Eddie Mabo and Legal Doctrine

 Global White and the Mabo Case

I recognise Indigenous custom and inheritance of the land. 
I recognise the British Crown has no legal sovereignty over the lands and islands of Australia. 

Australian culture presents as friendly, fair and free, yet this quickly dissipates when inspecting Australia’s historical and current treatment of its non-white citizens, in particular the Indigenous peoples. A shocking lack of international attention is paid to Australia’s blatantly racist governmental policies which have very slowly been forced to change. Necessary social change may take place more quickly but it depends upon both formal education through schooling and informal education through the media. The Mabo Case ended terra nullius with the recognition of Indigenous knowledge and negated the sovereignty of the British Crown. This essay attempts to examine and identify Indigenous knowledge through academic processes. However sovereignty is not the most important topic facing all Australians.

Cultural Values

The British illegally laid claim to New Holland based on the inaccurate application of terra nullius: a land without a system of law (Taylor, 2021). Fuelled by the Industrial Revolution and their exploding global superiority, these ‘boat people’ may have simply been blind to the intricately complex lives before them, but this did not stop whites engaging in forced native relocation and disinheriting native children of family and culture (Korff, 2021). The gulf in cultural values between Indigenous and British peoples is extraordinary: belonging to place vs profitable development of resources; moiety, kinship and totems vs legacy, power and entitlement; integrated parts in a whole vs independent individuality; and, respect for the universe vs global domination (Indigenous corporate Training 2016; Mead 2002). Creating a dialogue between these two disparate cultures requires a critical mutual concern. A core driver of British cultural values and superior worldview came from the 1493 Doctrine of Discovery, which is still used today to deny First Nations rights in their own lands (Aboriginal Legal Service, 2010).

Ending White Australia

Beginning in the 1960s, cultural change was apparent: 1964 saw the option of voting  for Indigenous peoples but it was not until 1983 that voting became compulsory as citizens (National Museum Australia 2021); in the 1967 referendum, 90.77% of Australian citizens voted against White Australia policies to include Indigenous peoples in the census (Parliament of Australia 2017). This eventually lead to Indigenous peoples having the right to vote in elections and to self-manage. By the 1970s, legal progress had been made with the Racial Discrimination Act 1975 (RDA), writing respect into law. This Act was a pivotal success in human rights as it was also in direct opposition to White Australia policies and crucial to Mabo’s case against the Queensland government, yet the Australian constitution still does not recognise Aboriginals and Torres Strait Islanders (Australian Human Rights Commission, 2021). The RDA has proven pivotal in stalling or completely nullifying some governmental activities on the grounds of racism. The RDA also protected the interests of the most important case in Australia’s history: Mabo.


Edward ‘Eddie’ Koike Mabo was born and grew up on Mer Island in the Torres Strait with his tribe. He was taught according to generations of tradition, gaining all the know-how of their place, and would inherit this land according to tribal law (Bourke et al., 1994 p. 54). However, White Australia policies denied Indigenous culture, Indigenous identity, and even denied Mabo and his family’s right to return home (Bourke et al. p. 60). Mabo Case set precedent:

  • Recognition of traditional owner land rights
  • Ended the myth of terra nullius
  • Validated traditional custom and law
  • the Doctrine of Discovery

The Mabo Case directly resulted in the Native Title Act 1993 (NTA) allowing for Indigenous peoples to try reclaiming their traditional lands (AIATSIS n.d.).

Dissipating Dreams

Indigenous cultural tradition is based within the Dreaming which inexorably ties tribes and their ancestral lands into one functioning whole (Flood, 2006). While the High Court of Australia recognised traditional inheritance, NTA does not provide for reparations, nor for recovery of lands for traditional owners and it does not prevent more land being allocated for development purposes through mining or pastoral leases: the impact on policy reality was and is limited (Korff 23 August 2021). The Wik decisions in 1996 ended exclusive possession of pastoral leases yet the Native Title Amendment Act 1998 weakened NTA. There is still no active mechanism either in law or the political drive to replace the connection of people with their lands, and claiming native title is a lengthy and expensive process. The current state of policy in Australia still does not actively support reunification of native peoples with their lands, yet critical environmental concerns may require fundamental policy change in their favour.

Oil and Water Mix

The Industrial Revolution powered Britain to global dominance over Australia but one point in a long list of conquests; oil has been doing the same for American consumerism, again with Australia as one of many conquests. The salient effect of global dominance is climate change threatening extinction to homo sapiens with many other species already gone (Axelsen et al. 2013). The Mabo Case is relevant here: the fundamental concept of belonging to the land, rather than exploiting it, automatically focusses our perceptions on how to manage that land in perpetuity. If we are to reclaim this planet as a sustainable home, we must re-wild the places, and the best people to ask are those who have intimate know-how of the land. It is ironic that those who were denied sovereignty of their native lands, and denied citizenship in the nation built on their lands, are now a source of hope for those who do not lawfully have sovereignty and are still destroying the land. 

The High Court of Australia recognised the legal rights of First Nations peoples to their lands, laws and customs. The parliament of Australia passed into law the RDA and NTA formalising the illegality of the Doctrine of Discovery and terra nullius. However, Indigenous peoples must prove, in non-Indigenous terms, exactly their connection with country — a concept unfathomable to whites. Aboriginal peoples are at great disadvantage without their lands and homes which are still being handed out by white Australia to globalised corporations. Mabo fought for and won traditional customs recognition, but legal doctrine of Australia is blind to its own rulings.


Aboriginal Legal Service of Western Australia Limited 19 November 2010, The Doctrine of Discovery, presented by Solonec, T, viewed 27 December 2020, <https://www.als.org.au/the-doctrine-of-discovery/&gt;.

Australian Institute of Aboriginal and Torres Strait Islander Studies n.d., The Mabo Case, viewed 27 December 2021, <https://aiatsis.gov.au/explore/mabo-case&gt;.

Axelsen, J Roll, U Stone, L & Solow, A 2013, Species-area relationships always overestimate extinction rates from habitat loss: Comment. Ecology, 94(3), 761-763, viewed March 22, 2021, <http://www.jstor.org/stable/23436278&gt;.

Australian Human Rights Commission n.d., Constitutional Reform: Fact Sheet – Recognising Aboriginal and Torres Strait Islander People in the Constitution, viewed 21/3/2021, <https://humanrights.gov.au/our-work/constitutional-reform-fact-sheet-recognising-aboriginal-torres-strait-islander-people&gt;.

Bourke, C & Cox, H, rev. ed. 2019, Two Laws: One Land. Aboriginal Australia. Ed.: Bourke, C., Bourke, E., & Edwards, B. University of Queensland Press,

Federal Register of Legislation, Registered 29 June 2017, Native Title Act 1993, viewed 17/03/2021. https://www.legislation.gov.au/Details/C2017C00178.

Federal Register of Legislation, Registered 1 January 2013, Racial Discrimination Act 1975, viewed 19/03/2021, <https://www.legislation.gov.au/Details/C2014C00014&gt;.

Flood, J. 2006, The Original Australians: Story of the Aboriginal People, Allen & Unwin, Sydney, pp 137-139.

Indigenous Corporate Training Incorporated, 26 January 2016, Indigenous Peoples Worldviews vs Western Worldviews, Indigenous Corporate Training Incorporated, viewed 3 October 2021, <https://www.ictinc.ca/blog/indigenous-peoples-worldviews-vs-western-worldviews&gt;.

Korff, J 7 February 2021,  Stolen Generations – Effects and Consequences. Creative Spirits, viewed 22/3/2021, <https://www.creativespirits.info/aboriginalculture/politics/stolen-generations/stolen-generations-effects-and-consequences&gt;.

Korff, J 23 August 2021, Native Title Issues and Problems, Creative Spirits, viewed 27 December 2021, <https://www.creativespirits.info/aboriginalculture/land/native-title-issues-problems&gt;.

Mead, A 2002, Six differences between Aboriginal and western worldviews, viewed 27 December 2021, <http://www.donpugh.com/Psych%20Interests/ABORIGINES/SIX%20DIFFERENCES%20BETWEEN%20ABORIGINAL%20and%20%60WESTERN’%20WORLD%20VIEWS-,.pdf>.

National Museum Australia 14 July 2021, Indigenous Australian’s Right to Vote, viewed 27 December 2021, <https://www.nma.gov.au/defining-moments/resources/indigenous-australians-right-to-vote&gt;.

National Museum Australia n.d., Mabo decision, viewed 17/3/2021,


National Museum Australia n.d., White Australia policy, viewed 21/3/2021, <https://www.nma.gov.au/defining-moments/resources/white-australia-policy&gt;.

Parliament of Australia 27 May 2017, The 1967 Referendum, Thomas, M, viewed 27 December 2021, <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/May/The_1967_Referendum&gt;.

Taylor, G n.d., Sovereign Union – First Nations Asserting Sovereignty. When and how did Britain claim Sovereignty over Australia? viewed 17/3/2021, <http://nationalunitygovernment.org/content/when-and-how-did-britain-claim-sovereignty-over-australia&gt;.