Mabo & Ors v The State of Queensland - [1991] HCATrans 26

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane No Bl2 of 1982
B e t w e e n -
EDDIE MABO

First-named Plaintiff

DAVID PASSI

Second-named Plaintiff

JAMES RICE

Third-named Plaintiff

(who bring this action on their
own behalf, and on behalf of
the members of their respective
family groups)
and
THE STATE OF QUEENSLAND

Defendant

Mabe

315

31/5/91

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 MAY 1991, AT 10.19 AM

(Continued from 30/5/91)

MASON CJ: Yes, Mr McIntyre.

MR McINTYRE:

Your Honours, you will see in the document

that you have had put before you this morning that

there are several pages. The last page, which is
not separately numbered, has the heading
"Declaration in Relation to First Named Plaintiff".
That was inserted, taking a literal view of what
Your Honour the Chief Justice said yesterday, that
is that it may be that you would also seek a
finding that the plaintiffs at least have a
sufficient interest to satisfy standing

requirements. My learned friends ·for Queensland
have reminded us that there were certain
undertakings given between counsel, during the
course of this matter corning before the Court, that
no claims of a separate nature would be made on
behalf of the first-named plaintiff and therefore
it is not appropriate that there be any findings or
declarations in relation to the first-named
plaintiff. In that instance we therefore say that
the Court should just ignore the last page.

MASON CJ: Yes, thank you, Mr McIntyre. Now, Mr Castan, do

you want to say anything?

MR CASTAN:

I think not, Your Honours.

I understand my

learned friends want to say something.

MASON CJ: Yes.

MR FRASER:

Thank you, Your Honours.

Your Honour, firstly,

can I just mention that Your Honour Justice Brennan asked a question of the Solicitor-General yesterday
and in response to that he referred to Anson on the

Constitution. Can I give Your Honours the
reference, which was a reference to the Law and
Custom of the Constitution by Anson, 4th Edition,
Volume 2, Part 2 at pages 167 to 169.

In relation to the document that has been given to Your Honours, firstly, I understand it to
be agreed that the reference to the plaintiff's
claim at the beginning of the document should also
be a reference to the plaintiffs, Rice and Passi.
The agreement is that there is no claim of any kind made by Mr Mabo in this Court.
Apart from that, I wish to make a brief

submission just about paragraphs lA, B, D, E and F
which all relate to claims particularly pertaining
to the Meriarn people as a community and which seem
to suggest an ownership of the land in the Merian
people as such. In my submission, that is a claim
which has not before been made in these

proceedings.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mabo & Ors v The State of Queensland

Details

AGLC: Mabo & Ors v The State of Queensland [1991] HCATrans 26
Case: [1991] HCATrans 26
Decision Date

CaseChat Overview and Summary

The parties to this proceeding before the High Court of Australia were the first-named plaintiff, the second-named plaintiff, the third-named plaintiff (who brought the action on behalf of themselves and members of their respective communities), and the State of Queensland. The dispute concerned claims relating to the land on Murray Island, specifically the nature of the interests held by the Meriam people in that land.

The legal issues before the Court included whether the plaintiffs had standing to bring the action, and importantly, whether the Meriam people held a concept of public or general community ownership of the islands, as opposed to individual or specific group interests. The Court was also required to consider the scope of claims that could be made, particularly in relation to the first-named plaintiff and any claims of ownership by the Meriam people as a community.

The Court was informed that no claims of a separate nature would be made on behalf of the first-named plaintiff, and that the reference to the plaintiff's claim at the beginning of a document should be read as a reference to the plaintiffs Rice and Passi. It was agreed that Mr Mabo made no claim in the Court. The State of Queensland submitted that a claim suggesting ownership of the land by the Meriam people as a community had not been previously made and was not supported by the findings, which indicated no concept of public ownership on the islands. Instead, any interests were vested in particular individuals or specific groups.

Orders