Mabo: Ten Years On
E-Brief: Online Only issued 23 May 2002
Social Policy Group
3 June 2002 marks the tenth anniversary of the High Court
decision in Mabo v Queensland (No 2). The decision upheld the
claims of five plaintiffs from Murray Island (Mer) that Australia
was occupied by Aboriginal and Torres Strait Islander peoples who
had their own laws and customs, and whose 'native title' to land
survived the Crown's annexation. Thus the court recognised the
existence of native title as part of Australian common law.
The judgment necessitated new policies, legislation, and public
administration procedures. A wide ranging public and academic
debate on native title issues has also ensued and a number of
significant court judgments handed down. This paper chronicles some
of these key events and reports.
In a recent issue of
Talking Native Title the President of the National Native
Title Tribunal, Graeme Neate, summarised the progress since
recognition of native title:
For some people, the first decade of the legal recognition of
native title in Australia may have passed relatively quickly. But
those who have been involved in a policy or practical way for part
or all of that period will recall the long debates, negotiations
and struggles—some of which have led to positive
The high profile stories have included:
- Court decisions in important cases such as Mabo (No2), the Wik
case, and Yarmirr (the sea rights case);
- the enactment and amendment of the Native Title Act;
- the determinations that native title exists in various parts of
Australia – 23 by agreement between the parties, seven after
trials in the Federal Court; and
- some major exploration and mining agreements with Aboriginal
Much other significant, if less publicised, activity has taken
place as people have found ways to resolve a wide variety of native
title issues in different parts of Australia.
The community generally, and key sectors within it, have come to
accept and even embrace the recognition of native title. Looking
ahead, one might expect that the next 10 years would produce more
outcomes and greater certainty.
Progress is being made in identifying where native title exists
and who the native title holders are. The processes for resolving
native title issues – whether by agreement, arbitration or
litigation – are being refined. As more parties become
experienced in the processes, the way for agreement making should
Some legal issues have to be decided. At the date of writing,
the High Court had not delivered its judgment in the important
Miriuwung Gajerrong case (Western Australia v Ward) which is
expected to clarify the law on important issues such as the nature
of native title and what extinguishes native title.
Later this year the High Court is scheduled to hear the Yorta
Yorta People's appeal. The judgment in that case should give
guidance on the extent to which native title might be recognised in
the areas of eastern and southern Australia most affected by
European colonisation.(Source: Graeme Neate, 'From the President',
Talking Native Title, issue 2, March 2002, p. 2.)
Graeme Neate has also spoken on the challenges ahead, now that
native title is 'part of the legal and social fabric of Australia'.
His summary of the National Native Title Tribunal's Native
Title Forum 2001: Negotiating Country, canvases some of the
outstanding issues which:
Need to be considered in the current
climate of opinion. That is different from when the Native Title
Act commenced to operate. There is widespread acceptance that
native title exists – that it is part of the legal and social
fabric of Australia. The issues are not whether native title should
be recognised, or whether there should be wholesale extinguishment
at the stroke of a legislator's pen, but what are the best
practical ways of dealing with a range of native title issues. (See
of Conference: Emerging Issues and Future Directions
Land, Rights, Laws: Issues of Native Title
, vol. 2, no.10,
|28–30 August 1981
||Townsville Treaty Conference at James
Cook University discussed strategies for bringing about a
definitive High Court decision on land rights. Koiki (Eddie) Mabo
(1937–92), then living in Townsville, spoke at the conference
about land rights in the Torres Strait. Papers and discussion from
the conference were published in E. Olbrei (ed.), Black
Australians: the prospects for change, 1982.
|20 May 1982
||Eddie Mabo, Dave Passi and James Rice
brought an action against the State of Queensland and the
Commonwealth claiming 'native title' to the Murray Islands.
||In an attempt to pre-empt the case,
the Queensland Parliament passes the Queensland Coast Islands
Declaratory Act extinguishing retrospectively the Islanders'
claimed rights to the Murray Islands.
|27 February 1986
||Constitutional validity of the
Queensland Coast Islands Declaratory Act 1985 challenged
in the High Court.
||High Court in Mabo
v. Queensland (No. 1) (1988) 166 CLR 186 finds Queensland
Coast Islands Declaratory Act invalid because it is
inconsistent with the Racial Discrimination Act 1975
(Cth). As a result the original Mabo proceedings could
|21 January 1992
||Edward Koiki Mabo died in
|3 June 1992
||High Court in Mabo
And Others v. Queensland (No. 2) (1992) 175 CLR1 recognises
native title is part of Australian land law. Native title continues
in cases where Indigenous people have an on-going connection with
their traditional lands as determined by their own laws and
customs, and an act of the Crown has not extinguished these rights.
Further information: Analysis
of the Mabo decision by Australian Government Solicitor. A
summary of the public debate following the decision can be found in
the Parliamentary Library Background Paper
The Mabo Debate: A Chronology, vol. 23, 1993.
|19 December 1993
||Parliament enacts the Native
Title Act 1993. It addresses the consequences of
recognising native title for past actions by governments and sets
up rules for future dealings in native title land and waters. The
legislation followed lengthy debate and negotiations between
Indigenous stakeholders, governments, pastoralists and the mining
Further information: Aboriginal and Torres Strait
Islander Social Justice Commissioner,
Native Title Report January–June 1994.
||Native Title Act (NTA)
commences operation, National
Native Title Tribunal (NNTT) established and Native Title
Representative Bodies (NTRBs) recognised in law.
Further information: Native Title
Facts, a series of fact sheets about native title in Australia
as it is administered under the Native Title Act 1993;
Short guide to native title.
||High Court in Western
Australia v. Commonwealth rejects Western Australia's
constitutional challenge to the Native Title Act and
invalidates Western Australian Government's attempt to enact
legislation that offered less protection of Indigenous rights.
||Indigenous Land Corporation
(ILC) and the Aboriginal and Torres Strait Islander Land Fund
established. The ILC's main functions are to assist Indigenous
peoples in Australia to acquire land and to manage indigenous-held
land in a sustainable way to provide cultural, social, economic or
environmental benefits for themselves and for future
||The first resolution of a native title
claim for mainland Australia involving the Dunghutti people of
Crescent Head and the New South Wales government.
||High Court decides in Wik
Peoples v Queensland that native title is not necessarily
extinguished by the grant of a pastoral lease and that native title
can co-exist with other interests in land.
Further information: Wik: the
aftermath and implications, articles from the University of NSW
Law Journal; The Wik
Peoples v the State of Queensland, analysis by the Australian
|8 May 1997
||Howard Government releases
Amended Wik ten point plan foreshadowing major amendments to
the NTA (Department of the Prime Minister and Cabinet).
||Australians for Native Title and
Reconciliation (ANTaR), a coalition of non-government
organisations and concerned citizens, formed.
|6–8 July 1998
||After two long parliamentary debates
in late 1997 and early 1998, 293 amendments and a compromise
agreement between the government and Senator Brian Harradine, the
Title Amendment Act 1998 is passed. The Act makes
substantial changes to the future act regime, the registration
test, the validation provisions, the relative roles of the Federal
Court and the NNTT, the statutory regulation of NTRBs and the law
on Indigenous Land Use Agreements (ILUAs).
Further information: ATSIC,
Detailed Analysis of the Native Title Amendment
|6 July 1998
||A Federal Court judge in Yarmirr
v Northern Territory  771 FCA finds that native title
exists over the entire area of sea and sea-bed claimed in the
Croker Island case. However the rights granted were 'non-exclusive'
and 'non-commercial' and the decision was appealed.
|10 September 1998
||High Court confirms that the grant of
freehold extinguishes native title in Fejo
v Northern Territory.
Further information: Lisa Strelein, 'Extinguishment
and the Nature of Native Title, Fejo v Northern Territory',
Land, Rights, Laws: Issues of Native Title, no. 27,
||The National Native Title Tribunal's
first national audit of native title agreements reveals that over
the previous five years more than
1200 agreements had been struck between Indigenous groups and
miners, pastoralists, industry bodies and governments.
|24 November 1998
||Justice Lee, of the Federal Court, in
Miriuwung Gajerrong judgment upholds a native title claim to
7900 square kilometres of the east Kimberley region, Western
Australia, and across the border into the Northern Territory. The
judgment was notable for the broad scope of the native title rights
|18 December 1998
||Justice Olney, of the Federal Court,
Yorta v Victoria  judgment determines that native title
did not exist over Crown land and water in the claim area along the
Murray River in New South Wales/Victoria. He said the 'tide of
history' had washed away the Yorta Yorta's traditional laws and
customs and thus any claim to recognition of native title.
|18 March 1999
||The United Nation's Committee on the
Elimination of All Forms of Racial Discrimination (CERD), which
monitors compliance with the Convention on the Elimination of All
Forms of Racial Discrimination (CERD), expresses
concern about several key amendments to the Native Title Act in
its Decision 2(54) on Australia.
Further information: Australia. Parliament. Joint
Committee on Native Title and the Aboriginal and Torres Strait
Islander Land Fund,
Consistency of the Native Title Amendment Act 1998 with Australia's
international obligations under the Convention on the Elimination
of all Forms of Racial Discrimination (CERD).
Government rejects CERD Committee's March 1999 decision
claiming 'there is no breach of the Convention by the Native Title
||The CERD Committee, in Decision 2(55)
on Australia, reaffirms the findings of its March decision.
||Northern Territory's alternative right
to negotiate procedures, enacted under Northern Territory law and
approved by the Commonwealth Minister, are disallowed by the Senate
under disallowance powers given to both Houses of Parliament in the
Native Title Act. Once disallowance occurs the provisions of the
Native Title Act re-apply.
|7 October 1999
||High Court decision Yanner
v Eaton finds that statutory vesting in Queensland of property
in fauna did not extinguish native title rights to take crocodiles
for traditional purposes.
Further information: High
Court upholds bush tucker rights, Analysis of Yanner v Eaton
(Parliamentary Library Research Note no. 11, 1999).
|3 December 1999
||Commonwealth appeal against Croker
Island native title claim dismissed by the full Federal Court in
v Yarmirr  FCA 1668. In the same case, the claimant group
also loses its appeal on question of recognising their
exclusive rights off shore.
||New South Wales's alternative
procedures for opal mining at Lightning Ridge under section 26C of
the NTA commence operation after surviving Senate scrutiny.
||Queensland's alternative procedures
under section 26A (low impact exploration) and section 43 of the
Native Title Act commence operation after meeting Senate approval.
Procedures under section 26B and section 43A were disallowed by the
Senate under disallowance powers given to both Houses of Parliament
in the Native Title Act.
||Senate disallows Western Australia's
proposed alternative right to negotiate scheme under section 43A of
the Native Title Act.
||New South Wales's alternative
procedures for low-impact exploration under section 26A of the
Native Title Act commence operation after surviving Senate
||High Court reserves its decision in
Miriuwung Gajerrong test case, a case expected to clarify
strength of native title and the law on extinguishment of native
Further information: Gary D Meyers, 'The
Content of Native Title: Questions for the Miriuwung Gajerrong
Appeal', Land, Rights, Laws: Issues of Native Title,
vol. 2, no. 7, November 2000.
|11 April 2001
||Full Federal Court in Lardil
v Queensland confirms serious flaws in the protection offered
by future act regime to registered native title claimants.
|11 October 2001
||High Court in
Commonwealth v Yarmirr  HCA 56 (Croker Island case) finds
native title to exist over the entire area of sea and sea-bed which
was claimed. The decision confirms that the common law can
recognise native title offshore but rejects applicants' claim to
Further information: AIATSIS Native Title Research
Sea Rights Resource Page: The Croker Island Decision and Native
|14 December 2001
||High Court grants claimants in
Yorta Yorta case special leave to appeal against Federal Court
decision that the 'tide of history' has washed away their
traditional connection and native title rights.
|8 February 2002
||Federal Court, in Central
Queensland Land Council Aboriginal Corporation v Attorney-General
(Cth) and Qld, finds Commonwealth approval of
Queensland alternative procedures under section 43 of the Native
Title Act invalid. Rejects challenges to alternative right to
negotiate procedures approved under section 26A of the Native Title
|30 April 2002
||Eddie Mabo's widow, Bonita Mabo, calls
for a national public holiday on the anniversary of the High
Court's decision. (AAP 30 April 2002.)
State of Play
Between 3 June 1992—the date of the first determination of
native title in the Mabo case by the High Court of
Australia—and 13 May 2002, there were 40 native
title determinations, that native title does or does not exist,
made by a court decision. The determination process is often long
and difficult. Most native title claimant applications are made
with the aim of gaining formal recognition of native title through
Statistics on Indigenous Land Use Agreements (ILUAs),
determinations, agreements and Future Act Determinations can be
found on the National Native Title Tribunal's 10 Years of
Native Title Information Kit.
Many other different types of agreements between Indigenous
people and other people with rights and interests in land and
waters may be made without involving a Court determination of
native title. Some of these agreements are commercial in confidence
and an accurate figure of such agreements is unavailable, although
it was estimated at more than 1200 in 1998. See
media reports of land use agreements in 1997 and 1998. In May
2002 the number of these general native title process agreements,
the majority of which are future act agreements in relation to
mining, had risen to over 3000 (Commonwealth Budget Paper,
Indigenous Affairs 2002-2003, 14 May 2002.)
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