Aboriginal Land Rights are granted in Australia from the case of Mabo v Queensland.
On 3 June 1992 six of the seven High Court Judges ruled;’The Meriam people are entitled as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands’
Eddie Mabo had died of cancer in February 1992, just 4 months before this historic high court ruling that would change Australian land law. The judgement was so historic because it completely overturned the idea of terra nullius and said that native title survived in many places, even though the land had been taken by the Crown. See image 1
Mabo v Queensland (Mabo) declared that terra nullius had never legally existed and that it had been wrongfully applied to Australia. The high court said that ‘ultimate’ title existed instead, and through that, native title could be claimed. Australian land law has developed from English land law and it was under those principles that Australia was settled. At common law all land is owned by the Crown which then deals with that land as it sees fit. See image 2
In the 18th century there were three legally recognised principles that governed the taking over of new land; conquest, treaty or occupation. As Australia was an ’empty’ country neither of the first two principles applied, and so under 18th century English common law, Australia became an occupied country. This legal fiction of an empty country was directly challenged by the Mabo case.