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|Mabo v Queensland (No 2)|
|Court||High Court of Australia|
|Full case name||Mabo and Others v Queensland (No. 2)|
|Date decided||3 June 1992|
|Citation(s)||(1992) 175 CLR 1,  HCA 23|
|Judge(s) sitting||Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ|
|Prior action(s)||Mabo v The State of Queensland (1988)|
(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ) (7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court
(7:0) grants of land which are inconsistent with native title extinguish the native title(4:3) no consent or compensation is required at common law in the event that native title is extinguished (per Mason CJ, Brennan, Dawson & McHugh JJ)
Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark High Court of Australia decision recognising native title in Australia for the first time. The High Court rejected the doctrine of terra nullius, in favour of the common law doctrine of aboriginal title, and overruled Milirrpum v Nabalco Pty Ltd (1971), a contrary decision of the Supreme Court of the Northern Territory.
The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Murray Islands in the Torres Strait). They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept. The Plaintiffs were represented by Ron Castan, Bryan Keon-Cohen and Greg McIntyre.
The action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer (Murray Island), Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to British contact the Meriam people had lived on the islands in a subsistence economy based on cultivation and fishing. Land on the islands was not subject of public or general community ownership, but was regarded as belonging to individuals or groups.
In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act 1985, which declared that on annexation of the islands in 1879, title to the islands was vested in the state of Queensland "freed from all other rights, interests and claims whatsoever". In Mabo v Queensland (No 1) (1988) the High Court held that this legislation was contrary to the Racial Discrimination Act 1975.
The plaintiffs sought declarations, inter alia, that the Meriam people were entitled to the Murray Islands "as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands".
The decision was based on the findings of fact made by Justice Moynihan of the Supreme Court of Queensland: that the Murray Islanders had a strong sense of relationship to the islands and regarded the land as theirs. All of the judges, except Justice Dawson, agreed that:
The Mabo decision presented many legal and political questions, including:
In response to the judgment, the Parliament of Australia, controlled by the Labor Party led by Prime Minister Paul Keating, enacted the Native Title Act 1993 (NTA). The NTA established the National Native Title Tribunal (NTTA) to make native title determinations in the first instance, appealable to the Federal Court of Australia, and thereafter the High Court. Following Wik Peoples v Queensland (1996), Parliament amended the NTA with the Native Title Amendment Act 1998.
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