Thirty years ago today, the High Court issued the Mabo decision, which overturned a 200-year-old legal fiction that had been used to deprive Australian Indigenous people of their land.
But despite its status as one of the most seismic legal decisions in Australian history, it has caused misinformation and confusion from the outset.
Indigenous activist Eddie Mabo. (Nine newspapers)
Here’s what you need to know.
Eddie Kokoi Sambo was born in 1936 on the island of Mer in Torres Strait.
He was raised by his maternal uncle, Benny Mabo, after his mother died in childbirth, and adopted his name.
He became an Indigenous activist and advocate for education, even founding some of Australia’s first schools based in Indigenous communities.
In 1982, Mabo and four other Meriams — James Rice, Celuia Mapo Salee, Sam Passi, and David Passi — filed a lawsuit over ownership of the island of Mer, then considered Crown Land.
What is Mabo’s decision?
On June 3, 1992, after years of legal struggle, the Australian High Court ruled, overturning the centennial “terra nullius” legal fiction.
Australia had been declared “terra nullius” by the British authorities in order to provide a pretext for colonization; indeed, the designation held that Australia was then an uninhabited and uninhabited land.
Prime Minister Paul Keating (center right) meets with Australian Prime Ministers to discuss Native Title Act. (Nine newspapers)
This meant that Indigenous Australians – who had lived on the mainland for up to 60,000 years and of whom the British were well aware – could not be considered under British law to have any claim to ownership of the land where they had lived. for millennia. .
The court ruling meant that Indigenous Australians could now file legal claims on land in Australia.
While the state still had the power to extinguish the indigenous title – as in the case of private property – until this happens, the right to the indigenous title is recognized.
Mabo himself died less than a year before the decision was made, but as the main plaintiff, his name remains associated with the case.
What was the legacy of the sentence?
The federal government, under Prime Minister Paul Keating, passed the Native Titles Act in 1993, which provided a framework under which native title claims could be challenged.
It has been argued that both Mabo’s decision and the Act, especially after the latter was amended by Keating’s successor, John Howard, in 1998, have not gone far enough to establish indigenous sovereignty.
Mabo Day is still celebrated in Australia. (Fairfax Media)
There are numerous obstacles to claiming the native title, including onerous burden of proof and loopholes that prevent Crown lands from pastoral leases or other uses deemed important by the government from being replaced by such claims.
And private property cannot be the subject of native title claims.
On the other hand, the decision provoked a wave of extravagant claims and fear from opponents.
Former Victorian Prime Minister Jeff Kennett has said that Indigenous Australians could claim backyards: the comments he has since acknowledged were wrong.
However, the court’s decision is widely hailed as a historic victory for indigenous rights.
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The judge who wrote the decision, Gerard Brennan, died yesterday at the age of 94 and was considered a giant of his profession, especially in the Mabo case.
Gov. David Hurley said Brennan’s legacy had “helped shape contemporary Australia”.
And June 3rd is still known as Mabo Day.
For some Australians, however, Mabo’s decision may be more familiar with the iconic film The Castle, in which the working-class Kerrigan family fights an eminent offer to confiscate domains for their home.
The unfortunate lawyer Dennis Denuto (Tiriel Mora) compares the situation of the family with the Mabo case with the immortal phrase: “It’s the atmosphere, Your Honor”.