, there was a significant step in that ownership recognition, that question of identity, and being connected to this country before Captain Cook sailed into Botany Bay.”

Sadly, Eddie Mabo didn’t live see the conclusion – he died only a few months earlier at the age of 55, but his wife said he was always sure the outcome would be in his people’s favour.

Mabo in the High Court

In May 1982, Eddie Mabo and four other Meriam people from Murray Island lodged a native title claim with the High Court.

They were entitled to the land, their main argument went, because the Meriam people had continuously inhabited Murray Island and its surrounding reefs. The group brought forward dozens of witnesses and thousands of pages of documents to persuade the court of their continuous connection to country.

In 1992, the High Court upheld this claim by a majority of six to one, acknowledging the Meriam people were “entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.”

After Mabo: the Native Title Act

After the court’s decision, federal parliament passed the Native Title Act 1993 to recognise and protect native title, and to set out rules about future dealings with native title lands.

But Brian says a series of amendments to the legislation since then has watered down the intent of the original Mabo decision. One of the problems, he says, is that it’s more difficult, and often takes more than a decade, to achieve a successful outcome.

“Many people have not lived to see the success of their claims. And that’s the nature of native title – it takes so long,” he says. “Many of our old people have gone now and that’s the tragedy of it. And we still must, because of this Native Title Act, sit here and research and prepare claims against, as if nothing had happened in the history of the country.”

“I mean it’s just diabolical and that’s what someone like [Eddie] Koiki Mabo had to contend with – that long period, and ultimately in the end, he died before the decision was handed down.”

Concerns with the current native title legislation

Under the Act, the onus of proof rests on the claimant, which means it’s up to Aboriginal and Torres Strait Islanders who’ve lodged claims to prove their continuous connection to land prior to European settlement.

Jacqueline Phillips, National Director of Australians for Native Title and Reconciliation argues this should be reversed to make the system more equitable. She says the presumption should be the reverse: that indigenous people have a claim to the land.

“That would be a really significant change I think, and would mean that native title disputes could be dealt with much more quickly,” she says. “Part of the protracted nature of native title litigation processes at the moment is how long it takes in terms of giving evidence around that continuous connection [to land], which is an extremely time consuming and expensive process.”

Moving the native title negotiation forward

Under native title, there have been more than 500 land use agreements made across Australia between indigenous communities and other parties, for example in the mining and farming sectors.

The Mabo judgment 20 years ago marked a breakthrough in recognising indigenous native title in Australia. But Jacqueline says its significance extends beyond land rights.

“I think things changed permanently in relationships between Aboriginal and non-Indigenous Australians as a result of Mabo. “Those changes have continued again with the apology being another significant moment in recognising the truth of our history.”