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I'm reading an essay making claims about the Australian Mabo case from 1992.

The essay states:

...the High Court (notwithstanding finding that the Aboriginal people of Australia were the traditional owners of the land), ...

My understanding is that the case provides for Aboriginal people who have 'a continuing connection with the land' to make a claim in Native title. I don't believe that's the same as saying "the Aboriginal People were the traditional owners of the land."

My question is: Does Mabo v the State of Queensland (1992) 175 CLR 1 state that "The Aboriginal people were the traditional owners of the land"?

2 Answers 2

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NO

The Mabo decision was specific to the Murray Islanders. The court explicitly rejected the argument put by "the defendant" (Queensland), that the rights of the Murray Islanders were the same as the established rights of other settled colonies.

However, the court also declared that the rights of other traditional occupiers could be determined in the same way as the rights attributed to Murry Islanders.

That is, the court did not find that the Aboriginal People of Australia were the traditional owners: it found that the traditional owners of Australia could be determined by Mabo-like court action.

The prospect of having all Australian land title examined and newly determined by separate High Court actions pleased no one. Not claimants, not the prospective defendants. The result was the Native Title Act 1993 (Cth), which established a legislative basis for native title.

Note that "native" is used in a technical sense here. Common law native title ("prior") rights are not restricted to "aboriginal" occupiers ("first peoples").

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Yes

In paragraph 2:

In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland.

Mabo specifically overturned the founding idea that Australia was terra nullius - literally "nobody's land" - and recognized that the land was subject to "native title ... where it has not been extinguished". Presumably, before 26 January 1788 "native title" had been extinguished nowhere and the indigenous Australians "owned" the land on that basis. Native title is not the same as Torrens title or Old title ownership and has different rights and privileges but they are all forms of "ownership".

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  • Thanks for taking the time to research this and present your answer. I do appreciate your references. Here is my counter argument. (1) The original essay contains two existential quanifiers "for all Aboriginal people" and "for all land in Australia" which the case does not. (2) The case (including the paragraph you have quoted contains two conditional statements, "for Aboriginal people that have a continuing connection to the land", "for land that is the subject of a claim in native title" - ie "the indigenous inhabitants" are those in the claim - not all inhabitants. I argue for the No case.
    – hawkeye
    Commented Sep 11, 2018 at 12:59

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