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)

Copyright in the High Court of Australia

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. The findings do not support any claim

of public ownership of the land in the Merian

Mabo 316 31/5/91

community. And can I give Your Honours a reference

to volume 1, page 161, about point 6, in which

His Honour did say that there was no concept of public ownership on the islands. That is all I

wish to say about the document.

BRENNAN J:  What is meant by "public ownership" as against

the proposition that the Meriam people have an

interest in the - - -?

MR FRASER: Perhaps I should refer to it. His Honour said

that:

It may be remarked that on any view of it

these incidents must vest in or inure to the

benefit of particulars individuals or specific

groups ..... There was apparently no concept of

public or general community ownership among

the people of Murray Island.

Now the claim seems to amount to a claim, in
effect, of sovereignty or ownership in the Murray

Island people of the islands.

TOOHEY J:	Was His Honour asked to make any findings of fact relating to the Meriam people and any interests
that they may have in the Murray Islands as opposed to the interests claimed by the plaintiffs?
MR FRASER:	Not as a people, as I understand the position,

Your Honour. I was not at the trial but I do not

recollect seeing any such specific request, and it

certainly was not litigated. The question of

whether the people, as such, would wish to make a

claim of sovereignty, in effect, as I understand

it, has never been raised.

BRENNAN J: Well, it may not be a claim of sovereignty but

the nature of the individual claims which were

litigated, as I read them, seemed to me to be

claims which were made in right of their status as

members of the community.

MR FRASER:	Yes.
BRENNAN J:	And therefore their interests were sought to be

established as being carved out of that which the

community had.

MR FRASER: Yes. His Honour seems to have regarded them as

claims of private ownership which must owe

something to the relationship of the Murray Island
people. I accept that, Your Honour, or the legal

relationship, if there is one, amongst the Murray

Island people. But the claim here does seem to be

a claim that the people as a whole have a public

Mabo 317 31/5/91

ownership of the lands. That is the way it seems

to be expressed in paragraph 1.

BRENNAN J: Well, if we were to deal with these questions on

the footing that looking at the facts as found and

looking at such inferences as were properly open

from the facts as found, their legal consequences

were as follows, and those legal consequences were

to recognize some interest in the community of the

Meriam people, would any injustice be done to your

side of the case?

MR FRASER:  I submit it would be because no such claim was

put on the basis that there was an interest in the

Meriam people in the islands as a whole and

His Honour's findings seem to reflect that. That

is a different proposition from saying that there

may be a private form of ownership existing against

the defendant arising out of whatever the legal

relationship is in the islands.

BRENNAN J:  So that if there were individual or group

interests held by individuals or groups in the

Meriam community, in virtue of the community's

arrangements, those interests could be recognized

within the scope of the litigation.

MR FRASER: Yes. That matter has been fully argued in this

Court and that really seems to be the way it has

been approached in this Court. That is all I have

to say, Your Honours.

MASON CJ: Yes, thank you Mr Fraser. Mr Castan.

MR CASTAN:  Your Honours, the reason why it has been put in

that way is because we were seeking to respond to

what we understood was a concern to reflect what -

a concern about some of those problems that had

emerged in the course of argument.	The position is
that His Honour did make express findings about the

people owning the whole islands. It is at page 156

of volume 1, starting at page 155 at the foot of

the page. What His Honour said was that he

distinguished the relationship from that which was

found in the Milirrpum case, the, Gove case, at the

foot of page 155. He said:

it is not a religious or spiritual

relationship of the kind which emerged -

in that case and then went on -

On the other hand it may be accepted on

the evidence that Murray Islanders have a

strong sense of relationship to their Islands

and the land and seas of the islands which

persists from the time prior to European

Mabo 318 31/5/91

contact. They have no doubt that the

Murray Islands are theirs. It is also true -

and he is speaking here about the whole community.

It is also true to say that in so far as this

perception persisted prior to European contact

there was, so far as we know, no outside

challenge to it. Even after contact the

remoteness of the Islands and other

considerations meant that there has been no

real challenge, except perhaps intermittently,

at least until recent times.

And it is only recently they have had to contend

with the situation of Murray Islanders residing
more or less permanently off the Islands, but some

of them claiming to be recognized as entitled to

land. He then turns to:

consider the nature of the relationship

between the people and the land -

and it goes on. Now, His Honour dealt in great

detail and there was much submission and much

argument about what one might term, using a loose

term, ownership of the whole of the people in

relation to the Islands. That was much debated,

much submission about it and considerable findings

about it as Your Honours will see from the detail

that follows from that section. So, it is not the

case that this is some new concept. What we have

endeavoured to do is to reflect what we understood

to be the concerns of the Court and identify what

are the issues that really emerge from His Honour's

determination.

TOOHEY J:  Mr Castan, how does the passage that you just

read square with the passage to which Mr Fraser

referred us, qua the passage on page 61, that there

was apparently no concept of public or general

community ownership. Are the two passages speaking

of different things?

MR CASTAN:  We would respectfully submit they are. There is

not a concept of public ownership in the sense

that, as between themselves or as among themselves

there is public ownership, but there is an

ownership among all of them as against the whole

world and that is what His Honour is referring to

at page 156. In other words - and this is part of

the same problem of endeavouring to apply what we

might call our familiar concepts on to this Island

community - what we have is the strong sense of

proprietary ownership internally and then a strong

sense that, as against the whole world, these

people own the whole and there is no sense of

Mabo 319 31/5/91

public ownership in the sense that they have
property that as between themselves is publicly

owned, but all of them between themselves are a
community who own the whole of the land as against

the rest of the world.

DEANE J:  The one you refer to is a bit like saying,

Australians think they own Australia, which no

doubt is true, but as we know it that is

interpreted as meaning that Australians personally

own the land in this country, it is about as far

from the facts as one can find.

MR CASTAN: Well, it is a difficult concept because we are

dealing with this particular community where they

do not have a concept of public ownership in the

sense that there is an area that they say, "Well,

that is our commonly owned land", but they have a

concept that between all of them they own all of

the land.

DEANE J: But can I direct your attention to another aspect

of this, and that is: assume that simply for the

sake of considering the declarations, because it

only becomes relevant then, that your main argument

is correct, well now, there are three alternatives

if you are going to succeed; one is that these

plaintiffs end up with declarations defining their
precise entitlement to particular blocks of land,

the second is an order or a declaration, to take an
example, to the effect that the land is held for

individual members of the Meriam people, according

to their rights under the communal system,

presuming such is found to exist; the third is some

general declaration about the Meriam people as a

political entity. Well now, you have asked for the

first originally, you are now asking for the third,

but there is nothing that addresses the second, as

I follow it. I would have thought the second was -

if you are not going to succeed on your particular

claims - the second is the only general declaration

which seems to have been involved in what has been

fought between the parties.

MR CASTAN:  We had thought we had encompassed what

Your Honour has described as the second of those in

those matter which are set out as item 2.	Perhaps
we

DEANE J:	I am sorry, I had not examined 2.
MR CASTAN:	But if we have not, then we inadequately

formulated it.

DEANE J:  I suppose one can read 2 as covering it.

Mabo	320	31/5/91
MR CASTAN:	We had thought we were doing that.	We do not

claim - I should make it clear, Your Honours, the

reason we put those various alternative ways in

which one might identify the kind of

characteristics of what I will call ownership, for

the purpose of present discussion, in those items

in 1 A, B, D, E and Fis that we do not claim

sovereignty in the sense that has been perhaps

suggest, and, in fact, have left deliberately open as alternatives, the different categories to which

one might attribute and which have been argued

here, the different characterization of the kind of

ownership that might be attributed, and that is why

we have used terms "owners", "possessors",

"occupiers", "persons entitled to use and enjoy".

So we have sought to keep that open. We had not

been intending to pre-empt the second alternative

by the way in which we have formulated it in terms

of the way in which Your Honour Mr Justice Deane

has put the question to me.

TOOHEY J:  Mr Castan, can we take it that in considering the

amended claim, paragraph 1, that there are no

findings of fact either in volumes 1 or 2 of the

determination which are relevant, to which we have

not already been referred?

MR CASTAN:  I cannot imagine that we have omitted to refer

to them.

TOOHEY J: Well, it is really, to some extent, a question of

how far the Court needs to, as it were, plough

through the material.

MR CASTAN:  Yes, I am sorry, Your Honour. I had not

have also prepared, and I was intending to hand up among the material we were going to hand up this

appreciated that. Yes, we have referred

morning, and it is a matter for the Court as to

whether it is an appropriate document to hand up,

but what we were intending to hand up as a result

of a discussion which took place, I think last

Tuesday, about what had been submitted to

His Honour, was some extracts from our submissions

to His Honour which contain the table of contents

of the submission, so one can easily find the
particular portion in the document, and then which

contain our submissions and which refer to the

specific references.

So, in so far as that task of ploughing through - it would not be necessary to do that

because we have available a document that

specifically addresses those matters which

Your Honours asked me about; that is, those matters

on which we specifically ask for findings and as to

Mabe 321 31/5/91

which there is no finding one way or the other, as

distinct from matters where there has been a

finding positively or negatively. Now, we have

deliberately had that prepared because we

understood it to have been a query addressed to us,

but obviously we are in the Court's hand as to

whether it is appropriate to use that as a method

of assisting in locating the precise material.

Certainly there would be no doubt it would make the

task immensely easier because it contains the table

of contents and then the specific references.

MR CASTAN:  To be more explicit it contains the detailed

submission, say, on the area of Dei-Mei, to take

that example, and it contains the specific findings

sought and the references given to His Honour about

Dei-Mei. Your Honours would then see that and be

able to turn to it and we have extracted the

relevant passages that were then relied on, so that

has all been put together in a form that is quite
manageable. And beyond that, Your Honours, we have

given Your Honours all the references that would be

needed, so that would be, I think, the complete

answer to Your Honour Mr Justice Toohey's question.

MASON CJ:  What does Mr Fraser say about the handing in of

this volume?

MR FRASER:  Your Honour, it seems to relate to submissions

on the evidence made to the learned trial judge and

we have not seen what he proposes to hand up, but

it may be that we would wish to respond to it, but

the Court may take the view that it is not
appropriate to be involved in looking at the

various submissions relating to the evidence before

His Honour, rather rely on the findings His Honour

made. That is all I wish to say about it. We

would wish the opportunity to respond after we have

seen it, that is all.

MASON CJ: Yes, very well. Well, certainly if the Court

receives the document you will have the opportunity

to respond. Very well, Mr Fraser, the Court will

receive the document that Mr Castan has in mind and

you will have the opportunity of responding to it

if you feel so advised.

MR FRASER:  And might we do that just by a written

submission?

MASON CJ: Yes.

MR FRASER:  Thank you, Your Honour.

MASON CJ: Yes, Mr Castan.

Mabo 322 31/5/91

MR CASTAN: Perhaps it is appropriate, since we are dealing

with that - would Your Honours be prepared to

receive that now and we can dispose of - - -

MASON CJ:  Can it not be handed in after we adjourn?

MR CASTAN:  Yes, it could certainly be. There is no need to

do it and perhaps I should mention that the only

other things we would wish to say at this stage is

that there were some other items that we would hand

in and we can hand them through the registry, if I

can just indicate what they are. There were some

references which Your Honour Mr Justice Brennan

asked us to, regarding the right of pre-emption and

we have prepared a document that contains those,

and I should say in passing in relation to that,

that when one seeks out an answer to that question

of how that right of pre-emption developed, one

finds that by far the best source of review of

authorities and analysis of the issues in various

ways appears in Professor McNeil's book Common Law

Aboriginal Title, the book that I referred to

Your Honours yesterday, which is very recently

published at Oxford. I say that simply because

that seems to be the only place where there has

been an analysis of that particular question, what

is the right of pre-emption? Where did it come

from? How was it developed? What does it really

mean, and so on, so we commend that to

Your Honours.

There was to be handed in also a further part "D" I think it is, of our reply which, when we

handed in the reply document, was still in course

of preparation. That has been completed and we

duly supply that. There are other references to

documents that the library has indicated to us were

not readily available, which we have copied.	They
are an extract from Allott on Customary Law; Hannigan on Customary Law and Sarbah, which is
referred to in our written submissions; Sarbah's

Fanti Customary Laws, which we referred to in our submissions, but the library could not locate and

we have obtained those and would make those -

MASON CJ:  Has Mr Fraser seen all these documents you are

now referring to?

MR CASTAN:  I think not. They are references which we gave

in our submissions, which then it was found were

not available in the library here, but we will

supply those. I do not know, unless the Court has

any other questions, that there is anything else we

would - - -

BRENNAN J:  Can I just take you to the declaration sought in

lE, the concluding words of which refer to:

Mabo 323 31/5/91

the capacity of the Defendant to extinguish

the same by, or pursuant to clear and plain

legislation.

By "pursuant to" I presume it is meant by executive

action taken under?

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	And you do not seek a declaration that it is

subject to extinction only by executive action

creating titles inconsistent with the antecedent

title?

MR CASTAN:  No, we do not confine it in that way, assuming

that the legislation itself authorized action in

clear and plain terms.

BRENNAN J:  So that aboriginal title could be extinguished

simply by legislative Act, reducing aboriginal land

then into wastelands of the Crown?

MR CASTAN:  If the Act so clearly and plainly authorized it

to be dealt with in that way. That might raise

questions again of section 109 and other issues,

but subject to the section 109 concept and the

trust concept, if we talk just in terms of what we

might call the underlying concepts, and assuming

the legislation clearly and plainly permitted it,

and subject to questions of trust, section 109

compensation and the other issues, if the

legislation clearly and plainly authorized it.

BRENNAN J: Well I mean, if you say it is subject to

compensation, it seems to me that that is

inconsistent with the proposition that it is

capable of extinction just by legislative act.

MR CASTAN: Well, if there was legislation which in its

terms provided that it shall be extinguished, or an

officer of the Crown may take action pursuant to

certain specific steps, and it shall be

extinguished and shall be extinguished without

compensation, then again, subject only then to

overriding questions of power and 109, we would be

making that concession. One has to, so to speak,

in each case, look back to then all the other what

we might call overriding elements, but subject to

those, yes, Your Honour.	We do not mean by that to
abandon the arguments concerning power.	I do not

think there are any other matters we desire to put to the Court, if the Court has no other questions.

Mabo 324 31/6/91

MASON CJ: Thank you, Mr Castan. Court will consider its

decision in this matter and will adjourn until

10.15 am on Tuesday next.

AT 10.44 AM THE MATTER WAS ADJOURNED SINE DIE

Mabo 325 31/5/91