Mabo v Queensland (No 2)

HIGH COURT OF AUSTRALIAMason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.MABO AND OTHERS v. QUEENSLAND (No. 2)(1992) 175 CLR 13 June 1992 Aborigines—Constitutional Law—Real Property Aborigines—Native title to land—Whether extinguished by annexation by Crown—Reception of common law in Australia—Effect on native title—Terra nulius—Whether doctrine applicable in Australia. Constitutional Law (Q.)—Reception of common law in settled colony—Effect on title of indigenous people—Annexation of territory by colony—Terra nullius—Whether doctrine applicable in Australia—Power of Parliament of Qeensland to extinguish native title. Real Property—Tenures and estates—Application on settlement of New South Wales—Effect on native title—Land over which native title exists—Whether Crown land—Land Act 1962 (Q.), s. 5—"Crown land." Decisions MASON C.J. AND McHUGH J. We agree with the reasons for judgment of Brennan J. and with the declaration which he proposes. 2. In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor...