Coe v State of New South Wales

[1993] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S65 of 1993

B e t w e e n -

ISABEL COE ON BEHALF OF THE

WIRADJURI TRIBE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

and

STATE OF NEW SOUTH WALES

Second Defendant

Summons to strike out

statement of claim

Coe 1 17/8/93

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 AUGUST 1993, AT 9.41 AM

Copyright in the High Court of Australia

MR P.K. SEARLE: If Your Honour pleases, I appear with my

learned friend, MR P.S. KILDUFF, for the plaintiff.

(instructed by the Principal Solicitor, Aboriginal

Legal Services Ltd)

MR G. GRIFFITH, OC: Solicitor-General for the

Commonwealth:  Your Honour, I appear with my

learned friends, MR D.J. ROSE, OC and

MR P.J. JEFFERY, for the Commonwealth. (instructed

by the Australian Government Solicitor)

Your Honour, perhaps my learned friend should announce his appearance and then we can talk about

order.

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR L. KATZ, for the

second defendant. (instructed by H.K. Roberts,

Crown Solicitor for New South Wales)

MR SEARLE:  Your Honour, my learned friend, Mr Griffith had

asked that I might mention one thing before he opens. The plaintiff is pressing its claim as

against the second defendant in all paragraphs but

as against the first defendant, it is only pressing

paragraphs 1 to 3, 5 to 8 and paragraph 23, if

Your Honour pleases.

HIS HONOUR:  Yes. Thank you, Mr Searle. Yes, Mr Solicitor.

MR GRIFFITH:	Your Honour, the Commonwealth has issued a summons in this matter with some particularity of
objections in the pleadings and, Your Honour, we did deliver - I hope it came to Your Honour last
evening - a summary of our contentions supporting
those - - -

HIS HONOUR: Well, it came to me this morning but I have no

doubt it was delivered to the Registry yesterday

evening.

MR GRIFFITH:  I am sorry, Your Honour, we were trying to get

it there in time. Your Honour, we do also have a

map which we have made up from the description in

paragraph 2 of the statement of claim.

Your Honour, there is also mention of the

Murrumbidgee in the paragraph but we have not marked that because that would seem to be enclosed by the unclosed lines that we otherwise plot. But

that is the best - - -

HIS HONOUR:  Yes, that is within the line bounding or

following the course of the Lachlan River.

MR GRIFFITH: But as to where the closing lines would be

otherwise, Your Honour, paragraph 2 - - -

Coe 2 17/8/93

HIS HONOUR:  Have you shown that to Mr Seale?

MR GRIFFITH: Yes, Your Honour. Your Honour, my learned

friend, Mr Searle, did announce that it seems it is

proposed to modify the pleading against the

Commonwealth essentially to the sovereignty claims,

the standing, pleaded in paragraphs 1 to 3 and

paragraph 23, Your Honour, which is a rather

obscure paragraph, but perhaps we can deal with it

in detail later.

But it does seem to us, Your Honour,

particularly in that circumstance, if it is

intended in some way to narrow the claim against
the Commonwealth, that it would be appropriate for

my learned friend, Mr Mason, to proceed with his

application and we would suppose, Your Honour,

adjusting our summons and supporting submissions

which Your Honour has with respect to the pleading

points to the circumstance if it seems it is

intended to narrow the pleading against the

Commonwealth, suppose that in that way,

Your Honour, substantially, we will be able to

adopt what my learned friend, Mr Mason, has to say

on the paragraphs, assuming they be amended, to

confine allegations to us in those several

paragraphs, if that suits Your Honour.

HIS HONOUR:  Yes. Well, that would be a convenient course,

Mr Solicitor. Yes, Mr Solicitor for New South

Wales.

MR MASON:	Your Honour, it is the second defendant's application that the entire proceedings be
dismissed or, alternatively, stayed;
alternatively, that the statement of claim be entirely struck out.

Your Honour, the basis of that application is

that the predominant purpose of the proceedings, in

our submission, is to raise a clearly untenable
claim to sovereignty. In our submission, the

plaintiff and her legal advisers have instituted

these proceedings as a vehicle for making a

political statement against the High Court and the

constitutional system of which it is the guardian

and to which all Australians are subject.

HIS HONOUR: But, "against the High Court", I do not quite

follow that, Mr Solicitor.

MR MASON:  Some of the evidence will indicate, Your Honour,

that an intention of the defendants is to challenge
the High Court, not just with reference to what

they said in Mabo but, we would submit,

inferentially, as to their authority to declare the

law in the way they have done so. We would submit

Coe 17/8/93

that that purpose is not a proper use of the

Court's process.

Our submission is that the challenge to the

radical title of the Crown and the sovereignty of
the Crown in Parliament is untenable to the

knowledge of the plaintiff, her fellow claimants

and their legal advisers. The fact that it has

been made in a blaze of self-induced publicity

confirms that the proceedings are designed to put

if the Court were to grant the relief which the plaintiffs seek but which, in our submission, they know they cannot attain in this

political pressure on governments and the ordinary dispossessed

forum.

Since the spurious sovereignty claim is the predominant purpose of bringing the proceedings,

and that predominance can be established from a

number of sources, including the endorsement on the

writ, the portion of the statement of claim that

relates to it and statements made with reference to

the proceedings, including a statement in an

affidavit that has been filed in these proceedings,

since that is the predominant purpose of bringing

the proceedings, then, in our submission, the whole

proceedings are an abuse and should be stayed.

There is an alternative claim towards the end of the statement of claim which one can perhaps be excused in referring to as a "traditional Mabo

claim" but even that claim which seeks to invoke

the principles of the decision of the Court in Mabo
(No 2) is quite extravagant. It claims, without

any concession with respect to acts of

extinguishment, the entire portion of south-western

New South Wales, including a number of major town

and city centres. It must be known, in our

submission, that very significant portions of the

land claimed are the subject of acts of

extinguishment within the principles declared by

this Court in Mabo (No 2) and one can only wonder

at why every square metre of land within a rather

vaguely defined area has been claimed.

Indeed, some of the land claimed not only is

the subject of Crown grant or other acts of clear

extinguishment, some of it is land that has been

granted under the Aboriginal Land Rights Act.

Your Honour, may I refer you to the affidavit.

The summons was filed 27 July, and the plaintiff

moves on an affidavit of John McDonnell, sworn

27 July. I will be proposing to take Your Honour -

and I have got some written submissions which I

will hand up now - through a number of specific

Coe 17/8/93

pleading defects which we submit - some of which
reveal claims that are clearly untenable; others of

which are remediable defects but as to the

untenable ones, coupled with the evidence or even

standing alone, we submit that the entirety of

proceedings should be struck out or stayed.

Does Your Honour wish the affidavit to be read

or has Your Honour seen it?

HIS HONOUR:  No, I can read it myself. Do you have a spare

copy of that affidavit, Mr Solicitor?

MR MASON: Yes, I do, Your Honour. Unfortunately, it is a

little bit loose.

HIS HONOUR:  Thank you. Yes, I have read the affidavit.

MR MASON:  Your Honour, an affidavit has been filed on

behalf of the plaintiff in opposition to the

relief. It is an affidavit of Dorothy Morgan. I

assume my friend is going to read it.

HIS HONOUR:  Do you wish to read it, Mr Searle.

MR SEARLE: Yes, Your Honour. There are, in fact, two

affidavits which would be relied on by the

plaintiff.	The first affidavit is an affidavit of
Dorothy Morgan, sworn 13 August 1993.	Does
Your Honour have a copy of that?

HIS HONOUR:  Yes.

MR SEARLE:	And the second is an affidavit of Bruce Robert Miles, sworn 13 August 1993.	Does Your Honour have
a copy of that?
HIS HONOUR:	Yes.	I have read both those affidavits.

MR SEARLE: If Your Honour pleases.

HIS HONOUR:  Yes, Mr Solicitor.

MR MASON:  Your Honour, if I may, firstly, speak to the

submissions that attack particular paragraphs or

sections of the statement of claim, what one might

call more traditional grounds. We submit that the

greater part of the statement of claim contains a

number of clearly untenable claims. Your Honour

will see that there is an assertion of jurisdiction

in appropriate terms in paragraph 1. There is a

statement about standing in paragraph 2 which has a

problem that surfaces for the first time that
permeates the statement of claim in that there is

no clarity as to the land claimed, but I will pass

over that for the moment, if I may.

Coe	17/8/93
HIS HONOUR:	You will be returning to that?

MR MASON:  I will be returning to it, yes. It is really

when one gets to paragraph 4 that one sees the

first paragraph of about 12 paragraphs - they are

referred to in the outline of the submissions - in
which what is, in effect, filed is a challenge to
the Crown acquisition of sovereignty in 1788 and
the constitutional powers of the Crown and of the

respective parliaments under the Federal and State

Constitutions to pass laws referable to what is

described as the "Wiradjuri land". Paragraphs that

include those claims are 4, 5, 6, 7, 8, 9 and 10. The reason why paragraph 9 is included in that is

that if one looks at the particulars that are given

of what are described as "Genocide and other crimes
against humanity" are included the exercise of

various statutory powers and the passing of various

Acts under which those powers were exercised

including, for example, the Crimes Act 1900.

Paragraph 10 is in a similar vein. There are,

of course, other objections to those paragraphs to

which I will return.

HIS HONOUR:  I was going to say to you, paragraph 9, for

example, you treat that as part of the sovereignty

claim?

MR MASON:  No exclusively. It is part of other claims and

we have other objections to it.

HIS HONOUR: Yes, I follow. But, at the moment, you are

only identifying it as falling into the sovereignty

claim?

MR MASON: Correct, yes, and as suffering, in part, at

least, with the sovereignty defect, if there be

one.

HIS HONOUR:	Yes.
MR MASON:	Paragraph 13 is perhaps only tangentially in that

context because it is primarily concerned to assert

some fiduciary obligation. Paragraphs 17 and 19:

o course, it may be that a paragraph like paragraph

17 should be read or the Court will be invited to

read it as not coloured by what goes before in the
early part of the pleading and perhaps is not
challenging sovereignty but the breadth of it

leaves one wondering what is said to be the

unlawful extinguishment of the plaintiff's rights.

HIS HONOUR:  It seems to be tied up with the fiduciary notion in 16.

Coe 6 17/8/93

MR MASON: That is certainly a fair reading of it, yes.

Your Honour, as to the claim for sovereignty, it is

the very claim that this Court rejected in the

earlier Coe proceedings in Coe v The Commonwealth,

52 ALJR 334, at page 336 in Your Honour's judgment,

and page 408 in the judgment of the Full Court on

appeal. But, more importantly, it is the

proposition that was rejected, we submit

unanimously by this Court, in Mabo (No 2). Now,

true it is that in Mabo (No 2) it does not appear

that the sovereignty question was raised,

nevertheless, the passages in the judgment to which

we have referred - and unless Your Honour wishes I

will not read them - - -

HIS HONOUR:  No, there is no occasion to read them, you have

identified them in your document.

MR MASON:  Yes. They amount to a very clear restatement of

a very basic principle that the radical title of
the Crown acquired as an act of State is not a
matter that is justiciable in this or any other

court of this country.

HIS HONOUR:	But you might refer me to the observations of the Full Court in Coe.
MR MASON:	Yes, 53 ALJR 403, at page 408.
HIS HONOUR:	I have got the ALR, but it is a short judgment

so that - well, perhaps you might pick up the

Solicitor-General for the Commonwealth's copy.

MR MASON:	I will just get my copy.
HIS HONOUR:	Now, at the moment, Mr Solicitor, I am only

interested in identifying what was said by the

Full Court in Coe on the sovereignty question. I am not interested in the pleading aspects of Coe.

MR MASON:  Yes. At page 128 in the Australian Law Reports,

24 ALR 118, at page 128, about point 7. :There is a

reference back to the judgment of Sir Harry Gibbs,	I recollect, in New South Wales v The Commonwealth
where there is a collection of some authorities in support of the proposition that:

The annexation of the east coast by

Captain Cook in 1770, and the subsequent acts

by which the whole of the Australian continent

became part of the dominions of the Crown,

were acts of state whose validity cannot be

challenged ..... If the amended statement of

claim intends to suggest either that the legal

foundation of the Commonwealth is insecure, or
that the powers of the Parliament are more

limited than is provided in the Constitution,

Coe 17/8/93

or that there is an aboriginal nation which

has sovereignty over Australia, it cannot be
supported.

Now, the only difference with the present case is that the sovereignty is asserted to divest in the Wiradjuri people as distinct from the entire

Aboriginal nation.

HIS HONOUR:	Yes.
MR MASON:	Your Honour, may I then pass to the second group

of paragraphs which contain - - -

HIS HONOUR:  But can you give me the other references in Coe

in the Full Court?

MR MASON:  I think that is the only one.

HIS HONOUR: That is the only one, is it?

MR MASON:	That is the only one, yes. Mr Justice Aickin concurred at the very end of the report in a short
judgment at page 138.
HIS HONOUR:	Yes.
MR MASON:	Your Honour, paragraphs 9 and 10, 20 and 21, also contain untenable claims that the difficulty lies
in a completely different area. Paragraph 9
asserts against the second defendant, various monarchs, their servants and agents, liability for various torts committed in the past being, obviously, torts, as alleged, against individual members of the Wiradjuri tribe, and there are
claims for compensation consequent upon those
allegations.

Paragraphs 20 and 21 makes claims sounding in

compensation in favour of the plaintiff with

respect to the same matters.

Your Honour, we submit that it is quite

untenable for a plaintiff to bring an action
seeking monetary damages with respect to alleged

wrongs committed against other persons, including -

and this is, in one sense, a separate point -

wrongs said to be based upon the wrongful death of

others.

This Court has, on two occasions, spoken about

the latter point in Woolworths Ltd v Crotty - and

we have given Your Honour the reference to it - and

in refusing special leave in a more recent

decision.

Coe 17/8/93

The acknowledgment in Mabo (No 2) of the capacity to bring a representative action was

expressly and, we would respectfully submit,

deliberately confined to proprietary claims. In

one sense, that is a separate point than the one we

are seeking here to make but it follows on.

Your Honour, paragraphs 10 and 11 make claims based upon breaches of international law:

paragraph 11 much more clearly than 10. The only

reason 10 is included is that there are allegations

of crimes against humanity which perhaps are

intended to attract a private cause of action in

the present plaintiff based upon a breach of

international law.

I would hope and assume that it is quite clear that in taking these points, there is no concession

about the factual basis of the claims or about the
importance of the issue that is sought to be made

about them; simply a question of their legal

untenability in this forum.

Your Honour, paragraph 11, in particular, asserts, and it assets it against the first

defendant - but here we are using this as part of a

step in seeking to strike out the whole of the

claim as predominantly pushing some untenable

claim - breaches of obligations flowing from

international treaty and customary law and does so

as the basis of some private right in the

plaintiff. We submit that the authorities that are

referred to at the bottom of page 1 of the outline

of submissions make such claims quite untenable.

There are claims which perhaps are part and

parcel of the sovereignty claim but perhaps should
be looked at separately in paragraphs 12 and 22

which appear to be challenges to the legislative

competence of the defendants under their respective

Constitutions. Paragraph 12 can be passed over

fairly briefly because it is perhaps just a

pleading flourish on route to some other claim but

22 must inevitably involve an assertion that the

defendants are precluded by some principle of law

from exercising statutory authority or the

authority to pass statutes or to act under statutes if, in any way, that would be inconsistent with the

native title rights of the plaintiff. That is the

proposition that, in our submission, is untenable

and contrary to Mabo (No 2).

There is a related proposition which is

paragraph (e) of our outline that relates to
paragraphs 15 and 22, in that what the pleader

appears to be saying is that the fiduciary

obligation that is said to have arisen by reference

Coe 9 17/8/93

to the earlier dealings between the Crown and the

Wiradjuri people has given rise to some preclusion

from the exercise of statutory power that would, in

any way, affect or be contrary to the interests of

the Wiradjuri people over their land. Your Honour,

again, we have identified paragraphs 15 and 22 as

being in that context.

Could I take Your Honour to one passage in

Mabo (No 2), 175 CLR at page 205, simply because

it, on one reading, could be some support for the

plaintiff's proposition and yet, while we have

difficulty, with respect, in understanding what

Justice Toohey was stating, we would indicate our respectful disagreement with the statement there.

At the very end of His Honour's discussion about

the fiduciary obligation, with respect to the Mabo

people, His Honour said:

A fiduciary has an obligation not to put

himself or herself in a position of conflict
of interests. But there are numerous examples

of the Crown exercising different powers in

different capacities. A fiduciary obligation

on the Crown does not limit the legislative

power of the Queensland Parliament, but

legislation will be a breach of that

obligation if its effect is adverse to the

interests of the titleholders, or if the

process it establishes does not take account

of those interests.

The difficulty may be our's. We have a little

difficulty understanding the distinction that

His Honour is seeking to draw there, but the second

part of the sentence cannot, with the greatest

respect, be accepted as a correct proposition of

law. If there is a fiduciary obligation, that does

not present any impediment to legislation that

touches upon it, nor would that render any

legislation that touched upon it itself a breach of

that obligation. To take an example different from	here: charitable trusts are frequently amended by
Act of Parliament. There is nothing in the nature
of this fiduciary obligation that puts it beyond the reach of Parliament in passing what may be
assumed, for the present purposes, to be valid
laws. But I thought I should direct Your Honour's
attention to that because it may be said to provide
some support for the contrary proposition to that
which we put.

HIS HONOUR:  Is that question discussed in the Canadian

cases at all?

MR MASON:  Not that I am aware of, Your Honour.

Your Honour, the next category of untenable claims

Coe 10 17/8/93

are those which are based upon some form of

representative claim for compensation. The

paragraphs that have been identified, 15, 20 and 21, and the prayers for relief F, G and H, claim

damages for various breaches of tort or fiduciary

obligations. These are the wrongs said to have

been done by or on behalf of the defendants against
the Wiradjuri people and ther are wrongs sounding

in tort or fiduciary obligation.

How those wrongs can give rise to a

representative claim for compensation by this

plaintiff, even accepting for present purposes her

authority to sue on behalf of the Wiradjuri tribe,

is a proposition which we cannot understand in law

and which we dispute.

Your Honour, in Payne v Young, 145 CLR 609,

the Full Court looked at the rule dealing with

representative actions in this Court. It is

Order 16, rule 1. It is still in the same form as

it was when the Court then delivered judgment.

There were:

Seven plaintiffs joined in an action against eight defendants claiming declarations

that -

a Western Australia Act was invalid as an excise,

and they all claimed the return of the fees that
they had paid severally under the invalid enactment

and the Court, affirming the decision of

Justice Aickin below, held:

that, as each series of transactions was

peculiar to each individual plaintiff, the

right to the relief claimed was not in respect
of, nor did it arise out of, the same

transaction or series of transactions within

the meaning of -

the rule.

Now, here, the plaintiff - in one sense, only Hence an improper joinder.

one plaintiff although she purports to sue on

behalf of all of the Wiradjuri people and therefore

is, what we would submit, is an irremediable

defect. In Payne v Young, all but one of the

plaintiffs was struck out. Here, not only is there

no pleading of a wrong done to the particular

plaintiff but, in so far as by her own pleading,

she says, "I want compensation for all of these

other people for the various wrongs that have
occurted to them in the past." It is an untenable

claim, in our submission.

Coe 11 17/8/93

We refer Your Honour to Esanda Finance which,

from our research, is the latest discussion of the
general principles relating to joinder of claims in

a representative action, and remind Your Honour

that special leave has been granted by this Court

with respect to that decision. Nevertheless, the

principle established in Payne v Young is clear,

certainly in its application to the present case.

The reference to ttrepresentative actionstt in

Mabo (No 2) is to Justice Brennan's statement at pages 61 and 62 where, in discussing the incidence

of native title, His Honour said that:

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 ..... by a representative action -

so there is certainly no support there for a

representative claim for damages.

Finally, in this category of complaints,

paragraph 19 asserts that:

The predecessors of the first and second named

Defendants wrongfully and unlawfully purported

to issue freehold title to third parties over

portions of Wiradjuri land.

Perhaps this is to be seen in the context of the

sovereignty claim; perhaps it is to be seen in the

context of a challenge to the legislative and

constitutional competence to pass real property
acts or Crown lands acts but, whatever, it is

asserting that which Mabo (No 2) decided to the

contrary, namely, if they grant a freehold title is

an act which may validly extinguish Aboriginal

title.

Your Honour, in paragraph 4 of the outline of

submissions, just jumping ahead for a second, there

is a table which indicates, with reference to the

various paragraphs of the statement of claim, the

portions of the submission which relate to it.

Returning to paragraph 2 of the outline of

submissions, we then come to what may be conceded

to be the remediable defects but, nevertheless, as

the pleading stands, they are significant. The

first is the failure to define properly the subject land. My learned friend, the Solicitor-General for

the Commonwealth, has given you a map which does

its best to follow the verbal description of the

land. The land is described in the statement of

Coe 12 17/8/93

claim in paragraph 2, particular (b). Apart from

knowing generally that it is the bottom part of New

South Wales, one is left with an absence of

relevant particularity. In our submission, that is

a critical defect, all the more so because of the
whole question about extinguishment of title.

Regardless of who bears the onus of proof as to

extinguishment of title, surely the defendant is

entitled to know the precise metes and bounds of

the land that is claimed so that questions of

whether a particular town or a particular building

or a particular land grant has extinguished title.

I will not dilate further on that defect.

In paragraphs 9 and 10 there is a claim for trespass which lacks necessary precision and we

have given Your Honour a reference to Your Honour's

judgment in the earlier Coe decision where the same

problem affected the pleading there. Your Honour,

it is quite impossible to plead to an assertion in

the form of paragraph 9.

Likewise, the paragraphs that are identified

in 2(c) of our outline of submission do not plead

material facts that would assist or enable proper

instructions to be given, obtained or the

defendants to know the case that is sought to be

made against them. Those paragraphs are 13 to 15,

16, 17 and 19. Paragraph 22 also is deficient, in

our submission, because it pleads no material facts

in support of the alleged duty.

HIS HONOUR:  What is the complaint about paragraph 13?

Paragraph 13, in essence, is an allegation that the

defendants have represented by their conduct that they recognized and continue to recognize certain

rights in the Wiradjuri people. Now, what is the

insufficiency of pleading in relation to

paragraph 13?

MR MASON: 

In part it turns upon whether the matter should be in the particulars or the pleading, but if one

goes to the particulars, maybe they are the best

particulars the plaintiff can give but, in our

submission, they do not give sufficient. If one

looks at particular (a), for example, it hardly

condescends to adequate materiality or detail to

support the claim.  I have to concede that that is

the most specific of the paragraphs and, from our
point view, this particular point we make as to

this particular paragraph is not its strongest.

May I then turn to the question of whether the

various defects that we have sought to identify in
the pleading, and the material that supports it,
supports the staying of the whole proceedings. The

principle upon which we rely is that established in

Coe 13 17/8/93

this Court in Williams v Spautz, that where a
predominant foreign purpose appears, then even
though proceedings involve a tenable claim, the
entire proceedings may be struck out. Williams v

Spautz was one in which the foreign purpose was, as

it were, external to the claim that was made.	It
was, so far as the pleadings were concerned, a

latent defect in the process. Here, the foreign

purpose is in large part patent on the face of the

filed documents, although it is supported by

external material.

Your Honour, if one looks firstly at the

endorsement on the writ of summons which, according

to the rules is meant to give a concise statement

of the claim - and I will refer Your Honour to the

particular rule that relates to that - the seven

paragraphs that are pleaded there really amount

wholly and solely to a challenge based on

sovereignty. Order 2 rule 1 requires:

A writ of summons shall ..... be endorsed with a

concise statement of the nature of the claim

made -

and if one takes that as a concise statement, then

one gets a very clear picture of the then sole, and

still predominant, purpose of the proceedings.

Your Honour, there is also the affidavit that

was filed by the plaintiff. The minutes of the

general meeting of the Wiradjuri Regional

Aboriginal Land Council, paragraph 3 of Ms Morgan's

affidavit gave authority to:

initiate a Mabo type action and a High Court

challenge to Mabo, to show that Wiradjuri law still applies and that we are still the legal

owners of Wiradjuri land and territory, and

wish it to be acknowledged by all and sundry

including the High Court of Australia, to stop

illegal dealings on Wiradjuri Land and without Wiradjuri consent.

The opening recital also contains - - -

HIS HONOUR:	I just do not understand how that particular resolution supports what you are saying, because
the resolution indicates a decision to seek to challenge the Mabo decision.
MR MASON:	There is the opening recital to the resolution

and the particular paragraph I previously read

indicates the intention is to, in effect, tell the

High Court, as well as everybody else, that the

sovereignty issue is not conceded though the High

Coe 14 17/8/93

Court has, in our submission, clearly indicated

that it is untenable.

Your Honour, the third factual basis of the

submission is the statement of claim itself.	When
one looks at the predominant purpose of the

litigation, the predominance of the pleadings in

numerical and chronological sequence are the claims

for sovereignty. It is, of course, necessary, in

our submission, that these claims be shown to be

untenable but, perhaps more importantly, known to

be untenable, and that is the basis upon which we

submit that the Court is left with no alternative

but to infer that the purpose of the proceedings

must be to achieve something outside of the

proceedings themselves, because one does not bang

one's head against a legal brick wall in public.

HIS HONOUR:  Let us assume that it is possible to take the

view of the claim that it does assert, as a ground for relief and as a primary ground for relief, one which is untenable; but then it also asserts a

claim for relief which is consistent with Mabo and

that claim for relief may extend to a proportion of
the land, perhaps, we will assume hypothetically, a

small portion of the land; is there any reason why,

in the circumstances, the statement of claim could

not be struck out or the action stayed so far as it

did not relate to that small proportion of the land

that is susceptible of a legitimate style claim?

MR MASON:	In an ordinary case, that would be the appropriate response. But if the untenable portion
was known to be untenable, and if there were
material, as there is here, to show that the
litigation was really being used as a backdrop to a political campaign, then consistent with the
principles in Spautz's case, the whole of the
proceedings should go.  Now, what happens in the
future - - -

HIS HONOUR: Notwithstanding that it would forever shut out

claim that was severable from that part of the	the plaintiff from establishing its title in a
claim that is infected in the way that you suggest.

MR MASON:  I certainly had not seen that as being a

consequence of a total stay or dismissal. If it

were a dismissal on the grounds that I have

asserted - - -

HIS HONOUR:	Then they could commence a separate action, asserting a claim in respect of the small
proportion of the land that was susceptible of legitimate claim.

Coe 15 17/8/93

MR MASON: 

If the legitimate action was tenable and not

poisoned by the political purpose which we say
poisons the present claim, yes.

HIS HONOUR: 

Yes, that is the assumption.

MR MASON: 

So there would not be a res judicata consequent

upon a stay or dismissal on that basis.

HIS HONOUR:  Yes. But that does not quite answer the

question. You say not a res judicata, and you are

assuming that the action would be dismissed, stayed

or struck out, but that the plaintiff would be left

to the bringing of a further action confined to

that aspect of the original claims.

MR MASON:  So long as that further action was not itself

also tainted and was otherwise -

HIS HONOUR:  Oh yes, I follow that. But you are contesting

that, in the circumstances, it would be possible to sever the claims so that the potentially legitimate claim could remain on foot in the action as

originally brought.

MR MASON:  Yes. Because it is a question of the Court

preserving the integrity of its own process and its

own procedures as being solely for the raising of

legal claims and not, in effect, using the High

Court as a photographic backdrop or a High Court

proceedings as a political backdrop. May I test it

by giving another example: assume a person in

England had a just claim for a debt against the

Crown, but added to the statement of claim an

assertion that the Queen had done some terrible

wrong to that person and filed the writ in a blaze

of publicity. Would the Court, I ask

hypothetically, allow its processes to be used that

way, without some appropriate response, and would

an appropriate response be to sever the bad if the

facts were that the bad was the predominating

purpose for the whole exercise.

Your Honour, the final evidentiary basis for

the factual basis is the affidavit of Mr McDonnell
in which there are various statements recorded in
the affidavits and the news items showing that the

filing of the writ was accompanied by people being

photographed at the Court, making statements which

are directed solely at the sovereignty issue,

making assertions which must, if one accepts the

untenability of the sovereignty issue, only have

the effect of causing great concern and distress,

both to the negotiating process relating to the

resolution of the opportunities provided by Mabo

(No 2), but also to people both black and white who

Coe 16 17/8/93

have land interests that are affected by this

present untenable claim.

Your Honour, the sovereignty claim encompasses an allegation that the Aboriginal Land Rights Act

of New South Wales and, presumably, any grants made

under it, would itself be invalid. It is true that

that claim is also supported on a narrower 109

basis, but I only mention that so as to indicate

that, in one sense, there has been no

discrimination from the plaintiff's point of view
in the over-breadth of the claims they make in

these proceedings.

HIS HONOUR:  Thank you, Mr Solicitor. Mr Solicitor for the

Commonwealth.

MR GRIFFITH:  Your Honour, on the indication given by the

plaintiff's counsel to you this morning, it seems

that the Commonwealth now has a narrow interest.

It is put on the basis of paragraphs 1 to 3, 5 to

8, and 23. We are not quite sure what the content

of that statement is, Your Honour, when compared

with the pleading as it now is, but in our outline
we do make the points, many of which are in
concurrence with my learned friend's, the

Solicitor-General for New South Wales, as to the

problems, particularly with paragraphs 6 to 8.

Paragraph 23 - - -

HIS HONOUR:  There is one difficulty with the plaintiff's

statement that he is only relying on these

paragraphs as against the Commonwealth, but a

number of the other paragraphs, of course,

indirectly have consequences for the Commonwealth.

MR GRIFFITH: At the moment they plead the Commonwealth in

it, true, Your Honour, but we tend to think that

that is really admission by the plaintiff that at

best the plaintiff desires to start again. We have

no objection in principle to a Mabo-type claim, if

we could call it that, Your Honour, alleging native

title with particulars; alleging the land with

respect to which it is alleged there is unalienated

land to which a Mabo claim might run; although we

would be very doubtful that the Commonwealth would
have much interest in such a claim, beyond the

occasional post office and telephone booth. There

might be one military base within the area,

Your Honour, but we would see that our physical

interest in such a claim would be a narrow and

particular one but one that could only respond to a

particular claim, which we do not yet have.

HIS HONOUR:  And looking at the map I gather that the

Australian Capital Territory is outside the boundaries of this area.

Coe 17 17/8/93

MR GRIFFITH:  We think it just outside, Your Honour, and

there seems to be another writ issued, but not yet

served, that comes over the hill towards Canberra.

So it does not seem to include the Australian

Capital Territory.

So, Your Honour, in the circumstances, we do

feel it is appropriate, if I can call them

generically, the sovereignty claims in paragraphs 6

to 8 should be struck out. But we have no

objection to a reconstitution of this claim,

notwithstanding the breadth of the endorsement on

the writ to a Mabo - - -

HIS HONOUR:  Into what you would describe as a legitimate

Mabo-style claim.

MR GRIFFITH: Yes. Whether it is done by issuing a new

writ, we do not take any - - -

HIS HONOUR:  You do not mind whether these proceedings are

reconstituted or whether another action is - - -

MR GRIFFITH: Technically, Your Honour, one can see

difficulty on the endorsement but we find the

higher one goes, the less one needs to be concerned

about the technical issues but the direct issues

involved. If there is a Mabo-type claims here that
does involve the Commonwealth interest, then we

would be quite happy with dealing with the pleading

but, just as in Mabo itself, Your Honour, at the

end of the day there was no claim involving

Commonwealth interest and the Commonwealth, for

that reason, was not there as a party, after 13
years of pleading. For that reason, we do feel we

have a subsidiary role in this application but we

do agree with my learned friend, Mr Mason, that the

sovereignty issues are ones which should not

proceed. We say, really, in the interest of the

plaintiffs, that they be channeled into a claim

where one has a tenable basis of allegation and

where one can then deal with the issues, we would

say, within the framework of Mabo itself.

It would seem, Your Honour, on the concession

made by our friend, there is now to be no

allegation of breach of fiduciary obligation
against the Commonwealth, which could be a separate

matter, which presently is in the pleading in the

Wik case, Your Honour. But if that is to go on his

verbal concession, our interest is to see a tenable

claim, properly pleaded, to which we can respond,
but admitting, Your Honour, that our interest then

probably would be a narrow one.

HIS HONOUR:  Mr Solicitor, there is one question which I

should have directed to the Solicitor for New South

Coe 18 17/8/93

Wales, but you may be able to answer it and he may want to answer it, and that is this: it is obvious, I would have thought, from what the Solicitor said

that there are a number of sizable towns in the

area that is the subject of this claim and,

naturally, one would expect in those towns - and

for that matter, in relation to a large area of the
Riverina - that there have been freehold grants
and, of course, Mabo (No 2) indicates that freehold

grants are inconsistent with the continuation of

indigenous customary rights. Now it may be that

the onus is on the defendants to establish

extinguishment by that means.	What do the two of
you say about that?

MR GRIFFITH:  Your Honour, I have not discussed it with my

learned friend.	We would say the position would
be clear.	We say the claim is the claim to

unalienated land, so that is the allegation,

Your Honour, and it is for the plaintiff to allege.

HIS HONOUR: You would say the onus is on the plaintiff?

MR GRIFFITH: Yes, and the mere description of the area,

until one gets back of Bourke, we say that it is a

matter of public knowledge that, basically, it is a

freehold tenure system.

HIS HONOUR:  So that even if the onus was on the defendants,

you would say it is a matter of public knowledge

that a very significant proportion of this area

must be the subject of inconsistent freehold grant?

MR GRIFFITH:  That would be our assertion, Your Honour. No

doubt we would get material covering that as a

general issue, but it must be, with respect, that the pleading is to allege that there has not been

alienation to establish the claim. Without that,

we would say there is no pleading of the claim.	I
do not know whether my learned friend - - -

HIS HONOUR:  Do you want to add to that, Mr Solicitor?

MR MASON:  Your Honour, paragraph 23 of the statement of

claim contains an assertion that is ultimately

vexatious in the technical sense in that the

plaintiff tries by some formula to say, well, we

are only claiming the land that is not

extinguished. But given that there may be

different types of native title, and given that the

mere bringing of a claim of this nature can give

rise to public concern, can give rise to people

whose title may be perceived to be at risk wanting

to defend their title against any possibility of

risk, it would be clearly irresponsible not to

raise in the proceedings, if they continue,

questions of extinguishment. Now, as we read - - -

Coe 19 17/8/93

HIS HONOUR:  So in a sense you rely on this to support the

earlier claim that you made of purpose.

MR MASON:  I do. I say that in a case such as this, where

it is manifest that large parts of the land claimed

is the subject of extinguishment, that tends to

show the predominant purpose of the litigation.

But it also means that the claim could, itself, be

capable of being untenable, at least as to part,

although since one must assume that some of the

land is unextinguished and others is, as to what

part the Court at this stage does not know, in a

traditional Mabo claim, it would appear in point of

principle that the defendant bears the onus of

asserting extinguishment, pleading and asserting

it. I would wish to be able to assert otherwise, but our reading of the case suggests that that

is - - -

HIS HONOUR:	You concede that that is so?
MR MASON:	That is the position. Of course, that means that

the defendant is entitled to know exactly what land

is claimed so that that pleading can be raised in

an appropriate area. The whole question of

parties, Your Honour, is a matter that is starting

to cause some difficulties in the West Australian

proceedings, I understand. Claims are being made,

initially I think against the Crown, for land.

Various parties or people have said that that

affects my land and their title derives from

something which would be an act of extinguishment,

according to the principles in Mabo (No 2).

I understand the court there has said, well,

you have an option. If you are not joined in the

proceedings, they technically will not bind you,
but many defendants - and I understand it is up to

about - - -

HIS HONOUR:  Yes, it is understandable that people are not prepared to run the risk of an adverse decision,

without putting their case.

MR MASON: Certainly it would be the intention of the

second defendant, if the proceedings stand, for it
to plead by some means the extinguishment, where it
is applicable to the claim. That will be a vast
and, in one sense, perhaps unnecessary task if the
native title turns out to be of a particular sort.

The difficulty is also that different native

titles, perhaps, are affected by different types of

extinguishment. But one has to just do one's best.

We rely upon - - -

HIS HONOUR:  You mean when you come down to leases, for

example?

Coe 20 17/8/93

MR MASON:	Yes, but also a usufructuary native title might be extinguished by a different legislative or
executive act than a possessory native title. But here, the plaintiffs appear to be claiming native title of the same nature as the Meriam people,
which is an exclusive right to possession and
occupation.  I think I have answered Your Honour's
question.

HIS HONOUR:  Thank you, Mr Solicitor. Mr Searl.

MR SEARL:  Your Honour, perhaps if I could just take that

last point first, before turning to my submissions.

Does Your Honour have a copy of our

submissions - - -

HIS HONOUR:	Yes.
MR SEARL:	- - - because it is an important matter of

practice which Your Honour has raised with the

Solicitors. As I understand it, my learned friend

for the second defendant has conceded that the

defendant does bear the onus of proving

extinguishment - - -

HIS HONOUR:  On his reading of the Mabo judgment.

MR SEARL:  Yes, Your Honour. Your Honour would have

observed, in our submissions, that we reach the

same conclusion and we certainly agitate the same

in paragraphs 7, 8 and 9 in particular. Perhaps if

I just go through those briefly. The relationship

of the Wiradjuri Koorie to their land accords with

what must be accepted without real doubt to be the

general relationship of Australian Koorie tribes to

their own land. In our submission, that

relationship founds a presumptive common law native

title or, in the alternative, a traditional native

title. Although most of the passages there refer

to the judgments of Justices Deane and Gaudron and

Justice Toohey, it is possible to glean the same

points from Justice Brennan. It is therefore not an element, in our

submission, of either native title claim that the
plaintiff's native title has not been extinguished,

although the wrongful extinguishment has been

pleaded in the alternative in paragraphs 18 and 19

in the event that that contention is wrong. My

friends then can say, well, you need particulars of the alternative wrongful extinguishment but, in our

submission, the better view is that the onus is on

the defendants to prove by clear and unambiguous

language and/or acts that the native title has been

extinguished. They must negative the strong

assumption of the common law that pre-existing

Coe 21 17/8/93

native title interests were respected and

protected.

Those words, Your Honour, firstly the

presumptive native title, is clearly from the

judgments of Justices Deane, Gaudron and Toohey to which I have referred in the passages. They raise

the assumption that the common law pre-existing

native title interest have been respected and

protected. The only other page reference I should

add to those ones that appear there is a passage at

page 57 of Mr Justice Brennan's judgment which I

have not referred to there, in the last paragraph.

It follows that the onus is on the defendants

to prove the relevant statute and any separate or

individual grants of title pursuant to that statute
in order to prove the extinguishment of title to
defeat the native title claims of the plaintiff.

If the defendants cannot prove that the native

title has been extinguished, then the plaintiff's

legal rights under that title may be enforced.

The other clear message that comes through -

clear principle that comes through from the

passages to which I have referred are that any

deprivation of the property and any deprivation, in

particular, of the native title must be in clear

and unambiguous language.

HIS HONOUR:  But the problem, Mr Searl, quite apart from any

question of onus, is that by making a claim in
respect of lands which must, in a number of

respects, be the subject of extinguishment, the

proceedings become quite unwieldy, particularly if

individual people affected by the claim wish to

assert, as evidently may occur in the Western

Australian proceedings, that they hold a freehold

title. You can see how unwieldy the proceedings

would become by virtue of their inclusion of claims

to so many different parcels of land, all

purportedly at the moment in different ownership.

MR SEARL: Yes, Your Honour. Certainly the practical

difficulties are there, but in relation to the onus question on extinguishment, it is really a question of whether that negativing extinguishment would

form one of the elements of the claim or whether,

in the alternative, that is a matter for the onus

upon the defendant. In either event, the question

Your Honour has raised will be present but, as a

matter of principle - - -

HIS HONOUR:  But in terms of an issue of extinguishment it

is clear enough that the appropriate method, I

would have thought, of resolving it is having an

action that relates to a particular allotment of

Coe 22 17/8/93

land, or particular allotments of land, which are

affected by the same issues.

MR SEARL: No, Your Honour. In my submission, the claim

proceeds from the opposite end. Your Honour would

have observed the affidavit of Dorothy Morgan

referring to annexure A on the writ, the map, so

enclosing the map itself is the annexure A on the

writ and that is precisely the land which has been

claimed in the writ.

HIS HONOUR:  You use the word "precisely", but I think it

may be an abuse of the English language, Mr Searl.

MR SEARL:  If one takes the affidavit of Dorothy Morgan,

though, and the particulars of it, Your Honour

would observe that she swears that that map of

annexure A forms part of annexure A - that is taken

from Professor Tindale's map in Aboriginal Tribes

of Australia which, of course, has far greater

particularity. I take Your Honour's point. One

would certainly require very explicit particularity

in relation to the outer boundaries but the

plaintiff's case is that Professor Tindale, in

formulating his important work on the territory,
environmental controls, distribution limits and

proper names and the areas of Aboriginal tribes,

that he has already done the work in a vast work,

and he outlines with some particularity the

respective claim. Now, the only other alternative

that one could think of, for the purposes of this

particular proceeding, in order to simply have a

very defined outer boundary, Your Honour, would be

this one.

As Dorothy Morgan swears, the Wiradjuri

Regional Aboriginal Land Council is a body which is established pursuant to the Aboriginal Land Rights

Act of New South Wales 1983. In fact, it is the

only tribe or group which has a full area - its own

tribal area for itself. It is the biggest tribal

group in Australia, I am instructed, Your Honour.

It was certainly the most substantial tribal group

to put up the most substantial resistance to any

white settlement, with the effect that the colony

was forced to declare martial law in order to

suppress the Wiradjuri Koories.

Now, pursuant to that Act, there is a map

which defines the Wiradjuri boundaries. Perhaps if

I could hand some copies to my friends and the

Court.

HIS HONOUR:	Thank you.
MR SEARL:	Your Honour, in fact the Tindale map area does

not conform precisely with the area which is given

Coe 23 17/8/93

some statutory recognition under the Aboriginal

Land Rights Act but it may well be that, for the

purposes of greater particularity on this

particular claim, the area which has already been

given statutory recognition, a form of statutory

recognition, and which is governed in part or is

subject to some rules and regulations and functions

of the Wiradjuri Regional Aboriginal Land Council,

including, I might add, the formulation of claims

such as these is one of their statutory functions,

it may well be that this claim ought be narrowed

slightly in its outer boundaries to conform simply

to the area which has already been given the

statutory recognition and then we could leave aside

any additional areas which form part of Tindale's

map because, of course, one is then going to get

into a lack of particularity, and formulate the

claim just simply along those lines. The claim

then is as pleaded, in fact as we have articulated

in more detail in our submissions, along the lines

of the traditional native law title claim and the

common law native title claim, and since this area

is in fact an area produced by the second

defendants, by the State of New South Wales, the

second defendant could then claim, with great

particularity, the areas of that area in respect of

which the second defendant claim there has been a

valid extinguishment in clear and unambiguous

language.

Of course, one must accept in these

proceedings the clear principle outlined in Mabo to
the effect of maintaining the validity of a valid

freehold grant. In fact, in essence, the Torrens

System probably would form part of one of the

skeletons of the legal system, to which His Honour

Justice Brennan referred, and given that under the

Torrens System one has indefeasibility,

irrespective of - - -

HIS HONOUR:  I am not sure that you and Justice Brennan are using the word "skeleton" in precisely the same

sense.

MR SEARLE:  No, we are not, Your Honour. I do not think His

Honour Justice Brennan applied his mind necessarily

to the question of the Torrens System, but if I

extend and use the same language that His Honour

Justice Brennan did, then the claim in respect of

valid freehold title land is not that there was no

extinguishment, given the indefeasibility under the

Torrens System, but it is for compensation for a

breach of the fiduciary duty, as is already pleaded

and as we have outlined in our submissions.

That would be the way, in our submission, to

dissect out, to preserve the valid freehold grants

and also preserve the claim for compensation for

Coe 24 17/8/93

breach of fiduciary duty, because the breach of

fiduciary duty claim, as we have outlined, is a

claim as against the second defendant, not as

against the Commonwealth, is for doing precisely

that. It is for giving away, or invalidly

granting, title to Wiradjuri land.

HIS HONOUR:  Now, I am not clear at the moment as to the

relationship between this map that you handed up

and the map that the defendants have put before me,

nor am I clear as to whether the Land Council

boundaries extend to the River Murray.

MR SEARLE:  Your Honour, I am instructed that the area

extends to the River Murray. Firstly, if one takes annexure A to the writ, if Your Honour observes the

bottom part - one has to invert the map - one can

see the River Murray flowing through and Lake Hume

and Albury are referred to. That is the Tindale

map. I am instructed that the River Murray forms

the border at that point in time of the Wiradjuri

native title land. That is the border there and I

am instructed, Your Honour, that on the Wiradjuri

Regional Aboriginal Land Council boundary map, that

part of the boundary is the boundary which is from

the Tumut Brungle region -

HIS HONOUR: Extending to the south there?

MR SEARLE:  - - - set to the south, which is on the border

of Victoria. There is, Your Honour, a claim by the

Yorta Yorta tribe of Victoria claiming that part of

Victoria extending up to the Murray River, and that

has been filed in this Court, I understand. But

that is the only part, Your Honour, which in fact

does form part of the boundary, on my instructions.

The only point I wish to raise at the moment

is the last point that Your Honour had raised with

my friends concerning extinguishment. Given a

precise area, in my submission, then what would be

required would be for the second defendant, in
particular, to plead any extinguishment.	Now, in

so far as the Commonwealth is in a position to

plead an extinguishment, our submission is that the

Commonwealth would need to plead, not only an

extinguishment or an acquisition of property, but

also that they paid just terms to the Wiradjuri

people. In the absence of the payment of just

terms, the purported acquisition by the

Commonwealth would be invalid under Sl(xxxi) of the

Constitution.

Now, Your Honour, as we apprehend the thrust

of the submissions of the second defendant, they

relate to this notion of the sovereignty and the

sovereignty claims. The sovereignty claims have

Coe 25 17/8/93

been claimed or pleaded separately in paragraphs 6,

7 and 8, going through each of the different levels

of sovereignty, as we put it. My learned friend,

the Solicitor from New South Wales, contends that
the sovereignty claim taints the entire statement

of claim. We reject that proposition, but we also

assert, Your Honour, that this Court does have

jurisdiction in respect of a sovereignty dispute

between the State of New South Wales and the

Wiradjuri people.

This Court, in the Seas and Submerged Lands

Act case, in fact determined questions of sovereignty concerning the State of New South Wales

and the former colony of New South Wales. The

judgments, in particular, of Chief Justice Barwick

and of Justices Jacobs and Murphy, make it quite

clear that - in fact, all of the Judges. None of

the Court refused to consider such a question of
sovereignty. In that case, the Commonwealth

asserted sovereignty and the State of

New South Wales also asserted sovereignty.

The first point to make is that the State of

New South Wales has no external sovereignty. The

colony of New South Wales ceased to exist and, in

fact, this particular claim of sovereignty as

between the State of New South Wales and the

Wiradjuri people, is just as justiciable as any

other extinguished external sovereignty claims.

That is in the sense that only the Commonwealth now does have external sovereignty. Perhaps if I can

take Your Honour to page 372 in the Chief Justice's

judgment at point 5:

On the passage of the Imperial Act, those colonies ceased to be such and became States

forming part of the new Commonwealth.	As
States, they owe their existence to the Constitution which, by ss 106 and 107,
provides their constitutions and powers

referentially to the constitutions and powers

which the former colonies enjoyed, including
the power of alteration of those

constitutions. Those constitutions and powers

were to continue by virtue of the Constitution

of the Commonwealth. But those constitutions

and the powers of the States were subject to

the Australian Constitution. They were not the same as they had been before federation.

The constitutions were continued "subject to

this Constitution".

Now, Your Honour, in my submission, the High Court

has jurisdiction plainly in relation to all

Constitution matters and everything arising

concerning the Constitution. This case, in the

Coe 26 17/8/93

final analysis, in my submission, on the

sovereignty claims, that is the sovereignty claim

in paragraph 6, the sovereignty claim to be a

sovereign domestic dependent nation in paragraph 7,

and a sovereignty claim of self-determination and

self-government under paragraph 8, are all

questions in respect to which this Court does have

jurisdiction.

In my submission, the authorities would merely

go so far as to state that this is not the

appropriate forum to challenge the external

sovereignty of the Commonwealth, but that is not

the same thing as to determine the question of
sovereignty, inter se, and a sovereignty inter se
question, whether between the Commonwealth and the
State of New South Wales or as between the

Wiradjuri nation of peoples and the State of

New South Wales, is justiciable.

HIS HONOUR:  I do not quite understand what you mean by the expression "sovereignty inter se".

MR SEARLE: Internal sovereignty, Your Honour. Perhaps if

one turns to the passage in Justice McTiernan's

judgment at page 376 in which His Honour refers to

the definition of "internal" and "external" in

Wheaton (Elements of International Law):

Internal sovereignty is that which is inherent

in the people of any State, or vested in its

ruler, by its municipal constitution or

fundamental laws.

External sovereignty consists in the

independence of one political society, in

respect to all other political societies. It
is by the exercise of this branch of
sovereignty that the international relations

of one political society are maintained, in

peace and in war, with all other political

societies.

Then, Your Honour, at page 479 in the judgment of

Justice Jacobs, last paragraph, His Honour states:

The first question is the meaning of the

word "sovereignty" in the Act. The word

expresses a concept notoriously difficult of
definition but I would essay that sovereignty under the law of nations is a power and right, recognized or effectively asserted in respect

of a defined part of the globe, to govern in
respect of that part to the exclusion of
nations or states or peoples occupying other

parts of the globe. External sovereignty, so

called, is not mere recognition by other

Coe 27 17/8/93

powers but is a reflection, a response to, the

sovereignty exercised within the part of the

globe. Looked at from the outside, the

sovereignty - I will just pause there. He draws a distinction

and then goes to internal sovereignty at page 480:

Therefore, although a sovereignty among

nations may thus be indivisible, the internal

sovereignty may be divided under the form of

government which exists.

Your Honour will have observed I have referred to

the US authorities, US v Wheeler, and so on and the

Canadian authorities where these types of internal

sovereign relations exist under the auspices of the ultimate sovereign or the external sovereign, being the United States of America and Canada,

respectively.

At page 498, His Honour Justice Jacobs, at

point 5:

There is no gap in the constitutional

framework. Every power right and authority of

the British Crown is vested in and exercisable

by the Crown in Australia subject only to the

Constitution. The State legislatures do not

have that sovereignty which the British

legislature and now the Australian legislature

possess.

And each of the judgments make the point that only

the Imperial Crown had external sovereignty. Of

course, the colony of New South Wales never had

external sovereignty over the seas, as the Imperial

Crown did. His Honour Justice Murphy, at page SOS,

speculated. He said:

If federation had not occurred, this

progression would no doubt have continued.

There might now be six international

personalities, each with_ a territorial sea.

And then at page 506, His Honour Justice Murphy

concluded:

The States have no international

personality, no capacity to negotiate or enter

into treaties, no power to exchange or send

representatives to other international persons

and no right to deal with other countries,

through agents or otherwise. Their claims to

international personality or to sovereignty

are groundless.

Coe 28 17/8/93

Now, Your Honour, with respect to my learned friend

the Solicitor-General for New South Wales, in my

submission, his submissions are misconceived

because, as against the State of New South Wales,

the State of New South Wales has no external

sovereignty. The Wiradjuri nation can plead none

because he has none, nor indeed can the State of

New South Wales even make a treaty with the

Wiradjuri nation. That would be another - - -

HIS HONOUR:  But I do not think that the Solicitor-General

was asserting that, Mr Searle.

MR SEARLE: If Your Honour pleases. But, if Your Honour

pleases, in my submission the claim against the

State of New South Wales cannot simply be dismissed and the claim against the State of New South Wales

cannot be dismissed on the relatively simple basis

that the claim, as against the State of New South

Wales, is one of sovereignty, an issue which is not

justiciable in this Court because, although there

is no Australian authority directly on point, in my

submission, it follows from the Seas and Submerged

Lands Act - and the Court ought to apply the US and

Canadian authorities to which I have referred -

the internal sovereignty, that is the relations of

the internal sovereign of New South Wales and the

peoples of New South Wales, respective groupings of

each people, are all justiciable in this Court.

The Commonwealth became the external sovereign in

1901. That is when the colonies themselves ceased.

So any claim as against the State of New South

Wales in respect of sovereignty, for example, the

claims of sovereign domestic dependent nation,

ought be re-opened.

So it is for those reasons, Your Honour, in

paragraph 14 of our submissions, that we state it

was held but, as my friend the Solicitor-General

has noted, as obiter, that the Crown's acquisition

of sovereignty over the several parts of Australia

cannot be challenged in an Australian municipal

court. This assumption should be reconsidered in

the light of the fact that the principle of
sovereign immunity "advanced by royal sycophants in

England" has been overruled. That, of course, is a

quote from Justice Murphy's judgment in Toohey; Ex

parte Northern Land Council, 151 CLR 230.

The principle of sovereign immunity "advanced by royal sycophants in England" has been overruled.

The jurisdiction of the High Court to try persons charged with genocide, to which I will return in a

moment, pursuant to the international conventions

in Polyukhovich - the court's jurisdiction to

enforce norms of customary law. For those reasons

it ought be reconsidered, Your Honour. Further, it

Coe 29 17/8/93

would be a perverse result if, in the absence of
the first defendant's consent to the jurisdiction
of the International Court of Justice, the

plaintiff has no legal forum in which to litigate

its sovereignty claim; indeed, any of its

sovereignty claims.

So, in our submission, the Constitution does

confer the jurisdiction on this Court.	As to the
power with respect to norms of customary

international law, we refer to the decision in

Polyukhovich v The Commonwealth, at pages 566 to

567 and, in particular,

His Honour Justice Brennan's judgment:

The jurisdiction of the courts of the United

States to try cases of international crime was

founded on the application by municipal courts

of international law. Thus, in an early

American case (United States v Smith noted in

the report of The Magellan Pirates), the

Supreme Court of the United States held that

American common law "recognizes and punishes

piracy as an offence, not against its own

municipal code, but as an offence against the

Law of nations (which is part of the Common

Law), as an offence against the universal law

of society; a pirate being deemed an enemy of

the human race" .

In our submission, this Court ought also adopt that

type of jurisdiction and, in particular,

jurisdiction to enforce norms of customary

international law, and they include the powers

under the convention. Perhaps, if I can refer to

the relevant convention of which I speak: The War

Crimes and Crimes Against Humanity, including
Genocide, Convention expressly provides, in

Article VI, that the persons charged with genocide or any of the other acts enumerated in Article III,

shall be tried by a confident court of the State in

the territory of which the act was committed. Your Honour, as against the second defendant,

the relevant articles in Article II:

Genocide means any of the following acts committed with intent to destroy, in whole or

in part, a national, ethnical, racial or

religious group, as such:

(a) Killing members of the group .....

(e) Forcibly transferring children of the

group to another group.

Coe 30 17/8/93

Now, Your Honour, they are acts of genocide. They

are alleged to be acts of genocide committed by the

the convention, and it has jurisdiction in that it ought enforce norms of customary

second defendant against the plaintiff's people. under

international law.

One then turns to pages 661 to 663 of

Polyukhovich, the judgment of

His Honour Justice Toohey. His Honour refers to universal jurisdiction, war crimes and crimes

against humanity:

Whether the rationale for the

universality principle lies in the proposition

that those committing certain offences lose

their jurisdiction, or whether it lies in the

fundamental nature of the crime - its

particular gravity and heinousness, there

appears to be general agreement that war

crimes and crimes against humanity are now

within the category subject to universal

jurisdiction.

And His Honour expands on that over to page 663.

The particulars pleaded referable to genocide

relate, virtually, from the very first contacts of

the white colonizers with the Wiradjuri nation.

The Wiradjuri people had formed an identifiable

community of people in the area which we have

pleaded, in annexure A to the writ, for tens of

thousands of years. The colonizers were aware of

them and, in the beginning, gave them gifts, gave

them trinkets, and discussed matters quite

amicably. But slowly and inevitably -

HIS HONOUR:  We are only concerned with whether or not the

claims are tenable, Mr Searle.

MR SEARLE: If Your Honour pleases. Perhaps if I just hand

to Your Honour and to my friends a copy of the

Proclamation of Martial Law by Governor Brisbane.

In our submission this highlights, in a sense, the hypocrisy of the colony on the one hand purporting

to assert that the country was terra nullius and

thereby acquiring beneficial ownership of the land, but at the same time declaring martial law so as to

attempt to suppress the Wiradjuri people and kill

them off. The fourth paragraph:

And whereas, by Experience, it hath been found that mutual Bloodshed may be stopped by

the Use of Arms against the Natives beyond the ordinary Rule of Law in Time of Peace, and for

Coe 31 17/8/93

this End Resort to summary Justice has become

necessary.

The history of that resort: summary justice is

plain enough. That is the first type of act of
genocide pleaded in respect of which, we submit,

this Court has jurisdiction, and the others then

are the subsequent ones pleaded in paragraph 9(h).

The various Acts passed by the colony of

New South Wales and then the State, are all those

Acts which had the effect of, and did, take

Wiradjuri children from their parents.

In our submission, as a matter of

jurisdiction, the Court has jurisdiction in respect

of those alleged crimes. The Court also has

jurisdiction in respect to the claim of

sovereignty, and that is why we state, in

paragraph 14, that the general notion which can be

seen from Mabo, but perhaps it proceeds on a

different basis, that you simply cannot challenge

sovereignty, ought be reconsidered by this Court.

We say it would be much the same thing if there

were a dispute between Tasmania and Victoria as to

the ownership of Flinders Island or the sovereignty

of Flinders Island, in so far as they have internal

sovereignty.

We say it is the same thing if Adolf Hitler

was still alive and the Commonwealth, or the State,
wished to try him. The municipal court would have

jurisdiction to try any person charged with an act

of genocide.	We say the same thing of the
Cambodian regime, and so on.	We say, a fortiori,

Your Honour, in respect of one of our own States of the Commonwealth. Even more importantly, where the

allegation is that one of our States of the

Commonwealth has breached a norm of customary

international law, this Court ought accept

jurisdiction.

My learned friend raised a notion that in some

way this is just a political claim. These are not
political claims, these are realistic, serious,

legal claims brought by a group of people who,

following the landmark decision of this Court in

Mabo, have seen that they do finally have some

rights recognized by this Court.

My learned friend's contention that this is an attempt to put political pressure on politicians is not correct. This is an attempt to have the

legitimate claims of the Wiradjuri people agitated
in the proper forum. In our submission, the

material which the Solicitor for New South Wales

puts before the Court, more tends to prove that it

is the politicians and the representatives of the

Coe 32 17/8/93

defendants who have wrongly characterized and

criticized the decision in Mabo, than it is of any

Wiradjuri group.

There is, included in the newspaper articles

that my friend relies on, a reference to

Premiers Court and Kennett, and there is an express

quote from a Commonwealth Minister of the Crown,

Mr Collins, stating to the effect that it is easy

for the High Court, in their ivory tower, as he

says, that is if I quote him properly. He says,

"The High Court, in its splendid ivory tower

judgment isolation, has handed down a judgment

which us poor mortals that are running around on

the ground have got to deal with"~ and then follows

a reference to Premiers Court and Kennett.

As has been well known and, indeed, as

Your Honour has observed recently, after the many

years of pleading, and, in fact, 13 years of
pleading in Mabo, the Commonwealth were not present

and they chose not to agitate the issues.

HIS HONOUR:  But that does not help the resolution of these

issues.

MR SEARLE:  Your Honour, the essence of the decision - my

instructions are, Your Honour, that there is far

more concern, far more concern on the part of my

instructors, that there is some sort of an attempt

to influence this Court by the representatives of

the defendants.

HIS HONOUR:  You can rest assured, Mr Searle, this Court is

proof against attempts by anyone to influence it

outside the course of proceedings in the - - -

MR SEARLE:  Certainly, Your Honour. The critical passage in

Mabo appears in the judgment of Justice Brennan,

from pages 41 to 42, with reference to land claims,

and the landmark decision in general. His Honour,

with reference to terra nullius, at the bottom of

page 41, held:	If it were permissible in past centuries to
keep the common law in step with international
law, it is imperative in today's world that
the common law should neither be nor be seen
to be frozen in an age of racial
discrimination.

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.

Coe 33 17/8/93

His Honour then refers to Southern Rhodesia and

says:

Whatever the justification advanced in earlier days for refusing to recognize the rights and

interests in land of the indigenous

inhabitants of settled colonies, an unjust and

discriminatory doctrine of that kind can no

longer be accepted. The expectations of the

international community accord in this respect

with the contemporary values of the Australian

people.

Now, Your Honour, there were howls of derision from

the press, the premiers and various officers

against Justice Brennan for -

HIS HONOUR: Again, I am not concerned with that.

MR SEARLE: If Your Honour pleases. Those are the

principles which we seek to have maintained in this

Court, that is, non-discriminatory and just policy

and equal treatment to the Wiradjuri's as with

other people. It may well be that, as has been

speculated, there is a possibility of legislation
of discriminatory kind, or even of a referendum to

attempt to give the people of Australia an attempt

to try to prove that they are racist.	But the only
basis upon which we proceed - - -

HIS HONOUR:	But I think you would do better to confine your submissions to the legal issues, rather than
venture into this area.
MR SEARLE:	If Your Honour pleases. Now, if I can return

then, having dealt with those submissions of my

friends, to the commencement of the pleadings of

our submissions. In our submission, it cannot be

the case that in this case one should rely on the

decision in Coe when the foundational basis, for

the decision in The Commonwealth v Coe, has all
been overturned.	The foundational basis being, in

particular, Cooper v Stuart and the foundational
basis that the doctrine of terra nullius was
overturned.

Although the majority in Coe v The Commonwealth were able to rely on those

authorities, in particular, Your Honour, the

judgment of Justice Gibbs at page 128 and 129, His Honour refers to the fundamental method of settlement being by terra nullius, and that has

been overturned. His Honour, at line 33, refers to

Cooper v Stuart, and that has been overruled.

His Honour, at lines 45 to 50, referred to the

decision of Mr Justice Blackburn in Milirrpum v

Nabalco, which was also not followed in the

Coe 34 17/8/93

decision in Mabo. Indeed, one could say, and we

submit, that with the benefit of hindsight, were

the original co-litigation to be on foot today, it

would not have been struck out, leave to amend

would have been granted, and the very issues which

were then subsequently agitated some 13 years later

in Mabo would have been agitated on - - -

HIS HONOUR:  Mr Searle, the Solicitor for New South Wales

relies on the passage at the foot of 128, not on

the passages at 129.

MR SEARLE:  Yes, Your Honour. The passage that my learned

friend refers to from the judgment of Justice Gibbs

- Justice Gibbs is referring at page 388, in fact,

to his own judgment in dissent in New South Wales v

The Commonwealth. I have already addressed Your

Honour on New South Wales v The Commonwealth and,

in particular - - -

HIS HONOUR:  Yes, but there was no disagreement between

Justice Gibbs in Seas and Submerged Lands and the

majority on that particular point.

MR SEARLE:  Your Honour, the difficulty is that there is a

lack of particularity in that paragraph with
reference to the question of sovereignty, which is

not alluded to by Justice Gibbs in

Coe v The Commonwealth, nor in his dissenting

judgment in New South Wales v The Commonwealth, but

which is alluded to by the Chief Justice, and by

Justice Jacobs and Justice Murphy in the passage to

which I have taken Your Honour.

HIS HONOUR:  Yes.

MR SEARLE:  And, indeed, in so far as that proposition would

stand as good law, the proposition, in our

submission, only extends to the external

sovereignty and to the right of the Crown to the

acquisition of radical title only. And that would be to two acts: one would be to the acquisition of

radical title and not beneficial on

7 February 1788, and the second would be to any

acquisition of external sovereignty by the

Commonwealth on the passing of the Imperial Act,

the Constitution Act.

In our submission, Mabo (No 2), correctly

construed, is to the same effect. It speaks only
of radical title. It does not deal with the
question of internal sovereignty or a domestic
sovereign nation status.

I have referred in paragraph 3 to the decision of Chief Justice Barwick in General Steel

Coe 35 17/8/93

Industries, that there is a heavy onus on the

plaintiff. At page 129:

The test to be applied has been variously

expressed:  "so obviously untenable that it

cannot possibly succeed"; "manifestly

groundless"; "so manifestly faulty that it

does not admit of argument"; "discloses a case
which the Court is satisfied cannot succeed";

"under no possibility can there be a good

cause of action"; "be manifest that to allow

them" (the pleadings) "to stand would involve

useless expense".

At times the test has been put as high as

saying that the case must be so plain and
obvious that the court can say at once that
the statement of claim, even if proved, cannot

succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable

argument";

Then His Honour refers to the judgment of

Mr Justice Dixon in Dey v Victorian Railways

Commissioners. In our submission, even the claims

of sovereignty of the plaintiff do not satisfy

those tests, they are matters which ought to be

reopened. Then at paragraph 4 we turn to the

elements to establish traditional native title.

The elements are quite simple, Your Honour, that

simply the existence of an identifiable community

or group, the Wiradjuri Koories; secondly, a

traditional connection with or occupation of the

land and then a substantial maintenance of that

traditional connection. That is, as

Mr Justice Brennan, in particular, put it at

pages 59 to 60 with which Your Honour and

Mr Justice McHugh agreed at page 15. Hamlet of

Baker Lake was much relied on as well.

The alternative claim, though, seems to be

different. Mr Justice Toohey deals with the

different claims at great length and discusses the

appeals book at length, is that to found a

presumptive common law native title, they are the

existence of an identifiable community or group; an
established entitlement of the group to the

occupation or use of particular land; and the

entitlement to occupation or use must establish a

locally recognized special relationship between the

group and that land. A traditional interest could

result from established and recognized occupation

and use by a tribe of particular land for purposes

such as the obtaining of food.

Coe 36 17/8/93

In our submission, those elements have been

pleaded in paragraphs 2, 3 and 8 of the statement

of claim, although inelegantly. In essence, the

substance of the claims is similar and they ought
not be required to be pleaded separately.

Your Honour, one ought observe as well the ..... for native title, both traditional native title and

common law native title arises - has to be

considered on 7 February 1788. Your Honour, there

would seem to be no argument at all that it was not

for some three decades after 7 February 1788 that

there were any colonial presence at all of any

substance on the Wiradjuri lands.

I have read paragraph 7 and I have read paragraph 8 and 9 on the extinguishment. So, in

our submission, the claim is a simple one which can

be set up in simple terms as of 7 February 1788.

We make the point in paragraph 10 that Aboriginal

reserves and native parks do not extinguish native

title, nor does legislation concerning minerals and petroleum or pastoral leases, but of course, in our

submission, on the analysis that we have gone

through in paragraphs 7, 8 and 9, which the

Solicitor-General for the second defendant seems to

concede, that the onus is on the second defendant

to show a correct, valid, extinguishment on clear

and unambiguous terms.

The map of the particular land claimed by the

plaintiff, which forms part of annexure A in the

writ herein is traditional Wiradjuri land, has been

confirmed as same by Professor Norman B. Tindale,

"Aboriginal Tribes in Australia", who produced the

original map; and is the land in respect of which

the Wiradjuri Regional Aboriginal land Council has power pursuant to the provisions of the Aboriginal

Land Rights Act. Your Honour, there are some

differences, though, in relation to that land, as I

mentioned to Your Honour in the first instance

between the map in annexure A, which is the claim,

and the Wiradjuri Regional Aboriginal Land Council	in respect of which the Land Council has rights,	functions and powers under the Aboriginal Lands
Rights Act.

HIS HONOUR:	But what do you say about the defendant's contention that the description of the lands does
not provide a continuous boundary with the result
that there are not closures.  You have suggested
that perhaps the land might be redescribed with a
view to coinciding with the boundaries of the Land
Council territory, but it is a question that needs
to be resolved.
MR SEARLE:	Your Honour, there are two points we make as to that: the first point is that lands claimed in the

Coe 37 17/8/93

writ, which is described as annexure A is precise,

does have a boundary and is an annexure. This is

the reference to the particular material from which

it came. It is a very precise land. Our second

point, Your Honour, is that in other cases where

this matter has been agitated, for example, in the

Hamlet of Baker Lake, much relied on by the High

Court, it was stated there at page 514, that is

107 DLR 513, by Justice Mahoney at page 514:

The plaintiffs assert an existing aboriginal

title over an undefined portion of the

Northwest Territories of Canada including

approximately 78,000 square kilometers around

the community of Baker Lake. That specified

area is hereafter called the "Baker Lake

Area". The boundaries of the Baker Lake Area

coincide with the boundaries of the lands

withdrawn from disposal under the Territorial

lands Act.

And then the basis of the decision was that

albeit that the particular assertion was over an

undefined portion of the Northwest Territories, the court was still able to grant the relief sought, in fact make a grant of native title in respect of

that - - -

HIS HONOUR:  But was there any suggestion of inconsistent

interest there, in that remote area of land?

MR SEARLE: There is no suggestion of inconsistent interest

here of anyone who is a party.

HIS HONOUR:	No, but that, in a sense, begs the question.
MR SEARLE:	Our submission is that the map in annexure A,

incorporated by reference to the source, which is

Professor Norman Tindale's book, he particularized

at great length the precise boundary - the map is

in fact very precise and is precisely the area

which is sought. The affidavit of Dorothy Morgan

states the source and, if it pleases Your Honour,

if Your Honour considers the affidavit of

Bruce Robert Miles as well, he annexures as

annexure G the schedule of the land in great

particularity and this comes from Tindale,

Your Honour.

Annexed hereto and marked with the letter "G"

is a Schedule of Wiradjuri Land detailing

counties and parishes covered by the map of

Professor Tindale forming part of annexure

HA".

So it is all those counties and parishes. In relation to the question, though, of separate

Coe 38 17/8/93

interests, if one takes the definition from

Professor Tindale who itemizes precisely the counties and parishes, the second defendant in his pleading could particularize precisely all freehold grants, or he could simply incorporate by reference

what is registered. We accept, Your Honour, that

what is registered at the Titles Office confers

indefeasibility of title, irrespective of whether

the second defendant, in effect, had any power to
grant it initially, because that is the cornerstone
of the Torrens system. So my friend need not even
particularize in his defence the extinguishment

more than, in effect, particularizing the

registered freehold titles.

I have referred at paragraph 11 to the

affidavit of Dorothy Morgan but it should include

the affidavit of Mr Miles, to which I have

referred. Then there is the reference to the

Aboriginal Land Rights Act, that is based on the

provision to which I referred Your Honour before.

1981 Select Committee Report of Aborigines of New

That is the statutory function of the Wiradjuri

Regional Aboriginal land Council to prepare land

claims.

My learned junior has just drawn my attention to the passage in Justice Mahoney's judgment in

Hamlet of Baker Lake, it appears at page 516, where
His Honour says:

I am conscious that, throughout the statement of claim, the term "Baker Lake Area"

is used to embrace a broad, undefined

territory inclusive of the defined area to

which I have applied. I saw no need to be

meticulous about that distinction in the
foregoing summary.

That was a broad undefined area but, in our submission, the instant area is defined with

reference to Professor Tindale's map, which

incorporates the schedule, the express counties and
parishes which are the subject of the Wiradjuri
land area according to Professor Tindale, which the

plaintiff accepts and agitates for the purpose of

these submissions. In paragraph 15 we submit that

in the alternative the Wiradjuri claim is that the

plaintiff is entitled - - -

HIS HONOUR:  What paragraph is this?

MR SEARLE: Paragraph 15. In paragraph 14 I have taken

Your Honour through the general sovereignty claim.

HIS HONOUR:  Yes.

Coe 39 17/8/93

MR SEARLE:  In the alternative the Wiradjuri claim is that

the plaintiff is entitled to self-government and

full rights over its traditional lands and all

rights concerned with the right to self-

determination. A "domestic dependent nation" has a

settled legal meaning and is not vague and

unintelligible. The authorities to which we have

referred - in fact on the previous page I should

have referred Your Honour to Wheeler, which is the

last case on the previous page, I did not take

Your Honour to on sovereignty, US v Wheeler, the

citation there is not correct, although it is on

the list of authorities. It is in (1978) 435 US at

page 328 to 330. His Honour concludes in paragraph

D:

The conclusion that an Indian tribe's

power to punish tribal offenders is part of

its own retained sovereignty is clearly

reflected in a case decided by this Court more

than 80 years ago, Talton v Mayes.

Then His Honour holds at page 330:

The respondent contends that, despite the

fact that successive tribal and federal
prosecutions are not "for the same offence,"
the "dual sovereignty" concept should be
limited to successive state and federal

prosecutions. But we cannot accept so

restrictive a view of that concept, a view

which, as has been noted, would require a

disregard of the very words of the Double

Jeopardy Clause.

His point is that as a dual sovereignty concept for the purpose of these submissions.

The next relevant authority should be Cherokee

Nation v State of Georgia, (1831) 30 US 178, at

181. That appears at paragraph 15 of our

submissions where the court held: 

The Indians are acknowledged to have an

unquestionable, and heretofore, an

unquestioned, right to the lands they occupy,

until that right shall be extinguished by a

voluntary cession to our government. It may

well be doubted, whether those tribes which
reside within the acknowledged boundaries of

the United States can, with strict accuracy,

be denominated foreign nations; they may more

correctly, perhaps, be denominated domestic
dependent nations. They occupy a territory to

which we assert a title, independent of their

will, which must take effect, in point of

possession, when their right of possession

Coe 40 17/8/93

ceases - meanwhile, they are in a state of

pupilage; their relations to the United States

resemble that of a ward to his guardian;

I am instructed I have missed a passage. That is

the only passage from Cherokee National v Georgia.

In Wheeler, as well, just to return there, it was

said at page 327:

It is true that in the exercise of the powers

of self-government, as in all other matters,

the Navajo Tribe, like all Indian tribes,

remains subject to ultimate federal control.

And at 328 the Court says:

But none of these laws created the Indians' powers to govern themselves and the right to

punish crimes committed by tribal offenders.

Indeed, the Wheeler-Howard Act and the Navajo-

Hopi Rehabilitation Act both recognized that

Indian tribes already had such power under

"existing law".

And then the conclusion:

The conclusion that an Indian tribe's

power to punish tribal offenders is part of

its own retained sovereignty is clearly

reflected in a case decided by this Court more

than 80 years ago, Talton v Mayes.

So, it is the reference, Your Honour, to a retained sovereignty or an inherent right which is relevant.

It is in that sense that we agitate certainly a

jurisdictional claim. Then I have referred to the

United States v Kagama, 118 US 375 at page 381 to

382. But firstly, Your Honour, it should be

observed, as with our Constitution, at page 378 in

Kagama, the court noted that:

the government which was established by it to	almost silent in regard to the relations of The Constitution of the United States is
the numerous tribes of Indians within its borders.

The mention of Indians in the

Constitution which has received most attention

is that found in the clause which gives

Congress "power to regulate commerce with

foreign nations and among the several States,

and with the Indian tribes."

That is the constitutional clause. The court,

at page 379, asks whether the Indian tribes were

Coe 41 17/8/93

foreign nations and concludes that they were not a

State or nation. Then the court, at page 381 held:

Following the policy of the European

governments in the discovery of America

towards the Indians who were found here, the

colonies before the Revolution and the States

and the United States since, have recognized

in the Indians a possessory right to the soil

over which they roamed and hunted and

established occasional villages.

Then, at the bottom of the page:

They were, and always have been, regarded as having a semi-independent position when they

preserved their tribal relations; not as

States, not as nations, not as possessed of

the full attributes of sovereignty, but as a

separate people, with the power of regulating

their internal and social relations, and thus

far not brought under the laws of the Union or of the State within whose limits they resided.

Perhaps the best statement of their

position is found in the two opinions of this

court by Chief Justice Marshall in the case of

the Cherokee Nation v Georgia and in the case

of Worcester v State of Georgia.

I did quote, Your Honour, a passage from

Chief Justice Marshall in Cherokee Nation v

Georgia.

In the first of the above cases it was

held that these tribes were neither States nor

nations, had only some of the attributes of

sovereignty, and could not be so far

recognized in that capacity as to sustain a

suit in the Supreme Court of the United

States. In the second case it was said that

they were not subject to the jurisdiction

asserted over them by the State of

Georgia .....

In the opinions in these cases they are

spoken of as "wards of the nation", "pupils",

as local dependent communities. In this

spirit the United States has conducted its

relations to them from its organization to

this time.

HIS HONOUR:  But it is not suggested that they are not

subject to the laws of congress and the laws of the

States.

Coe 42 17/8/93

MR SEARLE: Correct, Your Honour, yes. Just that they are

subject to those laws, but they are declared to be

a domestic dependent nation, or a sovereign

domestic dependent nation, the expressions are

used. They are subject to the overriding

sovereignty of the United States, they are also

subject to the laws of the relevant State.

HIS HONOUR:  You are suggesting, are you, that paragraph 7

of the statement of claim is to be read in the

light of the United States authorities?

MR SEARLE: Yes, Your Honour.

HIS HONOUR:  Going back to paragraph 6, the allegation that

they are a sovereign nation of people, does that

stand in the same light or is that an independent

and separate allegation?

MR SEARLE:  Your Honour, that is an independent and separate

allegation. This Court could only rule that any

such sovereignty is subject to the sovereignty conferred on the Commonwealth by virtue of the Constitution of Australia.

HIS HONOUR:  Yes.

MR SEARLE: But there is such a sovereignty. Again, from US

v Wheeler, the Chief Justice Marshall, at page 326

His Honour refers to a divestiture of some parts of

their sovereignty and then says:

These limitations rest on the fact that

the dependent status of Indian tribes within

our territorial jurisdiction is necessarily

inconsistent with their freedom independently

to determine their external relations. But

the powers of self-government, including the

power to prescribe and enforce internal

criminal laws, are of a different type. They involve only the relations among members of a

tribe.

necessarily be lost by virtue of a tribe's Thus they are not such powers as would

dependent status.

It is that sense that a sovereignty, or a form of

sovereignty, is still asserted.

HIS HONOUR:  What is the meaning of paragraph 8, which is

pleaded as an alternative to 6 and 7?

MR SEARLE: Paragraph 8 does not use the domestic dependent

nation language, paragraph 8 only asserts the right

of self-determination without particularizing that

status. It does not use the language of either

sovereignty, internal sovereignty, or domestic

dependent nation status, simply that they are free

Coe 43 17/8/93

and independent and entitled to possession of those

rights and interests. It is of a lesser standard,

it is an alternative and of a lesser standard than

a declaration that the Wiradjuri are a domestic

dependent nation. I should add, Your Honour, that

in pretty well all of the relevant United States

authorities the fact of integration of the tribe

into the community has been of no consequence.

HIS HONOUR:  Yes. But, I do not at the moment understand

what is the significance of saying that they are a

free and independent people. What particular

rights, or status, attach to the assertion that

they are a free and independent people?

MR SEARLE: That is language which we glean from a number of

determination.

the decolonization conventions at the United

HIS HONOUR:  I follow that is the source of the language,

but how does it bear upon the claim that they are

entitled to the possession of certain rights and

interests?

MR SEARLE:	In our submission, in order to give effect to Article 2 of the Declaration on the Granting of
Independence to Colonial Countries and Peoples,
which is the type of declaration we speak of, the
declaration itself provides in Article 2:

All peoples have the right of self-

determination. By virtue of that right they

freely determine their political status and
freely pursue their economic, social and
cultural development.

The right, in effect, would give some status to the internal rights and laws within the

community, rights and laws concerning their own

internal relationships - the sacred sites, their

own marriage, internal rights and customs to punish

one another, which would give a lawful status to

their right to punish one another. It does not

prevent the Crown in the right of the State of the

Commonwealth from separately punishing that person.

There would be no plea of double jeopardy, in fact

that was the issue raised in US v Wheeler, but it

does then give a lawful status to such rights.

It would give a lawful status to the manner in

which they would regulate the land to which the

Court would declare that they are entitled as between themselves - their movement from campsite

to campsite along the rivers and their marital

customs. It would move the customs of the people

from being merely customs to being internal laws

Coe 44 17/8/93

among themselves which would be recognized and it

would be recognized that they do have such a right.

Your Honour, of course this proposition is not

new. I have referred, in our submissions - perhaps

if I continue in the submissions at paragraph 16:

the word "nation" in this context means "a people

distinct from others", Worcester v State of

Georgia. A domestic dependent nation cannot

alienate the land which they occupy outside the
native system, otherwise than to the sovereign -

that appears from the US authorities as well, Your Honour - and cannot enter into direct or

governmental relations with foreign nations,

Worcester v State of Georgia. Domestic dependent

nations retain the powers of autonomous sovereign

states to manage their internal affairs, and can

only lose those powers if they are surrendered by

specific treaty provisions, US v Wheeler, or if

they are expressly terminated by legislation.

Provided that a people continues to maintain

some degree of organization of their internal

affairs, they may still be considered to have

retained their identity as a domestic dependent

nation where their members live together with non- members in integrated communities, are eligible to

vote in city, county and state elections, hold

elective and appointed state and local offices and

have equal access to all services provided by state

and local governments. The US treaties with the

Indian tribes reduce the power which the domestic dependent Indian nations would otherwise have.

I have referred to the authorities for that

proposition. Your Honour, the case of Reg v

Bonjon, 1841, from the New South Wales Supreme

Court, it is an unreported decision of

Mr Justice Wheeler, so I am not sure if that has

been raised before Your Honour before, but this was

a decision of Justice Willis of the Supreme Court,

sitting - - -

HIS HONOUR:  Have you got a copy of that?

MR SEARLE: Yes, Your Honour, I do have a copy of that.

Perhaps if I just read the passage. They are much

sought after copies, these. This was a case in

which Bonjon was an Aboriginal native who was

indicted for the murder of another native and

His Honour Mr Justice Willis referred in depth to

the original Aboriginal customs which permitted

such a killing. His Honour held, this is at

page 152:

Coe 17/8/93

There does not appear to be any specific

recognition in this commission of the claims
of the aborigines, either as the sovereigns or

proprietors of the soil: although it is in

the recollection of many living men that every

part of this territory was the undisputed
property of the aborigines. Whether the
sovereignty thus asserted within the limits
defined by the commission of his Excellency

the Governor legally excludes the aborigines,

according to the law of nations, as

acknowledged and acted upon by the British
Government, from the rightful sovereignty and

occupancy of a reasonable portion of the soil, and destroys their existence as self-governing

communities so entirely as to place them, with

regard to the prevalence of our law among

themselves, in the unqualified condition of reduced them to the state of dependent allies,

still retaining their own laws and usages

subject only to such restraints and qualified
control as the safety of the colonists and the
protection of the aborigines required ..... is

the point upon which the present question

mainly rests ..... "Colonies", says Mr Clark, in

his summary of Colonial Law, and stated at the

bar by Mr Barry, "are acquired by conquest, by

cession under treaty, or by occupancy. By

occupancy, where an uninhabited country is
discovered by British subjects, and is upon

such discovery adopted or recognised by the

British Crown as part of its possessions. In

case a colony be acquired by occupancy (he

adds) the law of England, then in being, is

immediately and ipso facto in force in the new

settlement." He further states, "New South

Wales and Van Diemen's Land were acquired by

discovery or simple occupation. New South

Wales was not, however, unoccupied, as we have

seen, at the time it was taken possession of

by the colonists, for a body of the aborigines

appeared on the shore, armed with spears,

which they threw down as soon as they found

the strangers had no hostile intention." This

being the case, it does not appear there was

any conquest; and, it is admitted there has

hitherto been no cession under treaty.

Protectors, indeed, have recently been

appointed, and certain lands set apart, by

order of Government, within this district, for
the location of the aborigines; but no more.

This colony, then, stands on a different

footing from some others, for it was neither

an unoccupied place, nor was it obtained by

right of conquest and driving out the natives,

nor by treaties.

Coe 46 17/8/93

Then His Honour goes on to conclude:

I repeat that I am not aware of any express

enactment or treaty subjecting the aborigines

of this colony to the English colonial law;

and I have shown that the Aborigines cannot be

considered as foreigners in a kingdom which is

their own. From these premises, rapidly

indeed collected, I am at present strongly led

to infer that the aborigines must be

considered and dealt with, until some further

provision be made, as distinct, though
dependent tribes governed among themselves by

their own rude laws and customs.

So His Honour held that they were distinct

dependent tribes, governed among themselves by

their own rude laws and customs, and on that basis

His Honour ordered an acquittal. I hand a copy of

that to Your Honour. It has been referred to

sometimes but difficult to obtain.

In our submission, it is within the

jurisdiction of the High Court to determine whether

a group of people who have formed part of the

Commonwealth of Australia are entitled to self-

determination, as indeed His Honour Justice Willis

did in that case. This is because of a different

argument at paragraph 19, the right of self-

determination has attained the status of a

peremptory norm of general international customary

law as a result of the inclusion of the right of

self-determination in the human rights conventions.

this is an alternative submission, Your Honour,

from paragraph 19. In particular, both the

International Covenant on Civil and Political

Rights and the International Covenant on Economic

Social and Cultural Rights contain Article 1(1)

that:

All peoples have the right of self-

determination.	By virtue of that right they
freely determine their political status and
freely pursue their economic, social and cultural development.
Although I have referred there to the judgment

of Justice Brennan at page 42, he has of course

left that question more open in that passage. He

simply referred to those conventions and referred

to:

The opening up of international remedies to

individuals pursuant to Australia's accession

to the Optional Protocol to the International

Covenant on Civil and Political Rights brings

to bear on the common law the powerful

Coe 47 17/8/93

influence of the Covenant and the

international standards it imports.

The right of self-determination, being a peremptory norm of general international customary law, forms

part of the domestic law of Australia without any

specific act by the defendants. As such, it should

be applied by municipal courts including the High

Court of Australia. The act of State doctrine is
dependent upon the sovereign's conduct being in

conformity with international law, as the Nuremberg

trials show. I believe I took Your Honour to the

passages in the judgments of Justice Brennan and

Justice Toohey in Polyukhovich earlier in my

submissions.

It is an international norm that the subjection of peoples to alien subjugation,

domination and exploitation constitutes a denial of

fundamental human rights. I is also an

international norm that all peoples including the

Wiradjuri Koories, in our submission, have a right

to self-determination and, by virtue of that right,
to freely determine their political status and to

freely pursue their economic and cultural

development. We add in parentheses, of course,

Your Honour, that is subject to the constraints of

the Commonwealth Constitution.

The prayer for relief has jurisdiction. The

prayer for relief sought is expressed in

paragraphs Band c. The declaration is a

declaration that the Wiradjuri people are a

domestic dependent nation, entitled to self-

government and full rights over their traditional

lands and a declaration that the Wiradjuri people

are entitled to the possession of those rights and interests, including rights and interests of land.

I have taken Your Honour to Polyukhovich. Trendtex is familiar to Your Honour, and Bonjon I took Your

Honour to.

The next cause of action pleaded is the claim

for reparations for acts of genocide and other

crimes against humanity inflicted on the plaintiff.

I have already taken Your Honour to a lot of this

material. There is a reference in Dietrich and

also the reference by President Kirby in Jago, but

Your Honour is familiar with them. In paragraph 24

I have referred to articles 2(a) and (e) of the

convention and also to the jurisdiction of

municipal courts in that convention.

The particulars in paragraph 9 of the statement of claim particularize the acts of

genocide relied on by the plaintiff. That plainly,

Your Honour, is a pleading exercise. In

Coe 17/8/93

paragraph 9 the word "PARTICULARS" should be whited

out because they are really the particular acts,

but it is plain enough what is meant.	I have taken
Your Honour to that legislation.	Of course, in our

submission, none of the acts of genocide were done

on the basis of authority.

There could not have been any authority,

anyway, on the basis of the principles in the

Nuremberg trials, but Phillip's instructions

expressly provided that Phillip live in amity and

kindness with the natives and that they not be

subjected to any unnecessary interruption in the

exercise of their several occupations. So the acts

of which we speak were done without lawful

authority, but they could not have been lawfully

committed, anyway. In other words, Your Honour, in

our submission, no nation, no colony, has the right

to allow people to commit murder.

I have referred to the principle of

intertemporal law: requires all acts and
situations be judged in accordance with the

international legal norms in force at that time.

The first two citations are relevant for that. The

dynamic interpretive approach, Your Honour, would

require the evolution of international law to be

taken into account. Then the next two cases in

paragraph 26, the Advisory Opinion Concerning

Namibia and the Agean Sea Case (Greece v Turkey),

that would require the Court to adopt a dynamic

interpretive approach to take into account the

evolution of international law. In our submission,

the same result is reached; that is the same

result.

It follows from the principle of intertemporal

law, or, if one wishes, the dynamic interpretive

approach as it applies to the non-prohibiting acts

of genocide, that the legislation and acts done

pursuant to the provisions thereof are acts of

genocide and also murder is an act of genocide.

For that matter, Your Honour, in our submission,

the declaration of martial law was an act of

genocide and acts done pursuant to it were.	In the
Laws of Australia with which Your Honour is

familiar, at paragraph 1.7.8 - it is outlined in

the Laws of Australia, volume 1, Aborigines, that
the dynamic interpretive approach would lead to

precisely the same result. In our submission, the

Court does have jurisdiction.

The alternative in paragraph 29 concerns

Article VI. I have taken Your Honour to that

already. That is an express source of power. The

breach of the fiduciary duties - and the heading

should be "BREACH OF THE SECOND DEFENDANT'S

Coe 49 17/8/93

FIDUCIARY DUTIES".	The passages in Mabo are quite
clear enough authority.	Where traditional native

title or common law native title exists, the legal

interest in the traditional rights is in the Crown

and the right of the second defendant and the

beneficial interest in the rights is in the
plaintiff. In that case a fiduciary duty

obligation is imposed on the second defendant as a

constructive trustee.

Your Honour, my learned friend took

Your Honour to a passage in Justice Toohey's
judgment and asserted that it was wrong.
Your Honour would be aware - at page 60

Justice Brennan left open the question of whether

there is a fiduciary duty. He simply said:

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, but it is

unnecessary to consider the existence or

extent of such a fiduciary duty -

Justices Deane and Gaudron at page 113 deal with

the matter in terms of remedial constructive
trusts. At point 4 they say:

Indeed, the circumstances of a case may be such that, in a modern context, the

appropriate form of relief is the imposition
of a remedial constructive trust framed to

reflect the incidents and limitations of the

rights under the common law native title. The

principle of the common law that pre-existing

native rights are respected and protected

will, in a case where the imposition of such a

constructive trust is warranted, prevail over
other equitable principles or rules to the

extent that they would preclude the

appropriate protection of the native title in

the same way as that principle prevailed over

legal rules which would otherwise have

prevented the preservation of the title under

the common law. In particular, rules relating

to requirements of certainty and present

entitlement or precluding remoteness of
vesting may need to be adapted or excluded to
the extent necessary to enable the protection
of the rights under the native title.

Justice Toohey dealt with the matter from page 199,

in particular at page 200, point 2:

Coe 50 17/8/93

The factors giving rise to a fiduciary

duty are nowhere exhaustively defined. There

are certain kinds of relationships -

He quotes Your Honour's judgment in the Hospital

Products Ltd case.	Then at the bottom of page 200,
the last paragraph:

The defendant argued that there is no

source for any obligation on the Crown to act
in the interests of traditional titleholders
and that, given the power of the Crown to
destroy the title, there is no basis for a

fiduciary obligation. This can be answered in

two ways. First, the argument ignores the

fact that it is, in part at least, precisely

the power to affect the interests of a person
adversely which gives rise to a duty to act in
the interests of that person; the very
vulnerability gives rise to the need for the

application of equitable principles. The

second answer is that the argument is not

supported by the legislative and executive

history of Queensland in particular and of

Australia in general.

He refers to the policy of protection. Then

His Honour refers to Guerin's case at page 202, to

which I will take Your Honour in a moment.

Your Honour did ask my learned friend whether the

Canadian authorities dealt with this question of

fiduciary duty, and they do in quite some detail,

and Guerin is the leading case.

HIS HONOUR:  What I asked was whether or not the Canadian

authorities dealt with the proposition stated by

Justice Toohey, where he was talking about the

exercise of a legislative power by the Parliament

but, before you deal with that, is it not clear

that Justice Brennan is talking about the

possibility of a fiduciary obligation existing

where indigenous people surrender their customary

title in the expectation that they are going to get

something?

MR SEARLE: Yes, Your Honour.

HIS HONOUR:	That is the only circumstance in which His Honour is contemplating the possibility of a
fiduciary obligation arising. Likewise, I would
have thought it is clear that in the joint judgment
of Justice Deane and Justice Gaudron at the page to
which you referred me, Their Honours are clearly
contemplating that there can be an extinguishment
of customary rights without there corning into existence any breach of a fiduciary obligation.

Coe 51 17/8/93

MR SEARLE: Yes, Your Honour, Their Honours contemplate

that. Their Honours really do not deal with the

precise point raised here concerning the fiduciary

duty for representations.

HIS HONOUR:	Mabo (No 2) is inconsistent with the existence of a trust relationship or a fiduciary relationship
of the kind that has been recognized in the United States. That is how I read it at the present time.
MR SEARLE:	Your Honour, in my submission, it would be more

appropriate to conclude that Mabo did not consider

the precise point sought to be raised here.

Justice Toohey dealt with it at length.
Justice Brennan only dealt with a fiduciary duty in

the very narrow area which Your Honour has raised,

and Justices Deane and Gaudron had also only raised

it in relation to quite a narrow - - -

HIS HONOUR:  But it is significant that they have raised it

only in that narrow context. To raise it in that

narrow context only points to a conviction that it did not arise in the broader context which you are

seeking to identify at the present time.

MR SEARLE: Yes, Your Honour, and in fact it is also correct

to say that even Justice Toohey only referred to it

in the sense of a fiduciary duty arising precisely

at the point of a dissection of the legal and

beneficial interests, that is on 7 February 1788.

Your Honour addressed a question to my learned

friend, the Solicitor, concerning the

representations. In paragraph 13 what is alleged

is that there is a representation by conduct

otherwise to the Wiradjuri nation that they

recognized and continue to recognize the title and

the personal and usufructuary rights and the

Wiradjuri laws. What is more, the heading

"PARTICULARS" should be omitted, but the acts are

fairly clear as to what is alleged. That does not

seem to have been a matter which was precisely

raised, although Justice Toohey deals with that at

the Supreme Court of Canada in Guerin's case. At	greater length. At page 202 His Honour refers to
point 7:

"The fiduciary relationship between the

Crown and the Indians has its roots in the

concept of aboriginal, native or Indian title.

The fact that Indian Bands have a certain

interest in lands does not, however, in itself

give rise to a fiduciary relationship between

the Indians and the Crown. The conclusion

that the Crown is a fiduciary depends upon the

further proposition that the Indian interest

in the land is inalienable except upon

surrender to the Crown."

Coe 52 17/8/93

Then at page 203, the third line:

Be that as it may, if the Crown in right

of Queensland has the power to alienate land

the subject of the Meriam people's traditional

rights and interests and the result of that

alienation is the loss of traditional title,

and if the Meriam people's power to deal with

their title is restricted in so far as it is

inalienable, except to the Crown, then this

power and corresponding vulnerability give

rise to a fiduciary obligation on the part of

the Crown. The power to destroy or impair a

people's interests in this way is

extraordinary and is sufficient to attract

regulation by Equity to ensure that the

position is not abused. The fiduciary

relationship arises, therefore, out of the

power of the Crown to extinguish traditional

title by alienating the land or otherwise; it

does not depend on an exercise of that power.

His Honour then looks at the course of dealings and

concludes that given the course of dealings, those

courses of dealings "would certainly create such an
obligation". Because of the establishment of

reserves, appointment of trustees, protectors and

so on, we say it applies equally in this case.

HIS HONOUR:  It may be that Justice Toohey drew more out of

Guerin than the judgments in Guerin actually yield,

because my recollection is - and I do not pretend

it is now accurate; I would have to read Guerin

again - that the erection of the fiduciary

relationship in Guerin was largely founded on the

pre-existing statutory regime and, before that, the

proclamation.

MR SEARLE: With respect, I have Guerin here. At page 376

Justice Dickson held:

The fiduciary relationship between the

Crown and the Indians has its roots in the

concept of aboriginal, native or Indian title.

The fact that Indian Bands have a certain

interest in lands does not, however, in itself
give rise -

and that is then the passage to which I have just

referred. Then he goes on to refer to Calder.

Firstly he deals with the existence of the title in

Calder and then at page 383, he commences a

passage, "The Crown's Fiduciary Obligation":

The concept of fiduciary obligation

originated long ago ..... In the present appeal

its relevance is based on the requirement of a

Coe 53 17/8/93

"surrender" before Indian land can be

alienated.

So he is speaking of the concept of a surrender at
the point of time prior to alienation. If
anything, it arises just prior to the time which
has been the common ground for the purpose of

accepting freehold title and compensation or

whatever. It arises from the proposition that

there must have been a surrender of the native

title in order for the Crown to alienate the title.

His Honour seems to fasten upon it there. Then the passage which I am sure Your Honour had in mind

appears at page 384. Firstly, he refers to this

quote and then speaks of it:

[Where there is a fiduciary obligation] there

is a relation in which the principal's

interests can be affected by, and are

therefore dependent on, the manner in which the fiduciary uses the discretion which has

been delegated to him. The fiduciary

obligation is the law's blunt tool for the

control of this discretion.

I make no comment upon whether this

description is broad enough to embrace all

fiduciary obligations. I do agree, however,

that where by statute, agreement, or perhaps

by unilateral undertaking, one party has an

obligation to act for the benefit of another,
and that obligation carries with it a

discretionary power, the Farty thus empowered

becomes a fiduciary. Equity will then

supervise the relationship by holding him to

the fiduciary's strict standard of conduct.

That would have been the passage to which

Your Honour has correctly referred.

HIS HONOUR:	Yes.
MR SEARLE: That is an agreement that where there is a

statute agreement or perhaps a unilateral

undertaking, the one has an obligation to another.

Our claim is based as much on unilateral

undertaking as anything else and, in the statement

of claim, on the representations. So that if one

goes to paragraph 13, one has the various

acceptances, the unilateral undertakings, in

paragraph (b) all of these Aborigines Protection

Acts, the establishment in paragraph (c) of the

welfare boards, the reserve lands and so on. In

our submission, all of those particulars as pleaded

are capable of giving rise to a fiduciary duty as

defined by His Honour Mr Justice Dickson. For the

purpose of this submission, in our submission, that

Coe 54 17/8/93

is as far as we need to go. They are capable of

giving rise to a fiduciary duty owed by the second

defendant to the plaintiff.

Your Honour, I am just instructed - I think I

made this clear before - paragraph 6 as pleaded

pleads the sovereignty. That is a claim by the

Wiradjuri people for external and internal

sovereignty. We have discussed the law with

reference to external sovereignty and the
Constitution, but it is a claim for sovereignty.

In our submission, the claim for sovereignty is

open and available. It is based on the Seas and

Submerged Lands Act.

In our submission, the way we put paragraph 6

is much the same as the way that section 10 of the

Seas and Submerged Lands Act read, that is that the

Commonwealth asserted sovereignty with no

definition of what it meant. Chief Justice Barwick

and Justice Jacob, in particular, referred to the

fact that sovereignty was not a precise term, "We

don't know what it means." There is a claim for

sovereignty but they say then you have to define

the sovereignty with reference to the context and

with reference to the Acts. But there is a claim

for sovereignty, and our submission is that by

virtue of the Court's jurisdiction referable to

internal sovereignty, it is open to the Court - the

Court does have jurisdiction in this case to either

declare the sovereignty or otherwise.

HIS HONOUR:  You did make it clear earlier that it was a

distinction between paragraph 6 and paragraphs 7

and 8, that they are to be read in a sense as

claims in descending order.

MR SEARLE: Yes, claims in descending order. Then I turned

to the jurisdictional elements to say: the Court

having jurisdiction over all these areas, the Court

also has jurisdiction in respect of external

sovereignty. I was just reminded that perhaps I

have not made that point clear, and I have done so. The fiduciary duties paragraph: in

paragraph 31 I have referred to Mabo and Guerin's case, and I will not take Your Honour through any

more of those.

We assert that the fiduciary duty owed to the Wiradjuri Koories was breached by the defendants

dispossessing the Wiradjuri people of their land

and alienating the Wiradjuri lands. So, in

paragraph 15 - in fact, we allege that there are a

number of breaches of the fiduciary duty. So, we

assert that the duty can arise even by the

unilateral acceptance or by the representation and

Coe 55 17/8/93

we assert that there has been a breach of those

duties by the displacement of the Wiradjuri people

from their land by dispossessing them from their

land and alienating the Wiradjuri land.

Our assertion is that it is arguable. It may

be easy enough for my learned friend to contend

that Justice Toohey was not correct but, in our

submission, it may have just as well have been said

in Coe's case or, originally, that Justice Murphy

and Justice Jacobs were incorrect, there may be a

minority view, but our principal point is that this

type of claim, based on a Guerin-type claim,

founded and supported by Justice Dickson of the

Supreme Court of Canada, is arguable. One cannot

simply look at that claim of fiduciary duty and say it could never possibly succeed however pleaded and

however amended, or whatever. One could not say

that this is an unsustainable argument.

In my submission, the Crown ought allow, in

fact, even in accordance with their fiduciary duty

which is continuing, the plaintiff to agitate that

claim in this forum. I have contrasted Phillip's

instructions with Mabo and the passage from Kagama.

I did not quote Kagama at page 381 - I am just

trying to get my learned junior to pick up the

passage.	I may have the wrong page reference to
it.

The appropriate remedies in respect of the

breach of fiduciary duty of dispossessing the

Wiradjuri people from their land are to grant a declaration that the Wiradjuri people are entitled

to possession of their native title. Where same is

not possible, to award compensation or damages.

For example, where the native title has been

extinguished by a grant of freehold to a third

party, to award compensation and damages for breach

of the fiduciary duty.

reference to page 381 should read 384 of Kagama. In paragraph 32 of our submissions, the

The court held in Kagama:

They -

the Indian tribes -

are communities dependent on the United

States. Dependent largely for their daily

food. Dependent for their political rights.

They owe no allegiance to the States, and

receive from them no protection. Because of

the local ill feeling, the people of the

States where they are found are often their

deadliest enemies. From their very weakness

Coe 56 17/8/93

and helplessness, so largely due to the course

of dealing of the Federal Government with them

and the treaties in which it has been

promised, there arises the duty of protection,

and with it the power. This has always been

recognized by the Executive and by Congress,

and by this court, whenever the question has

arisen.

In our submission, that principle to be taken from

Kagama imposing a duty of protection would impose a

duty of protection in the instant case on the

second defendant, because it is the second
defendant alone which even existed during the

19th century when most of the breaches occurred,

and it was the second defendant alone which had the

power to deal with the Wiradjuri people who were

dependent upon the second defendant. Moreover, in

my submission, the Court ought declare the

existence of the fiduciary duty.

We had taken Your Honour to the top of

page 203 of Justice Toohey's judgment. At the top

of page 204 His Honour held:

Thus, the fiduciary obligation on the Crown,

rooted in the extinguishability of traditional title, is in the nature of the obligation of a constructive trustee.

His Honour refers to Guerin. Then at page 204

His Honour Justice Toohey goes on from point 5:

And on the other hand, a fiduciary is under a

duty not to act for his or her own benefit or

for the benefit of any third person. 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.

His Honour holds then at page 205, point 3:

in the present case, extinguishment or

impairment of traditional title would not be a

source of the Crown's obligation, but a breach

of it.

A fiduciary has an obligation not to put

himself or herself in a position of conflict
of interests. But there are numerous examples

of the Crown exercising different powers in

different capacities. A fiduciary obligation

on the Crown does not limit the legislative

power of the Queensland Parliament, but

legislation will be a breach of that

Coe 57 17/8/93

obligation if its effect is adverse to the

interests of the titleholders, or if the

process it establishes does not take account

of those interests.

Then in the interim summary, in so far as is

relevant:

that extinguishment would involve a breach of

a fiduciary obligation owed by the Crown to

the Meriam people; but that extinguishment of

that title has not occurred.

Then His Honour holds:

It should be noted that the plaintiffs

seek no more than recognition of a fiduciary

duty or a trust; they do not ask the Court to

spell out the consequences of a breach of that

duty or trust.

In the instant case we also seek a declaration of the existence of the fiduciary duty but go further

and seek orders concerning the consequences of the
breach of the duty.

Your Honour, we had summarized concerning paragraph 24 the propositions concerning

acquisition of property on just terms. We do not

press that against the Commonwealth for the reason

that, on our construction of the principles, if a

native title arises, then the Commonwealth could
only commit a certain act by extinguishing that

native title and if it did so, it could only

acquire property on just terms. If it did not

provide the just terms, the purported acquisition

would be invalid, and that has been so held often

enough.

So on that basis, we do not press the actual

acquisition of Commonwealth title, but we stress

purporting to set up an acquisition of the	that if, in the course of the Commonwealth
plaintiff's property, they must have done so on
just terms, otherwise the purported acquisition
would be invalid. But that would be a matter for
reply.

HIS HONOUR: 

What do you mean by "a matter for reply"?

for native title or common law title, the Crown
alleges in its defence - if there is any piece of
land my friend says is one army base or something
of that nature, we acquired this army base by

MR SEARLE: 

Your Honour, if the cause of action is a claim

virtue of such-and-such an Act, in its defence.

That could be an extinguishment of the native title

Coe 58 17/8/93

but the Commonwealth's power to acquire that

property is circumscribed by its power to do so

only on just terms. So if the plaintiff then looks

at the Commonwealth's defence and says, "They say
they've applied this piece of property and this is

where they gave the just terms", that would be the end of it; the extinguishment would have occurred.

HIS HONOUR:	There must be a beginning of it apart from an end of it. In your particulars you have listed a
number of Commonwealth statutes. Are you asserting
that these Commonwealth statutes do not provide for acquisition on just terms?
MR SEARLE:	Your Honour, we do not press paragraph 24, so perhaps it is best if I leave it.

HIS HONOUR:  I was going to say: it seems to me if you are

not pressing paragraph 24, we can regard

paragraph 24 as out of the case altogether.

MR SEARLE: Yes, Your Honour. Finally, the revocation of

native title inconsistent with the Racial

Discrimination Act, which have sought to extinguish Wiradjuri title

this of course is also a claim

only as against the second defendant.

since the passing of the Racial Discrimination Act

are invalid by reason of their inconsistency with

that Act. The right to be immune from arbitrary

deprivation of property is also a human right and a

norm of customary international law.

In our submission, we have argued, pleaded,

the relevant Acts including the Crown Lands

(Validity of Revocations) Act, and in the

particulars we have expressly referred to the

Erarnbie Reserve which, on my instructions, was a

Wiradjuri reserve for many, many years and

wrongfully purportedly extinguished. In so far as

the (Validity of Revocations) Act would purport to

have the effect of validating any State Crown

title, possessory title or beneficiary title, to the Erarnbie Reserve, we contest it. In our	submission, any such claim would be inconsistent
with the Racial Discrimination Act and similarly with other Wiradjuri reserve land set out in the Aboriginal Reserves in New South Wales, New South
Wales Ministry of Aboriginal Affairs paper.

HIS HONOUR:  Mr Searle, we will adjourn now and resume at

2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

Coe	59	17/8/93
UPON RESUMING AT 2.15 PM:

HIS HONOUR:  Yes, Mr Searle.

MR SEARLE: If Your Honour pleases, as Your Honour had

anticipated just before lunch, I shall not be long.

The rest of the submissions from paragraph 13 under

the heading of "General", are really some general

submissions, some of which I have already canvassed

and they speak for themselves. They do not really

require any elucidation. In the event that the

Court wishes to give consideration to the court to

which the hearing of the claim ought be remitted,

the plaintiffs have suggested that the Federal

Court is a more appropriate forum but that

presupposes Your Honour's decision, and the

submissions there do really speak for themselves.

So, I do not propose, unless there is any

particular element of those that Your Honour wishes

me to expand on - - -

HIS HONOUR:  No.

MR SEARLE:  I should not deal with that and repeat that. My

learned friend, Mr Mason, had raised the question
of representative claims, and at least in relation

to the Mabo-type claim, or the common law native

title claim and the traditional native title claim,

I draw your attention to Mr Justice Brennan's

judgment at pages 61 to 62; the last two lines

of 61:

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 protection or

their entitlement to possession may be

enforced by a representative action brought on

behalf of the people or by a subgroup or

individual who sues to protect or enforce
rights or interests which are dependent on the

communal native title.

In my submission, this representative procedure is

the appropriate course of action to adopt in

relation to the native title claims. In relation

to enforcement of norms of customary international

law and acts of genocide, and so on, in my

submission those types of claims and the breach of

fiduciary duty, they are so interrelated with the

native title claim that the same type of

representative action ought be brought.	The United
Nations convention in Article 6 does not	specify
any type of claim or how an action is to	be

Coe 60 SEARLE 17/8/93

brought. Naturally that would be a matter for the

Court by its rules, but where the claim is against

the State, in my submission it is not inappropriate
that the claim be brought as part of these

proceedings, because all of the matters are so

interrelated.

Penultimately, my learned friend, Mr Mason,

had suggested that the predominant purpose of this

claim was untenable, and my submissions this

morning - our submissions and my submission - show

that the claims are not untenable, they are clearly

arguable, even each of the sovereignty claims in

their different layers, albeit that it is a matter

for the Court to determine the characteristics of
sovereignty and whether that extended from the
highest through to domestic dependent nation or to

the mere rights of self determination, they are

within the jurisdiction of the Court.	So, they are
not clearly untenable claims.

My learned friend, Mr Mason, had also

suggested that this claim was some sort of

political statement against the High Court and,

with respect, that is something which we reject

absolutely. This is not a political statement
against the High Court. We support the High Court

and its judgment in Mabo and our submissions ought

illustrate that and, in my submission, there is

nothing to the contrary. Those submissions are

arguable.

My learned friend, the Commonwealth

Solicitor-General, had drawn attention to the fact that this day there have been the oral concessions,

as it were, referable to the types of causes of

action pleaded against the Commonwealth, they, in

effect, relating only to native title, common law

native title, and the sovereignty claims. In the
event that Your Honour does not strike out or stay

absolutely any of those claims, then, in our

submission, the appropriate course would be to

grant leave to the plaintiff to amend the statement

of claim, to amend the claim in respect of those

matters in respect of which Your Honour has not

struck out, and a month ought be sufficient for

that, although perhaps two months could be used.

But our principal thrust, Your Honour, is that

there is no part of the claim which Your Honour

ought at this time strike out, and there is no part
of the claim which Your Honour ought stay.

Your Honour ought consider that our submissions our

highly arguable and Your Honour ought consider

that, given the interrelated nature of each of the

claims, even the claims in paragraphs 6 to 8, ought

not be struck out at this stage. They ought be the

Coe 61 17/8/93

subject, perhaps, of the amended statement of claim

of which I speak. Those are our submissions, if

Your Honour - - -

HIS HONOUR:  Now, Mr Searle, ~there are questions I wanted to

ask you. The statement of claim does refer on

occasions to native title being wrongfully

extinguished: .

MR SEARLE:	Yes, Your Honour.
HIS HONOUR:	Now, what do you seek to convey by that?
MR SEARLE:	Your Honour, on any amended statement of claim -

and in my submission the amendment ought be in

lines of the submissions that we have made to the

Court - that is to the effect that we should only set up the native title claims - both traditional

native title and common law possessory native title

claims - and on our submission, and based on a

concession from the second defendant, that is that

there is a reversed onus of proving extinguishment,

it is not necessary, in fact, to plead a wrongful

extinguishment, what would really be in issue would

be whether, as a result of the defences, there has

been an extinguishment. If there has been one,

then the native title claim in relation to those

areas where the native title has been extinguished

would fail, but there may be consequential effects,

as was outlined in the statement of claim on the

breach of fiduciary duty.	Our claim would be that
in relation to wrongful extinguishment	- on reply,

it would be necessary then, in relation to any

"wrongful extinguishment" to plead, or to claim

that there had been - that damages ought be

awarded - compensation.

HIS HONOUR:  I am not sure what is meant by the concept of

"wrongful extinguishment". I can understand that

there either is extinguishment that is valid, or
there is no extinguishment, but what is meant by

"wrongful extinguishment"?

MR SEARLE: Your Honour, I do not seek to further press

those paragraphs to which Your Honour speaks, the

"wrongful extinguishment" in relation to native

title, because on our submissions the correct

analysis - - -

HIS HONOUR: That would be paragraph 16, would it?

MR SEARLE: Yes, Your Honour. As Your Honour observed, that

can be related to fiduciary duty; to the breach of

fiduciary duty - - -

HIS HONOUR:  Yes, well that was the other question I wanted

to ask you, because there are these claims for

Coe 62 17/8/93

damages or compensation for breach of duty. Now, what is the breach of duty that is referred to in

that context. Is that breach of fiduciary

obligation alone?

MR SEARLE:  Yes, Your Honour.

HIS HONOUR: It is?

MR SEARLE: Breach of fiduciary obligations alone, yes,

Your Honour.

HIS HONOUR:  Now, coming back then to "wrongful

extinguishment"; you have said that you do not

press that. Now, does that mean you are not

pressing paragraph 16, for example?

MR SEARLE:  Not in relation to native title pleading, no;

only, as Your Honour had observed, in relation to

breach of fiduciary duty and breach of fiduciary duty which could lead to compensation or damages

for the breach of fiduciary duty, but on our
analysis of the judgments in Mabo, it is not for

the plaintiff to purport to plead either a

"wrongful extinguishment" or a purported

extinguishment and then disprove the

extinguishment. The onus would be on the defendant

to prove the extinguishment, and that would

extinguish native title.

HIS HONOUR:  Now, in the same paragraph 16 you refer to

"George III and his successors" having "a Sovereign

duty to protect the rights of the Wiradjuri nation

and" having "failed to do so". Now what is the

duty referred to there; is that fiduciary duty

again, or not?

MR SEARLE:  The only duty referred to, or that ought to have

been referred to, is the fiduciary duty owed by the

second defendant.

HIS HONOUR:

And likewise in 19, that again is limited to

breach of fiduciary duty, is it?

MR SEARLE: Yes, Your Honour. Your Honour, in defence of

the pleaders, of which I was not one, I draw your

attention to paragraph 8 of the submissions and the fact of the requirement that this claim be provided

within 21 days without an extension.

HIS HONOUR:  Yes. Now, coming back to paragraph 15, there

is there an allegation of breach of a trust
obligation and breach of the fiduciary duty; now,

are they distinct?

Coe	17/8/93
MR SEARLE:	Your Honour, in Mabo, the language of

constructive trust and fiduciary duty tend to be

used -

HIS HONOUR:  In the joint judgment of Justice Deane and

Justice Gaudron.

MR SEARLE:  Yes - tends to be used interchangeably and also

in the Canadian case, I think, in Guerin.	But it
is the same trust relationship.

HIS HONOUR:  Yes, in other words you are not relying on, as

it were, separate foundations to support the

allegation of trust obligation and the allegation

of fiduciary obligation?

MR SEARLE:  No, Your Honour, no - not separate foundations.

The existence of the fiduciary duty gives rise to a constructive trust.

HIS HONOUR:  Yes but, as I understand it, you are

essentially relying on the foundations identified

by Justice Toohey in his judgment, in order to

erect a fiduciary duty and, I gather from what you

have just earlier said, the trust obligation as

well?

MR SEARLE: Yes, Your Honour, but more particularly, there

are two elements of it: one is that, as pleaded in

paragraph 13, the representations and acceptance of

the duty, and the second is the mere dissection, or

split-up, of the legal and beneficial ownership -

or title to the land which occurred on 9 February

1788. But, other than those, it is the same trust

relationship which continues.

HIS HONOUR:  Yes, thank you.

MR SEARLE: If Your Honour pleases.

HIS HONOUR:  Thank you, Mr Searle. Mr Solicitor for New

South Wales.

MR MASON:  Your Honour, in paragraph 14 of the plaintiff's

outline, there are three matters offered to justify

the reconsideration of the holding of this Court in

Mabo (No 2). Not only are those matters themselves

untenable, in our submission, but they are all
matters which, if they existed, predated that very

holding. So, on any normal analysis of the Court's

power to reconsider an earlier decision, there is

no prospect that that would occur in any event.

Some reference was made to some passages in

the Seas and Submerged Lands case, to the
discussion about internal and external sovereignty,
and it was said that the Court there asserted

Coe 64 17/8/93

jurisdiction to determine a sovereignty dispute
between the State and the Commonwealth, therefore,

why not a sovereignty dispute between the

plaintiffs and the present defendants? What is at

issue here is not so much the jurisdiction of the

Court, but the tenability of the particular claim

that the plaintiff wishes to bring. In the Seas

and Submerged Land case, what was at issue was the

validity of a federal statute, and ultimately the

adverse impact upon the States of the Federal

Constitution, something that occurred in 1901.	The
plaintiff's claim in the present case asserts

rights deriving from 1788 and rights which seek to,
in effect, put a third player into the Australian

Federal polity, namely Commonwealth, States and, at least, the Wiradjuri people and presumably, on my

friend's argument, any other native group or tribe

and, in our submission, there is no support for

that in the Seas and Submerged Lands case at all.

The reference to the genocide convention has

no relevance to this case and provides no basis for

the claims that are made. This is not a criminal

case. There is nothing in the genocide convention

that establishes a right to sue a body politic for

what is described in this statement of claim as

"reparation" - see prayers for relief I and L.	The
plaintiffs are suing for damages, or reparation,

said to accrue in their favour - or in her favour -

which we dispute against the two named defendants, arising out of wrong actions done by others in the

past, which we would dispute.

We do not concede that the discussion about

the description of the lands affected has clarified

or removed our difficulties, although I hope I had

indicated clearly enough that that certainly is

seen as a remediable defect of the pleading. The

map, which is annexure A to the statement of claim,

is still far too vague in indicating with reference
to parishes, counties and other matters, what

exactly are the outer boundaries of what is

claimed.

HIS HONOUR:  Now, I take it that the map that you and the

Solicitor have placed before me is a map that gives effect to the description in the annexure to the

statement of claim?

MR MASON:  No. It gives effect to the verbal description in

paragraph 2, particular (b) of the statement of

claim.

HIS HONOUR: That is right, yes.

MR MASON:  And I think I am right in saying that there is

some difficulty in reconciling the verbal

Coe 65 17/8/93

description and the map which it gives rise to with

the map that is annexed to the writ. There

certainly is difficulty in reconciling it with some

of the later material that has been put forward in the annexure to Mr Miles' affidavit, in matters of

detail with which I will not trouble Your Honour

but - - -

HIS HONOUR:  Has anyone attempted to compile a map that

gives effect to the description by reference to

counties and parishes?

MR MASON:	If you are talking about annexure G to Mr Miles' affidavit, yes, on my instructions, the Department
of Conservation and Land Management has endeavoured
to do that, and has determined that some of the
parishes appear to fall outside of the annexure A
map, even giving it, as it were, a fairly liberal
interpretation.
HIS HONOUR:	Yes.
MR MASON:	The domestic dependent nation concept is, in our submission, a peculiarly American doctrine, which
derives in large part from the recognition in the
American Constitution of the Indian tribes.
Article 1, section 8, clause 3, arms the Congress with power to regulate commerce with foreign
nations, and among the several States and with the
Indian tribes. It was upon this foundation and
another, which I will come to very shortly, that the American doctrine has been developed, in our
submission. I have handed to Your Honour an
extract from the latest edition of Nowak and
Rotunda and invite your attention to page 131, the right-hand column, headed "Commerce with American
Indian Tribes".  The other consideration is the one
referred to in footnote 8, that part of the reason
for the court assigning a dependent sovereign
status to the Indian tribes:

was the Court's desire to remove the states'

ability to control or exploit the Indian

tribes.

In other words, a matter that is peculiar to the

early constitutional development of the American

republic.

In Mabo (No 2) in the judgments of

Justices Deane and Gaudron at page 90 and

Justice Dawson at 135 and 163 and 7, there is some

discussion of the Cherokee Nation principle, and of

the dependent nation concept as it developed in

American law. In the joint judgment Their Honours

referred to there being some support in the decided

cases for the proposition that executives should

Coe 66 17/8/93

not unjustly dispossess native people; that support

coming from some cases in the United States where,

they said, ttspecial constitutional and historical

considerations arguably applytt.

So, we would submit that there is not the

constitutional or historical basis upon which to

erect this doctrine. But more importantly we would

submit that the pleading does not invoke it, and in

this regard it would appear that, in one sense,

history is repeating itself, because I would refer
Your Honour to Your Honour's remarks in the earlier

Coe decision, 52 ALJR 334, at 335, letter Gin the right-hand column, because in those proceedings there was a claim for sovereignty. In case

Your Honour does not have it, I have a photocopy of

it.

HIS HONOUR:  Thank you.

MR MASON:  It is the last two main paragraphs on the right-hand column of 335. What I am saying goes to

paragraph 8 of the statement of claim, where there

seems to be anything but a claim of dependency. A

further problem we would advance with respect to

those paragraphs as reformulated orally by my

learned friend, those paragraphs being 7 and 8, is

to ask rhetorically: what does it mean? What is
the utility of seeking declarations as sought

there? In a sense I am a free and independent

person; surely I could not seek a declaration

against one of the governments to that effect.

There must be some context in which the claim is

made.

We had read the context as being a sovereignty context and, in my submission, that is still a

proper reading of the statement of claim. But if

it is to be read as something less; if it leads

nowhere than to prayers for relief Band C, where

there are declarations that the Wiradjuri are a

domestic dependant nation entitled to

self-government and full rights over their

traditional lands, save only the right to alienate

them to whoever they please, we maintain the

position that that is a form of claim to

sovereignty, although it may not be unbridled

sovereignty, but if we are wrong about that, we say

that it is not a helpful declaration because one

just does not know what the ultimate purpose of the

declaration is; where it goes and how it

establishes their position to be different to any

other group within the Australian community.

Turning to the claims for breach of fiduciary

obligation, my learned friend referred to a passage

in the judgment of Justices Deane and Gaudron, at

Coe 67 17/8/93

page 113 in Mabo (No 2). In our submission, what

Their Honours are addressing there is the use of the constructive trust as a remedy in support of native title, not as providing any support for a

claim for damages or compensation, referable not to

a native title claim, but to what has been

described as a breach of fiduciary duty claim.

The only two judgments that discuss that

matter are the judgment of Justice Toohey, to which

Your Honour has been taken, and the judgment of

Justice Dawson. He discusses it at pages 163 to

167, where there is a discussion about the Cherokee

case and Guerin v Reg. It was His Honour's view,

and we submit correctly, at page 165 point 7, that

the decision in Guerin v Reg depends, as a step

towards the fiduciary duty, upon the establishment

of a native title, and it was the acts of the Crown
in short-changing the Musqueam band in a property

dealing, referable to their own native title, that

amounted to a breach of the fiduciary duty. It

does not provide any support for the principle that

there can be a fiduciary duty sounding in

compensation, separate from an established native

title. It is certainly true that in the judgment

of Justice Toohey there is.

Our complaint about the pleading referable to

breach of fiduciary duty does not, as it were,

assail Justice Toohey's approach. It accepts that

facts have been pleaded that could, if His Honour

is correct - which, at least for the purpose of

this exercise, we do not contest - could establish

that some fiduciary obligation arose in the past.

Rather, the complaint is the particulars of breach

of that fiduciary obligation that the pleading

assigns. Because when one reads the pleading, what

is said to be the breaches of fiduciary duty are

either the crimes that are said elsewhere to be

genocide and the like, committed by persons in the

past, or the passing of legislation and otherwise

valid acts pursuant to the exercise of legislative

powers, and it is there that we submit that the

plaintiff has made an untenable claim.

One is sent back to paragraph 9 to see what

the particulars of the breaches are, as I read the
pleading, and some of those particulars, as framed,

have no reference to the second defendant in whom

the fiduciary duty is said to rest. Others relate

to legislation which could not, on any view, in our

submission, constitute breach of fiduciary duty, or

to administrative acts pursuant to legislation,

which are not otherwise said to be invalid

administrative acts, again, which could not, in our

submission, represent a conceivable breach of

fiduciary duty.

Coe 68 17/8/93

There is still the problem, which I do not

believe my friend has offered an answer to; namely
that even accepting all of those matters, whence
comes the right for this plaintiff to recover

damages or equitable compensation for these

breaches committed in the early 19th century by

people physically in New South Wales.

Two remaining things: this afternoon my

friend reformulated, as it were, paragraphs 17 and

19 of the statement of claim and said, in so far as

he alleges unlawful extinguishment, paragraph 17,

or unlawful issue of freehold title, that is to be

confined to the breaches of fiduciary duty. The

plaintiff bears the onus on that limited basis, and
on that basis it is the plaintiff to say what acts
of extinguishment, and to particularize those acts
of extinguishment, amounted to an unlawful breach

of fiduciary obligation. So, on that basis, it

would appear that the plaintiff does have to, in

our submission, assay the task of identifying

particular acts.

HIS HONOUR:	On that aspect of its claim?
MR MASON:	On that aspect of the claim, because there may be

questions of limitations; there may be ques~ions of

consent; there may be questions of lawfulness.	A
whole range of issues will need to know what

particular actions are relied upon in order to know

what breaches and consequences flow from it.

As to the question of the onus on acts of

extinguishment referable to what I will call

traditional Mabo title, it may well be that that

will be an academic issue, and I noted what my

friend said, in effect, that he is willing to try

and engage in some method that will enable the

questions of principle to be determined, without

having to say as to each and every block of land

that was issued pursuant to the Torrens Act that

matter down the track, as it were, if we go that was issued pursuant to this Act, but that is a far.

Finally, Your Honour, on the question of

remitter, in our submission the second defendant

opposes remitter to the Federal Court. The

question of an appropriate place to remit, if there is remitter, is of some significance. I appreciate

that if the action stays, Your Honour will be

remitting somewhere, but the matter of remitter,

not having been raised until my friend's

submissions today, the appropriate course would be

not to determine that matter at this stage.

Coe 69 17/8/93

HIS HONOUR:  Yes. Obviously, the current applications have

to be dealt with in the first instance and I would

not go beyond disposition of the current

applications at the present time.	Mr Solicitor for
the Commonwealth?

MR GRIFFITH:  Your Honour, we have read with interest this

decision of Bonjon in 1841, Justice Willis.

Your Honour, it seems the clerk took the notes of

the decision and it is reported on the second page:

Mr Croke replied in a rather lengthy speech -

and then in parenthesis - - -

HIS HONOUR:	You are not threatening me with that, are you?
MR GRIFFITH:	- - - from His Honour's clerk:
(We think it unnecessary to occupy more space
with the addresses of counsel, as his Honor's
decision was prepared and settled on before
coming into court at all; therefore, whatever
opinions or arguments delivered by either
counsel must have been futile, and only listened to as a matter of form.]

HIS HONOUR: Well, I can assure you, I have not settled on

an answer to these applications before sitting,

Mr Solicitor.

MR GRIFFITH:	Your Honour, then there is a reference to extracting "the kidney fat" for someone, so I think
I had better move on very quickly before something
like that happens to me.

Your Honour, we have very few points to make.

As to paragraph 23, Your Honour, what we submit is

that we are rather surprised that my learned friend

has made a concession on onus, Your Honour.	We do
not make it at all.	We do not regard Mabo as

determining onus. But we would say,

Your Honour - - -

HIS HONOUR:  But you have not got much interest in this

point, really, have you, except in relation to post

offices and - - -

MR GRIFFITH:	The telephone boxes, yes, Your Honour.
HIS HONOUR:	- - - telephone boxes.

MR GRIFFITH: But, Your Honour, we would make the point that

if there is a reverse onus, which we would deny, we

would say in that case, Your Honour, the person in

possession should be the defendant and put in the

position then of discharging the onus. We would

Coe 70 17/8/93

deny, Your Honour, that there is a vicarious onus
on the State, even the State of New South Wales, to

discharge, on behalf of others, an onus if that be

the position.

Your Honour, we do regret that there has not

been a new statement of claim offered prior to

today's hearing because, in effect, on one view,

Your Honour is being invited to resettle the

statement of claim.

HIS HONOUR: 

I am not going to engage in that exercise.

MR GRIFFITH: 

No, we hope Your Honour does not accept that

invitation. But, Your Honour, we feel it is
somewhat likely that whatever happens we will have

a new statement of claim where there might be yet
another - - -

HIS HONOUR:  Yes. I can only deal with the statement of

claim as it stands before me but, of course, in
dealing with the statement of claim as it stands

before me, I have the benefit of what plaintiff's

counsel has said to me in terms of what their

intentions are.

MR GRIFFITH: Yes. Well, Your Honour, that is why we

confine ourselves because, on the oral indication, we can ignore the words other than paragraphs 1 to 3 which are really the formal representative

paragraphs. Paragraphs 6 to 8, we would adopt the

submissions of my learned friend, the Solicitor for

New South Wales, and just make a passing comment,

Your Honour, that we say matters have been

determined and confirmed by Mabo but one does not

find the authority of Mabo, between pages 200 and

204 of 175 CLR. We say, Your Honour, Mabo stands

as authority of what is found in the entire report,

assisted by Your Honour's own short summary, which

had the agreement of all Justices.

HIS HONOUR:  Yes.

MR GRIFFITH: 

We, otherwise, Your Honour, would really wait

for Your Honour's judgment and for a new statement
of claim before having any views about remitter but

we do think, Your Honour, it would be in the

interests of all parties to have a pleading which

does raise, in an appropriate way, what we would

put as a Mabo issue for determination on its
merits.

HIS HONOUR:  Yes. Thank you, Mr Solicitor. I shall

consider my decision in this matter.	Did you want
to say something?

Coe 71 17/8/93

MR SEARLE: Just to hand to Your Honour

Professor Tindale's - the copy of "Aboriginal references conveniently for Your Honour's research

in case Your Honour -

HIS HONOUR:  Yes. You have no objection to this? I shall

consider my decision in this matter and the Court

will now adjourn sine die.

AT 2.55 PM THE MATTER WAS ADJOURNED SINE DIE

Coe 72 17/8/93