The Mabo Litigation: From Individual Claims to Communal Rights

This article analyses procedural aspects of the decade-long Mabo litigation, 1982–92. The individual claims made by the five original plaintiffs to, in total, 46 identified areas of land and sea; the results of those claims; and the plaintiffs’ various roles at the trial of facts are outlined. Eddie Mabo’s leadership and rejection by the trial judge; how two plaintiffs — the Passi brothers — withdrew with one returning; and three plaintiffs dying before final judgment, are mentioned. Unusual procedural steps initiated by the High Court in May 1991 — after nine years of litigation — are then examined. Following some judges’ suggestions during final oral argument, the plaintiffs’ counsel drafted, overnight, and submitted an application to amend the statement of claim. Hitherto pleaded (including at the trial of facts) as a representative action by each plaintiff, on behalf of their respective family groups, the plaintiffs now sought to significantly amend to plead one communal claim to the whole of the three Murray Islands. The Court adjourned without ruling on this very late application. Its final declaration spoke only of ‘the Meriam people’ enjoying native title to Murray Island. Extensive citations, transcript extracts, and extracts from the Further Amended Statement of Claim are included.