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Clarke & Greer: Land Law Directions

Chapter 02

MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014

The case was brought by Eddie Mabo, a member of the Meriam islanders, who live on a group of islands off the north coast of Queensland. They had lived on those islands since before settlement of Australia by the British, and before the islands were annexed by the Queensland government in 1879. Eddie Mabo claimed that the property rights of the Mariam islanders survived the change in government, and that the doctrine of tenure did not mean that the Crown took a beneficial title to all the land in Australia, but only a radical title.

The case is most famous for overruling the doctrine of ‘terra nullius’ – that is that Australia was ‘empty territory’, belonging to no-one at the time the British arrived. The question then raised was whether the doctrine of tenure meant that no aboriginal rights survived the change in government.

View the case: MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014



Questions
Here are a number of questions you may like to consider about the case, in order to understand what is being said about the doctrines of tenure and estates:

  1. What is meant by the doctrine of tenure, and on what historical event is the doctrine based?
    (Look particularly at para 48. For the origins of the doctrine, look at para 49)

  2. Why is the doctrine of tenure applicable in Australia?
    (See para 49)

  3. What is the difference between a radical title and a beneficial title?
    (See paras 50 and 51)

  4. What is an estate in land? How do estates and tenures differ?
    (See para 7 of DEANE AND GAUDRON JJ’s judgment.)

  5. Were the interests of the Meriam people estates or other proprietary interests?

(See paras 52 and 53. Compare with definition of proprietary rights in National Provincial Bank v Ainsworth: Lord Wilberforce: “On any division, then, which is to be made between property rights on the one hand, and personal rights on the other hand, however broad or penumbral the separating band between these two kinds of rights may be, there can be little doubt where the wife's rights fall. Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.” ([1965] AC 1175 at 1247G – 1248A))