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

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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

Mabo

28/5/91

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

Mabo

28/5/91

Court in grasping the range…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mabo v Queensland (No 2)

Details

AGLC: Mabo v Queensland (No 2) [1991] HCATrans 23
Case: [1991] HCATrans 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application by Eddie Mabo and others against the State of Queensland concerning native title to land on the Murray Islands (Meriam Mer). The applicants sought a declaration that they were entitled to the possession, occupation, use and enjoyment of the Murray Islands. The central dispute revolved around the extinguishment of native title by the Crown's acquisition of sovereignty and subsequent land grants.

The High Court was required to determine whether the common law of Australia recognised native title and, if so, whether native title had been extinguished by the Crown's acquisition of sovereignty over the Murray Islands and by the granting of leases by the Queensland government. The court also had to consider the nature and content of native title and the circumstances in which it might be extinguished.

In a majority decision, the High Court held that the common law of Australia recognised native title, which is a form of title that arises from the traditional laws and customs of Indigenous peoples. The court found that the acquisition of sovereignty by the Crown did not automatically extinguish native title, but rather that native title could only be extinguished by the Crown's exercise of sovereign power in a manner inconsistent with the continued existence of native title rights. The court determined that the granting of leases over the Murray Islands by the Queensland government had extinguished native title in respect of those leased areas. However, the court also held that native title had not been extinguished in respect of areas not subject to such inconsistent grants, and that the traditional inhabitants of the Murray Islands retained native title rights and interests in those areas.

The High Court declared that the native title of the Meriam people had not been extinguished in respect of the Murray Islands, save for those areas where it had been lawfully extinguished by the Crown. The court remitted the matter to the Supreme Court of Queensland to determine the precise extent of the native title rights and interests and to make appropriate declarations.

Orders