The doctrine of terra nullius – ‘land belonging to no-one’ – was challenged and overturned in the High Court of Australia on 3 June 1992, largely due to the dedication of one man: Eddie Koiki Mabo.
Eddie Mabo was born among the Meriam people on Mer in the Murray Group of islands of Torres Strait in 1936. As a young man, he was exiled for contravening Island Law, and moved to the mainland. There, he worked various jobs including deckhand, diver, cane cutter and railway fettler, building and maintaining the lines. While employed on the railways, he became increasingly involved with unions, particularly with organising the Islander groups.
In 1959, Mabo married his beloved Bonita, moving with his young family to Townsville in 1962, where he became a secretary of the Townsville Branch of the Aboriginal and Torres Strait Islanders’ Advancement League. He became a political activist and was involved in the campaign to give Indigenous people the vote in the 1967 referendum.
With his wife and family, he attempted to visit his fatally ill father, Benny, on Mer but only got as far as Thursday Island. The Murray Island Council, allegedly influenced by the Queensland Department of Aboriginal Affairs, denied the family’s request. The children never met their grandfather, who died in 1974. Eddie Mabo was heartbroken and never forgave government authorities. According to his daughter Gail Mabo, it ‘fuelled his determination for recognition and equality in society’.
After a conversation with two academics at Townsville University, Mabo was shocked to discover that his ancestral land did not belong to him. When told it was Crown land, he wanted to make sure that no-one would ‘take his land away’.
Alongside four other plaintiffs, Mabo began a legal challenge on 20 May 1982 against the State of Queensland and the Commonwealth, demanding that the traditional inhabitants of Torres Strait be recognised as the rightful owners of their lands.
As the case gained momentum, the Queensland Government became ‘gravely concerned’ and, at great expense, sent researchers to Cambridge University in England to conduct extensive historical research into the complex claim. In the cabinet minutes it was noted that ‘no assistance to the Crown in right of the State of Queensland will be forthcoming from academic anthropologists in Australia’.
A meeting on the 25 March 1985 deemed it ‘necessary’ that Cabinet introduce and pass the Queensland Coast Islands Declaratory Act 1985. The Bill sought to extinguish native title retrospectively and without compensation.
In 1987, Minister Bob Katter emphasised the ‘critical nature of this constitutional action not only in the Torres Strait but possibly throughout mainland communities.’ The loss would ‘threaten the sovereignty of the State over the lands, sea-bed and reef areas of Queensland as well as raise the question of compensation’. Victorian Premier Jeff Kennett claimed that suburban backyards could be at risk.
The Queensland Coast Islands Declaratory Act was declared invalid in 1988, as it contravened the Federal Racial Discrimination Act 1975. By 1989, total government expenditure on the case was well in excess of $1.5 million. Confidential Cabinet minutes reveal a planned visit to Murray Island with a proposal for removing plaintiffs and weakening the case by offering alternative land options ‘as a matter of urgency’.
The High Court agreed that Torres Strait Islanders had resided on the islands ‘in permanent settled communities with a social and political organisation of their own’ and had an unbroken connection with the land since ‘time immemorial’. They ruled that Native Title exists, and has always existed, however, it would only apply to Crown Land, protecting freehold lands and leases.
The Mabo decision significantly transformed land law in Australia and led to the Native Title Act 1993, which recognised Aboriginal and Torres Strait Islander peoples’ exclusive access to land pertaining to their traditional laws and customs. Approximately 15 per cent of Australian territorial land and waters is now registered as Native Title.
Consumed by the case for a decade, Eddie Mabo died prior to the outcome. In 1992, he was posthumously awarded the Australian Human Rights Medal, together with the original plaintiffs, in recognition of service given to the long battle to gain Indigenous rights.