Mabo & Ors v The State of Queensland - [1988] HCATrans 40

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Brisbane No Bl2 of 1982
B e t w e e n -
EDDIE MABO and JAMES RICE (who bring this action on
their own behalf and on
behalf of the members of
their respective family
groups)

Plaintiffs

and
THE STATE OF QUEENSLAND

First Defendant

and
THE COMl-'IONWEALTH OF AUSTRALIA
Second Defendant

Case stated pursuant to
section 18 Judiciary Act

Mabo(7)
MASON CJ
WILSON J
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 17 MARCH 1988, AT 10.02 AM
(Continued from 16/3/88)
Copyright in the High Court of Australia

ClT 2/1/AC 175 17/3/88

MASON CJ: Yes, Mr Davies.
MR DAVIES: May it please the Court, before I continue could
I hand up to Your Honours an analysis which we have had prepared of the pleadings?

MASON c.r:- We are drowning in a sea of material here.

MR DAVIES:

I do not want to take Your Honours to that document. However, it may be of assistance not only in
determining what is in issue in the action but
also the lowest at which the statement of claim
of the plaintiffs can be put.
Your Honours have also been given some maps.
We do have some maps in slightly greater detail
of the area and it may be of some assistance to
Your Honours if I hand those up. I think they are
self-explanatory.
Your Honours, could I say something else about

that first document which I handed up to Your Honours,
the composite pleadings, they do not include any
reference to the particulars, or so-called particulars,
handed up by our learned friends yesterday and
the only thing I really want to say about that
is that it is correct to say that they were furnished
pursuant to an order requiring particulars but
that, when one looks at them, they are not in
truth particulars, they are evidence most of which
is disputed and I will come back to that a little
later when speaking to the so-called reports of
the so-called court.
Your Honours, there is just one other matter

which, before proceeding with our submissions in
the order in which we were yesterday, I would like
to return to. It is proba·bly really a question
of construction but it arises from the way in which
we really placed our primary submissions where
we made an assumption and where we talk about the

rights, the plaintiffs' rights, of course, they
are the rights which the plaintiff claims and,
perhaps, we should have added, "or any of them",
and the rights claimed, as Your Honours will have
seen in the pleadings, are rights of ownership
by custom, traditional native title and usufructuary
rights, defined, in a fashion, in paragraph 12 in the statement of claim but by no means in a
way in which one could determine precisely what
those rights are.
In the end the point we are really making

is the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mabo & Ors v The State of Queensland

Details

AGLC: Mabo & Ors v The State of Queensland [1988] HCATrans 40
Case: [1988] HCATrans 40
Decision Date

CaseChat Overview and Summary

The parties to this matter before the High Court of Australia were Eddie Mabo and James Rice, acting on behalf of their respective families, as plaintiffs, and the State of Queensland and the Commonwealth of Australia, as defendants. The dispute concerned the nature and extent of traditional native title and usufructuary rights claimed by the plaintiffs in relation to land. The case was presented to the court by way of a case stated pursuant to section 18 of the Judiciary Act.

The central legal issues before the court involved determining the precise content of the rights claimed by the plaintiffs, which were described as rights of ownership by custom and traditional native title. A significant question was whether these rights, as pleaded and potentially proven by evidence, were extinguished by the Queensland Coastal Islands Declaratory Act 1985. The court was also required to consider the legal effect of sections 30 and 40 of the Constitution Act of the colony of Queensland and whether they could be repealed by subsequent Acts of Parliament without adhering to specific manner or form requirements.

The court's reasoning, as indicated by the transcript, focused on the construction of the relevant legislation and the nature of the rights asserted. Counsel for the plaintiffs argued that the precise content of the native title rights was crucial in determining whether they were extinguished by the 1985 Act, suggesting that the question of extinguishment might ultimately be hypothetical depending on the evidence presented. The submissions also touched upon the power of the Queensland Parliament to repeal provisions of its Constitution Act, drawing a parallel with legislative action in New South Wales concerning similar matters.

Orders