Mabo & Ors v The State of Queensland

[1991] HCATrans 24

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B12 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 WEDNESDAY, 29 MAY 1991, AT 10.16 AM

(Continued from 28/5/91)

Copyright in the High Court of Australia

Mabo 119 29/5/91

MASON CJ: Yes, Mr Castan.

MR CASTAN:  If the Court pleases. I have taken Your Honours

in the course of reviewing the background to the

development of Crown lands legislation in Australia

to Steel's case. Could I take Your Honours briefly
to the case of Reg v Bonjon. It is to be found

reproduced at page 740 of the plaintiffs'

submissions in volume 4 of the white bound volumes.

The report commences at page 736.

That case was before His Honour

Mr Justice Willis in the Supreme Court of New South

Wales sitting in Melbourne in 1841. It dealt with

a prosecution for murder of an Aboriginal person

and there was lengthy argument as to whether or not

he would be subject to the laws of what one might

broadly call English law as applicable in the
Colony of New South Wales in the District of Port

Phillip in 1841, Port Phillip having been first

actually settled in 1835 some six years only

previously.

And at page 740 commence passages in which His Honour recites the history of the settlement of

the colony of New South Wales, as background to his
ultimate determination of the answer to the

question then argued before him, as to the

applicability of English law to Aboriginal persons.

At the top of the page there is a history of

Captain Cook's voyage, he then comes to - about a

third of the way down - Captain Phillip describes

the arrival in Botany Bay and the removal to

Port Jackson and goe_s on further down the page, and

if I could pick up a passage, about half-way down

the page and that is half-way or quarter-way down

that full paragraph after the Latin quotation, he

speaks of:

The progress of the colony to a regular

establishment, was slow -

he says -

supplies of delinquents were occasionally

sent -

he speaks of -

articles of subsistence.

and then quotes Lord Bacon, describing plantations

in pure soil as against those where the people are

displanted, and then says, after quoting Lord Bacon

on, as he calls it, the displanting of peoples,

then says:

Mabo 120 29/5/91

Yet such was the plantation of New South

Wales -

and says -

With regard to the character of the aborigines

of the colony, it was said by those who first

visited New Holland, "that the people who

inhabit the various parts of it, appear to be

of one race.

And there is a description that then follows and

that description goes down about five or six lines

concluding:

Their habitations, utensils, et cetera are

more simple and rude than those of the

Americans.

His Honour then continues:

Subsequent observation has shown the

incorrectness of much of this statement which,

doubtless may formerly have had weight with

the British Government.

He then quotes from:

The Lord Bishop of Australia, previously the

Archdeacon, Dr. Broughton (in his evidence

before the Committee of the House of

Commons) -

who says -

the aborigines are in a state of extreme
degradation and ignorance," yet adds, "that he
does not ascribe their present barbarism to

any unconquerable dulness of intellect, but

merely to their love of erratic liberty; and

thinks their intellect, when it is exercised,

to apply it to." His Lordship states, "that	is very acute upon subjects that they choose
the consequence of our settlement at Sydney,
was to drive away the aborigines from
possessions which they had previously
occupied. " "They still haunt, " he says, "and
continue in their natural places; they return
to it ..... but they have no settled place, properly so called; it is all occupied by the
Europeans."
And then there is a description. His Lordship

stated his opinion as to numbers, which does not

seem to be inconsiderable. He then quotes

Mr Saxe Bannister, a former Attorney-General giving

evidence before the same committee, ·complained

Mabe 121 29/5/91

about the absence of an interpreter and suggests,

and the quote at the bottom is:

We ought forthwith to begin, at least, to

reduce the laws and usages of the aboriginal

tribes to language, print them, and direct our

courts of justice to respect those laws -

and says, at the top of the page then:

Hence it is evident, according to

Mr Bannister's testimony, that the aborigines

of this colony have laws and usages of their

own.

And he refers to a paper handed by Mr Bannister to

the chairman of the committee in which, under the

head of "Measures affecting the Swan River and

other New Australian Colonies", he says:

Make treaties with the natives before

proceeding further.

We know, of course, that did not happen. He then

quotes Reverend John Dunmore Lang, the head of the

Presbyterian church, in a letter to Mr Buxton, also before the committee, describing the tribes,

subsisting in the rivers or forests, without

clothing, ignorant of manufacture and agriculture,

in a state of warfare, and goes on, after the gap:

They are neither devoid of intelligence,

however, nor destitute of capacity; and in

their native wilds, and especially in seasons

when game is easily procurable, they are by no

means strangers to a certain species of

enjoyment.

He describes the songs, the dances, and the mock

fights.	He refers then to a letter from Mr Batman,
enclosed by Governor Arthur, in July 1835, to the

colonial Secretary of State, where Batman states

that:

the chiefs (that is, the chiefs of the aboriginal tribes at Port Phillip), to manifest their friendly feelings towards me,

insisted upon my receiving from them two

native cloaks, and several baskets -

and further description. And then, four or five

lines further on, His Honour continues:

Thus, according to these statements respecting

the aborigines, it appears that they are by no

means devoid of capacity, that they have laws

and usages of their own, that treaties should

Mabo 122 29/5/91

be made with them, and that they have been

driven away, from Sydney at least, by the

settlement of the colonists, but still longer

about -

And then he goes on:

That they do so linger in this district, that those who are termed by Mr Batman, in aid of his views, and those of other speculative adventurers, "a superior race'', still linger

about this town of Melbourne, once in their

actual occupation, is seen by their frequent

assemblies in the immediate vicinity, and the

multitude of them so congregated at this very

moment.

He describes:

scenes of drunkenness of individuals belonging

to this unfortunate race daily witnessed by
all in the streets of Melbourne will account
for that decay, for their seeming to wear

out ..... and diminish in numbers wherever

Europeans meet with them.

He then refers to an encounter in a different

country, an Old Charib, who addressed a West Indian

planter:

Our people are become almost as bad as yours,

we are so much altered since you came among us

that we hardly know ourselves ..... It is the

evil spirit that has done all this, who has

taken our best lands from us, and given us up

to the dominion of the Christians!

And then goes on:

It appears by the Parliamentary Report I have

prevalence of infanticide, from intemperance, so frequently referred to, that "from the	and European diseases, the number of the
aborigines is evidently and rapidly diminishing in all the older settlements -

in the neighbourhood of Sydney. He gives a number

of less than 10,000, an indication of what must

have been the population in that quotation, and

continues:

But why, I would ask, if the aborigines be

deemed to all intents and purposes to be
British subjects, and amenable to British

laws, as it is now contended that they are, - why have not the magistracy, aye! and why not

the Executive directed the magistracy, if

Mabo 123 29/5/91

negligent in their duty, to put forth the

protecting arm of legal authority -

and continues in that vein. He then refers to the

illegal attempt, about five or six lines further

down, of Mr Batman -

who has been mentioned ..... to treat with the

chiefs of the native tribes -

and criticize the proposed consideration, and goes

on after the quotation of the amounts that were

tendered:

Yes, such was proposed as the liberal

consideration for 600,000 acres of land, an

attempted bargain surpassed only by some more

recent proceedings of a somewhat similar

description in New Zealand.

And then refers to the reference to the

Parliamentary Committee and says, about six or

seven lines up from the bottom:

The scheme was happily frustrated. It is to

be regretted, however, that previously to the

settlement of Port Phillip by the Government

no treaty was made with the aborigines, no

terms defined for their internal government,

civilization and protection -

and commends Sir Richard Bourke for denying the

validity of the sale. And then over the page he

continues, after the quotation in Latin, about four
or five lines after, he says:

According to the commission whereby this colony is governed, the sovereignty of the

crown is asserted over the whole of the

territory comprised within the limits it

defines - limits always including a large

portion of the northern island of New Zealand:

that part in fact between which and New South

Wales any intercourse existed - limits which

by a commission of so late a date as the 16th
of June 1840, were further extended so as to

comprise that group of islands in the Pacific,

commonly called New Zealand. There does not

appear to be any specific recognition in this

commission of the claims of the aborigines,
either as the sovereigns or proprietors of the

soil: although it is in the recollection of

many living men that every part of this

territory was the undisputed property of the

aborigines.

And then he goes on and poses the question:

Mabe 124 29/5/91

Whether the sovereignty thus asserted within the limits defined by the commission of his

Excellency the Governor legally excludes the

aborigines, according to the law of nations,

as acknowledged and acted upon by the British Government, from the rightful sovereignty and
occupancy of a reasonable portion of the soil, and destroys their existence as self-governing
communities so entirely as to place them, with

regard to the prevalence of our law among

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

still retaining their own laws and usages,

subject only to such restraints and qualified

control as the safety of the colonists and the

protection of the aborigines required,

(subject to that right of pre-emption of their

lands which is undoubted,) is the point upon

which the present question mainly rests.

So His Honour there has posed the issue after the long recitation of the history of arrival and the

presence of people in those terms, and then goes

on:

Much will depend on the manner in which this

colony is considered to have been acquired;

and this brings me ..... to advert to the law of

nations as acknowledged by the British

Government, with regard to colonial

possessions.

He then sets out the concept, that is the familiar

one:

"Colonies," says Mr Clark, in his summary of

Colonial Law, and stated at the bar by

Mr Barry, "are acquired by conquest, by

cession ..... or by occupancy.	By occupancy,
where an uninhabited country is discovered by British subjects, and is upon such discovery	adopted or recognised by the British Crown as
part of its possessions. In case a colony be acquired by occupancy (he adds) the law of
England, then in being, is immediately and
ipso facto in force in the new settlement."
He further states, "New South Wales and Van
Diemen's Land were acquired by discovery or
simple occupation.

His Honour then says, quoting from Mr Clark:

New South Wales was not, however, unoccupied, as we have seen, at the time it was taken

possession of by the colonists, for "a body of

the aborigines appeared on the shore, armed

Mabo 125 29/5/91

with spears, which they threw down as soon as

they found the strangers had no hostile

intention." This being the case, it does not

appear there was any conquest; and it is

admitted there has hitherto been no cession

under treaty. Protectors, indeed, have

recently been appointed, and certain lands set

apart, by order of Government, within this

district, for the location of the aborigines;

but no more. This colony -

he then concludes -

then, stands on a different footing from some

others, for it was neither an unoccupied

place, nor was it obtained by right of

conquest and driving out the natives, nor by

treaties.

And then goes on to quote from Vattel which was much relied on in the American authorities which

was earlier referred to yesterday:

"whoever agrees that robbery is a crime, and

that we are not allowed to take forcible
possession of our neighbour's property, will

acknowledge, without any other proof, that no

nation has a right to expel another people

from the country they inhabit in order to

settle in it herself."

He then continues with a different quote from

Vattel that suggests that those who occupy vast areas of land which they roam over cannot, of course, claim to occupy the whole of that and stop

the Europeans who can come and make better use of

the land. Vattel discusses the North American
colonies and says that is all lawful because the

people who were there in the first place occupied

more than they needed. That continues over the top of the next page

with a lengthy extract from Vattel's early

justification for the concept of colonial expansion

as making use of the soil as distinct from the way

in which native people simply roamed over the area.

Then about 12 or 15 lines down he again says:

Mr Vattel proceeds, but this has not been

quoted at the bar:  "However, we cannot help

praising the moderation of the English

puritans who settled in new England;	who,
charter from their sovereign, purchased of the	notwithstanding their being furnished with a take possession. This laudable example was

Mabo 126 29/5/91

followed by William Penn and the colony of

Quakers which he conducted to Pennsylvania."

And then he concludes:

It was then, upon the above principle, I

think, and not by mere occupancy of a desert

spot, by conquest or by cession, that this

colony was acquired, though the good example

of the English puritans and of William Penn

has hitherto been neglected.

There is a lengthy dissertation then about Penn

which I will not bother Your Honours with, but

another 15 or so lines down he quotes from Vattel

and then goes on, and I have moved down about

15 lines from the last reference to Penn, about

half-way down the page now, Your Honours:

It may be said that if a nation that is

protected, or has placed itself under a
certain state of subjection, does not resist

the encroachments of the superior power - if

it makes no opposition to them - if it

preserves a profound silence when it may and

ought to speak - its patient acquiescence

becomes in length of time a tacit consent that legitimates the right of the usurper. It must

be observed, however, that silence, in order

to show consent, ought to be voluntary. If
the inferior nation proves, or if it be

evident from its position and circumstances,

that violence and fear, or ignorance,

prevented its giving testimonies of

opposition, nothing can be concluded from its

silence, which then gives no right to the

usurper. Therefore -

His Honour concludes -

if this colony were acquired by occupying such

lands as were uncultivated and unoccupied by

the natives, and within the limits of the
sovereignty asserted under the commission, the

aborigines would have remained unconquered and

free, but dependent tribes, dependent on the

colonists as their superiors for protection;

their rights as a distinct people cannot, from
their peculiar situation, be considered to

have been tacitly surrendered. But the

frequent conflicts that have occurred between
the colonists and aborigines within the limits
of the colony of New South Wales, make it, I
think, sufficiently manifest that the
aboriginal tribes are neither a conquered
people, nor have tacitly acquiesced in the

supremacy of the settlers. The rights of the

Mabo 127 29/5/91

aborigines of this district, if the testimony

which has been adduced as to the civilization

and capacity be true, cannot, I should

imagine, differ from those of other aboriginal

tribes within the limits of the same

government -

he meaning, of course there, the British Government

operating in other colonies.

And then he refers at some considerable length

happening in New Zealand, and then four lines from

to a proclamation by Captain Hobson, the

the foot of the page, after setting out the New fourth last line:

in fact I am quite at a loss to discover how

the aborigines of New Zealand can be

considered in a different light to those of

Australia Felix. But I now come to what,

perhaps, is higher and more conclusive

authority for considering the aborigines as a

distinct though independent people, and

entitled to be regarded as self-governing

communities. On the 9th of July 1840, his

Excellency, Governor Sir George Gipps, in his

speech in the legislative council of this

colony (a speech which would have done honour

to any senate,) on the Bill respecting claims to grants of land in New Zealand, made, among other, the following quotations in support of his argument, quotations which I know to be

correct. The first passages read by his

Excellency were extracts from Storey's
Commentaries on the Constitution of the United

States, but the seventh section is sufficient -

and the quote is -	It may be asked what was the effect of this
principle of discovery with regard to the
natives themselves. In the view of the
Europeans, it created a peculiar relation
between themselves and the aboriginal
inhabitants. The latter were admitted to
possess a present right of occupancy, or use of the soil, which was subordinate to the
ultimate dominion of the discoverer. They
were admitted to be rightful occupants of the
soil with a legal and just claim to retain
possession of it, and to use it according to
their own discretion. In a certain sense they
were permitted to exercise rights of
sovereignty over it. They might sell or

Mabo 128 29/5/91

transfer it to the sovereign who discovered
it, but they were denied the authority to
dispose of it to any other person; and until
such a sale or transfer they were generally

permitted to occupy it as sovereigns de facto.

And he then quotes His Excellency the Governor who,

in turn, had referred to passages from Kent's

Commentaries and, about 10 lines further down,

His Excellency read a passage from Robertson's

History of America and I will perhaps continue

there:

with regard to the internal regulations of the

Indians, of which the following is an extract

- (this passage has also been at the bar to

show that the Court ought not to entertain
jurisdiction): - "The first step towards
establishing a public jurisdiction has not

been taken in those rude societies. The right

revenge is left in private hands. If violence

is committed or blood shed the community does

not assume the power either of inflicting or

moderating the punishment. It belongs to the

family and friends of the person injured or

slain to avenge the wrong, or to accept the

reparation offered by the aggressor."	A
lawyer -

His Honour comments -

at once perceives the similarity of this rude

custom to the appeals of murder which, within

my recollection, formed part of the English

code. I believe the passages so aptly quoted

by his Excellency the Governor to be equally

applicable to the aborigines throughout the

colony as to those of New Zealand. The

American colonies were acquired precisely in

the same manner as this has been, by discovery	and occupancy of such lands as were not in the
actual occupation of the natives. Some of
these colonies also were receptacles for convicted offenders. If it be urged,
notwithstanding what I have stated, that this
is a conquered colony, I say and so more
certainly was Jamaica, a colony in which, as
in this, the English law prevails, and yet we
find that in the year 1738, a treaty was
concluded ..... with an equally rude and
untutored race, the Maroons of Trelawney
Town -

and he continues, dealing in some detail with the

situation in Jamaica.

Mabo 129 29/5/91

If I could then take Your Honours over to

page 745, after lengthy reference to other

colonies, there is a part there that is reproduced

that is very difficult to read, Your Honours, but

it continues -

DAWSON J: All of this, Mr Castan, was a ruling delivered

during a trial of an Aboriginal, the ruling being

that he refused to exercise jurisdiction.

MR CASTAN: It was, Your Honour, and he explains - - -

DAWSON J: This is Judge Willis, the resident judge of

Port Phillip, who was amoved eventually?

MR CASTAN:	He was.
McHUGH J:	And, indeed, was recalled within a year or two of

this judgment, was he not?

MR CASTAN:  He was. All of that is true, Your Honours, and

in fact this judgment was delivered in the course

of determining, as he ultimately determined, that

there was no jurisdiction, and that was ultimately

not held to be the position. In other words, the

reverse position was taken that there was

jurisdiction and we can only rely on this as

indicating one judicial observation where these

matters have been drawn to judicial attention, and

the fact that they have been drawn to judicial

attention and so determined in this way is relevant

when one comes then to consider the subsequent

cases which I was going to take Your Honours to

which, ultimately, His Honour finds that he should

not exercise jurisdiction, that view did not

prevail.

Nor did the view prevail that there should be

a treaty, there was no treaty, nor did the view

prevail, at least so far as one finds in subsequent

authority in Australia, that the Aboriginal people

should be treated as a domestic dependent nation in

the American sense.	None of that prevailed in
subsequent authority.	We draw attention to it

because one finds in the subsequent cases, and I

was about to take Your Honours to Attorney-General

v Brown, an assumption that none of the factual

matters that His Honour has actually drawn

attention to there were, in fact, the case and in

fact in some instances judicial notice being

expressed that the land was unoccupied and vacant which stands in dramatic contrast to the findings of His Honour there expressed.

In Attorney-General v Brown, (1847)

1 Legge 312, thus some six years later than those

observations, His Honour Mr Justice Willis, at

Mabo 130 29/5/91

page 316, questions were raised concerning the

status of what were called the wastelands. There

there had been a grant by the Crown and a
reservation and the question arose as to what the
effect the reservation had, and at page 316 in the

judgment of Chief Justice Stephen in the Supreme

Court of New South Wales, His Honours says, the

first full paragraph:

As to the Crown's title to land, in this

Colony, it was boldly asserted, and

endeavoured to be shown, that the Crown has not and never had any property in the waste

lands of the Colony - that is, any beneficial

ownership or right to grant any of them without authority of Parliament. The -

Crown -

had, it was said, the sovereignty and dominium

directum in the soil. The Sovereign was the

ultimus haeres. But he could exercise no act

of ownership against a subject. Thirdly, the

Queen was at all events, it was urged, not in

possession; not entitled to maintain trespass

or bring an information of intrusion, which

assumes that she had possession. There was an

occupancy as against foreign powers, but this

was rather a possession on the people than in

the Sovereign. The Crown could only take

land, that is to say, have title ..... by matter
of record, and there should have been,

consequently, an "office" found .....

We will dispose of these two objections

together. We omit a variety of topics -

he goes on -

We are of opinion, then, that the waste lands

of this Colony are, and ever have been, from	the time of its first settlement in 1788, in
the Crown; that they are, and ever have been,
from that date (in point of legal intendment),
without office found, in the Sovereign's possession; and that, as his or her property,
they have been and may now be effectually
granted to subjects of the Crown. It might not have been necessary for us, perhaps, to determine the last of these positions, but for
the course taken in the argument, which has
rested the case, in a great measure, on the
validity of the Grant ..... or, at least, of the
reservations therein. But, as the right or
power of the Crown to convey was itself
contested, the validity of the whole
instrument came in question. We will assume

Mabo 131 29/5/91

that the title of the Crown to the mines was

legitimately in contest - that, in other

words, it was not admitted on the record.

This, however, will not help the defendant, if

the Grant under which alone he can claim be

invalid. If the Queen's original title - that

is, to all lands in the Colony - be

established, with its legal corollary

possession, the defendant must, by some

effectual instrument or means, defeat that

title, or the Crown's claim is unanswered, and

himself without defence. We have not been

called on to say whether the Crown's title was

or not so admitted. The point was certainly suggested at the trial, but no authority was then cited on it -

and it goes on. Towards the foot of page 317 in

the paragraph commencing:

We see no reason, on fuller reflection,

for distrusting either of those opinions. The

territory of New South Wales, and eventually

the whole of the vast island of which it forms

a part, have been taken possession of by

British subjects in the name of the Sovereign.

They belong, therefore, to the British Crown.

For this we need not refer merely to history.

The fact of the settlement of New South Wales

in that manner, and that it forms a portion of

the Queen's Dominions, and is subject to and

governed by British laws, may be learned from

public colonial records, and from Acts of

Parliament. New south Wales is termed ..... His

Majesty's Colony; not the colony of the people, not even the colony of the empire.

At the top of page 318:

It was maintained that this supposed property

in the Crown was a fiction. Doubtless, in one

England to their property, does not in fact

sense, it was so. The right of the people of

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." But, in a newly discovered country,

Mabo 132 29/5/91

settled by British subjects, the occupancy of

the Crown with respect to the waste lands of
that country, is no fiction.

If we can just stop there, Your Honour. His Honour is saying "the occupancy of the Crown

with respect to wastelands of that country, is no

fiction." But, as we have just seen from what

His Honour Mr Justice Bonjon has recited, of

necessity, the occupancy of the land must be a

fiction if it be treated as occupancy in respect of

those lands which are in fact occupied by others.

The question of who is, in fact, in occupancy is

ultimately a matter of fact.

If, in one sense, those lands be the patrimony

of the nation, the Sovereign is the

representative, and the executive authority of

the nation, the "moral personality" (as Vattel

calls him ..... ) by whom the nation acts, and

in whom for such purposes its power resides.

Here is a property, depending for its support

on no feudal notions or principle.

This all assumes, we would respectfully submit, that the land is literally empty, unoccupied.

But if the feudal system of tenures be, as we take it to be, part of the universal law of

the parent state, on what shall it be said not

to be law, in New South Wales? At the moment

of its settlement the colonists brought the

common law of England with them. So much, at

all events, they introduced, as was consistent

with their then conditions. "Such, for

instance," says Blackstone, "as the general rules of inheritance." the same has indeed

been said of the statute law, but this is not

now in question. Speaking of the exceptions,

he observes that the artificial refinements

and distinctions incident to the property of a

great and commercial people, are not in force

in the colonies, as being neither necessary

nor convenient for them. No such observation,

however can apply to a rule so convenient, if
not so essential (even though founded solely

on a fiction, or a technicality) as that which

vests the property in waste lands in colonies
in the Sovereign. But Blackstone, we
apprehend, in the place cited, was considering
the applicability of the statute, not the

Common Law, and the feudal principle of which

we speak, we have no doubt, is as much in

force in the colonies as the law which

provides for the succession of the eldest son.

He then goes on:

Mabo 133 29/5/91

Enough has, perhaps, been said on this

point. We will refer, however, to precedents;

and to Acts of the Legislature ..... In the late

Act, of 5 and 6 Vic, c. 36, the waste lands of

the crown, and (in the title) the waste lands
belonging to the Crown, in the Australian
colonies, are mentioned. It will be hardly be

disputed, that by these words were meant all

the waste and unoccupied lands of the colony;

for, at any rate, there is no other proprietor

of such lands.

And he goes on to deal with other statutes. Now,

they are the passages - perhaps I should go over to

page 320 to just a couple of other short passages.

Just beyond a third of the way down the page,

His Honour says:

To show further, after what has been adduced,

that a finding by "Office" was unnecessary, to
entitle the Queen to lands in this colony, or
to maintain an information of intrusion in

respect of them, would be a waste of time.

Where the Queen is entitled, she is supposed

to be in possession. The Crown cannot be

disseised: nor can there be any occupant, as

against the Crown, (for any other purposes

than those mentioned in the 21 Jae.I, c.14) of

any possessions of the Crown. The reason

assigned is, that no subject can take from the

Crown except by record.

And goes on, dealing with this question of record:

the last sentence in that paragraph, after

discussing the concept of record, is in these

terms:

The idea that he cannot -

that is the King - the King cannot -	acquire lands in a newly settled country, by
discovery, and the settlement of his subjects
therein (facts which must be always notorious,
and speedily a matter of history), but must resort to the form of an "office" to give him
title, appears to us scarcely to admit of
serious refutation.

He then goes on.

There is no reference there, of course, to the

concept of some other occupier. The whole of this

reasoning proceeds upon the assumption that the

lands are unoccupied; that there is no other

occupier; that the Crown takes possession in the

literal sense; that the fiction of feudalism

Mabo 134 29/5/91

applies, in a sense, in a different way because the

land is vacant and unoccupied. Not a reference

obviously and the question was not raised. There
was no question of title of original inhabitants in

issue in that case. It was not raised, not argued

and manifestly not considered. None of the factual

issues set out at some length by His Honour

Mr Justice Willis in his consideration in Bonjon

are adverted to, even as factual issues regardless

of the merit of His Honour's ultimate conclusion

about jurisdiction in relation to criminal matters

in the Bonjon case.

So that Brown proceeds on the assumption of

literally vacant land, of the Crown's possession,

the Crown's title being not just an ultimate

dominion over land or the imposition of the fiction

of feudalism and then the existence of interests in

land which are then held of the Crown, or as

burdens on the Crown's ultimate title which is the

way the Canadian and American authorities

ultimately went, as we saw yesterday. Brown treats

the land as literally empty and ignores those other

facts, and that is the assumption on which it went

forward.

That becomes more apparent if we then turn to the next of the cases which is also in 1 Legge

which is Doe dem. Wilson v Terry, (1849)

1 Legge 505, and again this was a judgment of

Chief Justice Stephen in the Supreme Court of New
South Wales, in that case dealing with the question
of whether the statute of limitations which

operated known as the Nullum Tempus Acts, the

statute which provided for, in effect, a statute of

limitations as against the Crown, that one could

have adverse possession of 60 years which would

give good title against the Crown.

At page 508 the same questions are again adverted to by Chief Justice Stephen. This was a

question as to whether or not the Nullum Tempus

Acts of King James which did provide for a statute of limitations against the Crown would operate in the colony, and half-way down page 508 it is put

this way:

It is insisted that the effect of that statute is, supposing it to be in force in

these colonies, to prevent the Crown from
granting any of the waste lands, of which it
shall not have had the possession, or received

the profits, for twenty years; and to compel

it, as a preliminary step, to proceed against

the intruder or intruders by information or

other prerogative remedy. We are quite clear

that no such effect is attributed to the

Mabo 135 29/5/91

statute. Of the mischievous consequences, the

extensive and serious evils, which would

inevitably follow from such a construction, we

need say nothing. The circumstances of newly

discovered and unpeopled territories -

and we draw attention, Your Honour, to His Honour's

reference to ''unpeopled" in this passage, and this

is what lies at the heart of this finding as it did

with Brown -

claimed by and vested in the Crown, on behalf

of all its subjects, are so widely different

from those of a populated and long-settled

country, in which the lands never practically

belonged to the Crown, and (with the exception

of a few tracts and scattered properties often

acquired by the Sovereign originally by

purchase) have for centuries been owned and

cultivated by its subjects, that a moment's

reflection would present them to the mind even

of a stranger. The lands in new territories

are unoccupied and waste, until granted by the

Crown to some individual, willing to reclaim

them from a state of nature. The Crown

derived no "profits" from them and could in

the literal sense no more "possess" them than

it could the animals which roam, unmolested,

over the vast area which they embrace. In

England, as we observed in the case of the

Attorney-General v Brown, the title of the

Sovereign to land is a fiction; or, where the

Crown really owns land, the property is

enjoyed as that of a subject is, and by a

title which admits of proof by documentary and

other evidence.· Here, the title of the Crown

as universal occupant is a reality, and there

is no proof of it required or admissible. The acquisition of the country, and its settlement

by British subjects, are matters of judicial

cognizance. In such a territory it will

unavoidably happen that many spots of ground

may be occupied for a series of years without

the knowledge of the Crown or its officers.

And he goes on to say that it is therefore

undesirable to introduce the relevant legislation,

and discusses the nature of possession.

Perhaps I should read on page 509 about five

lines into the second paragraph:

Why, then, the Crown should not grant the

derelict land, leaving it to the grantee, at

his own risk and cost, to prosecute and prove

at once the Crown's claim and his own, it

would be impossible to say. But, if no ground

Mabo 136 29/5/91

or reason for the enactment supposed can be

suggested, the Court will assuredly not strain

the words to meet an imaginary evil.

And it goes on, a further sentence down:

Before the passing of that Act, the Crown could compel the defendant, in an Information

of Intrusion, in all cases, to set out his

title specially on the record. The defendant

could not rely on his possession, as he might

and does in an ejectment; but, on failure of

showing title, he was liable to immediate

eviction, for the King's title, it was held,

being in all cases easily ascertainable, and
ordinarily depending on matter of record,

sufficiently appeared by the Information

itself. This, in any case, perhaps, but
certainly in cases where the Crown had been

out of possession many years, was a serious

evil. In these Colonies, indeed, from the

circumstances already explained, a defendant

would experience no difficulty. No man here

has a title, except by grant direct from the

Crown, and, if such a grant has been issued,

the assertion and proof of it would alike be

easy. But, in England, the difficulty of

setting out and establishing a title, against

that of the Crown, through perhaps a long

series of years, would be obviously of a very

different nature. The 21 Jae. I, enacted,

therefore, in substance, that, after twenty

years' possession, the defendant need not set

out any such title, but might simply plead not

guilty, and regain possession -

and it goes on.

Your Honours, again we stress - and

Wilson v Terry makes it clearer even than in

Attorney-General v Brown - that the underlying

assumption was that the Crown's title in England

was a fiction in the sense that there was an

ultimate feudal ownership, that owners of land held

of the Crown, but that the situation in the colony

was to be dealt with upon the basis, and was being

determined upon the basis, that it was empty land.

Now, whatever might be the case in the colony

of New South Wales, and whatever view this Court

sitting now might take of those cases proceeding at

that time as the foundations - and they laid the

foundations for the later authorities which have

been dealt with in this Court, dealing with the

concepts of the operation of State Crown Lands Acts - but whatever view might be taken of the situation

in New South Wales, it is our respectful submission

that when we come to look at the operation of Crown

Mabo 137 29/5/91

Lands Acts pre-existing the annexation of the

Murray Islands in 1879, and then coming into operation, so to speak, assuming they did have an
extended operation ipso facto automatically by the
annexation of the islands to the colony of

Queensland, and the islands then being in fact occupied, as is the fact, it is our respectful

submission that the fiction must yield to the fact

in this case. That is to say, the fact as asserted

of vacant land, of the land being in fact occupied

in a literal sense because there were no owners as

in England who had been there for hundreds of years

is precisely the opposite.

In other words, putting it more simply, we

would say that in the way that His Honour has

contrasted the situation in England with the

situation in New South Wales, we would say the
situation on Murray Island is analogous to the
situation as it was in England, not the situation

as it was held to be in these decisions in New

South Wales.

If one was to make that contrast, as

His Honour does, between the two kinds of cases, and whether the Crown's title is to be dealt with

as a fact or as a feudal fiction, then we would

respectfully submit Murray Island, on the facts,

was a case like England with interest that had been

held for many generations.

BRENNAN J:  In the Murray Islands case you have neither

discovery nor settlement in the sense in which they

are used here, do you?

MR CASTAN: Certainly not discovery - well, discovery

perhaps, Your Honour. But certainly not - - -

BRENNAN J:  As I read these cases they are saying that there

was discovery with a claim to title on behalf of

the British Crown, so that in the case of Eastern

Australia it was Captain Cook's proclamation rather

than Governor Phillip's commission which at least

is the root of title confirmed by settlement or

there is no comparable situation.

MR CASTAN:  Yes, Your Honour. No equivalent discovery,

certainly in that sense, and absolutely no

settlement - no settlement to today. One could go

to Murray Island today, I do not think there is any

dispute about this. There is nobody there, except

Murray Islanders and the Church, which is there on

the two acres that were sold by local owners prior
to annexation to the London Missionary Society and

which has never been part of the reserve and never

been dealt with other than as land that was

Mabo 138 29/5/91

alienated effectively by the Murray Islanders prior

to annexation.

Leaving aside the two acres there is no one

else there, never been opened up for settlement.

As one of the early government officials, the

resident at Thursday Island, after one of his

visits, and having removed some South Sea Islanders who had been there for some time, he said in one of

his reports, which we will take Your Honours to and

which we have referred to in our submission, the

Murray Islanders should have Murray Island to

themselves. They have, in fact, in terms of what

is actually the situation there.

So we say, in terms of applying these Crown

Lands Act concepts, one cannot proceed on the basis

of the kind of fiction that lies behind.

Can I now take Your Honours to a much older case, because it seems to bear directly upon the

kind of colonization situation analogous to the

present than that which seems to have been

proceeded upon as the basis in New South Wales.	It
is the case of Tanistry in the 17th century.	It is
set out in volume 4 of our submissions as an

annexure at page 692. It starts much earlier. It

starts at page 675 in our submissions, but the case

is lengthy and there is a long, lengthy argument,

debating whether or not a particular custom

operating in Ireland was to be recognised or not -

much debate about the rules as to recognition of

custom - and ultimately it was held that the

particular custom did not operate.

But in the course of the case, in dealing with

one of the objections, at page 692 of the book,

volume 4 of our submissions, there appears a

discussion of the underlying concepts, the
underlying basis, upon which English law applied to

Ireland, as one of the first colonies. It was put

at the foot of the page that is marked in the

report 110 on the left-hand side, as one looks at

the page:

Lastly, where it was objected by one of the council for the of this land by virtue of the first conquest of Ireland, against Donogh Mac Teige O	plaintiff, that queen
Callaghan the feoffor, who cannot derive any
title to this land from the crown, and therefore his feoffment by which the defendant
claimed, was void, being made by an intruder
upon the possession of the queen: it was
resolved against this objection, that queen Elizabeth shall not be said to be in actual

Mabo 139 29/5/91

possession of this land, by virtue of the

first conquest, if it doth not appear by some

record that the first conqueror had seized

this land at the time of the conquest, and

appropriated it particularly to himself as
parcel of his proper demesne.

For the kings of England have always claimed and had within their dominions, a

royal monarchy and not a despotick monarchy or
tyranny; and under a royal monarchy the

subjects are freemen, and have a property in

their goods, and a freehold and inheritance in

their lands; but under a despotick monarchy

or tyranny, they are all as villains or

slaves, and proprietors of nothing but at the

will of their Grand Seignior or tyrant, as in

Turkey and Muscovy. And therefore when such a

royal monarch, who will govern his subjects by

a just and positive law, hath made a new

conquest of a realm, although in fact he hath
the lordship paramount of all the lands within

such realm, so that these are all held of him,

mediate vel immediate -

and that picks up exactly the phrase that was used

by the Chief Justice Stephen in the case I just

referred to in Australia -

and he hath also the possession of all the

lands which he willeth actually to seise and

retain in his own hands for his profit or
pleasure, and may also by his grants
distribute such. portions as he pleaseth to his

servants and warriors, or to such colonies -

colonies is here used in the literal old sense, as

we speak of a colony of ants or bees, actual groups

of persons who go to settle -

colonies as he will plant immediately upon the

conquest, (as the ancient Romans upon their

conquests used to appropriate the seventh part

of the territory conquered, for the plantation
of their colonies, ·and the Vandals in Italy

took the third part;) yet Sir James Ley

chief-justice 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

Mabo 140 29/5/91

it, and hold their lands according to the

rules of it, and not otherwise.	And upon this
reason -

he goes on to deal with William the conqueror
granted a particular case, and if I go to the foot

of the page, he deals with the Norman conquest -

For in truth the Norman conqueror (although he

made a more absolute and entire conquest of

England than Hen. 2. made of Ireland) yet he

did not seise all, nor had the actual
possession of all the lands within the kingdom of England vested in him by the conquest; but the contrary appears by the book of Domesday,

which is an exact description of all the

kingdom, made in the time of that king.	For
by that record it is manifest, that the

conqueror had certain lands in demesne, viz.

the lands which were in the hands of Edward

the confessor, and are there entitled Terrae

Edwardi regis, and other lands which he

himself seised upon the conquest, and are

entitled terrae regis, without more, as it is

noted in 49 Ed. 3. and these lands are now
called the ancient demesnes of the king or of
the crown of England, but in this book the
possessions of other subjects are expressed
and put in certain as well as the possessions
of the king, and these lands which are under

other titles as terrae Episcopi de Excester,

and all other lands which were in other hands,
and named in that book, are frank fee.

And goes on to criticize the view that William the conqueror declared all the country was confiscated,

that is to say, in Ireland the position was that

those subjects who gave allegiance who became

subjects, their interests in land were not treated

as seized in the literal sense, but what the king

took, what the Crown took was the ultimate

dominium, what we have referred to perhaps as

radical title, what is called the paramount

lordship. There are various expressions used for

this concept when you apply the concepts of the

feudal system to the operation of land law. So

that ultimately it is true that those who held

land, perhaps allodially, perhaps as absolute

owners prior to the introduction of the feudal

system, prior to the introduction of the Crown,

from thenceforth do not hold their lands allodially

any more.

A change undoubtedly occurs. The Crown takes

an ultimate dominium over the lands and land is

held of the Crown, and we put our submissions upon

that basis. We do not seek to argue that the land

Mabo 141 29/5/91

continues to be held allodially, we concede that

the Crown takes ultimate radical title, or ultimate

dominium over the lands, and the fiction that does

apply, we would concede, is that the land is then

held of the Crown but what we do deny is that

nothing is held of the Crown or that the Crown is

to be treated as in de facto occupation in

possession when in fact it is not. And we call

those basic principles in aid and the way in which
they were avoided or said not to apply in relation
to the colony of New South Wales was, of course,

upon the basis that there were no such equivalent

persons as Donogh and the others who brought the

Case of Tanistry, but there was no-one there and

that is quite apparent from those express
references to unoccupied land in the early

Australian cases.

Now that is the basis upon which we

respectfully submit Your Honours should approach

the question of the application of Crown Lands Acts

and we respectfully submit that the numerous

references that appear in the cases in this Court

which have dealt with the question of the Crown's

title to all land, the origins of the disposition

of wastelands, must be read in the light of these
fundamental underlying doctrines, and there are

numerous references, of course; the most recent of them is, I think, the description which appears in

the Mabo case (No 1) of 1988, in which Your Honour

Mr Justice Dawson adverted to the same principle and referred to a number of those well-established authorities, ranging from Williams case in the

1920s through to the Dam's case. What seems to be

the latest reference in this Court is in - it is

Mabo v The State of Queensland, (1988) 166 CLR 186, and at page 236 Your Honour, in dealing with a particular argument that present purposes does not

arise immediately, Your Honour recited briefly some

of the history:

The steps by which the New South Wales

legislature acquired the capacity to deal with

waste lands and the revenue arising from their

sale are traced by Isaacs J. in Williams v

Attorney-General -

that was 1913, and -

see also Randwick Corporation v Rutledge -

that is the judgment of His Honour

Mr Justice Windeyer which deals with the matter at great length -

New South Wales v The Commonwealth -

Mabo 142 29/5/91

and that was the Seas and Submerged Lands Act case,

and -

the Tasmanian Dam Case -

in which the judgment that dealt with this matter

was the judgment of Your Honour Mr Justice Brennan.

There can be no doubt, and it is not contested

in this case, that colonial lands which

remained unalienated were owned by the British

Crown.

Now, there is no doubt about that. The real

question is what does the word "owned" mean in this

context?

Whether the ownership sprang from a

prerogative right, proprietory in nature, or

from the feudal principle which was extended

to the colonies upon settlement does not much

matter, as Stephen J. pointed out in New South

Wales v The Commonwealth. The result is the

same: Australian land vested in the Imperial

Crown.

And there was then, briefly, a recite of the

history that:

The Imperial authorities were reluctant to relinquish control over the disposal of waste

lands and saw the revenue arising from that

source as being a means of realizing the

policy of the home government ..... in 1842

legislation appropriated the gross proceeds of

the sale ..... to the public service of each

colony, provided one half was applied to

assist emigration ..... not until 1855 that this

policy was reversed and all control ..... was

relinquished to the relevant colonial

government.

There was a repeal by the Australian Waste Lands

Act 1855, which came into force in New South Wales,

and goes on. And those principles and that history

of the pre-1855 situation with the Imperial Crown

reserving to itself the right to deal with what

were called wastelands and then the subsequent

vesting in the colonial legislatures as being much
recited in this Court, it all assumes, in all those

decisions of this Court, it all assumes that the

concept of ownership, of vesting of the land in the

Crown has an agreed meaning, and the meaning

appears to be, the meaning that has derived from

the early cases, The Attorney-General v Brown, in

particular, seems to be treated as its principal

source - it is to be treated as an actual

Mabo 143 29/5/91

possession, as though the Crown had occupied in the

same way that it occupied Government House, or

occupied an army base, it occupied the whole of New

South Wales at the moment of discovery and

settlement and the taking of sovereignty.

I should remind that I passed over Cooper v

Stuart which also deals with the matter and, upon the same basis, Cooper v Stuart is the other major case which deals with these questions. It is

(1889) 14 AC 286. Really, the case turned on

whether or not perpetuities was to be treated as

applicable in the colony in 1823 to Crown grants of

land. It did not turn on any question of pre-

existing interest in land prior to annexation or
acquisition of sovereignty or anything of the kind.

But, in dealing with the question of the rule against perpetuities, and whether that particular

aspect of English law applied, the argument had

been well, does the rule against perpetuities apply

to a Crown grant made in Australia.	At page 291,
the way it is put:

The extent to which English law is

introduced into a British Colony, and the

manner of its introduction, must necessarily

vary according to circumstances. There is a

great difference between the case of a Colony

acquired by conquest or cession, in which
there is an established system of law, and

that of a Colony which consisted of a tract of

territory practically unoccupied, without

settled inhabitants or settled law, at the

time when it was peacefully annexed to the

British dominions. The Colony of New South

Wales belongs to the latter class.

And goes on then to say:

Parliament ..... by statute declare what parts	the Crown may by ordinance, and the Imperial
of the common and statute law of England shall
have effect within its limits.

Then, towards the foot of that paragraph:

The often-quoted observations of Sir William

Blackstone (1 Comm. 107) appear to their

Lordships to have a direct bearing upon the

present case. He says:-

"It hath been held that, if an

uninhabited country be discovered and planted
by English subjects, all the English laws then
in being, which are the birthright of every

English subject, are immediately there in

Mabo 144 29/5/91

force. But this must be understood

with ..... restrictions.

They -

carry with them only so much of the English

law as is applicable to the condition of an

infant Colony; such, for instance, as the

general rules of inheritance and protection

from person injuries. The artificial

requirements and distinctions incident to the

property of a great and commercial people -

and so on -

are not in force.

And so certain things are accepted and certain

things are not accepted.	Then half-way down
page 292:

Their Lordships have not been referred to

any Act or Ordinance declaring that the laws
of England, or any portion of them are

applicable to New South Wales.

And then say:

There was no land law or tenure existing in

the Colony at the time of its annexation to

the Crown -

that is stated as a statement of fact -

and, in that condition of matters, the

conclusion appears to their Lordships to be

inevitable that, as soon as colonial land

became the subject of settlement and commerce,

all transactions in relation to it were

governed by English law, in so far as that law

could be justly and conveniently applied to

them.

Now, there are two propositions involved in

Cooper v Stuart that we would respectfully submit

proceed upon a foundation that is to be either

qualified in its application by this Court or,

alternatively, should ultimately be rejected by

this Court. That is, that if it be an essential

component to the decision in Cooper v Stuart that,

as expressed on page 291, New South Wales was to be

treated as:

a Colony which consisted of a tract of

territory practically unoccupied, without

settled inhabitants or settled law -

Mabo 145 29/5/91

whatever that may mean, and if that be a critical

component of the decision then, in our respectful

submission, it proceeded on what can be seen from

the Bonjon decision and from other matters, as an

erroneous foundation.

We would rely, and respectfully submit that

the Judicial Committee has gone beyond what

Sir William Blackstone was saying in his

commentaries. He was, of course, referring to

uninhabited country, and that is exactly what he

says. And so the assumption that lies behind

Cooper v Stuart is that the country was uninhabited, that there were no persons there.

Now, again, the same assumption is at the

foundation of the doctrines. It does not, of

course, follow - and we should put this so as to

make it clear - it does not follow that in any

sense under the doctrines that seem to apply in

relation to colonies, that because there are

persons in a particular place that is acquired, in respect of which sovereignty is acquired, that the

colony cannot be settled.

In other words, there is no dichotomy between

settled colonies being only those which are totally uninhabited and inhabited colonies necessarily then being colonies acquired by cession, treaty or

conquest. That, of course, misstates the doctrine.
Colonies may be settled, and may be settled

although there are inhabitants there. We saw, in

looking at Daera Guba, that was exactly what was

happening in Papua New Guinea and it was
acknowledged to be so. It was to be settled, but
there were people there, and then a method was

worked out of dealing with them.

There are numerous examples of such colonies,

and we will not trouble Your Honours with all of

them, but we would commend to Your Honour a very	recently published book by Professor McNeil of
Toronto, who has published through the Oxford Press
the book, "Common Law Aboriginal Title", and Professor McNeil's work is particularly useful
because he ranges over so many different cases. He
examines the very interesting and difficult case of
Pitcairn Island, which was settled prior to
annexation by the Crown by mutineers who were defying the Crown, who nevertheless settled there, then divided up the land, and it was vacant, literally uninhabited. And the difficult question then of what kind of tenure is to be attributed to those people who lived there for some, I have forgotten, I think 30 or so years, but some years in any event, before ultimately it became a colony
of the Crown. What then does the Crown do with

Mabo 146 29/5/91

that tenure pre-existing but not being a

longstanding native tenure? And interesting

questions arise in that kind of case.

And he deals with Barbados, which was a

literally empty colony, and gives examples of

others which were occupied by peoples but were in

fact settled. And there is a vast range, obviously

enough, when one looks at the variance of the way

in which colonies - the different categories of
colonies. There are also a vast range of ways in
which they were acquired, as with the islands that

we are dealing with here.

It is quite apparent that the somewhat

simplistic distinction of acquisition by discovery

and settlement acquisition by treaty or cession and

acquisition by conquest do not deal with an

acquisition by, as one might call it, declaration

or statutory instrument, which is what in fact

occurred here with letters patent of the Crown in

England, letters patent emanating from the United

Kingdom, authorizing legislation in 1879 by the

colonial parliament which passed the appropriate

Act and then authorizing a proclamation which was

duly made by the colonial governor, by which it was

then, by the process occurring in London and

Brisbane, these territories became annexed to the

British Crown.

Then in 1895 a remedial Act passed because

there had been some doubt cast on whether or not
the boundaries of a colony could be altered without

Imperial legislation and, of course, the starting point for the process in 1879 was merely letters patent of the Queen and not Imperial legislation. But these are all instruments. These are all

legislative acts taking place by the British Crown,

perhaps for various reasons. The Germans occupied

Northern New Guinea; there were other colonial powers around. Queensland authorities, the

colonial authorities were keen to include these

islands. Queensland authorities had tried to annex

Papua as well, but ultimately the British Crown

rejected that and set up Papua as an independent

British colony.

But, in our respectful submission, what is

perhaps colloquially spoken of is this distinction

between discovery and settlement, cession or treaty

or conquest is simply inadequate to deal with many
of the cases, and certainly inadequate to deal with

the present case which, in fact, was an acquisition

by declaration and force of statute, and perhaps

combined with conduct on the ground which we will

take Your Honours to shortly. That is to say

ultimately, of course, then officers of Queensland

Mabo 147 29/5/91

went up there and I will take Your Honours to the

recorded history in short compass shortly.

In analysing the question of the operation of

the Crown lands legislation - and it is not

necessary to go to the detail of it. It is set out
in our written submissions - but Your Honours will

appreciate that in 1879 there had already been

passed Crown Lands Alienation Acts and Crown Lands

Acts of what we might term "the classic kind" that were passed in all the States providing for the

disposition by the Crown of what were called Crown

lands, for reservation for public purposes of lands

which then could not be disposed of without those

reservations being repealed. And in the present

case there was a reservation of these islands.

They were reserved pursuant to the Crown lands

legislation in 1882, though nobody has been able to

find the relevant instruments in relation to the

1882 reservation, but His Honour has made the

finding that appears clearly references to the fact

that there was a reserving of the lands in 1882.

The process was repeated without adverting to the

earlier 1882 reservation in 1912, and the
instruments relating to the 1912 reserving of the

land as a reserve for the use of Aboriginal

inhabitants under the relevant provisions of the

Crown lands legislation appears - the instruments

there are in the material and have been, I think,
in our statutory material and in our learned

friends' material and have been the subject of

findings by His Honour Mr Justice Moynihan.

Your Honours, in considering those matters, we

would draw attention to just one case which points

up the significance of the pre-existing occupation

or possession and the way in which it should

properly be treated as we would submit. That is

the case of Minister for the Army v Dalziel,

(1944) 68 CLR 261. It is a war-time case. It is one of the many

war-time cases in which the military authorities

took possession of private lands. It is

interesting because what occurred in this case is

that a leaseholder, who was running a business on

his premises, had his premises requisitioned but

they were requisitioned in a way which did not

seize the leasehold interest. In other words, what

the army did was say, "We need these premises", and they took possession of them, lawfully, pursuant to appropriate regulations, but the question that then

was raised was whether, not having acquired the

leasehold interest at all, merely having taken
possession of the premises, whether there was an

entitlement to just terms under section Sl(xxxi).

Mabo 148 29/5/91

I might say, the decision, of course, was that just terms were required for the taking of the

position, notwithstanding that he remained the

leaseholder and there had been no acquisition of

his leasehold interest.

At page 285 the matter is dealt with fairly

forcefully by His Honour Mr Justice Rich who, after

dealing with the concept of the way in which the
Constitution is to be approached, at the top of

page 285, after pointing out that it is - a Constitution containing a provision of a

fundamental character designed to protect

citizens from being deprived of their property

by the Sovereign State except upon just terms.

The meaning of property in such a connection

must be determined upon general principles of

jurisprudence, not by the artificial

refinements of any particular legal system or

by reference to Sheppard's Touchstone. The

language used is perfectly general. It says

the acquisition of property. It is not

restricted to acquisition by particular

methods or of particular types of interests,
or to particular types of property. It
extends to any acquisition of any interest in
property. It authorizes such acquisition, but

it expressly imposes two conditions on every

such acquisition. It must be upon just terms,

and it must be for a purpose in respect of

which the Parliament has power to make laws.

In the case now before us, the Minister has,

in adversum, assumed possession of land of

which Dalziel was weekly tenant. With all

respect to the argument which has been

addressed to us to the contrary, I am quite

unable to understand how this can be said not

to be an acquisition of property from Dalziel

within the meaning of the placitum. Property,

in relation to land, is a bundle of rights

exercisable with respect to the land. The

tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placitum to

suggest that the legislature was intended to

be at liberty to free itself from the

restrictive provisions of the placitum by

taking care to seize something short of the

whole bundle owned by the person whom it was

expropriating. Possession vaut titre in more

senses than one. Not only is a right to

possession a right of property, but where the

object of proprietary rights is a tangible

thing it is the most characteristic and

essential of those rights. "So feeble and

precarious was property without possession, or

Mabo 149 29/5/91

rather without possessory remedies, in the
eyes of medieval lawyers, that Possession

largely usurped not only the substance but the

name of Property; and when distinction became

necessary in modern times, the clumsy term
'special property' was employed to denote the
rights of a possessor not being owner'
(Pollock & Wright). Possession confers more
than a personal right to be protected against
wrongdoers: it confers a qualified right to

possess, a right in the nature of property

which is valid against everyone who cannot

show a prior and better right." "Possession

is a root of title". "The rule that

Possession is a root of Title is not only an
actual but a necessary part of our system".

"The standing proof that English law regards,

and has always regarded, Possession as a

substantive root of title, is the standing

usage of English lawyers and landowners" A

vendor of land cannot require a purchaser to
accept his title unless he can give vacant

possession at the time for completion; and a

lessee incurs no liability ..... if the lessor

cannot give him vacant possession - see also,
as to the interest and title of a person in

possession of land, Perry v Clisshold.

It would, in my opinion, be wholly

inconsistent with the language of the placitum

to hold that, whilst preventing the

legislature from authorizing the acquisition

of a citizen's full title except upon just
terms, it leaves it open to the legislature to
seize possession and enjoy the full fruits of

possession, indefinitely, on any terms it

chooses, or upon no terms at all. In the case

now before us, the Minister has seized and

taken away from Dalziel everything that made

his weekly tenancy worth having, and has left

him with the empty husk of tenancy.

And he goes on to quote from The Merchant of

Venice. Now, Your Honours, Perry v Clissold, which

His Honour refers to, is also a striking case. I

will not take Your Honours to it but it is a case

where a trespasser was in possession of land - it

is a Privy Council case, but came up also from New

South Wales - and the trespasser was in possession

of land there, and was held to be entitled to

compensation when the land was resumed by the

Crown. So that the tortious title, if one might

call it that, was good against the Crown, the Crown

acting under a resumption statute in Perry v

Clissold, not being able to bring by way of defence - to the action for the compensation or resumption - not being able to call in aid the

Mabo 150 29/5/91

third party's original good title because the

possessory title, at which the trespasser had

founded his claim, was held to be good.

Now, we rely on that in two ways,

Your Honours, in this case - this notion of

possession. We say, in relation to the operation

of the Crown lands legislation that one cannot

ignore the actual occupation that pre-existed the

change of sovereignty, and we say that that

amounted to possession in the sense that if they

were the long term occupiers then at the moment of

annexation, at the moment Queensland law, which

encompasses the common law and English law applied,

these people were to be treated as in possession in

the English law sense. Their de facto occupation

was a reality.

We say it cannot be the case that immediately

in 1879, when the change of sovereignty occurred,

they all became trespassers. We say that is an

unthinkable proposition. It was referred to as a
possibility in the judgment of His Honour

Mr Justice Hall, which we read yesterday in Calder,

and we would respectfully submit it is not a

proposition that should be seriously entertained,

and that that cannot be the way in which the law

applies to a newly acquired territory, and thus, we

would respectfully submit, possession then founds their title, and we would also submit separately,

that independently of the traditional title

argument or notion as developed in cases such as

Calder, that we are able to establish a title

founded on possession based on the de facto

possession that has, in fact, continued over the
intervening period and that a possessory title is

made out on those grounds, founded on the same

principles, and that one does presume that there

has been a grant.

The presumption of grant is expressly referred to - again I will not take Your Honours to the

case, but the operation of a presumption of a grant
in the absence of a grant, or in the case of a

defective grant, is expressly referred to in the

case of Doe dem. Devine v Wilson, (1855)

10 Moo 501. It is also in 14 ER 581, and at 589

to 591 in the Privy Council, on appeal, again from

the Supreme Court of New South Wales, there is

express reference to presuming a grant in order to

make good a title, when possession can be

established. That, of course, not in the context

again, of original inhabitants, but in the context
of a person who has been in possession, but has

either no grant or a defective grant.

Mabo 151 29/5/91

BRENNAN J: That can scarcely apply in the case of

indigenous people at the time of annexation, can

it?

MR CASTAN:  No, it would not. I should make it clear,

Your Honour.	I have perhaps not made it
sufficiently clear.	We rely on the possession

concept on two separate bases. Firstly, as what we

might call a qualification on the operation of what

might have been thought to be the traditional view

of the operation of the Crown lands legislation, or

by way of rebuttal, so to speak, to what we

understand our friends to be putting about the

operation of the Crown lands legislation.

We rely on possession separately as in itself

founding a title based on the possession looked at,

so to speak, as of today, and looked at as having

been in long possession. And then in that context

we say, looking at them as persons who have been in

long possession, one is entitled to presume a lost

grant, they not being able to point to a Crown

grant. If it be the correct approach to take, then

we would respectfully submit they are entitled to

found their title on possession in accordance with

the doctrines of possessory title as classically

laid out.

This is developed in a fair degree of detail

in our written submissions, Your Honours, and I

need not trouble Your Honours in great detail other

than to outline the nature of the way in which it

is put.

BRENNAN J:  Can I just ask you one further question about

that, and that is that in order to support that

argument would you not have to show possession

adverse to the Crown?

MR CASTAN:  In our respectful submission, we would not. We

would show that the possession is being a

continuous possession and since we can show it is
continuous since prior to the Crown having acquired
sovereignty or having acquired whatever other kind

of interest the Crown acquired, we would say we do

not have to show it as adverse to the Crown. The

Crown's possession, if anything, is adverse - if the Crown have possession at all - is adverse to

our possession. We say we have had ongoing

occupancy, which has been uninterrupted, looked at

as a whole, and we say the Crown has not been in

fact in possession and could not show possession ih

any sense, that our interest has simply been a

continuous possession, and we would respectfully

submit it does not have to be adverse to the Crown.

Mabo 152 29/5/91

We do not seek to found it on a doctrine of

adverse possession founded on adverse possession

against the Crown, because one runs in to questions

of whether there is a statutory limitation and

those issues. But our position is, we do not have

to show it as adverse to the Crown, we show it as

that title which one derives from long possession

which then is presumed to be founded on a grant.

It only would have to be shown as adverse to the

Crown if it were said that the Crown itself had

some other title or foundation.

BRENNAN J:  On this limb of your argument would the argument

against you not be that your possession is to be

accounted for by the reservations?

MR CASTAN: Well, that might be the basis on which it is

put. We would respectfully submit that when one

looks at the history one sees that there has been a

continuous possession which goes beyond the
reservation. It is true as a fact that we have
continued in possession and it is true as a fact

that there has been a continuing reservation, and

we would have to confront that. We would

respectfully submit that the correct view is that

nevertheless the possessory title is founded on the

fact of possession whether or not there be the

reservation, the reserve.

Can I then take Your Honours to the third

basis upon which the interests are contended for,

and that is on the basis of what we might term

local legal custom.

Your Honours, again we are founding our claims

here not necessarily upon the establishing of a

traditional title by showing the links back to

predecessors in title prior to annexation. We

found this on simply establishing custom. There is

a useful example of a local native population

founding a claim solely based on custom as strictly

interpreted in accordance with English law in the

case of Hanasiki v Syme - that is extracted also in

volume 4 of our submissions at page 695 - an

unreported case; it is His Honour

Mr Justice Charles in 1951. It was in the Solomon

raised which were to do with ownership by

Islands and there was no statutory basis upon which were

native custom of a reef off a particular island.

Perhaps I need not go to it in any detail

other than to say that it is a case where

His Honour, in considering the issues, and the way in which the matter was argued before him was upon

the basis that these persons were owners in

accordance with customary rights. His Honour took

Mabo 153 29/5/91

the view that the only way in which to determine
those was in accordance with what might be called

the classical English rules of establishing custom.

At page 700, at the foot of the page, His Honour

sets out his understanding of what the requirements

are. The last sentence at page 700:

The requirements for the recognition of a

local custom under English law are:-

and he then sets them out and they seem to be

reasonably well established. We have set them out

in our written submissions and I will not go into

them in any detail, Your Honours. It is our

contention that that is a correct set of

requirements, that all one looks at is the current

situation; one looks at particular people at a

particular point of time and sees whether or not

they meet those requirements.

Now, we have made detailed submissions in our

written material on each of those requirements and

it is probably not productive to spend a great deal

of time here going through all of those. The

interesting one, of course, is the requirement in

English law that it must have existed from time
immemorial which was classically said to be before

1189. Then practices were developed in order to

establish what was the equivalent of before 1189

and that became, in English law, beyond living

memory.

Interestingly, His Honour

Mr Justice Blackburn, looking at this question in

the Millirrpum case, took the view that the correct

way to approach it was to treat 1788 - the date of

first settlement in the colony of New South Wales -

as the relevant date for the purpose in his case.

We would respectfully submit that if it be either

1879 or beyond living memory as being the

criterion, they are satisfied in any event in a

case such as this.

But, of course, this concept of the local

custom has very ancient origins and I would seek to

take Your Honours to one particular passage in

Blackstone which illustrates the way in which these customs operate in relation to land law in England. At page 846 of our submissions, in volume 5, we

have set out some extracts from Blackstone by way

of illustration of some of the customs that

operated and were accepted as operating in relation

to land in English law.

One of them that we have referred to at page

846 is Borough-English; another one at 847 is

gavelkind, and they are spoken of as. local customs.

Mabo 154 29/5/91

About seven lines down from the top of the page,

the passage reads:

The free socage therefore, in which these

tenements are held, seems to be plainly a

remnant of Saxon liberty; which may also

account for the great variety of customs,

affecting these tenements so held in ancient

burgage: the principal and most remarkable of

which is that called Borough-English, so named

in contradistinction as it were to the Norman

customs, and which is taken notice of by

Glanvil, and by Littleton; viz. that the

youngest son, and not the eldest, succeeds to

the.burgage tenement on the death of his

father. For which Littleton gives this

reason; because the youngest son, by reason

of his tender age, is not so capable as the
rest of his brethren to help himself. Other

authors have indeed given a much stranger

reason for this custom -

and I will not continue and read the next three

lines, but Your Honours will see it is a most

interesting and unusual reason given why the

youngest son should take and not the eldest son.

If I can take Your Honours over to page 847,

half-way down there is a reference to gavelkind,

which is local to Kent:

The nature of the tenure in gavelkind

affords us a still stronger argument. It is

universally known what struggles the

Kentishmen made to preserve their ancient

liberties; and with how much success those

struggles were attended. And as it is

principally here that we meet with the custom

of gavelkind, (though it was and is to be

found in some other parts of the kingdom) we

may fairly conclude that this was a part of

those liberties; agreeably to Mr Selden's

opinion, that gavelkind before the Norman

conquest was the general custom of the realm.

The distinguishing properties of this tenure

are various:  some of the principal are these;

1.  The tenant is of age sufficient to aliene

his estate by feoffment at the age of fifteen.

2.  The estate does not escheat in case of an

attainder and execution for felony; their

maxim being, "the father to the bough, the son

to the plough" -

the bough, presumably, meaning the gallows -

Mabo 155 29/5/91

3. In most places he had a power of devising

lands by will before the statute for that

purpose was made.

So, interestingly, gavelkind was a local custom in

Kent by which lands could be devised by will at a

time when in the general common law of England land

was not devised by will.

The lands descend, not to the eldest,

youngest, or any one son only, but to all the sons together; which was indeed anciently the

most usual course ..... though in particular

places particular customs prevailed.

And so it goes on. It is not necessary to trouble

Your Honours with more, but they are useful and

interesting examples. We have referred to a number of cases in our materials. Another interesting one

is Mercer v Denne, (1904) 2 Ch 534, which was the

custom of people in a particular local village or

district in England having a right of occupancy of

land to spread fishing nets, and some dispute

arising as to the extent of the custom.

In this context, in just briefly encompassing

the issue of an interest founded on what we might

call local legal custom, the custom is, of course,

the custom of the community as a whole. Then

within that community there will be individuals who

have a particular entitlement, as one might find

with a right to succession pursuant to a custom

that is the custom of the community as a whole. So

for this purpose, in this context, one looks at the

overall operation of·the custom or the practices

within the entire local community.

In dealing with what is sometimes termed a

native custom and the question of how certain it

must be, has been raised by our learned friends in

their submission, because they have submitted that

one of the criteria is certainty and, of course,

that would require a level of certainty, as they

would contend, that would mean that the kind of
customs that operate on Murray Island could never
be satisfied because land may be passed, as

His Honour has found, and as we would contend land

goes normally patrilinealy but that is not required

and sons or daughters may be disinherited. In

other words, there is quite a degree of power in

the owner of lands under the Murray Island system

to dispose of to whom they wish within the

community.

In dealing with that question of changes of

custom or variance, we would respectfully refer

Mabo 156 29/5/91

Eleko v Government of
Your Honours to the case of just below half-way down the page, Their Honours,

the Judicial Committee puts it this way:

An interesting question arose at the hearing

as to the modification of an original custom

to kill into a milder custom to banish.

Their Lordships entertain no doubt that the

more barbarous customs of earlier day may

under the influences of civilization become

milder without losing their essential

character of custom. It would, however,

appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so as in that form

to regulate the relations of the native

community inter se. In other words, the Court

cannot itself transform a barbarous custom

into a milder one. If it still stands in its

barbarous character it must be rejected as

repugnant to "natural justice, equity and good

conscience." It is the assent of the native

community that gives a custom its validity,

and, therefore, barbarous or mild, it must be

shown to be recognized by the native community

whose conduct it is supposed to regulate.

And that indicates, we would respectfully submit,

an appropriate approach to take.

In relation to custom, we would also draw

attention to the fact that, under the statutory

regime which has been in operation under Queensland

law in relation to the Murray Islands since 1939 at

least, there has been a specific direction that

local custom and usage be applied and one may argue

about the precise wording of the legislation but I will give Your Honours the reference. In the 1939

legislation it appears as section 18 and that is

extracted at page 299 of our volume 9 being some of

our extracts of statutes. In the 1965 Torres

Strait Islanders Act, section 46, that is at

page 357 of our volume 9 being statues. In the

1971 Act, at section 36 and section 42, appearing

at page 395 and 397 of volume 9. In the 1984 Act it appears as sections 23 and 41 and I would seek

to take Your Honours to the latest version.

The 1984 Act was amended in 1990 and I

understand Your Honours have this legislation only

in the red volumes tendered by our friends.	I
think it is item No 7 in the red volumes.	It may

be useful to draw Your Honours' attention to the

final form in which this directive as to custom

appears.

Mabo 157 29/5/91

Your Honours will see, it appears - yes, it is

the print that is in the form 1984-1990. At

section 23, the functions of island councils are

set out, and it is expressed that:

An Island Council has and may discharge the

functions of local government of the area for

which it is established and is hereby charged

with the good rule and government thereof in

accordance with the customs and practices of

the Islanders concerned and for that purpose

may make by-laws and enforce the observance of

all by-laws lawfully made by it.

And section 23 continues. Referring Your Honours

to section 23(3)(b), there are a number of matters

there which include:

the usage and occupation of land, building,

the usage and occupation of buildings -

and our learned friends have pointed out in their

submissions it does not, in terms, of course, refer

to ownership of land.

If we then go to section 41, on page 18 of the

print, there is there set out the jurisdiction of

island courts, and it is expressed:

Subject to this Act, an Island Court has and

may exercise the jurisdiction, powers and

authorities conferred on it - by this Act; or
by the by-laws of the Island Council

established for the area for which the court

is constituted. An Island Court has

jurisdiction to hear and determine - matters

of complaint -

and then (b) -

disputes concerning any matter that - is a

matter accepted by the community resident in	its area as a matter rightly governed by the
usages and customs of that community -

and then it goes on, after setting out (b)(ii) and

(c) -

and shall exercise that jurisdiction referred

to in provision (a) in accordance with the

appropriate by-law having regard to the usages

and customs of the community within its area

and that jurisdiction referred to in provision

(b) in accordance with the usages and customs

of the community within its area.

Mabo 158 29/5/91

So there is an express direction to the island

court to apply custom. If we then pick up the

reference to section 41(1), which provides for the

jurisdiction, it includes a jurisdiction conferred

by the by-laws of the island council. I will give

Your Honours the reference. There is no need to go

to it now, but the by-laws - there have been by-
laws of various kinds, but a version in 1980 is

extracted at page 381 of volume 2 of our

submissions. By-laws 38 and 40 were expressly

adopted by the island council referring to customs

in relation to succession to land pursuant to

equivalent provisions at that time. So that the

jurisdiction is there created and the statutory

direction includes explicit reference to custom and

usage.

Could I complete some comments now concerning

the question of extinguishment? Yesterday I took

Your Honours to the way in which the basic question

of extinguishment was approached in Calder.

Perhaps all that is necessary to do at this stage

is to say that there is a chapter on extinguishment

in our written submissions which picks up that

approach reflected in the judgment of His Honour

Mr Justice Hall.

We draw attention to the fact that there are a

number of other cases - and they are all set out

there, and perhaps it is not necessary to give them

to Your Honours now, but they are all set out in

chapter 7 of our submissions - dealing with
instances where courts in America and Canada in
particular have held that a general scheme of land

regulation in the sense of the equivalent of Crown

Lands Act does not amount to an extinguishment, but

that explicit grants or explicitly dealing with the

land in a manner inconsistent with the continued

occupation or possession or ownership of native
inhabitants will amount to an extinguishment.

There are a number of instances of that.

There are also cases which perhaps more

explicitly deal with it in which the phrases	are
constantly used that the question is whether	or not
the land has been opened up for settlement.	And

included in that is the very recent case of

Delga..muukw, a recent Canadian case, the judgment in

which was a judgment of His Honour Mr Justice

McEachern in the Supreme Court of British Columbia

in, I think, March this year - a long and learned

judgment but one in which His Honour came to a

conclusion with which we would respectfully contend is not in accordance with the better view of Calder

in that His Honour ultimately held that applying

the test of clear and plain there had been

extinguishment by virtue of the mere existence of a

Mabo 159 29/5/91

series of enactments which as His Honour said

clearly evinced an intention to open up the

relevant lands for settlement.

Now, we would respectfully submit that

His Honour took a view that was not the better

view, that we would respectfully submit he confused

the question of a power to extinguish with the

question of the exercise of that power; that Crown

Lands Acts confer a power to make grants which are

inconsistent with the continuation of the claimed

interests, but until the right is exercised those

interests continue, as we would submit it.

DAWSON J: 

Mr Castan, can I be quite clear that you say the

native title for which you contend is a defeasible
title, defeasible by an unequivocal act on the part
of the Crown?

MR CASTAN: Pursuant to appropriate - - -

DAWSON J: Well, pursuant to legislation.

MR CASTAN:  - - - legislation which is clear and plain yes,

and for purpose of a case such as the present that

a Crown grant made under the Crown Lands Act would

be effective to extinguish, subject to a power

argument which we will come to. But leaving that

aside, we would say that if here Queensland - and
again perhaps subject to section 109 arguments, but
if Queensland were to degazette this reserve and to

then make a conventional Crown grant of this island

to other interests, that would be effective subject

to the two qualifications, I repeat, of the

Racial

operation of sectio~ 109 and the of power which are specific.

DAWSON J: Well, you say it would attract the operation of

the Racial Discrimination Act in the same way as

the Act which was declared invalid in Mabo (No 1).

MR CASTAN: Yes, Your Honour.
DAWSON J:	So that, in effect, what you say is now the right

which the Crown has, you say is now not

exercisable.

MR CASTAN:  Not exercisable while the Commonwealth Racial

Discrimination Act remains in the form in which it currently is, yes, Your Honour; not exercisable in

that sense. That is by reason of the existence of

particular - - -

DAWSON J:  By reason of what? Section 10?

Mabo	160	29/5/91
MR CASTAN:	Yes, Your Honour.	I was going to come to that

in some detail. I will be dealing with that.

DAWSON J: Well, I do not want to take you out of your

course.

MR CASTAN:  It is perhaps not necessary to deal further

generally with the question of extinguishment; the

authorities are set out in some detail.	Can I
then - - -

DEANE J: If your answer to Justice Dawson is right, how

would that fit in with the notion that the Crown

holds as trustee?

MR CASTAN:  There is a question of where the point at which

the trust operates is raised, in the way in which

Your Honour has put it to me. The way in which we

put it is that the trust cannot operate to restrain

the exercise of legislative power.

DEANE J:  I was not referring to a specific legislative

power. I thought you said that the Crown could

extinguish native communal right by a grant under a

general Crown law Act. That was what I understood

you were asked by Justice Dawson.

MR CASTAN:  By grant, Your Honour?

DEANE J: Yes.

MR CASTAN: Well, it is our submission, in terms of the

trust, that the trust would operate to prevent the

exercise of that power in this case because a

trust, we say, has grown up in this particular

instance. I understood the question to be put in a

general kind of way, that if one asks the question

by way of general principle, "What is the criteria

by which one can extinguish?" - we have been

talking about extinguishment generally - then one

can extinguish, we would respectfully submit, by

the exercise of the power granted in the Lands

Acts.

If we are asking it in the context of the

particular situation of these people on this island

in the context of the trust which we contend, then

we say the exercise of that power would not be

exercisable by the Crown or the officers of the

Crown in this particular instance. I have perhaps

put it too broadly because I have perhaps been

answering a question which derived from a general

principle that was asked about the exercise - - -

DAWSON J:  I just find some difficulty in seeing how

section 10 of the Racial Discrimination Act can

have any operation in relation to a defeasible

Mabo 161 29/5/91

title. But you are going to come to that

eventually.

MR CASTAN:  Yes, Your Honour. Can I take Your Honours to

the question of recognition? The way in which we

put this matter is that, as we understand it, part of the argument put by the defendant is that there

is no continuity on annexation of pre-existing
interests unless there is recognition. In our

respectful submission, if that be the correct

principle and we have contended that the

recognition is not required, but if it be so then

we would contend that there has been recognition

here.

The recognition is comprised of a variety of

components. There has not been recognition in the

explicit sense of legislation which says the

traditional interests of individuals who have

interests on land in Murray Island is hereby

recognized - or native customs are recogized - in
the way in which that has occurred in some
instances in various territories. That has not

occurred.

But what has occurred is, we would

respectfully submit, de facto recognition by

various legislative and executive conduct on the

part of the colony and in the State of Queensland.

To look at this it is necessary, perhaps, to

briefly go to some of the recorded history of the

island. I will not take Your Honours to all of it

but just to some salient features.

It is set out on pages 9 of volume 1 of our submissions - a recorded history is set out, and,

Your Honours, that history commences with some

early references, which perhaps we could just

briefly pass over. If I could take Your Honours to

page 13, Your Honours see the first reference to a London Missionary Society, obviously not acting on

behalf of the Crown, or on behalf of Queensland,

but it is a convenient starting point, to see the

way in which major European contact commenced.

That commenced in 1871. There is a reference in

1877 to the purchase of land which has some

significance in the light of subsequent conduct.

In 1877:

McFarlane removed ..... the L.M.S. to Murray

Island. Subsequently, the L.M.S. informed the

Queensland Secretary for Lands that ..... it had

purchased land ..... on several
islands ..... including Murray Island and that
"the purchase was for no mere nominal sum but

the rate of at least one pound per acre ... "

Mabo 162 29/5/91

I can just comment about that. The way in which

that becomes significant is that that acquisition

claimed by the London Missionary Society, prior to

annexation, the particular area that was the

subject of that claim was not long after annexation

the subject of an express grant of a lease by

Queensland to the London Missionary Society, and

that two acres was excepted; was not part of the

reserve that was created in 1882 as we assumed, and

certainly not part of the lease - the reserve that

was created in 1912.

TOOHEY J:  Mr Castan, I am not clear in what sense or to

what purpose you are using the concept of

recognition. Is it purely evidentiary, as it were,

to throw light upon the continuity of occupation,

or is said to give rise, itself, to some particular

right?

MR CASTAN:	We would respectfully submit that it provides an answer to what we understand to be the contrary
view, if Your Honours were disposed to take it, as
to the affect of annexation. The two views on the
affect of annexation seem to be that there is no continuity of pre-existing interests unless they
are recognized and that is the view, as we
understand it, that is put by our learned friends, as against the view as we have contended that those
interests continue unless and until extinguished.
If the view be accepted by this Court, that there
is no continuity unless recognized, and that is
expressed in some of those act of State cases, that
His Honour Mr justice Hall disposed of in Calder,
which we respectfully submit should not be
followed, but it is a view that is put there, that the interests do not continue unless they are
recognized.  What amounts precisely to sufficient
recognition is not made explicit in the
authorities, but there is that line of authority
and in order to answer it we submit if that be the
correct view - we submit it is not - we submit, in
any event here, there has been recognition.

The recognition in broad consists of a

constant reference by government officials saying,

"These people own their land, the Murray Islanders

shall have Murray Island to themselves"; land was

acquired for money; acquisitions occurred - I am

going to take Your Honour to those - statements

were made ranging from 1879, I think, through till

certainly 1965 and recently that these people own

their own lands. In other words, there is this

constant acknowledgement, in one form or another,
by Queensland by its administrative conduct in

various forms, and we rely on the operation of

those statutes to which I have just given

Your Honours the reference which permit the

Mabo 163 29/5/91

application of customs and usages, and the

operation of an island court which has given effect

to this system of succession, this system of

functioning interests in land, and that has then

been set up by Queensland, first of all, in a

non-statutory way and then given effect since 1939

by statute.

So, the whole panoply of structure has been

created around the existence and continuity of this

whole land tenure. It has gone on, not adverse, so

to speak, to Queensland in the sense that

Queensland has either tried to stamp it out, or put

settlers there, or done something to refute it or

abut it, Queensland has been protective of those

interests and that ownership and that comes out
from these matters.

We can go on over to page 14. There are references there - perhaps if I go down to 1878 at

the foot of page 14, in particular, a meeting was
called by Mr Chester. This is the year before

annexation but the resident magistrate from

Thursday Island went over there, exercising one

knows not what authority but, presumably, in his

official capacity though he was not on Queensland

territory at the time and:

he called a meeting of the people, advised

them to elect a chief and submit to his

authority, which ..... would be supported.	Nine
men were pointed out as chiefs and they
unanimously agreed to recognise one ..... as
their Head ..... Mr. Chester wrote:

"The authority of the various chiefs (of the

Islands in the Torres Strait) is ill-defined but I think it would conduce to the preservation of order if they were confirmed

in it, such as it is, by the Government."

In 1879 Chester presented a:	report on the proposed annexation of the
Torres Strait Islands observed that Darnley
and Murray were the most important islands due
to their fertility.  He added:
"Their fertility ... has attracted an
undesirable addition into their population in the shape of runaways and discharged seamen
and laborers from islands in the South Pacific
who become a burden to the owners of the
soil".

The explicit reference by Mr Chester· there,

presumably operating in his official capacity to

Mabo 164 29/5/91

them as owners.	The annexation took place in 1879
and that is simply formally recorded.	Then what

happened was that in 1879 - and this is the conduct

of Queensland which - the September 1879 visit of

Captain Pennefather, that is recorded at the foot

of page 15 and over to page 16, represents

Queensland's official presence on the island:

Chester ordered Pennefather, Commander of the

Queensland Government Vessel "Pearl" to visit

the islands ..... ascertain the

population ..... The latter were to be warned

they were liable to be treated as

trespassers -

That is the non-natives engaged in fishing -

The Chiefs were to be told that the Islands were annexed to Queensland and Pennefather was

to be prepared to deal with any complaints -

He -

visited the nine islands ..... He reported -

in December. There is a full text that was before

His Honour. There is an interesting aspect of this which I perhaps should draw attention to. What happened, as he describes it, is his arrival at

Warrior Island, he:

enquired into the charge ..... that the

natives ..... had attempted to poison -

an earlier visitor~

I could not obtain any direct proof that the attempted poising was intentional, but, as a warning, I had Kabisaw the Chief and the man

who had given the turtle in irons, and

detained them on board during the remainder of

the day and the night -

This was not at Murray, by the way,

Your Honour. This was one of the other islands

which had also been annexed.

I mustered all the inhabitants of the Island

and found them to number 34 men ..... Chief

Kabisaw - I told them that in future they

would be amenable to the laws of the white man

as the Island now formed part of the Territory

of Queensland.

That may perhaps amount to the equivalent of the

declaration manifesting the legislative and

executive instruments that had been passed.

Mabo 165 29/5/91

In the afternoon I fired 5 shells from the

guns, close to the island from a distance of

2000 yards which had the effect of showing

them what could be done if necessary. On the

morning of 11th I liberated and landed the

prisoners who promised good behaviour for the

future - got underway -

so there was, at least subsequent to the

instruments having been enacted, an act of - if one

can call it that - I suppose an act of military

assertion by the colony of Queensland saying, so to

speak, "We're here".

He sailed from Darnley to Murray on the 17th,

arrived there on the 18th. He then describes what

he found and towards the foot of that extract on

page 17, also an interesting reference. After

setting out who the people were, in the last four

lines, he says - this is on Murray Island:

I informed the natives of the island and the men named that they would be held amenable to

British law now the island was annexed.

And so that perhaps, if it had not happened

previously, was the action of Queensland in

declaring that British law then applied.

As we understand it from our learned friends

submissions, by the way, as we comprehend it, it is

said that notwithstanding that the structures that

were then imposed on the island, including the

structure for dispute resolution, were not pursuant

to law. But perhaps our learned friends will

explain that in due course.

If I can then take Your Honours briefly

through. There is a reference, in 1882, on

page 18, to that lease, which is of some

significance. At the top of the page:	February 1882 the Queensland Government
reserved Murray Island for the native
inhabitants.

Regrettably, Your Honours, there is no

documentation that was able to be obtained which

would assist His Honour or any of us in working out

exactly what that was done pursuant to. It is

simply drawn from one of the references in another

document and appears to be common ground that it

happened, but we do not know how.

April 1882 the L.M.S. applied to the

Queensland Government to purchase for lease land occupied by mission stations.

Mabo 166 29/5/91

It was granted; one for 14 years. That is lease number 164 of Murray Island, and that is of two acres.

Later ..... L.M.S. applied to the Queensland

Government to have the Murray Islands

surveyed, the improvements valued and the

whole put up for sale. The request was

unsuccessful - the Department of Lands noting:

"They have special lease and will not be

disturbed - cannot be sold."

There is a reference in 1882 to claims by non-

islanders to have purchased prior to annexation,

and then eviction notices. What occurred here is

that the non-islanders, that is the South Sea

islanders, who were not Murray Islanders, were

evicted in due course.	Then in 1882 Captain
Pennefather was back there.	He speaks about

measuring the allotments of Bruce and Johnson.

I may mention as an instance of value the

natives of Murray Island set upon their land, that the natives owning the ground upon which these men are located refused to part with it

at any price, but allowed them to occupy it on

payment of an annual rental.

Now, perhaps we draw assistance from the negative.

In 1882 nobody was going there doing what had

happened with the John Batman purchase in

Melbourne. Nobody was saying, "But you can't pay

rental because these people are not the landlords,

they don't own the land".	No equivalent conduct
took place here.

BRENNAN J:	Who issued the eviction notices in 1882?
MR CASTAN:	I would have to check that.  It was probably

Chester at that time, Your Honour, who was the

Government resident Thursday Island, but we will

have to check that.

BRENNAN J:	A Queensland authority?
MR CASTAN:	A Queensland authority, yes, Your Honour.
BRENNAN J:	And in right of his own authority and not

derivative from the traditional owners?

MR CASTAN:  Yes, Your Honour. It did not purport, as far as

we understand it - Your Honours will see on page 19

there is a lengthy discussion there of

Captain Pennefather's report about turning off what

he called the "beche-de-mer men". I am reminded,

in answer to Your Honour's question, apparently the

Mabo 167 29/5/91

material shows that the islanders had approached
the Government resident for assistance in turning

off the "beche-de-mer men", or the South Sea

Islanders. In other words, in response to

Your Honour's question as to whether it was done

pursuant to authority of Queensland or of the
Islanders, it seems to have been the desire of the

Islanders that they not have these people there.

It seems that Queensland had a similar desire.

BRENNAN J:  What I was looking for was to discover whether

or not there had been an assertion by Queensland

authorities, not simply of the application of

Queensland law, but of the title which is now said

to have been acquired by Queensland on annexation.

MR CASTAN:  In so far as it is to be found, I think that one

can only say it is found in the words of these

reports, Your Honour, and there is reference
constantly to that in the sense that there is a

constant reference to their ownership of the land,

and an absence of any denial of that. Perhaps one

can go no further than that. There has never been

a suggestion when there are these references to

ownership of ground that they are all mistaken;

they must be told it is Crown land; they are mere

licencees or whatever else one might call them, and

I mustered them and told them they do not own their

land any more. That is what does not appear, and

the references to ownership constantly does appear.

One sees it again at page 20 which is another 1882

reference of Captain Pennefather who describes in

his official capacity in the second full paragraph:

The natives are very tenacious of their

ownership of the land and the island is

divided into small properties which have been

handed down from father to son from generation

to generation, they absolutely refuse to sell

their land at any price, but rent small

portions to the beche-de-mer men and others.

These natives, though lazy like all

Polynesians on their islands, build good

houses and cultivate gardens, they are a

powerful intelligent race and a white man is

as safe if not safer residing amongst them as

in Brisbane.

He then sets out the system of government that was

instituted by Reverend McFarlane and what went

wrong with that in the subsequent paragraph.

On this question of Queensland law, if I can

take Your Honour to the top of page 21, he there

sets out, in this 1882 report, he recites his

earlier visit:

Mabo 168 29/5/91

In November 1879 I visited all of the islands

in the Straits and informed the natives and

others resident on them that the islands have

been incorporated as part of Queensland that

all offences would be dealt with according to

the law of the Colony. In June 1880 I found

that the abuses connected with this attempt at

self Government so great that I disbanded

S.M.'s and Police. Men and women were

brutally flogged by the orders, at all events

on the occasion of the Missionary teacher,

Mr. McFarlane, being in England.

and so on. So it appears that the laws of

Queensland, although said to have been applicable,

were not in fact applicable. Of course, the laws

of Queensland at that time provided for magistrates

courts and all the other conventions of orderly

system. Going over to page 22, Mr Chester's letter

of 1885 speaks of:

"This land is reserved for native use by

proclamation, issued early in 1882 and shortly

afterwards Captain Pennefather, acting under

my instructions removed a number of

trespassers. Captain Pennefather reports that there are thirteen S.S. Islanders living there

who are nuisance to the natives and recommends

their removal as does Mr. McFarlane."

And then one sees in 1885 that Douglas, the

Resident, reported to the Secretary:

that he had proceeded to Murray Island to give

effect to notices of eviction ..... to certain

trespassers -

and one sees there his instructions:

"All persons in unauthorized occupation of

Crown Lands -

he refers to it as -

are hereby ordered to remove from the Island -

although, of course, by that stage it had been
reserved. So, in terms of the definitions in the

Crown Lands Act it was no longer Crown lands as

defined. He recapitulated:

"reservation of the Island for the Islanders

and that the L.M.S. would be granted a special

lease for their mission premises." The

position of "Harry, the chief or
primate ..... has, both by the Government and by

Mr. McFarlane, been recognized as responsible

Mabo 169 29/5/91

for the good behaviour of his countrymen, the

Islanders".

then he summoned the South Sea Islanders and said:

"They all must go, in fact, except those who

had married Murray island women".

He refers to an agreement and then an important

reference, we would respectfully submit, at the top

of page 23:

Douglas noted:

"The Murray Islanders will have Murray Island

to themselves".

And then there is a reference to the list of the

South Sea Islanders interrogated, and a character

sketch of each, and his report included:

"Ben Moa "cultivates a garden held from

'Harry'". Jonny Lifu "has ground from Harry".

George Lackay "has a garden from Harry".

And then there is a reference to Douglas agreeing to secure to Ben and Joe, the people who are being

put off, sufficient land. Then we go to the next

one, Mr Milman - refers to coconut trees.

Mr Milman, at the foot of page 23, imposed a new

code of penalties in 1886. He was the acting

Government resident by then. He sets out the new

code of penalties. It is not apparent under what

authorit7 this code of penalties was applied, but

there are provisions. for sentences for various

offences, and if one takes the third full item on

page 24, he regulated or provided:

If anyone has any dispute with his neighbour

or any other person about the boundary of his

land such dispute shall be settled finally by

the Mamoose and such other natives of Murray

Island as he (the Mamoose) shall call in to

assist him.

That seems to be the first imposition of

something in the nature of a dispute resolution

system concerning land imposed by or recognized by

Queensland. Then the reference which I think I

took Your Honours to yesterday which is, again, an

important aspect, we would submit, of recognition

which appears at page 24 in the middle of the page.

He refers to the land question, the tenure:

and the tenure under which the native races

are to be allowed to hold the land they own.

There is no doubt that if every acre has not a

Mabo 170 29/5/91

reputed owner ..... but every grove ..... has its

proper and legitimate hereditary owner. To

disturb these rights, great care would have to

be exercised -

Again, we point to the fact of that report in

1886 and we point to the absence of anything done
to disabuse Mr Milman of the notion that these

people were owners or any other conduct to negative

what was - or report on what was in fact going on

there.

There is a reference to the London Missionary

Society, but the Church of England became the

successor to the lease of the two acres. In 1881

there is a recommendation of a change in the

administration of justice. The idea being then

that a schoolteacher should be appointed to: act as an adviser to the head man -

this is on page 25. There is an exhortation in the

second paragraph of that report of 1891 to place

someone there to act:

as a guide and instructor -

and suggesting a schoolteacher. Now, then in 1892,

and this is significant historically, if not

legally, Mr Bruce was:

appointed first Government schoolteacher -

and -

he acted as a guide and instructor to the

natives as well as an adviser -

and he was there through to I think it is 1932, a

very long period. And, of course, it is very

significant. In 1896 there is John Bruce's report

which refers to eight of the cases involving land	disputes that in fact were before the Mamoose, as
he puts it.

During Douglas' visit of 1897 there was a

council of advice set up with an election system.

In 1898 Bruce reported 23 cases, mostly assaults

and land disputes. Then in 1898, at the foot of

page 26, there is a reference to the Haddon visit,

and some of that is set out.

Going to page 27, in 1901, a reference to

cases before the, what is called now, the Mamoose's

Court, at which he was present.

Mabo 171 29/5/91

The best of cases were principally assaults

and land boundary disputes.

In 1907 a report of the Chief Protector outlining

the system of what was called self-government

instituted by John Douglas. He describes the

duties. He says it is interesting to delineate the

system, and it is all set out.

I do not think there is anything specifically there in relation to land, but obviously the court is referred to and I will come to the court in a

moment.

In 1908, on page 29, there is a reference to

the court:

Court - a number of cases were brought before

the Mamoose's Court at intervals during the

year. The majority were assault cases and

land troubles, but none of them were of a

serious kind. I attended the Court on each

occasion and visited the portions of land in

dispute to arrange the boundaries.

In 1909, in a report of the Chief Protector.

He notes - an interesting reference, perhaps, in

passing, in the 1909 report. The first extract

lasts three lines, some of these Mamoose's:

(as for instance, Maino of Yam Island)
possess judicial minds and just
discriminations that would win respect in

courts higher than their own.

Then the report of Mr Bruce for 1909, 35

cases. In the fifth line of that report at the

bottom of page 29:

Land disputes were, as usual, to the fore.

They are generally a source of trouble and,

owing to the variance of the evidence brought

forward, a searching inquiry has to be made.

Again a reference on page 30, at the end of the

first paragraph:

in court cases visited the disputed portions

of land and arranged new boundaries.

There is a reference in 1911 to court cases. And

in 1912 we find the second reserve being set up.

That is under the Land Act of 1910. That was for

many islands, 22 in Torres Strait, but it included

one which covered the three islands.

Mabo 172 29/5/91

In 1913 there is a reference to - we have used

the word "purchased" at the foot of page 30. Our

learned friends take issue with the use of the word

"purchase" so perhaps one would have to go to the

document itself, the text of which is set out in

volume 2 for Your Honours. But we simply point to

the fact that there was an acquisition in one way or another, whether it was a purchase, and it was

for a gaol house, a court house and a recreation

reserve and one pound ten shillings was paid to
Bagat, to Kangaroo and to Torn for these portions.

There is a reference to a government reserve defined between various persons' portions as they

are described on page 31 in 1913, reference between

Basee's portion and the south-west portion

belonging to her and Teebe - again, an explicit

reference in setting up a government reserve.	The
power to do that is not explicit, but it was
apparently set aside. It is referred to in the records and it is referred to as being -

between Basee's portion ..... and the south-west

portions belonging to her and Teebe.

So the concept of - unless it was loose
terminology, of course, Your Honours, but

nevertheless the land is referred to as "belonging

to her and Teebe".

If we go over to page 32 there is a reference

to a 1928 purported resumption of land. One might

point out, "Well, whose land was it to be resumed,

and under what power was it resumed?" None of that

appears. It appears that in purporting to set

aside some land it was treated as somebody having

an interest in it that had to be resumed, but it

was divided into lots. We have a short submission

on the specifics of that in our reply submission.

There is then a reference to the island

councillors conference held at Yorke Island in

1937, that:

all land be used as our forefathers because it

was boundaried up by them -

and a reference to the operation of how these

matters work, set out in the last paragraph.

Before the Island Council makes its decision

and settled ...... disputes it obtains its

information from the witnesses ..... The elderly

people are always regarded as the better

informers.

Mabo 173 29/5/91

And as a result of that report it seems, in 1939,

the first Act was passed and it is only from 1939
that any of the structure of government, court, regulation, criminal penalties, gaoling people,

fining them, sending them off, all of which

occurred in those first 50 or 60 years, seems to

have any legal authority, any statutory authority.

People were fined, sent off the island, sent to work for six months on boats, all sorts of things happened during that first 50, 60 years by the

court or the council, pursuant to this structure

set-up, without any apparent authority or any

statutory authority in any event. In the 1930s there were public buildings

erected, including residences, stores and so on and

they are all set out. There is a reference in

1958, if we go over to page 34, to Mr Killoran,

then deputy director who speaks:

of the incorporation in their by-laws of self-

government, many of the finer tribal laws and

traditions -

that is in fairly general terms. In 1965 there is

a reference by Mr Pizzey who pointed out:

the Island is a Reserve and the land areas are
the subject of tribal division and each owner

retains possession and title in accordance

with custom and their own established system

of local government.

Now, we draw considerable comfort from that in a

relatively modern reference in 1965.	The
Government of Queensland was expressly
acknowledging that:

the land areas are the subject of tribal

division and each owner retains possession and

title in accordance with custom and their own

secures ownership of the land within the

Torres Strait Islander race and is considered

reasonable whilst these Reserves are so

constituted. The land ownership system in

Torres Strait has been the subject of

established system of local government. This

consideration .... at the Tri ...... conferences of the councillors and will be reviewed, and - -

Later the same day -

he referred to the island court and the appeal from

the island court and he says, and this is

significant in another context, page 35:

Mabo 174 29/5/91

The district officer, in his administrative

capacity, has extended to him the powers of a
trustee and in practice these powers are
exercised in a counselling capacity, rather
than an arbitrary or restrictive one.

The 1967 reference on page 35 is also of

considerable significance. Again, our learned
friends have taken issue with the use of the word

"purchase" in that reference in 1967 but in any

event the particulars of the matter are set out in

great detail at pages 30 to 33 of volume 2 of

His Honour Mr Justice Moynihan's determination.

What happened, in summary, is that land was

acquired for the extension of a kindergarten and

persons were sought out who owned the adjoining

land. The first person sought out was not willing to sell his land - the reports express it that way

and the letters and correspondence express it that

way. So, in 1967, the department was seeking to

extend the kindergarten. It looked for persons to

sell their land. It did not do anything about the

person who declined to sell the land but simply

went to find some other neighbouring owner who

might and, ultimately found a man, Gobedar Mabo,

who agreed to sell his land and the receipt that
was drafted by the department is there set out and

Mr Mabo was asked to sign it when he accepted

the $50:

I, Gobedar Mabo, formerly of Murray Island am

prepared to sell my block of land.

Now, that is the langua~e used	in relation to
people on this island in 1967.	A dispute arose
later in 1968 as to whether he	was the correct
person to have sold it and the	deputy director was
told:

No doubt exists that land purchased by

Department was property of Gobedar Mabo and on

which Kindercraft is to be built.

So, there is a clear course of conduct, we would

respectfully submit, of dealing with these people as though they owned their land whatever might be

the legal impact of that.

Then, in 1973, the same thing happened again. Further land was needed for the kindergarten and

Deede Dawita was paid $75 by the department.

Again, the documents are set out and the word

"purchase" appears interestingly, although our

learned friends have taken issue with it. At

page 36, Your Honours will see that in 1967 the

manager of the department was communicating back to

Mabo 175 29/5/91

the director of the department and in the seventh

line of his letter he confirms that:

following negotiations between the Chairman

and Councillors and the owner, Mr Dawita has

agreed to accept $75.00 from the Department
for the purchase of this land.

Now, again, it may be that as a matter of ultimate legal technicality, legal result as

determined by this Court, that was an inaccurate

description, but what is significant, we would

respectfully submit, is that if practice and policy

are relevant to the question of whether or not

interests are to be treated as recognized - and

His Honour Mr Justice Blackburn in Milirrpum drew

greatly on the practice of non-recognition of

Aboriginal interests as part of the framework in

which to determine whether or not Australia, in

Australian law, what he called communal native

title, survived annexation. And the whole practice

and policy, as he put it, was that it was not

recognized.

We say that communications as recently as 1973

by relevant officers communicating to each other in

terms of purchasing the land for $75 are of great

significance. And there is a reply there set out

asking to ensure that the council duly documents the acquisition of land for the kindergarten and

arrange for payment to Mr Dawita.	Then the receipt
is set out.

Then, if I can go over to page 37, this is an

extract from a speech in 1973 by Mr Bjelke-

Petersen, then the Premier, who moved - and this arose in the context of the Torres Strait treaty

and the question of whether these islands would

continue to be part of Australia or whether they

might, as a result of the international

negotiations then in process, become part of Papua

New Guinea, and the way in which it is expressed,

the relevant portion in the sixth and seventh

lines P and again we rely on this as an expression

of policy:

they have asked this Parliament to help them preserve their distinctive culture, language

and political identity; they have asked us to

reaffirm their right to their islands, their

ancestral home for generations before the

discovery of Australia -

and do not wish to consent to an alteration.

We then set out from pages 38, and I need not

take Your Honours through the whole of it, a

Mabo 176 29/5/91

substantial submission which I will not take

Your Honours to now, but which, in our respectful

submission is of significant weight, and that is

the question of the court. Can I just spend a

couple of minutes on the question of the

Murray Island court. The records of the
Murray Island court were before His Honour in two forms: they were before His Honour as an extract

of all of the cases that could be obtained going

back to 1898 and through to, I think, the 1970s, of

all cases determined relating to land or bearing
upon land and there are some 400 recorded instances
of the court on Murray Island dealing or making

determination or recording something in relation to

land. Some of them are disputes in the sense of

court cases, in which a question is determined as

to who should inherit land or who is the correct

owner of land. Others, and many of them, are

boundary disputes, as to the boundary between one
particular Islander's portion and another

Islander's portion.

There are also a very large number of

transactions of one kind or another; thus, for

instance, a record appears of a document which has

been lodged with the court by which a caretaker is

appointed when somebody is going off the Island for

some period. There are wills in which Islanders
purport to dispose of their land and in which are
then lodged as part of the court records as a place

of safe keeping or for purpose of record and the

practice of disposition by written document had

also been introduced, though disposition, as

His Honour points out in his determination, by

attending on the land and pointing out the

boundaries in the presence of one's families still

also prevailed.

There are also recorded some transactions,

from recollection, of leases, loans or other of the

kind of transactions that His Honour
Mr Justice Moynihan has referred to.	Now, in our

respectful submission, we have provided, in our

submissions, detailed analyses and indexes to these

records. They also were before His Honour in the

form of photocopies of the original handwritten

documents which, of course, are much more difficult

to actually manage and read. But in our respectful

submission they are a significant aspect of

recognition.

Our learned friends, as we understand it, seek

to say that the existence of the court was a

European imposed system and therefore denies the

continuity of anything customary and, in our

respectful submission, they operate in precisely

Mabo 177 29/5/91

the opposite way. The fact that there was set up

first of all, for the first 40 or 50 years, until

1939, a totally informal system, that is to say,

not having any foundation in statutory authority,

but that Queensland was creating a structure so as

to give force and effect to those very interests in
land which the people claimed. Queensland was not
saying, "You do not have this", or "You cannot have

this system", or "You cannot continue to claim that

you are the owner, or dispute between yourselves as

though you are owners". So we submit that the

whole of the court record - and then of course,

from 1939 on it is constituted pursuant to statute.

The statute itself directs that there be issues

determined by the council, in accordance with
custom and practice and the council to constitute

itself into a court, and to deal with matters in

accordance with, among other things, the by-laws.

So, what has happened is that there has been -

and as one would guess, there being that many

cases in such a small population - this is a

litigious population - I commented yesterday about the nature of the kind of society and community it

was in relation to land matters. There is an
intense, as the evidence establishes and His Honour

found, concern and interest in matters relating to

land and to quote His Honour's extract from

Margaret Laurie, "Trespassers are abhorred on this

island." That gave rise to what is relatively a

very large number - a very large amount of

litigation.

We submit that the way in which Queensland has

given both its initial imprimatur to set up a
system of some kind to provide for dispute

resolution in a major area of the people's

traditional interests in land and then subsequently

set it up by statutory provision is a major aspect

of recognition. There are some examples extracted

in this volume of the Court records and others

elsewhere in our submissions which we commend to

Your Honours.

There is one other matter I should mention in relation to the Court records and that is that one

sees from time to time that the particular hearing

has been signed off in some way by a government

resident or the protector or some other Queensland

officer. That is to say, there is an indication of

an approval or a participation in the process by

the relevant Queensland government officer.

Can I then turn to the question of the existence of a fiduciary relationship or trust

relationship which, we would respectfully submit,

Mabo 178 29/5/91

should be inferred from what has gone on on this

island.

In our respectful submission, the nature of the way in which Queensland has dealt with these

islands is such as to give rise to a fiduciary duty

and we first of all make the point that the

category of fiduciary duties, we would respectfully

submit, are not closed. We rely on some of the

passages which I referred Your Honours to

yesterday, I think we touched on them and it is

perhaps not necessary to go back to them and read

them, in the case of Guerin, 13 DLR, in which the

court there dealt with the question of trust and

fiduciary duty in some detail.

Ultimately the court there held that the

relevant situation as applying in that particular

statutory framework gave rise to a fiduciary duty,

but there was some general discussion of the

operation of the doctrine of fiduciary duty and the

classification of those situations in which it

arises.

This Court has dealt with that matter in

Hospital Products International Pty Ltd v United

States Surgical Corporation. (1984) 58 ALJR, in

what might be termed the classical context of

commercial arrangements in which the Court is asked

to draw the conclusion that a fiduciary

relationship arises. In Hospital Products, in

dealing with the question whether the distributor

was subject to the fiduciary duty, it was

ultimately held that he was not, but the case - and

I will not go to the detail of it or read portions

of it but Your Honours perhaps may recollect - it
is a case in which the underlying question of when

a fiduciary relationship exists, or when it is to

be inferred, is developed at some length in the

judgments of His Honour Chief Justice Gibbs and in

Your Honour the Chief Justice's judgment and I

think also in the judgment of Your Honour

Mr Justice Dawson.

There are various criteria set out and in our

respectful submission - again this is set out in

detail in a written form at length in our

submissions and it is perhaps not necessary to go

in great detail into it - we simply contend that a

fiduciary duty can arise in any situation in which

the relevant relationship arises.

I am reminded that at page 596,

Sir Harry Gibbs observed:

The authorities contain much guidance as

to the duties ..... but provide no comprehensive

Mabo 179 29/5/91

statement of the criteria by reference to the

existence of a fiduciary relationship.

But, it has been said in that case and in numerous

others that, of course, the category of fiduciary

relationship is never closed.

DAWSON J:	Can the Crown be a trustee?
MR CASTAN:	We would respectfully submit the Crown can be a

trustee but we deal with that and we submit that

notwithstanding the political trust cases such as

Kinloch and the other cases that perhaps

Your Honour has in mind, that those should be not

followed or are not applicable.

It is dealt with in Gueren in a passage that I

took Your Honours to briefly yesterday in which the

nature of the relationship is touched on. It may

be desirable that I take Your Honours to it. It is

dealt with in (1984) 13 DLR (4th) 321. At

page 334, the passage commences and in the second
paragraph under that heading "Fiduciary

Relationship", His Honour Mr Justice Dickson

expresses the view:

In my view, the nature of Indian title

and the framework of the statutory scheme

established for disposing of Indian land

places upon the Crown an equitable obligation,
enforceable by the courts, to deal with the

land for the benefit of the Indians. This

obligation does not amount to a trust in the

private law sense. It is rather a fiduciary

duty. If, however, the Crown breaches this
fiduciary duty it will be liable to the

Indians in the same way and to the same extent

as if such a trust were in effect.

DAWSON J: Well, he says that but he does not give any

authority for it.

MR CASTAN: Yes, he deals with the question of the Crown -

there is a passage which I cannot just pick up

where he, in fact, refers to Kinloch and the

other -

MASON CJ:  336.

MR CASTAN:  I am indebted to Your Honour. It is also at

341.

MASON CJ:  The second-half of the page on 336.

MR CASTAN:  Yes, that is the passage I was thinking of, the reference to Kinloch. I am indebted to

Your Honour. He there says, after describing the

Mabo 180 29/5/91

way in which Indian title as exists is an

independent legal right, says:

Kinloch v Secretary of State for India, supra;

Tito v Waddell, supra, and the other

"Political trust" decisions are inapplicable

to the present case. The "political trust"

cases concerned essentially the distribution
of public funds or other property held by the

government. In each case the party claiming

to be beneficiary under a trust depended

entirely on statute, ordinance or treaty as

the basis for its claim to an interest in the

funds in question. The situation of the

Indians is entirely different. Their interest

in their lands is a pre-existing legal right

not created by Royal Proclamation, by -

the section -

or by any other executive order or legislative

provision.

Can I take Your Honours also, in response to

the question raised by Your Honour

Mr Justice Dawson, to page 1005 of our submissions.

That appears in volume 5. Perhaps the easiest way

of responding to Your Honour is to take

Your Honours to what we said about it in detail.

DAWSON J:  I notice 341 it is dealt with, too. It is still

just a matter of assertion. It is a fairly

creative sort of - - -

MR CASTAN:  Yes, it is a matter of assertion. At page 1005

of our submissions, Your Honours, we have

endeavoured to deal with this in a fairly explicit

way. We would respectfully submit that the way in

which it is there set out is that there are these

two kinds of cases and we respectfully submit that

the "political trust" authority should not be followed; that they founded upon a political judgment depending upon assertions of fact.

No attempt was made in those cases, when they.

are examined, to examine the body of authority canvassing other fiduciary relationships or to analyse the United States case law concerning

Indian trust responsibilities. We submit - this is

the critical point - when one analyses Kinloch and
those other cases, that there was a fictional

assumption there that the sovereign was personally

involved and therefore the sovereign cannot have

this trust imposed. And we would respectfully

submit that the Court should not proceed on the

basis of that fiction if the reality is that the

Crown, of course, is synonymous with government.

Mabo 181 29/5/91

This treatment of the Crown as though one cannot

impose on Her Majesty this notion of trust which

underlies those cases is, in our respectful

submission, not appropriate.

And we go on to say that there has been a

failure there to actually define what governmental

conduct would give rise to obligations

unenforcible. One does not, by saying it is

governmental or saying it is Crown, find an answer.

One needs to say what is the special relationship

that can give rise to the enforcible fiduciary

obligation and then decide what is special about it

and then say, "Is this the kind of governmental
function which falls within the category that is

such that the Crown should not be made a trustee or

a fiduciary?". I might say that in

Attorney-General v Eager - and I think we have referred to this and I do not have the reference

immediately to hand - - -

MASON CJ: Well, perhaps you could follow that up after the

adjournment.

MR CASTON:  Yes, I am sorry Your Honour, I did not notice

the time.

MASON CJ:  We will adjourn now and resume at 2.15 pm, Mr Castan.

AT 12.50 PM LUNCHEON ADJOURNMENT

-~-

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Castan?
MR CASTAN:	I had, I regret, failed to give Your Honour

Mr Justice Dawson an adequate answer to the

question whether the Crown could be a trustee,

before the luncheon adjournment. If I could

respond to that by referring Your Honours to the

case of Reg v Eagar, (1864) 3 SCR 234 in New South

Wales. That is a case in which it was held that

the Crown became a trustee on the failure of a

trust which had been created for the maintenance of

religion and the education of youth in the colony,

the court there dealing with and restating the

principle that a trust will not fail for want of a

trustee, and interpreting a particular statutory

provision in dealing with the result of the winding

Mabo 182 29/5/91

up of a corporation which had been established to

act as trustee, held that the Crown would act as

trustee of that particular trust.

We would submit what the political trust

cases, as they are referred to, such as Kinloch

establish is that there are two kinds of trusts of

which the Crown can be trustee: those which are

enforceable in a Court of Equity and those which are said to be of a higher kind, as it said, the

political trusts which are purely governmental and

which will not be enforced against the Crown.

The way in which that problem was dealt with

in a somewhat analogous situation in Tito v Waddell

(No 2), (1977) 1 Ch 106 is instructive. This

particular matter is dealt with at page 222.	I say
somewhat analogous because this was a case
involving inhabitants of Ocean Island, who are

known as the Banaban people, who had had the island

the subject of phosphate mining, and they brought

proceedings claiming that there had been, among

many other things, a breach of trust in respect of

the proceeds of the phosphate mining.

There is a very long judgment by His Honour

Mr Justice Megarry dealing with many issues. At

page 222 His Honour comes to the question of

whether or not the Crown is to be treated as a

trustee.	He says, just after the letter F:
Quite apart from that, it seems to me

that the surrounding circumstances, as well as
the terms of the documents, do very little to
support the concept of any true trust.

Instead, they do much to support the view

that, subject to the limited rights created by

the annuity scheme, the Banahan Fund was a

fund which was subject not to any true trust

but to a trust "in the higher sense," or a

governmental obligation, to use it for the

general benefit of the Banahan community. It

was money which the Banabans were told would

be expended by the government in their

interests; and no doubt this acted as an

inducement to the Banabans to sign the 1913

agreement.

I must remember Lord Atkin's words in

Civilian War Claimants -

that is one of those basic cases usually relied

upon -

consider whether there is anything to show

that in this case the Crown deliberately chose

to act as a trustee. The fact that the only

Mabo 183 29/5/91

parties to the 1913 agreement were the company

and the Banaban landowners ..... and that

neither the Crown nor any officer of the Crown

was a party, seems to me to go far towards

negating any such choice. The Colonial

Office ..... had made the agreement ..... that is

to be found in the exchange of letters
in ..... 1913; but far from suggesting that the

Crown is to hold the additional 6d royalty on

a true trust for the Banahan landowners, this

merely provides for the proceeds of the

royalty "to be devoted to the general benefit

of the natives." ..... such language points

firmly towards an obligation of government and

not a true trust.

So it is a matter of interpretation of the

particular situation, particular provisions, to

determine whether it is of that as it is said,

higher kind discussed in Civilian War Claimants and

Kinloch and such cases. In this case His Honour

held it was not of that kind. In Pienkinna- - -

TOOHEY J:  Mr Castan, reading that passage at the foot of

page 222, are we to take it that the case that has

been presented here is one of the Crown

deliberately choosing to act as a trustee?

MR CASTAN: Yes, Your Honour, and we point to the 1939

vesting of this reserve in trustees. Under

section 334 and the following sections of the Land

Act, land which is reserved or set aside for a public may be vested in trustees, and there were equivalent previous provisions in the relevant Land

Acts at relevant times. When this land was

reserved, certainly in relation to the one for

which we have the documentation, in 1912, the power
also existed to vest the reserve in trustees. That

was not exercised at that time. It was exercised

in 1939, it would seem as a result of perhaps some

developments at that time: one of those triennial

conferences of islanders that was referred to in

that history we briefly looked at.

But, in any event, in 1939 two things

happened. Legislation was passed for the first

time setting up a Torres Strait Islanders Act,

constituting the councils and the court, providing

for a legislative regime, if we may call it that,

in respect of the Torres Strait Islands and,

certainly in respect of this particular area, and

possibly the others, I do not know, but certainly

in respect of this island, the reserve was not

altered but it was then vested in trustees.

Now, what significance that had in

administrative terms is not entirely clear but it

Mabo 184 29/5/91

certainly indicates that there were trustees

appointed pursuant to those provisions of the Lands

Act which speak about trustees. Now, those

trustees under those provisions have certain

powers: the power to lease and various powers are

there provided for land set aside for public

purpose which is vested in trustees and those

powers presumably cannot be exercised in relation

to land set aside for public purposes not vested in

trustees.

So there has been an explicit statutory

vesting here. The meaning and effect of that, and

the enforceability of that, is really the matter

that falls for determination, and that question

under virtually the same legislation was dealt with

in Pienkinna.

TOOHEY J: But in order to understand the breadth of the

argument that is being presented, is it right then

to assume that if a trusteeship is to be imposed,
it arises only by virtue of the Crown's deliberate

action in constituting itself a trustee?

MR CASTAN:  It would seem, on the authorities, that that is

the kind of test that must be imposed, but that

test, and as there discussed by Mr Justice Megarry, is posed because he has worked within the framework

of the political trust cases.

We would respectfully criticize those cases in

the sense that they seemed to have developed from a

doctrine of distinguishing between those trusts
which are to be considered as not capable of being

enforced in the courts and those which are and then

subject only to determining whether the Crown has

subjected itself to that. That, in turn, seems to

depend on whether that is to be considered as a

governmental function; that it is a matter for
governmental policy as distinct from an enforceable

trust, enforceable in equity.

That is a distinction which, we would

respectfully submit, is an artificial one and one

that is exceptionally difficult to apply. How is a

court to distinguish between those trusts which are

to be treated as enforceable or not of the nature

of a governmental or political function and those

which are. We would respectfully submit that where

the relationship is such as to constitute a trust,

and certainly where trustees have in fact been

appointed pursuant to legislation providing for
trustees, then the words mean what they say.

If the Lands Act provide for the vesting of

land in trustees then they are trustees and
appropriate persons who are appropriate

Mabo 185 29/5/91

beneficiaries can enforce such a trust in the

courts. They then get the question - the question

may arise depending on the particular area and who

are the persons for whose benefit the trust is

being created. In this case, in any event, we

would submit that applying whichever test is the

relevant one, one finds trustees appointed and they

are "where the trust is for the benefit of

aboriginal inhabitants" - as I think were the

original words in 1912 - then the relevant

aboriginal inhabitants, we would respectfully

submit, can enforce such a trust.

BRENNAN J:  Mr Castan, could you identify what are the

powers or matters in respect of which there is said

to be a fiduciary duty, and what is said to be the

property which is held on trust?

MR CASTAN: Again, we go back to the particulars for that

because again, we gave particulars and it might be

most productive to turn to those by way of response

to Your Honour because we did set them out.

Could I take Your Honours to page 82 of the

volume which our learned friends have provided with

the pleadings and documents. We had been requested

to provide particulars of the trust or fiduciary

duty as well as the other matters which we

discussed yesterday, so we do take Your Honours to

page 82 where we have set out the elements of

fiduciary duty or trusteeship enforceable against

the defendant and referred to in question 3(b)(I)

of the questions reserved. It is there set out at

the foot of page 82 and over on page 83 in the

terms in which we have formulated them. I am not

sure if that is responsive to Your Honour's

question but I do not think I could do any better.

BRENNAN J: Well, it prompts another, and that is, how does

one distinguish between those powers which are

vested in the government to be exercised according	to its discretion for the benefit of the community	at large, and those which are fettered by a
fiduciary duty?

MR CASTAN:  When Your Honour speaks of the community at

large, I assume that Your Honour means the broader

community not meaning the Murray Island community?

BRENNAN J: Yes. I am thinking, particularly, of the power

of alienation of interests in land which,

ordinarily, are viewed as being powers which are

reposed in the minister, for example, under a Lands

Act to be exercised for the benefit of the

community at large at the time when a power falls

to be exercised, incapable of being fettered?

Mabo 186 29/5/91

MR CASTAN: That, we would respectfully submit, is by the

fiduciary duty which we have contended for,

fettered by the duties that are here defined, that

is to say, that power could not be exercised in a

manner so as to extinguish the rights which we have

claimed, or if so extinguished if exercised, would

have to be exercised in a manner which otherwise

was in the interests of the relevant persons.

There might be some circumstance in which it was in

their interest, but it could not be exercised, we

would respectfully submit, so as to act in a way

that was contrary to their interests or to

extinguish their interests in any way that is not

to their benefit.	I am not sure that that is
responsive - - -

BRENNAN J:	I understand that is what you say, but I do not understand how it is that one takes a power, say,
of alienation of an interest and sees it to be a
statutory power which is incapable of being fettered by contract, for example, but yet allows
it to be fettered by a fiduciary duty. In other
words, it seems to be a contradiction of the nature
of the power conferred.

MR CASTAN:  We would respectfully submit it is not. What

has happened here is that the Crown has acted in a

certain way over a lengthy period of time. I

hesitate to go to notions of estoppel but certainly

has acted in a way which has created the

obligation. The obligation, in our respectful

submission, is imposed on the Crown by reason of

the whole of that history including the unilateral
action of the Crown in the first place in acquiring

the islands in the way that the Crown did.

DAWSON J: Well, what is the trust property?

MR CASTAN:  In our respectful submission, the trust property

is the interest that the Crown has in the islands

and the capacity of the Crown to act in ways that

would affect the interest of the islanders in the	islands. In our respectful submission, the Crown
cannot act in ways which would harm those
interests, the Crown having brought about the
situation in which the interests have been brought
into the form they are. That is to say, these
people were unilaterally acted upon - if I can use
that term. They were there and the Crown, by
instruments and then by Captain Pennefather's
visits and subsequent conduct, imposed a certain
regime initially apparently without any statutory
or other apparent lawful foundation - other than
perhaps prerogative of some kind - and subsequently
by statute. But it was not a consensual
arrangement. It simply happened. The imposition

Mabo 187 29/5/91

of that, in our respectful submission, imposes
duties.

The Crown also, if we can turn to fiduciary matters, has acted and conducted itself - and it

has used the very language itself - as the

protector or put itself in the position of guardian

or protector so as to give rise to fiduciary

duties. That is apparent from a very lengthy

history of legislation which we have set out in

some considerable detail at page 403 in volume 2 of

our submissions.

I will not set them all out but they start

with the Industrial and Reformatory Schools Act of

1865 in Queensland and they go through to the

Torres Strait Islanders Act and they go through a

variety of permutations and combinations with a

variety of provisions which range from provisions

which prevented people from spending their moneys;

they come down to some commercial matters; that

residents of the islands, their actual property was

taken possession of to be under the care of the

protector, a whole vast range of provisions, all

set out there in summary in those pages. What has

happened is that the Crown has acted as parens

patriae; has put itself in the position of the

protector or guardian of these people.

McHUGH J: Well, could the Crown give its assent to a bill

of the Queensland Parliament which was inconsistent

with these trusts?

MR CASTAN:  We would not contend that this duty would

inhibit the legislative power. That seems to - it
is difficult to see how the duty could extend to

inhibiting the power of the legislature to enact

legislation and Your Honour puts it in terms of the

Crown giving its assent to a bill, but we hesitate to put a proposition that this, of itself, amounts

on the basis of a limit on the way in which power to a limit on legislative power. We rather put it	otherwise granted, such as the Crown Lands Act
powers, are to be exercised, and in our respectful
submission one cannot look at that entire history
of the Crown acting in the position - putting itself in loco parentis, so to speak, in relation
to the entire community of people, saying that they are protective provisions relating to who can marry
whom and where people will be allowed to work and
how they are to function, all having about them the
air, however, whatever view people may have taken
at various stages of history about the wisdom of
such legislation, but all manifestly intended to be protective in nature.

Mabo 188 29/5/91

DAWSON J: But how can the fiduciary duty inhibit the

exercise of a statutory discretion conferred

without reference to the fiduciary duty?

MR CASTAN:  We would respectfully submit that it does. We

would respectfully submit that - - -

DAWSON J: Well, you say that it does, but how can it?

MR CASTAN:  We would submit that the Crown has imposed on it

duties in the same way that others can have imposed

on them duties, that there is no limit to the

category of fiduciary duties, and that where a

power is exercised - - -

DAWSON J:  It would be inconsistent with the statute if the

statute confers an unfettered discretion.

MR CASTAN: Well, Your Honour puts it that the statute

confers an unfettered discretion, but in our

respectful submission a statute such as the Crown

lands legislation which in general provide for, in

this case, land to be reserved, provides for
trusts, and the land is vested in trusts, and

provides then for various powers in those trustees,

that while the situation prevails and that trust

persists, certainly that is enforceable.

The situation that would pertain in what

Your Honour has opposed to me is the hypothetical,

if I may say so, because it is the question of what

would happen if these reserves were degazetted and

then a Crown grant were made. We go so far as to

say that it would inhibit the exercise of that
power, but I stress, .that is not strictly before us
for the purpose of these proceedings because we do

not seek relevant - that does not apply in this

situation.	We have not got that and we have not
got the threat of that.	We have got the threat of

a different kind of exercise which is deeds of

grant in trust. But what Your Honour has opposed

to me is in a sense hypothetical.

BRENNAN J: Then why are we troubled about fiduciary duty?

MR CASTAN: Because, Your Honour, what is not hypothetical

is a different kind of exercise, not a grant of a

Crown grant in the sense of a Crown grant pursuant

to Crown grants legislation but the exercise of

degazetting the reserve and then granting the
reserves pursuant to what is called the deed of

grant in trust.

McHUGH J: Well, how do you reconcile the proposition for

which you contend with the rule that the Crown

cannot contractually bind itself to exercise a

Mabo 189 29/5/91

statutory discretion or power in any particular

way?

MR CASTAN:  The Crown cannot contractually bind itself.

What we contend for is a fiduciary duty. We say we

rely on what has been said in Guerin in the way in

which it was there said to apply in relation to the

exercise by the Crown of powers in relation to, in

that case, the dealings with reserve land which

ultimately was disposed of for a golf course.

McHUGH J: Well, you seem to be saying that if the Crown

agrees to constitute itself a trustee it can fetter

its discretionary powers.

MR CASTAN:  If it is constituted as a trustee, then we would

respectfully submit it is bound. And yes, it

follows, as Your Honour has pointed out, that may

arise by agreement as the basis for it.	There
is - - -

BRENNAN J:  Am I right in thinking that the argument based

on trust converts the interests for which you

contend from legal interests into equitable

interests only?

MR CASTAN: It does, Your Honour, and it imposes, we would

respectfully submit, a restraint on acting

administratively in ways which are inconsistent

with the continuance of those interests.

TOOHEY J: Could I just follow that up one step further?

You said some time ago that if a trust exists it exists because the Crown has deliberately chosen to

constitute itself a trustee, and that the existence

of that trust is to be gathered from a range of

statutory and other instruments.

MR· CASTAN:  Yes, Your Honour.

TOOHEY J: Is the nature of the trust thus constituted a

trust in accordance with interests in land held

according to custom or tradition, or are the terms

of the trust to be found from the instruments

themselves?

MR CASTAN:  We would respectfully submit the former. The

instruments themselves provide some guidance and
the instruments in particular are instruments which

enable one to draw the inference that the trust

exists, or the fiduciary duty exists. That is to

say we rely among other things on matters going

back to the Restriction of Sale of Opium Acts of

1901 and other instruments we have referred to.

But we do not confine it to the terms of those and

the other subsequent legislation.	We say it
is - - -

Mabo 190 29/5/91

TOOHEY J:  No, but it may be one thing to say that the Crown

has constituted itself a trustee for the Murray

Island people in accordance with their own understanding of their rights and obligations in regard to land. It may be quite a different thing

to say that the Crown has constituted itself a

trustee in respect of those people, the terms and

the nature of that trust to be gathered from the

instruments themselves. It seems to be the former

that you are putting to us.

MR CASTAN:  Yes, but we contend for the former and that is

why we have put it on the basis of fiduciary duty

and a trust. We rely particularly on the statutory

trust created in 1939, and we say that in any event

there now exists the statutory trust.	So we rely
on the existence of the statutory trust.	The

consequence, of course, of the statutory trust may

not be all that significant because if it is the

statutory trust of 1939, then it is capable of

being revoked pursuant to the statutory power to

revoke. We nevertheless would contend that

Your Honours should find that the statutory trust

exists, though the consequence of it might not be

all that dramatic, but we would respectfully submit

that it does exist.

If it be merely the statutory trust, clearly

enough the statute itself contains the power of

revocation and the trust can be terminated if that

is all there was. We contend for that. But we

also go further and contend for a trusteeship in

relation to the interests in the terms - and we

frankly rely on it - in the terms in which it was

expressed in Reg v Guerin and in the terms in which

trust - - -

DAWSON J:  I find it very difficult, Mr Castan. What you

are saying is that, in effect, there is a fiduciary

duty not to defeat a defeasible native title.	But
after all, even if that were so, if you say the

title when you are talking about the land - is held	land - and you are not talking about the native	in trust, the equitable interests of the native
inhabitants would be no different whether the title
was defeated or not.

MR CASTAN:  Your Honour has characterized the interest as a

defeasible title but it is - - -

DAWSON J: Well, I thought you said it was, that if the

Crown chose to end it by a Crown grant that was so.

MR CASTAN:  But that does not mean it is a defeasible title.

Your Honour used that before the luncheon adjournment.

Mabo 191 29/5/91

DAWSON J: Perhaps it is not the best choice of words, but

that the Crown can put an end to the native title?

MR CASTAN:  Only because there is a statutory provision that

enables it to do so, I may so with respect, and
that is why the term or the phrase - one has to be

careful with the term, because we say - we would

resist the notion of the defeasible title because

we say it is not defeasible, it is capable of being

extinguished by clear and plain legislation or

conduct taken pursuant thereto.

DAWSON J: All right. If the Crown chose to put an end to

the native title, the land remaining with the

Crown, the fiduciary duty would be the same and you

could have no complaint. So, it cannot be a trust,

in the sense that you put it, to preserve the

native title.

MR CASTAN: In our respectful submission, it can. If what

Your Honour is putting to me is that we are

contending for both trust and fiduciary duty - - -

DAWSON J:	I am looking at the nature of the trust property.
MR CASTAN:	Yes, Your Honour.
DAWSON J:	And you say it is not the native title that is

the trust property, it is the land itself.

MR CASTAN: Perhaps we have shifted here. In responding to

His Honour Mr Justice Toohey I was· adverting to the

fact that the land was vested trustees in 1939 -

the land was vested in trustee so, there is a

trust. There may be then a qu. -ion about whether

it is enforceable under that doctrine, but there is

a trust created in 1939, that is beyond question,

we would respectfully submit, as a matter of

history - - -

DAWSON J: There must be a trust to deal with, if there is a

trust at all, to deal with the land in a particular

manner but it cannot be, as you seem to be

contending, a trust to preserve the native title.

MR CASTAN:  Well, we respectfully put it as both. We put it

that there is the statutory trust, that it is to

deal with the land in a particular manner; that the

duties that are imposed by reason of the history

and all of the fiduciary - the actions that have

been taken and the manner in which the people have

been dealt with is such as to impose that duty.

But I cannot put it any higher than that. That is

the way in which we put it. We rely on those

passages which are in Guerin which has dealt with

the matter and, in fact, in that court,

interestingly, the court split 4:3 on the question

Mabo 192 29/5/91

of trust with a minority of three justices,

including Justice Bertha Wilson taking the view

that there could be - it was a trust and with some

detailed analysis of why it amounted to a trust;

the majority there saying, "No, it could not amount
to a trust in the strict sense" for reasons which,

perhaps, are in accord with some of the matters

that have formed from the Court in the last short

period. But the majority did take the view that

fiduciary duty arose, looking at the whole of the

history and the relationship, and we rely on that

proposition and we rely on the proposition accepted

by the minority and we rely on the existence of the

statute and the statutory provisions. It is then a
question, of course, of accepting the statute, a
necessary step to take, as Your Honour has pointed
out in addressing questions to me, of the content

of the trust but the existence of the trust is, we

would respectfully submit, unquestioned, it having

been vested in trustees in 1939 and still vested in

trustees to this day.

BRENNAN J: I understand that your argument is that that

which was vested in trustees was held by them in

trust for the indigenous people for their rights

and interests in accordance with tradition.

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	Then that means that any rights that they must have had, antecedently to the vesting of that land
in trust, must have been superceded by the vesting?
MR CASTAN:	We would respectfully submit that they are not

superceded.

BRENNAN J:  How then can the same interest be held at once

at law and in equity?

MR CASTAN:  We would respectfully submit that the statutory

trust has been created and that that imposes

obligations to hold the land on the trust as

Your Honour has expressed them, but that, in our

respectful submission, is not inconsistent with the

continuance of the rights under the various heads

that we have categorized them.

BRENNAN J:  What do the trustees take?

MR CASTAN: Trustees are trustees of the land, Your Honour.

BRENNAN J:	Of what interests in the land?
MR CASTAN:	The trustees are trustees of the land - that is

to say, the land itself. Their obligation is not
to act in ways which act contrary to the interests

of the islander owners of interests in the land.

Mabo 193 29/5/91

BRENNAN J:  I do not understand what you mean by saying that

they are trustees of the land itself, as distinct

from being trustees of interests in land.

MR CASTAN: Well, perhaps that falls back to section 334 and

the other section of the Land Act. It provides for

vesting, as it is said, of land in trustees, and

this land was vested in trustees and the

appropriate proclamation is in the material that

has been provided to Your Honours. I do not think

we need go to it but, in our respectful submission,

what has occurred - - -

DEANE J: Well, I would be grateful if you could show us the

section because, while I have seen it, I cannot

remember it, or if you could just direct me where I

can find it.

MR CASTAN:  Yes, Your Honour. The relevant Act in 1939 was

the 1910 Act; it commences at page 80 of volume 8,

being the statutory materials of the plaintiffs,

and the relevant section is section 181, which is
to be found at page 89 of that volume. At page 89

Your Honours will see section 181:

The Governor in Council may, by Order in

Council and without issuing any deed of grant,

place any land reserved either temporarily or permanently, for any public purpose under the control of trustees; and may declare the style

or title of such trustees and the trusts of
the land.

Such trustees are hereinafter referred to as trustees of reserves.

Your Honour, if you will excuse me for one

moment, I will just pick up the 1939 - we just

cannot locate it, Your Honour. We know it is in

the material and we have in fact set it out

ourselves as a document that is in our materials
but we cannot lay our hands on it.	But we will

provide Your Honours with a reference to the

proclamation under section 181 of the 1910 Act,

which took place in 1939.

It may be of assistance to take Your Honours

to His Honour Mr Justice Moynihan's determination

in volume 2, in which His Honour made an express

finding about the matter.

McHUGH J:  I think it might be page 622, in volume 9, is it?

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

assistance. It is set out there at page 622. I

think it is the last document in our statutory

materials, and there is a reference there to page

Mabo 194 29/5/91

52 of volume 2. It is there set out as a document

which recites the Order in Council, simply:

His Excellency the Governor, with the

advice of the Executive Council, and in

pursuance and exercise of the authority vested
in him by the said Acts, doth order and it is
hereby ordered that the said reserve shall be

placed under the control of John William

Bleakley and Cornelius O'Leary as trustees -

The Secretary, and so on. The purpose is not

specified although section 181 provides that the

trusts of the land may be set out.	They were not
in fact set out.

McHUGH J: But the trust that is imposed on Bleakley and

O'Leary is personae designatae, is it not?

MR CASTAN:  Yes; Subsequently the legislation has changed

and there is a corporation which is currently the
designated trustee and the corporation - I think it

is the corporation of the Under Secretary of the

Department of Aboriginal and Islander Affairs - is

the actual trustee of these lands currently. I am

not sure that it is suggested that it, the

corporation which currently performs that task, acts

other than as an emanation of the Crown.

DEANE J:  Why would you accept, on your argument, that this

was land reserved either temporarily or permanently

for a public purpose?

MR CASTAN:	Because the 1912 reservation so dealt with it.
DEANE J:	The resident.

MR CASTAN: It was reserved.

DEANE J:  By what, though?

MR CASTAN:	By a 1912 proclamation.
DEANE J:	What was the statutory basis of the proclamation

to deal with this land in that way?

MR CASTAN: Pursuant to the same Act - - -

DAWSON J: Section 180.

MR CASTAN: - - - page 180. That is the previous page of the

same Act.

DEANE J:  But the proclamation would only be valid if the

land was reserved either temporarily or permanently

Mabo 195 29/5/91

for a public purpose and your whole argument is

that it was not public purpose land at all.

MR CASTAN:	No, the argument has not been that it is not public purpose land; it is argument that it is
land which, having been reserved for a public
purpose was, nevertheless, subject to interests
which we have contended for. Faced with the fact
of that action having been taken in 1912, we say that the fact of the reserve for a public purpose, namely, the benefit of Aborigines, did not
extinguish or otherwise affect our rights. Can I
take Your Honour -

DEANE J:  I follow that. I was just querying why, on your

argument, the land came within a statutory power to

deal with land reserved for public purposes.

MR CASTAN:  If the 1912 reserving which took place was

effective, then it did. Then in 1939 the land was

available to be the subject of a proclamation under

section 181.

DEANE J:  But the 1912 reserving was only valid, was it

not, if the land was already reserved for a public

purpose?

MR CASTAN:	No, the 1912 reserving purported to be a reserve for a public purpose; purported to stand on its
own.
DEANE J:	What, without any statutory basis?
MR CASTAN:	No, it was purported to rely on section 180, on

the previous page of the same volume.

DEANE J:  Do not let me hold you up, I will work it out

myself, Mr Castan.

MR CASTAN:  No, I am content to deal with it, Your Honour.

The 1912 reserving purported to be pursuant to

section 180 - - -

DEANE J:	I see.
MR CASTAN: -	which provides that:

The Governor in Council may, from time to

time, grant in trust, or by Order in Council

reserve from sale or lease, either temporarily

or permanently, any own land which, in the

opinion of the Governor in Council, is or may

be required for public purposes.

"Public purposes" are defined. Can I take

Your Honour, on the same Act, back to page 82 of

the same volume, where one sees:

Mabo 196 29/5/91

"Public Purposes" - Any of the following

objects or purposes -

the first is "Abattoirs", the second is "Aboriginal reserves". And, if I can take Your Honours back to

page 80 of the same volume, "Crown Land" is there

defined to be:

All land in Queensland, except land which is, for the time being -

(a) Lawfully granted or contracted to be

granted in fee-simple by the Crown; or

(b) Reserved for or dedicated to public

purposes; or

(c) Subject to any lease or license lawfully

granted by the Crown: Provided that land held

under an occupation license shall be deemed to

be Crown land.

So the phrase "Crown land", prior to any

reservation encompassed in this land because it

simply says "all land", and so the land was Crown

land because it was all land under this definition.

As Crown land it was then subject to the exercise
of a power under section 181 of 1912, purporting to

place the land, purporting to reserve it for any

public purpose. I am sorry, I have given

Your Honours the wrong section.

TOOHEY J: Reservation must take place under section 180.

MR CASTAN: Section 180, yes, I am sorry, Your Honour.

DEANE J: Well, then, in the context of the questions you

have been asked, do we not need to direct some

attention to this Act which, in its terms, if it

applies to this land, seems to empower the Crown

effectively to do what it wants to, by defining

public purposes and the like? Is there not an

immediate question, could it have been the

legislative intent that a general act such as this

should have applied to the land traditionally held

by the Murray Islanders?

MR CASTAN:  That question arises. The difficulty in it, we

would respectfully submit, that we have to confront

is that it is defined Crown land, which is the

definition for land which may be the subject of the

exercise of the various powers, is defined to be

all land in Queensland.	And so, at the outset the
Act purports to operate on all land.	And it is for

that reason that we have contended that the

ultimate interest of the Crown, while what we have

termed radical title for want of a better term,

Mabo 197 29/5/91

just picking it up from the authorities, is a term

that enables the Crown to deal in certain ways but

does not amount to an extinguishment of the

interest we have been contending for and that those

interests are not extinguished unless plainly
action is. taken pursuant to powers granted which

directly affect the specific land, but that the

reservation of the land for, as it was termed under

the relevant section, aboriginal reserves, did not

act in any way, did not amount to conduct in any

way affecting the interests we have been contending

for.

DEANE J: Except the definition of Crown land excludes land

subject to ·any lawful lease or licence.

MR CASTAN:  Yes.

DEANE J: But qualifies it by reference to an occupation

licence. Does that really fit in with your

contention that under the regime that existed,

subject only to somehow slotting in a radical

title, the Murray Islanders had far more than a

leasehold or a licence or a licensee interest?

MR CASTAN:  Yes, Your Honour. If one can take the position

pre-1912 -

DEANE J:  What I am putting is not against you.

MR CASTAN:  No, I understand that, Your Honour. We would

contend that pre-1912 there was a situation in

which those interests existed.

DEANE J: Well then, if that is so, is there not a question

of the threshold as to whether this Act picked up

the Murray Island land as, in effect, Crown land

with which anything could be done by proclamation

in terms of defining "public purpose"? Because it

is when you pass beyond that threshold that you get

into the sort of problems that have been put to

you. I am not suggesting it is not so, but it is a

step that I would need to look at rather personally

for myself.

MR CASTAN: Well, I would have to confess we have not come

at it from that viewpoint, but we would -

DEANE J: Well, the point has been raised which is probably

about all that could be said about it.

BRENNAN J:  Mr Castan, does "reserved" in the definition of

"Crown land" there mean reserved under the

antecedent legislation?

Mabo 198 29/5/91

MR CASTAN:  I am not certain of that, Your Honour, because

one would have to look at the transition provisions

dealing with the change. One would assume so.

BRENNAN J: It seems to me that if your argument is right,

that is, the first argument you have directed, and

even assuming that the Crown had a radical title,

whatever that may mean, the Crown had no power

prerogatively to alienate any of this land. It

required on your argument an express statutory

intervention.

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	So that the Crown land which existed, if it is

Crown land, before 1912 was not, in fact, available

for sale or disposition.

MR CASTAN:  I am sorry, I am not sure I followed the

last - - -

BRENNAN J: It was burdened by the Aboriginal title - - -

MR CASTAN:	Yes, quite, Your Honour.
BRENNAN J:	- - - and the Crown had no power of disposition

adversely to that title.

MR CASTAN:	Subject to the content of the pre-existing legislation, but yes.
BRENNAN J: Yes, subject to that.	I wonder whether

"reserved" does mean under the antecedent

legislation, because if there was no reservation

what was the situation?

MR CASTAN:  I should mention that there has been a finding

that the land had been reserved in 1882 - - -

BRENNAN J: Yes.

MR CASTAN:  - - - which just compounds the problem because

there is no detail of that reservation being able
to be located. But if we are to trace this back to

that reservation we have to then turn to the 1876

equivalent of this legislation. I might say it is

in substantially the same terms, that is to say, a

definition of Crown land, although the public

purpose is slightly different and it may be perhaps

relevant to take Your Honours to that since we are

dealing with this matter.

Can I take Your Honours to page 60 of the same

book, volume 8. Your Honours will there see a

definition in the - it is called the Alienation of

Crown Lands Act, 1876, I think, at that stage.

"Crown lands" are defined as:

Mabo 199 29/5/91

All lands vested in Her Majesty which are not dedicated to any public purpose and which are not for the time being subject to any deed of grant lease contract promise or engagement

made by or on behalf of Her Majesty and all

lands comprised in any pastoral lease which

are by law subject for the time being to

reservation selection or alienation.

Then, I take Your Honours over two pages to

page 62, section 6 of the 1876 Act towards the foot

of the page, provides:

The Governor in Council may from time to

time grant in trust or by proclamation reserve

either temporarily or permanently any Crown

lands which in his opinion are or may be

required for

and then it starts with -

quays landing places -

and the second-last line is:

or for the use or benefit of the aboriginal

inhabitants of the colony -

the wording is different because the classification in the 1910 Act is "aboriginal reserves"; the words

in the 1876 Act were:

for the use or benefit of the aboriginal

inhabitants.

BRENNAN J:	Does that include Murray Islanders in 1876?
MR CASTAN:	It did not in 1876 because in 1876 they were not

Aboriginal inhabitants. In 1879 the Crown Lands Act, subject to questions of power which we will

come to, presumably operated so as to include land

in Murray Island when the boundaries of Queensland,

as it said, were altered so as to include Murray

Island, and there is an underlying power question, which I was going to come to, about what the effect

Crown
of that was and whether one can treat the territory of Queensland, the colony as defined in

1876 under this Act, is then, so to speak,

automatically extending its reach in terms of these

definitions so as to encompass Murray Island.

That question I will come to, but for the present purposes Your Honours will see that the

power, the only power, which might have been

exercised in 1882 is the power under this section 6

of this 1876 Act and we say that in so far as that

Mabo 200 29/5/91

reserving took place, and in so far as it was
effective in relation to Murray Island, we say, as

we have indicated, that it did not affect the

interests that we have contended for.

There was a period, of course, on any view of

it, of three years from 1879 to 1882 when, clearly

enough, on no view was the land reserved where the

land had simply been annexed, assuming the
annexation was otherwise effective, and where

nothing had happened in relation to the land other than the visits that have been referred to in some

of the documents we have taken Your Honours to this

morning.

I do not know that I can take this much

further, at this stage, and I was going to take

Your Honours to the case of Corporation of the

Director of Aboriginal and Islander Advancement

v Peinkinna, (1978) 52 ALJR 286.

This case went up to the Privy Council in 1978

from the Full Court of the Supreme Court of

Queensland and it dealt with the situation at

Aurukun in Queensland and a very similar provision

to those which we have been referring to. It may

perhaps be most useful to take Your Honours to the headnote where the facts are most conveniently set out. It is difficult to isolate them from

Their Lordships judgment. It is expressed in the

headnote that:

The respondents were aboriginal residents of a reserve at Aurukun, Queensland, which reserve

had, under certain Orders-in-Council made

pursuant to State legislation ..... been set

apart as such and placed under the control of

the appellant designated as the trustee. The
appellant was a corporation sole constituted
by the Aboriginal and Torres Strait Islanders

Affairs Act 1965 to 1976 and continued in

existence by the Aborigines Act 1971-1975.

The appellant's name was changed to that of

"the Corporation ..... The first schedule to one
of the Orders-in-Council, namely that dated
24th February, 1972, described the public
purpose for which the reserve was set apart
as: - "Reserve for the Benefit of the

Aboriginal Inhabitants of the State, Aurukun."

By ss. 29 and 30 of the Act of 1971, it was

provided in effect that the trustee of a

reserve for aborigines to whom application was

made for a permit to enter on a reserve for

any purpose of prospecting or mining might

enter into and require the applicant and any

other person to enter into such

agreement ..... the appellant, purporting to act

Mabo 201 29/5/91

as trustee for the reserve, entered into an

access agreement with three mining

companies ..... that approval would be given to

the grant to the companies by the Crown of a

special bauxite mining lease, and that they

would be given permission to enter the reserve

for the purpose of their mining operations. One of the agreed terms was that, not later than the end of the third year ..... the

companies would "pay to the Director on behalf

of Aborigines" three per cent of the net

profits. The access agreement was closely

related to a franchise agreement entered into

by the companies with the State of

Queensland ..... The Aurukun Associates

Agreement Act 1975 was passed, authorizing the

State of Queensland to enter into such

franchise agreement -

and they were linked together.	Now, then if we
come to the next paragraph:

The respondents, suing on behalf of themselves and all other aboriginal residents of the reserve, brought an action in the Supreme

Court of Queensland against the appellant for
declaratory and injunctive relief, claiming in

effect that the appellant was the trustee of a public charitable trust for the benefit of the aborigines resident on the reserve, and that

the appellant by entering into the access

agreement under which a share. of profits would

be received "on behalf of Aborigines" without limitation had committed a breach of trust in respect to the alleged beneficiaries under the

trust, namely the aborigines resident in the
reserve. An injunction was sought to restrain

the appellant from paying moneys received into

a fund known as the "Aborigines Welfare Fund".

And then that was demurred, there was a demurrer,

and it went to the Judicial Committee.

Now, the question was raised in terms of

legislation which is initially the 1956-1976 Act,

which is the same Act that applies to Torres Strait

Islands, and then in relation to the 1971 Act, that

is a similar question. Ultimately, the way in

which it is dealt with by the Privy Council appears

at page 290 because, in the second column at about

letter C, Their Lordships conclude:

the fund is to be maintained for the self-same

purpose as that for which s. 30(2) of the

Aborigines Act 1971 authorizes the Director to participate in the profits of a mining

Mabo 202 29/5/91

venture - the benefit of aborigines ..... ss. 29

and 30 ..... constitute a complete answer.

And they go on:

It is, accordingly, unnecessary for their

Lordships to express an opinion as to whether

the Director, as trustee of the reserve, is

the trustee of a trust enforceable in equity.

Whether he is or not, he can rely on the two

sections to establish his demurrer to the

statement of claim -

there seems then to be a misprint in this report,

but they go· on that:

they think it right to make some observations

on the other matters raised in argument -

and there are a couple of lines seem to have got

lost but they go on:

If any trust enforceable in equity exists, it

is, as Mr McPherson for the respondents

recognized, a public charitable trust arising

by reason of the Land Acts and the Orders in

Council ..... Although the statement of claim is not explicit as to the nature of the trust

alleged, Mr McPherson has made it clear that

the respondents allege a public charitable

trust, with the Director as trustee, for the

benefit of the aborigines resident on the

reserve. Their Lordships will assume, without deciding, that the Orders in Council reserving

and setting apart the lands at Aurukun for the

public purpose of an aboriginal reserve and
appointing the Director as trustee of the

reserve create a public charitable trust.

Then:

The relevant sections of the Land Act

1962-1975 (re-enacting ..... earlier

provisions) are s.334 which empowers the

Governor in Council to reserve Crown land for

a public purpose and section 5 which defines

"Crown land" , "public purposes " , and "a

reserve". Upon the assumption that a trust

exists, the critical question becomes: for

what class of persons does it exist? This is

a question of construction of the relevant

Orders in Council. The 1972 Order ..... was in

force at the date of the Director's Agreement.

It contains two schedules. The first sets

out ..... the public purpose for which the

scheduled land is reserved. The purpose is

Mabo 203 29/5/91

described ..... "Reserve for the Benefit of the

Aboriginal Inhabitants of the State, Aurukun."

The second schedule is a description of the

land reserved. Mr. McPherson submits that, upon the true construction of ..... the class for whose benefit the public charitable trust

is created is that of the aborigines of the

State resident on the Aurukun reserve. Their

Lordships reject this construction. It

appears to them clear that the word "Aurukun"

is introduced ..... solely as the name of the
reserve, linking the reserve mentioned in the

schedule with the land described in the

schedule and for no other purpose. The public

purpose for which the reserve is created is stated in the words "for the Benefit of the Aboriginal Inhabitants of the State."

If, therefore, it be assumed that a

public charitable trust with the Director as

trustee arises under the Land Act, it is a

trust for the benefit of the aboriginal

inhabitants of the State.

And therefore the mining royalties go into the

general fund and not for the benefit of the

Aborigines at Aurukun.

Now, all we say is that there is at least that

decision on these sorts of provisions.

Their Lordships have declined to finally determine

whether it amounts to public charitable trust

enforceable in equity. They have made the

assumption that it might be; they then determined

that as a matter of pure construction the

particular residents at Aurukun could not claim the

benefit of the funds; that the funds, of course, go
into the fund for the benefit of Aborigines
generally. To that extent it is the only decision

we know of that bears on this question of trustees

appointed of a reserve for public purposes under
this Queensland land legislation.	We do not

suggest it provides the answers to some of the
questions that have been raised, but it, perhaps,

bear on them.

There is one other reference concerning this

question of a trustee, to which I should take

Your Honours. There is an explicit reference to

the fact that there is a trusteeship created in one

of the pronouncements by the minister and we do not

suggest this is determinative, but it is

appropriate, we would respectfully submit, to draw

Your Honours' attention to it in considering this
question. It specifically appears at page 35 of

volume 1 of our submissions. It is part of

something we looked at earlier, but I do not think

Mabo 204 29/5/91

I drew attention to it. It is part of an answer in

the Queensland Parliament of Mr Pizzey, the

Minister in 1965 who, at page 35 of volume 1

expressly stated, after setting out the set-up on

the Islands, the Island Court, the Island Council,

the appeals, and then says:

The district officer, in his administrative

capacity, has extended to him the powers of a

trustee and in practice these powers are

exercised in a counselling capacity, rather

than an arbitrary or restrictive one.

In so far as it is relevant to consider whether the

Government has agreed to constitute itself a

trustee or those acting on behalf of the Crown,

that may bear upon the question, the relevant

minister acknowledging the existence of the trust

and expressing views as to the manner in which the

trusteeship is being conducted.

Can I move on, Your Honours, to the question

of section 109 of the Constitution and the
operation -

DEANE J: Mr Castan, before you go from this: the 1882

reservation that has been found as reserved for the

native inhabitants. That is so, is it not?

MR CASTAN:	Yes, Your Honour, though I hesitate, I am not sure of the exact terminology.
DEANE J:	I was reading from the summary.
MR CASTAN:	I am sorry, Your Honour.

DEANE J: Can you just fill me in: what was the relevant statutory power, if there was one, to which that 1882 reservation for the native inhabitants can be

related?

MR CASTAN:  The only possible one is the 1876 Act to which I

have already taken Your Honour.

DEANE J:  You need not take us back.

MR CASTAN: There is no other that, we would submit, could

possibly bear on it.

DEANE J: Can I just raise this with you: if you be right

as to your primary argument and if all that was

involved, additional to your primary argument, was

that reservation for the native inhabitants, how do

you get this under the Land Act 1910 as Crown land?

MR CASTAN: Yes, I follow Your Honour's question. It would

follow that it would not be because - ·_ -

Mabo 205 29/5/91

DEANE J: True it is it says, "lease or licence" - I mean,

we start with it is not an occupation lease which

is defined as something under Part III of this very

Act. The definition of Crown land excludes:

any lease or license lawfully granted by the

Crown. You could read that, of course, in terms of a

technical grant, I suppose, but would you want to

read it that way?

MR CASTAN:  We would not, we would contend that it excludes

land which is subject to any interest of that kind.

DEANE J: So, you would not press an argument, for your

part, that this had ever come under the Land Act?

MR CASTAN:  No, we would not, Your Honour.

BRENNAN J: But if it is not under the Land Act, and if your

first argument is right, you do not need the

argument on either fiduciary duty or trusteeship?

MR CASTAN: That is true, Your Honour, and one could say if

the argument under fiduciary trusteeship is

entirely given its full force and effect, one might

not need some of the others either. It is true,

Your Honour, it is in that sense a true alternative

the trusteeship.

DEANE J: Except if this notion of radical title coming in

is accepted and title is relevantly seen in the

Crown, you may well need a constructive trust by way of relief.

MR CASTAN:  Yes, depending on what that title amounts to.

It may be truly nothing more than a bare title,

carrying nothing more in it than the ultimate, as

we might term it, feudal interest but no more. In

be that the title in the sense of any land subject that sense, if I might just advert back, it might	to a Crown grant in which there is a fee simple
owner one might say that the Crown holds title or
the Crown is the ultimate owner. It is sometimes expressed that way, but we speak of that knowing that we are applying a feudal fiction to the
ownership of fee simple interests, otherwise subject to total ownership by the fee simple owner.

BRENNAN J:  Mr Castan, I do not know whether it will be

relevant at any stage of your argument, but thus far
in relation to the radical title, you have taken us

to some passages dealing with acquisitions by way of

discovery and settlement, and acquisitions by way of

conquest. I do not know that there has been any

case that you have referred us to in which the

Mabo 206 29/5/91

effect of annexation, otherwise and by those

methods, has had any effect on title.

MR CASTAN:  There seem not to be, Your Honour. I cannot

recollect that there are any that dealt with

annexation by other methods and then analysed it.	I
am not sure that the question has been dealt with.

BRENNAN J:  Can I ask whether or not, in the notion of

radical title which you have been thus far prepared

to accept, you find any distinction between it and

the kind of title which, in the United States, was

dealt with in McIntosh?

MR CASTAN:  The kind of title dealt with in McIntosh appears

to have been dealt with in that case as a title

carrying more than we would contend for.

The radical title we contend for is the ultimate feudal title that is owned ultimately by

the Crown in respect of any land that has already

been the subject of a fee simple grant. That is all

we mean by radical title.

BRENNAN J: In other words, inconsistent with the land

forming any part of a royal domain?

MR CASTAN: No, no, not inconsistent with it. Well, I

hesitate then again when Your Honour uses the term

"royal domain" -

BRENNAN J: In possession of the Crown.

MR CASTAN:  It is inconsistent with it being a royal domain

in the possession of the Crown in the sense in

which that term is used, but it is not inconsistent

with it being within the sovereignty of the Crown

and with the application of what we might call the feudal theory of tenure, so that the interest that

is held, that continues - the islanders' interest -

is held ultimately of the Crown.	But the Crown is
merely the ultimate fictionally - we are there

again looking at the notion of the fictional grant.

We do not contend ultimately for the co- existence of allodial titles alongside feudal

titles, but we say that the ultimate radical title,

as we term it, is simply that ultimate residue that

is left, there being the whole of the interest

being taken up by the islander owners, but with the capacity to extinguish in the ways we have

specified.

BRENNAN J:  And is the existence of a radical title in the

Crown necessary to any part of your argument?

Mabo	207	29/5/91
MR CASTAN:	No, it is not, Your Honour.	It is not an

essential component of the argument. We have

picked up on the way in which the matters have been

expressed, particularly in the Canadian cases, and

that is how it is put there. But it is not an

essential component of the way in which we put it.

DEANE J:  In one of the Privy Council cases Their Lordships

refer to radical title being in one of, I think it

was, the Nigerian tribes, which I had some trouble

with.

MR CASTAN:  I do not recollect the reference. I am sorry,

Your Honour, I cannot assist. We will, perhaps,

have a look·at it overnight, Your Honour.

DEANE J: There is no real enlightenment given. It just

says that radical title to the land was in one tribe

and another tribe had no title at all, even though

they had apparently been honoured.

MR CASTAN:  Yes, well that is, as Your Honour says, perhaps

of little assistance. Your Honours, if I may turn

to section 109 of the Constitution. We have set out at pages 1015 and onwards for 15 or so pages our contentions in relation to this matter. Part

of those contentions include a summary, which

commences at page 1023. It is in volume 5, Your

Honours, of our submissions. Part of that chapter

- which we called chapter 9 - commencing at page

1015, includes a schedule, as we have termed it,

from page 1023 onwards, describing the way in which

the legislation, as it is now constructed, provides

for the change that was the alteration in

legislation that was proposed which gave rise to

these proceedings, namely, the introduction of the

scheme for deeds of grant in trust.

What is set out there is a summary of some of

the provisions of the current legislation which are

now the operative provisions which will give rise

to the scheme. The first step, as expressed there,

is the rescission of the Order in Council -

assuming it has been effective, reserving the Crown

land.

GAUDRON J:  What did happen, Mr Castan, to the 1882

reservation? Has it been rescinded? Is there a

finding - - -

MR CASTAN:  No, there is no suggestion of it having been

rescinded or of having been dealt with or referred

to.	What we have is a finding that it occurred but
there is no material available.	The document

itself was unable to be located, as we understand

it, by the researchers for the Crown. There was no

Mabo 208 29/5/91

direct evidence of it having taken place but

His Honour did make the finding that it had

occurred. So, we are not able to take Your Honours

to the document or to the basis of it or any other

documentation. Nor is there any reference to it in

relation to the 1912 reservation because, on one

view, of course, the 1912 reservation was

ineffectual if the 1882 reservation was effective.

We are left with no other information, I regret to say, Your Honour.

GAUDRON J: Well, when you speak there of a rescission on

the findings made does that made a rescission of

both reservations, assuming the 1912 one to have
been effective? Is there any basis for a

rescission of the 1882 one?

MR CASTAN: If it was effective - - -

GAUDRON J: That Act has gone, has it not?

MR CASTAN:  The Act has gone. There would seem to be no

basis. The only basis would be that if it was

still effective and if the 1912 reservation were

not effective because it had nothing to operate on
because the 1882 reservation were effective, then

the question would arise whether the 1882

reservation and the 1876 Act under which it

purported to take place has continued in operation,
or if there are transitional provisions which then

operate successively as these Acts have been

changed over the intervening years. I am afraid I

cannot take Your Honour to the particular

transitional provisions. We have not endeavoured

to isolate each of those. But in order for any

rescision to be effective it would be necessary to

isolate those.	We may be able to do that,
Your Honour.

GAUDRON J:  I do not know that anything turns on it at this

stage, does it?

MR CASTAN:	No, but certainly all we put and the way the question is posed in the questions reserved for
this Court is in terms of "Would a grant of a deed
of grant in trust have the effect of extinguishing,
impairing the interests?"  So the question is
posed for Your Honours in terms that such a grant
is proposed, and in that way the matters before
this Court are in terms of that questions.

Section 334(4) of the current legislation -

and I can give Your Honours some references as we

run through these to the page of our volume 8 of

legislation where these sections appear - is

referred to in step A - that is at page 117 of our

volume 8. Then what would be necessary as a grant

Mabo 209 29/5/91

in trust by the Governor-in-Council for the public
purpose, which is the new public purpose of benefit

of Aboriginal and Islander inhabitants provided in

Land Act, section 334(1) - that is at page 117

also. And if I could insert there - "and pursuant

to section 5 of that Act as amended" at page 106.

"To the Murray Island Council constituted as a body

corporate pursuant to the Community Services Act

1984 - section 15. That is at page 160 of the same

volume.

Then there would be a requirement of a

determination by the Minister as to whether the

land would be excepted from an obligation to pay

costs of surveying which is a minor administrative

matter. That section is at page 117 of the Act.

Then the incidents, or what happens as a

result of the implementation of that scheme -

include the following which are described as

impediments on title. There is then a statutory

authority in the Governor-in-Council to exclude

from a grant in trust - "improvements to the

property of the Crown other than buildings or

structures provided for the residence of Islander

inhabitants authorized to reside within the

boundaries of land, together with the land on which

they stand and a reasonable area of land an

environs and a means of ingress and egress." That

is at section 334C(a).	The section was omitted.
That is at page 120 of the same volume.	And (b):

land comprising aerodromes, landing strips,

ports, roads -

et cetera. That is section 334(C)(b), also at

page 120 of our statutory material in volume 8.

Then there is a statutory authority in the

Governor-in-Council as a result of the deed of

grant in trust to reserve from the grant a

specified but unidentified area for unspecified

public purposes - that is section 334D which is at
page 120 - and such land may be resumed without

compensation. That is provided in the Land Act,

section 358, as set out there, and that is at

pages 141 to 142 of the same statute.

There is then a power in the minister to

direct the manner of description of the land

granted and the land excluded or reserved from the

grant. That is section 334E, that is at page 120.

And a duty in the trustees to preserve the improvements on the land granted unless otherwise

determined. That is at section 338A, that is at

page 124.

Mabo 210 29/5/91

Then there is a statutory imposition of the

following terms upon any lease granted by the

trustees. That is a reference to the Land Act and

that should read section 344. I am now at item 5

on page 1025. That is section 344, at page 130 of

volume 8. And then there are these restrictions:

not exceeding 75 years, no covenant for renewal,

unless the minister determines rent to be highest

annual rent reasonably obtained, lessee to destroy

noxious plants, hold the land, to be used for the

public purpose, and to contain a covenant that

trustees may terminate the lease upon the failure

of the lessee to observe or perform a covenant or

condition.

There is then a statutory requirement that the

minister approve the terms and conditions of the

lease granted by the trustees and endorse his

approval upon the lease in order to give it

validity. That is at section 345, item 6 on page

1026, page 130 of volume 8. Item 7 is a statutory

prohibition upon a lessee transferring, mortgaging

or subletting a lease without the written approval
of the minister and the trustees. That should read

Land Act section 347 subsection (1). That is at

page 130.

Then, interestingly, a statutory power in the

minister to cancel the lease for breach of the

lease or where it is desirable in the public

interest without any right to compensation and

unless permitted by the minister to remove the

lessee, improvements effected by the lessee become

the property of the trustees. That is Land Act

section 348, at page 131. The lessee may then be

removed from the land as a trespasser pursuant to

section 372, which appears at page 148 of the

volume, and section 373 which appears at page 149

of the volume.

There is then a statutory prohibition on the

trustees permitting occupation by any person of the

land granted for any purpose inconsistent with the

purpose of the grant. And (b) for any period

longer than one month not including a person

occupying an improvement on land. That is

section 350, page 131-132. And then trust land may

only be mortgaged by the trust - I should perhaps

insert there, Your Honours, before coming to item

10, that it is necessary also to direct attention,

I think this had not been picked up when this was

being assembled, section 21 of the Amendment Act of

1982, that is to say the actual transitional Act,

provided that a person may continue in occupation

of a building until the trustee determines

otherwise. So there was a provision for continued

Mabo 211 29/5/91

occupation at the will of the trustee, and that is

at page 155 of the same volume.

And trustee may only be mortgaged by the trustees

for such purposes as the Governor in Council may

approve and may upon terms approve by Order in

Council - the reference there should be section 351

of the Land Act, and that appears at page 132.

In 11:

The Governor in Council may, by Order in

Council, declare that land granted in

trust ..... shall revert to the Crown if he is

authorized to do so by Act of Parliament -

specifically relating to the land - that is the

Land Act, section 353A at pages 136-7. Now, we go

on in point 12 to make the point that a 1985 Act

has been passed which is just such an Act as an Act

which is contemplated in point 11, that is, an Act

providing that the land shall revert to the Crown.

The 1985 Act, that appears from pages 173 onwards in our book. Section 5, which appears on the top

of page 1028 now, section 5 which appears at

page 175 of our book of statutes, provides for a

qualified person being:

an Islander who is authorized ..... to enter

upon, be and reside in a trust area as a

member of the community of Islanders

resident ..... and who, in the opinion of the

Island Council in which the trust area is vested or under whose control the trust area

is, is a resident of that community -

Such a qualified person, that is section 4 which

appears at page 174	f the Act.
Now, a:

person who has attained the age of 18 years

and who desires a tenure of land that is

situated in a trust area may -

apply -

to a Trustee Council for its approval that a

lease be granted to ..... land -

not occupied by the Crown, not occupied by another

qualified person, not exceeding one hectare in

perpetuity and of any other area for such other

tenure as the minister regards as appropriate.

That is all in section 5 which is at page 175. Then the trustee, after giving public notice,

may determine it on the basis of specific factors

Mabo 212 29/5/91

relating to security of tenure, social and economic

development, the interests of the community.

Sections 6 to 9: they appear at pages 175 to 176 of

our book. Upon the approval being given by the

Council the land, the subject of the application is

divested from the Council and becomes Crown land of the land identified in the application. That is
for the purpose of the issue of the lease and the

sections 9(2) and section 10, page 176. Then the

Act provides for the terms of such leases including

rights of ingress, egress, purchase, duties,
assessment of rents, restriction on alienating

interests in the lease, except to a qualified

person, forfeiture for default and non-occupation

for two years or non-utilization for two years

following 12 months notice - and those are

sections 14 to 23 of the 1985 legislation.	They
are at pages 177 to 179 of the book.

And to be in a trust area there are provisions

in the Community Services (Torres Strait) Act 1984,

section 64, which is at page 168 of the book,

authorizes an Islander who is a member of the

community to enter upon, be and reside in the area.

That the Island Council can make by-laws not

inconsistent with the Community Services Act, which

exclude or restrict persons from entering - that is

section 66, to be found at page 8.

Now, that is the scheme, Your Honours. If I

can take Your Honours back to page 1015. The way

we have summarized it, in paragraph 1 of our

submissions, is that:

The implementation of the Deeds of Grant in

Trust Scheme will involve the vesting of
control of lands on the Murray Islands in the

Island Council. That Council will then have

power to decide who may live in areas of land

on the Island, without regard to the

traditional rights and interest of the

Plaintiffs and other islanders.

And we have summarized that:

In order for the D.O.G.I.T. Scheme to be

implemented ..... the following would have to

occur:

(a) The Order in Council establishing the

Reserve must be rescinded:

(b) A grant in trust would then be made to an

Island Council.

Under -

Mabo 213 29/5/91

the legislative scheme ..... continued

occupation ..... would be dependent upon them

being authorised so to do by Statute, and the

Island Council would have statutory power:

(a)	To grant leases of all land .....
(b)	To approve leases being granted by the

Government ..... following the necessary

land being divested from the Council -

and we have referred to the schedule. Now, we

respectfully submit that that proposal is a

proposal that, if implemented, would operate, could
be given effect to so as to override the interests

of the plaintiffs so as to put them out of their

lands so as to make them persons not entitled to

continue to occupy their lands. We submit, in

paragraph 3 that that is in breach of section 9 of

the Racial Discrimination Act.

Your Honours will recollect that in a case,

which I might term Mabo (No 1) in 1988, it was held

that there was no breach in the then extinguishing

Act - that there was no breach of section 9. But

we contend that this scheme does involve a breach

of section 9 because in order for this scheme to

take effect there must be relevant steps taken.	It
is common ground here that what has happened in

fact is that these deeds of grant in trust have, in fact, been granted in respect of all of the islands in the Torres Strait in which there are communities

living except Murray Island. Steps have been taken
but it has not been implemented in this case,

obviously - not yet been implemented.

Now, we submit that these provisions, which we

have taken Your Honours to in summary and by

assembling them in this summary rather than going

to the actual provisions, amount to a law which

permits or directs the relevant persons who would

carry out the steps of degazettal to:

II

do an Act -

in terms of section 9

involving a distinction, exclusion,

restriction or preference based on race .....

which has the purpose of impairing the

recognition ..... on an equal footing -

of -

The right to own property alone as well as in

association with others -

Mabo 214 29/5/91

and -

The right to inherit -

referred to in the schedule to the Act being the

international convention, and that that would be in

breach of section 9 because, as we put it in
paragraph 4:

involving such a "distinction ..... is the conduct involving the de-gazettal of the

Reserve, the preparation of the land

surveys ..... the granting of the D.O.G.I.T. to

the Island Council, and any grants of

"interest" -

then the leases -

by the Council which then prevail over or are

held in substitution for, the traditional

interests of the Plaintiffs.

And we say this would amount to a distinction or

exclusion on race, this is expressed in paragraph 5

because it:

would have the effect of nullifying or

impairing the interests -

which we have contended for earlier here of Murray

Islanders whilst not providing for an equivalent -

nullifying or impairing interests in land of
non-islanders. It would not amount to such

conduct -

being a breach of section 9 if the conduct was so

constructed, the legislation was so constructed, as

to contemplate imposing a similar scheme on all

persons having interest in land in Queensland.

Alternatively it would not amount to such

conduct -

as we put in the second part of paragraph 5 -

if it had the effect of impairing the
interests of all Queenslanders in respect of

land in a part of Queensland, in which part there were not only, or substantially only,

persons of one race.

In other words, we say, that one looks to effect and because section 9 itself speaks of purpose or

effect, where we are dealing with an island, where

in substance, the persons affected are all of a

Mabo 215 29/5/91

particular race, then the effect of it is to make

that distinction on the grounds of race.

We refer in paragraph 6 to the fact that the

interest is the interest being the right to own

property and the right to inherit, and Your Honour

Mr Justice Dawson had addressed to me a question

how a defeasible interest could be the subject of,

or could amount to a breach of this kind. But, in

our respectful submission, to term the interest a

defeasible interest is to assume that which we

would respectfully submit legislation says one

cannot assume. In other words, every interest in

land is capable of being impaired or extinguished.

A fee simple interest is extinguishable by

appropriate legislation. The fact that the

interest in land of the kind we have been

contending for is extinguishable by clear and plain

legislation or conduct pursuant thereto is, in our

respectful submission, no different, for the

purpose of analysing this Act and its operation,
than the fact that a fee simple interest of a

person who is not an islander or of land anywhere

in Queensland might be if such legislation were

passed, the subject of legislation which might
provide that it be extinguished. In that sense,

every interest is a defeasible interest.

DAWSON J:  What I had in mind is that this right is a

different type of right to the rights to property

that other people have. I mean, every Murray

Islander has the same right as any other

Queenslander, presumably, to own property - - -

MR CASTAN:	Yes.
DAWSON:	- - - under the relevant legislation, but this is something that is sui generis and one of the
characteristics is that if the Crown in this case
authorizes a grant in trust which is made, then
what disappears disappears, but one cannot say that
it is destroying the enjoyment or exercising equal
footing of a human right.

MR CASTAN: Well, the way we put it is that it is right to

own property and to inherit that - - -

DAWSON J: That is a logical glide. Everyone has a right to

own property. This is a particular right which

inheres only in, for our purposes, Murray

Islanders.

MR CASTAN:  Yes, and the way in which we put it, we would

respectfully submit, is that if that particular

kind of property is dealt with by legislation which

provides for its extinguishrnent, but the property

Mabo 216 29/5/91

of others is not, notwithstanding that the property

of others is different -

DAWSON J: Yes, that is what I do not understand. Murray

Islanders are free to own land in the same way as

everyone else in Queensland is.

MR CASTAN:  Of course, and many do, in Townsville and other

places, but in so far as we are concerned with

Murray Island and the community that is there and

the interests that are held there, that particular

interest is subject to this impairment: no such

impairment is imposed on those - and there may be

other - - -

DAWSON J: That is what I do not understand. What you

acquire here is something that other people do not

have.

MR CASTAN: Precisely, Your Honour, and there may be - - -

DAWSON J:	And that being so, since the whole basis of discrimination is the comparison of one with the
other, you do not get discrimination. In other
words, there is no basis of comparison here.
MR CASTAN:	Yes, and we would respectfully respond by

submitting that the Act does not require that there

be precisely the same interests that are treated in

a discriminatory way, one as between the other. If

there be, let it be assumed, some customary right
that might be exercised and recognised perhaps

appropriately, and well established by persons of Afghan descent in parts of the Northern Territory

coming down from more than 100 years ago, if those

rights were extinguished in some way, impaired in

some way, but no one else's rights were

extinguished, notwithstanding there was no one else

with those kinds of rights of a particular kind, in

our respectful submission the legislation would be

discriminatory.

DAWSON J: Well, I find difficulty with that.

MR CASTAN: Yes. Perhaps to hark back, we then, in

paragraph 7, put the basis on which we rely further

on section 10. The way in which it is put is that

by reason of the provisions of the laws we have

referred to:

persons of a particular race ..... do not enjoy

a right that is enjoyed by persons of another

race ..... or enjoy a right to a more limited

extent ..... in breach of section 10.

The way in which that is put is that the provisions

of the laws providing for these particular kinds of

Mabo 217 29/5/91

grants provide that the reserves may be degazetted,

the traditional rights impaired or extinguished.

Now, persons who are not Torres Strait Islanders

and who have different kinds of interests, but

those persons are entitled to enjoy their

interests, whatever their nature or kind,

unaffected by this possible impairment, while those

of this race are denied the enjoyment of the right

to continue with that interest with the same

freedom from impairment.

So the islanders do not enjoy the right of

ownership of their particular kind of interest in

the same way that persons of other races enjoy

their particular - - -

DAWSON J: Well, you see, that I understand, but it seems to

me your argument falls short of that. If you say, "Well, look, this is the manner in which Islanders

own property. It's a different system but,

nevertheless, this is the basis on which they own

property as compared with other Queenslanders who

own property in fee simple or for lesser interests

and, therefore, depriving these people of the right

to own property in the way in which they do is

discriminating against them because whilst the

right isn't exactly the same, it is the equivalent

of taking from them the right to own property.",

but I find that difficult when, in fact, they have

exactly the same right to own property as everyone

else in Queensland.

MR CASTAN: 

They do have the right to own other property,

but it is not necessary for the law to operate in a
way that extinguishes or impairs the whole of all
of their rights because it is true they are still
permitted to own some other property but they are

not permitted to continue to own this particular

kind of property.  The fact that they can continue

to own - in other words, we would respectfully

submit -

DAWSON J: Let me say it this way: that the law is not a

law - or at least the Racial Discrimination Act is

not an Act against compulsory acquisition - not a

law against compulsory acquisition from particular

people, not even a law against compulsory

acquisition of people who happen to be of a

particular race, and that is so where, in fact,

what is being acquired no one else has.

MR CASTAN: In our respectful submission, it is a law

against compulsory acquisition which discriminates

on the basis that it compulsorily acquires that

which only persons of a particular race have,

notwithstanding that it may permit persons of that

particular race to continue to do something else

Mabo 218 29/5/91

and we pick up on the word "effect" as the relevant

criterion here. One looks to the effect and one

can turn it around and in paragraph 9 we have

tested this by turning it around and one could

argue that the effect of the deed of grant

legislation is that Islanders have a right - if one

could call it that - for the potential receipt of

the deed and to interests under it, while

non-Islanders and non-Aborigines are denied such a

right so the non-Islanders are the persons who do

not enjoy it.

DAWSON J: 

On the basis of section 10, you would convert the

native title into a full fee simple because you
could say the right which the Islanders have to own
property is a lesser right than other people have

and, therefore, that right must be expanded to

eliminate the discrimination under section 110.

MR CASTAN: 

No, all that we would say about it

DAWSON J: But, that is the logical conclusion from the

argument.

MR CASTAN:  Assuming that it sits as a lesser right then, in

our respectful submission, it could not be

implemented and Gerhady v Brown makes the point

that it could not be implemented or enacted as such

a lesser right without breaching the Racial

Discrimination Act or otherwise being saved as a

special measure, but Your Honour's proposition, in

a sense, is one that we would concur with, if I

have understood it properly, in the sense that it

is discriminatory against non-Islanders for
legislation which - let us assume, let us posit

legislation which gave statutory effect to the

rights we have been claiming. If such legislation
were passed it would appear that such legislation

would breach the Racial Discrimination Act because

it would be giving these rights to people while not

giving equivalent right to others. It would be,

one might presume from the way in which this Court

has pronounced on it in Gerhady v Brown, saved as a

special -

DAWSON J:  You can look at it various ways, but one way of

looking at it is to say there is absolutely no

discrimination at all because the islanders are

merely being put in the same position as everyone

else henceforth, that they must acquire their land

from the Crown. In a sense they are being put in a

favoured position because they are being given the

benefit of the reservation. But put that on one
side, to eliminate their title is merely to put

them in exactly the same position as everyone else.

Mabo 219 29/5/91

MR CASTAN: 

We would respectfully submit that that is not the meaning and effect of section 10. Section 10

is designed to ensure that there are not the

impairment of rights, in this case the impairment
of the pre-existing right that we have contended

for.  And so we submit that it works so as to

amount to a discrimination where that right is

impaired, even if that right is unique or a lesser right than what we might call conventional rights,

and notwithstanding, as Your Honour has put it to

me, that they nevertheless have the right to

acquire property elsewhere or conventionally.

Then we submit that this particular paragraph

10, the particular legislation could not be saved
as a special measure. We would respectfully submit

that given the existence, assuming we have made out

that which we have contended for in one of its

variants, it cannot be classified as a special

measure because the interests which they would

obtain are lesser interests, as we would contend,

and do not ensure equal enjoyment, which is the

criterion under the convention for the saving of a

special measure.

Now, we have expressed this here and, with

respect, that perhaps is all one can put about the

way in which we contend that this legislation

works.	We say it has the negative effect, the
impairing effect, that we have contended for.	I
should just refer Your Honours to paragraph 13.	We
say that there are provisions in the Community
Services (Torres Strait) Act 1984 which directly conflict with section 10(2) of the Racial
Discrimination Act.	That should actually refer to
10(3).

It is intended to refer to provisions of the

Racial Discrimination Act which expressly provide

that where a law contains a provision authorizing

property owned by an Aboriginal or Torres Strait

Islander to be managed by another person, or

prevent or restrict an islander from terminating
management of property, not being a provision that
applies to persons generally without regard to
race, colour, national or ethnic origin, the

provision is deemed to be a provision in relation

to which subsection (1) applies.

I can take Your Honours briefly to some of those provisions referred to in paragraph 13 at

page 1021. It is sufficient to take Your Honours

to section 5(7), where Your Honours will see:

A management of property of a person that was undertaken when he was an assisted Islander

within the meaning of -

Mabo 220 29/5/91

the 1965 Act -

and that is maintained at the commencement of

this Act shall be deemed to be a management of

property under this Act and, unless it is

terminated in accordance with this Act, shall

be maintained in accordance with this Act.

And the 1965 Act is set out in our provisions

and I will not take Your Honours to it. It is in

the volume of statutes, but it provides for

management of property and we would respectfully

submit that where there is a provision that

authorizes property to be managed in relation to

Torres Strait Islanders on a reserve, that is a

provision which other Australians are not subject

to and, in our respectful submission, amounts to

breach of section 10(2) and if I can take

Your Honours to section - I may have to come back

to these provisions. I suspect that what I have

got is not the provision of the Act in its form in

which this was - yes, there has been some

amendments which are now encompassed in this 1990

reprint and I do not have immediately to hand the

correct section.

May I then proceed on to deal with chapter 10

and I will come back, if I may, very briefly in the

morning, to the operation of those sections, merely

to ensure that we have the correct references to
the sections which we challenge as in conflict with

section 10(3) of the Racial Discrimination Act.

Can I then -

DAWSON J:  Can I just bring you back to that for a moment.

It is something which troubles me and I am not sure

that I see the answer. If, for instance,

Aboriginal people have particular privileges which do not extend to others in the community, let us

say to hunt endangered species on their land, and

then that particular privilege is removed, would

you say that would fall within section 10? Because

that is the same argument, that they are merely

exercising a right to use their land in a

particular manner and to bring them back to the
level of other inhabitants of the State is

interfering with a right which they have, which

other inhabitants have, of using their land and

therefore it is discriminatory.

MR CASTAN:  Yes, in our respectful submission, the answer is

yes, it is discriminatory. Once persons have a

right, albeit a right which is a greater right than

others have, if they have that right and that right

is removed from them and no impairment or removal

of any rights affects persons generally, in our

respectful submission, it is discriminatory.

Mabo 221 29/5/91

DAWSON J: Well that means privileges are entrenched by the

Racial Discrimination Act forevermore while the Act remains.

MR CASTAN:  Yes, if they are privileges that are founded on

race and - - -

DAWSON J: Well, they very well might be, yes. And, in

fact, that is the assumption.

MR CASTAN:	On that assumption, yes, Your Honour.
BRENNAN J:	It seems a very curious result, does it not? I

mean, if you have got interests of the same kind,

one could understand the operation of the Act.

MR CASTAN:  It depends what the interest is, of course.

Your Honour addressed to me the matter - in general

the interests have to be of the kind that are

protected under the schedule. I am not sure

whether a right to hunt the example given would.

They have to be of the kind set out and the

particular rights are there specified in terms of

marriage and spouse and inherit and so on and so

forth, at page 20 and 21 of the -

DAWSON J:  A right to enjoy property, that is what it would

be. Is that there? It would be - - -

MR CASTAN:  If it amounts to a property right -

DAWSON J: Yes.

MR CASTAN:  - - - then, with respect, the answer would be

yes.

BRENNAN J: Well, that is a very broad description too.

MR· CASTAN:  Yes.

BRENNAN J:  If you put it a right to have security in the possession of your home and garden, it is a

different thing, is it not?

MR CASTAN:  Yes. The way in which it is expressed in the

convention is the right to own property alone, as

well as in association with others. A question may

arise, for instance, about the fishing right, to

take the example whether that amounted to a right

to property;	that could be very much central to
the issue.

DAWSON J: Well, it is a sort of usufructuary right, is it

not?

MR CASTAN: Possibly. There has been considerable debate

about whether that would amount to a property right

Mabo 222 29/5/91

of the relevant kind.	I see that it is 4.15,
Your Honour.	I will not be long tomorrow.

MASON CJ: Yes, very well. We will adjourn now, Mr Castan,

and resume at 10.15 tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 30 MAY 1991

Mabo 223 29/5/91