Mabo Case [No.2] and its Impact on the Australian Legal System

Running head: AUSTRALIAN LEGAL SYSTEM
Australian Legal System
Mabo Case [No.2]
Name of the Student
Name of the University

1AUSTRALIAN LEGAL SYSTEM
Table of Contents
Discussion........................................................................................................................................2
Impact of Mabo Case on the Australian Legal system....................................................................3
Shortfalls of the present legal system with respect to Native Title.................................................5
Future of Native Title......................................................................................................................6
References........................................................................................................................................8

2AUSTRALIAN LEGAL SYSTEM
Discussion
Mabo v Queensland (No 2) [1992] HCA 23
The decision given in Mabo has modified the foundation of land law in Australia by
capsizing the terra nullius doctrine, which means that the ‘land belonged to no one’. The British
claimed their possession of Australia based on the doctrine of terra nullius. The concept of native
title in the Australian Law emerged from the notion of terra nullius where the Mabo case
recognized of traditional rights of the Merriam people upon their islands that was located in the
Eastern Torres Strait (Libby and McKenna 2017).
In the Mabo case, the Court held that native title of all the indigenous people existed
before the establishment of the British Colony of New South Wales in 1978 (Gilberthorpe and
Hilson 2016). The decision of the court led to the enactment of the Native Title Act 1993 [Cth]
which stipulated the legislative framework enabling the indigenous people of Australia to seek
recognition of their native title rights (Moreton-Robinson 2015). The major five essential issues
associated with the legal precedent in the Mabo decision that recognized the rights of the
indigenous people in Australia includes:
i. application of the non-discrimination principle while enjoying the property rights;
ii. explaining the operation of sovereign title of the Crown;
iii. asserting the state’s power to oppress the native title rights;
iv. recognizing the source of rights in indigenous custom and law along with the native title;
v. reviewing the implications of the settled status of Australia;