Yesterday was Mabo Day, marking the anniversary of the historic Mabo decision. On 3 June 1992, the High Court of Australia rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement.
Eddie Koiki Mabo was the son of Robert and Poipe Sambo. Shortly after his birth, his mother died, and Eddie was adopted, by his maternal uncle, Benny Mabo, and his wife, Maiga under ‘Aislan Kustom’.
He was raised on Mer as a member of Benny Mabo’s family and, it was through his adopted parents he inherited traditional land.
Murray Islander’s, according to Eddie inherited land, as male descendants. Women inherited land only in cases where the family had no male children. A father makes it known during his lifetime his wish as to which one of his sons would be the heir to his land.
“… it was handed down from generation to generation, they knew by the boundary lines and markers. There was a certain tree, or stones, heaps of rocks, different trees. They knew exactly where the place was.”
In the extended land rights litigation that culminated in the High Court decision known as Mabo, these portions of land were claimed under customary law.
‘Whether Eddie Mabo was adopted by Benny and Maiga Mabo with the consequence that he became their heir is very much in issue in the proceedings.’
Benny Mabo died intestate; it is not uncommon for Aboriginal and Torres Strait Islander people to not make Wills, however the cultural construction of kinship including the fact that the pattern of family on which the common law and the intestacy rules are based does not fit with that of Indigenous people enabled the State of Queensland to argue Eddie Mabo was not, adopted by Benny.
Eddie had lived with his uncle informally for a number of reasons including for the purpose of claiming social security payments to which they were not entitled.
The court accepted that some Murray Islanders recognized the existence of Mabo land on the Islands, however, Eddie was not a credible witness; was not adopted as heir by Benny and Maiga, nor did Benny transfer land to him during his lifetime.
If Benny had made a Will formalising his intention to leave his land Eddie would have less trouble in establishing, his right to portions of Mabo family lands, fish traps, fringing reefs, and seas.
In the early stages of the case, the Queensland Parliament passed the Torres Strait Islands Coastal Islands Act that stated
‘Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation’.
this legislation was challenged in the High Court and the Act was found to be invalid under the Commonwealth Racial Discrimination Act 1975. In a second case, the High Court rejected the notion that Australia was terra nullius and that the Mer people had owned their land prior to the establishment of the colony of Queensland