Reflecting on 25 years since Mabo

28 November 2017
Sir Anthony Mason reflects on his involvement in the Mabo decision

On 3 June 2017 Australia marked 25 years since the historic Mabo decision [Mabo and others v Queensland (no 2) (1992)], which ended the doctrine of terra nullius.

25 years since Mabo

Three Sydney Law School alumni were members of the High Court of Australia which made this decision: Sir William Deane AC, KBE, QC; Mary Gaudron QC (first female Justice of the High Court of Australia); and Sir Anthony Mason AC, KBE, QC, who was Chief Justice at the time.

Sir Anthony Mason AC reflects on his involvement in the Mabo decision.

In your opinion, how significant was the decision?

The Mabo decision was extremely significant because it recognised that Indigenous peoples had limited rights in the unoccupied waste lands of the Crown, subject to certain conditions. The rights are limited in that they cannot be alienated except by surrender to the Crown. The rights are also vulnerable because they can be extinguished by the making of inconsistent grants of interests in land or by allocating land for public purposes. The Mabo decision overturned the previous learning based on the Privy Council decision of Cooper v Stuart in the 1880s. It had proceeded on the footing that Australia was practically unoccupied at the time of settlement, a consequence of which was that the Crown became the sole and absolute owner of Australian lands, to the detriment of the Indigenous peoples who had previously enjoyed the use of their lands.

Although Mabo was not a constitutional case, its significance is greater than many constitutional cases because it spelled out important legal consequences of the Australian settlement and recognised in a limited way the historic connection between Indigenous peoples and their traditional lands.

How would you describe the political, social and cultural climate at the time?

The decision generated very strong criticism from mining and pastoral groups, which saw the decision as a threat to their interests. This strong criticism proceeded in part from a lack of understanding of what Mabo actually decided. But it proceeded also on the basis that the decision that Indigenous peoples had traditional rights in land whereas before it was understood that they had no rights at all.

Another wave of criticism arose when the High Court subsequently decided in Wik v Queensland that a so-called pastoral lease did not extinguish native title because the so-called lease did not grant exclusive possession to the landholder.

How has Australia’s legal landscape changed in the last 25 years?

There have been major changes. The Native Title Act 1993 (Cth) gave statutory backing to Mabo and set up the Native Title Tribunal to determine Indigenous claims. On a wider front, the last two decades have seen the rise of major nation-wide law firms – more recently most of these firms have merged or formed alliances with leading international law firms.

In the same period, community legal centres have expanded in number and in work, along with public advocacy groups and activist organisations. In the last 25 years technical and electronic advances have led to vast changes in the nature of legal practice and to the outsourcing of legal work to other jurisdictions.

Substantial reforms to court procedures, including provision for mediation, have become a major factor in the settlement of cases and case management.