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Overturning terra nullius

1992: High Court decision in Mabo case recognises native title

National Museum of Australia
1900 2000

Use the following additional activities and discussion questions to encourage students (in small groups or as a whole class) to think more deeply about this defining moment.

Questions for discussion

1. Re-read the information under ‘What were the limitations of the Mabo decision?’ From this account do you think the Mabo decision is fair and reasonable? What other information might you need to find out before you can answer this question more fully?

2. If you can, speak to an Aboriginal or Torres Strait Islander organisation to find out what they think about the Mabo decision today.

3. Do you agree with the National Museum of Australia that the Mabo decision is a defining moment in Australian history? Explain your answer.

Image activities

1. Look carefully at all the images for this defining moment. Tell this story in pictures by placing them in whatever order you think works best. Write a short caption under each image.

2. Which three images do you think are the most important for telling this story? Why

3. If you could pick only one image to represent this story, which one would you choose? Why?

Finding out more

1. What else would you like to know about this defining moment? Write a list of questions and then share these with your classmates. As a group create a final list of three questions and conduct some research to find the answers.

<p>Eddie Koiki Mabo at Las, on Mer (Murray Island), 1989</p>
John Whitterron, Yarra Bank Films

In a snapshot

On 3 June 1992 the High Court of Australia ruled that a group of Torres Strait Islander people, led by Eddie Mabo, owned the island of Mer (Murray Island). The Court also recognised that all Indigenous people in Australia have rights to their land.

This landmark decision led to the Australian Government introducing native title legislation the next year. It also proved that Australia was not terra nullius (land belonging to nobody) when it was claimed by Britain.

Eddie Koiki Mabo at Las, on Mer (Murray Island), 1989

Findout icon Can you find out?

1. On what grounds did James Cook claim the east coast of Australia for Great Britain?

2. What important decision did the High Court make on 3 June 1992?

3. What did the Australian Parliament do a year later?

What was the legacy of James Cook?

In 1770 Lieutenant James Cook claimed ownership of the east coast of Australia on behalf of Great Britain. This claim was based on the idea of terra nullius, meaning land belonging to nobody. 

Britain assumed that Aboriginal people didn’t have any form of political organisation or land ownership. This meant that, under British law, Aboriginal and Torres Strait Islander peoples had no claim to the land they had lived on for thousands of years.

Research task

 

Do some research to find out how the High Court was able to overturn the 1985 Queensland law, and why this was so important in enabling the Meriam people to put forward their claim to Mer Island.

‘My father told me: “Son, this land will belong to you when I die.”’

Eddie Koiki Mabo

How did the Meriam people challenge terra nullius?

In May 1982 a group of Meriam people from the Eastern Torres Strait went to the High Court of Australia to fight for the legal ownership of the island of Mer. They were led by Eddie Koiki Mabo.

Over 10 years 33 Meriam people researched and wrote 4000 pages of evidence and arguments. The evidence showed that the eight clans of Mer had lived in clearly defined areas of the island for hundreds of years. The evidence also proved continuity of custom (links through the generations of families over time) on Mer.

Poster of Eddie Mabo, by Clifford Beresford Robinson, 1993.

But in 1985 the Queensland Parliament passed the Torres Strait Islands Coastal Islands Act. The Act cancelled all Torres Strait Islander people’s claims to their traditional lands. The Meriam people had to challenge this law before they could claim ownership of their land. In 1988 the High Court overturned the Act because it conflicted with the Commonwealth Racial Discrimination Act 1975. This allowed the High Court to begin hearing the Meriam people’s land rights case.

On 3 June 1992 six of the seven High Court judges agreed that the Meriam people held traditional ownership of the lands of Mer. This has become known as the ‘Mabo decision’. Eddie Mabo had died just months before the decision. The decision led the Australian Government to pass the Native Title Act 1993, creating the framework for all Australian Aboriginal and Torres Strait Islander peoples to claim their traditional lands.

What were the limitations of the decision?

The decision caused a lot of debate in the Australian community. Many politicians claimed that Australians could lose land they had legally bought. 

But the Mabo decision clearly states that Aboriginal and Torres Strait Islander peoples can only claim vacant Crown land, national parks and some leased land. The decision also states that whenever there is a land rights conflict between the government and the traditional owners, the government has priority.

To have native title recognised Aboriginal and Torres Strait Islander peoples must go to court to prove that they have continually kept their traditional links with the land.

Research task

 

Create a timeline of important events in the life of Eddie Mabo. You might like to use the Australian Dictionary of Biography to help with your research.

Australian Dictionary of Biography

Why is the Mabo decision important?

The Mabo decision introduced native title into the Australian legal system. The High Court had acknowledged the traditional rights of the Meriam people to their land, and also decided that native title existed for all Aboriginal and Torres Strait peoples. It showed that Australia was not terra nullius when it was claimed by James Cook. 

The decision recognised the connection between land, identity and continuity of family and community felt by Aboriginal and Torres Strait Islander people.

 

Read a longer version of this Defining Moment on the National Museum of Australia’s website.

Findout icon What did you learn?

1. On what grounds did James Cook claim the east coast of Australia for Great Britain?

2. What important decision did the High Court make on 3 June 1992?

3. What did the Australian Parliament do a year later?