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Over a decade ago, Eddie Mabo initiated a legal battle in Australia to recognize the land rights of the Meriam Islanders, Melanesians who inhabit primarily the Murray Islands of the Torres Strait, in the marine outback of northern Australia, between the Cape York Peninsula and Papua New Guinea. Unfortunately, Mr. Mabo died before the High Court issued its historic 1992 decision, Mabo v The State of Queensland, 66 ALJR 408 (hereafter referred to as "Mabo"). In June 1992, the landmark ruling established that Australian common law must recognize the land claims of Australia's indigenous peoples. Indigenous title, according to the judgment, was not extinguished by the colonial sovereignty Britain asserted upon invasion and conquest of the Australian continent during the 18th century or with annexation of the Murray Islands in 1879. The Meriam people were granted occupation, use and enjoyment of their lands in accordance with their indigenous laws and customs.
The High Court recognized that the Meriam Islanders were and are culturally distinct from other Aboriginal peoples of mainland Australia, but the ruling in the Mabo case extends to ancestral lands of all indigenous peoples of Australia. The Mabo decision implies that all indigenous peoples presumably can, like the Meriam, demand recognition of their ancestral domain. There are requirements for gaining legal recognition of land claims, however, and these stipulate that the peoples must demonstrate continuous observance of their laws or customs according to the traditions of the relevant clan or group, and substantial maintenance of traditional connection with the land.
Mabo apparently applies to only a fraction of Australia's indigenous people, however, for only a third of some 300,000 indigenous people still live in the rural areas of Australia. Moreover, not all of them reside in areas isolated enough to demonstrate continuity of connection with Aboriginal lands, as required by Mabo. On the other hand, the ruling also recognizes that Islander and Aboriginal traditions have not remained frozen since Britain declared its sovereignty in Australia. Thus, the validity of land claims arguably should not ultimately rest on whether or not cultural changes have occurred, especially where such changes have resulted directly or indirectly from coercive colonial and state policies.
The Mabo judgment arguably can be broadened beyond real property rights to extend to "intellectual property rights." According to Mabo, communal indigenous title and intellectual property survive so long as indigenous peoples remain identifiable communities living under their own laws and culture. The state can alienate indigenous lands only to the extent that bestowing freehold estates or leases is inconsistent with a continuing right of the indigenous community to enjoy title. The state can alienate lands through concessions to lesser interests, however, as would be the case in granting authority to prospect for minerals or create conservation areas. Following this precept, Aboriginal people might claim that occupying their "dreaming track" is not inconsistent with grazing leases issued to stockmen on the same land. The test of inconsistency is equally relevant to indigenous hunting and fishing rights.
Due to the legal precedent set by Mabo, the way has already opened for a broader recognition of indigenous rights to own and manage Australia's conservation estate. In June 1992, for example, the Aboriginal community of western New South Wales started discussions with that state, concerning the disposition of three national parks and historical sitesMungo, Mutawinji and Mount Grenfell.
The High Court rejected the federal government's contention that the Crown had acquired absolute "beneficial ownership" of the land, through the British assertion of sovereignty over the Aboriginal peoples of Australia. The Mabo decision established that in the Murray Islands previous indigenous interests survived annexation of the territory, the subsequent creation of a reserve, and the appointment of "trustees" over Aboriginal affairs. The decision theoretically should lead to the ultimate demise of the doctrine of terra nullius ("empty land") and to its presumption that pre-conquest Australia was uninhabited. The British imperial government used that doctrine to justify its invasion of the country in 1788, arguing that the land was "uncultivated" and the people were "primitive," that is, without social and political organization (in the view of the racially prejudiced British colonialists). Mabo overturns that colonial legacy.
European colonizers of the 18th century could assert sovereignty in one of three waysconquest, cession or occupancyaccording to international law of the age. British law was invoked wherever new colonies were established by occupancy, which was grounded upon the assumption of terra nullius. In cases where sovereignty was established through cession and conquest, indigenous laws presumably remained intact. In Australia, the indigenous peoples were never conquered, nor did they ever cede their land to the Crown, so British authority was established solely through occupation.
To its discredit, in abandoning terra nullius through Mabo, the High Court drew a questionable distinction between occupancy and sovereignty. The Meriam people never intended to contest the sovereignty of Australia, but that issue necessarily arose during the course of the trial. When the High Court ruled that terra nullius could no longer justify non-recognition of indigenous title, it hypocritically remained silent on the equally unjust use of the doctrine to deny Aboriginal sovereignty. The ruling suggested that such actions against the state are matters for politicians to decide, not the High Court; thus, access to the Court concerning claims of sovereignty was effectively closed.
Fourth World Bulletin • July 1993
Copyright © 1996 by the Fourth World Center
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