Three plaintiffs - Mabo, Pass and Rice - sought declarations as to their entitlement and that of the Meriam people as a whole to land known.as the Murray Islands in the Torres Strait. The plaintiffs alleged that the Meriam people had, since time immemorial, inhabited and exclusively possessed the Islands.

They alleged that, upon the annexation by the Crown of the islands on 1 August 1879, the land became part of the colony of Queensland, but that the Crown's sovereignty was subject to the land rights of the Meriam people based on local custom and traditional native title.

Six of the seven members of the High Court (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) agreed that the common law of Australia recognizes a form of native title which, where it has not been extinguished, reflects the entitlement of the indigenous inhabitants to their traditional lands in accordance with their laws and customs.

The majority accepted that when the Murray Islands were annexed in 1879 the radical or ultimate title vested in the Crown; this ownership of the Murray Islands was, however, qualified and reduced by the communal native title of the Murray Islanders. Dawson J in dissent concluded that on annexation the vesting of the radical title in the Crown was incompatible with the continued existence in precisely the same form of any preexisting rights; in his Honour's view, native title was thereafter a form of permissive occupancy at the will of the Crown. The Court declared that the Meriam people were entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands, excluding some land subject to particular Crown leases.

The decision of the Court to recognise the existence of native title has significant implications in other parts of Australia. While the claim of the Meriam people in the Mabo case was strong in the sense that they had shown an effective system of title which saw individual lots of land handed down from one generation to the next, and cultivation of these lots by families and individuals, there is nothing in the decision which would preclude the recognition of native title in mainland Aboriginal tribes where the indigenous inhabitants have traditionally maintained more nomadic lifestyles. Such native title can be extinguished by legislation, or by an appropriation by the Crown which is inconsistent with the continuing right to enjoy native title, such as appropriation for uses such as roads, railways, and other permanent public works. The majority of the Court (Deane, Gaudron and Toohey JJ dissenting) found that in the event that native title had been extinguished, no entitlement to compensation would arise.

Linda Pearson Macquarie University Sydney, Native Title Recognized By High Court, Case Notes

http://www5.austlii.edu.au/au/journals/AUEnvLawNews/1992/70.pdf