Legal Practice Briefing

Number 5

30 July 1993


Mabo v Queensland

The High Court of Australia decided in Mabo v Queensland (No.2) (1992) 175 CLR 1 (Mabo (No.2)) that the Meriam people were entitled as against the whole of the world to the possession, occupation, use and enjoyment of (most of) the land of the Murray Islands in the Torres Strait. In reaching this conclusion a majority of the Court held that the common law of Australia recognises a form of native land title. Such a native land title exists in accordance with the laws and customs of indigenous people:

  • where those people have maintained their connection with the land; and
  • where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

The decision is clearly a major development in Australian law. It is particularly important for Commonwealth officials who administer legislation which might affect native title or who make decisions which might affect native title to be aware of the decision and to ensure that they have regard to it. This paper seeks to summarise the decision and, in particular, to alert Commonwealth officials to the possible implications for their actions.

Terra Nullius

The Court rejected the traditional doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement, with the implication that absolute ownership of land vested at that time in the Crown, but rather accepted that native title rights survived settlement, though subject to the sovereignty of the Crown. Brennan J, with whom MasonCJ and McHughJ agreed, indicated that the Court could not perpetuate a view of the common law which was unjust, did not respect all Australians as equal before the law and was out of step with international human rights norms. Deane, Gaudron and TooheyJJ also rejected the doctrine of terra nullius as repugnant and inconsistent with historical reality.

Native Title

The content of native title is to be determined according to the traditional laws and customs of the title holders, but there are some common characteristics. It is inalienable (that is it cannot be transferred) other than by surrender to the Crown or pursuant to traditional laws and customs. Native title is a legal right that can be protected, where appropriate, by legal action. It may be possessed by a community, group, or individual depending on the content of the traditional laws and customs. It is not frozen as at the time of European settlement.


Native title will be extinguished where the traditional title holders lose their connection with the land. Title will not have been extinguished simply by a modified lifestyle and a change in customs, but indigenous people who have undergone fundamental changes to their way of life may have more difficulty in establishing title.

While the acquisition of sovereignty did not of itself extinguish native title, subsequent legislative or executive actions by Imperial, Colonial, State, Territory or Commonwealth governments may have. But a clear and plain intention or clear and unambiguous words are required for this to have occurred. The judgments variously considered the position of a range of land.


There was general acceptance by the majority that extinguishment will have resulted from the valid grant of freehold title, because this is inconsistent with any continuing enjoyment of native title. For areas of land in Australia held under valid grants of freehold title the decision in Mabo (No.2) offers no prospect of a successful assertion of native title.

Beyond grants of freehold title, there was a divergence of views amongst the Justices. In general terms, however, where indigenous people have a continuing traditional association with the land it is then necessary to ask whether an interest in the land granted by the Crown, or the Crown's actions as an occupier, were inconsistent with the continuing right to enjoy native title, and therefore extinguished that title.


BrennanJ stated that native title has been extinguished by the grant of a leasehold estate. He suggested that the 20-year Crown lease over the islands of Dauar and Waier for a sardine factory would have extinguished the Meriam people's native title to those lands, even though the lease was subject to the condition that the lessees would not obstruct or interfere with the Meriam people's use of their tribal gardens or their fishing on the reefs. DawsonJ took a similar view. Deane and GaudronJJ held that native title has been extinguished by a lease conferring the right to exclusive possession. However they suggested that the sardine factory lease would not have extinguished native title. The differing views of the Justices on the effect of the sardine factory lease illustrate how difficult it is to predict the Court's approach to future claims to leased land, as notions of what is and is not incompatible with continuing native title are likely to differ. However, even if native title has not been extinguished by leasehold or other grants, where such grants are validly made the native title will be restricted or limited by the grant.

Appropriation by the Crown Valid appropriation by the Crown of land for use by itself will extinguish native title to the extent of any inconsistency in use. Roads, railways and buildings, such as post offices, were mentioned by the Court. But appropriation by the Crown for some future use will not extinguish title. Extinguishment will not have taken place in relation to waste lands of the Crown which have not been so appropriated or lands where the continuing use is not inconsistent with native title, such as land set aside for a national park.

Mining interests and other acts The Court indicated that native title in land may not have been extinguished by the granting of authorities to prospect for minerals (for example, exploration licences). A mining lease, however, may have extinguished native title over the land. The Court did not further discuss the issue of minerals. However it is suggested that if, in some cases, native title did extend to minerals, this title has probably been extinguished by statutes reserving those minerals to the Crown.

The Court suggested that the reservation of land for the benefit of indigenous peoples or the subject of a trust for this purpose would not have extinguished native title. In relation to areas offshore, particularly beyond the three nautical mile coastal waters area, international law issues will make claims for native title difficult to establish.

Relationship to other interests It is clear that the Mabo (No.2) decision does not support a proposition that native title has legal primacy over other titles. This follows from the fact that the Crown can make grants over land which is the subject of native title and which will extinguish native title to the extent of any inconsistency. Like other legal rights, including property rights, native title can be dealt with, extinguished or expropriated by the Crown.

While providing general principles, the decision does not, however, resolve a number of key issues. In particular cases it may be difficult to determine whether native title exists, the nature and extent of that title, whether that title has been extinguished and, if not, the relationship of that title to other interests in land.

Fiduciary Duty

The plaintiffs in Mabo No. 2 also argued that Queensland is under a fiduciary duty to recognise and protect the asserted traditional land rights and interests of the Meriam people in the land. The fiduciary duty asserted derives from decisions of the courts of the United States and Canada that a fiduciary relationship exists between the government and Indian tribes. Crown responsibilities to Maori in the nature of fiduciary duties have also been recognised in New Zealand.

Toohey J was the only Justice to unequivocally accept the plaintiffs' argument. He held that there is a fiduciary obligation on the Crown 'to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the titleholders'. His Honour said that the fiduciary obligation would be breached by executive or legislative action extinguishing that title without consent, and liability would attach to the Crown, but he did not spell out the consequences of a breach, particularly by legislative action.

The existence of a general fiduciary duty such as that asserted by the plaintiffs is not supported by the decision of Brennan J (with whom Mason CJ and McHugh J agreed) nor, it seems, by the decision of Dawson J. Brennan J's recognition of the power of the Crown to extinguish native title without compensation is inconsistent with the existence of the general fiduciary duty asserted by the plaintiffs. Deane and Gaudron JJ also recognised the power of the Crown to extinguish native title but concluded that such extinguishment would be 'wrongful' and a right to compensation would exist unless excluded by clear and unambiguous legislative provision. This reference to 'wrongful' extinguishment might reflect a view supporting the existence of a fiduciary duty.

A majority in Mabo (No.2) therefore seems to reject any general fiduciary duty. However, Brennan J did indicate that there may be scope for a fiduciary relationship to arise in particular circumstances. Toohey J was also of the view that a fiduciary obligation can arise as a result of particular actions or promises by the Crown, although he saw this as different from the general duty which in his view does exist.


The majority of the High Court held in Mabo (No.2) that extinguishment of native title by inconsistent Crown grant did not give rise to a claim for compensatory damages. (Only a minority of the Court was of the view that past extinguishment of native title by the Crown without clear legislative authority was wrongful and may give rise to a claim for compensation.) It follows that the validity of such grants could not be challenged merely on the basis that they extinguished native title without compensation.

Racial Discrimination Act 1975

However, this conclusion of the majority of the Court was made expressly subject to the operation of the Racial Discrimination Act 1975 (RDA) of the Commonwealth. The RDA came into operation on 31October 1975. In summary:

  • section 9 of that Act makes it unlawful for a person to do any act involving a distinction based on race which has the effect of impairing the enjoyment of any human right or fundamental freedom; and
  • section 10 provides that where by reason of any law persons of a particular race do not enjoy a right to the same extent as persons of another race, then by force of that section the first-mentioned persons enjoy that right to the same extent.

The RDA implements Australia's obligations as a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The terms of the RDA are consistent with but not identical to those of the Convention.

Just Terms

The conclusion of the Court may also be subject to the requirement in section 51(xxxi) of the Commonwealth Constitution that acquisition of property (which may include extinguishment of native title) by the Commonwealth in the States can occur only upon payment of just terms, an obligation imposed by the Commonwealth on Territory Governments (Northern Territory (Self-Government) Act 1978, section 50, Australian Capital Territory (Self-Government) Act 1988, section 23(1)(a)). On present authority, the Commonwealth is not required by the Constitution to pay just terms for an acquisition of property in a Territory (Teori Tau v The Commonwealth (1969) 119 CLR 564), though this is currently subject to challenge.

Mabo No.1

The High Court considered the application of the RDA to legislation affecting native title in Mabo v Queensland (No.1) (1988) 166 CLR 186 (Mabo (No.1)). The Queensland Parliament had passed the Queensland Coast Islands Declaratory Act 1985 (the Queensland Act) in an attempt to render academic the plaintiffs' native title claim. The Queensland Act sought to extinguish any native title rights claimed to exist in the Murray Islands, with effect from 1879 when the islands were annexed by the Crown to Queensland, to deny any right to compensation in respect of that extinction, and to confirm grants made by the Crown. On the assumption that native title existed from the time of annexation, a majority of the High Court held that:

  • but for the operation of the RDA, the Queensland Act would have extinguished native title;
  • the Queensland Act discriminated on the basis of race in relation to the human rights to own property and not to be arbitrarily deprived of property, in that the native title interests sought to be extinguished were only held by indigenous people;
  • and the Queensland Act was inconsistent with the RDA and, by virtue of section 109 of the Constitution, invalid.

Grants and Other Acts

Grants of a freehold interest, a pastoral lease, a mining lease or other interests in land under relevant legislation since 1975, or the appropriation of land by a government for its own purposes, are not on their face racially discriminatory acts. However, on one legal view, where such a grant or act would have had the effect of extinguishing native title interests without compensation, and where such a grant or act would not extinguish other relevant interests without compensation, the effect may be discriminatory in relation to a human right to own property and not be arbitrarily deprived of it. The reasoning in Mabo (No.1) and comments by some of the Justices in Mabo (No.2) as to a possible grant under the Queensland Land Act 1962 in relation to the Murray Islands, and as to the operation of the RDA in general, may support this view.

Effect of the RDA on Grants and Legislation

If the effect of making a grant is discriminatory, there are two possible results in respect of grants made since 1975:

  • that the RDA protects native title from extinguishment and renders the relevant legislation or acts under that legislation wholly or partly invalid; or
  • that the RDA operates so as to provide a right of compensation for the extinguishment of native title.

There is doubt as to which view a court would take. On the latter view, statutory titles are valid and the RDA may give native title holders a right to compensation, subject to the operation of statutes of limitations. On this view, appropriate compensation would be due to holders of native title, where this has been extinguished or impaired. On the former view, the RDA may in some cases render wholly or partly invalid State laws, grants or acts and the implications of this view need to be considered in greater detail. If the law were wholly invalid, other grants under that law which did not affect native title could be invalidated. Clearly the particular grant or act will need to be considered in order to assess the potential effect on native title and the application of the RDA.


In Mabo (No.1) the High Court dealt with an Act, and in Mabo (No.2) discussed a possible grant under an Act, both of which would have extinguished native title if valid. However, the general law with respect to the extinguishment (that is, compulsory acquisition) of property rights and the making of grants of interests in land (which may have extinguished native title rights) often provides for procedural requirements, in particular for the benefit of any persons affected by these actions. These procedural requirements range from:

  • notification;
  • the provision of an opportunity to object; to
  • in some cases, the need for the consent of those affected.

There are others. Clearly, it will be important to have regard to particular requirements in particular legislation. It is possible that the failure to deal in a non-discriminatory way with native title holders, even in relation to procedural matters, may have placed a past grant in conflict with the RDA.

Past Actions

The Commonwealth Government is considering the position with regard to past grants or actions. This matter is discussed in the Commonwealth Discussion Paper entitled Mabo, The High Court Decision on Native Title and is in part the subject of the Framework of Principles developed by the Ministerial Committee on Mabo, which is presented in an Appendix to the Discussion Paper. Principle 21 provides that those holding interests in land should have certainty that they will not be invalidated and their rights should be protected. However the Principles propose that any validation of past actions cease at 30June 1993. Actions should now be taken having full regard to potential native title, and the effect of the RDA and the constitutional requirement that the Commonwealth provide just terms for any acquisition of property.

Future Actions

In summary, it will be important for those who take actions in relation to land which may affect or extinguish native title to have regard to the following issues.

Does native title extend to the relevant land?

Native land title will exist in accordance with the laws and customs of indigenous people:

  • where those people have maintained their connection with the land; and
  • where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

Has native title in that land been extinguished?

Native title will have been extinguished by (and therefore does not affect) private interests in land held under valid grants of freehold title and leasehold title, at least to the extent that the latter provides a right of exclusive possession. Native title may not have been extinguished by other lesser grants. Appropriation by the Crown of land for use by itself will have extinguished native title to the extent of any inconsistency.

If native title has not been extinguished, will the action comply with the RDA?

Any action will need to treat native title in a non-discriminatory manner. In particular regard will need to be had to:

  • the effect of the action on native title;
  • the compensation paid for that effect, and whether just terms are required for any acquisition of property; and
  • the procedures accorded to native title holders.

Current Claims

The Commonwealth has to date been served with process concerning six claims based on Mabo Principles. The plaintiffs and areas affected are Coe (part of New South Wales), Pareroultja (part of Northern Territory), Wik peoples (area near Weipa, Cape York), Roughley (part of King Island), Utemorrah and Barunga (both in respect of the Kimberley region in Western Australia).

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.

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