Mabo and Wik
In 1982 five Torres Strait Islanders, including Eddie (Koiki) Mabo, began legal proceedings to establish title for the Meriam people to Murray (Mer) Island. The historic 1992 Mabo decision in the High Court rejected the doctrine of terra nullius, the notion that Australia did not belong to anyone at the time of European settlement. This rejection of terra nullius meant the Australian legal system recognised that Indigenous ownership of land may have continued after the British colonisation of Australia.
Indigenous ownership of land and waters is based on Indigenous laws, customs and traditions. When the High Court said that Australian law recognises 'native title', it meant that the law recognises the ongoing existence of these customs and traditions through which Indigenous people have a connection to their land. 'Native title' is not a new form of title created by the High Court but legal recognition of those rights that Aboriginal and Torres Strait Islander people have always had.
The High Court also confirmed that when Britain gained sovereignty over Australia, it gained 'radical title' over, but not 'full beneficial title' to, the land. This means that while the government has the ultimate power over the land, it does not automatically gain full ownership of it. The government is able, however, to extinguish native title to land when it uses its sovereign power in a way that shows a 'clear and plain intention' to do so.
In the Mabo decision, the High Court said that native title had been extinguished on all freehold land and certainly the vast majority of leasehold land. The Fejo case, concerning another land claim, confirmed that a grant of a freehold title to land extinguishes native title to that land permanently.
Native title can also be recognised over water, though the full extent of this recognition remains undecided in the courts.
In 1996 the High Court made another important decision in the Wik case which relates to a claim of native title on land that included pastoral leases granted by the Queensland Government. The High Court said that native title can only be extinguished by a law or an act of the Government which shows clear and plain intention to extinguish native title. The laws creating pastoral leases in Queensland did not reveal an intention to extinguish title.
The Court found that Queensland pastoral leases had been created to meet the needs of the emerging pastoral industry. The rights and interests of a pastoral leaseholder had to be determined by looking at the relevant statute and at the lease itself. This process showed that the leases in question did not give the leaseholders a right to exclusive possession of the land. Therefore, the granting of a pastoral lease did not necessarily extinguish native title. Native title could exist with the rights of the leaseholder.
However, where there is a conflict in the exercise of those rights, native title rights were subordinate to those of the pastoral leaseholder. The rights of pastoralists prevail over any rights of the native title holders.
freehold: full ownership of land by the owner and his or her heirs
leasehold: a form of real estate holding in which a tenant has possession for a fixed period after which the lease may be renewed, or the property can be leased to another person
native title: the rights and interests of Indigenous people in land and water according to their traditional laws and customs, that are recognised under Australian law
Face the Facts - Human Rights and Equal Opportunity Commission, Sydney 2001
Refer also to the following web sites:
Theme: Aboriginal people and Torres Strait Islanders - Countering racism - education, policy, legislation