Mabo & Ors v The State of Queensland

[1991] HCATrans 25

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4
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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

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 MAY 1991, AT 10.18 AM

(Continued from 29/5/91)

Copyright in the High Court of Australia

Mabo 224 30/5/91

MASON CJ: Yes, Mr Castan.

MR CASTAN:  If the Court please. May I take the Court

briefly to page 1021 of our written submissions to correct a particular matter that we have realized,

overnight, contains an error. At page 1021, in the
context of arguing the operation of section 10(3)
of the Racial Discrimination Act, we identified
particular provisions of the Community Services

(Torres Strait) Act and I indicated in the course

of argument that I would check those provisions.

On checking them we notice, Your Honours, that some

of them should not have been the subject of the
claim; that they are in conflict and we would seek

to delete the claim of conflict in respect of

sections 51(1), 62, 64 and 69.	They seem to have
been included in error.

The ones that are the relevant sections that

do relate to the management of property, as we

would contend, are sections 5(7), section 71 and

section 73. It is apparent from the face of the
sections and I will not trouble Your Honours with a

detailed analysis at this stage.

MASON CJ:  Mr Castan, before you proceed with your argument,

could I ask you a question about a matter that

arose yesterday? There was some discussion as to

whether or not the land in question fell within the

Land Act 1910, and you were asked certain questions

about the consequences of that. In particular, you

were asked whether or not it would be necessary for

you to succeed on your fiduciary duty argument.

What I wanted to ask you was this: if the land did not fall within the Land Act 1910, would

it be necessary for you to sustain your challenge

to the DOGIT regime?

MR CASTAN: There are two aspects to that, Your Honour. If

the land does not fall within the definition in the

Land Act then the first argument would be that the

DOGIT regime could have no application to it. So

that it would be not possible for the appropriate

grants to be made because it would not be land that

could be the subject of the regime. The regime

only applies to land which is within that category.

I am not sure if this is being responsive, but

if the land is not within the Land Act then the

DOGIT regime is, so to speak, irrelevant in the sense that it cannot be made to apply to this land

because the land has to be within the Land Act for

this kind of grant to be made.

Mabo 225 30/5/91

In that sense, we would submit that therefore

the appropriate grants under the DOGIT regime could

not take place.

MASON CJ:	What is the second response?
MR CASTAN:	We would say that we then, in that sense, do not

have the concern about it if we are immune from it.

But of course we do have a concern about it if it

still is proposed and it still would affect our

interests if a DOGIT were to be granted,

notwithstanding that it were held that the land was

outside the Land Act.

So depending on the answer to the first

question, our answer to the second proposition

depends on how one responds to the first. In other

words, if the land is capable of being the subject

of that kind of a grant then we have a concern

about it, because it would appear that it affects

our interests. If the land is outside that regime,

so be it, and our interests will continue

unaffected by such a grant, because no such grant

can be made or will be made. It is simply not

within the scope of those engaged in the process of

making these grants to do so in relation to Murray

Island, and if that is the view of the Court that,

of course, is exactly what we seek to achieve.	I
am not sure if that is being sufficiently
responsive.

MASON CJ: Yes, that is a response to the question. But I

am only exploring it in terms of the

interrelationship of the various arguments you are

presenting to the Court.

MR CASTAN:  Yes. We say that our interests exist. We would

contend as one of the alternatives that the land is

not within the Act. We would say that if it is

not, then the land cannot be the subject of a DOGIT

and that is an end of that matter and the Court

should say so.

DEANE J:  What is the section that makes it clear that if

the land is not in the old Land Act the DOGIT

scheme cannot apply to it?

MR CASTAN: Section 334, I think, is the section one would

turn to, Your Honour. That is the section that

provides for the grant, and perhaps one needs to

say the whole of the DOGIT legislation, because

although no particular section, so to speak,

expressly picks up the 1910 Act, the whole of the

scheme only relates to Crown land as defined in the

current legislation and that - - -

MASON CJ: That is the foundation of the DOGIT regime.

Mabo 226 30/5/91

MR CASTAN:  Yes, the whole foundation of it is that it is

land of this character, that it is land reserved.

If it is not within it, well questions do not

arise.

Perhaps one could put it in a broader sense.

If it is not Crown land at all under the 1910 Act,

then it is not Crown land now, and if it is not

Crown land now it cannot be the subject of those

administrative steps that are contemplated by this

new regime.

BRENNAN J: Is the definition of "lands" in the respective

Land Acts - or to put it another way, are the exceptions from the inclusive definition of "land" in the Land Acts exhaustive of every category of

rights which may have been created by Crown grant?

In other words, is the net effect of the definition

to embrace only land which is unalienated Crown

land?

MR CASTAN:  It is designed to achieve that purpose, one

might think. If Your Honour is referring to the
definition of "Crown land" as I understand

Your Honour is seeking to pick up in the Land Act,

if we go to page 103 which is the current, and I

think still applicable definition, which is the
latest manifestation of what was in 1910, one finds
a definition of "Crown land", and then it is

expressed as -

All land in Queensland -

so it is expressed in an all-encompassing way to

respond to Your Honour, and then it excepts, and

the only exception it expresses is -

land which is, for the time being -

(a) lawfully granted or contracted to be

granted in fee-simple by the Crown; or	(b) reserved for or dedicated to public
purposes; or
(c) subject to any lease or license lawfully
granted by the Crown -

with an exception dealing with "occupation

licenses".

They are the three categories of land in Queensland

which are exempted. On the face of it, it

expresses that all land in Queensland other than

those three categories are to be caught up in the

definition. But it does not deal with interests in

Mabo 227 30/5/91

land as such. It deals with land, presumably

dealing with land in the physical sense.

BRENNAN J: But if one were to approach this Act through the

eyes of a Milirrpum view this Act would embrace

unalienated Crown land in Queensland?

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	And one might think that it was enacted upon

that hypothesis?

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	Now, if it should then emerge that the Milirrpum

view is inaccurate, is this Act to be construed by

reference to the opening words, that is it means

literally all land in Queensland, or is it to be

construed as meaning all unalienated Crown land in

Queensland?

MR CASTAN:  We would respectfully adopt the latter.

BRENNAN J: Well, now, are there any arguments which would

support that view?

MR CASTAN:  Yes, and I was going to take Your Honours to

some of the background, the context of what we have
called the power argument are also arguments which
support that view, and I was going to take

Your Honours briefly to that in the context of the

next matter but one that we were going to turn to.

It may be appropriate to turn to it immediately and

I will come back to some other minor matters that

otherwise need to be dealt with.

It may be convenient to take Your Honours to

page 1032 of our submissions as a base from which

to proceed in dealing with what we have called the

question of power, and I should say, by way of

preamble, that although we have termed it power it

does bear very much on the question of

interpretation that Your Honour has just raised

because the two seem to overlap.

What we have endeavoured to do here, Your

Honours, is to isolate the basis upon which this

legislation that we have been examining the Land

Act is founded and isolate whether it can, as a matter of power, have extended so as to enable the

State of Queensland to engage in the form of

extinguishment that we are here debating, given the

context in which this land comes to become part of

Queensland, and inherent in that is perhaps the

matter that Your Honour Justice Brennan has just
put to me, and in order to examine that, it is

respectfully submitted, it is necessary to go back

Mabo 228 30/5/91

to the foundation of the power to deal with lands

which originated from the initial imperial

legislation.

Your Honours will recollect that I have

referred earlier to the discussion that has taken

place in a number of cases in this Court concerning

the operation of the Waste Lands Act and we would

seek to briefly take Your Honours back to those

provisions, in order to examine the way in which

this power that we are here debating under the

Lands Act originated. If we start with the

Waste Lands Act 1842, which appears in volume 8 of

the statutory materials we provided, page 42, that

was the Imperial Act which was passed to regulate

the sale of wasteland belonging to the Crown in the

Australian colonies. Now, I point out initially

that the term used in the Act itself in England was

"waste land" and if I can just hark back to some

matters that were put to Your Honours on Tuesday,
we made some point about the use of the terminology
of wastelands and what that might mean in the

context of the Australian history and the way it

was used in those early cases, Steel and the

others, to which I took - Attorney-General v Brown.

Your Honours will see that in 1842, which is

about the time of some of those decisions to which

I originally took Your Honours, the legislation

provided in terms, which expressed it as being

expedient that a uniform system of disposing of

wastelands of the Crown in the Australian colonies

should be established and the term "Waste Lands of

the Crown" is defined in that Act at page 45 of the

book, in the second-last section, a section that is
section 23. That section provides, in the second

half of the section:

that by the Words "Waste Lands of the Crown",

as used in the present Act, are intended and

described any Lands, situate therein, and

which now are or shall hereafter be vested in

Her Majesty, Her Heirs and Successors, and

which have not been already granted or

lawfully contracted to be granted to any

Person or Persons in Fee Simple, or for an

Estate of Freehold, or for a Term of Years,

and which have not been dedicated and set

apart for some public Use.

So that back in 1842 there was this definition

termed "waste lands" but picking up categories

which are very close to the categories which still

appear in the current legislation that I have just

taken Your Honours to a few moments ago. But the

starting point is that the land is only that land

which is "vested in Her Majesty". Again, what is

Mabe 229 30/5/91

not made clear by that is whether that is referring to lands vested in possession, land actually owned,

occupied and possessed in the complete sense by Her Majesty or whether it is referring to lands

over which there is an overall dominion. And we

would respectfully submit that the correct meaning

is that it refers only to those lands which are

genuinely vacant lands, waste lands in the literal
sense, lands in respect of which there are no
persons present and in respect of which the Crown

takes a full possessory title based on occupation

which does not displace any other occupation.

If we then go back to the commencement of the

Act, at page 42, given that definition, one sees in

section III that - after providing in section II:

That the Waste Lands of the Crown in the
Australian Colonies shall not ..... be conveyed
or alienated ..... unless such Conveyance or
Alienation be made by way of Sale, nor unless

such Sales be conducted in the Manner and according to the Regulations herein-after

prescribed.

And then, in III:

That nothing in this Act contained shall

extend or be construed to extend to prevent

Her Majesty, or any Person or Persons acting

on the Behalf or under the Authority of

Her Majesty, from excepting from Sale, and either reserving to Her Majesty ..... Her Heirs

and Successors, or disposing of in such other

Manner as for the public Interests may seem

best, such Lands as may be required for public

Roads or other internal Communications,

whether by Land or Water, or for the Use or

Benefit of the aboriginal Inhabitants of the

Country, or for Purposes of Military Defence -

and it goes on and sets out some purposes.

So what is contemplated, apparently, is that

there may be reservation for aboriginal inhabitants

and it may be that the underlying assumption is

that the lands have fallen into the possession or are lands vested in Her Majesty, but that somehow land may be reserved for aboriginal inhabitants,

the assumption perhaps being that they did not have

any possession and therefore the possession of the

Crown is complete and all that is necessary to do

is to reserve for them.

If one goes over to section V, it is then

expressed:

Mabo 230 30/5/91

That under and subject to the various

Provisions ..... the Governor for the Time

being ..... is hereby authorized .d required,

in the Name and on Behalf of He~ Majesty, to

convey and alienate in Fee Simple, or for any

less Estate or Interest, to the Purchaser or

Purchasers thereof, any Waste Lands of the

Crown in any such Colony, which Conveyances or

Alienations shall be made in such Forms and

with such Solemnities as shall from Time to

Time be prescribed by Her Majesty,
and ..... shall be valid and effectual in the

Law to transfer to and to vest in possession in any such Purchaser -

So it is provided that there may be then those

alienations. I think those are the only relevant

matters. Your Honours will appreciate that at that

time the power to deal with these lands still being

reserved in the Imperial Crown and not having been

conferred on any colonial legislature or council.

If we then pass to the 1846 Waste Lands Act,

that appears at page 46 of the same book, the

position becomes, if anything, perhaps less clear

because the 1846 Imperial Act starts off with a

preamble that:

it is expedient to make further Regulations

respecting the Occupation of Waste Lands

belonging to the Crown in the Colonies -

and it is important to note which colonies: New

South Wales, South Australia and Western Australia.

So it had an extensive operation, this particular

Act. And then, at the top of the next column:

That it shall and may be lawful for

Her Majesty to demise for any Term of Years

not exceeding Fourteen, to any Person or

Persons, any Waste Lands of the Crown in the

Colonies ..... or grant a Licence for the

Occupation for any Term of Years not exceeding

Fourteen ..... to reserve upon such Demise or Licence any such Rent or pecuniary or other

Service, and to insert therein such conditions

and Clauses of Forfeiture, as shall ..... be

prescribed and authorized, any thing in the

said recited Act to the contrary in anywise

notwithstanding -

and then -

subject to the Rules and Regulations.

Mabo 231 30/5/91

Then sections III and IV are particularly

interesting because what is then set up is a

regime, as appears from the side-note, for: dispossess Persons unlawfully occupying Waste

Lands.

This brings into very direct issue the question of

what was to happen to the original occupiers if

they were treated as being in occupation.	It is
expressed that:

'And whereas it may be necessary that

effectual Provision should be made for

protecting such Waste Lands as aforesaid from
being occupied without Authority, and also for

dispossessing any Person in the Occupation of

any such Waste Lands as aforesaid, in case of

the Forfeiture of any such Demise or Licence,
or in the case of the Breach or Nonperformance
of the Conditions thereof, or in the case of
the holding over ..... after the Expiration of
any such Demise or Licence, or after the End
of the Term for which the same may have been

granted or made;' be it enacted, That on

Information in Writing for that Purpose

preferred by the Governor ..... or by any Person

authorized by any such Governor on that

Behalf, to any Justice of the Peace acting in

and for any of the Colonies aforesaid, or in and for any County or other District thereof,

setting forth that any Person or Persons is or

are in the unlawful Occupation of any of the

Waste Lands of the Crown in any such Colony,

or is or are in the Occupation of any such

Lands in virtue or under colour of any such

Demise or Licence as aforesaid,

although ..... forfeited, or although the

Conditions thereof had been broken or

unfulfilled, or ..... expired, or although the

Term ..... had been granted or made had come to

an end, it shall be the Duty of such Justice

to issue his Summons for the Appearance before

any Two Justices of the Peace, at a Time and

Place so to be specified, of the Person or
Persons against whom any such Complaint shall

be so made, and at the Time and Place so to be

specified such Two Justices (on the Appearance

of the Person or Persons charged, or on due Proof of the Service ..... at ..... their usual

Place of Abode, of any such Summons,) shall

proceed to hear and inquire of the Truth of

the Matter and Things ..... and on being

satisfied of the Truth thereof, either by the

Adrnission ..... or on other good and sufficient

Evidence, the said Justice shall issue under

their Hand a warrant addressed to. the Sheriff

Mabo 232 30/5/91

or Deputy Sheriff, or Commissioner, or other

Officer ..... acting for or on behalf of Her

Majesty, commanding and requiring him

forthwith to dispossess and remove any such

Person or Persons from any such waste

Lands ..... and to take possession of the same

for and on behalf of Her Majesty -

Now, the assumption in that - and although it

refers to persons holding over after a demise, it

also refers to persons generally in unlawful
occupation, in the first category - is that these

are lands in the entire possession of the Crown and

it appears that an aboriginal person, in 1842, in

the far north-west of Western Australia, to take an

example, as yet undiscovered in 1842, was liable to

be dealt with under this; that this purported to

deal with such a person. To that extent it appears

to have some element of the unreal about it. But

it goes on to provide:

nothing ..... shall extend to any Person having

occupied Waste Lands within the Boundary of

Location without Interruption for ..... Twenty

Years -

so, presumably, if an aboriginal person could show

they had been there in their particular land for

20 years they would not be subject to such an

information and warrant for being put out of

possession. Then it goes on in section IV that:

That from and after the Day when this Act

shall come into effect in the Manner herein-

after mentioned any Person -

and this is even wider -

unless claiming under a Sale or Demise from

Her Majesty, or from some Person acting in the

Name and on behalf of Her Majesty, who shall

be found occupying any Waste Lands of the

Crown in any of the Colonies aforesaid, either

by residing or by erecting any Hut or Building

thereon, or by clearing, enclosing or

cultivating any Part thereof, or who shall

depasture any Cattle thereon, and who shall not previously have obtained a Licence from the said Governor for the Occupation of such

Lands, or who shall occupy or depasture as

aforesaid after such Licence shall have been determined by Forfeiture or otherwise, shall

be liable on Conviction thereof to the

Penalties following ..... for the First Offence

a Sum not exceeding Ten Pounds, for the Second

Offence a Sum not exceeding Twenty Pounds nor

less than Ten Pounds, and for the Third or any

Mabo 233 30/5/91

subsequent Offence a Sum not exceeding Fifty

Pounds -

in 1842, Your Honours -

nor less than Twenty Pounds: Provided always,

that no Information shall be laid or brought -

and so on. It provides then for penalties.

Now, Your Honours, this Act also provided a

definition in section IX which is on the next page,

and I do not think it differs from the earlier

definition. It is expressed, after defining the

word "Governor":

the Words "Waste Lands of the Crown", as

employed in this Act, are intended to describe

any Lands in the said Colonies whether within

or without the Limits allotted to Settlers for

Location, and which now are or hereafter shall

be vested in Her Majesty, Her Heirs and

Successors and which have not been already

granted or lawfully contracted to be granted

by Her Majesty, Her Heirs and Successors to

any other Person or Persons in Fee Simple, and

which have not been dedicated or set apart for

some public Use.

So I think the definition is the same as the 1842

definition, Your Honours, trying to pick up the

exact wording. So that we would respectfully

submit that what is purported to be dealt with

here, if one would take it on its face, is the

whole of the lands, but we would respectfully

submit that the definition is confined to those

which are vested in Her Majesty. If one was to assume that the definition which includes lands

"vested in Her Majesty" would include all lands of

which original occupants were in fact still in

occupation, then all of those original occupants,

trespassers and were rendered liable to the	under this legislation, were made in effect
penalties and procedures of section III and the penalties of section IV.

If, on the other hand, an interpretation is

given which limits it to those lands which are

truly vested in possession, in the sense of lands

in respect of which there are not such other

occupants but of which the Crown has taken actual

occupancy, one gets a more sensible meaning or

definition, we would respectfully submit. And

ultimately these definitions, with minor variants,

are those which flow into the legislation that we

have been examining, which is the current

legislation. And in our respectful submission, as

Mabo 234 30/5/91

a matter of interpretation, or coming to the

question of power, we would respectfully submit

that they tend, and particularly the penalty

provisions tend, to support the view, as we would

contend that we have submitted for in relation to

the current legislation in answer to Your Honour

Mr Justice Brennan's question, that there must be

some limitation on the concept of lands to avoid

the somewhat incongruous result that would

otherwise follow. If I could then - - -

BRENNAN J:  Mr Castan, I notice that the first of those

Acts, the 1842 Act, includes colonies which are not included in the second of the Acts, namely,

Van Dieman's Land and New Zealand, but perhaps more

significantly the colonies are defined as the

colonies are now or shall hereafter:

be defined and limited -

in section XXII of the 1842 Act, but there is no

such ambulatory provision in the 1846 Act. Does

anything turn on that?

MR CASTAN:  Yes, there is, Your Honour. We draw support for

the argument of power from the existence of

section XXII and the provision that it is

ambulatory, in the sense that it extends to other

colonies which may be established within the limits

because, ultimately, the argument which we put, in

relation to the current legislation, is that the

conferring of power in relation to wasteland which

ultimately took place in 1855, when this ability or

to the colonies as then constituted, and

capacity to deal with lands was conferred by the confined

that there was no subsequent extending of that

power to extend to the lands which were comprised

in the area of any new colony or new territory that

was then annexed to the pre-existing colony. I am

not sure if I have put that clearly, but the way in

which we submit the power argument by following

through these Acts that I was going to come to, is

that the ultimate 1855 grant should be construed as
confined to the territory of the colony as then
constituted, the colony of New South Wales, but
nothing happened to extend the grant of power to

deal with lands, on whichever view one takes of the

definition of wastelands and however widely or

narrowly one construes it, nothing occurred so as

to extend it to the area of the colony of the

additional islands annexed to the colony in 1879.

BRENNAN J:  If the 1855 Act is so restricted why is the 1842

Act not available as a continuing.authority in the

governor of what becomes Queensland to alienate

unalienated Crown land?

Mabo 235 30/5/91

MR CASTAN:	It is a matter of construction. What happens is that both these Acts are repealed in 1855. If I
could just take Your Honours, before turning to the repeal, to the 1842 Constitution Act which appears
at page 4 of the book.  I take Your Honours, in
particular, to page - that is the form of limited
self-government that was conferred in 1842 provided
for in the Imperial Act there set out and the way
in which it is expressed, in terms of lands, is to
be found we think only at section 29 on page 6 of
the book. What occurred was that there was an
apparently general grant of legislative power.

that the Governor ..... with the advice and

consent of the said Legislative Council shall

have authority to make laws for the peace

welfare and good government of the said

colony -

the usual provision, it then goes on -

Provided always that no such law shall be

repugnant to the law of England or interfere

in any manner with the sale or other

appropriation of the lands belonging to the

Crown within the said colony or with the

revenue thence arising.

And, although that is in somewhat peremptory terms,

it was taken certainly then, and it has been

expressed in various of the authorities since, to

have amounted to a limitation such that the whole

of the question of lands was kept back, so to

speak, in terms of the two Imperial Acts that I

have just taken Your Honours to, at the time when

this limited grant of power was made in 1842.	And
then, if we go to 1855, if I could take

Your Honours next to page 49, and there are three pieces of legislation which become relevant in

1855.      The Imperial Parliament repealed those two

wastelands Acts and it also provided for a

Constitution and then the New South Wales

Constitution itself, as then granted, must be

looked at.

But, looking firstly at the repeal, page 49 is

the Imperial Act which, in section 1, says that:

The Act of the sixth year of Her Majesty

chapter thirty-six intituled "An Act for
Regulating the Sale of Waste Lands belong to
the Crown in the Australian Colonies" and the

Act of the tenth year of Her Majesty chapter

one hundred and four intituled "An Act to

Amend an Act for Regulating the Sale of Waste

Land belonging to the Crown in the Australian

Mabo 236 30/5/91

Colonies and to make further provision for the

management thereof" are hereby repealed.

And that goes on to provide that -

2. The repeal of the said Acts and the other

provisions of this Act shall take effect in
the Colonies of New South Wales and Victoria
at the date of the proclamation in those
colonies respectively of certain Acts passed

in this session of Parliament intituled "An

Act to enable Her Majesty to Assent to a Bill

as Amended of the Legislature of New South

Wales to confer a Constitution on New South

Wales and to grant a Civil List to Her

Majesty" -

and similarly with Victoria -

and in Van Diemen's Land from the date of

proclamation -

and so on. So the structure was to provide for the

repeal of those items of legislation we looked at
earlier, the 1842 and 1846 provisions and also
provide that the repeal would come into effect at

the time when the respective constitutions came

into effect.

If I can then take Your Honours briefly to the

enabling Imperial Act which can be found at page 12
of the book, and that is the Act - and perhaps it

is necessary to take Your Honours through it but

the way it is expressed is that the:

Legislative Council of New South Wales

constituted and assembled by ..... authority of

an Act of Parliament -

dealing with -

"An Act for the Better Government of Her

Majesty's Australian Colonies" did in the year

one thousand eight hundred and fifty-three

pass a Bill intituled "An Act to Confer a

Constitution on New South Wales and to Grant a
Civil List to Her Majesty" of which Bill

amended as hereinafter provided a copy is

contained in schedule A to this present Act

annexed. And whereas the said Bill was

presented for Her Majesty's assent to the then

Governor of the said Colony of New South Wales

and the said Governor did thereupon declare
that he reserved the said Bill for the
signification of Her Majesty's pleasure
thereon. And whereas it is by the said
reserved Bill provided that the provisions

Mabo 237 30/5/91

thereof shall have no force or effect until so

much and such parts of certain Acts of

Parliament in the said Bill specified as

relate to the said colony and are repugnant to
the said reserved Bill shall have been

repealed -

that is referring to that repeal -

and the entire management and control of the

waste lands belonging to the Crown in the said

colony and also the appropriation of the gross

proceeds of the sales of any such lands and of

all other proceeds and revenues of the same

from whatever source arising within the said

colony including all royalties mines and

minerals shall be vested in the Legislature of

the said colony. And whereas it is not

competent to Her Majesty to assent to the said

reserved Bill without the authority of

Parliament for that purpose. And whereas it

is expedient that Her Majesty should be

authorised to assent to the said reserved Bill
amended by the omission of certain provisions

thereof respecting the assent of the Governor

to the Bills which may be passed by the

Legislative Councils and Assemblies of the

said colony and Her Majesty's power to

disallow the same and respecting the

boundaries of the Australian Colonies and that
so much and such parts as aforesaid of the

said specified Acts of Parliament should

thereupon be repealed and that the entire
management and control of the said waste lands

and proceeds should be vested in the

legislature of the said colony. And whereas a

copy ..... is set forth in the schedule one to

this Act.

So the New South Wales Constitution became a

schedule to this enabling Imperial Act. And then -

Be it therefore enacted .....

1. It shall be lawful for Her Majesty in

Council to assent to the said reserved Bill as

amended as aforesaid and contained in schedule

one to this present Act annexed anything in

the said specified Acts of Parliament or any

other Act law statute ..... notwithstanding.

2.       From the day of the proclamation of this

Act in the Colony of New South Wales (the said

reserved Bill as amended as aforesaid having
been previously assented to by Her Majesty in

Council as aforesaid) so much and such parts

of the several Acts of Parliament mentioned in

Mabo 238 30/5/91

schedule two of this Act as severally relate

to the Colony of New South Wales and are

repugnant to the said reserved Bill amended as

aforesaid shall be repealed and -

then it provides -

the entire management and control of the waste

lands belonging to the Crown in the colony and

also the appropriation of the gross proceeds

of the sale of any such lands and of all other

proceeds and revenues ..... whatever source

arising within the said colony including all royalties mines and minerals shall be vested in the legislature of the said colony.

Now, that section, Your Honours, is the grant of

power, we would respectfully contendq, pursuant to

which, in due course, when the colony of Queensland
separated from the colony of New South Wales, which

was then picked up by the Queensland Constitution

and which ultimately empowers the legislation such

as we have which is currently the subject of
concern.

In so far as it is relevant to consider the question of the meaning, the interpretation as

Your Honour Mr Justice Brennan had raised with me,

we would respectfully submit that assistance is

gained by seeing what it is that was purporting to

be conferred in the light of that history and again one confronts the question of this concept of waste

lands and what appears to be conferred is a power

to deal with lands which are categorized or

characterized as waste.

And then at section 4 over the page at

page 14, in effect, repeats or makes a further

grant of power. That is a grant of power enabling

the legislature to itself amend its Constitution.

It provides:  It shall be lawful for the Legislature of

New South Wales to make laws altering or

repealing all or any of the provisions of the

said reserved Bill in the same manner as any
other laws for the good government of the said

colony subject however to the conditions imposed by the said reserved Bill on the

alteration of the provisions thereof in

certain particulars -

of the manner informed provision, but subject to

that there is the power to amend.

Now, if I could then take Your Honours to the

Constitution Act, which is described as the

Mabe 239 30/5/91

"reserved Bill" and I will hand this up to

Your Honours, because it was omitted from our book
and I hand eight copies to Your Honours. That,

Your Honours, is the reserved Act that is referred

to in the enabling Act that I have just been taking

Your Honours to and perhaps it is only necessary to

take Your Honours to section 50 which appears at
the page marked 2817. At the foot of page 2817 one

sees section 50:

Subject to provisions herein contained it

shall be lawful for the Legislature of this Colony to make laws for regulating the sale

letting disposal and occupation of the Waste

Lands of the Crown within the said Colony.

And there is no definition of "waste lands".	I say
that with some hesitation, Your Honours, but we

venture to suggest that there is no definition. It

may be that on further researches it will be found,

but I think there is no definition in that.

Now, one sees again that the language of the

original New South Wales Constitution encompassing

Queensland was dealing with "waste lands of the

Crown" and again, so as to make our proposition

clear in terms of power, is our respectful

contention - we simply put it as a matter of

construction that that was applying to the colonies

as then constituted. It is our respectful

contention that in order for there to be a grant of

such power, or for that power to be conferred in

relation to any extention of the boundaries of the

colony, there would have to be an express provision

so providing, pursuant to express Imperial

legislation, the matter of the disposition in either of those lands having been clearly the

subject of Imperial grant in terms of the enabling

Act.

Can I then take Your Honours briefly to

page 20 of our book again, merely to pick up the

way in which Queensland came to be erected into a

separate colony. Perhaps I should simply direct

Your Honours' attention without going into any

specific provisions to page 16 of the book - that

is the letters patent of 1859 -

erecting Moreton Bay into a Colony under the

name of "Queensland" -

and that, of course, was pursuant to the earlier

bill which had provided for the separation or

erection of a separate colony, and that is at page

16.       I will not take Your Honours to any specific

provisions in relation to that.

Mabo 240 30/5/91

Then at page 20 there is the -

Order in Council Empowering the Governor of

Queensland to Make Laws and to Provide for the

Administration of Justice -

and relevant to consideration of this matter is

perhaps clause 22 which provides that -

The Legislature of the Colony of Queensland

shall have full power and authority ..... to

make laws altering or repealing all or any of

the provisions of this Order in Council ..... as

any other laws for the good government of the

colony except ..... as incorporates the

enactments of -

various bills. But there seems nothing specific in

relation to land in those. There is, however - at

page 23, Your Honours, one finds the form of the

Queensland Constitution. This is a consolidated

form, but I do not think there is anything

significant in that. At page 23 it is set out.

And if I take Your Honours to page 25 there is

the general provisions commencing with the

legislature. The legislature does have the usual

provision in section 2:

Within the said Colony of Queensland

Her Majesty shall have power by and with the

advice and consent of the said Council and

Assembly to make laws for the peace welfare

and good government of the colony in all cases

whatsoever.

BRENNAN J:  Mr Castan, I am sorry, have lost the 1859-1867

legislative coverage. Where does that come from?

MR CASTAN:  I think, Your Honour, that we do not have in

this book a copy of the Constitution.	What we have
as at 1867 is a consolidation of the Constitution

of Queensland. It happens to have been reproduced

in this form. I do not think there is any

significance in the distinction. we can obtain a

copy of the Constitution as at 1859, but I do not

think there are any relevant amendments to which we

need direct Your Honours' attention.

What we do direct Your Honours' attention to

is page 26 of the Queensland Constitution in which

section 30 then contains a specific grant of power:

Subject to the provisions contained in

the Imperial Act of the eighteenth and
nineteenth Victoria chapter fifty-four and of

an Act of the eighteenth and nineteenth years

Mabo 241 30/5/91

of Her Majesty entitled "An Act to Repeal the

Acts of Parliament now in force respecting the

Disposal of the Waste Lands of the Crown in

Her Majesty's Australian Colonies and to make

other provision in lieu thereof" which concern

the maintenance of existing contracts -

and I do not think that affects us here -

it shall be lawful for the legislature of this

colony to make laws for regulating the sale

letting disposal and occupation of the waste

lands of the Crown within the said colony.

Now, again we say it is that constitutional

empowerment that appears to found the provisions of

the Crown Lands Act. The first Crown Lands Act - I

hesitate to say "first" - but can I take

Your Honours to the first that we have set out.

Unfortunately I cannot assure Your Honours that

what we have here is the very earliest, but can I
take Your Honours to page 54.

I was going to direct Your Honours to definitions in the Crown Lands Alienation Act 1868.

That is the first we have been able to locate.	It
commences at page 53, and at page 54 one picks up
then a definition, which is in the form of the
definition, or similar to the definition that is
then subsequently picked up and which we still
have.

Crown lands there are defined as:

All lands vested in Her Majesty which have not

been dedicated to any public purpose or which

have not been granted, or lawfully contracted

to be granted, to any person in fee simple and

all lands which at the time of the passing of

this Act may have become or which after the

passing of this Act may become forfeited by

reason of any breach in the conditions on

which the same have been granted or contracted

to be granted.

And section 21 of that Act, which appears at

page 58 contains a reservation power:

21. It shall be lawful for the Governor from

time to time to grant in trust or by

proclamation to reserve either temporarily or

permanently any Crown lands which in his

opinion are or may be required for quays landing places tramways railways railway

stations -

and it goes on -

Mabo 242 30/5/91

aqueducts or water-courses or for the use or

benefit of the aboriginal inhabitants.

Now that seems to be the sequence by which one

moves from 1842, with Imperial legislation dealing
with what is called wastelands, through to

reference to wastelands in the Constitution in

section 30, that we have just mentioned - the power

to deal with wastelands - and then that power

expressed in terms of the definition of Crown lands

that I just took Your Honours to at page 54. That

is followed through with some variance thereafter.

The two propositions we put that we would

respectfully submit to be derived from that are

that what was being granted was the power to deal with wastelands in the literal sense. That meant

lands which were unoccupied, that it could not

refer to lands which were occupied in fact by an

entire population and in respect of which the lands

were already owned.

We respectfully submit also that as a matter of power, the grant of power was when the power to

deal with lands was passed over to the colony it

was limited in that way. We add to that the

submission that when one comes - and I will take

Your Honours now to the instruments of annexation -

and one comes to the annexation in 1879, that there

was not any specific grant of power from the

Imperial Parliament so as to extend the grant of

power applied in relation to lands beyond the

territory of Queensland as constituted in New South

Wales initially as constituted in 1855.

DEANE J: But once you reach the constitutional and

responsible government stage, are not the waste

land provisions simply enabling in relation to the

limited category to which they apply?	I mean, if
this land does not come in waste lands it will come

within the general grant of legislative power for

the peace, order and good government.

MR CASTAN:  Yes, and that is as we understand the way in

which it is put - - -

DEANE J:  I follow the relevance of this to the construction

of this section 110 Act but I really do not quite

follow how, if you get this land out of the waste

lands of the Crown which were traditionally seen as

requiring special provisions, it says anything as

to legislative power except perhaps to remove

restrictions on it.

MR CASTAN:  Yes, and we concede that tells against the view

we are putting, Your Honours, and it has been put

Mabo 243 30/5/91

by our learned friends in that way. What we submit

is that there is a territorial aspect to this, that

it was seen as necessary to make a specific grant

to specifically enable the legislatures to deal

with the land comprised in the territory of the

colony. We would respectfully submit, it is

therefore necessary to find such a specific grant

of the power to deal with the lands in the new

territories and one does not find that.

We cannot put it any higher than that. We

simply put that there is no such grant and it was

seen as necessary to make such a grant. Assuming,

what we might call the broader view of waste lands,

assuming that the reserve was validly constituted,

as a matter of interpretation, we would say it

could not have been validly constituted in relation

to lands outside the areas that were the subject of

the grant of power. Now, we simply say that where

the boundaries of a colony have been extended it

was necessary to find some specific grant of power

in the same as it was seen as necessary in relation
to the situation in 1855.

We draw attention, at page 1035 of our submissions, when dealing with this matter, to an

analogy - and we cannot put it any higher than

that - with the legislation that was enacted in

1980 comprising the coastal waters settlement. It

is interesting to note that in order to achieve

what is, in effect, an alteration of the boundaries

of the States or a conferring of power on the

States in relation to the offshore waters in order to achieve that settlement, it was seen as

necessary not merely to vest the areas in the

States - for the Commonwealth to vest the areas

which this Court had held in the Seas and Submerged Lands Act case were within the Commonwealth and not

part of the States below the high-water mark. It

was seen as necessary to actually explicitly confer

power to deal with the actual territory: the

seabed, the seas.

Now, we cannot take it further than pointing

to the analogy and pointing to the apparent

necessity as it was seen in developing that

particular scheme, what one might call the

extension of the boundaries of Queensland in that case - three miles out. It was seen as necessary

to expressly confer a power to deal with the lands,

in that case the seabed. We would respectfully

submit, it illustrates the proper view of what is

required. It was apparently not seen as sufficient

simply to let an ambulatory operation of the

Queensland Constitution or of Queensland statutes generally operate.

Mabo 244 30/5/91

We should mention also, as is pointed out at

page 1036, that this or an argument along these

lines was put to this Court, among many others, in

arguing the demurrer in these proceedings in 1988.

These submissions were dealt with by Your Honour

Justice Dawson, and rejected, and not dealt with,

we think, on analysis of the judgments, by any

other of Your Honours.

Now, there is another basis upon which we put the power argument, which commences from

paragraph 15 on page 1036, and for this purpose it

is necessary to take Your Honours to the case of

Wacando v Commonwealth. While that is being turned up, could I indicate to Your Honours that there is

an error on page 1033, just so that we avoid

confusion in putting this together. On page 1033,

at the top of the page in the first full paragraph

which commences, "In Mabo v Queensland", that is an

error. That should read, "In Wacando v

Commonweal th" .

If I could take Your Honours back now to

page 1036 and take Your Honours to the case of

Wacando. Wacando was a case brought by a resident

of Darnley Island, which is very close to Murray Island, and is one of the islands that is in the

same category. It was annexed in 1879 by the same

instruments. In Wacando the claim was made that

the annexation was ineffective and the matter was

dealt with on that basis.

I should indicate to Your Honours by way of

summary that there were - and I have mentioned

this, I think, earlier and I have not taken

Your Honours yet to the instruments, which we will

do shortly - in effect, four instruments that

needed to be considered in effecting this

annexation: letters patent from the Imperial Crown, a statute of the Queensland Parliament

authorized by those letters patent, a proclamation

by the Governor. Those three steps took place in

1879 and, as Your Honours saw when I took Your

Honours to some of the historical documents,

everybody, at least in Queensland, proceeded upon

the basis that that was effective to achieve an

annexation.

In 1894, in the colonial office, doubts were

expressed about the effectiveness of this 1879

annexation and also the annexation of, I think it

is the Kermadec Islands to one of the South African

colonies and at least one or two others. There

were some doubts expressed about whether an

annexation effected by letters patent and colonial

legislation was sufficient or whether there should

Mabo 245 30/5/91

not have been, in order to make the annexation

effective, Imperial statute.

And that is because, as is analysed in

Wacando, the issue was raised by law officers who

had given consideration to this in the 1890s,

consideration whether the boundaries of a colony

could be altered - boundaries which had been fixed

or referred to in earlier Imperial legislation,

whether those boundaries could be altered by

letters patent without an amending Imperial Act.

And the view of the law officers at that time was

that an Imperial Act was necessary and that there

were real doubts about whether the annexation in

1879 effected by letters patent and merely colonial

legislation had been effective.

Ultimately, an Act was passed, an Imperial

Act, the Colonial Boundaries Act of 1895 was passed

to put the matter beyond doubt and that was put in

terms which, in effect, retrospectively validated

the annexation, and the Court in Wacando held that

the annexation was effective and the challenge

failed. But Their Honours differed as to the

reasons why it was effective with two of the

members of the Court holding that the letters

patent were not effective, Your Honour the

Chief Justice holding that the letters patent were

not effective, but the Colonial Act of 1879 from
the Queensland legislature was sufficient.

His Honour Mr Justice Wilson holding that there had not been any effective annexation and that the law

officers who had expressed the doubts were correct

and that the only effective annexation occurred and

was made retrospectively effective by virtue of the

passing of imperial legislation in 1895.

Now, it is our respectful submission that

His Honour Mr Justice Wilson took the correct view.

I should also mention that a number of

Their Honours who dealt with the matter did not
determine that issue.	We have summarized the ways

in which Their Honours dealt with it at page 1033.

It may be useful just to run briefly down that

summary. As we put it at 1033 in Wacando:

all Judges (Gibbs, Mason, Murphy, Wilson,

Aickin and Brennan agreed that the 1895 Act

validated the annexation.

Only the Chief Justice and Mr Justice Aickin:

held that the Letters Patent of 1878 were
authorised by the (Imp.) Australian Colonies
Act 1861 -

Mabo 246 30/5/91

So, only two of the members of the Court thought

that the letters patent were adequate -

Mason J. disagreed but held that the

Queensland Parliament had power to annex the

Islands, and did so effectively by the 1879

Act.

Wilson J. agreed with Mason J. that the

Letters Patent were not authorized by the

Australian Colonies Act 1861 but held that the

Queensland Parliament did not effectively

annex in 1879.

Murphy J. did not decide any questions other than effectiveness of the

1895 remedial Act

Brennan J. agreed that whatever the position,

annexation was validated by the -

1895 remedial Act. So, that while the Court

certainly held that the annexation was valid there
is no clear ruling from the Court arising from

Wancado as to whether it was effected pursuant to

the letters patent, or whether the Colonial Act was

sufficient, or whether it required the remedial

legislation. We would respectfully submit that

legislation was required as so determined by

His Honour Mr Justice Wilson, and if I could take

Your Honours briefly to His Honour's analysis of

the matter which appears at page 28 of the

judgment. He agrees with the Chief Justice with a

reservation and expresses a:

reservation ..... with respect to the efficacy

of the Letters Patent of 10 October 1878.	The
Chief Justice accepts, in my respectful

opinion correctly, that the boundaries of the
colony of Queensland having been determined

under the authority of Imperial enactment, any

change to those boundaries by subsequent

Letters Patent required similar authority. I

am unable to find any such authority in this

case. In particular, I do not think that it
is supplied by the Australian Colonies Act

1861. The preamble to that Act and its

relevant provisions are set out in his

Honour's reasons -

He then analyses the section:

Section 2 authorizes Her Majesty to annex to a

colony "any Territories which, in exercise of

the Powers herein-before mentioned, might have

been erected into a separate Colony". It

Mabo 247 30/5/91

seems to me, with respect, that the only

territories which in exercise of the powers

referred to could have been erected into a

separate colony were territories which already

formed part of New South Wales. Darnley

bys. 2 of the 1861 Act did not extend to it.

Island did not form part of New South

I would reject the argument for the

Commonwealth that because it was within the

power of the Crown under earlier statutory

authority to extend the boundaries of New

South Wales so as to include Darnley Island

(and presumably any other territory ..... ) and

then to erect that added territory into a

separate colony, that territory was

comprehended in the final phrase of s. 2 of

the 1861 Act. That argument, if correct,
leads to the conclusion thats. 2 authorized
the annexation to an Australian colony of any

territory at all. It renders the final phrase

of the section redundant. I may add that I

come to this conclusion on the construction of

the section itself, rather than by reliance

upon any considerations of the statutory

intent..... ·

In my opinion, therefore, the Letters

Patent of 10 October 1878 were insufficient

authority for the annexation of Darnley Island

to Queensland. Nor do I think that the lack

of authority was overcome by the enactment by

the colonial legislature of the Queensland

Coast Islands Act of 1879. Although in terms

that Act declared that on the appointed day

the islands described in the Schedule (which

included Darnley Island) "shall be annexed to

and become part of the Colony of Queensland",

its provisions must be construed in the
context of the Letters Patent which required

its passage as a condition precedent to the

proclamation by the Governor declaring the

islands to be annexed to and to form part of

the colony. Its enactment represented no more
than the consent of the colonial legislature
to the annexation of territory that was

colonial legislative incompetence to enact

intended to be effected by authority of the

laws having extra-territorial effect which

held sway during the nineteenth century

militated against the discernment of any

legislative intent to effect an extension of

the boundaries of the colony by force of its

own enactment ..... it would be necessary to

exarnine ...... possible repugnancy to Imperial

legislation, and also the question whether it

Mabo 248 30/5/91

was competent for the legislature to enact, as

a law for the peace order and good government

of Queensland, a law annexing an island ninety
miles away from the mainland. But these
interesting questions need not be pursued.

..... whatever may have been the legal efficacy of the Letters Patent of 1878, the

passage of the Colonial Boundaries Act 1895

(Imp.) placed the validity of the annexation

beyond doubt. That statute therefore seals

the fate of the plaintiff's claim.

Now what the 1895 Act, however, does not do is

make provision for a grant of power in respect of

the matters that we have earlier been debating, and

could I take Your Honours to the instruments which

appear at page 35 of volume 8. I am sorry,

Your Honours, it is very difficult to read. The

clearer type is on page 36, Your Honours. It is

repeated and it is easier to read on page 36. The

first instrument is the letters patent and it is

expressed - these are the instruments that course bear on Murray Island.

it is expedient that certain islands in

Torres Straits, and lying between the

Continent of Australia and Island of

New Guinea -

and then there is a description:

all Islands included within a line drawn from

Sandy Cape northward to the south-eastern

limit of Great Barrier Reefs, thence following

the line of the Great Barrier Reefs to their

north-eastern extremity, near the latitude of
nine and a half degrees south, thence in a

north-westerly direction, embracing -

and so on it goes on -

embracing Warrior Reef, Saibai, and Tuan

Islands, thence diverging -

and the description continues to Talbot Islands -

thence to and embracing the Deliverance

Islands, and onwards in a west by south direction (true) to the meridian of one

hundred and thirty-eight degrees of east

longitude, should be annexed to and form part

of Our Colony of Queensland.

So it is expedient that they should.

Mabo 249 30/5/91

Now We do, by these Our Letters-Patent, under

the Great Seal of Our United Kingdom of Great

Britain and Ireland, authorise Our

Governor ..... by Proclamation under his hand

and the public seal of the said Colony, to

declare that, from and after a day to be

therein mentioned, the said Islands shall be

annexed to and form part of Our said Colony.

That is the authorization conferred by

letters patent and not by legislation at that time,

to the governor.

Provided always that Our said Governor issues

no such Proclamation as aforesaid -

there is a condition precedent -

until the Legislature of Our said Colony of

Queensland shall have passed a law providing

that the said Islands shall, on the day

aforesaid, become part of Our said Colony and

subject to the laws in force therein.

Provided also that the application of the said

laws to the said Islands may be modified

either by such Proclamation, as aforesaid, or

by any law or laws to be from time to time

passed by the Legislature of Our said Colony

for the government of the said Islands so

annexed.

And there is a reservation to amend the letters

patent and a direction that they be read and

proclaimed.

Then we go over ·to page 38, there is the Act

of the Queensland Legislature in June 1879. It

recites the letters patent and recites what was

provided in them and that is all set out.	And then
it enacts in section 1:

From and after such day as His Excellency

the Governor of Queensland shall by such

proclamation under his hand and the public seal of the Colony as is authorized by the said letters patent mention and appoint for

that purpose the Islands described in the

schedule hereto shall be annexed to and become

part of the Colony of Queensland and shall be

and become subject to the laws in force

therein.

The schedule sets out the islands and then again,

not a very good print, I regret Your Honours, but
there is then the proclamation of July 1879 and
that recites the letters patent and then it recites

the Queensland Act at the bottom of the first

Mabo 250 30/5/91

column and then, a quarter of the way down the next
column:

Now, therefore, I, the Governor aforesaid, in

pursuance of the power so vested in me, and by

and with the advice of the Executive Council,

do hereby notify and proclaim that from and

after the first day of August, in the year of

our Lord one thousand eight hundred and

seventy-nine, the Islands described in the

Schedule hereto shall be annexed to and become

part of the Colony of Queensland, and shall be

and become subject to the laws in force

therein.

The schedule sets out the islands. Can I then take

Your Honours to page 41, which is the Remedial Act,

referred to by His Honour Mr Justice Wilson and the

others of Their Honours in the Wacando decision.

That is the Colonial Boundaries Act 1895, the

Imperial Act, thought to be necessary at the time:

1. Alteration of boundaries of colony -

(1) Where the boundaries of a colony have,

either before or after the passing of this Act

been altered by Her Majesty the Queen by Order in Council or letters patent the boundaries as so altered shall be, and be deemed to have
been from the date of the alteration, the

boundaries of the colony.

2. Provided that the consent of a self-

governing colony shall be required for the

alteration of the boundaries thereof.

(3) In this Act "self-governing colony" means

any of the colonies specified in the schedule

to this Act.

And Your Honours will see on the next half of this

sheet the self-governing colonies are set out:

Canada, Newfoundland, New South Wales, Victoria,

South Australia, Queensland, Western Australia,

Tasmania, New Zealand, Cape of Good Hope, Natal.

What is notably missing, we would respectfully

submit, from this legislation, is any provision

authorizing by Imperial legislation the operation
of power to deal with the land, the subject of the

area that had become the extended area of the

colony of Queensland. But while it is one thing to

have altered the boundaries of Queensland, that is

a somewhat shorthand way of saying that new

territory had been added to Queensland. It is

spoken of in the legislation and the law office

opinions and the various other learned

Mabo 251 30/5/91

consideration of the matter deals with it as though

it is a question of the alteration of the

boundaries of Queensland.

But, of course, it was a separate exercise

that also occurred. Territory which was otherwise

not under the sovereignty of the British Crown had

been brought under the sovereignty of the British

Crown. An annexation had taken place as well as

alteration of the boundaries of Queensland and it

is necessary to characterize what occurred with

those two components and we would respectfully

submit that where the new colony had been annexed

it was necessary to find, in relation to that new

colony, some explicit grant of power under Imperial

statute that would provide for dealings in relation

to the land, the subject of the area that had been

so dealt with.

BRENNAN J:  Do you mean administrative power, executive

power or legislative power or both?

MR CASTAN:  We would respectfully submit all of those,

Your Honour. It was necessary - and it may be that

there would be a prerogative power, sufficient

prerogative power to deal with certain matters.

But, certainly, so far as legislative power is

concerned and power to deal with the lands and to

pass laws, we would respectfully submit it was

necessary to provide - and we would respectfully

submit, it is our contention, that the Lands Acts

which had been passed in the way we have earlier

seen, pursuant to the constitutional grant of power dealing with wastelands, did not extend to this new territory; certainly not in the absence of an

express grant of power. So that we would respect

contend that it is that which founds the limit on

what we might call the ambulatory operation of the

Crown Lands Act.

GAUDRON J:  Does that mean that the 1882 reservation was of

no effect?

MR CASTAN: That is right, Your Honour.

GAUDRON J:	So it would then come within the 1910 Act?
MR CASTAN:	That was also of no effect, we would submit,

Your Honour, on this argument.

GAUDRON J: Not even after 1895?

MR CASTAN:  Not even after 1895. What we point to is the

absence of an explicit grant of power to do those

things in the remedial statute. But merely saying

that the boundaries are altered was insufficient.

Mabo 252 30/5/91

That is our contention. And that therefore on this

argument there is a complete absence of - - -

GAUDRON J:	Is there any way that the position varies as between prior to 1895 and after 1985?
MR CASTAN:	If the 1895 Act was sufficient, then it

purported to deem its operation back to the

annexation, if it was sufficient. If it was not

sufficient, then it was not sufficient at all, in

our respectful submission.

GAUDRON J:	And still is not sufficient?
MR CASTAN:	And still is not sufficient.

GAUDRON J: Is anything now sufficient?

MR CASTAN:  It is our submission that only the Commonwealth

can act as an international sovereign, and that it

took an international sovereign to actually effect

a change of sovereignty. Queensland was not then

and is not now an international sovereign and could

not act as a member of the family of nations, and

this has been dealt with in a number of cases and

was much debated in the Seas and Submerged Lands

Act case.

We are here talking about the incidence or

consequences of a change of sovereignty as well as

an alteration of the boundaries of Queensland. But

to characterize it merely as an alteration of the

boundaries of Queensland is to avoid the real issue

which is the change of sovereignty. And the change

of sovereignty depended upon - - -

GAUDRON J: But I thought sovereignty was not an issue.

MR CASTAN: There has been a change of sovereignty. We

concede that it has occurred, but the terms upon

which - - -

GAUDRON J: But all it means on your view is what? It means

you cannot legislate - - -

MR CASTAN:  It means that Queensland cannot legislate and

the Commonwealth, as the relevant international

sovereign, is in a position to make the conferral

of the grant of power on Queensland or to deal with

the matter itself. The Commonwealth became the

irrelevant international sovereign either in 1901,

or on one view after the Statute of Westminster,

and that might be an open question as to precisely

when the Commonwealth became an independent

international sovereign. But on any view it

certainly is now and certainly the Seas and

Submerged Lands Act and Bonser v La Macchia and the

Mabo 253 30/5/91

other cases we have referred to here make it clear

the States cannot function as an independent

international sovereign.

Now, sovereignty was changed, but the Imperial

Crown, we would respectfully submit, was the

international sovereign. The Imperial Crown did

not make a relevant grant of power to enable steps

to be taken to extinguish and deal with these

interests in land that we have been concerned with.

We support that with an additional matter to

which I would seek to direct your attention.	It is
set out at page 1038 of our submissions. At
page 1038, Your Honours, in our submissions, we

call in aid on this matter the provisions of the

Pacific Islanders Protection Act. These were

provisions which were enacted in the 1870s in

respect of a very very large area of the Pacific.

We have set out the whole of the relevant

provisions at pages 578 and onwards in volume 9 of

our statutes. It is not necessary to go to the

whole of them because we have set out the relevant

provisions here at page 1038. But I would indicate

to Your Honours that the whole legislation is set

out from pages 578 onwards in volume 9 of the

statutes. The provisions that we call in aid are

provisions which provided that:

It shall be lawful for Her Majesty to exercise

power and jurisdiction over her subjects

within any islands and places in the Pacific

Ocean not being within Her Majesty's

dominions ..... in the same and as ample a

manner as if such power or jurisdiction had

been acquired by the succession or conquest of

territory, and by Order in Council to create

and constitute the office of High

Commissioner -

So there was a limited mechanism set up. The

significant provision then appears in section 7,
that:

Nothing herein or in any such Order in Council

contained shall extend or be construed to

extend to invest Her Majesty, her heirs or

successors with any claim or title whatsoever

to dominion or sovereignty over any such

islands or places as aforesaid, or to derogate

from the rights of the tribes or peoples

inhabiting such islands or places, or of

chiefs or rulers thereof, to such sovereignty

or dominion, and a copy of every such Order in

Council shall be laid -

Mabo 254 30/5/91

and so on. Now, what we have here, prior to

annexation, is what we would respectfully submit is

an acknowledgement of pre-existing sovereignty and

of pre-existing rights of tribes or peoples in

respect of islands which included these islands.

The British Crown, by statute, had made express

acknowledgement of particular matters. We would

respectfully submit that this bears directly upon

the issue considered in Wacando as to whether or

not an effective annexation could take place by

letters patent or whether statutory provisions were

required.

In addition to those matters debated in

Wacando, in which the law officer's of the Crown

view about the limits of alteration of a boundary

were debated at length, we would respectfully

submit - and this was not brought to the attention

of the Court, apparently, in Wacando - that where

there has been express acknowledgement in this form

of rights of sovereignty of chiefs and tribes in

local areas that when one of such areas is then to

be annexed or the sovereignty there referred to is to be changed or removed, as occurred, it requires

a statute. In other words, the Imperial statute

acknowledged sovereignty. If it was going to take

it away it would take an effective statutory change

of that acknowledgement. It would not suffice for

letters patent to do so.

We submit that that weighs heavily in support of the view expressed by His Honour

Mr Justice Wilson that a statute was required. And

once it is established that a statute is required

it is necessary then.to see the statute as the

source of the change and the source of the relevant

power. One thing that the statute did not do was

make any form of conferral of power or conferral of jurisdiction. All it did was approve the change of boundaries but it did not do what the letters

patent had purported to do which was to confer

power. In the absence of that - - -

DAWSON J: But you do concede that it brought with it the

radical title, so it did make - - -

MR CASTAN: Yes, Your Honour. In the ultimate feudal sense

the change of sovereignty had that effect. But we

have not challenged the ultimate effectiveness of

the change of sovereignty, given the 1895 - - -

DAWSON J: Whereas the Pacific Islanders Protection Act

denies any radical title, or any title whatsoever.

MR CASTAN:  Yes, Your Honour, it denies any radical title.

Mabo 255 30/5/91

BRENNAN J:	I am at a loss to understand your answer to Justice Dawson, because if there was a radical
title effectively vested in the Crown by the 1879 annexation, whether or not it depends on
ratification in 1895, that radical title is held by
the Crown - a view that has thus far been adopted - in right of the colony in respect of which the
Crown is exercising its powers.

So that means that you have a radical title

held by the Crown in right of Queensland but no

power in Queensland to deal with any land which is

the subject of that radical title.

MR CASTAN:	Yes, Your Honour, I have perhaps not thought through the ultimate consequence of the absence of
power in the limited form that the statute is
expressed.

If I could respectfully adopt what Your Honour

has put, it would seem in the absence of there

being an express acknowledgement or disavowal, if

one can put it that way, of any sovereignty at all

in the 1875 legislation, it would be our submission

that on this argument there would be no acquisition

of an ultimate radical title unless something in the way of legislative provision is so provided.

In the absence of that legislation in the 1895

Act it would follow, as Your Honour

Mr Justice Brennan has put it, there could be no

radical title; that all that has occurred is a bare

change of sovereignty.

It may be that the ultimate correct analysis

is an in-between position. A radical title is

vested in the Crown but the Crown in right of the

British Crown at that stage, in the absence of any

conferral of power on the colonial Parliament by

statute given that there had been the statutory

acknowledgement of sovereignty four years earlier.

Now it is one or other of those two positions

seems to follow necessarily. If it be the correct

position that on a change of sovereignty the

radical title of the Crown as a matter of the

application of feudal theory vests in all land,

wherever there is such sovereignty, if that be the

correct analysis then, in our submission, it vests

in the Crown in right of - the British Crown, the

international sovereign that has not then, pursuant

to the relevant statute, made any conferral of

power on the colonial Parliament. That, we

respectfully submit, is the alternative analysis.

Your Honours, we have set all this out at the

pages that follow and I do not know that we can

Mabo 256 30/5/91

take it any further. We draw the assistance we

have submitted from those provisions.

The only other matter that I wanted to briefly

take Your Honours to that I have not touched on in the course of these submissions is the question of

compensation. It is one of the questions raised

for Your Honours and reserved for Your Honours'

consideration. We have put forward some brief

written submissions on that matter at pages 1109

and onwards. That is in volume 6. Those

submissions go forward upon the basis that there is

a power to deal with the lands in ways which impair

the plaintiffs' interests.	I am sorry, 1108,
Your Honours.	It starts at the foot of the page.

At the foot of page 1108, what we are drawing

attention to in relation to those amendments, which

are analysed, as we took Your Honours yesterday, in

chapter 9, that they do not provide for any

compensation for extinguishment of the plaintiffs'

rights, though they do provide for compensation

after the land has become subject to a deed of
grant in trust if parts of the area the subject of

the DOGIT are later resumed. And we give some

examples then at page 1109: section 352 is one

illustration - that is to be found at page 134 of

volume 8 - where some land is surplus, and

interestingly, in section 352(2), as Your Honours

will see we have underlined, there is an express

provision that land may be resumed after the grant

of a DOGIT "without paying any compensation

whatsoever for the land" in those instances. And

subsection (7) does provide for compensation for

improvements or developmental works.

The question of compensation was partially

addressed. In section 358, we draw attention there

- that is half-way down the page, that is at page

141 of the book - and we draw attention again to a

provision "expressly providing" - and the second

paragraph set out there: 

In respect of any possession of which has been

so resumed no compensation whatsoever for the

land, or for any item or factor associated
with such resumption of possession, shall be

payable except for improvements or
developmental works -

and again, a reference to the provisions of the

Acquisition of Land Act. That Acquisition of Land

Act, that is referred to at the foot of page 1109, is also in our book, volume 8, page 183.

At the top of page 1110 we refer to

section 306, which is another one of the

Mabo 257 30/5/91

provisions, which does provide for resumption of

leasehold interests with compensation. Section 306

is at page 111 of volume 8.

So that what we say is to be drawn from this

is that in specific instances, where it is intended
that no compensation will be payable for interest

in land which are resumed, the legislation so

provides, but there is no such express exclusion of

compensation payable for the extinguishment of

traditional or other interests in land upon the
granting of a DOGIT.

It is not surprising that that is so, it was no doubt - it is not conceded that the interest

exists. So one does not find any express

provision. But one does not also find any express

exclusion of compensation. We would respectfully

submit, as we set out in paragraph 66, that the

general principle applicable is that they will not

be interpreted so as to provide for acquisition of interests in land without compensation where other

construction is possible. We have there set out

all of the cases we have been able to locate that

restate that fairly fundamental principle. That is

on page 1110. And it has become a fairly

fundamental principle and all of those are cases,

as we understand them, which deal with questions of

statutory construction where the question of

compensation is raised.

At paragraph 67 we point out that the similar principle operates a fortiori in cases involving

exercise of the purported prerogative power to take

without compensation. We refer to De Keyser's

Royal Hotel and we would add by way of reference on

the prerogative power Nissan v the

Attorney-General, (1970) AC 179, at 227; and the

Burma Oil Company case, (1965) AC 75.

We say - and we go on and discuss what

interpretation should be adopted. Our position, as

we have earlier outlined it, is set out paragraph

69.     If the view is taken that the legislation does

effect such an extinguishment, we call in aid

section 109; that is set out at paragraph 69. If

the legislation as construed is not rendered void

by section 109 then we say: if there has been an

extinguishment, on the proper construction of the Act, then in the absence of a provision expressly providing that compensation shall not be payable,

it is payable or is otherwise picked up by the

Acquisition of Land Act.

We refer there to the relevant section 5;

that is at page 184 of our volume 8. The second

Mabo 258 30/5/91

schedule which we refer to there is at page 207;

and sections 18 to 35 are at pages 189 to 193.

We then set out the very explicit passage from

Central Control Board v Cannon Brewery where

Lord Atkinson expressly stated that in the absence

of a provision providing that compensation shall

not be payable that the proper view to take is that

compensation is payable where there exists a

general provision that provides for compensation

under a mechanism that has been provided. I will

not read the whole of that - it is set out there -

but that is the view that is expressed.

And a similar view is expressed - that is to

say, that one construes an Act so as to provide for

compensation - in Dalziel's case, which I referred

to yesterday, Dalziel v Minister for the Army,

(1944) 68 CLR 261, at pages 290 to 291, by

His Honour Mr Justice Starke who referred to that.

I will not take Your Honours to the passage but he

does refer to it. And he picks up a comment of his

own to the similar effect, the previous year, in

Johnston Fear and Kingham v the Commonwealth,

(1943) 67 CLR 314, at 327.

BRENNAN J:	Mr Castan, if that brings you to the end of your submissions, I have two questions about your
particulars - page 77 of the blue book, I think it
is.  In relation to paragraph A and the words:

subject to the rights of the Crown as the

holder of radical title therein to

extinguish - I do not understand whether you say that the power

to extinguish legislatively is something which inheres in the holder of the radical title, or

whether you say that the holder of a radical title

has, on that account, a right to extinguish with or

without legislative intervention.

MR CASTAN:  We submit that it is subject to legislative

intervention, Your Honour. It could only

take - - -

BRENNAN J:	What is the significance of the words "as the holder of radical title"?
MR CASTAN:	I think none, Your Honour.

BRENNAN J: Well then, could I ask you to turn to page 79,

paragraph 8.	Whence is there a Crown right of pre-
emption.	What confers that right?

MR CASTAN:  We have put our argument on various alternatives

and, of course, the particulars were not put in

Mabo 259 30/5/91

terms of alternatives. On one alternative, the

right of pre-emption simply means that if the land

is being sold, it is the Crown that has the right

to sell and that persons who are not members of the

community cannot buy in lieu of the Crown. That is

adopting what we might call the conventional

traditional title view, as expressed in Calder, and

that is really all that that is expressing.

Of course, we have also put the matter in

terms of a number of other alternatives and those

alternatives go beyond the existence of that right

of pre-emption. We would have to concede that that

is expressed in terms of - what has happened here

is that these particulars, rather than being drawn

as a set of alternatives - having been asked to

give various expressions of what the limitations

are we have given them, but what has happened is we

have given them in terms of what we might have

called the principle argument but not the various

alternative ways in which one might express it.	I
go no further than that, Your Honour, and they
should be read in that light.

BRENNAN J: Are there any authorities, other than Calder's

case, which speaks of the Crown's right of pre-

emption and, if so, could you give us a reference

to them?

MR CASTAN:  It is a concept that is derived from the

American authorities. What is referred to, really,

by the right of pre-emption is simply that if land

is going to be sold - if those who own the

traditional title are going to dispose of it - that

no individual other than the Crown is the one to

have the right to purchase it or acquire it.

BRENNAN J: Yes.

MR CASTAN:	And that comes out - it seems to be a strong thread through all of the American authorities
starting with Johnson v McIntosh and then the
subsequent earlier - Worcester v Georgia. All the
American cases seem to have the strong element that
only the Crown or its successor, the United States,
could be the purchaser.  What it amounts to is,
putting it in its - and it is referred to, I think,
in Bonjon specifically.  What it really is saying
is that no individual had the right to acquire land
from original owners.  If they wanted to sell only
the Crown could be the buyer and if there was to be
an acquisition only the Crown could be the
acquirer. That is all that is meant by this right
of pre-emption. It is illustrated, we would
respectfully submit, by the experience of what
happened at Port Phillip.

Mabo 260 30/5/91

BRENNAN J: Well, no doubt, but are there any cases which

speak of this apart from the American cases of

Calder and, you say, Bonjon?

MR CASTAN:  Could we have the opportunity to supply

Your Honour with appropriate list and references

which go specifically to it? We will endeavour to

put that together and supply it to Your Honour.

MASON CJ:  Mr Castan, can I take you to the questions which

this Court has been asked to answer? In the course

of argument, the difficulties that confront you in

relation to answering questions (a) and (b) of

questions 1 and 2 were identified and those

difficulties have not disappeared. It may be,

without expressing any view about it, that the
findings made by Mr Justice Moynihan do not enable
the Court to answer questions 1 and 2. Yet the
findings may be such as to satisfy the Court that
the plaintiffs, as members of their relevant

groups, are still exercising traditional rights in

relation to these lands and it may be that you will

succeed in obtaining a decision that those

traditional rights have not been extinguished.

Now, let us assume that is the position. You

would then seek some answers or some relief

different from the answers that are sought to

questions 1 and 2.

MR CASTAN:  Yes we would, Your Honour.

MASON CJ: Well now, if that is so, you had better think

about formulating what you want the Court to do.

If, for example, you want the Court to make a declaration of some kind, you had better put it in appropriate terms.

MR CASTAN:	Yes, Your Honour.
MASON CJ:

It may be that you would also seek a finding that

the plaintiffs at least have a sufficient interest

to satisfy standing requirements.

MR CASTAN:  Yes, Your Honour. I am indebted for that

indication. There were various declarations sought

in the original form of the statement of claim.

MASON CJ: It is not really an indication. It is an

identification of difficulties that you face at the

present time.

MR CASTAN: Yes, I am indebted to Your Honour.

MASON CJ:  And an indication to you that you ought to give

some consideration to your position.

Mabo 261 30/5/91

MR CASTAN:  If Your Honour please. We will certainly give

it attention, and I am indebted to Your Honour for

that indication.

MASON CJ: Yes. Thank you, Mr Castan. Yes, Mr Solicitor.

MR DAVIES:  May it please the Court, may I attempt at the

outset to identify some matters which, in our

submission, are common ground between the parties.

Your Honours, it is common ground that since

annexation the Crown in right of Queensland has

permitted the Murray Islanders to remain in

occupation in the Murray Islands.

It is common ground also - and I will come to

the legal aspect of this later, but it seems to be
common ground that since 1882 the Murray Islands

have been subject to a statutory reserve and, of course, the defendant says that it is under that

reserve that the plaintiffs remain in occupation.

Thirdly, it seems to be common ground that that occupation, subject to our learned friend's

last power argument, whether it is Queensland or

the Commonwealth, and to section 109, may be
terminated by an executive Act under legislation

empowering that Act or by legislation.

Fourthly, it appears to be common ground that

the Crown has protected that occupation against the

invasion of non-Murray Islanders. And, again, the

defendant would say that is pursuant to the

legislative reserve.

Fifthly, it is common ground that the ultimate

title to the land is in the Crown. The plaintiff

says radical title, the defendant says absolute

title. Finally, Your Honours, although this is not

common ground, it is really beyond dispute in this

case, or at least there is no evidence to the
contrary, that the occupation remains undisturbed

and is unlikely to be distu~bed by the Crown. Can I then deal with some factual matters,

Your Honours, and make the submission which appears

in our written submissions anyway, but can I just

summarize it here, that the plaintiffs have not

established on the findings of Mr Justice Moynihan

that there was an ordered system of land tenure

before annexation which has continued, albeit

changed, to today.

Can I direct Your Honours' attention in particular to paragraphs 14, 19 and 21 of our

written submissions. They summarize findings of

His Honour.	In paragraph 14 on page 9 His Honour
said:

Mabo 262 30/5/91

Much of what ~r was the pre-contact

situation, social	or with respect to land,
on Murray Island,	little more than informed
speculation -

the two passages mentioned. Paragraph 19 which is

on page 11:

The plaintiffs failed to establish that there was an ordered system of land tenure

prior to the arrival of Europeans or that it

was essentially the same as that operating

today.

And His Honour made a finding with respect to the

fencing and -

no finding of any land transaction before

European contact.

Then paragraph 21:

It is impossible to reach any conclusions

as to whether there were any restraints upon

the disposition of land in pre-contact times -

and the phrase -

"little more than speculation". The ultimate

determining factor in terms of the control and disposition of land was what was acceptable in terms of social harmony and the capacity of an individual to impose his will on the

community.

Your Honours, the plaintiffs' submissions on the

facts tended to omit, in our respectful submission,

many of the statements of His Honour to the effect

that his findings, many of which were relied on by

the plaintiffs, were in form speculation, and that

And in particular, in our respectful submission, the so-called land system was extremely flexible.	his findings demonstrate that there was no system
of land tenure which determined whether a person
claiming to be entitled to or in possession of land
was so entitled. But ultimately, ownership of land
in their terms depended and still depends on the
ability of the person claiming ownership to impose
his will, or otherwise cause the society to accept
his claim.

Can I take Your Honours to His Honour's

findings in that respect. I take Your Honours just

to indicate the context of His Honour's finding

first of all to page 163, the heading C:

Mabo 263 30/5/91

The Situation with respect to Land Usage Prior to European Contact -

and under that heading at page 17 His Honour said

at the first full paragraph on that page:

It may be legitimately said that much of the foregoing is little more than informed

speculation. The ultimate determining factor

in terms of the control and disposition of

land was simply what was acceptable in terms
of social harmony and the capacity of an

individual to impose his (it seems almost to

have been him) will on the community. This

was easier done if the claim had the

appearance of certain expected

characteristics.

Then can I take Your Honours to page 174 just below

the middle of the page. His Honour said:

Page 174, just below the middle of the page:

The rights associated with a site include

a right to use it for domestic residence -

this is the present tense, of course -

to the exclusion of others and an entitlement

to determine the disposition of the land,

either during life or as a consequence of

death.

Entitlement in respect of a dwelling site

within a village was and is usually regarded

by inheritance from a direct male ancestor

with an expectation that the person so

entitled might pass the land on by the same

means. In former times it seems that

territorial affiliations were involved in

controlling access to illage and other land.

They would seem to have been based on decent.	Such matters are remembered but so far as the
evidence reveals, are of little or no practical application today except for those, diminishing in number, who choose to observe
them.

It is difficult, to the point of

impossibility, to reach any conclusions

precise as to the restraints on the

disposition of village (or for that matter

garden) land prior to European contact. One

may speculate that constraints may originally

have been more rapid in terms of being

restricted to specific social groups and

descents than later came to be the case. The

Mabe 264 30/5/91

situation may have varied at different stages

of the evolution of the society. These are

however no more than matters of speculation.

And so on in the next and the following paragraph.

His Honour seems to refer to what was usually the

case or what was expected and then, finally, at

page 176, at the top of the page, His Honour said:

One is left with an impression that, as

amongst themselves, it may be that the

islanders may dispose of land on whatever

basis is acceptable to those directly affected

and, to the extent to which a wider community

may be affected, is acceptable to that

community. Such acceptance is more readily

attainable in terms of expectations relating
to descent such as those to which I have

referred. There do not, however, seem to be

any qualifications on the disposition or

acquisition of land which could be described

as crucial.

And then in the next paragraph:

Access on a limited basis, we might call it a

lease or licence or loan, may provide an
opportunity to mount a claim for a more
extensive entitlement. This may lead to

quarrels and ultimately the Island Court.

Now, the same rules, or absence of rules, seems to

have been applied to garden land which is dealt

with in the next subheading, and if I can take

Your Honours, with respect, to that, to page 179

where he says that, about point 7:

The considerations dealt with in respect

of the incidents of ownership, the disposition of and dealings in village land appear equally

applicable to garden land.

And at 180 also. They are referred to specifically

with respect to Mr Passi's claim at pages 207 to

212.       I do not want to read any of those passages,

Your Honours have had quite a deal of them read to

you already, but can I mention, specifically,

page 212, about point 6, where he says he is:

prepared to conclude that the Passi lands are

held pursuant to an arrangement such as is

contemplated by the evidence I have canvassed.

Such arrangements, which depend essentially

upon acceptance by those affected, reflect an

aspect of Murray Island social organisations

for generations - probably antedating European

contact. The arrangements, and the ultimate

Mabo 265 30/5/91

breaking up of the holdings, illustrate

perhaps that the real pressure on land

distribution comes when sons marry.

TOOHEY J:	Mr Solicitor, I just have some difficulty with the notion that any assessment of precontact
ownership or relationship with land must
necessarily be speculation, and I suppose in a
sense it must, there is no evidence. On the other
hand, I suppose if there were evidence of some
ordered relationship at the time of contact that
might be of itself a basis for inferring that that system had at least existed some time in the past.

MR DAVIES: Yes, but I think His Honour took that into

account in reaching the conclusion that it was

speculation.

TOOHEY J:	Do you mean the absence of order?
MR DAVIES:	No, His Honour took into account the observations of those at the time of first contact,
in order to reach the conclusion that there was an
absence of order and that it was speculation to
determine whether in fact there was any form of
order at any time prior to that.

TOOHEY J: Just so I understand what you are saying. Are

you saying that His Honour's determination was that

at the time of contact there was no ordered system

and therefore any assessment of pre-contact

relationship was necessarily speculation?

MR DAVIES:  I do not think I can put it as highly as that,

not that there was no ordered system, but that he

was not satisfied, that he could not have been

satisfied that there was.

TOOHEY J:  What does that mean, to say that there was no

ordered system?

MR DAVIES: Well, I think what His EJnour was really saying

was that it very much depended upon, as His Honour

said in the passage I have just quoted, very much

depended upon the strength of the person who was

making the claim, and therefore there was really no

system other than the person who was strongest got

the land.

Your Honours, he also dealt with that question with respect to Mr Rice at page 217, at about

point 4. I will not read that, Your Honours, but

it is just at the end of that first paragraph on

that page. Consistently with those findings,

Your Honours, His Honour made that finding with

respect to the island court to which I have

Mabo 266 30/5/91

referred. That finding is at page 193, where he

referred to:

the role of the court was to maintain social

harmony by accommodating peoples wishes as far

as possible and doing what seemed to be right

in the circumstances. That was of course a

reflection of social attitudes to which I have

earlier referred.

I should mention also that His Honour said, in

volume 2 of his findings, Your Honours will see

that on page 46 of his specific findings, that he

said that the only findings that he was prepared to

make in respect of other matters were those which

were in volume 1.

I should mention, Your Honours, that that

reference there to the amended statement of claim

and to the findings requested, in effect - what

really happened was there was a document which was

exhibit 1, which was called a statement of facts,

and that statement of facts specifically asserted

rules comprising a traditional system of land law

and said what they were. And it was really in the

light of that that His Honour was not prepared to

make any further findings than those which he did.

Your Honours, the point really out of all

that, in our respectful submission, is that as with

Tanistry's case, to which our learned friends referred and to which I will take Your Honours in a

little more detail shortly, the vagueness of the

so-called customs which are asserted in this case

and the emphasis on the need for acceptance of

those people directly affected and society in

general may have had their roots in violence and

that there was really no institution for resolving

those disputes.

His Honour made the point about that and I

will not take Your Honours to his finding in that

respect, but can I give you the page references:

129, point 2 to point 5 and 172, point 5 to point

7.

Now if the defendant is correct in making

those submissions that we have, then there is no

need to consider the question of traditional title,

in our respectful submission.

DEANE J:  Mr Solicitor, what would you say is the effect of

His Honour's finding in so far as recognition of

individual possession of land is concerned under a

native communal system?

Mabo 267 30/5/91

MR DAVIES:  In this system, or whatever this system was?

DEANE J: In this system, yes.

MR DAVIES: 

That it really depended upon what was generally

acceptable in the community, and who could impose
his will on the community.

DEANE J: That was not what I meant to ask you about.

I had

read this for the findings as accepting that

possession did exist under some system and was

treated as having certain consequences regardless

of whether it could be expressed in terms of title

or what have you.	Am I mistaken in that regard, on
your submission?

MR DAVIES: 

No, I do not think Your Honour is mistaken,

except we would add the qualification that, however
that possession can be obtained and is accepted as
being obtained, and we say, that really is the

problem about the vagueness of it all.

DEANE J: 

I follow what you say about that. Well now, can I

just follow though with the next question and that

is, I had also inferred, without finding anything

express in His Honour's findings in relation to it,

that it would be true to say that, subject to

insignificant exceptions, all land was regarded at

any point of time as being in the possession of an

individual or a family group. I have at the back

of my mind that passage that we were referred to, I

think, twice, about even trees - - -

MR DAVIES:  And the stars and so on.

DEANE J: Yes.

MR DAVIES: Yes, and the wind. Well, Your Honour, I do not

know that His Honour ever made a finding about

that. That was really a recitation of something

that someone said, without ~ver really saying

whether His Honour adopted that as such, so I would hesitate to accept Your Honour's proposition there.

DEANE J: Well, what if one reads through all this - that is

not said in a derogatory sense - material and comes

to the view that the clear inference from it is

that there was a native system under which

possession was recognized and under which, subject

to minor unidentified exceptions, all land was

recognized as being in the possession of a

particular individual or family group. Would you

say we cannot act on that because of a lack of a

specific finding in those terms, or what shall we

do?

Mabo 268 30/5/91

MR DAVIES:  Your Honour, I will not go on to how

Your Honours would act on that, but can I just say

with respect to that -

DEANE J: Well, I was not trying to take you on to where it

leads. I was just trying to identify the lowest

common denominator in terms of what is involved

here.

MR DAVIES:  Yes. The difficulty with Your Honour's view is,

in our respectful submission, the changes which

have occurred to the society over a long period of

time, the movement in the Murray Island people

from, at one stage, many of them living in the

central areas to living on the coast, the movement

away from gardening and the changing perception as

to whether all land continued to be owned. It may

well be that one view of it is that at one stage the view was that all land was owned, but it may not be the view over a very long period going back

from now that that has not been the view.

BRENNAN J:  What as to the question of the community's

interest in the land as against those of outsiders,

is there any finding with regard to that? I am

thinking, of course, of the kind of community

title, the benefit of which no doubt redounds to

individuals but which may not be allocated by any

system of law to individuals?

MR DAVIES:  Yes. I do not know that there was any finding

with respect to that Your Honour and, indeed, for

some period of time outsiders did come and live on

Murray Island and Your Honours will recall - I

think Your Honour asked our learned friend about a

decision on one occasion to remove some non-Murray

Islanders from the island and Your Honour asked our

learned friend whether that in fact resulted from -

or our learned friend, in fact, answered

Your Honour by saying that resulted from a request

from the locals.	I understand there were two
occasions: the first of those occasions it was	done by the resident of his own motion; on the
second occasion it was done because he had been
asked to remove these people. Yes, it is finding
of fact 26, Your Honours, is the first occasion
which is on page 15 of volume 2. Your Honours will
see that they were removed because they were a nuisance, but not because it was thought that they should not be holding land on Murray Island or be
there for any other reason.

BRENNAN J: Well, except that the Mamoose complained that he

was not getting any rent?

MR DAVIES: Yes, I think there are two though, Your Honour,

and that is perhaps a little confusing. But there

Mabo 269 30/5/91

were apparently two occasions, one in 1882 and the

other is in 1885. The 1882 one appears to have

been a complaint about there just being a nuisance.

Your Honours, the only other submission I want

to make about the facts relates to what His Honour

said specifically about Mr Passi and Mr Rice. I do

not want to go back over the findings of fact which

Your Honours discussed with our learned friend on
Tuesday.

But can I make the submission that on the findings of fact of His Honour, Mr Passi did not

have an interest, even a possessory one, in any of

the land he claimed.	Of course, he was not in
possession at any material time.	He did not live
on Murray Island.	And on His Honour's findings it

was not established that even among Murray

Islanders it was thought that he had any interest

in the land upon which he wished to build a house

and, of course, he had none, in our respectful

submission, in any of the other land he claims.

So what we really submit, with respect, is that his claim, if any, in our respectful

submission, is one which was against the clan or

against Sam Passi as the acknowledged leader of the

clan.

MASON CJ:  Mr Solicitor, it does occur to me that I

overlooked the presence of counsel for the

plaintiff, Mabo. I have assumed that, Mr McIntyre,

you were going to adopt the submissions of

Mr Castan. But perhaps I ought to offer you the

opportunity of doing so expressly, or disowning

them if you see fit.·

MR McINTYRE:  No, Your Honour, I am quite happy to adopt

what my learned friend, Mr Castan, said. The

position of the first-named plaintiff really is

that as the questions were posed to the courts,

there were no questions wh~ h directly affected him. Of course, if they were answered positively

he might then have some rights within his own

community to pursue his interests further. But the

submissions of law which have been made by my

learned friend, Mr Castan, are completely

consistent with those which would be wished to be

made by the first-named plaintiff.

MASON CJ: Thank you. Yes, Mr Solicitor.

MR DAVIES:  Your Honours, the submission I was making that

there is no evidence that - there is certainly no

finding, I should say, that Mr Passi's claim was

acceptable among the Murray Islanders as an

interest in the land upon which he had been

Mabo 270 30/5/91

authorized by Mr Sam Passi to build his house.	And
Mr Justice Moynihan dealt with that at page 209,
about point 7.

DEANE J: Except you could get it to this stage, could you

not, and that is that if, contrary to what you will

be submitting as to the existence of a communal

land system which has consequences, there was such

a system which carries forward, the Mr Passi who is

the plaintiff would seem to have'an arguable

interest in the Passi land sufficient to probably

give him status to bring the proceedings?

MR DAVIES:  Your Honour, he really acknowledged that the

person who was the head of the Passi clan and the

person whom we would submit he would concede on that view would be the only person to bring any such proceedings - - -

DEANE J:	Or would be the best person?
MR DAVIES:	I mean, it is of perhaps some significance,

Your Honour, that he deferred to Sam Passi, that

Sam Passi was the man who told him he could build

on that land and that if Sam Passi said he could

not, then it would have to Sam Passi or the clan

which would determine it. But there was never any

suggestion, Your Honour, that Mr Dave Passi was

making a claim on anyone's behalf other than his

own. It was not ever suggested that his claim was

a clan claim.

TOOHEY J: Although the claims are expressed to be brought

on behalf of family groups, are they not?

MR DAVIES:  That is just Mr Passi's own family. By that I

mean, I think it is clearly enough nuclear family,

his wife and children, not on behalf of Sam Passi

or other members of the Passi clan, Your Honour.

There was never any suggestion of that.

DEANE J: But assume against yourself that the plaintiffs dr

succeed in establishing that the Passis, as a clan

of which Mr Sam Passi is obviously the senior

member, have a proprietary claim to the relevant
parcels of land. Surely Mr David Passi, here

claiming his expectation to build a house on part

of that land and so on, would on a modern approach

have sufficient standing to at least get the matter

in the court.

MR DAVIES: Well, we would question that, in our respectful

submission, that his claim really, if he had one,

was one against the clan. I mean, it is rather

like a child's claim against his parents to live in

the house. It is not, in our respectful

submission, anything which appears in any sense to

Mabo 271 30/5/91

be a claim against anyone outside. He says his

right derives from what Sam Passi has said and if

Sam Passi says no, his right finishes.

DEANE J:  I follow that. I simply say that if there is more

you want to put or you think there is more that is

relevant to the question of the standing of any of

the plaintiffs to bring the proceedings on the

assumptions that I have put to you, I would be

grateful for anything that goes against standing.

MR DAVIES:  Your Honours, that is all I wanted to say about

Sam Passi. The only other thing I wanted to say

about Mr Rice was His Honour's skepticism about the

chain of title; his doubt about how the Korog land

came into the Rice family and as to Bazmet and Dei-

Mei, as I think Your Honour Justice Deane said on

Tuesday, it was said to have been a gift and that

he or his father had been there more than 10 years

ago. So, in our respectful submission, again it

was not established that, even among Murray

Islanders, Mr Rice would have been though to have

any interest in the land which he claims.

Can I go then to the legal issues in the case,

and the first of them is as to the nature of the

defendant's title and power upon annexation of the

Murray Islands, and that is relevant in two

respects. One of them is the one that our learned

friend dealt with last, and I will, in the end, I

think, have very little to say about that.

The first is, to our submission, that upon

annexation of the Murray Islands, Queensland
acquired absolute ownership and legal possession,

and the power to deal with the land on the Murray

Islands. Now, we have dealt with that in some

detail in our written submission in chapter 4,

paragraphs 59 to 115, and I do not want to take

Your Honours through that.

Can I start, Your Honours, with a statement

from Justice Isaacs in Williams v The Attorney-

General, 16 CLR 404, and the passage to which I

would like to take Your Honours at the commencement

of my submission is page 439, where His Honour

said, at about point 8 on that page, that it was:

the unquestionable position that, when

Governor Phillip received his first Commission from King George III on 12th October 1786, the

whole of the lands of Australia were already

in law the property of the King of England.

By that, in our respectful submission, His Honour

was saying that they did not become part of the

property of the King because, Australia being a

Mabo 272 30/5/91

settled colony, the settlers brought English law

with them and that included the feudal fiction, he
was saying, on the contrary, that it became part of

the property of the King by the exercise of

sovereignty over Australia by Captain Cook.

BRENNAN J:  By virtue of discovery or by virtue of the

proclamation made by Captain Cook?

MR DAVIES:  By virtue of the proclamation made by

Captain Cook. That is because, in our respectful submission, the notion of sovereignty necessarily

involves the notion of absolute title, because the sovereign is the universal occupant of his domain.

That was a fiction which had become part of English Constitutional Law well prior to the

discovery of Australia. Your Honours, it is dealt

with, albeit briefly, in Attorney-General v Brown.

In that case, at the top of page 318,

Your Honours, the Chief Justice said:

The right of the people of England to their

property, does not in fact depend on any royal

grant, and the principle that all lands are

holden mediately or immediately of the Crown

flows from the adoption of the feudal system

merely ..... That principle, however, is

universal in the law of England, and we can

see no reason why it shall be said not to be

equally in operation here. The Sovereign, by

that law is (as it is termed) universal

occupant. All property is supposed to have

been, originally, in him. Though this be

generally a fiction, it is one "adopted by the Constitution to answer the ends of government, for the good of the people".

That is a reference to a note, as Your Honours

will see, in Bacon's Abridgment. In fact,

virtually the whole of that passage comes from

Bacon's Abridgment. I have not done copies of that

for the Court because it really does not say

anything more than His Honour the Chief Justice

says there.

TOOHEY J: It is all a bit circular is it not, Mr Solicitor?

You have Justice Isaacs saying in Williams, "It has

always been a fixed principle of English law that the Crown is the proprietor of all land for which

no subject can show a title." It rather leaves, in

the air, the circumstances in which a subject can

show a title?

Mabo 273 30/5/91

MR DAVIES:  But the feudal fiction is that all title comes

from the King, from the sovereign.

TOOHEY J: Yes, I appreciate that, and then how is that

notion transposed when a country is settled,
whether it is by occupation or by settlement in the

sense that the country is uninhabited?

MR DAVIES:	By grant and only by grant.
TOOHEY J:	And does that notion apply whatever method of

occupation is employed?

MR DAVIES: Yes, Your Honour, that is really our point.

Because sovereignty includes absolute ownership, it

is unnecessary to consider the Blackstone rules or

Campbell v Hall; that they are rules for

determining what law applies, in the case of

Australia, what law, if any, the settlers brought

with them, and that might depend upon how you

characterize, according to Blackstone's rules, the

settlement of Australia. But they are not
concerned with what sovereignty includes, and
furthermore, Your Honours, those rules are rules
for determining sovereign intention in the absence
of a clear indication of sovereign intention, and

we say in this case there is a very clear

indication of sovereign intention, a very clear

indication being in the Queensland Coast Islands

Act 1879. Your Honours, I see it is a quarter to

one.

MASON CJ: Yes. We will resume at 2.15 pm, Mr Solicitor.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM: 

MASON CJ: Yes, Mr Solicitor.

MR DAVIES:	May it please the Court, the submission we were coming to immediately before lunch was that by
annexation the Queen became the universal occupant
of the Murray Islands and it follows, in our
submission, that the only interest in land which
would be recognized by the sovereign thereafter
would be those either of or from the sovereign.
And we submit that neither is the case here,
although the plaintiffs seem to be contending for
interests from the sovereign.

Mabo 274 30/5/91

Your Honours, though the plaintiffs really

deny any claim to allodial title, in our respectful

submission - and perhaps I should mention,

Your Honours, where they last did that. That was during the course of my learned friend's

submissions in the transcript at page 207, and many
times before that in their written submissions.

But notwithstanding that, we should at least say that the exercise of sovereignty is, in our

submission, equally inconsistent with any remaining

allodial title.

Can I take Your Honours to Attorney-General v Brown in that respect at page 324.

DAWSON J:	What is an allodial title?
MR DAVIES:	I su?pose all we are really saying is, a title

existing outside and not from us.

BRENNAN J: That proposition is not quite in accordance with

Coke on Littleton, which speaks of allodial title

being in Scotland and perhaps some still in the north of England. I mention it only because it

seems to me not to have been necessarily the same

proposition as sovereignty, or inconsistent with

the notion of sovereignty.

MR DAVIES:  Your Honour, I can only say that it really seems

to be now inconsistent with the view of the

historians, that since - and I did not bring Anson
with me but I will give Your Honours the references
to it by the end of the day - that at least since

the Norman Conquest there was really only one form

of title and that was title which really had to

come from the sovereign. Initially before that

there seem to have been three different types of

title: the King's private land, the public lands,

and so on.

Can I take Your Honours for the moment in any

event to Attorney-General v Brown, at page 324,

about nine or 10 lines from the top, in a sentence

commencing about the middle of the line.

His Honour said:

First, the title to lands in this colony is in

the Crown; equally on constitutional

principles, as by the adaption of the feudal

fiction. Such a title, on either ground, is

fatal to the idea of the allodium. Whether

the term implies a property acquired by lot,

or a conquest, or one left in the occupation

of the ancient owners, (that is, of the

aboriginal inhabitants, see Steph. Com. title

Tenures, and the authorities there cited,) it

Mabo 275 30/5/91

equally rejects the supposition of a title, in

or from the Sovereign.

Your Honours, I made the point also before

lunch that, if we are right in saying that

sovereignty includes absolute ownership of land,
then it is unnecessary to consider the

Blackstonerules, and we say that for two reasons:

one is that there are rules for determining what

law applies and as I think I said before lunch, in

the case of Australia, what law the settlers

brought with them, if any, are not what sovereignty

includes, and the other reason is .that they seem

clearly enough to be rules for determining

sovereign intention in the absence of a clear
indication of that, emanating from the sovereign.

And Your Honours will see reference to that, both in the Blackstone rules themselves and also in the

references in Cooper v Stuart to them.

Cooper v Stuart, Your Honours will recall, refers

to the silent constitutional principle, and can I just give Your Honours references, without taking

Your Honours to the passages in Cooper v Stuart.

293 point 1 and also 291 point 4.

TOOHEY J:  Mr Solicitor, when the British settled Canada and

entered into various treaties with the Indian

tribes and when they settled New Zealand and

entered into the Treaty of Waitangi, were those the

essentially political Acts, not as it were

springing from a recognition of any existing title or rights of occupancy on behalf of the indigenous

people?

MR DAVIES:  They are classified in two categories, in our

respectful submission, Your Honour. In the case

where there is something which is akin to

ownership - and I know I am using a term in our

system, but what I mean by that is something which

is capable of surrender for consideration, when one

by a specific grant. In the United States cases, says that that has been conferred, it is invariably	for example - Tee-Hit-Ton is the best example - it
was said that that could only be conferred by a
congressional Act or recognized, I think it was
said, by a congressional Act.

The other category, Your Honour, is the

St. Catherines and Johnson v McIntosh category,

which is a category of a possessory - and I would

use "right", really, in inverted commas, it is not

a right against the sovereign but a possessory

right, for want of a better term, which is personal

and which is at the discretion of the sovereign.

Really, that is no more than, by some Act or a

settled course of conduct prior to the actual

annexation Act, indicating an intention to leave

Mabo 276 30/5/91

the native people in occupation of the land until

the sovereign should decree otherwise. I will take

Your Honours to those cases a little later if I may.

TOOHEY J: Yes, thank you.

MR DAVIES:  I had given Your Honours the reference to Cooper

v Stuart. Can I also give Your Honours the

reference to Blackstone, in our learned friend's

submission, again without taking Your Honours to

it: Blackstone, page 105 point 1, which is at

page 769 of our learned friend's submissions. Can

I add, with respect to that submission, that here

there is a specific indication of the sovereign

intention, that being in the Queensland Coast

Islands Act of 1879.

Now, I know Your Honours have been taken to

these documents already, but could I ask

Your Honours to go back to the three documents of

1878 and 1879, which are the letters patent of the

Queensland Coast Islands Act and the Order-in-

Council appearing in pages 36, 38 and 40 of

volume 8 of our learned friend's documents, and can

I take Your Honours first to the letters patent on

page 36 of 10 October 1878. I do not want to read

again the whole of it but can I take Your Honours

to the last seven or eight lines of the first full

paragraph of that document, where it said the:

said Colony of Queensland and shall have

passed a law providing that the said Islands

shall, on the day aforesaid, become part of

Our said Colony, and subject to the laws in

force therein. Provided also that the

application of the said laws to the said

Islands may be modified either by such

Proclamation as aforesaid, or by any law or

laws to be from time to time passed by the

Legislature of Our said Colony for the

government of the said Islands so annexed.

The point I am making of that is that there was

really an option conferred, to either apply the

laws of Queensland to the coastal islands in whole

or in part specifying what part, and it is

abundantly clear, in our respectful submission,

that what happened was that the laws were applied

in whole.

That appears, in our respectful submission,

from the following two documents, the Queensland

Coast Islands Act on page 38, section 1, the last

three lines, starting at the end of the third last

line:

Mabo 277 30/5/91

the Islands described in the schedule hereto

shall be annexed to and become part of the

Colony of Queensland and shall be and become

subject to the laws in force therein.

And, similarly, on page 40, in the second column of

the Order in Council of 21 July, it is sufficient

to go again to the last three lines before the

schedule:

Islands described in the Schedule hereto shall

be annexed to and become part of the Colony of Queensland, and shall be and become subject to

the laws in force therein.

Those laws included at 1879 the Crown Lands

Alienation Act of 1876 and can I take Your Honours

to that Act. It is volume 1 of the red book,

Your Honours, No 9 in that book. Your Honours have

been taken, I think, to the equivalent provisions
in the earlier Act but these were the relevant

provisions at the time.

First can I take Your Honours to section 1,

will see is in the same form as the earlier Act.	the definition of Crown lands, which Your Honours of the subject lands.
Then section 3 - can I just indicate the exception at the bottom, the last sentence:

Except as aforesaid the provisions of this Act

shall so far as the same are respectively

applicable extend and apply to the whole

Colony of Queensland.

Then section 4 on the following page:

The Governor in Council may in the name of Her

Majesty and under and subject to the

provisions of this Act grant and alienate in

fee simple or for any less estate any waste

lands of the Crown within the Colony of

Queensland.

Section 6:  The Governor in Council may

reserve any Crown land - they are the lands as
defined in that definition in section 1 - amongst
other purposes for the use or benefit of the

aboriginal inhabitants of the colony or for other

public purposes and may, under section 7, place

such lands under the control of trustees.

Section 8 provides that trustees should be

deemed to be absolute owners.

Mabo 278 30/5/91

The only other relevant provision is

section 83, page 1241 of that document, which

provides that:

The Governor in Council may by proclamation

rescind either in whole or in part any

reservation of any Crown lands as town lands

or suburban lands or as reserves for public

purposes.

DEANE J: If this be right, what was the status of the

natives immediately after annexation by Queensland?

Were they trespassers?

MR DAVIES:  No, Your Honour, they were not. They were in

much the same position as they really had been

after the reservation in the sense that they

were -

DEANE J: There was not any provision such as that we were

shown earlier that people on Crown land without

authority under a lease or licence were

trespassers?

MR DAVIES:  I do not think so, Your Honour. I am sorry,

there is, Your Honour.

DEANE J:  And guilty of an offence.

MR DAVIES: It is of this Act, section 91. But to the

extent that "licence" is not defined, Your Honour,

they were there with our consent. They were not,

we would submit, trespassers, because at no stage

were we saying, "You have to get off" or "We object

to your being there".	We do not assert that and
we never have.

DEANE J: Well, were they within section 91 or were they

not?

MR DAVIES:  I do not think it matters much for our purpose whether they were trespassers whom we did not

prosecute or whether they were within section 91.

DEANE J: Well, I would think it would matter a great deal

to your argument that these are to be treated as

Crown lands if the effect of so treating them was

to make all the native inhabitants guilty of an

offence under section 91.

MR DAVIES:  Your Honour, all I can say is that the plain

words the provisions which we have indicated so

far - - -

DEANE J:  I follow that, but I am just asking do you say

that they were guilty of an offence under

section 91 on your argument, or that they were not,

Mabe 279 30/5/91

or do you say that you are not prepared to express

a view one way or the other?

MR DAVIES:  I do not think at the moment I would express a

view one way or the other, Your Honour.

GAUDRON J:  Does it follow from what you have said,

Mr Solicitor, that at any time from the time of

annexation the native population could have

lawfully been driven into the sea?

MR DAVIES: It does, Your Honour.

GAUDRON J: It does, yes.

MR DAVIES: 

And it means also now that they are there at the

pleasure of the Crown in the sense that they are
still there under the reservation of 1882, in our

submission, and I will take Your Honours to how

that came about.

DEANE J: They did not have to be driven, in that if

section 91 applied, apart from the two acres of the

London Missionary Society, they were outlaws wherever they went on .their island.

MR DAVIES:  Your Honour, whatever the consequence of that

provision was, the position was that they were

allowed to remain there throughout the whole of

that period - - -

DEANE J: But illegally, on your argument, as I read

section 91.

MR DAVIES:  No, not, Your Honour. I do not wish to take a

position either way on that, so I do not really

necessarily adopt that view of the - - -

DEANE J:  I mean if section 91 applies, on your argument

they were allowed to remain there unlawfully.

MR DAVIES:  If it does, yes.

GAUDRON J: Except this: Mr Solicitor, is there any meaning

to be given to the words "engagement made by or on

behalf of Her Majesty". I would have thought that,

to the extent that certain things happened in and

around that time by people - - -

MR DAVIES:  I think that had a specific and narrow

application which I think Your Honour

Justice Dawson dealt with in Mabo, that they were specific engagements made by Her Majesty, prior to

the application of this Act. I can find the

passages in the cases which deal with the
construction of those provisions, Your Honour, but

I think that is the effect they have.

Mabo 280 30/5/91

DAWSON J:  It would not be hard to erect a licence in the circumstances, would it?

MR DAVIES:  No, it would not, Your Honour. I am not making

a submission that they were not licensed.

DEANE J: But it is a grant of a licence, is it not, which

means, if you concede that, you are going to have

them outside the Crown Lands Act on which you rely

for your DOGIT.

MR DAVIES:  You will not have them as not Crown Lands,

Your Honour.	I will take Your Honours to that in a
moment, if I may.	Or perhaps I should do that now.

As to how they came to be on this reserve - - -

DEANE J:  I was not looking at this Act. I was saying if

you concede they are there, subject to the grant of a licence, it is not Crown land under the 1910 Act.

MR DAVIES: That is irrelevant, in our respectful

submission, and that was the point I was really

going to take Your Honour to now, and perhaps I
should do that. Perhaps I should start by going

backwards, Your Honours. It might seem a curious

way of doing it, but if I could start with the

1962 Act, the same red volume, Your Honours. Can I

take Your Honours to section 334 of that Act, which

is on page 231. Subsection (3) of section 334

provides:

Any land which, immediately prior to the

commencement of this Act, is reserved and set

apart or deemed to be reserved and set apart

for any public purpose under the repealed Acts, and to which the provisions of "The Forestry Act ...... do not apply, and the

fee-simple whereof has not been granted by the

Crown, shall be deemed to be a reserve for

such public purposes -

Act it is deemed to be granted for public purposes	So, if a reserve has been granted under a repealed	under that Act and then I perhaps should also,
before leaving that Act, refer Your Honours to
subsection (4) that says that such a reserve can be
rescinded, in effect.

Now, then going back from there to the 1910

Act, Your Honours will have to go from there to the plaintiffs' volume 8, and could I take Your Honours

to page 88, section 180(3) which provides that any:

land heretofore reserved or set apart for any
public purpose, and the fee-simple whereof has

not been granted by the Crown, shall hereafter

Mabo 281 30/5/91

be deemed to be a reserve for public purposes

under this Act -

So, Your Honours do not go to section 180(1) as

Your Honours were directed to, I think, this

morning.

DEANE J:  Which of the public purposes was it?

MR DAVIES: Aboriginal.

DEANE J: Aboriginal reserves, is it?

MR DAVIES: Yes, aboriginal reserves. And so, Your Honours

then are directed from that back to the 1876 Act to

which I have just taken you to section 6.

So that is how it goes through: it goes from

the 1876 Act, it is preserved by the 1910 Act, and

then continued under the 1962 Act. Your Honours, I

do not want to take Your Honours to the

constitutional foundation of these powers.

Your Honours have already been taken to the Order-

in-Council of 6 June 1859, and I do not want to

take Your Honours back to that, but can I mention

that that Order-in-Council was made under section 7

of the Imperial Enabling Act. That was the Act for
the New South Wales colony which enabled the

sovereign to in effect create a new colony out of

New South Wales by letters patent.

Your Honours were taken to section 30 of the

Constitution Act 1867, the Queensland Act. Can I

also mention section 40, which places the waste

lands of the Crown under the control of the

Governor-in-Council.· So, Your Honours, our point

really is then that the acts of the Crown, that is

the act of annexation, of subjecting the land on
the Murray Island to Queensland law, and of
applying the Crown Land Alienation Act to it by

creating a reserve under section 6 of that Act, are

consistent only with treating the land on the
Murray Islands as Crown lands.	And it does not

recognize title - it is inconsistent with a

recognition of title, or a legal right against the

Crown, in the inhabitants.

Your Honours, in our respectful submission

that is consistent with the case of Tanistry which

our learned friends took you to yesterday where the court held that a pre-existing custom was abolished

upon the introduction of the common law into

Ireland. Can I take Your Honours back to that

case. It is in volume 4, page 675, of the

plaintiffs' submissions.

Mabo 282 30/5/91

Your Honours, the custom of Tanistry which

applied in O'Callaghan's country in County Cork was

that all land of the tenure of Tanistry descended

to the oldest and most worthy man of the blood and

surname of him who had died seized. The first

point we really want to make about that is that

that custom was held to be void for two relevant

reasons, one that it was originally founded on

violence because the most worthy man tended to be

the man who was the strongest, and secondly, that

it was held to be uncertain. And we would say both

of those difficulties apply here.

Your Honours, the issues in the case were

fought out between one who claimed to be a tanist

and one who took through other means of inheritance

and transfer. There were three issues in the case.

The first was whether the custom of tanistry was

void or abolished by the introduction of the common

law of England. Both of those issues were relevant

to this case. In our respectful submission, they

are relevant because the custom was held to be

void, for the two reasons we submit were relevant,

and also because it was held to be abolished by the
introduction of the common law of England. And we
say whatever custom there was was abolished by the

introduction of a statute law of Queensland to

Murray Island upon annexation.

BRENNAN J: If I may say so, that sounds a rather Irish

proposition, Mr Solicitor. So, the common law of

England abolished it and then proceeded to hold it

to be void.

MR DAVIES:  No, they were alternative grounds for the

decision. The plaintiff really lost on a number of

different grounds. Perhaps they were anticipating

an appeal to somebody, Your Honour, I do not know.

But, on three quite different grounds, the issues

were decided against the plaintiff. The first was

that the custom was void and had been, in any

event, abolished by the introduction of the common
law into England.	The second one was, if it was a

good custom and had not been so abolished, it had

been discontinued or destroyed by a feoffment which

limited an estate tail - and that is an irrelevant

issue for present purposes. The third issue was

the one for which our learned friend cited, which

was whether the one who had entered as a tanist

gained a better estate by the surrender to

Queen Elizabeth of his title and a regrant from

her.

Your Honours, can I just take Your Honours to

that case as to the points which, in our respectful

submission, are relevant to this case. The first

of them was that the custom was held to be void for

Mabo 283 30/5/91

unreasonableness - it was said to be unreasonable -

relevantly because it was originally founded in

violence. That proposition was dealt with in

passages commencing on page 94 of the report where,

in the first paragraph, Your Honours will see:

This custom is also unreasonable for another reason, viz. because this custom (as

it is found by the special verdict) that the

land shall descend -

and I will not read the Latin -

appears plainly to have commencement by the

usurpation and tyranny of those who were most

potent amongst them.

And can I ask Your Honours to read to the end of

that paragraph and Your Honours will see that that

was one of the bases upon which it was held to be

unreasonable.

Another and relevant basis on which it was

held to be unreasonable appears on page 92 and that

was that the:

commonwealth cannot subsist without a certain

ownership of land -

whilst the -

right of inheritance of land doth not rest in

some -

particular -

person.

Your Honours will see that from the middle of the

first full paragraph on page 92.

For it is against the commonwealth, and goeth

utterly in destruction of it; for a

commonwealth cannot subsist without a certain

ownership of land, or if the right of

inheritance of land doth not rest in some

person.

And that is dealt with there and over to the top of

the following page. Then the custom was held to be

void for uncertainty because both the person who

was to inherit and the estate were uncertain. That

is dealt with commencing at the bottom of page 95.

Your Honours will see:

Secondly, it was resolved that this

custom was void for the uncertai~ty. For

Mabo 284 30/5/91

where by this custom the land is to

descend ..... of him who died seised. 1. The

person is uncertain.	2. The estate is
uncertain.

And Your Honours will see it is dealt with then,

continuing down and up to the top of page 97. That

is as to uncertainty of person. As to uncertainty

of estate, it is dealt with commencing at about the

middle of page 98 and over to the top of page 99.

It was also held to be void as being

prejudicial to the King's prerogative because he

would lose the benefit of wardship or escheat and

that was dealt with at page 100 but I will not take
Your Honours to that.

As to it being abolished by the common law, can I take Your Honours to page 101. Your Honours

will see at the top of that page it is said: yet the introduction and establishment of the

common law of England hath abolished it -

and, towards the end of that paragraph -

and therefore it must of necessity be

abolished by the establishment of another
general law in the same point.

Then, from 101, in the next paragraph, through to about 108, there is dealt the history of the

piecemeal introduction of the laws of England into

Ireland. And then, on page 108, the point is made

that the King:

declared and published that he received all

the natives of this kingdom into his royal

protection by which it was clearly resolved

that the common law of England is now

established universally through all this

kingdom of Ireland -

and, we would say, equivalent here, really, is the royal proclamation annexing the Murray Islands and

the extension of the Queensland law to them.

The report continues, at the bottom of

page 108:

The custom of tanistry and all other Irish

customs not agreeable to the rules of the

common law, are annulled and abolished, as

they were by the first introduction of the law

of England in this country.

Then continuing on there:

Mabo 285 30/5/91

And although this custom of tanistry hath been

the custom of a particular place only, yet being repugnant to the rules of the common law, it was abolished by the introduction and

establishment of the common law in this

kingdom -

and then at point 6:

Also this custom cannot be resembled to the

custom of gavelkind in Kent, which had

continuance after the Norman conquest; for

the common law of England was not introduced

by the conqueror.

There was another point in the case about a state

tale, which I will not take Your Honours to. That

is dealt with on pages 99 and 100, and the third

point in the case involved two arguments; the

first was that the grant of surrender had been made

in accordance with an English statute which made

the grant good. That point was rejected and really

is not relevant here.

The second aspect of the point which our

learned friends really referred the case for was

that the grant should be regarded as good by itself

because Queen Elizabeth should be said to be in

possession of the land by virtue of the first

conquest of Ireland, and that argument was in fact

rejected.

That appears in passages which I think our

learned friends cited to Your Honours commencing on

page 111 and going through to page 112.

The interesting thing about that point, in our

respectful submission, is that it does not really

support what our friends wanted to hear, because

what was said in that case, Your Honours will see on page 112 that the Chief Justice, Sir James Lay

said -

that if such conqueror receiveth any of the

natives or ancient inhabitants into his

protection and avoweth them for his subjects,

and permitteth them to continue their

possessions and to remain in his peace and

allegiance, their heirs shall be adjudged in

by good title without grant or confirmation of

the conqueror, and shall enjoy their lands
according to the rules of the law which the

conqueror hath allowed or established, if they

will submit themselves to it, and hold their

lands according to the rules of it, and not

otherwise.

Mabo 286 30/5/91

That is not what the plaintiffs are asserting

here. They are not saying, "Our ancestors, at the

time of annexation, held this land. They submitted themselves to the law of the sovereign at that time

and we inherit in accordance with that law."

So we would say there are three points in the case so far as we are concerned. One is the

uncertainty of the custom and it being founded in

violence. The second is the abolition of the

custom by the introduction of English law, and we

say that applies here, and the third is that those

in possession were allowed by the sovereign to

continue to hold under him, provided they did so

under his law, which really does not assist our

learned friends at all.

Can I pass from that case, Your Honours, to

the United States and Canadian cases, upon which

our learned friends much relied.

BRENNAN J: Just before you do, Mr Solicitor, there is the

observation at page 109 that the common law of

England was not introduced by the conqueror.	Where
did the common law of Australia come from?

MR DAVIES:	The Norman conqueror?
BRENNAN J:	Yes.  Now if the Norman conqueror did not

introduce the common law of England, where did the

common law of Australia derive from?

MR DAVIES:  We are not relying on the common law of

Australia. We are relying upon the statute law of

Australia, so far as the Murray Islands are

concerned.

BRENNAN J:	I thought you were relying on the common law for the purpose of giving effect to the Captain Cook's
Proclamation.

MR DAVIES:  We say that is a principle of constitutional

law, Your Honour. We are relying on the - - -

BRENNAN J: Is that separate from the common law?

MR DAVIES:  Well, on one view it certainly is. One view

seems to be that it is above and separate from the

common law, Your Honour.

BRENNAN J:  The other view being that the common law

provides the Constitution.

MR DAVIES: Yes, there seems to be two views about that,

Your Honour, I accept that, but Your Honour, in our

respectful submission, the rules which, so far as

the British laid them down for the purpose of what

Mabo 287 30/5/91

the effect is of the law going into a conquered
ceded or settled colony, are rules really for
determining what the sovereign intention is at the

time of that settlement, cession or conquest and in

our respectful submission, that in this case is

abundantly clear.

Your Honours, can I then go to the United

States and Canadian cases and in our respectful

submission, before going to them, can I say that

really to understand their relevance, there are two

facts which we submit are important and I really

mention those, I think, in answer to Your Honour

Justice Toohey a little earlier. The first of them

is that by the second half of the 19th century,

Canada and the United States had, in one way or

another, recognized rights of occupancy of all or

at least most of the Indian tribes and they did

that in the United States by treaties and they did

it in Canada by the proclamation of 1763 and by

treaties. And the second is that in some cases in

the United States by congressional Act, there were

recognized - and we would substitute for

"recognized" "created" - proprietary rights, rights

equivalent to ownership and by that I mean nothing

more than, as I said a little earlier, rights which

would attract consideration upon their surrender.

So recognition was really perhaps used in two

senses. In the United States cases, or in some of
them, recognition is used in connection with the

second type of recognition; that is recognition of

something equivalent to ownership. Indian title

being used, inappropriately perhaps, to describe

something of the first kind, which was not title at

all, in our submission, and never recognized as

title.

Your Honours, the first of those categories,

which I would call recognized occupancy, was really

described in similar terms in Johnson v McIntosh in 1823 and by the Privy Council in St. Catherine in	1888, and I would like to take Your Honours to
Johnson v McIntosh, if I can, because, in our
respectful submission, it is extremely important in the understanding of the law in the United States in this respect.

Can I take Your Honours, first, in the

judgment of the Chief Justice, to page 572.

Shortly after the commencement of his judgment,

His Honour said, this is about five lines down from

the commencement of his judgment:

The facts, as stated in the case agreed, show

the authority of the chiefs who executed this

conveyance, so far as it could be given by

Mabo 288 30/5/91

their own people; and likewise show, that the

particular tribes for whom these chiefs acted
were in rightful possession of the land they
sold. The inquiry, therefore, is, in a great
measure, confined to the power of Indians to

give, and of private individuals to receive, a

title, which can be sustained in the courts of

this country~

As the right of society to prescribe

those rules by which property may be acquired

and preserved is not, and cannot, be drawn

into question; as the title to lands,

especially, is, and must be, admitted, to

depend· entirely on the law of the nation in

which they lie; it will be necessary, in

pursuing this inquiry, to examine, not simply
those principles of abstract justice, which

the Creator of all things has impressed on the

mind of his creature man, and which are

admitted to regulate, in a great degree, the

rights of civilized nations, whose perfect

independence is acknowledged; but those

principles also which our own government has

adopted in the particular case, and given us
as the rule for our decision.

And then, if I can leave out the next paragraph and go on to the following one:

In the establishment of these relations,

the rights of the original inhabitants were,

in no instance, entirely disregarded; but

were, necessarily, to a considerable extent,

impaired. They were admitted to be the

rightful occupants of the soil, with a legal

as well as just claim to retain possession of

it, and to use it according to their own

discretion; but their rights to complete

sovereignty, as independent nations, were

whomsoever they pleased, was denied by the	necessarily diminished, and their power to dispose of the soil, at their will, to	original fundamental principle, that discovery
gave exclusive title to those who made it.
While the different nations of Europe
respected the right of the natives, as occupants, they asserted the ultimate dominion
to be in themselves; and claimed and
exercised, as a consequence of this ultimate
dominion, a power to grant the soil, while yet in possession of the natives. These grants
have been understood by all, to convey a title
to the grantees, subject only to the Indian right of occupancy.

Mabo 289 30/5/91

Then if I can go from there to page 585, the first

full paragraph on that page:

Virginia, particularly, within whose

chartered limits the land in controversy lay,

passed an act in the year 1779, declaring her

own chartered territory, and that no

"exclusive right of pre-emption from the her

person or persons whatsoever have, or ever

had, a right to purchase any lands within the

same, from any Indian nation, except only

persons duly authorized to make such purchase;

formerly for the use and benefit of the

colony, and lately for the Commonwealth." The

act then proceeds to annul all deeds made by

Indians to individuals for the private use of the purchasers.

And if I can leave out at least part of the next

sentence going down four lines, His Honour then

said:

it may safely be considered as an unequivocal

affirmance, on the part of Virginia, of the

broad principle which had always been

maintained, that the exclusive right to open her land-office, for the sale of that
purchase from the Indians resided in the
government. In pursuance of the same idea,

country which now constitutes Kentucky, a

country, every acre of which was then claimed
and possessed by Indians, who maintained their
title with as much persevering courage as was

ever manifested by any people.

So His Honour is saying there that they had the

complete right, despite the occupation of the

Indians, to sell it off. Then the following

paragraph:  The states, having within their chartered

limits different portions of territory covered

by Indians, ceded that territory generally, to

the United States, on conditions expressed in

their deeds of cession which demonstrate the

opinion that they ceded the soil as well as

jurisdiction, and that in doing so, they

granted a productive fund to the government of

the Union. The lands in controversy lay

within the chartered limits of Virginia and
were ceded with the whole country north-west

of the river Ohio. This grant contained

reservations and stipulations which could only

be made by the owners of the soil; and

concluded with a stipulation that "all the

Mabo 290 30/5/91

lands in the ceded territory not reserved,
should be considered as a common fund, for the

use and benefit of such of the United States

as have become, or shall become, members of

the confederation, and "according to their

usual respective proportions in the general

charge and expenditure, and shall be

faithfully and bona fide disposed of for that

purpose, and for no other use or purpose

whatsoever". The ceded territory was occupied

by numerous and warlike tribes of Indians;

but the exclusive right of the United States

to extinguish their title, and to grant the

soil, has never, we believe, been doubted.

TOOHEY J:  How does that statement square, Mr Solicitor,

with the statement on page 575 that you read at the

top of the page which speaks of the -

nations of Europe respected the right of the

natives as occupants -

but then goes on to speak of the power to grant

land but says:

These grants have been understood by all to

convey a title to the grantees, subject only

to the Indian right of occupancy.

That seems to suggest that while sovereignty

carries with it title and the land can be dealt

with, it is dealt with subject to a right of

occupancy. But that is not what is being said in

the later passages.

MR DAVIES: Yes.

TOOHEY CJ: But that is not what is being said in the later

passage.

MR DAVIES:  No, it does not seem to be, Your Honour. He

really seems to be saying that there is a complete	free right to terminate that right of occupancy at
will by the sovereign power, whoever it happens to
be. And then can I take Your Honours, in my copy
of the judgment, to the bottom of that page, which is the beginning of page 588, about five lines
into 588:

All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right.

MASON CJ:  Mr Solicitor, we do not seem to have page 588,

for some reason. Perhaps you read it out and then

it could be supplied to us in due course.

Mabe	291	30/5/91
MR DAVIES:	Yes.	Your Honours, the passage is this:

All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right.

This is incompatible with an absolute and complete title in the Indians.

DAWSON J: We do have page 588. It is like the English

reports, it is indented in the side.

MR DAVIES: Yes.

MASON CJ: Yes, so it is.

MR DAVIES:  And then if Your Honours would go to page 592,

towards the end of that page, in fact it is just

before 593, the last two sentences of that

paragraph, His Honour said:

The absolute ultimate title has been

considered as acquired by discovery, subject

only to the Indian title of occupancy, which

title the discoverers possessed the exclusive

right of acquiring. Such a right is no more

incompatible with a seisin in fee, than a

lease for years, and might as effectually bar

an ejectment.

Then, if I can take Your Honours to page 594, the

first full paragraph into that page, about nine

or 10 lines into that page. It is a discussion of

the proclamation of 1763, and His Honour said:

The proclamation issued by the king of Great

Britain, in 1763, has been considered, and we

think, with reason, as constituting an

additional objection to the title of the

plaintiffs. By that proclamation, the crown

reserved under its own dominion and

protection, for the use of the Indians, "all

the land and territories lying to the westward
of the sources of the rivers which fall into

the sea from the west and north-west", and

strictly forbade all British subjects from

making any purchases or settlements whatever,

or taking possession of the reserved lands.

And then over to page 596, in the paragraph which

has already started on that page, the last two

sentences of that paragraph, His Honour said:

So far as respected the authority of the

crown, no distinction was taken between vacant

lands and lands occupied by the Indians. The

title, subject only to the right of occupancy

Mabo 292 30/5/91

by the Indians, was ;Jnitted to be in the

kind, as was his rign~ to grant that title. The lands, then, to which this proclamation

referred, were lands which the king had a

right to grant, or to reserve for the Indians.

So, Your Honours, in our respectful

submission, His Honour was speaking of the right of

occupancy of the Indians being recognised by the

conduct and treaties of the Crown as being a

personal right and a right which was terminable at

the will of the Crown.

In our respectful submission, that was

similarly described in St. Catherines. I do not

want to take Your Honours to St. Catherines but
Your Honours will recall that in St. Catherines the

Privy Council, at page 54, described that right as both personal and dependent on the goodwill of the

sovereign. The Privy Council also saw as, in that

case, the sole source of that right the

proclamation of 1763.

But, Your Honours, even this so-called right

was not merely based on the prior position of the

Indians but on the recognition and protection of it

by the sovereign.	Can I give Your Honours two
statements to that effect. One is in Calder.	Or,

perhaps, if I can just give Your Honours one
because it takes up a reference to the Tee-Hit-Ton

case Calder. page 167 in a passage which our learned friend

which is quoted with approval in

cited and which provoked a comment by Your Honour

Justice McHugh. It is a passage which is little

more than half-way down page 167 where His Honour

said:

This position is spelled out in the

Tee-Hit-Ton case. In the opinion of the

Court, at p. 279, in discussing the nature of

aboriginal Indian title, it is said:

"This is not a property right but amounts to a
right of occupancy which the sovereign grants

and protects against intrusion by third

parties -

We make the point, really, that it does require an

act of the sovereign. It is not just there because

they were there. It requires some act of the

sovereign as was indicated from those passages in

Johnson v McIntosh.

It was really recognized in the United States

and Canada; in the United States, as I said, by a

series of treaties. There is a reference in

Mabe 293 30/5/91

Tillamooks - I will not take Your Honours to the

case but can I just give you the page reference.

At page 48 in the judgment of Tillamooks there is

reference to the fact that by 1896 there had been

treaties with every tribe and band of Indians and

the position was very similar in Canada. By that

time there had been the proclamation of 1763, which

was dealt with by the Privy Council in

St. Catherines and construed by them in St.

Catherines and there were many subsequent treaties.

The many subsequent treaties are referred to in

Calder and, again, I will not take Your Honours to

the passage but they are referred to in Calder at

page 187, point 9.

Now, it does appear, Your Honours, that this

personal possessory right - I call it "right'' for

want of a better name because it is not, in any

sense, a right against the Crown - the recognition

required for ·that, does not have to be a

legislative or other formal Act. It can be a

government policy settled by the time of a

particular annexation.

This was the case in the United States where

annexing parts was done in a piecemeal way, as it

has been here, of course. And it was said that

where the British government policy had been

settled by the time a particular territory was

annexed, then it was assumed that that policy

applied to that territory and therefore the

personal possessory right was allowed to exist in

that case.

Can I give Your Honours just a couple of

passages from Calder where that appears. They are

both in the judgment of Mr Justice Hall. About

point 5 on page 199 in that judgment, His Honour

said:

Crown treaties were negotiated and entered	areas where Indian lands were taken by the It is of importance that in all those	into between the Crown and the Indian tribe on
land then in occupation. The effect of these
treaties was discussed by Davey, JA (as he
then was), for the majority in White and Bob -

where His Honour said -

that the Crown or the company should buy from the Indians their land for settlement by white

"It was also the long standing policy of the

colonists. In pursuance of that policy many

agreements, some very formal -

Mabo 294 30/5/91

and so on. And then, on the following page, the

middle of the page, Mr Justice Hall said -

The aboriginal Indian title does not

depend on treaty, executive order or

legislative enactment. Sutherland J,

delivering the opinion of the Supreme Court in

the United in Cramer -

in the second sentence said

"The right, under the circumstances here

disclosed, flows from a settled governmental

policy."

And we have mentioned this, I think in a little

more detail in our written submissions and I will

not deal with it any further, but it does seem to

be the case that what really happened was that once

that settled policy was established it was really

treated thereafter as a rule of common law, it

being something established. That is referred to

in Calder at page 191, in a passage quoted from a

judgment of Justice Strong in St Catherine, in a

passage just a bit below point 5 on the page.	He
said:

recognise it as a continuance of the

principles of law or policy as to Indian

titles then established by the British

government, and therefore identical with those which have also continued to be recognized and

applied in British North America.

That is also mentioned in the passage quoted in the middle of the following page, 192:

constant usage and practice of the crown -

So, Your Honours, what we are really saying is that

there was a long-standing government policy of the

British in America, really inconsistent with any

long-standing government policy in Australia so far

as can be seen or, certainly, so far as can be seen

from anything in this case that the possessory

rights of the native inhabitants would be

recognized and protected while they remained there

but they always remained personal rights and they always remained terminal at the discretion of the sovereign.

But it was never a right against the sovereign for that reason, in our respectful

submission.Your Honours, where there was a right against the sovereign it was a right created, it

was a right which arose in the American cases it

was said, from a specific Act of Congress and

Mabo 295 30/5/91

Tee-Hit-Ton is the authority for that proposition.

Can I take Your Honours to that case. It is in

volume 1 of our green folder, it is the last case

in that folder.

Mr Justice Reed, Your Honours, delivered the

opinion of the court and he said, at about point 7 or point 8 on page 273, with respect to the claim:

The compensation claimed does not arise from

any statutory direction to pay. Payment, if

it can be compelled, must be based upon a

constitutional right of the Indians to

recover.

And then, at page 275, he says in the first sentence there:

The Court of Claims adopted these findings and

held that petitioner was an identifiable group

of American Indians residing in Alaska; that

its interest in the lands prior to purchase of

Alaska by the United States in 1867 was

"original Indian title" or "Indian right of

occupancy. " And then he refers to Tee-Hit-Ton -

It was further held that if such original

Indian title survived the Treaty of

1867 ..... such title was not sufficient basis

to maintain this suit as there had been no

recognition by Congress of any legal rights in

petitioner to the land in question.

Then over to page 277:

The problem presented is the nature of the petitioner's interest in the land, if any.

Petitioner claims a "full proprietary

ownership" of the land; or, in the

alternative, at least a "recognized" right to

unrestricted possession, occupation and use.

And can I go down then to the middle of the page,

after the reference to:

when Russia took Alaska, the Tlingits had a

well-developed social order which included a

concept of property ownership -

and then two lines down -

Congress has by subsequent acts confirmed and recognized petitioner's right to occupy the

land permanently.

Mabo 296 30/5/91

These are the contentions of the petitioner.	Then
the first heading recognition:

1. Recognition. - The question of recognition

may be disposed of shortly. Where the

Congress by treaty or other agreement has

declared that thereafter Indians were to hold
the lands permanently, compensation must be

paid for subsequent taking.

And then at the bottom of the page:

There is no particular form for congressional

recognition of Indian right of permanent

occupancy. It may be established in a variety

of ways but there must be the definite

intention by congressional action or authority

to accord legal rights, not merely permissive

occupation.

And then under the heading:

II. Indian Title. - (a) The nature of

aboriginal Indian interest in land and the

various rights as between the Indians and the

United States dependent on such interest are

far from novel as concerns our Indian

inhabitants.

Then I will leave out the next two sentences, and
His Honour went on:

After conquest they were permitted to occupy portions of territory over which they had

previously exercised "sovereignty," as we use

that term. This is not a property right but

amounts to a right of occupancy which the

sovereign grants and protects against

intrusion by third parties but which right of

occupancy may be terminated and such lands

fully disposed of by the sovereign itself

without any legally enforceable obligation to

compensate the Indians.

And then at the bottom of page 280:

In Beecher v Wetherby, a tract of land

which Indians were then expressly permitted by

the United States to occupy was granted to

Wisconsin. In a controversy over timber, this

Court held the Wisconsin title good.

And then I will leave out that quotation and go to the following quotation:

"Extinguishment of Indian title based on

aboriginal possession is of course a different

Mabo 297 30/5/91

matter.	The power of Congress in that regard
is supreme.	The manner, method and time of

such extinguishment raise political, not

justiciable, issues." United States v

Santa Fe Pacific R.Co.

No case in this Court has ever held that taking of Indian title or use by Congress required compensation.

On the following page 282:

(b) There is one opinion in a case decided by

this Court that contains language indicating

that unrecognized Indian title might -

that is unrecognized ownership the court is using

in that sense -

compensable under the Constitution when taken

by the United States. United States v

Tillamooks.

Recovery was allowed under a

jurisdictional Act of 1935, that permitted

payments to a few specific Indian tribes for

"legal and equitable claims arising under or growing out of the original Indian title" to land, because of some unratified treaties

negotiated with them and other tribes. The

other tribes had already been compensated.

Five years later this Court unanimously held

that none of the -

that is five years after Tillamooks -

former opinions in Vol. 329 of the

United States Reports expressed the view that

recovery was grounde4d on a taking under the

Fifth .Amendment.

That is Tillamooks No 2.

Interest, payable on recovery for a taking under the Fifth .Amendment, was denied.

Then the following page there is a reference to

Hynes v Grimes Packing Co.

We there commented as to the first Tillamook

case: "That opinion does not hold the Indian

right of occupancy compensable without

specific legislative direction to make

payment." We further declared "we cannot

express agreement with that (compensability of

Indian title by the Miller case) conclusion.

Mabo 298 30/5/91

Then page 284, after the reference to

Tee-Hit-Ton Indians:

We think it must be concluded that the recovery in the Tillamook case was based upon

statutory direction to pay for the aboriginal

title in the special jurisdictional act to

equalize the Tillamooks with the neighboring

tribes, rather than upon a holding that there

had been a compensable taking under the Fifth

Amendment. This leaves unimpaired the rule

derived from Johnson v McIntosh that the

taking by the United States of unrecognized

Indian title is not compensable under the

Fifth Amendment.

Your Honours, perhaps I should read a little

more. If you go to page 288 and page 289,

Their Honours said:

The line of cases adjudicating Indian

rights on American soil leads to the

conclusion that Indian occupancy, not

specifically recognized as ownership by action

authorized by Congress, may be extinguished by

the Government without compensation.

Your Honours, that was really what was decided

in Johnson v McIntosh and decided consistently by

the United States Supreme Court with only the

possible exception of the first Tillamook case and

it was, in effect, decided later whether in fact,

when one analysed the judgment, what the basis of

it is, it was decided that what was apparently a

jurisdictional statute was a statute which really

conferred the right. The jurisdictional statute,

by that I mean a statute conferring the right to

sue the United States.

The construction which Tillamook (No 2) and

Tee-Hit-Ton put on Tillamook (No 1) was also the

construction which in Calder Mr Justice Judson put
on Tillamooks.	And could I, without taking

Your Honours to it, indicate that His Honour

Mr Justice Judson, in Calder, at page 166 arrived

at the view of Tillamooks (1) that was taken in

Tillamook (No 2) and in Tee-Hit-Ton.

Your Honours, that view which has been adopted

in the United States and, in our submission, also in Canada is really also consistent with the view which has been taken in all other jurisdictions.

It is consistent with the Privy Council cases

from India, which our learned friend sought to

distinguish - they are cases such as Bai Rajbai and

Vajesingji. We have dealt with those in our

Mabo 299 30/5/91

written submissions in detail and I do not want to

take Your Honours to them now.

But the Privy Council held in those cases that

no property rights could be enforced against the

British sovereign without some act of specific

recognition of those rights by a formal Act of the

British sovereign, and our submissions on pages 85

to 93 - paragraphs 85 to 93 - deal with those

cases.

It is also consistent with the position in

New Zealand, and I could I just very briefly take

Your Honours to Tamaki v Baker, (1901) AC 561, on

this aspect of the matter.

Can I take Your Honours directly to the

judgment of the Privy Council at page 566 where, on

that page, Lord Davey set out the Treaty of

Waitangi, and the second article is important, in our respectful submission, commencing at the bottom

of page 566:

Her Majesty the Queen of England confirms

and guarantees to the Chiefs and Tribes of New

Zealand, and to the respective families and

individuals thereof, the full, exclusive, and

undisturbed possession of their Lands and

Estates, Forests, Fisheries, and other

properties which they may collectively or

individually possess, so long as it is their

wish and desire to retain the same in their

possession; but the Chiefs of the United
Tribes and the individual Chiefs yield to Her
Majesty the exclusive right of pre-emption

over such lands as the proprietors thereof may

be disposed to alienate, at such prices as may
be agreed upon between the respective

proprietors and persons appointed by Her

Majesty to treat with them in that behalf.

Then if I can take Your Honours to page 568, the

reference to the Native Rights Act, about seven

lines down a reference to section 3 of that Act:

that the Supreme Court and all other Courts of

Law within the Colony ought to have and have

the same jurisdiction in all cases touching
the persons and property whether real or

personal of the Maori people, and touching the

titles to land held under Maori custom or

usage, as they have or may have under any law

for the time being in force in all cases

touching the persons and property of natural-

born subjects of Her Majesty; that every title

to and interest in land over which the native

title shall not have been extinguished shall

Mabo 300 30/5/91

be determined according to the ancient custom

or usage of the Maori people so far as the

same can be ascertained.

And then to the judgment of the Privy Council at page 577, in the first full paragraph, the fourth sentence:

The right, it was said, depends on the

grace and favour of the Crown declared in the
Treaty of Waitangi, and the Court has no

jurisdiction to enforce it or entertain any

question about it. Indeed, it was said in the

case of Wi Parata v Bishop of Wellington,

which was followed by the Court of Appeal in

this case, that there is no customary law of

the Maoris of which the Courts of Law can take

cognizance. Their Lordships think that this

argument goes too far, and that it is rather

late in the day for such an argument to be

addressed to a New Zealand Court. It does not

seem possible to get rid of the express words

of the 3rd and 4th sections of the Native

Rights Act, 1865 -

and then going down a bit further:

It is the duty of the Courts to interpret the

statute which plainly assumes the existence of

a tenure of land under custom and usage which

is either known to lawyers or discoverable by

them by evidence. By the 5th section it is

plainly contemplated that cases might arise in

the Supreme Court in which the title or some

interest in native land is involved, and in

that case provision is made for the

investigation of such titles and the

ascertainment of such interests being remitted

to a Court specially constituted for the

purpose. The legislation both of the Imperial

Parliament and of the Colonial Legislature is

consistent with this view of the construction	and effect of the Native Rights Act; and one
is rather at a loss to know what is meant by
such expressions "native title", "native lands", "owners", and "proprietors", or the
careful provision against sale of Crown lands
until the native title has been extinguished,
if there be no such title cognizable by the law, and no title therefore to be
extinguished.

So what Their Lordships were saying was that really

with the Native Rights Act which again conferring

the remedy created the right.

Mabo 301 30/5/91

In our respectful submission, the principle

that we have really been discussing from the
American cases is also consistent despite what our

learned friend said with Amodu Tijani because in

that case there was express legislative provision.

That really appears from the first instance

decision which we have included in our material for

Your Honours in the first green volume. It is the

first case in that volume. It is from the Nigerian

Law Reports, and could I take Your Honours to

page 38 of that case. In the last paragraph on

that page His Honour says:

I now come to the question of private rights being recognised by the legislature in

the issuing of Ordinances concerning the

rights in land between the years 1863 and

1869. It is argued by the learned counsel for

the claimant that the Government is bound by

reason of this official recognition.	I cannot
agree with this proposition.

Then if I can go down a few more lines he says:

These Ordinances, in my opinion, were

introduced to express the conditions of the Treaty of 1861 that private rights would be recognised, and to prevent quarrels between

individuals, and it was therefore necessary to
constitute some tribunal to enquire into the

rights of the various claimants to some right

of occupation. That the intention of the

legislature was to admit absolute ownership in

persons I feel sure was never the case. A

reference to Ordinance No. 9 tends to show

what that intention was. This section

requires all claimants to produce a grant or
obtain a grant and, in the event of a claimant

failing to do this within a prescribed time,

it is enacted that the land shall revert to

the Crown: the use of the word "revert" is

significant.

Then at page 44 in the middle of that page:

After the Treaty of 1861 there was

considerable dissatisfaction among the white

cap chiefs that King Docemo had ceded their

rights and the British Government declared
their intention to secure them in the

possession of their rights and privileges as

existing at the time of the cession.

The effect of the cession and the Royal

Instructions which followed left entirely

unimpaired the ownership rights of private

property and even of King Docemo himself. The

Mabo 302 30/5/91

rights of private ownership were recognised,

alluded to and implied in subsequent

legislation allowed by the Crown. And finally, Your Honours, in this report to

page 51, the commencement of the last paragraph on

that page:

No. 9 of 1869 was "An Ordinance to settle

claims to lands, hereditaments and tenements

within the Settlement of Lagos and its

territories and to give validity to possessory
titles thereto in certain cases". Section 4

shows that the Crown claimed the right of
reversion to lands to which the occupier could
not produce a grant or did not obtain a grant

within six months of notice.

And from there, could I take Your Honours to the

Privy Council judgment in Amodu Tijani, just two

passages, Your Honours. The first is at page 404

where, in the third sentence of the first paragraph

Their Lordships say:

But that title -

that is, the British sovereign's title -

is throughout qualified by the usufructuary

rights of communities, rights which, as the

outcome of deliberate policy, have been

respected and recognized.

Then, at page 407, there is a reference in a

sentence which is, I .think, the second or third
full sentence on that page, towards the end of that

sentence:

this cession appears to have been made o the

footing that the rights of property

inhabitants were to be fully respected.

So, although they were only usufructuary rights,

they were in fact recognized by a series of

ordinances.

Your Honour, the position, in our respectful

submission, is in contrast here. There has been no

legislative or executive Act by the Crown in right

of Queensland or a settled course of conduct before

annexation either recognizing the personal right,

terminable at the discretion of the sovereign, and

certainly nothing acknowledging and so granting a

right against the Crown.

Then, after annexation, what happened was that

we permitted the Murray Islanders to remain on

Mabo 303 30/5/91

Murray Island, we say from 1882, under the reserve.

We provided a means of resolving disputes and, in

effect, resolved those disputes because although the island court, at first instance, did so, the decisions of the island court were confirmed or

overruled by the protector.

DEANE J:	Mr Solicitor, what is the best evidence of the content of the 1882 proclamation, or whatever it
was?  I appreciate we have not got it but I was
just wondering what is the best evidence about what
it said?
MR DAVIES:	I think the best thing we can do is His Honour's

specific finding, Your Honour. We would hesitate

to mention any of the evidence, Your Honour,

because His Honour did not really say anything one

way or the other so we think that we are bound to

rely solely on His Honour's finding.

Your Honours, the point we want to make about

the island court is that in the end, although it

may have in many cases satisfied the parties - and

I should add that the decisions were not in

accordance with custom but the decisions were, as

His Honour found, to do what seemed right in the

circumstances; whatever satisfied both parties.

It was really a sort of mediation-type situation,

one can imagine, rather than doing something which

reflected any application of principles. And we

mention in paragraph 90 of our submissions, how, in

fact, those decisions were either confirmed or

overruled by the protectors.

So, we did that. We felt free to lease land

and we mention in paragraphs 160 to 168 various

leases or attempted leases by us. One thing that

is omitted from our learned friend's recorded

history, in his written submission, which he read

out at some length, is that we felt free to

re-allot land.	And can I hand up to Your Honours a
copy of an exhibit, which was an exhibit in the

case, which is a report of the government resident

as at 1892-93. It was exhibit 80 in the case and

can I direct Your Honours to page 8 of that

document, about the middle of the page. In the

third sentence of the paragraph in the middle of

page 8 it is said:

Two years ago I also gave notice that, after
next December - that is, on the 1st of January
1895 - all land which was not cultivated or

improved would be held liable to be allocated to inhabitants of the island who were anxious to obtain land for cultivation, and who could

give some guarantee that they would cultivate.

This notice has already led to a considerable

Mabo 304 30/5/91

increase in the area of land which may be

regarded as cultivated.

BRENNAN J: Under what prerogative power would that have

been done? Prerogative or statutory power?

MR DAVIES: 

I can only say that it was land which was then

the ownership and right to possession in which was
in the Crown, which was then a committed aboriginal
reserve and these people were no more than

permitted occupants upon that land.  So I suppose

the allotment of the land - - -

BRENNAN J: They had a personal right of occupancy, did

they? With a personal right of occupancy?

MR DAVIES: Yes.

BRENNAN J: Well, by what authority could that right be

interfered with?

MR DAVIES: Well, a personal right of occupancy - I cannot

answer Your Honour specifically on that but the

personal right of occupancy may have been simply a

right of occupancy in the sense of where they

lived. This was garden land, of course, not

housing land. He was not moving people around from

one house to another. It was really a personal

right - not a right against us.	We have emphasized
that throughout.	We assert, or we submit, that at

no stage are we conceding that there was a legal

right against us. We are saying that at most what

they had was something equivalent to what was
accepted in the American cases, which was a
personal usufructuary right against others, but not

against us. We could terminate that right at will,

as appears from Johnson v McIntosh was the case in

the United States and everywhere else, in our

respectful submission, where there was not some

specific treaty or ordinance of some kind

conferring some right greater than that.

BRENNAN J: If your argument be right, Mr Solicitor, it

seems that the common law as applied in England, and perhaps the law as applied in Canada and the

United States, was no more than a device to ensure

that the indigenous people had nothing.

MR DAVIES:  Your Honour, historically unpalatable as that

may appear to be today to us looking back at that

in retrospect, historically it seems to have been

correct, but it was no rights against the

government.

BRENNAN J:  No rights against those who exercised the power

of control?

Mabo 305 30/5/91

MR DAVIES: Yes, that seems to be the case.

BRENNAN J: It is scarcely an enabling doctrine for a common

law?

MR DAVIES: Well, Your Honour, unfortunately the position

seems to have been very much in those days that

might was right and that those who controlled the

country determined what the rights were. But in
fact that is the way in which the law was construed

then.

BRENNAN J: That is a custom which is inconsistent with the

case of Tanistry.

MR DAVIES:  Your Honour, in our respectful submission, not

necessarily, because the case of Tanistry really
was to the effect that if in fact the natives were

prepared to accept the law in accordance with the new sovereign then they were granted rights as if

they were right under the sovereign's law. But

that is not this case, and it is not the case

really which ever existed in the United States or

some of these other countries. But it was never

suggested by these people themselves, and not

suggested by the plaintiffs here, that they have the rights which other Australians have to their land that they accepted.when soy~~eignty was

exercised, the Australian or the~Queensland law as

it was at that time, aru:Lthat the plaintiffs are

not saying that, "We are the descendants of the

people who held at that time according to

Queensland law and we claim inheritance in

accordance with that law." That is not the case

here.

So, Tanistry has that qualification, in our

respectful submission, relevant to here.

DEANE J: While you are being interrupted, where, if at all,

does the Pacific Islanders Protection Act come into

your argument?

MR DAVIES:  It does not, Your Honour. I mean, Your Honour

is talking about the sense in which our learned

friend referred to it last?

DEANE J: Yes, the Imperial Act.

MR DAVIES:  Your Honour, can we just say simply this, that

it does not confer or acknowledge sovereignty in

anyone else. All it is doing at that time - and,

of course, it was very quickly superseded so far as

the Murray Islanders were concerned by the

annexation of the Murray Islands but all it did was say that Her Majesty was not exercising any form of sovereignty over any area other than that which she

Mabo 306 30/5/91

had annexed. It was not a recognition of

sovereignty in others but simply - and no more than

a denial of sovereignty by the Queen. And so that

cannot, in our respectful submission, be erected

into something which it is not, namely a

recognition of sovereignty in someone else.	So we
submit, with respect, the Pacific Islanders Protection Act is really irrelevant to the
arguments in this case.

But, Your Honours, of course, our argument is

not based upon the introduction of the common law

into the Murray Islands, it is based upon statutory

law, of course; we have made that point before.

Your Honours, can I then pass to - and very

briefly - submission our learned friends made:

one, with respect to title by po~session; and the

other with respect to title by custom. We have

made some written submissions with respect to these

and we do not want to say very much in addition to

them. Can I just make a couple of points.

The first is the argument that the plaintiffs

have title by possession really fails to have

regard to the fact that title by possession is good

against all except the true owner, namely the

Crown. And, in our respectful submission, the

claim which the plaintiffs are making must be a

claim which is adverse to the Crown claim here

because the Crown asserts absolute ownership.

Can I give Your Honours a reference to one

provision in the Land Act which, I think, does not

appear in our - this is the current Land Act -

written argument but should have and that is

section 374 which, really, is a section preventing

title by adverse possession against the Crown. Your Honours, I do not think we need, so far

as the custom argument is concerned, to say

anything more than, really, in our submission, it

cannot have any greater strength than the argument

for aboriginal native title. And we really ask,

rhetorically, how can 1879 be time immemorial when

the Crown actually dealt with the land as a

reservation in 1882.

Your Honours, can I then pass - and again

fairly briefly - to the question of fiduciary

obligation. Again, we have made detailed written

submissions and I do not want to say very much

about it. If the plaintiffs have proprietary

rights it is hard to see why they need to imply a

fiduciary obligation. If they have only possessory

rights, at the pleasure of the Crown, then it is

difficult to see how there could be an obligation

Mabo 307 30/5/91

to preserve those rights. And we submit the

discretion of the Governor-in-Council to terminate

any reserve is consistent only with the absence of

any such obligation. And, of course, that is in

addition to the point that Your Honour Justice

Dawson raises about whether the Crown can be a

trustee at all

Can I just say something about Guerin, because our learned friends relied upon it. It really is a

very special case because there was a statutory

scheme in that case under a number of sections of

the Indian Act - section 18 and section 36 and 39

of the Indian Act - which provided, in effect, that

if an Indian band for whose use and benefit land

was reserved, and in which it was accepted

legislatively that they had a form of title, if
they wished that land to be leased to a third party

they could not do it themselves; they had to do it

by surrendering to the Crown, who would then lease

the land in its discretion for what it thought was

to the benefit of the band.

It was the exercise of that discretion, in

leasing the land, which was held to give rise to the fiduciary obligation. And the majority held

that, in exercising that discretion improperly, and

contrary to the agreement with the Indian band as

to the way in which it would exercise that

discretion, the Governor-in-Council had broken a

fiduciary obligation.

Your Honours, the plaintiffs allege, both as a

trust and as a fiduciary obligation, an individual

right arising on the creation of the reserve, but

we make two points. One is that the reserve was

also terminable at the Crown's pleasure, as appears

from the legislative scheme which we have taken

Your Honours to. The other point is that, to the

extent that the legislation and the reserves

created under it have been protective of the

plaintiffs, they have been protective of them as

Murray Islanders wishing to remain as Murray

Islanders; not as holders of interests in specific

parcels of land. They do not, in our respectful

submission, evidence any intention of creating

individual rights. The reservation for public

purposes, in our respectful submission, is

inconsistent with the creation of individual

rights.

Can I then pass to the question of

inconsistency?

GAUDRON J: Could I interrupt you at this stage, Mr

Solicitor? What do you say happened to the London

Missionary Society's land on annexation?

Mabo 308 30/5/91

MR DAVIES:  I think after annexation we granted a lease of

land.

GAUDRON J: Yes, but immediately upon annexation, what

happened to it?

MR DAVIES:  They had no interest in it, and after that we

recognized their absence of interest by granting

the lease. Your Honours, there is no

inconsistency, in our respectful submission,

between the Land Act provisions and section 9 of the Racial Discrimination Act because, as all of

Your Honours, I think, said in Mabo, the enactment

of legislation does not amount to the doing of an

act for the .purpose of section 9.

DEANE J:  Mr Solicitor, if, contrary to your submission,· one

were finally to take the view that the lands of the island were not Crown lands for the purposes of the Crown Lands Act of 1875, and consequently were not

Crown lands for the purposes of the subsequent

Acts, where would that lead to, in your argument?

MR DAVIES:  Your Honour, we would say it leads to

sovereignty in us, ownership and the right to
possession in us, because that goes with

sovereignty.

DEANE J: Well, let me make a further assumption for the

sake of the question only, and that is if, contrary

to your view, one took the view that there was

recognition of usufructuary proprietary rights in

the native inhabitants under some communal system,

where does that end up, for the purposes of the

present case?

MR DAVIES: Well, if Your Honour is talking about - and we

would only accept that that could be so by way of a

grant, by some act of ours having granted

proprietary rights, the answer to that question is,

it would depend upon what the terms of that grant

were and we have difficulty in - - -

DEANE J: Well, assume further against yourself, so I can

identify what I would like your assistance on -

needless to say it is just for the purpose of the

question - assume against your argument that one

were ultimately to take the approach that, even if

one does insert some sort of radical title in a

case such as this, that the usufructuary rights are

real and recognized and do not depend on a formal

grant.

MR DAVIES:	And are proprietary.
DEANE J:	And are proprietary, yes.

Mabo 309 30/5/91

MR DAVIES: Well, I suppose the next question is, whether

they are permanent. If they are usufructuary

rights, which are proprietary and permanent, then

so be it. I mean, there is nothing - I do not

think I have an answer to that, Your Honour.

DEANE J: Well then assume that they are not permanent, but

can be extinguished by the Crown.

MR DAVIES:  Then I do not suggest that any time from the

earliest stages there has been any extinguishment.

We do not really argue extinguishment. We say no

recognition in terms of either - whatever
recognition is necessary to recognize a
usufructuary right, personal and terminable and no

grant of a proprietary right, but we do not say

that by any subsequent and recent conduct we have

extinguished any right if one was created.

DEANE J: Well then, if one does not reach that stage, but

does get some inchoate non-proprietary interest of
the native occupiers in the land, which is
sufficient to preclude them as a matter of

construction, coming up into the Crown Lands Act,

as Crown lands, where, on your argument, would that

lead in this case?

MR DAVIES: But, nevertheless, terminable by the Crown?

DEANE J: Yes.

MR DAVIES:  Then we would have to terminate it in some other

way.

DEANE J:  I see. In other words, you would accept that

unless you come under the 1875 Act or subsequently

come under one of the Crown Land Acts, the

plaintiffs are entitled to some relief here.

MR DAVIES: Excepting all those premises that Your Honour

has put to me, yes.

DEANE J:  I just wanted to understand where it all leads,

thank you.

MR DAVIES: Yes, Your Honour. Your Honours, I think I was

dealing with section 9, and I had said that
section 9 is not relevant to this case in the sense

that the Land Act itself, none of the provisions including the more recent deed of grant in trust provisions, are not acts which are within section 9

and that is the decision of this Court in Mabo.

And, Your Honours, furthermore, there has been no

step taken and there was no evidence in the case

that any step was likely to be taken to implement

the relevant provisions in relation to the land.

Mabo 310

We mentioned that in our written submissions, paragraph 282, page 130.

Can I just mention one other matter with respect to that, Your Honour. It is not something

on which we want to make, or that we could properly

make submissions today, but it is something upon

which we might want to make some further short

written submissions. There is, as I am sure

Your Honours are aware, a bill before the

Queensland Parliament at the moment. If that bill

passes into law one of its consequences may be that

this land cannot any longer be committed to the

deed of grant in trust consequences of the Land

Act, in which case the inconsistency argument would

be irrelevant. We would want, if we could, to put

some short written submissions to the Court in that

event, assuming it happens between now and when

Your Honours would otherwise give judgment.

Your Honours, we also submit that even if the steps which are referred to on page 1023 of our

learned friend's submissions to which he took

Your Honours at some length, even if those steps

were taken, we submit that the consequence would be

not interference with any existing rights but

protection if there are any existing rights of

those rights because we submit that under the

present scheme the Governor-in-Council could, in
his absolute discretion, rescind the Order-in-

Council reserving the land. If it were granted

under the deed of grant provisions, the amendments
under section 334, it would be granted to the

Murray Island Council which is a democratically

elected representative group of Murray Islanders

and, in that event, the Governor-in-Council could

declare that the land would revert to the Crown only if authorized by an Act of Parliament, and that is the consequence of section 353A of the Land

Act. So, in our respectful submission, if this

land were committed to the deed of grant

consequences, and there is not the slightest

indication that it is going to be, then the rights,

if there are any, of the present plaintiffs would

be strengthened.

And can we just say, finally, in this respect,

that if the interest which is alleged to exist can

itself be terminable at will it is difficult to see

how termination could result in discrimination.

That is the point Your Honour Justice Dawson made a

couple of days ago and we adopt that, with respect.

Your Honours, there is nothing further I want

to say about inconsistency. There is really

nothing further I want to say about power, except

what I have said, I suppose, about the Pacific

Mabo 311 30/5/91

Islanders Protection Act, and also perhaps to distinguish the provisions of the Coastal Waters

(State Powers) and (State Titles) Acts. Our

learned friends saw in those some useful analogy

but in fact those Acts really proceed upon the

assumption that the annexation to a State of

additional land would give the State power to

legislate with respect to land, not that it would

not. And we say that because the Coastal Waters

(State Title) Act did not annex the seabed.
Instead it merely, by force of the Crown, vested in
the State the same title to the property beneath
the coastal waters as it would have if the seabed

were within the State. In other words, it

proceeded upon the assumption that it was not part

of the State. And section 8 of the Act makes it plain that the Act was not to be taken to extend the limits of any State. That is really a

distinction between that Act and what occurred

here, namely annexation. Consistently with that,

the (State Powers) Act then provided that the

legislative powers exercisable from time to time

should extend to the making of - this is paragraph

(a) :

All such laws of the State as could be made by virtue of those powers if the coastal waters

of the State as extended from time to time

were within the limits of the State.

In other words, the States were given the power it

would have if the relevant laI)d,was within the

State so, in our respectful submission, that is not

analogous to this case at all.,

MASON CJ:	Mr Solicitor, I have not quite understood what you have in mind when you foreshadow the
possibility of written submissions, evidently relating to the legislation in prospect before
Parliament of Queensland.  I understood what you
say to indicate that the inconsistency question
might disappear as a result of that legislation if
enacted.

MR DAVIES: Yes.

MASON CJ:  And I can follow that you might want to put in a

short memorandum to the Court saying that the

existing situation has been altered by that

legislation.

MR DAVIES: That is all, Your Honour.

MASON CJ: That is all you had in mind?

MR DAVIES: Yes, that is all I had in mind, yes.

Your Honour, I am told there is quite a deal of

Mabo 312 30/5/91

material which is mentioned in our written
submission which we undertook to provide the Court

and we have not yet done so. Perhaps that could be done after Court finishes this afternoon. They are

our submissions, Your Honours.

BRENNAN J:  Mr Solicitor, I might just mention that I

referred earlier to a passage in Coke on Littleton.

I was in error. It is not Coke on Littleton, but

the 1817 Notes on Coke and Littleton, vol 1,

book 2, chapter 1, section 85, paragraph 65(a).

MR DAVIES:	Thank you, Your Honour.
MASON CJ:	Yes, Mr Castan. How long is your reply going to

take?

MR CASTAN:  Very short, Your Honours, but what we had

intended to do was to comply with the indication

Your Honours had given us earlier today to

formulate a document, and there are other documents

which we wish to hand up. We had prepared a

written reply which went in before the hearing

commenced. There is another section of that,

Part D, which has now been prepared, which we would

want to submit, but we would not want to address on

it.

I do not think there is anything that we

specifically need to address the Court on in

response to - in terms of oral submissions,

Your Honours, but there are documents that need to

be provided to the Court. They could be provided,

of course, by simply lodging them with the

registry, if that is the convenient course, but it

may be that the document that Your Honours

foreshadowed just when I completed my oral

submissions is one that, Your Honours, would need

to be the subject of some debate.	I am not sure
whether that is the case.

We would be certainly content to supply the

documents that we are pulling together - there are

four of five of them - and some references in our

written submissions that we found the library did

not have and we have now obtained the copies of

them. There is material of that kind that does need to be provided to the Court but we have no

further - - -

MASON CJ:  Mr Castan, I think it would be preferable if we

sat again tomorrow morning at 10.15 because it is

not altogether clear that the receipt of these

documents will not provoke or excite some question,

if not from the Bench perhaps from the Solicitor-

General. I do not know that the Solicitor-General

Mabo 313 30/5/91

has even seen this document that you have been

preparing in response to the - - -

MR CASTAN:  He could not have, Your Honour, because I have

not completed it.

MASON CJ: That seems to make it abundantly clear that we

should adjourn now and resume at 10.15 tomorrow

morning.

MR CASTAN: If the Court pleases.

MASON CJ: But before we do adjourn, if the document is

brought into existence, and I assume it will be

brought into existence before 10.15, can it be
handed in to the Court staff as soon as it is
available so that we can have a look at it before

the Court assembles at 10.15?

MR CASTAN:	Yes, we will use every endeavour to ensure that that is done and I am confident that we will
succeed.

MASON CJ: Very well, we will adjourn.

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 31 MAY 1991

Mabo 314 30/5/91