Summary of the Findings
In essence Justice Moynihan found that plaintiffs James Rice and Dave Passi (but not Eddie Mabo) had some claims to land founded in a traditional system of land tenure. Importantly, however, he declined to find that any system of law had been established.
An idea of the range of issues canvassed by Justice Moynihan can be gleaned from perusing the table of contents to the Determination:
MURRAY ISLAND LAND CLAIM
M A B O & Others
V
The State of QUEENSLAND and the COMMONWEALTH OF AUSTRALIA
being a claim at law by Torres Strait Islanders alleging traditional native title to Murray, Dawar and Waier Islands and surrounding seas and reefs located :n the Eastern Torres Straits, in the State of Queensland.
1982 - 1992
DETERMINATION OF FACTS
MOYNIHAN J.
16 NOVEMBER 1990
BRISBANE
IN THE HIGH COURT
OF AUSTRALIA
No. B12 of 1982
BETWEEN:
EDDIE Mabo
First named Plaintiff
AND:
DAVID PASSI
Second named Plaintiff
AND:
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
Determination Pursuant to Reference of 27 February. 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of fact raised by the pleadings, particulars and further particulars in High Court Action B12 of 1982
Volume 1 Table of Contents follows
Volume 2 Findings in respect of 116 specific findings of fact sought by plaintiffs
Volume 3
Annexure A The current edition of the pleadings
Annexure B Witness List
Annexure C Exhibit List
Annexure D The Submissions on behalf of the Plaintiffs and of the Defendant (State of Queensland) of the records of the Murray Island Court
TABLE OF CONTENTS
Chapter 1 - INTRODUCTION 2
Chapter 2 - THE NATURE OF AND THE COURSE OF THE HEARING OF THE REMITTER 5
Chapter 3 - THE CASE SOUGHT TO BE MADE OUT BY THE PLAINTIFFS 10
Chapter 4 - THE ISSUES ARISING ON the PLEADINGS 16
A. Introduction 16
H. The Representative Aspect of the Proceedings 18
C. statement of Claim 19
D. Defence 26
Chapter 5 - THE CATEGORIES OF EVIDENCE TENDERED AND ISSUES OF ADMISSIBILITY 32
A. Introduction 32
B. The Question of Sufficiency and Standard of Proof 33
C. Issues of Admissibility 35
D. Alternative Findings 41
E. Witnesses 42
F. Documentary Evidence 45
Chapter 6 - CONSIDERATIONS BEARING ON THE EVALUATION OF THE EVIDENCE OF WITNESSES AND AN EVALUATION OF THE EVIDENCE OF SOME IMPORTANT WITNESSES 57
A. The Perception of One Culture for the Perspective of Another 57
B. An Oral Tradition 57
Chapter 7 - BACKGROUND 73
A. The Islands of the Torres Strait and Their People 73
B. The Murray Islands 79
8 - THE PEOPLE OF THE MURRAY ISLANDS. THEIR CULTURE AND SOCIETY 84
A. Introduction 84
B. Origins 87
C. Population Numbers 91
D. Early European Contact 93
E. Christianity: The Coming of the Light 59
F. Some Later Influences 103
G. Social Organisation: Village, Clan, District, Tribe and Family 104
H. Governance, Authority and Social Cohesions 120
I. The story of Malo and its Implications 129
J. The Bonai Malo Cult and Executive Authority 138
K European Contact and Authority 141
L. Adoption 145
M. The Adoption of Eddie Mabo 149
Chapter 9 - MURRAY ISLANDS SOCIETY AND LAND 153
A. Introduction 153
B. Categories of Land Use and the Incidents of the Rights Claimed by the Plaintiffs 159
C. The Situation with Respect to Land Usage Prior to European Contact and is Observed by the Haddon Party 163
D. The Effect of European Contact 172
E. Some Conclusions are Offered 172
F. Land Transactions Involving Outsiders 189
G. The Murray Island Court Records 189
3
Chapter 10 - CLAIMS BY THE PLAINTIFFS TO SPECIFIC PIECES OF LAND 194
A. Introduction 194
H. The Representative Aspect of the Proceedings 195
C. The Claims by the Plaintiff Eddie Mabo 196
D. Identification of Blocks and Boundaries 195
E. The Chains of Title 199
F. Conclusion in Respect of Eddie Mabo's Claims 204
G. The Claims by the Plaintiff Dave Passi 205
R. The Passi Claims of Title and Boundaries 212
The Claims by the Plaintiff James Rice 214
Chapter 11 - THE BASES OF RELIEF RELIED ON BY THE PLAINTIFFS 221
Conclusion - a Personal view 227
An idea of the range of issues canvassed by Justice Moynihan can be gleaned from perusing the table of contents to the Determination:
MURRAY ISLAND LAND CLAIM
M A B O & Others
V
The State of QUEENSLAND and the COMMONWEALTH OF AUSTRALIA
being a claim at law by Torres Strait Islanders alleging traditional native title to Murray, Dawar and Waier Islands and surrounding seas and reefs located :n the Eastern Torres Straits, in the State of Queensland.
1982 - 1992
DETERMINATION OF FACTS
MOYNIHAN J.
16 NOVEMBER 1990
BRISBANE
IN THE HIGH COURT
OF AUSTRALIA
No. B12 of 1982
BETWEEN:
EDDIE Mabo
First named Plaintiff
AND:
DAVID PASSI
Second named Plaintiff
AND:
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
Determination Pursuant to Reference of 27 February. 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of fact raised by the pleadings, particulars and further particulars in High Court Action B12 of 1982
Volume 1 Table of Contents follows
Volume 2 Findings in respect of 116 specific findings of fact sought by plaintiffs
Volume 3
Annexure A The current edition of the pleadings
Annexure B Witness List
Annexure C Exhibit List
Annexure D The Submissions on behalf of the Plaintiffs and of the Defendant (State of Queensland) of the records of the Murray Island Court
TABLE OF CONTENTS
Chapter 1 - INTRODUCTION 2
Chapter 2 - THE NATURE OF AND THE COURSE OF THE HEARING OF THE REMITTER 5
Chapter 3 - THE CASE SOUGHT TO BE MADE OUT BY THE PLAINTIFFS 10
Chapter 4 - THE ISSUES ARISING ON the PLEADINGS 16
A. Introduction 16
H. The Representative Aspect of the Proceedings 18
C. statement of Claim 19
D. Defence 26
Chapter 5 - THE CATEGORIES OF EVIDENCE TENDERED AND ISSUES OF ADMISSIBILITY 32
A. Introduction 32
B. The Question of Sufficiency and Standard of Proof 33
C. Issues of Admissibility 35
D. Alternative Findings 41
E. Witnesses 42
F. Documentary Evidence 45
Chapter 6 - CONSIDERATIONS BEARING ON THE EVALUATION OF THE EVIDENCE OF WITNESSES AND AN EVALUATION OF THE EVIDENCE OF SOME IMPORTANT WITNESSES 57
A. The Perception of One Culture for the Perspective of Another 57
B. An Oral Tradition 57
Chapter 7 - BACKGROUND 73
A. The Islands of the Torres Strait and Their People 73
B. The Murray Islands 79
8 - THE PEOPLE OF THE MURRAY ISLANDS. THEIR CULTURE AND SOCIETY 84
A. Introduction 84
B. Origins 87
C. Population Numbers 91
D. Early European Contact 93
E. Christianity: The Coming of the Light 59
F. Some Later Influences 103
G. Social Organisation: Village, Clan, District, Tribe and Family 104
H. Governance, Authority and Social Cohesions 120
I. The story of Malo and its Implications 129
J. The Bonai Malo Cult and Executive Authority 138
K European Contact and Authority 141
L. Adoption 145
M. The Adoption of Eddie Mabo 149
Chapter 9 - MURRAY ISLANDS SOCIETY AND LAND 153
A. Introduction 153
B. Categories of Land Use and the Incidents of the Rights Claimed by the Plaintiffs 159
C. The Situation with Respect to Land Usage Prior to European Contact and is Observed by the Haddon Party 163
D. The Effect of European Contact 172
E. Some Conclusions are Offered 172
F. Land Transactions Involving Outsiders 189
G. The Murray Island Court Records 189
3
Chapter 10 - CLAIMS BY THE PLAINTIFFS TO SPECIFIC PIECES OF LAND 194
A. Introduction 194
H. The Representative Aspect of the Proceedings 195
C. The Claims by the Plaintiff Eddie Mabo 196
D. Identification of Blocks and Boundaries 195
E. The Chains of Title 199
F. Conclusion in Respect of Eddie Mabo's Claims 204
G. The Claims by the Plaintiff Dave Passi 205
R. The Passi Claims of Title and Boundaries 212
The Claims by the Plaintiff James Rice 214
Chapter 11 - THE BASES OF RELIEF RELIED ON BY THE PLAINTIFFS 221
Conclusion - a Personal view 227
Keywords: Mabo Case, Moynihan, Justice Martin, Moynihan's findings, 1990
Mabo & Others v Qld, Determination of Facts. Table of Contents.