pp 82-83 of Moynihan J's judgement
MABO v. STATE OF QUEENSLAND
THE CASE SOUGHT TO BE MADE OUT BY THE PLAINTIFFS: The case sought to be made out by the plaintiffs against the defendant State of Queensland is that the plaintiffs are entitled to specific areas of land on or associated with Murray Island and the State is obliged to recognise their entitlement. Resolution of the issues of law arising consequent on finding of fact made pursuant to the remitter are, by implication from the terms of the remitter, the concern of the High Court of Australia. It is however convenient at this stage to identify the bases at law upon which the plaintiffs seek to found their claims in order to place the evidence and the findings based on it in a context or framework.
At the risk of oversimplification, and hence misstatement, of complex
legal concepts and arguments applied to a complex factual situation the essence of the case sought made for the plaintiffs is as follows.
Before the annexation of the Murray Islands to Queensland on I August 1878 or indeed before earlier European contact the plaintiffs' predecessors in title, had-according to the established laws, customs, traditions and practices of the then inhabitants of the Murray Islands 'from time immemorial'-acquired rights to the lands referred to in the pleadings particulars and further particulars recognised by the people of Murray Island and which the defendant the State of Queensland became and remains bound to recognise in the plaintiffs and those they represent.
The case for the plaintiffs is not confined to establishing that the laws, customs, traditions and practices constituted 'a system of laws' with rights to be recognised at common law or IO establishing 'a doctrine of native title which the courts are bound to recognise; c/f. Milirrpurm v. Nabalco Pty Ltd (1970) 17 F.L.R. 141 at 202, 292. Moreover the plaintiffs reject, in the sense of ultimately seeking to persuade the High Court to a different view, the consequences of he acquisition of territory by cession conquest or settlement which has so far prevailed; see Cooper v. Stuart (1889) 14 App.Cas. 286 at--191 and Milirrpurm at 201 and following.
It is contended to the effect that the plaintiffs' rights 'flow along a continuum of a dynamic and flexible culture' rather than from a system which operated unchanged prior to annexation to the present. Thus it is said that there is continuity between the laws, customs, traditions and practices however they may be described as they applied on Murray Island at and prior to annexation and their then application and the application of the 'same' laws, customs, traditions and practices so as to sustain the plaintiffs' claims in the undoubtedly altered circumstances of the present.
In other words the system or pattern of the relationship between individual Murray Islanders (the plaintiffs and their predecessors in title) and land on the island prior to and at the time of annexation is a continuing and enduring one which enures to the benefit of the plaintiffs in respect of the specific blocks which they claim. There may have been changes of various kinds but the underlying basis has not changed; c/f. Milirrpurm at 195. I should mention that it will be apparent to whoever reads this that I owe a considerable debt to Sir Richard Blackburn for the light that his work, reflected in his reasons for judgment in that case, has cast on my work in this. I am however dealing with a very different society and very different relationships with and attitudes towards land to those with which he was contending.
It is central to the plaintiffs' case what as a consequence of the continuous application of the laws, customs, traditions and practices of the Milirrpurm people they have acquired rights in respect of the lands claimed in this action according to:
(a) local custom; (b) traditional native title;
(c) usufructuary rights on account of their possession, use and enjoyment of the Murray Islands;
(d) fiduciary obligations to which the State of Queensland has become subject in respect of the plaintiffs' claimed rights;
and that the State of Queensland is bound to recognise those rights.
Keywords: claim, Moynihan, Justice Martin, plaintiffs, 1990
Mabo v. State of Queensland, Justice Moynihan's judgement, pp 82-83.
Author: Kenna, Jonathan
Source: Moynihan, Justice