By a six-to-one majority,the court declared yesterday that the indigenous Meriam peoples were entitled to possession,occupation,use and enjoyment of the Murray Islands where they live in the Torres Strait but that such title could be overridden by a valid law of Queensland.
The Chief Justice,Sir Anthony Mason,and Justice McHugh,in a joint judgment,said the order of the High Court was cast in a form which would not give rise to any possible implication affecting the status of any land other than the Murray Islands.
The judgment ends 10 years of litigation mounted by the late Mr Eddie Mabo and other plaintiffs who sought native title to the Murray Islands in actions against the Queensland Government.
While the judgment will provide legal and factual issues to support Aboriginal land rights claims,the judges have chosen their words carefully and it is not a general precedent for such claims. The judgment is heavy on rhetoric,but perhaps its most important emphasis is a recognition that international law has ousted the notion that inhabited land might be classified as terra nullius (uninhabited) to override indigenous claims.
Justice Brennan said the fiction by which the rights and interests of indigenous inhabitants were treated as non-existent was justified by a policy which had no place in contemporary Australian law.