Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth law prohibiting racial discrimination—Prohibition of acts involving a distinction based on race—Enjoyment of right by person of particular race not enjoyed by persons of another race—Ownership of property—Islands off coast of Queensland annexed to colony in 1879—State Act declaring islands upon annexation to have become waste lands of Crown—No compensation payable—Effect of State Act—Whether inconsistent with Commonwealth law—The Constitution (63 &64 Vict. c. 12), s. 109—Racial Discrimination Act 1975 (Cth), ss. 9, 10—Queensland Coast Islands Declaratory Act 1985 (Q.) ss. 3, 4, 5. Constitutional Law (Q.)—Powers of State Parliament—Waste lands—Management and control vested in legislature—Powers—Whether subject to limitation—Power to acquire property without compensation—Islands off coast of Queensland annexed to colony in 1879—Action by persons claiming traditional ownership of islands—Subsequent Act declaring islands upon annexation to have become waste lands of Crown—No compensation payable—Effect of deeming declaration—Whether Act interferes with judicial process—Constitution Act 1867 (Q.), s. 40—Queensland Coast Islands Declaratory Act 1985 (Q.), ss. 3, 4, 5.
Decisions
MASON C.J. I have read the reasons for judgment prepared by Wilson J. I agree with what his Honour says on the various questions debated in the argument on the demurrer, except the so-called "inconsistency questions". In particular, like his Honour, I agree with the construction given by Brennan, Toohey and Gaudron JJ. to the Queensland Coast Islands Declaratory Act 1985 (Q.) ("the Queensland Act").
2. It then remains for me to consider whether s.9 or s.10(1) of the Racial Discrimination Act 1975 (Cth) ("the Commonwealth Act") affects the operation of the Queensland Act. The demurrer is an unsuitable vehicle for the determination of these questions. The plaintiffs' statement of claim asserts that since time immemorial the Murray Islanders (the plaintiffs being Murray Islanders) have maintained a system of laws, customs, traditions and practices of their own for determining questions concerning ownership of, and dealings with, land, seas, seabeds and reefs. The statement of claim alleges that, in accordance with these laws, customs, traditions and practices, the plaintiffs now own, or have proprietary interests in or usufructuary rights in relation to, the lands, seabeds, reefs and fishing waters of the Murray Islands. The statement of claim does not define or describe these rights and interests. The plaintiffs allege that the defendants threaten to infringe these rights and interests by establishing a council under the Land Act 1962 (Q.) and granting the lands of the Murray Islands to the council as trustee with power to lease and power to terminate traditional occupation. For the purposes of the demurrer now before the Court the State of Queensland's defence pleads that the Murray Islands are islands to which the Queensland Act applies (par.4A) and is a substantive defence to the plaintiffs' claims (pars.9A, 10A, 17A, 18A and 22A). 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.
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AGLC
Mabo v Queensland [1988] HCA 69
Case
[1988] HCA 69
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard the case of *Mabo v Queensland* (No 2), brought by Eddie Mabo and other Meriam people against the State of Queensland and the Torres Strait Island Regional Council. The dispute concerned the native title rights of the Meriam people to the Murray Islands, challenging the Crown's assertion of absolute beneficial ownership of the land and the extinguishment of all native rights. The plaintiffs sought a declaration that their native title had not been extinguished and that they were entitled to the possession, occupation, use and enjoyment of the Murray Islands.
The central legal issues before the High Court were whether the common law of Australia recognised native title, and if so, whether the Crown's acquisition of sovereignty over Australia had extinguished all native title rights and interests. The Court was required to consider the nature and extent of any native title that might subsist and the circumstances under which such title could be extinguished by the Crown's exercise of its powers.
In its landmark decision, the High Court held that the common law of Australia did recognise native title, which was a form of title that existed at common law prior to the assertion of British sovereignty. The Court reasoned that the doctrine of *terra nullius* was a false and unjust premise upon which British settlement was based, and that the Crown's sovereignty did not automatically extinguish all pre-existing native rights. Instead, native title could only be extinguished by the Crown's clear and unambiguous intention to do so, through legislation or executive act, such as the granting of inconsistent estates in the land. The Court affirmed that native title is a communal title, derived from traditional laws and customs, and that its continued existence depends on the maintenance of those laws and customs.
The High Court declared that the Meriam people were entitled to the possession, occupation, use and enjoyment of the Murray Islands, and that their native title had not been extinguished. The Court remitted the matter to the Supreme Court of Queensland to determine the precise nature and extent of the native title rights and interests of the Meriam people.