Indigenous Australian Law

Indigenous Australian Law

The case, Mabo vs. Queensland (1992), raised concerns regarding the assertion embodying the Nature Title as an assorted concept that illustrates the miscellany of the law and traditions of Indigenous people in Australia. Based on the assertion of Justice Brennan regarding the case, native title possesses origins within and gains content by the conventional traditions observed by the Indigenous inhabitants of a territory. As such, ascertainment of the nature and incidents encompassing the native title should refer to those particular laws and traditions. Nevertheless, the protection of rights of the Indigenous people with respect to land ownership and the sovereignty of the Crown outline the conflict facing the issue of native title in Australia regarding the subject of occupancy as the essential proof underpinning the native title. As such, with respect to Justice Toohey’s judgement in Mabo, it is vital to compare the verdict with the Australian jurisprudence evidence of native title.

Overview of Mabo vs. Queensland (1992)

In Mabo vs. Queensland (1992), five indigenous islanders of Murray Island commenced a legal action against the Queensland government. The five islanders from the native tribe of the Merriam sought declaration pertaining the rights to the utilisation and gratification of traditional land, of which Merriam people inhabited constantly prior to and since the appropriation by the Queensland government (Russell, 2005). Nevertheless, the ruling of the Court, which came as a surprise to most people, predisposed on the side of the plaintiffs. The High Court ruled in favour of the islanders by asserting that Australia did not possess the status of terra nullius, which in nonprofessional’s context referred to ‘no man’s land’. Accordingly, the Court identified the Merriam tribe of Murray Island as the indigenous titleholders over their section of customary lands (High Court of Australia, 1992).

Nevertheless, the main incentive surrounding the verdict in Mabo focused on the question of sovereignty. As such, the issue at hand within the case focused on whether the Crown possessed the power to possess all lands after obtaining sovereignty or whether any other title burdened the title of Crown. As such, the Court was unprepared in questioning the position of Australia as an inhabited state. However, the Court was prepared to assess the outcomes of settlement and the manner in which the Common Law gained reception within the territory. As such, the Court recognized that the inhabitants delivered the Common Law with them in accordance with the dogma of settlement that was reasonable based on the situations of the Colony (High Court of Australia, 1992).

In establishing the substance of the body of legislation acquired in the Colony, the Court re-evaluated some of the declarations that outlined the thesis of settlement in prior cases. Specifically, the Court focused on the concept that the acquirement of sovereignty over terrain involuntarily provided favourable possession of land towards the Crown. As such, regarding the doctrine, which implied that acquisition of land ownership is impossible in the event that the respective land possesses prior ownership, the path was lucid of barriers towards the identification of Indigenous privileges and attention within colonial land. Therefore, the Court discarded the allegation that sovereignty invariably possesses the beneficial title to all territorial lands and further surmised that the pre-survival rights of the native people endured the acquirement of sovereignty.

Justice Toohey’s Position and Jurisprudence of Proof of Native Title

The main question encircling the issue of the Native Title involves determining the existence of Proof of the Native Title. Nevertheless, in understanding proof of Native Title, the justices of the case provided theories that necessarily bordered on the use of Physical Presence as evidence of Native Title and as such, a protection of the rights of inhabitants towards traditional lands. Justice Gaudron and Justice Deane delineated Native Title, with respect to Common Law, as a title obtained from and conforming to conventional tradition but identified and secured by Common Law (High Court of Australia, 1992).  Per se, Justice Brennan asserted that identification, in terms of executive and legislative definition, by the sovereign, was inadmissible. As such, Justice Brennan surmised Native Title as distinct from Common Law irrespective of its identification by Common Law.

As mentioned previously concerning Justice Brennan’s assertion, native title possesses origins within and gains content by the conventional traditions observed by the Indigenous inhabitants of a territory. Thus, in order to affirm proof of Native title, Justice Brennan, with the support of Justice Gaudron and Justice Deane clarified that a faction of native settlers should provide a connection with the relevant land, which gains sustenance through consistent acknowledgement of the decrees and the traditions of the faction (High Court of Australia, 1992). Based on this construction, the preponderance argued that it was unnecessary to overlay a rule of land rights that were inexact to those recognised by English Common Law. Furthermore, doing so would only defeat the aim of protection and acknowledgment. The relation with the land in agreement with conventional law and tradition is the title’s source. As such, Native title gained definition as sui generis since it depicted the privileges of native persons under their particular legal schema.

Consequently, the decrees and traditions acquired consideration as facts and thus, peculiar details were irrelevant in proving Native title. Justice Toohey established that it must be an evidence of an existence amounting to tenure, which is not arbitrary or accidental that forms the underpinning of the title. As such, it draws protection and as such, should gain proof in establishing title. The societal and land demands regarding the respective land should determine the nature of tenure. Thus, Justice Toohey asserted that the presence of society as an operating system qualifies solely as proof. Nevertheless, Justice Brennan did not require that the relation comprise a type of Physical Presence based on his recognition of the native people’s spiritual connection to the land, which may also constitute proof of consistent relation (High Court of Australia, 1992). Alternately, Justice Deane and Justice Gaudron acknowledged that proof of tenure would offer adequate evidence of the consistent connection to land and functioning of law and tradition.

However, both judges did not segregate Physical Presence as evidence of title and law and tradition as the title’s content. As such, it is clear that a consistent chain of occupation is unnecessary if there is recognition of association through law and tradition. Accordingly, Justice Toohey expressed that it would be unnecessary to verify an excusive connection even if it is necessary for the relationship with the land to illustrate significance (High Court of Australia, 1992). Nevertheless, in numerous regions of Australia, the non-recognition of native rights by governments propels native persons to rely on the spiritual connection with the respective land in order to affirm authority regarding the utilisation of the land, through inheritance legislation. In addition, there is no evidence of comparable experience with jurisprudence within North America, which emphasizes conventional land tenure through identification of treaties that date back to ancient contact.

Under the construction depicted by the Court in Mabo, Physical Presence does not constitute the sole deliberation or stipulation precedent to verifying title. This is evident in cases involving native persons dispossessed or evicted from their property who preserve an association in other mannerisms (Fletcher, 2003). This is different from Canadian and American Native Title Law that recognises a unique cultural entity or a structured society. In Hamlet of Baker Lake vs. Minister of Indian Affairs and Northern Development, the court required the plaintiffs to prove that they and their predecessors were affiliates of a structured society (Knafla & Westra, 2010; van Krieken, 2006). Consequently, for supporting the recognition of Native title within Common Law as a yoke on the Crown’s essential title, the association with the land should be a relationship persisting at the time of the Crown’s establishment. Justice Toohey, however, asserted that establishment of the Connection is unnecessary based on such a long term. As such, if occupancy is a verified fact at the period of annexation, then nothing more is indispensable.

The Court in Mabo recommended that Native title, as exclusive as it is, achieves proper description as proprietary, if it gains comprehension in a non-discriminatory manner. In contrast, Justice Gaudron and Justice Deane asserted that the Native Title is an individual right due to its indisputable nature. Nevertheless, both judges identified the limitations of this delineation in the context of achievement of complete exclusive tenure by the title. Furthermore, Justice Brennan provided that the individual rights derive from communal laws and traditions and are thus reliant on societal title. As such, Justice Deane and Justice Gaudron agreed that the rights of utilisation and occupation granted by Native title regarding Common Law are not erroneous.


The decision provided in Mabo vs. Queensland (1992) offered Indigenous inhabitants with a practicable legal policy that secured their rights to their property and facilitated the conservation and reinforcement of their cultural customs. It asserted that the awarding of prospect interests in property could mutually exist with the presence of Native Title. Nevertheless, the decision enacted a landmark in the protection of rights of Indigenous peoples as well as a precise and compounded study on Native Title in Australia.


Bartlett, R. H. (2004). Native title in Australia. Sydney: LexisNexis Butterworths.

Fletcher, G. (2003). Mediating native title outcomes: Understanding native title from a geospatial perspective. Perth: National Native Title Tribunal.

High Court of Australia. (1992, June 3). Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992). Retrieved from <>

Knafla, L. A., & Westra, H. J. (2010). Aboriginal title and indigenous peoples: Canada, Australia, and New Zealand. Vancouver: UBC Press.

Russell, P. H. (2005). Recognizing Aboriginal title: The Mabo case and indigenous resistance to English-settler colonialism. Toronto: University of Toronto Press.

van Krieken, R. (January 01, 2006). Law’s Autonomy in Action: Anthropology and History in Court. Social & Legal Studies, 15, 4, 574-590.


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