...The decision affects the whole of Australia...
Although the formal declaration of the Court is limited to the land specified in the plaintiff's claims, the comments of the judges regarding the recognition of native title are applicable to Australia as a whole. As Justice Toohey states:
'While this case concerns the Meriam people, the legal issues fall to be determined according to fundamental principles of the common law and colonial administrative law applicable throughout Australia ...no basic distinction need be made, for the purposes of determining what interests exist in ancestral lands of indigenous peoples of Australia, between the Meriam people and those who occupied and occupy the Australian mainland. The relevant principles are the same.'(1992) 175 CLR 1 at 179.
Similarly, Justice Brennan comments that 'there may be other areas of Australia where native title has not been extinguished and where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title.' (1992)175 CLR 1 at 69.
The application of the decision to mainland Australia has been explicitly recognised in subsequent judgments. Note, for example, the following comments of Kirby P (as he then was) in the case of Mason v Tritton which came before the NSW Court of Criminal Appeal in 1994:
'If there existed any lingering doubt as to the applicability of the principles enunciated in Mabo to mainland Australia, that doubt is, as a matter of practicality, dispelled by the statement of Mason CJ in Coe v The Commonwealth (1993) 118 ALR 193. In the context of an application to strike out a statement of claim, his Honour said (at 200): 'Mabo [No.2] recognised that land in the Murray Islands was held by means of native title under the paramountcy of the Crown. The principles of law which led to that result apply to the Australian mainland as the judgments made clear.' Mason v Tritton (1994) 34 NSWLR 572 at 578-579.
As a result, the judgment opened up the possibility that Aboriginal and Islander peoples from other parts of Australia might also possess native title rights to their traditional lands. This necessarily meant the development of a system capable of responding to the claims to native title. The Federal Government decided that a legislative framework was needed and that the most appropriate course was to establish a specialist Tribunal to deal with such claims. The Native Title Act, which established the National Native Title Tribunal, came into effect on 1 January 1994.
Clearly, the High Court's recognition of native title has had profound implications in the area of Australian property law. But its legal ramifications have extended beyond property law and into other areas such as intellectual property and criminal law.
Keywords: Australian Court Case, Brennan, Chief Justice Gerard, Federal Government, Australia, High Court judgement, Isabel Coe v The Commonwealth, Mabo judgement, Mabo v Queensland No.2, Mason v Tritton, 1994, Meriam Mer, native title, Native Title Act (1993), plaintiffs, Toohey, Justice , 1992
Author: Kenna, Jonathan