Legal Briefing No. 5

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

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

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


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

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

  • 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

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;
  • 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

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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