Case summary
What did Mabo v Queensland (No 2) decide?
Mabo v Queensland (No 2) (1992) 175 CLR 1 is the High Court of Australia decision that recognised native title in Australian common law. The court held (6:1) that Indigenous Australians who have maintained a continuous connection with their land under traditional laws and customs hold a form of title that the common law recognises. The decision rejected the application of terra nullius to Australia and reshaped the legal relationship between the Crown, the common law, and First Nations peoples.
Last updated 12 April 2026. Written by the CaseSharp team in Sydney. This is research guidance, not legal advice.
Short answer
The High Court held that the common law of Australia recognises a form of native title. Where Indigenous Australians have maintained a continuous connection with their land under their traditional laws and customs, that title survives the Crown's acquisition of sovereignty. The doctrine of terra nullius, as applied to deny any pre-existing rights to Aboriginal and Torres Strait Islander peoples, was rejected. Native title can be extinguished by valid acts of the Crown that are inconsistent with the continued existence of native title rights, but it is not automatically extinguished by the mere assertion of sovereignty.
AGLC4 citation
Mabo v Queensland (No 2) (1992) 175 CLR 1
The case is reported in the Commonwealth Law Reports (CLR) at volume 175, page 1. It is also reported at (1992) 107 ALR 1 and [1992] HCA 23. Under AGLC4, the CLR is the preferred report series for High Court decisions. CaseSharp generates AGLC4 citations automatically for every authority in the corpus.
Background and facts
Eddie Koiki Mabo and four other Meriam people of the Murray Islands (Mer) in the Torres Strait brought an action against the State of Queensland. They claimed that the Meriam people held native title to the Murray Islands, which they had occupied according to their own laws and customs since before British sovereignty in 1879.
Queensland passed the Queensland Coast Islands Declaratory Act 1985 (Qld) during the proceedings, attempting to extinguish any native title that might exist. The High Court struck down that Act in Mabo v Queensland [1988] HCA 69 (commonly called Mabo No 1) as inconsistent with the Racial Discrimination Act 1975 (Cth).
The substantive question then returned to the High Court: does the common law of Australia recognise a form of native title, and if so, do the Meriam people hold it?
Issues before the court
- Does the common law of Australia recognise native title rights held by Indigenous Australians?
- Was Australia correctly classified as terra nullius at the time of British settlement?
- If native title exists, what is required for it to be established?
- Can native title be extinguished, and if so, how?
- Do the Meriam people hold native title to the Murray Islands?
The ratio
The majority (Brennan J, with Mason CJ, McHugh J, Deane and Gaudron JJ, and Toohey J each writing separate concurring reasons) held:
- The common law of Australia recognises a form of native title that reflects the entitlement of Indigenous inhabitants to their traditional lands, in accordance with their laws and customs.
- The doctrine of terra nullius, as applied to deny any pre-existing Indigenous rights to land, was rejected. Australia was not a "settled" colony devoid of a system of law. Aboriginal and Torres Strait Islander peoples had their own laws and customs that governed their relationship with the land.
- Native title arises from the traditional laws and customs of the relevant Indigenous group. Its content is determined by those laws and customs, not by the common law.
- Native title can be extinguished by a valid exercise of sovereign power that is inconsistent with the continued existence of native title. The grant of a fee simple estate extinguishes native title. However, the mere assertion of sovereignty does not, by itself, extinguish native title.
- The Meriam people held native title to the Murray Islands because they had maintained a continuous connection with the land under their traditional laws and customs.
Dawson J dissented. His Honour held that sovereignty carried with it the full beneficial ownership of all land and that native title was not recognised by the common law.
Key passages
“The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterising the indigenous inhabitants of the Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”
“Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.”
“The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.”
Why Mabo (No 2) matters
Mabo (No 2) is the foundational authority for native title in Australian law. It overturned the legal fiction that Australia was uninhabited at the time of British settlement and created a new category of property right that the common law had not previously recognised in this country.
The decision led directly to the enactment of the Native Title Act 1993 (Cth), which established the statutory framework for native title claims, created the National Native Title Tribunal, and set out the future act regime governing how government actions can affect native title rights.
Subsequent High Court decisions have built on and refined the principles from Mabo (No 2). The most significant include:
- Wik Peoples v Queensland (1996) 187 CLR 1, which held that pastoral leases do not necessarily extinguish native title.
- Western Australia v Ward (2002) 213 CLR 1, which clarified the extinguishment framework and the content of native title rights.
- Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, which set the standard for proving continuous connection to traditional laws and customs.
- Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, which addressed the relationship between native title and statutory Aboriginal land rights.
Treatment status
Mabo (No 2) has not been overruled. It remains the foundational authority for native title in Australia. Later decisions have refined the principles (particularly the tests for continuous connection and extinguishment) but have not departed from the core holdings.
To verify whether a case is still good law and trace how later courts have treated it, see the good-law check guide. CaseSharp's treatment classification shows you at a glance how a case has been applied, distinguished, or overruled by later courts.
IRAC brief
Issue
Does the common law of Australia recognise native title rights held by Indigenous Australians, and if so, do the Meriam people hold native title to the Murray Islands?
Rule
Where Indigenous inhabitants have maintained a continuous connection with their land under their traditional laws and customs, the common law recognises a form of native title. The content of native title is determined by those traditional laws and customs, not by the common law. Native title can be extinguished by valid exercises of sovereign power inconsistent with its continued existence, but not by the mere assertion of sovereignty.
Application
The Meriam people had occupied the Murray Islands according to their own laws and customs since before British sovereignty in 1879. Evidence established that the Meriam people had a system of law governing land use, inheritance, and cultivation. The Queensland Coast Islands Declaratory Act 1985 (Qld) had been struck down in Mabo No 1. No valid grant of fee simple or other inconsistent tenure had been made over the Murray Islands. The Meriam people had maintained a continuous connection with the land.
Conclusion
The Meriam people held native title to the Murray Islands. The common law of Australia recognises native title. Terra nullius was rejected as a basis for denying the pre-existing rights of Aboriginal and Torres Strait Islander peoples.
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Frequently asked questions
- What is the AGLC4 citation for Mabo v Queensland (No 2)?
- Mabo v Queensland (No 2) (1992) 175 CLR 1. In AGLC4 format, the case name is italicised, followed by the year in round brackets, the volume number, the report series abbreviation, and the starting page number.
- What did Mabo (No 2) actually decide?
- The High Court held (6:1) that the common law of Australia recognises native title. Indigenous Australians who have maintained a continuous connection to their land under traditional laws and customs hold a form of title that survives the Crown's acquisition of sovereignty. The court rejected the doctrine of terra nullius as it had been applied to Australia.
- Is Mabo (No 2) still good law in Australia?
- Yes. Mabo (No 2) remains good law and has been applied and affirmed in subsequent High Court decisions including Wik Peoples v Queensland (1996) 187 CLR 1 and Western Australia v Ward (2002) 213 CLR 1. The Native Title Act 1993 (Cth) codified the legislative framework for native title claims following the decision.
- What was terra nullius and why did the High Court reject it?
- Terra nullius is a Latin phrase meaning "land belonging to no one". British colonial authorities treated Australia as terra nullius on the basis that Aboriginal and Torres Strait Islander peoples did not use or occupy the land in a way that European law recognised. The High Court rejected this characterisation because it was based on a discriminatory distinction between settled and conquered colonies that had no place in modern Australian law.
- What legislation followed Mabo (No 2)?
- The Native Title Act 1993 (Cth) was enacted in response to the decision. It established the framework for recognising and protecting native title, created the National Native Title Tribunal, set out the process for native title claims, and codified the future act regime that governs how government actions can affect native title rights.
Research native title on CaseSharp
CaseSharp traces how Mabo (No 2) has been applied, distinguished, and cited across every Australian jurisdiction. See treatment badges, AGLC4 citations, and paragraph-level grounding for every authority in the native title chain. Free for students and community legal centres.