Mabo v Queensland (No 2)

[1992] HCA 23

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

MABO AND OTHERS v. QUEENSLAND (No. 2)

(1992) 175 CLR 1

3 June 1992

Aborigines—Constitutional Law—Real Property

Aborigines—Native title to land—Whether extinguished by annexation by Crown—Reception of common law in Australia—Effect on native title—Terra nulius—Whether doctrine applicable in Australia. Constitutional Law (Q.)—Reception of common law in settled colony—Effect on title of indigenous people—Annexation of territory by colony—Terra nullius—Whether doctrine applicable in Australia—Power of Parliament of Qeensland to extinguish native title. Real Property—Tenures and estates—Application on settlement of New South Wales—Effect on native title—Land over which native title exists—Whether Crown land—Land Act 1962 (Q.), s. 5—"Crown land."

Decisions

MASON C.J. AND McHUGH J. We agree with the reasons for judgment of Brennan J. and with the declaration which he proposes.

2. In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.

3. We are authorized to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case.

4. The formal order to be made by the Court accords with the declaration proposed by Brennan J. but is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in par.2 of the formal order.

BRENNAN J. The Murray Islands lie in the Torres Strait, at about 10 degrees S. Latitude and 144 degrees E. Longitude. They are the easternmost of the Eastern Islands of the Strait. Their total land area is of the order of 9 square kilometres. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 m. wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer. The Islands are surrounded for the most part by fringing reefs. The people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. Although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population. Anthropological records and research show that the present inhabitants of the Islands are descended from the people described in early European reports. The component of foreign ancestry among the present population is small compared with most communities living in the Torres Strait. The Meriam people of today retain a strong sense of affiliation with their forbears and with the society and culture of earlier times. They have a strong sense of identity with their Islands. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.
Early contact with Europeans

2. The Meriam people were in occupation of the Islands for generations before the first European contact. They are a Melanesian people (perhaps an integration of differing groups) who probably came to the Murray Islands from Papua New Guinea. Their numbers have fluctuated, probably no more than 1000, no less than 400.

3. Some of the features of life in the Murray Islands at the time of first European contact, at the end of the 18th century, are described by Moynihan J. in his findings in the present case:
" Communal life based on group membership seems to have
been the predominant feature of life. Many of the
activities of daily life were social activities which took
place in the context of group activities of a ceremonial
or ritualistic nature. Behaviour was regulated in the
interest of the community by social pressures. ...
The people lived in groups of huts strung along the
foreshore or strand immediately behind the sandy beach.
They still do although there has been a contraction of
the villages and the huts are increasingly houses. The
cultivated garden land was and is in the higher central
portion of the island. There seems however in recent times
a trend for cultivation to be in more close proximity with
habitation.
The groups of houses were and are organised in named
villages. It is far from obvious to the uninitiated, but
is patent to an islander, that one is moving from one
village to another. The area occupied by an individual
village is, even having regard to the confined area on a
fairly small island which is in any event available for
'village land', quite small.
Garden land is identified by reference to a named
locality coupled with the name of relevant individuals if
further differentiation is necessary. The Islands are not
surveyed and boundaries are in terms of known land marks
such as specific trees or mounds of rocks.
Gardening was of the most profound importance to the
inhabitants of Murray Island at and prior to European
contact. Its importance seems to have transcended that of
fishing ...
Gardening was important not only from the point of view
of subsistence but to provide produce for consumption
or exchange during the various rituals associated with
different aspects of community life. Marriage and adoption
involved the provision or exchange of considerable quantity
of produce. Surplus produce was also required for the
rituals associated with the various cults at least to
sustain those who engaged in them and in connection with
the various activities associated with death.
Prestige depended on gardening prowess both in terms
of the production of a sufficient surplus for the social
purposes such as those to which I have referred and to be
manifest in the show gardens and the cultivation of yams
to a huge size. Considerable ritual was associated with
gardening and gardening techniques were passed on and
preserved by these rituals. Boys in particular worked with
their fathers and by observations and imitations reinforced
by the rituals and other aspects of the social fabric
gardening practices were passed on."
Later, his Honour said:
" It seems that before European contact social cohesion
was sought by the combined operation of a number of
factors. Children were inculcated from a very early
age with knowledge of their relationships in terms of
social groupings and what was expected of them by a
constant pattern of example, imitation and repetition
with reinforcing behaviour. It was part of their
environment - the way in which they lived. ... Initiation
and other group activities reinforced these patterns. A
sense of shame was the outcome of a failure to observe.
It could be reinforced by group pressures leading to
retribution. Ultimately force might be resorted to by
those who had access to the means of exerting it.
Sorcery, magic and taboo were obviously important
cohesive factors and a source of sanction."
The findings show that Meriam society was regulated more by custom than by law.

4. Contacts with Europeans were initially few and sporadic. There were occasional visits by passing ships in the early 19th century. In 1834, two young British castaways were rescued and they stayed on Mer until a ship called there 2 years later. The ship's captain, Captain Lewis, recorded that the natives "acknowledge no chief each family being distinct and independent of each other. Quarrels frequently take place which, after a fight are generally followed by a speedy reconciliation." The London Missionary Society came to the Murray Islands in about 1871 and moved its Torres Strait headquarters to Mer in 1877. It was a significant influence in keeping the peace among the Meriam people and in modifying some of their customs. It appears that, prior to the arrival of the London Missionary Society, elaborate funeral ceremonies and the collection and preservation of human heads were features of life in the Murray Islands.

5. Although the Murray Islands, prior to their annexation to Queensland in 1879, were not part of her Majesty's dominions, Imperial and Colonial authorities were concerned for the maintenance of order in, and the protection of the indigenous inhabitants of, those Islands and other islands in the Western Pacific. "Blackbirding" was being practised and in the 1860s the Murray Islands were raided, women seized and some of the Meriam people murdered. The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) (1) 35 and 36 Vict c 19 (P9/579); 38 and 39 Vict c 51. were enacted to stamp out blackbirding (2) See O'Connell and Riordan, Opinions on Imperial Constitutional Law, (1971), pp 100-103 and to confer on a High Commissioner's Court jurisdiction over British subjects in the islands of the Western Pacific. However, the 1875 Act expressly disavowed "any claim or title whatsoever to dominion or sovereignty over any such islands or places" and any intention "to derogate from the rights of the tribes or people inhabiting such islands or places, or of chiefs or rulers thereof, to such sovereignty or dominion".

6. Nevertheless, it appears that the Queensland authorities exercised some de facto control in the 1870s over islands in the Torres Strait which were not part of that Colony's territory. When a proposal to expand the maritime boundaries of Queensland to include these islands was under consideration, CommandER Heath, R.N., the Portmaster at Brisbane, reported to the Colonial Treasurer on 11 December 1877:
"Where any lodgment of Islanders or others for questionable
purposes had been made on the islands beyond our
jurisdiction and yet not within the limits of Polynesia,
the police have been obliged to act as though these islands
did belong to Queensland, the Police Magistrate wisely
considering it a lesser evil to exceed his authority in
this matter than to allow any attempt at settlement on
these islands for improper purposes."

7. The proposal to annex coastal islands that were not already part of Queensland found favour with the Executive Council. The Hon. John Douglas, then Premier of the Colony, sent the Governor of Queensland a memorandum dated 27 December 1877 containing the following:
"A sort of police surveillance is even now exercised over
some of the islands outside our limits, but it is certainly
desirable that we should possess a real authority to deal
with the somewhat doubtful characters who are occasionally
found to act in a very independent way. It does not at
all follow that we should form settlements. They will
be frequented by pearl-shellers, and probably eventually
by more permanent settlers. They ought to be visited
occasionally by the Resident Magistrate at Thursday Island,
but it would not be necessary to do more than this at
present, and I do not think that we should have to increase
our expenditure on that account."

8. In July 1878, as Moynihan J. found -
"H.M. Chester the Police Magistrate at Thursday Island
... visited Murray. He advised the people to select a
chief and submit to his authority which, if properly
exercised, would be supported. Harry (Ari) Buzire was
designated. The name Mamoose came to be applied to the
holders of such office throughout the Straits. ... The
reasons for Ari's selection are obscure. He had apparently
no important ritual office or any particular claim to
elevation to central authority which was itself the
creature of Chester's intervention. Ari was provided with
executive capacity in the form of some designated
constables and a boat."

9. The Mamoose, as Moynihan J. found, became "something of an executive arm to the mission".
Annexation of the Murray Islands

10. Ultimately, the proposal to extend the maritime boundaries of Queensland to include the Murray and Darnley Islands was adopted by the Colonial Office and, on 10 October 1878 at Westminster, Queen Victoria passed Letters Patent "for the rectification of the Maritime Boundary of the Colony of Queensland, and for the annexation to that Colony of (certain) Islands lying in Torres Straits, and between Australia and New Guinea". The Murray Islands lay within the maritime boundary mentioned in the Letters Patent.

11. The Letters Patent authorized the Governor of Queensland by Proclamation -
"to declare that, from and after a day to be therein
mentioned, the said Islands shall be annexed to and form
part of Our said Colony. Provided always that Our said
Governor issues no such Proclamation as aforesaid until the
Legislature of Our said Colony of Queensland shall have
passed a law providing that the said Islands shall, on the
day aforesaid, become part of Our said Colony, and subject
to the laws in force therein. Provided also that the
application of the said laws to the said Islands may be
modified either by such Proclamation as aforesaid, or by
any law or laws to be from time to time passed by the
Legislature of Our said Colony for the government of the
said Islands so annexed."
The Queensland Legislature passed the requisite law (The Queensland Coast Islands Act of 1879) and, on 21 July 1879 at Brisbane, the Governor of Queensland by Proclamation declared -
"that from and after the first day of August, in the year
of our Lord one thousand eight hundred and seventy-nine,
the Islands described in the Schedule (which followed the
Letters Patent and the Act) shall be annexed to and become
part of the Colony of Queensland, and shall be and become
subject to the laws in force therein."
The "most dominant" of the purposes for which the Torres Strait islands were annexed were found by Moynihan J. to have been:
"(a) command of Torres Strait and the sea lane to India;
(b) control of the fishery industry in Torres Strait
including the pearl-shell industry; (c) the protection
of shipping and ship-wrecked crews; (d) the extension
of jurisdiction to non-British subjects and the native
inhabitants of the islands; (e) the protection of the
native inhabitants of the islands".
And, in Wacando v. The Commonwealth (3) (1981) 148 CLR 1, at p 10, Gibbs C.J. noted Professor Cumbrae-Stewart's view that the occasion for the passing of the Letters Patent was that the inhabitants of some of the islands had no protection against violence and that the islands provided bases for those intent on evading Queensland's revenue and immigration laws. The acquisition of beneficial ownership of land by the Crown does not appear to have been among the purposes of the annexation entertained by either the Queensland or the Imperial Government.

12. In September 1879, Captain Pennefather on the instructions of H.M. Chester visited the Murray Islands where (as he reported) he "mustered the natives" and informed them "that they would be held amenable to British law now the island was annexed". He also noted:
"The Chief acts as magistrate, he has a staff of 10 or 12
men as policemen, they have built a church and courthouse
of which they are very proud, there is also a very good
house belonging to the London Missionary Society this
island being the headquarters for the mission in these
waters."
The system of local administration, established prior to annexation, proved to be tyrannous in its operation and, in October 1882, Captain Pennefather reported that he had dismantled it. (It appears from later history, however, that Harry, the Mamoose, continued to exercise considerable authority.) At the same time, he reported:
"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."
Moynihan J. found that there was apparently no concept of public or general community ownership among the people of Murray Island, all the land of Murray Island being regarded as belonging to individuals or groups.

13. In about February 1882, the Queensland Government "reserved" Murray Island for native inhabitants. In the same year, a special lease of 2 acres on Mer was granted by the Queensland Government to the London Missionary Society, which had assumed some responsibility for law and order and for the peaceful resolution of disputes. Shortly after the Reserve was created, the Queensland authorities, at the request of the Meriam people, "removed a number of trespassers" from the Islands.

14. In 1885, the Hon. John Douglas, by then Government Resident at Thursday Island, went to the Murray Islands to arrange for the eviction of "intruders" (South Sea Islanders) in order to ensure that "the Murray Islanders will have Murray Island to themselves". He successfully negotiated the departure of the intruders. He found Harry, "the Chief or primate of Murray Island", to be a "benignant despot ... (whose) position is respected."

15. In 1886, the Acting Government Resident at Thursday Island reported to the Chief Secretary of Queensland on the application of Queensland law:
"I do not see how it will be possible to administer these
islands under the present laws of Queensland, more
especially as touching the land question, 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 reputed owner (and I am inclined to think every acre
has) but every grove or single tree of any value has its
proper and legitimate hereditary owner. To disturb these
rights, great care would have to be exercised and the
natives recompensed for any loss that they might suffer
through deprivation."

16. By 1891 the headquarters of the London Missionary Society had been moved from the Murray Islands. Later, Douglas, in a report on a visit to the Murray Islands, described the system of government then in place:
"The secular government is conducted by 'Harry', the
recognised chief or headman who is assisted in his
administration by four officers, or 'policemen' so called.
They are recognised by me, and they assist to keep the
peace when it is necessary that their authority should be
invoked, which is not often.
They receive a small annual honorarium, and they are
privileged to wear a uniform. 'Harry' has a whaleboat,
presented to him by the Government, the 'policemen' man
this boat. 'William' a native of New Zealand, is the head
of the spiritual or theocratic government."
Douglas recommended that a teacher and adviser be appointed to reside on the Islands. John Stuart Bruce took up an appointment to that office in October 1892 and remained there until January 1934.

17. The "system of self-government ... as instituted by the late Hon. John Douglas, C.M.G." was described by the Chief Protector of Aboriginals in Queensland in his Annual Report for 1907 as follows:

"The Governing body consists of the native chief or
'mamoose', assisted and advised by the councillors or
elders of the village, with a staff of native police
to uphold his authority and to keep order among the
inhabitants or visitors.
The European school teacher acts as clerk and treasurer of
the native court, assisting with suggestion or advice when
requested, but otherwise has no authority to interfere in
the internal management of affairs.
The mamoose acts as a police magistrate and governor, with
power to deal summarily with offences and breaches of local
regulations, and is directly responsible for the behaviour
and cleanliness of his village to the Government Resident
and Police Magistrate at Thursday Island. He may inflict
punishment by fine or imprisonment upon minor offences, but
misdemeanours and serious offences must be reserved for
the bench at Thursday Island. The councillors attend at
courthouse to assist the mamoose with advice and, in order
of seniority, may act on his behalf during his absence.
They also meet to confer monthly with the mamoose upon any
questions concerning the conduct of affairs.
The native island police, under a native sergeant, are
responsible to the mamoose for the good behaviour of the
inhabitants, etc., and may arrest and lock up offenders till
the next meeting of court. They have also to inspect and
see that each householder keeps his premises and grounds
clean, and that the portion of the public road adjacent to
his residence is kept in good repair and order; also that
the public properties (coconut-trees, fish-traps, etc.), and
buildings (court-house, lock-up, school-house, etc.) are not
damaged or destroyed.
The European teacher resident upon the island acts as clerk
of the court and registrar of births, marriages, and
deaths, keeping all books and records, and also as
treasurer, keeping an account and taking charge of all
collections from fines, taxes upon dogs, etc., the mamoose
having authority to expend all such collections upon public
improvements, repairs, etc."

18. It appears from reports by Mr Bruce that, from the end of the 19th century, the Mamoose's court entertained cases arising from disputes over land or land boundaries.

19. When an anthropological expedition from Cambridge visited the Islands in 1898 they found that -
"Queensland has not affected native land tenure which is
upheld in the Court of the Island. In a few instances it
is not impossible that English ideas, especially of
inheritance are making themselves felt. There is no common
land and each makes his own garden on his own land at his
own convenience."
The Island Court, according to Moynihan J., sought "to achieve a consistent application of certain basic principles" although his Honour went on to say that -
"the role of the Court was to maintain social harmony by
accommodating peoples wishes as far as possible and doing
what seemed to be right in the circumstances."
Although there was a clear insistence on exclusive possession by the "owners" of particular blocks of land and a general expectation that land would be passed on patrilineally, his Honour thought that:
"The ultimate determining factor in terms of the control and
disposition of land was simply what was acceptable in terms
of social harmony and the capacity of an individual to impose his (it seems almost (always) to have been a him) will on the community. This was easier done if the claim had the appearance of certain expected characteristics."
It would not be surprising to find that land disputes in a small community were settled by a consensus which is arrived at aftER consideration of a variety of factors. Strict legal rules might have been disruptive of community life.

20. Without pausing to enquire into the legal support for the "system of self-government" instituted by Douglas or for the jurisdiction of the Island Court, it appears that the Meriam people came peacefully to accept a large measure of control by Queensland authorities and that officials of the Queensland Government became accustomed to exercise administrative authority over the Murray Islands. Formal annexation had been followed by an effective exercise of administrative power by the Government of Queensland.

21. In 1894, some doubts had arisen in the Colonial Office as to the legality of the annexation of the islands included in the 1879 Letters Patent to Queensland. Queensland had been separated from New South Wales and erected into a Colony pursuant to The New South Wales Constitution Act, 1855 (Imp) (4) 18 and 19 Vict c 54 by Letters Patent of 6 June 1859 and an Order in Council of the same day. The boundaries of the new colony were fixed, the Colony was granted a constitution with representative institutions and the laws of New South Wales became the laws of Queensland on separation. The doubts which arose in the Colonial Office related to the legality of incorporating new territory into a colony with representative institutions once the boundaries of the colony were fixed by or under Imperial legislation. To settle these doubts, the Colonial Boundaries Act 1895 (Imp) (5) 58 and 59 Vict c 34 was enacted. As this Court held in Wacando, if the Queensland Coast Islands Act 1879 did not suffice to effect the incorporation of the Murray Islands into Queensland (either by its own force or by satisfying a condition bringing the Letters Patent of 1879 into operation), the requisite Imperial legislative authority could be found in the Colonial Boundaries Act.

22. With this brief conspectus of the history of the Murray Islands, we may now turn to an examination of the effect of annexation on the legal rights of the members of the Meriam people to the land of the Murray Islands.
The theory of universal and absolute Crown ownership

23. It may be assumed that on 1 August 1879 the Meriam people knew nothing of the events in Westminster and in Brisbane that effected the annexation of the Murray Islands and their incorporation into Queensland and that, had the Meriam people been told of the Proclamation made in Brisbane on 21 July 1879, they would not have appreciated its significance. The legal consequences of these events are in issue in this case. Oversimplified, the chief question in this case is whether these transactions had the effect on 1 August 1879 of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands. The defendant submits that that was the legal consequence of the Letters Patent and of the events which brought them into effect. If that submission be right, the Queen took the land occupied by Meriam people on 1 August 1879 without their knowing of the expropriation; they were no longer entitled without the consent of the Crown to continue to occupy the land they had occupied for centuries past.

24. The defendant's submission is founded on propositions that were stated in cases arising from the acquisition of othER colonial territory by the Imperial Crown. Although there are differences which might be said to distinguish the Murray Islands and the Meriam people of 1879 from other colonial territories and their indigenous inhabitants when those territories respectively became British colonies, the propositions on which the defendant seeks to rely have been expressed to apply universally to all colonial territories "settled" by British subjects. Assuming that the Murray Islands were acquired as a "settled" colony (for sovereignty was not acquired by the Crown either by conquest or by cession), the validity of the propositions in the defendant's chain of argument cannot be determined by reference to circumstances unique to the Murray Islands; they are advanced as general propositions of law applicable to all settled colonies. Nor can the circumstances which might be thought to differentiate the Murray Islands from other parts of Australia be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands. As we shall see, such a ground of distinction discriminates on the basis of race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. It will be necessary to consider presently the racial or ethnic basis of the law stated in earlier cases relating to the entitlement of indigenous people to land in settled colonies.

25. On analysis, the defendant's argument is that, when the territory of a settled colony became part of the Crown's dominions, the law of England so far as applicable to colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown's demesne and no right or interest in any land in the territory could thereafter be possessed by any other person unless granted by the Crown. Perhaps the clearest statement of these propositions is to be found in Attorney-General v. Brown (6) (1847) 1 Legge 312, at p 316, when the Supreme Court of New South Wales rejected a challenge to the Crown's title to and possession of the land in the Colony. Stephen C.J. stated the law to be -
"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". The reasons for this conclusion were stated (7): ibid., at pp 317-318
"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.
... 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 in the statute
54 GEO III, c.15, and in the 59 GEO III, c.122, His
Majesty's Colony; not the colony of the people, not even
the colony of the empire. It was maintained that this
supposed property in the Crown was a fiction. Doubtless,
in one sense, it was so. The right of the people of
England to their property, does not in fact depend on
any royal grant, and the principle that all lands are
holden mediately or immediately of the Crown flows from
the adoption of the feudal system merely (Co Lit 1, and
ibid.191, a, Mr. Butler's note 6; Bac Ab Prerog B.;
Vin Ab same title K.A. 19). 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." (Bac Ab ubi
supra, marginal note.) But, in a newly-discovered country,
settled by British subjects, the occupancy of the Crown
with respect to the waste lands of that country, is no
fiction. 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, Law of Nations, book 1, chap 4),
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. 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 conceiving the common law, his Honour understood a statutory reference to "the waste lands of the Crown" to mean "all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor of such lands". (8) ibid., at p 319.

26. This judgment has formidable support. It was described as "notable" by Windeyer J. (9) In Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 CLR 177, at p 194 who followed its doctrine in Randwick Corporation v. Rutledge (10) (1959) 102 CLR 54, at p 71:
" On the first settlement of New South Wales (then
comprising the whole of eastern Australia), all the land
in the colony became in law vested in the Crown. The
early Governors had express powers under their commissions
to make grants of land. The principles of English real
property law, with socage tenure as the basis, were
introduced into the colony from the beginning - all lands
of the territory lying in the grant of the Crown, and
until granted forming a royal demesne. The colonial Act,
6 Wm IV No. 16 (1836), recited in its preamble that the
Governors by their commissions under the Great Seal had
authority 'to grant and dispose of the waste lands' - the
purpose of the Act being simply to validate grants which
had been made in the names of the Governors instead of
in the name of the Sovereign. And when in 1847 a bold
argument, which then had a political flavour, challenged
the right of the Crown, that was to say of the Home
Government, to dispose of land in the colony, it was as
a legal proposition firmly and finally disposed of by
Sir Alfred Stephen C.J.: The Attorney-General v.
Brown (11) (1847) 1 Legge, at pp 317-320."

27. The doctrine of exclusive Crown ownership of all land in the Australian colonies was again affirmed by Stephen J. in New South Wales v. The Commonwealth ("the Seas and Submerged Lands Case") (12) (1975) 135 CLR 337, at pp 438-439:
" That originally the waste lands in the colonies were
owned by the British Crown is not in doubt. Such ownership
may perhaps be regarded as springing from a prerogative
right, proprietary in nature, such as is described by
Dr. Evatt in his unpublished work on the subject ... the
prerogatives of the Crown were a part of the common law
which the settlers brought with them on settlement
(R. v. Kidman, per Griffith C.J. (13) (1915) 20 CLR 425,
at pp 435-436); 'the prerogative
of the Queen, when it has not been expressly limited by
local law or statute, is as extensive in Her Majesty's
colonial possessions as in Great Britain' (per Lord Watson
speaking for their Lordships in Liquidators of Maritime
Bank of Canada v. Receiver-General (New Brunswick) (14)
(1892) AC 437, at p 441);
cited by Isaacs J. in The Commonwealth v. New South
Wales (15) (1923) 33 CLR 1, at p 37. On the other hand
that ownership may be
described as a consequence of the feudal principle which,
on first settlement in Australia, was 'extended to the
lands oversea', so that all colonial land belonged 'to the
Crown until the Crown chose to grant it' (per Isaacs J. in Williams' Case (16) Williams v. Attorney-General for New South
Wales (1913) 16 CLR 404, at p 439). In either event the
consequence is
the same, the lands of Australia became the property of the
King of England (Attorney-General v. Brown (17) (1847) 1
Legge, at pp 317-320)."
Dawson J., following this line of authority in Mabo v. Queensland (18) (1988) 166 CLR 186, at p 236, said that "colonial lands which remained unalienated were owned by the British Crown".

28. The proposition that, when the Crown assumed sovereignty ovER an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen C.J. arrived in Attorney-General v. Brown be right, the interests of indigenous inhabitants in colonial land were extinguished so soon as British subjects settled in a colony, though the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest. According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. This Court must now determine whether, by the common law of this country, the rights and interests of the Meriam people of today are to be determined on the footing that their ancestors lost their traditional rights and interests in the land of the Murray Islands on 1 August 1879.

29. In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. The Privy Council itself held that the common law of this country might legitimately develop independently of English precedent (19) See Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221, at pp 238, 241; (1969) AC 590, at pp 641, 644. Increasingly since 1968 (20) See the Privy Council (Limitation of Appeals) Act 1968 (Cth) and see the Privy Council (Appeals from the High Court) Act 1975 (Cth), the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation. Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country (21) Cook v. Cook (1986) 162 CLR 376, at pp 390, 394; Viro v. The Queen (1978) 141 CLR 88, at pp 93, 120-121, 132, 135, 150-151, 166, 174, it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earliER decisions of its own (22) Jones v. The Commonwealth (1987) 61 ALJR 348, at p 349; 71 ALR 497, at pp 498-499; John v. Federal Commissioner of Taxation (1989) 166 CLR 417, at pp 438-439, 451-452; McKinney v. The Queen (1991) 171 CLR 468, at pp 481-482. The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.

30. In the present case, the defendant's chain of argument contains several links, each of which must be separately considered although, as we shall see, a common theme or thread runs through them. Some of these links are unchallenged. We start with the proposition that the Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879 and that the laws of Queensland (including the common law) became the law of the Murray Islands on that day - or, if it be necessary to rely on the Colonial Boundaries Act 1895, is deemed to have become the law of the Murray Islands on that day. Next, by the common law, the Crown acquired a radical or ultimate title to the Murray Islands. The plaintiffs accept these propositions but challenge the final link in the chain, namely, that the Crown also acquired absolute beneficial ownership of the land in the Murray Islands when the Crown acquired sovereignty ovER them.

31. As the passages cited from the judgments in Attorney-General v. Brown and the Seas and Submerged Lands Case show, the proposition that, by the common law, the Sovereign acquired absolute beneficial ownership of all land in the Murray Islands rests on a number of bases. In the first place, it is said that the Crown is absolute owner because "there is no othER proprietor". This basis denies that the indigenous inhabitants possessed a proprietary interest. The negative basis is then buttressed by three positive bases to show why it is necessary to attribute absolute beneficial ownership to the Crown. One basis is that, when English law was brought to Australia with and by British colonists, the common law to be applied in the colonies included the feudal doctrine of tenure. Just as the Crown acquired or is deemed to have acquired universal ownership of all land in England, so the Crown became the owner of all land in the Australian colonies. We may call this the feudal basis. Another basis is that all land in a colony is "the patrimony of the nation" and, on this basis, the Crown acquired ownership of the patrimony on behalf of the nation. A third basis is the prerogative basis mentioned by Stephen J. in the Seas and Submerged Lands Case. In order to determine whether, on any or all of these bases, the Crown acquired beneficial ownership of the land in the Murray Islands when the Crown acquired sovereignty over them, we must first review the legal theories relating to the acquisition of sovereignty and the introduction of the common law.
The acquisition of sovereignty
"The acquisition of territory by a sovereign state for the
first time is an act of state which cannot be challenged,
controlled or interfered with by the courts of that state."
This principle, stated by Gibbs J. in the Seas and Submerged Lands Case (23) New South Wales v. The Commonwealth (1975) 135 CLR, at p 388, precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown's Dominions. The Murray Islands were annexed by an exercise of the prerogative evidenced by the Letters Patent; a mode of acquisition recognized by the common law as a valid means of acquiring sovereignty ovER foreign territory. The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts (24) Sobhuza II. v. Miller (1926) AC 518, at p 525; The Fagernes (1927) P 311; Reg. v. Kent Justices; Ex parte Lye (1967) 2 QB 153, at pp 176-177, 181-182; Ffrost v. Stevenson (1937) 58 CLR 528, at pp 565-566; A Raptis and Son v. South Australia (1977) 138 CLR 346, at p 360; cf. Bonser v. La Macchia (1969) 122 CLR 177, at pp 193, 217, where the meaning of a constitutional term was in issue. In Post Office v. Estuary Radio Ltd., Diplock L.J. said (25) (1968) 2 QB 740, at p 753:
" It still lies within the prerogative power of the Crown
to extend its sovereignty and jurisdiction to areas of
land or sea over which it has not previously claimed or
exercised sovereignty or jurisdiction. For such extension
the authority of Parliament is not required."
This proposition was approved by Gibbs J. in the Seas and Submerged Lands Case and, in Wacando, Gibbs C.J. and Mason J. accepted that an annexation of territory by exercise of the prerogative is an act of State (26) (1981) 148 CLR, per Gibbs C.J. at p 11; per Mason J. at p 21. See also Coe v. The Commonwealth (1979) 53 ALJR 403, per Jacobs J. at p 410.

32. Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. Accordingly, the municipal courts must determine the body of law which is in force in the new territory. By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.

33. International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant (27) See E. Evatt, "The Acquisition of Territory in Australia and New Zealand" in (1968) Grotian Society Papers, p 16, who mentions only cession and occupation as relevant to the Australasian colonies. The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers (28) Worcester v. Georgia (1832) 6 Pet 515, at pp 543-544 (31 US 350, at p 369), provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organized in a society that was united permanently for political action (29) Lindley, The Acquisition and Government of Backward Territory in International Law, (1926), Chs III and IV. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest (30) See Lindley, ibid., p 47. Various justifications for the acquisition of sovereignty over the territory of "backward peoples" were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times (31) See Williams, The American Indian in Western Legal Thought, (1990), pp 78ff; and Johnson v. McIntosh (1823) 8 Wheat 543, at p 573 (21 US 240, at p 253). Another justification for the application of the theory of terra nullius to inhabited territory - a justification first advanced by Vattel at the end of the 18th century - was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants (32) Vattel, The Law of Nations (1797), Bk I, pp 100-101. See Castles, An Australian Legal History, (1982), pp 16-17. It may be doubted whether, even if these justifications were accepted, the facts would have sufficed to permit acquisition of the Murray Islands as though the Islands were terra nullius. The Meriam people were, as Moynihan J. found, devoted gardeners. In 1879, having accepted the influence of the London Missionary Society, they were living peacefully in a land-based society under some sort of governance by the Mamoose and the London Missionary Society. However that may be, it is not for this Court to canvass the validity of the Crown's acquisition of sovereignty over the Islands which, in any event, was consolidated by uninterrupted control of the Islands by Queensland authorities (33) 10 Encyclopaedia of Public International Law, (1987), p 500; cf. J. Crawford, "The Criteria for Statehood in International Law", (1977) 48 The British Year Book of International Law 93, at p 116.

34. The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or "settlement", to use the term of the common law). Although Blackstone commended the practice of "sending colonies (of settlers) to find out new habitations", he wrote (34) Commentaries on the Laws of England, 17th ed. (1830), Bk II, ch 1, p 7-
"so long as it was confined to the stocking and cultivation
of desert uninhabited countries, it kept strictly within
the limits of the law of nature. But how far the seising
on countries already peopled, and driving out or massacring
the innocent and defenceless natives, merely because
they differed from their invaders in language, in religion,
in customs, in government, or in colour; how far such
a conduct was consonant to nature, to reason, or to
christianity, deserved well to be considered by those,
who have rendered their names immortal by thus civilizing
mankind".
As we shall see, Blackstone's misgivings found a resonance in international law after two centuries (35) Advisory Opinion on Western Sahara (1975) 1 ICJR 12. But he was unable to declare any rule by which the laws of England became the laws of a territory which was not a "desert uninhabited" country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius. As the British acquisition of sovereignty over the Colony of New South Wales was regarded as dependent upon the settlement of territory that was terra nullius consequent on discovery (36) See E. Evatt, op cit, at p 25; Cooper v. Stuart (1889) 14 App Cas 286, and as the law of New South Wales is the source of the law applicable to the Murray Islands, we must next examine the basis on which the common law was received as the law of the Colony of New South Wales.
Reception of the common law

35. The means by which the municipal laws of England, including the common law, became the law of a country that had been outside the King's dominions were stated by Blackstone (37) Commentaries, Bk I, ch.4, pp 106-108; accord: Forbes v. Cochrane (1824) 2 B and C 448, at p 463 (107 ER 450, at p 456) as follows:
"Plantations or colonies, in distant countries, are either
such where the lands are claimed by right of occupancy
only, by finding them desert and uncultivated, and peopling
them from the mother-country; or where, when already
cultivated, they have been either gained by conquest, or
ceded to us by treaties. And both these rights are founded
upon the law of nature, or at least upon that of nations.
But there is a difference between these two species of
colonies, with respect to the laws by which they are bound.
For 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
subject, are immediately there in force. But this must be
understood with very many and very great restrictions.
Such colonists carry with them only so much of the English
law, as is applicable to their own situation and the
condition of an infant colony; ... What shall be admitted
and what rejected, at what times, and under what
restrictions, must, in case of dispute, be decided in
the first instance by their own provincial judicature,
subject to the revision and control of the king in council:
the whole of their constitution being also liable to be
new-modelled and reformed by the general superintending
power of the legislature in the mother-country. But in
conquered or ceded countries, that have already laws of
their own, the king may indeed alter and change those laws;
but, till he does actually change them, the ancient laws
of the country remain, unless such as are against the law
of God, as in the case of an infidel country. Our American
plantations are principally of this latter sort, being
obtained in the last century either by right of conquest
and driving out the natives (with what natural justice
I shall not at present inquire) or by treaties. And
therefore the common law of England, as such, has no
allowance or authority there; they being no part of the
mother-country, but distinct (though dependent) dominions.
They are subject, however, to the control of the
parliament".
According to Blackstone, English law would become the law of a country outside England either upon first settlement by English colonists of a "desert uninhabited" country or by the exercise of the Sovereign's legislative power over a conquered or ceded country. Blackstone did not contemplate other ways by which sovereignty might be acquired. In the case of a conquered country, the general rule was that the laws of the country continued after the conquest until those laws were altered by the conqueror (38) Blankard v. Galdy (1693) Holt KB 341 (90 ER 1089); Campbell v. Hall (1774) Lofft 655, at p 741 (98 ER 848, at pp 895-896); Beaumont v. Barrett (1836) 1 Moo PC 59 (12 ER 733). The Crown had a prerogative power to make new laws for a conquered country although that power was subject to laws enacted by the Imperial Parliament (39) Campbell v. Hall, (1774) Lofft, at pp 741, 742 (98 ER, at pp 895, 896). The same rule applied to ceded colonies, though the prerogative may have been limited by the treaty of cession (40) See the discussion in Roberts-Wray, Commonwealth and Colonial Law, (1966), pp 214ff; Sammut v. Strickland (1938) AC 678; Blankard v. Galdy (1693) 2 Salk 411 (91 ER 356); Buchanan v. The Commonwealth (1913) 16 CLR 315, at p 334. When "desert uninhabited countries" were colonized by English settlers, however, they brought with them "so much of the English law as (was) applicable to their own situation and the condition of an infant colony" (41) Commentaries, Bk I, ch 4, p 107; State Government Insurance Commission v. Trigwell (1979) 142 CLR 617, at pp 625, 634. English colonists were, in the eye of the common law, entitled to live under the common law of England which Blackstone described as their "birthright" (42) Commentaries, Bk I, ch 4, p 107. And see Sabally and N'Jie v. H.M. Attorney-General (1965) 1 QB 273, at p 294. That law was not amenable to alteration by exercise of the prerogative (43) Sammut v. Strickland (1938) AC, at p 701. The tender concern of the common law of England for British settlers in foreign parts led to the recognition that such settlers should be regarded as living under the law of England if the local law was unsuitable for Christian Europeans (44) Ruding v. Smith (1821) 2 Hag.Con.371 (161 ER 774); Freeman v. Fairlie (1828) 1 Moo Ind App 306, at pp 323-325, aff p 341 (18 ER 117, at pp 127-128, 137); cf. Campbell v. Hall (1774) Lofft, at p 741 (98 ER, at pp 895,896). See also Yeap Cheah Neo v. Ong Cheng Neo (1875) 6 LR 381, at p 393; cf. Reg. v. Willans (1858) 3 Kyshe 16, at pp 20-25; and see Re Loh Toh Met (1961) 27 MLJ 234, at pp 237-243; Khoo Hooi Leong v. Khoo Chong Yeok (1930) AC 346, at p 355. This rule was applied even to English residents in Eastern countries which were not under British sovereignty (45) The "Indian Chief" (1801) 3 C Rob 12, at pp 28-29 (165 ER 367, at pp 373-374).

36. When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there undER the protection of the forces of the Crown, so that the Crown acquired sovereignty recognized by the European family of nations under the enlarged notion of terra nullius, it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme internal legal authority (46) See A. James, Sovereign Statehood, (1986), pp 3ff., 203-209. The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory (47) Lyons (Mayor of) v. East India Co. (1836) 1 Moo PC 175, at pp 272-273 (12 ER 782, at p 818); Cooper v. Stuart (1889) 14 App Cas ; The Lauderdale Peerage (1885) 10 App Cas 692, at pp 744-745; Kielley v. Carson (1842) 4 Moo PC 63, at pp 84-85 (13 ER 225, at p 233), the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called "settled colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization. In Advocate-General of Bengal v. Ranee Surnomoye Dossee (48) (1863) 2 Moo N S 22, at p 59 (15 ER 811, at p 824); 9 Moo Ind App 391, at p 428 (19 ER 786, at p 800) Lord Kingsdown used the term "barbarous" to describe the native state of a settled colony:
" Where Englishmen establish themselves in an uninhabited
or barbarous country, they carry with them not only the
laws, but the sovereignty of their own State; and those who
live amongst them and become members of their community
become also partakers of, and subject to the same laws."
In Campbell v. Hall Lord Mansfield suggested that Jamaica should be regarded as a settled colony because the English colonists arrived after the Spaniards had left (49) His Lordship may have wrongly appreciated the history of Jamaica: see Roberts-Wray, op cit, pp 46-47, 851-852, the negro inhabitants presumably being of no significance (50) See (1774) Lofft, at p 745 (98 ER, at p 898). In Cooper v. Stuart Lord Watson proffered the absence of "settled inhabitants" and "settled law" as a criterion for determining whether inhabited territory had been acquired by "settlement" under English law (51) (1889) 14 App Cas, at p 291:
" 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. In the
case of such a Colony the Crown may by ordinance, and the
Imperial Parliament, or its own legislature when it comes
to possess one, may by statute declare what parts of the
common and statute law of England shall have effect within
its limits. But, when that is not done, the law of England
must (subject to well-established exceptions) become from
the outset the law of the Colony, and be administered by
its tribunals. In so far as it is reasonably applicable
to the circumstances of the Colony, the law of England
must prevail, until it is abrogated or modified, either by
ordinance or statute."
As the settlement of an inhabited territory is equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonization, the common law which the English settlers brought with them to New South Wales could not have been altered or amended by the prerogative - only by the Imperial Parliament or by the local legislature (52) Holdsworth, A History of English Law, 3rd ed., vol.ix, (1944), p 84; Sammut v. Strickland (1938) AC, at p 701; Kielley v. Carson (1843) 4 Moo PC, at pp 84-85 (13 ER, at p 233); Falkland Islands Co. v. The Queen (1863) 2 Moo PC (NS) 266, at p 273 (15 ER 902, at p 905); Sabally and N'Jie v. H.M. Attorney-General (1965) 1 QB , at p 294. (This principle raises some doubts about the validity of the exercise of legislative power by the Governor of New South Wales before a Legislative Council was established in 1823, but we need not pause to consider that question (53) See the discussion by Windeyer, Lectures on Legal History, 2nd ed. (1949), pp 332-333; H.V. Evatt, "The Legal Foundations of New South Wales", (1938) 11 Australian Law Journal 409, at pp 417-422; and Enid Campbell, "Prerogative Rule in New South Wales, 1788-1823", (1964) 50 Royal Australian Historical Society 161) In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally. Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were "an uninhabited country ... discovered and planted by English subjects" (54) See per Lord Watson in Cooper v. Stuart (1889) 14 App Cas, at p 291; and cf. Roberts-Wray, op cit, p 540. The common law thus became the common law of all subjects within the Colony who were equally entitled to the law's protection as subjects of the Crown (55) As the subjects of a conquered territory (Calvin's Case (1608) 7 Co Rep 1a, at p 6a (77 ER 377, at p 384)); Campbell v. Hall (1774) Lofft, at p 741 (98 ER, at p 895) and of a ceded territory (Donegani v. Donegani (1835) 3 Knapp 63, at p 85 (12 ER 571, at p 580)) became British subjects (Lyons (Mayor of) v. East India Co. (1836) 1 Moo PC, at pp 286-287 (12 ER, at p 823); 1 Moo Ind App 175, at pp 286-187 (18 ER 66, at pp 108-109)), a fortiori the subjects of a settled territory must have acquired that status. And see Reg. v. Wedge (1976) 1 NSWLR 581, at p 585. Its introduction to New South Wales was confirmed by s.24 of the Australian Courts Act 1828 (Imp) (56) 9 GEO IV c.83. As the laws of New South Wales became the laws of Queensland on separation of the two Colonies in 1859 (57) Letters Patent of 6 June 1859: see p 11 above and, by the terms of the Queensland Coast Islands Act 1879 and the Governor's Proclamation, the Murray Islands on annexation became subject to the laws in force in Queensland, the common law became the basic law of the Murray Islands. Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. And this is so irrespective of the fact that, in 1879, the Meriam people were settled on their land, the gardens were being tilled, the Mamoose and the London Missionary Society were keeping the peace and a form of justice was being administered. The basis of the theory of universal and absolute Crown ownership

37. It is one thing for our contemporary law to accept that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies. It is anothER thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts. When it was sought to apply Lord Watson's assumption in Cooper v. Stuart that the colony of New South Wales was "without settled inhabitants or settled law" to Aboriginal society in the Northern Territory, the assumption proved false. In Milirrpum v. Nabalco Pty. Ltd. Blackburn J. said (58) (1971) 17 FLR 141, at p 267:
"The evidence shows a subtle and elaborate system highly
adapted to the country in which the people led their lives,
which provided a stable order of society and was remarkably
free from the vagaries of personal whim or influence. If
ever a system could be called 'a government of laws, and
not of men', it is that shown in the evidence before me."
Faced with a contradiction between the authority of the Privy Council and the evidence, his Honour held that the class to which a colony belonged was a question of law, not of fact (59) ibid., at p 244; McNeil, Common Law Aboriginal Title, (1989), p 292, fn.207; Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument, (unpublished doctoral thesis (1981)), pp 100-107, 155-157:
"Whether or not the Australian aboriginals living in any
part of New South Wales had in 1788 a system of law which
was beyond the powers of the settlers at that time to
perceive or comprehend, it is beyond the power of this
Court to decide otherwise than that New South Wales came
into the category of a settled or occupied colony."

38. The facts as we know them today do not fit the "absence of law" or "barbarian" theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land, as Lord SumnER speaking for the Privy Council said in In re Southern Rhodesia (60) (1919) AC 211, at pp 233-234:
" The estimation of the rights of aboriginal tribes is
always inherently difficult. Some tribes are so low in
the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them."

39. As the indigenous inhabitants of a settled colony were regarded as "low in the scale of social organization", they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was "no other proprietor of such lands". Thus, a Select Committee on Aborigines reported in 1837 to the House of Commons that the state of Australian Aborigines was "barbarous" and "so entirely destitute ... of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded" (61) Cited by Lindley, op cit, at p 41. The theory that the indigenous inhabitants of a "settled" colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher "in the scale of social organization" than the Australian Aborigines whose claims were "utterly disregarded" by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.

40. The theory of terra nullius has been critically examined in recent times by the International Court of Justice in its Advisory Opinion on Western Sahara (62) (1975) ICJR, at p 39. There the majority judgment read:
"'Occupation' being legally an original means of peaceably
acquiring sovereignty over territory otherwise than by
cession or succession, it was a cardinal condition of a
valid 'occupation' that the territory should be terra
nullius - a territory belonging to no-one - at the time of
the act alleged to constitute the 'occupation' (cf. Legal
Status of Eastern Greenland, P.C.I.J., Series A/B, No.53,
pp 44 f. and 63 f.). In the view of the Court, therefore,
a determination that Western Sahara was a 'terra nullius'
at the time of colonization by Spain would be possible only
if it were established that at that time the territory
belonged to no-one in the sense that it was then open to
acquisition through the legal process of 'occupation'.
80. Whatever differences of opinion there may have been
among jurists, the State practice of the relevant period
indicates that territories inhabited by tribes or peoples
having a social and political organization were not
regarded as terrae nullius. It shows that in the case of
such territories the acquisition of sovereignty was not
generally considered as effected unilaterally through
'occupation' of terra nullius by original title but through
agreements concluded with local rulers. On occasion, it
is true, the word 'occupation' was used in a non-technical
sense denoting simply acquisition of sovereignty; but that
did not signify that the acquisition of sovereignty through
such agreements with authorities of the country was
regarded as an 'occupation' of a "terra nullius" in the
proper sense of these terms. On the contrary, such
agreements with local rulers, whether or not considered as
an actual 'cession' of the territory, were regarded as
derivative roots of title, and not original titles obtained
by occupation of terrae nullius."
Judge Ammoun, Vice-President of the Court, delivered a separate opinion in which he commended as penetrating the views expressed on behalf of the Republic of Zaire which he restated as follows (63) ibid., at pp 85-86:
" Mr. Bayona-Ba-Meya, goes on to dismiss the materialistic
concept of terra nullius, which led to this dismemberment
of Africa following the Berlin Conference of 1885. Mr. Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or 'mother nature', and
the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. This amounts to a denial of the very concept of terra nullius in the sense of a land which is capable of being appropriated by someone who is not born therefrom. It is a condemnation of the modern concept, as defined by Pasquale Fiore, which regards as terrae nullius territories inhabited by populations whose civilization, in the sense of the public law of Europe, is backward, and whose political organization is not conceived according to Western norms. One might go still further in analysing the statement of the representative of Zaire so as to say that he would exclude from the concept of terra nullius any inhabited territory. His view thus agrees with that of Vattel, who defined terra nullius as a land empty of inhabitants." He concluded (64) ibid., at p 86 that "the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned." The court was unanimously of the opinion that Western Sahara at the time of colonization by Spain in 1884 was not a territory belonging to no-one (terra nullius).

41. If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be "so low in the scale of social organization" that it is "idle to impute to such people some shadow of the rights known to our law" (65) In re Southern Rhodesia (1919) AC, at pp 233-234 can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

42. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. The policy appears explicitly in the judgment of the Privy Council in In re Southern Rhodesia in rejecting an argument (66) ibid., at p 232 that the native people "were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial ... and that the unalienated lands belonged to them still". Their Lordships replied (67) ibid., at p 234-
"the maintenance of their rights was fatally inconsistent
with white settlement of the country, and yet white
settlement was the object of the whole forward movement,
pioneered by the Company and controlled by the Crown, and
that object was successfully accomplished, with the result
that the aboriginal system gave place to another prescribed
by the Order in Council".
Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights (68) See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. It was such a rule which evoked from Deane J. (69) Gerhardy v. Brown (1985) 159 CLR 70, at p 149 the criticism that -
"the common law of this land has still not reached the stage
of retreat from injustice which the law of Illinois and
Virginia had reached in 1823 when Marshall C.J., in Johnson
v. McIntosh (70) (1823) 8 wheat, at p 574 (21 US , at
p 253), accepted that, subject to the assertion
of ultimate dominion (including the power to convey title
by grant) by the State, the 'original inhabitants' should
be recognized as having 'a legal as well as just claim' to
retain the occupancy of their traditional lands".

43. However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system. The proposition that the Crown became the beneficial owner of all colonial land on first settlement has been supported by more than a disregard of indigenous rights and interests. It is necessary to consider these other reasons for past disregard of indigenous rights and interests and then to return to a consideration of the question whether and in what way our contemporary common law recognizes such rights and interests in land. Crown title to colonies and Crown ownership of colonial land distinguished

44. In the trilogy of cases cited earlier in this judgment (71) Supra, pp 12-15: Attorney-General v. Brown; Randwick Corporation v. Rutledge; the Seas and Submerged Lands Case, it was said that colonial land became a royal demesne - that is, that the Crown became the absolute beneficial owner in possession of all colonial land - on first settlement, the event which conferred sovereignty on the Imperial Crown. Curiously, in Williams v. Attorney-General for New South Wales (72) (1913) 16 CLR 404, at p 439, Isaacs J. said it was unquestionable that -
"when Governor Phillip received his first Commission from
King George III. on 12th October 1786, the whole of the
lands of Australia were already in law the property of the
King of England".
With respect to Isaacs J., that proposition is wholly unsupported. Roberts-Wray comments (73) Commonwealth and Colonial Law op cit, p 631 that the proposition is "startling and, indeed, incredible". We need not be concerned with the date on which sovereignty over the Australian colonies was acquired by the Crown but we are concerned with the proposition that on, and by reason of, the acquisition of sovereignty, the Crown acquired all colonial land as a royal demesne.

45. There is a distinction between the Crown's title to a colony and the Crown's ownership of land in the colony, as Roberts-Wray points out (74) ibid., p 625:
"If a country is part of Her Majesty's dominions, the
sovereignty vested in her is of two kinds. The first
is the power of government. The second is title to the
country ...
This ownership of the country is radically different
from ownership of the land: the former can belong only to
a sovereign, the latter to anyone. Title to land is not,
per se, relevant to the constitutional status of a country;
land may have become vested in the Queen, equally in
a Protectorate or in a Colony, by conveyance or under
statute ...
The distinction between these two conceptions has,
however, become blurred by the doctrine that the
acquisition of sovereignty over a Colony, whether by
settlement, cession or conquest, or even of jurisdiction
in territory which remains outside the British dominions,
imports Crown rights in, or in relation to, the land
itself."
Similarly, Sir John Salmond distinguished the acquisition of territory from the Crown's acquisition of property (75) Jurisprudence, 7th ed. (1924), appendix "The Territory of the State", p 554:
"The first conception pertains to the domain of public law,
the second to that of private law. Territory is the
subject-matter of the right of sovereignty or imperium
while property is the subject-matter of the right of
ownership or dominium. These two rights may or may not
co-exist in the Crown in respect of the same area. Land
may be held by the Crown as territory but not as property,
or as property but not as territory, or in both rights at
the same time. As property, though not as territory, land
may be held by one state within the dominions of another."
Professor O'Connell in his work International Law (76) 2nd ed. (1970), at p 378, cited by Hall J. in Calder v. Attorney-General of British Columbia (1973) SCR.313, at pp 404-405; (1973) 34 DLR (3d) 145, at p 210 points to the distinction between acquisition of territory by act of State and the abolition of acquired rights:
"This doctrine (of act of State), which was affirmed in
several cases arising out of the acquisition of territory
in Africa and India, has been misinterpreted to the effect
that the substantive rights themselves have not survived
the change."
The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. The distinction between the Crown's title to territory and the Crown's ownership of land within a territory is made as well by the common law as by international law. A.W.B. Simpson (77) A History of the Land Law, 2nd ed. (1986) distinguishes the land law rule in England that all land is held of the Crown from the notion that all land is owned by the Crown. Speaking of the mediaeval conception of materialism, he comments (78) ibid., p 47:
"This attitude of mind also encouraged the rejection of any
theory which would say that the lord 'owned' the land, and
that the rights of tenants in the land were iura in re
aliena. Such a theory would have led inevitably to saying
that the King, who was ultimately lord of all land, was the
'owner' of all land.
The lawyers never adopted the premise that the King
owned all the land; such a dogma is of very modern
appearance. It was sufficient for them to note that the
King was lord, ultimately, of all the tenants in the realm,
and that as lord he had many rights common to other lords
(e.g. rights to escheats) and some peculiar to his position
as supreme lord (e.g. rights to forfeitures)."
The general rule of the common law was that ownership could not be acquired by occupying land that was already occupied by another. As Blackstone pointed out (79) Commentaries, Bk.II, ch.1, p 8:
"Occupancy is the thing by which the title was in fact
originally gained; every man seizing such spots of ground
as he found most agreeable to his own convenience, provided
he found them unoccupied by any one else." (Emphasis
added.)

46. It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.

47. A basic doctrine of the land law is the doctrine of tenure, to which Stephen C.J. referred in Attorney-General v. Brown, and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency. It is derived from feudal origins. The feudal basis of the proposition of absolute Crown ownership

48. The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord (80) Attorney-General of Ontario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, not the relationship between tenant and land. The characteristic of feudalism "is not tenere terram, but tenere terram de X" (81) Pollock and Maitland, The History of English Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: "The King had 'dominium directum', the subject 'dominium utile'" (82) ibid., p 773; Co Litt 16. Absent a "dominium directum" in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. When the Crown acquired territory outside England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made. After all, as Holdsworth observed (83) op cit, vol.ii, p 199, the universal application of the doctrine of tenure is a purely English phenomenon. And Pollock and Maitland may be correct in saying (84) op cit, vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that the notion of universal tenure "perhaps was possible only in a conquered country". In Scotland, the King was not Paramount Lord of all land: some allodial lands remained in the Orkney and Shetland Islands, though most land that had been held allodially became subject to feudal tenure (85) Bell, Lectures on Conveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, The Institutions of the Law of Scotland, 4th ed. (1826), pp 219, 222; Craigie, Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v. Balfour (1907) SC 1360, at p 1368-1369. However, the English view favoured a universal application of the doctrine of tenure (86) Pollock and Maitland, op cit, pp 232-233:

101. In the thirteenth century Bracton wrote(632) Bracton on the Laws and Customs of England, (Thorne Tr.) (1977), vol.III, p 134:
"(E)veryone who is in possession, though he has no right,
has a greater right (than) one who is out of possession
and has no right". It is said that possession is the root of title(633) Asher v. Whitlock (1865) 1 QB 1; Perry v. Clissold (1907) AC 73; Calder (1973) SCR, at p 368; (1973) 34 DLR (3d), at p 185; Megarry and Wade, The Law of Real Property, 5th ed. (1984) (hereafter "Megarry and Wade"), pp 105-106; Pollock and Wright, pp 22,94-95. Cf. Holdsworth, A History of English Law, 2nd ed. (1937), vol.VII, (hereafter "Holdsworth, vol.VII"), pp 64-65, but see analysis of Holdsworth, vol.VII, in Allen v. Roughley (1955) 94 CLR 98, at pp 134ff. To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land - both leasehold and freehold(634) Holdsworth, vol.VII, p 9. And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land(635) Bristow v. Cormican (1878) 3 App Cas 641, at p 661; Megarry and Wade, pp 105, 1158-1159. It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumbersomeness and ineffeciency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages(636) Holdsworth, A History of English Law, 5th ed. (1942), vol.III (hereafter "Holdsworth, vol.III"), pp 3-4; Holdsworth, vol.VII, p 4., emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth(637) Holdsworth, vol.III, pp 3-29 and by Pollock and Maitland(638) The History of English Law, 2nd ed. (1898), vol.II (hereafter "Pollock and Maitland"), pp 46-80; it is unnecessary to repeat what is said by those writers. (iii) Ejectment: The relationship between possession and title

102. One view(639) See Holdsworth, vol.VII, pp 62-64 is that the advent of ejectment represented a fundamental change in the concept of ownership in English law, involving the idea of absolute title divorced from its radical attribute, possession. But the other view(640) See Hargreaves, "Terminology and Title in Ejectment", (1940) 56 Law Quarterly Review 376; Pollock and Wright, pp 93-97; Megarry and Wade, pp 104-105; Asher v. Whitlock (1865) 1 QB, at p 5, which is more persuasive, is that the basic relationship between possession and ownership of land established by the earlier real actions, involving the idea of relative claims to possession, was maintained or even emphasised in the action of ejectment. A successful claim to an interest in land comprised the better claim to possession and its associated rights as between the parties.

103. In order to show a title which would defeat the defendant in possession, the plaintiff in ejectment had to prove a right of entry; the defendant could rely on possession. Therefore, the plaintiff was put to proof of the strength of his or her title and could not rely on the weakness of the defendant's title(641) Roe d. Haldane v. Harvey (1769) 4 Burr 2484, at p 2487 (98 ER 302, at p 304); Goodtitle d. Parker v. Baldwin (1809) 11 East 488, at p 495 (103 ER 1092, at p 1095). The central issue, therefore, in an action for ejectment, and on which opinions have differed, was what circumstances gave a right of entry. Was proof by the plaintiff of mere prior possession sufficient to found a right of entry against the defendant, indicating that possession gave rise to an enforceable "title", or was more required? Did possession give rise to a title which survived the loss of possession? The relevance of this question is that it points up the nature of the entitlements arising from the mere possession which would, subject to proof, have existed immediately on annexation.

104. So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest(642) Asher v. Whitlock; Ex parte Winder (1877) 6 ChD 696; Rosenberg v. Cook (1881) 8 QBD 162. A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead(643) Wheeler v. Baldwin (1934) 52 CLR 609, at pp 631-633; Elvis v. Archbishop of York (1619) Hob 315, at p 322 (80 ER 458, at p 464); Pollock and Wright, pp 93-94; Maitland "The Mystery of Seisin" (1886) 2 Law Quarterly Review 481, esp. pp 482-486. A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved(644) Wheeler v. Baldwin (1934) 52 CLR, at p 632. And, in the circumstances under consideration, there is no possibility of a leasehold estate at the time of annexation or of some other lesser estate. Applied to these circumstances, prima facie all indigenous inhabitants in possession of their land on annexation are presumed to have a fee simple estate.

105. But what does English land law have to say if possession of land is lost? The seisin and fee simple enjoyed as a result of possession would also be lost because each successive possessor must enjoy the rights directly associated with possession. According to this analysis, the last possessor only in any succession would enjoy the entitlements. If the Crown dispossessed an indigenous people, its title arising from possession would be the best claim. This was the effect of Holdsworth's analysis of land law. He concluded that proof of prior possession was insufficient in itself to provide a right of entry in the plaintiff against a defendant who was a mere possessor(645) Holdsworth, vol.VII, pp 61-68; Stokes v. Berry (1699) 2 Salk 421 (91 ER 366); Doe d. Wilkins v. Marquis of Cleveland (1829) 9 B. and C. 864 (109 ER 321). That is, possession of itself gives rise to no title which survives dispossession.

106. The better understanding is, I think, that if no other factors come into play, then, regardless of the length of time, as between mere possessors prior possession is a better right(646) Allen v. Rivington (1670) 2 Wms Saund 111 (85 ER 813); Doe d. Smith and Payne v. Webber (1834) 1 AD. and E 119 (110 ER 1152); Doe d. Hughes v. Dyeball (1829) M.and M. 346 (173 ER 1184); Asher v. Whitlock; Perry v. Clissold; Oxford Meat Co Pty. Ltd. v. McDonald (1963) 63 SR(NSW) 423; Spark v. Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; Allen v. Roughley; Wheeler v. Baldwin (1934) 52 CLR, at pp 624, 632-633; Pollock and Maitland, p 46. Possession is protected against subsequent possession by a prima facie right of entry.

107. The proposition that possession of itself gives rise to a right in the plaintiff to recover possession, if lost, is supported by principle. In losing possession, a plaintiff has lost the rights associated with possession, including the right to defend possession as well as an estate in the land. But nothing has upset the presumption that the plaintiff's possession, and therefore his or her fee simple, was lawfully acquired and hence good against all the world. "Possession is prima facie evidence of seisin in fee simple"(647) Peaceable d. Uncle v. Watson (1811) 4 Taunt 16, at p 17 (128 ER 232, at p 232); Wheeler v. Baldwin (1934) 52 CLR, at p 632; see also Doe d. Stansbury v. Arkwright (1833) 5 Car. and P 575 (172 ER 1105); Denn d. Tarzwell v. Barnard (1777) 2 Cowp 595 (98 ER 1259); Asher v. Whitlock (1865) 1 QB, at p 6; Allen v. Roughley (1955) 94 CLR, at p 108. Without evidence to the contrary, nothing has displaced the presumption arising from proof of the plaintiff's possession that he or she had lawful title amounting to a fee simple. Thus, although a dispossessed plaintiff in ejectment must prove the strength of his or her own title and cannot rely on the weakness of the defendant's title, the presumption of lawfulness arising from prior possession is positive evidence in that regard(648) cf. note (a) in Allen v. Rivington (1670) 2 Wms Saund, at p 111 (85 ER, at p 813).

108. It follows from this, however, that a person's title arising from prior possession can be defeated either by a defendant showing that he or she (or another person, in so far as it undermines the plaintiff's claim) has a better, because older, claim to possession or by a defendant showing adverse possession against the person for the duration of a limitation period.

109. In sum, English land law, in 1879 and now, conferred an estate in fee simple on a person in possession of land enforceable against all the world except a person with a better claim. Therefore, since the Meriam people became British subjects immediately on annexation, they would seem to have then acquired an estate in fee simple. This is subject to the question whether the Meriam people could be said to be in possession. The question then arises - does the Crown have a better title? Put another way, did the defendant have a better claim to possession when it acquired sovereignty in 1879 or 1895?
(iv) Did the Crown have a better claim to possession?

110. The defendant argued that upon annexation the Crown became the absolute owner of and was, in law, in possession of the Islands and that this precludes any possessory title in the plaintiffs. Furthermore, it says, since 1882 the possession of the plaintiffs and their predecessors in title (if any) has, in law, been attributable to the fact that the Crown has permitted them to occupy a reserve created for the benefit of Aboriginals and of Islanders of the State. It follows, so the argument runs, that the plaintiffs' possession now cannot constitute good title against the State of Queensland.

111. The position of the Crown resulting from annexation was discussed earlier in this judgment. There is no foundation for the conclusion that by annexation the Crown acquired a proprietary title or freehold possession of occupied land. It acquired a radical title only. This may dispose of the defendant's answer. However, it should be considered further in the context of English land law and the doctrine of tenures.

112. As McNeil observes(649) McNeil, p 85: "The Crown must prove its present title just like anyone else."
The Crown could not have acquired original title by occupancy as a matter of fact because it had no presence in the colony before settlement and occupation of land by indigenous inhabitants would have excluded occupancy by the Crown after annexation, except in land truly vacant(650) See "Annexation - its consequences" above; McNeil, pp 216-217. However, underlying the doctrine of tenures is the proposition that landholders hold their land either mediately or immediately of the Crown(651) See Blackstone, Commentaries, 17th ed. (1830), vol.II, pp 50-51. And a legal fiction justifies this feudal theory: that all land was, at one time, in the possession of the King who had granted some of it to subjects in return for services. Therefore, it is said in answer to the claim for a possessory title, at the commencement of the realm - on annexation - possession to all land was vested in the Crown.

113. However, the effect of the fiction of past possession by the Crown is to secure the paramount lordship or radical title of the Crown which is necessary for the operation of feudal land law. And since fictions in law are only acknowledged "for some special purpose"(652) Needler v. Bishop of Winchester (1614) Hob 220, at p 222 (80 ER 367, at p 369); Mostyn v. Fabrigas (1774) 1 Cowp 161, at p 177 (98 ER 1021, at p 1030); Anon., Considerations on the Law of Forfeitures, for High Treason, 4th ed. (1775), pp 64-65, cited in McNeil, p 84, that should be taken to be the extent of the fiction. So far as the system of tenures is concerned, on which English land law is based, no more is required.

114. Furthermore, the fiction of a lost Crown grant(653) The idea of a presumption of a Crown grant to make good a title where possession is proved is referred to in Doe d. Devine v. Wilson in the Privy Council on appeal from New South Wales: (1855) 10 Moo 502, at pp 523-528 (14 ER 581, at pp 589-591) answers the fiction of original Crown ownership and in so doing protects titleholders. As McNeil points out(654) McNeil, p 84:
"The Crown cannot, on the strength of its fictitious
original title, require a person who is in possession of
land to prove his right by producing a royal grant, for in most cases no grant exists. The grant is deemed in law to have been made, if not to a predecessor of the present possessor, then to someone else."

115. Therefore, if the fiction that all land was originally owned by the Crown is to be applied, it may well be that it cannot operate without also according fictitious grants to the indigenous occupiers.
(v) Possession

116. Possession is a conclusion of English law, a law alien to indigenous inhabitants before annexation. Therefore, before annexation the Meriam people would not have been in possession. Occupation on the other hand is a question of fact. In some cases the person in occupation is not the possessor of land, for example, where he or she is an agent of the possessor. But it may be presumed, in the absence of circumstances which show possession is in another, that the occupier of land is also in possession(655) Pollock and Wright, p 20; Doe d. Stansbury v. Arkwright. As we have seen, the Crown could not show it had possession of occupied land after annexation.

117. At common law conduct required to prove occupation or possession will vary according to the circumstances including, for example, whether the claimant enters as a trespasser or as of right(656) Stanford v. Hurlstone (1873) LR 9 Ch App 116. And the nature of the land will to a large extent dictate the use that might be made of it. For example, conduct amounting to possession will be different in relation to a dwelling and to uncultivated land(657) Lord Advocate v. Lord Lovat (1880) 5 App Cas 273, at p 288; Johnston v. O'Neill (1911) AC 552, at p 583; Kirby v. Cowderoy (1912) AC 599, at pp 602-603. Some land is barren and unproductive so that it cannot sustain people all the year round. It may be necessary for occupiers to seek water and sustenance elsewhere for part of the year, returning to "their" land as soon as it is possible.

118. These are matters which are discussed at some length by McNeil(658) McNeil, pp 196-204. It is unnecessary to pursue evidentiary matters in the present case because the nature of the occupation of the Islands by the Meriam people, already discussed in relation to traditional title, points clearly enough to possession according to English law.

119. The defendant argued that the occupation enjoyed by the Meriam people today is by permission from the Crown, due to the creation of a reserve in 1882, and therefore cannot amount to possession in the relevant sense. In answer to this, first, since occupation by the Meriam people is, and was, apparent, the onus lies on the defendant to show possession is not in the occupiers. Secondly, there is no documentary evidence to prove the 1882 reserve. Assuming for the defendant that it was created, if annexation occurred in 1879 the reserve would amount to dispossession, unless the defendant can show that it and not the Meriam people acquired the right to possession on annexation. Subject to the limitation of actions and the question whether possession by the Crown was adverse, the Meriam people may well be entitled to recover possession according to the principles discussed above. If annexation occurred in 1895, the Crown in right of Queensland may have prevented the Meriam people acquiring possession on annexation. But it is unlikely that the creation of the reserve in 1882, or subsequently in 1912, affected the Meriam people's common law possession since that did not diminish enjoyment but ensured it remained with the people.
(vi) Possessory title - conclusions

120. It follows from this analysis that the Meriam people may have acquired a possessory title on annexation. However, as I have said, the consequences here are no more beneficial for the plaintiffs and, the argument having been put as an alternative, it is unnecessary to reach a firm conclusion. In any event, it is unlikely that a firm conclusion could be reached since some matters, the creation of the reserve for example, were not fully explored.
Racial Discrimination Act

121. The effect of this judgment is that the traditional title of the Meriam people survived annexation. Anything done by the defendant constituting interference with that title would, on the view I have taken, be a breach of a fiduciary obligation owed by the defendant to the Meriam people. Earlier in this judgment I have referred to possible implications of the Racial Discrimination Act; I should now explain what I mean.

122. Ordinarily, land is only acquired for a public purpose on payment of just terms, whatever may be the precise statutory language employed(659) See for instance Lands Acquisition Act 1989 (Cth), Pt VII; Land Acquisition (Just Terms Compensation) Act 1991 (N.S.W.), Pt 3; Land Acquisition and Compensation Act 1986 (Vict), Pt 3; Acquisition of Land Act 1967 (Q.), Pt IV; Land Acquisition Act 1969 (S.A.), Pt IV; Public Works Act 1902 (W.A.), Pt III; Lands Resumption Act 1957 (Tas.), Pt IV; Lands Acquisition Act 1978 (N.T.), Pt VII. If the defendant sought to interfere with the Meriam people's enjoyment of the Islands which their traditional title gives them and failed to do so on just terms, a question arises whether that action would be in contravention of ss.9 or 10 of the Racial Discrimination Act.

123. Section 9 relevantly provides:
" (1) It is unlawful for a person to do any act
involving a distinction, exclusion, restriction or
preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. ... (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention."

124. Section 10 reads:
" (1) If, by reason of, or of a provision of, a law of
the Commonwealth or of a State or Territory, persons of a
particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where a law contains a provision that: (a) authorizes property owned by an Aboriginal or a

Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person."

125. In Mabo v. Queensland Brennan, Toohey and Gaudron JJ. said of s.9(660) (1988) 166 CLR, at p 216:
"Section 9 proscribes the doing of an act of the
character therein mentioned. It does not prohibit the
enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land: Gerhardy v. Brown(661) (1985) 159 CLR 70, at pp 81, 120-121. It is arguable that the operation of a law which brings into existence or extinguishes rights in or over land is not affected by s.9 merely because a consequence of the change in rights is that one person is free to do an act which would otherwise be unlawful or another person is no longer able to resist an act being done."

126. But, as the judgment continued, s.10 relates to the enjoyment of a right, not to the doing of an act and the right referred to in s.10(1) need not be a legal right. Rights referred to in Art.5 of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention referred to in s.10(2), include:
"(d)(v) The right to own property alone as well as in
association with others;

(vi) The right to inherit."

The right to be immune from arbitrary deprivation of property is a human right, if not necessarily a legal right, and falls within s.10(1) of the Act, even if it is not encompassed within the right to own and inherit property to which Art.5 refers.

127. The question here is whether extinguishment of the traditional title of the Meriam people without the compensation provided for in the Acquisition of Land Act 1967 (Q.) means that, by reason of a law of Queensland, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin or enjoy a right to a more limited extent than those persons. If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other titleholders in Queensland or, at the least, they enjoy a right to a more limited extent. A law which purported to achieve such a result would offend s.10(1) of the Racial Discrimination Act and in turn be inconsistent with the Act within the meaning of s.109 of the Constitution. The Racial Discrimination Act would therefore prevail and the proposed law would be invalid to the extent of the inconsistency.
Conclusion

128. While this action raises questions of great importance, the answers which it is possible to give to those questions necessarily speak in general terms rather than deal with particular aspects of the traditional title of the Meriam people. This is not a criticism of the way in which the plaintiffs' claim was formulated; it is simply a recognition that the claim for declaratory relief does speak in general terms. Consistent with the general nature of the claim made and the reasons underlying this judgment, I would make a declaration in the following terms: 1. Upon the annexation of the Murray Islands to Queensland, the
radical title to all the land in those islands vested in the
Crown in right of Queensland. 2. The traditional title of the Meriam people to the Murray Islands, being their rights to possession, occupation, use and enjoyment
of the Islands, survived annexation of the Islands to Queensland and is preserved under the law of Queensland. 3. The traditional title of the Meriam people to the land in the Islands has not been extinguished by subsequent legislation or
executive act and may not be extinguished without the payment of compensation or damages to the traditional titleholders of the Islands. 4. The land in the Murray Islands is not Crown land within the
meaning of that term in s.5 of the Land Act 1962 (Q.)

129. For the reasons that appear in this judgment, I would not make any declaration as to the consequences of the lease to the London Missionary Society in 1882 and the consequences of the lease granted over Dauer and Waier in 1931. It may be appropriate to grant liberty to apply in respect of each of those matters if any of the parties seeks an order to this effect.

Orders

In lieu of answering the questions reserved for the consideration of the Full Court,

(1) declare that the land in the Murray Islands is not Crown land within the meaning of that term in s. 5 of the Land Act 1962 (Q.);

(2) putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, declare that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands;

(3) declare that the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.