MABO AND OTHERS v.
F.C. 92/014
Aborigines - Constitutional Law - Real Property
JUDGES
Mason C.J; Brennan; Deane; Dawson; Toohey; Gaudron; McHugh JJ.
SUBJECT
Native Title of Land
ISSUES CONSIDERED
Whether
Native Title is extinguished by annexation by an external Sovereign Nation;
Native title is supported by common law in
Terra nulius
is applicable to Native Title in
Constitutional Law supports
Annexation of territory -
Queensland Parliament power to extinguish native title.
LEGISLATION CITED
By
HEARING
DECISIONS
- By Judges
MASON C.J. AND McHUGH J:
We agree
with the reasons for judgment of Brennan J.
and with the declaration which he
proposes.
2. In the result, six
members of the Court (Dawson J. dissenting) are in agreement that the common
law of this country recognizes a form of native title which, in the cases where
it has not been extinguished, reflects the entitlement of the indigenous
inhabitants, in accordance with their laws or customs, to their traditional
lands and that, subject to the effect of some particular Crown leases, the land
entitlement of the Murray Islanders in accordance with their laws or customs is
preserved, as native title, under the law of Queensland. The main difference
between those members of the Court who constitute the majority is that, subject
to the operation of the Racial Discrimination Act 1975 (Cth), neither
of us nor Brennan J. agrees with the conclusion to be drawn from the judgments
of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and
unambiguous statutory provision to the contrary, extinguishment of native title
by the Crown by inconsistent grant is wrongful and gives rise to a claim for
compensatory damages. We note that the judgment of Dawson J. supports the
conclusion of Brennan J. and ourselves on that aspect of the case since his
Honour considers that native title, where it exists, is a form of permissive
occupancy at the will of the Crown.
3. We are authorized
to say that the other members of the Court agree with what is said in the
preceding paragraph about the outcome of the case.
4. The formal order to be made by the Court accords with the declaration proposed by Brennan J. but is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in par.2 of the formal order.
The plaintiffs are members of the Meriam people In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.
The
The people who were in occupation of these Islands before
first European contact and who have continued to occupy those
Anthropological records and research show that the
present inhabitants of the
2. The Meriam people were in occupation of the
Their numbers have fluctuated, probably no more than 1000, no less than 400.
3. Some of the features of life in the
"Communal life based on group
membership seems to have been the predominant feature of life. Many of the activities
of daily life were social activities which took
place in the context of group activities of a ceremonial or ritualistic nature.
Behaviour was regulated in the interest of the community by social pressures.
...
The people lived in groups of huts strung
along the foreshore or strand immediately behind the sandy beach. They still do
although there has been a contraction of
the villages and the huts are increasingly houses. The cultivated garden land
was and is in the higher central portion of the island. There seems however in
recent times a trend for cultivation to be in more close proximity with habitation.
The groups of houses were and are organised
in named villages.
It is far from obvious to the uninitiated,
but is patent to an islander, that one is moving from one village to another.
The area occupied by an individual village is, even having regard to the confined
area on a fairly small island which is in any event available for 'village
land', quite small.
Garden land is identified by reference to a
named locality coupled with the name of relevant individuals if further
differentiation is necessary.
The
Gardening was of the most profound
importance to the inhabitants of
Marriage and adoption involved the
provision or exchange of considerable quantity of produce. Surplus produce was
also required for the rituals associated with the various cults at least to sustain
those who engaged in them and in connection with the various activities associated
with death.
Prestige depended on gardening prowess both
in terms of the production of a sufficient surplus for the social purposes such
as those to which I have referred and to be manifest in the show gardens and
the cultivation of yams to a huge size.
Considerable ritual was associated with gardening
and gardening techniques were passed on and preserved by these rituals. Boys in
particular worked with their fathers and by observations and imitations
reinforced by the rituals and other aspects of the social fabric gardening
practices were passed on."
"It seems that before European contact
social cohesion was sought by the combined operation of a number of factors.
Children were inculcated from a very early age
with knowledge of their relationships in terms of social groupings and what was
expected of them by a constant pattern of example, imitation and repetition with
reinforcing behaviour. It was part of their environment - the way in which they
lived. ... iInitiation and other group activities reinforced these patterns. A sense
of shame was the outcome of a failure to observe. It could be reinforced by
group pressures leading to retribution.
Ultimately force might be resorted to by those
who had access to the means of exerting it. Sorcery, magic and taboo were
obviously important cohesive factors and a source of sanction."
The
findings show that Meriam society was regulated more by custom than by law.
4. Contacts with
Europeans were initially few and sporadic. There were occasional visits by
passing ships in the early 19th century. In 1834, two young British castaways
were rescued and they stayed on Mer until a ship called there 2 years later.
The ship's captain, Captain Lewis, recorded that the natives "acknowledge
no chief each family being distinct and independent of each other. Quarrels
frequently take place which, after a fight are generally followed by a speedy
reconciliation."
The London Missionary Society came to the
5. Although the Murray Islands, prior to their annexation to
Queensland in 1879, were not part of her Majesty's dominions, Imperial
and Colonial authorities were concerned for the maintenance of order in, and
the protection of the indigenous inhabitants of, those Islands and other
islands in the Western Pacific.
"Blackbirding"
was being practised and in the 1860s the
The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) Ref:(1) were enacted to stamp out blackbirding Ref:(2) and to confer on a High Commissioner's Court jurisdiction over British subjects in the islands of the Western Pacific.
However, the 1875 Act expressly disavowed "any claim or title whatsoever to dominion or sovereignty over any such islands or places" and any intention "to derogate from the rights of the tribes or people inhabiting such islands or places, or of chiefs or rulers thereof, to such sovereignty or dominion".
6. Nevertheless, it appears that the
When a proposal to
expand the maritime boundaries of
"Where any
lodgment of Islanders or others for questionable purposes had been made on the
islands beyond our jurisdiction and yet not within the limits of Polynesia, the
police have been obliged to act as though these islands did belong to
Queensland, the Police Magistrate wisely considering it a lesser evil to exceed
his authority in this matter than to allow any attempt at settlement on these
islands for improper purposes."
7. The proposal to
annex coastal islands that were not already part of
"A sort of police surveillance is even now exercised
over some of the islands outside our limits, but it is certainly desirable
that we should possess a real authority to deal with the somewhat doubtful
characters who are occasionally found to act in a very independent way. It does
not at all follow that we should form settlements. They will be frequented by
pearl-shellers, and probably eventually by more permanent settlers. They ought
to be visited occasionally by the Resident Magistrate at
8. In July 1878, as
Moynihan J. found -
"H.M.
Chester the Police Magistrate at Thursday Island ... visited
exercised, would be supported. Harry (Ari) Buzire was designated. The name
Mamoose came to be applied to the holders of such office throughout the
Straits. ...
9. The Mamoose, as
Moynihan J. found, became "something of an executive arm to the
mission".
10. Ultimately, the proposal to extend the maritime
boundaries of Queensland to include the Murray and Darnley Islands was adopted
by the Colonial Office and, on 10 October 1878 at Westminster, Queen Victoria
passed Letters Patent "for the rectification of the Maritime Boundary of the
Colony of Queensland, and for the annexation to that Colony of (certain)
Islands lying in Torres Straits, and between Australia and New Guinea".
The
11. The Letters
Patent authorized the Governor of Queensland by Proclamation -
"to declare
that, from and after a day to be therein mentioned, the said
Governor issues no such Proclamation as aforesaid until the Legislature of Our
said Colony of
to the laws in force therein. Provided also that the application of the said
laws to the said Islands may be modified either by such Proclamation as
aforesaid, or by
any law or laws to be from time to time passed by the Legislature of Our said
Colony for the government of the said Islands so annexed."
The
Queensland Legislature passed the requisite law (The Queensland Coast Islands
Act of 1879) and, on 21 July 1879 at
"that from
and after the first day of August, in the year of our Lord one thousand eight
hundred and seventy-nine, (1879) the Islands described in the Schedule
(which followed the Letters Patent and the Act) shall be annexed to and become part
of the Colony of Queensland, and shall be and become subject to the laws in
force therein."
The
"most dominant" of the purposes for which the
"(a)
command of Torres Strait and the sea lane to
(b) control of
the fishery industry in
(d) the
extension of jurisdiction to non-British subjects and the native inhabitants of
the islands;
(e) the
protection of the native inhabitants of the islands".
And, in Wacando v. The Commonwealth (3) [1981] HCA 60; (1981) 148 CLR 1, at p 10,
Gibbs C.J. noted Professor Cumbrae-Stewart's view that the occasion for the
passing of the Letters Patent was that the inhabitants of some of the islands
had no protection against violence and that the islands provided bases for
those intent on evading Queensland's revenue and immigration laws. The
acquisition of beneficial ownership of land by the Crown does not appear to
have been among the purposes of the annexation entertained by either the
12. In September
1879, Captain Pennefather on the instructions of H.M. Chester visited the
He also noted:
"The Chief
acts as magistrate, he has a staff of 10 or 12 men as policemen, they have
built a church and courthouse of which they are very proud, there is also a
very good house belonging to the London Missionary Society this island being
the headquarters for the mission in these waters."
The system of local administration, established prior to annexation, proved to be tyrannous in its operation and, in October 1882, Captain Pennefather reported that he had dismantled it. (It appears from later history, however, that Harry, the Mamoose, continued to exercise considerable authority.)
At the same time,
he reported:
"The natives
are very tenacious of their ownership of the land and the island is divided
into small properties which have been handed down from father to son from
generation to generation, they absolutely
refuse to sell their land at any price, but rent small portions to the
beche-de-mer men and others. These natives, though lazy like all Polynesians on
their islands, build good houses and cultivate
gardens, they are a powerful intelligent race and a white man is as safe
if not safer residing amongst them, as in
Moynihan
J. found that there was apparently no concept of public or general community
ownership among the people of
13. In about February
1882, the Queensland Government "reserved"
Shortly after the
Reserve was created, the
14. In 1885, the Hon. John Douglas, by then
Government Resident at Thursday Island, went to the
He successfully
negotiated the departure of the intruders.
He found Harry, "the Chief or primate of
15. In 1886, (4
year after the
"I
do not see how it will be possible to administer these islands under the
present laws of
under which the native races are to be allowed to hold the land they own.
There is no
doubt that if every acre has not a reputed owner (and I am inclined to think
every acre has) but every grove or single tree of any value has its proper and
legitimate hereditary owner.
To disturb these
rights, great care would have to be exercised and the natives recompensed for
any loss that they might suffer through deprivation."
16. By 1891 the headquarters of the London
Missionary Society had been moved from the
Later, Douglas, in a
report on a visit to the
"The
secular government is conducted by 'Harry', the recognised chief or headman who
is assisted in his administration by four officers, or 'policemen' so called.
'Harry' has a
whaleboat, presented to him by the Government, the 'policemen' man this boat.
'William' a native of
Douglas
recommended that a teacher and adviser be appointed to reside on the
17. The "system
of self-government ... as instituted by the late Hon. John Douglas,
C.M.G." was described by the Chief Protector of Aboriginals in
"The Governing body consists of the
native chief or 'mamoose', assisted and advised by the councillors or elders of
the village, with a staff of native police
to uphold his authority and to keep order among the inhabitants or visitors.
The European school teacher acts as clerk
and treasurer of the native court, assisting with suggestion or advice when requested,
but otherwise has no authority to interfere in the internal management of
affairs.
The mamoose acts as a police magistrate and
governor, with power to deal summarily with offences and breaches of local regulations,
and is directly responsible for the behaviour and cleanliness of his village to
the Government Resident
and Police Magistrate at
He may inflict punishment by fine or
imprisonment upon minor offences, but misdemeanours and serious offences must
be reserved for the bench at
The councillors attend at courthouse to
assist the mamoose with advice and, in order of seniority, may act on his
behalf during his absence. They also meet to confer monthly with the mamoose
upon any questions concerning the conduct of affairs.
The native island police, under a native
sergeant, are responsible to the mamoose for the good behaviour of the inhabitants,
etc., and may arrest and lock up offenders till
the next meeting of court. They have also to inspect and see that each
householder keeps his premises and grounds clean, and that the portion of the
public road adjacent to his residence is kept in good repair and order; also
that
the public properties (coconut-trees, fish-traps, etc.), and buildings
(court-house, lock-up, school-house, etc.) are not damaged or destroyed.
The European teacher resident upon the
island acts as clerk of the court and registrar of births, marriages, and deaths,
keeping all books and records, and also as treasurer, keeping an account and
taking charge of all collections from fines, taxes upon dogs, etc., the mamoose
having authority to expend all such collections upon public improvements,
repairs, etc."
18. It appears from
reports by Mr Bruce that, from the end of the 19th century, the Mamoose's court
entertained cases arising from disputes over land or land boundaries.
19. When an
anthropological expedition from
"Queensland has not affected native land tenure which is upheld
in the Court of the
inheritance are making themselves felt.
There is no
common land and each makes his own garden on his own land at his own
convenience."
The
"the role
of the Court was to maintain social harmony by accommodating peoples wishes as
far as possible and doing what seemed to be right in the circumstances."
Although
there was a clear insistence on exclusive
possession by the "owners" of particular blocks of land and a general
expectation that land would be passed on patrilineally, his Honour
thought that:
"The
ultimate determining factor in terms of the control and disposition of land was
simply what was acceptable in terms of social harmony and the capacity of an
individual to impose his (it seems almost (always) to have been a him)
will on the community. This was easier done if the claim had the appearance of
certain expected characteristics."
It
would not be surprising to find that land disputes in a small community were
settled by a consensus which is arrived at after consideration of a variety of
factors. Strict legal rules might have been disruptive of community life.
20. Without pausing
to enquire into the legal support for the "system of self-government" instituted by Douglas or for the
jurisdiction of the Island Court, it appears that the Meriam people came
peacefully to accept a large measure of control by Queensland authorities and
that officials of the Queensland Government became accustomed to exercise
administrative authority over the Murray Islands.
Formal
annexation had been followed by an effective exercise of administrative power
by the Government of Queensland.
21. In 1894, some doubts had arisen in the
Colonial Office as to the legality of the annexation of the islands included in
the 1879 Letters Patent to
The boundaries of the
new colony were fixed, the Colony was granted a constitution with
representative institutions and the laws of
The
doubts which arose in the Colonial Office related to the legality of
incorporating new territory into a colony with representative institutions once
the boundaries of the colony were fixed by or under Imperial legislation.
To settle these
doubts, the Colonial Boundaries Act 1895 (Imp) (5)
58 and 59 Vict c 34 was enacted.
As this Court held in
Wacando,
if the Queensland Coast Islands Act 1879 did not
suffice to effect the incorporation of the Murray Islands into Queensland
(either by its own force or by satisfying a condition bringing the Letters
Patent of 1879 into operation), the requisite
Imperial legislative authority (to lawfully
incorporation the Murray Islands into Queensland) could be found in the Colonial Boundaries Act.
22. With this brief
conspectus of the history of the
23. It may be assumed
that on 1 August 1879 the Meriam people knew nothing of the events in
Westminster and in Brisbane that effected the annexation of the Murray Islands
and their incorporation into Queensland and that, had the Meriam people been
told of the Proclamation made in Brisbane on 21 July 1879, they would not have
appreciated its significance.
The legal consequences of these events are in issue in this case.
Oversimplified,
the chief question in this case is
whether these transactions had the effect on 1 August 1879 of vesting
in the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all
land in the
The defendant submits
that that was the legal consequence of the Letters Patent and of the events
which brought them into effect.
If that submission be
right, the Queen took the land occupied by Meriam people on 1 August 1879
without their knowing of the expropriation; they were no longer entitled
without the consent of the Crown to continue to occupy the land they had
occupied for centuries past.
24.
The defendant's submission is founded on
propositions that were stated in cases arising from the acquisition of other colonial territory by the Imperial Crown.
Although there are differences which might be said to
distinguish the Murray Islands and
the Meriam people of 1879 from other colonial territories and their indigenous
inhabitants when those territories respectively became British colonies, the
propositions on which the defendant seeks to rely have been expressed to apply
universally to all colonial territories "settled" by British
subjects.
Assuming that the
Murray Islands were acquired as a "settled"
colony (for sovereignty was not acquired by the Crown either by conquest or
by cession), the validity of the
propositions in the defendant's
chain of argument cannot be
determined by reference to circumstances
unique to the Murray Islands; they are advanced as general propositions of law
applicable to all settled colonies.
Nor
can the circumstances which might be
thought to differentiate the
As we shall see, such a ground of distinction discriminates on the
basis of race or ethnic origin for it denies the capacity of some
categories of indigenous inhabitants to have any rights or interests in land.
It will be necessary to consider presently the racial
or ethnic basis of the law stated in earlier cases relating to the entitlement
of indigenous people to land in settled colonies.
25. On analysis, the defendant's argument is that,
when
the territory of a settled colony became part of the Crown's dominions, the law
of England so far as applicable to colonial conditions became the law of the
colony and, by that law, the Crown acquired the absolute beneficial ownership
of all land in the territory so that the colony became the Crown's demesne and
no right or interest in any land in the territory could thereafter be possessed
by any other person unless granted by the Crown.
Perhaps the clearest
statement of these propositions is to be found in Attorney-General v. Brown (6) (1847) 1 Legge 312, at p 316,
when the Supreme Court of New South Wales rejected a challenge to the Crown's
title to and possession of the
land in the Colony.
Stephen C.J. stated
the law to be -
"that the
waste lands of this Colony are, and ever have been, from the time of its first
settlement in 1788, in the Crown; that they are, and ever have been, from that
date (in point of legal intendment), without office found, in the Sovereign's
possession; and that, as his or her property, they have been and may now be
effectually granted to subjects of the Crown".
The
reasons for this conclusion were stated (7):
ibid., at pp 317-318
"The
They (the ‘land’? Or the ‘subjects’?- Must be ‘subjects;
because ‘they’ is a pronoun for animate objects. ‘it’ is the correct pronoun for
inanimate objects) belong, therefore, to the
British Crown.... The fact of the settlement of New South Wales in that manner,
and that it forms a portion of the Queen's Dominions, and is subject to and
governed by British laws, may be learned from public colonial records, and from
Acts of Parliament.
New South Wales
is termed in the statute 54 GEO III, c.15, and in the 59 GEO III, c.122, His Majesty's
Colony; not the colony of the people, not even the colony of the empire.
It was
maintained that this supposed property in the Crown was a fiction.
Doubtless, in
one sense, it was so.
The right of the
people of England to their property, does not in fact depend on any royal
grant, and the principle that all lands are holden mediately or immediately of
the Crown flows from the adoption of the feudal system merely (Co Lit 1, and ibid.191,
a, Mr. Butler's note 6; Bac Ab Prerog B.; Vin Ab same title K.A. 19).
That principle, however, is universal in the
law of
The Sovereign,
by that law is (as it is termed) universal occupant.
All property is
supposed to have been, originally, in him. Though this be generally a fiction, it
is one "adopted by the Constitution to answer the ends of government,
for the good of the people." (Bac Ab ubi supra, marginal note.)
But, in a
newly-discovered country, settled by British subjects, the occupancy of the
Crown with respect to the waste lands of that country, is no fiction.
If, in one
sense, those lands be the patrimony of the nation, the Sovereign is the
representative, and the executive authority of the nation, the 'moral
personality' (as Vattel calls him, Law of Nations, book 1, chap 4), by whom the
nation acts, and in whom for such purposes its power resides.
Here is a
property, (
But if the feudal
system of tenures be, as we take it to be, part of the universal law of the
parent state, on what shall it be said not to be law, in New South Wales? At the moment of its settlement the colonists
brought the common law of
So
conceiving the common law, his Honour understood a statutory reference to
"the waste lands of the Crown"
to mean "all the waste and
unoccupied lands of the colony; for, at any rate, there is no other proprietor
of such lands". (8) ibid., at p 319.
26. This judgment has
formidable support.
It was described as "notable" by Windeyer J.(9) In Wade
v. New South Wales Rutile Mining Co. Pty. Ltd. [1969] HCA 28; (1969) 121 CLR 177, at p
194 who followed its doctrine in Randwick Corporation v. Rutledge (10) [1959] HCA 63; (1959) 102 CLR 54, at p 71:
" On the first settlement of
The early Governors had express powers
under their commissions to make grants of land.
The principles of English real property
law, with socage tenure as the basis, were
introduced into the colony from the beginning - all lands of the territory
lying in the grant of the Crown, and until granted forming a royal demesne.
The colonial Act, 6 Wm IV No. 16 (1836), recited in its preamble that the
Governors by their commissions under the Great Seal had authority 'to grant and
dispose of the waste lands' – the purpose of the Act being simply to validate
grants which
had been made in the names of the Governors instead of in the name of the
Sovereign.
And when in 1847 a bold argument, which then had a political flavour, challenged
the right of the Crown, that was to say of the Home Government, to dispose of
land in the colony, it was as a legal proposition firmly and finally disposed
of by
Sir Alfred Stephen C.J.: The Attorney-General v. Brown (11) (1847) 1 Legge, at pp 317-320."
27. The doctrine of
exclusive Crown ownership of all land in the Australian colonies was again
affirmed by Stephen J. in
" That
originally the waste lands in the colonies were owned by the British Crown is
not in doubt.
Such ownership may
perhaps be regarded as springing from a prerogative right, proprietary in
nature, such as is described by Dr. Evatt in his unpublished work on the
subject ... the prerogatives of the Crown were
a part of the common law which the settlers brought with them on
settlement (R. v. Kidman, per Griffith C.J. (13)
[1915] HCA 58; (1915)
20 CLR 425, at pp 435-436);
(per Lord Watson
speaking for their Lordships in Liquidators of Maritime Bank of
On the other
hand that ownership may be described as a consequence of the feudal principle
which, on first settlement in Australia, was 'extended to the lands oversea',
so that all colonial land belonged 'to the Crown until the Crown chose to grant
it' (per Isaacs J. in Williams' Case (16) Williams v. Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, at
p 439).
In either event
the consequence is the same, the lands of
Dawson J., following this line of authority in Mabo v. Queensland (18) (1988) 166
CLR 186, at p 236, said that "colonial
lands which remained unalienated were owned by the British Crown".
28. The proposition that, when the Crown assumed
sovereignty over an Australian colony, it became the universal and absolute beneficial
owner of all the land therein, invites critical examination.
If the conclusion at
which Stephen C.J. arrived in Attorney-General
v. Brown be right, the interests of indigenous inhabitants in colonial land
were extinguished so soon as British subjects settled in a colony, though the
indigenous inhabitants had neither ceded
their lands to the Crown nor suffered them to be taken as the spoils of conquest.
According to the
cases, the common law (International
Law?) itself took from indigenous inhabitants
any right to occupy their traditional land, exposed them to deprivation of the
religious, cultural and economic sustenance which the land provides, vested the
land effectively in the control of the Imperial authorities without any right
to compensation and made the indigenous inhabitants intruders in their own
homes and mendicants for a place to live.
Judged by any
civilized standard, (of 1992 not 1788) such a law is unjust and its claim to be part of the common
law to be applied in contemporary
This
Court must now determine whether, by the common law of this country, the
rights and interests of the Meriam people of today are to be determined on the
footing that their ancestors lost their traditional rights and interests in the
land of the
29. In discharging
its duty to declare the common law of Australia, this Court
is not free to adopt rules that accord with contemporary notions of justice and
human rights if their adoption would fracture the skeleton of principle which
gives the body of our law its shape and internal consistency.
Australian law is not
only the historical successor of, but is an organic development from, the law
of
Although
our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then
concerned with the development of its colonies.
It is not immaterial
to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law
of this country is entirely free of Imperial control.
The law which governs
The Privy Council
itself held that the common law of this country might
legitimately develop independently of English precedent (19) See Australian Consolidated Press Ltd. v. Uren [1967] UKPCHCA 2;
(1967) 117 CLR 221, at pp 238, 241; (1969) AC 590, at pp 641, 644.
Increasingly since 1968 (20)
See the Privy Council (Limitation of Appeals) Act 1968
(Cth) and see the Privy Council (Appeals from the High Court) Act 1975 (Cth),
the common
law of
Here rests the
ultimate responsibility of declaring the law of the nation.
Although this Court
is free to depart from English precedent which was earlier followed as stating
the common law of this country (21) Cook v.
Cook [1986] HCA 73; (1986)
162 CLR 376, at pp 390, 394; Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88, at pp 93,
120-121, 132, 135, 150-151, 166, 174, it cannot do so where the
departure would fracture what I have called the skeleton of principle.
The Court is even
more reluctant to depart from earlier decisions of its own (22) Jones v. The Commonwealth (1987) 61 ALJR 348,
at p 349; 71 ALR 497, at pp 498-499; John v. Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, at pp
438-439, 451-452;
The peace and order
of Australian society is built on the legal system. It (society or the law?) can
be modified to bring it into conformity with contemporary notions of justice
and human rights, but it cannot be destroyed.
It is not possible, a
priori, to distinguish between cases that express a skeletal principle and
those which do not, but no case can command unquestioning adherence if the rule
it expresses seriously offends the values of justice and human rights
(especially equality before the law) which are aspirations of the contemporary
Australian legal system.
If a postulated rule
of the common law expressed in earlier cases seriously offends those
contemporary values, the question arises whether the rule should be maintained
and applied.
Whenever such a
question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and
whether, if the rule were to be overturned, the disturbance to be apprehended
would be disproportionate to the benefit flowing from the overturning.
30. In the present
case, the defendant's chain of argument contains several links, each of which
must be separately considered although, as we shall see, a common theme or
thread runs through them.
Some of these links
are unchallenged.
We
start with the proposition that the Imperial Crown acquired sovereignty over
the Murray Islands on 1 August 1879 and that the laws of Queensland (including
the common law) became the law of
the Murray Islands on that day - or, if it be necessary to rely on the Colonial
Boundaries Act 1895, is deemed to have become the law of the Murray Islands on
that day.
Next,
by the common law, the Crown acquired a radical or ultimate title to
the
The plaintiffs accept these propositions
but challenge the final link in the chain, namely, that the Crown also acquired
absolute beneficial ownership of the land in the
31. As the passages
cited from the judgments in Attorney-General
v. Brown and the Seas and Submerged Lands Case show,
the proposition that, by the common law, the Sovereign acquired absolute
beneficial ownership of all land in the
In the first place, it is said that the Crown is absolute owner because "there is no other proprietor".
This basis denies that the
indigenous inhabitants possessed a proprietary interest. |
|||
| Next | The negative basis is then buttressed by three positive bases to show why it is necessary to attribute absolute beneficial ownership to the Crown. |
||
| a | One basis is that, when English law was brought to Australia with and by British colonists, the common law to be applied in the colonies
included the feudal doctrine of tenure.
Just as the Crown acquired or is deemed to have acquired universal ownership of all land in England so the Crown became the owner of all land in the Australian colonies.
We may call this the feudal basis. [except feudalism was the product of conquest in 1066 and sovern unbroken ownership of land in england ended in 1649 with the republic) |
||
| b | Another basis is that all land in a colony is "the patrimony of the nation" and, on this basis, the Crown acquired ownership of the patrimony on behalf of the nation. |
||
| c | A third basis is the prerogative basis mentioned by Stephen J. in the Seas and Submerged Lands Case. |
||
In
order to determine whether, on any or all of these bases, the Crown acquired beneficial ownership of the land in the Murray Islands
when the Crown acquired sovereignty over them, we must first review the legal theories relating to
* the
acquisition of sovereignty and
* the
introduction of the common law.
"The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state".
This
principle, stated by Gibbs J. in the Seas and Submerged Lands Case (23)
The
Murray Islands were annexed by an exercise of the prerogative, evidenced by the Letters
Patent; a mode of acquisition recognized by the common law as a valid means of acquiring sovereignty over foreign
territory.
The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts (24)
Sobhuza II. v. Miller (1926) AC 518, at p 525;
The Fagernes (1927) P 311;
Reg. v. Kent Justices; Ex parte Lye (1967) 2 QB 153, at pp 176-177, 181-182;
Ffrost v. Stevenson [1937] HCA 41; (1937) 58 CLR 528, at pp 565-566;
A Raptis and Son v. South Australia [1977] HCA 36; (1977) 138 CLR 346, at p 360; cf.
Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177, at pp 193, 217,
where the meaning of a constitutional term was in issue.
In Post Office v. Estuary Radio Ltd., Diplock L.J. said (25) (1968) 2 QB 740, at p 753:
" It still
lies within the prerogative power of the Crown to extend its sovereignty and
jurisdiction to areas of land or sea over which it has not previously claimed
or
exercised sovereignty or jurisdiction. For such extension the authority of
Parliament is not required."
This
proposition was approved by Gibbs J. in the Seas and Submerged Lands Case and,
in Wacando, Gibbs C.J. and Mason J. accepted that an annexation of territory by
exercise of the prerogative is an act of State (26)
(1981) 148 CLR, per Gibbs C.J. at p 11; per Mason J. at p 21. See also Coe v.
The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403, per Jacobs
J. at p 410.
32. Although the
question whether a territory has been acquired by the Crown is not justiciable
before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under
municipal law.
Accordingly, the
municipal courts must determine the body of law which is in force in the new
territory.
By the common law, the law in force in a newly-acquired
territory depends on the manner of its acquisition
by the Crown.
Although the manner in which a sovereign state might
acquire new territory is a matter for international law, the common law has had to march in step with
international law in order to provide the body of law to apply in a territory
newly acquired by the Crown.
33. International law recognized
conquest,
cession, and
occupation
of territory that was terra nullius as three of the effective ways of acquiring sovereignty.
No other way is
presently relevant (27) See E. Evatt,
"The Acquisition of Territory in Australia and New Zealand" in (1968)
Grotian Society Papers, p 16, who mentions only cession and occupation as
relevant to the Australasian colonies.
The great voyages of
European discovery opened to European nations the prospect of occupying new and
valuable territories that were already inhabited. As among themselves, the
European nations parcelled out the territories newly discovered to the
sovereigns of the respective discoverers (28)
To these territories
the European colonial nations applied the doctrines relating to acquisition of
territory that was terra nullius.
They recognized the
sovereignty of the respective European nations over the territory of
"backward peoples" and, by State practice, permitted the acquisition
of sovereignty of such territory by occupation rather than by conquest (30) See Lindley, ibid., p 47.
Various
justifications for the acquisition of sovereignty over the territory of
"backward peoples" were advanced. The benefits of Christianity and
European civilization had been seen as a sufficient justification from
mediaeval times (31) See Williams, The
American Indian in Western Legal Thought, (1990), pp 78ff; and Johnson v.
McIntosh [1823] USSC 22; (1823)
8 Wheat 543, at p 573 (21 US 240, at p 253).
Another justification
for the application of the theory of terra nullius to inhabited territory - a
justification first advanced by Vattel at the end of the 18th century - was
that new territories could be claimed by occupation if the land were
uncultivated, for Europeans had a right to bring lands into production if they
were left uncultivated by the indigenous inhabitants (32) Vattel, The Law of Nations (1797), Bk I, pp 100-101. See Castles,
An Australian Legal History, (1982), pp 16-17.
It may be doubted whether, even if these justifications
were accepted, the facts would have sufficed to permit acquisition of the
The Meriam people
were, as Moynihan J. found, devoted gardeners. In 1879, having accepted the
influence of the London Missionary Society, they were living peacefully in a
land-based society under some sort of governance by the Mamoose and the London
Missionary Society.
However that may be,
it is not for this Court to canvass the validity of the Crown's acquisition of
sovereignty over the Islands which, in any event, was consolidated by
uninterrupted control of the Islands by Queensland authorities (33) 10 Encyclopaedia of Public International Law,
(1987), p 500; cf. J. Crawford, "The Criteria for Statehood in
International Law", (1977) 48 The British Year Book of International Law
93, at p 116.
34. The enlarging of the concept of terra nullius by international law to justify
the acquisition of inhabited territory
by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines
as to the law to be applied when inhabited territories were acquired by
occupation (or "settlement", to use the term of the common law).
Although Blackstone commended the practice of
"sending colonies (of settlers) to find out new habitations", he
wrote (34) Commentaries on the Laws of
England, 17th ed. (1830), Bk II, ch 1, p 7-
"so long as
it was confined to the stocking and cultivation of desert uninhabited
countries, it kept strictly within the limits of the law of nature.
But how far the
seising on countries already peopled, and driving out or massacring the
innocent and defenceless natives, merely because they differed from their
invaders in language, in religion, in customs, in government, or in colour; how
far such a conduct was consonant to nature, to reason, or to christianity,
deserved well to be considered by those, who have rendered their names immortal
by thus civilizing mankind".
As we
shall see, Blackstone's misgivings found a resonance in international law after
two centuries (35) Advisory Opinion on
But he was unable to declare any rule by which the laws
of
As
the British acquisition of sovereignty over the Colony of New South Wales was
regarded as dependent upon the settlement of territory that was terra nullius
consequent on discovery (36) See E. Evatt, op
cit, at p 25; Cooper v. Stuart (1889) 14 App Cas 286, and as the law of
New South Wales is the source of the
law applicable to the Murray Islands,
we must next examine the basis on which the common law was received as the law
of the Colony of New South Wales.
35. The means by
which the municipal laws of England, including the common law, became the law
of a country that had been outside the King's dominions were stated by
Blackstone (37) Commentaries, Bk I, ch.4, pp
106-108; accord: Forbes v. Cochrane (1824) 2 B and C 448, at p 463 [1824] EngR 93; (107 ER 450, at p 456)
as follows:
"Plantations
or colonies, in distant countries, are either such
where the lands are claimed by right of occupancy only, by finding them desert
and uncultivated, and peopling them
from the mother-country; or
where, when already cultivated,
they have been either gained by conquest,
or ceded to us by treaties.
And both these rights are founded upon the law of nature,
or at least upon that of nations.
But there is a difference between these two species of colonies, with respect
to the laws by which they are bound.
For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force.
But this must be understood with very many and very great restrictions.
Such colonists
carry with them only so much of the English law, as is applicable to their own
situation and the condition of an infant colony; ... What shall be admitted and
what rejected, at what times, and under what restrictions, must, in case of
dispute, be decided in the first instance by their own provincial judicature, subject
to the revision and control of the king in council: the whole of their
constitution being also liable to be new-modelled and reformed by the general
superintending power of the legislature in the mother-country.
But in conquered or ceded countries, that have already laws of their own, the king may
indeed alter and change those laws;
but, till he
does actually change them, the ancient laws of the country remain, unless such
as are against the law of God, as in the case of an infidel country.
Our American plantations
are principally of this latter sort, being obtained in the last century either
by right of conquest and driving out the natives (with what natural justice I
shall not at present inquire) or by treaties.
And therefore
the common law of
According
to Blackstone, English law would
become the law of a country outside
* upon first settlement by English colonists
of a "desert uninhabited"
country or
* by the exercise of the Sovereign's legislative
power over a conquered or ceded country.
Blackstone did not contemplate other ways by which
sovereignty might be acquired.
In the case of a conquered country, the general rule was that the laws of the country continued after the conquest until those laws were altered by the conqueror (38)
Blankard v. Galdy [1738]
EngR 444; (1693)
Holt KB 341 (90 ER 1089);
Campbell v.
Hall (1774) Lofft 655, at p 741 (98 ER 848, at pp 895-896);
EngR 841; (1836) 1 Moo PC 59 (12 ER
733). The
Crown had a prerogative power to make new laws for a conquered country although
that power was subject to laws enacted by the Imperial Parliament (39) Campbell
v. Hall, (1774) Lofft, at pp 741, 742 (98 ER, at pp 895, 896).
The
same rule applied to ceded colonies,
though the prerogative may have been limited
by the treaty of cession (40) See the
discussion in Roberts-Wray, Commonwealth and Colonial Law, (1966), pp 214ff;
Sammut v. Strickland (1938) AC 678; Blankard v. Galdy [1795] EngR 570; (1693) 2 Salk 411 (91 ER
356); Buchanan v. The Commonwealth (1913) 16 CLR 315, at p 334.
When "desert
uninhabited countries" were colonized by English settlers,
however, they brought with them "so
much of the English law as (was) applicable to their own situation and the
condition of an infant colony" (41)
Commentaries, Bk I, ch 4, p 107; State Government Insurance Commission v.
Trigwell [1979] HCA 40; (1979)
142 CLR 617, at pp 625, 634.
English
colonists were, in the eye of the common law, entitled to live under the common
law of England which Blackstone described as their "birthright" (42) Commentaries, Bk I, ch 4, p 107. And see Sabally and N'Jie v. H.M.
Attorney-General (1965) 1 QB 273, at p 294.
That
law was not amenable to alteration by exercise of the prerogative (43) Sammut v. Strickland (1938) AC, at p 701.
The
tender concern of the common law of England for British settlers in foreign
parts led to the recognition that such settlers should be regarded as living
under the law of England if the local law was unsuitable for Christian
Europeans (44) Ruding v. Smith (1821) 2
Hag.Con.371 (161 ER 774); Freeman v. Fairlie (1828) 1 Moo Ind App 306, at pp
323-325, aff p 341 [1828] EngR 63; (18 ER
117, at pp 127-128, 137); cf. Campbell v. Hall (1774) Lofft, at p 741 (98 ER,
at pp 895,896). See also Yeap Cheah Neo v. Ong Cheng Neo (1875) 6 LR 381, at p
393; cf. Reg. v. Willans (1858) 3 Kyshe 16, at pp 20-25; and see Re Loh Toh Met (1961) 27 MLJ 234, at pp 237-243; Khoo Hooi Leong v. Khoo Chong Yeok (1930) AC 346, at p 355. This
rule was applied even to English residents in Eastern countries which were not
under British sovereignty (45) The
"Indian Chief" [1799] EngR 782; (1801) 3 C Rob 12, at pp
28-29 (165 ER 367, at pp 373-374). 36. When British
colonists went out to other inhabited parts of the world, including New South
Wales, and settled there under the protection of the forces of the Crown, so
that the Crown acquired sovereignty recognized
by the European family of nations under the enlarged notion of terra nullius, it was necessary for the
common law to prescribe a doctrine relating to the law to be applied in such
colonies, for sovereignty imports supreme internal legal authority (46) See A. James, Sovereign Statehood, (1986), pp
3ff., 203-209. The view was taken (by whom?) that, when
sovereignty of a territory could be acquired under
the enlarged notion of terra nullius, that for the purposes of the municipal law that territory
(though inhabited) could be treated as a "desert uninhabited"
country. (No citation) The hypothesis being that there was no local law
already in existence in the territory (47)
Lyons (Mayor of) v. East India Co. [1836] EngR 1155; (1836) 1 Moo PC 175, at pp
272-273 [1836] EngR 1155; (12
ER 782, at p 818); Cooper v. Stuart (1889) 14 App Cas ; The Lauderdale Peerage
(1885) 10 App Cas 692, at pp 744-745; Kielley v. Carson [1842] EngR 593; (1842) 4 Moo PC 63, at pp
84-85 [1842] EngR 593; (13
ER 225, at p 233), the law of England became the law of the territory
(and not merely the personal law of the colonists). Colonies of this kind
were called "settled colonies". Ex
hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could
have been acquired only by conquest
or cession. The indigenous people
of a settled colony were thus taken
to be without laws, without a sovereign and primitive in their social organization. In Advocate-General of
Bengal v. Ranee Surnomoye Dossee
(48) (1863) 2 Moo N S 22, at p 59 [1863] EngR 761; (15 ER 811, at p 824); 9 Moo
Ind App 391, at p 428 [1863] EngR 767; (19 ER 786, at p 800)
Lord Kingsdown used the term "barbarous" to describe the
native state of a settled colony: " Where
Englishmen establish themselves in an uninhabited or barbarous country, they
carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them and become members of
their community In Campbell
v. Hall Lord, Mansfield suggested that Jamaica should
be regarded as a settled colony because the English colonists arrived after the
Spaniards had left (49) His Lordship may have
wrongly appreciated the history of Jamaica: see Roberts-Wray, op cit, pp 46-47,
851-852, the negro inhabitants presumably being of no significance (50) See (1774) Lofft, at p 745 (98 ER, at p 898).
In Cooper
v. Stuart, Lord Watson
proffered the absence of "settled
inhabitants" and "settled
law" as a criterion for determining whether inhabited territory had
been acquired by "settlement"
under English law (51) (1889) 14 App Cas, at p
291: " The
extent to which English law is introduced into a British Colony, and the manner
of its introduction, must necessarily vary according to circumstances. There is a great difference between ·
the case of a Colony acquired by conquest or cession, in
which there is an established system of law, and ·
that of a Colony which consisted of a tract of territory
practically unoccupied, without settled inhabitants or settled law, at the time
when it was peacefully annexed to the British dominions. The Colony of In the case of
such a Colony (NSW) the Crown may ·
by ordinance, and the Imperial Parliament, or ·
its own legislature when it comes to possess one, may by statute
declare what parts of the common and statute law of But, when that
is not done, the law of In so far as it
is reasonably applicable to the circumstances of the Colony, the law of As the
settlement of an inhabited territory
is equated with settlement of an uninhabited
territory in ascertaining the law of the territory on colonization, the
common law which the English settlers brought with them to New South Wales
could not have been altered or amended by the prerogative - only by the Imperial Parliament or by the local
legislature (52) Holdsworth, A History of
English Law, 3rd ed., vol.ix, (1944), p 84; Sammut v. Strickland (1938) AC, at
p 701; Kielley v. (This
principle raises some doubts about the validity of the exercise of legislative
power by the Governor of New South Wales before a Legislative Council was
established in 1823, but we need not pause to consider that question (53) See the discussion by Windeyer, Lectures on
Legal History, 2nd ed. (1949), pp 332-333; H.V. Evatt, "The Legal
Foundations of New South Wales", (1938) 11 Australian Law Journal 409, at
pp 417-422; and Enid Campbell, "Prerogative Rule in New South Wales,
1788-1823", (1964) 50 Royal
Australian Historical Society 161) In a settled colony
in inhabited territory, the law of Thus the theory which underpins the application of English
law to the Colony of New South Wales is that English settlers brought with them
the law of England and that, as the indigenous inhabitants were regarded as
barbarous or unsettled and without a settled
law, the law of England including the common
law became the law of the Colony (so far as it was locally applicable) as
though New South Wales were "an uninhabited
country ... discovered and planted by English subjects" (54) See per Lord
Watson in Cooper v. Stuart (1889) 14 App Cas, at p 291; and cf. Roberts-Wray,
op cit, p 540. The
common law thus became the common law of all subjects within the Colony who
were equally entitled to the law's protection as subjects of the Crown (55) As the subjects of a conquered territory
(Calvin's Case (1608) 7 Co Rep 1a, at p 6a (77 ER 377, at p 384)); Campbell v.
Hall (1774) Lofft, at p 741 (98 ER, at p 895) and of a ceded territory
(Donegani v. Donegani (1835) 3 Knapp 63, at p 85 (12 ER 571, at p 580)) became
British subjects (Lyons (Mayor of) v. East India Co. (1836) 1 Moo PC, at pp
286-287 (12 ER, at p 823); 1 Moo Ind App 175, at pp 286-187 (18 ER 66, at pp
108-109)), a fortiori the subjects of a settled territory must have acquired
that status. And see Reg. v. Wedge (1976) 1 NSWLR 581, at p 585. Its
introduction to As
the laws of New South Wales became the laws of Queensland on separation of the
two Colonies in 1859 (57) Letters Patent of 6
June 1859: see p 11 above and, by the terms of the Queensland Coast Islands Act 1879 and the
Governor's Proclamation, the Murray Islands on annexation became subject to the
laws in force in Queensland, the common law
became the basic law of the Murray Islands. Thus
the Meriam people in 1879, like Australian Aborigines in earlier times, became
British subjects owing allegiance to the Imperial Sovereign entitled to such
rights and privileges and subject to such liabilities as the common law and
applicable statutes provided. And this is so irrespective of the fact that, in
1879, the Meriam people were settled on their land, the gardens were being
tilled, the Mamoose and the London Missionary Society were keeping the peace
and a form of justice was being administered. The basis of the theory of universal and
absolute Crown ownership 37. It is one thing
for our contemporary law to accept
that the laws of When it was sought to
apply Lord Watson's assumption in Cooper
v. Stuart that the colony of "The
evidence shows a subtle and elaborate system highly adapted to the country in
which the people led their lives, which provided a stable order of society and
was remarkably free from the vagaries of personal whim or influence. If ever a system
could be called 'a government of laws, and not of men', it is that shown in the
evidence before me." Faced
with a contradiction between the authority of the Privy Council and the
evidence, his Honour held that the class to which a colony belonged was a question
of law, not of fact (59) ibid., at p 244;
McNeil, Common Law Aboriginal Title, (1989), p 292, fn.207; Lester, The
Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal
Argument, (unpublished doctoral thesis (1981)), pp 100-107, 155-157: "Whether or
not the Australian aboriginals living in any part of New South Wales had in
1788 a system of law which was beyond the powers of the settlers at that time
to perceive or comprehend, it is beyond the power of this Court to decide otherwise
than that New South Wales came into the category of a settled or occupied
colony." 38. The facts as we
know them today do not fit the "absence of law" or
"barbarian" theory underpinning the colonial reception of the common
law of That being so, there
is no warrant for applying in these times rules of the English common law which
were the product of that theory. It would be a curious
doctrine to propound today that, when the benefit of the common law was first
extended to Her Majesty's indigenous subjects in the Yet the supposedly
barbarian nature of indigenous people provided the common law of England with
the justification for denying them their traditional rights and interests in
land, as Lord Sumner speaking for the Privy Council said in In re Southern
Rhodesia (60) (1919) AC 211, at pp 233-234: "The
estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are
so low in the scale of social organization that their usages and conceptions of
rights and duties are not to be reconciled with the institutions or the legal
ideas of civilized society. Such a gulf
cannot be bridged. It would be idle
to impute to such people some shadow of the rights known to our law and then to
transmute it into the substance of transferable rights of property as we know
them." 39. As the indigenous
inhabitants of a settled colony were regarded as "low in the scale of
social organization", they and their occupancy of colonial land were
ignored in considering the title to land in a settled colony. Ignoring those rights
and interests, the Crown's sovereignty over a territory which had been acquired
under the enlarged notion of terra nullius was equated with Crown ownership of
the lands therein, because, as Stephen C.J. said, there was "no other proprietor of such
lands". Thus, a Select
Committee on Aborigines reported in 1837
to the House of Commons that the state of Australian Aborigines was
"barbarous" and "so entirely destitute ... of the rudest forms
of civil polity, that their claims, whether as sovereigns or proprietors of the
soil, have been utterly disregarded" (61)
Cited by Lindley, op cit, at p 41. The theory that the
indigenous inhabitants of a "settled" colony had no proprietary
interest in the land thus depended on a discriminatory denigration of
indigenous inhabitants, their social organization and customs. As the basis of the
theory is false in fact and unacceptable in our society, there is a choice of
legal principle to be made in the present case. This Court can either ·
apply the existing authorities and proceed to inquire whether the Meriam people are
higher "in the scale of social organization" than the Australian Aborigines
whose claims were "utterly disregarded" by the existing authorities
or ·
the Court can overrule the existing authorities, discarding the distinction between inhabited
colonies that were terra nullius and those which were not. 40. The theory of terra
nullius has been critically examined in recent times by the International Court of Justice in its Advisory Opinion on Western Sahara (62) (1975) ICJR, at p 39. There the majority judgment read: "'Occupation'
being legally an original means of peaceably acquiring sovereignty over
territory otherwise than by cession or succession, it was a cardinal condition
of a valid 'occupation' that the territory should be terra nullius - a
territory belonging to no-one - at the time of the act alleged to constitute
the 'occupation' (cf. Legal Status of Eastern
Greenland, P.C.I.J., Series A/B, No.53, pp 44 f. and 63 f.). In the view of
the Court, therefore, a determination that Western Sahara was a 'terra nullius'
at the time of colonization by Spain would be possible only if it were
established that at that time the territory belonged to no-one in the sense
that it was then open to acquisition through the legal process of 'occupation'.
80. Whatever differences of opinion there may have
been among jurists, the State practice of the relevant period indicates that
territories inhabited by tribes or peoples having a social and political
organization were not regarded as terrae nullius. It shows that in
the case of such territories the acquisition of sovereignty was not generally
considered as effected unilaterally through 'occupation' of terra nullius by
original title but through agreements concluded with local rulers. On occasion, it is
true, the word 'occupation' was used in a non-technical sense denoting simply
acquisition of sovereignty; but that did not signify that the acquisition of
sovereignty through such agreements with authorities of the country was regarded
as an 'occupation' of a "terra nullius" in the proper sense of these
terms. On the contrary,
such agreements with local rulers, whether or not considered as an actual
'cession' of the territory, were regarded as derivative roots of title, and not
original titles obtained by occupation of terrae nullius." Judge
Ammoun, Vice-President of the Court, delivered a separate opinion in which he
commended as penetrating the views expressed on behalf of the Republic of Zaire
which he restated as follows (63) ibid., at pp
85-86: " Mr.
Bayona-Ba-Meya, goes on to dismiss the materialistic concept of terra nullius,
which led to this dismemberment of Africa following the Mr.
Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie
between the land, or 'mother nature', and the man who was born therefrom,
remains attached thereto, and must one day return thither to be united with his
ancestors. This link is the
basis of the ownership of the soil, or better, of sovereignty. This amounts to
a denial of the very concept of terra nullius in the sense of a land which is
capable of being appropriated by someone who is not born therefrom. It is a condemnation of the modern concept, as
defined by Pasquale Fiore, which regards as terrae nullius territories inhabited by populations whose civilization,
in the sense of the public law of Europe, is backward, and whose political
organization is not conceived according to Western norms. One might go
still further in analysing the statement of the representative of His view thus
agrees with that of Vattel, who defined terra nullius as a land empty of
inhabitants." He
concluded (64) ibid., at p 86 that "the concept of terra nullius, employed
at all periods, to the brink of the twentieth century, to justify conquest and
colonization, stands condemned." The
court was unanimously of the opinion that Western
Sahara at the time of colonization by 41. If the international
law notion that inhabited land may be classified as terra nullius no longer
commands general support, the doctrines of the common law which depend on the
notion that native peoples may be "so low in the scale of social
organization" that it is "idle
to impute to such people some shadow of the rights known to our law" (65) In re Southern Rhodesia (1919) AC, at pp
233-234 can hardly be retained. If it were
permissible in past centuries to keep the common law in step with international
law, it is imperative in today's world that the common law should neither be
nor be seen to be frozen in an age of racial discrimination. 42. The fiction by
which the rights and interests of indigenous inhabitants in land were treated
as non-existent was justified by a policy which has no place in the
contemporary law of this country. The policy appears
explicitly in the judgment of the Privy Council in In re Southern Rhodesia in
rejecting an argument (66) ibid., at p 232
that the native people "were the
owners of the unalienated lands long before either the Company or the Crown
became concerned with them and from time immemorial ... and that the
unalienated lands belonged to them still". Their Lordships
replied (67) ibid., at p 234- "the
maintenance of their rights was fatally inconsistent with white settlement of
the country, and yet white settlement was the object of the whole forward
movement, Whatever
the justification advanced in earlier days for refusing to recognize the rights
and interests in land of the indigenous inhabitants of settled colonies, an
unjust and discriminatory doctrine of that kind can no longer be accepted. The
expectations of the international community accord in this respect with the
contemporary values of the Australian people. The
opening up of international remedies to individuals, pursuant to Australia's
accession to the Optional Protocol to
the International Covenant on Civil and
Political Rights (68) See Communication
78/1980 in Selected Decisions of the Human Rights Committee under the
Optional Protocol, vol.2, p 23 brings to bear on the common law the powerful
influence of the Covenant and the international standards it imports. The
common law does not necessarily conform with international law, but
international law is a legitimate and important influence on the development of
the common law, especially when international law declares the existence of
universal human rights. A
common law doctrine founded on unjust discrimination in the enjoyment of civil
and political rights demands reconsideration. It is
contrary both to international standards
and to the fundamental values of our common law to entrench a discriminatory
rule which, because of the supposed position on the scale of social
organization of the indigenous inhabitants of a settled colony, denies them a
right to occupy their traditional lands. It
was such a rule which evoked from Deane
J. (69) Gerhardy v. Brown [1985] HCA 11; (1985) 159 CLR 70, at p 149
the criticism that - "the common
law of this land has still not reached the stage of retreat from injustice
which the law of Illinois and Virginia had reached in 1823 when Marshall C.J.,
in Johnson v. McIntosh (70) (1823) 8 wheat, at p 574 (21 US , at p 253),
accepted that, subject to the assertion of ultimate dominion (including the
power to convey title 43.
However, recognition by our common law of the rights and interests in land of
the indigenous inhabitants of a settled colony would be precluded if the
recognition were to fracture a skeletal principle of our legal system. The proposition that
the Crown became the beneficial owner of all colonial land on first settlement
has been supported by more than a disregard of indigenous rights and interests.
It is necessary to
consider these other reasons for past disregard of indigenous rights and
interests and then to return to a consideration of the question whether and in
what way our contemporary common law recognizes such rights and interests in
land. Crown title to colonies and Crown ownership of colonial
land distinguished 44. In the trilogy of
cases cited earlier in this judgment (71)
Supra, pp 12-15: Attorney-General v. Brown; Randwick Corporation v. Rutledge;
the Seas and Submerged Lands Case, it was said that colonial land became
a royal demesne - that is, that the Crown became the absolute beneficial owner
in possession of all colonial land - on first settlement, the event which
conferred sovereignty on the Imperial Crown. Curiously, in Williams v. Attorney-General for New South
Wales (72) [1913] HCA 33; (1913) 16 CLR 404, at p 439, Isaacs J. said it was unquestionable that - "when
Governor Phillip received his first Commission from King George III. on 12th
October 1786, the whole of the lands of With
respect to Isaacs J., that proposition is wholly unsupported. Roberts-Wray
comments (73) Commonwealth and Colonial Law op
cit, p 631 that the proposition is "startling and, indeed, incredible". We
need not be concerned with the date on which sovereignty over the Australian
colonies was acquired by the Crown but we are concerned with the proposition
that on, and by reason of, the acquisition of sovereignty, the Crown acquired
all colonial land as a royal demesne. 45. There is a
distinction between ·
the Crown's title to a colony and ·
the Crown's ownership of land in the colony, as Roberts-Wray points out (74) ibid., p 625: "If a
country is part of Her Majesty's dominions, the sovereignty vested in her is of
two kinds. ·
The first is the power of government. ·
The second is title to the country ... This ownership of the country is radically
different from ownership of the land: The former can belong only
to a sovereign, the latter to anyone. Title to land is not, per se, relevant to the constitutional
status of a country; The distinction
between these two conceptions has, however, become blurred by the doctrine that
the acquisition of sovereignty over a Colony, whether by Similarly,
Sir John Salmond distinguished the acquisition of territory from the Crown's
acquisition of property (75) Jurisprudence,
7th ed. (1924), appendix "The Territory of the State", p 554: "The first
conception pertains to the domain of public law, the second to that of private
law. Territory is the
subject-matter of the right of sovereignty or imperium These two rights may or may not co-exist in
the Crown in respect of the same area. Land may be held by the Crown as
territory but not as property, or as property but not as territory, or in both
rights at the same time. As property,
though not as territory, land may be held by one state within the dominions of
another." Professor
O'Connell in his work International Law (76)
2nd ed. (1970), at p 378, cited by Hall J. in Calder v. Attorney-General of
British Columbia (1973) SCR.313, at pp 404-405; (1973) 34 DLR (3d) 145, at p
210 points to the distinction between acquisition of territory by act of
State and the abolition of acquired rights: "This
doctrine (of act of State), which was affirmed in several cases arising out of
the acquisition of territory in Africa and India, has been misinterpreted to
the effect The
acquisition of territory is chiefly the province of international law; the
acquisition of property is chiefly the province of the common law. The
distinction between the Crown's title to territory and the Crown's ownership of
land within a territory is made as well by the common law as by international
law. A.W.B. Simpson (77) A History of the Land Law, 2nd ed. (1986)
distinguishes the land law rule in "This
attitude of mind also encouraged the rejection of any theory which would say
that the lord 'owned' the land, and that the rights of tenants in the land were
iura in re aliena. Such a theory
would have led inevitably to saying that the King, who was ultimately lord of
all land, was the 'owner' of all land. The lawyers
never adopted the premise that the King owned all the land; such a dogma is of
very modern appearance. It was sufficient for them to note that the King was
lord, ultimately, of all the tenants in the realm, and that as lord he had many
rights common to other lords (e.g. rights to escheats) and some peculiar to his
position as supreme lord (e.g. rights to forfeitures)." The general rule of the common law was that ownership
could not be acquired by occupying land that was already occupied by another. As Blackstone pointed out (79) Commentaries, Bk.II, ch.1, p 8: "Occupancy
is the thing by which the title was in fact originally gained; every man
seizing such spots of ground as he found most agreeable to his own convenience,
provided he found them unoccupied by any one else." (Emphasis added.) 46. It was only by
fastening on the notion that a settled colony was terra nullius that it was possible
to predicate of the Crown the acquisition of ownership of land in a colony
already occupied by indigenous inhabitants. It was only on the
hypothesis that there was nobody in occupation that it could be said that the
Crown was the owner because there was no other. If that hypothesis be
rejected, the notion that sovereignty carried ownership in its wake must be
rejected too. Though
the rejection of the notion of terra nullius
clears away the fictional impediment to the recognition of indigenous rights
and interests in colonial land, it would be impossible for the common
law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their
recognition. 47. A basic doctrine
of the land law is the doctrine of tenure,
to which Stephen C.J. referred in Attorney-General
v. Brown, and it is a doctrine which could not be overturned without
fracturing the skeleton which gives our land law its shape and consistency. - It
is derived from feudal origins. 48. The land law of In English legal
theory, every parcel of land in the term
"tenure" is used to signify the relationship between tenant and lord (80) Attorney-General of The characteristic of
feudalism "is not tenere terram, but tenere terram de X" (81) Pollock and Maitland, The History of English
Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit in
the relationship of tenure that both lord and tenant have an interest in the
land: "The King had 'dominium directum', the subject 'dominium
utile'" (82) ibid., p 773; Co Litt 16.
Absent a
"dominium directum" in the Crown, there would be no foundation for a
tenure arising on the making of a grant of land. When the Crown acquired
territory outside Perhaps the
assumption did not have to be made. After all, as Holdsworth observed (83) op cit, vol.ii, p 199, the universal application
of the doctrine of tenure is a purely English phenomenon. And Pollock and
Maitland may be correct in saying (84) op cit,
vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that
the notion of universal tenure "perhaps
was possible only in a conquered country". In Scotland, the King
was not Paramount Lord of all land: some allodial lands remained in the Orkney
and Shetland Islands, though most land that had been held allodially became
subject to feudal tenure (85) Bell, Lectures on
Conveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, The
Institutions of the Law of Scotland, 4th ed. (1826), pp 219, 222; Craigie,
Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v.
Balfour (1907) SC 1360, at p 1368-1369. However, the English view
favoured a universal application of the doctrine of tenure (86) Pollock and Maitland, op cit, pp 232-233: " Every
acre of English soil and every proprietary right therein have been brought
within the compass of a single formula, which may be expressed thus: - Z tenet
terram illam de ... domino Rege. The king himself
holds land which is in every sense his own; no one else has any proprietary right
in it; but if we leave out of account this royal demesne, then every acre of land
is 'held of' the king. The person whom we may call its owner, the person who
has the right to use and abuse the land, to cultivate it or leave it
uncultivated, to keep all others off it, holds the land of the king either
immediately or mediately." 49. It is arguable that universality of tenure is a
rule depending on English history and that the rule is not reasonably
applicable to the Australian colonies. The origin of the
rule is to be found in a traditional belief that, at some time after the Norman
Conquest, the King either owned beneficially and granted, or otherwise became
the Paramount Lord of, all land in the Kingdom (87)
Bacon's Abridgement, 6th ed. (1807), vol.V, "Prerogative", B,1.
According to Digby's
History of the Law of Real Property (88)
(1897), p 34 William I succeeded to all rights over land held by the
Anglo-Saxon kings; he acquired by operation of law the land of those who had
resisted his conquest and a vast quantity of land was deemed to have been
forfeited or surrendered to William and regranted by him. He may have become
the proprietor of all land in Or it may be, as
Blackstone asserts, that in England, as in France, the allodial estates were
surrendered into the king's hands and were granted back as feuds, the only
difference being that in France the change "was effected gradually, by the consent of private persons; (the change)
was done at once, all over England, by the common consent of the nation" (89) Commentaries, Bk II, ch.4, pp 50-51.
But, whatever the fact, it is the fiction of royal grants that underlies the
English rule. Blackstone says (90) ibid that - "it became
a fundamental maxim, and necessary principle (though in reality a mere fiction)
of our English tenures, 'that the king is the universal lord and original proprietor
of all the lands in his kingdom; and that no man doth or can possess any part
of it, but what has, mediately or immediately, been derived 'as a gift from
him, to be held upon feodal services.' For this being
the real case in pure, original, proper feuds, other nations who adopted this
system were obliged to act upon the same supposition, as a substruction and
foundation of their new polity, though the fact was indeed far otherwise". It is
not surprising that the fiction that land granted by the Crown had been
beneficially owned by the Crown was translated to the colonies and that Crown
grants should be seen as the foundation of the doctrine of tenure which is an
essential principle of our land law. It is
far too late in the day to contemplate an allodial or other system of land
ownership. Land in 50. Accepting the
doctrine of tenure, it was an essential postulate that the Crown have such a
title to land as would invest the Sovereign with the character of Paramount
Lord in respect of a tenure created by grant and would attract the incidents
appropriate to the tenure, especially the Crown's right to escheat (91) Wright, Introduction to the Law of Tenures, 4th
ed. (1792), p 5. The Crown was
invested with the character of Paramount Lord in the colonies by attributing to
the Crown a title, adapted from feudal theory, that was called a radical,
ultimate or final title: see, for example, Amodu Tijani v. Secretary, Southern
Nigeria (92) (1921) 2 AC 399, at pp 403, 404,
407; Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration
of Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR 353, at pp 396-397.
The Crown was treated
as having the radical title to all the land in the territory over which the
Crown acquired sovereignty. The radical title is a postulate of the doctrine of
tenure and a concomitant of sovereignty. As a sovereign enjoys
supreme legal authority in and over a territory, the sovereign has power to
prescribe what parcels of land and what interests in those parcels should be
enjoyed by others and what parcels of land should be kept as the sovereign's
beneficial demesne. 51. By attributing to
the Crown a radical title to all land within a territory over which the Crown
has assumed sovereignty, the common law enabled the Crown, in exercise of its
sovereign power, to grant an interest in land to be held of the Crown or to
acquire land for the Crown's demesne. The notion of radical
title enabled the Crown to become Paramount Lord of all who hold a tenure
granted by the Crown and to become absolute beneficial owner of unalienated
land required for the Crown's purposes. But it is not a
corollary of the Crown's acquisition of a radical title to land in an occupied
territory that the Crown acquired absolute beneficial ownership of that land to
the exclusion of the indigenous inhabitants. If the land were
desert and uninhabited, truly a terra nullius, the Crown would take an absolute
beneficial title (an allodial title) to the land for the reason given by
Stephen C.J. in Attorney-General v. Brown (95)
See pp 13-14 above; (1847) 1 Legge, at pp 317-318: there would be no
other proprietor. But
if the land were occupied by the indigenous inhabitants and their rights and
interests in the land are recognized by the common law, the radical title which
is acquired with the acquisition of sovereignty cannot itself be taken to
confer an absolute beneficial title to the occupied land. Nor is it necessary
to the structure of our legal system to refuse recognition to the rights and
interests in land of the indigenous inhabitants. The doctrine of
tenure applies to every Crown grant of
an interest in land, but not to rights and interests which do not owe their
existence to a Crown grant. The English legal
system accommodated the recognition of rights and interests derived from
occupation of land in a territory over which sovereignty was acquired by
conquest without the necessity of a Crown grant. 52. After the
conquest of Ireland, it was held in The Case of Tanistry (96) (1608) Davis 28 (80 ER 516); 4th ed. Dublin
(1762) English translation 78, at pp 110-111 that the Crown was not in
actual possession of the land by virtue of the conquest and that - "a royal
monarch (who) hath made a new conquest of a realm, although in fact he hath the
lordship paramount of all the lands within such realm, so that these are all
held of him, mediate vel immediate, and he hath also the possession of all the
lands which he willeth actually to seise and retain in his own hands for his
profit or pleasure, and may also by his grants distribute such portions as he
pleaseth ... yet ... if such conqueror receiveth any of the natives or antient
inhabitants into his protection and avoweth them for his subjects, and
permitteth them to continue their possessions and to remain in his peace and
allegiance, their heirs shall be adjudged in by good title without grant or
confirmation of the conqueror, and shall enjoy their lands according to the
rules of the law which the conqueror hath allowed or established, if they will
submit themselves to it, and hold their lands according to the rules of it, and
not otherwise." Similarly,
after the conquest of Wales, in Witrong and Blany (97)
(1674) 3 Keb.401, at p 402 [1685] EngR 4051; (84 ER 789, at p 789) and
see McNeil, op cit, p 174 it was held that the inhabitants who had been
left in possession of land needed no new grant to support their possession
under the common law and they held their interests of the King without a new
conveyance. In
these cases, the courts were speaking of converting the surviving interests
into an estate of a kind familiar to the common law, but there is no reason why
the common law should not recognize novel interests in land which, not
depending on Crown grant, are different from common law tenures. In
Amodu Tijani (98) (1921) 2 AC, at p 403
Viscount Haldane, speaking for the Privy Council, referred to the variable
nature of native title to land capable of recognition by the common law: "There is a
tendency, operating at times unconsciously, to render (native) title
conceptually in terms which are appropriate only to systems which have grown up
under English law. But this
tendency has to be held in check closely. As a rule, in
the various systems of native jurisprudence throughout the Empire, there is no
such full division between property and possession as English lawyers are
familiar with. A very usual
form of native title is that of a usufructuary right, which is a mere
qualification of or burden on the radical or final title of the Sovereign where
that exists. In such cases
the title of the Sovereign is a pure legal estate, to which beneficial And,
in Administration of Papua and "were secure
in their usufructuary title to land, (but) the land came from the inception of
the colony into the dominion of Her Majesty. That is to say, the ultimate title
subject to the usufructuary title was vested in the Crown. Alienation of that
usufructuary title to the Crown completed the absolute fee simple in the
Crown". In
Amodu Tijani, the Privy Council admitted the possibility of recognition not
only of usufructuary rights but also of interests in land vested not in an
individual or a number of identified individuals but in a community. Viscount
Haldane observed (100) (1921) 2 AC, at pp
403-404: "The title,
such as it is, may not be that of the individual, as in this country it nearly
always is in some form, but may be that of a community. Such a community To ascertain how
far this latter development of right has progressed involves the study of the
history of the particular community and its usages in each case. Abstract
principles fashioned a priori are of but little assistance, and are as often as
not misleading." Recognition
of the radical title of the Crown is quite consistent with recognition of
native title to land, for the radical title, without more, is merely a logical
postulate required to support the doctrine of tenure (when the Crown has
exercised its sovereign power to grant an interest in land) and to support the
plenary title of the Crown (when the Crown has exercised its sovereign power to
appropriate to itself ownership of parcels of land within the Crown's
territory). Unless
the sovereign power is exercised in one or other of those ways, there is no
reason why land within the Crown's territory should not continue to be subject
to native title. It is only the fallacy of equating sovereignty and beneficial
ownership of land that gives rise to the notion that native title is
extinguished by the acquisition of sovereignty. 53. If it be
necessary to categorize an interest in land as proprietary
in order that it survive a change in sovereignty,
the interest possessed by a community that is in exclusive possession of land
falls into that category. Whether
or not land is owned by individual members of a community, a community which
asserts and asserts effectively that none but its members has any right to
occupy or use the land has an interest in the land that must be proprietary in
nature: There is no other
proprietor. It would be wrong, in
my opinion, to point to the inalienability of land by that community and, by
importing definitions of "property" which require alienability under
the municipal laws of our society (101) See,
for example, National Provincial Bank Ltd. v. Ainsworth [1965] UKHL 1; (1965) AC 1175, at pp 1247-1248,
to deny that the indigenous people owned their land. The ownership of land
within a territory in the exclusive occupation of a people must be vested in
that people: land is susceptible of ownership, and there are no other owners. True it is that land
in exclusive possession of an indigenous people is not, in any private law
sense, alienable property for the laws and customs of an indigenous people do
not generally contemplate the alienation of the people's traditional land. But the common law
has asserted that, if the Crown should acquire sovereignty over that land, the
new sovereign may extinguish the indigenous people's interest in the land and
create proprietary rights in its place and it would be curious if, in place of
interests that were classified as non-proprietary, proprietary rights could be
created. Where a proprietary
title capable of recognition by the common law is found to have been possessed
by a community in occupation of a territory, there is no reason why that title
should not be recognized as a burden on the Crown's radical title when the
Crown acquires sovereignty over that territory. The fact that
individual members of the community, like the individual plaintiff Aborigines
in Milirrpum (102) (1971) 17 FLR, at p 272,
enjoy only usufructuary rights that are not proprietary in nature is no
impediment to the recognition of a proprietary community title. Indeed, it is not
possible to admit traditional usufructuary rights without admitting a
traditional proprietary community title. There may be difficulties of proof of
boundaries or of membership of the community or of representatives of the
community which was in exclusive possession, but those difficulties afford no
reason for denying the existence of a proprietary community title capable of
recognition by the common law. That being so, there
is no impediment to the recognition of individual non-proprietary rights that
are derived from the community's laws and customs and are dependent on the
community title. A fortiori, there can be no impediment to the recognition of
individual proprietary rights. 54. Once it is
accepted that indigenous inhabitants in occupation of a territory when
sovereignty is acquired by the Crown are capable of enjoying - whether in
community, as a group or as individuals - proprietary interests in land, the
rights and interests in the land which they had theretofore enjoyed under the
customs of their community are seen to be a burden on the radical title which
the Crown acquires. The notion that
feudal principle dictates that the land in a settled colony be taken to be a
royal demesne upon the Crown's acquisition of sovereignty is mistaken. However,
that was not the only basis advanced to establish the proposition of absolute
Crown ownership and the alternative bases must next be considered. 55. In Williams v.
Attorney-General for The funds derived
from sales of colonial land were applied to defray the cost of carrying on
colonial government and to subsidize emigration to the Australian Colonies. Further, the power to
reserve and dedicate land for public purposes was important to the government
and development of the Colonies as it remains important to the government and
development of the Commonwealth and the States and Territories. Therefore it is right
to describe the powers which the Crown - at first the Imperial Crown and later
the Crown in right of the respective Colonies - exercised with respect to
colonial lands as powers conferred for the benefit of the nation as a whole (105) Reg. v. Symonds (1847) NZPCC 387, at p 395,
but it does not follow that those were proprietary as distinct from political
powers. Nor does it follow
that a combination of radical title to land and a power of sale or dedication
of that land was not a valuable asset of the Colonies. It can be
acknowledged that the nation obtained its patrimony by sales and dedications of
land which dispossessed its indigenous citizens and that, to the extent that
the patrimony has been realized, the rights and interests of the indigenous
citizens in land have been extinguished. But that is not to
say that the patrimony was realized by sales and dedications of land owned
absolutely by the Crown. What
the Crown acquired was a radical title to land and a sovereign political power
over land, the sum of which is not tantamount to absolute ownership of land. Until recent times,
the political power to dispose of land in disregard of native title was
exercised so as to expand the radical title of the Crown to absolute ownership
but, where that has not occurred, there is no reason to deny the law's
protection to the descendants of indigenous citizens who can establish their
entitlement to rights and interests which survived the Crown's acquisition of
sovereignty. Those are rights and
interests which may now claim the protection of s.10(1) of the Racial Discrimination Act 1975 (Cth) which
"clothes the holders of traditional
native title who are of the native ethnic group with the same immunity from
legislative interference with their enjoyment of their human right to own and
inherit property as it clothes other persons in the community": Mabo
v. Queensland (106) (1988) 166 CLR, at p 219. The Royal Prerogative basis of the proposition of
absolute Crown ownership 56. Mr Justice Evatt
described ownership of vacant lands in a new colony as one of the proprietary
prerogatives (107) See The Attorney-General
for New South Wales v. Butterworth and Co. (Australia) Ltd. (1938) 38 SR (NSW)
195, at pp 246-247 . But, as that author's
lately published work on The Royal Prerogative shows (108) (1987), at pp 102-103, there
was no judicial consensus as to whether title to ownership of the vacant lands
in the Australian Colonies was vested in the King as representing the supreme
executive power of the British Empire or in the Crown in right of the
respective Colonies. The management and control of the waste lands of the
Crown were passed by Imperial
legislation to the respective Colonial
Governments as a transfer of political power or governmental function
not as a matter of title (109) Williams v.
Attorney-General for New South Wales (1913) 16 CLR, at pp 453, 456. The suggestion that,
after the passing of these powers to colonial governments the Crown commenced
to hold Crown lands "in right of the
colony" (110) Per Stephen J. in the
Seas and Submerged Lands Case (1975) 135 CLR, at p 439; and note per O'Connor
J. in The State of South Australia v. The State of Victoria [1911] HCA 17; (1911) 12 CLR 667, at pp
710-711 and held those lands in absolute ownership, involves the notion
that ownership resided in the Executive Government whose legislature was vested
with power to enact laws governing the
management and control of colonial waste lands. But
the Imperial Parliament retained the sovereign - that is, the ultimate -
legislative power over colonial affairs, at least until the adoption of the Statute of
Westminster (1931) (111) Madzimbamuto v.
Lardner-Burke [1968] UKPC 2; (1969)
1 AC 645, at p 722 and it is hardly to be supposed that absolute
ownership of colonial land was vested in colonial governments while the
ultimate legislative power over that land was retained by the Imperial
Parliament. However, if the Crown's title is merely a radical title - no more than a postulate to support the exercise of sovereign power within the familiar feudal
framework of the common law - the problem of
the vesting of the absolute beneficial ownership of colonial land does not
arise: absolute
and beneficial Crown ownership can be acquired, if at all, by an exercise of
the appropriate sovereign power. 57. As none of the grounds advanced for attributing to
the Crown an universal and absolute ownership of colonial land is acceptable,
we must now turn to consider a further
obstacle advanced against the survival of the rights and interests of
indigenous inhabitants on the Crown's acquisition of sovereignty. 58.
The defendant contests the view that the common law recognizes the possession
of rights and interests in land by indigenous inhabitants of British colonies and submits that, There is a formidable
body of authority, mostly cases relating to Indian colonies created by cession,
to support this submission (112) Vajesingji
Joravarsingji v. Secretary of State for Thus Lord Dunedin's judgment in Vajesingji
Joravarsingji v. Secretary of State for "But a
summary of the matter is this: when a territory
is acquired by a sovereign state for the first time that is an act of state.
59. The proposition
that pre-existing rights and interests in (annexed) land must be established, if at all, under the new legal system introduced on an
acquisition of sovereignty is axiomatic, and the proposition that treaties do
not create rights enforceable in municipal courts is well established (114) Cook v. Sprigg (1899) AC 572, at pp 578-579;
Winfat Ltd. v. Attorney-General (1985) AC 733, at p 746. However, the relevant
question is whether the rights and interests
in land derived from the old regime survive the acquisition of sovereignty or
do they achieve recognition only upon an express act of recognition by the new
sovereign? Lord Dunedin's
view in Vajesingji Joravarsingji(115) (1924)
LR 51 Ind App, at p 361 was that recognition
by the sovereign of rights and interests possessed under the old regime was a
condition of their recognition by the common law: "The moment
that cession is admitted the appellants necessarily become petitioners and have
the onus cast on them of showing the acts of acknowledgment, which give them the
right they wish to be declared." Presumably,
until the relevant "acts of acknowledgment" occur, the Crown would be
the absolute owner of private property but, when those acts occur, the rights
and interests acknowledged would revest in their erstwhile possessor. One
might think that the consequence of such a rule would be to create or compound
chaos. Of
course, if the Crown were to confiscate private property as an act of State (116) As in Secretary of State in Council of India
v. Kamachee Boye Sahaba [1859] EngR 837; (1859) 7 Moo Ind App 476 (19
ER 388); but cf. Attorney-General v. Nissan [1969] UKHL 3; (1970) AC 179, at p 227, and
Burmah Oil Co. Ltd. v. Lord Advocate [1964] UKHL 6; (1965)
AC 75 in acquiring sovereignty of a territory or if the Crown were to
extinguish private property pursuant to a law having effect in the territory (117) As in Winfat Ltd. v. Attorney-General (1985)
AC 733, thereafter no recognition of the rights and interests which had
existed under the old regime would be possible. In
either of those events, however, the loss of the rights or interests possessed
under the old regime is attributable to the action of the Crown, not to an absence of an act of recognition of those
rights or interests. Those
cases apart, Lord Dunedin's view
that the rights and interests in land possessed by the inhabitants of a
territory when the Crown acquires sovereignty are lost unless the Crown acts to
acknowledge those rights is not in accord with the weight of authority. For
example, Lord Sumner in In re "it is to
be presumed, in the absence of express confiscation or of subsequent
exproprietary legislation, that the conqueror has respected them and forborne
to This
view accords with the old authorities of The Case of Tanistry and Witrong and
Blany (119) Supra, pp 37-38, earlier
mentioned. Again,
Lord Dunedin's view does not accord with the rule stated by Viscount Haldane in Amodu Tijani(120) (1921) 2 AC, at p 407: "A mere
change in sovereignty is not to be presumed as meant to disturb rights of
private owners; and the general terms of a cession are prima facie to be
construed accordingly." His
Lordship does not limit the generality of the first sentence to acquisitions by
cession; rather, he appears to be construing the terms of a cession in the
light of the general principle by which private proprietary rights survive a
change in sovereignty by whatever means. Despite
his judgment in Vajesingji Joravarsingji, Viscount Dunedin subsequently
accepted (121) In Sakariyawo Oshodi v. Moriamo
Dakolo (1930) AC 667, at p 668 that the decision in Amodu Tijani laid
down that the cession of As
Viscount Haldane's statement of the rule was limited neither to the
construction of a treaty of cession nor to the cession of Again
Lord Denning, speaking for the Privy
Council in Adeyinka Oyekan v. Musendiku Adele (122) (1957) 1 WLR 876, at
p 880; (1957) 2 All ER 785, at p 788, said: "In
inquiring ... what rights are recognized, there is one guiding principle. It is
this: The courts will assume that the British Crown intends that the rights of
property of the inhabitants are to be fully respected. Whilst, therefore,
the British Crown, as Sovereign, can make laws enabling it compulsorily to
acquire land for public purposes, it will see that proper compensation is
awarded to every one of the inhabitants who has by native law an interest in
it: and the courts will declare the inhabitants entitled to compensation
according to their interests, even though those interests are of a kind unknown
to English law". We
are not concerned here with compensation for expropriation but we are concerned
with the survival of private rights and interests in land and their liability
to be extinguished by action of the Crown. The
rule in Amodu Tijani was followed by the Privy Council in Sobhuza II. v. Miller (123) (1926)
AC, at p 525 where the title of an indigenous community, which their
Lordships thought to be generally usufructuary in character, was held to
survive as "a mere qualification of
a burden on the radical or final title of whoever is sovereign",
capable of being extinguished "by
the action of a paramount power which assumes possession or the entire control
of land." 60. In Calder v.
Attorney-General of British Columbia(124) (1973) SCR, at p 416; contra per Judson
J. at pp 328-330; (1973) 34 DLR (3d), at p 218; contra per Judson J. at pp 156,
157 Hall J. rejected as "wholly
wrong" "the proposition
that after conquest or discovery the native peoples have no rights at all
except those subsequently granted or recognized by the conqueror or discoverer".
61.
The preferable
rule, supported by the authorities cited, is that a mere change in
sovereignty does not extinguish native title to land. (The
term "native title" conveniently describes the interests and rights
of indigenous inhabitants in land, whether communal, group or individual,
possessed under the traditional laws acknowledged by and the traditional
customs observed by the indigenous inhabitants.)
The preferable
rule equates the indigenous inhabitants of a settled colony with the
inhabitants of a conquered colony in respect of their rights and interests in
land and recognizes in the indigenous inhabitants of a settled colony the
rights and interests recognized by the Privy Council in In re Southern Rhodesia
as surviving to the benefit of the residents of a conquered colony. 62.
If native title survives the Crown's acquisition of sovereignty as, in my view,
it does, it is unnecessary to examine the alternative arguments advanced to
support the rights and interests of the Meriam people to their traditional
land. One argument raised
the presumption of a Crown grant arising from the Meriam people's possession of
the another was the
existence of a title arising after annexation in accordance with a supposed
local legal custom under the common law whereby the Meriam people were said to
be entitled to possess the There are substantial
difficulties in the way of accepting either of these arguments, but it is
unnecessary to pursue them. It
is sufficient to state that, in my opinion, the common law of Australia rejects
the notion that, when the Crown acquired sovereignty over territory which is
now part of Australia it thereby acquired the absolute beneficial ownership of
the land therein, and accepts that the antecedent rights and interests in land
possessed by the indigenous inhabitants of the territory survived the change in
sovereignty. Those
antecedent rights and interests thus constitute a burden on the radical title
of the Crown. 63. It must be
acknowledged that, to state the common law in this way involves the overruling
of cases which have held the contrary. To maintain the
authority of those cases would destroy the equality of all Australian citizens
before the law. 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 characterizing the indigenous inhabitants of the Australian colonies
as people too low in the scale of social organization to be acknowledged as
possessing rights and interests in land. Moreover, to reject
the theory that the Crown acquired absolute beneficial ownership of land is to
bring the law into conformity with Australian history. The dispossession of
the indigenous inhabitants of Dispossession is
attributable not to a failure of native title to survive the acquisition of
sovereignty, but to its subsequent extinction by a paramount power. Before examining the
power to extinguish native title, it is necessary to say something about the
nature and incidents of the native title which, surviving the Crown's
acquisition of sovereignty, burdens the Crown's radical title. 64. 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 ascertainment may
present a problem of considerable difficulty, as Moynihan J. perceived in the
present case. It is a problem that did not arise in the case of a settled
colony so long as the fictions were
maintained that customary rights could not be reconciled "with the institutions or the legal ideas of
civilized society" (125) In re
Southern Rhodesia (1919) AC, at p 233, that there was no law before the
arrival of the British colonists in a settled colony and that there was no
sovereign law-maker in the territory of a settled colony before sovereignty was
acquired by the Crown. These fictions denied the possibility of a native
title recognized by our laws. But
once it is acknowledged that an inhabited territory which became a settled
colony was no more a legal desert than it was "desert uninhabited" in
fact, it is necessary to ascertain by evidence the nature and incidents of
native title. Though these are
matters of fact, some general propositions about native title can be stated
without reference to evidence. 65. First, unless
there are pre-existing laws of a territory over which the Crown acquires
sovereignty which provide for the alienation of interests in land to strangers,
the rights and interests which constitute a native title can be possessed only
by the indigenous inhabitants and their descendants. Native
title, though recognized by the common law, is not an institution of the common law and
is not alienable by the common law. Its alienability is
dependent on the laws from which it is derived. If alienation of a
right or interest in land is a mere matter of the custom observed by the
indigenous inhabitants, not provided for by law enforced by a sovereign power,
there is no machinery which can enforce the rights of the alienee. The common law
cannot enforce as a proprietary interest the rights of a putative alienee whose
title is not created either under a law which was enforceable against the
putative alienor at the time of the alienation and thereafter until the change
of sovereignty or under the common law. And, subject to an
important qualification, the only title dependent on custom which the common
law will recognize is one which is consistent with the common law. Thus, in The Case of
Tanistry, the Irish custom of tanistry was held to be void because it was
founded in violence and because the vesting of title under the custom was
uncertain(126) (1608) The inconsistency
that the court perceived between the custom of tanistry known to the Brehon law
of At that stage in its
development, the common law was too rigid to admit recognition of a native
title based on other laws or customs, but that rigidity has been relaxed, at
least since the decision of the Privy Council in Amodu Tijani. The general principle
that the common law will recognize a customary title only if it be consistent
with the common law is subject to an exception in favour of traditional native
title. 66. Of course, since
European settlement of But that is not the
universal position. It is clearly not the
position of the Meriam people. Where a clan or group
has continued to acknowledge the laws and (so far as practicable) to observe
the customs based on the traditions of that clan or group, whereby their
traditional connexion with the land has been substantially maintained, the
traditional community title of that clan or group can be said to remain in
existence. The common law can,
by reference to the traditional laws and customs of an indigenous people,
identify and protect the native rights and interests to which they give rise. However,
when the tide of history has washed away any real acknowledgment of traditional
law and any real observance of traditional customs, the foundation of native
title has disappeared. A
native title which has ceased with the abandoning of laws and customs based on
tradition cannot be revived for contemporary recognition. Australian law can
protect the interests of members of an indigenous clan or group, whether
communally or individually, only in conformity with the traditional laws and
customs of the people to whom the clan or group belongs and only where members
of the clan or group acknowledge those laws and observe those customs (so far
as it is practicable to do so). Once traditional
native title expires, the Crown's radical title expands to a full beneficial
title, for then there is no other proprietor than the Crown. 67. It follows that a
right or interest possessed as a native title cannot be acquired from an
indigenous people by one who, not being a member of the indigenous people, does
not acknowledge their laws and observe their customs; nor can such a right
or interest be acquired by a clan, group or member of the indigenous people
unless the acquisition is consistent with the laws and customs of that people. Such a right or
interest can be acquired outside those laws and customs only by the Crown(127) This result has been reached in other
jurisdictions, though for different reasons: see Reg. v. Symonds (1847) NZPCC ,
at p 390; Johnson v. McIntosh (1823) 8 wheat, at p 586 (21 US , at p 259); St.
Catherine's Milling and Lumber Co. v. The Queen (1887) 13 SCR 577, at p 599.
Once the Crown
acquires sovereignty and the common law becomes the law of the territory, the
Crown's sovereignty over all land in the territory carries the capacity to
accept a surrender of native title. The native title may
be surrendered on purchase or surrendered voluntarily, whereupon the Crown's
radical title is expanded to absolute ownership, a plenum dominium, for there
is then no other owner(128) St. Catherine's
Milling and Lumber Co. v. The Queen (1888) 14 App Cas, at p 55. If native title were
surrendered to the Crown in expectation of a grant of a tenure to the
indigenous title holders, there may be a fiduciary duty on the Crown to
exercise its discretionary power to grant a tenure in land so as to satisfy the
expectation(129) See Guerin v. The Queen (1984) 13 DLR (4th) 321,
at pp 334, 339, 342-343, 356-357, 360-361, but it is unnecessary to
consider the existence or extent of such a fiduciary duty in this case. Here, the fact is
that strangers were not allowed to settle on the The Meriam people
asserted an exclusive right to occupy the There was a possible
alienation of some kind of interest in 2 acres to the London Missionary Society
prior to annexation but it is unnecessary to consider whether that land was alienated
by Meriam law or whether the alienation was sanctioned by custom alone. As
we shall see, native title to that land was lost to the Meriam people in any
event on the grant of a lease by the Crown in 1882 or by its subsequent
renewal. 68. Secondly, native
title, being recognized by the common law (though not as a common law tenure),
may be protected by such legal or equitable remedies as are appropriate to the
particular rights and interests established by the evidence, whether
proprietary or personal and usufructuary in nature and whether possessed by a
community, a group or an individual. The incidents of a
particular native title relating to inheritance, the transmission or
acquisition of rights and interests on death or marriage, the transfer of
rights and interests in land and the grouping of persons to possess rights and
interests in land are matters to be determined by the laws and customs of the
indigenous inhabitants, provided those laws
and customs are not so repugnant to natural justice, equity and good conscience
that judicial sanctions under the new regime must be withheld: Idewu
Inasa v. Oshodi(130) (1934) AC 99, at p 105.
Of course in time the
laws and customs of any people will change and the rights and interests of the
members of the people among themselves will change too. But so long as the
people remain as an identifiable community, the members of whom are identified
by one another as members of that community living under its laws and customs,
the communal native title survives to be enjoyed by the members according to
the rights and interests to which they are respectively entitled under the
traditionally based laws and customs, as currently acknowledged and observed. Here, the Meriam
people have maintained their own identity and their own customs. The 69. Thirdly, where an
indigenous people (including a clan or group), as a community, are in
possession or are entitled to possession of land under a proprietary native
title, their possession may be protected or their entitlement to possession may
be enforced by a representative action brought on behalf of the people or by a
sub-group or individual who sues to protect or enforce rights or interests
which are dependent on the communal native title. Those rights and
interests are, so to speak, carved out of the communal native title. A sub-group or
individual asserting a native title dependent on a communal native title has a
sufficient interest to sue to enforce or protect the communal title (131) Australian Conservation Foundation v. The
Commonwealth (1980) 146 CLR 493, at pp 530-531, 537-539, 547-548; Onus v. Alcoa
of Australia Ltd. [1981] HCA 50; (1981) 149 CLR 27, at pp 35-36,
41-42, 46, 51, 62, 74-75. A communal native
title enures for the benefit of the community as a whole and for the sub-groups
and individuals within it who have particular rights and interests in the
community's lands. 70. The recognition
of the rights and interests of a sub-group or individual dependent on a
communal native title is not precluded by an absence of a communal law to
determine a point in contest between rival claimants. By custom, such a
point may have to be settled by community consensus or in some other manner
prescribed by custom. A court may have to
act on evidence which lacks specificity in determining a question of that kind.
That is statutorily recognized in the case of the
"An
Island Court has jurisdiction to hear and 71. Whatever be the
precision of Meriam laws and customs with respect to land, there is abundant evidence
that land was traditionally occupied by individuals or family groups and that
contemporary rights and interests are capable of being established with
sufficient precision to attract declaratory or other relief. Although the
findings made by Moynihan J. do not permit a confident conclusion that, in
1879, there were parcels of land in the If the doctrine of
Attorney-General v. Brown were applied to the But,
by applying the rule that the communal proprietary interests of the indigenous
inhabitants survive the Crown's acquisition of sovereignty, it is possible to
determine, according to the laws and customs of the Meriam people, contests
among members of the Meriam people relating to rights and interests in
particular parcels of land. 72. The native titles
claimed by the Meriam people - communally, by group or individually - avoid the
Scylla of the 1879 annexation of the 73. Sovereignty
carries the power to create and to extinguish private rights and interests in
land within the Sovereign's territory (132)
Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975) 528 Fed 2d
370, at p 376 n.6. It follows that, on a
change of sovereignty, rights and interests in land that may have been
indefeasible under the old regime become liable to extinction by exercise of
the new sovereign power. The sovereign power
may or may not be exercised with solicitude for the welfare of indigenous
inhabitants but, in the case of common law countries, the courts cannot review
the merits, as distinct from the legality, of the exercise of sovereign power(133) United States v. Santa Fe Pacific Railroad
Company [1942] USSC 12; (1941)
314 US 339, at p 347; Tee-Hit-Ton Indians v. United States (1954) 348 US 272,
at pp 281-285. However,
under the constitutional law of this country, the legality (and hence the
validity) of an exercise of a sovereign power depends on the authority vested
in the organ of government purporting to exercise it: municipal
constitutional law determines the scope of authority to exercise a sovereign
power over matters governed by municipal law, including rights and interests in
land. 74. In Queensland,
the Crown's power to grant an interest in land is, by force of ss.30 and 40 of the Constitution Act of 1867 (Q.), an exclusively
statutory power and the validity of a particular grant depends upon conformity
with the relevant statute(134) Cudgen Rutile
(No.2) Ltd. v. Chalk (1975) AC 520, at pp 533-534. When validly made, a
grant of an interest in land binds the Crown and the Sovereign's successors (135) Halsbury, op cit, 4th ed., vol.8, par.1047.
The courts cannot
refuse to give effect to a Crown grant "except perhaps in a proceeding by
scire facias or otherwise, on the prosecution of the Crown itself" (136) Wi Parata v. Bishop of Wellington (1877) 3
NZ(Jur) NS 72, at p 77. Therefore an interest
validly granted by the Crown, or a right or interest dependent on an interest
validly granted by the Crown cannot be extinguished by the Crown without
statutory authority. As the Crown is not
competent to derogate from a grant once made (137),
a statute which confers a power on the Crown will be presumed (so far as
consistent with the purpose for which the power is conferred) to stop
short of authorizing any impairment of an interest in land granted by the Crown
or dependent on a Crown grant. But, as native title
is not granted by the Crown, there is no comparable presumption affecting the
conferring of any executive power on the Crown the exercise of which is apt to
extinguish native title. 75. However, the
exercise of a power to extinguish native title must reveal a clear and plain
intention to do so, whether the action be taken by the Legislature or by the
Executive. This requirement,
which flows from the seriousness of the consequences to indigenous inhabitants
of extinguishing their traditional rights and interests in land, has been
repeatedly emphasized by courts dealing with the extinguishing of the native
title of Indian bands in It is unnecessary for
our purposes to consider the several juristic foundations - proclamation,
policy, treaty or occupation - on which native title has been rested in Canada
and the United States but reference to the leading cases in each jurisdiction
reveals that, whatever the juristic foundation assigned by those courts might
be, native title is not extinguished unless there be a clear and plain
intention to do so (138) Calder v.
Attorney-General of British Columbia (1973) SCR, at p 404; (1973) 34 DLR (3d),
at p 210; Hamlet of Baker Lake v. Minister of Indian Affairs (1979) 107 DLR (3d) 513, at p 552; Reg. v. Sparrow (1990)
1 SCR.1075, at p 1094; (1990) 70 DLR (4th) 385, at p 401; United States v.
Santa Fe Pacific Railroad Co. (1941) 314 US , at pp 353, 354; Lipan Apache
Tribe v. United States (1967) 180 Ct Cl 487, at p 492. That approach has been
followed in 76. A clear and plain
intention to extinguish native title is not revealed by a law which merely
regulates the enjoyment of native title (140)
Reg. v. Sparrow (1990) 1 SCR, at p 1097; (1990) 70 DLR (4th), at p 400 or
which creates a regime of control that is consistent with the continued
enjoyment of native title (141) United States
v. Santa Fe Pacific Railroad Co. (1941) 314 US , at pp 353-354 . A fortiori, a law
which reserves or authorizes the reservation of land from sale for the purpose
of permitting indigenous inhabitants and their descendants to enjoy their
native title works no extinguishment. 77. The Crown did not
purport to extinguish native title to the In 1882, in purported
exercise of powers conferred by the Crown Lands Alienation Act of 1876 (Q.),
the That Act was repealed
by the Crown Lands Act 1884 (Q.), which took its place. In 1912, a
proclamation was made pursuant to s.180 of the Land Act 1910 which
"permanently reserved and set apart" the "Crown
land" was defined by s.4 of the Land Act 1910 as follows: "All land
in (b) Reserved for
or dedicated to public purposes; or (c) Subject to
any lease or license lawfully granted by the Crown: Provided that land held
under an occupation license shall be deemed to be Crown land".
If
the Murray Islands had been effectively "reserved for public
purposes" by the 1882 reservation, they would not have been "Crown
land" by reason of par.(b) of the definition but, in that event, they
would have fallen within s.180(3) which provided: " All land
heretofore reserved or set apart for any public purpose, and the fee-simple
whereof has not been granted by the Crown, shall hereafter be deemed to be a
reserve for public purposes under this Act, and deemed to have been so reserved
under this section." Section
181 of the Land Act 1910 empowered the Governor in Council "without issuing any deed of grant, (to)
place any land reserved, either temporarily or permanently, for any public
purpose under the control of trustees; and may declare the style or title of
such trustees and the trusts of the land." In
1939, the Governor in Council placed the By
s.4(15) of The Land Act of 1962 (Q.) the reservation of the Murray Islands and
the appointment of trustees of the reserve continue
in force notwithstanding the repeal of the Land Act 1910 and are deemed
to have been made under the analogous provisions of the Land Act 1962. Sections
334(1) and (3) and 335 are provisions analogous respectively to ss.180(1) and
(3) and 181 of the Land Act 1910. The
definition of "Crown land" in s.5 of the Land Act 1962 corresponds
with the definition in the Land Act 1910. 78. No doubt the term
"Crown land" was defined in these Acts in the belief, which has been
current since Attorney-General v. Brown, that the absolute ownership of all land in Nevertheless, the
denotation of the term "Crown land" in the Land Act 1910 and the Land
Act 1962 is the same whether the common law attributes to the Crown the radical title or absolute ownership. A difficulty of
construction arises, however, in connection with the provisions relating to the
removal of intruders from Crown land or land reserved for public purposes. Section 91 of the
Crown Lands Alienation Act, for example, makes it an offence for a person to be
found in occupation of any such land "unless lawfully claiming under a
subsisting lease or licence". If this provision were construed as having
denied to the Meriam people any right to remain in occupation of their land,
there would have been an indication that their native title was extinguished. The Solicitor-General
for Queensland conceded that, if s.91 applied - and he did not contend that it
did - the Meriam people could lawfully have been driven into the sea at any
time after annexation and that they have been illegally allowed to remain on
the Murray Islands ever since. Such a conclusion
would make nonsense of the law. As Hall J. said of a
similar proposition in Calder v. Attorney-General of To construe s.91 or
similar provisions as applying to the Meriam people in occupation of the 79. Native title was
not extinguished by the creation of reserves nor by the mere appointment of
"trustees" to control a reserve where no grant of title was made. To reserve land from
sale is to protect native title from being extinguished by alienation under a
power of sale. To appoint trustees
to control a reserve does not confer on the trustees a power to interfere with
the rights and interests in land possessed by indigenous inhabitants under a native
title. Nor is native title
impaired by a declaration that land is reserved not merely for use by the
indigenous inhabitants of the land but "for use of Aboriginal Inhabitants
of the State" generally (144) Assuming
that that term relates to all indigenous inhabitants of the State whether
having any connection with the particular reserve or not: see Corporation of
the Director of Aboriginal and Islanders Advancement v. Peinkinna (1978) 52
ALJR 286. If the creation of a
reserve of land for Aboriginal Inhabitants of the State who have no other
rights or interest in that land confers a right to use that land, the right of
user is necessarily subordinate to the right of user consisting in legal rights
and interests conferred by native title. Of course, a native
title which confers a mere usufruct may leave room for other persons to use the
land either contemporaneously or from time to time. 80. In this case, the
Solicitor-General did not contend that if, contrary to his submissions, native
title became, after annexation and without an act of recognition by the Crown,
a legally recognized interest in the Murray Islands, the Crown had extinguished
that title. He drew attention to
the fact that the Meriam people had been left in peaceful occupation of the For his part, counsel
for the plaintiffs submitted that the State of Although that
proposition is significant in determining title to the territorial sea, seabed
and airspace and continental shelf and incline, it has no relevance to the
power to extinguish native title to land which is not a matter of international
concern (146) ibid., at pp 373, 467. The sovereign powers
which might be exercised over the waste lands of the Crown within Queensland
were vested in the Colony of Queensland subject to the ultimate legislative
power of the Imperial Parliament so long as that Parliament retained that power
and, after Federation, subject to the Constitution of the Commonwealth of Australia.
The power to reserve
and dedicate land to a public purpose and the power to grant interests in land
are conferred by statute on the Governor in Council of Queensland and an
exercise of these powers is, subject to the Racial Discrimination Act, apt to extinguish
native title. The Queensland
Parliament retains, subject to the Constitution and to restrictions imposed by
valid laws of the Commonwealth (147) Mabo v. This being so, it is
necessary to consider the effect which the granting of leases over parts of the
Murray Islands has had on native title before the Racial Discrimination Act came into force. 81. A Crown grant
which vests in the grantee an interest in land which is inconsistent with the
continued right to enjoy a native title in respect of the same land necessarily
extinguishes the native title. The extinguishing of
native title does not depend on the actual intention of the Governor in Council
(who may not have adverted to the rights and interests of the indigenous
inhabitants or their descendants), but on the effect which the grant has on the
right to enjoy the native title. If a lease be granted,
the lessee acquires possession and the Crown acquires the reversion expectant
on the expiry of the term. The Crown's title is thus expanded from the mere
radical title and, on the expiry of the term, becomes a plenum dominium. Where the Crown
grants land in trust or reserves and dedicates land for a public purpose, the
question whether the Crown has revealed a clear and plain intention to
extinguish native title will sometimes be a question of fact, sometimes a
question of law and sometimes a mixed question of fact and law. Thus, if a
reservation is made for a public purpose other than for the benefit of the
indigenous inhabitants, a right to continued enjoyment of native title may be
consistent with the specified purpose - at least for a time - and native title
will not be extinguished. But if the land is
used and occupied for the public purpose and the manner of occupation is
inconsistent with the continued enjoyment of native title, native title will be
extinguished. A reservation of land
for future use as a school, a courthouse or a public office will not by itself
extinguish native title: construction of the building, however, would be
inconsistent with the continued enjoyment of native title which would thereby
be extinguished. But where the Crown
has not granted interests in land or reserved and dedicated land inconsistently
with the right to continued enjoyment of native title by the indigenous
inhabitants, native title survives and is legally enforceable. 82. As the
Governments of the Australian Colonies and, latterly, the Governments of the
Commonwealth, States and Territories have alienated or appropriated to their
own purposes most of the land in this country during the last 200 years, the
Australian Aboriginal peoples have been substantially dispossessed of their
traditional lands. They were
dispossessed by the Crown's exercise of its sovereign powers to grant land to
whom it chose and to appropriate to itself the beneficial ownership of parcels
of land for the Crown's purposes. Aboriginal rights and
interests were not stripped away by operation of the common law on first
settlement by British colonists, but by the exercise of a sovereign authority
over land exercised recurrently by Governments. To treat the
dispossession of the Australian Aborigines as the working out of the Crown's
acquisition of ownership of all land on first settlement is contrary to
history. Aborigines were
dispossessed of their land parcel by parcel, to make way for expanding colonial
settlement. Their dispossession underwrote the development of the nation. But,
if this be the consequence in law of colonial settlement, is there any occasion
now to overturn the cases which held the Crown to have become the absolute
beneficial owner of land when British colonists first settled here? Does it make any
difference whether native title failed to survive British colonization or was
subsequently extinguished by government action? In this case, the
difference is critical: except for certain transactions next to be mentioned,
nothing has been done to extinguish native title in the There, the Crown has
alienated only part of the land and has not acquired for itself the beneficial
ownership of any substantial area. And there may be
other areas of Even
if there be no such areas, it is appropriate to identify the events which
resulted in the dispossession of the indigenous inhabitants of 83. After this
lengthy examination of the problem, it is desirable to state in summary form what I hold to be the common law of 1. The Crown's
acquisition of sovereignty over the
several parts of 2. On acquisition of
sovereignty over a particular part of 3. Native title to land survived the Crown's acquisition
of sovereignty and radical title. The rights and
privileges conferred by native title were unaffected by the Crown's acquisition
of radical title but the acquisition of
sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native
title. 4. Where the Crown has validly alienated land by granting an interest that is wholly or
partially inconsistent with a continuing right to enjoy native title, native
title is extinguished to the extent of
the inconsistency. Thus native title has
been extinguished by grants of estates of freehold or of leases but not
necessarily by the grant of lesser interests (e.g. authorities to prospect for
minerals). 5. Where the Crown has validly and effectively appropriated land to itself and the
appropriation is wholly or partially inconsistent with a continuing right to
enjoy native title, native title is extinguished
to the extent of the inconsistency. Thus native title has
been extinguished to parcels of the waste lands of the Crown that have been
validly appropriated for use (whether by dedication, setting aside, reservation
or other valid means) and used for roads, railways, post offices and other
permanent public works which preclude the continuing concurrent enjoyment of native
title. Native title continues where the
waste lands of the Crown have not been so appropriated or used or where the
appropriation and use is consistent with the continuing concurrent enjoyment of
native title over the land (e.g., land set aside as a national park) 6. Native title to
particular land (whether classified by the common law as proprietary,
usufructuary or otherwise), its incidents and the persons entitled thereto are
ascertained according to the laws and customs of the indigenous people who, by
those laws and customs, have a connection with the land. It is immaterial that
the laws and customs have undergone some change since the Crown acquired
sovereignty provided the general nature of the connection between the
indigenous people and the land remains. Membership of the
indigenous people depends on biological
descent from the indigenous people and on mutual recognition of a particular person's
membership by that person and by the elders or other persons enjoying
traditional authority among those people. 7. Native title to an area of land which a clan
or group is entitled to enjoy under the laws and customs of an indigenous
people is extinguished if the clan or
group, by ceasing to acknowledge those
laws, and (so far as practicable) observe
those customs, loses its connection with the land or on the death of the last
of the members of the group or clan. 8. Native title over any parcel of land can be surrendered to the Crown voluntarily by all
those clans or groups who, by the traditional laws and customs of the
indigenous people, have a relevant connection with the land but the rights and
privileges conferred by native title are otherwise inalienable to persons who
are not members of the indigenous people to whom alienation is permitted by the
traditional laws and customs.
9. If native title to any parcel of the waste lands
of the Crown is extinguished, the Crown becomes the absolute beneficial owner. 84. These
propositions leave for resolution by the general law the question of the
validity of any purported exercise by the Crown of the power to alienate or to
appropriate to itself waste lands of the Crown. In 85. It remains to
apply these principles to the 86. In February 1882,
the 87. However, leases
were granted by the Crown over certain parcels of land in the 88. Another lease was
purportedly granted on 6 May 1931 to two lessees (not being members of the
Meriam people) under either s.171(1) or s.179(1) of the Land Act 1910-1930 (Q.)
over the whole of the islands of Dauar and Waier for a period of 20 years for
the purpose of establishing a sardine factory. The special conditions contained
in the lease included the following: "The
Lessees shall not in any way obstruct or interfere with the use by the Factory
buildings and houses were erected there. Although the term of the lease was
extended and a new lease was issued containing the same conditions, the sardine
factory was closed and, on 15 June 1938, the Chief Protector of Aboriginals
sought forfeiture of the lease and revealed that: "The Ultimately,
the lease was forfeited, the Chief Protector paid for the improvements and
Dauar and Waier again became part of the reserve. 89. The plaintiffs
submit that the Crown had no power under the Land Acts to grant a lease of
these If that submission be
right, the lease was wholly ineffective, for a purported lease granted without
statutory authority is ineffective to dispose of any interest in land(149) Cudgen Rutile (No.2) Ltd. v. Chalk (1975) AC,
at pp 533-534. The submission is founded
on a reading down of s.179(1) of the Land Act 1910-1930 (which contains a
general power to grant a lease for business purposes) so that it conforms to
the power conferred by s.179(2) to grant a lease of country land which has been
reserved for a public purpose when the land is infested with noxious weeds. In my opinion the
powers conferred by sub-ss.(1) and (2) of s.179 are cumulative and the power
conferred by sub-s.(1) should not be read down in the manner suggested. Section 179 does not
deny the validity of the lease. Whether land reserved
for a public purpose under s.180 could be leased by anybody but trustees of the
reserve under s.185(2) is perhaps an open question, but it was not raised in
argument. It should not now be
finally determined. The question can be
left for determination, if need be, in proceedings in which the Crown's power
to grant the lease of Dauar and Waier on 6 May 1931 is canvassed and in which
all interested parties can be joined. If the lease of Dauar
and Waier were validly granted, the limited reservations in the special
conditions are not sufficient to avoid the consequence that the traditional
rights and interests of the Meriam people were extinguished. By granting the
lease, the Crown purported to confer possessory rights on the lessee and to
acquire for itself the reversion expectant on the termination of the lease. The
sum of those rights would have left no room for the continued existence of
rights and interests derived from Meriam laws and customs. 90. Moynihan J's
findings mention the use of other land on Mer for administrative purposes,
namely, for the construction of a Court House, a hospital, a store, a school, a
teacher's residence, a Jail House, a new "native constable's residence
with lock-up" and a village square. His Honour mentions a
Murray Island Court Record relating to an area which "was resumed by the
Protector of Aboriginals and set aside for a new village". Whether these
activities were authorized by law and whether, if so, they were inconsistent with
continued enjoyment of the native title to the land affected by these
activities are questions which were not discussed in submissions before this
Court. It is not possible
now finally to determine whether the affected parcels of land are the subject
of native title. 91. The Court was
informed that deeds of grant in trust pursuant to the Land Act 1962-1988 have
been granted in respect of all islands in the Torres Strait other than the A deed of grant in
trust can be granted in respect of any Crown land which, in the opinion of the
Governor in Council, is or may be required for any public purpose: s.334(1). To bring a reserve
within the definition of "Crown land", the Order in Council creating
the reserve must be rescinded: ss.5 and 334(4). Although the Governor
in Council is empowered generally to declare that land granted in trust for a
public purpose shall "revert to the Crown" (s.353) an Act of
Parliament is needed to authorize the Governor in Council to declare that land
granted in trust for the benefit of Aboriginal or Islander inhabitants should
revert to the Crown: s.353A. As no deed of grant
in trust has issued in respect of the The plaintiffs
contend that the Aborigines and Torres Strait Islanders (Land Holding) Act
1985 (Q.) is an Act of Parliament satisfying s.353A but, in the
absence of a deed of grant in trust, there is no need to consider that
contention. It appears that the
plaintiffs see some advantage in preventing the granting of a deed of grant in
trust and they seek, inter alia, a declaration that the granting of a deed of
grant in trust "would be unlawful by reason of the provisions of section 9 and 10 of the Racial Discrimination Act 1975 (Commonwealth)."
92. This declaration
is founded on the decision in Mabo v. The plaintiffs now
seek to deny the power of the Governor in Council to grant a deed of grant in
trust because, if effective, the alienation of the Murray Islands to a trustee
- albeit the trustee would be the Island Council constituted under the
Community Services (Torres Strait) Act - would extinguish native title
including the native title claimed by the individual plaintiffs. Under the relevant
provisions of the Land Act, the Island Council as trustee would have power to
lease land inconsistently with native title. 93. There are two
reasons why the declaration sought by the plaintiffs should be refused. First, there is no
evidence that the Governor in Council intends to grant a deed of grant in trust
in respect of land in the Murray Islands and the Solicitor-General denied that there
were "the slightest indications" that the Governor in Council would
do so. Secondly, s.10 of the Racial Discrimination Act may not have an
effect on the granting of a deed of grant in trust similar to the effect which s.10 had upon the Queensland Coast Islands
Declaratory Act 1985. It will not have a
nullifying effect if the action taken under the relevant State laws constitutes
a special measure falling within s.8(1) of the Racial Discrimination Act and thereby escapes
the operation of s.10(151) Gerhardy v. Brown [1985] HCA 11; (1985) 159 CLR 70. Whether the granting
of a deed of grant in trust would constitute a special measure is a question
which cannot be answered without an examination of all the relevant
circumstances; it involves findings of fact. In the absence of findings which
determine whether a deed of grant in trust would constitute a special measure,
no declaration that the granting of such a deed would be "unlawful"
can be made. There is no need to
determine whether s.9 of the Racial Discrimination Act is inconsistent with
the relevant provisions of the Land Act 1962, for there is nothing to show that
those provisions will be used to affect interests which the plaintiffs seek to
protect. 94. This matter came
before the No such claim was
made before this Court by the plaintiff Eddie Mabo. In the course of the
hearing before this Court, it emerged that it
was not practicable to answer those questions by acting upon findings made by
Moynihan J. The plaintiffs'
statement of claim was then amended to seek declarations relating to the title
of the Meriam people. The plaintiffs Passi
and Rice claim rights and interests dependent on the native title of the Meriam
people, not as interests dependent upon Crown
grants. In the absence of any
party seeking to challenge their respective claims
under the laws and customs of the Meriam people, the action is not
constituted in a way that permits the granting of declaratory relief with
respect to claims based on those laws and customs - even had the findings of
fact been sufficient to satisfy the Court of the plaintiffs' respective
interests. Declaratory relief
must therefore be restricted to the native communal title of the Meriam people.
The plaintiffs have
the necessary interest to support an action for declarations relating to that
title. 95. The plaintiffs
seek declarations that the Meriam people are entitled to the "(a)
as owners (b)
as possessors (c)
as occupiers, or (d)
as persons entitled to use and enjoy the said islands"; that
- "the
Murray Islands are not and never have been 'Crown Lands' within the meaning of
the Lands Act 1962 (Qld) (as amended) and prior Crown lands legislation" and
that the State of Queensland is not entitled to extinguish the title of the
Meriam people. 96. As the Crown
holds the radical title to the Murray Islands and as native title is not a
title created by grant nor is it a common law tenure, it may be confusing to
describe the title of the Meriam people as conferring "ownership", a
term which connotes an estate in fee simple or at least an estate of freehold. Nevertheless, it is
right to say that their native title is effective as against the State of It is also right to
say that the Murray Islands are not Crown land because the land has been either
"reserved for or dedicated to public purposes" or is "subject to
... lease". However, that does
not deny that the Governor in Council may, by appropriate exercise of his
statutory powers, extinguish native title. The native title has
already been extinguished over land which has been leased pursuant to powers
conferred by the Land Act in force at the time of the granting or renewal of
the lease. Accordingly, title to
the land leased to the Trustees of the Australian Board of Missions has been
extinguished and title to Dauar and Waier may have been extinguished. It may be that areas
on Mer have been validly appropriated for use for administrative purposes the
use of which is inconsistent with the continued enjoyment of the rights and
interests of Meriam people in those areas pursuant to Meriam law or custom and,
in that event, native title has been extinguished over those areas. None of these areas
can be included in the declaration. 97. I would therefore
make a declaration in the following terms: Declare
- (2)
that the Meriam people are entitled as against the whole world to possession,
occupation, use and enjoyment of the island of Mer except for that parcel of
land leased to the Trustees of the Australian Board of Missions and those
parcels of land (3)
that the title of the Meriam people is subject to the power of the Parliament
of Queensland and the power of the Governor in Council of Queensland to
extinguish that title by valid exercise of their respective powers, provided
any exercise DEANE AND GAUDRON JJ: The issues raised by this case
directly concern the entitlement, under the law of (i) The establishment
of 2. The international
law of the eighteenth century consisted essentially of the rules governing the
relations and dealings among the nations of 3. The consistent
references to "our territory called New South Wales" in the two
Commissions(152) 12 October 1786 and 2 April 1787: see Historical Records of
Australia (hereafter "HRA"), (1914) Series 1, vol.1, pp 1, 2 and in
the Instructions(153) 25 April 1787: ibid., p 9 from George III to Captain
Arthur Phillip indicate a view that at least part(154) i.e. the coastline and
adjacent islands between latitudes 10 37' and 38 south (see Captain Cook's
Journal (ed. Wharton), (1893), p 312), perhaps "backed by an unexplored
interior": see In re Southern Rhodesia (1919) AC 211, at pp 215-216 of the
new Colony had automatically become British territory in 1770 by virtue of
Cook's "discovery" and various pronouncements of taking
"possession ... in the Name of His Majesty"(155) See, e.g., Captain
Cook's Journal, op cit, p 312 and, generally, Scott, "Taking Possession of
Australia - The Doctrine of 'Terra Nullius'", (1940) 26 Royal Australian
Historical Society Journal and Proceedings, 1, at pp 8-9. In the context of the
contemporary international law, however, the preferable view is that it was the
intention of the Crown that the establishment of sovereignty would be by
"settlement" in the extended sense explained above and would be
effected when, after the arrival of the First Fleet, Phillip complied with his
Instructions and caused his second Commission as Governor to be read and published
"with all due solemnity"(156) HRA, (1914), Series 1, vol.1, p 9. The
Commission was so read and published on 7 February, 1788: HRA, (1922), Series
4, p xiv. Even on that approach, there are problems about the establishment of
the Colony in so far as the international law of the time is concerned. In
particular, contemporary international law would seem to have required a degree
of actual occupation of a "discovered" territory over which
sovereignty was claimed by settlement and it is scarcely arguable that the
establishment by Phillip in 1788 of the penal camp at Sydney Cove constituted
occupation of the vast areas of the hinterland of eastern Australia designated
by his Commissions(157) i.e. "all the country inland (from the eastern
coastline) westward as far as" longitude 135 east: HRA, (1914), Series 1,
vol.1, p 2. However, in so far as the establishment of British sovereignty is
concerned, those problems do not exist for the purposes of our domestic law. 4. Under British law
in 1788, it lay within the prerogative power of the Crown to extend its
sovereignty and jurisdiction to territory over which it had not previously
claimed or exercised sovereignty or jurisdiction(158) See Post Office v.
Estuary Radio Ltd. (1968) 2 QB 740, at p 753; New South Wales v. The
Commonwealth ("the Seas and Submerged Lands Case") [1975] HCA 58; (1975) 135 CLR 337, at p 388;
Wacando v. The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, at p 11. The
assertion by the Crown of an exercise of that prerogative to establish a new
Colony by "settlement" was an act of State whose primary operation
lay not in the municipal arena but in international politics or law. The
validity of such an act of State (including any expropriation of property or
extinguishment of rights which it effected) could not be challenged in British
courts(159) See, e.g., Salaman v. Secretary of State for (ii) The introduction
of the common law 5. The common law of
this country had it origins in, and initially owed its authority to, the common
law of 6. It follows that,
once the establishment of the Colony was complete on 7 February 1788, the
English common law, adapted to meet the circumstances of the new Colony,
automatically applied throughout the whole of the Colony as the domestic law
except to the extent (if at all) that the act of State establishing the Colony
overrode it. Thereafter, within the Colony, both the Crown and its subjects,
old and new, were bound by that common law. (iii) The English law
of real property 7. The English common
law principles relating to real property developed as the product of concepts
shaped by the feudal system of medieval times. The basic tenet was that,
consequent upon the Norman Conquest, the Crown was the owner of all land in the
kingdom. A subject could hold land only as a tenant, directly or indirectly, of
the Crown. By 1788, the combined effect of the Statute Quia Emptores 1290 and
the Tenures Abolition Act 1660 had been largely to abolish the "pyramid of
free tenants"(166) Gray, Elements of Land Law, (1987), p 57 which had
emerged under the feudal system of tenure and to confine the practical
significance of the basic tenet that all land was owned by the Crown to matters
such as escheat and foreshore rights. The "estate" which a subject
held in land as tenant was itself property which was the subject of
"ownership" both in law and in equity. The primary estate of a
subject, the estate in fee simple, became, for almost all practical purposes,
equivalent to full ownership of the land itself. Nonetheless, the underlying
thesis of the English law of real property remained that the radical title to
(or ultimate ownership of) all land was in the Crown and that the maximum
interest which a subject could have in the land was ownership not of the land
itself but of an estate in fee in it. The legal ownership of an estate in land
was in the person or persons in whom the legal title to it was vested. Under
the rules of equity, that legal estate could be held upon trust for some other
person or persons or for some purpose. 8. If the slate were
clean, there would be something to be said for the view that the English system
of land law was not, in 1788, appropriate for application to the circumstances
of a British penal colony(167) See, e.g., Roberts-Wray, Commonwealth and
Colonial Law, (1966), p 626. It has, however, long been accepted as
incontrovertible that the provisions of the common law which became applicable
upon the establishment by settlement of the Colony of New South Wales included
that general system of land law(168) See, e.g., Delohery v. Permanent Trustee
Co. of N.S.W. [1904] HCA 10; (1904)
1 CLR 283, at pp 299-300; Williams v. Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404. It follows
that, upon the establishment of the Colony, the radical title to all land
vested in the Crown. Subject to some minor and presently irrelevant matters,
the practical effect of the vesting of radical title in the Crown was merely to
enable the English system of private ownership of estates held of the Crown to
be observed in the Colony. In particular, the mere fact that the radical title
to all the lands of the Colony was vested in the British Crown did not preclude
the preservation and protection, by the domestic law of the new Colony, of any
traditional native interests in land which had existed under native law or
custom at the time the Colony was established. Whether, and to what extent,
such pre-existing native claims to land survived annexation and were translated
into or recognized as estates, rights or other interests must be determined by
reference to that domestic law. 9. There are some
statements in the authorities which support a general proposition to the effect
that interests in property which existed under the previous law or custom of a
new British Colony availed "nothing" unless recognized by the
Crown(169) See, e.g., Vajesingji Joravarsingji v. Secretary of State for India
(1924) LR 51 Ind Ap 357, at p 360; Secretary of State for India v. Sardar Rustam
Khan (1941) AC, at p 371. Those statements are correct to the extent that they
recognize that the act of State establishing a Colony is itself outside the
domestic law of the Colony and beyond the reach of the domestic courts. As has
been seen, however, once a Colony was established by "settlement",
the Crown was bound by the common law which, subject to appropriate adjustment,
automatically became the domestic law of the Colony. After the establishment of
the Colony, the act of State doctrine does not preclude proceedings in the
courts in which, rather than seeking to enforce or challenge the act of State
establishing the Colony, it is sought to vindicate domestic rights arising
under the common law consequent upon that act of State. 10. The strong assumption
of the common law was that interests in property which existed under native law
or customs were not obliterated by the act of State establishing a new British
Colony but were preserved and protected by the domestic law of the Colony after
its establishment. Thus, in In re Southern Rhodesia(170) (1919) AC, at p 233,
the Privy Council expressly affirmed that there are "rights of private
property", such as a proprietary interest in land, of a category
"such that upon a conquest it is to be presumed, in the absence of express
confiscation or of subsequent expropriatory legislation, that the conqueror has
respected them and forborne to diminish or modify them". Similarly, in
Amodu Tijani v. Secretary, Southern Nigeria ("Amodu Tijani")(171)
(1921) 2 AC 399, at p 407, the Privy Council affirmed and applied the
"usual" principle "under British ... law" that when
territory is occupied by cession, "the rights of property of the
inhabitants (are) to be fully respected". 11. In Adeyinka
Oyekan v. Musendiku Adele(172) (1957) 1 WLR 876, at p 880; (1957) 2 All ER 785,
at p 788, the Privy Council expressly held that the assumption that
pre-existing rights are recognized and protected under the law of a British
Colony is a "guiding principle". In a judgment read by Lord Denning,
their Lordships said: "In
inquiring ... what rights are recognized, there is one That
case was concerned with the position in a Colony established by cession and the
above passage needs to be modified to take account of the fact that, as has
been seen, the Crown had no prerogative right to legislate by subsequent
proclamation in the case of a Colony established by settlement. Otherwise, the
"guiding principle" which their Lordships propounded is clearly
capable of general application to British Colonies in which indigenous
inhabitants had rights in relation to land under the pre-existing native law or
custom. It should be accepted as a correct general statement of the common law.
For one thing, such a guiding principle accords with fundamental notions of
justice. Indeed, the recognition of the interests in land of native inhabitants
was seen by early publicists as a dictate of natural law(173) See, e.g., Wolff,
Jus Gentium Methodo Scientifica Pertractatum (trans. Drake), (1934), vol.II, pp
155-160, ss308-ss313; Vattel, The Law of Nations or Principles of the Law of
Nature, London, (1797), pp 167-171; F. de Victoria, De Indis et de Jure Belli
Relectiones, (ed. Nys, trans. Bate), (1917), pp 128, 138-139; Grotius, Of the
Rights of War and Peace, (1715), vol.2, Ch.22, pars 9, 10. For another, it is
supported by other convincing authority(174) See, generally, the cases referred
to by Professor McNeil in his landmark work, Common Law Aboriginal Title,
(1989), pp 173-174, 183-184 and 186-188 applying to a wide spectrum of British
Colonies, including a long-standing New Zealand(175) See Reg. v. Symonds (1847)
NZPCC 387, at pp 391-392 case and recent Canadian cases(176) See Calder v.
Attorney-General of British Columbia (1973) 34 DLR (3d) 145, at pp 152, 156,
193-202; Guerin v. The Queen (1984) 13 DLR (4th) 321,
at pp 335-336. In this Court, the assumption that traditional native interests
were preserved and protected under the law of a settled territory was accepted
by Barwick C.J. (in a judgment in which McTiernan and Menzies JJ. concurred) in
Administration of Papua and New Guinea v. Daera Guba(177) [1973] HCA 59; (1973) 130 CLR 353, at p 397;
see, also, Geita Sebea v. Territory of Papua [1941] HCA 37; (1941) 67 CLR 544, at p 557 as
applicable to the settled territory of British Papua. 12. The judgments in
past cases contain a wide variety of views about the kinds of pre-existing
native interests in land which are assumed to have been fully respected under
the common law applicable to a new British Colony. In some cases, a narrow and
somewhat rigid approach was taken. Thus, in In re Southern Rhodesia(178) (1919)
AC, at p 233, it was said by the Privy Council that pre-existing interests in
relation to land are presumed to be protected and preserved under the law of a
newly annexed British territory only if they "belonged to the category of
rights of private property" and were the product of a "social
organization" whose "usages and conceptions of rights and
duties" were able "to be reconciled with the institutions or the
legal ideas of civilized society". It is true that their Lordships went on
to make clear(179) ibid., at p 234 that those requirements could be satisfied
in the case of rights claimed by "indigenous peoples whose legal
conceptions" were differently developed from those recognized by the
common law. Nonetheless, the requirement that the pre-existing rights be of the
category of "rights of private property" invited a formulation in
terms of common law "proprietary rights" and the requirement that
local "usages and conceptions of rights and duties" be reconcilable
with the "institutions or the legal ideas of civilized society"
involved a degree of conformity with the social and legal mores of England or
Europe. 13. In contrast, one
finds clear support in other judgments, including later judgments of the Privy
Council, for a less demanding and more flexible approach. In Amodu Tijani(180)
(1921) 2 AC, at p 403, their Lordships disparagingly referred to "a
tendency, operating at times unconsciously, to render (native title to land)
conceptually in terms which are appropriate only to systems which have grown up
under English law". That tendency must, they said(181) ibid, be "held
in check closely" since "(a)s a rule, in the various systems of
native jurisprudence throughout the Empire, there is no such full division
between property and possession as English lawyers are familiar with."
Subsequently, having referred to a number of different types of "native
title" to land, their Lordships said(182) ibid., at pp 403-404: "The
title, such as it is, may not be that of the 14. It is important
to note that the judgment in Amodu Tijani makes quite clear(183) ibid., at p
403 that their Lordships saw the Indian claims to traditional homelands in
Canada as providing the obvious example of the kind of traditional native title
which was assumed to be recognized and protected under the law of a British
Colony. They referred to the judgments in St. Catherine's Milling and Lumber
Company v. The Queen(184) (1888) 14 App Cas 46 (hereafter "St. Catherine's
Milling Case") and Attorney-General for 15. In Adeyinka
Oyekan v. Musendiku Adele(190) (1957) 1 WLR, at p 880; (1957) 2 All ER, at p
788, the Privy Council, while using the phrase "rights of property",
clearly endorsed the more lenient approach adopted in Amodu Tijani to the kind
of pre-existing native "rights" which are to be assumed to be fully
respected under the law of a new British territory. The courts will, their
Lordships said(191) ibid, assume that the traditional interests of the native
inhabitants are to be so respected "even though those interests are of a
kind unknown to English law". That approach is supported by other
authority(192) See, e.g., Sunmonu v. Disu Raphael (1927) AC 881, at pp 883-884;
Sakariyawo Oshodi v. Moriamo Dakolo (1930) AC 667, at pp 668-669 and by
compelling considerations of justice. It should be accepted as correct. 16. On that approach,
the pre-existing native interests with respect to land which were assumed by
the common law to be recognized and fully respected under the law of a newly
annexed British territory were not confined to interests which were analogous
to common law concepts of estates in land or proprietary rights. Nor were they
confined by reference to a requirement that the existing local social
organization conform, in its usages and its conceptions of rights and duties,
to English or European modes or legal notions. To the contrary, the assumed
recognition and protection extended to the kinds of traditional enjoyment or
use of land which were referred to by the Privy Council in Amodu Tijani. As
their Lordships made plain in that(193) (1921) 2 AC, at pp 403-404 and
subsequent(194) See, e.g., Sobhuza II. v. Miller (1926) AC, at p 525; Sunmonu
v. Disu Raphael (1927) AC, at pp 883-884 cases, such a traditional interest
would ordinarily be that of a community or group. It could, however, be that of
an individual. It could relate to lands which were under actual cultivation or
to lands which, like much of the lands involved in the Canadian cases to which
their Lordships referred, were left uncultivated but which, under the law or
custom observed in the territory, constituted traditional homelands or hunting
grounds. What the common law required was that the interest under the local law
or custom involve an established entitlement of an identified community, group
or (rarely) individual to the occupation or use of particular land and that
that entitlement to occupation or use be of sufficient significance to
establish a locally recognized special relationship between the particular
community, group or individual and that land. In the context of the Privy
Council's insistence(195) Amodu Tijani (1921) 2 AC, at pp 403-404 that English
concepts of property might be quite inappropriate and that all that was
involved might be the possession of the common enjoyment of a usufruct(196)
ibid., at p 402, it is clear that such a traditional interest could result from
the established and recognized occupation and use by a tribe or clan of
particular land for purposes such as the obtaining of food(197) ibid., at pp
409-410: "prima facie based ... on a communal usufructuary
occupation". 17. As has been seen,
it must be accepted as settled law that the provisions of the common law which
became applicable upon the establishment by settlement of the Colony of New
South Wales included the system of land law which existed in England and that
the consequence of that was that the radical title to all land in the new
Colony vested in the Crown. If there were lands within the Colony in relation
to which no pre-existing native interest existed, the radical title of the
Crown carried with it a full and unfettered proprietary estate. Put
differently, the radical title and the legal and beneficial estate were
undivided and vested in the Crown. Thereafter, any claim by the Aboriginal
inhabitants to such lands by reason of possession or occupation after the
establishment of the Colony must be justified by ordinary common law principles
or presumptions which apply and (at least theoretically) applied indifferently
to both native inhabitants and Europeans (e.g. possessory title based on a
presumed lost grant). 18. On the other
hand, if there were lands within a settled Colony in relation to which there
was some pre-existing native interest, the effect of an applicable assumption
that that interest was respected and protected under the domestic law of the
Colony would not be to preclude the vesting of radical title in the Crown. It
would be to reduce(198) ibid., at p 410, qualify(199) ibid., at pp 403, 404 or
burden(200) Attorney-General for 19. In Amodu Tijani,
the Privy Council gave careful consideration to the manner in which traditional
native claims may be recognized and protected under the law of a British
Colony. The claim which their Lordships recognized as established in that case
was that of a native community based on communal occupation. Their Lordships
recognized that the interests underlying such a claim could theoretically be
respected and protected under the law of a Colony by transforming them into
some "definite forms analogous to estates ... derived ... from the
intrusion of the mere analogy of English jurisprudence"(201) (1921) 2 AC
399, at p 403. They concluded, however, that the appropriate course was to
recognize a "full native title of usufruct"(202) ibid., at p 403
which qualified and reduced the proprietary estate of the Crown as radical
owner. In rejecting the conclusion reached by the Supreme Court of Nigeria to
the effect that native "title" under the earlier law or custom had
been extinguished upon the establishment of the Colony by cession, they
said(203) ibid., at pp 409-410: "That
title ... is prima facie based, not on such individual As
their Lordships also indicated, a similar approach had been adopted by the
Privy Council with respect to the claims of Canadian Indians to their
traditional homelands or hunting grounds(204) See ibid., at p 403, fn.1 and,
generally, St. Catherine's Milling Case (1888) 14 App Cas, at pp 54-55;
Attorney-General for Quebec v. Attorney-General for Canada (1921) 1 AC, at pp
408-410. The content of the traditional native title recognized by the common
law must, in the event of dispute between those entitled to it, be determined
by reference to the pre-existing native law or custom(205) See Adeyinka Oyekan
v. Musendiku Adele (1957) 1 WLR, at pp 880-881; (1957) 2 All ER, at p 788. We
shall, hereafter, use the phrase "common law native title" to refer
generally to that special kind of title. 20. The content of
such a common law native title will, of course, vary according to the extent of
the pre-existing interest of the relevant individual, group or community. It
may be an entitlement of an individual, through his or her family, band or
tribe, to a limited special use of land in a context where notions of property
in land and distinctions between ownership, possession and use are all but
unknown(206) See, e.g., Amodu Tijani (1921) 2 AC, at pp 404-405. In contrast,
it may be a community title which is practically "equivalent to full
ownership"(207) Geita Sebea v. 21. The first
limitation relates to alienation. It is commonly expressed as a right of
pre-emption in the Sovereign, sometimes said to flow from "discovery"
(i.e. in the European sense of "discovery" by a 22. The second
limitation has sometimes been seen as flowing from the first(211) See
Attorney-General for 23. The third
limitation is related to both the first and the second. It is that common law
native title, being merely a personal right unsupported by any prior actual or
presumed Crown grant of any estate or interest in the land, was susceptible of
being extinguished by an unqualified grant by the Crown of an estate in fee or
of some lesser estate which was inconsistent with the rights under the common
law native title. In such a case, prior occupation or use under the common law
native title is explained by the common law's recognition of prior entitlement
under the earlier indigenous law or custom and is predicated upon the absence
of any intervening grant from the Crown. Accordingly, it does not found an
assumption of a prior lost grant and would be unavailing against those claiming
under the inconsistent grant which would otherwise be beyond challenge except
on the ground of invalidity on its face(220) See, e.g., Nireaha Tamaki v. Baker
(1901) AC, at p 579. Common law native title could also be effectively
extinguished by an inconsistent dealing by the Crown with the land, such as a
reservation or dedication for an inconsistent use or purpose, in circumstances
where third party rights intervened or where the actual occupation or use of
the native title-holders was terminated. In the latter case, an ultimate lack
of effective challenge would found either an assumption of acquiescence in the
extinguishment of the title or a defence based on laches or some statute of
limitations. 24. Implicit in what
has been written above is the rejection of any proposition to the effect that
the common law native title recognized by the law of a British Colony was no
more than a permissive
occupancy which the Crown was lawfully entitled to revoke or terminate
at any time regardless of the wishes of those living on the land or using it
for their traditional purposes. Acceptance of that, or any similar, proposition
would deprive the traditional inhabitants of any real security since they would
be liable to be dispossessed at the whim of the Executive, however unjust.
There is some support in the decided cases for such a proposition. In
particular, it is supported by some cases in the United States(221) See, in
particular, Tee-Hit-Ton Indians v. United States [1955] USSC 24; (1954)
348 US 272, at p 279; but cf., per Marshall C.J., Johnson v. McIntosh (1823) 8
wheat, at p 587; (21 US, at p 259) and Cherokee Nation v. Georgia [1831] USSC 6; (1831)
5 Pet 1, at p 17; (30 US 1, at p 12), where special constitutional and historical
considerations arguably apply(222) See, e.g., Priestley, "Communal Native
Title and the Common Law", (1974) 6 Fed LR 150 and Hookey, "Chief
Justice Marshall and the English Oak: A Comment", (1974) 6 Fed LR 174,
and, superficially, by the ambiguous reference to "dependent upon the
goodwill of the Sovereign" in the Privy Council's judgments in the St.
Catherine's Milling Case(223) (1888) 14 App Cas, at p 54 and Attorney-General
for Quebec v. Attorney-General for Canada(224) (1921) 1 AC, at p 406. However,
the weight of authority (see below) and considerations of justice seem to us to
combine to compel its rejection. 25. The substance of
the judgment of the Privy Council in Attorney-General for 26. The judgments in
subsequent Privy Council cases make plain their Lordships' view that the Crown
was not, as between the native inhabitants and itself, lawfully entitled to
effect a unilateral extinguishment of common law native title against the
wishes of the native occupants. Thus, in Nireaha Tamaki v. Baker(234) (1901)
AC, at p 579, their Lordships quoted with approval the following comment of
Chapman J. in Reg. v. Symonds(235) (1847) NZPCC , at p 390 which they described
as being "very pertinent" to the case before them: "Whatever
may be the opinion of jurists as to the strength That
statement was made by Chapman J. in the course of demonstrating that "in
solemnly guaranteeing the Native title, and in securing what is called the
Queen's pre-emptive right, the Treaty of Waitangi, confirmed by the Charter of
the Colony, does not assert either in doctrine or in practice any thing new and
unsettled"(236) ibid. Their Lordships' endorsement of it was as a
statement of the effect of the common law. 27. The Privy Council
judgment in Amodu Tijani is also inconsistent with the notion that the common
law native title was merely a permissive occupancy which the Crown could terminate at any time
without any breach of its legal obligations to the traditional occupants. Their
Lordships consistently referred to the native title as "a right" or
"rights". They described the legal title of the Crown as being
qualified(237) (1921) 2 AC, at p 403 and reduced(238) ibid., at p 410 by the
common law native title. They rejected views expressed by the Chief Justice of
Nigeria to the effect that the merely "seigneurial" rights of control
possessed by the natives were extinguished upon cession, on the ground that
those views "virtually exclude ... the legal reality of the community
usufruct" by failing to "recognize the real character of the title to
land occupied by a native community"(239) ibid., at p 409 (emphasis
added). That title was, their Lordships said(240) ibid., at pp 409-410: "prima
facie based, not on such individual ownership as The
judgment in Amodu Tijani was subsequently described by the Privy Council(241)
Sunmonu v. Disu Raphael (1927) AC, at p 883 as one in which "the title to
native lands is explained" and in which "various misconceptions ...
were finally laid to rest". 28. In Administration
of Papua and New Guinea v. Daera Guba(242) (1973) 130 CLR, at p 397 (emphasis
added), Barwick C.J. identified the "traditional result" of the
establishment of British sovereignty by "occupation or settlement" as
being that "the indigenous people were secure in their usufructuary title
to land" and that "the ultimate title subject to the usufructuary
title was vested in the Crown. Alienation of that usufructuary title to the
Crown completed the absolute fee simple in the Crown." In a context where
the primary issue in the case was whether a claim by traditional inhabitants
against the Crown was defeated by reason of an earlier "purchase" by
the Crown, it is most unlikely that Barwick C.J., who spoke for the majority of
the Court on that issue, would so describe the common law native title if he
had considered that the Crown could extinguish it by unilateral act at any time
without breach of its legal obligations to the traditional owners. Similarly,
it is most unlikely that Williams J., whose judgment was that of the majority
in Geita Sebea v. Territory of Papua, would have held(243) (1941) 67 CLR, at p
557 that, for the purposes of assessing compensation, the communal usufructuary
title was "equivalent to full ownership" and that no deduction should
be made by reason of restrictions upon alienability, if his Honour had
considered that the title was extinguishable at the will of the Crown without
infringement of the rights of the native title-holders. 29. Notwithstanding
that the rights of use or occupancy under a common law native title recognized
by the law of a settled British Colony were binding upon the Crown, the native
inhabitants of such a Colony in the eighteenth century were in an essentially
helpless position if their title was wrongfully denied or extinguished or their
possession was wrongfully terminated by the Crown or those acting on its
behalf. In theory, the native inhabitants were entitled to invoke the
protection of the common law in a local court (when established) or, in some
circumstances, in the courts at 30. The practical
inability of the native inhabitants of a British Colony to vindicate any common
law title by legal action in the event of threatened or actual wrongful conduct
on the part of the Crown or its agents did not, however, mean that the common
law's recognition of that title was unimportant from the practical point of
view. The personal rights under the title were not illusory: they could, for
example, be asserted by way of defence in both criminal and civil proceedings
(e.g. alleged larceny of produce or trespass after a purported termination of
the title by the Crown by mere notice as distinct from inconsistent grant or
other dealing). More important, if the domestic law of a British Colony
recognized and protected the legitimate claims of the native inhabitants to
their traditional lands, that fact itself imposed some restraint upon the
actions of the Crown and its agents even if the native inhabitants were
essentially helpless if their title was wrongfully extinguished or their
possession or use was forcibly terminated. 31. It has been seen
that the validity of the act of State establishing a new Colony cannot be
challenged in the domestic courts. Nor can the domestic courts invalidate an
expropriation of property or extinguishment of rights effected in the course of
that act of State, or enforce a promise or undertaking made or given as part of
it. On the other hand, when the subject seeks to assert a right alleged to
arise under the domestic law and a question arises whether the act of State
establishing a Colony excluded what would otherwise be a rule of the common law
or precluded or extinguished rights which would otherwise exist under the
domestic law, it is incumbent upon the domestic courts in the discharge of
their jurisdiction to determine whether, as a matter of domestic law, the act
of State did have that extended operation. Were the law otherwise, the subject
would have no rights against the Executive in any case where the Executive
simply asserted that property or rights to which the subject was presumptively
entitled under the common law had been expropriated, precluded or extinguished
by the act of State establishing a Colony. Accordingly, it is open to the
domestic courts to consider the question whether the act of State establishing
a particular Colony, or other act or declaration performed or made as part of
that act of State, or some other expropriation of property had the effect of
negativing the strong assumption of the common law that pre-existing native
interests in lands in the Colony were respected and protected(247) See, e.g.,
In re Southern Rhodesia (1919) AC, at p 233; Amodu Tijani (1921) 2 AC, at p
407; Adeyinka Oyekan v. Musendiku Adele (1957) 1 WLR, at p 880; (1957) 2 All
ER, at p 788; Administration of Papua and New Guinea v. Daera Guba (1973) 130
CLR, at p 397. Both legal principle relating to the deprivation of property or
rights and considerations of justice require that any such act or declaration
be clear and unambiguous(248) See, e.g., In re Southern Rhodesia (1919) AC, at
p 233; Adeyinka Oyekan v. Musendiku Adele (1957) 1 WLR, at p 880; (1957) 2 All
ER, at p 788; Calder v. Attorney-General of British Columbia (1973) 34 DLR
(3d), at p 210; Hamlet of Baker Lake v. Minister of Indian Affairs (1979) 107
DLR (3d) 513, at p 552. 32. As has been said,
the establishment of the Colony of New South Wales by settlement was complete,
at the latest, when Captain Phillip caused his second Commission to be read and
published in the territory of the Colony. It is debatable whether the act of
State constituting the Colony consisted solely of the reading and publishing of
the second Commission or should be extended to include the other documents
which were read and published(249) the Statute 27 GEO III c.2 (authorizing the
establishment of a Criminal Court of Record) and the Letters Patent of 2 April
and 5 May 1787 (establishing courts) and/or the earlier activities of Captain
Cook and the members of his expedition on the eastern coastline. Even if the
act of State establishing the Colony be so extended to include all the
documents read and all those activities, there is nothing which could properly
be seen as effecting a general confiscation or extinguishment of any native
interests which may have existed in the Colony under native law or custom or as
negating or reversing the strong assumption of the common law that any such
pre-existing native interests were respected and protected under the law of the
Colony once established. 33. Cook's activities
of discovery and pronouncements of taking possession were in no way directed to
depriving the native inhabitants of the ownership of any land in which they had
an interest under their law or custom. They were concerned with the assertion
of British sovereignty. Examination of the documents which might arguably be
involved in the act of State establishing the Colony discloses little that is
relevant to the question of its intended effect upon any existing native
interests in the lands of the new Colony. The first Commission was a formal
document which, for present purposes, did no more than appoint Phillip as the
Governor of the designated territory. The second Commission conferred upon
Phillip "full power and authority to agree for such lands tenements and
hereditaments as shall be in our power to dispose of and them to grant to any
person or persons"(250) HRA, (1914) Series 1, vol.1, p 7 (emphasis added).
The Instructions recorded(251) ibid., p 12 the Royal intent that, after arrival
in the territory of the new Colony, supplies of livestock be acquired by the
use of "a quantity of arms and other articles of merchandize" for the
purposes of "barter with the natives either on the territory of New South
Wales or the islands adjacent". They also recorded(252) ibid., pp 14-15
the Royal wish that land be granted and provisions be supplied to emancipated
convicts. In order to enable encouragement to be given to prospective new
settlers, Phillip was instructed(253) ibid., p 15 that he should, "with
all convenient speed, transmit a report of the actual state and quality of the
soil at and near the said intended settlement". As regards the Aboriginal
inhabitants, the Instructions contained what was to become a familiar clause.
It read(254) ibid., pp 13-14: "You
are to endeavour by every possible means to open There
is nothing in the Statute 27 GEO III c.2 or any of the other documents
associated with the actual establishment of the Colony which takes the matter
any further. 34. It follows that,
for present purposes, the most that can be said about the act of State
establishing the Colony is that it envisaged (i) that some lands within the
Colony would become Crown lands and be available both for the establishment of
the penal settlement and for future grants of Crown land to emancipated
convicts and new settlers, and (ii) that the native inhabitants of the Colony
would be protected and not subjected to "any unnecessary interruption in
the exercise of their several occupations". The expectation that some
colonial lands would become Crown lands and be available both for the use of
the Crown and for future grant to others was one that would have probably
existed in respect of all of the British Colonies established in the eighteenth
and nineteenth centuries. It may be arguable, though we think unpersuasively,
that the Instructions unambiguously authorized the unilateral extinguishment by
the Crown of any existing native interests in the land required for the actual
establishment of the convict settlement ("at and near the said intended
settlement"(255) ibid., p 15). Otherwise, it seems to us to be simply not
arguable that there was anything in the act of State establishing the Colony
which constituted either an expropriation or extinguishment of any existing
native interests in the vast areas of land in the new Colony or a negation or
reversal of the strong assumption of the common law that such native interests
were respected and protected under the law of the Colony after its
establishment. 35. Any explanation
of the absence, in the documents encompassed by the act of State, of any
specific reference to existing native interests in the lands of the Colony
necessarily involves a degree of speculation. In the context of British
experience in North America (including the 1763 Imperial Proclamation(256) the
"Indian Bill of Rights", which had "force ... analogous to the
status of Magna Carta" and which "has always been considered to be the
law throughout the Empire", following "the flag" to "newly
discovered or acquired lands or territories": see Calder v.
Attorney-General of British Columbia (1973) 34 DLR (3d), at p 203; Reg. v.
Foreign Secretary; ex parte Indian Association of Alberta (1982) QB 892, at p
912 which recognized Indian rights of occupation of their traditional
homelands) and of the specific instructions to Phillip protecting the
Aboriginal inhabitants of Australia from "any unnecessary interruption in
the exercise of their several occupations", it is unlikely that there was
any actual but unexpressed intent on the part of the Crown that the act of
State establishing the Colony of New South Wales should reverse the assumption
of the common law or extinguish existing native interests in land throughout the
more than 1.4 million square miles of the Colony. The information provided by
Cook and those who sailed with him had been misleading about the numbers of
native inhabitants. Banks thought that there were "very few
inhabitants" on either the eastern coast in general or around Botany
Bay(257) See the extract from Banks' evidence before the House of Commons
Committee on Transportation quoted by R.J. King in "Terra Australis: Terra
Nullius aut Terra Aboriginum?", (1986) 72 Journal of the Royal Australian
Historical Society, 75, at p 77 and, while admitting that what the inland might
produce was "totaly unknown", commented that "we may have
liberty to conjecture however that (it is) totaly uninhabited"(258) J.
Banks, The 'Endeavour' Journal of Joseph Banks, 1768-1771, (ed. Beaglehole),
(1962), vol.2, p 122. In fact, it is now clear that parts of the continent
were, for an unindustralized and uncultivated territory, quite heavily
populated. If one must speculate, the most likely explanation of the absence of
specific reference to native interests in land is that it was simply assumed
either that the land needs of the penal establishment could be satisfied
without impairing any existing interests (if there were any) of the Aboriginal
inhabitants in specific land or that any difficulties which did arise could be
resolved on the spot with the assent or acquiescence of the Aboriginals: e.g.,
by "purchase" (on behalf of the Crown) "of a part of the country
from the native inhabitants for articles more agreable and useful to
them"(259) "An Anonymous Proposal for the Settlement of New South
Wales", (1783-86), Historical Records of New South Wales, vol.2, p 364
(semble, written by Sir John Call). 36. There can be
cases in which events after an act of State can remove uncertainty or ambiguity
about what was involved in the act of State itself. What was done after the
establishment of the Colony of New South Wales does not, however, affect the
nature and content of the act of State which established it. The reason why
that is so is that there is no relevant ambiguity about the act of State
establishing the Colony. We know what was done and it is plain that what was
done neither constituted a specific expropriation of pre-existing native
interests in the lands of the Colony nor sufficed to negate the strong
assumption of the common law that any such pre-existing native interests were
respected and protected under the law of the Colony after its establishment. In
any event, while those subsequent acts were increasingly inconsistent with the
existence of any valid Aboriginal claims to land within the Colony, they cannot
properly be seen as evincing an intention to extinguish any Aboriginal
interests of a kind presumptively recognized by the common law. When they were
purportedly rationalized and justified, it was on the basis of a denial that
there were pre-existing Aboriginal interests of the relevant kind for the law
to respect and protect. All the lands of the Colony had been, so it was
asserted, unoccupied for practical purposes. As such, they were all unoccupied
and unclaimed waste lands of which the Crown had become the complete and
unqualified legal and beneficial owner. 37. The numbers of
the Aboriginal inhabitants of the Australian continent in 1788, the
relationship between them and the lands on which they lived, and the content of
the traditional laws and customs which governed them are still but incompletely
known or imperfectly comprehended. The following broad generalizations must,
however, now be accepted as beyond real doubt or intelligent dispute at least
as regards significant areas of the territory which became New South Wales. As
has been said, it is clear that the numbers of Aboriginal inhabitants far
exceeded the expectations of the settlers. The range of current estimates for
the whole continent is between three hundred thousand and a million or even
more. Under the laws or customs of the relevant locality, particular tribes or
clans were, either on their own or with others, custodians of the areas of land
from which they derived their sustenance and from which they often took their
tribal names. Their laws or customs were elaborate and obligatory. The
boundaries of their traditional lands were likely to be long-standing and
defined. The special relationship between a particular tribe or clan and its
land was recognized by other tribes or groups within the relevant local native
system and was reflected in differences in dialect over relatively short
distances. In different ways and to varying degrees of intensity, they used
their homelands for all the purposes of their lives: social, ritual, economic.
They identified with them in a way which transcended common law notions of
property or possession. As was the case in other British Colonies(260) See,
e.g., Amodu Tijani (1921) 2 AC, at p 404; Sobhuza II. v. Miller (1926) AC, at p
525, the claim to the land was ordinarily that of the tribe or other group, not
that of an individual in his or her own right. 38. In the context of
the above generalizations, the conclusion is inevitable that, at the time of
the establishment of the Colony of New South Wales in 1788, there existed,
under the traditional laws or customs of the Aboriginal peoples in the
kaleidoscope of relevant local areas, widespread special entitlements to the
use and occupation of defined lands of a kind which founded a presumptive
common law native title under the law of a settled Colony after its
establishment. Indeed, as a generalization, it is true to say that, where they
existed, those established entitlements of the Australian Aboriginal tribes or
clans in relation to traditional lands were no less clear, substantial and
strong than were the interests of the Indian tribes and bands of North America,
at least in relation to those parts of their traditional hunting grounds which
remained uncultivated. 39. It follows from
what has been said in earlier parts of this judgment that the application of
settled principle to well-known facts leads to the conclusion that the common
law applicable to the Colony in 1788, and thereafter until altered by valid
legislation, preserved and protected the pre-existing claims of Aboriginal
tribes or communities to particular areas of land with which they were
specially identified, either solely or with others, by occupation or use for
economic, social or ritual purposes. Under the law of the Colony, they were
entitled to continue in the occupation or use of those lands as the holders of
a common law native title which was a burden upon and reduced the title of the
Crown. The Crown and those acting on behalf of the Crown were bound by that
native title notwithstanding that the Crown's immunity from action and the
fiction that the King could do no wrong precluded proceedings against the Crown
to prevent, or to recover compensation for, its wrongful infringement or
extinguishment. In accordance with the basic principles of English
constitutional law applicable to a settled Colony, the sovereignty of the
British Crown did not, after the act of State establishing the Colony was
complete, include a prerogative right to extinguish by legislation or to
disregard by executive act the traditional Aboriginal rights in relation to the
land which were recognized and protected by the common law as true legal
rights. The combined effect of (i) the personal nature of those rights, (ii)
the absence of any presumption of a prior grant to the Aboriginal
title-holders, and (iii) the applicable principles of English land law was that
native title would be extinguished by a subsequent inconsistent grant of the
relevant land by the Crown which was not invalid on its face. That
extinguishment would, however, involve a wrongful infringement by the Crown of
the rights of the Aboriginal title-holders. 40. It is unnecessary
for the purposes of this judgment, and probably now impracticable, to seek to
ascertain what proportion of the lands of the continent were affected by such
common law native titles. Obviously, the proportion was a significant one.
Conceivably, it was the whole. (ix) The Australian
cases 41. The only reported
decision of an Australian court directly dealing with the merits of an
Aboriginal claim to particular traditional tribal or communal lands is
Milirrpum v. Nabalco Pty. Ltd.(261) (1970) 17 FLR 141. There, a group of
Aborigines representing native tribes sued a mining company and the
Commonwealth in the Supreme Court of the 42. It should be
apparent from what has been written above that we disagree with each of the
above conclusions of general principle reached by Blackburn J. in Milirrpum. As
has been seen, the doctrine of presumptive common law native title, which has
long been recognized by the common law, is applicable to a settled British
Colony. As has also been seen, the view expressed in In re 43. In
Attorney-General v. Brown, Williams v. Attorney-General for 44. In Williams v.
Attorney-General for New South Wales, Isaacs J., in the course of a judgment
dealing with the ownership of the land of State Government House in Sydney,
identified as his starting point "the unquestionable position that, when
Governor Phillip received his first commission from King George III on 12
October 1786, the whole of the lands of Australia were already in law the
property of the King of England"(268) (1913) 16 CLR, at p 439. It has been
pointed out that that proposition is far from "unquestionable" in so
far as its identification of the time of establishment of the Colony is
concerned(269) See Roberts-Wray, op cit, p 631: "startling and, indeed,
incredible". Be that as it may, it is clear that Isaacs J. regarded the
proposition that, on the establishment of 45. The question in
Randwick Corporation v. Rutledge was whether the lands used for Randwick
Racecourse in Sydney fell within an exemption from rating under the Local
Government Act 1919 (N.S.W.). Windeyer J., in the course of a judgment with
which Dixon C.J. and Kitto J. (and perhaps Fullagar J.(271) See (1959) 102 CLR,
at p 61) agreed, stated(272) ibid., at p 71 that from the first settlement of
New South Wales all lands of the territory lay in the grant of the Crown and,
until grant, formed "a royal demesne". His Honour added(273) ibid
that, "when in 1847 a bold argument ... challenged the right of the Crown
... to dispose of land in the colony, it was as a legal proposition firmly and
finally disposed of by Sir Alfred Stephen C.J.: The Attorney-General v.
Brown". 46. The other case,
Cooper v. Stuart, was a decision of the Privy Council on appeal from the
Supreme Court of New South Wales. In the course of considering whether the rule
against perpetuities had been applicable to a reservation in an 1823 Crown
grant of land in the Colony, their Lordships asserted(274) (1889) 14 App Cas,
at p 291 that, at the time of the establishment of the Colony, it "consisted
of a tract of territory practically unoccupied, without settled inhabitants or
settled law". Their statement to that effect was thereafter seen as
authoritatively establishing that the territory of New South Wales had, in
1788, been terra nullius not in the sense of unclaimed by any other European
power, but in the sense of unoccupied or uninhabited for the purposes of the
law. 47. It is important
to note that, in each of those four cases, the reasoning supporting one or both
of the broad propositions that 48. The first days of
the Colony were peaceful in so far as the Aboriginal inhabitants were
concerned. They received numerous gifts from the new arrivals(276) See, e.g.,
Phillip's despatch of May 15, 1788, Historical Records of New South Wales,
vol.1, Pt 2, pp 128-129, 131. They gave up, without dispute, the lands
initially occupied by, and in connection with, the penal camp. 49. As time passed,
the connection between different tribes or groups and particular areas of land
began to emerge. The Europeans took possession of more and more of the lands in
the areas nearest to Sydney Cove. Inevitably, the Aborigines resented being
dispossessed. Increasingly there was violence as they sought to retain, or
continue to use, their traditional lands. 50. An early flash
point with one clan of Aborigines illustrates the first stages of the
conflagration of oppression and conflict which was, over the following century,
to spread across the continent to dispossess, degrade and devastate the
Aboriginal peoples and leave a national legacy of unutterable shame. It came in
1804 in the fertile areas surrounding the lower reaches of the 51. Throughout the
rest of the century, the white expropriation of land continued, spreading not
only throughout the fertile regions of the continent but to parts of the desert
interior. There were some reserves established for Aborigines and some
reservations, increasingly ignored, in pastoral leases protecting Aboriginal
usufructuary access. On the broad front, however, land was granted by the Crown
or dedicated or reserved for inconsistent public purposes without regard to
Aboriginal claims. As political power in relation to domestic matters was
transferred from the Imperial Government in "They
live in a Tranquility which is not disturbed by the In
his notes to that passage, Wharton was roundly condemnatory of the "native
Australians" and their habits. For present purposes, however, the
significance of his comments lies in his portrayal of the state of affairs, as
regards the Aborigines and the land, which had developed by 1893(281) ibid., pp
323-324: "Their
treachery, which is unsurpassed, is simply an outcome It
should be stressed that the statement that "the coarser order of
colonists" treated the Aborigines "as wild beasts to be
extirpated" was written in 1893 and was obviously a reference to free
settlers not to transported convicts(282) Transportation of convicts to the
Australian Colonies ended in 1868. What the extract makes plain is that the
oppression and, in some areas of the continent, the obliteration or near
obliteration of the Aborigines were the inevitable consequences of their being
dispossessed of their traditional lands. 52. Only seven years
later, the Australian Aborigines were, at least as a matter of legal theory,
included among the people who, "relying on the blessing of Almighty
God", agreed to unite in an indissoluble Commonwealth of Australia(283)
See the preamble to the Commonwealth of Australia Constitution Act (63 and 64 Vict c 12). The Constitution contained but two references to
them. Both were dismissive and have now been removed. The first(284) s.51(xxvi) excluded them from the reach of the
power of the Commonwealth Parliament to make laws with respect to the people of
any race. In a context where the courts had affirmed the proposition that the 53. In the very early
days, the explanation of the disregard of Aboriginal claims and the resulting
dispossession and conflict may have been that the new arrivals were ignorant of
the fact that, under pre-existing local law or custom, particular tribes or
clans had established entitlements to the occupation and use of particular areas
of land. That explanation is not, however, a plausible one in respect of later
events. Increasingly, the fact that particular tribes or clans enjoyed
traditional entitlements to the occupation and use of particular lands for
ritual, economic and social purposes was understood. Increasingly, that fact
was even acknowledged by government authorities and in formal despatches(286)
See, e.g., the examples given by Reynolds, The Law of the Land, (1987), Chs.III
and V. Thus, on 14 March 1841, James Stephen, probably the most knowledgeable
of all the nineteenth century permanent heads of the Imperial Colonial Office,
noted on a despatch received from South Australia(287) Colonial Office Records,
Australian Joint Copying Project, File No.13/16, Folio 57: "It
is an important and unexpected fact that these Tribes Two
years later, Stephen wrote(288) ibid., File No. 18/34, Folio 106 (9 June 1843)
of the "dispossession of the original Inhabitants". 54. Nor can it be
said that it did not occur to the Imperial and local authorities that the
dispossession of the Aboriginal inhabitants might involve the infringement of
rights recognized by the common law. The story of the development of South
Australia, including the ineffective reservation in the Letters Patent of
1836(289) Appendix to Reprints of the Public General Acts of South Australia
1837-1936, vol.8, pp 830-831 protecting "the rights of any Aboriginal
Natives (of South Australia) to the actual occupation or enjoyment in their own
persons or in the persons of their descendants of any land therein now actually
occupied or enjoyed by such Natives", demonstrates that the contrary was
the case(290) See, e.g., the sources referred to in Reynolds, op cit, pp
103-120. Another example is apposite. In Williams v. Attorney-General for New
South Wales(291) (1913) 16 CLR, at p 439, Isaacs J. referred to Governor
Bourke's Proclamation approved by the Colonial Office, refusing to recognize
Batman's 1835 Treaty with the local Aboriginal elders for the purchase of a
large tract of land on the shores of Port Phillip, as a "very practical
application" of the doctrine that the Crown had acquired full legal and
beneficial ownership of all the lands of Australia. Examination of the
contemporary documents discloses that the purchasers obtained advice from no
less an authority than Dr. Stephen Lushington(292) Then a leader of the English
Bar and judge of the 55. Inevitably, one
is compelled to acknowledge the role played, in the dispossession and
oppression of the Aborigines, by the two propositions that the territory of New
South Wales was, in 1788, terra nullius in the sense of unoccupied or
uninhabited for legal purposes and that full legal and beneficial ownership of
all the lands of the Colony vested in the Crown, unaffected by any claims of the
Aboriginal inhabitants. Those propositions provided a legal basis for and
justification of the dispossession. They constituted the legal context of the
acts done to enforce it and, while accepted, rendered unlawful acts done by the
Aboriginal inhabitants to protect traditional occupation or use. The official
endorsement, by administrative practice and in judgments of the courts, of
those two propositions provided the environment in which the Aboriginal people
of the continent came to be treated as a different and lower form of life whose
very existence could be ignored for the purpose of determining the legal right
to occupy and use their traditional homelands. 56. If this were any
ordinary case, the Court would not be justified in reopening the validity of
fundamental propositions which have been endorsed by long-established authority
and which have been accepted as a basis of the real property law of the country
for more than one hundred and fifty years. And that would be so notwithstanding
that the combined effect of Crown grants, of assumed acquiescence in
reservations and dedications and of statutes of limitations would be that, as a
practical matter, the consequences of re-examination and rejection of the two
propositions would be largely, and probably completely, confined to lands which
remain under Aboriginal occupation or use. Far from being ordinary, however,
the circumstances of the present case make it unique. As has been seen, the two
propositions in question provided the legal basis for the dispossession of the
Aboriginal peoples of most of their traditional lands. 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. In these circumstances, the Court is
under a clear duty to re-examine the two propositions. For the reasons which we
have explained, that re-examination compels their rejection. The lands of this
continent were not terra nullius or "practically unoccupied" in 1788.
The Crown's property in the lands of the Colony of New South Wales was, under
the common law which became applicable upon the establishment of the Colony in
1788, reduced or qualified by the burden of the common law native title of the
Aboriginal tribes and clans to the particular areas of land on which they lived
or which they used for traditional purposes. 57. To a large
extent, the nature, incidents and limitations of the rights involved in the common
law native title of Australian Aborigines appear from what has been written
above. It would, however, seem desirable to identify them in summary form at
this stage of this judgment. 58. Ordinarily,
common law native title is a communal native title and the rights under it are
communal rights enjoyed by a tribe or other group. It is so with Aboriginal
title in the 59. The rights of an
Aboriginal tribe or clan entitled to the benefit of a common law native title
are personal only. The enjoyment of the rights can be varied and dealt with
under the traditional law or custom. The rights are not, however, assignable
outside the overall native system. They can be voluntarily extinguished by
surrender to the Crown. They can also be lost by the abandonment of the
connection with the land or by the extinction of the relevant tribe or group.
It is unnecessary, for the purposes of this case, to consider the question
whether they will be lost by the abandonment of traditional customs and ways.
Our present view is that, at least where the relevant tribe or group continues
to occupy or use the land, they will not. 60. The personal rights
conferred by common law native title do not constitute an estate or interest in
the land itself. They are extinguished by an unqualified grant of an
inconsistent estate in the land by the Crown, such as a grant in fee or a lease
conferring the right to exclusive possession. They can also be terminated by
other inconsistent dealings with the land by the Crown, such as appropriation,
dedication or reservation for an inconsistent public purpose or use, in
circumstances giving rise to third party rights or assumed acquiescence. The
personal rights of use and occupation conferred by common law native title are
not, however, illusory. They are legal rights which are infringed if they are
extinguished, against the wishes of the native title-holders, by inconsistent
grant, dedication or reservation and which, subject only to their
susceptibility to being wrongfully so extinguished, are binding on the Crown
and a burden on its title. 61. Like other legal
rights, including rights of property, the rights conferred by common law native
title and the title itself can be dealt with, expropriated or extinguished by
valid Commonwealth, State or Territorial legislation operating within the State
or Territory in which the land in question is situated. To put the matter
differently, the rights are not entrenched in the sense that they are, by
reason of their nature, beyond the reach of legislative power. The ordinary
rules of statutory interpretation require, however, that clear and unambiguous
words be used before there will be imputed to the legislature an intent to
expropriate or extinguish valuable rights relating to property without fair
compensation(297) See, e.g., The Commonwealth v. Hazeldell Ltd. [1918] HCA 75; [1918] HCA 75; (1918) 25 CLR 552, at p 563;
Central Control Board (Liquor Traffic) v. Cannon Brewery Company Ltd. (1919) AC
744, at p 752; Clissold v. Perry [1904] HCA 12; (1904) 1 CLR 363, at pp 373-374
(affirmed (1907) AC 73): a case dealing with possessory title. Thus, general
waste lands (or Crown lands) legislation is not to be construed, in the absence
of clear and unambiguous words, as intended to apply in a way which will
extinguish or diminish rights under common law native title. If lands in
relation to which such title exists are clearly included within the ambit of
such legislation, the legislative provisions conferring executive powers will,
in the absence of clear and unambiguous words, be construed so as not to
increase the capacity of the Crown to extinguish or diminish the native title.
That is to say, the power of the Crown wrongfully to extinguish the native
title by inconsistent grant will remain but any liability of the Crown to pay
compensatory damages for such wrongful extinguishment will be unaffected. The
executive acts of the Crown under Crown or waste lands legislation will
likewise be presumed not to have been intended to derogate from the native
title. Thus, when Crown lands or waste lands are transferred to trustees to be
held upon trust for Aboriginal interests, it will be presumed, in the absence
of clear and unambiguous words, that the lands were intended to be held by the
trustees for the holders of the common law native title to the extent necessary
to enable enjoyment of their rights of occupation and use. 62. There are,
however, some important constraints on the legislative power of Commonwealth,
State or Territory Parliaments to extinguish or diminish the common law native
titles which survive in this country. In so far as the Commonwealth is
concerned, there is the requirement of s.51(xxxi) of the Constitution that a law with respect to the
acquisition of property provide "just terms". Our conclusion that
rights under common law native title are true legal rights which are recognized
and protected by the law would, we think, have the consequence that any
legislative extinguishment of those rights would constitute an expropriation of
property, to the benefit of the underlying estate, for the purposes of s.51(xxxi). An even more important restriction
upon legislative powers to extinguish or diminish common law native title flows
from the paramountcy of valid legislation of the Commonwealth Parliament over
what would otherwise be valid State or Territory legislation. In particular, as
Mabo v. Queensland(298) (1988) 166 CLR 186 has demonstrated, the provisions of
the Racial Discrimination Act 1975 (Cth) represent
an important restraint upon State or Territory legislative power to extinguish
or diminish common law native title. 63. It is unnecessary
and would be impracticable to seek to identify the extent to which particular
legislative provisions have clearly and unambiguously extinguished or adversely
affected common law native title in different areas of this country. That being
so, the general comments about enforcement and protection in the next section
of this judgment must necessarily be read as subject to the provisions of any
valid applicable legislation. 64. As has been seen,
common law native title-holders in an eighteenth century British Colony were in
an essentially helpless position if their rights under their native title were
disregarded or wrongly extinguished by the Crown. Quite apart from the inherent
unlikelihood of such title-holders being in a position to institute proceedings
against the British Crown in a British court, the vulnerability of the rights
under native title resulted in part from the fact that they were personal
rights susceptible to extinguishment by inconsistent grant by the Crown and in
part from the immunity of the Crown from court proceedings. The vulnerability
persists to the extent that it flows from the nature of the rights as personal.
On the other hand, as legislative reforms increasingly subjected the Crown or a
nominal defendant on its behalf to the jurisdiction of the courts and to
liability for compensatory damages for a wrong done to a subject, the ability
of native title-holders to protect and vindicate the personal rights under
common law native title significantly increased. If common law native title is
wrongfully extinguished by the Crown, the effect of those legislative reforms
is that compensatory damages can be recovered provided the proceedings for
recovery are instituted within the period allowed by applicable limitations
provisions. If the common law native title has not been extinguished, the fact
that the rights under it are true legal rights means that they can be
vindicated, protected and enforced by proceedings in the ordinary courts. 65. In a case where
the Crown or a trustee appointed by the Crown wrongly denies the existence or
the extent of an existing common law native title or threatens to infringe the
rights thereunder (e.g. by an inconsistent grant), the appropriate relief in
proceedings brought by (or by a representative party or parties on behalf of)
the native title-holders will ordinarily be declaratory only since it will be
apparent that the Crown or the trustee, being bound by any declaration, will
faithfully observe its terms. Further relief is, however, available where it is
necessary to protect the rights of the title-holders. One example of such
further relief is relief by way of injunction(299) See, e.g., Nireaha Tamaki v.
Baker (1901) AC, at p 578. Notwithstanding their personal nature and their
special vulnerability to wrongful extinguishment by the Crown, the rights of
occupation or use under common law native title can themselves constitute
valuable property. Actual or threatened interference with their enjoyment can,
in appropriate circumstances, attract the protection of equitable remedies.
Indeed, the circumstances of a case may be such that, in a modern context, the
appropriate form of relief is the imposition of a remedial constructive trust
framed to reflect the incidents and limitations of the rights under the common
law native title. The principle of the common law that pre-existing native
rights are respected and protected will, in a case where the imposition of such
a constructive trust is warranted, prevail over other equitable principles or
rules to the extent that they would preclude the appropriate protection of the
native title in the same way as that principle prevailed over legal rules which
would otherwise have prevented the preservation of the title under the common
law. In particular, rules relating to requirements of certainty and present
entitlement or precluding remoteness of vesting may need to be adapted or
excluded to the extent necessary to enable the protection of the rights under
the native title. 66. It must now be
accepted as settled(300) See Wacando v. The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 that the
Murray Islands became, or are deemed to have become, part of the Colony of
Queensland on 1 August 1879 pursuant to the combined effect of the Imperial
Letters Patent of 10 October 1878, the Queensland Coast Islands Act 1879 (Q.) and the
Proclamation of 18 July 1879(301) See Supplement to the Queensland Government
Gazette, vol.25, No.10, 21 July, 1879: the Proclamation was made on 18 July,
gazetted on 21 July and expressed to take effect from 1 August of the
Queensland Governor in Council. If, as is arguable, the Imperial Letters Patent
did not validly authorize the local Act and Proclamation of 1879, any defect was retrospectively cured by the Colonial
Boundaries Act 1895 (Imp)(302) See Wacando v. The Commonwealth (l981)
148 CLR at pp 16-18, 24-27, 28, 30; and note that the possible relevance of the
Pacific Islanders Protection Acts 1872-1875 (Imp) appears not to have been
adverted to in Wacando. See, generally, Lumb, "The Torres Strait Islands:
Some Questions Relating to their Annexation and Status", (1990) 19 FLR
154. 67. Upon the
annexation of the 68. It follows that,
at the time the 69. The detailed
findings of Moynihan J. of the Supreme Court of Queensland in relation to the
issues of fact remitted to that court unavoidably contain areas of uncertainty
and elements of speculation. Nonetheless, they provide, for present purposes, a
sound basis for some generalizations in relation to native entitlements to the
occupation and use of land within the 70. In 1985, the
Queensland Parliament enacted the Queensland Coast Islands Declaratory Act. In
Mabo v. Queensland(306) [1988] HCA 69; (1988) 166 CLR 186, this Court held that
the effect of that Act, if it had been wholly valid, would have been
retrospectively to extinguish, from the time of annexation in 1879, any rights,
interests and claims which any of the Meriam people might have had in relation
to land in the Islands. The Act was, however, held by the Court to be invalid,
by reason of inconsistency with s.10(1) of the Racial Discrimination Act 1975 (Cth), to the
extent that it purportedly extinguished any traditional native title of the
Murray Islanders. In the present case, the 71. After 1879, there
were some dealings with two particular areas of 72. In 1882, a
"reservation from sale" of the lands of the Murray Islands was
purportedly made pursuant to the provisions of the Crown Lands Alienation Act
1876 (Q.). The instrument of reservation has not been located. Its validity is
open to doubt since it is arguable that the Crown Lands Alienation Act was
inapplicable to lands within a territory which was not annexed to 73. It is unnecessary
to trace in detail the history of subsequent Crown lands legislation in 74. None of the
above-mentioned executive acts had the effect of extinguishing the existing
rights of Murray Islanders under common law native title. The reservation from
sale or lease "for use of the Aboriginal inhabitants of the State"
should clearly be construed as intended to protect, rather than extinguish, any
existing native rights of occupation and use. The placing of the lands of the (xviii) Relief 75. Subsequent to the
completion of the argument, the firstnamed plaintiff, Mr. Eddie Mabo, died. The
secondnamed and thirdnamed plaintiffs, Mr. David Passi and Mr. James Rice,
remain as competent plaintiffs. Each of them claims to be a native title-holder
in relation to land on 76. It would be
inappropriate for this Court to seek to define the rights of any plaintiffs in
the absence of other persons who may have competing claims to the relevant
areas of land. Each of Mr. Passi and
Mr. Rice has, however, standing to seek and obtain more general declaratory
relief against the In these circumstances,
the answers to the questions reserved for the 1.
That, upon the annexation of the 2.
That, putting to one side the London Missionary Society land and subject to the
effect of the grant of the forfeited Crown lease of the islands of Dauer and
Waier, the Crown's ownership of lands in the Murray Islands after their annexation
to Queensland was qualified and reduced by a communal native title of the
Murray Islanders to the land of the Islands which was preserved and protected
by the common 4.
That, apart from the effect of the leases of the London Missionary Society land
and of the forfeited Crown lease of the islands of Dauer and Waier, the common
law native title of Murray Islanders in respect of land in the Islands has not 5.
That the lands of the 6.
That the rights under that common law native title are true legal rights which
may be enforced and protected by legal action and which, if wrongfully
extinguished (e.g., by inconsistent grant) without clear and unambiguous
statutory authorization, found proceedings for compensatory damages. We would
reserve liberty to apply to the plaintiffs for further relief including, if the
circumstances justified it, injunctive relief and/or declarations of a remedial
constructive trust. 77. It should be
mentioned that the plaintiffs also sought a declaration that any future grant
by the Governor in Council of lands on Murray Island in purported pursuance of
the Land Act 1962 would be unlawful by reason of the provisions of ss.9 and 10 of the Racial Discrimination Act 1975 (Cth). In our
view, it has not been shown that such a declaration is warranted. For one
thing, the material before the Court does not establish that there exists any
intention to make such a grant. For another, the effect of this judgment is
that any such deed of grant would, if it had the effect of extinguishing the
rights of the Murray Islanders under common law native title, be wrongful
unless it was clearly and unambiguously authorized by a valid enactment of the
Queensland Parliament. There is no basis upon which the Court could properly
conclude that the Queensland Government is likely, in the absence of such clear
and unambiguous legislative authorization, to infringe the rights of Murray Islanders
by such an inconsistent deed of grant. If such clear and unambiguous
legislation was purportedly enacted, it would be necessary to examine its
operation to determine whether it was invalid by reason of inconsistency with
the Racial Discrimination Act 1975. 78. There are two
further matters which should be mentioned. The first is that we are conscious
of the fact that, in those parts of this judgment which deal with the dispossession
of Australian Aborigines, we have used language and expressed conclusions which
some may think to be unusually emotive for a judgment in this Court. We have
not done that in order to trespass into the area of assessment or attribution
of moral guilt. As we have endeavoured to make clear, the reason which has led
us to describe, and express conclusions about, the dispossession of Australian
Aborigines in unrestrained language is that the full facts of that
dispossession are of critical importance to the assessment of the legitimacy of
the propositions that the continent was unoccupied for legal purposes and that
the unqualified legal and beneficial ownership of all the lands of the
continent vested in the Crown. Long acceptance of legal propositions,
particularly legal propositions relating to real property, can of itself impart
legitimacy and preclude challenge. It is their association with the
dispossession that, in our view, precludes those two propositions from
acquiring the legitimacy which their acceptance as a basis of the real property
law of this country for more than a hundred and fifty years would otherwise
impart. The second further matter is that, in the writing of this judgment, we
have been assisted not only by the material placed before us by the parties but
by the researches of the many scholars who have written in the areas into which
this judgment has necessarily ventured. We acknowledge our indebtedness to
their writings and the fact that our own research has been largely directed to
sources which they had already identified. 2. The annexation of
the 3. The plaintiffs are
Murray Islanders and members of the Meriam people. Each of them claims rights
in specified parcels of land on the (a)
their holding the land under traditional native title; The
plaintiffs contend that their rights are of a kind that have been enjoyed by
the Meriam people since time immemorial. They say that these rights were not
extinguished upon the assumption of sovereignty by the Crown over the 4. The plaintiffs
also claim that the Crown, far from extinguishing their rights, has recognized
them. In this respect the plaintiffs point to the reservation of the 5. The defendant
argues that if the traditional land rights claimed by the plaintiffs ever
existed, they were extinguished from the moment of annexation. It contends that
those rights could not have survived the assertion of sovereignty by the Crown
unless they were recognized in some way. The defendant argues that not only
were any traditional land rights over the 6. One thing is clear
- I do not understand it to have been contested by the plaintiffs - and that is
that, upon annexation, the ultimate title to the lands comprising the 7. The main thrust of
the plaintiffs' case is, however, that following the annexation of the 8. There is ample
authority for the proposition that the annexation of land does not bring to an
end those rights which the Crown chooses, in the exercise of its sovereignty,
to recognize. This is so whether the assumption of sovereignty is by way of
conquest, cession or annexation, or by the occupation of territory that is not
at the time held under another sovereign. The law was summarized by the Privy
Council in Vajesingji Joravarsingji v. Secretary of State for "(W)hen
a territory is acquired by a sovereign state for the Their
Lordships went on to point out that in that case, which was a case of the
acquisition of territory by cession(315) ibid., at p 361: "The
moment that cession is admitted the appellants 9. In Secretary of
State for India v. Bai Rajbai the Privy Council was concerned with the cession
of territory previously under native rule and said of the members of the class
of persons (the kasbatis) one of whom was the respondent's ancestor(316) (1915)
LR 42 Ind App 229, at p 237: "The
relation in which they stood to their native sovereigns 10. And in Secretary
of State for India v. Sardar Rustam Khan the Privy Council again dealt with
what was in effect a cession of territory by the passing over of sovereignty to
the Government of India. Lord Atkin, delivering the judgment of their
Lordships, observed(317) (1941) AC 356, at p 371: "It
follows, therefore, that in this case the Government In
making this observation, his Lordship declined, in accordance with the
authorities, to embark upon any consideration of whether the decision was just
or unjust, politic or impolitic(318) ibid., at p 372; see also Cook v. Sprigg
(1899) AC 572, at p 579. 11. Amodu Tijani v.
Secretary, 12. The Privy Council
was again concerned with the cession of land to the British Crown in the former
colony of Lagos in Adeyinka Oyekan v. Musendiku Adele(328) (1957) 1 WLR 876.
Lord Denning, delivering the judgment of the Judicial Committee of the Privy
Council, recognized(329) ibid., at p 880 that the treaty of cession was an act
of state by which the British Crown acquired full rights of sovereignty over
Lagos. He continued: "The
effect of the Act of State is to give to the British His
Lordship went on to say that in inquiring what rights are recognized there is
one guiding principle, namely: "The
courts will assume that the British Crown intends that His
Lordship then expounded a second proposition: "Whilst,
therefore, the British Crown, as Sovereign, can For
the latter of these two propositions, Lord Denning cited as authority Amodu
Tijani v. Secretary, 13. In any event,
whether or not there is any presumptive recognition of native interests in land
upon a change in sovereignty may be little more than a matter of emphasis upon
which there is some variance in the cases. Once it is accepted, as I think it
must be, that recognition of these interests by the Crown may be a matter of
inference from all the facts, including mere acquiescence, it is obvious that
if, following a change in sovereignty, the new sovereign allows native
occupation and use of the land to continue undisturbed, that may afford some
foundation for the conclusion that such native interests (if any) in the land
as may have existed prior to the assumption of sovereignty are recognized by
the Crown. Of course, these interests need not correspond with title to land as
known to the sovereign under its own law(331) ibid., at pp 402-404 - for
example, the interests by virtue of which land was occupied by the natives of
Lagos was held to be communal(332) ibid., at pp 409-410 and this is not a form
of title to land that is known to the British Crown under English law. On the
other hand, if native interests in land are not recognized at all by the new
sovereign, they will be extinguished at the time sovereignty is assumed. But,
in the end, the question whether any native interests in the land have been
extinguished by an assumption of sovereignty is a question of fact which can
only be determined by reference to the surrounding circumstances. 14. There may be
circumstances which render it impossible to draw any inference of recognition
of native interests in land even where there is no interference with the
continued native occupation of land following a change in sovereignty. For
example, in In re Southern Rhodesia(333) (1919) AC 211 the Privy Council
considered lands in Southern Rhodesia over which the sovereign ruler was at one
time a chief known as Lobengula. A charter had been issued which incorporated
the British South Africa Company for commercial purposes and gave it wide
administrative powers. After hostilities Lobengula fled and his rule came to an
end, and thus the company, in 1894, became the effective ruler by conquest on
behalf of the Crown. Amongst the powers exercised by the company was the power
to grant title to land in the name of the Crown. Upon the question of the
recognition of native title, Lord Sumner, delivering the judgment of the Board,
said(334) ibid., at pp 234-235: "According
to the argument the natives before 1893 were These
unalienated lands consisted partly of native reserves, partly of land in the
company's own occupation and partly of country altogether waste and
unsettled(335) ibid., at p 213. Thus the circumstances surrounding or following
the assumption of sovereignty (in that case, by conquest) indicated that even
though the occupation of the natives had not necessarily been physically
disturbed, their pre-existing rights (if any) had nevertheless not been
accepted by the Crown and so had not been recognized by it. 15. The recognition
of native interests in land following the exercise of sovereignty by the Crown
is sometimes described as the recognition of the continued existence of those
interests. The vesting of the radical title in the Crown upon the assumption of
sovereign authority is, however, incompatible with the continued existence in
precisely the same form of any pre-existing rights. Necessarily the
pre-existing rights were held of a former sovereign or in the absence of any
sovereign at all. After the Crown has assumed sovereignty and acquired the
radical title to the land, any pre-existing "title" must be held, if
it is held at all, under the Crown. This new title is therefore not merely the
continuation of a title previously held, notwithstanding that it may be
identifiable by reference to the previous title. If the new title is to be held
under the Crown, the Crown must obviously accept it. Such acceptance may be by
way of acquiescence in the continued occupancy of land by the aboriginal
inhabitants and, if the native interests are accepted in this manner by the
Crown, the nature of those interests can then only be determined by reference
to the nature of the former occupancy by the aboriginal inhabitants. The
appearance (although not the fact as a matter of law) is, then, that these
native interests continue undisturbed. In this sense it may be true to say that
positive recognition of native interests by the Crown is unnecessary for their
continued existence and that what appear to be different views upon the subject
are, on analysis, fundamentally the same. 16. In my view this
explains the conclusion of Hall J. (Spence and Laskin JJ. agreeing) in Calder
v. Attorney-General of British Columbia that traditional native title is not
dependent upon a grant to or recognition of rights in the native
inhabitants(336) (1973) 34 DLR (3d) 145, at p 218 because such title is not
dependent upon a treaty, statute or other formal government action(337) ibid.,
at p 200; see also United States v. Santa Fe Pacific Railroad Co. [1942] USSC 12; (1941)
314 US 339, at p 347; Narragansett Tribe v. Southern Rhode Island Land
Development Corp (1976) 418 F Supp 798, at p 807; Hamlet of Baker Lake v.
Minister of Indian Affairs (1979) 107 DLR (3d) 513, at p 541; Delgamuukw v.
British Columbia (1991) 79 DLR (4th) 185, at p 286; Guerin v. The Queen (1984) 13 DLR (4th) 321,
at p 336. But if what Hall J. meant was that traditional native title somehow
survived the exertion of sovereignty by the Crown independently of any
recognition of it by the Crown (accepting that mere acquiescence might,
depending upon the circumstances, provide the necessary recognition), I am
unable to agree. 17. What I have said
is not inconsistent with the well-established principle that the municipal
courts have no jurisdiction to entertain a challenge to an act of state and, in
particular, that obligations assumed by one sovereign to another, as in a
treaty, cannot be enforced by municipal courts(338) See Secretary of State for
India v. Kamachee Boye Sahaba (1859) 13 Moo 22, at pp 75, 86 (15 ER 9, at pp
28-29, 32-33); Doss v. Secretary of State for India in Council (1875) LR 19 Eq.
509, at pp 534, 535; Cook v. Sprigg (1899) AC, at pp 578-579; Vajesingji
Joravarsingji v. Secretary of State for India (1924) LR 51 Ind.App, at p 360;
Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (1941) AC 308, at pp
324-325; Secretary of State for India v. Sadar Rustam Khan (1941) AC, at pp
369-372. Recent authority for this proposition is to be found in Winfat
Enterprise (HK) Co. Ltd. v. Attorney-General of Hong Kong(339) (1985) AC 733.
In that case, the Privy Council was concerned with the cession of the 18. Lord Diplock
delivered the judgment of the Judicial Committee of the Privy Council and, if I
may say so with respect, accurately reflected the authorities when he observed
of a claim by the appellant land developers to a title which survived the
cession(340) ibid., at p 746: "The
elementary fallacy of British constitutional law 19. As I have said,
the plaintiffs base their claim upon traditional native title, usufructuary
rights and customary ownership. It would seem that they seek to draw a
distinction between all three and, in particular, between traditional native,
or aboriginal, title and usufructuary rights. Since the main thrust of the
plaintiffs' case was directed towards establishing the existence of traditional
native title, it is that aspect of the case to which I turn first. 20. Although the
earliest cases upon this subject were decided in the 21. St. Catherine's
Milling and Lumber Company v. The Queen(341) (1888) 14 App Cas 46 was a case
which concerned, amongst other things, the nature of the tenure of the
aboriginal inhabitants - the Indians - of land in 22. Lord Watson
said(342) ibid., at pp 54-55: "It
was suggested in the course of the argument for the 23. Although Lord
Watson chose to base the interest of the Indians in the land entirely upon the
proclamation, that was not the only source of their title or, at all events, it
has not subsequently been treated as being so. Instead, a title of the same
kind has been held to arise independently of the proclamation so that both
Indians who are not covered by the proclamation and those who are covered have
been held to have the same kind of title over land(343) See Calder v.
Attorney-General of British Columbia (1973) 34 DLR (3d), at pp 156, 200; Hamlet
of Baker Lake v. Minister of Indian Affairs (1979) 107 DLR (3d), at p 541;
Delgamuukw v. British Columbia (1991) 79 DLR (4th), at p 286. 24. The question upon
which the Privy Council refrained from expressing an opinion - the nature of
Indian title - has never been given a precise answer. Lord Watson did, however,
suggest that Indian title was a kind of "personal and usufructuary
right". A personal and usufructuary right is a right temporarily to
possess, use or enjoy the advantages of land belonging to another so far as may
be had without causing damage or prejudice to it. In Delgamuukw v. British
Columbia(344) (1991) 79 DLR (4th) 185, at p 458; see also Attorney-General for
Ontario v. Bear Island Foundation (1984) 15 DLR (4th) 321, at p 360, for
example, McEachern C.J. described Indian title for the purposes of that case as
including "all those sustenance practices and the gathering of all those
products of the land and waters ... which (the Indians) practised and used
before exposure to European civilization (or sovereignty) for subsistence or
survival". 25. Whilst attempts
have subsequently been made to classify the rights arising from Indian title as
proprietary rights(345) See Guerin v. The Queen (1982) 143 DLR (3d) 416, at p
462 (Federal Court of Appeal); but cf. Calder v. Attorney-General of British
Columbia (1973) 34 DLR (3d), at p 167; Hamlet of Baker Lake v. Minister of
Indian Affairs (1979) 107 DLR (3d), at p 558; Delgamuukw v. British Columbia
(1991) 79 DLR (4th), at pp 415-416 which held to the contrary, such a notion is
contrary to the observation of Lord Watson that the tenure of the Indians was
"dependent upon the good will of the Sovereign" or his later
observation(346) (1888) 14 App Cas., at p 58 that the character of the interest
of the Indian inhabitants in the land was less than that of owners in fee simple
and was a "mere burden" upon the Crown's present proprietary estate.
However, it may be that in truth aboriginal title is neither a personal nor a
proprietary right but is sui generis. This was the view of Dickson J. (with
whom Beetz, Chouinard and Lamer JJ. concurred) in Guerin v. The Queen where he
said(347) (1984) 13 DLR (4th) 321,
at p 339: "It
appears to me that there is no real conflict between I
will deal later with the fiduciary obligation referred to by Dickson J. 26. However, it is
the question not of whether, but of how, Indian title can be extinguished that
has given rise to greater dispute. In Calder v. Attorney-General of 27. Conversely, Hall
J. (with whom Spence and Laskin JJ. concurred) held that the Indian title of
the Nishga tribe, being a legal right, could not be extinguished "except
by surrender to the Crown or by competent legislative authority, and then only
by specific legislation"(349) ibid., at p 208. He further held that once
Indian title is established it is presumed to continue until the contrary is
proved(350) ibid. The consequence was, in his view, that as there was no
specific legislation and no surrender, the title of the Nishga tribe had not
been extinguished. 28. However, in Reg.
v. Sparrow(351) (1990) 70 DLR (4th) 385, a case which dealt with the issue of
whether an aboriginal right to fish for food had been extinguished, the Supreme
Court of Canada failed to endorse the requirement, suggested by Hall J. in
Calder, that specific legislation was necessary to extinguish Indian title. In
a judgment delivered by Dickson C.J.C. and La Forest J. it merely said(352)
ibid., at p 401: "The
test of extinguishment to be adopted, in our opinion, This
test was accepted in two single judge decisions after Calder - that of Mahoney
J. of the Federal Court of Canada in Hamlet of Baker Lake v. Minister of Indian
Affairs(353) (1979) 107 DLR (3d) 513 and that of McEachern C.J. of the Supreme
Court of British Columbia in Delgamuukw v. British Columbia - which clearly
contemplated that specific legislation was not essential to extinguish Indian
title. In particular, in the latter case McEachern C.J. held that a series of
ordinances (which made provision for, among other things, pre-emption of land,
leases, actions for ejectment, Crown reserves and surveys, water privileges and
mining licences) established such a thorough and comprehensive land system in
British Columbia based on the appropriation of all lands in that colony to the
Crown that, together with a policy of throwing open the colony for settlement,
was entirely inconsistent with the continued existence of any system of aboriginal
interests in land, and so had the effect of extinguishing Indian title(354)
(1991) 79 DLR (4th), at pp 465, 474. 29. It is now
possible to turn briefly to several 30. Nevertheless, the
notion of native or Indian title owes much to the celebrated judgment of
Marshall C.J. in the case of Johnson v. McIntosh(356) (1823) 21 US 240. It is
unnecessary to refer to the detailed facts of the case. As Marshall C.J.
pointed out(357) ibid., at p 253, the inquiry was in great measure
"confined to the power of Indians to give, and of private individuals to
receive, a title, which can be sustained in the courts of this country".
He then described the discovery of the American continent and the relations
which were to exist between the discoverers and the natives. On this aspect,
Marshall C.J. said(358) ibid., at pp 253-254: "In
the establishment of these relations, the rights of 31. The nature and
extent of Indian title in the United States is amply described in Tee-Hit-Ton
Indians v. United States(359) [1955] USSC 24; (1955)
348 US 272. In that case a claim was made under the Fifth Amendment of the "It is well
settled that in all the States of the Union the tribes who inhabited the lands
of the States held claim to such lands after the coming of the white man, under
what is sometimes termed original Indian title or permission from the whites to
occupy. That description means mere possession not specifically recognized as
ownership by Congress. After conquest they were permitted to occupy portions of
territory over which they had previously exercised 'sovereignty,' as we use
that term. This is not a property right but amounts to a right of occupancy
which the sovereign grants and protects against intrusion by third parties but
which right of occupancy may be terminated and such lands fully disposed of by
the sovereign itself without any legally enforceable obligation to compensate
the Indians." 32. So, not unlike
the position in Canada, Indian title in the United States (in the absence of
recognition by Congress through treaty or legislation so that it becomes
property within the meaning of the Fifth Amendment) is a right of occupancy
which can be terminated by Congress at will(361) See Oneida Indian Nation v.
County of Oneida [1974] USSC 15; (1974)
414 US 661, at p 667; Lipan Apache Tribe v. United States (1967) 180 Ct Cl 487,
at p 492; United States v. Santa Fe Pacific Railroad Co. (1941) 314 US, at p
347; Johnson v. McIntosh (1823) 21 US, at pp 258, 259; United States v.
Tillamooks [1946] USSC 126;
(1946) 329 US 40, at p 46; United States v. Atlantic Richfield Co. (1977) 435 F
Supp 1009, at p 1031; Narragansett Tribe v. Southern Rhode Island Land
Development Corp (1976) 418 F Supp, at p 807; Gila River Pima-Maricopa Indian
Community v. United States (1974) 494 F 2d 1386, at p 1389 The actual title to
the land lies in the United States(362) Johnson v. McIntosh (1823) 21 US, at p
253; Oneida Indian Nation v. County of Oneida (1974) 414 US, at p 667; United
States v. Tillamooks (1946) 329 US, at p 46. However, Indian title will only be
extinguished where Congress' intention to effect such extinguishment is
"clear and plain"(363) Lipan Apache Tribe v. 33. In "There
is no doubt that it is a fundamental maxim of 34. I have been able
to deal with the authorities, other than the Australian authorities, in a
somewhat selective way. A full and scholarly examination is to be found in the
judgment of Blackburn J. in Milirrpum v. Nabalco Pty. Ltd.(367) (1971) 17 FLR
141. But I have been able to do so because, at least so far as the plaintiffs'
claim to traditional native title is concerned, this case turns upon the
application of accepted principles rather than upon the ascertainment of the
principles themselves. It is obviously a convenient course, which has been
adopted in other cases, to assume that traditional native title or aboriginal
title existed in the 35. The genesis of
the law which applies in the 36. Upon any account,
the policy which was implemented and the laws which were passed in 37. Thus it was that
successive Governors of the Colony of New South Wales were given power to grant
land without reference to any claim or consent by the aboriginal inhabitants.
The power of the earlier Governors (from Governor Phillip to Governor Brisbane)
to grant land extended to the whole of the colony which at that time (so far as
the mainland was concerned) extended from Cape York in the north, in the
latitude of 10 degrees 37' south, to South Cape in the south, in the latitude
of 43 degrees 49' south, and to all country inland to the west as far as the
135th degree of east longitude. 38. The instructions
to these earlier Governors, which accompanied their Commissions, merely
required the Governors to extend their intercourse with the natives, to
conciliate their affections, and to enjoin the Sovereign's subjects to live in
kindness and amity with them(369) Governor Hunter's Instructions dated 23 June
1794 (Historical Records of Australia ("HRA"), (1914), Series I,
vol.1, p 520, at p 522); see also Governor Phillip's Instructions dated 25
April 1787 (HRA, (1914), i.1.9, at pp 13-14); Governor King's Instructions
dated 23 February 1802 (HRA, (1915), i.3.391, at p 393); Governor Bligh's
Instructions dated 25 May 1805 (HRA, (1916), i.6.8, at p 10); Governor
Macquarie's Instructions dated 9 May 1809 (HRA, (1916), i.7.190, at p 192);
Governor Brisbane's Instructions dated 5 February 1821 (HRA, (1917), i.10.596,
at p 598). The generality of these instructions, which made no reference at all
to any interest of the aboriginal inhabitants in the land, may be contrasted
with the considerable and minute detail in the instructions as to the way in
which the Governors' power to grant land was to be exercised(370) See, for
example, Governor Phillip's Instructions dated 25 April 1787 (HRA, (1914),
i.1.9, at pp 14-15); Governor Phillip's Instructions re Land Grants enclosed in
Despatch No.3 Grenville to Phillip dated 22 August 1789 (H.R.A, (1914),
i.1.124-128); Governor Hunter's Instructions dated 23 June 1794 (HRA, (1914),
i.1.520, at pp 523-526); Governor King's Instructions dated 23 February 1802
(HRA, (1915), i.3.391, at pp 394-396); Governor Bligh's Instructions dated 25
May 1805 (HRA, (1916), i.6.8, at pp 11-14); Governor Macquarie's Instructions
dated 9 May 1809 (HRA, (1916), i.7.190, at pp 193-196); Governor Brisbane's
Instructions dated 5 February 1821 (HRA, (1917), i.10.596, at pp 598-601). 39. Some efforts
were, however, made for the welfare of the aboriginal inhabitants by setting
aside land for their use and benefit. For example, Governor Macquarie assigned
10,000 acres of land for the "permanent Benefit" of certain natives
for the purposes of establishing a reserve on which those natives could be educated
and "civilized", and encouraged to cultivate the land(371) Despatch
No.10 Macquarie to Earl Bathurst dated 24 February 1820 (HRA, (1917),
i.10.262). Governor Macquarie also indicated and demonstrated his willingness
to grant small areas of land to individual aboriginal inhabitants(372) See
Despatch No.15 Macquarie to Earl Bathurst dated 8 October 1814 (HRA, (1916),
i.8.367, at p 369); Despatch No.4 Macquarie to Earl Bathurst dated 24 March
1815 (HRA, (1916), i.8.461, at p 467); Despatch from Macquarie to Earl Bathurst
dated 27 July 1822 (HRA, (1917), i.10.671, at pp 677-678); HRA, (1916), i.8.
note 86; HRA, (1917), i.10 note 64; Proclamation dated 4 May 1816 enclosed in
Despatch No.10 Macquarie to Earl Bathurst dated 8 June 1816 (HRA, (1917),
i.9.141). Likewise, Governor Brisbane reserved 10,000 acres of land "for
the use of the Aborigines" and appointed certain officers as trustees of
the land upon which the London Missionary Society was to establish a mission.
The trustees were empowered to remove intruders or trespassers and "to
convey, for terms of years, or in tail, or in fee simple" an amount not
exceeding 30 acres to any Aborigine on condition that the land not be sold, let
or given to any white person(373) Despatch No.33 Brisbane to Earl Bathurst
dated 8 February 1825 (HRA, (1917), i.11.512, at pp 512-513). The land was to
revert to the Crown if the project failed(374) Despatch No.1 Earl Bathurst to
Darling dated 10 January 1827 (HRA, (1920), i.13.14, at p 15). Examples might
be multiplied but it is sufficient to observe that none of the measures taken
for the welfare of the aboriginal inhabitants involved the acceptance of any
native rights over the land. On the contrary, in so far as the measures
involved the provision of land, they were undertaken in the exercise of the
relevant Governor's discretion under the power conferred upon him by his
Commission and the land so provided was not necessarily that which the
aboriginal inhabitants settled on it had traditionally occupied. 40. As settlement
expanded under successive Governors of New South Wales, conflict between the
colonists and the aboriginal inhabitants intensified. There was correspondingly
more pressure to attend to the welfare of the aboriginal inhabitants(375) See,
e.g. the report of a Select Committee of the House of Commons on Aborigines
1836 (538), vol.VII, p 1. Most of the measures that were taken did not,
however, relate to land. For instance, instructions were issued by Lord Glenelg
for the appointment of Protectors of Aborigines who were, amongst other things,
to watch over the rights and interests of the natives within their
jurisdiction, to represent their wants, wishes or grievances to the colonial
government and to attempt to settle them down and to educate and
"civilize" them(376) Despatch No.72 Lord Glenelg to Gipps dated 31
January 1838 (HRA, (1923), i.19.252). However, outrages committed on the native
inhabitants did not cease and were the subject of concern. When Lord Russell
succeeded Lord Glenelg in the colonial office, he reiterated the solicitude of
the Imperial government for the Aborigines, saying that "it is impossible
that the Government should forget that the original aggression was our own, and
that we have never yet performed the sacred duty of making any systematic or considerable
attempt to impart to the former occupiers of New South Wales the blessings of
Christianity, or the knowledge of the Arts and advantages of civilised
life"(377) Despatch No.62 Lord Russell to Gipps dated 21 December 1839
(HRA, (1924), i.20.439, at p 440). But still nothing was said which could be
construed in any way as a recognition or acceptance by the Crown of any native
rights in the land. 41. Alternatively, to
the extent that measures were taken which related to land, they were too late
to produce any fundamental change in the character of the occupation of the
land following the assumption of sovereignty. For example, in 1848 Earl Grey
stated in a despatch to Governor Fitz Roy(378) Despatch No.24 Earl Grey to Fitz
Roy dated 11 February 1848 (HRA, (1925), i.26.223, at p 225): "I
think it essential that it should be generally understood On
advice that a condition to this effect could not validly be inserted in Crown
leases by the local Government, Fitz Roy requested an Order in Council giving
the necessary authority(379) Despatch No.221 Fitz Roy to Earl Grey dated 11
October 1848 (HRA, (1925), i.26.632). As a result, an Order in Council dated 18
July 1849 was made enabling the Governor to insert in pastoral leases
"such conditions, clauses of forfeiture, exceptions, and reservations, as
may be necessary for securing the peaceful and effectual occupation of the land
comprised in such leases, and for preventing abuses and inconveniences incident
thereto". Earl Grey considered that this Order in Council would enable the
Governor "to prevent the injury to the public which would result from the
absolute exclusion of natives or other persons travelling or searching for
minerals and so forth"(380) Quoted in Rusden, History of Australia,
(1883), vol.II, p 513. The somewhat imprecise wording of this Order in Council
is self-evident and it was thus a safe prediction that "as the Earl
refused to declare that the native rights deserved respect, they would not be respected"(381)
ibid. Thus, although a clause reserving to the Aborigines "free access to
the said parcel of land" or to any portion of it including the trees and
water which would "enable them to procure the animals, birds, fish and other
foods of which they subsist" was apparently inserted in Queensland
leases(382) Reynolds, The Law of the Land, (1987), p 144, the squatters ignored
this provision and, by and large, they continued to drive the aboriginal
inhabitants from their runs. 42. Therefore, the
policy of the Imperial Government during this period is clear: whilst the
aboriginal inhabitants were not to be ill-treated, settlement was not to be
impeded by any claim which those inhabitants might seek to exert over the land.
Settlement expanded rapidly and the selection and occupation of the land by the
settlers were regulated by the Governors in a way that was intended to be
comprehensive and complete and was simply inconsistent with the existence of
any native interests in the land. 43. Initially settlers
were permitted to occupy land only where that land had been granted or leased
to them by, or on the authority of, the Governor and so the earlier Governors
were able to control the settlement of the colony. As I have said, such
settlement was regulated in considerable detail by the instructions given to
these earlier Governors. However, as settlement expanded, the quantity of land
surveyed was insufficient to meet the demand, and so settlers were permitted by
Governors Macquarie and Brisbane to occupy land without a grant or lease, such
occupation being terminable at the will of the Crown(383) 44. Under Governor
Darling the settlers were only permitted to select land within certain
prescribed limits(386) First specified by Government Order dated 5 September
1826 and then expanded by Government Order dated 14 October 1829, which came to
be known as the "Limits of Location" and, as of 14 October 1829, consisted
of nineteen counties which essentially comprised the area that is today known
as the State of New South Wales. Land outside these limits (such as that
comprising today's States of Victoria and 45. Subsequently the
Sale of Waste Land Act 1842 (Imp) (5 and 6 Vict c.36) was passed. This Act made
comprehensive provision for the terms on which the Governor was to exercise his
power to alienate the waste lands of the Crown and it was followed by the Sale
of Waste Land Act 1846 (Imp) (9 and 10 Vict c.104), which was to similar
effect. Both of these Acts were clearly based on the premise that the waste
lands were owned by the Crown. Squatting was further regulated by an Order in
Council dated 9 March 1847 which divided all land in the Colony of New South
Wales into three classes (settled land, intermediate land and unsettled land)
and specified the terms on which pastoral leases in those classes would be
granted by the Crown. The class designated "unsettled land" comprised
land which was unsuitable for farming purposes but might be the subject of
squatting. Most of the land in what was to become 46. The fact that the
Crown regarded unalienated waste land as entirely its own to deal with as it
pleased is further exemplified by its refusal to recognize a "treaty"
whereby John Batman purported to acquire 500,000 acres known as
"Dutigalla" and 100,000 acres known as "Geelong" from
certain natives. Given the policy of the Crown which I have described, the
refusal emphasized that the Crown considered itself to be the owner of the
land, unencumbered by any form of native title. 47. It is unnecessary
to trace in detail the history of land settlement in 48. There may not be
a great deal to be proud of in this history of events. But a dispassionate
appraisal of what occurred is essential to the determination of the legal
consequences, notwithstanding the degree of condemnation which is nowadays apt
to accompany any account(391) See, e.g. Wacando v. The Commonwealth (1981) 148
CLR, per Murphy J. at pp 27-28. The policy which lay behind the legal regime
was determined politically and, however insensitive the politics may now seem
to have been, a change in view does not of itself mean a change in the law. It
requires the implementation of a new policy to do that and that is a matter for
government rather than the courts. In the meantime it would be wrong to attempt
to revise history or to fail to recognize its legal impact, however unpalatable
it may now seem. To do so would be to impugn the foundations of the very legal
system under which this case must be decided. 49. Having dealt with
the history I now turn specifically to the Crown lands legislation which, in my
view, makes it abundantly clear that the Crown assumed ownership of the waste
lands, unencumbered by any native interests. The early legislation is recounted
by Windeyer J. in Randwick Corporation v. Rutledge(392) [1959] HCA 63; (1959) 102 CLR 54, at p 71 et
seq.; see also Mabo v. Queensland (1988) 166 CLR, at pp 236-240 in a judgment
with which Dixon C.J. and Kitto J. agreed. Upon settlement, all the land in the
Colony of New South Wales, which then comprised the whole of eastern 50. As I have said,
the sale of the waste lands of the Crown came to be regulated by the Sale of
Waste Land Act 1842. "Waste Lands of the Crown" was defined to mean
"any Lands situate (in New South Wales), and which now are or shall
hereafter be vested in Her Majesty, Her Heirs and Successors, and which have
not been already granted or lawfully contracted to be granted to any Person or
Persons in Fee Simple, or for an Estate of Freehold, or for a Term of Years,
and which have not been dedicated and set apart for some public Use"(395)
s.23. Under this Act the Queen and her authorized agents were expressly
empowered to except from sale and either reserve to Her Majesty, Her Heirs and
Successors, or dispose of in such other manner as for the public interest may
seem best, "such Lands as may be required ... for the Use or Benefit of
the aboriginal Inhabitants of the Country"(396) s.3. A later Act, the Sale
of Waste Land Act 1846, empowered the Queen to demise, or to grant a licence to
occupy, waste lands of the Crown for a term not exceeding fourteen years(397)
s.1 and provision was made in that Act for the prosecution of persons in occupation
of waste lands without such a demise or licence(398) s.4. The definition of
"Waste Lands of the Crown" in the 1846 Act was similar to that
contained in the 1842 Act, except that it expressly included waste lands
"whether within or without the Limits allotted to Settlers for
Location"(399) s.9. 51. In 1855
responsible government was attained in 52. In 1847 in The
Attorney-General v. Brown(408) (1847) 1 Legge (N.S.W.) 312 the suggestion was
made that the Crown had neither the property in the waste lands of the Colony
of New South Wales nor possession of them. Stephen C.J., delivering a judgment,
which was the judgment of the Court, gave the firm answer(409) ibid., at p 316: "We
are of the opinion, then, that the waste lands of this 53. The separation of
the Colony of Queensland from the Colony of New South Wales was effected by
Letters Patent dated 6 June 1859. At the same time an Order in Council was made
providing for the government of the new colony. Clause 5 of the Letters Patent
gave power to the Governor of the Colony of Queensland, with the advice of the
Executive Council, to grant any "waste or unsettled" lands vested in
the Crown within the Colony of Queensland subject to any laws in force in that
colony regulating the sale or disposal of such lands. Clause 17 of the Order in
Council provided that, subject to The New South Wales Constitution Act and The Australian Waste Lands Act, the legislature of
the Colony of Queensland was to have power to make laws for regulating the
sale, letting, disposal and occupation of the waste lands of the Crown within
the colony. 54. In 1867 the 55. There followed a
series of Acts passed by the "All
lands vested in Her Majesty which have not been In
the Crown Lands Alienation Act 1876 (Q.), s.1, it is defined in part as: "All
lands vested in Her Majesty which are not dedicated And,
in the Land Act 1910 (Q.), s.4, it is defined as it is in the current
legislation, the Land Act 1962 (Q.) (s.5), namely, as: "All land
in Queensland, except land which is, for the time being - (c) Subject to
any lease or license lawfully granted by the Crown: Provided that land held
under an occupation license shall be deemed to be Crown 56. Generally
speaking these Acts empowered the Governor in Council to grant in fee simple or
to demise for a term of years or to otherwise deal with Crown lands in hhhhhhhhhhhhhhhhhhhhhhhhhhhhh 57. The observation
of Blackburn J. in Milirrpum(413) (1971) 17 FLR, at pp 254-255 (although it was
made in relation to the entire history of land policy and legislation in New
South Wales, South Australia and the Northern Territory) is apposite: "The
first event in that history, for the purposes of this His
Honour regarded it as significant, as indeed I do, that there was a
consciousness that the occupation of the land by white men was a deprivation of
the Aborigines, but that nevertheless no attempt was made to solve this problem
by way of the creation or application of law relating to title to land which
the Aborigines could invoke(414) ibid., at pp 256-259. 58. The very concept
of waste lands is an indication that the Crown proceeded, and was required to
proceed, in disregard of any notion of native title and this is emphasized by
the power to reserve from the sale of waste lands land required for the use or
benefit of the aboriginal inhabitants. This was the case both on the mainland
and in the 59. It was pursuant
to Crown lands legislation that reserves in 60. Following
recommendations made to the 61. Thus, whilst land
was reserved in 62. It appears that
by a proclamation issued in 1882 the 63. By an Order in
Council dated 14 November 1912, the Governor in Council ordered that "the
Murray Islands (Mer, Daua, Waua) containing an area of about 1200 acres
(exclusive of Special Lease 1677)" were to be "permanently reserved
and set apart for use of the Aboriginal Inhabitants of the State (of
Queensland)". Presumably Special Lease 1677 relates to the land previously
the subject of Special Lease 164. The reservation was made pursuant to the
powers conferred upon the Governor in Council by s.180 of the Land Act 1910. 64. By an Order in
Council dated 9 September 1939 the reserve comprising the Murray Islands was
placed under the control of trustees pursuant to s.181(1) of the Land Act 1910.
This section provided that the Governor in Council might, by Order in Council
and without issuing any deed of grant, place any land reserved for any public
purpose under the control of trustees and might declare the style or title of
such trustees and the trusts of the land. 65. Aboriginal
reserves, whether created under the Crown Lands Alienation Act 1876 or the Land
Act 1910, were, as I have said, initially regulated by the Aboriginals Protection
and Restriction of the Sale of Opium Act 1897. For the purposes of that Act, an
"aboriginal" included an aboriginal inhabitant of 66. This Act was
repealed by the Aboriginals Preservation and Protection Act 1939 (Q.)(418) s.3
but the Murray Islands reserve was continued, and regulated, as a reserve under
the Torres Strait Islanders Act 1939 (Q.)(419) s.1(4)(a). Certain sections of
the Aboriginals Preservation and Protection Act, which was to be read and
construed with the Torres Strait Islanders Act(420) Torres Strait Islanders Act
1939, s.21, also applied to the 67. The Aboriginals
Preservation and Protection Act and the Torres Strait Islanders Act were
repealed by the Aborigines' and Torres Strait Islanders' Affairs Act 1965
(Q.)(432) s.4(1). The 68. The Act
succeeding the Aborigines' and Torres Strait Islanders' Affairs Act, the Torres
Strait Islanders Act 1971 (Q.), may be dealt with shortly. This Act continued the
69. This Act was
repealed by the Community Services (Torres Strait) Act 1984
(Q.)(457) s.4. Under that Act the 70. As can be seen
from the preceding summary none of these Acts that regulated or now regulate
reserves (such as the Murray Islands reserve) adverts to any native interests
in the reserved land and, significantly, the power of an island council under
these Acts does not extend to dealing with titles to land. 71. So far as the
Murray Islands are concerned, the creation of a reserve of practically all of
the land on the Murray Islands for the benefit of aboriginal inhabitants so
soon after annexation is, in the light of the policy adopted by Queensland
towards land and the aboriginal inhabitants on the mainland, a clear indication
that the Crown was proceeding upon a basis other than that of preserving any
native rights in respect of the land. The creation of a reserve is not
necessarily inconsistent with the continued existence of native title(468) See
United States v. Santa Fe Pacific Railroad Co. (1941) 314 US, at p 353; Gila
River Pima-Maricopa Indian Community v. United States (1974) 494 F 2d, at pp
1389-1392. However, it is to be noted that in these cases the issue was whether
the creation of the reserve extinguished Indian title outside the reserve,
rather than whether the creation of the reserve extinguished any pre-existing
Indian title over the reserved land, but where the circumstances which
accompany a reservation of land clearly indicate the Crown's exercise of rights
of absolute ownership such that there is no room for the continued existence of
native title, then the reservation will clearly be inconsistent with the
recognition of that title. The reservation of the "The
creation of aboriginal reserves - a policy which goes 72. Just as those concerned
with the administration of the 73. The findings of
fact made by Moynihan J. upon the remitter of this matter to the Supreme Court
of Queensland are consistent with the conclusions which I have arrived at from
a consideration of the legislation passed and executive action taken, namely
that as from annexation traditional native title in the land was not recognized
by the Crown (or, what amounts to the same thing, was extinguished by the
Crown). In particular, Moynihan J. found that there was no concept of public or
general community ownership of land before the arrival of Europeans but that
all land was considered to be in the possession of a particular individual or
family group. Whatever the true character of traditional native title, it seems
that it can only be claimed by or on behalf of a group of native inhabitants
and that it does not support the claim of an individual to a particular parcel
of land. Of course this of itself does not deny the possibility that the Crown
has recognized or granted to the native inhabitants of the "The
ultimate determining factor in terms of the control and 74. Moynihan J. thus
appears to have formed the view that it would be no more than speculation to
conclude that there was any particular system controlling the use of land on
the 75. European contact
brought with it certain changes. In particular a system of chieftainship was
introduced with the appointment of the "mamoose" (or chief) at the
instigation of the European authorities and this was followed by the
establishment of the island council, the island court and the island policemen.
These were all introduced agencies that, in the words of Moynihan J., bore
"little or no relationship to anything previously in place in the society
or reflected by the culture". Other changes included the introduction of
school for the children, the introduction of Christianity, the migration of a
number of islanders to the mainland and a change in the economy from one based
on subsistence gardening supplemented by fishing to one based on cash from
employment. To some extent the manner of dealing with land was also affected -
for example, it appears that since European contact the practice of leasing or
loaning garden land to other Murray Islanders has become a relatively common
and accepted transaction. In particular though, after European contact, the
London Missionary Society, the schoolmaster and finally the island court
assumed the function of resolving disputes concerning residential (or village)
land and gardening land. Previously, there was nothing resembling these
institutions or performing their functions. Of the court Moynihan J. said: "I
am inclined to think that the operation of the Court And,
a little later, he concluded that: "The
view I take on the whole of the evidence is that In
other words, it appears that the court proceeded upon an ad hoc basis rather
than upon the basis of protecting such rights (if any) as may have existed
before the annexation of the 76. On 6 May 1931 a
lease (Special Lease 6619) was granted to two persons (not being aboriginal
inhabitants) over the whole of the islands of Dauer and Waier for a period of
twenty years for the purpose of establishing a sardine factory. A new lease
(Special Lease 6856) was later granted in the same year on the same terms
except that it provided for an extension of the lease for thirty years upon the
giving of six months' notice. This lease was then transferred to Murray Island
Fisheries Limited on 10 June 1932. The lease was, however, forfeited in 1938
for failure to pay the rent due and the improvements made on the leased land
were purchased by the Lands Department on behalf of the Chief Protector of
Aboriginals. 77. The granting of
the lease of land to the London Missionary Society referred to earlier and of
the lease for the purposes of a sardine factory are inconsistent with the
preservation of native title, although in the latter case the lease was subject
to conditions that the lessees would not in any way obstruct or interfere with
the use of the Murray Island natives of "their tribal gardens and
plantations" on the demised land and would not in any way obstruct or
interfere with the operations of the Murray Island natives who fished around
the reefs adjacent to the demised land. The construction of public buildings
and the carrying out of public works on the islands is also inconsistent with
the preservation of native title. 78. The court records
do show that in September 1913 the government purchased three portions of land
for a gaol house, a court house and a recreation reserve respectively for a
total sum of 6.0.0 pounds. Further, it appears that during the 1960s the
Department of Native Affairs paid $50 for a site for a kindergarten "in
recognition of any claim he (the recipient) had to the use of the land".
And, in 1973 the area of land used by the kindergarten was increased and
another person was paid $75 by the Department of Aboriginal and Islander
Affairs for the loss of use of the land. Each of these transactions was
variously referred to as a "sale", a "disposal", an
"acquisition" or a "purchase". The court records also show
that in 1928 land on Mer "was resumed by the Protector of Aboriginals and
set aside for a new village. The land was then cleared and subdivided into 23
lots and balloted for". However,
it was only upon some occasions when Islanders
were deprived of the use of their land that they were compensated. For example,
in 1978 land was used for the construction of an air-strip on Mer without any
question of compensation being raised. In any event, such payments as were made
were (despite some of the terminology used) for the loss of use of the land
rather than for the acquisition of any rights in the land, the payments being
made in some instances after the intervention of the island council. In my view
there was no legal obligation to give such compensation and the giving of it is
explicable on the grounds that it was desirable to avoid ill-feeling and
possibly to compensate the occupier for any improvements (such as gardens or
dwellings) that may have been made by him. It is true that on occasions land on
the 79. In my view, the
conclusion is inevitable that, assuming the native inhabitants of the Murray
Islands to have held some sort of rights in the land immediately before the
annexation of those islands, the Crown in right of the Colony of Queensland, on
their annexation, exerted to the full its rights in the land inconsistently
with and to the exclusion of any native or aboriginal rights. It did so under
the law which it brought with it. It did so from the start by acting upon the
assumption (which was also the assumption lying behind the relevant
legislation) that there was no such thing as native title and that the Crown
was exclusively entitled to all lands which had not been alienated by it: lands
which were designated as Crown lands. In making provision for the reservation
of land for public purposes, in particular the welfare of the aboriginal
population, the relevant legislation and the action taken pursuant to it
disclose no intention to preserve native rights in the land: they were simply
thought not to exist. The reservation of land for the use of the aboriginal
population was in the exercise of a benevolent jurisdiction whereby the land
was to be controlled by the Crown in accordance with a legislative scheme which
was inconsistent with the exertion of native rights, communal or otherwise, in
the land. If any ambiguity arose from the fact that practically the whole of
the Murray Islands were reserved and the fact that the aboriginal inhabitants
were allowed to continue in occupation of the land more or less as they had
been in the past (or at all events since European contact), that ambiguity is
resolved when it is recognized that the scheme under which the islands were
reserved extended to the whole of the colony and was elsewhere plainly
incompatible with the preservation of any native title and consistent only with
the assertion by the Crown of full and complete dominion over land. Indeed, the
creation of aboriginal reserves was for the purpose of actually retaining the
land within the control of the Crown or its agencies in order that it might be
administered for the benefit of the aboriginal population of the colony.
Further, aboriginal reserves were not created in a manner which coincided with
the aboriginal inhabitants' occupation of the land. On the contrary, aboriginal
reserves were created without any regard to aboriginal title. 80. My conclusion
that the plaintiffs have no aboriginal title to the land necessarily carries
with it the further conclusion that the plaintiffs' separate claim to
usufructuary rights over the land cannot succeed. Imprecise as the authorities
are concerning the nature of aboriginal title, it would appear upon any view to
embrace usufructuary rights. The separate claims made by the plaintiffs to
aboriginal title and usufructuary rights would appear to be based upon the
notion that aboriginal title is proprietary by nature, whereas usufructuary
rights are, by definition, not proprietary in nature. The weight of authority
rather suggests that aboriginal title is of its nature also non-proprietary and
carries with it little if anything more than usufructuary rights. But it is
unnecessary to pursue the matter because it is not, and cannot be, questioned
that aboriginal title may be extinguished and it follows that any usufructuary
rights amounting to something less than aboriginal title may also be
extinguished. The exertion by the Crown of its rights over the Murray Islands,
as evidenced by, among other things, the creation of a reserve, to the
exclusion of any native rights in that land, carries with it the result that
any usufructuary rights in the land stemming from occupancy before annexation,
have been extinguished. 81. Similarly, in the
light of what I have already said, the plaintiffs' claims to ownership by
custom of the lands comprising the 82. As I have said,
under both the Community Services (Torres Strait) Act and its
predecessor, an island council is required to govern the reserve "in
accordance with the customs and practices" of the islanders. Indeed, the
1980 by-laws expressly require the transmission of land on the holder's death
or permanent departure to be "in accordance with native custom"
(by-law no.35) and provide that, if a deceased islander does not make a will,
the deceased islander's land and property is to be distributed by the island
court "by native custom" (by-law no.38). Also, in some cases, the
jurisdiction of the island court is required to be exercised having regard to
or in accordance with "the usages and customs of the community"(472)
See, for example, Community Services (Torres Strait) Act, s.41(2)(a), (b). The plaintiffs contend that
these provisions confer "statutory rights" on the Meriam people.
However, these provisions cannot preserve that which has been found not to
exist by Moynihan J. and they do not constitute a recognition of customary
rights which, at least so far as land is concerned, are inconsistent with
Queensland laws introduced upon annexation. 83. The plaintiffs
placed reliance upon The Case of Tanistry(473) (1608) "queen
In
other words, on conquest the Crown took the paramount title to (though not
actual possession of) all the lands in the conquered realm so that all the
lands were held of the Crown. If the Crown permitted the conquered people to
remain in possession of the land then they obtained good title to it (under the
laws designated by the conqueror) without grant or confirmation of the Crown.
The Case of Tanistry therefore does not assist the plaintiffs in their claim to
ownership by custom. Even if they were able to establish the necessary custom,
it did not survive the annexation of the Murray Islands by the Crown in right
of the Colony of Queensland because, unlike the situation in The Case of
Tanistry, the Crown did not permit the inhabitants of the Murray Islands to
remain in possession of the land in accordance with its laws, including any
custom recognized under Queensland law. Instead their continued occupation was
at the pleasure of the Crown. 84. Alternatively,
the plaintiffs argue that, whether or not they are able to establish that they
have traditional land rights, they nevertheless have a title based on
possession. This argument is heavily based on a theory advanced by Professor
McNeil in his book Common Law Aboriginal Title, (1989). The starting point is
that the plaintiffs' predecessors in title have been in occupation of the land
since beyond living memory. Upon annexation, the common law was introduced into
the 85. But, of course,
any presumption that the plaintiffs have an estate in fee simple is
rebuttable(476) See Wheeler v. Baldwin [1934] HCA 58; (1934) 52 CLR 609, at p 632 and
any possessory title would not withstand the assertion by the Crown of its
radical title. In other words, upon the assumption of sovereignty by the Crown,
the plaintiffs or their predecessors could only retain such interests as the Crown
chose to recognize by one means or another and, as I have endeavoured to
explain, the Crown upon annexation asserted its right to the land to the
exclusion of any rights of ownership on the part of the plaintiffs or their
predecessors. 86. The plaintiffs
put yet another argument. They submit that if they fail to establish title to
the lands which they claim on the Murray Islands, nevertheless the Crown,
whether as a trustee or not, owes them a fiduciary duty to deal with those
lands in such a manner as to have regard to their traditional rights in them.
They argue that this duty arises from the unilateral assumption of control by
the Crown over the native inhabitants on annexation, the policy of protection
of the native inhabitants adopted by the Crown and the creation of a reserve
(later put under the control of trustees) for the use and benefit of the native
inhabitants. The plaintiffs say that this duty imposes an obligation on the
defendant, among other things, to preserve or have regard to the traditional
land rights of the plaintiffs, to exercise any discretionary powers conferred
by statute or otherwise in a manner which preserves or has regard to these
rights, and to pay proper compensation for any extinguishment or impairment of
these rights. I have some difficulty with this submission because, assuming
that the plaintiffs had traditional rights in those lands, I have reached the
conclusion that those rights have been extinguished. It is in the end for that
reason that I have also concluded that there is no fiduciary duty imposed upon
the Crown such as is advanced by the plaintiffs, but it is necessary for me to
elaborate my reasons for reaching that conclusion. 87. In the 88. In 89. Dickson J. (with
whom Beetz, Chouinard and Lamer JJ. agreed) found that the Crown was under a
fiduciary duty towards the Indians with respect to the surrendered land which,
whilst not a trust, made the Crown liable in the same way and to the same
extent as if a trust were in effect. The finding of Dickson J. that a fiduciary
duty existed was dependent upon the existence of Indian title and the statutory
provisions prohibiting the disposal of reserve land except through surrender to
the Crown. He said(485) ibid., at p 334: "In
my view, the nature of Indian title and the 90. Wilson J. (with
whom Ritchie and McIntyre JJ. agreed) held that, while the Crown did not hold
reserve land under s.18 of the Indian Act in trust for the bands because the
bands' interests were limited by the nature of Indian title, it did hold the
lands subject to a fiduciary obligation to protect and preserve the bands'
interests from invasion or destruction. Thus the Crown could not utilize
reserve land for purposes incompatible with the bands' Indian title unless the
relevant band agreed(486) ibid., at p 357. Wilson J. further held that this fiduciary
duty, which was founded upon aboriginal title, "crystallized upon the
surrender into an express trust of specific land for a specific
purpose"(487) ibid., at p 361. 91. The existence of
some sort of fiduciary or trust obligation upon the Crown in dealing with
surrendered reserve land which is identified in Guerin is similar to a
manifestation of the fiduciary relationship said to generally exist between the
Indian tribes and the United States government. That is that land in the United
States, whether held under unrecognized or recognized Indian title, cannot be
disposed of without the consent of Congress; in other words, analogously to the
position of the Crown in Canada, the United States government has assumed a
responsibility to protect the Indian tribes in their land transactions(488)
See, for example, Catawba Indian Tribe of South Carolina v. State of South
Carolina [1983] USCA4 1475;
(1983) 718 F 2d 1291, at pp 1298-1299; Joint Tribal Council of Passamaquoddy
Tribe v. Morton (1975) [1975] USCA1 273; 528
F 2d 370, at p 379; Narragansett Tribe v. Southern Rhode Island Land
Development Corp (1976) 418 F Supp, at p 803; United States v. Oneida Nation of
New York (1973) 477 F 2d 939, at p 942; Fort Sill Apache Tribe of State of
Oklahoma v. United States (1973) 477 F 2d 1360, at p 1366. 92. However, it has
been suggested that in 93. But once it is
accepted, as I think it must be, that aboriginal title did not survive the
annexation of the 94. As I have already
stated, in 1939 a trust (at least in name) of the lands comprising the Murray
Islands was created pursuant to s.181(1) of the Land Act 1910. The present
trustee would appear to be a corporation sole, The Corporation of the Director
of Aboriginal and Islanders Advancement. But the terms of the trust, which are
now to be gleaned from the Land Act 1962, are inconsistent with the
preservation of any form of native title and may in this respect be contrasted
with the provisions of the Indian Act. The trust was created without any deed
of grant from the Crown to the trustees and appears to be limited to the
imposition of an obligation to control the use of the land without any title
being vested in the trustees. It is, therefore, more akin to an administrative
arrangement than a conventional trust. Whether or not a trust of this kind
creates any enforceable rights in equity against the Crown or those appointed
as "trustees" by the Crown is a question which may on some other
occasion require to be answered(490) cf. Williams v. Attorney-General for
N.S.W. [1913] HCA 33; (1913)
16 CLR 404; see also Tito v. Waddell (No.2) (1977) Ch 106, at pp 211, 216, 223,
228-229, 234, 235-236; Kinloch v. Secretary of State for India (1882) 7 App Cas
619, per Lord Selborne L.C. at pp 625-626, Lord O'Hagan at p 630, and Lord
Blackburn at pp 631-632; Town Investments v. Department of Environment [1977] UKHL 2; (1978) AC 359, per Lord Diplock
at p 382 and Lord 95. Under the Land
Act 1962, the trustees may take action for the removal of trespassers, for the
protection of the land or for injury to or misuse of the land(491) s.338(1).
They may also, with the approval of the Governor in Council, make by-laws for,
among other things, protecting the land from trespass, injury or misuse and
regulating the use and enjoyment of the land and imposing reasonable fees and
charges therefor(492) s.339. The trustees are also prohibited from permitting
any person to occupy the reserved land for any purpose that is contrary to or
inconsistent with the purposes for which the land was reserved(493)
s.350(1)(a). Further, the trustees may lease the whole or any part of the land,
but only with the prior approval of the relevant Minister(494) s.343(1). In
this respect it is relevant to note that the Governor in Council may, on the
recommendation of the Minister, approve the leasing of the land for a purpose
other than the purpose for which the land was reserved(495) s.343A(1) and that,
while any rents are generally to be applied solely for the purposes of the
trust, the Minister does have the power to apply them for some other
purpose(496) s.346. Moreover, the trustees do not have power to sell or
transfer the land(497) s.342(1). Finally, the Governor in Council, by Order in
Council, is empowered to rescind in whole or in part or amend, alter, vary or
otherwise modify any Order in Council reserving and setting apart any Crown
land for any public purpose(498) s.334(4). If the Order in Council reserving
the land for a public purpose is rescinded by the Governor in Council, the
Minister may order the trust to be wound up and any surplus moneys are to be
remitted to the Minister to be disposed of as the Minister may direct(499)
s.354(1). 96. These provisions
define the parameters of the trust and they do so without any reference to any
interest in the land on the part of the inhabitants of the reserve. It is clear
that, in establishing a reserve, the Crown is not creating an interest in the
land in anyone else which can form the subject of a fiduciary or trust
obligation owed by the Crown to that other person or persons. It is merely
setting aside Crown land for a particular purpose. The Crown retains absolute
control over the disposition of that land and the legislation does not prevent,
but expressly enables, the Crown to revoke the reserve, whereupon it once again
becomes Crown land within the meaning of s.5 of the Land Act 1962 and so is
available for disposal by the Crown as absolute owner just as it was before it
was reserved. In dealing with reserved land in this way there is no legislative
requirement imposed on the Crown to consider the interests of the inhabitants
of the reserve at all. 97. Moreover, it does
not appear that the reserve comprising the 98. There is no doubt that the initial annexation of the
Further,
it is clear that the policy adopted by the See, for example,
Pearl-Shell and Beche-de-Mer Fishery Act 1881 (Q.); Liquor Act 1912 (Q.),
s.71(2); Native Animals Protection Act 1906 (Q.), s.9(c); Fauna Conservation
Act 1952 (Q.), s.78; Fisheries Act 1957 (Q.), s.3; Fisheries Act 1976 (Q.),
s.5(d); Torres Strait Fisheries Act 1984 (Q.). But
the measures taken in furtherance of this policy in no way relate to native
interests in land and cannot be used to found a fiduciary duty upon the Crown
to deal with land in a particular way. 99. In the absence of
any native title and in the light of the detailed legislative provisions which
govern the relationship of the Crown with the aboriginal inhabitants of the
State upon the basis that there is no native title or (if there is a
difference) traditional rights in the land, there is, in my view, no foundation
for the imposition of a fiduciary duty upon the Crown to deal with the lands
comprising the Murray Islands in a manner involving the recognition of any of
the rights which the plaintiffs claim. Of course, it was not
suggested, nor could it be, that the Racial Discrimination Act 1975 100. The plaintiffs
also pursued an argument based on the Racial Discrimination Act 1975 (Cth). As I have said, under
s.334(4) of the Land Act 1962 the Governor in Council may rescind an Order in
Council reserving and setting apart any Crown land for any public purpose. The Under s.334(1) the
Governor in Council may grant in trust any Crown land which, in the opinion of
the Governor in Council, is or may be required for any public purpose. "Public
purpose" includes the benefit of aboriginal and islander inhabitants or
any objects or purposes connected therewith or incidental thereto: s.5. The plaintiffs
contend that by virtue of these provisions the Governor in Council may rescind
the Order in Council reserving the The grant, they say,
may be to the Murray Island Council, which is a body corporate capable of
holding land (absolutely or subject to trusts) under s.15(3) of the Community Services (Torres Strait) Act. To do that, the
plaintiffs argue, would be unlawful under s.9(1) of the Racial Discrimination Act. Section 9(1)
provides: "It is
unlawful for a person to do any act involving a distinction, exclusion,
restriction or preference based on race, colour, descent or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of any human right or fundamental
freedom in the political, economic, social, cultural or any other field of
public life." The
human right or fundamental freedom which the plaintiffs allege would be
nullified or impaired is, apparently, that identified in Mabo v. 101. The consequences
of a grant in trust of the Murray Islands to the Island Council under the Land
Act 1962 would include: giving to the Governor in Council an authority to
exclude certain lands and improvements to the land from the grant(502) ss.334C,
334F and to make certain reservations from the grant(503) ss.334D; an inability
on the part of the trustee to lease any part of the land except with the prior
approval of the relevant Minister and then only on certain conditions including
that the term of the lease is not to exceed seventy-five years(504) ss.343,344;
a prohibition upon a lessee from transferring or mortgaging the lease or
sub-letting without the prior approval of the Minister(505) s.347; and giving a
power to the Minister to cancel a lease for breach of its terms by the lessee
or where "it is desirable in the public interests so to do" without
any right to compensation(506) s.348. Further, the Governor in Council may, by
Order in Council, declare that land granted in trust for the benefit of
aboriginal or islander inhabitants shall revert to the Crown, but only if he is
authorized to do so by an Act that specifically relates to that land; in such a
case, the land reverts to the Crown freed and discharged from the trusts and
all encumbrances, estates or interests whatsoever and may be dealt with by the
Crown as if it had never been granted(507) s.353A(1); see also s.352A which
relates to the resumption of land granted in trust for the benefit of
aboriginal or islander inhabitants where that land is approved by an Act for
resumption as land surplus to the requirements of the trust. 102. At the time when
argument was heard, a further Act, the Aborigines and Torres Strait Islanders
(Land Holding) Act 1985 (Q.), permitted land vested in an island council as
trustee to be divested and thereupon to become Crown land under the Land Act
1962(508) s.10. This divestiture of land from an island council was to take
place when a "qualified" islander (defined in s.4(1)) applied to the
council for a lease (of a kind described in s.9 of that Act) of part of the land
and that application was approved by the council. The Governor in
Council was thereupon authorized to grant the lease pursuant to the Land Act
1962(509) s.9(2). The restrictions imposed by the Land Act 1962 on the transfer
and mortgaging of leases and on sub-letting were equally applicable to leases
granted under this Act(510) s.18. The Act further stipulated the method by
which the annual rent payable under such leases was to be determined(511) s.16,
the rent being payable to the relevant island council(512) s.17(1) to be used
by that council for the purposes of the local government of the trust area
under its control or otherwise for the benefit of that trust area(513) s.17(2).
Finally the Act stipulated the grounds on which these leases became liable to
forfeiture(514) ss.21-24, in which event the land was to revert to and vest in
the relevant council(515) s.27. The system of granting leases under this Act
has, however, been terminated by the Aboriginal and Torres Strait Islander Land
(Consequential Amendments) Act 1991 (Q.), s.13(516) Section 13 inserted s.33A
into the Aboriginal and Torres Strait Islanders (Land Holding) Act, an Act
which came into operation after hearing argument in this case. 103. It is
unnecessary to refer in any more detail to the consequences which may follow
upon a grant in trust of the land comprising the Murray Islands, for the
discrimination which the plaintiffs allege under s.9(1) of the Racial Discrimination Act is the
nullification or impairment of the traditional land rights which they claim in
the land. The
view which I have expressed is that any rights in the land held by the
aboriginal inhabitants were extinguished upon annexation and it follows that
the relevant legislation cannot be regarded as authorizing the nullification or
impairment of the enjoyment or exercise of those rights. On the contrary, on
the view that I have taken, the legislation authorizes the conferring of rights
of a kind which the plaintiffs otherwise do not have. 104. In dealing with
this aspect of the plaintiffs' argument as I have, I have been able to avoid
the problem adverted to in Mabo v. Section 9 (of the Racial Discrimination Act) proscribes the
doing of an act of the character therein mentioned. It does not prohibit the
enactment of a law creating, That
question remains. 105. The plaintiffs
also place reliance upon s.10(1) of the Racial Discrimination Act. That sub-section
provides: "If, by
reason of, or of a provision of, a law of the Commonwealth or of a State or
Territory, persons of a particular race, colour or national or ethnic origin do not But,
of course, in the absence of the traditional land rights which they claim, the
plaintiffs enjoy the same rights under the Crown lands legislation as any other
inhabitant of Queensland and any special rights which they enjoy under the
legislation dealing with the Murray Islands are by way of addition to, and not
in limitation of, those rights which are enjoyed generally. 106. As I have said, for the purpose of reaching their
conclusion in Mabo v. Queensland the majority assumed the existence of
traditional land rights over the Murray Islands and it was upon this basis that
they determined that the Queensland Coast Islands Declaratory Act 1985 (Q.) was
inconsistent with the Racial Discrimination Act. The minority
considered it inappropriate to allow a
demurrer to the defendant's defence upon the
assumption of facts yet to be proved by the plaintiff. In the event, I have
concluded that those facts have not been proved with the result that, in my
view, there was no inconsistency between the Queensland Coast Islands
Declaratory Act (which, in any event, has since been repealed by the Torres Strait Islander Land Act 1991 (Q.), s.1.03) and the Racial Discrimination Act. Nor is there any
inconsistency between the latter Act and the provisions of the Land Act 1962
which enable a grant in trust to be made of the lands comprising the 107. As I have said,
since the Court heard this case, a further Act, the Torres Strait Islander Land
Act 1991 has come into operation. Under this Act land may be granted in fee simple
to trustees to be held for the benefit of islanders, their ancestors and
descendants. The trustees are
empowered to deal with that land in a number of ways and, in particular, to
grant a lease or licence over the whole or part of that land to an islander who
has a particular connection with that land under island custom. Provision is
also made for land to be claimed by an islander or group of islanders on the
grounds, among other things, of customary affiliation or historical
association, in which case, if the claim is established, and the Minister
agrees, the land may be granted in fee simple to trustees to hold for the
benefit of the successful claimants. 108. Finally, the
plaintiffs contend that the land comprising the Murray Islands was not Crown land
within the meaning of the Crown Lands Alienation Act 1876 (if the reserve was
established in 1882) or within the meaning of the Land Act 1910 (if the reserve
was established in 1912). According to the
plaintiffs, waste land or Crown land must mean land which is genuinely vacant
and unoccupied so that the Crown can take a full possessory title over it based
on occupation which does not displace any other occupation. They say that if land
occupied by indigenous peoples, such as the Murray Islands, were to be treated
as waste land or Crown land it would result in those indigenous peoples
becoming trespassers upon annexation. This
argument is unsustainable. As I have already
stated, waste land designates land that has not been alienated by the Crown.
This is made clear by the definition of "Crown lands" in the Land Act
1910 (s.4). While "Crown
lands" are defined in the Crown Lands Alienation Act 1876 (s.1) as lands
"vested in Her Majesty" this does
not mean vested in actual possession, as a matter of fact, but vested in legal
possession. Of course the Crown
does not physically possess waste lands but, as a matter of law, it is
considered to possess them so that, for example, it can bring an action for
trespass. Land inhabited by an
indigenous people whose rights are not recognized by the Crown are therefore
waste lands or Crown lands within the meaning of the Crown lands legislation. But
the native inhabitants do not become trespassers if, as is the case with the The plaintiffs also
contend that, even if the Murray Islands are Crown land and so capable of being
dealt with as such by the Crown, the Crown in right of the State of Queensland
had, and still has, no power to deal with land on the Murray Islands (e.g.
under the deed of grant in trust legislation) because there was no Imperial grant of power to deal with these lands, as
opposed to lands on the mainland. The short answer to
this contention is that it was the Crown in right of the Colony of Queensland
which annexed the The Crown in right of
109. This matter
comes before the Court in the form of questions reserved for its consideration
pursuant to s.18 of the Judiciary Act 1903 (Cth). The first two of
those questions relate to the particular interest of the plaintiffs Passi and
Rice in individual parcels of land. The claim of the
plaintiff Mabo is no longer pursued. Towards the
conclusion of argument, the attention of the plaintiffs' counsel was directed
to the difficulty of answering the first two questions asked having regard to
the findings made by Moynihan J. which may not support the claims made by
individuals or families to specific parcels of land. 110. It was suggested
that there may nevertheless be room for argument that the plaintiffs exercised
traditional rights in the land as members of a relevant group (Indigenous natives). Accordingly, the plaintiffs reformulated the declarations
which they sought in the action and it seems appropriate to express my ultimate
conclusions with respect to the reformulated declarations, rather than attempt
to answer the questions referred. (What
question are you referring to?) For
my part I would refuse each of the declarations
sought. However, the first
and second of those declarations incorporate a claim, in the alternative, (which is) that “the
Meriam people are, and have been since 1879, entitled as against the whole
world to occupy, use and enjoy the Murray Islands”. Of course, the
plaintiffs and their predecessors have, since annexation, been permitted to
occupy, use and enjoy lands which comprise some part of the It is because I
conceive the first and second declarations sought, in the form which I have
described, to be based upon the continued
existence of traditional land rights in one form or another that I am of the view that they the
claims ought to be refused.
As I have said, My reasons are any traditional land
rights which the plaintiffs may have had were extinguished upon the assumption
of sovereignty by the Crown over the Any fiduciary or trust obligation that might otherwise have
existed in relation to such rights is precluded by the terms of the relevant
legislation. Accordingly,
if traditional land rights (or at least rights akin to them) are to be afforded
to the inhabitants of the Introduction
TOOHEY J. The plaintiffs seek declarations as to their entitlement and that of
the Meriam people as a whole to three Torres Strait islands - Mer (known also
as Murray Island), Dauer (also spelt Dauar and Dawar) and Waier - and as to the
powers and obligations of the defendant, the State of Queensland, with respect
to those islands and the rights of the Meriam people who live there. The three
islands are collectively known as the Murray Islands; I shall refer to them in
this judgment simply as "the Islands"(519) For general background,
see Hocking, Torres Strait Islanders and Australian Law, (1987), International
Academy of Comparative Law, 12th Congress, Session A.1: "The Aborigine in
Comparative Law". 2. Central to the
case is the plaintiffs' claim that they or the Meriam people are, and have been
since prior to annexation by the British Crown, entitled to the Islands: (a) as
owners (b) as possessors (c) as occupiers or (d) as persons entitled to use and
enjoy the 3. The plaintiffs put
their claim on three bases. First, that the interests their predecessors
enjoyed in the 4. This third basis
of claim raises difficult questions with respect to the interruption of these
rights since such a "title" rests, not on factual occupation or
possession, but on the exercise of particular customs. Difficulties also arise
in so far as authority supporting customary rights focuses on specific customs.
Entitlement is to enjoy a particular custom rather than to continue a way of
life, or occupation, generally(522) For example the custom of "Borough
English" in which the youngest son, and not the eldest, succeeded to the
burgage tenement on the death of his father: Blackstone, Commentaries, 17th ed.
(1830), vol.II, p 83. It has become unnecessary to pursue these questions.
Given my conclusions in regard to traditional title, I need not consider this
basis of claim further. The judgment turns on conclusions as to traditional
title though important questions are raised by the plaintiffs' claim to a
possessory title. 5. The plaintiffs say
that their traditional title is good against the whole world and that it
continues today, "subject to the capacity of the Defendant to extinguish
the same by, or pursuant to clear and plain legislation"(523) Plaintiffs'
claim for declaratory relief as finally formulated during the hearing:
par.1.E.. They say (and the defendant so concedes, while denying the existence
of any title) that power has not been exercised to extinguish that title with
respect to the 6. Finally, the
plaintiffs seek a declaration that the defendant is not empowered to make a
deed of grant in trust in respect of the Islands under the Land Act 1962 (Q.)
and that any such deed would be unlawful by reason of ss.9 and 10 of the Racial Discrimination Act 1975 (Cth).
Alternatively, they say, such a deed may not be granted except upon payment of
proper compensation. 7. Broadly speaking,
the legal issues to be decided by the Court include: the effect of annexation,
involving questions of the presumption of vacancy and the position of the Crown
on annexation by settlement; the existence and nature of aboriginal interests
which may continue after annexation or be created by operation of the common
law on settlement; the capacity of the Crown to extinguish any such interests;
and the consequences in law of any breach of trust or fiduciary obligation owed
by the defendant to the plaintiffs or to the Meriam people. 8. The two kinds of
interest claimed by the plaintiffs have different sources and different
characteristics, though the two overlap in some ways and the same set of
circumstances, it is said, may give rise to either title. The first interest,
traditional title(524) See generally McNeil, Common Law Aboriginal Title,
(1989) (hereafter "McNeil"), Ch.6, has been the most commonly argued
in land rights cases; its origin lies in the indigenous society occupying territory
before annexation. This title is one recognised by the common law (though what
is required to establish that recognition is a matter of contention) but its
specific nature and incidents correspond to those of the traditional system of
law existing before acquisition of sovereignty by the Crown. The second kind of
title, common law aboriginal title(525) See generally McNeil, Ch.7, has no
existence before annexation since it is said to arise by reason of the
application of the common law. Not only its existence but its nature and
incidents are determined entirely by principles of common law.
"Title" is a title based on possession and the consequences of that
status at common law. It would, if made out, amount to a fee simple. 9. It will be
necessary to examine each form of title at greater length. But it is important
to appreciate that, particularly with respect to traditional title, the use of
the term "title" is artificial and capable of misleading. The rights
claimed by the plaintiffs on behalf of the Meriam people do not correspond to
the concept of ownership as understood by the land law of 10. At the forefront
of the argument is the issue whether such rights in land as were held by indigenous
groups survived annexation. There are of course evidentiary problems that will
arise in this regard but they do not affect the principle involved. If the
matter is seen strictly in terms of aboriginal "title", it is perhaps
not surprising that a court may reject such a claim as not giving rise to a
title recognised by the common law. That was the approach taken by Blackburn J.
to the plaintiffs' claim in Milirrpum v. Nabalco Pty. Ltd.(527) (1971) 17 FLR
141. But in truth what the courts are asked to recognise are simply rights
exercised by indigenous peoples in regard to land, sufficiently comprehensive
and continuous so as to survive annexation. 11. Before proceeding
further, one more point should be noted. While this case concerns the Meriam
people, the legal issues fall to be determined according to fundamental
principles of common law and colonial constitutional law applicable throughout 12. In his judgment
Brennan J. has traced the steps leading up to the Letters Patent passed by
Queen Victoria on 10 October 1878 "for the rectification of the Maritime
Boundary of the Colony of Queensland, and for the annexation to the Colony of
(certain) Islands lying in Torres Straits, and between Australia and New
Guinea". Pursuant to authority contained in the Letters Patent and The Queensland Coast Islands Act 1879 (Q.), the
Governor of Queensland, on 21 July 1879, declared that the islands described in
the Schedule to the Proclamation (which included the 13. If these
procedures were ineffective to incorporate the Islands into 14. In considering
the consequences of the annexation of the 15. The blurring of
the distinction between sovereignty and title to land should not obscure the
fact that(529) McNeil, p 108: "(t)he
former is mainly a matter of jurisdiction, involving 16. Lord Reid, in
Nissan v. Attorney-General(530) [1969] UKHL 3; (1970) AC 179, at pp 210-211,
after referring to some nineteenth century decisions of English courts, said: "
In my view, none of these cases decides that when the But
what of the annexation of territory not occupied by British subjects? It was
only with the colonising of territories that were uninhabited or treated as
such that settlement came to be recognised as an effective means of acquiring
sovereignty, additional to conquest and cession. There is no question of
annexation of the 17. One thing is
clear. The "There
is a great difference between the case of a Colony 18. The reference to
"peacefully annexed" carries a certain irony in the light of what we
now know. But, in any event, the idea that land is terra nullius because it
lacks "settled inhabitants" is a contentious one(532) The application
of the doctrine of terra nullius to Australia is strongly attacked in Reynolds,
The Law of the Land, (1987), passim. In particular, the view that a nomadic
lifestyle is inconsistent with occupation of land is at odds with reality. It
pays no regard to the reason why people move from one area of land to another.
Often people move, not because they lack any association with the land over
which they travel but to follow the availability of water and food in a harsh
climate. An approach more in accord with reality may be found in the judgment
of the International Court of Justice in "In
the view of the Court, therefore, a determination that 19. The matter was
put even more strongly by Vice-President Ammoun in a separate opinion
apparently endorsing the following assessment by one of the parties(534) ibid.,
at pp 85-86: "
Mr. Bayona-Ba-Meya goes on to dismiss the materialistic 20. The idea that
land which is in regular occupation may be terra nullius is unacceptable, in
law as well as in fact. Even the proposition that land which is not in regular
occupation may be terra nullius is one that demands scrutiny; there may be good
reason why occupation is irregular. Rather, in terms of 21. The operation of
the notion of terra nullius only arises in the present case because of its
theoretical extension to the 22. The real question
is whether the rights of the Meriam people to the 23. It follows from
what has been said that traditional title is not precluded by the argument that
the Crown acquired a proprietary interest in all land in the colony on
annexation. Previous interests in the land may be said to survive unless it can
be shown that the effect of annexation is to destroy them. That is, the onus
rests with those claiming that traditional title does not exist(536) See Calder
(1973) SCR, at p 375; (1973) 34 DLR(3d), at pp 189-190. 24. In this respect
the defendant argued that previously existing aboriginal interests in ancestral
lands continue after annexation only if they are recognised by positive
executive or legislative acts. This submission is supported by a line of
authority including Vajesingji Joravarsingji v. Secretary of State for
India(537) (1924) LR 51 Ind App 357, Secretary of State for India v. Bai
Rajbai(538) (1915) LR 42 Ind App 229, Asrar Ahmed v. Durgah Committee,
Ajmer(539) (1947) 34 AIR(PC) 1. and Tee-Hit-Ton Indians v. 25. In Vajesingji
Joravarsingji Lord Dunedin said(541) (1924) LR 51 "In
all cases the result is the same. Any inhabitant of the Blackburn
J., in Milirrpum(542) (1971) 17 FLR, especially at pp 223-227, followed this
line of authority. This perhaps is not surprising, at least in so far as the
Privy Council decisions were concerned, since they were binding on him where
applicable(543) See also Hookey, "The Gove Land Rights Case: A Judicial
Dispensation for the Taking of Aboriginal Lands in Australia?", [1972] FedLawRw 5;
(1972) 5 Federal Law Review 85. 26. However, a line
of authority represented by In re "(U)pon
a conquest it is to be presumed, in the absence of And
in Amodu Tijani(549) (1921) 2 AC, at p 407 Viscount Haldane, speaking for the
Privy Council, confirmed this presumption, without limiting it to colonies
acquired by conquest. 27. A sovereign can,
by a positive act, seize private as well as public property in the act of
acquiring sovereignty and the seizure is non-justiciable(550) Secretary of
State in Council of India v. Kamachee Boye Sahaba [1859] EngR 837; (1859) 7 Moo Ind App 476 (19
ER 388). But seizure of private property by the Crown in a settled colony after
annexation has occurred would amount to an illegitimate act of state against
British subjects since in a settled colony, where English law applies, there is
no power in the Crown to make laws, except pursuant to statute. Emergency
powers aside, the common law required legislative authority for compulsory
acquisition of property. Furthermore, the proposition that positive acts of
recognition are required before interests exist entails the difficult idea that
on acquisition of sovereignty rights disappear, only to spring back to life
immediately recognition occurs. Even more startling is the consequence that, immediately
on annexation, all indigenous inhabitants became trespassers on the land on
which they and their ancestors had lived. That was not a consequence the common
law dictated; if it were thought to be, this Court should declare it to be an
unacceptable consequence, being at odds with basic values of the common law. 28. I conclude
therefore that, subject to proof of the relevant interest, traditional title to
land is not extinguished by the act of state amounting to annexation but is
presumed to continue unless and until lawfully terminated. 29. Given that
traditional title may exist after annexation because it was not precluded by
Crown ownership of occupied lands and because it arose regardless of positive
recognition by the Crown, what is required to prove such a title? At the outset
a distinction should be noted between the existence of traditional title and
the nature of the title. These two questions dictate different lines of inquiry
but they have been blurred in some instances, leading to confusion in the proof
required to establish title. 30. Relevant
authority has dealt with the question of proof of the existence of traditional
title in different ways. In English and Australian decisions two requirements
have emerged: that the interests said to constitute title be proprietary and
that they be part of a certain kind of system of rules. Both of these
requirements are apparent in In re "(I)t
was necessary that the argument should go to the The
Court concluded that "the position of the natives of 31. Thus traditional
title was said to depend on proof of something akin to a private proprietary
right emanating from a "civilized society". The Court did not spell
out what "institutions or ... legal ideas" were necessary to
constitute such a society but it is clear that approximation to British society
would suffice. The passage implies the possibility of "conceptions of
rights and duties" which, because of their nature (determined by their
source), do not amount to traditional title. There may be a system of rules,
but not such as to attract the notion of traditional title at common law. The
distinction echoes that said to exist between law and custom. 32. In Milirrpum
Blackburn J. concluded(553) (1971) 17 FLR, at pp 244-245, 262 that no positive
doctrine of "communal native title" existed at common law at the time
of annexation. So he did not need to deal with proof of title. But, in order to
answer submissions made to him, his Honour went on to consider that question.
Based on those submissions, he said that communal native title involved proof
that the aboriginal interests said to comprise the title were "capable of
recognition" and that they were "proprietary"(554) ibid., at p
198. In answering the first question, whether the interests were capable of
recognition, Blackburn J. quoted(555) ibid., at p 264 the passage from In re
Southern Rhodesia noted earlier in this judgment and then heeded comments made
by Viscount Haldane for the Privy Council in Amodu Tijani(556) (1921) 2 AC, at
pp 402-403: "(I)n
interpreting the native title to (the) land ...(t)here 33. Blackburn J. then
considered the distinction made by the Privy Council in In re Southern
Rhodesia, leaving open the question whether assessment according to such a
scale may be possible, and said(557) (1971) 17 FLR, at p 267: "(T)he
social rules and customs of the plaintiffs cannot 34. Thus, his Honour
recognised the system before him as a system of law(558) ibid., at p 268.
However, on the other requirement of proof, that the aboriginal interests be
proprietary, the plaintiffs failed. Blackburn J. held that the clan's
relationship with the land was not proprietary because it failed to satisfy the
essential elements of a proprietary interest under the common law, those
elements being: the right to use or enjoy, the right to exclude others and the
right to alienate(559) ibid., at pp 272-273. 35. North American
courts have taken a different approach to the question of proof of the
existence of traditional title. One of the leading discussions in this regard
is to be found in Hamlet of Baker Lake v. Minister of Indian Affairs and
Northern Development. There Mahoney J. concluded(560) (1979) 107 DLR (3d) 513,
at p 542, after an examination of Canadian and "
The elements which the plaintiffs must prove to 36. Hamlet of 37. The same
criticism can be directed at a requirement which distinguishes between types of
society. In the end such a criterion is concerned with the kind of traditional
right or duty, the distinguishing feature being its source. It presupposes the
possibility that rights and duties will not constitute a title even though they
are coherent, existent and underlie a functioning society. Therefore, apart
from a prohibition against discriminatory treatment of some indigenous
societies, an inquiry into the kind of society from which rights and duties
emanate is irrelevant to the existence of title, because it is inconceivable
that indigenous inhabitants in occupation of land did not have a system by
which land was utilised in a way determined by that society. There must, of
course, be a society sufficiently organised to create and sustain rights and
duties, but there is no separate requirement to prove the kind of society,
beyond proof that presence on land was part of a functioning system. It follows
from this discussion that requirements that aboriginal interests be proprietary
or part of a certain kind of system of rules are not relevant to proof of
traditional title. 38. In general the
approach taken in the North American authority is to be preferred. So, what is
required to prove title? 39. The requirements
of proof of traditional title are a function of the protection the title
provides(562) 40. North American
cases have begun to articulate factors which will indicate this kind of
presence on, or use of, land. Any such articulation cannot be exhaustive. 41. First, presence
on land need not amount to possession at common law in order to amount to
occupancy(564) See Calder (1973) SCR, at p 328; (1973) 34 DLR (3d), at p 156.
United States and Canadian cases have required proof of occupancy by reference
to the demands of the land and society in question "in accordance with the
way of life, habits, customs and usages of the (indigenous people) who are its
users and occupiers"(565) Sac and Fox Tribe of Indians of Oklahoma v.
United States (1967) 383 F 2d 991, at p 998. In Hamlet of Baker Lake the
Canadian Federal Court held that the Inuit succeeded in showing that they
occupied their land. Mahoney J. said(566) (1979) 107 DLR (3d), at pp 544-545: "The
absence of political structures like tribes was an 42. This aspect of
occupancy need not be pursued further since the economy of the Meriam people on
the 43. Secondly, it has
been said that to amount to occupancy presence on land must have been
established "long prior" to the point of inquiry(568) Alcea Band of
Tillamooks v. United States (1945) 59 F Supp 934, at p 965; affirmed [1946] USSC 126;
(1946) 329 US 40. That is necessarily a relative concept. In Milirrpum
Blackburn J. was content to approach the plaintiffs' claim as requiring proof
of occupancy from a "time in the indefinite past". He rejected the
expression "from time immemorial", though used in the statement of
claim, as having technical connotations that were of no relevance to the
plaintiffs' case(569) (1971) 17 FLR, at p 152. Blackburn J. thought it
necessary that the plaintiffs prove occupancy from the acquisition of English
sovereignty, a view also taken by Mahoney J. in Hamlet of Baker Lake(570)
(1979) 107 DLR (3d), at pp 542, 546. If occupation by an indigenous people is
an established fact at the time of annexation, why should more be required? In
any event, in the present case, the defendant did not argue that the plaintiffs
failed because their presence on the 44. Thirdly, it was
said in United States v. Santa Fe Pacific Railroad Co.(571) [1942] USSC 12; (1941)
314 US 339, at p 345; see also Alcea Band of Tillamooks (1945) 59 F Supp, at p
965: "If
it were established as a fact that the land in question This
principle of exclusive occupancy is justified in so far as it precludes
indiscriminate ranging over land but it is difficult to see the basis for the
rule if it precludes title merely on the ground that more than one group
utilises land. Either each smaller group could be said to have title,
comprising the right to shared use of land in accordance with traditional use;
or traditional title vests in the larger "society" comprising all the
rightful occupiers. Moreover, since occupancy is a question of fact, the
"society" in occupation need not correspond to the most significant
cultural group among the indigenous people(572) Blackburn J. in Milirrpum
(1971) 17 FLR, at p 273, expressly left open the possibility of a larger group
establishing traditional title. 45. It may be noted
that the Aboriginal Land Rights (Northern Territory) Act 1976
(Cth) ("the Land Rights Act") speaks in various
places of "Aboriginals entitled by Aboriginal tradition to the use or
occupation of ... land, whether or not the traditional entitlement is qualified
as to place, time, circumstance, purpose or permission"(573) For instance,
s.11(1)(a), (1AD)(a), (1AE)(a), (1B)(4); see
also s.71(1). The Land Rights Act recognises that traditional
occupation may not be exclusive. It may be, for instance, that one group is
entitled to come on to land for ceremonial purposes, all other rights in the
land belonging to another group(574) The reports of Aboriginal Land
Commissioners under the Land Rights Act contain a number of examples
that bear out this observation. 46. It is, of course,
ultimately a matter of speculation how long, and in what manner, the Meriam
people lived on the "The
islands had been occupied by such people for some Later
his Honour said (579) ibid., p 155: "
Given considerations such as the constraints imposed And,
with respect to the current Meriam society, Moynihan J. found(580) ibid., pp
155-156: "Murray
Islanders have a strong sense of relationship to 47. All the factors
discussed above in support of traditional title are clearly satisfied in the
present case. Indeed, the defendant agreed that the Meriam people were present
on the Islands before and at the time of annexation and that the Crown in right
of 48. The first aspect
of the argument rests on such statements by Moynihan J. as(581) ibid., p 172: "The
ultimate determining factor in terms of the control It is
true that the findings of Moynihan J. do not allow the articulation of a
precise set of rules and that they are inconclusive as to how consistently a
principle was applied in local law, for example, with respect to inheritance of
land. But, as has been said earlier in this judgment, the particular nature of
the rules which govern a society or which describe its members' relationship
with land does not determine the question of traditional land rights. Because
rights and duties inter se cannot be determined precisely, it does not follow
that traditional rights are not to be recognised by the common law. 49. The only
relevance of an argument of uncertainty is if it can be said that the rules or
practices governing Meriam society were so capricious and their application so
inconsistent as to indicate that the Meriam people's presence on the Islands
was coincidental and random(582) There may in some circumstances be an argument
that a traditional system was so violent or otherwise repressive of human
rights as to make adoption by the common law impossible: see Bastard v. Smith.
But that is not relevant here. On the findings of Moynihan J. that is
impossible to conclude. 50. An argument to
the effect that, regardless of the state of things at the time of annexation,
the Meriam people now do not have title because they no longer exercise
"traditional" rights and duties and have adopted European ways also
fails. There is no question that indigenous society can and will change on
contact with European culture. Since annexation a school, a hospital, the 51. But modification
of traditional society in itself does not mean traditional title no longer
exists(584) See Hamlet of Baker Lake (1979) 107 DLR (3d), especially at pp
527-529. Traditional title arises from the fact of occupation, not the
occupation of a particular kind of society or way of life. So long as
occupation by a traditional society is established now and at the time of
annexation, traditional rights exist. An indigenous society cannot, as it were,
surrender its rights by modifying its way of life(585) In Hamlet of Baker Lake
aboriginal title was held to exist despite the fact that the Inuit had changed
from a nomadic to a settled lifestyle: see ibid., at pp 524-529. See also 52. It follows from
what has been said that the Meriam people, represented by the plaintiffs, had
traditional title to the 53. The plaintiffs'
argument before the Court proceeded on the assumption that the Crown had power
to extinguish traditional title, at any rate "by, or pursuant to, clear
and plain legislation"(586) The precise language employed by counsel for
the plaintiffs varied only little during argument e.g. "extinguishable by
appropriate clear and plain legislative words"; "assuming the
legislation clearly and plainly permitted it". Nevertheless, something
should be said about the concept of extinguishment. 54. There is
precedent for the proposition that the Crown has power to extinguish
traditional title(587) Johnson v. McIntosh (1823) 21 US 240, at p 259; United
States v. Santa Fe Pacific Railroad Co.; St Catherine's Milling and Lumber
Company v. The Queen (1888) 14 AC 46; Tee-Hit-Ton Indians v. "Whatever
may be the opinion of jurists as to the strength 55. Furthermore, even
assuming the power of extinguishment to be a power to act unilaterally, it is
not easy to discern the basis for such a proposition. There are suggestions in
decided cases that it may be a concomitant of an assertion of sovereignty(591)
See Johnson v. McIntosh (1823) 21 56. Another rationale
for the special power of the Crown to extinguish traditional title appears to
be that it is part of British colonial policy to protect the interests of
indigenous inhabitants; that the Crown's power is the corollary of the general
inalienability of title, which itself constituted a means of protecting
aboriginal people from exploitation by settlers(593) See The Queen v. Symonds
(1847) NZPCC , at pp 390-391; Guerin v. The Queen (1984) 2 SCR, at pp 383-384;
(1984) 13 DLR (4th), at p 340, where reference is made to the Royal
Proclamation of 1763, applicable to recently-acquired North American colonies;
note also the Proclamation by Governor Bourke and comments by Lord Glenelg
following John Batman's attempted purchases of land at Port Phillip in 1835,
discussed in McNeil, pp 224-225. That traditional title is generally
inalienable may itself be open to debate(594) Dicta referring to inalienability
must be read in the light of ordinances and statutes precluding alienation
except by surrender to the Crown. See for instance Nireaha Tamaki v. Baker
(1901) AC 561, at p 579; Attorney-General for 57. Finally, some
cases suggest that a power to extinguish traditional title unilaterally is
vested in the Crown as a result of an inherent quality of the title itself.
This follows from characterisation of the title as "a personal and
usufructuary right" as opposed to a proprietary right(596) St. Catherine's
Milling (1888) 14 App Cas, at p 54; Tee-Hit-Ton Indians v. United States (1955)
348 US, at pp 279, 281 ("right of occupancy", not compensable);
Calder (1973) SCR, at pp 352-353; (1973) 34 DLR (3d), at pp 173-174
("usufructuary right", but right to compensation suggested), the
former being inherently weaker and more susceptible to extinguishment. As long
ago as 1921 the Privy Council cautioned against attempting to define aboriginal
rights to land by reference to the English law notion of estates. In Amodu
Tijani, Viscount Haldane said(597) (1921) 2 AC, at p 403: "There
is a tendency, operating at times unconsciously, to 58. As discussed earlier,
the specific nature of such a title can be understood only by reference to the
traditional system of rules. An inquiry as to whether it is
"personal" or "proprietary" ultimately is fruitless and
certainly is unnecessarily complex. The warning in Amodu Tijani has been heeded
in recent cases. For example, in Calder Judson J. said(598) (1973) SCR, at p
328; (1973) 34 DLR (3d), at p 156. See also Dickson J. in Guerin (1984) 2 SCR,
at p 382; (1984) 13 DLR (4th), at p 339: "It appears to me that there is no
real conflict between the cases which characterize Indian title as a beneficial
interest of some sort, and those which characterize it a personal, usufructuary
right. Any apparent inconsistency derives from the fact that in describing what
constitutes a unique interest in land the courts have almost inevitably found
themselves applying a somewhat inappropriate terminology drawn from general
property law.": "(T)he
fact is that when the settlers came, the Indians were Therefore,
a conclusion that traditional title is in its nature "personal" or
"proprietary" will not determine the power of the Crown to extinguish
the title unilaterally. 59. As I have said,
the plaintiffs did not contest the Crown's power to extinguish traditional
title by clear and plain legislation. That concession was properly made,
subject to a consideration of the implications that arise in the case of
extinguishment without the consent of the titleholders. Where the legislation
reveals a clear and plain intention to extinguish traditional title, it is effective
to do so. In this regard traditional title does not stand in a special
position, although the canon of construction referred to by Lord Atkinson in
Central Control Board (Liquor Traffic) v. Cannon Brewery Company Limited(599)
(1919) AC 744, at p 752. See also The Commonwealth v. Hazeldell Ltd. [1918] HCA 75; (1918) 25 CLR 552, at p 563 and
the decisions there referred to is of equal application: "That
canon is this: that an intention to take away the Application
of this canon to traditional title may be found in several Canadian and
American decisions(600) For 60. It need hardly be
said that where an executive act is relied upon to extinguish traditional
title, the intention of the legislature that executive power should extend this
far must likewise appear plainly and with clarity. 61. It follows that
traditional title may not be extinguished by legislation that does no more than
provide in general terms for the alienation of the waste lands of the colony or
Crown land. That is not to say that the legislature must identify with
specificity particular interests to be extinguished if the legislative
intention is otherwise clear(601) Mabo v. 62. While it is
common ground that nothing has been done to extinguish the rights of the Meriam
people to the 63. The 64. The plaintiffs
made submissions as to the consequences of the lease to the Society but claimed
no relief in respect of what had occurred. Whether, in the light of the
principles discussed in this judgment, the leases granted in 1882 and
subsequently were effective to extinguish the traditional title of the Meriam
people to that land is a question we do not have to answer. It may be that,
since there was a special lease of 2 acres of the 65. In 1931 a lease
was granted over the islands of Dauer and Waier for a term of 20 years for the
purpose of establishing a sardine factory. The lease was granted to two persons
who were not Meriam people(605) ibid., vol.2, p 47. Special conditions attached
to the lease precluded the lessees from interfering with "the use by the 66. Whether that
lease was effective to extinguish the traditional title of the Meriam people to
Dauer and Waier, again is a question the Court was not asked to answer and no
relief is claimed in regard to that transaction. In those circumstances it is
unnecessary to say more about the lease. 67. As mentioned
earlier, the Islands were annexed to 68. The current
legislation is the Land Act 1962 (Q.), s.5 of which defines "Crown
land" as follows: "All
land in Queensland, except land which is, for the time 69. Section 4 of the
Land Act is the repeals and savings provision. By s.4(15)(a) all appointments
of trustees of reserves and all things lawfully done under the repealed Acts
and in force at the commencement of the 1962 statute "shall continue to be
of full force and effect" and be deemed to have been done "under the
analogous provisions of and for the purposes of this Act". 70. In consequence,
the earlier reservation of the Islands from sale continued and the 71. Thus, if the
plaintiffs can make good their claim to traditional title to the Islands,
whether on their own behalf or on behalf of the Meriam people, there is nothing
in the legislative history of Queensland, at least until the Queensland Coast
Islands Declaratory Act 1985 (Q.), which is destructive of traditional title.
And, so far as the plaintiffs' title is concerned, that Act was held to have
been nullified by s.10 of the Racial Discrimination Act 1975 (Cth)(608) Mabo
v. 72. As indicated at
the outset of this judgment, the plaintiffs seek declaratory relief in regard
to any deed of grant in trust in respect of the 73. Section 334(1) of
the Land Act empowers the Governor in Council to grant in trust, or by Order in
Council to reserve and set apart, any Crown land which is or may be required
for any public purpose. For reasons already given, the 74. Section 353A(1)
of the Land Act contains a special provision whereby, in the case of land
granted in trust for the benefit of Aboriginal or Islander inhabitants, the
Governor in Council may, by Order in Council, declare that the land shall
revert to the Crown. But he may do so only if authorised by an Act of
Parliament specifically relating to that land. The effect of such a declaration
is that the land reverts to the Crown "freed and discharged from the
trusts and all encumbrances, estates or interests whatsoever and may be dealt
with by the Crown as if it had never been granted". 75. If there were a
real prospect that the Governor in Council intended to make a deed of grant in
trust in respect of the 76. That case depends
upon the operation of ss.9 and 10 of the Racial Discrimination Act. But the questions
raised by those sections in the present context are not the same questions
decided in Mabo v. 77. The plaintiffs
seek a declaration that: "the
Defendant is under a fiduciary duty, or alternatively They
argued that such a duty arises by reason of annexation, over which the Meriam
people had no choice; the relative positions of power of the Meriam people and
the Crown in right of Queensland with respect to their interests in the
Islands; and the course of dealings by the Crown with the Meriam people and the
Islands since annexation. However, while the plaintiffs claim the declaration
just mentioned, the statement of claim does not seek any specific relief for a
breach of fiduciary duty. 78. The factors
giving rise to a fiduciary duty are nowhere exhaustively defined(609) Hospital
Products Ltd. v. United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, at pp 68,
96-97, 141-142; Finn, Fiduciary Obligations, (1977), p 1. There are certain
kinds of relationships which necessarily entail fiduciary obligations, for
example, trustee and beneficiary, company director and shareholder, principal
and agent. But a fiduciary obligation may arise in a variety of circumstances
as a result of a particular relationship. The kinds of relationships which can
give rise to a fiduciary obligation are not closed(610) Hospital Products Ltd.
ibid., at pp 68, 96, 102; Tufton v. Sperni (1952) 2 TLR 516, at p 522; English
v. Dedham Vale Properties Ltd. (1978) 1 WLR 93, at p 110; (1978) 1 All ER 382,
at p 398. In Hospital Products Ltd. Mason J. said(611) (1984) 156 CLR, at pp
96-97: "The
critical feature of (fiduciary) relationships is that 79. Underlying such
relationships is the scope for one party to exercise a discretion which is
capable of affecting the legal position of the other. One party has a special
opportunity to abuse the interests of the other. The discretion will be an
incident of the first party's office or position(612) Weinrib, "The
Fiduciary Obligation", (1975) 25 University of 80. The defendant
argued that there is no source for any obligation on the Crown to act in the
interests of traditional titleholders and that, given the power of the Crown to
destroy the title, there is no basis for a fiduciary obligation. This can be
answered in two ways. First, the argument ignores the fact that it is, in part
at least, precisely the power to affect the interests of a person adversely
which gives rise to a duty to act in the interests of that person(614) Hospital
Products Ltd. (1984) 156 CLR, at p 97; Weinrib, Op Cit, at pp 4-8; the very
vulnerability gives rise to the need for the application of equitable
principles. The second answer is that the argument is not supported by the
legislative and executive history of 81. The defendant
also argued that the Crown cannot be a trustee or fiduciary in the present
circumstances because its responsibilities towards the Islanders with respect
to the reserve are a matter of "governmental discretion", in reliance
upon the "political trust" decisions in Kinloch v. Secretary of State
for India(615) (1882) 7 App Cas 619 and Tito v. Waddell (No.2)(616) (1977) Ch
106, rather than an enforceable equitable obligation. In Kinloch Lord Selborne
L.C. said(617) (1882) 7 App Cas, at pp 625-626: "Now
the words 'in trust for' are quite consistent with, 82. Whether the idea
of a political or "higher" trust has any utility need not be
considered here because it does not, in any case, apply in the present
circumstances. Kinloch concerned a specific grant of goods by Royal Warrant to
the Secretary of State for 83. The defendant
further relied on Williams v. Attorney-General for 84. In Guerin the
Supreme Court of Canada held that the Crown had a fiduciary duty towards the
Indians. Dickson J. (Beetz, Chouinard and Lamer JJ. concurring) said(621)
(1984) 2 SCR, at p 376; (1984) 13 DLR (4th), at p 334: "
The fiduciary relationship between the Crown and the In
its terms the fiduciary obligation found by Dickson J. depended on the
statutory scheme prescribing the process by which the Indian land could be
disposed of(622) cf. ibid., per Wilson J. at pp 348-350; pp 356-357 of DLR. But
the relevant elements of that scheme appear to be that the Indians' interest in
land was made inalienable except by surrender to the Crown, arguably an
attribute of traditional title independent of statute in any case. 85. Be that as it
may, if the Crown in right of Queensland has the power to alienate land the
subject of the Meriam people's traditional rights and interests and the result
of that alienation is the loss of traditional title, and if the Meriam people's
power to deal with their title is restricted in so far as it is inalienable,
except to the Crown, then this power and corresponding vulnerability give rise
to a fiduciary obligation on the part of the Crown. The power to destroy or
impair a people's interests in this way is extraordinary and is sufficient to
attract regulation by Equity to ensure that the position is not abused. The
fiduciary relationship arises, therefore, out of the power of the Crown to
extinguish traditional title by alienating the land or otherwise; it does not
depend on an exercise of that power. 86. Moreover if,
contrary to the view I have expressed, the relationship between the Crown and
the Meriam people with respect to traditional title alone were insufficient to
give rise to a fiduciary obligation, both the course of dealings by the
Queensland Government with respect to the Islands since annexation - for
example the creation of reserves in 1882 and 1912 and the appointment of
trustees in 1939 - and the exercise of control over or regulation of the
Islanders themselves by welfare legislation - such as The Native Labourers'
Protection Act of 1884 (Q.), The Torres Strait Islanders Act of 1939 (Q.) under
which an Island Court was established and a form of "local
government" instituted, and the Community Services (Aborigines) Act 1984 (Q.)
- would certainly create such an obligation. 87. To say that,
where traditional title exists, it can be dealt with and effectively alienated
or extinguished only by the Crown, but that it can be enjoyed only by
traditional owners, may be tantamount to saying that the legal interest in the
traditional rights is in the Crown whereas the beneficial interest in the
rights is in the indigenous owners. In that case the kind of fiduciary
obligation imposed on the Crown is that of a constructive trustee. In any
event, the Crown's obligation as a fiduciary is in the nature of, and should be
performed by reference to, that of a trustee. 88. In Guerin Dickson
J. said(623) ibid., at p 376; p 334 of DLR, referring to the Crown's duty
towards the Musqueam Indians: "This
obligation does not amount to a trust in the private Thus,
the fiduciary obligation on the Crown, rooted in the extinguishability of
traditional title, is in the nature of the obligation of a constructive
trustee(624) The situation where a particular traditional title is dealt with
by the Crown is distinguishable. This may occur where a parcel of land is
alienated to a third party by the Crown with the consent of the traditional
titleholders, as in Guerin. In such a case the Crown is clearly a trustee with
respect to the particular traditional titleholders: see Guerin (1984) 2 SCR,
per Wilson J. at p 355; (1984) 13 DLR (4th), at p 361. 89. The content of a
fiduciary obligation or constructive trust will be tailored by the
circumstances of the specific relationship from which it arises. But, generally,
to the extent that a person is a fiduciary he or she must act for the benefit
of the beneficiaries(625) Hospital Products Ltd.; Finn, Op Cit, p 15. Moreover,
this general mandate comprises more particular duties with respect to, first,
the procedure by which a fiduciary makes a decision or exercises a discretion
and secondly, the content of that decision. On the one hand, a fiduciary must
not delegate a discretion and is under a duty to consider whether a discretion
should be exercised. And on the other hand, a fiduciary is under a duty not to
act for his or her own benefit or for the benefit of any third person(626)
Finn, ibid., pp 15-16. The obligation on the Crown in the present case is to
ensure that traditional title is not impaired or destroyed without the consent
of or otherwise contrary to the interests of the titleholders. For example, the
Crown could not degazette the Islands, thereby terminating the reserve, or
simply alienate the 90. The content of
the fiduciary obligation in this case will be different from that of an
obligation arising as a result of particular action or promises by the Crown.
For example, in Delgamuukw McEachern C.J. found(627) (1991) 79 DLR (4th), at p
482 the content of the Crown's fiduciary obligation to be: "to
permit aboriginal people, but subject to the general law But
that is not the kind of duty which is relevant here. Delgamuukw differed from
the present case significantly in that both the nature of the protected rights
and the source of the Crown's obligation were different. McEachern C.J. held
that the Indians' traditional title had been extinguished prior to
Confederation(628) ibid., at pp 464, 477-478; that this unilateral
extinguishment was, in part, the source of the Crown's obligation; and that the
rights of the Indians protected by the obligation were those invoked by
promises made by the Crown after extinguishment, to permit the Indians to use
land not used for other purposes. In the present case, extinguishment or
impairment of traditional title would not be a source of the Crown's
obligation, but a breach of it. 91. A fiduciary has
an obligation not to put himself or herself in a position of conflict of
interests. But there are numerous examples of the Crown exercising different
powers in different capacities. A fiduciary obligation on the Crown does not
limit the legislative power of the Queensland Parliament, but legislation will
be a breach of that obligation if its effect is adverse to the interests of the
titleholders, or if the process it establishes does not take account of those
interests. 92. It is convenient
at this point to summarise the conclusions so far reached in this judgment.
They are that the traditional title of the Meriam people survived the
annexation of the Islands; that the title is capable of extinguishment by clear
and plain legislation or by an executive act authorised by such legislation;
that extinguishment would involve a breach of a fiduciary obligation owed by
the Crown to the Meriam people; but that extinguishment of that title has not
occurred. These conclusions accept what are the primary aspects of the
plaintiffs' case. 93. It should be
noted that the plaintiffs seek no more than recognition of a fiduciary duty or
a trust; they do not ask the Court to spell out the consequences of a breach of
that duty or trust. In particular they do not seek compensation or damages in
respect of any past interference with the rights and interests of the Meriam
people in the 94. The plaintiffs
did not argue for an adverse title against the Crown but for a possessory title
by reason of long possession. Such a title must, of course, be shown to exist
at the present time to be of use to the plaintiffs. But the inquiry focuses on
the point of annexation. It must, as was clear from the plaintiffs' written
submissions, be shown that such a possessory title arose immediately after
annexation and continues today. To succeed, the plaintiffs must show that the
Crown never had title to the 95. The plaintiffs'
submissions with respect to possessory title may be summarised in this way. The
common and statute law of 96. According to the
plaintiffs' submissions, the Crown could not show that, on acquisition of 97. In the absence of
argument to the contrary, it may be accepted that (a)
the validity of the proposition that possession gives 98. As the plaintiffs
put their case, there would be no more favourable consequences flowing from
acceptance of their submissions as to possessory title than from acceptance of
their submissions as to traditional title. After contending for the existence
of a possessory title, the plaintiffs relied on the same line of argument as
they did for traditional title. Significantly, they conceded that a possessory
title is extinguishable by "clear and plain" legislation. And the
argument as to fiduciary duty and trust did not focus on the existence of a
possessory title. It may have been too great a concession that a fee simple
arising from possession is "extinguishable" in the same way as
traditional title. But, given my conclusions as to traditional title and,
especially, those as to the existence of a fiduciary obligation on the Crown
arising from it and given what follows concerning the Racial Discrimination Act, there is no need to
express a firm opinion on the plaintiffs' arguments concerning possessory
title. 99. Nevertheless,
those arguments raised important issues which have not been examined before in
this area of the law, and something should be said about the principles of law
on which they rested. The plaintiffs' case in this regard owed much to McNeil;
so too does this portion of my judgment. 100.
"Possession" is notoriously difficult to define(631) See Pollock and
Wright, pp 1-42; Tay, "The Concept of Possession in the Common Law:
Foundations for a New Approach", [1964] MelbULawRw 17;
(1964) 4 Melbourne University Law Review 476 but for present purposes it may be
said to be a conclusion of law defining the nature and status of a particular
relationship of control by a person over land. "Title" is, in the
present case, the abstract bundle of rights associated with that relationship
of possession. Significantly, it is also used to describe the group of rights
which result from possession but which survive its loss; this includes the
right to possession. 101. In the
thirteenth century Bracton wrote(632) Bracton on the Laws and Customs of
England, (Thorne Tr.) (1977), vol.III, p 134: "(E)veryone
who is in possession, though he has no right, It is
said that possession is the root of title(633) Asher v. Whitlock (1865) 1 QB 1;
Perry v. Clissold (1907) AC 73; Calder (1973) SCR, at p 368; (1973) 34 DLR
(3d), at p 185; Megarry and Wade, The Law of Real Property, 5th ed. (1984)
(hereafter "Megarry and Wade"), pp 105-106; Pollock and Wright, pp
22,94-95. Cf. Holdsworth, A History of English Law, 2nd ed. (1937), vol.VII,
(hereafter "Holdsworth, vol.VII"), pp 64-65, but see analysis of
Holdsworth, vol.VII, in Allen v. Roughley (1955) 94 CLR 98, at pp 134ff. To
understand this statement it is necessary to have regard to the history and
development of actions for the recovery of land. In the present context, it is
enough to recall that through the seventeenth, eighteenth and nineteenth
centuries ejectment became the most popular action for the recovery of
interests in land - both leasehold and freehold(634) Holdsworth, vol.VII, p 9.
And despite its abolition in 1852, its principles remain the basis of present
actions for the recovery of land(635) Bristow v. Cormican (1878) 3 App Cas 641,
at p 661; Megarry and Wade, pp 105, 1158-1159. It is therefore the focus of the
present inquiry, the principles on which it is based being relevant both at the
time of the acquisition of the 102. One view(639)
See Holdsworth, vol.VII, pp 62-64 is that the advent of ejectment represented a
fundamental change in the concept of ownership in English law, involving the
idea of absolute title divorced from its radical attribute, possession. But the
other view(640) See Hargreaves, "Terminology and Title in Ejectment",
(1940) 56 Law Quarterly Review 376; Pollock and Wright, pp 93-97; Megarry and
Wade, pp 104-105; Asher v. Whitlock (1865) 1 QB, at p 5, which is more
persuasive, is that the basic relationship between possession and ownership of
land established by the earlier real actions, involving the idea of relative claims
to possession, was maintained or even emphasised in the action of ejectment. A
successful claim to an interest in land comprised the better claim to
possession and its associated rights as between the parties. 103. In order to show
a title which would defeat the defendant in possession, the plaintiff in
ejectment had to prove a right of entry; the defendant could rely on
possession. Therefore, the plaintiff was put to proof of the strength of his or
her title and could not rely on the weakness of the defendant's title(641) Roe
d. Haldane v. Harvey [1769] EngR 17; (1769) 4 Burr 2484, at p 2487 [1769] EngR 17; (98 ER 302, at p 304);
Goodtitle d. Parker v. Baldwin [1809] EngR 457; (1809) 11 East 488, at p 495
(103 ER 1092, at p 1095). The central issue, therefore, in an action for
ejectment, and on which opinions have differed, was what circumstances gave a
right of entry. Was proof by the plaintiff of mere prior possession sufficient
to found a right of entry against the defendant, indicating that possession gave
rise to an enforceable "title", or was more required? Did possession
give rise to a title which survived the loss of possession? The relevance of
this question is that it points up the nature of the entitlements arising from
the mere possession which would, subject to proof, have existed immediately on
annexation. 104. So long as it is
enjoyed, possession gives rise to rights, including the right to defend
possession or to sell or to devise the interest(642) Asher v. Whitlock; Ex
parte Winder (1877) 6 ChD 696; Rosenberg v. Cook (1881) 8 QBD 162. A defendant
in possession acquires seisin even if possession is tortiously acquired. That
is, a person in possession has an estate in fee simple in the land; it is this
interest on which a defendant in an action for ejectment could rely. The
disseisee loses seisin and acquires a right of entry in its stead(643) Wheeler
v. Baldwin [1934] HCA 58; (1934)
52 CLR 609, at pp 631-633; Elvis v. Archbishop of York (1619) Hob 315, at p 322
[1792] EngR 2252; (80
ER 458, at p 464); Pollock and Wright, pp 93-94; Maitland "The Mystery of
Seisin" (1886) 2 Law Quarterly Review 481, esp. pp 482-486. A possessor
acquires a fee simple estate because the fullest estate known to the law is
presumed until a lesser estate is proved(644) Wheeler v. 105. But what does
English land law have to say if possession of land is lost? The seisin and fee
simple enjoyed as a result of possession would also be lost because each
successive possessor must enjoy the rights directly associated with possession.
According to this analysis, the last possessor only in any succession would
enjoy the entitlements. If the Crown dispossessed an indigenous people, its
title arising from possession would be the best claim. This was the effect of
Holdsworth's analysis of land law. He concluded that proof of prior possession
was insufficient in itself to provide a right of entry in the plaintiff against
a defendant who was a mere possessor(645) Holdsworth, vol.VII, pp 61-68; Stokes
v. Berry [1795] EngR 3275;
(1699) 2 Salk 421 (91 ER 366); Doe d. Wilkins v. Marquis of Cleveland (1829) 9
B. and C. 864 [1829] EngR 57; (109
ER 321). That is, possession of itself gives rise to no title which survives
dispossession. 106. The better
understanding is, I think, that if no other factors come into play, then,
regardless of the length of time, as between mere possessors prior possession
is a better right(646) Allen v. Rivington [1845] EngR 2; (1670) 2 Wms Saund 111 (85 ER
813); Doe d. Smith and Payne v. Webber (1834) 1 AD. and E 119 (110 ER 1152);
Doe d. Hughes v. Dyeball (1829) M.and M. 346 (173 ER 1184); Asher v. Whitlock;
Perry v. Clissold; Oxford Meat Co Pty. Ltd. v. McDonald (1963) 63 SR(NSW) 423;
Spark v. Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; Allen v.
Roughley; Wheeler v. Baldwin (1934) 52 CLR, at pp 624, 632-633; Pollock and
Maitland, p 46. Possession is protected against subsequent possession by a
prima facie right of entry. 107. The proposition
that possession of itself gives rise to a right in the plaintiff to recover
possession, if lost, is supported by principle. In losing possession, a
plaintiff has lost the rights associated with possession, including the right
to defend possession as well as an estate in the land. But nothing has upset
the presumption that the plaintiff's possession, and therefore his or her fee
simple, was lawfully acquired and hence good against all the world.
"Possession is prima facie evidence of seisin in fee simple"(647)
Peaceable d. Uncle v. Watson [1811] EngR 375; (1811) 4 Taunt 16, at p 17
(128 ER 232, at p 232); Wheeler v. 108. It follows from
this, however, that a person's title arising from prior possession can be
defeated either by a defendant showing that he or she (or another person, in so
far as it undermines the plaintiff's claim) has a better, because older, claim
to possession or by a defendant showing adverse possession against the person
for the duration of a limitation period. 109. In sum, English
land law, in 1879 and now, conferred an estate in fee simple on a person in
possession of land enforceable against all the world except a person with a
better claim. Therefore, since the Meriam people became British subjects
immediately on annexation, they would seem to have then acquired an estate in
fee simple. This is subject to the question whether the Meriam people could be
said to be in possession. The question then arises - does the Crown have a
better title? Put another way, did the defendant have a better claim to
possession when it acquired sovereignty in 1879 or 1895? 110. The defendant
argued that upon annexation the Crown became the absolute owner of and was, in
law, in possession of the 111. The position of
the Crown resulting from annexation was discussed earlier in this judgment.
There is no foundation for the conclusion that by annexation the Crown acquired
a proprietary title or freehold possession of occupied land. It acquired a
radical title only. This may dispose of the defendant's answer. However, it should
be considered further in the context of English land law and the doctrine of
tenures. 112. As McNeil
observes(649) McNeil, p 85: "The
Crown must prove its present title just like anyone else." The
Crown could not have acquired original title by occupancy as a matter of fact
because it had no presence in the colony before settlement and occupation of
land by indigenous inhabitants would have excluded occupancy by the Crown after
annexation, except in land truly vacant(650) See "Annexation - its consequences"
above; McNeil, pp 216-217. However, underlying the doctrine of tenures is the
proposition that landholders hold their land either mediately or immediately of
the Crown(651) See Blackstone, Commentaries, 17th ed. (1830), vol.II, pp 50-51.
And a legal fiction justifies this feudal theory: that all land was, at one
time, in the possession of the King who had granted some of it to subjects in
return for services. Therefore, it is said in answer to the claim for a
possessory title, at the commencement of the realm - on annexation - possession
to all land was vested in the Crown. 113. However, the
effect of the fiction of past possession by the Crown is to secure the
paramount lordship or radical title of the Crown which is necessary for the
operation of feudal land law. And since fictions in law are only acknowledged
"for some special purpose"(652) Needler v. Bishop of Winchester
(1614) Hob 220, at p 222 [1792] EngR 49; (80 ER 367, at p 369); Mostyn
v. Fabrigas [1774] EngR 104;
(1774) 1 Cowp 161, at p 177 [1774] EngR 104; (98 ER 1021, at p 1030);
Anon., Considerations on the Law of Forfeitures, for High Treason, 4th ed.
(1775), pp 64-65, cited in McNeil, p 84, that should be taken to be the extent
of the fiction. So far as the system of tenures is concerned, on which English
land law is based, no more is required. 114. Furthermore, the
fiction of a lost Crown grant(653) The idea of a presumption of a Crown grant
to make good a title where possession is proved is referred to in Doe d. Devine
v. Wilson in the Privy Council on appeal from New South Wales: (1855) 10 Moo
502, at pp 523-528 [1855] EngR 708; (14 ER 581, at pp 589-591)
answers the fiction of original Crown ownership and in so doing protects
titleholders. As McNeil points out(654) McNeil, p 84: "The
Crown cannot, on the strength of its fictitious 115. Therefore, if
the fiction that all land was originally owned by the Crown is to be applied,
it may well be that it cannot operate without also according fictitious grants
to the indigenous occupiers. 116. Possession is a
conclusion of English law, a law alien to indigenous inhabitants before
annexation. Therefore, before annexation the Meriam people would not have been
in possession. Occupation on the other hand is a question of fact. In some
cases the person in occupation is not the possessor of land, for example, where
he or she is an agent of the possessor. But it may be presumed, in the absence
of circumstances which show possession is in another, that the occupier of land
is also in possession(655) Pollock and Wright, p 20; Doe d. Stansbury v.
Arkwright. As we have seen, the Crown could not show it had possession of
occupied land after annexation. 117. At common law
conduct required to prove occupation or possession will vary according to the
circumstances including, for example, whether the claimant enters as a
trespasser or as of right(656) Stanford v. Hurlstone (1873) LR 9 Ch App 116.
And the nature of the land will to a large extent dictate the use that might be
made of it. For example, conduct amounting to possession will be different in
relation to a dwelling and to uncultivated land(657) Lord Advocate v. Lord
Lovat (1880) 5 App Cas 273, at p 288; Johnston v. O'Neill (1911) AC 552, at p
583; Kirby v. Cowderoy (1912) AC 599, at pp 602-603. Some land is barren and
unproductive so that it cannot sustain people all the year round. It may be
necessary for occupiers to seek water and sustenance elsewhere for part of the
year, returning to "their" land as soon as it is possible. 118. These are
matters which are discussed at some length by McNeil(658) McNeil, pp 196-204.
It is unnecessary to pursue evidentiary matters in the present case because the
nature of the occupation of the Islands by the Meriam people, already discussed
in relation to traditional title, points clearly enough to possession according
to English law. 119. The defendant
argued that the occupation enjoyed by the Meriam people today is by permission
from the Crown, due to the creation of a reserve in 1882, and therefore cannot
amount to possession in the relevant sense. In answer to this, first, since
occupation by the Meriam people is, and was, apparent, the onus lies on the
defendant to show possession is not in the occupiers. Secondly, there is no
documentary evidence to prove the 1882 reserve. Assuming for the defendant that
it was created, if annexation occurred in 1879 the reserve would amount to
dispossession, unless the defendant can show that it and not the Meriam people
acquired the right to possession on annexation. Subject to the limitation of
actions and the question whether possession by the Crown was adverse, the
Meriam people may well be entitled to recover possession according to the
principles discussed above. If annexation occurred in 1895, the Crown in right
of 120. It follows from
this analysis that the Meriam people may have acquired a possessory title on
annexation. However, as I have said, the consequences here are no more
beneficial for the plaintiffs and, the argument having been put as an
alternative, it is unnecessary to reach a firm conclusion. In any event, it is
unlikely that a firm conclusion could be reached since some matters, the
creation of the reserve for example, were not fully explored. 121. The effect of
this judgment is that the traditional title of the Meriam people survived
annexation. Anything done by the defendant constituting interference with that
title would, on the view I have taken, be a breach of a fiduciary obligation
owed by the defendant to the Meriam people. Earlier in this judgment I have
referred to possible implications of the Racial Discrimination Act; I should now
explain what I mean. 122. Ordinarily, land
is only acquired for a public purpose on payment of just terms, whatever may be
the precise statutory language employed(659) See for instance Lands Acquisition Act 1989 (Cth), Pt VII; Land Acquisition (Just Terms Compensation) Act 1991
(N.S.W.), Pt 3; Land Acquisition and Compensation Act 1986
(Vict), Pt 3; Acquisition of Land Act 1967 (Q.), Pt IV; Land Acquisition Act 1969 (S.A.), Pt IV; Public Works Act 1902 (W.A.), Pt III; Lands Resumption Act 1957 (Tas.), Pt
IV; Lands Acquisition Act 1978 (N.T.), Pt VII. If the defendant sought to
interfere with the Meriam people's enjoyment of the Islands which their
traditional title gives them and failed to do so on just terms, a question
arises whether that action would be in contravention of ss.9 or 10 of the Racial Discrimination Act. 123. Section 9 relevantly provides: "
(1) It is unlawful for a person to do any act 124. Section 10 reads: "
(1) If, by reason of, or of a provision of, a law of 125. In Mabo v. "Section 9 proscribes the doing of an act of
the 126. But, as the
judgment continued, s.10 relates to the enjoyment of a right, not
to the doing of an act and the right referred to in s.10(1) need not be a legal right. Rights
referred to in Art.5 of the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention referred to in s.10(2), include: "(d)(v)
The right to own property alone as well as in The
right to be immune from arbitrary deprivation of property is a human right, if
not necessarily a legal right, and falls within s.10(1) of the Act, even if it
is not encompassed within the right to own and inherit property to which Art.5
refers. 127. The question
here is whether extinguishment of the traditional title of the Meriam people
without the compensation provided for in the Acquisition of Land Act 1967 (Q.) means that,
by reason of a law of Queensland, persons of a particular race, colour or
national or ethnic origin do not enjoy a right that is enjoyed by persons of
another race, colour or national or ethnic origin or enjoy a right to a more
limited extent than those persons. If the traditional title of the Meriam
people may be extinguished without compensation, they do not enjoy a right that
is enjoyed by other titleholders in 128. While this
action raises questions of great importance, the answers which it is possible
to give to those questions necessarily speak in general terms rather than deal
with particular aspects of the traditional title of the Meriam people. This is
not a criticism of the way in which the plaintiffs' claim was formulated; it is
simply a recognition that the claim for declaratory relief does speak in
general terms. Consistent with the general nature of the claim made and the
reasons underlying this judgment, I would make a declaration in the following
terms: 1.
Upon the annexation of the 129. For the reasons
that appear in this judgment, I would not make any declaration as to the
consequences of the lease to the London Missionary Society in 1882 and the
consequences of the lease granted over Dauer and Waier in 1931. It may be
appropriate to grant liberty to apply in respect of each of those matters if
any of the parties seeks an order to this effect. ORDER In lieu of answering the
questions reserved for the consideration of the (1) declare that the land in the Murray Islands
is not Crown land within the meaning of that term in s. 5 of the Land Act 1962
(Q.); (2) putting to one side the Islands of Dauer and
Waier and the parcel of land leased to the Trustees of the Australian Board of
Missions and those parcels of land (if any) which have validly been
appropriated for use for administrative purposes the use of which is
inconsistent with the continued enjoyment of the rights and privileges of the
Meriam people under native title, declare that the Meriam people are entitled
as against the whole world to possession, occupation, use and enjoyment of the
lands of the Murray Islands; (3) declare that the title of the Meriam people
is subject to the power of the Parliament of Queensland and the power of the
Governor in Council of Queensland to extinguish that title by valid exercise of
their respective powers, provided any exercise of those powers is not
inconsistent with the laws of the Commonwealth. JUDGEMENT
DATA Judges
Code Judge — Code Text Code #Pars Mason — M 1 4 Brennan — B 2 97 Deane — De 3 78 Gaudron — G 4 110 Toohey
— T 5 129 Legislation
Tenures
Abolition Act 1660 Australian
Courts Act 1828 (Imp) Alienation
of Crown Lands Act 1860 Occupied
Crown Lands Leasing Act 1860 (Q.) Tenders
for Crown Lands Act 1860 (Q.) Unoccupied
Crown Lands Act 1860 (Q.) Unoccupied
Crown Lands Occupation Act 1860 (Q.) Pastoral
Leases Act 1863 (Q.) Constitution
Act of 1867 (Q.) Crown
Lands Alienation Act 1868 (Q.) The
Pacific Islanders Protection Acts of 1872 and 1875 (Imp) Crown
Lands Alienation Act 1876 (Q.) Imperial
Letters Patent 1878 Pearl-Shell
and Beche-de-Mer Fishery Act 1881 (Q.) Crown
Lands Act 1884 (Q.) Aboriginals
Protection and Restriction of the Land
Act 1897 (Q.) Native
Animals Protection Act 1906 (Q.) Land
Act 1910 (Q.) Land
Act 1910-1930 (Q.) Liquor Act 1912 (Q.) Local
Government Act 1919 (N.S.W.) Aboriginals
Preservation and Protection Act 1939 (Q.) Fauna
Conservation Act 1952 (Q.) Fisheries
Act 1957 (Q.) Land
Act 1962 (Q.) Land
Act 1962-1988 The
Land Act of 1962 (Q.) Aborigines'
and Aborigines'
and Privy
Council (Limitation of Appeals) Act 1968 (Cth) Aborigines
Act and Other Acts Amendment Act 1975 (Q.) Racial
Discrimination Act 1975 (Cth) Fisheries
Act 1976 (Q.) Aborigines
and Islanders Acts Amendment Act 1979 (Q.) Community
Services ( Community
Services ( Aborigines
and Aboriginal
and Indian
Act (Imp?) Aboriginal
and Aboriginals
Preservation and Protection Act 1939 (Q.) Aboriginals
Protection and Restriction of the Aborigines
Act and Other Acts Amendment Act 1975 (Q.) Aborigines
and Islanders Acts Amendment Act 1979 (Q.) Aborigines
and Aborigines'
and Aborigines'
and Alienation
of Crown Lands Act 1860 Australian
Constitutions Act 1850 (Imp) Australian
Courts Act 1828 (Imp) Colonial
Boundaries Act 1895 (Imp) Community
Services ( Community
Services ( Constitution
Act 1867 (Q.) Constitution
Act of 1867 (Q.) Crown
Lands Act 1884 (Q.) Crown
Lands Alienation Act 1868 (Q.) Crown
Lands Alienation Act 1876 (Q.) Fauna
Conservation Act 1952 (Q.) Fisheries
Act 1957 (Q.) Fisheries
Act 1976 (Q.) Imperial
Letters Patent Indian
Act (Imp?) Land
Act 1897 (Q.) Land
Act 1910 (Q.) Land
Act 1910-1930 (Q.) Land
Act 1962 (Q.) Land
Act 1962-1988 Liquor
Act 1912 (Q.) Local
Government Act 1919 (N.S.W.) Native
Animals Protection Act 1906 (Q.) Occupied
Crown Lands Leasing Act 1860 (Q.) Pastoral
Leases Act 1863 (Q.) Pearl-Shell
and Beche-de-Mer Fishery Act 1881 (Q.) Privy
Council (Limitation of Appeals) Act 1968 (Cth) Racial
Discrimination Act 1975 (Cth) Tenders
for Crown Lands Act 1860 (Q.) Tenures
Abolition Act 1660 The
Australian Courts Act 1828 (Imp) The
Land Act of 1962 (Q.) The
Pacific Islanders Protection Acts of 1872 and 1875 (Imp) Unoccupied
Crown Lands Act 1860 (Q.) Unoccupied
Crown Lands Occupation Act 1860 (Q.) . Mason C.J McHugh JJ The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) Racial Discrimination Act 1975 (Cth) Colonial Boundaries Act 1895 (Imp) Privy Council (Limitation of Appeals) Act 1968 (Cth) Australian Courts Act 1828 (Imp) Community Services ( Constitution Act of 1867 (Q.) Crown Lands Alienation Act of 1876 (Q.) Land Act 1910 (Q.) Crown Lands Act 1884 (Q.) The Land Act of 1962 (Q.) Land Act 1910-1930 (Q.) Land Act 1962-1988 Aborigines and The Australian Courts Act 1828 (Imp) Tenures Abolition Act 1660 Local Government Act 1919 (N.S.W.) Imperial Letters Patent Australian Constitutions Act 1850 (Imp) Australian Courts Act 1828 (Imp) Alienation of Crown Lands Act 1860 Unoccupied Crown Lands Occupation Act 1860 (Q.) Tenders for Crown Lands Act 1860 (Q.) Occupied Crown Lands Leasing Act 1860 (Q.) Unoccupied Crown Lands Act 1860 (Q.) Pastoral Leases Act 1863 (Q.) Crown Lands Alienation Act 1868 (Q.) Crown Lands Alienation Act 1876 (Q.) Crown Lands Act 1884 (Q.) Land Act 1910 (Q.) Land Act 1897 (Q.) Constitution Act 1867 (Q.) Land Act 1962 (Q.) Aboriginals Protection and Restriction of the Aboriginals Preservation and Protection Act 1939 (Q.) Aborigines' and Aborigines' and Aborigines Act and Other Acts Amendment Act 1975 (Q.) Aborigines and Islanders Acts Amendment Act 1979 (Q.) Community Services ( Aboriginal and Indian Act (Imp?) Pearl-Shell and Beche-de-Mer Fishery Act 1881 (Q.) Liquor Act 1912 (Q.) Native Animals Protection Act 1906 (Q.) Fauna Conservation Act 1952 (Q.) Fisheries Act 1957 (Q.) Fisheries Act 1976 (Q.) Racial Discrimination Act 1975 (Cth) Aborigines and
become also partakers of, and subject to the same laws."
pioneered by the Company and controlled by the Crown, and that object was
successfully accomplished, with the result that the aboriginal system gave
place to another prescribed by the Order in Council".
by grant) by the State, the 'original inhabitants' should be recognized as
having 'a legal as well as just claim' to retain the occupancy of their
traditional lands".
land may have become vested in the Queen, equally in a Protectorate or in a
Colony, by conveyance or under statute ...
settlement, cession or conquest, or even of jurisdiction in territory which
remains outside the British dominions, imports
Crown rights in, or in relation to, the land
itself."
while property is the subject-matter of the right of ownership or dominium.
that the substantive rights themselves have not survived the change."
The feudal basis of the proposition of
absolute Crown ownership
rights may or may not be attached. But this estate is qualified by a right of
beneficial user which may not assume definite forms analogous to estates, or
may, where it has assumed these, have derived them from the intrusion of the
mere analogy of English jurisprudence."
may have the possessory title to the common enjoyment of a usufruct, with
customs under which its individual members are admitted to enjoyment, and even
to a right of transmitting the individual enjoyment as members by assignment
inter vivos or by succession.
The "patrimony of the nation" basis of the proposition of absolute
Crown ownership
The need for recognition by the Crown of
native title
diminish or modify them".The nature and incidents of native title
determine -
...
(b) disputes concerning any matter that -
(i) is a matter accepted by the community resident in
its area as a matter rightly governed by the usages
and customs of that community;
and
(ii) is not a breach of the by-laws applicable within
its area or of a law of the Commonwealth or the
State or a matter arising under a law of the
Commonwealth or the State;
and shall exercise ... that jurisdiction referred to in
provision (b) in accordance with the usages and customs of
the community within its area."
The extinguishing of native title
(a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or
The effect of post-acquisition transactions
the operations of the
Deed of Grant in Trust Answers to Questions
(1) that the land in the
(if any) which have been validly appropriated for use for administrative
purposes the use of which is inconsistent with the continued enjoyment of the
rights and privileges of Meriam people under native title;
of those powers is not inconsistent with the laws of the Commonwealth.
(iv) Traditional claims to land under the law of a "settled" Colony
guiding principle. It is this: The courts will assume that
the British Crown intends that the rights of property of the
inhabitants are to be fully respected. Whilst, therefore,
the British Crown, as Sovereign, can make laws enabling it
compulsorily to acquire land for public purposes, it will
see that proper compensation is awarded to every one of the
inhabitants who has by native law an interest in it: and
the courts will declare the inhabitants entitled to
compensation according to their interests ... "
(v) What kinds of pre-existing native interests were respected and protected by
the common law?
individual, as in this country it nearly always is in some
form, but may be that of a community. Such a community
may have the possessory title to the common enjoyment of
a usufruct, with customs under which its individual
members are admitted to enjoyment, and even to a right
of transmitting the individual enjoyment as members by
assignment inter vivos or by succession. To ascertain how
far this latter development of right has progressed involves
the study of the history of the particular community and its
usages in each case. Abstract principles fashioned a priori
are of but little assistance, and are as often as not
misleading."
(vi) Common law native title
ownership as English law has made familiar, but on a
communal usufructuary occupation ... In (our) opinion there
is no evidence that this kind of usufructuary title of the
community was disturbed in law".
or weakness of the Native title ... it cannot be too
solemnly asserted that it is entitled to be respected, that
it cannot be extinguished (at least in times of peace)
otherwise than by the free consent of the Native occupiers."
English law has made familiar, but on a communal
usufructuary occupation, which may be so complete as to
reduce any radical right in the Sovereign to one which only
extends to comparatively limited rights of administrative
interference" (emphasis added).
(vii) The act of State establishing
an intercourse with the natives, and to conciliate their
affections, enjoining all our subjects to live in amity
and kindness with them. And if any of our subjects shall
wantonly destroy them, or give them any unnecessary
interruption in the exercise of their several occupations,
it is our will and pleasure that you do cause such offenders
to be brought to punishment according to the degree of
the offence. You will endeavour to procure an account
of the numbers inhabiting the neighbourhood of the
intended settlement, and report your opinion to one of our
Secretaries of State in what manner our intercourse with
these people may be turned to the advantage of this colony."
(viii) The Aborigines and the land in 1788
(x) The "dispossession of the original Inhabitants"
Inequality of Condition. The earth and Sea of their own
accord furnishes them with all things necessary for Life
... they live in a Warm and fine Climate, and enjoy every
wholesome Air, so that they have very little need of
Cloathing; ... in short, they seem'd to set no Value upon
anything we gave them; nor would they ever part with
anything of their own ... This, in my opinion Argues that
they think themselves provided with all the necessarys of
Life."
of their savage ideas, and in their eyes is a form of
independence which resents any intrusion on their land,
their wild animals, and their rights generally. In their
untutored state they therefore consider that any method
of getting rid of the invader is proper. ... although
treated by the coarser order of colonists as wild beasts
to be extirpated, those who have studied them have formed
favourable opinions of their intelligence. The more savage
side of their disposition being, however, so very apparent,
it is not astonishing that, brought into contact with white
settlers, who equally consider that they have a right to
settle, the aborigines are rapidly disappearing."
had proprietary rights in the Soil - that is, in particular
sections of it which were clearly defined or well understood
before the occupation of their country".
(xi) Should the propositions supported by the Australian cases and past
practice be accepted?
(xii) The nature, incidents and limitations of the common law native title of
Australian Aborigines
(xiii) Legislative powers with respect to common law native title.
(xiv) The enforcement and protection of common law native title
(xv) The annexation of the
(xvi) Traditional claims to land in the
(xvii) Post-annexation legislation and executive acts
of
law;
3. That the entitlement of particular Island families or individuals with
respect to particular land under that common law communal title falls to be
determined by reference to traditional law or custom;
been extinguished by subsequent legislation or executive act;
(b) their possessing usufructuary rights over the land; or
(c) their owning the land by way of customary title.
first time that is an act of state. It matters not how the
acquisition has been brought about. It may be by conquest,
it may be by cession following on treaty, it may be by
occupation of territory hitherto unoccupied by a recognized
ruler. In all cases the result is the same. Any inhabitant
of the territory can make good in the municipal Courts
established by the new sovereign only such rights as that
sovereign has, through his officers, recognized. Such
rights as he had under the rule of predecessors avail him
nothing."
necessarily become petitioners and have the onus cast on
them of showing the acts of acknowledgment, which give them
the right they wish to be declared. ...
The whole object accordingly of inquiry is to see
whether, after cession, the British Government has conferred
or acknowledged as existing the proprietary right which the
appellants claim."
before this cession, and the legal rights they enjoyed under
them, are, save in one respect, entirely irrelevant matters.
They could not carry in under the new regime the legal
rights, if any, which they might have enjoyed under the
old. The only legal enforceable rights they could have
as against their new sovereign were those, and only those,
which that new sovereign, by agreement expressed or implied,
or by legislation, chose to confer upon them. Of course
this implied agreement might be proved by circumstantial
evidence, such as the mode of dealing with them which the
new sovereign adopted, his recognition of their old rights,
and express or implied election to respect them and be bound
by them, and it is only for the purpose of determining
whether and to what extent the new sovereign has recognized
these ante-cession rights of the kasbatis, and has elected
or agreed to be bound by them, that the consideration of
the existence, nature, or extent of these rights becomes a
relevant subject for inquiry in this case."
of
existing titles to land. In the case of the lands in suit
they decided not to recognize them, and it follows that the
plaintiffs have no recourse against the Government in the
municipal courts."
Crown sovereign power to make laws and to enforce them,
and therefore the power to recognize existing rights
or extinguish them or to create new ones. In order to
ascertain what rights pass to the Crown or are retained by
the inhabitants, the courts of law look, not to the treaty,
but to the conduct of the British Crown."
the rights of property of the inhabitants are to be fully
respected".
make laws enabling it compulsorily to acquire land for
public purposes, it will see that proper compensation is
awarded to every one of the inhabitants who has by native
law an interest in it: and the courts will declare the
inhabitants entitled to compensation according to their
interests, even though those interests are of a kind unknown
to English law".
owners of the whole of these vast regions in such a sense
that, without their permission or that of their King and
trustee, no traveller, still less a settler, could so
much as enter without committing a trespass. If so, the
maintenance of their rights was fatally inconsistent with
white settlement of the country, and yet white settlement
was the object of the whole forward movement, pioneered by
the Company and controlled by the Crown, and that object
was successfully accomplished, with the result that the
aboriginal system gave place to another prescribed by the
Order in Council.
This fact makes further inquiry into the nature of the
native rights unnecessary. If they were not in the nature
of private rights, they were at the disposal of the Crown
when Lobengula fled and his dominions were conquered; if
they were, any actual disposition of them by the Crown upon
a conquest, whether immediately in 1894 or four years later,
would suffice to extinguish them as manifesting an intention
expressly to exercise the right to do so. The
Order in Council of 1894 and the Southern Rhodesia Order in
Council of 1898 provided for native reserves, within which
the tribal life of the natives might be continued under
protection and control, and to the rest of the country the
Company's officers and white men were admitted independently
of any consent of the natives. The Company's alienations
by grant are unquestionably valid, yet the natives have no
share in them. The ownership of the reserves was, at least
administratively, vested in the Company under the Southern
Rhodesian Native Regulations promulgated by the High
Commissioner in 1898, and with the consent of the Crown
other dispositions of those reserves can be made by the
Company from time to time. By the will of the Crown and
in exercise of its rights the old state of things, whatever
its exact nature, as it was before 1893, has passed away
and another and, as their Lordships do not doubt, a better
has been established in lieu of it. Whoever now owns the
unalienated lands, the natives do not."
which vitiates the land developers' claim is the contention
that this vaguely expressed understanding, stated in the
Peking Convention, that there shall not be expropriation or
expulsion, is capable of giving rise to rights enforceable
in the municipal courts of
in its judicial capacity. Although there are certain obiter
dicta to be found in cases which suggest the propriety of
the British Government giving effect as an act of state to
promises of continued recognition of existing private titles
of inhabitants of territory obtained by cession, there is
clear long-standing authority by decision of this Board
that no municipal court has authority to enforce such an
obligation."
Dominion, that inasmuch as the proclamation recites that the
territories thereby reserved for Indians had never 'been
ceded to or purchased by' the Crown, the entire property of
the land remained with them. That inference is, however, at
variance with the terms of the instrument, which shew that
the tenure of the Indians was a personal and usufructuary
right, dependent upon the good will of the Sovereign. The
lands reserved are expressly stated to be 'parts of Our
dominions and territories;' and it is declared to be the
will and pleasure of the sovereign that, 'for the present,'
they shall be reserved for the use of the Indians, as their
hunting grounds, under his protection and dominion. There
was a great deal of learned discussion at the Bar with
respect to the precise quality of the Indian right, but
their Lordships do not consider it necessary to express any
opinion upon the point. It appears to them to be sufficient
for the purposes of this case that there has been all
along vested in the Crown a substantial and paramount
estate, underlying the Indian title, which became a plenum
dominium whenever that title was surrendered or otherwise
extinguished."
the cases which characterize Indian title as a beneficial
interest of some sort, and those which characterize it a
personal, usufructuary right. Any apparent inconsistency
derives from the fact that in describing what constitutes
a unique interest in land the courts have almost inevitably
found themselves applying a somewhat inappropriate
terminology drawn from general property law. There is a
core of truth in the way that each of the two lines of
authority has described native title, but an appearance of
conflict has none the less arisen because in neither case is
the categorization quite accurate.
Indians have a legal right to occupy and possess certain
lands, the ultimate title to which is in the Crown. While
their interest does not, strictly speaking, amount to
beneficial ownership, neither is its nature completely
exhausted by the concept of a personal right. It is true
that the sui generis interest which the Indians have in the
land is personal in the sense that it cannot be transferred
to a grantee, but it is also true, as will presently appear,
that the interest gives rise upon surrender to a distinctive
fiduciary obligation on the part of the Crown to deal with
the land for the benefit of the surrendering Indians."
is that the Sovereign's intention must be clear and plain if
it is to extinguish an aboriginal right."
the original inhabitants were, in no instance, entirely
disregarded; but were, necessarily, to a considerable
extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim
to retain possession of it, and to use it according to their
own discretion; but their rights to complete sovereignty,
as independent nations, were necessarily diminished, and
their power to dispose of the soil, at their own will,
to whomsoever they pleased, was denied by the original
fundamental principle, that discovery gave exclusive title
to those who made it. While the different nations of
respected the right of the natives, as occupants, they
asserted the ultimate dominion to be in themselves; and
claimed and exercised, as a consequence of this ultimate
dominion, a power to grant the soil, while yet in possession
of the natives. These grants have been understood by
all, to convey a title to the grantees, subject only to the
Indian right of occupancy."
our laws that the Queen was the original proprietor of all
lands in the Kingdom and consequently the only legal source
of private title, and that this principle has been imported
with the mass of the common law into New Zealand; that it
'pervades and animates the whole of our jurisdiction in
respect to the tenure of land.' ... (I)n my opinion it
necessarily follows that on the assumption of British
sovereignty - apart from the Treaty of Waitangi - the rights
of the Maoris to their tribal lands depended wholly on the
grace and favour of Her Majesty Queen Victoria, who had
an absolute right to disregard the Native title to any
lands in New Zealand, whether above high-water mark or below
high-water mark. But as we all know, the Crown did not
act in a harsh way and from earliest times was careful to
ensure the protection of Native interests and to fulfil the
promises contained in the Treaty of Waitangi."
that leases granted for (the purpose of pastoral occupation)
give the grantees only an exclusive right of pasturage for
their cattle, and of cultivating such Land as they may
require within the large limits thus assigned to them; but
that these Leases are not intended to deprive the natives
of their former right to hunt over these Districts, or to
wander over them in search of subsistence, in the manner
to which they have been heretofore accustomed, from the
spontaneous produce of the soil, except over land actually
cultivated or fenced in for that purpose."
Colony are, and ever have been, from the time of its first
settlement in 1788, in the Crown; that they are, and ever
have been, from that date (in point of legal intendment),
without office found, in the Sovereign's possession; and
that, as his or her property, they have been and may now be
effectually granted to subjects of the Crown."
dedicated to any public purpose or which have not been
granted or lawfully contracted to be granted to any person
in fee simple".
to any public purpose and which are not for the time being
subject to any deed of grant lease contract promise or
engagement made by or on behalf of Her Majesty"(411) See
also Crown Lands Act 1884 (Q.), s.4 and Land Act 1897 (Q.), s.4.
(a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or
(b) Reserved for or dedicated to public purposes; or
land".
case, was the inclusion in Governor Phillip's second
commission of the words 'full power and authority to agree
for such lands tenements and hereditaments as shall be in
our power to dispose of and them to grant to any person or
persons ...'. (Since then there has been) a long succession
of legislative and executive acts designed to facilitate
the settlement and development of the country, not expressly
by white men, but without regard for any communal native
title."
back at least to the time of Governor Macquarie - implies
the negation of communal native title, for they are set up
at the will of the Government and in such places as the
Government chooses. There is never the slightest suggestion
that their boundaries are negotiated between parties by way
of the adjustment of rights."
disposition of land was simply what was acceptable in terms
of social harmony and the capacity of an individual to
impose his (it seems almost (always) to have been a him)
will on the community."
reflected as much as anything the imperative of achieving
social harmony by seeking to reconcile conflicting parties
or having them accept a decision perhaps in terms of
accepted expectation."
the role of the Court was to maintain social harmony by
accommodating peoples' wishes as far as possible and doing
what seemed to be right in the circumstances."
possession of this land, by virtue of the first conquest, if
it doth not appear by some record that the first conqueror
had seised this land at the time of the conquest, and
appropriated it particularly to himself as parcel of his
proper demesne.
For the kings of England have always claimed and had
within their dominions, a royal monarchy and not a despotick
monarchy or tyranny ... And therefore when such a royal
monarch, who will govern his subjects by a just and positive
law, hath made a new conquest of a realm, although in fact
he hath the lordship paramount of all the lands within
such realm, so that these are all held of him, mediate vel
immediate, and he hath also the possession of all the lands
which he willeth actually to seise and retain in his own
hands for his profit or pleasure, and may also by his grants
distribute such portions as he pleaseth to his servants and
warriors, or to such colonies as he will plant immediately
upon the conquest ... yet Sir James Ley chief-justice said,
that if such conqueror receiveth any of the natives or
antient inhabitants into his protection and avoweth them
for his subjects, and permitteth them to continue their
possessions and to remain in his peace and allegiance, their
heirs shall be adjudged in by good title without grant or
confirmation of the conqueror, and shall enjoy their lands
according to the rules of the law which the conqueror hath
allowed or established, if they will submit themselves to
it, and hold their lands according to the rules of it, and
not otherwise."
framework of the statutory scheme established for disposing
of Indian land places upon the Crown an equitable
obligation, enforceable by the courts, to deal with the land
for the benefit of the Indians. ...
The fiduciary relationship between the Crown and the
Indians has its roots in the concept of aboriginal, native
or Indian title. The fact that Indian bands have a certain
interest in lands does not, however, in itself give rise to
a fiduciary relationship between the Indians and the Crown
The conclusion that the Crown is a fiduciary depends upon
the further proposition that the Indian interest in the land
is inalienable except upon surrender to the Crown."
extinguishing or otherwise affecting legal rights in or over land: Gerhardy v.
Brown(518) [1985] HCA 11; (1985)
159 CLR 70, at pp 81, 120-121. It is arguable that the operation of a law which
brings into existence or extinguishes rights in or over land is not affected by
s.9 merely because a consequence of the change
in rights is that one person is free to do an act which would otherwise be unlawful
or another person is no longer able to resist an act being done. It is not
necessary to decide that question now."
enjoy a right that is enjoyed by persons of another race, colour or
national or ethnic origin, or enjoy a right to a more limited extent than
persons of another race, colour or national or ethnic origin, then,
notwithstanding anything in that law, persons of the first-mentioned race, colour
or national or ethnic origin shall, by force of this section, enjoy that right
to the same extent as persons of that other race, colour or national or ethnic
origin."
The plaintiffs' claim
The issues
Annexation - its consequences
questions of international and constitutional law,
whereas the latter is a matter of proprietary rights,
which depend for the most part on the municipal law of
property. Moreover, acquisition of one by the Crown would
not necessarily involve acquisition of the other."
Crown annexes territory it is entitled to confiscate the
property of British subjects which is in that territory."
acquired by conquest or cession, in which there is an
established system of law, and that of a Colony which
consisted of a tract of territory practically unoccupied,
without settled inhabitants or settled law, at the time
when it was peacefully annexed to the British dominions.
The Colony of New South Wales belongs to the latter class."
Western Sahara was a 'terra nullius' at the time of
colonization by Spain would be possible only if it were
established that at that time the territory belonged to
no-one in the sense that it was then open to acquisition
through the legal process of 'occupation'."
concept of terra nullius, which led to this dismemberment
of
Mr. Bayona-Ba-Meya susbtitutes for this a spiritual notion:
the ancestral tie between the land, or 'mother nature', and
the man who was born therefrom, remains attached thereto,
and must one day return thither to be united with his
ancestors. This link is the basis of the ownership of the
soil, or better, of sovereignty. This amounts to a denial
of the very concept of terra nullius in the sense of a land
which is capable of being appropriated by someone who is
not born therefrom. It is a condemnation of the modern
concept, as defined by Pasquale Fiore, which regards as
terrae nullius territories inhabited by populations whose
civilization, in the sense of the public law of
backward, and whose political organization is not conceived
according to Western norms.
One might go still further in analysing the statement
of the representative of
exclude from the concept of terra nullius any inhabited
territory. His view thus agrees with that of Vattel, who
defined terra nullius as a land empty of inhabitants."
Traditional title
(i) Existence: Recognition
territory can make good in the municipal Courts established
by the new sovereign only such rights as that sovereign
has, through his officers, recognized. Such rights as he
had under the rule of predecessors avail him nothing."
express confiscation or of subsequent expropriatory
legislation, that the conqueror has respected (private
property rights) and forborne to diminish or modify them".
(ii) Existence: Requirements of proof
length of showing that the rights, whatever they exactly
were, belonged to the category of rights of private
property ...
The estimation of the rights of aboriginal tribes is
always inherently difficult. Some tribes are so low in
the scale of social organization that their usages and
conceptions of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized
society. Such a gulf cannot be bridged. It would be idle
to impute to such people some shadow of the rights known
to our law and then to transmute it into the substance of
transferable rights of property as we know them. ... On
the other hand, there are indigenous peoples whose legal
conceptions, though differently developed, are hardly less
precise than our own."
is a tendency, operating at times unconsciously, to render
that title conceptually in terms which are appropriate only
to systems which have grown up under English law. But this
tendency has to be held in check closely."
possibly be dismissed as lying on the other side of an
unbridgeable gulf. The evidence shows a subtle and
elaborate system highly adapted to the country in which
the people led their lives, which ... was remarkably free
from the vagaries of personal whim or influence. If ever
a system could be called 'a government of laws, and not of
men', it is that shown in the evidence before me."
establish an aboriginal title cognizable at common law are:
1. That they and their ancestors were members of an
organized society.
2. That the organized society occupied the specific
territory over which they assert the aboriginal title.
3. That the occupation was to the exclusion of other
organized societies.
4. That the occupation was an established fact at the time
sovereignty was asserted by
(iii) Occupancy of land
inevitable consequence of the modus vivendi dictated by
the Inuit's physical environment. ... Furthermore,
the exigences of survival dictated the sparse, but wide
ranging, nature of their occupation.
...
The nature, extent or degree of the aborigines'
physical presence on the land they occupied, required by
the law as an essential element of their aboriginal title
is to be determined in each case by a subjective test.
To the extent human beings were capable of surviving on
the barren lands, the Inuit were there; to the extent the
barrens lent themselves to human occupation, the Inuit
occupied them."
were, or were included in, the ancestral home of the
Walapais in the sense that they constituted definable
territory occupied exclusively by the Walapais (as
distinguished from lands wandered over by many tribes),
then the Walapais had 'Indian title'". (emphasis added)
generations."
by the rugged terrain on what are, in any event, three
small islands, the pressures of population, the elaborate
and complex social organisation of the people and the
importance of gardening from the point of view of
subsistence and socially it would perhaps be surprising
if the Murray Islanders had not, during the period of their
occupation of the Islands, developed ways of controlling
access to and the use of land (in the extended sense) and
the resources it afforded. In any event it seems fairly
safe to assume they brought with them a social organisation
which they adopted (sic) to the conditions on the
their
persists from the time prior to European contact. They
have no doubt that the
and disposition of land was simply what was acceptable in
terms of social harmony and the capacity of an individual
to impose his ... will on the community."
Extinguishment of traditional title
(i) The power of the Crown to extinguish traditional title
or weakness of the Native title ... it cannot be too
solemnly asserted that it is entitled to be respected,
that it cannot be extinguished (at least in times of
peace) otherwise than by the free consent of the Native
occupiers."
render (native) title conceptually in terms which are
appropriate only to systems which have grown up under
English law. But this tendency has to be held in check
closely."
there, organized in societies and occupying the land as
their forefathers had done for centuries. This is what
Indian title means and it does not help one in the solution
of this problem to call it a 'personal or usufructuary
right'."
property of a subject without giving to him a legal right
to compensation for the loss of it is not to be imputed
to the Legislature unless that intention is expressed in
unequivocal terms."
(ii) Has there been any extinguishment?
(iii) Status of the
being -
(a) lawfully granted or contracted to be granted in
fee-simple by the Crown; or
(b) reserved for or dedicated to public purposes; or
(c) subject to any lease or licence lawfully granted by the
Crown: Provided that land held under an occupation
licence shall be deemed to be Crown land."
(iv) Deed of grant in trust
Fiduciary duty
bound as a trustee, to the Meriam People, including the
Plaintiffs, to recognize and protect their rights and
interests in the
(i) Existence of the obligation
the fiduciary undertakes or agrees to act for or on behalf
of or in the interests of another person in the exercise
of a power or discretion which will affect the interests
of that other person in a legal or practical sense. The
relationship between the parties is therefore one which
gives the fiduciary a special opportunity to exercise the
power or discretion to the detriment of that other person
who is accordingly vulnerable to abuse by the fiduciary of
his position."
and indeed are the proper manner of expressing, every
species of trust - a trust not only as regards those
matters which are the proper subjects for an equitable
jurisdiction to administer, but as respects higher matters,
such as might take place between the Crown and public
officers discharging, under the directions of the Crown,
duties or functions belonging to the prerogative and to
the authority of the Crown. In the lower sense they are
matters within the jurisdiction of, and to be administered
by, the ordinary Courts of Equity; in the higher sense they
are not."
Indians has its roots in the concept of aboriginal, native
or Indian title. The fact that Indian Bands have a certain
interest in lands does not, however, in itself give rise to
a fiduciary relationship between the Indians and the Crown.
The conclusion that the Crown is a fiduciary depends upon
the further proposition that the Indian interest in the
land is inalienable except upon surrender to the Crown."
(ii) Nature of the obligation
law sense. It is rather a fiduciary duty. If, however,
the Crown breaches this fiduciary duty it will be liable
to the Indians in the same way and to the same extent as if
such a trust were in effect."
(iii) Content of the obligation
of the province, to use any unoccupied or vacant Crown land
for subsistence purposes until such time as the land is
dedicated to another purpose. The Crown would breach its
fiduciary duty if it sought arbitrarily to limit aboriginal
use of vacant Crown land."
Interim summary
Common law aboriginal title
(i) The plaintiffs' case
rise to a presumption of a fee simple title against all
but a better claimant;
(b) the validity of the claim that the Crown was not, at the
time of annexation, a better claimant to possession; and
(c) the question of what, as a matter of law, amounts to
possession of land.
(ii) The relationship between possession and title:
Does possession give rise to a presumptive title?
has a greater right (than) one who is out of possession
and has no right".
(iii) Ejectment: The relationship between possession and title
(iv) Did the Crown have a better claim to possession?
original title, require a person who is in possession of
land to prove his right by producing a royal grant, for
in most cases no grant exists. The grant is deemed in law
to have been made, if not to a predecessor of the present
possessor, then to someone else."
(v) Possession
(vi) Possessory title - conclusions
Racial Discrimination Act
involving a distinction, exclusion, restriction or
preference based on race, colour, descent or national or
ethnic origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise, on an
equal footing, of any human right or fundamental freedom
in the political, economic, social, cultural or any other
field of public life.
...
(2) A reference in this section to a human right or
fundamental freedom in the political, economic, social,
cultural or any other field of public life includes any
right of a kind referred to in Article 5 of the
Convention."
the Commonwealth or of a State or Territory, persons of a
particular race, colour or national or ethnic origin do not
enjoy a right that is enjoyed by persons of another race,
colour or national or ethnic origin, or enjoy a right to a
more limited extent than persons of another race, colour or
national or ethnic origin, then, notwithstanding anything
in that law, persons of the first-mentioned race, colour or
national or ethnic origin shall, by force of this section,
enjoy that right to the same extent as persons of that
other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes
a reference to a right of a kind referred to in Article 5
of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or a
Torres Strait Islander to be managed by another person
without the consent of the Aboriginal or Torres Strait
Islander; or
(b) prevents or restricts an Aboriginal or a Torres
Strait Islander from terminating the management by
another person of property owned by the Aboriginal or
Torres Strait Islander;
not being a provision that applies to persons generally
without regard to their race, colour or national or ethnic
origin, that provision shall be deemed to be a provision in
relation to which subsection (1) applies and a reference in
that subsection to a right includes a reference to a right
of a person to manage property owned by the person."
character therein mentioned. It does not prohibit the
enactment of a law creating, extinguishing or otherwise affecting
legal rights in or over land: Gerhardy v. Brown(661) [1985] HCA 11; (1985) 159
CLR 70, at pp 81, 120-121. It is arguable that the operation of a
law which brings into existence or extinguishes rights in or over
land is not affected by s.9 merely because a consequence of the
change in rights is that one person is free to do an act which
would otherwise be unlawful or another person is no longer able to
resist an act being done."
association with others;
(vi) The right to inherit."
Conclusion
radical title to all the land in those islands vested in the
Crown in right of
2. The traditional title of the Meriam people to the
being their rights to possession, occupation, use and enjoyment
of the Islands, survived annexation of the Islands to
and is preserved under the law of
3. The traditional title of the Meriam people to the land in the
Islands has not been extinguished by subsequent legislation or
executive act and may not be extinguished without the payment of
compensation or damages to the traditional titleholders of the
4. The land in the
meaning of that term in s.5 of the Land Act 1962 (Q.)
[Land upon Possession Island.] |
[Ref] |