What did the High Court decide in Mabo v Queensland (1991:1)? This is a question which no one can answer with any degree of certainty.
Mabo v Queensland was a case involving the claims of the Meriam peoples to the Murray Islands. The High Court in upholding this claim, also held that similar principles should be applied to the situation of the aboriginal people on the mainland of Australia.
Technically the determination about the rights of the Aboriginal people was not part of the ratio decidendi. Notwithstanding this, the decision has been interpreted by many including the Prime Minister as establishing rights for the Aboriginal people.
The important principle enunciated in the case is that native titles to land survived the then British Crown's acquisition of sovereignty.
The judgement analyses the circumstances in which the acquisition of sovereignty by the British Government exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. In lay language this means government conferring rights to property on itself or on persons, thereby extinguishing native title.
On the subject of how and in what circumstances extinguishment (wholly, partly, improperly) of native title could take place, and whether and in what circumstances a right to damages is available, are issues on which the six judges provided complex answers, drew fine distinctions, disagreed among themselves and left many issues uncertain or unresolved. A succinct summary of the judgment is provided by Butt. (Butt:1992:444).
The six judges of the High Court however expressed the view that the same principles would apply to mainland Aborigines. This was a strange finding because
An important consequence of the decision is that there is great uncertainty about native title and its application to mainland Aborigines.
Prior to Mabo the Australian courts had clearly laid down that customary native land title (assuming that it existed) was extinguished upon the acquisition by the Crown of a colony. — (Attorney-General v Brown 1847: 30; Milirrpum v Nabalco Pty Ltd 1971:141; Hasluck 1988:101-2). This line of cases was ignored in Mabo.
The High Court in Mabo took the view that the British Crown's acquisition of sovereignty over colony on the land mass of Australia did not automatically extinguish customary native title. The common law could, and did, accommodate native customary title. The Crown's sovereignty carried "beneficial" ownership only over areas where no native title to the land in fact existed. The Crown's radical title empowers the Crown to appropriate land to itself or alienate land to others; but until the Crown so acts, any traditional native interests in the land that existed under native law or custom when the colony was established, survive. What Mabo decided is analysed further in part II.