The Judicial Over-Reach of the Mabo Case

Remember that strange word usufruct? What have the conjurers done with it? Where has it gone?

I am sure you have all heard of the Mabo case. Well, actually, Mabo cases. The original case was filed on May 20, 1982, as Mabo and Others v The State of Queensland and The Commonwealth of Australia, with the Queensland registry of the High Court in its original jurisdiction. The complaint was against the Queensland government’s action of treating the land, reefs and submerged lands on the Murray Islands as Crown Land as a result of the British Colony of Queensland annexing various islands in the Torres Strait in 1879.

This analysis appeared in our October 2022 edition.
Subscribers had no need to wait
for the paywall to come down

The Queensland government resisted with all its legal capacity. Then in a coup de grace it legislated the Queensland Coast Islands Declaratory Act 1985 to give legislative support to the annexation.

This hoohah was about three islands at the north-east end of the Torres Strait closer to Papua New Guinea than to Cape York. The main island is called Mer, and the two smaller uninhabited islands are called Daua and Waier. Their total area is about six square kilometres, of which Mer is just over four square kilometres and has a resident population of about 400 people. The islands, which were the tops of a submerged volcano on the Continent of Sahul and subsequent coral growths, are reputed to have been inhabited for about 3000 years, by Melanesians known as the Meriam people. It was clear that the main island was settled by people leading a sedentary lifestyle, who were gardeners or small-scale agriculturalists long before annexation. This negated any questions of “uninhabited” and “uncultivated” as per the definitions as a requirement for “settlement” according to the experts of the day, Blackstone and Vattels, therefore the annexation was either an act of cession or conquest, neither of which automatically extinguished existing laws or land tenure. The smaller uninhabited islands were used by the Meriam people as usufruct: the taking of the “fruits of the land (and sea)”.

The principal complainant, Eddie Koiki Mabo, was a citizen of Mer who had been expelled for misconduct and was a resident of Townsville where he was working as a gardener at James Cook University. Spurred on by Henry Reynolds, a lecturer at the university who had written the book The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (1981), Mabo presented a speech to the university’s 1981 conference on land rights. The speech attracted the interest of activist lawyers who had been focused on mainland land rights and who shared Reynolds’s near-obsession with “terra nullius”. They helped Mabo assemble a case and lodge a claim.

You might wonder why the claim was not lodged with the specialist Land Court of Queensland or the Supreme Court of Queensland. They probably wanted wider publicity. To get the court to consider the Woodward Royal Commission report they probably needed a federal court, so they went to the top.

So when the Queensland act was contested, the Chief Justice of the High Court, Sir Harry Gibbs, needed a junior court to consider the facts so he quashed the complainant’s request to remit the case to the Federal Court. On February 27, 1986 (I assume he acted as sole judge in the original jurisdiction) he referred it to the Supreme Court of Queensland, where of the three available judges Michael Moynihan was appointed.

In the meantime, the full bench of the High Court considered whether the Queensland Coast Islands Declaratory Act 1985 was valid. In December 1988 the High Court handed down its verdict (four to three) that the state law was invalid because it was inconsistent with the Racial Discrimination Act 1975. That judgment became known as Mabo (No. 1) v Queensland. And the original case was resumed in the Queensland Supreme Court.

Justice Moynihan held hearings at the Murray Islands and finally handed down his judgment on November 16, 1990. The report has not been available to the public and it is 500 pages long. It accepted much of the history and land use of the islanders but dismissed the claims of Eddie Mabo. The remaining complainants now eliminated the claims to waters outside the Queensland three-mile limit and the Commonwealth and Eddie Mabo were dropped from the case.

The full (amended) case then went back to the High Court in May 1991. Why it was elevated to the full bench and not to a sole judge is beyond my knowledge. The full bench of the High Court heard argument lasting several days. I understand no outside or expert witnesses were called and the Commonwealth was not represented.

The well-publicised decision known as Mabo (No. 2) v Queensland was handed down on June 3, 1992 and is readily available. Eddie Mabo had passed away a few months earlier.

What is not well known is that the Hawke government, where Gareth Evans and later Lionel Bowen were Attorneys-General, declined to present a case, and I don’t know their respective contributions. Michael Duffy, then Duncan Kerr and Michael Lavarch all acted as Attorney-General (the latter when Paul Keating took over as Prime Minister) and were probably involved in the writing of the Native Title Act 1993.

So where does usufruct come in?

The High Court took evidence relating to the three tiny islands and applied it to the largest island in the world. It considered evidence relating to the lifestyle of the sedentary inhabitants of Mer in 1879 and 1990 and applied it to the mainland of Australia, to a different race of people (if you are not prepared to grant them all Sahulian origins) who led a nomadic hunter-gatherer existence in 1770 and 1788. That lifestyle is best described as usufructuary. The High Court gave many reasons but principally the Racial Discrimination Act 1975.

Now Gibbs CJ made two references to usufruct and usufructuary in his judgment of February 27, 1986. And the seven judges (mainly Justice Brennan) made fifty-three mentions of it in the Mabo (No. 2) judgments. And now this is where the conjuring comes in. Frank Brennan SJ (son of Justice Brennan) in his very interesting book about the Mabo case, One Land, One Nation, does not use the words once in his 236 pages. Eddie Koiki Mabo in his speech just before the case commenced did not use the term and Bryan Keon-Cohen QC, the main barrister in the case, used the term once in his detailed recollections of the case. Nor does the term appear in the Native Title Legislation of 1993 or in the myriad of books and papers I have read in recent years.

Most people are familiar with the current court structures. Many, however, would be unfamiliar with the specialist courts and tribunals which existed until the 1980s when there were still avenues of appeal from Australian courts to the Privy Council in England (terminated by the Australia Act 1986). They may also be unfamiliar with the High Court’s role as a court of original jurisdiction.

Most states had land courts or land and valuation or environment courts where not only the judges were experts but so were the barristers and the witnesses.

In most courts the solicitors prepare a brief for the barristers who present the case. Witnesses are called and the evidence is presented under oath and tested by cross-examination. The judges hear the evidence presented and decide the case on that evidence and the existing law. However, in a specialist court such as the Land and Valuation Court of New South Wales it was not unusual to have the judge also cross-examine an expert witness, thereby widening the coverage of the evidence. Ill-betide a lawyer or witness who underestimated the knowledge of a judge. When the government required a subject to be examined deeply outside a particular case it appointed a commission of inquiry or royal commission.

So we have the Woodward Royal Commission, which inquired from 1973 to 1974 into appropriate ways to recognise Aboriginal land rights in the Northern Territory. The scope was increased to South Australia and Western Australia but the Commissioner aimed his findings to the whole of Australia. And we had the Else-Mitchell Commission into Land Tenures which issued a final report in February 1976.

We also had Milirrpum v Nabalco Pty Ltd, also known as the Gove land rights case, decided on April 27, 1971, in which Justice Richard Blackburn rejected the case for Aboriginal land rights in Australia, leading to the desire of activist lawyers for a venue to challenge his decision. Groups of historians and lawyers, for various reasons, wanted the question of Aboriginal land rights to go before the High Court. Many of the lawyers who had acted as barristers in these matters were now judges. Many people also, for various reasons, wanted to challenge the legitimacy of the British settlement at Sydney Cove in 1788 and they challenged the concept of “terra nullius”—a term unknown to King George III, James Cook or Arthur Phillip.

Along comes the Mabo case about land rights on a fly speck of an island in the Torres Strait with a population of a few hundred people and it is blown up to become the landmark case for Aboriginal land rights. It became linked to the land rights of all mainland Australians by this judgment and its application of the anti-discrimination laws.

Blind Freddy could see that Mer was inhabited, and that the inhabitants were settled into a gardening community in a fertile tropical setting. Also, the fact that the Murray Islands were not part of the lands claimed by James Cook or Arthur Phillip made it clear that the concepts of “terra nullius” or land that was uninhabited, uncultivated or “desert of civilised people”, were not applicable. This case lacked a necessary parallel and therefore had nothing to do with the settlement of New South Wales.

The Meriam people also claimed they were not Australian “Aboriginal people”, they were their own race (although both were probably also descended from the people of Sahul). Even Eddie Mabo, an activist who did much for “black education”, did not claim to be an “Aboriginal Australian” and his wife Bonita Mabo, although born in Queensland, was an Australian of South Sea Islander descent whose grandfather, from the New Hebrides, was “blackbirded” to work in the Queensland sugar cane industry.

The Land Court of Queensland could have sorted out the land claims of the five islanders. The Supreme Court of Queensland could have sorted out whether the annexation of the Murray Islands extinguished the existing laws and land tenures or not. And their decisions could have been contested if the High Court gave them leave to appeal. Then there was the ability to go to the Federal Court instead of the Queensland Supreme Court where there were many skilled judges with interests in land tenure—Richard Blackburn, Trevor Morling and Murray Wilcox to name a few.

Specialists and experts could have compared land rights and their value in contemporary knowledge. They could have contested the importation of inappropriate foreign ideas and terms. They could have explained that usufruct was a right over land and not a right in the ownership of land. That usufruct knew nothing of minerals and mining and that rights to these did not attach. They could also have challenged some of the arguments relating to discovery, settlement, treaty and conquest.

When Sir Harry Gibbs CJ gave his verdict the High Court comprised Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ, but by the decision in Mabo (No. 2) the court comprised Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. It was the practice to keep High Court judges secluded from much of daily life, but they were not divorced from their experiences. Some of the judges had been barristers or judges in Northern Territory land rights matters, some were involved with law reform, one had felt cheated in relation to land dealings with government, another had been prominent in politics, and most were in some way or another involved with or had sympathy for Aboriginal advancement, as did the majority of Australians in the 1967 referendum.

The matters decided by the High Court in Mabo (No. 2) should have been contested by the Commonwealth as a matter of public importance to all Australians, but it declined to do so. Just as it did in a recent matter of the closure of state borders.

The matters decided by the High Court in Mabo (No. 2) should not have been decided without hearing expert evidence. I am reminded of the appeal matter of Minister v Stocks and Parkes Investments Pty Ltd decided by the High Court on August 28, 1973. The matter concerned the value of a proposed school site within a proposed land release for residential purposes. In the original trial, Justice Rae Else-Mitchell ruled that to value the land as residential was wrong and, as the parties had not provided or would not provide opinion as to value as a school site or proposed school site, he had no option other than to place a nominal value of one dollar. The judge was served with a writ of mandamus and the matter ended in the High Court. My reading of the judgment was that although the court made some changes to the original decision they upheld the judge in not deciding to over-reach and decide the matter on “facts” on which there was no evidence placed before him.

The matters decided by the High Court in Mabo (No. 2) should have been decided in the High Court but not in the Mabo case. They should have been decided on appeal from a case affecting land rights on the mainland which considered the comparative geography, the flora and fauna, the size of land occupied and the lifestyles of mainland Aboriginal people. Had they been decided in a matter which more closely covered the rights of the Aboriginal people of the mainland, who were isolated for some 8000 years and lived a usufructuary lifestyle with a stone-age technology and with no supreme leadership and no system of government, then the ensuing legislative actions would have been better suited to the advancement of the people and their ability to prosper in the twenty-first century.

Life for all citizens would be better had not the High Court over-reached in the Mabo case and had members past and present not magnified that over-reach in lectures and papers in subsequent years. Native land rights have been set on a course destructive to the future of all Australians and set in a form of community title for all eternity. As Justice Else-Mitchell put it in his Sidney Luker Lecture, “Unto John Doe his heirs and assigns forever”. But the current rights of an Aboriginal citizen in native title lands are now rights which cannot be disposed to their heirs or assigns, ever.

John Singer is a retired valuer-educator.


17 thoughts on “The Judicial Over-Reach of the Mabo Case

  • jbhackett says:

    Excellent description of the activist High Court decision to grant native title rights to Australian Aborigines in contravention of international law as it stood in 1788. This has led to the ever-expanding areas of Australia subject to native title; about 74 percent of the mainland if all claims in existence in 2017 are granted and added to the 47 percent already granted by 2017.

    Page 14 of my 2020 paper, ‘Aborigines, the Constitution and the Voice’ discusses the Mabo decision. Page 18 contains a map of Australia showing all native title and title claims at 2017. My paper can be read for free at https://www.scribd.com/document/458064355/.

  • Paul W says:

    I would add two observations.
    1. If the British had done a better job relating to land rights for Aborigines in the 1800s, we wouldn’t have this mess. Generational consequences are real and so Conservatives need to fight harder right now.
    2. If Australian politicians had taken the initiative rather than being lazy and hoping issues would go away then it would not have ended up in the High Court as it did.
    Unfortunately being lazy and hoping issues will go away is all that Conservative politicians are good for these days.

    • christopher.coney says:

      You describe the effects of Mabo as a mess but the fact it’s not in the news every day now suggests the system is working. Lots of fear-mongering just after the decision did not deter Liberal and Labor governments since Mabo from building a pretty good framework within which the many stakeholders make their claims and argue their cases. The Crown, in right of all the states and the Commonwealth, remains supreme.
      I think the Labor government at the time knew which way the decision was heading and didn’t waste money and time having an army of silks at the bench.
      In a nutshell Paul, I think you are thrashing a dead horse – it’s a non-issue.

      • Paul W says:

        Appearing in the media is hardly evidence of a system working. The MSM in fact habitually ignore stories and misunderstand many more! But Native Title costs great sums every year in administration and court costs. That is a waste of our money. And now that half the continent is owned by them, the threat of dismemberment is serious. It has effectively created a two-seat society.
        An alternative would be to have a Constitutional Referendum and abolish all pre-existing title, laws, sovereignty. Why not? Cheaper and easier.

  • pgang says:

    Thanks for this excellent summary. To this young Australian at the time it was very confusing, but clearly ridiculous and not at all in the national benefit. I recall soon afterwards the general misery of negotiations on ‘native title’, (a profoundly stupid combination of words in itself).

  • RobyH says:

    This sounds like the Native Title Act contravenes the Racial Discrimination Act – ascribing race to a race which far exceed the usufactory rights of the Native.

    Terra Nullius is an absurd assertion as is the need to apply any of the methods of acquisition of territory.

    The British claimed territory – animus occupandi and then through effective occupation – corpus occupandi became sovereign. This is the mode of acquisition that pre-dates Roman times.

    All other theorists Vattell and others should have been dismissed as irrelevant as well as any discussion on Terra Nullius.

    The Native Title Act may well contravene the Race Discrimination Act – providing rights to a race that do not exist at common law when we consider the Mabo case correct use of usufactory that should have been applied or the mainland. Shame Keating shame

    • christopher.coney says:

      I remember Paul Keating interviewed by John Laws on Sydney radio about Mabo after the case was decided and published but before the Parliament passed the first version of the Native Title Act.
      Callers were mainly hostile to the High Court decision, worrying about their farms, about mining, and also about their city blocks.
      Keating did his best to explain a few key points:- any native title claim bore a burden of proof to establish various criteria, including continuous use of land (etc). But most importantly, the decision made native title subordinate to all titles derived from the Crown – past, present, and future. As best I can tell, these two points are still embedded in native title processes, claims and resolutions. And the system, as best I can tell, is working pretty well.
      I think that critics of Mabo tend not to see that the Mabo principles in a strong sense are just an extension of land law principles as they have existed over decades and indeed centuries. Land law is about rights, it is not about objects or things. A single piece of dirt can have multiple interests attached to it – think of a suburban house where the occupants live in the house, they might have, say, 50% equity in it, the bank by virtue of the mortgage, has a contingent right of sale of the land, the local council has rights relating to their services such as easements, your telco, gas and water providers probably have rights to use of the land in relation to their services too. Visitors and spruikers avail themselves of a common law right of entry – a limited but meaningful right.
      Mabo and native title legislation are aimed at helping to make the resolution of conflicts around real property in Australia more fair and less acrimonious. I reckon both have worked pretty well.

      • Michael Waugh says:

        Have they (Mabo and Native Title legislation) worked well ? Haven’t billions of dollars in royalties gone to a tiny few leaving the same problems of violence, especially domestic violence or violence against women and children, alcohol and drug abuse, and lack of education and depression and despair the same or worse. Many native title claims now involve vicious disputes between warring clans, each desperate to gain the largess.

  • Twyford Hall says:

    It always struck me as suspicious that this case and judgement came so soon after the Australia Act ruled out appeals from High Court decisions to the Privy Council,. Had it been possible, I am sure Mabo would have been appealed and, very likely, overturned.

    • Sindri says:

      Not sure about that. The Privy Council rarely made a useful or competent contribution to Australian constitutional law, on those increasingly infrequent occasions when it upheld appeals on such matters. By 1986 when appeals ended the Board was hands-off on controversial, big-ticket items like native title. I suspect their Lordships would have run a hundred miles from overturning Mabo.

  • Michael Waugh says:

    S.E.K. Hulme, AM, QC wrote a devastating critique of the Mabo decision in one of a series of papers entitled Upholding the Australian Constitution published on AUSTLII. The relevant paper is “The High Court in Mabo”[1993] SGsocUphAUCon9; (1993) 2 Upholding the Australian Constitution 58. If you type in SEK Hulme in google it throws up this paper with others. It is too late to overturn Mabo, but if you read SEK Hulme’s paper you will be convinced that the High Court went well beyond its remit and well outside proper judicial restraint. It is not possible for me to do the paper justice in a short paragraph, but I’ll attempt a couple of comments derived from it.
    The common law recognised 3 categories of acquisition arising from the Age of Discovery (by European powers) : conquest, cession, and settlement. These categories were not closed. The Crown told the Courts whether or not land had been acquired. The courts were confined to determining what laws applied to that land after acquisition. If conquered or ceded, the settled people would be subject to the laws that prevailed before the conquest or cession, unless and until the Crown imposed its own laws, which it could do at its whim. The third category, “settled” was different. It applied where there were no occupants or where the occupants had not settled the land themselves, that is, cultivated the land and set up permanent homes and structures and developed laws of ownership in the soil which gave individuals or groups ownership of the soil.
    The Meriam people (of the Melanesian race) had quite clearly settled the Murray Islands : they had cultivated land or gardens owned by particular individuals or families, and had a tribunal to determine disputes over ownership. Not only had they settled the land for hundreds or thousands of years, they remained its only settlers. Europeans had not displaced them.
    The only evidence in the case was that proved by the activities on those islands. There was not one whit of evidence relating to Aboriginal Australians or the mainland of Australia. There was no representation of Aboriginal Australians or of any person in possession of any land on the Australian mainland. The parties to the litigation were Murray Islanders and the Queensland government, and neither of them asked the court to address land ownership on the mainland in their submissions. It is fundamental, of course, that courts should never determine rights of those who are not given the opportunity to have a say in the outcome. For example, SEK Hulme cites comments by Gary Foley who was livid that the Mabo decision prevented entitlement to ownership by those Aborigines whose claims had been extinguished by the Crown’s use of the land.
    Furthermore, the court, especially Deane and Gaudron JJ, waded into highly controversial areas of history and made findings (eg “a national legacy of unutterable shame”) without any evidence. These findings are well outside acceptable matters covered by the concept of judicial notice (which applies only to matters that cannot be disputed, eg, the date of the Battle of Waterloo, the sun sets in the west etc.). Not only do they make findings without any evidence, they assert it is based on their own researches without detailing those researches. It should be obvious that judges are strictly constrained to making findings on evidence presented in open court which can be contested by the parties.
    SEK Hulme shows (I think beyond argument) that the High Court completely lost its head. It legislated a law that it imposed on the country in breach of all the laws of judicial restraint and procedural fairness and the fundamental rules of democracy. He compares the court to those who decided the Bank Nationalisation Case and the Communist Party Case, both involving great matters of state in heated environments, but were decided by courts playing within the rules, and given full respect for that reason by all sides. The High Court’s reputation was seriously besmirched by the over-reach in Mabo.

    • john.singer says:

      Thank you for reference to SEK Hulme, I wish I had it years ago. I agree with most of his opinions even though mine are arrived at through the practice of Valuation and not Law.
      I do and did take issue with Deane and Gaudron JJ, referring to the overturn of land law that had existed for over 150 years. The Feudal system of land law implanted on these shores in 1788 date back to the Norman Conquest of England in 1066, where they were imposed over the existing Anglo-Saxon land tenures. This system existed in Australia until they were improved by the Torrens Title system introduced into South Australia in 1858..
      So the 150 years of history was more like 800 years.
      Thanks again for the reference.

  • whitelaughter says:

    The important question – can we nullify the case by simply handing the islands over to PNG?

  • nickminchin says:

    This is an excellent summary of the Mabo case and the extraordinary High Court decision.
    Even more extraordinary was the Court’s Wik decision a few years later, which found by a 4-3 majority that pastoral leases did not necessarily extinguish native title, thus massively expanding the scope for native title claims on mainland Australia.
    The Keating Labor Government assumed that the Mabo decision meant pastoral leases did extinguish native title, and its 1993 Act was written on that presumption.
    And indeed the lead judge in Mabo, Chief Justice Brennan, was in the minority in Wik in finding that pastoral leases did in fact extinguish native title.
    The Native Tile Act had to be substantially amended by the Howard Government to accomodate the extraordinary decision of the High Court in Wik.

  • Elizabeth Beare says:

    Mabo was a cascading set of politically motivated and badly supported decisions with some very bad outcomes for aboriginal people, permitting the vesting rights and royalties in clan big men and other bullies.
    How to dismantle it becomes a pressing problem as our population expands, our resources require further unhindered development, and genuinely traditional attachments to land die out as the aboriginal population melds into the rest of us. The divisive racial animus Albanese has created with the thankfully defeated Voice is simply fuel to an already simmering fire of resentment regarding various claims to ‘aboriginal’ cultural preservation, sovereignty and treaties. Mabo should go.

  • Michael Waugh says:

    I think you make a valid point, Elizabeth : Mabo can be seen in an historical context in which, from, say, 1972, Australian society, motivated by a genuine desire to improve the lives of Aboriginal Australians, moved from a general policy of “assimilation” to “self-determination”. Unfortunately, the High Court got swept up by this fad or vibe and forgot the constraints of its role. The “progressive” measures (Whitlam’s Land Rights, Mabo/ Wik/Native Title, encouraging attachment to remote living and some lip service to traditional languages at the expense of proper education to arm children to live and prosper in the modern economy) have been a disaster. I think Professor Sutton’s book “The politics of suffering” makes this clear. Senator Price can see it clearly. “Self determination” is humbug. It is really living off the largess of others, be it government pensions or mining company royalties. Is there any real reason why Aboriginal people should be treated any differently from all the other races in the melting pot of multiracial Australia?

Leave a Reply