Mabo Misinterpreted: The Unfortunate Legacy of Legislative Distortion of Justice Brennan’s Judgment

The High Court\u27s bold decision in Mabo v Queensland [No 2] undoubtedly changed the legal landscape in Australia in very positive ways. For the first time, Australian common law acknowledged that the Indigenous peoples have land rights based on occupation of land in accordance with their traditional laws and customs. The Court denounced the racial discrimination inherent in past denial of these rights and outlined legal doctrines that could be used to resolve Indigenous land claims in present-day Australia. This led to the enactment of the Native Title Act 1993 (Cth) (NTA), by which the Commonwealth Parliament created a complex statutory regime for acknowledging and giving effect to native title. In doing so, however, I think Parliament seriously misinterpreted Justice Brennan\u27s judgment in Mabo, thereby limiting the scope of native title, facilitating its loss, and practically eliminating the potential for inherent Indigenous governmental authority over native title lands. While many aspects of the decision could be discussed, in this chapter I want to focus on this misreading of Mabo and the serious consequences that have resulted