's judgment to be indicative of the High Court of Australia's treatment of the legal history of indigenous land tenure in Australia and of the place of In Re Southern Rhodesia in that history. 0000002901 00000 n [13], By the 1900s, the traditional economic life of the Torres Strait gave way to wage labouring on fishing boats mostly owned by others. 0000004228 00000 n I use the words could not be pressed rather than were not pressed to make the point that, in the cases I am discussing (from Att.-Gen. v. Brown to Williams v. Att.-Gen. Williams v. Att.-Gen. (New South Wales) (1913), 16 CLR 404 . [36], A straight-to-TV film titled Mabo was produced in 2012 by Blackfella Films in association with the ABC and SBS. 0000007289 00000 n A new book explores the life of U.S. Supreme Court Justice John Marshall Harlan, who, through his writing, made history even though he lost. We recognise that our staff and volunteers are our most valuable asset. In Decolonizing methodologies: Research and indigenous peoples, Edited by: Tuhiwai Smith, L. 1941. The significant role played by bitcoin for businesses! What does Mabo Day commemorate for kids? [16], Prior to judgment, the Queensland government passed the Queensland Coast Islands Declaratory Act 1985 (Qld), which purported to extinguish the native title on the Murray Islands that Mabo and the other plaintiffs were seeking to claim. 8. After some argument Moynihan J accepted the plaintiffs request that the court should adjourn and reconvene on Murray Island for three days, to take evidence, particularly from 16 witnesses, mainly elderly and frail, and also to take a view of the claimed areas of garden plots and adjacent seasWhen opening proceedings on the Island on 23 May 1989, Moynihan J doubted [whether] the Court has ever sat further north or perhaps further east, and certainly never before on Murray Island. In the film, Dr. David Q. Dawson is a surgeon who returns . Suggesting that neither judgment manages to escape the traces of racism, I argue that the alternative approaches tell us more about the fault lines within contemporary Australian political discourse than they do about the Australian colonial past. That sovereignty delivered complete ownership of all land in the new Colony to the Crown, abolishing any existing rights that may have existed previously. Discover the stories behind the work we do and some of the items in our Collection. We produce a range of publications and other resources derived from our research. As a result, the High Court had to consider whether the Queensland legislation was valid and effective. Mabo Day is marked annually on 3 June. We may well be entering a period when the Supreme Court is far more conservative than the country. 92/014. Six of the judges agreed that the Meriam people did have traditional ownership of their land, with Justice Dawson dissenting from the majority judgment. Aboriginal Land (Lake Condah and Framlingham Forest) Act, 1987, Aboriginal Land Rights Act (Northern Territory), 1976, Aboriginal & Torres Strait Islander Heritage Protection Act, AMEC (Assoc' of Mining & Exploration Co's), ATSIC Aboriginal and Torres Strait Islander Commission, Australian Aboriginal Progressive Association, Department of Aboriginal & Islander Affairs (DAIA), FCAATSI Federal Council For Aboriginal Advancement, Ganalanja Corp v Queensland and Ors (1996), Hamlet of Baker Lake v Minister for Indian Affairs (1979), Miriuwung Gajerrong Peoples v Western Australia (1998), Oneida Indian Nation v County of Oneida (1974), Queensland Coast Islands Declaratory Act , 1985, Southern Rhodesia, Amodu Tijani V Secretary, 1921, Te Weehi v Regional Fisheries Office (1986), Teddy Biljabu and Ors v Western Australia (1995), The Administration of Papua v Daera Guba 1972-3, The Land Titles and Traditional Usages Act, Walley v State of Western Australia (1996), This is an NFSA Digital Learning resource. On Harlan writing dissents during the era of Jim Crowe. It also led to the Australian Parliament passing the Native Title Act in 1993. [Google Scholar]). The case presented by Eddie Mabo and the people of Mer successfully proved that Meriam custom and laws are fundamental to their traditional system of ownership and underpin their traditional rights and obligations in relation to land. Mabo was born Eddie Koiki Sambo but he changed his surname to Mabo when he was adopted by his uncle, Benny Mabo. diversity. Tasos Katopodis / Getty Images Short for Mabo and others v Queensland (No 2) (1992), the Mabo case, led by Eddie Kioiki Mabo, an activist for the 1967 Referendum, fought the legal concept that Australia and the Torres Strait Islands were not owned by Indigenous peoples because they did not use the land in ways Europeans believed constituted some . The judges held that British possession had . See all, Brennan, Chief Justice Gerard, Canada, crown land, Dawson, Justice, Deane, Sir William, extinguishment, Gaudron, Justice Mary, Guerin v The Queen, High Court of Australia, International Court Case, Mabo judgement, Mabo v Queensland No.1, Mabo v Queensland No.2, Mason, Chief Justice Anthony, native title, Queensland Coast Islands Declaratory Act , 1985 , Racial Discrimination Act, sovereignty, Toohey, Justice , United States of America, Brennan, Chief Justice Gerard, Brennan, Justice Gerard, Dauar, Dawson, Justice, Deane, Sir William, extinguishment, Gaudron, Justice Mary, Waier, Brennan, Justice Gerard, crown land, Dawson, Justice, Deane, Sir William, Gaudron, Justice Mary, High Court judgement, High Court of Australia, Mabo judgement, Mabo v Queensland No.2, Mason, Chief Justice Anthony, McHugh, Justice Michael, Mer, native title, Order of the Court, Toohey, Justice, Brennan, Justice Gerard, crown land, Dawson, Justice, Deane, Sir William, Gaudron, Justice Mary, High Court judgement, Mason, Chief Justice Anthony, McHugh, Justice Michael, Mer, native title, Order of the Court, Toohey, Justice. 0000002660 00000 n This landmark decision gave rise to . How do I view content? Twelve months later the. It took generations, but eventually the dissenter won. Mason CJ, Wilson, Brennan, Deane, Dawson Toohey & Gaudron JJ. %%EOF Reynolds challenges Justice Dawson's minority judgement in Mabo, using history (specifically the history of European law and Colonial Office policy) to show that Dawson (and Blackburn) both misunderstood decisions to protect native title on pastoral leases between 1816 and 1855. Mabo v Queensland (No 1), [1] was a significant court case decided in the High Court of Australia on 8 December 1988. [Google Scholar]), 214 CLR 422 in relation to the need to demonstrate a continuing traditional connection with the land. [28], On 1 February 2014, the traditional owners of land on Badu Island received freehold title to 9,836 hectares (24,310 acres) in an act of the Queensland Government. 0000002066 00000 n Reverend David Passi, who gave evidence in the trial, explained that he believed that God had sent Malo to Mer island and that "Jesus Christ was where Malo was pointing. The majority opinion is an abomination. His Honor thought, however, that if land was in fact occupied, as was much of Australia, the common law protected the indigenous rights of the occupiers. Explore the story of Aboriginal and Torres Strait Islander Australia in all its Inform and influence policy and policy-making through expert comment and input Join our strong and growing membership and support our foundation. Harlan's dissent, which was forceful, essentially called their bluff on everything. If you continue to use this site we will assume that you are happy with it. 0000014490 00000 n The court's opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law. 0000014302 00000 n What happened on Mabo Day? 0000007233 00000 n [2] Paul Keating, Prime Minister of Australia at the time, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice". We take a look at some of the key facts from this significant milestone in our history. later. The aim of the legislation was toretrospectively extinguish the claimed rights of the Meriam people to the Murray Islands. In this article, I explore the competing visions of legal history that are implicit within Brennan, J. Why did Justice Dawson dissent in Mabo? Paul Keating, speech delivered at Redfern Park in Sydney on 10 December 1992. 4. Anywhere But Here: Race and Empire in th . Att.-Gen. v. Brown to Williams v. Att.-Gen. Medicine, Dentistry, Nursing & Allied Health. 0000007955 00000 n You go back in these cases and you try to say, well, could this be an issue in which reasonable jurists might disagree? xref 'I rang Murray Island that is to say, I rang the phone box located, as readers will recall, outside the general store. The full text of this speech is available at http://apology.west.net.au/redfern.html. You can search the Collection online or visit the Stanner Reading Room to view or listen to collection items and conduct research. [3] Richard Court, the Premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.[4]. Retrieved 9 October 2007 from http://www.usyd.edu.au/news/ [Google Scholar] for more thorough reviews of Connor's book, including some suggestions that Connor may also have permitted himself the odd sleight of hand in making his case for the culpable invention of terra nullius. Australian Book Review , April. In 1973 Mabo founded the Black Community School in Townsville, which was created to educate Aboriginal and Torres Strait Islander children and preserve traditional knowledge and practices. [23][24] The court also discussed the analogous common law doctrine that "desert and uncultivated land" which includes land "without settled inhabitants or settled law" can be acquired by Britain by settlement, and that the laws of England are transmitted at settlement. We work to: 5 Howick Place | London | SW1P 1WG. The five Meriam people who mounted the case were Eddie Koiki Mabo, Reverend David Passi, Sam Passi, James Rice and one Meriam women, Celuia Mapo Sale. [26] Native title doctrine was eventually codified in statute by the Keating Government in the Native Title Act 1993 (Cth). People also read lists articles that other readers of this article have read. hide caption. The Queensland Parliament passed theQueensland Coast Islands Declaratory Act 1985in an attempt to pre-empt the Meriam peoples case. This guide supports educators to make conscious and critical decisions when selecting curriculum resources. 597 0 obj <>stream Register to receive personalised research and resources by email. Obtain permissions instantly via Rightslink by clicking on the button below: If you are unable to obtain permissions via Rightslink, please complete and submit this Permissions form. [18] These rights were sourced from Indigenous laws and customs and not from a grant from the Crown. On 3 June 1992, six of the seven High Court judges upheld the claim and ruled that the lands of this continent were not terra nullius or land belonging to no-one when European settlement occurred, and that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'. Keep yesterday's dissent in mind the next time he receives such partisan praise. 1993 Australian Institute of Policy and Science The Australian Institute of Aboriginal and Torres Strait Islander Studies. 0000009848 00000 n He wrote the only dissenting opinion. 0000010491 00000 n Why did Eddie Mabo change his name to Mabo? I hope that doesn't happen, and there's certainly a lot of history in the Supreme Court to suggest that justices who are appointed with one set of expectations end up completely defying them. 0000002309 00000 n The decision led to the legal doctrine of native title, enabling further litigation for First Nations land rights. What did Eddie Koiki Mabo do for a living? Except as identified in the text of this article, Mason, C.J., Deane, Toohey, Gaudron and McHugh, JJ. I think it suggests the parallels between that era and this era. 365 37 It provided a dramatised account of the case, focusing on the effect it had on Mabo and his family.[37][38][39]. 6. 583 15 [31], Mabo Day is an official holiday in the Torres Shire, celebrated on 3 June,[32] and occurs during National Reconciliation Week in Australia. By then, 10 years after the case opened, both Celuia Mapo Salee and Eddie Mabo had died. [i] From Keon-Cohen, B A, 'The Mabo Litigation: A Personal and Procedural Account'[2000] MelbULawRw 35; (2000) 24(3) Melbourne University Law Review 893. 2) is among the most widely known and controversial decisions the Court has yet delivered. John Marshall Harlan, who was named for Chief Justice John Marshall, served on the Supreme Court from 1877 until his death in 1911. University of Sydney News , 15 March. The majority judgments in full are the largest, and perhaps also the plainest in appearance, of Australia's key constitutional documents. We use cookies to improve your website experience. It found that the Queensland Coast Islands Declaratory Act 1985, [2] which attempted to retrospectively abolish native title rights, was not valid according to the . Dr Frankenstein's school of history . 0000004321 00000 n Mabo v Queensland (No 2) (commonly known as the Mabo case or simply Mabo) is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia. AIPS achieves its objectives through an extensive network of partners spanning universities, government, industry and community. The case centred on the Murray Islands Group, consisting of Murray Island (known traditionally as Mer Island), Waua Islet and Daua Island. London & New York: Zed Books. It was not until 3 June 1992 that Mabo No. The old saying holds that history is written by the winners. 2), judgments of the High Court inserted the legal doctrine of native title into Australian law. [6] Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership. I conclude that Brennan, J. NOTE: Only lines in the current paragraph are shown. He petitioned, campaigned, cajoled and questioned Terra Nullius for 18 years. This was successfully challenged in Mabo v Queensland (1988) 166 CLR 186 (Mabo No 1) and declared as ineffective due to the act being inconsistent with the right to equality before the law, as established by the Racial Discrimination Act 1975 (Cth). Eddie Koiki Mabo was the first named plaintiff and the case became known as the Mabo Case. We tell the story of Aboriginal and Torres Strait Islander and create opportunities for people to encounter, engage and be transformed by that story. On 27 February 1986, the Chief Justice, Sir Harry Gibbs, sent the case to the Supreme Court of Queensland to hear and determine the facts of the claim. While Brennan, J. Harlan, a white man from Kentucky, grew up before the Civil War in a family that enslaved people. According to positivist legal theory, this is a necessary function of common law judges: if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are. The Canberra Times (ACT : 1926 - 1995), Sun 13 Jun 1993, Page 4 - Dawson warned against trying to right old wrongs on Mabo You have corrected this article This article has been corrected by You and other Voluntroves This article has been corrected by Voluntroves In 1981, Eddie Mabo made a speech at James Cook University in Queensland, where he explained his peoples beliefs about the ownership and inheritance of land on Mer. Listen, learn and be inspired by the stories of Australias First Peoples. We provide leadership in ethics and protocols for research related to Aboriginal and Torres Strait Islander peoples and collections. The decision rejected the notion that Australia was terra nullius (i.e. 0000014396 00000 n Supreme Court Justice Clarence Thomas, seen here Oct. 26 2020, issued a scathing dissent Monday on the court's refusal to hear cases relating to the 2020 elections. Prior to Mabo, the pre-colonial property interests of Indigenous Australians were not recognised by the Australian legal system. The High Court found the Queensland Coast Islands Declaratory Act to be invalid because it was in conflict with theRacial Discrimination Act 1975. The High Court recognised the fact that Indigenous peoples had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. Our world leading curriculum resources are keyed to national curriculum requirements. 's judgment is often criticised as an example of judicial activism (e.g. Part of the reason might have been a Black man who grew up with him, widely believed to have been his half-brother. Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6, This page was last edited on 25 February 2023, at 06:37. Per Deane J. and Gaudron J. at 55, 56. [Crossref],[Google Scholar], p. 25). 0000002568 00000 n 1994. %PDF-1.4 % Australian Law Journal, 70: 246[Google Scholar]; Evans, 1995 Evans, R. 1995. You need to login before you can save preferences. See ya."'. The islands have been inhabited by the Meriam people (a group of Torres Strait Islanders) for between 300 and 2000 years. A veteran of the civil rights movement, he argues that the legacy of the civil rights movement is being perverted and weaponized to punish whites. Six of the judges agreed that the Meriam people did have traditional ownership of their land, with Justice Dawson dissenting from the majority judgment. The hearing was adjourned when Eddie Mabo and the people of Mer brought a second case to the High Court challenging the constitutional validity of theQueensland Coast Islands Declaratory Act 1985. [20] Additionally, the acquisition of radical title to land by the Crown at British settlement did not by itself extinguish native title interests. The fabrication of Aboriginal history, Volume One: Van Diemen's Land 18031847, Sydney: Macleay Books. In acknowledging the traditional rights of the Meriam people to their land, the court also held that native title existed for all Indigenous people. We pay our respects to Elders past and present. The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. 0000004453 00000 n In Plessy v. Ferguson it approved the legal architecture of segregation. [10], In 1871 missionaries from the London Missionary Society arrived on the Torres Strait island of Darnley Island in an event known as "The coming of the Light" leading to the conversion to Christianity of much of the Torres Strait, including Mer Island. Justices Deane and Gaudron (in a joint judgment) and Toohey J substantially agreed with Brennan J subject to one difference of opinion noted below. Please enable JavaScript in your browser to get the full Trove experience. and As Justice Kirby has conceded, the Mabo decision 'sits on the fine line which separates a truly legislative act from the exercise of a truly judicial function' (1994:70). It also revealed the first opposition from some Islanders to the claims being made: two Islanders were called by Queensland during these sittings to oppose Eddie Mabos claims. Brian Keon-Cohen, Barrister[i]. "Yes." 1) and the decision meant the original case could continue. Photo courtesy of tho Russell Family, http://nla.gov.au/nla.news-article127232465, create private tags and comments, readable only by you, and. The Stanner Reading Room and client access rooms will be closed from, Guide to evaluating and selecting education resources, Aboriginal and Torres Strait Islander people should be aware that this website may contain images, voices and names of deceased persons, Queensland Coast Islands Declaratory Act 1985, ABS:TheMaboCase, an articlecontributed by the Native Title Section of the Department of Prime Minister and Cabinet, From Keon-Cohen, B A, 'The Mabo Litigation: A Personal and Procedural Account'[2000] MelbULawRw 35; (2000) 24(3) Melbourne University Law Review 893, Records about adoption, fostering and institutions, Return of material to Indigenous communities, Alternative settlements and modelling loss and reparation for compensation, Indigenous languages preservation: Dictionaries project, Livelihood values of Indigenous customary fishing, Preserve, Strengthen and Renew in community, Report on the Situation and Status of Indigenous Cultures and Heritage, Third National Indigenous Languages Survey, Publishing a research publication with us, Native title access The Mabo Case was a significant legal case in Australia that recognised the land rights of the Meriam people, traditional owners of the Murray Islands (which include the islands of Mer, Dauer and Waier) in the Torres Strait. Registered in England & Wales No. [Crossref],[Google Scholar], p. 96, see also pp. Native title could be extinguished by a valid exercise of government power that was inconsistent with an ongoing native title interest. 0000004136 00000 n Mabo gained an education, became an activist for black rights and worked with his community to make sure Aboriginal children had their own schools. McGrath , A. 2 was decided. That court ruled against civil rights, it ruled against voting rights for African Americans. 0000009196 00000 n Justice Brennan (with whom Mason CJ and McHugh J agreed) \vrote the leading judgment. It commemorates Mer Island man Eddie Koiki Mabo and his successful efforts to overturn the legal fiction of terra nullius, or land belonging to no-one. Promote excellence in research, innovation and the promotion and communication of science trailer 2 was decided. Soon after the decision, the Keating Government passed the Native Title Act 1993 (Cth), which codified the rights recognised in Mabo and set out a new process for applicants to have their rights recognised through the newly established Native Title Tribunal and the Federal Court of Australia. Access assistance in your state and territory. For more information, please visit our Permissions help page. He was viewed as a civil libertarian who protected the First Amendment from encroachments, particularly during World War I and the period of hostility to dissent that followed the war. The new doctrine of native title replaced a seventeenth century doctrine of terra nullius on which British claims to possession of Australia were justified on a wrongful legal presumption that Indigenous peoples had no settled law governing occupation and use of lands. Melbourne : Black Ink Agenda . The Mabo Case was successful in overturning the myth that at the time of colonisation Australia was 'terra nullius . They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia as a nation. He issued kind of a manifesto that went to the real heart and soul of what the law is and what the Constitution means in this country. Manne , R. (2003) . Dr. David Q. Dawson is the deuteragonist of Disney's 1986 animated feature film, The Great Mouse Detective. Mabo (1992) 17 5 CLR 1 at 71-3. 0000003495 00000 n The Mabo Case was a significant legal case in Australia that recognised the land rights of the Meriam people, traditional owners of the Murray Islands (which include the islands of Mer, Dauer and Waier) in the Torres Strait. So the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts and these judgments will become a source of law (Hart, 1994 Hart, H. L. A. "Do not use justice for blacks as excuse to destroy this nation," says Bob Woodson. Milirrpum still represents the law on traditional native land rights in Australia. 41, 42, 46, 63. [8] Unlike western law, title to land is orally based, although there is also a written tradition introduced to comply with State and Commonwealth inheritance and welfare laws. This case became known asMabo v. Queensland (No. Mabo Case (1992). To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. xb```f``f`^|QXcG =N{"C_2`\. Justice Dawson, however, held that such rights exist only if recognised or acquiesced in by the Crown, and that this did not happen in this case. Goodbye." In 2015, 23 years after the decision, Eddie Mabo was honoured by the Sydney Observatory in a star naming ceremony, a fitting and culturally significant moment in our nations history. Justice Moynihan handed down his determination of facts on 16 November 1990, which meant the High Court could begin its hearing of the legal issues in the case. 0000004713 00000 n "Oh thank you, thank you, we are very happy, I have to go and tell my Mum. [Google Scholar]) argues persuasively that to speak of the post-colonial obscures the present and continuing incursion of white values, philosophies and mores into indigenous culture and society in societies such as Australia. The Mabo Case was successful in overturning the myth that at the time of colonisation Australia was terra nullius or land belonging to no one. 0000002000 00000 n These pages from the judgment of Justice Gerard Brennan, with his signature, represent not only this lengthy judgment, but the substantial set of documents which comprise the majority judgments of six of the seven judges of the full High Court, who together decided this case.