Land and sea rights

Drawing of the beach and bay from Mer, showing sailing boats and palm trees With European settlement, the colonisers claimed all land as Crown land, with the result that almost all land in Queensland was taken from its traditional owners and became either freehold land, or pastoral lease land. Some areas were set aside as reserves, missions, and settlements, including the islands of the Torres Strait. In the Torres Strait, most traditional owners remained on their lands, although there was no recognition by government of their ownership of those lands. The government controlled this land as Crown land.

Over many years, Torres Strait Islander peoples have devoted themselves to retrieving their traditional lands, and have fought hard for recognition of their land and sea rights.

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The Mabo case

In 1982, Eddie Mabo and other traditional owners from Mer (Murray Island) commenced litigation to claim traditional title to Mer and associated islands and reefs. In an attempt to thwart this claim, the Queensland Bjelke-Petersen Government passed the Queensland Coast Islands Declaratory Act 1985 to retrospectively extinguish any property rights owned by Eddie Mabo and other traditional owners that may have existed prior to annexation of the outer Torres Strait islands in 1897. In the 1988 decision of Mabo v Queensland (1989) 166 CLR 186, the High Court struck down the Queensland Act as inconsistent with the Commonwealth Racial Discrimination Act.

Mabo (No. 2) case

In 1992, after a ten-year court battle by Eddie Mabo and other traditional land owners of Murray Island (Mer), the High Court delivered one of the most significant legal decisions in Australia's history: Mabo v Queensland (1992) 175 CLR 1, known as Mabo (No. 2). In it, the court recognised that:

  • At the time of colonial settlement of Australia, Aboriginal and Torres Strait Islander peoples had native title to their traditional lands, and that title survived Crown annexation.
  • Since 1788, much of that title had been extinguished without compensation to the original owners of that title.
  • Australian law recognises the ongoing existence of native title where Indigenous people have a connection to their land and waters through their traditional customs and laws.

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Eddie Mabo

Eddie Mabo (born Edward Koiki Sambo) was born in 1936 on Mer (Murray Island). When his mother died, he was adopted according to traditional custom by his mother's brother, Benny Mabo. The issue of customary traditional adoption would become of crucial importance to Eddie's personal claim of traditional ownership of Mer in the Mabo case.

When he was 16, Eddie was exiled from Mer by the Murray Island Council, and he worked as a deckhand on a pearling boat and then as a canecutter and railway fettler on the mainland. He settled with his wife, Bonita, in Townsville where they raised seven children of their own, and three from their extended family.

In Townsville, Eddie became a spokesperson for the Torres Strait Islander community and an activist. He was active in the trade union movement, the Aboriginal and Torres Strait Islanders' Advancement League, the 1967 Referendum campaign, and helped found the Townsville Aboriginal and Islander Health Service. In 1973, and he also established the Black Community School with Aboriginal friend Harry Penrith (later known as Burnam Burnam).

From 1967 to 1975, Eddie worked as a groundsman at James Cook University, where he took the opportunity to research his cultural history, and became friends with lecturers Professor Noel Loos and Henry Reynolds.

The 1981, he attended the conference Land Rights and the Future of Australian Race Relations at James Cook University, and gave a speech about land ownership and inheritance on Mer. A lawyer at the conference suggested there should be a test case to claim land rights through the court system.

The legal challenge

In 1982, five Meriam people: Eddie Mabo, Sam Passi, Father Dave Passi, James Rice, and Celuia Mapo Salee began their legal claim in the High Court of Australia for ownership of their lands. The whole process took ten years, culminating in the successful High Court decision of Mabo (No. 2).

In 1985, the Queensland Government enacted the Coast Islands Declaratory Act, which attempted to retrospectively abolish the native title rights claimed by the Meriam people.

In February 1986, Sir Harry Gibbs (Chief Justice of the High Court) referred the case to the Queensland Supreme Court to hear and determine the facts of the claim. However, the hearing was adjourned when Eddie Mabo and the other plaintiffs brought a second case to the High Court challenging the constitutional validity of the Queensland Coast Islands Declaratory Act 1985.

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High Court decisions

The High Court, in Mabo v Queensland[1988] HCA 69, 8 December 1988 (Mabo No.1) found that the Queensland Coast Islands Declaratory Act 1985 was not valid according to section 10 of the federal Racial Discrimination Act 1975 (the RDA). Mabo (No.1) meant that the plaintiffs' claim could continue. John Koowarta's earlier race discrimination complaint in relation to the purchase of a pastoral lease validated the Racial Discrimination Act, and paved the way for the Mabocase.

Hearings resumed in the Queensland Supreme Court, and sittings took place on Mer as well as the mainland, and in November 1990, Justice Moynihan of the Supreme Court handed down his determination of the facts. In it, Justice Moynihan did not accept that Eddie had been adopted by Benny Mabo, or that he inherited any of the lands belonging to him, or had any rights to the areas which were the subject of his claim.

Eddie Mabo was shattered by Justice Moynihan's finding, but was determined to proceed with the case into the final hearing of the full High Court.

Aerial view of the island of MerSix of the seven High Court judges upheld the claim and ruled that the lands of this continent were not terra nullius or land belonging to no-one when European settlement occurred, and that the Meriam people are entitled … to possession, occupation, use and enjoyment of the lands of the Murray Islands. The decision in Mabo v Queensland (No. 2) of 3 June 1992 inserted the legal doctrine of native title into Australian law. The High Court recognised the fact that Indigenous peoples had lived in Australia for thousands of years and enjoyed rights to their land, according to their own laws and customs.

Eddie Mabo did not live to see the result of his claim, and died on 21 January 1992.

At his funeral Eddie Mabo's legal counsel, Bryan Keon-Cohen QC, said:

The most significant point to make is that without Eddie, the case would probably never have begun … [He] was truly inspirational. [and] triggered a very long legal saga that changed the lives of many people. Above all I remember his deep commitment to correcting historical wrongs, some very personal, and to achieving recognition of traditional land rights of his family and his people. He was in the best sense a fighter for equal rights, a rebel, a free-thinker, a restless spirit, a reformer who saw far into the future and into the past.

The third of June each year, the anniversary of the decision in Mabo (No. 2), is celebrated as Mabo Day.

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Native title following the Mabo decision

Following the Mabo No 2 decision, the Commonwealth passed the Native Title Act in 1993, which established a framework for the protection and recognition of native title.

Native title can include the right to access an area of land, or the right to participate in decisions concerning how the land or waters are used by other people. Native title may also vary according to the rights of other people, and may exist alongside other rights (called co-existence).

Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.

In Queensland, many native title claims have been heard and determined. Appendix 3 lists successful native title claims in the Torres Strait.

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Sea rights

Torres Strait Islander people view land and sea as a continuum, and are, traditionally, seafaring people, skilled navigators, fishers, and hunters.

Reefs, lagoons, and the sea are fundamental to their identity, livelihood, and economic prosperity. They maintain cultural exchange practices, ceremonial feasting and rites of passage, while small boat fisheries are a source of revenue for Islanders.

The sustainable commercial exploitation of marine resources is crucial for employment and economic development of the region. Sharing regional responsibility for the management of fisheries is therefore a primary cultural, as well as an economic goal of Torres Strait Islander people.

The Island Coordinating Council has advocated for increased Islander participation and control over the marine resources of the region, while the Torres Strait Regional Authority has advocated for an Islander jurisdiction for marine resources, and for environmental management as fundamental to regional autonomy.

Two High Court decisions — Yarmirr and Akiba — have examined sea rights. In Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr), the High Court held that native title interests could be recognised and enforced within the territorial sea, provided the claimed rights and interests were not inconsistent with fundamental common law and international principles.

In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209 (Akiba), the High Court found that native title rights and interests could comprise a right to access and take resources for any purpose in the native title claim area, and that the right could be exercised for commercial or non-commercial purposes. State and federal legislation that prohibits commercial fishing without a license does not extinguish the native title right of Torres Strait Islanders to fish, for commercial or other purposes, in defined areas of water. Native title holders, nevertheless, need to comply with common law and all international, federal, and state laws governing license requirements for commercial fishing in the Torres Strait.

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