Case Summary # 1
A brief of 'Mabo v Queensland (1992)' Doctrine of 'Terra Nullius', 'Land rights', 'Native title to land'
호주 원주민들의 식민지 전 본인들의 영토에 대한 소유권을 주장하며 시작된, Terra Nullius (라틴어 직역을 하면 그 누구의 땅도 아닌, 무주지를 의미하는 국제법) 의 법리가 적용되지 않는 경우를 인정하는 판결을 내린 호주의 Landmark 케이스. 통상적으로 식민지의 통치권을 지닌 나라의 법에 입각하여 Terra Nullius에 따라 주인 없는 땅의 소유권을 주정부에 귀속시키지만 식민지 전부터 해당 영토에 거주중이던 거주자들이 해당 소송 때까지 토지에서 삶을 영위하고 있음을 근거로 하여 승소한 해당 판결문을 시작으로 관련 법규인 Native Title Act 1993 가 제정되었고 1998년 개정되었다.
1. Citation: Mabo v Queensland (1992) 175 CLR 1
2. Court/Jurisdiction: The High Court of Australia
3. Judicial Office: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
4. Catchwords:
Aborigines - Tative title to land - Native title to land - Whether extinguished by annexation by Crown - Reception of common law in Australia - Effect on native title - Terra nullius - Whether doctrine applicable in Australia
Constitutional Law (Q.) - Reception of common law in settled colony - Effect on title of indigenous people - Annexation of territory by colony - Terra nullius - Whether doctrine applicable in Australia - Power of Parliament of Queensland to extinguish native title
Real Property - Tenures and estates - Application on settlement of New South Wales - Effect on native title - Land over which native title exists - Whether Crown land - Land Act 1962 (Q), s 5 - "Crown Land"
3. Court proceeding: (Prior) Mabo v Queensland (No1) [1988] HCA 69, (1988) 166 CLR 186
'The man of
4. Summary:
The landmark case of High Court of Australia, Mabo v Queensland (1992), overturned the doctrine of Terra Nullius (land belonging to no-one) which later on changed the foundation of land law in Australia. The decision of the High Court of Australia recognised the Meriam people's traditional rights of their islands in the Eastern Torres Strait for the first time.
The plaintiff Eddie Mabo, land rights campaigner of Meriam people, sought declarations of their entitlement to the Mer Islands "as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said island." He argued that their entitlement by reason of long possession. Whereas, the defendant, the Queensland government argured that the "absolute beneficial ownership" of all and in territory is acquired to the Crown once the territory of colony became the land under the Crown's dominant control according to the law of England which was the law of Australia at that time.
It was held that the doctrine of terra nullius was not applied to such circumstances where people from the land present although the laws of England to a new land was meant to be legally enforceable based on the doctrine. Where an existing people were settled, the existing customary laws that were present at the time of settlement was not excluded by the inconsistent laws of England.
5. Decision:
Regarding 'Native title', 6:1 judges agreed that the native title is recognised by Australian common law by overturning the doctrine of terra nullius. The decision recognised the exsiting native title of all Indigenous people in Australia to their land which was taken by the Crown in 1988 on the ground that the doctrine of terra nullius did not apply where there were already injhabitants present even though they were regarded at that time as "uncivilised." Accordingly, any Indigenous land rights continued to exist in Australia.
6. Ratio Decidendi
Where an existing people were settled, the existing customary laws that were present at the time of settlement was not excluded by the inconsistent laws of England.
- Regarding 'Native title', 6:1 judges agreed that the native title is recognised by Australian common law with the rejection of terra nullius;
- the source of native title was the traditional link to the land; and
- The majority rejected the 'absolute beneiftal ownership' of all the lands of Austrliaa which was vested in the Crown upon acquisition of sovereignty; rather the Crown acquired the radical title which would be subject to native title rights where those rights had not been validly extinguished.
[Landmark Court case of land rights in Australia - SBS 'Mabo Anniversary']
* Remark
In 1993, the Parliament of Australia led by Prime Minister Paul Keating (Labor Party) enacted Native Title Act 1993 which was amended to the Native Title Amendement Act 1998. The earlier Native Title Act 1993 established National Native Title Tribunal that enabled native title determniations in the first instance, appealable to the FCA and thereafter the HCA.
/This case brief was personally summarised and paraphrased on the basis of authorised and reported case report and multiple secondary sources acquired by online research tool. If any errors or typo mistakes found, please feel free to leave a comment./
/본 포스팅은 해당 케이스의 판결문 및 관련 자료들을 토대로 지극히 주관적인 목적을 위해 쟁점 요약 및 정리 되었음을 알립니다. 정보의 오류나 잘못된 표기 등이 있다면 짚어주시면 감사하겠습니다./
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