The plaintiffs' acceptance of the validity of Queensland's sovereignty over the Murray islands was accompanied by an acceptance of the established position that Australia was a 'settled' colony.
An established international law principle held that in colonies acquired by settlement, the English common law - to the extent that it was reasonably applicable to the circumstances of the colony - became the law of the new colony. The English law of real property was part of the common law, and a fundamental principle of this property law was that the Crown held the underlying title to all land within the colony.
These principles are clearly explained by Justices Deane and Gaudron:
'The introduction of the common law....Where persons acting under authority of the Crown established a new British colony by settlement, they brought the common law with them. The common law so introduced was adjusted in accordance with the principle that, in settled colonies, only so much of it was introduced as was 'reasonably applicable to the circumstances of the colony' [Cooper v Stuart (1889)]... It follows that, once the establishment of the Colony was complete on 7 February 1788, the English common law, adapted to meet the circumstances of the new Colony, automatically applied throughout the whole of the Colony as the domestic law ... Thereafter, within the Colony, both the Crown and its subjects, old and new, were bound by that common law.
The English law of real property.
The English common law principles relating to real property developed as the product of concepts shaped by the feudal system of medieval times. The basic tenet was that, consequent upon the Norman Conquest, the Crown was the owner of all land in the kingdom. A subject could hold land only as a tenant, directly or indirectly, of the Crown ... the underlying thesis of the English law of real property remained that the radical title to (or ultimate ownership of) all land was in the Crown ...It has, however, long been accepted as incontrovertible that the provisions of the common law which became applicable upon the settlement of the Colony of New South Wales included that general system of land law. It follows that, upon the establishment of the Colony, the radical title to all land vested in the Crown.' (1992) 175 CLR 1 at 80-81
Accordingly, upon the annexation of the Murray Islands, the law of Queensland applied throughout the Islands and the underlying title to the Islands vested in the Crown in right of Queensland.
Keywords: Australian Court Case, Common Law, Cooper V Stuart, crown land, New South Wales, plaintiffs, Queensland, Radical Title, sovereignty
Author: Kenna, Jonathan