Mabo v Queensland (No 2) - [1991] HCATrans 23

•

"

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane No Bl2 of 1982
B e t w e e n -
EDDIE MA.BO

First-named Plaintiff

DAVID PASSI

Second-named Plaintiff

JAMES RICE

Third-named Plaintiff

(who bring this action on their
own behalf, and on behalf of
the members of their respective
family groups)
and
THE STATE OF QUEENSLAND

Defendant

MASON CJ

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BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON 28 MAY 1991, AT 10.19 AM

MR A.R. CASTAN, QC:

May it please the Court I appear with

my learned friend, MR B.A. KEON-COHEN for the
plaintiffs David Passi and James Rice. (instructed
by Corser and Corser)

MR G.M. McINTYRE: If it pleases the Court, I appear for the

first named plaintiff, Mr Mabo. (instructed by
Corser and Corser)

MR G.L. DAVIES, QC, Solicitor-General for Queensland:

May

it please the Court, I appear with my learned
friends, MR H.B. FRASER and MR G.J. KOPPENOL, for
the defendant. (instructed by the Crown Solicitor
for the State of Queensland)

MASON CJ: Yes, Mr Solicitor?

MR DAVIES:

Your Honours, before our learned friend

addresses, could I indicate to Your Honours the
material which we have handed up to the Court this

morning.

We have handed up in a blue folder the

pleadings and the questions stated for the Court -
pleadings in particular of the questions stated.
In two red folders we have handed up copies of the

relevant statutes and in two green folders we have

handed up copies of the relevant cases which are
not reported in the Commonwealth Law Reports or the

Appeal Cases.

TOOHEY J: Thank you.

Mr Solicitor, in the material handed

up by the plaintiff, I think it is volume 3 of the
three volume set there is a set of pleadings, is
there any difference between pleadings in that
material and pleadings in the blue volumes?

MR DAVIES:

I think no material difference, Your Honour.

MASON CJ: Yes, Mr Castan?

Perhaps I should mention, Your Honours, about

the pleadings, that there is just one matter for

note about them, that there is a set of pleadings
reproduced by His Honour Mr Justice Moynihan in his
determination, and on closer examination it became apparent to us that there had been some amendments
made by His Honour subsequent to the set in the
form that His Honour had reproduced in the
determination, but I think the set that our learned
friends have reproduced and the set that we have
reproduced in our our volume - I think it is
volume 6 of our - I do not remember the number, but
in any event, I think we are agreed on the final
set.
Your Honours, we have in our written

submissions commenced with a summary of contentions which, we would respectfully submit, may assist the

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Court in grasping the range of issues that are to
be examined, and in a volume which I understand
Your Honours have, which was a volume of extracts
of our submissions, which was, I think, entitled
volume 7 - that volume starts off with those

contentions reproduced. They are marked as pages 1
to 5 of our submissions, and in the compilation,
if I can call it that, someone has referred to it
as the airmail version. That is accompanied by some
pages which contain some diagrammatic
representations of the way the issues fall, and I
would seek to briefly take Your Honours to those
passages; that is pages 1 to 5 of our submissions
and accompanying them in the compilation set, if I
can call it that, what appeared as pages 1077
to 1092, and the summary of contentions at page 1
of our submissions endeavours to encapsulate what
the basic issues are.
It is put firstly that one must examine the pre-annexation situation here, that prior to
annexation the islands were occupied by the Meriam
people and that individuals held and exercised
rights and interests within that society in areas
of land on behalf of themselves and the groups.
Secondly, we put it that the islands formed
part of an area in which the Government of Great
Britain acknowledged sovereignty and dominion of

respective peoples. Your Honours will see that as
the second general proposition - that the persons
who held such interests included the ancestors and
predecessors in title of the plaintiffs Passi and
Rice - and then paragraph 4 expresses the
annexation and raises the question of the effect of
an annexation on that pre-existing situation that
upon annexation, however effected - and that is
dealt with in Wacando, and we have some submissions
as to the meaning and effect of the Wacando
decision, in which this question of annexation of
these islands is looked at, and I will be coming to

Crown, and our submission is in the second sentence that later - that sovereignty passed to the British
of paragraph 4 that such transfer did not have the
effect of extinguishing those interests which
existed prior to annexation. Whether settled,
ceded, conquered or otherwise acquired they
continued without the need for any act of
recognition.
Apart from the controversy over the earlier

matters which has been put in issue about the type
of interest which existed prior to annexation, that
proposition raises the first matter, as we have now
seen from the exchange of written submissions, that
is the first what we might call principal legal
issue raised, the effect of annexation, whether

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there is a need for positive recognition by the
relevant Crown in its appropriate capacity or
whether the interests continue until otherwise
extinguished.
Then it is put, in paragraph 5, and on that,

of course, we differ and is the subject already of lengthy written contentions, and we will endeavour
to outline the way in which it is put.
The fifth proposition is that if the correct position be that traditional interests in land did
not continue after annexation, in the absence of
positive acts of recognition by the Crown, then
such positive acts of recognition in fact occurred

in this instance. We are at issue as to that and
will have to take Your Honours - we dealt with that
in the submissions in some detail, and our learned
friends have put their reasons in their submissions
why they say those do not amount to that kind of
recognition.
Then the next question is assuming that there

was a power to extinguish in existence, it is
submitted that the power has not been exercised.
It is submitted that the declaration of a "Reserve"
in 1882 and again in 1912 had the effect of
removing land from the category of land which might
be the subject of a Crown grant pursuant to the
provisions of the relevant Lands Act. However, it
did not amount, we submit, to an extinguishment,

merely by the fact of a reserve. No de-gazettal of
the reserve so as to enable a Crown grant
inconsistent with the interests claimed by the
plaintiffs has occurred, and we submit no
legislation or implementation of executive policy
has had the effect of extinguishing those

interests. And we, of course, submit that the
existence of the provisions of the Lands Act
themselves providing for Crown grants does not of

itself amount to extinguishment of those interests,
nor the subsequent amendments which provided in
1982 and 1984 and, in fact, subsequently I think,
there are later amendments, providing the specific
concept of the deeds of grant in trust.
Now, the question of whether there has been an

extinguishment is, of course, very much in issue
and the principal question that arises as we
understand it, having now had the benefit of our
learned friends' submissions, is the question of
whether the very existence of the provision of a
Crown land scheme of the kind that is typical to all of the States of Australia, whether the mere existence of such a scheme meant that interests of

the kind claimed here cannot continue·. We

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respectfully submit that the existence of such a
Crown land scheme does not, and we will deal with
that.
Then we summarize the ways in which we say

those interest which are claimed continued - at
paragraph 7 at the foot of page 2 - that they
continued as traditional ownership, being a burden
upon the radical title of the Crown, but which was
nonetheless enforceable against the Crown, and as
against third parties, until effectively
extinguished and that they have continued until
today.
Alternatively, we submit we have established

customs operating in relation to land in the local
area of the Murray Islands which are given statutory

force and effect. We will take Your Honours to the
statutes which provide for local usage and custom to
operate on the islands and which also meet the
common law test required to establish what we have
elsewhere called local legal "custom". Thus they
have a customary title, using that in its what we
might all more technical sense, whether or not the
interests of their respective predecessors in title
survived annexation. That is the second basis on
which the nature of the rights is claimed.
Then, in 8, alternatively, there is a claim

based on possession; that is to say they have been
in possession of respective areas since beyond
living memory and they are entitled to be treated as
owners whether or not they are able to establish
traditional title in accordance with Murray Island tradition or in accordance with the law of custom.
As persons in possession they are entitled to be treated as owners or entitled at the least to
usufructuary rights by reason of their possession.
That raises a matter which overlaps with the

earlier question of the underlying concepts and

effect of Crown lands legislation because, of
course, the Crown lands legislation itself turns on
questions of into the possession of whom does land

come when first annexed by the Crown. And we are
at odds on that, of course, the defendant claiming
that on annexation possession, as we understand it,
actual possession, of all lands is taken by the
Crown notwithstanding the fact of occupation, the
fact of de facto occupation by peoples and
notwithstanding that that de facto occupation

continues. And that issue we will come to.
And then, it is submitted, pursuant to the

provisions of the Lands Acts and the provisions of
the Torres Strait Islanders Acts and various

legislation, we say there are particular statutory

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rights which exist and we will deal with those,
though obviously, of course, being statutory
rights, they are liable to be altered by the
legislature subject to what we say in the last
proposition concerning power.
In paragraph 10 we contend that the defendant,

in any event, is under a fiduciary duty, or
alternatively, is trustee of a trust of which the
plaintiffs and the other islanders are the
beneficiaries, in relation to their rights and
interests and that they arise from the existence of
those traditional rights and interests and their
exercise on a continuous basis since 1879, and from
the statutory basis upon which they have been held
under the relevant Land Acts and the specific Acts
dealing with the Torres Strait Islands from the
history of administration, from the sui generis
nature and the other matters there set out.
Then we put the general proposition in

paragraph 11 that the society has continued and
that there are interests operating in continuity
with the interests which existed before though, of

course, subject to change. We then, in paragraph
12, put the proposition that assuming Queensland
has power to extinguish, that it did not do so
prior to the passage of the Racial Discrimination Act of 1975 and that if the amendments which have brought about the current situation in which the
deeds of grant in trust may be given, if they now
provide for administrative action which would
impair the rights that we say have continued, then
that administrative action and those provisions
would be in conflict with the provisions of the
Racial Discrimination Act, and we have got
submissions as to why that is, and therefore
invalid pursuant to section 109.
That raises questions very similar to those

that were dealt with by the Court in the earlier
proceedings in relation to this action in which a
positive extinguishing Act of 1985 was dealt with

by the Court some three years ago. We have not put

it there. We have dealt with it elsewhere. I
should add to paragraph 12, if those provisions are
not otherwise invalid, pursuant to section 109 -
and they have the effect of extinguishing - then we
say the plaintiffs are entitled to compensation,
for reasons that.are developed.
Then in 13 we put that in any event,

alternatively, the amendments, and any
administrative action would be beyond the power of
Queensland in the absence of imperial legislation
expressly empowering Queensland to deal with the
islands as "wastelands of the Crown"; that the

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power to extinguish the interests is vested solely
in the Crown in right of the Commonwealth as an
international sovereign.
Now, that is a broad outline of the way in

which the issues fall and we, in our written
submissions, have endeavoured to deal with the
matters in those categories or heads though there
is inevitably some overlap with some of those

issues. And we will endeavour, in the course of
submissions to Your Honours here, to isolate what
the issues are as we deal with each of them. Could I take Your Honours to the page which is
numbered 1078 and following pages which, if
Your Honours have the summarized compilation, would
follow the pages I have just been referring to. It
is in the form of diagrams and it has been
assembled in that way because we were concerned
about clarifying the way in which the issues fall
for determination. And, really, all that we have
endeavoured to do here is to try and set out the
way in which the issues are raised.
One has, first of all, the question of the holding of traditional interests in land under the
local system prior to 1879, at the top of the first
page marked "A. Enforceable Rights based on
Traditional Title". There is then raised the question, what is the effect of annexation? That

is the second box there. And if one takes the view
that change in sovereignty does not automatically
abolish those interests, one then gets to the
effect of a Crown Lands Act scheme.
If the view is taken, as expressed on the

right, that a change in sovereignty does
automatically abolish those interests unless they
were recognized, then it is our submission, and the
question is raised whether there was recognition
and we have put that as "Numerous acts of

recognition 1879-1991". Therefore the interests
are recognized at law and one still then has to
look at the question of the effect of Crown Lands
Act legislation and the two possibilities. There
may be others, but we have endeavoured to express
them in as concise a way as possible: that there
is "No extinguishment" under a Crown Lands Act
scheme "unless there is an actual Crown Grant"
inconsistent.
That is to say, the land is actually granted out inconsistently with the interests which are

claimed by the plaintiffs. On the other hand, that
the Crown Lands Act scheme may amount to an
extinguishment, as we would submit, only if the
scheme, in fact, opens land up for settlement.

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Our responses to those two propositions are

that since there was no actual Crown grant as we
have put it on the left, the interests were not
extinguished, one then comes to the relatively
recent amendments providing for deeds of grants in

trust. On the other side, we say in any event this
cannot have been that these lands were opened up
for settlement, they were not opened up for
settlement on any view of it in fact, no settler
has been permitted to go there, and it was reserved
and in fact the reserve has been fairly strictly

observed. And so the interests were recognised by
the reserve and that brings one to the same
question, and one then gets to those last issues
that I briefly summarized when I was reading the
outline.
The following page simply consists of an

expression of those issues shown in those boxes on
page 1078 in narrative form. If I take
Your Honours to page 1081 there is the second basis
on which the issues are raised because it is there
put that if one is examining the question of
enforceable rights based on title derived from
local legal custom the starting point, we would
respectfully submit, is not to look backwards at pre-1879 but to look at the operation of a local
legal custom now and then apply the relevant tests.
So one would ask, 'Do the Islanders currently
practice a local custom relating to interests in
land' and the question then is, 'Does that meet the
common law criteria for recognition of local
custom - "time immemorial", "local", "certainty"',
and so on, what is sometimes called Halsbury
custom. And then on the right we say, in any event
there has been numerous acts of recognition of that
custom currently operating in express statutory
force since 1939. In that situation the operation
of a Crown Lands Act scheme, we would respectfully
submit, is irrelevant, the custom operates
notwithstanding the vesting of the land in the

Crown.
And then the same questions about the

amendments of 1982 and section 109 and so on are
raised below that point. That again is the subject
of a brief outline of the propositions at 1082 to

1083. I then go to 1085. If the issue is looked
at on the basis are there enforceable rights based
on a possessory title then the starting proposition
is to examine the situation as of today and look
back, are they in possession and have they always
been in possession or for how long have they been

in possession? On the basis that possession founds
title, then the plaintiffs and their predecessors
were entitled to a fee simple title founded on

possession. We then submit, possession is

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continued regardless of any extinguishment of
traditional or customary title that might have been
effected by an annexation. In other words, this
argument would stand notwithstanding an
extinguishment on annexation under what we have
called the traditional title foundation.
We point out in the fourth box on 1085, no

action has been taken to extinguish or acquire. In
fact, the islanders have been recognized as owners
and we therefore would say the Crown Lands Act
scheme is irrelevant and the only question one is
left with is whether the new proposals - the new
scheme of 82 to 84 amounts to an extinguishment:
the same kind of question as previously raised.

I take Your Honours over to what is

number 1087A, "Enforceable rights based on
fiduciary duty or trust", is there a summary of
what we would respectfully submit is the way in
which the issues are raised there, that, as a
fiduciary, the Crown has a relationship with the
islanders based on the relative positions and
history of dealings in which they are dependent on
the Crown of their protector; that the relationship
creates a fiduciary duty to the Islanders in
relation to their land, including the plaintiffs;

and then, on the right, that specific statutory
trustees were appointed in 1939, together with the
fiduciary relationship and, therefore, the Crown
owes the duties and the plaintiffs have the benefit
and the consequence of that is expressed as the
obligation to exercise any statutory powers or discretions so as to preserve the interests in
land.
Again, we do not submit that the obligation as

trustee restricts Queensland legislative power.
That the exercise of administrative powers, of
course, we would submit, would be subject to such

fiduciary duty or trust. The narrative for that is

briefly set out at 1088 to 1089. The last is not
so much a proposition of the way in which rights
arise, but rather an endeavour to summarize the way
in which the rights, assuming they exist, are not
affected because of limits on Queensland
legislative power, and it summarizes the elements
that I will take Your Honours to when we come to
look at that question of the limits on legislative
power derived from the concept of imperial power as
the foundation of the power to deal with
wastelands, and in brief that is on the left, that
the grant of power in 1855 - this is on page 1090,
Your Honours - the grant of power to deal with wastelands, we would respectfully submit, was
limited to the colonies as then constituted, and of course, in 1855 they did not include the land which

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was the subject of these islands, which were

addition to that, an Imperial Act of 1872 to 1875
contained express imperial recognition of
sovereignty and native peoples' rights and interest
in relation to all of the territories within the

annexed by the Crown in 1879, and we say, in these islands and we say that the annexation of
1879 was confirmed by Imperial Statute in 1895, but
there was no express imperial grant of power to

deal with wastelands - of those wastelands. The
question, of course, is raised whether the
pre-existing power to deal with wastelands that
Queensland had extended without further words,
without further legislative grant, to the
additional lands that are comprised in the
additional part of Queensland that was annexed to
Queensland by the Imperial Letters Patent combined
with legislation in 1879, and we say it did not,
and there was no express extinguishment of the
rights recognized in the imperial legislation, so
Queensland does not have the power to deal with

them. And that encapsulates, if we can

encapsulate, the way in which the questions arise, and the sequence in which those issues are raised.
Your Honours, if I can go back to what seems

to be the first question to be asked, which is the
question of what was the situation in fact and law
on these islands prior to 1879 and, we would
respectfully submit, there are questions which
arise on the facts, and we will come to those in a
moment but, in our respectful submission,
considerable assistance is gained in determining
what the principles are that should be applied in a
case which has been dealt with in this Court in
which pre-annexation rights and interests were in
fact looked at in considerable detail. That case
is Administration of the Territory of Papua New
Guinea v Daera Guba, and if I can - - -

TOOHEY J:

What is the reference?

MR CASTAN: Sorry, Your Honour. It is (1973) 130 CLR 353.

Daera Guba is an interesting case in the context of
the questions which are raised here because there
this Court, acting in its capacity as a dourt of
appeal from the Supreme Court of Papua New Guinea,
was required to examine a question which actually
raised a similar question to this first issue, what
I will call the pre-annexation issue.
The question in Daera Guba was whether or not

the Papuan claimants could make out ownership of
particular land which was apparently vested in the
administration and which the administration claimed
had been purchased from the predecessors in title

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of the original Papuan owners prior to annexation
of British Papua. In other words, the question
that was raised was what was the effect of an
acquisition by, in that case it was British
officers but there was no argument about third

party interests, if I can call it that. The issue
remained, what effect, and how would the courts and
how does the law test the question of an
acquisition of land from local Papuan land owners,
or purported acquisition, prior to annexation.
The way in which the case was analysed by

Their Honours was upon the basis that there was no
British law operating in relation to the Territory

at the time that acquisition took place. And the
significance of it to which we draw attention, for
present purposes - apart from the assistance that
is given to this Court now in looking at the way in
which Their Honours analysed the evidence and the
matters that came up in determining that question,
the effectiveness of a pre-annexation acquisition -
the significance is that Their Honours ultimately
came to the conclusion that the way to test the
effectiveness or validity of that acquisition was
to apply to it the test of whether it complied with
local law or local system, and the local system, of
course, was the native customary system operating
in the absence of British rule or any other

European or colonial system. So, it is a case
where the Court was required to examine the
effectiveness of a sale pursuant to native custom
in 1886, from recollection, the Territory not
having been annexed to the British Crown until
1888.
Now, we would respectfully submit, and

throughout the case there are numerous references
to the question of custom and how one determines

custom. And I take Your Honours to some
illustrations of the way in which the question was
looked at. If I could take Your Honours to

page 377, first of all, in the judgment of
His Honour the Chief Justice, Sir Garfield Barwick, and just about half-way down the page, he says:
Before turning to consider the

probabilities in 1886 in relation to the
dispute as to whether or not a transaction
then took place which placed in the ownership of the Administration substantially the whole of the subject land, I should make two
observations.
First, the capacity according to their

own customs of a Papuan or Papuan clan in the
Port Moresby district in 1886 to sell
interests in land so as to place it in the

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perpetual possession of the Administration
free of claim by the sellers was disputed by
counsel for the Papuans.

So, obviously enough, Your Honours, in this case,
the Papuans of 1973 were saying their predecessors
could not sell and therefore the sale was

ineffectual. And the Crown was saying, "Yes, your
predecessors had title, could sell and conveyed
good title and the Crown is the successor of that

good title.". He goes on:
But there were many such transactions referred
to in the proceedings of which the validity or
effectiveness has never been challenged, the
purchasers having after purchase had the
benefit of complete ownership and indefinite
and after the transaction claim by the Administration to have taken place in 1886 with respect to the land. Further, both
undisturbed possession of the land sold. before
Rev W.G. Lawes who as at 1884 had had more
than ten years' experience of the tribal
customs of the people of the Port Moresby
area, and his son, who later became resident
magistrate of the Colony and knowledgeable of
those customs, affirmed that the people of the
area according to their customs, owned and
both individually and collectively sold their
claims to the possession of the land.

And then he sets out some of the evidence from a -
Rev W.G. Lawes in an article prepared at the
request of of Sir Peter Scratchley -

which talks of -
"The land on the coast is all owned by

families, each member having his own plot.

They are accustomed to sell their land

occasionally. A man who has but little will
beg of one who has plenty. Sometimes they
loan it for one crop - a short rental really.
Often, however, it is an absolute sale.

And so on. And we there find some of the evidence

that Their Honours ultimately relied on. And then,
in the next paragraph, His Honour refers to the
recognition -
by the Ordinances of the Territory and
restraints placed upon any sale by them to
other persons -

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in subsequent ordinances. That, of course,
occurring after annexation.
Consequently, I am satisfied that it was
possible according to the usages of the
Papuans of the Port Moresby area as understood
by them in 1886 for a stranger to their clan
to have acquired land from individuals as well
as from groups by outright sale and purchase
for value in the form of "trade" mutually
agreed. It seems to me, also, that the law
which the proclamation of the Protectorate introduced into the Territory, it being my opinion that it did introduce some law,
included the recognition of the right and
ability of the Papuans to sell their interest
in land to the Crown.

And he refers to Commodore Erskine's announcement.
And he then deals with the question of whether they did not understand, and we need not go into that in
this case. There is then some of the history set
out at page 379 and the history of who first came
to the Port Moresby district is set out in the

bottom two-thirds of page 379. And, again, a
description at the foot of the page and over to
page 380:
The coastal area of Port Moresby was

inhabited by Motuans and Koitapuans. They
dwelt in villages consisting of houses erected
on stilts at the margins of the land and
extending into and over the tidal flats.
Their villages were adjacent to and scarcely

separated from one another. Some
intermarriage between members of the two
groups appears to have taken place. Neither
group at any time resided on the land claimed
in these proceedings, which would be about
forty chains from their villages.

He describes the topography and goes on

half-way down the page:
The Papuans as of that time were

singularly savage and given to reprisal raids
on one another in which barbarous killings
took place, frequently of women and children

who were the easiest caught or waylaid. In
addition, they suffered either from occasional
drought or were at time so terrified of
neighbouring groups as to be unwilling to
cultivate the gardens ..... though the sea
provided food ..... they were in danger of
extinction by slaughter, by starvation or by

disease which apparently was rampant. Thus

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the subject land had significance to the local
people.

So there is an examination of the detail of the
significance to the people, all this in the early
1880s.
Then there is a reference to the pressure from

the Australasian colonies, the interim measure
which was the protectorate, and towards the foot of
the page he says:
It is very important, in my opinion, in

connexion with the consideration of the
material available for decision of the
questions arising in this appeal, to observe
that the policy of the British
Government ..... was that there should be
settlement in New Guinea when the Territory
was annexed but that there should be no
disturbance of the Papuans in the enjoyment of
their use of the land except in so far as the
Government might purchase land or acquire it
by compulsion for public purposes or supervise
any permitted purchase by intending settlers.

And we would respectfully say that, as Your Honours
will see in due course, a similar policy was
operating in relation to Murray Island, but without
any contemplation of settlers, that is to say the
policy of no disturbance was adopted in relation to

Murray Island. The policy of encouraging settlers
was not.
Then half-way down page 381:
Thus the policy of preserving the use of

the land by the Papuans was to be implemented
by preventing any persons other than the Crown
from purchasing from them any interest in land
and by the Crown limiting its compulsory

acquisition of land to acquisition for public

purposes. From a close perusal of the
official documents the position in 1886 was
that settlement of the intended colony was
contemplated with the abovementioned
consequences.

If I might say in passing, Your Honours will
observe that His Honour the Chief Justice has no
difficulty in contemplating of a colony to be
acquired for settlement, but at the same time the
concept of the existence of a significant
population and the protection of that population in
their lands.

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Towards the foot of page 382 there is further

material about the kind of society which was
examined by the Court, and the last full paragraph
refers to Mr Musgrave Junior who was Assistant
Deputy Commissioner:
His reports are the source of much
information, though challenges have been made

on this occasion to their accuracy. As I have
indicated, having considered the various
criticisms, I am prepared to accept the

reports as substantially accurate. From his
reports and a report of Rev. W.G. Lawes ..... we
learn that though the particular clans had
headmen or leaders, there were really no
chiefs amongst the Port Moresby Papuans who
exercised authority over the tribes or clans

or who exacted service from them. But it
would seem that amongst the headmen, sometimes
referred to as chiefs in the official
documents, one was by common consent of the
Papuans regarded as the principal or senior.
Thus Erskine found Boi Vagi to be the most
influential chief in the Port Moresby district
and to him he presented a stick mounted with a
florin as "an emblem of his authority".

Very analogous matters, we would respectfully
submit, arise in this matter.
If I can then go over to page 389, in the

paragraph approximately in the middle of the page
His Honour deals with what the probabilities might

be in relation to the capacity to sell land. He
says:
I find these probabilities much more

convincing than anything I have read in the
evidence given before the Commissioner by
Daera Guba or heard from counsel on this
appeal. It is quite unacceptable to my mind

others without claim to it were given coveted their relatives or connexions stood by whilst that the real claimants to the land or even items of trade as its price. As I have said,
these were belligerent people given to quite
savage, at times quite inhuman, acts of
revenge or reprisal where it was felt or even
imagined that some wrong had been done to

themselves or their kinsfolk. I just cannot
conceive that a proceeding with respect to the
acquisition of land, publicly carried out
because of the habit of walking the bounds,
could have resulted in other than carnage if
the rightful claimants were not satisfied
parties to the transactions.

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28/5/91

Nor would the missionaries not have intervened, and

so on. So he applies those kinds of tests.
If I could then take Your Honours over - there

is a passing reference to one of the fundamental
questions that is raised in this case, at page 396.
His Honour actually does deal with the question of
the effect of annexation in the absence of
statutory provisions though that was not
immediately pertinent. At the foot of page 396,
the last sentence commences:
I have also assumed, without deciding that the
declaration of the Protectorate or the
annexation by the British Government did not
vest in the Crown the ultimate title to all
the land in Papua -

that may be a misprint, Your Honours -

subject only to any usufructuary or other
rights of the Papuans, these to be determined
by native custom.

Then he goes on:
Whatever the traditional view in this
connexion (as to which see generally Milirrpum
v Nabalco Pty. Ltd., and more recently Calder
v Attorney-General (British Columbia) in the
Supreme Court of Canada), the title of the
Papuans whatever its nature according to
native custom was confirmed in them expressly
by legislative acts from time to time on the
part of the Territorial Administration. I find no need to detail these or to discuss
further that matter.
It is enough for present purposes that

from the inception the law applicable in the
Territory by virtue of the Protectorate and of

the Colony, recognised a right in the Papuans
to sell or surrender to the Crown whatever
right they had communally or individually in
the land.

And he refers to Commodore Erskine's proclamation
announcing:
no acquisition ..... would be recognized -

other than by -
Her Majesty.

But then he goes on, and this is the critical
paragraph:

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28/5/91

But none of this activity on the part of
the Crown was inconsistent with the traditional result of occupation or settlement, namely, that though the indigenous
people were secure in their usufructuary title
to land, the land came from the inception of
the colony into the dominion of Her Majesty.
That is to say, the ultimate title subject to
the usufructuary title was vested in the to the Crown completed the absolute fee simple in the Crown. Whether the subsequent
legislative history of the territory denies
that traditional position is a matter with
which I am not presently concerned.

And that, Your Honours, seems to be an express

adoption, albeit it in passing, and one might
assume, perhaps without the whole of all the issues
argued before His Honour, but an express adoption
of the position in the Supreme Court of Canada in

Attorney-General v Calder, which I will be taking
Your Honours to in some detail and which, we
respectfully submit, should be adopted in this

Court. I should go - - -

BRENNAN J: What, that this Court should adopt the notion

that on occupation or settlement the radical title
is vested in the Crown?

MR CASTAN: That the radical title is vested in the Crown,

yes, Your Honour, and I will be coming to that in
some detail. The question of what that is and how
far it goes in relation to those who are in actual
occupation at the time, is the question of some
controversy between us in these proceedings. But,
ultimately, that is the position for which we
contend under what we have called the "traditional

title argument". We have also got our arguments
founded on, what I will call, "conventional or
strict legal custom in English law" and our

arguments are founded simply on possessory title,
in any event, but, perhaps I will come to those,
Your Honour.
Can I just complete my references to

Daera Guba by taking Your Honours to page 438, where His Honour Mr Justice Gibbs puts the test of
how to determine the question that was raised. His
view, at the top of page 438 at the end of the
paragraph which commences on the previous page, his
last sentence there is:
Since nothing was done to introduce English
law governing sales of land into the
Protectorate, the purported sales can only be

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28/5/91

upheld if they were valid in accordance with
the native law then in force.

And in his approach is:
There is very little evidence as to the

rules of the customary law governing the
ownership and disposition of land by Motuans

in general and by the Tubumaga in particular.
Clearly enough a number of transactions which the Europeans regarded as sales occurred
between Europeans and natives in and before
1886. Whether the natives' understanding of
these transactions was the same as that of the
Europeans, and whether they appreciated that
in return for the trade goods which they received they were not merely giving the
Europeans a right to use their land but were
surrendering all their interests in it for ever, is another question. The Rev. Lawes apparently believed that native custom
recognized the perpetual -

ownership. He then sets out some of Reverend Lawes
concepts. There are some paragraphs there about
ownership which had already been referred to.
There is a paragraph about actual ownership based
on the basis of kinship, and over at page 439 he
says:
There was thus some evidence that sales

were recognized by native custom and, although
one would have wished that fuller and more
satisfactory evidence had been adduced on this

point, the evidence was all one way. On
behalf of the applicants it was submitted that
the evidence did not show whether or not the
rules of native customary law permitted
alienation outside the iduhu to strangers such
as officers of the Protectorate, or what the
customary rules required as the essential

elements, or as the necessary formalities, of
a binding alienation, so that assuming that
alienation in perpetuity was a concept which
the natives understood, there was no evidence
as to whether or how such an alienation to the
Crown could validly have been effected.

And he goes on and ultimately comes to the
conclusion towards the foot of the page:
However, nowhere was it suggested that the
purported sales were invalid except on the
ground (first raised before the Commission)
that they were made by persons who did not own
the land. There can be no doubt that the
native witnesses who gave evidence that sales

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28/5/91

took place meant sales that were effective to
divest the natives of their interests. It is
a proper conclusion from this evidence that
sales such as those made in 1886 - by free
agreement coupled with the handing over of
consideration - were recognized by native law
as valid.

Now, of course, the precise kinds of interest in this case that I will be taking Your Honour to are
different, though surprisingly not all that
different, perhaps it is not all that surprisingly,
Dr Beckett who was the anthropologist, who gave
evidence in this case, described the Islanders on located, of course, not all that far away from the
portion of Papua with which Daera Guba was
concerned, but in looking at the question of how to
evaluate that which was there prior to the
annexation, we would respectfully submit, that the
test is - as we have put it in our general
propositions - can it be said that the
relationships which the people who were there, the
predecessors of the plaintiffs who were there prior
to 1879, the date of annexation, were persons who
as between themselves within their system had
interests, and that that is the only way to test
it, that in effect it is looking to the existence
of a lex loci.
Now, that raises the question what are the

criteria; what are the kinds of test that one
might apply to determine whether or not that which
was happening there can be recognized as having
amounted to some kind of interest such that the
successors in title, assuming they are not
otherwise extinguished, can make out a case now.
In our respectful submission, we have put some lengthy submissions about this, it is very important that the Court not fall into what we
would respectfully submit is the error of seeking

to apply the concepts of applying English law

concepts as the only test. To some extent, one
inevitably looks to some of the criteria that are familiar but, in our respectful submission, it is necessary to look at societies of the kind there
being discussed in the case of Papua and New Guinea
v Daera Guba and in the case of the Murray Islands,
in terms of the kind of society that existed, not
in terms of the criteria of Australia today or for
that matter the Australian colonies prior to the
time when these islands became part of one of those
colonies.
There is an interesting reference to the way

in which that kind of test is to be applied in the
case of The Hamlet of Baker Lake, one of the

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2.S/5/91

Canadian cases, which is in (1979) 107 DLR (3d)
513, and at page 543 - this is the decision of the
trial division of the Federal Court,
Mr Justice Mahoney - His Honour, in the last
paragraph on that page, deals with this kind of
question, the test to be applied in examining the
position of the Inuit in Canada.
Perhaps before I go to that last paragraph,

Your Honours will see that the heading on page 542
is headed "Proof of Aboriginal Title", and what
His Honour Mr Justice Mahoney did was to set out
the criteria that he understood were the criteria
that he should apply in order to establish the
title cognizable at common law: members of an
organized society, occupied specific territory to
the exclusion of other organized societies, and an
established fact at the time sovereignty was
asserted; and he refers to the authorities that
lead to that.
He then refers to Re Southern Rhodesia. It is

perhaps apposite at this stage to take Your Honours
to that passage in the case of Re Southern
Rhodesia, conveniently extracted here:
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. In the present case it would
make each and every person by a fictional
inheritance a landed proprietor "richer than

all his tribe". On the other hand, there are

indigenous peoples whose legal conceptions,
though differently developed, are hardly less

precise than our own. When once they have
been studied and understood they are no less
enforcable than rights arising under English

law. Between the two there is a wide tract of
much ethnological interest, but the position
of the natives of Southern Rhodesia within it
is very uncertain; clearly they approximate
rather to the lower than to the higher limit.
Now, our submission in relation to that, and

we have put this in our written submissions, is
that that unbridgeable gulf, that concept of the
two kinds of societies, should be wholly rejected
by this Court as an inappropriate test to apply.

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282/5/91

His Honour Mr Justice Mahoney did adopt it, but his
method of adopting it we would commend to Your Honours because he goes on and says:
It is apparent that the relevant
sophistication of the organization of any
society will be a function of the needs of its
members, the demands they make of it. While
the existence of an organized society is a
prerequisite to the existence of an aboriginal
title, there appears no valid reason to demand
proof of the existence of a society more
elaborately structured than is necessary to
demonstrate that there existed among the
aborigines a recognition of the claimed
rights, sufficiently defined to permit their
recognition by the common law upon its advent

in the territory. The thrust of all the
authorities is not that the common law
necessarily deprives aborigines of their
enjoyment of the land in any particular but,
rather, that it can give effect only to those
incidents of that enjoyment that were,
themselves, given effect by the regime that
prevailed before.

And he refers to Amodu Tijani, which is a critical
case.
He goes on:
The fact is that the aboriginal Inuit had an organized society. It was not a society
with very elaborate institutions but it was a
society organized to exploit the resources
available on the barrens and essential to
sustain human life there. That was about all
they could do: hunt and fish and survive.
The aboriginal title asserted here encompassed
only the right to hunt and fish as their
ancestors did.

And then he says: The organized society of the Caribou
Eskimos, such as it was, and it was sufficient
to serve them, did not change significantly
from well before England's assertion of
sovereignty over the barren lands until their

settlement .... the ancestors ..... were members
of that society ..... That their society has
materially changed in recent years is of no
relevance.
The specificity -

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28/5/91

and he then goes on to specificity, and then in the
next full paragraph says this:
There were obviously great differences

between the aboriginal societies of the
Indians and the Inuit and decisions expressed
in the context of Indian societies must be
applied to the Inuit with those differences in

mind. The absence of political structures
like tribes was an inevitable consequence of
the modus vivendi dictated by the Inuit's
physical environment. Similarly the Inuit
appear to have occupied the barren lands
without competition except in the vicinity of
the tree line. That, too, was a function of
their physical environment. The pressures of
other peoples, except from the fringes of the
boreal forest, were non-existent and, thus,
the Inuit were not confined in their
occupation of the barrens in the same way
Indian tribes may have confined each other
elsewhere on the continent. Furthermore, the
exigencies of survival dictated the sparse,
but wide ranging, nature of their occupation.

And he quotes a passage from Mitchel v United
States in 1835:
Indian possession or occupation was

considered with reference to their habits and
modes of life; their hunting-grounds were as
much in their actual possession as the cleared
fields of the whites; and their rights to its
exclusive enjoyment in their own way and for
their own purposes were as much respected,
until they abandoned them, made a cession to
the government, or an authorized sale to
individuals.
The merits of this case do not make it

necessary to inquire whether the Indians

within the United States had any other rights
of soil or jurisdiction; it is enough to
consider it as a settled principle that their
right of occupancy is considered as sacred as
the fee-simple of the whites.

And then, going on, after further reference to
authority and the American decisions, he then says,
about two-thirds down the page:
The nature, extent or degree or the aborigines' physical presence on the land they
occupied, required by the law as an essential
element of their aboriginal title is to be
determined in each case by a subjective test.
To the extent human beings were capable of

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28/5/91

surviving on the barren lands, the Inuit were
there; to the extent the barrens lent
themselves to human occupation, the Inuit
occupied them.

And then he goes on:
The occupation of the territory must have

been to the exclusion of other organized
societies. In the Santa Fe case
Justice Douglas, giving the opinion of the court, held:
Occupancy necessary to establish

aboriginal possession is a question of fact to
be determined as any other question of fact.
If it were established as a fact that the
lands in question were, or were included in,
the ancestral home of the Walapais in the
sense that they constituted definable
territory occupied exclusively by the Walapais
(as distinguished from lands wandered over by
many tribes), then the Walapais had "Indian
title" which, unless extinguished, survived
the railroad grant of 1866.
Now, Your Honours see that in that case

Mr Justice Mahoney, in formulating the way in which
is is our own, and that unbridgeable gulf, and he has, in
one to approach the kind of society, not -
though he has recited the passage from Re Southern
substance, ignored it, we would respectfully
submit, because he has gone to say the correct way to test matter is to look at the society as it is,
to see if it in fact functions, and then see what
are the operative ways in which it actually
functions in relation to land.
Now, turning in the framework of that context

it is, we would respectfully submit, necessary to

go to some of the actual findings of His Honour
Mr Justice Moynihan, and it is our submission - and
I should say, we are at odds about this, there are some controversy as to the correct view to be taken
about His Honour's determination of the issues of
fact, and our respective submissions have dealt
with that in some considerable detail, but it is
our respectful submission that His Honour's
findings are clear once one sees the task
His Honour had set himself.
Could I take Your Honours to page 13 of

volume 1, His Honour Mr Justice Moynihan's
determination. His Honour has been discussing, and
I will not go over the whole of it, two possible
approaches which he says were urged on him by the

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28/5/91

respective sides or the parties, on the

submissions, as to the findings he should make. He
says, just below half-way down the page:
I have sought to approach the evidence

free of such conceptional models while
acknowledging that each may, on occasion, have
its uses as an aid in reaching or evaluating a
conclusion without the application of either
(or for that matter both) being necessarily
determinative.

Then he goes on to his approach -
It seems to me that a useful working approach to the issues in terms of the
pleadings, particulars and further particulars
is along the lines of the following starting

point. Has it been established that the
plaintiffs are members of a society which both
recognised -

that is referring to the past -
and continues to recognise a connected
intelligible pattern of relationships to land
and in which recognition the plaintiffs are
accepted as participating and which confers on
them the recognition for which they contend as
against the State of Queensland.

Now that last requirement, which confers on

them the recognition, ultimately, of course, is a
matter for this Court. But the purpose of

His Honour's analysis of the facts he there states what it is that he is examining, whether it has
been established that they are members of a society
which recognized, putting it in the past, and
continues to recognize, in the present, a connected

intelligible pattern of relationships to land. We
would respectfully submit that that is a proper and

appropriate test within the context of the
framework of the matters I put earlier this
morning, and when looked at in that way
His Honour's various comments, and there are many
of them where His Honour criticizes particular
evidence or expresses hesitations about a
particular conclusion or says that there is little
direct evidence for a particular conclusion, then
takes form.
There has been a great deal made by the

submissions of our learned friends concerning some
of the qualifications that His Honour expressed
concerning particular evidence.

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28/5/91

Your Honours, at page 163, His Honour

commences an examination of the situation with
respect to land usage prior to European contact and

as observed by the Haddon Party. I should say,
when looking at His Honour's comments and
conclusions in the context of that issue which he
stated at page 13, I should mention to Your Honours
that one of the most significant sources of
information concerning these islands was the report
of the Cambridge expedition in 1898. What happened
was that, annexation having taken place in 1879, an
expedition headed by Professor Haddon, and there
are constant references throughout by His Honour to
Haddon, Wilkin or Rivers, and they are references
to the authors of the six volumes which comprise
what is known as the Haddon Report, or the
Cambridge anthropological expedition to the Torres
Strait Islands which was in the islands and in
particular spent a considerable time on the Murray
Islands - there are actually three islands, the
main island and the two smaller islands - and in
which detailed reports were made on every aspect of
society, as it was in 1898.
The question is then raised, of course, as to

the Haddon Report material as at 1898 and how it functions in relation to what the position was some 20-odd years earlier, 1879 being the date of
the sources of the information that the Haddon
annexation.
Now, one particular passage that our learned friends rely on heavily appears - in which
His Honour makes a comment, is at 163, where, about
half-way down the page - perhaps I should start the
whole of that:
It was, as I understand it, accepted by

the plaintiffs that in order to evaluate the
continuity of the system for which they
contended it was necessary to attempt to form

a view as to its existence, content and
operation prior to 1879. This is not without

difficulty. Dr Beckett, the plaintiffs placed
considerable reliance upon his evidence,
acknowledged this.

Dr Beckett was the anthropologist who had lived on
the island in the late 1950s and had been back
there again in the 60s, has written many works,
including a book as well as his thesis and other
works, has written substantially on the Torres
Strait Islands and in particular on Murray Island.

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28/5/91

MCHUGH J: Could I just get something clear in my mind.

The

Haddon work was published over a 25 year period or
so?

MR CASTAN:

Yes, Your Honour.

McHUGH J:

And was it based on their observations during the

period they were there or does it take into account
the correspondence with Bruce which apparently
continued - - -

MR CASTAN:

It took into account - it appears clear that

Bruce continued to be an informant. Bruce was the
school teacher who was there from the 1880s through
until 1930, I think it was, for a long period and,
of course, became, as it was termed, the trusted
advisor and friend of the - - -

McHUGH J:

Does that mean that the knowledge of the report

is fixed as at 1898 or was it knowledge that was
acquired past that date?

MR CASTAN:

One could not assume, necessarily, that it was

fixed at 1898. The observations were there but it

seems that Bruce continued to be an informant. On
the other hand, the chapter dealing with native
land tenure, written by Wilkin, must have been
written early because Wilkin died in 1902, very
shortly after, though His Honour finds - and it is
quite clear; Wilkin's chapter states that one of
principal informants was Bruce. There is no
question about that. But that chapter, the one
dealing with inheritance and land, clearly does not
extend forward over any considerable period.
I was reading that:
Dr Beckett, the plaintiffs placed considerable
reliance upon his evidence, acknowledged this.
Thus at p 11 of his statement Exhibit 214 he
mentions that two of the earliest detailed

accounts of land tenure on Murray Island come
from the Reverend Hunt of the London
Missionary Society and Wilkin in his Chapter

in Vol VI of Haddon Exhibit 117. He concedes
that there is little direct evidence to
support the view which he attributes to them
that there was an ordered system of land
tenure prior to the arrival of Europeans and
that it was substantially the same as that

operating today. He also says that the

Reverend Hunt's reference to a system of land tenure is one which "does not bear any
resemblance to my understanding" t 2225. I am
inclined to agree with him. In "Torres Strait
Islanders" at p 30 he says:-

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28/5/91

"The documentary sources do not allow us to
form more than a vague impression of island
life in pre-colonial times, and no doubt there
were important variations (between the various
islands)."
He says that it was "very difficult indeed" to
arrive at any understanding as to how the
Meriam community made decisions for example
concerning land disputes. In the context of
the role of the Magor, to which Dr Beckett
tentatively ascribed (in my view incorrectly)
the role of the executive arm of the Bomai
Malo cult, in enforcement Dr Beckett conceded
that it was a possibility that they had
nothing to do with controlling or enforcing
rules ..... that neither he nor anybody else had
enough evidence to reach any conclusion on the
matter.

He refers to other matters.
it was just not possible to know what the
governmental system was prior to contact; "in
any detail -

But then His Honour goes on - and our learned
friends rely heavily on that and Your Honours will
see as we go through it that in the written
submissions there is a substantial amount of
comment of the kind by His Honour
Mr Justice Moynihan about the difficulties of
ascertaining some of these things. But, if one
goes down to the foot of page 164, one sees
His Honour then directing himself to the evidence
that was there.
The first detailed description of any

consequence with respect to Murray Islanders
and property is that by Wilkin in Chapter IX

"Property and Inheritance" in Vol VI of Haddon

(Exhibit 117). I spoke of Wilkin's
qualification and premature death. Wilkin

died at the age of 24 in 1901. It may be
assumed with a deal of confidence that what he
wrote reflects his perception of information
provided him by James Bruce. Wilkin commences
the chapter by saying:-
"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."

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28/5/91

Now, what we have in this example - and I give it
by way of example - is that His Honour expresses
reservations about some matters but then picks up a
particular conclusion that is there expressed in
the Wilkin's chapter.
And he goes on, and it then continues over a

number of pages, and I will not take Your Honours
to all the pages that then follow, but from 165
through to 170 there is a series of detailed
extracts from the Wilkin chapter set out by

His Honour. So we perhaps by way of caution
indicate to Your Honours that there are
reservations expressed but His Honour also then
adopts substantial portions and then ultimately
reaches significant conclusions.
Could I take Your Honours for the present

purposes to page 173 to indicate to Your Honours
the way in which His Honour, having gone through
this significant body of material, then seeks to
answer his question posed at page 13. At page 173
he says:
It seems to me however that some conclusions
are possible with respect to aspects of a
continuous "system" operating in Murray Island
society and dealing with relations between the

people and land. I will now attempt to offer
my conclusions. These do not reflect simply
the views canvassed in this chapter but a
perception of the whole of the evidence.

Now, from pages 173 to 180 - and I will not read
the whole of it to Your Honours, but what one finds
there is a series of conclusions, the essence of
which is, to take the fourth sentence under
"Village Land":
The evidence seems to establish that within
the boundaries of a village the land continues

to be divided into what in modern town
planning jargon might be referred to as single
residential lots or house sites upon which is
erected a single unit dwelling. This is
usually occupied by a married
couple ..... usually also be occupied by the
couple's children ..... may also be an older
family -

and then on page 174 -
Each site was and is divided from the
adjoining site by a boundary defined by some geographical or artificial feature, although
on occasion adjoining occupiers might share
some facilities. Failure on the part of an

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28/5/91

adjoining occupier to agree on or to observe a
boundary ..... could become a serious
matter ..... Disputes over boundaries were, and
to a degree remain a notable feature of island
life although their frequency may be

overstated by some. They seem to have been
among the first aspects of society and
organisation to come under notice and invite
the intervention of outside administrative
authorities in the person of the catechist,
the teacher or the Island Court.
The rights associated with a site include

a right to use it for domestic residence to
the exclusion of others and an entitlement to determine the disposition of the land, either
during life or as a consequence of death.
He then goes on to deal with the concept of

inheritance. At 175 he deals with the question of
restraints and comes to the conclusion there appear
not to have been any, though there are some

expectations. He deals with adoption and, at
page 176, comes to a conclusion that there was a
very wide capacity to alienate:
One is left with an impression that, as
amongst themselves, it may be that the
islanders may dispose of land on whatever
basis is acceptable to those directly affected
and, to the extent to which a wider community
may be affected, is acceptable to that

community. Such acceptance is more readily
attainable in terms of expectations relating
to descent such as those to which I have
referred. There do not, however, seem to be
any qualifications on the disposition or
acquisition of land which could be described
as crucial.
Arrangements short of disposition seem to

be available on the same basis of
acceptability.

He refers to leases, licence or loans, ttmay lead to

quarrels", and caretaking arrangements. Then he
goes on with gardening land and the gardeh land he
similarly describes, and describes the features.
At page 177, just below half-way down the page:
Notwithstanding the considerations to which I
have referred, there remains among Murray
Islanders a strong remembrance of the previous
role and importance of gardening in the
society and of the gardening practices and
activities which reflected that. There are,
and have been since European contact, Murray

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28/5/91

Islanders who continue to garden basically as
their ancestors did on garden plots in the
interior of the Islands. Other Islanders

recognise them as being entitled to so so. If
they do not, disputes are settled in the
Island Court.

And so it goes on.
On page 178 towards the foot of the page:
There is no doubt that the evidence

establishes that Murray Islanders recognise
the continuance of claims to garden plots and
recognise or dispute claims of entitlement by
individuals in respect of those plots.

What we have endeavoured to do rather than take
Your Honours to all of this and there are other
findings as well, what we have done in a form of a
document that I hope has made its way to
Your Honours, which was left with the Court
yesterday in response to our learned friends'
submissions, is to put in a document which we have
headed "Plaintiffs' Reply" and the first section of
that - if I could take Your Honours to that - what we have done, having realized that there is a real
issue raised as to what precisely His Honour's
findings were, is to set out there the precise
finding.
It is headed firstly "A. Interests in Land -

General Concepts", and those are then set out as
specific extracts and it may be unnecessary, I

think, to take Your Honours to that. Your Honours
will see that they run for some six pages as

"General Concepts". They are conclusions reached
by His Honour at various pages in that category of

"Interests in Land". We then have set out from
page 7 the specific conclusions. That is from
those pages that I have just taken Your Honours

to - pages 173 to 180. Can I take you to the foot
of page 9 of that document that is now before
Your Honours where we have also extracted what we
might call "negative findings" so as to indicate to
Your Honours that there is no doubt in His Honour's
mind when he was rejecting a claim, and this
assists, we would respectfully submit. Towards the
foot of the page Your Honours will see "V.I p.184":
I am not on the evidence inclined to conclude
that any recognition to claims of various
individuals to fish traps or the produce of
fish traps in fact reflects a recognition of
an entitlement transmitted in the context of a
system such as is contended for in this
action.

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28/5/91

But there is a clear rejection of that, and then at
page 185 he continues:
I would not therefore be inclined to conclude
that the plaintiffs have any of the rights
which they claim to the area of the reefs and
reef flats -

and so on. In formulating the particulars for the
purpose of these questions now reserved for this
Court, we have indicated that we do not pursue the
claims to fish traps, to reefs, to sea areas, and
we do not pursue claims to shrine land which was
originally claimed which was rejected by
His Honour, and we do not pursue claims to some
plots which were areas which were claimed by the
plaintiff James Rice on the island of Dauar, one of
the subsidiary islands, which His Honour said
expressly had not been made out.
So His Honour has made express negative

findings, and then His Honour's positive findings
are set out in a series of propositions, though
subject to various comments all the way through,

comments and some hesitations about the state of
the evidence are expressed in a similar way to the
way in which His Honour Sir Garfield Barwick
expressed reservations about the state of the
evidence in the Daera Guba case.
Could I take Your Honours to page - - -

BRENNAN J:

Can you articulate the finding in your favour

which you say His Honour made which is the finding
upon which you need to rely?

MR CASTAN:

Yes, if Your Honour goes to page 12 - we could formulate it, but I cannot say which in particular

of the lengthy sets of findings that follow from

page 12 under the heading "Society" would be the

ones that are necessary to rely - we would rely on

was because having set himself the task of looking

all of these findings about the kind of society it

at this question of whether there exists a state in

which there is among the people a recognition of

certain kinds of relationship to land functioning in that society, His Honour then proceeds to make

findings about the society in those terms, and
those findings that are set out from page 12

onwards are His Honour's findings.

For instance, in relation to long occupancy,

one sees the first few findings.

BRENNAN J:

As at present advised, I do not understand

precisely what we are looking at these findings

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28/5/91

for, and I understand your general approach to be
that there are some surviving kinds of "interests".

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	What are the kinds of interests which you say

have been established and which therefore survive?

MR CASTAN:

The interests, we say, are the interests that

are expressed in our particulars which I can take
Your Honour to.

BRENNAN J:	I see.
MR CASTAN:	We have particularized particular kinds of
BRENNAN J:	Do you say that the findings support the

particulars that you have given?

MR CASTAN:

Yes, Your Honour.

BRENNAN J: Except in relation to reefs and

MR CASTAN:

Yes, and our particulars as now given, if I

could say this, Your Honour, do not include the
reefs; in other words, we were required, for the
purposes of this hearing by order of His Honour the
Chief Justice on 20 March, to give particulars of
the matters now claimed in the light of
His Honour's findings. We have given those and we
have identified the incidence or particular rights
which we say are claimed and we say these findings
in this document support those particular
particulars as specified.

TOOHEY J:

Does that mean, Mr' Castan, that there is no

challenge to any of the findings that have been
made as opposed to an issue between the parties as
to what, in truth, His Honour did find in respect
of a particular matter?

MR CASTAN:

Yes, Your Honour.

In substance that is right.

TOOHEY J: So, in so far as there is an issue, it is an

issue that really goes to what His Honour found?

MR CASTAN:

Yes, Your Honour.

TOOHEY J: Yes, thank you.

MR CASTAN:

And all we seek to say is that as we understand

it, it is being put by the defendant that
His Honour found none of the kind of things that are necessary to be found. He did not find that
there was any sort of society there beforehand, and
that he did not find that there were any people
there who were there for a long enough time, and

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28/5/91

that he did not find any of those things. We have
some difficulty with understanding how that is put
in the context of explicit matters that are set out
in the document that I have now taken Your Honours
to because there are lengthy sets of findings.
But - - -

BRENNAN J: Could you give me the reference to the

particulars which are relevant?

MR CASTAN:

Yes, Your Honour.

They appear in volume 6 of

our submissions.

TOOHEY J: They are also in that blue volume, are they?

MR CAPSTAN:

Yes, they are in the blue volume I believe that

has been handed up, we have now got a copy of it,
as item -

MASON CJ: Section 7.

MR CASTAN: - - - section 7 of the blue volume that was

handed up by our learned friends. Now,
Your Honour, the way we - - -

TOOHEY J: Could I just ask you this, Mr Castan: to the

extent the rights asserted in those particulars are
to be gathered from a number of findings of fact as
opposed to one express finding on the point, there presumably will be dispute and an issue which this
Court will have to resolve?

MR CASTAN:

Yes, Your Honour, because we say the findings do

support those kinds of rights and interests. Our learned friends say, as we understand it, they do

not. And that is a matter of looking at the

determination. Can I illustrate how that arises by
taking Your Honours to page 205, in respect of a
specific plaintiff, Dave Passi. Now, the way in
which His Honour introduces this aspect of his
determination is that:

The plaintiff Dave (that rather than
David seems to be his name) Passi advances
claims in respect of a residential block in
the village area of Zomared on the island of
Mer and two portions of land at either end of
Dauar Island named (or at least in localities
named) Gair and Teg together with "the beach,
the reef and the sea and seabed extending to

the reef fringing the island of Dauar". He
also claims portion of the land and beach on
Waier Island being a sandpit "Waier", the
beaches and waters of the Neh Lagoon and a
place called Zei - Geitz in the narrow cleft
in the rocks on the Waier shorelines into

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28/5/91

which turtles crawl to lay their eggs and
become trapped.

Now, that was the way they were particularized at

that time before His Honour. He then says:
I refer to my conclusions as to claims to

areas of reef flat and sea and as to what I
have called shrine land and that applies here.

It is impossible to conclude on the balance of
probabilities given the evidence as to what
the situation was in respect of such land.

That is reef flat and sea and shrine land.

It is a matter of history and remembrance.
The Islanders today seem to regard the reef
and sea as accessible to them all with produce
available to all. The sustaining purpose of
shrine land seem long gone and the memory of
many aspects of the practices is fading and
selective.

So, His Honour clearly rejects those claims. He
then goes on to deal with the background of
Dave Passi and he - if I can take Your Honours to
the top of page 207, he says:
Dave Passi's claim as to his

representative group was limited as I
indicated in chapter 4 ..... His claim, in his
own and representative capacity, is apparently
to a general inchoate right as a Passi to land
claimed as Passi land and as a consequence of
a specific permission he had concerning a
block in the village of Zomared. It is best
that he advances his claim in his own words:-
"In accordance with this traditional system I
would have been entitled to control the Passi
lands as the son adopted by Charlie Passi

would have been entitled to assume that right
and duty if he had made no oral or written
appointment. However he chose to appoint Sam
and I accept that. It was appropriate as Sam

was senior in years to myself. The same
traditional system allows for him making such
a choice, as I understand it.
In acknowledgments of Sam's traditional rights
to decide these things (as told to me by
Charlie Passi) I approached him a few years
ago and requested -

Charlie was his father -

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28/5/91

that I be permitted to build a house for
myself and wife and children on the land where

Charlie Passi's house stood. He agreed to
that and I intend to build there in the future
when the time is right, bearing in mind my present priestly duties at Darnley Island.
Charlie Passi said on a number of occasions that the land he was placing in the control of
Sam were for use of the Passi family as a
family, and so, as a member of the Passi
family, I have a right to use a portion of the
Passi lands. Sam's duties as head of the
family and caretaker of the Passi family land
was to allocate to me a particular portion of
the land, and he has done that.
In accordance with the tradition and practice
of Meriam people and in particular, the Passi
family (as I understand it from my father
Charlie Passi) I am entitled to use any of the
Passi family lands, provided that I have the
prior approval of the head of the family,
presently Sam Passi and after his death Danny

Passi ..... " And then His Honour refers, at 208, to Sam Passi's
evidence:
Sam Passi spoke of what is set out above as
being "the practice" -

he was the current head referred to by Dave -
and was led to say that it was his

"observation". He said he had not tried to
observe whether other family groups ..... Dave
Passi (and other Passi's) attributed the
system to the determination of grandfather

Aiet Passi that the Passi lands should never
be divided.

And he goes on about that, and he then sets out the
evidence in some detail over pages 208 to 209.
At 209 towards the top of the page he says:
Later (on the same page of the transcript) he described his interest or rights in respect of the land at Zomared out -

that may be a misprint, Your Honour -
in these terms:-

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28/5/91

"As an individual I have riaht to the Passi
land and I am aware of clan--wnership of that

land. Sam as the eldest cor~ ,_rols the land. "

And then he is asked:
"You mentioned that you believe you have

rights in the land with the Passi clan. What

do you mean today by the Passi clan sharing

these rights in the land. Who is in the
clan? -- By tradition the sons are.
When you say by tradition, has someone told
you about this tradition? -- It is the

practice of the Passi clan. The land was
handed for the use of - we owned them and if
my sister want to use the land she may use it,

but will not own it. The ownership goes to
the men."
Dave Passi was asked what could happen if
another Passi for example wanted to make a
garden on the land at Zomared on which he
proposed to build .....
"I would put the complaint before the clan ...
Because of the clan ownership and my part in
it ... but if what they will do is in the best
interests of the clan then I have to accept
it .... Myself as just an individual, I have
no right. It has to come from the clan. The
decision would have to be made by the clan."
This resolution seems to contemplate some sort
of group control rather than a ruling by one
one.
There is evidence to support a conclusion

that the Passi family (and other Islanders it
seems) accept that Passi lands are not divided
but "used as a family", that the eldest son is

head of the family and "owns the land on
behalf of the family" or is overseer on behalf
of the family.

Each Passi man had the right to use the land with the permission of the leader of the
family -

refers to evidence -
although George Passi at one stage suggested
it was sufficient that he "tell" Sam, of his
proposed use. It seems that the "caretaker" (the head of the clan) had the right to lend or lease Passi land and was the one to exclude
people from clan land.

Mabo

28/5/91

Dave Passi said his house site was still
the clans, when he died someone else would
enjoy the benefit of the land and he would
need Danny Passi's permission to build on the
land.

And then he sets out Dr Beckett's evidence, from in the middle of the page is His Honour's conclusion - at 212:
the bottom of page 210, over 211 and 212.
I am prepared to conclude that the Passi

lands are held pursuant to an arrangement such
as is contemplated by the evidence I have
canvassed. Such arrangements, which depend
essentially upon acceptance by those affected,
reflect an aspect of Murray Island social
organisations for generations - probably

antedating European contact. The
arrangements, and the ultimate breaking up of
the holdings, illustrate perhaps that the real
pressure on land distribution comes when sons
marry. Dr. Beckett indicated children have
very little use for land until they marry.
The legal consequences of those findings are to be determined elsewhere.

DAWSON J: That is all very well, but what His Honour has

done is really to set out the evidence.

MR CASTAN:	But His Honour has said he accepts the evidence. There was evidence about -
DAWSON J:	It might point in various directions. What was

the question His Honour was asking himself?

MR CASTAN:

The question that he posed, at page 13, in our

respectful submission. It is tested by reference
to His Honour's findings in relation to the sea

areas in respect to the Passi lands because he said
he will not accept those.

TOOHEY J:	When you say, "His Honour said he won't accept those", you said a moment ago, Mr Castan, that
His Honour rejected those claims, do you mean any
more than that His Honour was not satisfied that by
tradition or custom the individual plaintiffs had
any particular rights in respect of those areas?
MR CASTAN:	It goes a bit further than that, Your Honour,

because in relation to seas and sea areas
His Honour made a finding that the whole of the
system no longer operated.

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28/5/91

BRENNAN J:

Is that right? I thought he was saying that

everybody in the community regarded it as theirs.

MR CASTAN:

Your Honour has put it correctly.

What he said

was that it was not the subject of the kind of
separate ownership of reef that was claimed by the
individuals who had claimed that they themselves
had entitlement to a particular area of reef and
that no individual could make out a claim to reefs
since everybody was now using it. Perhaps I
overstated it, Your Honour, but he made that as a
general finding that there was no longer the
operation of individual ownership under the system
of reefs and sea areas.
Now, that means that those claims made by the

plaintiffs of reefs and sea areas have not been
made out on the evidence because His Honour said
there does not exist a system which provides
ownership of that kind in relation to those areas.
There was explicit findings, for instance - to take another example - there were claims made by the first-named plaintiff, Mr Mabo. His Honour
ultimately came to the conclusion that he did not
accept that Mr Mabo was the person entitled to make
those claims within the society. In relation to
Mr Rice who had claims to land on the major island,
the Island of Mer - colloquially known as Murray
Island - and also some claims in relation to areas
on Dauar Island, His Honour said that the claims
are made out in relation to the area on Mer meaning
that he accepted the evidence established within
the context of "the system" - as he has called it -
the recognition between themselves of that; that relation to the areas on Mer, but that the evidence
was in a state of some confusion in relation to the
particular areas that were claimed on the island of
Dauar and therefore he could not accept them as
falling within the context of what he had already
said was that particular system.

Now, that is all. It is true in a sense, as

Your Honour Mr Justice Dawson put to me, that
His Honour's findings in one sense only amount to a
setting out of the evidence, but His Honour has
been careful to say where the evidence is either
rejected as not credible or is, in His Honour's
view, insufficient to amount to that which an individual has claimed. And he has also been
careful to say, as he does with that passage
dealing with the Passi lands, that the lands are
held pursuant to that arrangement. Elsewhere, of

course, he has dealt with the particulars. I took
Your Honours to 173 to 180 where he gives the
particular incidents of the operation of lands

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28/5/91

which are held, such as the ability to pass it and
so on.
So far as His Honour's findings are concerned,

they do contain specific positive findings and they
contain some negative findings in the sense that
either the evidence is rejected of a particular
individual as not credible or, something is not

made out that is an essential component. To that

extent, there are such findings. We do not here
seek to say that, for instance, the findings in
relation to the Island of Dauar in the case of
Mr Rice are not findings that were open. We simply
accept those but we say there are ample findings in
relation to other areas.
Now, what we have done in the document that I

have taken Your Honours to, the reply, is simply
set out under the three or four heads that are
there specific findings. His Honour's introduction
to the passage at page 173 refers to conclusions,
and they are specific conclusions in relation to
the system in the context of the question which he
posed for himself at page 13.
When one comes to see the framework in which

those rights exist within the society, it is
necessary to examine more than - one needs to go to
more than one finding because findings, if I could or four references there, one sees the way in which
take Your Honours again to page 1 of the reply,

His Honour has approached it. He said:
Given considerations such as the constraints imposed by the rugged terrain ..... the pressures of population, the elaborate and
complex social organisation of the people and
the importance of gardening from the point of
view of subsistence and socially it would
perhaps be surprising if the Murray Islanders

had not, during the period of their occupation
of the Islands, developed ways of controlling
access to and the use of land (in the extended
sense) and the resources it afforded. In any
event it seems fairly safe to assume they
brought with them a social organisation which
they adopted to the conditions on the
island ..... Murray Islanders have a strong
sense of relationship to their Islands and the
land and seas of the islands which persists
from the time prior to European contact. They
have no doubt that the Murray Islands are
theirs ..... in so far as this perception
persisted prior to European contact there was,
so far as we know, no outside challenge to it.
Even after contact the remoteness of the

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28/5/91

Islands and other considerations meant that there has been no real challenge, except
perhaps intermittently, at least until recent
times.

And at page 156 there is a quote from Margaret
Lawrie, a witness who gave evidence of how she had assembled her book "Myths and Legends":
Trespass is abhorred on this island.
Everything is owned, land, reefs, rocks, stones -

and it goes on -
A man may speak for what is his, no more.
When a girl marries she usually receives dowry land which passes to her son -

and then she describes, to piece together a story,
she had to piece together parts of the story from
the particular people who related to the part of
the story that related to a particular part of the

land. And His Honour has, we would respectfully
submit, adopted that in setting it out.
At page 157:
there is a strong sense of the appropriateness
of being in your place or locality and of
inappropriateness of being in someone else's
place or locality. Words such as shame and
trespass are used in this context and reflect
deeply ingrained social and cultural

attitudes. The knowledge of boundaries is
important in the observance of those concepts
of propriety and of the social behaviour

reflecting them. Such attitudes are rooted in
the pre contact past ..... The attitudes I have
mentioned are ingrained in the culture of the
people are a part rather than objectively laid

down and enforced by some distinct
agency ..... the people of the Murray Islands
perceive themselves as having an enduring
relationship with land on the Islands and the
seas and reefs surrounding them.

And there are references to some of the early
explorers:
The whole shore here was lined with a
continuous row of houses, each in a small
courtyard of some 10 to 20 metres square
fenced with bamboo. Here and there between
the fences ..... were left narrow passages ..... " ... their gardens were extensive, well fenced
and cultivated with great care and they almost

Mabo

28/5/91

entirely subsist upon their produce ... their territories are not sufficiently extensive to
excite cupidity".

There is a reference then in the 1840s to an observer who was on one of the other islands in the
Torres Strait, and obviously one can draw
inferences from that. There is a reference in
"Fences", which His Honour adverts to at page 164,
and the text of the exhibit not set out by
His Honour - I am at the top of page 3 now of that document - this is in 1825, we have not put the
date in, early 19th century:
" ... their wigwams are comfortable and neatly
constructed of bamboo - they are generally of
conical form surrounded by a yard and bamboo

fence. They appeared to be divided into
families and each family had a distinct piece
of ground".
There is then the passage from Wilkin, and

then there is set out those detailed passages from
Wilkin, that:
Queensland has not affected native land tenure

this is writing in 1898, 19 years after
annexation -
it is not impossible that English

ideas ..... are making themselves felt. There
is no common land, and each makes his own
garden ..... at his own convenience ..... In most,
if not all, cases the children or
heirs ..... have been acquainted with his

intentions during his lifetime. The father
usually went over his gardens with his
children, pointing out to each child the
portions that are to be his or hers.

His Honour then comments after setting out the

1898 extract:
such a practice is prevalent today among
certain segments of the population with
respect to residential and garden lands
notwithstanding the use of written
records ..... older islanders ..... did not regard
their property as properly disposed of unless
they had personally acquainted the chosen
recipient with both intention and boundaries
and that they were not impressed with the
effectiveness of written dispositions .....

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28/5/91

there is a body of evidence from Murray the eldest son.

as suggested by Wilkin and attributed to Bruce.
A son also, according to Wilkin,

inherited any property left to his mother
during her life and on the death of a wife the husband was obliged to give back her portion -

and so he deals with inheritance rules.

Wilkin records Bruce as saying that formerly:-
"A man could leave his land to any one he
liked of his family, or even alienate it,
during his lifetime; but even so the family
were not left without provision."
He went on to say further that if a father was
very angry with his children he could
disinherit them.

DAWSON J: Are we to take it from that that he accepted what

Wilkin says?

MR CASTAN:

Yes, Your Honour, we would respectfully submit

so. But we would respectfully submit that there is
no foundation for rejecting it even if one was to -
there is no basis on which to look at those

extracts from Wilkin otherwise. We would
respectfully submit, the material is there as
material that was recorded. It is Wilkin's record
at the time in 1898, it is said to have attributed
to Bruce who is described as the reliable informant
who was living there and there is no suggestion
otherwise that it is unreliable or that that
material coming from that source, as distinct from
the Reverend Hunt who had been there earlier, which
was criticized, but no suggestion that Wilkin's

account should not be accepted. The only comment
His Honour makes about it is that he was a young man and that most of it really came from Bruce who
was living there and knew all about it and is
described as "reliable".

BRENNAN J:

Mr Castan, I am still at a loss to understand

the nature of the interest which you say burdens
what you conceive to be, as I understand, the
Crown's radical title. Is it a case where you say
the Crown's title is burdened with an interest held
by the Meriam people and that that interest, in
itself, is divisible amongst the individual members
of the Meriam people, or do you say that the
Crown's title is burdened directly with an interest
held by particular Meriam people?

Mabo

28/5/91

MR CASTAN:

We submit that the Crown's title is burdened by

the interest held by the particular people.

BRENNAN J: So, you do not contend for any community rights

other than those held by specific individuals?

MR CASTAN:

Yes, Your Honour.

It seems that in so far as

there were community rights, and there may have
been some other kinds of rights in addition to the
individual rights of what we will call private
property on this particular island, there were, at
one stage, thought to be additional rights held by
various, what are called "tribal groups", if I can
use that term very loosely, within Meriarn society.

BRENNAN J:

Be it so, but I mean the case you are making is

not going to be advanced then by pointing to
findings that His Honour has made about the views
that are held by the community inter se.

MR CASTAN:

Yes, it is, Your Honour, because the rights of

the individual only exist as part of that
community. It is not the case that because the
rights are held by individuals that they are held

in some abstract context, they only exist in that

society, and within that society they have these
rights and within that society they are entitled to
deal with the land and they are entitled to

alienate it, and land was sold.

BRENNAN J:

I appreciate that, it just seems to me that the

chain of title is either interrupted by the notion
of the community rights out of which individual

rights are derived or, alternatively, there is no

chain of title and there is a straight conflict

between community rights and radical title.

But

you do not put it on either of those bases?

MR CASTAN:

No, Your Honour.

The way in which it is put is

that within - one has to start with a society which
existed and within that society people had a strong

sense of private ownership, on the view of one of
the witnesses, a stronger sense of private property
and proprietorship of individual or individuals on
behalf of their immediate family in relation to
land than any that one might witness in western
society.
And that is one of the striking features of the society, a society where it was a major cause
of concern to find a footprint on one's land, and
explained by Dr Beckett in terms of a group of
people living on a small island where there is
· intense horticultural activity and intense division
and so a high degree on focus on individuals
separate plots; and then, overridden, at least in
the earlier stage by what we might ca11 tribal or

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28/5/91

territorial divisions between particular groups
within Meriam society. Then, of course, the Meriam
people, as a whole, having their relationship with
other outside communities.
Now, so far as concerns land, the rights in

relation to land, the right to keep someone off,
the right to garden the land, the right to pass it down, was held by the individual or the individual

on behalf of his wife and immediate family. It was
not held communally in the sense that we are
perhaps more familiar with in some of the cases
that deal with African situations or the obvious
more familiar case of Australian Aboriginal
interests.
And so it is our respectful submission that

those individual where a whole community was in
occupation of the entire island and within that
whole community there was a society functioning and
within that society there were people who were the
actual - I use the term "owners" now for present
purposes without seeking to beg any question but
just in terms of the operation there, they were
treated within that society as owners of their
respective areas of land; so they had an interest;
each individual had an interest.
It is to be characterized, we would

respectfully submit, in the way that if we were
testing, if this was another Daera Guba and the
question here now was whether, for instance,
coincidentally there was an instance of a sale pre-
annexation here, as it occurred in Papua, there was
land sold to London Missionary Society, pre-
annexation.
Another way of testing this is to say, "What

would happen if individuals came along now and
said, 'Well, we want to set aside that sale, or the
land claimed by the London Missionary Society is

not really owned by it at all.'" Presumably, the
London Missionary Society might seek to say that it purchased that land pre-annexation; subsequently
it was granted a lease by the Queensland
Government, purporting to act under Queensland
legislation. That, we say, reflects the right of
pre-emption but that is a separate issue.

The principal point we make is that one can look at this community as a community in which
there was private ownership of land within the
community and, in that sense, it is to be regarded
as analogous to the sort of case where colonization takes place and the British Crown annexes territory

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28/5/91

where there are private owners holding under a pre-
existing system. One does not need to go to
concepts of communal ownership and the like. If people in fact have individual interests
within the pre-existing society, and those are the
kinds of interests that function there and are
acknowledged as such and are recognized within that
community, to use His Honour's terminology at page
13, then the real question is what happens on

annexation? Do those privately owned house lots
and garden lots and the like simply vanish into
thin air? That is, in substance, the question.
It is not just a question of whether the

overall - and, of course, it would apply. We have
two plaintiffs but, as is clear from the material,
the whole of the island was owned in a similar way.
They are a whole community there and each
individual or each family had greater or lesser
areas prior to annexation under this intense
proprietary - and I use that word advisedly -
system that operated among these people. And if it operated then the question that is raised here, the
first question, is what happened? Did it all just
vanish when some instruments were signed in London
and in Brisbane? Because that is how the

annexation occurred here. The annexation occurred
by letters patent issuing from London and by a
statute passed in the Queensland colonial
Parliament and by a proclamation by the Queensland
Governor, and possibly, on one view of it, a remedial statute, Imperial Statute, passed in 1895.
Now, they are the four steps that were taken

to bring about this change. They happened either
in - two of those steps happened in London, the
first and the last, and the intermediate two
happened in Brisbane. And the question for this Court is did this, what we would described as an
intensively private system of ownership operating

there, suddenly vanish in 1879.
As we understand our learned friends' case, the case is that it did and we would respectfully
submit that that is not the proper view. But that
is the way in which it arises on the facts as
found.

MASON CJ: But Mr Castan, I do not follow from the pages

that you have referred us to, say from 208 onwards,
that the findings of Mr Justice Moynihan support
this individual ownership claim that you are making
because essentially at page 212, His Honour seems
to be finding that the land in question is held
pursuant to a group holding arrangement.

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28/5/91

MR CASTAN:

In the case of the Passi situation there is a

special arrangement. What happened here,
Your Honour, is that the Passis had a particular
arrangement where the private ownership was held in
common by a particular family. That does not
affect anything of what I have said, Your Honour.
All that is talking about is that in this particular case the ownership happened to be
shared, instead of owned by one person, by a
particular group who still held their land in

common. It is not communal in the sense that as I
understood His Honour Mr Justice Brennan was
putting to me.
It happens to be that in the Passi family

there was this particular common or joint - and one
is tempted to keep applying our familiar notions of
ownership by more than one person that it is still
private ownership - but whether one calls it common
or joint or one can give it the term of an
operating family trust relationship with an
individual who is the appointor, perhaps, one can
put all these notions on it. But in this
particular case, the private ownership was held by
that family, but that does not alter the
fundamentals of what is being said, Your Honour.
That remains unaffected.
The significant point I was endeavouring to

make is that there was a communal type of
ownership, and in relation to the Passis, they had
a land dispute, a boundary dispute with their
neighbours, the names of which I have just
forgotten - the Blanco family - next door, and they
litigated this in the court on the island and they
fought it as private neighbours would because there
was a dispute about whether the boundary ran two
feet to the left or two feet to the right. They litigated this, and they dealt among each other,
and I am not sure that it had been resolved, in
fact, even to today finally. There is still a

boundary dispute, a neighbourhood dispute going on
there between what is, in effect, two private

owners. As it happens the Passis are a group of
people. They are a family who own that particular
lot. But it does not affect the underlying concept
of this private land.
There is some material - and I have forgotten

now where it is - about what occurred when the court party which was there in 1989 on a view,
walked in the company of some of the plaintiffs to
inspect a particular location, and one of the
islanders who took the view that the particular
land was owned by him and not by the person who
those accompanying the court party believed owned
the land, one of the islanders commenced to

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28/5/91

indicate fairly firmly that the people should get
off his land with a description of it as a "whoop
whoop" sort of sound to make it very clear that
they were trespassing. This occurred
notwithstanding, I might say, the inevitable
respect and so on with which the court was treated,
the welcome that the court and the party had there
on the island which is referred to by His Honour,
in fact, in the course of his determination. But
that did not override a concern that there was a
trespass going on when the court party trod on the
wrong side of a boundary line.
It is difficult to convey the notion that is

involved in this particular situation, but it is
described by Dr Beckett in some of his writing as
the kind of pressures that result in a society
which is, as it is called, "sedentary horticultural

society" with intense pressure on land. And thus
the taboos and customs that grow up relate
significantly to observation and rules that govern.
What we say about the findings is that one can approach looking at a community like that and the
way in which those kinds of interests in land
operate by starting from what we would respectfully
submit is the artificial starting point - what was
the system of government, how were the rules made
and who decided the disputes - and that, in our
respectful submission, is a false question because
in what are called by the - and we have referred to
some of the material and set out some extracts from
anthropologists who have commented on the fact that
in these societies, what are described as small,
acephalous societies, there is no head of state,
there is not necessarily a chief who is the
ultimate font of authority, the source of all
authority, that authority comes from the pressures
that are brought to bear, and His Honour makes
significant findings about this, the social
pressures, the social cohesions brought about by

what children are taught, by significant taboos
that are put in order to warn off trespassers; all
sorts of systems that are brought into existence,
which are not what we would perhaps conventionally
regard as systems. But they tend, we would
respectfully submit, to support the existence of a
system - - -

MASON CJ:

Mr Castan, it may be that our consideration of

this would be advanced if we could induce you to
descend from the general to the particular. Could
you isolate for us what you consider to be the best
individual claim that you can put forward, perhaps
in relation to Rice to, as it were, one block of
land, so that we can see how the general principles
on which you rely actually manage to produce a

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28/5/91

specific claim, individual ownership of the kind
that you are contending for?

MR CASTAN:

I have referred Your Honours to the Passi lands

and we say that - - -

MASON CJ: That is the Zomared?

MR CASTAN:

That is Zomared and the other areas other than seas and reef, and His Honour has specifically said

he finds it operates.

He says the chains of title

are clear.

He refers to chains of title which are

the - - -

MASON CJ: In your submission that is the best vehicle, is

it, for applying the general principles on which
you rely, so as to result in an individual claim to
a specific block of land?

MR CASTAN:

Yes, although I have to qualify the word

"individual" by referring to the joint owners in
that particular instance, but subject to that, yes,
Your Honour. It is clear, it is unequivocal, there
is no hesitation expressed by His Honour about the
areas. He says the areas are clear, he says the chain of title is clear, he says that he accepts all the evidence about the way the system operated
there and there is no qualification on it.
Can I take you to the Rice claims and at

page 214 we can deal with those fairly briefly.
Your Honours will see at page 214 that dealing with

James Rice he sets out three claims. The first is
by patrilineal descent to land on Dauar
Island at Aepkess and Dadamud together with seas,
seabed and as far as the fringing reef.
The second, as a descendant in the Magaram

family group through his grandfather, land situated

on Mer in the locality known as Bazmet. The

reference to the claim is 44. As a descendant in the Komet family group
through his great-great-grandmother two portions of
land, situated on Mer, at Korog and Dei-mi; see
the references, the claims are 45 and 46.
His first comment is "I will not repeat what I
have already said in respect of claims to areas of

reef or sea. I do not regard them as sustainable
on any view of it".
Then he deals with what the defendant had

pleaded because the defendant had said he had
assigned rights to Tapim family from February 1989,
and then at page 215 one sees that:

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28/5/91

It was opened that James Rice claims
three portions of land on Mer, namely

Korog ..... Dei-Mei ..... and Bazmet.

They appear as 45, 46 and 44 on the map.

On Dauar Island it was said James Rice

claimed Aepkess and the reef Eurr and the
waters offshore from Aepkess, to the reef -

and the claims -
were amended to include an area 250
meters .....
These lands were claimed on the basis of inheritance from James Rice's father Loko
Rice. His father gave him all of this land by word of mouth and he inherited it at the time
of his father's death on 9 September, 1950.
He says his father wrote no will, but:-
"This land, he said to me, you know, this land
is mine, if I died, I've got land. -- You mean
you, James Rice? - Yeah. -- Would get the
land when he died ..... When did he say those
things ..... At Dawar Island ..... was he talking
about all of the land or just some of the
land ..... Land at Dawar and land at Murray, he
said that."

Then there is a reference to:
his stepmother Balo ..... leaving the land to
him by a written will -

which cannot be located. And then His Honour says:
All the land claimed is said to have been

that of Loko Rice -

that is the father -
from his father James Rice senior (including
Bazmet, from his wife). The line of descent
seem clear back for two generations (the
family tree produced by James Rice is
Exhibit 168) but the claim has some
interesting features.

He then sets out his background, personal history
and at page 217:
The Korog block claimed is residential

and has an associated garden area claimed
through a fairly distant relation given it as
a wedding present - such things did of course

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28/5/91

occur. One may have doubts as to how the

Korog land came into the Rice family. James
Rice says that his mother, father and
grandfather (Jimmy Rice who died in about
1942) used to go there to collect fruit and
clean up the area when the councillors ordered
it. Such use seems to be supported. Such a
basis for mounting a claim to apparently
abandoned land, bolstered by a basis in
descent were not unknown, one suspects, as a
means of acquiring land on the Island.
I accept that James Rice has claimed and

resorted to the Korog land for many years as
did his father and grandfather. This is known
and James Rice can name the boundaries and the

adjoining owners. The Court records show
disputes concerning land at Korog one of which
seems to have been decided in favour of Jimmy

Rice and may refer to the land in issue. No
other claim or dispute in respect of the land
has emerged. Nevertheless I am sceptical
about the chain of title said to sustain this
claim.

That is because His Honour has earlier said that it
is abandoned land bolstered by a basis in descent.
It remains to mention that James Rice has

entered into a tenancy agreement with the to his claims for land on Dauar Island.

Now those are His Honour's findings in relation to

Korog. He accepts that he has claimed and resorted
to it; that he can name the boundaries, that there
are disputes, that no other claim or dispute in
respect to land has emerged, and he expresses some
hesitation about the chain of title, but says above
that he expresses that hesitation because the chain
of title appears to go further back than the

occupation by the grandparents resorting to the

land. Now, those are the findings in relation to
Korog.

TOOHEY J:	Mr Castan, on page 214, the claim - not the findings, but the claim is formulated by reference
to family groups but, as I understand it, this is a
claim based on individual ownership, it is, not a
group holding arrangement?
MR CASTAN:	I am not sure what Your Honour is referring to

by "family group" here.

TOOHEY J: Well, because on page 214, under 1, 2 and 3,

there are references to his position as a
descendant in a particular family group.

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28/5/91

MR CASTAN:

Yes, that is describing how he comes to that

land.

TOOHEY J: But the claim itself is made in terms of

individual ownership -

MR CASTAN: Individuals, though it is also - - -

TOOHEY J: Sorry, as opposed to the Rice claim, which is

part of a group holding arrangement?

MR CASTAN:

Yes, Your Honour.

It is solely an individual,

though he also claims as a representative,
representing himself and his wife and children, but

it is claim to him - he is the owner. It is not a
family claim in the way that the Passi claim was
identified.

TOOHEY J: Well, did the group-holding arrangement amount to

anything more than a need to consult and perhaps
get permission in order to dispose of an interest
which otherwise is yours?

MR CASTAN:	No, the group-holding arrangement in the Passi case arises because - and this is dealt with in
some of Dr Beckett's evidence that is summarized in
relation to Passi by His Honour - that land is held within a family and then is divided to children and the individuals take, but in some instances those
individuals continue to hold it together. In the Passi case, because the grandfather had said you
should try and keep the land together, so they had
kept it together; the brothers had taken the land.
That is all. That is no different, really, than
what we might call a conventional joint holding
passing down to sons of a father until such time as they partition. But that does not apply in the case of the Rice family; that is an individual claim.

Now, those are the findings in relation to

Korog. I am not sure whether that answers
Your Honour's question about whether that is the
best. If I can go over to page 221, in the middle
of the page, after three pages of description of
the claims to the land on Dauar, His Honour says:
The evidence as to James Rice's claims concerning Dauar -

that is on that island -
is to my mind in such an unsatisfactory state
that I would not be prepared to act on it. It
seems that the facts are now largely lost and
that what we see is part memory, part

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28/5/91

fabrication or perhaps confabulation and part
opportunistic reconstruction.

Now, that is a finding clearly adverse in relation to the lands claimed on Dauar. But, if
one goes on, he then deals with Bazmet:
Bazmet is on the southern part of Murray

Island in Magarem tribal territory. It is
garden land which James Rice has not used for
over 10 years. The land is said to have been
a wedding gift to the wife of James Rice
Senior the grandfather of the plaintiff James

Rice. James Rice took Dr. Beckett there in
1958/59 and showed him a new banana garden
200" x 120" and a sweet potato garden 60" x
60" on a plot 400" x 300" -

I assume these are feet, Your Honours.
Use of the plot by the plaintiff or his father

is confirmed by others. James Rice described
the land and its boundaries. Similar
considerations apply to Dei-Mei which is named
in Exhibit 168 when James Rice appointed
Day Day, his brother-in-law as caretaker.
Now, those are the extent of His Honour's

specific findings in relation to Bazmet and
Dei-Mei. They are brief but they are in clear
contrast to His Honour's rejection of the claims
concerning Dauar because His Honour has referred to
the sketch - the exhibit - and to the basis of the
claim. In our respectful submission, His Honour is

there making findings. We concede there is an
element that is unsatisfactory about this because
His Honour has not gone further and set out
anything more about the land at Bazmet and, of
course, there is a substantial body of evidence.
But, in our respectful submission, His Honour has

found for James Rice in relation to Bazmet, Dei-Mei

and Korog. He has found against him in relation to
the three or four portions, in addition to those,
which he claimed on the island of Dauar.

MASON CJ: Well now, take Bazmet, for example. If you look

at question 2(b), on page 74 of the documents
handed up by the Solicitor-General, what are the
elements of the rights that James Rice has in
relation to Bazmet?

MR CASTAN: All of those elements that are to be found at

pages 273 to 280 and the other passages that we
have referred to. His Honour has made findings
about what happens - what the kind of incidents are
of individual ownership. At page 273, he
specifically says, "individual house lots are

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28/5/91

owned; garden lots are owned. These are the

rights in relation to garden lots". Then he
identifies a garden lot and finds for James Rice in
relation to it. The incidents are not found here; here His Honour is dealing with the particulars of the claim. At pages 273 to 280 His Honour sets out
the precise incidents and then one applies those
incidents and we cannot apply them to the land at
Dauar because His Honour said we have not satisfied
him that James Rice is the right person for those

lots on the island of Dauar; we have, in relation
to Bazmet.
Perhaps the difficulty arises because

His Honour has dealt with one aspect of the issues
before him in one part or perhaps on a continuous basis. One finds it is not easy to pick up these references, as we have extracted them now in this
reply document, to find the precise way in which

His Honour has made the findings. He has not
linked them up to the particular portion and
His Honour has, we would respectfully submit, made
those positive findings.

DEANE J:

Mr Castan, if I can just take up what the Chief

Justice said, if you go to page 221, you have the
Bazmet findings being:
It is garden land which James Rice has not

used for over 10 years. The land is said to
have been a wedding gift -

he and his father, at some stage, used it. Now, on
the basis, as I understand it, of that being the
only evidence, we ar.e asked to answer a question,
"Does James Rice own this land or interests and
title in this land and what precisely are they?".

MR CASTAN:

No, that is not the only evidence, Your Honour.

DEANE J: Well, I thought you were referring us to - I am

sorry, on the basis of those findings, then the
only findings in relation to the Bazmet land, we
are asked to give a final answer to a question as
to whether James Rice owns interest and title in
that land and what they are.

MR CASTAN:

Yes, Your Honour, but we would respectfully

submit the Court is entitled to go to the
transcript references that His Honour has referred to and the Court is entitled to go to the relevant
material to amplify whatever is required.
His Honour is being very explicit, if I may say so,
Your Honour, in rejecting a claim where - - -

DEANE J:

Mr Castan, can we just stop.

The Court is here to

deal with an important question of law. Take

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28/5/91

page 74. You are now saying that in relation to
three distinct areas of land relating to James Rice
the findings are inadequate of themselves and we
are expected to go beyond those findings and deal
with the evidence in relation to each of those
three areas of land; is that the position?

MR CASTAN:

No.

In our respectful submission, they are not

inadequate, but if Your Honour - - -

DEANE J: Well, then, can you just come to Bazmet and tell

me how you get the basis for this Court to make a
finding that James Rice owns in relevant terms Bazmet from the finding that it is garden land which he has not used for 10 years, that it is said
by unidentified people that it was a wedding gift
and that he and his father used it years ago?

MR CASTAN:

Your Honour, His Honour has been explicit in

making negative findings. His Honour has, in
relation to Dauar, said the evidence is

unsatisfactory; I would not be prepared to act on
it. His Honour has gone on and he said why.
His Honour has then gone on to deal with Bazmet.
Dei-mei said even less because Dei-mei, which is
the other block, only gets one line. And there was
a substantial body of evidence about each of these.

DEANE J:

And Korog gets the line that he is sceptical about

the claim to title?

MR CASTAN:

No, sceptical about the change of title.

He has

accepted that - the difficulty there, if I could
just take a moment, Your Honour, is that there was
a chain of title going back more than beyond the
grandfather but the evidence was that the
grandfather resorted the land and may have picked
up the land as otherwise abandoned land; and
therefore he is sceptical about a chain of title
that goes beyond the grandfather. Yes, he does

say that. And in relation to Dei-mei he says no

more than barely two lines. And substantial
evidence was given about Dei-mei and each of these
was - there was evidence over days.

DEANE J: Well, could I attempt to tie you down to

specifics. I mean, assume you succeed to the best
of your hopes and expectations on every question of
law involved, will you just explain to me what you
would ask a member of this Court to write in a

judgment holding that James Rice owns Bazmet. What
is the factual basis for it in terms of finding of
the judge who has found the facts?

MR CASTAN:	We would respectfully submit that Your Honours would adopt all of the findings that appear in the
Mabo	28/5/91

other portions of the judgment relating to the
rights that one has in relation to garden - - -

DEANE J:

I said, assume all that and we have now reached

the stage, "I now come to the specific question of
who owns Bazmet". There is a finding that James
Rice has not used it for over 10 years, that years
ago he and his father used it and somebody said
that it was a wedding gift to him.

MR CASTAN: In our respectful submission, Your Honours

should find that that is a positive finding in
relation to Bazmet and Dei-Mei.

DAWSON J: What, on the basis that because they displayed

the attributes of the proprietorship at some time,
having regard to the overall system, one can
conclude, even though one cannot follow the title
through exactly, that they must have been owners at
least at that time and inferred that they are
owners now or what goes - - -?

MR CASTAN:

No, Your Honour, because we would respectfully

submit that these, in fact, should be construed as
positive findings that he is currently the owner of

Bazmet. What His Honour has done is make negative
findings where he has found against a particular claim or a particular area and given reasons for
it, and he has simply, we would respectfully
submit, accepted that he has made out the claim to
Bazmet. He has simply accepted it, he has simply
said "There is nothing more to be said about it".
His phrase, for instance:
similar considerations apply to Dei-Mei -

cannot mean that the precise facts are the same,
because it was not the case that Dr Beckett also
went and measured the precisely same garden blocks
in 58-59, so His Honour is not saying when he says:

similar considerations apply to Dei-Mei -

that Dr Beckett also went there in 58-59.
His Honour's findings here should be read as an
acceptance of these claims, there is nothing more
to be said about them, they are made out.

DAWSON J: But it must be if that is so what I said, because

all that His Honour has found there, by way of
fact, is that the land was used by James Rice.
Now, it must be that the inference is from that,
with the background of proprietorship to land that
is provided in general, that you conclude that
James Rice was, in the relevant sense, proprietor
of this land. But that must be a matter of
inference because he has not found that.

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28/5/91

DEANE J: But he has not even found that, he has found it

was used by him or his father. He has not found
anything about what the father has done except that
it is said by unidentified people to have
been -

MR CASTAN:

The evidence, the way it is expressed by His Honour, to come down to, is:

use of the plot by the plaintiff or his father
is confirmed by others.

So, he does not specify whether that is evidence of
individuals, and there is material on this which we
would seek to take you to and we have outlined in
our submission and detailed some of the evidence
that supports this finding.

DEANE J: But that is what I mean, why on earth should we

get involved in the case of James Rice: three
different blocks of land, in the case of the
Passis: this obscure family arrangement, can you
not identify one block of land where somebody has
used it for 20 years and his father used it before
him and where there is no dispute that the father

took him there and said, "This is your land"? I
mean, you are leading us into a path where we are
going to be expected to write six separate
judgments on who owns and what interests in six
different blocks of land on the basis of findings
that you tell us can only be understood by tracing
them back to the evidence.

MR CASTAN:

Your Honour, these are the findings - I said in

answer to a question.from, I think, His Honour the
Chief Justice, that the finding in relation to the
Passi lands is probably the most explicit. There
is no question mark put over it; there is no query
or qualification on it; His Honour upholds it in
its entirety and upholds the particular arrangement
where it happens to be held by more than one person

jointly. It should not provide any difficulties,
we would respectfully submit, and it is the
strongest. Each of these is expressed in this

particular way. Some are rejected and others
His Honour has not deigned to go to the evidence.

He has not said that the evidence is rejected; he
has not said that the evidence is accepted; he has
not said that there was any qualification or
difficulty with it, he has simply said what he has
said.

DEANE J:

I could follow what you are saying if, in relation

to the Passi land, we were not expected to define
the precise interest of David Passi in it.

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28/5/91

MR CASTAN:

Your Honours, with respect, that is defined in

the material in His Honour's findings. He says

exactly what it is. And in our respectful
submission, when dealing with interests of this
kind, Your Honours, operating in a society of this kind, if that is the acceptable way in which these arrangements are made, then it should be accepted,
in our respectful submission. His Honour has made

the findings. Your Honours do not have to do
anything in relation to the Passi lands except
accept that which His Honour says.

DEANE J: Well, I do not want to take it further.

Mr Castan, it is not of great help to your case if
these are the best examples you can give of

individual ownership of land. I do not think that
you simply disregard the relevance of it by saying,

"Well, there it is". I mean, if you cannot point
to a better example than these of an individual
owning land, in terms of actual findings after all
this period, it is not completely irrelevant to the
larger issues involved in the case.

MR CASTAN:

Of course, and we are conscious of that,

Your Honour, but it is our submission that these findings should be interpreted in the context of the way in which His Honour has dealt with the

matter. And we stress, when His Honour has refused

to accept a claim he has said so. Now, in relation
to the Passi lands there is no qualification
expressed by His Honour at all. He says, at
page 213:
The Tables ..... evidencing the descent

sustaining the clan ..... follow. There is not,
to my recollection, any dispute.

He has made a finding about the holding. He has

dealt with the history of it. Perhaps I should -
could I take Your Honours to page 205 so that the

position is clarified in relation to the Passi

lands. He sets out the areas originally claimed
and half-way down the page he says:
I refer to my conclusions as to claims to
areas of reef flat and sea and as to what I
have called shrine land and that applies here.
It is impossible to conclude on the balance of
probabilities given the evidence as to what
the situation was in respect of such land. It

is a matter of history and remembrance. The
Islanders today seem to regard the reef and sea as accessible to them all with produce
available to all. the sustaining purpose of
shrine land seems long gone and the memory of
many aspects of the practices is fading and
selective.

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28/5/91

Dave Passi was born on 20 September, 1932

to George and Wanee. He was adopted by
Charlie Passi and his wife Maria. Charlie was the eldest brother of Dave Passi's father
George. Such adoptions seem particularly
common among the Passi's, a singular and
influential family group or "clan" throughout
the known history of the Murray Islands.
In 1956 Dave Passi commenced theological

studies at St. Paul's Mission on Moa Island in
the Straits and was ordained an Anglican

Priest in 1962. He was on Thursday Island and
at Mabuiag until March 1968 when he went to
St. Paul's College in New South Wales.
Between 1970 and 1976 he was at St. Paul's

Mission and on Thursday Island. He then spent
some two years in Rockhampton ..... he has been

the Anglican Priest on Darnley Island. I
accept him as an essentially honest witness
although he has a somewhat idiosyncratic view
of some issues, not least the Malo story and
christianity, and a propensity for selective
reconstruction - although no doubt he is
persuaded of the truth of his vision.
Dave Passi adopts the Passi family tree

and acknowledges the wills of his older
brother Sam Passi and of his uncle Charlie.
He understands the effects of these documents
to be that Charlie Passi passed control of the
Passi family lands to the plaintiff Dave
Passi's older brother Sam.
Sam Passi had been a party to the action

and gave evidence. As to his ceasing to be a

party he spoke of a concern about costs. I
suspect also that he did not wish to be seen
by others to be partisan by his role in the

proceedings. Sam Passi gave evidence that he
had or intended to pass his responsibilities

in respect of what can conveniently be
referred to as the Passi family land to his
older son Danny who no longer lives on the
Islands.
Dave Passi's claim as to his

representative group was limited as I
own and his representative capacity, is apparently to a general inchoate right -
indicated in Chapter 4 "The Representative

and I read that earlier, and then he sets out the

evidence. And at page 208 he discusses the
system, and in the middle of that page he said:

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28/5/91

Sam's oldest son - "has the right to say and
use the lands whenever he likes. At the
present time Sam is doing that. This is the

practice within our clan. We have learnt -
the family talk about it, the Passi clan talk

about that. I believe we inherited it from
our grandfather .. He did not divide his land
between his sons. It is the practice on the
island that the eldest son usually inherits."
Dave Passi said that he did not expect his
eldest daughter to own any land because a
daughter "is married to a husband and
therefore shares the husband's land".
Dave Passi gave evidence that he asked permission of both Sam and Sam's eldest son
Danny to build on the land at Zomerad the subject of his claim some three or four years ago and that they both approved. The land is

in fact where he was brought up. He said he
asked Danny and Sam for the relevant
permission because -
"the eldest ... have control of the lands.
That is number one. Number two, to have a
centre for the clan and that is important, to
hold unity within.".
Later he described his interest or rights in respect of the land at Zomared out in these
terms:
"As an individual I have right to the Passi
land and I am aware of clan ownership of that

land. Sam as the eldest controls the land."

He was asked:
"You mentioned that you believe you have

rights in the land with the Passi clan. What

do you mean today by the Passi clan sharing

these rights in the land. Who is in the
clan?---By tradition the sons are.
When you say by tradition, has someone told
you about this tradition? --- It is the
practice of the Passi clan. the land was
handed for the use of - we owned them and if
my sister want to use the land she may use it,

but will not own it. The ownership goes to
the men."
Dave Passi was asked what could happen if

another Passi for example wanted to make a
garden on the land at Zomared on which he

proposed to build. He answered:-

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28/5/91

"I would put the complaint before the clan ...
Because of the clan ownership and my part in
it ... but if what they will do is in the best
interests of the clan then I have to accept
it .... Myself as just an individual, I have
no right. It has to come from the clan. The
decision would have to be made by the clan."
This resolution seems to contemplate some sort
of group control rather than a ruling by only
one.
There is evidence to support a conclusion

that the Passi family (and other Islanders it
seems) accept that Passi lands are not divided but "used as a family", that the eldest son is
head of the family and "owns the land on
behalf of the family" or is overseer on
behalf of the family.
Each Passi man had the right to use the land with the permission of the leader of the
family - although George Passi at one stage
suggested it was sufficient that he "tell"
Sam, of his proposed use. It seems that the
"caretaker" had the right to lend or lease
Passi land and was the one to exclude people
from clan land.
Dave Passi said his house site was still

the clans, when he died someone else would enjoy the benefit of the land and he would
need Danny Passi's permission to build on the
land. He said he could not abuse or sell any
Passi land.
Dr Beckett gave evidence in respect of land not being divided but held for the

benefit of a family group. Thus he said:
Do you see there, you write, "Some parents

divided the land among their children to stop
quarrelling. In such case it was usual to
show some preference to the eldest son.
Alternatively, a set of brothers might hold
their land jointly under the leadership of the
eldest, but if only one brother survived, he
might also manage the land on behalf of his
deceased brother's children. This was the
favoured arrangement when land was short and
when most of the members were away from the
island or unmarried. There is an expectation
that the land will be divided in the long run,
however. Sam Passi held land on behalf of his
two brothers - one unmarried, one absent - two
unmarried sons of his father's brother and two
unmarried sisters of another father's

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28/5/91

brother." Now, I ask you please how you
understand that practice of holding land
jointly operated in respect of the members of the family who had interests in that land and the joint ownership which you speak of
there?--I think we referred to this at least
in passing this morning. The arrangement, as
I understand it, is that in the case of joint
holding, it's at least a courtesy and maybe
something more for the younger brothers and if
there are any unmarried sisters to go to the
eldest brother before deciding to build a
house or making a garden on the family land.
It provides a kind of family planning, not of

births, but of the use of land. Now, if there
was disagreement about that, or if
disagreement was anticipated, parents or
brothers themselves might decide to come to an
amicable agreement whereby the land would be
divided. In the second generation, division
usually took place in the cases that I know
of - and I checked through quite a number of
cases - in other words, when you come to a
joint holding of first cousins, people usually decide to go their separate ways, but the case of the Passi's was an exception to this, but
the case of the Passis was unusual because not
many of them were married apart from Sam
Passi. So, in fact they were not using the land to any great degree.
Does this practice in regard to joint
ownership apply equally or in any different
respect if one of the members of the ownership group is absent from the island, perhaps for a long time?-- Oh, then, I think yes, it would. It would be assumed that the interests of the
absentee which, of course, would be inactive,
would be looked after in a notional sense, but
since the absentee was not seeking to make

garden or to establish a house, there was not

much to be done. Now, what's problematical, I

think, is supposing the absentee died if they
had a family who subsequently decided to
return, whether the head of the family, the
joint family would agree to look after the
interests of those children. Now, I don't
know of a case when that happened."
Dr Beckett went on to expand on the

system. He thought that the tensions and
pressures within the family group would lead
to the land being divided sooner or later.
This would involve "a fairly complicated
arrangement", "a laborious process"
"hopefully" leading to "an amiable agreement".
The process might be worked out during the

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28/5/91

life of the senior family member and perhE, s

recorded in the Court Records. The pressures
to divide are yet to be felt by the Passi's.
The group holding arrangements usually

involved brothers and sisters, occasionally
first cousins. Children, Dr. Beckett thought,
could make a claim apparently based on a
"presumption" that they would inherit from
their father "or perhaps mother" or "at least
... be entitled to have access to that land as
if the holding remains joint". Married
daughters might be able to return to make
gardens but "as a courtesy they no longer have
a claim to the family holding as a whole".

According to Dr. Becket .. mce a break up

of a group holding occurs ea~ individual

owner is free to use his land without
consultation or permission of the head of the
clan.
I am prepared to conclude that the Passi

lands are held pursuant to an arrangement such
as is contemplated by the evidence I have
canvassed. Such arrangements, which depend
essentially upon acceptance by those affected,
reflect an aspect of Murray Island social
organisations for generations - probably

antedating European contact. The
arrangements, and the ultimate breaking up of
the holdings, illustrate perhaps that the real
pressure on land distribution comes when sons
marry. Dr. Beckett indicated children have
very little use for land until they marry.
The legal consequences of those findings are to be determined elsewhere.
Now, in our respectful submission, His Honour

has accepted; he has described in detail the
arrangement; he has accepted that they are Passi

lands. He then goes on to the chains of title and
boundaries:
I will not repeat what I have already

said on the topic of boundaries. I note that
there seems to be a dispute between the
Passi's and adjoining occupier as to the
boundary of land at Zomared and not affecting
the area Dave Passi says he has been allocated
for his house. If it was possible to sustain
a claim to areas of the sea or reef there may
be a dispute between the Passi's and the
plaintiffs and James Rice as to boundaries.

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28/5/91

The Tables submitted by the plaintiffs as
evidencing the decent sustaining the clan to Passi lands in the current generation follow
as Tables 11, 12 and 13. There is not, to my
recollection, any dispute about these.
So, His Honour has accepted the whole of that.

In our respectful submission that is the highest or best case we can put because His Honour has
accepted all of it and set it out in some
considerable detail.

DEANE J:

Then what do you say are the answers, for which

you would contend, to l(a) and l(b), which relate
specifically and only to the interests of David
Passi?

MR CASTAN:

Your Honour, the answers are as set out in the

document. Could I take Your Honour to the
particulars as we supplied them, because - - -

DEANE J:

So you say that, we say David Passi has all those

rights to all the lands referred to in 1, 2 and 3?

MR CASTAN:

Yes, Your Honour, but could I take - - -

DEANE J: Well, I just wanted to know what your answer was,

Mr Castan.

MR CASTAN:

Yes, but we have been explicit about it,

Your Honour. Could I take Your Honour to page 86

of the same volume. We would respectfully submit
that the answer to the question is that he:
As a member of the Passi Family Group in

(subject to the head of that Family Group, on
behalf of the family, having the power to
permit use of the family land by David

common with other members of that Family Group that part of the family land which has been

allocated to him on which to build a
house) ..... As the younger brother of Sam Passi
(as a possible successor to Sam -

has then -
In respect of the house block at Zomared and
in respect of the land areas and beach areas
of the land on Dauar Island known as Glur and
Teg and in respect of the sandspit known as
Waier, the beaches of the Neh Lagoon and the area known as Zei-Geitz.

That is to say, we have eliminated the sea and reef
areas. Then, on page 87:

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28/5/91

The following rights and interests, held
ab, .utely except to the extent expressly

qu fied hereunder, and subject to the rights therein to extinguish the Plaintiff's rights o -ne Crown as the holder of radical title

and interests in accordance with law. Then the rights are set out in detail, Your Honour.

DEANE J:

Mr Castan, I have read all that, but take page 88,

page 3 of the document 7. All I am putting to you
is, I cannot get from the material you have read to
us a finding that David Passi personally, with
other members of the family presumably, has a right

to dispose of all this land. I read it
differently.

MR CASTAN: Well, Your Honour, it is expressed as a member -

that he has the right to dispose of it as a member
of the - - -

DEANE J:

Do you follow the point I am trying to raise with

you?

MR CASTAN:

Yes, Your Honour is raising the question whether

the right of disposition is in the group as a whole
or in that particular - - -

DEANE J:

The point I am trying to raise with you is this:

I can follow what you are asking this Court to do,
or I could follow, if you were saying, "There is a
proprietary-type interest in this land. Here it is
held by a group knm,rn as the Passi group. " But, as
I understand it, whc:1 you are embar},:ing this Court

on is to go far bey0 that and he~~ to define -
still going - 10 pages of rights o the Passi group
inter se in relation to this land on - well then,
what is all this -

MR CASTAN:

It is not inter se, Your Honour, it is not within the Passi group. It is expressed as "his

rights or interest to the claim" - at page 86 - "as

a member of that group, in common with other

members of the group, subject to the rights of the

head of the family to:" item 7, "dispose of the

areas". Together they have the right to dispose.

Now, if we had used the language of "familiar

rights and concept~ and said, "They are tenants in

common.

What are

~ir rights?

They have the

right to sell", pre umably Your Honours would have

less difficulty.

We decline to do that and, in our

respectful submission, Your Honours should decline

to put as the test of acceptability of defining these things, concepts which are founded in our

existing system. This is the system as found by
His Honour. That is the system we ask Your Honours

to accept. It is not queried; it is not subject to

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28/5/91

any hesitations or question marks by His Honour.
His Honour has said what the system and, in our respectful submission, it is not appropriate to
then say, "Well, that is a difficult system, or one
we are not familiar with".

MASON CJ: Well, you might give consideration to this over

the adjournment. We will adjourn now and we will
resume at 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Castan.

MR CASTAN:

May it please the Court. There is a passage

from one judgment which may assist the Court in
dealing with the matters that we were debating just
before the luncheon adjournment. It is a passage
in the case of Amodu Tijani v Secretary Southern
Nigeria, (1921) 2 AC 399, and at page 402
Viscount Haldane, delivering the judgment of
Their Lordships, talking about the situation in
Africa, said this towards the foot of page 402:
Their Lordships make the preliminary observation that in interpreting the native
title to land, not only in Southern Nigeria,
but other parts of the British Empire, much
caution is essential. There is a tendency,
operating at times unconsciously, to render
that title conceptually in terms which are
appropriate only to systems which have grown

to be held in check closely. As a rule, in up under English law. But this tendency has
the various systems of native jurisprudence
throughout the Empire, there is no such full
division between property and possession as

English lawyers are familiar with. A very
usual form of native title is that of a
usufructuary right, which is a mere
qualification of or burden on the radical or
final title of the Sovereign where that
exists. In such cases the title of the
Sovereign is a pure legal estate, to which
beneficial rights may or may not be attached.

But this estate is qualified by a right of beneficial user which may not assume definite
forms analogous to estates, or may, where it
has assumed these, have derived 'them from the

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28/5/91

intrusion of the mere analogy of English
jurisprudence. Their Lordships have elsewhere
explained principles of this kind in
connection with the Indian title to reserve

lands in Canada. But the Indian title in
Canada affords by no means the only
illustration of the necessity for getting rid
of the assumption that the ownership of land
naturally breaks itself up into estates, conceived as creatures of inherent legal

principle. Even where an estate in fee is
definitely recognized as the most
comprehensive estate in land which the law
recognizes, it does not follow that outside
Englanq it admits of being broken up. In
Scotland a life estate imports no freehold title, but is simply in contemplation of
Scottish law a burden on a right of full

property that cannot be split up. In India

much the same principle applies. The division
of the fee into successive and independent
incorporeal rights of property conceived as
existing separately from the possession is
unknown. In India, as in Southern Nigeria,
there is yet another feature of the
fundamental nature of the title to land which
must be borne in mind. The title, such as it
is, may not be that of the individual, as in
this country it nearly always is in some form,
but may be that of a community. Such a
community may have the possessory title to the
common enjoyment of a usufruct, with customs
under which its individual members are
admitted to enjoyment, and even to a right of
transmitting th~ individual enjoyment as
members by assignment inter vivos or by

·succession. To ascertain how far this latter
development of right has progressed involves
the study of the history of the particular
community and its usages in each case.
Abstract principles fashioned a priori are of

but little assistance, and are as often as not
misleading.
Your Honours, we would respectfully submit

that the findings in relation to the particular
characteristics of the Passi arrangements in
relation to land on Murray Island that were made by
His Honour have to be looked at in the light of
those findings in that case, and that while we
could, perhaps, attempt to analogize and say, there
exists, say - one might be tempted to put on it a
members of the other brothers, including Dave, were
concept of a power of appointment and say, "Well,

the objects of a power". We could, perhaps
analogize and say, "Well, really this is a

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28/5/91

constructive trust and we will call it implied
family trust of these lands and we will
characterize Sam Passi as the trustee, we will
characterize Dave as a beneficiary and we will say
Dave, as beneficiary, is the beneficiary of the
rights which we have specified in our particulars.
But all of these or any other kinds of analogies that we could draw, in our respectful
submission, are not useful. In our respectful
submission, one has to take the ample findings, in
this particular instance, of His Honour, as they
are. He speaks of it as an inchoate rights, as
member of the Passi family, and it is the Passi

family right. One has to then, we would
respectfully submit, take the specifics of
ownership of particular land, as they are found at
pages 173 to 180, where the incidents are set out
in detail, and then apply them to the particular
lands, and it does not assist, we would
respectfully submit, for us to endeavour to say,
"Well, it is a difficult concept to look at because
it is one that we are either not familiar with, or
we cannot fit it into one of those established
interests or established concepts with which we are
familiar in Australian law".
So, that perhaps is one we would not seek to

say more than that about the factual issues. We
say that there are findings there which are
sufficient in relation to those. There are other
findings - I have already said what we have to say
about the findings in relation to James Rice. One
might have wished, perhaps, that His Honour had
amplified further but we would respectfully submit,
in so far as we would submit the correct inference
is that they are positive, there are relevant
passages of transcript, exhibits, maps and other
matters which enable one to isolate precisely what
the position is in relation to those three areas
claimed in respect of James Rice.

TOOHEY J:

Mr Castan, can you explain to us the relationship

between volumes 1 and 2 of the determination?
Volume 2 consists of a large number of express or
specific findings of fact which seems His Honour
was invited to make by the plaintiff.

MR CASTAN:

Yes, perhaps I should give some brief background

finished up as exhibit 1 in the proceedings which was the plaintiff's contentions of fact as then
of the way the proceedings came on, Your Honour.
formulated. Initially formulated, I might say,
with the perhaps naive hope of reaching agreement on facts which might then formulate the basis for questions. But it was formulated by the plaintiff

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28/5/91

with a detailed set of proposed agreed facts or
proposed findings.
That ultimately found its way to become

particulars of various paragraphs of the statement of claim, so it became incorporated in that sense,
and became exhibit 1 in the proceedings. So, in
that sense, it formed part of what His Honour had
been invited to make findings about because
His Honour had a full set of factual proposed
findings - if one might call them that - before
him. Though whether they were sufficiently
comprehensive as formulated back -in 1984 is
unclear.
Ultimately the submissions that were made to

His Honour on the findings he should make after he
had heard the whole of the evidence were, of
course, much more comprehensive, though His Honour
did have before him exhibit 1. And His Honour - I
do not actually recollect whether he was
specifically invited to make the findings, but
there had been versions of those facts put before
him, that is to say, the defendant had said, well,
there was some inaccuracy in one or other of those
facts and so he had had those versions and so he
took it on himself to make findings in relation to
them though he also, of course, refers in volume 2
back to volume 1 in respect of many of the numbered
findings of fact, because he has already dealt with
them in the course of the more generalized
findings.
But there are specific findings in relation to incidence of ownership also to be found in
volume 2, particularly at page 46 of volume 2.

TOOHEY J:

I was not asking you to take us to detail so much

as to explain the relationship between the two
volumes.

MR CASTAN: Well, that is how it works, Your Honour.

TOOHEY J: But does it follow from that that His Honour was

not invited to make specific findings of fact in relation to the particular interests that any of
the plaintiffs might have had in particular areas
of land?

MR CASTAN:

On the contrary, Your Honour.

His Honour was

invited to make findings of fact and the details
were - I should indicate to Your Honour that, after
the close of the evidence, detailed and very
comprehensive written submissions were submitted to
His Honour which went to each claimed area, which
specified all of the transcript references to each,
and which detailed the precise conclusions which it

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was contended he should reach in relation to each
of them.

TOOHEY J:

So volume 1, in effect, represents His Honour's

method of dealing with questions of relationship
with land and incidence of land holding rather than
a response to the particular questions that were
put to him. Is that right or not right?

MR CASTAN:

No, I do not think one can divide them up in

that way. It had not been anticipated. Perhaps I

can put it this way: it had not been anticipated

that there would be a volume 1 and a volume 2. As
it turns out the exhibit 1 that I have referred to,
the initial draft statement of facts had - I was
going to say fallen by the way side but that is not perhaps accurate but there had been debate about it
but it was not any longer central because there
were before His Honour much more comprehensive
submissions on each item of land, each transcript
reference, each finding that it was contended
should be made in relation to each aspect and all
the incidents in relation to every block. All of
that was done in intensive detail and is available
to this Court because it was done in writing and
their submissions are readily available. So, the
detailed submission to His Honour are comprehensive
and seek findings on each particular block in
relation to all aspects.

TOOHEY J: Yes, thank you.

BRENNAN J:

Does that mean that there were some findings

that His Honour was asked to make which he did not
make either affirmatively or negatively?

MR CASTAN:

I think the answer to that would have to be yes.

Yes, I think one could not answer other than that.
Certainly, I think our view would be that the
answer would be that there would be many such
matters that were put as to which there simply is

no finding.

BRENNAN J:

Mr Castan, could I just take you back to your

reference to Amodu Tijani v Secretary Southern
Nigeria. I understand, I think, the way in which
you put the argument as to the need to understand
traditional native interests in land, but in what
way do you say that those tradition native
interests are to be recognized at common law or
under any statutory scheme of land holding?

MR CASTAN:

We say they are to be recognized in the - we say

there are three, possibly four, alternative ways in

which they can be recognized. They can be
recognized under the rubric, as it is sometimes
called, of traditional native title which might be

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28/5/91

a phrase that might be coined to describe it, which
is an interest which is sui generis, as it is put,
in the Canadian cases, which I was going to turn
to, and which has its own unique features, the
features of which will depend on the particular

situation in any given community. So the analogy,
what is said about then in Canada, will differ from

what is said here and what is said on mainland
Australia will differ perhaps from Murray Island.
That is the first basis, what we have called

traditional native title and, in so far as it is
traditional native title, we say that that
traditional interest is recognized as an interest
in property which is a burden on the radical title

of the Crown and which is inguishable by the

Crown subject to a power -::;Jment which we have
which is a separate issue - , subject to leaving
that aside for the moment, Mhich is extinguishable
by appropriate clear and plain legislative words.

BRENNAN J: Legislative?

MR CASTAN:

Extinguishable by clear and plain legislative

words though, we would say, that if the legislation
clearly and plainly provides for extinguishment and
then there is some mechanism involving
administrative conduct, then if that is what the
legislation says then it is extinguishable by such
administrative conduct. But the foundation of the
power to extinguish, it is either a legislative
extinguishment per se by the words. of legislation
or extinguishment by administrative conduct
appropriately authorized by clear and plain words
permitting such extinguishment.
We have, in our written submissions, put the

proposition that so far as concerns the making of a traditional interest of that kind, we say such a
Crown grant made under legislation providing for
Crown grants would be valid and would prevail
against it, that is to say such a Crown grant would
amount to an extinguishment assuming that there is
legislation in place which covers the relevant

land. In other words, we do not say it prevails
against an inconsistent Crown grant but we do say
that it prevails if all there is is the scheme, if
I can call it that, that is to say the mere
existence of the Crown Lands Act does not operate
so as to extinguish and is not inconsistent with
the continued existence of the rights as claimed.
And then to come closer to this case, we say

if it be a reserve so that the land is taken out of
that portion of land which might be the subject of
a Crown grant, then all the clearer since it cannot

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be the subject of a Crown grant until degazetted
and then put back into the pool of Crown land
available for grant to third parties, then we say
that all the more so it clearly has been set aside
and is not available for settlement, as it is put
in the cases, and therefore is not to be treated as
having been extinguished or to be inconsistent with
the continued ultimate dominion of the Crown and
the ultimate radical title.

BRENNAN J:

Do you say that the burden on the radical title

was a burden from the moment of annexation?

MR CASTAN:

Yes, Your Honour.

BRENNAN J: So, your proposition is two-fold in respect of the effect of annexation: one, that it vests the radical title in the Crown and the second, that the

Crown does not take it otherwise than subject to the burden of the - - -?

MR CASTAN:

Yes, Your Honour, that is the way in which we

put it.

BRENNAN J: Both of those propositions will no doubt be

developed at some stage?

MR CASTAN: Yes. It is also put, I should perhaps add, on

alternative bases, that is to say in addition to
the basis of traditional title as we have called it
and been discussing it in the last minute or two.
We respectfully submit that in the appropriate
case, and this is one, a title can be made out
under the, what we might call the conventional
principles of land law for a title founded on what
we have termed local legal custom. That is to say,
if one can see that there is a local legal custom
operating in a particular locality which operates
and has the relevant characteristics that the
common law traditionally has always required of
being local, of being sufficiently certain, of

being as time immemorial, as it is put and so on,
that one can then say that these rights can be
founded on such a claim and, if so, are
recognizable in accordance with ordinary common law
principles and - - -

BRENNAN J: But on the footing of a lost grant?

MR CASTAN:

No, I was going to come to the lost grant.

That

is the third basis that we would put, Your Honour.
The second basis founds it on local legal custom
recognizable, per se, no different than the custom
as it used to be of gavel kind or of borough
English and the various other customs.
Interestingly, of course, the ability to devise land by will was originally a local custom; land

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not being devisable by will under prevailing English land law until appropriate statutory
provisions were introduced. But we founded on what
we call the strict common law doctrine of local
legal custom.
The third basis on which we would put it is

the presumption of a lost grant or, alternatively, the presumption of title founded on possession per se and that is fundamental notion, dealt with in
this Court in cases particularly such as Dalziel v
Minister for the Army dealing with section Sl(xxxi) of the Constitution; cases which I was going to take Your Honours to in which it is clearly held that possession founds a title and even possession

s -t of sufficient time to constitute adverse
pc ession founds a title and, in our respectful

s .ission, founds a title in these citizens of
Australia as in any other person. If persons are
in possession then they found a title based on

possession. One then is faced with questions of
whether there is any other owner or whether there
is conduct such as to indicate that there is a
better title founded in any other owner. In our
respectful submission there is not in this case.
That is the third basis on which it is put and

that includes in it presumption of a lost grant.
But it may be easier to come to these if I could
take Your Honours, dealing with the effect of
annexation, to the Calder case in Canada because a
number of these notions were dealt with there and
Your Honours would see the way in which the court comes at it.
Our fundamental argument about annexation is that annexation did not, per se, extinguish. There
is a line of cases relied on by our learned friends
and relied on in part by His Honour
Mr Justice Blackburn in the Gove case which
suggests that are, in effect, act of State cases,

cases which suggest that the onus, so to speak, is
reversed; that there is an automatic
extinguishment or abolition of pre-existing native
interests upon annexation unless there is expressed
recognition - sometimes said unless expressed
statutory recognition.
We would respectfully submit that that line of cases is not the better line and that the contrary
line of cases which suggest the reverse, that there
is no abolition of those rights unless there is
express extinguishment pursuant to clear and plain
legislation, is the better view. That is really
where the contest falls on that issue of the effect
of annexation.

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28/5/91

Can I take Your Honours to the case of Calder

v Attorney-General of British Columbia,

(1973) 34 DLR 3d 145. I should explain about this
case that this is a case in which seven of
Their Honours in the Supreme Court of Canada sat on
the hearing dealing with an action for a
declaration that the title of the Nishga Indian
tribe had not been extinguished. So, the ultimate
issue in the case was whether or not certain events
had extinguished the title.
Their Honours split three three on whether or

not the Indian title had been extinguished. One
member of the court, Mr Justice Pigeon, holding

that there was no standing. He did not decide the
issue, what we might call the substantive issue.
He simply decided the standing question.
Three members of the court held that the title

had not been extinguished because there had not
been any express or clear and plain extinguishment.
Three members of the court held that it had been
extinguished by the general pattern of lands
legislation in British Columbia, but six members,
all members of the court, held that the interest
had survived annexation and that is the first
point, perhaps, to make about the case, that
although the principal judgments differ, the
judgments of His Honour Mr Justice Spence holding
that there had been an effective extinguishment on
the one hand, and His Honour Mr Justice Hall
holding that there had not, but all of them
agreed - both of those principal judgments agreed
that the rights survived annexation and were
founded in the common law.
We would respectfully take Your Honours to the

judgment of His Honour Mr Justice Hall at page 168
of the judgment. It is described in the Dominion
Law Reports as dissenting, but again I stress, it
is one of two judgments which split three-three on

the principal issue, though ultimately the decision
was that the plaintiffs failed because they had
three against them and they had one who said there

was no standing. I should say the judgment of
His Honour Mr Justice Hall ranges somewhat more
widely than just on the issue of the question of
extinguishment.
He describes, at page 168, that the Nishga

tribe has persevered in asserting an interest in
the lands, that they were never conquered, they did
not:
enter into a treaty or deed of surrender as
many other Indian tribes did .... The Crown has
never granted the lands in issue in this

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28/5/91

action other than a few small parcels later
referred to -

then he sets out the claim. And at page 169, in the second full paragraph, he refers to a matter
which may perhaps be pertinent to Your Honours in

this case, in passing. He says:
Consideration of the issues involves the study of many historical documents and enactments received in evidence, particularly exs. 8 to

18 inclusive and exs. 25 and 35. The Court
may take judicial notice of the facts of
history whether past or contemporaneous:
Monarch Steamship, and the Court is entitled
to rely on its own historical knowledge and
researches.

Then he says:
The assessment and interpretation of the
historical documents and enactments ..... must
be approached in the light of present-day
research and knowledge disregarding ancient
concepts formulated when understanding of the
customs and culture of our original people was
rudimentary and incomplete and when they were
thought to be wholly without cohesion, laws or
culture, in effect a subhuman species. This
concept of the original inhabitants of America
led Chief Justice Marshall in his otherwise
enlightened judgment in Johnson and Graham's
Lessee v M'Intosh, which is the outstanding
judicial pronouncement on the subject of
Indian rights to say, "But the tribes of
Indians inhabiting this country were fierce

savages, whose occupation was war ... " We now
know that that assessment was ill-founded.
The Indians did in fact at times engage in
some tribal wars but war was not their
vocation and it can be said that their

preoccupation with war pales into
insignificance when compared to the religious
and dynastic wars of "civilized" Europe of the

16th and 17th centuries. speaking with the knowledge available to him
in 1823.

And then he comments on Chief Justice Davey in the
judgement of the Court of Appeal of British
Columbia who:
said of the Indians of the mainland .....
they were undoubtedly at the time of
settlement a very primitive people with few of

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28/5/91

the institutions of civilized society, and
none at all of our notions of private
property.
In so saying this in 1970, he was assessing
before.
the Indian culture of 1858 by the same
standards that the Europeans applied to the

There seems to be an implied criticism in that of
His Honour in the court below.
If I could then pass over the factual material

which is set out there at pages 170, 171 and 172. At page 173 His Honour refers to a question which
strikes a chord, perhaps, with Your Honours:
When asked to state the nature of the right
being asserted and for which a declaration is
being sought counsel for the appellants
described it as "an interest which is a burden
on the title of the Crown; an interest which
is usufructuary in nature; a tribal interest
inalienable except to the Crown and
extinguishable only by legislative enactment

of the Parliament of Canada". The exact
nature and extent of the Indian right or title
does not need to be precisely stated in this

litigation. The issue here is whether any
right or title the Indians possess as
occupants of the land from time immemorial has been extinguished. They ask for a declaration

that there has been no extinguishment. The
precise nature and value of that right or
title would, of course, be most relevant in
any litigation that might follow
extinguishment in the future because in such
an event, according to common law, the expropriation of private rights by the
Government under the prerogative necessitates

the payment of compensation: Newcastle
Breweries. Only express words to that effect in an enactment would authorize a taking
without compensation. This proposition has
been extended to Canada.

He then refers to DeKeyser's Royal Hotel and Burmah
Trading, which are the familiar cases on no taking

without compensation. Then he says:
This is not a claim to title in fee but

is in the nature of an equitable title or
interest (see Cherokee Nation), a usufructuary
right and a right to occupy the lands and to
enjoy the fruits of the soil, the forest and
of the rivers and streams which does not in

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28/5/91

any way deny the Crown's paramount title as it is recognized by the law of nations. Nor does the Nishga claim challenge the federal
Crown's right to extinguish that title. Their
position is that they possess a right of
occupation against the world except the Crown
and that the Crown has not to date lawfully
extinguished that right.

Then, further down, the next full paragraph:

The right to possession claimed is not
prescriptive in origin because a prescriptive right presupposes a prior right in some other
person·or authority. Since it is admitted
that the Nishgas have been in possession since
time immemorial, that fact negatives that
anyone ever had or claimed prior possession.

That is relevant to our possession argument that I
briefly touched on earlier, in answer to
Your Honour.
The Nishgas do not claim to be able to

sell or alienate their right to possession
except to the Crown. They claim the right to
remain in possession themselves and to enjoy
the fruits of that possession. They do not
deny the right of the Crown to dispossess them
but say the Crown has not done so. There is
no claim for compensation -

Then he goes on -

BRENNAN J: Just pausing there for a moment.

The reference

on the previous page was dispossession by
prerogative. That is before the reference to
Newcastle Breweries Ltd v The King.

MR CASTAN:

Yes.

BRENNAN J:

Now one could understand if there is a radical

title in the Crown there may be an argument that
the Crown can exercise its powers under the radical

title to dispossess by prerogative. Do you say
that is the situation here?

MR CASTAN:

No, we would not concede that the Crown has the

right to dispossess by prerogative.

BRENNAN J: Well then, what is the meaning of radical title?

MR CASTAN:

We would say that what it means is the ultimate

dominion of the Crown as the ultimate owner under
the feudal system of tenure.

BRENNAN J:

Do your clients have tenure?

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28/5/91

MR CASTAN:

We say we have tenure, that we have a presumed

tenure wherein we say that what we have is a right
which is to be treated as held under the feudal
system once the land is annexed. So that it is
assumed to be held of the Crown, notwithstanding
that we know for a fact that the Crown never took
full ownership so as to make a grant. It is at
that point one gets into the so-called fiction of

Crown occupation. Some of this is dealt with in
the Australian cases, which I will come to, the
early Australian cases, Steel and Attorney-General
v Brown and others, which I was going to turn to,
where these matters are analysed ..
At page 175 His Honour then sets out the

passage which I have just read, from Amodu Tijani.
I will not repeat that. It goes on with some
evidence over the next pages. If I could then take
Your Honours past that evidence that is set out in

the course of the judgment - cross-examination. At
page 185, after setting out various parts of the
evidence, including some of the anthropological
evidence, after the transcript reference,
His Honour then says:
Possession is of itself at common law

proof of ownership:

and refers to Cheshire and Megarry and Wade -

Unchallenged possession is admitted here.

And that there states the principle which we found
what I have called the alternative claim that I
earlier referred to,_but I will deal with that in
more detail later.
If I could then go over to page 187, after

again setting out further transcript, His Honour
says:

An interesting and apt line of questions
by Gould, J., in which he endeavoured to
relate Duff's evidence as to Nishga concepts
of ownership of real property to the
conventional common law elements of ownership
must be quoted here as they disclose that the
trial Judge's consideration of the real issue
was inhibited by a preoccupation with the
traditional indicia of ownership. In so
doing, he failed to appreciate what
Lord Haldane said in Amodu Tijani -

and that is the passage I have already read this
afternoon.

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28/5/91

The trial Judge's questions and Duff's answers
were as follows:
The Court:
Q I want to discuss with you the short
descriptive concept of your modern ownership
of land in British Columbia, and I am going to
suggest to you three characteristics
(1) specific delineation of the land, we
understand is the lot .....
(2) exclusive possession against the whole
world, including your own family .....
(3) to keep the fruits of the barter or to
leave it.

Then the first question is put again at the top of
page 188:
Specific delineation, exclusive possession,
the right of alienation, have you found in
your anthropological studies any evidence of
that concept being in the consciousness of the
Nishgas and having them executing such a concept?

The answer is:

My lord, there are three concepts.

And then it goes on. Towards the foot of page 189
His Honour deals with that in the supreme court.
He says on the very bottom line:
In enumerating the indicia of ownership, the
trial Judge overlooked that possession is of
itself proof of ownership. Prima facie,
therefore, the Nishgas are the owners of the
lands that have been in their possession from
time immemorial and, therefore the burden of
establishing that their right has been

extinguished rests squarely on the respondent. What emerges from the foregoing evidence is the following: the Nishgas in fact are and
were from time immemorial a distinctive
cultural entity with concepts of ownership
indigenous to their culture and capable of
articulation under the common law having, in
the words of Dr Duff, "developed their
cultures to higher peaks in many respects than
in any other part of the continent north of
Mexico".

Then he refers to Captain Cook. In the next
paragraph he says:

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28/5/91

While the Nishga claim has not heretofore
been litigated, there is a wealth of
jurisprudence affirming common law recognition
of aboriginal rights to possession and
enjoyment of lands of aborigines precisely
analogous to the Nishga situation.

He sets out the judgment of Mr Justice Strong in St
Catherine's Milling, and that is one of the early
statements in which it was said:
In the Commentaries of Chancellor Kent and in some decisions of the Supreme Court of the
United States we have full and clear accounts
of the policy in question.

The American, as it was in the United States and
then adopted in St Catherine's Milling.
It may be summarily stated as consisting in
the recognition by the crown of a usufructuary
title in the Indians to all unsurrendered
lands. This title, though not perhaps
susceptible of any accurate legal definition
in exact legal terms, was one which
nevertheless sufficed to protect the Indians
in the absolute use and enjoyment of their
lands, whilst at the same time they were
incapacitated from making any valid alienation
otherwise than to the crown itself, in whom
the ultimate title was, in accordance with the
English law of real property, considered as

vested. ·

And it goes on. Again at page 191 in the middle
passage at about the middle of the page there is a
passage which is italicized:
The value and importance of these authorities is not merely that they show that the same doctrine as that already propounded regarding

the title of the Indians to unsurrendered
lands prevails in the United States but, what
is of vastly greater importance, they without
exception refer its origin to a date anterior
to the revolution and recognise it as a
continuance of the principles of law or policy
as to Indian titles then established by the British government, and therefore identical
with those which have also continued to be
recognized and applied in British North
America.
And he then, at the foot of the page says:
in the United States a traditional
policy ..... relative to the Indians ..... ripened

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28/5/91

into well established rules of law ..... lands
in the possession of the Indians are, until
surrendered, treated as their rightful though
inalienable property, so far as the possession
and enjoyment are concerned; in other words,
that the dominium utile is recognized as
belonging to or reserved for the Indians,
though the dominium directum is considered to
be in the United States. Then, if this is so
as regards Indian lands in the United States,
which have been preserved to the Indians by
the constant observance of a particular rule
of policy acknowledged by the United States
courts to have been originally enforced by the
crown of Great Britain, how is it possible to
suppose that the law can, or rather could have
been, at the::.date of of conf~deration, in a
state any le-ss favourable to-:the Indians whose
lands were situated within ~the dominion of the
British crown, the original author of this
beneficent doctrine so carefully adhered to in
the United States from the days of the
colonial governments?

And then he says, therefore the US doctrine applies
in Canada, and then goes on, emphasis added:
To summarize these arguments, which

appear to me to possess great force, we find,
that at the date of confederation the Indians,
by the constant usage and practice of the
crown, were considered to poasess a certain
proprietary interest in the unsurrendered
lands which they occupied as hµnting grounds;
that this usage had either rip~ned into a rule
of the common law as applicable to the
American Colonies, or that such a rule had
been derived from the law of nations and had
in this way been imported into the Colonial
law as applied to Indian Nations; that such
property of the Indians was usufructuary only
and could not be alienated, except by

surrender to the crown as the ultimate owner
of the soil.

And towards the foot of the page he refers to the
Chief Justice Ritchie in his judgment:
I am of opinion, that all ungranted lands

in the province of Ontario belong to the crown
as part of the public domain, subject to the
Indian right of occupancy cases in which the
same has not been lawfully extinguished, and
when such right of occupancy has been lawfully
extinguished absolutely to the crown, and as a

consequence to the province of Ontario. I

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think the crown owns the soil of all the
unpatented lands -

"patented" referring, presumably, to a Crown
grant -
the Indians possessing only the right of
occupancy, and the crown possessing the legal
title subject to that occupancy, with the
absolute exclusive right to extinguish the
Indian title either by conquest or by
purchase ...

Then he continues with a reference to
St Catharine's Milling in the Privy Council, and
towards the foot of that passage from
St Catharine's Milling in the Privy Council on
page 193, the italicized portion reads:
There was a great deal of learned discussion
at the Bar with respect to the precise quality
of the Indian right, but their Lordships do
not consider it necessary to express any
opinion upon the point. It appears to them to
be sufficient for the purposes of this case
that there has been all along vested in the
Crown a substantial and paramount estate,
underlying the Indian title, which became a
plenum dominium whenever that title was
surrendered or otherwise extinguished.

And he then refers to Johnson and Graham's Lessee

v McIntosh. He says:
It is the locus classicus of the principles
governing aboriginal title.

And Mr Justice Gould, in this case, that is in

Calder, had picked up. And over on page 194, there
is a long passage from Johnson v McIntosh.
Your Honours, I will not read all of that but I

would commend it to Your Honours as being, as
His Honour Mr Justice Hall says the locus
classicus, though one may say that His Honour
Mr Justice Hall's judgment is now taken over in
modern times that role.
If I could then take Your Honours to page 195,

after having quoted from Johnson v McIntosh, he
says:
The dominant and recurring proposition

stated by Chief Justice Marshall in Johnson
v. M'Intosh is that on discovery or on
conquest the aborigines of newly-found lands
were conceded to be the rightful occupants of
the soil with a legal as well as a just claim

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28/5/91

to retain possessions of it and to use it
according to their own discretion, but their
rights to complete sovereignty as independent
nations were necessarily diminished and their
power to dispose of the soil on their own will
to whomsoever they pleased was denied by the
original fundamental principle that discovery
or conquest gave. exclusive title to those who
made it.

And that perhaps sums up, although in those
passages Chief Justice Marshall has explained the
way in which the European nations had occupied

various parts of the North American continent. He
refers then to Worcester v State of Georgia and
perhaps worth reading that portion also
Your Honours:

America, separated from Europe by wide

ocean, was inhabited by a distinct people,
divided into separate nations, independent of
each other and of the rest of the world,
having institutions of their own, and
governing themselves by their own law. It is
difficult to comprehend the proposition, that
the inhabitants of either quarter of the globe
could have rightful original claims of
dominion over the inhabitants of the other, or
over the lands they occupied; or that the
discovery of either by the other should give
the discoverer rights in the country
discovered, which annulled the pre-existing
right of its ancient possessors.
After lying concealed for a series of

ages, the enterprise of Europe, guided by
nautical science, conducted some of her

adventurous sons into this western world.
They found it in possession of a people who
had made small progress in agriculture or
manufactures, and whose general employment was

war, hunting and fishing. Did these adventurers, by sailing along
the coast, and occasionally landing on it,
acquire for the several governments to whom
they belonged, or by whom they were
commissioned, a rightful property in the soil
from the Atlantic to the Pacific; or rightful
dominion over the numerous people who occupied
it? Or has nature, or the great Creator of
all things, conferred these rights over
hunters and fishermen, on agriculturalists and
manufacturers?
But power, war, conquest, give rights,
which after possession, are conceded by the

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28/5/91

world; and which can never be controverted by
those on whom they descend. We proceed, then, to the actual state of things, having glanced
at their origin, because holding it in our
recollection might shed some light on existing
pretensions.

He then discusses the way in which -
The great maritime powers of Europe

discovered and visited different parts of the
continent at nearly the same time.

And as he puts it -
To avoid bloody conflicts, which might
terminate disastrously to all, it was
necessary for the nations of Europe to
establish some principle which all would
acknowledge, and which should decide their
respective rights as between themselves. This
principle, suggested by the actual state of
things, was, "that discovery gave title to the
government by whose subjects or by whose
authority it was made, against all other
European governments, which title might be consummated by possession."
This principle, acknowledged by all

Europeans, because it was the interest of all
to acknowledge it, gave to the nation making
the discovery, as its inevitable consequence,
the sole right of acquiring the soil and of
making settlements on it. It was an exclusive
principle which shut out the right of
competition among those who had agreed to it;
not one which could annul the previous rights
of those who had not agreed to it. It
regulated the right given by discovery among
the European discoverers; but could not

affect the rights of those already in
possession, either as aboriginal occupants, or
as occupants by virtue of a discovery made

before the memory of man. It gave the
exclusive right to purchase, but did not found
that right on a denial of the right of the
possessor to sell.

And it is on those principles, as adopted by
Mr Justice Hall, that we found our basic
proposition on the first leg of the argument - if I
can call it that - that the effect of annexation
was not to abolish pre-existing rights.
He then goes on:

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The view that the Indians had a legal as
well as a just claim to the territory they
occupied was confirmed as recently as 1946 by
the Supreme Court of the United States in the
case of United States v Alcea Band of

Tillamooks. In that case it was held that the
Indian claims legislation of 1935 did not confer any substantive rights on the Indians, that is, it did not convert a moral claim for taking their land without their consent and without compensation into a legal claim, because they already had a valid legal claim,

and there was no necessity to create one. The
statute simply removed the necessity that

previous existed for the I ~ians to obtain

the conse::·.- of the Governmen f the United
States to sue for an alleged 0ngful taking.
The judgment is based square~ on the
recognition by the Court of "original Indian
title" founded on their previous possession of
the land. It was held that "the Indians have
a cause of action for compensation arising out
of an involuntary taking of lands held by
original Indian title". Vinson, CJ, said at
pp 45-8:
The language of the 1935 Act is specific,

and its consequences are clear. By this Act
Congress neither admitted or denied liability.
The Act removes the impediments of sovereign immunity and lapse of time and provides for
judicial determination of the designated

claims. No new right or cause of action is

created. A merely moral claim is not made a

legal one ....

Those references are important in considering the American authorities, Your Honours, because the
Tillamooks' case is a case which we respectfully
submit should be regarded as of great weight in

considering the questions in this matter. In a subsequent case, the Tee-Hit-Ton Indian case, which
I will come, a different view was reached in the
United States, and that decision in the Tee-Hit-Ton
case, six or eight years later was much relied on
by our learned friends and was relied on by

His Honour Mr Justice Blackburn, and, in our respectful submission, the preferable view is the

view expressed in the earlier decision in the 1946 case of Alcea Band of Tillamooks and not view, the contrary view - and there had been of course a
shift in the constitution of the court and other
matters which we have put in a submission which
forms part of the reply document which Your Honours

have. I will not go into the detail of it now.
But, Your Honours, we rely on the Tillamooks' case

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for the reasons there expressed. Quoting from that
case and going on:
It has long been held that by virtue of

title was deemed subject to a right of occupancy in favour of Indian tribes, because of their original and previous possess. It is with the content of this right of occupancy,
discovery the title to lands occupied by
this original Indian title, that we are
concerned here.
As against any but the sovereign, original Indian title was accorded the protection of complete ownership; but it was
vulnerable to affirmative action by the
sovereign, which possessed exclusive power to
extinguish the right of occupancy at will.
Termination of the right by sovereign action
was complete and left the land free and clear
of Indian claims. Third parties could not
question the justness or fairness of the
methods used to extinguish the right of

occupancy. Nor could the Indians themselves
prevent a taking of tribal lands or forestall

a termination of their title. However, it is
now for the first time asked whether the
Indians have a cause of action for
compensation arising out of an involuntary
taking of lands held by original Indian title.
A contrary decision would ignore the

plain import of traditional methods of
extinguishing original Indian title.

And goes on to quote from Worcester v Georgia and
says:
It was the usual policy not to coerce the

surrender of lands without consent and without

compensation. The great drive to open western
lands in the 19th Century, however productive
of sharp dealing, did not wholly subvert the
settled practice of negotiated extinguishment
of original Indian title. In 1896, this Court
noted that " ... nearly every tribe and ban of
Indians within the territorial limits of the
United States was under some treaty
relations .... Some more than sovereign grace
prompted the obvious regard given to original
Indian title.

Then he refers to the treaties with Indians in
Canada.
These treaties -

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he says in the last line -
were a recognition of Indian title.

Then he quotes from Lord Sumner in Re Southern
Rhodesia:
In any case it was necessary that the argument should go the length of showing that the
rights, whatever they exactly were, belonged
to the category of rights of private property,
such that upon a conquest it is to be
presumed, in the absence of express
confiscation or of subsequent expropriatory
legislation, that the conqueror has respected
them and forborne to diminish or modify them.

And then he sets out in Re Southern Rhodesia this
gap.
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 ..... 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 -

knowledge -
of the rights known to our law and then to
transmute it into the substance of
transferable rights of property as we know
them. In the present case it would make each and every person by a fictional inheritance a
landed proprietor »richer than all his tribe.»
On the other hand, there are indigenous
peoples whose legal conceptions, though
differently developed, are hardly less precise

than our own. When once they have been
studied and understood they are no less
enforceable than rights arising under English
law.

As I said earlier this morning, Your Honours, we
reject the distinction.
Chief Justice Marshall in his judgment in

Johnson v M'Intosh referred to the English
case of Campbell v Hall. This case was an
important and decisive one which has been
regarded as authoritative throughout the
Commonwealth and the United States. It

involved ..... Grenada -

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28/5/91

and then he refers to Lord Mansfield's reasons at
pages 208-209, where he sets out certain

principles. He says in the second paragraph:
"A country conquered by the British arms

becomes a dominion of the King in the right of
his Crown; and, therefore, necessarily
subject to the Legislature, and Parliament of
Great Britain.
The 2d is, that the conquered inhabitants

once received under the King's protection,
become subjects, and are to be universally
considered in that light, not as enemies or
aliens.
The 3d, that the articles of capitulation

upon which the country is surrendered, and the
articles of peace by which it is ceded, are
sacred and inviolable according to their true
intent and meaning.
The 4th, that the law and legislative

government of every dominion, equally affects
all persons and all property within the limits
thereof; and is the rule of
decision ..... Whoever purchases, lives, or sues
there, puts himself under the law of the

place. An Englishman in Ireland, Minorca, the
Isle of Man, or the plantations, has no
privilege distinct from the natives.
The 5th, that the laws of a conquered

country continue in force, until they are
altered by the 9onqueror: the absurd
exception as to pagans, mentioned in Calvin's
case, shews the universality and antiquity of
the maxim. For that distinction could not
exist before the Christian era; and in all

probability arose from the mad enthusiasm of
the Croisades ..... The 6th, and last proposition is, that if
the King (and when I say the King, I always
mean the King without the concurrence of
Parliament,) has a power to alter the old and
to introduce new laws in a conquered country,
this legislation being subordinate, that is,
subordinate to his own authority in
Parliament, he cannot make any new change
contrary to fundamental principles: he cannot
exempt an inhabitant from that particular
dominion; as for instance, from the laws of
trade, or from the power of Parliament, or
give him privileges exclusive of his other
subjects; and so in many other instances
which might be put."

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28/5/91

And he says:
A fortiori the same principles, particularly Nos 5 and 6, must apply to lands

which become subject to British sovereignty by
discovery or by declaration.

So the principles enunciated by Lord Mansfield as the appropriate ones for conquest, His Honour
Mr Justice Hall says, by definition, must stronger apply in the case of discovery or declaration.
Then there is discussion about treaties which I
will not take Your Honours to. But, if we go over
to page 200, just before half-way down, he says:
The aboriginal Indian title does not

depend on treaty, executive order or
legislative enactment. Sutherland, J.,
delivering the opinion of the Supreme Court of
the United States in Cramer et al v United
States, dealt with the subject as follows:
"The fact that such right of occupancy

finds no recognition in any statute or other
formal governmental action is not conclusive.
The right, under the circumstances here
disclosed, flows from a settled governmental
policy."

And he goes on, and towards the foot of the
passage:
"' ..... We are of opinion that the section of
the act which we have quoted was rather a
voluntary recognition of a pre-existing right
of possession, constituting a valid claim to
its continued use, than the establishment of a
new one.'
The Court of Appeal in its judgment cited

and purported to rely on United States v

Santa Fe. This case must be considered to be
the leading modern judgment on the question of
aboriginal rights. In my view the Court of
Appeal misapplied the Santa Fe decision. This
becomes clear when the judgment of Douglas,

J., in Santa Fe is read. He said:
'Occupancy necessary to establish

aboriginal possession is a question of fact to
be determined as any other question of fact.
If it were established as a fact that the
lands in question were' -

That passage has already been read to Your Honours

in another context. They are:

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28/5/91

'occupied exclusively by the Walapais ..... then
the Walapais had "Indian title"
which ..... survived the railroad grant of
1866.'

Then, at the foot of that quoted passage:

"Nor is it true, as respondent urges,
that a tribal claim to any particular lands
must be based upon a treaty, statute, or other
formal governmental action ..... 'The fact that
such right of occupancy finds no
recognition ..... is not conclusive'.

Then he says:
It is apparent also that the Court of

Appeal -

and he is here referring to the court below in
Calder -
misapprehended the issues involved in United
States v Alcea Band of Tilla.mooks. This is
clear from the judgment of Davis, J., in Lipan

Apache Tribe et al. In that case it was
argued unsuccessfully that affirmative
recognition by Texas prior to entering the
Union was essential to any legal assertion of
Indian title.

If I can take Your Honours over to.the relevant
passage on page 202; it is about a third of the
way down the page, the paragraph commencing:
To the extent that the Commission and the appellee believe that affirmative governmental
recognition or approval is a prerequisite to
the existence of original title, we think they
err. Indian title based on aboriginal
possession does not depend on sovereign

recognition or affirmative acceptance for its

survival. Once established in fact, it
endures until extinguished or abandoned ..... It
is "entitled to the respect of all courts
until it should be legitimately extinguished".

The beginning of the next paragraph:
The correct inquiry is, not whether the
Republic of Texas accorded or granted the
Indians any rights, but whether that sovereign extinguished their pre-existing occupancy
rights.

That is the position which we respectfully would

adopt. Then he refers to the Canadian treaties at

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28/5/91

the foot of page 202 and over on to page 203, and
then, where His Honour's words resume, about a
third of the way down:
If there was no Indian title extant in British
Columbia in 1899, why was the treaty
negotiated and ratified?

This in support of the contention that the rights
clearly survived the change of sovereignty.
He then refers at some length to the

proclamation of 1763 which was applicable in North
America, and that, of course, is irrelevant for

present purposes the question whether the
rights were founr 0 d on the proc

. ,tion. If I can

pass over those ssages and go -er to page 208,
His Honour poses _he question ti finally which is
the ultimate question for decision in that case, at
the top of page 208:
This important question remains: were the
rights either at common law or under the
Proclamation extinguished? Tysoe, J. said in
this regard ..... of his reasons: "It is true,
as the appellants have submitted, that nowhere
can one find express words extinguishing
Indian title . .. "
The parties here agree that if extinguishment
was accomplished, it must have occurred

between 1858 ..... and 1871. respondent
relies on what was done by G·.:JV·'?rnor Douglas
and ..... Seymour, who became ~'.)7ernor in 1864.

He says:
Once aboriginal title is established, it is
presumed to continue until the contrary is
proven. This was stated to be the law by

Viscount Haldane in Amodu Tijani v Secretary,
Southern Nigeria at pp. 409-10:
Their Lordships think that the learned Chief
Justice in the judgment thus summarised, which
virtually excludes the legal reality of the
community usufruct, has failed to recognize the
real character of the title to land occupied by
a native community. That title, as they have
pointed out, is prima facie based, not on such
individual ownership as English law has made
familiar, but on a communal usufructuary
occupation, which may be so complete as to
reduce any radical right in the Sovereign to
one which only extends to comparatively limited
rights of administrative interference. In
their opinion there is no evidence that this

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28/5/91

kind of usufructuary title of the community was
disturbed in law, either when the Benen Kings
conquered Lagos or when the cession to the
British Crown took place in 1861. The general
words used in the treaty of cession are not in
themselves to be construed as extinguishing

subject rights. The original native right was
a communal right, and it must be presumed to
have continued to exist unless the contrary is
established by the context or circumstances.

Passing on to the next paragraph:
The appellants rely on the presumption

that the British Crown intended to respect
native rights; therefore, when the Nishga
people came under British sovereignty (and
that is subject to what I said about
sovereignty over part of the lands not being
determined until 1903) they were entitled to
assert, as a legal right, their Indian title.
It being a legal right, it could not
thereafter be extinguished except by surrender
to the Crown or by competent legislative
authority, and then only by specific
legislation. There was no surrender by the
Nishgas and neither the Colony of British
Columbia nor the Province, after
Confederation, enacted legislation
specifically purporting to extinguish the
Indian title ..... The following quotation from
Lord Denning's judgment in Oyekan et al v

Adele states the position clearly. He said:
In order to ascertain what rights pass to

the Crown or are retained by the inhabitants,
the courts of law look, not to the treaty, but

to the conduct of the British Crown. It has
been laid down by their Lordships' Board that

"Any inhabitant of the territory can make
good in the municipal courts established by
the new sovereign only such rights as that
sovereign has, through his officers,
recognised. Such rights as he had under the
rule of his predecessors avail him nothing."

And he then refers to some of the Act of State

cases, including the Joravarsingji case. He goes
on:
In inquiring, however, what rights are recognised, there is one guiding principle.

It is this: The courts will assume that the
British Crown intends that the rights of property of the inhabitants are to be fully

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28/5/91

respected. Whilst, therefore, the British
Crown as Sovereign, can make laws enabling it
compulsorily to acquire land for public
purposes, it will see that proper compensation
is awarded to every one of the inhabitants who
has by native law an interest in it; and the
courts will declare the inhabitants entitled
to compensation according to their interests,
even though those interests are of a kind
unknown to English law.

He then refers to The Queen v Symonds which is a
New Zealand case in 1847 approved in Tamaki v
Baker, and he sets out a passage from Mr Justice
Chapman in Symonds:
The practice of extinguishing Native

titles by fair purchases is certainly more
than two centuries old. It has long been
adopted by the Government in our American
colonies, and by that of the United States.
It is now part of the law of the land, and
although the Courts of the United
States ..... will not allow a grant to be
impeached ..... they would certainly not
hesitate to do so in a suit by one of the
Native Indians.

And then passing down over the reference to
Cherokee Nation v State of Georgia, in the last
sentence on the page:
Whatever may be the opinion of jurists as to
the strength or weakness of the Native title,
whatsoever may have been the past vague
notions of the natives of this country,
whatever may be their present clearer and
still growing conception of their own dominion
over land, it cannot be too solemnly asserted
that it is entitled to be respected, that it
cannot be extinguished (at least in times of

peace) otherwise than by the free consent of the Native occupiers. But for their
protection and for the sake of humanity, the
Government is bound to maintain, and the

Courts to assert, the Queen's exclusive right to extinguish it. It follows from what has been said, that in solemnly guaranteeing the

Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of
Waitangi, confirmed by the Charter of the

Colony, does not assert either in doctrine or in practice anything new and unsettled.

He refers to the statement of Justice Davis in
Lipan Apache:

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28/5/91

... In the absence of a "clear and plain
indication" in the public records that the
sovereign "intended to extinguish all of the
(claimants') rights" in their property, Indian
title continues ...

And His Honour Mr Justice Hall goes on:
It would, accordingly, appear to be

beyond question that the onus of proving that
the Sovereign intended to extinguish the
Indian title lies on the respondent and that

intention must be "clear and plain''. There is

no such proof in the case at bar; no
legislation to that effect.
The Court of Appeal also erred in holding

that there "is no Indian Title capable of
judicial interpretation ..... unless it has
previously been recognized either by the
Legislature or the Executive Branch of
Government" -

and that, as we understand it, is the argument now
put by our opponents.
Relying on Cook et al. v Sprigg and other

what is called the Act of State Doctrine.

cases, the Court of Appeal erroneously applied of an acquired territory for invasion of their
rights which may occur during the change of
sovereignty. English Courts have held that a
municipal Court has no jurisdiction to review
the manner in which the Sovereign acquires new

territory. The Act of State is the activity
of the Sovereign by which he acquires the
property. Professor O'Connell in his work,
International Law, says:

This doctrine, 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. In fact English courts
have gone out of their way to repudiate the
construction, and it is clear that the Act of
State doctrine is no more than a procedural
bar to municipal law action, and as such is
irrelevant to the question whether in
international law change of sovereignty
affects acquired rights.
And Mr Justice Hall says:

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28/5/91

The Act of State doctrine has no application
in the present appeal for the following
reasons: (a) It has never been invoked in claims dependent on aboriginal title. An examination of its rationale indicates that it
would be quite inappropriate for the Courts to
extend the doctrine to such cases; (b) It is based on the premise that an Act of State is
an exercise of the Sovereign power which a
municipal Court has no power to review -

and he refers to Sala.man and Cook v Sprigg.

When the Sovereign, in dealings with another
Sovereign (by treaty of cession or conquest)
acquires land, then a municipal Court is
without jurisdiction to the extent that any
claimant asserts a proprietary right
inconsistent with acquisition of property by
the Sovereign - i.e., acquisition by Act of
State. The ratio for the cases relied upon by
the Court of Appeal was that a municipal Court
could not review the Act of State if in so
doing the Court would be enforcing a treaty
between two Sovereign States: see Cook v
Sprigg and Joravarsingji v Secretary of State
and Sala.man. In all the cases referred to by
the Court of Appeal the origin of the claim
being asserted was a grant to the claimant
from the previous Sovereign. In each case the
claimants were asking the C ,rts to give
judicial recognition to the ~laim. In the
present case the appellants re not claiming
that the origin of their ti-~e was a grant
from any previous Sovereign, nor are they
asking this Court to enforce a treaty of
cession between any previous Sovereign and the

British Crown. The appellants are not
challenging an Act of State - they are asking
this Court to recognize that settlement of the
north Pacific coast did not extinguish the

aboriginal title of the Nishga people - a
title which has its origin in antiquity - not
in a grant from a previous Sovereign. In
applying the Act of State doctrine, the Court of Appeal completely ignored the rationale of the doctrine which is no more than a
recognition of the Sovereign prerogative to
acquire territory in a way that cannot be
later challenged in a municipal Court.
Once it is apparent that the Act of State

doctrine has no application, the whole
argument of the respondent that there must be
some form of "recognition" of aboriginal
rights falls to the ground.

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28/5/91

We would respectfully adopt all of that. Then
there is a reference to reliance on what was done
by Douglas and Seymour, and the detail of that I do
not think I need trouble Your Honours with.
If I could then go over to page 214. After

setting out all the despatches and the statutes and
instructions to the governors, His Honour then
says:
There is nothing in the record indicating that the Nishga lands have even yet been surveyed

perhaps, the land given for the townsite of

or made ready for immediate survey excepting, not surveyed until after the boundary settlement. Consequently, I cannot see how
anything can be derived from the fact that
surveys were made on Vancouver Island -

and he then talks about specific declarations by and one of them is significant:
Proclamation dated February 14, 1859,
contained the following paragraph:
All the lands in British Columbia, and
all the Mines and Minerals therein,
belong to the Crown in fee.

And the ordinance of 1865:
All the lands in British Columbia, and all the mines and minerals therein, not otherwise
lawfully appropriated belong to the Crown in
fee.

And an ordinance in 1866 provided:

territories neighbouring thereto" could not "The aborigines of this colony or the pre-empt or hold land in fee simple without
obtaining special permission of the Governor
in writing.

The appellants do not dispute the Province's claim that it holds title to the lands in fee.
They acknowledge that the fee is in the Crown.
The enactments just referred to merely state
what was the actual situation under the common
law and add nothing new or additional to the
Crown's paramount title and they are of no
assistance in this regard to the respondent.
In relying so heavily on these enactments, the
respondent is fighting an issue that does not
arise in the case and is resisting a claim

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28/5/91

never made ..... As to the Ordinance of 1866,
the limitation on the right of an aborigine to
hold land in fee simple has no bearing
whatsoever on the right of the aborigine to
remain in possession of the land which has been in the possession of his people since time immemorial.

And then he refers to a letter to the Colonial
Secretary of 1861 which sets out in paragraph 2:
As the native Indian population of

Vancouver Island have distinct ideas of
property in land, and mutually recognize their several exclusive possessory rights in certain districts, they would not fail to regard the
occupation of such portions of the Colony by white settlers, unless with the full consent
of the proprietary tribes, as national wrongs;
and the sense of injury might produce a
feeling of irritation against the settlers,
and perhaps disaffection to the Government
that would endanger the peace of the country.
Knowing their feelings on that subject, I made it a practice up to the year 1859, to
purchase the native rights in the land, in
every case -

and if I could just break there to take
Your Honours to volume 1 of the plaintiffs'
submissions, at page 24, a statement in relation to
Murray Island that is very similar.
This is from our submissions which set out the

recorded history and at page 23 Your Honours will
see a reference to Hugh Milman, Acting Government
Resident on Thursday Island reporting to Chief
Secretary, Brisbane:
"(b) Murray Island was given up entirely to

the natives and the London Missionary Society.
It was exceptionally rich in coconut trees" -

and refers to the inhabitants -
He imposed a new code of penalties - over on
page 24 Your Honours will see the fourth of the
items on page 24:
"If anyone has any dispute with his neighbour or any other person about the boundary of his
land such dispute shall be settled finally by
the Mamoose and such other natives of Murray
Island as he (the Mamoose) shall call into
assist him."

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28/5/91

And then goes on, Hugh Milman reported:
"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."

And there is a striking similarity between that
passage coming from Milman as Acting Government
Resident reporting in 1886 and the letter of
Governor Douglas in 1861, referred to at page 215,
referring to the native population of Vancouver

Island.
If I can then take Your Honours over to

page 217, half-way down the page, His Honour, after
referring to the instructions then says this:
Having reviewed the evidence and cases in

considerable detail and having decided that if
the Nishgas ever had any right or title that
it had been extinguished, Tysoe, JA, was
inexorably driven to the conclusion which he
stated as follows:
"As a result of these pieces of

legislation the Indians of the Colony of
British Columbia became in law trespassers on
and liable to actions of ejectment from lands
in the Colony other than those set aside as

reserves for the use of Indians."
Any reasoning that would lead to such a
conclusion must necessarily be fallacious.
The idea is self-destructive. If trespassers,
the Indians are liable to prosecution as such,
a proposition which reason itself repudiates.

And we would respectfully refer Your Honour to the
fact that in the present case there was a period of three years, at least, prior to Murray Island being
declared a reserve by Queensland during which if
this be the position so the Murray Islanders
instantly, upon annexation taking place in 1879,
became trespassers on the same doctrine.

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28/5/91

There is then, at the foot of page 217,

Your Honours, a commentary by His Honour

Mr Justice Hall on the position in Australia. He
says:
Following the hearing, the Court's

attention was drawn to a recent Australian
decision in which judgment was handed down on
April 27, 1971, but the report of the judgment
was not available until after the appeal was
argued. The case is Milirrpum v Nabalco Pty
Ltd. It is a judgment at trial by
Blackburn, J, and involved a consideration of
the rights of aborigines and whether the
common law recognized a doctrine of "communal
native title". The direct issue was the
interpretation to be given to the phrase
"interest in the land" contained ins 5(1) of the Lands Acquisition Act, 1955-1966 relating

to the acquisition of land on just terms. The
issue was to this degree different from the

issue here. It dealt with the validity of a
grant made under the Lands Acquisition Act.
Blackburn, J, after an extensive review

of the facts and historical records involving
some 50 pages, held as follows:
"This question of fact has been for me by far
the most difficult of all the difficult

questions of fact in the case. I can, in the
last resort, do no more than express that
degree of conviction which all the evidence
has left upon my mind, and it is this: that I
am not persuaded that the plaintiffs'
contention is more probably correct than
incorrect. In other words, I am not
satisfied, on the balance of probabilities,
that the plaintiffs' predecessors had in 1788
the same links to the same areas of land as
those which the plaintiffs now claim."

That finding necessarily disposed of the claim

being made. However, the learned Justice
proceeded with a very comprehensive review of
much of the case law regarding the rights of
aborigines and the questions of the
recognition and extinguishment of aboriginal
title. It is obvious that all of the
observations contained in his judgment
following the finding of fact above set out
were obiter dicta. In his review he dealt
with the trial and appeal judgments in this
case and said:

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28/5/91

"I consider, with respect, that Calder's case,
though it is not binding on this Court, is
weighty authority for these propositions:
1. In a settled colony there is no principle
of communal native title except such as can be
shown by prerogative or legislative act, or a
course of dealing.
2. In a settled colony a legislative and
executive policy of treating the land of the
colony as open to grant by the Crown, together
with the establishment of native reserves,
operates as an extinguishment of aboriginal
title, if that ever existed."
It will be seen that he fell into the same
errors as did Gould, J., and the Court of

Appeal. The essence of his concurrence with
the Court of Appeal judgment lies in his
acceptance of the proposition that after
conquest or discovery the native peoples have
no rights at all except those subsequently
granted or recognized by the conqueror or
discoverer. That proposition is wholly wrong
as the mass of authorities previously cited,
including Johnson v. M'Intosh and Campbell
v. Hall, establishes.

And His Honour then goes on to deal with the
standing issue which need not trouble us.
Your Honours will have observed that

His Honour Mr Justice Hall's judgment covers a wide
range of issues. It is true that the specific
issue raised and which was called on for decision
was the question of extinguishment and whether
those various proclamations, whether the creation
of a Crown Lands Act scheme, so to speak, amounted
to an extinguishment and His Honour said they did

not, they did not amount to a clear and plain
expression, but the fundamental basis of
His Honour's decision, and the fundamental matter
to which he draws attention is that those rights

survive until extinguished. The question is merely
one of, "Has there been an extinguishment or what
would amount to sufficient to extinguish?"
His Honour Mr Justice Judson, whose judgment is
considerably shorter but which reflects the
judgment of the other three of the six judges who
considered this matter, proceeded on the same
basis, that is to say, he proceeded on the basis
that the Indian title existed at common law, that
it continued after annexation and that the question

to be asked was one of extinguishment. He,
however, came to the view that the existence of the

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28/5/91

pattern of lands legislation, British Columbia in
that case, did amount to sufficient intent to
extinguish. He also referred to the American
authorities and also took the view that the
proclamation of 1763 did not bear upon the matter
and, perhaps, just one passage from his judgment at
page 156:
Although I think that it is clear that

Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the
fact is that when the settlers came, the
Indians were there, organized in societies and
occupying the land as their forefathers had
done for centuries. This is what Indian title means and it does not help one in the solution
of this problem to call it a "personal or

usufructuary right". What they are asserting
in this action is that they had a right to
continue to live on their lands as their
forefathers had lived and that this right has
never been lawfully extinguished. There can
be no question that this right was "dependent
on the goodwill of the Sovereign".

And then went on to consider whether the
legislation amounted to and the proclamations were
significant enough to amount to an extinguish.ment.
The other matter that I should draw Your Honours
attention to is that at page 165, His Honour
Mr Justice Judson adopted what I have called the
alternative line of American authority on the
question of whether the Indian title was such as to
require compensation; in effect, whether it was an
interest in property. At page 165, His Honour
refers - perhaps I should take Your Honours to the
bottom of page 164. He reviews the Tillamooks case
which is the American case that Mr Justice Hall had
referred to as holding that there was a compensable
interest, and at the foot of the page he says:

had been accepted and paid for in the United This was the first time that such a claim
States. There had been previous cases where
lands which had been reserved for Indians
pursuant to treaty had been taken by the
United States without the consent of the
Indians.

And then, at page 165, he says:
In view of the subsequent developments in

the Tillamooks and Tee-Hit-Ton cases, the basis of the award for compensation is of

great interest. The Shoshones were awarded
not only the value of their property rights at
the time of taking, but also such additional

Mabo

100

28/5/91

amount as might be necessary to award just
compensation, "the increment to be measured
either by interest on the value or by such

other standard ....

And he refers to Klamath case, he says:
The significance of the Tillamooks case is that the Court held that the principle of
awarding compensation for the taking of Indian Reserves applied equally to claims arising out

of original Indian title. The ratio of the
majority appears in the following
paragraph .....
Nor do other cases in this Court lend

substance to the dichotomy of "recognized" and
"unrecognized" Indian title ..... Many cases
recite the paramount power of Congress to
extinguish the Indian right of occupancy by
methods the justice of which "is not open to
inquiry in the courts."

He refers to Sante Fe -
Lacking a jurisdictional act permitting
judicial inquiry, such language cannot be
questioned where Indians are seeking payment
for appropriated lands; but here in the 1935
statute Congress has authorized decision by
the courts ..... some cases speak of the
unlimited power of Congress to deal with those
Indian lands which are held by what petitioner
would call "recognized" title; yet it cannot
be doubted that, given the consent of the
United States to be sued, recovery may be had
for an involuntary, uncompensated taking of
"recognized" title. We think the same rule
applicable to a taking of original Indian

title. "Whether this tract ... was properly
called a reservation ... or unceded Indian

country, ... is a matter of little moment ... the
Indians' right of occupancy has always been held to be sacred; something not to be taken
from him except by his consent, and then upon
such consideration.
Now, His Honour, then goes to the foot of

page 166, having recited that, and picks up what I
will call the alternative line of cases to the

Tillamooks. He says at the last line of the page:
The next case is Tee-Hit-Ton Indians v United States. The United States had taken certain timber from Alaskan lands which the
Indians said belong to them. They asked for
compensation. In this case compensation

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claimed did not arise from any statutory

direction to pay. The petition was founded on
the Fifth Amendment and the aboriginal claim
against the lands upon which the timber stood.
The suit was one which could be brought as a
matter of procedure under a jurisdictional Act
of 1946 permitting suits for Indian
claims ..... The Court held that the recovery in
the Tillamooks cases was based upon a
statutory direction to pay for the aboriginal
title in the special jurisdictional Act.

And he stresses:
Again, I say this was, in effect, an adoption
of the opinion of Mr Justice Black ..... that
the basis of recovery was statutory.

He then refers to the portion of the Fifth
Amendment:
"nor shall private property be taken for
public use, without just compensation."

And he says:
The finding of the Court in the second not constitute private property compensable
under the Amendment.
This position is spelled out in the

Tee-Hit-Ton case. In the opinion of the
Court, in discussing the nature of aboriginal
Indian title, i.t is said:
This is not a property right but amounts to a right of occupancy which the sovereign grants
and protects against intrusion by third
parties but which right of occupancy may be

terminated and such lands fully disposed of by

the sovereign itself without any legally enforceable obligation to compensate the Indians.

In my opinion, in the present case, the sovereign authority elected to exercise
complete dominion over the lands in question,
advers to any right of occupancy which the
Nishgc rribe might have had, when, by
legis cion, it opened up such lands for
settlement, subject to the reserves of land
set aside for Indian occupation.

Now, Your Honours will see that His Honour has
picked up and adopted the Tee-Hit-Ton view in
America, as distinct from the approach of

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Mr Justice Hall, who has adopted for Canada, what I
will call the first Tillamooks view, and there is
some suggestion that the first Tillamooks case was
based on a statutory direction to pay, but an
examination of the actual case itself makes it
clear, as we have already pointed out, that in that
first Tillamooks case all that the Act did was to
create a jurisdiction, it created no new rights and
the court there said that the rights were - - -

McHUGH J:

Mr Castan, do any of the cases indicate what is

the basis of this grant on the Tee-Hit-Ton basis?
Is it fiction, or - - -

MR CASTAN:	The basis of the - - -
McHUGH J:	Of the grant of occupancy to the aboriginal

occupant?

MR CASTAN:

No.

They are not talking about a grant of

occupancy, with respect, Your Honour. What they

are referring to is a right of occupancy. It is
assumed that the right exists.

McHUGH J: Well now, I am just referring to the passage

at 167 - - -

MR CASTAN:

The right which the sovereign grants and

protects?

McHUGH J: Yes. What is the nature of the grant? Is it a

fiction, or where does it - where are the
cases - - -?

MR CASTAN:

I can only assume that it is a fiction or a

presumption in Tee-Hit-Ton, because in saying that
in Tee-Hit-Ton Their Honours were running contrary
to the thrust of everything that was said from

Johnson v McIntosh on in the American cases. In
Tee-Hit-Ton itself, the majority judgment purports
to rely - it actually sets out passages from

Johnson v McIntosh, but then goes on to use
language, such as, "the grant", and says of course,
that it is to be protected in the way set out, but

I cannot offer any assistance, Your Honour. The
only assistance - one can, reading the Tee-Hit-Ton
decision carefully - and I do not want to go into
the detail of it now; it needs very careful
analysis - and we have submitted a written
memorandum on it which forms part of the reply
document that has been submitted to Your Honours,
and it may be more pertinent as a matter for
Your Honours to consider in due course.
Our submission about Tee-Hit-Ton is that when

you examine it very carefully, what had occurred
was a very great concern about the fact that a

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large area of land might become the subject of
compensation, thereby giving rise to a very
substantial payment, quantified in one of the
footnotes as billions of dollars, and that
therefore to run with the first Tillamooks decision
of 1946, which treated these as compensable, would
be to place a very substantial financial burden
upon the United States, and that is expressly said
in the footnote as a matter of concern, though it obviously does not bear on the principles and the text of the judgment purports to proceed in
accordance with principle. But in our respectful
submission, the better view is that which was
expressed in the 1946 decision and we would
respectfully commend it to Your Honour and submit
that it should be followed as it was by His Honour
Mr Justice Hall in 1973 in Canada.
Your Honours, the Calder case is, one might perhaps term it, the foundation of the subsequent
development of these rights in Canada and we would
respectfully submit that it establishes and lays
down principles which are highly relevant and
applicable to the situation here.
There was some discussion and comment on the

meaning and effect of Calder and how it was decided
in the case of Guerin v The Queen in Canada, (1984)

13 DLR 4d 321. The question that was raised there
actually related to an alleged breach of trust
arising from the leasing to a golf club of part of
an Indian reserve in Vancouver. The court dealt
with the concept of fiduciary relationship and I
will come back to this case on that topic. But,
commencing at page 334 of the report, the court
dealt with fiduciary relationship. Then, at page

335 under the heading of "(a) The existence of
Indian title", the court commented on Calder and
there is some assistance to be gained from that.
This was a judgment of Mr Justice Dickson which was
the judgment of the majority on the ultimate

decision on fiduciary and trust interests:

In Calder et al, this court recognized
aboriginal title as a legal right derived from
the Indians' historic occupation and
possession of their tribal lands. With Judson
and Hall JJ. writing the principal judgments,
the court split three-three on the major issue
of whether the Nishga Indians' aboriginal
title to their ancient tribal territory had
been extinguished by general land enactments

in British Columbia. The court also split on
the issue of whether the Royal Proclamation of
1763 was applicable to Indian lands in that
province. Judson and Hall JJ. were in
agreement, however, that aboriginal title

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existed in Canada (at least where it has not been extinguished by appropriate legislative
action) independently of the Royal
Proclamation of 1763. Judson J. stated
expressly that the Proclamation was not the
"exclusive" source of Indian title. Hall J.
said that "aboriginal Indian title does not
depend on treaty, executive order or
legislative enactment".

Passing over the Royal Proclamation, His Honour
says:
In recognizing that the Proclamation is not
the so1e source of Indian title the Calder
decision went beyond the judgment of the Privy
Council in St. Catherine's Milling. In that
case Lord Watson acknowledged the existence of aboriginal title but said it had its origin in the Royal Proclamation. In this respect
Calder is consistent with the position of
Chief Justice Marshall in the leading American
cases of Johnson v M'Intosh and Worcester v
State of Georgia, cited by Judson and Hall JJ.
in their respective judgments.
In Johnson v M'Intosh Marshall C.J.,

although he acknowledged the Royal
Proclamation of 1763 as one basis for
recognition of Indian title, was none the less
of opinion that the rights of Indians in the
lands they traditionally occupied prior to
European colonization both predated and
survived the claims to sovereignty made by
various European nations in the territories of

the North American continent. The principle
of discovery which justified these claims gave the ultimate title in the land in a particular area to the nation which had discovered and
claimed it. In that respect at least the
Indians' rights in the land were obviously

diminished; but their rights of occupancy and possession remained unaffected. Marshall C.J.
explained this principle as follows, at
pp. 573-4:
"The exclusion of all other Europeans,

necessarily gave to the nation making the
discovery the sole right of acquiring the soil
from the natives, and establishing settlements
upon it .... It was a right which all
asserted for themselves, and to the assertion
of which, by others, all assented.
Those relations which were to exist

between the discoverer and the natives, were

to be regulated by themselves. The rights

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thus acquired being exclusive, no other power
could interpose between them.
In the establishment of these relations,

the rights of the original inhabitants were,
in no instance, entirely disregarded; but

were necessarily, to a considerable extent,
impaired. They were admitted to be the
rightful occupants of the soil, with a legal
as well as just claim to retain possession of
it, and to use it according to their own
discretion; but their rights to complete
sovereignty, as independent nations, were
necessarily diminished, and their power to
dispose of the soil at their own will, to
whomsoever they pleased, was denied by the
original fundamental principle, that discovery
gave exclusive title to those who made it.
The principle that a change in

sovereignty over a particular territory does
not in general affect the presumptive title of
the inhabitants was approved by the Privy
Council in Amodu Tijani. That principle supports the assumption implicit in Calder
that Indian title is an independent legal
right which, although recognized by the Royal
Proclamation of 1763, none the less predates
it. For this reason Kinloch v Secretary of
State for India, supra; Tito v Waddell, and the other "political trust" decisions are inapplicable to the present case.

He is here concerned with the question of trust.
The "political trust" cases concerned
essentially the distribution of public funds

or other property held by the government. In
each case the party claiming to be beneficiary
under a trust depended entirely on statute,
ordinance or treaty as the basis for its claim

to an interest in the funds in question. The
situation of the Indians is entirely
different. Their interest in their lands is a
pre-existing legal right not created by Royal
Proclamation, by s.18(1) of the Indian Act, or
by any other executive order or legislative
provision.
It does not matter, in my opinion, that

the present case is concerned with the
interest of an Indian band in a reserve rather
than with unrecognized aboriginal title in
traditional tribal lands. the Indian interest
in the land is the same in both cases.

Then he goes on:

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The nature of Indian title.
In the St Catherine's Milling case, the Privy Council held that the Indians had a "personal
and usufructuary right" in the lands which
they had traditionally occupied. Lord Watson
said that "there has been all along vested in
the Crown a substantial and paramount estate,
underlying the Indian title, which became a
plenum dominium whenever the title was

surrendered or otherwise extinguished". He
reiterated this idea, stating that the Crown
"has all along had a present.proprietary
estate in the land, upon which the Indian
title was a mere burden". This view of
aboriginal title was affirmed by the Privy Council in the Star Chrome case. In Amodu Tijani, Viscount Haldane explained the concept
of a usufructuary right as "a mere
qualification of or burden on the radical or
final title of the Sovereign". He described
the title of the Sovereign as a pure legal
estate, but one which could be qualified by a
right of "beneficial user" that did not
necessarily take the form of an estate in
land. Indian title in Canada was said to be
one illustration "of the necessity for getting
rid of the assumption that the ownership of
land naturally breaks itself up into estates,
conceived as creatures of inherent legal
principle". Chief Justice Marshall took a
similar view in Johnson v M'Intosh, saying,
"All our institutions recognize the absolute
title of the Crown, subject only to the Indian
right of occupancy".

At page 339 he then tries to reconcile these
various concepts about what is the nature of the

title. He says in the first full paragraph:

It appears to me that there is no real conflict between the cases which characterize

Indian title as a beneficial interest of some
sort, and those which characterize it a

personal, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest
in land the courts have almost inevitably
found themselves applying a somewhat
inappropriate terminology drawn from general
property law. There is a core of truth in the
way that each of the two lines of authority
has described native title, but an appearance
of conflict has none the less arisen because
in neither case is the categorization quite
accurate.

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Indians have a legal right to occupy and
possess certain lands, the ultimate title to
which is in the Crown. While their interest
does not, strictly speaking, amount to
beneficial ownership, neither is its nature
completely exhausted by the concept of a
personal right. It is true that the sui
generis interest which the Indians have in the
land is personal in the sense that it cannot
be transferred to a grantee, but it is also
true, as will presently appear, that the
interest gives rise upon surrender to a
distinctive fiduciary obligation on the part
of the Crown to deal with the land for the
benefit of the surrendering Indians. These
two aspects of Indian title go together, since
the Crown's original purpose in declaring the Indians' interest to be inalienable otherwise than to the Crown was to facilitate the
Crown's ability to represent the Indians in
dealings with third parties. The nature of
the Indians' interest is therefore best
characterized by its general inalienability,
coupled with the fact that the Crown is under
an obligation to deal with the land on the
Indians' behalf when the interest is

surrendered. Any description of Indian title
which goes beyond these two features is both
unnecessary and potentially misleading.
And over again at 341, some short passages,

after discussing fiduciary obligation, he says, at
the top of the page:
I make no comment upon whether this
description is broad enough to embrace all
fiduciary obligations. I do agree, however,
that where by statute, agreement, or perhaps
by unilateral undertaking, one party has an
obligation to act for the benefit of another,
and that obligation carries with it a

discretionary power, the party thus empowered
becomes a fiduciary. Equity will then
supervise the relationship by holding him to
the fiduciary's strict standard of conduct.

Then he says, in the next paragraph:
The categories of fiduciary, like those of negligence, should not be considered closed -

and then discusses the political trust cases. He
says:
It should be noted that fiduciary duties
generally arise only with regard to
obligations originating in a private law

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context. Public law duties, the performance
of which requires the exercise of discretion,
do not typically give rise to a fiduciary
relationship. As the "political trust" cases
indicate, the Crown is not normally viewed as
a fiduciary in the exercise of its legislative

or administrative function. The mere fact,
however, that it is the Crown which is
obligated to act on the Indians' behalf does
not of itself remove the Crown's obligation
from the scope of the fiduciary principle. As
was pointed out earlier, the Indians' interest
in land is an independent legal interest. It
is not a creation of either the legislative or executive branches of government. The Crown's
obligation to the Indians with respect to that
interest is therefore not a public law duty.
While it is not a private law duty in the
strict sense either, it is none the less in
the nature of a private law duty. Therefore,
in this sui generis relationship, it is not
improper to regard the Crown as a fiduciary.
Now that, Your Honours, is an attempt by the

Supreme Court to endeavour to reconcile the various
notions, and of course there are a series of these
notions that have come out of these cases as to
what the character is, and ultimately what
Their Honours are saying in the Supreme Court of
Canada is that it is sui generis. It is unique.
And in the endeavour to characterize it by
reference to what we might call conventional legal
categories, inevitably difficulties arise, and so
His Honour Mr Justice Dickson in Guerin says,
"Well, the better approach is to treat it as sui
generis and then to see what the appropriate remedy
or relief is that is relevant for the purpose of
the particular case".
There is some discussion in the case of

Sparrow in the Canadian Supreme Court, which is the
last of the Canadian cases that I was going to take

Your Honours to, which tends - - -

McHUGH J:	Do any of these cases deal with the right of disposition? They seem to deal with the right of
occupancy.
MR CASTAN:	Yes, and the answer, Your Honour, is no, because

the approach that is taken is that what the Indians
have in those sorts of situations is a right to
dispose only to the Crown because the Crown has
taken what is called the right of pre-emption, and
also because what they are dealing with in those
cases are what seem to be in each case a communal
kind of interest of a band or a group of Indians.
More analogous, perhaps, to some of .those which are

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discussed in the English cases coming out of
Africa, where they are talking about communal

usufructuary rights. And so they have - - -

MASON CJ: But they are all cases which involve rights of

occupation and rights of use, are they not?

MR CASTAN:

They have involved rights of occupation and

rights of use, but in responding to the question of
alienation, the question has not been dealt with in
those terms because the legal principle laid down
is that they cannot alienate. They cannot alienate
other than to the Crown - perhaps I should qualify
it in that sense - because there is this doctrine
of pre-emption that has been developed, originally,
it appears, from the United States cases, that it
is the government - or originally from the British
Crown in America, in the colonies - that it is the
government which has the ability to acquire and
that no acquisition will be permitted, and there is
perhaps some - - -

MASON CJ:

Sometimes there is more to it than that, is there

not, because underlying some of the cases there
appears to be the notion that the rights of
occupation and rights to use are not, in essence,
proprietary rights?

MR CASTAN: Certainly, Your Honour, and that is what perhaps

His Honour Mr Justice Dickson was seeking to reconcile when he identified this dichotomy between
the personal right and the larger right.

MASON CJ: Yes.

MR CASTAN:

The question of whether they should -·e

characterized as proprietaries is at the heart of
that debate that I referred to in passing in the
American authorities between the 1946 Tillamooks case and the 1954 Tee-Hit-Ton case, and it does lie at the heart and there have been different views

expressed.
It is clear that there has not been a final resolution of that and nothing after Guerin in
Canada seems to have finally reconciled that
question beyond the kind of reconciliation that one
finds in the passage I just read from His Honour
Mr Justice Dickson. So, one does not find the
wrapped up or easy answer from any of these

authorities. What does seem clear, as a principle,
is the principle that the interests survive
annexation; what does seem clear as a principle is
that in order to extinguish - - -

McHUGH J: That is ambiguous, is it not, when you say the

interests survive annexation? Some interests seem

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to survive the right to occupy, the right to use,
but do th~_~ases go any further than that?

MR CASTAN:	No, quite so, Your Honour, on the ability to alienate other than to the Crown or to the US
government in the American cases, it seems clearly
not to survive on these cases. In other words, they suggest that the Crown has taken a pre-emptive that the taking by the Crown of what is called the ultimate or radical title carries with it the right of pre-emption and that, therefore, the ability to alienate to others - and I say ''others" meaning outside the whatever levels of alienation exists
within the group themselves, if there be such a
right. But the ability to alienate to outsiders is
limited because the doctrines themselves that have
been developed impose that limit. It is discussed
in the earlier cases as a protective notion; that it is protecting the relevant band or the relevant
group.
McHUGH J:	Does that not seem to indicate that upon the

Crown taking over there is a new regime in which
certain limited rights, somewhere between
proprietary and personal, are conferred on the
occupants?

MR CASTAN: In our respectful submission, it does not lead

to the conclusion that they are in any way
conferred on the occupants. It is true that there
is a new regime; it is true the cases seem to
suggest that there is the ultimate title or
ultimate dominion over the land or radical title,
perhaps - if that term is used in some of the cases
- but the cases do not seem to say that the regime
is imposed and then some rights conferred; it is
rather that the pre-existing rights, if they
include an ability to alienate at all - and it
would seem with some of the tribes there it would
not be part of their capacity in any event - but if
there be such a right it is terminated. That is to

say that the taking of sovereignty does carry with
it, at least to that extent, the termination of
that right if it otherwise exists.

TOOHEY J: But is there a decision that positively deals

with a situation where there was a right to
alienate, that, to use your expression, did not
survive annexation by the Crown?

MR CASTAN:

I think the answer to that is probably no, but

we have not looked at it looking for that
particular perspective and one would have to re-
examine the authorities.

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TOOHEY J:

I only put it to you, Mr Castan, because you have

more than once spoken about the right of alienation
not surviving.

MR CASTAN:

I put it that way because what seems to be said

in the cases is that there is a right of
pre-emption. The right of pre-emption means only
the Crown can purchase, that purchases by others,
even if there be a right under the regime of the
Indians or the relevant Aboriginal group prior to annexation, prior to the change in sovereignty, but
that even if there was such a right, after the
Crown takes possession, takes sovereignty, that
right can only be exercised by the Crown.
It is precisely in accord with what happened

with Governor Burke in relation to the proposed
acquisition by John Batman in Melbourne at Port
Phillip, that the purported acquisition was simply
not recognized because only the Crown could
acquire, assuming that the relevant persons had a
power of disposal under their own system in any
event.
The answer to Your Honour's question is that

we have not located that. The situation in Papua
would bear investigation and we will perhaps have a
look overnight at Daera Guba, where there is an
acknowledgement that they are continued after the
annexation a right to dispose, because that is a
case where we know there was a right to dispose
under the traditional, or under the customary system because there had been that particular
acquisition that was the subject.
Whether those natives could continue to

dispose after the change of sovereignty I am not
certain, but that might not give us much guidance
because, of course, in that case a statutory regime
was imposed shortly after annexation, of course,

and so one does not get the kind of question

arising. Once a statutory regime which
acknowledges land interests and permits them to be
disposed of is imposed, the questions we are

concerned with do not arise. And that happened, of
course, in Papua subsequently, so while it is a
useful example on the pre-annexation situation, it
does not take us too far on these questions when
you look at it as a post-annexation situation. But
we will certainly endeavour to have a look at that.
I am reminded, of course, that there is an

interesting question arising in this case, that
does not seem to have arisen in the other cases,
because these cases which are dealing principally
with communal interests in land do not raise any
question of the survival of rights to dispose inter

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se between the members of the community that was,
so to speak, sovereign over that area prior to the
change of sovereignty.
Here we have the unusual situation of a system

in which there was a power of disposition which
existed, and it is similar perhaps to the Papua
situation. Similarly they had a right to dispose,
they had interests which each individual or family
owned, as one sees from Daera Guba, they could
dispose one to another. We would submit that the
correct view is that after annexation the Crown's
right of pre-emption as laid down in these cases
operates in respect of any purported acquisition
outside the community where the custom applies.
In other words, an acquisition that the right

of disposition to outsiders is restricted, the
right of alienation to non-Murray Islanders is
restricted by the very fact of the change of
sovereignty. But we would submit that the right to
dispose or alienate inter se would continue because

that would not be affected. And, of course, there
is ample evidence in this case of such dispositions
in fact taking place inter se.
Your Honours, we have dealt in the course of

those three cases with a great deal of the
underlying material that goes to make up the
doctrines and bears on two of the principal
questions that are raised in these proceedings.

Both the question of the effective annexation and
what is required for extinguishment are
encompassed, and many of the authorities that one
would need to turn to have been encompassed by
virtue of their reference and I will not, of
course, be turning to those again, and our written
submissions deal in considerable detail with the
development of these alternate doctrines.

What I would seek to turn to next is the other

major area - if I might call it that - of
difference between us and focus on the issue that
is raised as to the effect on pre-existing
interests of the existence of a Crown Lands Act
scheme and of acquisition of ultimate title in
Australia.
By way of general introduction, there is, of

course, a great body of authority in this Court
dealing with the fundamentals, the way in which the

so-called waste lands of the Crown came to be the
subject of disposition by the colonial parliaments.
The history of the Australian Waste Lands Act and
then the conferring of power in 1855 has been dealt
with in Williams v The Attorney-General and

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Randwick Corporation v Rutledge and the Seas and Submerged Lands Act and then the Dam's case and, perhaps, most recently, in Mabo (No 1) in 1988, and
it is a relatively familiar area, if I can use that
language, Your Honours.
What has never been looked at in relation to

those doctrines is whether the general expressions
that one finds in judgments ranging from Attorney- General v Brown, in the Supreme Court of New South Wales, (1847), His Honour Mr Justice Isaacs in
Williams, whether those general expressions bear on
the question of what happens when an interest of
the kind, and interest that is held by peoples
prior to annexation, continues in the sense that
there is a real occupation evidenced on the fac s

by the people concerned.
The difficulty with all of those decisions - and it is now, of course, a well-established line
of authority in this Court - is that on one view of
them their starting point is that the land became
waste lands of the Crown and became land owned in
the forced sense by the Crown, upon the assumption

that they were empty and unoccupied lands. And
that is an essential ingredient in the doctrines
developed, although not expressed in the later
cases and not made explicit but what I would seek
to do is to take Your Honours to the earliest of
the cases to show the way in which that doctrine
developed.
From the very earliest days in the 1930s,

there were decisions saying, "But in this colony,
of course, all the land was owned by the Crown.",
and the basis on which that is put is that the land

was empty. So that, it is not like in England
where there is a fictional ownership by the Crown
but a real ownership by the individuals who hold
their interests of the Crown.

The assumption that is expressed in the early

cases is that the land is unoccupied, the land is
truly wasteland, totally empty, and that on that
basis, of course, that ownership by the Crown is
not fictional and it is not merely an ultimate or
title in dominion, an ultimate radical, it is a
real ownership of the whole of the lands and then, of course, the Sale of Waste Lands legislation and
the various provisions for Lands Acts, Crown Lands
Acts, provide for grants of land and the whole of
Australia was, in effect, treated as subject to
such grants and there were provisions for reserving
land for various purposes and Randwick Corp v
Rutledge, of course, is the case that deals with the question of reserves - in that case for
recreation - and in the Dam's case Your Honour

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Mr Justice Brennan dealt in some detail with the
reserve for national parks and the like, and
underlying them is, we would submit, a notion that
the land is empty and unoccupied.
Now, whatever - I will take Your Honours to

the cases in a moment, but may I say by way of
preamble, that whatever might be said about the
situation in the colony of New South Wales to which
the Crown took sovereignty in 1888, it is our
respectful submission that the evidence here
establishes that it is not possible for that
assumption, whether it be founded on fact or
fiction, the land being unoccupied and not subject
to a real possession by other persons, it is not
possible for that assumption to be made in relation
to these territories annexed in 1879, because on
the findings of fact as we have them, it is clear
that they were not unoccupied lands as a matter of
fact, and we have the findings of fact to that
effect in this case, so that that underlying
assumption, we would submit, cannot be made.
That then raises the question, very much put in issue by our learned friends, of the effect of the operation of the existing Crown Lands Acts,
which were in operation in the colony of Queensland
in 1879 - the particular Act, I think, at that
stage, was the 1876 Act, but there had been a
succession of them in similar terms - but raises
the question of how that particular Act operating
at that time then took effect in relation to lands
which manifestly, on the evidence now before the
Court in this case, were not unoccupied lands and
it is our respectful submission that the fiction of
the land being unoccupied, which underlies the doctrine of the Crown, in effect, becoming the owner in the fullest sense, owner not just of the
ultimate or radical title, or ultimate lordship,
but actual owner of the lands, cannot survive,
cannot be found in a case like this and that it

must yield to the fact of actual occupation.
So that, accepting that the relevant

documents, as they did in this case, that the
letters patent, the colonial statute of 1879, the
governor's proclamation which had the effect of
bringing these territories in as part of the
colony, it is respectfully submitted that to the
extent to which those documents provided and shall
be subject to the laws in force therein - therein
being Queensland - they have that phrase in them,
that cannot mean, we would respectfully submit,
that the effect is that the Crown Lands Act then in
force has operations so as to somehow magically
vest in the Crown entire ownership of all of the
lands in the new territories that are added to

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Queensland and extinguishing the actual possession
and the actual ownership that pre-existed. In our
respectful submission, that flies in the face of
the findings and it is a legal consequence that
involves turning, not merely creating a fiction for
the purpose of some useful purpose of the law but
simply ignoring the facts.

TOOHEY J:

Mr Castan, you may be going to take us to this,

in which case leave it until it is appropriate. land being unoccupied, were they viewing the land
as literally unoccupied or unoccupied in the sense
that the land was not occupied by communities who
worked the land in some way?

MR CASTAN:

The cases seem to proceed on the basis that they

were literally unoccupied. In fact some of them
actually say, but here it was different because

there was no one here; the land was empty. I will
take Your Honour to that. There is one exception
to that but not a case in which the doctrines of
land law were ultimately decided and that is the
case of Bonjon, a Port Phillip case in 1841 in
which Mr Justice Willis discussed at length the
question of occupation and possession of land in
the colony. There one finds lengthy dissertation
on the fact that the land was not unoccupied and he
so finds and describes in detail the situation of
the Aboriginal population. He deals with that at
length and ultimately comes down to the conclusion
that - a conclusion which was not accepted
ultimately, of course, in the supreme court back in
Sydney, which was that there was no jurisdiction in
a criminal matter over the Aboriginal peoples;
they were to be treated as a domestic, dependent
nation in the way that the Americans had developed. Well, now, that decision did not prevail but
it is the one case in which a judge, in the early
times, has actually described the de facto

situation as he observed it and made findings
relating to it at some length and came to a
conclusion about an absence of jurisdiction, but it
was not upheld.
But it may be appropriate to commence with The

King v Steel, (1834) 1 Legge 65. In fact three of
these cases are all in volume 1 of Legge's Reports

from New South Wales. It is an 1834 case and it
is, we think, the first of the cases dealing with

land issues. I hesitate to say that too
confidently but we think it is that.
It was dealing with the question of whether

the Nullum Tempus Acts which provided for a period
of adverse possession against the Crown, the

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statute of 21 James I, applied in New South Wales.
So it related to the question of application of
ancient English legislation to the colony of New
South Wales.
At page 68 of the report towards the foot of

the page about nine or ten lines up from the bottom
of page 68, the matter is expressed this way:

By the laws of England, the King, in

virtue of his crown, is the possessor of all
the unappropriated lands of the Kingdom; and

all his subjects are presumed to hold their

lands, by original grant from the Crown. The
same law applies to this Colony. It is a
matter of history that New South Wales was
taken possession of, in the name of the King
of Great Britain, about fifty-five years ago.
This Court is bound to know judicially, that
an Act of Parliament passed in the 27th year of King George the 3rd, enabling His Majesty
to institute a Colony and civil government on
the east side of New South Wales. The right of the soil, and of all lands in the Colony,
became vested immediately upon its settlement
dispose of the lands so vested in the Crown. It is part of the law of England that the prerogatives can only be exercised in a
in His Majesty in right of his crown, and as
the representative of the British Nation. His
certain definite and legal manner. His
Majesty can only alienate Crown lands by means
of a record - that is by a grant, by letters
patent, duly passed under the Great Seal of
the Colony, according to law, and in
conformity with His Majesty's instructions to the Governor. It is also a clear rule of the
same law that the right of the Crown cannot be
taken away by an adverse possession, under

sixty years. The Nullurn Tempus Act, as it is

called, was expressly passed to limit the
remedy for the recovery of lands belonging to
the Crown to sixty years - without the
statute, there would have been no limit of
time - for it is a maxim of law that the King
cannot be disseized of his possessions; no
laches are imputable to him - nullurn tempus
occurrit regi. Unless therefore the King has
been out of possession of the land now
claimed, for full sixty years, there is no
defence in point of the mere times of adverse
possession to this action.

I need not go further with that. It is merely a
case in which this general proposition is stated

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that forms the foundation for Attorney-General
v Brown and the later cases, that -
the right of the soil and all lands in the
Colony became vested immediately upon its
settlement in His Majesty.

MASON CJ:	Now, can I ask you, Mr Castan, what progressing are we making?
MR CASTAN: Considerable, Your Honour.	I was not intending

to go back over those areas that are encompassed by
looking at those Canadian cases.

MASON CJ:	No.
MR CASTAN:	Yes, I am inclined to think it would be most of

tomorrow, but that we would not go much beyond
that. Some of the other issues are in shorter
compass.

MASON CJ: Very well, we will adjourn until 10.15 tomorrow

morning.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 29 MAY 1991

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Crown, and our submission is in the second sentence	that later - that sovereignty passed to the British
of paragraph 4 that such transfer did not have the
effect of extinguishing those interests which
existed prior to annexation. Whether settled,
ceded, conquered or otherwise acquired they
continued without the need for any act of recognition.

those interest which are claimed continued	- at
paragraph 7 at the foot of page 2 - that they

action has been taken to extinguish or acquire.	In
fact, the islanders have been recognized as owners
and we therefore would say the Crown Lands Act scheme is irrelevant and the only question one is
left with is whether the new proposals - the new
scheme of 82 to 84 amounts to an extinguishment:
the same kind of question as previously raised.

fiduciary duty or trust.	The narrative for that is
briefly set out at 1088 to 1089. The last is not

And so on.	And we there find some of the evidence
that Their Honours ultimately relied on.	And then,

to apply the concepts of applying English law
concepts as the only test.	To some extent, one

tribes is always inherently difficult.	Some
tribes are so low in the scale of social

submissions, as to the findings he should make.	He
says, just below half-way down the page:

fixed at 1898.	The observations were there but it
seems that Bruce continued to be an informant.	On
the other hand, the chapter dealing with native
land tenure, written by Wilkin, must have been
written early because Wilkin died in 1902, very

"Property and Inheritance" in Vol VI of Haddon
(Exhibit 117).	I spoke of Wilkin's

recognise them as being entitled to so so.	If
they do not, disputes are settled in the Island Court.

handed up by our learned friends.	Now,
Your Honour, the way we - - -

not.	And that is a matter of looking at the
determination.	Can I illustrate how that arises by

So, His Honour clearly rejects those claims.	He
then goes on to deal with the background of

course, he has dealt with the particulars.	I took
Your Honours to 173 to 180 where he gives the

made out that is an essential component.	To that
extent, there are such findings.	We do not here

on behalf of his wife and immediate family.	It was
not held communally in the sense that we are

occur.	One may have doubts as to how the
Korog land came into the Rice family.	James
Rice says that his mother, father and

occupation by the grandparents resorting to the
land.	Now, those are the findings in relation to
Korog.

found for James Rice in relation to Bazmet, Dei-Mei
and Korog.	He has found against him in relation to

used for over 10 years.	The land is said to
have been a wedding gift -

the material in His Honour's findings.	He says
exactly what it is.	And in our respectful

matter.	And we stress, when His Honour has refused
to accept a claim he has said so.	Now, in relation

sustaining the clan ..... follow.	There is not,
to my recollection, any dispute.

He has made a finding about the holding.	He has
dealt with the history of it. Perhaps I	should -
could I take Your Honours to page 205 so	that the

position is clarified in relation to the	Passi
lands.	He sets out the areas originally	claimed

and gave evidence.	As to his ceasing to be a
party he spoke of a concern about costs.	I

rights in the land with the Passi clan.	What
do you mean today by the Passi clan sharing
these rights in the land.	Who is in the

births, but of the use of land.	Now, if there
was disagreement about that, or if

garden or to establish a house, there was not
much to be done.	Now, what's problematical, I