The constant gardener
Eddie Koiki Mabo (1936 - 1992)
Ravi de Costa,
McMaster University
Eddie Mabo fought a long legal battle in Australian courts to prove title to his family's
land on the tiny island of Mer in the Torres Strait between Queensland and Papua, New
Guinea. Sadly, Eddie Mabo died just five months before his claim was vindicated. However,
when the rights of the Meriam people to the island of Mer "as against the whole world" were
recognized by the High Court of Australia in 1992, he had revolutionized land law in
Australia and shattered colonial assumptions.
Mabo's struggle had overturned the legal doctrine of terra nullius (empty land)
in Australian land law. Against considerable evidence to the contrary, early settlers and
authorities simply assumed that because Indigenous peoples were nomadic, they moved randomly
over the land without owning it. It was an assumption that underpinned a long history of
dispersal and dispossession as European interest covered the continent. Nowhere in the
Australian colonies were Indigenous rights ever acknowledged by the treaties and purchases
that characterized British colonization of North America and New Zealand.
The Mabo judgment (Mabo v. Queensland No. 2 1992) in the High Court of
Australia, overturned this doctrine. The judges found that Indigenous people may retain
"native title" — collective rights of possession and use — where they had
not been explicitly extinguished by the colonial sovereign.
This was a controversial and divisive moment in Australian political history. After the
judgment, the Commonwealth government introduced the Native Title Act (1993) in order to
formalize the procedures by which Indigenous communities could seek to have their title
restored. Subsequent legislation has significantly diluted the legal force of Native title
in Australia.
The Mabo judgment, however, marks the moment when Australian law joined the broad stream of
jurisprudence on Indigenous rights in common-law countries. It has been cited in Canadian
cases and elsewhere — a process which reinforces the possibility of global
principles for dealing with Indigenous claims for recognition and justice.