La leyenda de Quetzalcoatl. Diego Rivera. Palacio Nacional México D.F.

       
 


       por Dra. Teodora ZAMUDIO

  

in re Mabo

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High Court of Australia

Mabo and others v State of Queensland 107 A.L.R. 1 28-31 May 1991, 3 June 1992 -- Canberra

Canberra 3 June 1992

Source: Copyright 1997 Reed International Books Australia Pty Ltd trading as Butterworths Australian Law Reports

 

Issues:

Aboriginals and Torres Strait Islanders - Land rights - Murray Islands - Native title - Nature and incidents of - Extinguishing of - Effect of transactions - Whether fiduciary obligations owed by the Crown - (CTH) Racial Discrimination Act 1975 (Cth) ss 9, 10 - (QLD) Land Act 1962 (Qld) s 5

Constitutional law - State - Colonial settlement - Act of State - Annexation - Sovereignty - Reception of the common law - Crown title to colonies - Crown ownership of colonial land - Effect on Aboriginals and Torres Strait Islanders - Terra nullius - Native title - Nature and incidents of - Extinguishing of - Effect of transactions - Whether fiduciary obligations owed by the Crown - (CTH) Racial Discrimination Act 1975 (Cth) ss 9, 10 - (QLD) Land Act 1962 (Qld) s 5

Real property - Crown land - Crown ownership of colonial land - Native title - Nature and incidents of - Extinguishing of - Effect of transactions - (QLD) Land Act 1962 (Qld) s 5

Headnotes:

The plaintiffs were members of the Meriam people. In question were the legal rights of the Meriam people to the land of the Murray Islands in the Torres Strait. The biggest of the islands is Mer and the other two are Dauar and Waier. The Meriam people were in occupation of the Islands for generations before the first European contact. The present inhabitants are descended from the people described in early European reports.

It appears that the Queensland authorities exercised some de facto control in the 1870s over islands in the Torres Strait which were not part of that Colonys territory.

On 1 August 1879 the Murray Islands were annexed to Queensland. 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 Queensland or the Imperial Government. Formal annexation was followed by an effective exercise of administrative power by the Government of Queensland.

At the hearing, declarations were sought:

(i) that the Meriam people are entitled to the Murray Islands (a) as owners; (b) as possessors; (c) as occupiers, or (d) as persons entitled to use and enjoy the said islands;

(ii) that the Murray Islands are not and never have been "Crown Lands" within the meaning of the Land Act 1962 (Qld) and prior Crown lands legislation; and

(iii) that the State of Queensland is not entitled to extinguish the title of the Meriam people.

Held

Per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (Dawson J dissenting):

It would be declared that:

(i) The land in the Murray Islands is not Crown land within the meaning of that term in s 5 of the Land Act 1962 (Qld).

(ii) Putting to one side the islands of Dauar and Waier, the parcel of land leased to the Trustees of the Australian Board of Missions and any other parcels appropriated for use for administrative purposes inconsistent with native title, the Meriam people are entitled, as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands.

(iii) The title of the Meriam people is subject to the powers 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.

Per Brennan J, Mason CJ and McHugh J concurring:

(i) The Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879 and the laws of Queensland (including the common law) became the law of the Murray Islands on that day. By the common law, the Crown acquired a radical or ultimate title to the Murray Islands. But the Crown did not thereby acquire absolute beneficial ownership of the land.

(ii) A mere change in sovereignty does not extinguish native title to land. the antecedent rights and interests in the land possessed by the indigenous inhabitants of the territory which is now part of Australia survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.

(iii) The common law of Australia does not embrace the enlarged notion of terra nullius or persist in characterising the indigenous inhabitants as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.

(iv) The nature and incidents of native title must be ascertained as a matter of fact by reference to the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.

(v) Generally, the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognised by the common law, is not an institution of the common law and is not alienable by the common law.

(vi) Where a clan or group has continued to acknowledge the law and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby that traditional connection 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 the indigenous people, identify and protect the native rights and interests to which they give rise.

(vii) Once traditional native title expires, the Crowns radical title expends to a full beneficial title, for then there is no other proprietor than the Crown.

(viii) A right or interest possessed as a native title can be acquired outside the laws and customs of that people only by the Crown. The native title may be surrendered voluntarily whereupon the Crowns radical title is expanded to absolute ownership, a plenum dominium, for there is then no other owner.

(ix) 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.

(x) Native title, being recognised by the common law, may be protected by such legal or equitable remedies as are appropriate to the particular rights and interest established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual.

(xi) The exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action to be taken by the Legislature or by the Executive. This requirement flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land.

(xii) A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.

(xiii) 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. 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.

(xiv) There have been no general transactions in relation to the land which was inconsistent with the continued right of the Meriam people to enjoy their native title. But the granting or renewal of a lease of 2 acres on Mer to the London Missionary Society extinguished the native title to that land. It was not possible finally to determine whether leases over the whole of the islands of Dauar and Waier or use of the land on Mer for administrative purposes were inconsistent with continued enjoyment of native title.

Per Deane and Gaudron JJ:

(xv) Once the establishment of the Colony of New South Wales 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.

(xvi) Upon the establishment of the Colony, the radical title to all land vested in the Crown. But that mere fact 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.

(xvii) It is a correct general statement of the common law that the courts will assume that the Crown intends that the rights of property of the inhabitants are to be fully respected.

(xviii) Further, the courts will assume that the traditional interests of the native inhabitants are to be fully respected even though those interests are of a kind unknown to English law. The common law required 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 be of sufficient significance to establish a locally recognised special relationship between the particular community, group or individual and that land. Such a traditional interest could result from the established and recognised occupation and use by a tribe or clan of particular land for purposes such as the obtaining of food.

(xix) Where 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, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent that was necessary to recognise and protect the pre-existing native interest.

(xx) Common law native title is subject to three important limitations. Alienation outside the native system otherwise than by surrender to the Crown is precluded. The title is only a personal right and does not constitute a legal or beneficial estate or interest in the actual land. It is 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 or by an inconsistent dealing by the Crown with the land in circumstances where third party rights intervened or where the actual occupation or use of the native title-holders was terminated.

(xxi) The proposition should be rejected that the common law native title 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.

(xxii) An act of State establishing a particular Colony, or other act or declaration performed or made as part of that act of State, was required to be clear and unambiguous to have 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. There was nothing of that character in the establishment of the Colony of New South Wales.

(xxiii) 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.

(xxiv) The Crown and those acting on behalf of the Crown were bound by that native title. 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 recognised and protected by the common law as the legal rights. 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.

(xxv) The lands of the continent were not terra nullius or "practically unoccupied" in 1788. The Crowns 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 1789, 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.

(xxvi) The rights conferred by common law native title are not entrenched. Further, 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.

(xxvii) Rights under common law native title are true legal rights which means they can be vindicated, protected and enforced by proceedings in the ordinary courts.

(xxviii) The entitlements of the native inhabitants were of a nature to found a common law native title. There is no provision of a statute which could properly be construed as evidencing a legislative intent to extinguish the rights. Neither did any general executive acts extinguish the existing rights of Murray Islanders under common law native title.

(xxix) The real question is whether the rights of the Meriam people to the Islands survived annexation. On acquisition the Crown did not acquire a proprietary title to any territory except that truly uninhabited. Clearly the notion of terra nullius can have no operation to the Islands.

(xxx) 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.

(xxxi) It is presence amounting to occupancy which is the foundation of traditional title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society.

(xxxii) The Meriam people, represented by the plaintiffs, had traditional title to the Islands which survived annexation. The economy of the Meriam people on the Islands was comparatively settled and intensive; the defendant did not argue that the plaintiffs failed because their presence on the Islands was too recent; the relationship of the people to the Islands was sufficient; their presence was not coincidental and random; and modification of traditional society in itself does not mean traditional title no longer exists.

(xxxiii) Where legislation reveals a clear and plain intention to extinguish traditional title, it is effective to do so. 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 within clarity. It follows that traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of waste lands of the colony or Crown land.

(xxxiv) Where there has been alienation of land by the Crown inimical to the continuance of traditional title, any remedy against the Crown may have been lost by the operation of limitation statutes.

(xxxv) It is common ground that nothing has been done to extinguish the rights of the Meriam people to the Islands generally. The question of extinguishment by the leases granted in 1882 to the London Missionary Society of 2 acres and in 1931 over the islands of Dauar and Waier to two persons who were not Meriam people must remain unanswered in these proceedings.

(xxxvi) There is nothing in the legislative history of Queensland which is destructive of traditional title to the Islands.

(xxxvii) If the Crown in right of Queensland has the power to alienate land the subject of the Meriam peoples traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam peoples 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 fiduciary relationship arises out of the power of the Crown to extinguish traditional title by alienating the land or otherwise. Moreover, if contrary to that view the mere relationship was insufficient to give rise to a fiduciary obligation, both the course of dealings by the Queensland Government with respect to the Islands since annexation and the exercise of control over or regulation of the Islanders themselves by welfare legislation would certainly create such an obligation. The fiduciary obligation on the Crown is in the nature of the obligation of a constructive trustee.

(xxxviii) 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.

(xxxix) If the defendant by legislation sought to interfere with the Meriam peoples enjoyment of the Islands which their traditional title gives them and failed to do so on just terms, that law would offend s 10(1) of the Racial Discrimination Act 1975 (Cth) which would prevail by virtue of s 109 of the Constitution and the proposed law would be invalid to the extent of the inconsistency.

Re Southern Rhodesia [1919] AC 211;; Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399;; Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876;; Calder v Attorney- General of British Columbia [1973] SCR 313;; Guerin v R (1984) 13 DLR (4th) 321;; Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513;; R v Sparrow [1990] 1 SCR 1075;; R v Symonds [1847] NZPCC 387;; Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680;; Advisory Opinion on Western Sahara [1975] 1 CJR 12;; United States v Santa Fe Pacific Railroad Co (1941) 314 US 339;; Geita Sebea v Territory of Papua (1941) 67 CLR 544;; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353;; Mabo v Queensland (1988) 166 CLR 186;83 ALR 14, approved.

Attorney-General v Brown (1847) 1 Legge 312;; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, overruled.

Cooper v Stuart (1889) 14 App Cas 286, notfollowed.

Williams v Attorney-General (NSW) (1913) 16 CLR 404;; Randwick Corp v Rutledge (1959) 102 CLR 54;; New South Wales v Commonwealth (1975) 135 CLR 337;8 ALR 1, disapproved-inpart.

St Catherines Milling and Lumber Co v R (1888) 14 App Cas 46, explained.

Per Dawson J (dissenting):

(xl) Aboriginal title is an occupancy which the Crown, as absolute owner, permits to continue. The permission may be withdrawn. The extinction of Aboriginal title does not, therefore, require specific legislation. The intention of the Crown must be plain, but there is no reason why it should not be inferred from the course taken by the Crown in the exercise of its powers, whether in administering statute law or otherwise.

(xli) From the inception of the colony of New South Wales, the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land. What was done was quite inconsistent with any recognition, by acquiescence or otherwise, of native title.

(xlii) 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 indiction that the Crown was proceeding upon a basis other than that of preserving any native rights in respect of the land. 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, including any usufructuary rights, with the result that they have been extinguished.

(xliii) 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 traditional rights in the land, there is 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. 

Introduction:

Action These proceedings were commenced in the original jurisdiction of the High Court. They were remitted to the Supreme Court of Queensland for the facts to be determined. The matter came before the Full Court pursuant to an order made by the Chief Justice under s 18 of the Judiciary Act 1903 (Cth) reserving questions relating to the rights and interests claimed by two of the plaintiffs, David Passi and James Rice, in specified blocks of land on the islands of Mer, Dauar and Waier. No such claim was made before the High Court by the plaintiff Eddie Mabo. In the course of hearing it emerged that it was not practicable to answer those questions by acting upon findings made by the Supreme Court of Queensland. The plaintiffs' statement of claim was then amended to seek declarations relating to the title of the Meriam people. 

Counsel: A R Castan QC and B A Keon-Cohen for the plaintiffs, David Passi and James Rice. G M McIntyre for the first-named plaintiff. G L Davies QC, S-G, H B Fraser and G J Koppenol for the defendant. 

Judges: Mason Cj, Brennan, Deane, Dawson, Toohey, Gaudron and Mchugh JJ

Judgments: Mason CJ and McHugh J. We agree with the reasons for judgment of Brennan J and with the declaration which he proposes.

 [Result of case:]

In the result, six members of the court (Dawson J dissenting) are in agreement that the common law of this country recognises 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.

We are authorised to say that the other members of the court agree with what is said in the preceding paragraph about the outcome of the case.

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 para 2 of the formal order.

The Murray Islands lie in the Torres Strait, at about 10 degrees S Latitude and 144 degrees E Longitude. They are the easternmost of the Eastern Islands of the Strait. Their total land area is of the order of 9 square kilometres. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 metres wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer. The Islands are surrounded for the most part by fringing reefs. The people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. Although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population. Anthropological records and research show that the present inhabitants of the Islands are descended from the people described in early European reports. The component of foreign ancestry among the present population is small compared with most communities living in the Torres Strait. The Meriam people of today retain a strong sense of affiliation with their forebears and with the society and culture of earlier times. They have a strong sense of identity with their Islands. 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.

Early contact with Europeans

The Meriam people were in occupation of the Islands for generations before the first European contact. They are a Melanesian people (perhaps an integration of differing groups) who probably came to the Murray Islands from Papua New Guinea. Their numbers have fluctuated, probably no more than 1000, no less than 400.

Some of the features of life in the Murray Islands at the time of first European contact, at the end of the 18th century, are described by Moynihan J in his findings in the present case:

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 Islands are not surveyed and boundaries are in terms of known land marks such as specific trees or mounds of rocks.

Gardening was of the most profound importance to the inhabitants of Murray Island at and prior to European contact. Its importance seems to have transcended that of fishing. . .

Gardening was important not only from the point of view of subsistence but to provide produce for consumption or exchange during the various rituals associated with different aspects of community life. 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.

Later, his Honour said:

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. . . Initiation 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.

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 two years later. The ships 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 Murray Islands in about 1871 and moved its Torres Strait headquarters to Mer in 1877. It was a significant influence in keeping the peace among the Meriam people and in modifying some of their customs. It appears that, prior to the arrival of the London Missionary Society, elaborate funeral ceremonies and the collection and preservation of human heads were features of life in the Murray Islands.

Although the Murray Islands, prior to their annexation to Queensland in 1879, were not part of her Majestys 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 Murray Islands were raided, women seized and some of the Meriam people murdered. The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) n1 were enacted to stamp out blackbirding n2 and to confer on a High Commissioners 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".>FTNT>

n1 35 and 36 Vict c 19 [P9/579]; 38 and 39 Vict c 51

n2 See O'Connell and Riordan, Opinions on Imperial Constitutional Law, (1971), pp 100-3>ENDFN>

Nevertheless, it appears that the Queensland authorities exercised some de facto control in the 1870s over islands in the Torres Strait which were not part of that Colonys territory. When a proposal to expand the maritime boundaries of Queensland to include these islands was under consideration, Commander Heath, RN, the Portmaster at Brisbane, reported to the Colonial Treasurer on 11 December 1877:

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.

The proposal to annex coastal islands that were not already part of Queensland found favour with the Executive Council. The Hon John Douglas, then Premier of the Colony, sent the Governor of Queensland a memorandum dated 27 December 1877 containing the following:

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 Thursday Island, but it would not be necessary to do more than this at present, and I do not think that we should have to increase our expenditure on that account.

In July 1878, as Moynihan J found: "H M Chester, the Police Magistrate at Thursday Island,. . . visited Murray. He advised the people to select a chief and submit to his authority which, if properly 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. . .. The reasons for Aris selection are obscure. He had apparently no important ritual office or any particular claim to elevation to central authority which was itself the creature of Chesters intervention. Ari was provided with executive capacity in the form of some designated constables and a boat."

The Mamoose, as Moynihan J found, became "something of an executive arm to the mission".

Annexation of the Murray Islands

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 Murray Islands lay within the maritime boundary mentioned in the Letters Patent.

The Letters Patent authorised the Governor of Queensland by Proclamation: "to declare that, from and after a day to be therein mentioned, the said Islands shall be annexed to and form part of Our said Colony. Provided always that Our said Governor issues no such Proclamation as aforesaid until the Legislature of Our said Colony of Queensland shall have passed a law providing that the said Islands shall, on the day aforesaid, become part of Our said Colony, and subject 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 Brisbane, the Governor of Queensland by Proclamation declared: "that from and after the first day of August, in the year of our Lord one thousand eight hundred and seventy-nine, 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 Torres Strait islands were annexed were found by Moynihan J to have been: "(a) command of Torres Strait and the sea lane to India; (b) control of the fishery industry in Torres Strait including the pearl-shell industry; (c) the protection of shipping and ship-wrecked crews; (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 Commonwealth n3 Gibbs CJ noted Professor Cumbrae- Stewarts 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 Queenslands 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 Queensland or the Imperial Government.>FTNT>

n3 (1981) 148 CLR 1, at 10; 37 ALR 317>ENDFN>

In September 1879, Captain Pennefather on the instructions of H M Chester visited the Murray Islands where (as he reported) he "mustered the natives" and informed them "that they would be held amenable to British law now the island was annexed". 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 Brisbane.

Moynihan J found that there was apparently no concept of public or general community ownership among the people of Murray Island, all the land of Murray Island being regarded as belonging to individuals or groups.

In about February 1882, the Queensland Government "reserved" Murray Island for native inhabitants. In the same year, a special lease of 2 acres on Mer was granted by the Queensland Government to the London Missionary Society, which had assumed some responsibility for law and order and for the peaceful resolution of disputes. Shortly after the Reserve was created, the Queensland authorities, at the request of the Meriam people, "removed a number of trespassers" from the Islands.

In 1885, the Hon John Douglas, by then Government Resident at Thursday Island, went to the Murray Islands to arrange for the eviction of "intruders" (South Sea Islanders) in order to ensure that "the Murray Islanders will have Murray Island to themselves". He successfully negotiated the departure of the intruders. He found Harry, "the Chief or primate of Murray Island", to be a "benignant despot. . . [whose] position is respected".

In 1886, the Acting Government Resident at Thursday Island reported to the Chief Secretary of Queensland on the application of Queensland law:

I do not see how it will be possible to administer these islands under the present laws of Queensland, more especially as touching the land question, and the tenure 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.

By 1891 the headquarters of the London Missionary Society had been moved from the Murray Islands. Later, Douglas, in a report on a visit to the Murray Islands, described the system of government then in place:

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. They are recognised by me, and they assist to keep the peace when it is necessary that their authority should be invoked, which is not often.

They receive a small annual honorarium, and they are privileged to wear a uniform. Harry' has a whaleboat, presented to him by the Government, the policemen' man this boat. William' a native of New Zealand, is the head of the spiritual or theocratic government.

Douglas recommended that a teacher and adviser be appointed to reside on the Islands. John Stuart Bruce took up an appointment to that office in October 1892 and remained there until January 1934.

The "system of self-government. . . as instituted by the late Hon John Douglas, CMG" was described by the Chief Protector of Aboriginals in Queensland in his Annual Report for 1907 as follows:

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 Thursday Island. He may inflict punishment by fine or imprisonment upon minor offences, but misdemeanours and serious offences must be reserved for the bench at Thursday Island. 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, &c, 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, &c), and buildings (court- house, lock-up, school-house, &c) 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, &c, the mamoose having authority to expend all such collections upon public improvements, repairs, &c.

It appears from reports by Mr Bruce that, from the end of the 19th century, the mamooses court entertained cases arising from disputes over land or land boundaries.

When an anthropological expedition from Cambridge visited the Islands in 1898 they found that: "Queensland has not affected native land tenure which is upheld in the Court of the Island. In a few instances it is not impossible that English ideas, especially of 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 Island Court, according to Moynihan J, sought "to achieve a consistent application of certain basic principles" although his Honour went on to say that: "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.

Without pausing to inquire 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.

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 Queensland. Queensland had been separated from New South Wales and erected into a Colony pursuant to the New South Wales Constitution Act, 1855 (Imp) n4 by Letters Patent of 6 June 1859 and an Order in Council of the same day. The boundaries of the new colony were fixed, the Colony was granted a constitution with representative institutions and the laws of New South Wales became the laws of Queensland on separation. 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) n5 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 could be found in the Colonial Boundaries Act.>FTNT>

n4 18 & 19 Vict c 54

n5 58 & 59 Vict c 34>ENDFN>

With this brief conspectus of the history of the Murray Islands, we may now turn to an examination of the effect of annexation on the legal rights of the members of the Meriam people to the land of the Murray Islands.

The theory of universal and absolute Crown ownership

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 Murray Islands. 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.

The defendants 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 defendants 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 Murray Islands from other parts of Australia be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands. 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.

On analysis, the defendants argument is that, when the territory of a settled colony became part of the Crowns 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 Crowns 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 , n6 when the Supreme Court of New South Wales rejected a challenge to the Crowns title to and possession of the land in the Colony. Stephen CJ stated the law to be:>FTNT>

n6 (1847) 1 Legge 312, at 316>ENDFN>

. . .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 Sovereigns 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: n7 "The territory of New South Wales, and eventually the whole of the vast island of which it forms a part, have been taken possession of by British subjects in the name of the Sovereign. They 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 Queens 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 Majestys 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 Butlers note 6; Bac Ab Prerog B; Vin Ab same title KA 19). That principle, however, is universal in the law of England, and we can see no reason why it shall be said not to be equally in operation here. 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, ch 4), by whom the nation acts, and in whom for such purposes its power resides. Here is a property, depending for its support on no feudal notions or principle. 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 England with them.">FTNT>

n7 ibid, at 317-18>ENDFN>

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". n8 >FTNT>

n8 ibid, at 319>ENDFN>

This judgment has formidable support. It was described as "notable" by Windeyer J n9 who followed its doctrine in Randwick Corp v Rutledge : n10 >FTNT>

n9 In Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177, at 194

n10 (1959) 102 CLR 54, at 71>ENDFN>

On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. 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 CJ: Attorney-General v Brown . n11 >FTNT>

n11 (1847) 1 Legge, at 317-20>ENDFN>

The doctrine of exclusive Crown ownership of all land in the Australian colonies was again affirmed by Stephen J in New South Wales v Commonwealth (the Seas and Submerged Lands case): n12 >FTNT>

n12 (1975) 135 CLR 337, at 438-9; 8 ALR 1>ENDFN>

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 CJ); n13 the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majestys colonial possessions as in Great Britain' (per Lord Watson speaking for their Lordships in Liquidators of Maritime Bank of Canada v Receiver-General (New Brunswick) ); n14 cited by Isaacs J in Commonwealth v New South Wales . n15 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). n16 In either event the consequence is the same, the lands of Australia became the property of the King of England (Attorney-General v Brown )." n17 >FTNT>

n13 (1915) 20 CLR 425, at 435-6

n14 [1892] AC 437, at 441

n15 (1923) 33 CLR 1, at 37

n16 Williams v Attorney-General (NSW) (1913) 16 CLR 404, at 439

n17 (1847) 1 Legge, at 317-20>ENDFN>

Dawson J, following this line of authority in Mabo v Queensland , n18 said that "colonial lands which remained unalienated were owned by the British Crown".

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 CJ 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 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 civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. 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 Murray Islands on 1 August 1879.>FTNT>

n18 (1988) 166 CLR 186, at 236; 83 ALR 14>ENDFN>

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 England. 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 Australia is Australian law. The Privy Council itself held that the common law of this country might legitimately develop independently of English precedent. n19 Increasingly since 1968, n20 the common law of Australia has been substantially in the hands of this court. 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, n21 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. n22 The peace and order of Australian society is built on the legal system. It 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.>FTNT>

n19 See Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221, at 238, 241;[1969] AC 590, at 641, 644

n20 See the Privy Council (Limitation of Appeals) Act 1968 (Cth) and see the Privy Council (Appeals from the High Court) Act 1975 (Cth)

n21 Cook v Cook (1986) 162 CLR 376, at 390, 394;68 ALR 353; ; Viro v R (1978) 141 CLR 88, at 93, 120-1, 132, 135, 150-1, 166, 174;18 ALR 257

n22 Jones v Commonwealth (1987) 71 ALR 497, at 498-9;61 ALJR 348, at 349; ; John v FCT (1989) 166 CLR 417, at 438-9, 451-2;83 ALR 606; ; McKinney v R (1991) 171 CLR 468, at 481-2;98 ALR 577>ENDFN>

In the present case, the defendants 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 Murray Islands. 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 Murray Islands when the Crown acquired sovereignty over them.

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 Murray Islands rests on a number of bases. 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. The negative basis is then buttressed by three positive bases to show why it is necessary to attribute absolute beneficial ownership to the Crown. 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. 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. 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 sovereignty

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, n23 precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crowns Dominions. The Murray Islands were annexed by an exercise of the prerogative evidenced by the Letters Patent; a mode of acquisition recognised 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. n24 In Post Office v Estuary Radio Ltd , Diplock LJ said: n25 >FTNT>

n23 New South Wales v Commonwealth (1975) 135 CLR, at 388

n24 Sobhuza II v Miller [1926] AC 518, at 525; ; The Fagernes [1927] P 311; ; R v Kent Justices ; ; Ex parte Lye [1967] 2 QB 153, at 176-7, 181-2; ; Ffrost v Stevenson (1937) 58 CLR 528, at 565-6 ; A Raptis & Son v South Australia (1977) 138 CLR 346, at 360;15 ALR 223 cf ; Bonser v La Macchia (1969) 122 CLR 177, at 193, 217, where the meaning of a constitutional term was in issue

n25 [1968] 2 QB 740, at 753>ENDFN>

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 CJ and Mason J accepted that an annexation of territory by exercise of the prerogative is an act of State. n26 >FTNT>

n26 (1981) 148 CLR, per Gibbs CJ at 11; per Mason J at 21. See also Coe v Commonwealth (1979) 24 ALR 118;53 ALJR 403, per Jacobs J at 410>ENDFN>

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.

International law recognised 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. n27 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, n28 provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action. n29 To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognised 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. n30 Various justifications for the acquisition of sovereignty over the territory of "backward peoples" were advanced. The benefits of Christianity and European civilisation had been seen as a sufficient justification from mediaeval times. n31 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. n32 It may be doubted whether, even if these justifications were accepted, the facts would have sufficed to permit acquisition of the Murray Islands as though the Islands were terra nullius. 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 Crowns acquisition of sovereignty over the Islands which, in any event, was consolidated by uninterrupted control of the Islands by Queensland authorities. n33 >FTNT>

n27 See E Evallt, "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.

n28 Worcester v Georgia (1832) 6 Pet 515, at 543-4;31 US 350, at 369

n29 Lindley, The Acquisition and Government of Backward Territory in International Law, (1926), Chs III and IV

n30 See Lindley, ibid, p 47.

n31 See Williams, The American Indian in Western Legal Thought, (1990), p 78ff; and Johnsons v McIntosh (1823) 8 Wheat 543;21 US 240, at 253

n32 Vattel, The Law of Nations (1977), Blk I, pp 100-1. See Castles, An Australian Legal History (1982), pp 16-17

n33 10 Encylopaedia 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 116.>ENDFN>

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: n34 >FTNT>

n34 Commentaries on the Laws of England, 17th ed (1830), Blk II, ch 1, p 7>ENDFN>

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 civilising mankind.

As we shall see, Blackstones misgivings found a resonance in international law after two centuries. n35 But he was unable to declare any rule by which the laws of England became the laws of a territory which was not a "desert uninhabited" country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius. 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, n36 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.>FTNT>

n35 Advisory Opinion on Western Sahara [1975] 1 ICJR 12

n36 See E Evatt, op cit p 25; Cooper v Stuart (1889) 14 App Cas 286>ENDFN>

Reception of the common law

The means by which the municipal laws of England, including the common law, became the law of a country that had been outside the Kings dominions were stated by Blackstone n37 as follows:>FTNT>

n37 Commentaries, Bk 1, ch 4, pp 106-8; accord; Forbes v Cochrane (1824) 2 B & C 448, at 463;107 ER 450, at 456>ENDFN>

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 England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct (though dependent) dominions. They are subject, however, to the control of the parliament.

According to Blackstone, English law would become the law of a country outside England either upon first settlement by English colonists of a "desert uninhabited" country or by the exercise of the Sovereigns 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. n38 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. n39 The same rule applied to ceded colonies, though the prerogative may have been limited by the treaty of cession. n40 When "desert uninhabited countries" were colonised 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". n41 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". n42 That law was not amenable to alteration by exercise of the prerogative. n43 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. n44 This rule was applied even to English residents in Eastern countries which were not under British sovereignty. n45 >FTNT>

n38 Blankard v Galdy (1693) Holt KB 341;90 ER 1089; ; Campbell v Hall (1774) Lofft 655, at 741;98 ER 848, at 895-6; ; Beaumont v Barrett (1836) 1 Moo PC 59;12 ER 733

n39 Campbell v Hall (1774) Lofft, at 741, 742; 98 ER, at 895,896

n40 See the discussion in Roberts-Wray, Commonwealth and Colonial Law, (1966), pp 214ff; Sammut v Strickland [1938] AC 678; ; Blankard v Galdy (1693) 2 Salk 411;91 ER 356 ; Buchanan v Commonwealth (1913) 16 CLR 315, at 334

n41 Commentaries, Bk I, ch 4, p 107; State Government Insurance Commission v Trigwell (1979) 142 CLR 617, at 625, 634;26 ALR 67

n42 Commentaries, Bk I, ch 4, p 107. And see Sabally and N'Jie v HM Attorney-General [1965] 1 QB 273, at 294

n43 Sammut v Strickland [1938] AC, at 701

n44 Ruding v Smith (1821) 2 Hag Con 371;161 ER 774; ; Freeman v Fairlie (1828) 1 Moo Ind App 306d, at 323-5, aff at 341;18 ER 117, at 127-8, 137; cf ; Campbell v Hall (17 Lofft, at 741;98 ER, at 895, 896. See also ; Yeap Cheah Neo v Ong Cheng Neo (1875) 6 LR 381, at 398; c ; R v Willans (1858) 3 Kysche 16, at 20-5; and see ; Re Loh Met (1961) 27 MLJ 234, at 237-43; ; Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346, at 355

n45 The "Indian Chief" (1801) 3 C Rob 12, at 28-9;165 ER 367, at 373-4>ENDFN>

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 recognised 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. n46 The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory, n47 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 recognised 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 organisation. In Advocate-General of Bengal v Ranee Surnomoye Dossee n48 Lord Kingsdown used the term "barbarous" to describe the native state of a settled colony:>FTNT>

n46 See A James, Sovereign Statehood, (1986), pp 3ff, 203-9

n47 Lyons (Mayor of) v East India Co (1836) 1 Moo PC, at 272-3;12 ER 782, at 818 ; Cooper v Stuart (1889) 14 App Cas; ; The Lauderdale Peerage (1885) 10 App Cas 692, at 744-5 ; Kielley v Carson (1842) 4 Moo PC 63, at 84-5;13 ER 225, at 233

n48 (1863) 2 Moo NS 22, at 59; 15 ER 811; 9 Moo Ind App 391, at 428; 19 ER 768, at 800>ENDFN>

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 become also partakers of, and subject to the same laws.

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, n49 the negro inhabitants presumably being of no significance. n50 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: n51 >FTNT>

n49 His Lordship may have wrongly appreciated the history of Jamaica: see Roberts-Wray, op cit, pp 46-7, 851-2

n50 See (1774) Lofft, at 745; 98 ER, at 898

n51 (1889) 14 App Cas, at 291>ENDFN>

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 New South Wales belongs to the latter class. In the case of such a Colony 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 England shall have effect within its limits. But, when that is not done, the law of England must (subject to well-established exceptions) become from the outset the law of the Colony, and be administered by its tribunals. In so far as it is reasonably applicable to the circumstances of the Colony, the law of England must prevail, until it is abrogated or modified, either by ordinance or statute.

As the settlement of an inhabited territory is equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation, 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. n52 (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.) n53 In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally. 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". n54 The common law thus became the common law of all subjects within the Colony who were equally entitled to the laws protection as subjects of the Crown. n55 Its introduction to New South Wales was confirmed by s 24 of the Australian Courts Act 1828 (Imp). n56 As the laws of New South Wales became the laws of Queensland on separation of the two Colonies in 1859 n57 and, by the terms of the Queensland Coast Islands Act 1879 and the Governors 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 Aboriginals 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.>FTNT>

n52 Holdsworth, A History of English Law, 3rd ed, vol ix, (1944), p 84; Sammut v Strickland [1938] AC, at 701; ; Kielley v Carson (1843) 4 Moo PC, at 84-5;13 ER, at 233; ; Falkland Isla nds Co v R (1863) 2 Moo PC (NS) 266, at 273;15 ER 902, at 905; ; Sabally and N'Jie v HM Attorney-General [1965] 1 QB, at 294

n53 See the discussion by Windeyer, Lectures on Legal History, 2nd ed (1949), pp 332-3; HV Evatt, "The Legal Foundations of New South Wales", (1938) 11 Australian Law Journal 409, at 417-22; and Enid Campbell, "Prerogative Rule in New South Wales, 1788-1823", (1964) 50 Royal Australian Historical Society 161

n54 See per Lord Watson i Cooper v Stuart (1889) 14 App Cas, at 291; and cf Roberts-Wray, op cit, p 540

n55 As the subjects of a conquered territory (Calvin's Case (1608) 7 Co Rep 1a, at 6a;77 ER 377, at 384); ; Campbell v Hall (1774) Lofft, at 741;98 ER, at 895 and of a ceded terr itory (; Donegani v Donegani (1835) 3 Knapp 63, at 85;12 ER 571, at 580) became British subjects (; Lyons (Mayor of) v East India Co (1836) 1 Moo PC, at 286-7;12 ER, at 823;1 Moo Ind App 175, at 286-7;18 ER 66, at 108-9), a fortiori the subjects of a settled territory must have acquired that status. And see ; R v Wedge [1976] 1 NSWLR 581, at 585

n56 9 Geo IV c 83

n57 Letters Patent of 6 June 1859>ENDFN>

The basis of the theory of universal and absolute Crown ownership

It is one thing for our contemporary law to accept that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies. It is another thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts. When it was sought to apply Lord Watsons assumption in Cooper v Stuart that the colony of New South Wales was "without settled inhabitants or settled law" to Aboriginal society in the Northern Territory, the assumption proved false. In ; Milirrpum v Nabalco Pty Ltd Blackburn J said: n58 >FTNT>

n58 (1971) 17 FLR 141, at 267>ENDFN>

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: n59 >FTNT>

n59 ibid, at 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 100-7, 155-7>ENDFN>

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.

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 England. 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 Majestys indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. 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 Re Southern Rhodesia : n60 >FTNT>

n60 [1919] AC 211, at 233-4>ENDFN>

The estimation of the rights of Aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised 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.

As the indigenous inhabitants of a settled colony were regarded as "low in the scale of social organisation", 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 Crowns 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 CJ 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". n61 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 organisation 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 organisation" than the Australian Aboriginals 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.>FTNT>

n61 Cited by Lindley, op cit, p 41>ENDFN>

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. n62 There the majority judgment read:>FTNT>

n62 [1975] ICJR, at 39>ENDFN>

 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, PCIJ, Series A/B, No 53, pp 44f and 63f). In the view of the court, therefore, a determination that Western Sahara was a terra nullius' at the time of colonisation 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 organisation 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: n63 >FTNT>

n63 ibid, at 85-6>ENDFN>

Mr Bayona-Ba-Meya goes on to dismiss the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. 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 civilisation, in the sense of the public law of Europe, is backward, and whose political organisation is not conceived according to Western norms.

One might go still further in analysing the statement of the representative of Zaire so as to say that he would 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.

He concluded n64 that "the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonisation, stands condemned". The court was unanimously of the opinion that Western Sahara at the time of colonisation by Spain in 1884 was not a territory belonging to no-one (terra nullius).>FTNT>

n64 ibid, at 86>ENDFN>

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 organisation" that it is "idle to impute to such people some shadow of the rights known to our law" n65 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 todays world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.>FTNT>

n65 Re Southern Rhodesia [1919] AC, at 233-4>ENDFN>

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 Re Southern Rhodesia in rejecting an argument n66 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: n67 >FTNT>

n66 ibid, at 234

n67 See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol 2, p 23>ENDFN>

. . . 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.

Whatever the justification advanced in earlier days for refusing to recognise 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 Australias accession to the Optional Protocol to the International Covenant on Civil and Political Rights n68 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 organisation 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 n69 the criticism that:>FTNT>

n68 See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol 2, p 23

n69 Gerhardy v Brown (1985) 159 CLR 70, at 149;57 ALR 472 at 532>ENDFN>

. . . 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 CJ, in Johnson v McIntosh , n70 accepted that, subject to the assertion of ultimate dominion (including the power to convey title by grant) by the State, the original inhabitants' should be recognised as having a legal as well as just claim' to retain the occupancy of their traditional lands.>FTNT>

n70 (1823) 8 Wheat, at 574; 21 US, at 253>ENDFN>

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 recognises such rights and interests in land.

Crown title to colonies and Crown ownership of colonial land distinguished

In the trilogy of cases cited earlier in this judgment, n71 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 (NSW) , n72 Isaacs J said it was unquestionable that:>FTNT>

n71 supra, pp 16-17: Attorney-General v Brown ; ; Randwick Corp v Rutledge ; the Seas and Submerged Lands case

n72 (1913) 16 CLR 404, at 439>ENDFN>

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.

With respect to Isaacs J, that proposition is wholly unsupported. Roberts-Wray comments n73 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.>FTNT>

n73 Commonwealth and Colonial Law, op cit, p 631>ENDFN>

There is a distinction between the Crowns title to a colony and the Crowns ownership of land in the colony, as Roberts-Wray points out: n74 >FTNT>

n74 ibid, p 625>ENDFN>

If a country is part of Her Majestys 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; land may have become vested in the Queen, equally in a Protectorate or in a Colony, by conveyance or under statute. . .

The distinction between these two conceptions has, however, become blurred by the doctrine that the acquisition of sovereignty over a Colony, whether by 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.

Similarly, Sir John Salmond distinguished the acquisition of territory from the Crowns acquisition of property: n75 "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 while property is the subject matter of the right of ownership or dominium. 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.">FTNT>

n75 Jurisprudence, 7th ed (1924), appendix "The Territory of the State", pp 554>ENDFN>

Professor O'Connell in his work International Law n76 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 that the substantive rights themselves have not survived the change.">FTNT>

n76 2nd ed (1970), p 378, cited by Hall J in Calder v Attorney-General of British Columbia [1973] SCR 313, at 404-5;(1973) 34 DLR (3d) 145, at 210>ENDFN>

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 Crowns title to territory and the Crowns ownership of land within a territory is made as well by the common law as by international law. A W B Simpson n77 distinguishes the land law rule in England that all land is held of the Crown from the notion that all land is owned by the Crown. Speaking of the mediaeval conception of materialism, he comments: n78 >FTNT>

n77 A History of the Land Law, 2nd ed (1986)

n78 ibid, p 47>ENDFN>

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 (eg rights to escheats) and some peculiar to his position as supreme lord (eg 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: n79 "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).>FTNT>

n79 Commentaries, Bk II, ch 1, p 8>ENDFN>

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 recognise such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.

A basic doctrine of the land law is the doctrine of tenure, to which Stephen CJ 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.

The feudal basis of the proposition of absolute Crown ownership

The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord, n80 not the relationship between tenant and land. The characteristic of feudalism "is not tenere terram, but tenere terram de X". n81 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". n82 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 England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made. After all, as Holdsworth observed, n83 the universal application of the doctrine of tenure is a purely English phenomenon. And Pollock and Maitland may be correct in saying n84 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. n85 However, the English view favoured a universal application of the doctrine of tenure: n86 >FTNT>

n80 Attorney-General of Ontario v Mercer (1883) LR 8 App Cas 767, at 771-2

n81 Pollock and Maitland, The History of English Law, 2nd ed (1898, reprinted 1952), vol 1, p 234n

n82 ibid, p 773; Co Litt 16

n83 op cit, vol 2, p 199

n84 op cit, vol 2, p 236; accord: Holdsworth, op cit, vol 2, (1923), p 75 fn 8

n85 Bell, Lectures on Conveyancing, (Edinburgh, 1867), vol 1, ch I, pp 531-2; Stair, The Institutions of the Law of Scotland, 4th ed (1826), pp 219, 222; Craigie, Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-8; Lord Advocate v Balfour (1907) SC 1360, at 1368-9

n86 Pollock and Maitland, op cit, pp 232-3>ENDFN>

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.

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. n87 According to Digbys History of the Law of Real Property n88 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 England so that no allodial land remained. Or it may be, as Blackstone asserts, that in England, as in France, the allodial estates were surrendered into the kings 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". n89 But, whatever the fact, it is the fiction of royal grants that underlies the English rule. Blackstone says n90 that:>FTNT>

n87 Bacon's Abridgment, 6th ed (1807), vol V, "Prerogative", B, 1

n88 (1897), p 34

n89 Commentaries, Bk II, ch 4, pp 50-1

n90 ibid>ENDFN>

. . . 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 Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.

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 Crowns right to escheat. n91 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 ; n92 Nireaha Tamaki v Baker ; n93 cf Administration of Papua and New Guinea v Daera Guba . n94 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 sovereigns beneficial demesne.>FTNT>

n91 Wright, Introduction to the Law of Tenures, 4th ed (1792), p 5

n92 [1921] 2 AC 399, at 403, 404, 407

n93 [1901] AC 561, at 580

n94 (1973) 130 CLR 353, at 396-7>ENDFN>

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 Crowns 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 Crowns purposes. But it is not a corollary of the Crowns 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 CJ in Attorney-General v Brown : n95 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 recognised 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.>FTNT>

n95 See pp 16-17 above; (1847) 1 Legge, at 317-18>ENDFN>

After the conquest of Ireland, it was held in The Case of Tanistry n96 that the Crown was not in actual possession of the land by virtue of the conquest and that:>FTNT>

n96 (1608) Davis 28; 80 ER 516; 4th ed Dublin (1762) English translation 78, pp 110-11>ENDFN>

. . . 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 n97 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 recognise novel interests in land which, not depending on Crown grant, are different from common law tenures. In Amodu Tijani n98 Viscount Haldane, speaking for the Privy Council, referred to the variable nature of native title to land capable of recognition by the common law:>FTNT>

n97 (1674) 3 Keb 401, at 402; 84-ER-789, at 789 and see McNeil, op cit, p 174

n98 [1921] 2 AC, at 403>ENDFN>

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 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.

And, in Administration of Papua and New Guinea v Daera Guba n99 Barwick CJ was able to say that the indigenous people of Papua New Guinea:>FTNT>

n99 (1973) 130 CLR, at 397; but note comment by McNeil, op cit, p 297, fn 237. Cf the Indian title in Ontario under the Proclamation of 1763: St Catherine's Milling and Lumber Co v R (1888) 14 App Cas 46>ENDFN>

. . . 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: n100 >FTNT>

n100 [1921] 2 AC, at 403-4>ENDFN>

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 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.

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 Crowns territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crowns 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.

If it be necessary to categorise 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, n101 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 peoples 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 peoples 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 recognised as a burden on the Crowns radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aboriginals in Milirrpum, n102 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 communitys laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.>FTNT>

n101 See for example, National Provincial Bank Ltd v Ainsworth [1965] AC 1175, at 1247-8

n102 (1971) 17 FLR, at 272>ENDFN>

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 Crowns 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.

The "patrimony of the nation" basis of the proposition of absolute Crown ownership

In Williams v Attorney-General (NSW) n103 and in Commonwealth v Tasmania (the Tasmanian Dam case), n104 there are references to the importance of the revenue derived from exercise of the power of sale of colonial land. The funds derived from sales of colonial land were applied to defray the cost of carrying on colonial government and to subsidise 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, n105 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 realised, the rights and interests of the indigenous citizens in land have been extinguished. But that is not to say that the patrimony was realised 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 laws protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crowns 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 . n106 >FTNT>

n103 (1913) 16 CLR, at 449-50

n104 (1983) 158 CLR 1, at 208-12; 46 ALR 625

n105 R v Symonds [1847] NZPCC 387, at 395

n106 (1988) 166 CLR, at 219; 83 ALR, at 34>ENDFN>

The Royal Prerogative basis of the proposition of absolute Crown ownership

Mr Justice Evatt described ownership of vacant lands in a new colony as one of the proprietary prerogatives. n107 But, as that authors lately published work on The Royal Prerogative shows, n108 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. n109 The suggestion that, after the passing of these powers to colonial governments the Crown commenced to hold Crown lands "in right of the colony" n110 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 n111 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 Crowns 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.>FTNT>

n107 See Attorney-General (NSW) v Butterworth & Co (Australia) Ltd (1938) 38 SR(NSW) 195, at 246-7

n108 (1987), pp 102-3

n109 Williams v Attorney-General (NSW) (1913) 16 CLR, at 453, 456

n110 Per Stephen J in the Seas and Submerged Lands case (1975) 135 CLR, at 439; and note per O'Connor J in ; South Australia v Victoria (1911) 12 CLR 667, at 710-11

n111 Madzimbamuto v Lardner-Burke [1969] 1 AC 645, at 722>ENDFN>

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 Crowns acquisition of sovereignty.

The need for recognition by the Crown of native title

The defendant contests the view that the common law recognises the possession of rights and interests in land by indigenous inhabitants of British colonies and submits that, by the common law governing colonisation, pre-existing customary rights and interests in land are abolished upon colonisation of inhabited territory, unless expressly recognised by the new sovereign. There is a formidable body of authority, mostly cases relating to Indian colonies created by cession, to support this submission. n112 Thus Lord Dunedins judgment in Vajesingji Joravarsingji v Secretary of State for India contains the following oft-cited passage: n113 >FTNT>

n112 Secretary of State for India v Bai Rajbai (1915) LR 42 Ind App 229, at 237, 238-9; ; Vajesingji Joravarsingji v Secretary of State for India (1924) LR 51 Ind App 357, at 360, 361; ; Secretary of State for India v Sardar Rustam Khan [1941] AC 356, at 370-2

n113 (1924) LR 51 Ind App, at 360>ENDFN>

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. 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 recognised 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, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts.

The proposition that pre-existing rights and interests in 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. n114 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 Dunedins view in Vajesingji Joravarsingji n115 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:>FTNT>

n114 Cook v Sprigg [1899] AC 572, at 578-9; ; Winfat Ltd v Attorney-General [1985] AC 733, at 746

n115 (1924) LR 51 Ind App, at 361>ENDFN>

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 n116 in acquiring sovereignty of a territory or if the Crown were to extinguish private property pursuant to a law having effect in the territory, n117 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 Dunedins 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 Re Southern Rhodesia n118 understood the true rule as to the survival of private proprietary rights on conquest to be that:>FTNT>

n116 As in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App 476;19 ER 388; but cf ; Attorney-General v Nissan [1970] AC 179, at 227; ; Burmah Oil Co Ltd v Lord Advocate [1965] AC 75

n117 As in Winfat Ltd v Attorney-General [1985] AC 733

n118 [1919] AC, at 233>ENDFN>

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 diminish or modify them.

This view accords with the old authorities of The Case of Tanistry and Witrong and Blany, n119 earlier mentioned. Again, Lord Dunedins view does not accord with the rule stated by Viscount Haldane in Amodu Tijani: n120 "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.>FTNT>

n119 supra, pp 37-8

n120 [1921] 2 AC, at 407>ENDFN>

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 n121 that the decision in Amodu Tijani laid down that the cession of Lagos in 1861 "did not affect the character of the private native rights". As Viscount Haldanes statement of the rule was limited neither to the construction of a treaty of cession nor to the cession of Lagos, must it not be taken as the general rule of the common law? Again Lord Denning, speaking for the Privy Council in Adeyinka Oyekan v Musendiku Adele : n122 said:>FTNT>

n121 In Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667, at 668

n122 [1957] 1 WLR 876, at 880; [1957] 2 All ER 785, at 788>ENDFN>

In inquiring. . . what rights are recognised, 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 n123 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".>FTNT>

n123 [1926] AC, at 525>ENDFN>

In Calder v Attorney-General of British Columbia n124 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 recognised by the conqueror or discoverer".>FTNT>

n124 [1973] SCR, at 416; contra per Judson J at 328--30; (1973) 34 DLR (3d), at 218; contra per Judson J at 156, 157>ENDFN>

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 recognises in the indigenous inhabitants of a settled colony the rights and interests recognised by the Privy Council in Re Southern Rhodesia as surviving to the benefit of the residents of a conquered colony.

If native title survives the Crowns 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 peoples possession of the Murray Islands from a time before annexation; 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 Murray Islands. 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.

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 characterising the indigenous inhabitants of the Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land. 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 Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists. 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 Crowns acquisition of sovereignty, burdens the Crowns radical title.

The nature and incidents of native title

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 civilised society", n125 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 recognised 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.>FTNT>

n125 Re Southern Rhodesia [1919] AC, at 233>ENDFN>

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 recognised 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 recognise 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. n126 The inconsistency that the court perceived between the custom of tanistry known to the Brehon law of Ireland and the common law precluded the recognition of the custom by the common law. 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 recognise a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title.>FTNT>

n126 (1608) Davis [80 ER]; 4th ed Dublin (1762) English translation, pp 94-9>ENDFN>

Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connection with it. 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 connection 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 Crowns radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.

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. n127 Once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crowns 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 Crowns radical title is expanded to absolute ownership, a plenum dominium, for there is then no other owner. n128 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, n129 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 Murray Islands and, even after annexation in 1879, strangers who were living on the Islands were deported. The Meriam people asserted an exclusive right to occupy the Murray Islands and, as a community, held a proprietary interest in the Islands. They have maintained their identity as a people and they observe customs which are traditionally based. 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.>FTNT>

n127 This result has been reached in other jurisdictions, though for different reasons: see R v Symonds (1847) NZPCC, at 390; ; Johnson v McIntosh (1823) 8 Wheat, at 586 [21 US, at 259]; ; St Catherine's Milling & Lumber Co v R (1887) 13 SCR 577, at 599

n128 St Catherine's Milling & Lumber Co v R (1888) 14 App Cas, at 55

n129 See Guerin v R (1984) 13 DLR (4th) 321, at 334, 339, 342-3, 356-7, 360-1>ENDFN>

Secondly, native title, being recognised 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 . n130 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 Murray Islands clearly remain their home country. Their land disputes have been dealt with over the years by the Island Court in accordance with the customs of the Meriam people.>FTNT>

n130 [1934] AC 99, at 105>ENDFN>

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. n131 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 communitys lands.>FTNT>

n131 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, at 530-1, 537-9, 547-8;28 ALR 257; ; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, at 35-6, 41-2, 46, 51, 62, 74-5;36 ALR 425>ENDFN>

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 recognised in the case of the Murray Islands. The jurisdiction conferred on the Island Court by s 41(2)(b) of the Community Services (Torres Strait) Act 1984-1990 (Qld) includes a jurisdiction which must be exercised in accordance with the customs of the Meriam people. The Act provides:

An Island Court has jurisdiction to hear and 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.

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 Murray Islands owned allodially by individuals or groups, the absence of such a finding is not critical to the final resolution of this case. If the doctrine of Attorney-General v Brown were applied to the Murray Islands, allodial ownership would have been no bar to the Crowns acquisition of universal and absolute ownership of the land and the extinguishing of all native titles. But, by applying the rule that the communal proprietary interests of the indigenous inhabitants survive the Crowns 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.

The native titles claimed by the Meriam people -- communally, by group or individually -- avoid the Scylla of the 1879 annexation of the Murray Islands to Queensland, but we must now consider whether they avoid the Charybdis of subsequent extinction.

The extinguishing of native title

Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereigns territory. n132 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. n133 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.>FTNT>

n132 Joint Tribal Council of the Passamaquoddy Tribe v Morton (1975) 528 Fed 2d 370, at 376 n 6

n133 United States v Santa Fe Pacific Railroad Co (1941) 314 US 339, at 347; ; Tee-Hit-Ton Indians v United States (1954) 348 US 272, at 281-5>ENDFN>

In Queensland, the Crowns power to grant an interest in land is, by force of ss 30 and 40 of the Constitution Act of 1867 (Qld), an exclusively statutory power and the validity of a particular grant depends upon conformity with the relevant statute. n134 When validly made, a grant of an interest in land binds the Crown and the Sovereigns successors. n135 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". n136 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, n137 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 authorising 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.>FTNT>

n134 Cudgen Rutile (No 2) Ltd v Chalk [1975] AC 520, at 533-4

n135 Halsbury, op cit, ed, vol 8, para 1047

n136 Wi Parata v Bishop of Wellington (1877) 3 NZ(Jur) NS 72, at 77

n137 Stead v Carey (1845) 1 CB 496, at 523;135 ER 634, at 645>ENDFN>

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 emphasised by courts dealing with the extinguishing of the native title of Indian bands in North America. 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. n138 That approach has been followed in New Zealand. n139 It is patently the right rule.>FTNT>

n138 Calder v Attorney-General of British Columbia [1973] SCR, at 404;(1973) 34 DLR (3d), at 210; ; Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513, at 552; ; R v Sparrow [1990] 1 SCR 1075, at 1094;(1990) 70 DLR (4th) 385, at 401; ; United States v Santa Fe Pacific Railroad Co (1941) 314 US, at 353, 354; ; Lipan Apache Tribe v United States (1967) 180 Ct Cl 487, at 492

n139 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, at 691-2>ENDFN>

A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title n140 or which creates a regime of control that is consistent with the continued enjoyment of native title. n141 A fortiori, a law which reserves or authorises the reservation of land from sale for the purpose of permitting indigenous inhabitants and their descendants to enjoy their native title works no extinguishment.>FTNT>

n140 R v Sparrow [1990] 1 SCR, at 1097;(1990) 70 DLR (4th), at 400

n141 United States v Santa Fe Pacific Railroad Co (1941) 314 US, at 353-4>ENDFN>

The Crown did not purport to extinguish native title to the Murray Islands when they were annexed in 1879. In 1882, in purported exercise of powers conferred by the Crown Lands Alienation Act of 1876 (Qld), the Murray Islands were reserved from sale. The 1882 instrument of reservation has not been traced, and it is arguable that the 1876 Act did not apply to land in the Murray Islands for the Murray Islands were not part of Queensland when that Act was passed. That Act was repealed by the Crown Lands Act 1884 (Qld), 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 Murray Islands "for use of the Aboriginal Inhabitants of the State". Section 180(1) of the Land Act 1910 empowered the Governor in Council to reserve any Crown land from sale or lease "which, in the opinion of the Governor in Council, is or may be required for public purposes". "Public purposes" included "Aboriginal reserves". n142 "Crown land" was defined by s 4 of the Land Act 1910 as follows:>FTNT>

n142 s 4>ENDFN>

All land in Queensland, except land which is, for the time 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 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 para (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 Murray Islands reserve under the control of trustees but did not declare "the trusts of the land". By s 4(15) of the Land Act of 1962 (Qld) 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.

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 Queensland is vested in the Crown until it is alienated by Crown grant. 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 British Columbia : n143 "The idea is self-destructive". To construe s 91 or similar provisions as applying to the Meriam people in occupation of the Murray Islands would be truly barbarian. Such provisions should be construed as being directed to those who were or are in occupation under colour of a Crown grant or without any colour of right; they are not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title.>FTNT>

n143 [1973] SCR, at 414; (1973) 34 DLR (3d), at 217>ENDFN>

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. n144 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.>FTNT>

n144 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>ENDFN>

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 recognised 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 Murray Islands. For his part, counsel for the plaintiffs submitted that the State of Queensland had no power to extinguish native title. That argument proceeded on the footing that sovereignty is an attribute possessed only by an internationally recognised sovereign and that the Commonwealth answers that description but the States of the Commonwealth do not. n145 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. n146 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, n147 a legislative power to extinguish native title. 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.>FTNT>

n145 Seas and Submerged Lands case 135 CLR, at 373

n146 ibid, at 373, 467

n147 Mabo v Queensland (1988) 166 CLR 186;83 ALR 14>ENDFN>

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 Crowns 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.

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 Crowns 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 Crowns 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 Aboriginals as the working out of the Crowns acquisition of ownership of all land on first settlement is contrary to history. Aboriginals 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 colonisation 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 Murray Islands. 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 Australia where native title has not been extinguished and where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title. Even if there be no such areas, it is appropriate to identify the events which resulted in the dispossession of the indigenous inhabitants of Australia, in order to dispel the misconception that it is the common law rather than the action of governments which made many of the indigenous people of this country trespassers on their own land.

After this lengthy examination of the problem, it is desirable to state in summary form what I hold to be the common law of Australia with reference to land titles:

(1) The Crowns acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.

(2) On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.

(3) Native title to land survived the Crowns acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crowns 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 (eg, 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 (eg, 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 persons 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.

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 Queensland, these powers are and at all material times have been exercisable by the Executive Government subject, in the case of the power of alienation, to the statutes of the State in force from time to time. The power of alienation and the power of appropriation vested in the Crown in right of a State are also subject to the valid laws of the Commonwealth, including the Racial Discrimination Act. Where a power has purportedly been exercised as a prerogative power, the validity of the exercise depends on the scope of the prerogative and the authority of the purported repository in the particular case.

It remains to apply these principles to the Murray Islands and the Meriam people.

The effect of post-acquisition transactions

In February 1882, the Murray Islands were reserved from sale by the Governor in Council acting under the Crown Lands Alienation Act of 1876 (Qld). Section 6 of that Act authorised the proclamation of reserves "for the use or benefit of the aboriginal inhabitants of the colony". Far from extinguishing the native title of the Meriam people, the reservation of the Murray Islands from sale left them in undisturbed enjoyment of their land. n148 Nor was their native title affected when, in 1912, acting under the Land Act 1910 the Governor in Council ordered that the Murray Islands (with the exception of an area leased to the London Missionary Society) be permanently reserved and set apart for the use of the Aboriginal Inhabitants of the State; nor in 1939 when trustees of the reserve were appointed. There was no disposition of the reserve lands which was inconsistent with the continued right of the Meriam people to enjoy their native title.>FTNT>

n148 Randwick Corp v Rutledge (1959) 102 CLR, at 71-3; cf ; United States v Sante Fe Pacific Railroad Co (1941) 314 US, at 353>ENDFN>

However, leases were granted by the Crown over certain parcels of land in the Murray Islands. In 1882, special lease of 2 acres on Mer was granted to the London Missionary Society and in later years further leases of the same land were granted to the London Missionary Society. The London Missionary Society lease was subsequently transferred to the Australian Board of Missions thence to trustees of the Board. Whatever native title had been enjoyed in this parcel of land, that title was extinguished by the granting or renewal of the lease.

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 (Qld) 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 Murray Island natives of their tribunal gardens and plantation of the leased land.

The Lessees shall not in any way obstruct or interfere with the operations of the Murray Island natives who fish around the reefs adjacent to the leased land for Beche-de-mer, Trochus etc.

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 Murray Island natives are asking for unrestricted entry to these islands, although under the terms of the lease they can proceed there for gardening purposes." Ultimately, the lease was forfeited, the Chief Protector paid for the improvements and Dauar and Waier again became part of the reserve.

The plaintiffs submit that the Crown had no power under the Land Acts to grant a lease of these Islands for the purpose of establishing and carrying on a sardine factory. 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. n149 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 Crowns 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.>FTNT>

n149 Cudgen Rutile (No 2) Ltd v Chalk [1975] AC, at 533-4>ENDFN>

Moynihan Js 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 teachers residence, a Jail House, a new "native constables 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 authorised 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.

Deed of grant in trust

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 Murray Islands pursuant to the Land Act 1962-1988 and that the plaintiffs are concerned that similar action may be taken in respect of the Murray Islands. 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 authorise 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 353 A. As no deed of grant in trust has issued in respect of the Murray Islands, s 353 A does not appear to have any present application to those Islands. The plaintiffs contend that the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) is an Act of Parliament satisfying s 353 A 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)".

This declaration is founded on the decision in Mabo v Queensland n150 in which it was held that the Queensland Coast Islands Declaratory Act 1985 (Qld) which purported to extinguish the plaintiffs' native title, was nullified by operation of s 10 of the Racial Discrimination Act. 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.>FTNT>

n150 (1988) 166 CLR 186; 83 ALR 14>ENDFN>

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. n151 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.>FTNT>

n151 Gerhardy v Brown (1985) 159 CLR 70;57 ALR 472>ENDFN>

Answers to questions

This matter came before the Full Court pursuant to an order made by the Chief Justice under s 18 of the Judiciary Act 1903 (Cth) reserving questions relating to the rights and interests claimed by two of the plaintiffs, David Passi and James Rice, in specified blocks of land on the islands of Mer, Dauar and Waier. 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.

The plaintiffs seek declarations that the Meriam people are entitled to the Murray Islands:

(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.

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 Queensland and as against the whole world unless the State, in valid exercise of its legislative or executive power, extinguishes the title. 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.

I would therefore make a declaration in the following terms:

Declare -

(1) that the land in the Murray Islands is not Crown land within the meaning of that term in s 5 of the Land Act 1962-1988 (Qld);

(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 (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;

(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 of those powers is not inconsistent with the laws of the Commonwealth.

End of excerpts

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