Mabo v Queensland: A Landmark Case in Constitutional Law

Running head; CONSTITUTIONAL LAW 1
CONSTITUTIONAL LAW
Name
Institution

CONSTITUTIONAL LAW
Introduction
The case between Mabo v Queensland was a landmark case which was supposed to give
a direction to the sense of inclusion of constitutional law. The determined doctrine was referred
to as terra nullius. Terra nullius is a circumstance where all laws of England, Queensland, was
supposed to be imported and used to a new land. The terra nullius further recommends that these
laws cannot apply to situations where there are inhabitants1. At that time inhabitants were
regarded as uncivilized. In this essay, we shall contrast and compare the findings that followed
this case. The Mabo vs. Queensland case will be compared to Kartinyeri vs. the commonwealth.
The main issue in the latter case was for the Australian court to determine whether section 51
was restricted in a way that it only authorized laws for the benefits. The complainant wanted a
determination of the issue of Aboriginals and Strait Islander heritage protection from the being
inherited by the foreign British2. The applicant needed sought a declaration of invalidation and
introduce a new constitutional law that would protect the Aboriginals properly3. The submissions
in this paper, therefore, explain the differences and the similarities of the two cases while giving
critical insights and review of both.
A brief summary of relevant facts
1
Beacroft L. Indigenous Language and Language Rights in Australia
after the Mabo (No 2) Decision: A Poor Report Card. James Cook UL Rev..
2017;23:113.
2
Lino D. Towards Indigenous–Settler Federalism.
3
Macpherson E. Beyond recognition: Lessons from Chile for allocating
Indigenous water rights in Australia. UNSWLJ. 2017;40:1130.

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In the Mabo vs. Queensland case, the following cases are factual. Until the year 1992
land laws claimed that Australia land belonged to no one4. The issue of land belonging to no one
was referred to as terra nullius. The indigenous owners of the land were denied the right to own
their land. The prior connection to the land was bottled away by the Colonizers.
The leaders of the Mabo vs Queensland case were Eddie Mabo, David Passi, and James
Rice. They represented the larger group from Murray Islands. They responded to the Queensland
amendment act of 1982, where land grants were awarded to Aboriginal Australians and Torres
Strait Islanders. As representatives of the Mer Islands, they refused to accept the amended and
therefore seek high court intervention. The complaint immediately followed a conference that
had taken part at James Cook University. The conference addressed land issues and race
relations amongst Australians. The same members who chaired the meeting are the one who
launched the case and the complaint. It is, therefore, logical to believe that one of the decisions
made from the conference was to report this case to the high court for further clarity. There is
even further proof when one of the barristers, Barbara Hocking delivered a paper at the
conference providing an argument for the recognition of the traditional Aboriginals entitlement
to land ownership5. Hocking argued that they needed to quickly take a case to the law courts with
the intention that the indigenous Australians were justified to own and legally claim land6. With
the possession of land returned to the owner, it, therefore, meant that terra nullius notion which
was embedded in the common law of Australia had to be overturned. By overturning it, it would
4
Keon-Cohen B. From Euphoria to Extinguishment to Co-Existence.
James Cook UL Rev.. 2017;23:9.
5
Mundine NW. Mabo-25 years on. James Cook UL Rev.. 2017;23:41.
6
Sanders W. Mabo and Native Title: Origins and institutional
implications. Canberra, ACT: Centre for Aboriginal Economic Policy Research,
Research School of Social Sciences, College of Arts & Social Sciences, The
Australian National University; 2018 Jul 24.

CONSTITUTIONAL LAW
instead be put to rights and not a common law. The terra nullius had been in existence since the
case and council decision of Cooper vs Stuart of 18897.
The Mabo vs Queensland case was a brought to action as a test case. The test was to
determine whether the legal right of Meriam people allowed them to own land on the islands of
Mer, Dauar, and Water. All these islands were found on the Torres Strait.
Tracing the case through history, the Meriam people had lived on the land for years
before the contact made with the British. They had engaged in subsistence economic activities
that included fishing and agriculture. During the pre-colonial era land was owned by an
individual or groups until the coming of the white man. The colonial masters enacted the
Queensland coast islands declaratory act of 1985, which declared that when the islands were
merged the title of land ownership was vested to the state of Queensland and not to individuals
like it were before. The land was, therefore, free from all other rights, interest, and claims
whatsoever. The plaintiff led by Mabo seeks a declaration that the land was owned by the people
and they were entitled to own it. They argued for a possessory title by reason and long
possession. The Queensland government put up a strong defense of the argument too. They
argued that the government also is known as the crown acquired ownership through absolute
beneficial ownership. All the land under the territory of the colony was under the law of
England. The settled law of England recommended that what was previously owned by the
settled colony had to automatically change ownership to the Queensland.
The cases of Mabo vs Queensland share a lot of similarities with Kartinyeri vs
Commonwealth case of 1998. Just like the Mabo case was about the Island, in this case too, the
contention was about a physical bridge8. The case was influenced by a group of Ngarrindjeri
7
Crawford C. Can the international human rights framework improve
the rights of Indigenous Australians?. NEW: Emerging scholars in Australian
Indigenous Studies. 2018 Feb 6;2(1):62-7
8
McNeil K. 19. Indigenous territorial rights in the common law.
Comparative Property Law: Global Perspectives. 2017 Jan 27:412.