Mabo Day is collectively celebrated on the 3rd of June each year. This significant event falls within the weeklong celebrations of Reconciliation Week. It commemorates the day that the High Court inserted the legal doctrine of native title into Australian law.
Acknowledging the claimants
In 1993, five Meriam people led the fight to overturn Australia’s legal fiction of terra nullius (land belonging to no one). They were Eddie Koiki Mabo, Reverend David Passi, Sam Passi, James Rice and one Meriam woman, Celuia Mapo Salee. Eddie Koiki Mabo was the first named plaintiff and that is why the case became known as the ‘Mabo’ Case.
The significance of the decision
The insertion of native title into Australian law signified that the High Court – through its legal and Western lens - recognised Aboriginal Peoples and Torres Strait Islander Peoples having lived in Australia for thousands of years. It also recognised that Aboriginal Peoples and Torres Strait Islander Peoples enjoyed rights to their land, according to their own laws and customs. This is something that Aboriginal Peoples and Torres Strait Islander Peoples have already known and practiced since time immemorial.
Furthermore, the Court acknowledged that Aboriginal Peoples and Torres Strait Islander Peoples had been dispossessed of their lands piece by piece and that very dispossession underwrote the development of the nation we now call ‘Australia’.
In recognising that Aboriginal Peoples and Torres Strait Islander Peoples in Australia had prior rights to land, the Court held that these rights, where they exist today, will have the protection of the Australian law until those rights are legally extinguished.
Introducing the Native Title Act
The Native Title Act was effective from 1 January 1994. In December 1993, during the passage of the Native Title Bill through parliament, the then Prime Minster said:
“.. as a nation, we take a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians. We give the Aboriginal Peoples and Torres Strait Islander Peoples of Australia, at last, the standing they are owed as the original occupants of this continent, the standing they are owed as seminal contributors to our national life and culture: as workers, soldiers, explorers, artists, sportsmen and women - as a defining element in the character of this nation - and the standing they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.”
The introduction of the Native Title Act presented the government and wider nation with an opportunity and a challenge.
The opportunity:
Recognise the relationship between Aboriginal Peoples and Torres Strait Islander Peoples and non-Indigenous Australians and acknowledge basic property rights.
The challenge:
How to respond to the land management issues and interests that arose because these new ‘property’ rights were recognised.
How would Native Title be defined and managed?
Native title is recognised as the rights and interests that are possessed under the traditional laws and customs of Aboriginal Peoples and Torres Strait Islander Peoples, and that are recognised by common law.
Native title will be subject to the general laws of Australia, including State and Territory laws that are consistent with the Act, although native title rights to hunt, fish and carry-on other activities may be exercised without the need for a licence or permit where others can carry out the activity only with a licence or permit.
Closing Remarks… 30 yrs on.
The Native Title Act stipulated that as of 1 January 1994, no action may validly be taken in relation to land that is subject to native title except in accordance with the Act.
For those who are obtain such rights, the introduction of the Act has provided an avenue for Aboriginal Peoples and Torres Strait Islander Peoples to obtain legal recognition of connection to lands and waters. Because of its introduction, Native Title lawyers, specialists and Prescribed Bodies Corporate were created to assist in navigating the complex laws and systems that that govern the Act.
While there has been progress in Native Title matters, it is not a perfect system. Many challenges for Aboriginal Peoples and Torres Strait Islander Peoples still exist in obtaining recognition of rights. There is still room for improvement, meaningful partnerships in negotiations, projects and ongoing education in relation to the impact of native title on groups around the country.