Mabo Plaintiffs and witness with their Lawyer

Lecture theatre 102

Mabo Plaintiffs and witness with their Lawyer, Supreme Court of Queensland
Mabo Plaintiffs and witness with their Lawyer, Supreme Court of Queensland, May 1989. L to R: Father Dave Passi, Eddie Koiki Mabo, Bonita Mabo, Bryan Keon-Cohen, James Rice, Eddie Mabo Jnr & Henry Kabere.

This image depicts the plaintiffs in the case of Mabo v Queensland (No 2) (1992) 175 CLR 1 in 1989, at the Supreme Court in Brisbane with barrister Bryan Keon-Cohen and some of their supporters. Mabo v Qld [No. 2] was decided by the High Court in 1992. The decision remains one of the most significant and complex cases in Australian legal history. The High Court’s decision favoured the plaintiffs: a group of Indigenous Meriam Islanders who asserted possessory, proprietary and beneficial ownership rights over their traditional lands on Murray Island in the Torres Strait. They claimed that the basis of these rights was a form of title that found its source in Meriam law, which predated British colonisation and survived the imposition of Crown sovereignty.

Edward Koiki Mabo was central to the success of the case, as were his co-plaintiffs James Rice and David Passi, his wife Bonita Mabo, and early co-claimants Sam Passi and Celuia Mapo Salee. The result was considered a victory with significant political potential. The legal team was led by Ron Castan QC, with Keon-Cohen as junior counsel, instructed by solicitor Greg McIntyre. Together, the plaintiffs and their legal representatives constructed a set of claims which raised a set of legal questions that required the common law in Australia to challenge its own historical narratives. Some of these questions are yet to be fully resolved.

The reasoning in the decision generated the Australian common law doctrine of native title, which has since been written into statute. Native Title uses common law authority to recognise and protect some rights in relation to Crown land or waters arising under traditional Aboriginal or Torres Strait Islander laws and customs. Recognition of native title enables access for the maintenance of laws and customs and the exercise of usufructuary-type rights, but often falls short of full beneficial ownership. Further, native title is fragile and vulnerable to extinguishment. Both the Native Title Act 1993 (Cth) and the Mabo [No. 2] decision engage with Aboriginal and Torres Strait Islander law as a matter of fact, without effective legal authority other than as the basis for the rights to be recognised as native title. The doctrine reserves territorial jurisdiction and sovereign power to the Australian state.

Yet, in Mabo [No. 2], the Australian common law acknowledged both the existence of Aboriginal and Torres Strait Islander laws at first contact and their continuance. The High Court admitted that, in the Australian context, the application of the doctrine of terra nullius was a purposive legal fiction that was used to legitimate the Crown’s assertion of sovereignty over the territory that came to be known as Australia. Despite this revision, the court was explicit: ‘…the acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.’ Problems of sovereignty and jurisdiction need to be addressed in treaty negotiations between elected Australian governments and First Nations peoples.

Edward Koiki Mabo passed away four months before the judgment was handed down, yet the decision and Mabo Day on 3 June both carry his name. The political circumstances and consequences of the decision are incredibly complex. Since 3 June 1992, many First Nations have had native title recognized over parts of their country. This recognition is meaningful and important in political, cultural, social and legal terms. There are many political and legal critiques of the doctrine, the Native Title Act 1993 and its various amendment acts. Ultimately, however, the conduct and outcome of Mabo v Queensland (No 2) (1992) 175 CLR 1 unsettled the founding presumptions underlying Australian laws. In doing so, it opened the possibility of new and different lawful relations between Australian and First Nations laws and peoples.

Photo by Jim McEwan – Courtesy of Trevor Graham & Yarra Bank Films

Location of MLS Classroom Photo Murals

In lecture theatre 102 a large-scale mural of the Mabo decision is installed. The image Mabo Plaintiffs and witness with their Lawyer, Supreme Court of Queensland, May 1989 depicts the plaintiffs (L to R: Father Dave Passi, Eddie Koiki Mabo, Bonita Mabo, Bryan Keon-Cohen, James Rice, Eddie Mabo Jnr & Henry Kabere.) in the case of Mabo v Queensland [No. 2] in 1989, at the Supreme Court in Brisbane with their junior counsel Bryan Keon-Cohen and some of their supporters. Mabo v Qld [No. 2] was decided by the High Court in 1992. The decision remains one of the most significant and complex cases in Australian legal history. (Image courtesy of Yarra Bank Films)