TOPIC 2 NATIVE TITLE ACTIVITY 2.1 UNDERSTANDING NATIVE TITLE Familiarise yourself with the readings in this topic and answer the following questions: 1. What were the facts of Mabo and others v Queensland? 2. What did the High Court decide in Mabo and why was it so significant? 3. What were the facts in the case of the Wik Peoples v the State of Queensland? 4. What did the Court decide in Wik and why is it so significant? FEEDBACK 1. What were the facts of Mabo and others v Queensland? Eddie Mabo was from the Meriam People in the Torres Strait. The case essentially involved a dispute regarding the Queensland Government's "right" to annex the Murray Islands as part of its state territory. The Meriam people were in occupation of the Islands for generations before the first European contact. They are a Melanesian people (perhaps an integration of differing groups) who probably came to the Murray Islands from Papua New Guinea. Their numbers have fluctuated, probably no more than 1000, no less than 400. The Queensland government exercised some de facto control in the 1870s over islands in the Torres Strait which were not part of that Colony's territory. Eddie Mabo had claimed that the islands (and by extension, Australia) were not 'terra nullius' (land belonging to no one) but in fact there had been a long history with these lands prior to European contact. Remember: Under International law, conquest, cession, and occupation of territory (that was terra nullius) were regarded as three ways of acquiring sovereignty. It was assumed by the British that Australia was therefore a "settled" colony. In the case, Queensland had argued that when the territory of a settled colony became part of the Crown's dominions, the law of England so far as applicable to colonial conditions became the law of the colony. The argument was that when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein. The doctrine of exclusive Crown ownership of all land in the Australian colonies was affirmed by Stephen J. in New South Wales v. The Commonwealth ("the Seas and Submerged Lands Case").
2 Mabo disputed this. As the Court noted: "the Queensland Government's chain of argument contains several links, each of which must be separately considered although, as we shall see, a common theme or thread runs through them. Some of these links are unchallenged. We start with the proposition that the Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879 and that the laws of Queensland (including the common law) became the law of the Murray Islands on that day - or, if it be necessary to rely on the Colonial Boundaries Act 1895, is deemed to have become the law of the Murray Islands on that day. Next, by the common law, the Crown acquired a radical or ultimate title to the Murray Islands. The plaintiffs accept these propositions but challenge the