Statement of claim - amended statement
IN THE HIGH COURT OF AUSTRALIA
AT THE BRISBANE OFFICE OF THE REGISTRY
No. 12 of 1982
BETWEEN:
EDDIE MABO FIRST NAMED PLAINTIFF
CELUIA MAPO SALEE SECOND NAMED PLAINTIFF
SAM PASSI THIRD NAMED PLAINTIFF
DAVID PASSI FOURTH NAMED PLAINTIFF
JAMES RICE FIFTH NAMED PLAINTIFF
(who bring this action own their own behalf, and on behalf of the members of their respective family groups)
[Editor's Note: Celuia Mapo Salee and Sam Passi deleted. Amended by
of Moynihan Granted]
and
THE STATE OF QUEENSLAND and THE
COMMONWEALTH OF AUSTRALIA
Defendants
STATEMENT OF CLAIM AS AMENDED JUNE, 1989.
[Editor's Note: Amended by Len of Moynihan J. Granted 5.6.89]
1. Since time immemorial, the Torres Strait Islands of Mer (known as Murray), Dawar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets (hereinafter collectively referred to as "the said Islands") have been continuously inhabited and exclusively possessed by people called the Miriam people, who speak a distinct language of their own (the Miriam language), who are known as Murray Islanders and who are included in that group of people generally known as Torres Strait Islanders.
PARTICULARS
The said Islands are located in the Torres Strait at about 10 degrees latitude and 144 degrees longitude, are surrounded by reefs and comprise an area of land approximately 9 square kilometres.
FURTHER PARTICULARS
Further particulars are set forth at p 28 paragraph 74 and at
Annexure A of the Plaintiffs' Statement of Facts filed herein.
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2. The Plaintiffs are Murray Islanders and are members of the Miriam people. The first, named Plaintiff is a descendant of the traditional leaders known as the "Aiets" of the Miriam people. The first Plaintiff is now the head of his family group. The fifth named Plaintiff was the Chairman of the Island Council of the said Islands. The Plaintiffs bring this action on their own behalf, and on behalf of the members of their respective family groups (hereinafter collectively referred to as "the Plaintiffs"). Further particulars are set forth at Annexure C of the Plaintiffs' Statement of Facts filed herein.
3. Since time immemorial, since 1879, since 1901 and since within living memory (hereinafter collectively referred to as since time immemorial) the Miriam people have continuously occupied, used and enjoyed the said Islands and resided on the said Islands in permanent settled communities with a social and political organisation of their own.
PARTICULARS
Since time immemorial the Miriam people have continuously and
to the exclusion of peoples other than themselves :-
(a) occupied, used and enjoyed, and benefited from the said
Islands;
(b) built and lived in permanent residences, housing individuals together with their immediate families, which were and are built in groups of houses, so as to constitute several villages situated on the islands of Mer and Dawar;
(c) made, planted, tilled, cultivated and harvested gardens permanently situated in particular areas of the said Islands;
(d) hunted wildlife in the uncultivated areas of the said Islands;
(e) harvested the produce of natural plants and vegetable life growing in the uncultivated areas of the said Islands;
(f) fished in the adjacent waters and harvested the natural produce of the sea in the reefs and waters of the sea surrounding the said Islands;
(g) used water from the said Islands for sustenance, medicinal and spiritual purposes;
(h) dug for and used stones, flints, clays, ochres and minerals on the said Islands;
(i) set aside areas and built shrines on the said Islands for the purposes of sacred, religious and spiritual activities and carried on such activities in such areas;
(j) set aside areas and built meeting places on the said Islands for the purposes of social and political organisation of the community;
(k) established and carried on a social and political organisation with community leaders and institutions that governed their affairs and that included therein a system of law and, inter alia, laws, customs, traditions and practices of their own for determining questions concerning:
( i ) the ordering of community life;
(ii) the ownership of and dealings with land, seas, seabeds and reefs;
(iii) the carrying on of agriculture, hunting and fishing;
(iv) social relationships;
(v) religious and spiritual activities; and
(I) carried on trade, commerce and intercourse with the inhabitants of Cape York, Papua New Guinea, islands in the Torres Strait and other neighbouring islands.
FURTHER PARTICULARS
Further particulars are set forth at :
p. 12 paragraph 32 of Volume 1 and document 50 in Volume 4;
p. 18 paragraph 50 of Volume 1 and document 2 in Volume 4;
p. 28 paragraph 75;
p. 29 paragraph 76;
pp. 30,31 paragraph 78 and Annexure D referred to therein;
p. 31 paragraph 79 and Annexure B referred to therein;
p. 79 paragraph 80 and Annexure ~ referred to therein;
pp. 31-32 paragraph 81 and Annexure B referred to therein;
pp. 36-41 paragraphs 92-106 and Annexures B,C, and D mentioned
therein;
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pp. 43-45 paragraphs 114-116 and Annexure D mentioned therein; all of the Plaintiffs' Statement of Facts filed herein.
4. Since time immemorial the said laws, customs, traditions and practices of the Miriam people have included rights to land on the said Islands and rights to the sea and seabeds extending to the fringing reefs surrounding the said Islands, and to the Great Barrier Reef, and rights to the fringing reefs surrounding the said Islands, and to the Great Barrier Reef.
PARTICULARS
(a) There are numerous areas of land, sea, seabeds and reefs which are severally owned by particular family groups. Each of the said areas is vested collectively in a particular family group. The members of the said family groups have rights and duties in relation to their respective family group areas, including but not limited to the right and duty vested in the head from time to time of each family group of allocating portions of such areas to be used by the individual members of the respective family groups.
(b) There are numerous areas of land which are individually owned by separate members of the said family groups in their personal capacity, but which may be disposed of by them only to other members of their family group.
(c) There are some areas of land which are individually owned by the heads from time to time of certain family groups, and which are set aside for the conduct of particular religious and sacred practices of the Miriam people.
(d) There are some areas of land the use of which has been granted collectively to the Miriam people as a whole by individuals acting either on their own behalf or on behalf of family groups
(e) There are some areas of land that have been purportedly acquired by the firstnamed Defendant and others from individuals acting either on their own behalf or on behalf of family groups. Particulars of these transactions are set forth in Schedule 1 hereto; and in pp. 38-41, paragraphs 98-106 and Annexures B and D referred to therein of the Plaintiffs'
Statement of Facts filed herein.
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 32-36 paragraphs 83-91 and Annexure B and D mentioned
therein;
document 53A in Volume 4 filed herein;
pp. 41-43 at paragraphs 107-113 and Annexure D mentioned
therein;
and at pp. 25-26 paragraph 70,
all of the Plaintiffs' Statement of Facts filed herein.
5. According to the said laws, customs, traditions and practices since time immemorial, the Plaintiffs and their predecessors in title have owned and have had rights in, and Plaintiffs continue to own and have rights in, particular areas of land on the said Islands and particular parts of the surrounding sea and seabeds and surrounding reefs. Further, the Plaintiffs and their predecessors in title have continued without interruption to enjoy the ownership, use and occupation of such land, surrounding sea, seabeds and reefs and to have questions decided concerning the same, in accordance with the laws, customs, traditions and practices of the Miriam people.
PARTICULARS
(a) In respect of the firstnamed Plaintiff:
(i) as a member of the Mabo family group and on his own behalf as an individual, and as the head of his family group, all that area of land situate at Las on the island of Mer and known as "Eddie Mabo's portion";
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(ii) as the successor to the Aiet of Mabo, the specific areas of land situate at Las on the island of Mer, which are set aside for religious and sacred practices.
(ii) in respect of the secondnamed Plaintiff :
[Editor's Note: (b) Deleted By Leave of Moynihan J. Granted 5.6.89]
(i) as the oldest living member of the family group of the
(iii) firstnamed Plaintiff and as his paternal aunt,
[Editor's Note: (i) and (iii)-part Deleted By Leave of Moynihan J. Granted 5.6.89]
(iii) cont'd
the land of the Mapo (Mabo) family group on the island of Mer at Korkor, Kieu, Utirib, Pairemed, tar, Niwe, Ugab, Jeum, Nimap, Baier, Maskep, Aeum, Sager, Las, Dam, Miear, Dure, Kebisaurem, Manini, Sebeg, Saurem, Lewag, Umargiz, Kosmed, Mabadmop, Parbid, Semar, Ebir, and Ulag together with the sea, seabed and stone fishtrap extending from the land as Las to the fringing reef, and the Great Barrier Reef.
(ii) as the descendants of her mother, the lands of the Goi
(iv) family group
[Editor's Note: (ii) and (iv)-part Deleted By Leave of Moynihan J. Granted 5.6.89]
(iv) cont'd
on the island of Mer at Eum, Ai, Baugerid, Tabeb,
Sebeg and Kakusare.
(iii) In respect of the thirdnamed Plaintiff :
(i) as a member of the Passi family group and on his own behalf as an individual, and as the head of his family group, lands situate at Zomarid (Zomared) on the islands of Mer;
(ii) as the successor to the Aiet of Dawar, the lands situate on the island of Dawar in the areas known as Giar and Tig, being approximately half the land area of the island, together with the beach, the reef and the sea and seabed extending to the reefs, fringing the island of Mer;
(iii) as the successor to the Aiet of Dawar the lands situate on the Island of Waier, being the sand spit called Waier, the beaches and waters of the crescent bay called Neh, and the land called Ziei-Gerz, being approximately half the land area of the island of Waier.
[Editor's Note: (c) (i) (ii) and (iii) Deleted By Leave of Moynihan J. Granted 5.6.89]
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(d) In respect of the fourthnamed Plaintiff as :
(W) a member of the Passi family group;
(X) on his own behalf as an individual;
(Y) as the younger brother of Sam Passi:
(i) lands situate at Zomared on the island of Mer;
(ii) the lands situate on the island of Dawar in the areas known as Giar and Tig, being approximately half the land area of the island, together with the beach, the reef and the sea and seabed extending to the reefs, fringing the island of Dawar;
(iii) the lands situate on the island of Waier, being the sand spit called Waier, the beaches and water of the crescent bay called Neh, and the land called Ziei-Gerz, being approximately half the land area of the island of Waier.
(e) In respect of the fifthnamed Plaintiff:
(i)as a patrilineal descendant of the Dawar family group, land situate on the island of Dawar in the area known as Aepkess [and Dadamud] together with the adjoining seas and seabed as far as [and including] the fringing reef;
[Editor's Note: Amendment pursuant to leave of Moynihan J. 8.6.89]
(ii) as a descendant of the Magaram family group through his grandfather, land situate on the island of Mer in the area known as Bazmet;
(iii) as a descendant of the Komet family group through his great-great-grandmother, two portions of land situate on the island of Mer in the areas known as Korog and Dei-mi.
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 29-30 paragraph 77 and Annexure B referred to therein;
and at p.32 paragraph 82 and Annexure B referred to therein,
all of the Plaintiffs' Statement of Facts filed herein.
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all of the Plaintiffs' Statement of Facts filed herein.
6. In or about 1879, the peoples referred to in paragraph 3(1) above and Her Majesty Queen Victoria, and Her Colonies, and the International Community of Nations, dealt with the Miriam people, and recognised the rule of the Miriam people over the said Islands and recognised the said laws, customs, traditions and practices of the Miriam people, and further recognised that the Miriam people, since time immemorial had been and still were the rulers, owners, possessors and occupiers and were entitled to the use, enjoyment and benefits of the said Islands.
PARTICULARS
Particulars of dealings and recognition are set forth at:
pp. 1-7, paragraphs 1-16 of the Plaintiffs' Statement of Facts
filed herein;
and at source documents 1-30, and 50 in Volume 4 of the
Plaintiffs' Statement of Facts filed herein.
7. By letters patent passed by Her Majesty Queen Victoria on or about 10th October, 1878, and by the provisions of the Queensland Coast Islands Act 1879 passed by the Legislature of the Colony of Queensland and by a proclamation of the Governor of Queensland made on or about 18th July 1879, and by naval act of war on or about 10th November, 1879, and by the provisions of the Colonial Boundaries Act, 1895 of the Imperial Parliament, the said Islands were annexed to and became part of the Colony of Queensland from 1st August, 1879 and became subject to the laws in force therein.
PARTICULARS
Further particulars are set forth at:
p. 7, paragraphs 17,18 and 19, of the Plaintiffs' Statement of Facts filed herein;
and at source documents 20,26,30,31,31A,32 in Volume 4 of the Plaintiffs' Statement of Facts filed herein.
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8. Upon such annexation the inhabitants of the said Islands including the predecessors in title of the Plaintiffs became British subjects.
9 The sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by conquest.
PARTICULARS
Further particulars are set forth at;
p 7, paragraph 19 of the Plaintiffs' Statement of Facts filed
herein,
and in source documents 31, 31A and 32 in Volume 4 of the
Plaintiffs' Statement of Facts filed herein.
10. In the alternative the sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by discovery followed by settlement.
11. In the further alternative the sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by cession.
12. Her Majesty Queen Victoria as International Sovereign extended Her sovereignty over the whole of the said Islands subject to the rights of the Miriam people and in particular subject to the rights of the predecessors in title of the Plaintiffs to the continued enjoyment of their rights in their respective lands, seas, seabeds and reefs (all hereinafter called "lands") according to -
(a) their local custom (hereinafter called "ownership by custom");
(b) their original native ownership (hereinafter called "traditional native tittle");
(c) their actual possession, use and enjoyment of the said Islands (hereinafter called usufructuary rights")
until such time as the said -
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(j) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
were lawfully extinguished, purchased, acquired, interfered with, derogated from, disturbed, detracted from, subjected to inconsistent action, or surrendered (all of which are hereinafter referred to as "impaired").
13. Further, since the extension of sovereignty as aforesaid, the said rights of the Miriam people and in particular of the Plaintiffs and their predecessors in title have been recognised and continued by Her Majesty Queen Victoria and by Her successors in title and by the Colony of Queensland and by the Defendants.
PARTICULARS,
(a) Recognition and continuation of the said rights by Her Majesty Queen Victoria and Her successors in title occurred by the constituting of a local Island Court of the Miriam people and the conduct of its proceedings which from time to time included, inter alia, resolution of disputes concerning land, and by the conduct of the administration of the affairs of the Miriam people, all in accordance with their laws, customs, traditions and practices.
(b) Recognition and continuation of the said rights by the Colony of Queensland is provided (inter alia) by the provisions of each of the following Acts of the Colony of Queensland namely:
Pacific Islanders Protection Act 1872-5, Crown Lands Act 1884, Aboriginals Protection and Restriction of Sale of Opium Act 1897,
and is further provided by the matters set out in particular
(a) above and in the following further particulars.
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FURTHER PARTICULARS
Further particulars are found at:
pp. 7-10 paragraphs 21-27 in Volume 1 and in source
documents 15, 16, 17, 33-45 in Volume 4 of the Plaintiff's
Statement of Facts filed herein;
and in pp.10-12, paragraphs 29-30 in Volume 1 and source
documents 2, 46-49 in Volume 4 of the Plaintiffs'
Statement of Facts filed herein;
and in pp.12-15, paragraphs 32-37 in Volume 1 and in
source documents 29, 50-54 in the Plaintiffs' Statement of
Facts filed herein.
(c) Recognition and continuation of the said rights by the firstnamed Defendant is provided (inter alia) by -
(i) the provisions of each of the following Acts, Regulations and By-laws of the firstnamed Defendant, namely : Torres Strait Islanders Act 1971-1979 as amended, Torres Strait Islanders Regulations of 1972 as amended, Torres Strait Islanders Local Community By-laws as amended and the preceding Acts, Regulations and By-laws respectively relating to the subject matter of the said Acts, Regulations and By-laws;
PARTICULARS
Further particulars are set forth in: pp. 24-25, paragraphs 65, 86 in the Plaintiffs' Statement of Facts filed herein; and at p.25, paragraph 69(a)(b) in Volume 1 and at source documents 74 and 75 of Volume 4 all of the Plaintiffs' Statement of Facts filed herein;
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(ii) the establishment and administration of the local Island Court of the Miriam people and the conduct of its proceedings, which from time to time included (inter alia) resolution of disputes concerning land, and the conduct of the administration of the affairs of the Miriam people, all in accordance with the laws, customs, traditions and practices of the Miriam people;(iii) the setting aside of the said Islands as an area reserved for the benefit of the Miriam people;
( iv) transactions in land including, inter alia, those referred to in paragraph 4(e) herein, particulars of which are set forth in Schedule 1 hereto;
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 15-18, paragraphs 38-49 in Volume 1, and at
documents 2g, 49, 55-63 of Volume 4 and in Annexure
D referred to therein, all of the Plaintiffs' Statement
of Facts filed herein;
and at pp.18-22, paragraphs 51-61 in Volume 1, and at
documents 13, 29, 32, 64, 65, 66, 67 in Volume 4 and
at Annexure D referred to therein all of the Plaintiffs'
Statement of Facts filed herein;
and at pp. 23-24, paragraph 63 in Volume 1 and
documents 22 and 70 of Volume 4 all of the Plaintiffs'
Statement of Facts filed herein.
(d) Recognition and continuation of the said rights by the secondnamed Defendant is provided (inter alia) by the provisions of each of the Acts mentioned in paragraph 21 below and by the provisions of the Torres Strait Treaty 1978 and by the provisions of the Torres Strait Fisheries Act 1984., as amended.
PARTICULARS
Particulars concerning the Torres Strait Treaty are set
forth at:
pp. 23-24, paragraphs 62 and 64 in Volume 1 and at
documents 22, 68, 69;
and at documents 2, 22, 71 and 72 in Volume 4 all of the
Plaintiffs' Statement of Facts filed herein;
and at p.26, paragraph 70A in Volume 1 and at document 77 of Volume 4 all of the Plaintiffs' Statement of Facts filed herein; and at pp.26-27, paragraph 71;
and at p.28, paragraph 73 all in Volume 1;
and at document 78 in Volume 4 all of the Plaintiffs'
Statement of Facts filed herein.
14. Save for the areas referred to in paragraph 4(e) hereof the -
(a) ownership by custom
(b) traditional native title;
(c) usufructuary rights
of the Miriam people and in particular of the Plaintiffs and their predecessors in title continued and have not been impaired by Her Majesty Queen Victoria or by any of Her successors in title or by the Colony of Queensland or by the Defendants since the extension of sovereignty as aforesaid.
15. The firstnamed Defendant now denies the existence of the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights
of the Miriam people and in particular of the Plaintiffs and their predecessors in title, and threatens and intends to impair their said rights unless restrained by this Honourable Court.
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PARTICULARS
(a) The said Islands are now included in that area reserved for the benefit of Torres Strait Islanders pursuant to the provisions of the Land Act 1962-1975 as amended and the relevant preceding legislation of the firstnamed Defendant.
(b) By the provisions of the Torres Strait Islanders Act 1971 as amended and the Community Services (Torres Strait) Act 1984 and the Regulations and By-laws thereunder of the firstnamed Defendant and by the provisions of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 of the secondnamed Defendant and by the provisions of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 of the secondnamed Defendant and by the provisions of the other Acts referred to in paragraph 21 below, and by the provisions of the Torres Strait Treaty 1978 the Miriam people are now entitled inter alia -
(i) to be and are governed by an elected Island Council which is charged with the good rule and government of the said Islands in accordance with the customs and practices of the Miriam people;
(ii) to constitute and operate an Island Court in accordance with the customs and practices of the Miriam people; and
(iii) to the other rights and benefits thereby provided including but not limited to the rights and benefits set outIn paragraphs 1 to 6 hereof.
(c) The firstnamed Defendant now threatens and intends -
(i) to take steps pursuant to Section 334 of the Land Act 1962-1975 as amended and in particular as amended by the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 of the firstnamed Defendant, and pursuant to the provisions of the Community : Services (Torres Strait) Act 1984 to cause the said 15 Islands to cease to be a Reserve for the purposes of the said Acts and for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant, and for the purposes of the Acts of the secondnamed Defendant set forth in paragraph 21 below;
(ii) thereafter to grant the said Islands by way of deed of grant in trust to a Council under Section 334 of the Land Act 1962-1975 as amended of the firstnamed Defendant and in accordance with the provisions of the Community Services (Torres Strait) Act 1984 with power to lease the lands now reserved for the benefit of the Plaintiffs, thereby preventing the Miriam people and in particular the Plaintiffs from residing on the lands presently reserved for their benefit for more than one month without the permission of the Minister for lands pursuant to Section 350 of the Land Act 1962-1975 as amended;
(iii) to deal with the said Islands free of any reservation for the benefit of and without regard to the rights of the Miriam people in particular without regard to the rights of the Plaintiffs incident to their -
(w) ownership by custom;
(x) traditional native title;
(y) usufructuary rights;
(z) rights created by the said legislation.
PARTICULARS
Particulars are set forth at p.25, paragraph 68 of the
Plaintiff's Statement of Facts filed herein.
16 The power of the firstnamed Defendant to so impair the said rights of the Miriam, people and in particular the said rights of the Plaintiffs and their predecessors in title were and are exercisable only pursuant to express statutory authority conferring such a power of impairment.
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17. Further' the Plaintiffs and their predecessors in title were and are entitled to payment of compensation for any such impairment pursuant to any such express statutory authority in the absence of express statutory provisions denying their entitlement to such compensation.
18. The firstnamed Defendant has not enacted any laws of the kind referred to in paragraphs 16 and 17 above.
19. In the premises, the firstnamed Defendant was and is not now empowered to impair the rights of the Miriam people and in particular of the Plaintiffs.
20. Alternatively, in the premises the Plaintiffs are entitled to compensation for any impairment of their said rights.
21. Further or alternatively to paragraphs 16 to 20 above, the secondnamed Defendant has passed laws and taken steps relating to the rights and interests of the Plaintiffs in their said lands and any law of Queensland dealing with the said matters is invalid to the extent of any inconsistency, by reason of the provisions of Section 109 of the Constitution.
PARTICULARS
Repatriation (Torres Strait Islanders) Act 1972
Aboriginal Affairs (Arrangements with the States) Act 1973.
Aboriginal Land Fund Act 1974.
Aboriginal Loans Commission Act 1974.
Racial Discrimination Act 1975.
Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975.
Aboriginal Councils and Associations Act 1976.
Aboriginal Land Rights (Northern Territory) Act 1976.
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978.
Torres Strait Treaty 1978.
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Coastal Waters (State Title)Act 1980.
Aboriginal Development Commission Act 1980.
Torres Strait Treaty (Miscellaneous Amendments) Act 1984.
Torres Strait Fisheries Act 1984.
22. The laws pursuant to which the firstnamed Defendant proposes to take the steps referred to in paragraph 15 above are inconsistent with the laws of the Commonwealth referred to in paragraph 21 above and are invalid by reason of the provisions of Section 109 of the Constitution.
PARTICULARS
The Plaintiffs refer to Schedule 11 annexed hereto
23. Further or alternatively to paragraphs 16 to 20 above and to paragraphs 21 and 22 above, the power to impair the said rights of the Plaintiffs and their predecessors in title was vested solely in Her Majesty Queen Victoria as international sovereign and Her successors in title as such international sovereign.
24. The secondnarned Defendant and only the secondnamed Defendant became the successor in title as international sovereign for the said purposes.
PARTICULARS
(a) The secondnamed Defendant became the successor as aforesaid on 1st January 1901.
(b) In the alternative the secondnamed Defendant became the successor as aforesaid on 9th October, 1942 by reason of the coming into effect of the provisions of the Statute of Westminster Adoption Act 1942 of the secondnamed Defendant whereby the Statute of Westminster 1931 of the Imperial Parliament was adopted by the secondnamed Defendant.
(c) In the further alternative the secondnamed Defendant became the successor as aforesaid on 10th August, 1967 by
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reason of the coming into effect of the provisions of the Constitution Alteration (Aboriginals) Act 1967 of the secondnamed Defendant and the consequent alteration of the Constitution.
(d) In the further alternative the secondnamed Defendant became the successor as aforesaid by reason of the coming into effect of the provisions of each of the Acts of Parliament of the secondnamed Defendant set forth in paragraph 21 above.
(e) In the further alternative the secondnamed Defendant became the successor in title as aforesaid by the negotiation and signing of the Torres Strait Treaty 1978 between the secondnamed Defendant and Papua New Guinea which was signed at Sydney on 18th December, 1978, and in particular by reason of the provisions inter alia of Articles 10 to 20 inclusive thereof.
PARTICULARS
Particulars are set forth at p.27, paragraph 72 of the Plaintiffs' Statement of Facts filed herein.
25. The powers of the secondnamed Defendant referred to in paragraph 24 above were and are exercisable only pursuant to express statutory authority conferring such powers.
26. Further to paragraph 25 above the Plaintiffs and their predecessors in title are entitled to payment of compensation on just terms pursuant to any Such express statutory authority by reason of the provisions of Section 51(XXXI) of the Constitution.
27 By reason of the matters set forth in paragraphs 23 to 26 above, the firstnamed Defendant is not empowered to make the laws or take the steps referred to in paragraph 15 above, or otherwise impair the Plaintiffs' said rights.
28 Further or alternatively to paragraphs 16 to 20 above and to paragraphs 21 and 22 above and to paragraphs 23 to 27 above,
Her
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Majesty Queen Victoria and Her Successors in title and the Colony of Queensland and the Defendants have represented by their conduct and otherwise to the Miriam people and in particular to the Plaintiffs and their predecessors in title that they recognised and continued the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights of the Miriam people and in particular of the Plaintiffs and their predecessors in title.
PARTICULARS
The Plaintiffs refer to and repeat the particulars under paragraph 13 above.
29. In the premises, the Plaintiffs had a reasonable and legitimate expectation that their:
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights.
would be recognised and continued and that no step would be taken to impair the same.
30. In the premises, the Defendants are obliged to act fairly towards the Plaintiffs and to accord to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice and in particular the firstnamed Defendant is required so to act prior to taking the steps referred to in paragraph 15 above.
31. The firstnamed Defendant threatens and intends to take the steps referred to in paragraph 15 above without acting fairly towards the Plaintiffs and without according to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice.
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31A Further, by reason of the matters referred in paragraphs 1-21 and 28-31 hereof;
(a) Her Majesty, Queen Victoria and her successors in title;
(b) the colony of Queensland;
(c) the firstnamed Defendant;
were and are under a fiduciary duty owed to
(i) the Miriam people, and
(ii) the Plaintiffs and their predecessors in title.
31B. Alternatively, by reason of the matters referred to in paragraphs 1-21 and 28-31 hereof;
(a) Her Majesty, Queen Victoria and her successors in title;
(b) the colony of Queensland;
(c) the firstnamed Defendant.
became obligated as trustees of a trust on behalf of;
(i) the Miriam people; and
(ii) the Plaintiffs and their predecessors in title.
31C. By reason of the existence of the fiduciary duty and of the trust the firstnamed Defendant is under an obligation to preserve and not to impair the rights of the Plaintiffs and their predecessors in title claimed herein.
31D The firstnamed Defendant now threatens and intends to breach and/or is now in breach of its fiduciary duty and of the trust.
PARTICULARS
The Plaintiffs refer to and repeat the contents of paragraph 15 above.
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31E By reason of the matters set forth in paragraphs 31A, 31B, 31C and 3tD above, the Plaintiffs have suffered or will suffer loss and damage.
PARTICULARS
The Plaintiffs refer to and repeat the particulars sub-joined to paragraph 15 above.
The Plaintiffs refer to and repeat the particulars sub-joined to paragraph 15 above.
32. Further or alternatively the firstnamed Defendant threatens and intends to take the steps referred to in paragraph 15 above for purposes other than the purposes of the Land Act 1962-1975 as amended of the firstnamed Defendant and firstnamed Defendant and for improper purposes.
PARTICULARS
The firstnamed Defendant's improper purposes are -
(a) to prevent the Miriam people and in particular the Plaintiffs from enjoying the benefits and the rights to which they are entitled pursuant to their
(i) ownership by custom
(ii) traditional native title;
(iii) usufructuary rights.
(b) to extinguish -
(i) the ownership by custom of the Miriam people and in particular of the Plaintiffs;
(ii) the traditional native title of the Miriam people and in particular of the Plaintiffs;
(iii) the usufructuary rights of the Miriam people and in particular of the Plaintiffs.
(c) to deprive the Miriam people and in particular the Plaintiffs of the benefits of government by their elected Island
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Council and of the operation of their Island Court concerning inter alia, the ownership, usage and occupation of their respective lands in accordance with their laws, customs, traditions and practices;
(d) to deprive the Miriam people and in particular the Plaintiffs of the benefits of the operation of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant, and of the relevant laws of the secondnamed Defendant set forth in paragraph 21 above;
(e) to deal with the said Islands and the Plaintiffs' respective lands as land free of any restrictions under any law and to grant interests therein which will extinguish or restrict the rights of the Miriam people and in particular of the Plaintiffs to own, possess and occupy and enjoy the use and benefits of the said Islands and the Plaintiffs' respective lands, and which will limit the security of their said rights;
(f) to deal with the said Islands and the Plaintiffs' respective lands contrary to the interests of the Miriam people and in particular of the Plaintiffs;
(g) to prevent the secondnamed Defendant from acquiring the Plaintiffs' respective lands on just terms pursuant to Section 51 (XXXI) of the Constitution .
33. This action is brought against the Commonwealth of Australia seeking declarations against the Commonwealth as a party and is a matter arising under the Constitution or involving its interpretation and is therefore a matters in which the High Court of Australia has jurisdiction pursuant to Section 75(iii) of the Constitution and Section 30 of the Judiciary Act 1903 of the Commonwealth of Australia.
AND THE PLAINTIFFS CLAIM :
A. A Declaration that the Plaintiffs are
(a) owners by custom:
(b) holders of traditional native title;
(c) holders of usufructuary rights
with respect to their respective lands.
23
B. A Declaration that -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands have not been impaired.
(BX) A declaration that :-
(a) the Miriam people; and/or
(b) the plaintiffs and their predecessors in title, are entitled to the protection of the rights claimed herein by reason of the fiduciary duty owed to them by the firstnamed defendant or by reason of the said trust.
(BY) A declaration that the firstnamed defendant was and is under a fiduciary duty owed to the plaintiffs and their predecessors in title or is a trustee on behalf of the plaintiffs in respect of the plaintiffs' rights claimed herein.
(BZ) A declaration that impairment of the rights claimed by the plaintiffs with respect to their respective areas would constitute a breach by the firstnamed Defendant of the said fiduciary duty or of the said trust.
C. (i) A Declaration that the firstnamed Defendant is not entitled to impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights of the Plaintiffs with respect to their respective lands.
(ii) Further or alternatively to C(i) above, a Declaration that the firstnamed Defendant is not entitled to impair -
(a) the ownership by custom;
(b) the traditional native title;
24
(c) the usufructuary rights. of the Plaintiffs with respect to their respective lands without compensation, otherwise than in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation.
(iii) Further or alternatively to C(i) and (ii) above a declaration that the Plaintiffs are entitled to compensation for any impairment of their rights in their respective lands.
D. A Declaration that the laws referred to in paragraph 15 above are inconsistent with the laws referred to in paragraph 21 above and are invalid to the extent of the inconsistency.
E A Declaration that the right to impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands is vested exclusively in, the secondnamed Defendant.
F. (i) A Declaration that a grant of the said Islands by the firstnamed Defendant by way of a Deed of grant in trust
under the Land Act 1962-1975 as amended of the
firstnamed Defendant would impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands
(ii) A Declaration that a grant of the said Islands by the firstnamed Defendant by way of a Deed of grant in trust under the Land act 1962-1975 as amended of the firstnamed Defendant, without compensation would impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
25
of the Plaintiffs with respect to their respective lands and would be unlawful in the absence of a law of Queensland which expressly provides for such impairment without the payment of compensation.
G A Declaration that the Plaintiffs are entitled to statutory rights of enjoyment and user in their respective lands which may not be impaired by the firstnamed Defendant without the payment of compensation in the absence of a law of Queensland which expressly provides for such impairment without the payment of compensation.
H. ( i ) An injunction to restrain the firstnamed Defendant from impairing
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands.
(ii) Further or alternatively to H(i) above, an injunction to restrain the firstnamed Defendant from impairing the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights of the Plaintiffs with respect to their respective lands, without compensation, otherwise that in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation.
I. ( i ) An injunction to restrain the firstnamed Defendant from taking any step pursuant to the Land Act 1962-1975 as amended of the firstnamed Defendant or otherwise to cause the said Islands to cease to be a Reserve or part thereafter the purposes of the said Act or for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 both of the secondnamed Defendant.
(ii) An injunction to restrain the firstnamed Defendant from taking any step pursuant to the Land Act 1962-1975 as amended of the firstnamed Defendant or otherwise to cause the said Islands to cease to be a Reserve or part thereof for the purposes of the said Act or for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 both of the secondnamed Defendant, without compensation, otherwise than in accordance with a law of Queensland which expressly provides for such conduct without the payment of compensation.
J. (i) An injunction to restrain the firstnamed Defendant from granting the said Islands by way of Deed of grant in trust under the Land Act 1962-1975 as amended of the firstnamed Defendant.
(ii) An injunction to restrain the firstnamed Defendant from granting the said Islands by way of Deed of grant in trust under the Land Act 1962-1975 as amended of the firstnamed Defendant without the payment of compensation to the Plaintiffs.
K. Damages for any impairment of the rights of the Plaintiffs with respect to their respective lands.
L Pursuant to paragraphs 28,29,30 and 31 above -
27
(a) a Declaration that the Defendants are obliged to act fairly towards the Plaintiffs and to accord to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice prior to taking any steps designed or intended to impair the -
(i) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
of the Plaintiffs with respect to their respective lands;
(b) an injunction restraining the firstnamed Defendant from taking any steps designed or intended to impair the -
(i) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
of the Plaintiffs with respect to their respective lands without first acting fairly towards the Plaintiffs and according to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice.
M. Pursuant to paragraph 32 above -
(a) a Declaration that the steps referred to in paragraph 15 above are steps which are taken for improper purposes and are ultra vires;
(b) an injunction to restrain the taking of the said steps for such improper purposes.
N A Declaration that insofar as the secondnamed Defendant has impaired -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands without compensation, such conduct amounts to an acquisition of property otherwise than on just terms and is beyond the power of the Secondnamed Defendant.
28
Q. Further or other relief.
Delivered the 20th day of June 1989.
A. R. Castan
B. A. Keon-Cohen
G.M.G. Mclntyre
See accompanying Diagram (8b)
Transaction B : 1913 - Government Reserve at Omar Extract from Murray Island Records, September, 1913 :
Plan of Government Reserve at Omar
The boundaries of this Reserve were defined between Basee's portion on the North East side, and on the South West portions belonging to her and Teebe In presence of Basee and Teebe. The following men were also present who knew the boundaries perfectly between the above portions of land. Basee and Teebe expressed themselves as satisfied with the boundaries defined and were present at the erection of the boundary posts and marking of trees on the lines. Names of men present who knew the boundaries. Pasee (Mamus) Jimmy Rice Snr., Wasalgee, Jimmy Day, Eroto, Pais, Teebe and J.S. Bruce.
North East boundaries : Commencing at the beach on the North West corner of the North East side of the Reserve (Omar) and bound thence on the North East side by Basee's portion, bearing South East and extending from the beach to right up the hill (Gelam), three posts and three trees are on the line marked thus ( (arrow points upwards)
South West boundaries - Commencing at the beach on the North West corner of the South West side of the Reserve (Omar) and bounded thence on the South West side by Basee's portion to the road, and thence by Teebe's portion from the road extending up the hill bearing South East. Three posts and two coconut trees are on the line marked thus ( (arrow points upwards)
See accompanying Diagram (8b)
MABO v. QUEENSLAND and THE COMMONWEALTH
SCHEDULE II S. 109 Provisions
Provisions of Commonwealth Law Conflicting Queensland Law
Racial Discrimination Act 1975 Land Act 1962 - 1981 (As amended
Ss. 9, 10 by Land Act (Aboriginal and
Islander Land Grants) Amendment
Act 1982; and Land Act
(Aboriginal and Islander Land
Grants) Amendment Act 1984
S. 5
S.334C
S.347A
S.350
S.352A
S.353A
S.358(5)
Land Act (Aboriginal and Islander
Land Grants) Amendment Act 1982,
S.21 coupled with Community
Services (Torres Strait) Act
1984 S.64
Land Act (Aboriginal and Islander
Land Grants) Amendment Act 1982,
S.22
Aboriginal and Torres Strait
Islanders (Queensland each of the above provisions
Discriminatory Laws) Act 1975,
Racial Discrimination Act 1975
Community Services (Torres Strait)
10; Act 1984
Aboriginal and Torres Strait S.5(7)
Islanders (Queensland S.Sl(l)
Discriminatory Laws) Act S.62
1975, S. 5 S.64
S.69
S.71
S.73
2.
Provisions of Commonwealth Law
Conflicting Queensland Law
Coastal waters (State Title)
Such of the provisions of the Land
Act 1980 S. 4(2)(a)
Act 1962-1984 (as amended by the
Land Act (Aborigina1 and Islander
land Grants) Amendment Act 1982;
and the Land Act (Aboriginal and
Islander Land Grants) Amendment
Act 1984, and of the Community
Services (Torres Strait) Act 1984
as purport to operate upon or
enable governmental action to
take effect in relation to those
parts of the Murray Islands
which consist of the surrounding
seas, seabeds and fringing reefs.
Torres Strait Treaty 1978,
Such of the provisions of the
enacted into law by the
Land Act 1962-1984 (as amended
The Torres Strait Fisheries Act
by the said Acts of 1982 and 1984)
1984 as purport to operate upon or
enable governmental action to take
effect in relation to the fisheries
in and the use of the seas, sea
beds and fringing reefs in the
protected zone, and in particular
surrounding the Murray Islands.
AT THE BRISBANE OFFICE OF THE REGISTRY
No. 12 of 1982
BETWEEN:
EDDIE MABO FIRST NAMED PLAINTIFF
CELUIA MAPO SALEE SECOND NAMED PLAINTIFF
SAM PASSI THIRD NAMED PLAINTIFF
DAVID PASSI FOURTH NAMED PLAINTIFF
JAMES RICE FIFTH NAMED PLAINTIFF
(who bring this action own their own behalf, and on behalf of the members of their respective family groups)
[Editor's Note: Celuia Mapo Salee and Sam Passi deleted. Amended by
of Moynihan Granted]
and
THE STATE OF QUEENSLAND and THE
COMMONWEALTH OF AUSTRALIA
Defendants
STATEMENT OF CLAIM AS AMENDED JUNE, 1989.
[Editor's Note: Amended by Len of Moynihan J. Granted 5.6.89]
1. Since time immemorial, the Torres Strait Islands of Mer (known as Murray), Dawar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets (hereinafter collectively referred to as "the said Islands") have been continuously inhabited and exclusively possessed by people called the Miriam people, who speak a distinct language of their own (the Miriam language), who are known as Murray Islanders and who are included in that group of people generally known as Torres Strait Islanders.
PARTICULARS
The said Islands are located in the Torres Strait at about 10 degrees latitude and 144 degrees longitude, are surrounded by reefs and comprise an area of land approximately 9 square kilometres.
FURTHER PARTICULARS
Further particulars are set forth at p 28 paragraph 74 and at
Annexure A of the Plaintiffs' Statement of Facts filed herein.
2
2. The Plaintiffs are Murray Islanders and are members of the Miriam people. The first, named Plaintiff is a descendant of the traditional leaders known as the "Aiets" of the Miriam people. The first Plaintiff is now the head of his family group. The fifth named Plaintiff was the Chairman of the Island Council of the said Islands. The Plaintiffs bring this action on their own behalf, and on behalf of the members of their respective family groups (hereinafter collectively referred to as "the Plaintiffs"). Further particulars are set forth at Annexure C of the Plaintiffs' Statement of Facts filed herein.
3. Since time immemorial, since 1879, since 1901 and since within living memory (hereinafter collectively referred to as since time immemorial) the Miriam people have continuously occupied, used and enjoyed the said Islands and resided on the said Islands in permanent settled communities with a social and political organisation of their own.
PARTICULARS
Since time immemorial the Miriam people have continuously and
to the exclusion of peoples other than themselves :-
(a) occupied, used and enjoyed, and benefited from the said
Islands;
(b) built and lived in permanent residences, housing individuals together with their immediate families, which were and are built in groups of houses, so as to constitute several villages situated on the islands of Mer and Dawar;
(c) made, planted, tilled, cultivated and harvested gardens permanently situated in particular areas of the said Islands;
(d) hunted wildlife in the uncultivated areas of the said Islands;
(e) harvested the produce of natural plants and vegetable life growing in the uncultivated areas of the said Islands;
(f) fished in the adjacent waters and harvested the natural produce of the sea in the reefs and waters of the sea surrounding the said Islands;
(g) used water from the said Islands for sustenance, medicinal and spiritual purposes;
(h) dug for and used stones, flints, clays, ochres and minerals on the said Islands;
(i) set aside areas and built shrines on the said Islands for the purposes of sacred, religious and spiritual activities and carried on such activities in such areas;
(j) set aside areas and built meeting places on the said Islands for the purposes of social and political organisation of the community;
(k) established and carried on a social and political organisation with community leaders and institutions that governed their affairs and that included therein a system of law and, inter alia, laws, customs, traditions and practices of their own for determining questions concerning:
( i ) the ordering of community life;
(ii) the ownership of and dealings with land, seas, seabeds and reefs;
(iii) the carrying on of agriculture, hunting and fishing;
(iv) social relationships;
(v) religious and spiritual activities; and
(I) carried on trade, commerce and intercourse with the inhabitants of Cape York, Papua New Guinea, islands in the Torres Strait and other neighbouring islands.
FURTHER PARTICULARS
Further particulars are set forth at :
p. 12 paragraph 32 of Volume 1 and document 50 in Volume 4;
p. 18 paragraph 50 of Volume 1 and document 2 in Volume 4;
p. 28 paragraph 75;
p. 29 paragraph 76;
pp. 30,31 paragraph 78 and Annexure D referred to therein;
p. 31 paragraph 79 and Annexure B referred to therein;
p. 79 paragraph 80 and Annexure ~ referred to therein;
pp. 31-32 paragraph 81 and Annexure B referred to therein;
pp. 36-41 paragraphs 92-106 and Annexures B,C, and D mentioned
therein;
4
pp. 43-45 paragraphs 114-116 and Annexure D mentioned therein; all of the Plaintiffs' Statement of Facts filed herein.
4. Since time immemorial the said laws, customs, traditions and practices of the Miriam people have included rights to land on the said Islands and rights to the sea and seabeds extending to the fringing reefs surrounding the said Islands, and to the Great Barrier Reef, and rights to the fringing reefs surrounding the said Islands, and to the Great Barrier Reef.
PARTICULARS
(a) There are numerous areas of land, sea, seabeds and reefs which are severally owned by particular family groups. Each of the said areas is vested collectively in a particular family group. The members of the said family groups have rights and duties in relation to their respective family group areas, including but not limited to the right and duty vested in the head from time to time of each family group of allocating portions of such areas to be used by the individual members of the respective family groups.
(b) There are numerous areas of land which are individually owned by separate members of the said family groups in their personal capacity, but which may be disposed of by them only to other members of their family group.
(c) There are some areas of land which are individually owned by the heads from time to time of certain family groups, and which are set aside for the conduct of particular religious and sacred practices of the Miriam people.
(d) There are some areas of land the use of which has been granted collectively to the Miriam people as a whole by individuals acting either on their own behalf or on behalf of family groups
(e) There are some areas of land that have been purportedly acquired by the firstnamed Defendant and others from individuals acting either on their own behalf or on behalf of family groups. Particulars of these transactions are set forth in Schedule 1 hereto; and in pp. 38-41, paragraphs 98-106 and Annexures B and D referred to therein of the Plaintiffs'
Statement of Facts filed herein.
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 32-36 paragraphs 83-91 and Annexure B and D mentioned
therein;
document 53A in Volume 4 filed herein;
pp. 41-43 at paragraphs 107-113 and Annexure D mentioned
therein;
and at pp. 25-26 paragraph 70,
all of the Plaintiffs' Statement of Facts filed herein.
5. According to the said laws, customs, traditions and practices since time immemorial, the Plaintiffs and their predecessors in title have owned and have had rights in, and Plaintiffs continue to own and have rights in, particular areas of land on the said Islands and particular parts of the surrounding sea and seabeds and surrounding reefs. Further, the Plaintiffs and their predecessors in title have continued without interruption to enjoy the ownership, use and occupation of such land, surrounding sea, seabeds and reefs and to have questions decided concerning the same, in accordance with the laws, customs, traditions and practices of the Miriam people.
PARTICULARS
(a) In respect of the firstnamed Plaintiff:
(i) as a member of the Mabo family group and on his own behalf as an individual, and as the head of his family group, all that area of land situate at Las on the island of Mer and known as "Eddie Mabo's portion";
6
(ii) as the successor to the Aiet of Mabo, the specific areas of land situate at Las on the island of Mer, which are set aside for religious and sacred practices.
(ii) in respect of the secondnamed Plaintiff :
[Editor's Note: (b) Deleted By Leave of Moynihan J. Granted 5.6.89]
(i) as the oldest living member of the family group of the
(iii) firstnamed Plaintiff and as his paternal aunt,
[Editor's Note: (i) and (iii)-part Deleted By Leave of Moynihan J. Granted 5.6.89]
(iii) cont'd
the land of the Mapo (Mabo) family group on the island of Mer at Korkor, Kieu, Utirib, Pairemed, tar, Niwe, Ugab, Jeum, Nimap, Baier, Maskep, Aeum, Sager, Las, Dam, Miear, Dure, Kebisaurem, Manini, Sebeg, Saurem, Lewag, Umargiz, Kosmed, Mabadmop, Parbid, Semar, Ebir, and Ulag together with the sea, seabed and stone fishtrap extending from the land as Las to the fringing reef, and the Great Barrier Reef.
(ii) as the descendants of her mother, the lands of the Goi
(iv) family group
[Editor's Note: (ii) and (iv)-part Deleted By Leave of Moynihan J. Granted 5.6.89]
(iv) cont'd
on the island of Mer at Eum, Ai, Baugerid, Tabeb,
Sebeg and Kakusare.
(iii) In respect of the thirdnamed Plaintiff :
(i) as a member of the Passi family group and on his own behalf as an individual, and as the head of his family group, lands situate at Zomarid (Zomared) on the islands of Mer;
(ii) as the successor to the Aiet of Dawar, the lands situate on the island of Dawar in the areas known as Giar and Tig, being approximately half the land area of the island, together with the beach, the reef and the sea and seabed extending to the reefs, fringing the island of Mer;
(iii) as the successor to the Aiet of Dawar the lands situate on the Island of Waier, being the sand spit called Waier, the beaches and waters of the crescent bay called Neh, and the land called Ziei-Gerz, being approximately half the land area of the island of Waier.
[Editor's Note: (c) (i) (ii) and (iii) Deleted By Leave of Moynihan J. Granted 5.6.89]
7
(d) In respect of the fourthnamed Plaintiff as :
(W) a member of the Passi family group;
(X) on his own behalf as an individual;
(Y) as the younger brother of Sam Passi:
(i) lands situate at Zomared on the island of Mer;
(ii) the lands situate on the island of Dawar in the areas known as Giar and Tig, being approximately half the land area of the island, together with the beach, the reef and the sea and seabed extending to the reefs, fringing the island of Dawar;
(iii) the lands situate on the island of Waier, being the sand spit called Waier, the beaches and water of the crescent bay called Neh, and the land called Ziei-Gerz, being approximately half the land area of the island of Waier.
(e) In respect of the fifthnamed Plaintiff:
(i)as a patrilineal descendant of the Dawar family group, land situate on the island of Dawar in the area known as Aepkess [and Dadamud] together with the adjoining seas and seabed as far as [and including] the fringing reef;
[Editor's Note: Amendment pursuant to leave of Moynihan J. 8.6.89]
(ii) as a descendant of the Magaram family group through his grandfather, land situate on the island of Mer in the area known as Bazmet;
(iii) as a descendant of the Komet family group through his great-great-grandmother, two portions of land situate on the island of Mer in the areas known as Korog and Dei-mi.
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 29-30 paragraph 77 and Annexure B referred to therein;
and at p.32 paragraph 82 and Annexure B referred to therein,
all of the Plaintiffs' Statement of Facts filed herein.
8
all of the Plaintiffs' Statement of Facts filed herein.
6. In or about 1879, the peoples referred to in paragraph 3(1) above and Her Majesty Queen Victoria, and Her Colonies, and the International Community of Nations, dealt with the Miriam people, and recognised the rule of the Miriam people over the said Islands and recognised the said laws, customs, traditions and practices of the Miriam people, and further recognised that the Miriam people, since time immemorial had been and still were the rulers, owners, possessors and occupiers and were entitled to the use, enjoyment and benefits of the said Islands.
PARTICULARS
Particulars of dealings and recognition are set forth at:
pp. 1-7, paragraphs 1-16 of the Plaintiffs' Statement of Facts
filed herein;
and at source documents 1-30, and 50 in Volume 4 of the
Plaintiffs' Statement of Facts filed herein.
7. By letters patent passed by Her Majesty Queen Victoria on or about 10th October, 1878, and by the provisions of the Queensland Coast Islands Act 1879 passed by the Legislature of the Colony of Queensland and by a proclamation of the Governor of Queensland made on or about 18th July 1879, and by naval act of war on or about 10th November, 1879, and by the provisions of the Colonial Boundaries Act, 1895 of the Imperial Parliament, the said Islands were annexed to and became part of the Colony of Queensland from 1st August, 1879 and became subject to the laws in force therein.
PARTICULARS
Further particulars are set forth at:
p. 7, paragraphs 17,18 and 19, of the Plaintiffs' Statement of Facts filed herein;
and at source documents 20,26,30,31,31A,32 in Volume 4 of the Plaintiffs' Statement of Facts filed herein.
9
8. Upon such annexation the inhabitants of the said Islands including the predecessors in title of the Plaintiffs became British subjects.
9 The sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by conquest.
PARTICULARS
Further particulars are set forth at;
p 7, paragraph 19 of the Plaintiffs' Statement of Facts filed
herein,
and in source documents 31, 31A and 32 in Volume 4 of the
Plaintiffs' Statement of Facts filed herein.
10. In the alternative the sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by discovery followed by settlement.
11. In the further alternative the sovereignty of Her Majesty Queen Victoria was thereby extended to the said Islands by cession.
12. Her Majesty Queen Victoria as International Sovereign extended Her sovereignty over the whole of the said Islands subject to the rights of the Miriam people and in particular subject to the rights of the predecessors in title of the Plaintiffs to the continued enjoyment of their rights in their respective lands, seas, seabeds and reefs (all hereinafter called "lands") according to -
(a) their local custom (hereinafter called "ownership by custom");
(b) their original native ownership (hereinafter called "traditional native tittle");
(c) their actual possession, use and enjoyment of the said Islands (hereinafter called usufructuary rights")
until such time as the said -
10
(j) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
were lawfully extinguished, purchased, acquired, interfered with, derogated from, disturbed, detracted from, subjected to inconsistent action, or surrendered (all of which are hereinafter referred to as "impaired").
13. Further, since the extension of sovereignty as aforesaid, the said rights of the Miriam people and in particular of the Plaintiffs and their predecessors in title have been recognised and continued by Her Majesty Queen Victoria and by Her successors in title and by the Colony of Queensland and by the Defendants.
PARTICULARS,
(a) Recognition and continuation of the said rights by Her Majesty Queen Victoria and Her successors in title occurred by the constituting of a local Island Court of the Miriam people and the conduct of its proceedings which from time to time included, inter alia, resolution of disputes concerning land, and by the conduct of the administration of the affairs of the Miriam people, all in accordance with their laws, customs, traditions and practices.
(b) Recognition and continuation of the said rights by the Colony of Queensland is provided (inter alia) by the provisions of each of the following Acts of the Colony of Queensland namely:
Pacific Islanders Protection Act 1872-5, Crown Lands Act 1884, Aboriginals Protection and Restriction of Sale of Opium Act 1897,
and is further provided by the matters set out in particular
(a) above and in the following further particulars.
11
FURTHER PARTICULARS
Further particulars are found at:
pp. 7-10 paragraphs 21-27 in Volume 1 and in source
documents 15, 16, 17, 33-45 in Volume 4 of the Plaintiff's
Statement of Facts filed herein;
and in pp.10-12, paragraphs 29-30 in Volume 1 and source
documents 2, 46-49 in Volume 4 of the Plaintiffs'
Statement of Facts filed herein;
and in pp.12-15, paragraphs 32-37 in Volume 1 and in
source documents 29, 50-54 in the Plaintiffs' Statement of
Facts filed herein.
(c) Recognition and continuation of the said rights by the firstnamed Defendant is provided (inter alia) by -
(i) the provisions of each of the following Acts, Regulations and By-laws of the firstnamed Defendant, namely : Torres Strait Islanders Act 1971-1979 as amended, Torres Strait Islanders Regulations of 1972 as amended, Torres Strait Islanders Local Community By-laws as amended and the preceding Acts, Regulations and By-laws respectively relating to the subject matter of the said Acts, Regulations and By-laws;
PARTICULARS
Further particulars are set forth in: pp. 24-25, paragraphs 65, 86 in the Plaintiffs' Statement of Facts filed herein; and at p.25, paragraph 69(a)(b) in Volume 1 and at source documents 74 and 75 of Volume 4 all of the Plaintiffs' Statement of Facts filed herein;
12
(ii) the establishment and administration of the local Island Court of the Miriam people and the conduct of its proceedings, which from time to time included (inter alia) resolution of disputes concerning land, and the conduct of the administration of the affairs of the Miriam people, all in accordance with the laws, customs, traditions and practices of the Miriam people;(iii) the setting aside of the said Islands as an area reserved for the benefit of the Miriam people;
( iv) transactions in land including, inter alia, those referred to in paragraph 4(e) herein, particulars of which are set forth in Schedule 1 hereto;
FURTHER PARTICULARS
Further particulars are set forth at:
pp. 15-18, paragraphs 38-49 in Volume 1, and at
documents 2g, 49, 55-63 of Volume 4 and in Annexure
D referred to therein, all of the Plaintiffs' Statement
of Facts filed herein;
and at pp.18-22, paragraphs 51-61 in Volume 1, and at
documents 13, 29, 32, 64, 65, 66, 67 in Volume 4 and
at Annexure D referred to therein all of the Plaintiffs'
Statement of Facts filed herein;
and at pp. 23-24, paragraph 63 in Volume 1 and
documents 22 and 70 of Volume 4 all of the Plaintiffs'
Statement of Facts filed herein.
(d) Recognition and continuation of the said rights by the secondnamed Defendant is provided (inter alia) by the provisions of each of the Acts mentioned in paragraph 21 below and by the provisions of the Torres Strait Treaty 1978 and by the provisions of the Torres Strait Fisheries Act 1984., as amended.
PARTICULARS
Particulars concerning the Torres Strait Treaty are set
forth at:
pp. 23-24, paragraphs 62 and 64 in Volume 1 and at
documents 22, 68, 69;
and at documents 2, 22, 71 and 72 in Volume 4 all of the
Plaintiffs' Statement of Facts filed herein;
and at p.26, paragraph 70A in Volume 1 and at document 77 of Volume 4 all of the Plaintiffs' Statement of Facts filed herein; and at pp.26-27, paragraph 71;
and at p.28, paragraph 73 all in Volume 1;
and at document 78 in Volume 4 all of the Plaintiffs'
Statement of Facts filed herein.
14. Save for the areas referred to in paragraph 4(e) hereof the -
(a) ownership by custom
(b) traditional native title;
(c) usufructuary rights
of the Miriam people and in particular of the Plaintiffs and their predecessors in title continued and have not been impaired by Her Majesty Queen Victoria or by any of Her successors in title or by the Colony of Queensland or by the Defendants since the extension of sovereignty as aforesaid.
15. The firstnamed Defendant now denies the existence of the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights
of the Miriam people and in particular of the Plaintiffs and their predecessors in title, and threatens and intends to impair their said rights unless restrained by this Honourable Court.
14
PARTICULARS
(a) The said Islands are now included in that area reserved for the benefit of Torres Strait Islanders pursuant to the provisions of the Land Act 1962-1975 as amended and the relevant preceding legislation of the firstnamed Defendant.
(b) By the provisions of the Torres Strait Islanders Act 1971 as amended and the Community Services (Torres Strait) Act 1984 and the Regulations and By-laws thereunder of the firstnamed Defendant and by the provisions of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 of the secondnamed Defendant and by the provisions of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 of the secondnamed Defendant and by the provisions of the other Acts referred to in paragraph 21 below, and by the provisions of the Torres Strait Treaty 1978 the Miriam people are now entitled inter alia -
(i) to be and are governed by an elected Island Council which is charged with the good rule and government of the said Islands in accordance with the customs and practices of the Miriam people;
(ii) to constitute and operate an Island Court in accordance with the customs and practices of the Miriam people; and
(iii) to the other rights and benefits thereby provided including but not limited to the rights and benefits set outIn paragraphs 1 to 6 hereof.
(c) The firstnamed Defendant now threatens and intends -
(i) to take steps pursuant to Section 334 of the Land Act 1962-1975 as amended and in particular as amended by the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 of the firstnamed Defendant, and pursuant to the provisions of the Community : Services (Torres Strait) Act 1984 to cause the said 15 Islands to cease to be a Reserve for the purposes of the said Acts and for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant, and for the purposes of the Acts of the secondnamed Defendant set forth in paragraph 21 below;
(ii) thereafter to grant the said Islands by way of deed of grant in trust to a Council under Section 334 of the Land Act 1962-1975 as amended of the firstnamed Defendant and in accordance with the provisions of the Community Services (Torres Strait) Act 1984 with power to lease the lands now reserved for the benefit of the Plaintiffs, thereby preventing the Miriam people and in particular the Plaintiffs from residing on the lands presently reserved for their benefit for more than one month without the permission of the Minister for lands pursuant to Section 350 of the Land Act 1962-1975 as amended;
(iii) to deal with the said Islands free of any reservation for the benefit of and without regard to the rights of the Miriam people in particular without regard to the rights of the Plaintiffs incident to their -
(w) ownership by custom;
(x) traditional native title;
(y) usufructuary rights;
(z) rights created by the said legislation.
PARTICULARS
Particulars are set forth at p.25, paragraph 68 of the
Plaintiff's Statement of Facts filed herein.
16 The power of the firstnamed Defendant to so impair the said rights of the Miriam, people and in particular the said rights of the Plaintiffs and their predecessors in title were and are exercisable only pursuant to express statutory authority conferring such a power of impairment.
16
17. Further' the Plaintiffs and their predecessors in title were and are entitled to payment of compensation for any such impairment pursuant to any such express statutory authority in the absence of express statutory provisions denying their entitlement to such compensation.
18. The firstnamed Defendant has not enacted any laws of the kind referred to in paragraphs 16 and 17 above.
19. In the premises, the firstnamed Defendant was and is not now empowered to impair the rights of the Miriam people and in particular of the Plaintiffs.
20. Alternatively, in the premises the Plaintiffs are entitled to compensation for any impairment of their said rights.
21. Further or alternatively to paragraphs 16 to 20 above, the secondnamed Defendant has passed laws and taken steps relating to the rights and interests of the Plaintiffs in their said lands and any law of Queensland dealing with the said matters is invalid to the extent of any inconsistency, by reason of the provisions of Section 109 of the Constitution.
PARTICULARS
Repatriation (Torres Strait Islanders) Act 1972
Aboriginal Affairs (Arrangements with the States) Act 1973.
Aboriginal Land Fund Act 1974.
Aboriginal Loans Commission Act 1974.
Racial Discrimination Act 1975.
Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975.
Aboriginal Councils and Associations Act 1976.
Aboriginal Land Rights (Northern Territory) Act 1976.
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978.
Torres Strait Treaty 1978.
17
Coastal Waters (State Title)Act 1980.
Aboriginal Development Commission Act 1980.
Torres Strait Treaty (Miscellaneous Amendments) Act 1984.
Torres Strait Fisheries Act 1984.
22. The laws pursuant to which the firstnamed Defendant proposes to take the steps referred to in paragraph 15 above are inconsistent with the laws of the Commonwealth referred to in paragraph 21 above and are invalid by reason of the provisions of Section 109 of the Constitution.
PARTICULARS
The Plaintiffs refer to Schedule 11 annexed hereto
23. Further or alternatively to paragraphs 16 to 20 above and to paragraphs 21 and 22 above, the power to impair the said rights of the Plaintiffs and their predecessors in title was vested solely in Her Majesty Queen Victoria as international sovereign and Her successors in title as such international sovereign.
24. The secondnarned Defendant and only the secondnamed Defendant became the successor in title as international sovereign for the said purposes.
PARTICULARS
(a) The secondnamed Defendant became the successor as aforesaid on 1st January 1901.
(b) In the alternative the secondnamed Defendant became the successor as aforesaid on 9th October, 1942 by reason of the coming into effect of the provisions of the Statute of Westminster Adoption Act 1942 of the secondnamed Defendant whereby the Statute of Westminster 1931 of the Imperial Parliament was adopted by the secondnamed Defendant.
(c) In the further alternative the secondnamed Defendant became the successor as aforesaid on 10th August, 1967 by
18
reason of the coming into effect of the provisions of the Constitution Alteration (Aboriginals) Act 1967 of the secondnamed Defendant and the consequent alteration of the Constitution.
(d) In the further alternative the secondnamed Defendant became the successor as aforesaid by reason of the coming into effect of the provisions of each of the Acts of Parliament of the secondnamed Defendant set forth in paragraph 21 above.
(e) In the further alternative the secondnamed Defendant became the successor in title as aforesaid by the negotiation and signing of the Torres Strait Treaty 1978 between the secondnamed Defendant and Papua New Guinea which was signed at Sydney on 18th December, 1978, and in particular by reason of the provisions inter alia of Articles 10 to 20 inclusive thereof.
PARTICULARS
Particulars are set forth at p.27, paragraph 72 of the Plaintiffs' Statement of Facts filed herein.
25. The powers of the secondnamed Defendant referred to in paragraph 24 above were and are exercisable only pursuant to express statutory authority conferring such powers.
26. Further to paragraph 25 above the Plaintiffs and their predecessors in title are entitled to payment of compensation on just terms pursuant to any Such express statutory authority by reason of the provisions of Section 51(XXXI) of the Constitution.
27 By reason of the matters set forth in paragraphs 23 to 26 above, the firstnamed Defendant is not empowered to make the laws or take the steps referred to in paragraph 15 above, or otherwise impair the Plaintiffs' said rights.
28 Further or alternatively to paragraphs 16 to 20 above and to paragraphs 21 and 22 above and to paragraphs 23 to 27 above,
Her
19
Majesty Queen Victoria and Her Successors in title and the Colony of Queensland and the Defendants have represented by their conduct and otherwise to the Miriam people and in particular to the Plaintiffs and their predecessors in title that they recognised and continued the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights of the Miriam people and in particular of the Plaintiffs and their predecessors in title.
PARTICULARS
The Plaintiffs refer to and repeat the particulars under paragraph 13 above.
29. In the premises, the Plaintiffs had a reasonable and legitimate expectation that their:
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights.
would be recognised and continued and that no step would be taken to impair the same.
30. In the premises, the Defendants are obliged to act fairly towards the Plaintiffs and to accord to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice and in particular the firstnamed Defendant is required so to act prior to taking the steps referred to in paragraph 15 above.
31. The firstnamed Defendant threatens and intends to take the steps referred to in paragraph 15 above without acting fairly towards the Plaintiffs and without according to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice.
20
31A Further, by reason of the matters referred in paragraphs 1-21 and 28-31 hereof;
(a) Her Majesty, Queen Victoria and her successors in title;
(b) the colony of Queensland;
(c) the firstnamed Defendant;
were and are under a fiduciary duty owed to
(i) the Miriam people, and
(ii) the Plaintiffs and their predecessors in title.
31B. Alternatively, by reason of the matters referred to in paragraphs 1-21 and 28-31 hereof;
(a) Her Majesty, Queen Victoria and her successors in title;
(b) the colony of Queensland;
(c) the firstnamed Defendant.
became obligated as trustees of a trust on behalf of;
(i) the Miriam people; and
(ii) the Plaintiffs and their predecessors in title.
31C. By reason of the existence of the fiduciary duty and of the trust the firstnamed Defendant is under an obligation to preserve and not to impair the rights of the Plaintiffs and their predecessors in title claimed herein.
31D The firstnamed Defendant now threatens and intends to breach and/or is now in breach of its fiduciary duty and of the trust.
PARTICULARS
The Plaintiffs refer to and repeat the contents of paragraph 15 above.
21
31E By reason of the matters set forth in paragraphs 31A, 31B, 31C and 3tD above, the Plaintiffs have suffered or will suffer loss and damage.
PARTICULARS
The Plaintiffs refer to and repeat the particulars sub-joined to paragraph 15 above.
The Plaintiffs refer to and repeat the particulars sub-joined to paragraph 15 above.
32. Further or alternatively the firstnamed Defendant threatens and intends to take the steps referred to in paragraph 15 above for purposes other than the purposes of the Land Act 1962-1975 as amended of the firstnamed Defendant and firstnamed Defendant and for improper purposes.
PARTICULARS
The firstnamed Defendant's improper purposes are -
(a) to prevent the Miriam people and in particular the Plaintiffs from enjoying the benefits and the rights to which they are entitled pursuant to their
(i) ownership by custom
(ii) traditional native title;
(iii) usufructuary rights.
(b) to extinguish -
(i) the ownership by custom of the Miriam people and in particular of the Plaintiffs;
(ii) the traditional native title of the Miriam people and in particular of the Plaintiffs;
(iii) the usufructuary rights of the Miriam people and in particular of the Plaintiffs.
(c) to deprive the Miriam people and in particular the Plaintiffs of the benefits of government by their elected Island
22
Council and of the operation of their Island Court concerning inter alia, the ownership, usage and occupation of their respective lands in accordance with their laws, customs, traditions and practices;
(d) to deprive the Miriam people and in particular the Plaintiffs of the benefits of the operation of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant, and of the relevant laws of the secondnamed Defendant set forth in paragraph 21 above;
(e) to deal with the said Islands and the Plaintiffs' respective lands as land free of any restrictions under any law and to grant interests therein which will extinguish or restrict the rights of the Miriam people and in particular of the Plaintiffs to own, possess and occupy and enjoy the use and benefits of the said Islands and the Plaintiffs' respective lands, and which will limit the security of their said rights;
(f) to deal with the said Islands and the Plaintiffs' respective lands contrary to the interests of the Miriam people and in particular of the Plaintiffs;
(g) to prevent the secondnamed Defendant from acquiring the Plaintiffs' respective lands on just terms pursuant to Section 51 (XXXI) of the Constitution .
33. This action is brought against the Commonwealth of Australia seeking declarations against the Commonwealth as a party and is a matter arising under the Constitution or involving its interpretation and is therefore a matters in which the High Court of Australia has jurisdiction pursuant to Section 75(iii) of the Constitution and Section 30 of the Judiciary Act 1903 of the Commonwealth of Australia.
AND THE PLAINTIFFS CLAIM :
A. A Declaration that the Plaintiffs are
(a) owners by custom:
(b) holders of traditional native title;
(c) holders of usufructuary rights
with respect to their respective lands.
23
B. A Declaration that -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands have not been impaired.
(BX) A declaration that :-
(a) the Miriam people; and/or
(b) the plaintiffs and their predecessors in title, are entitled to the protection of the rights claimed herein by reason of the fiduciary duty owed to them by the firstnamed defendant or by reason of the said trust.
(BY) A declaration that the firstnamed defendant was and is under a fiduciary duty owed to the plaintiffs and their predecessors in title or is a trustee on behalf of the plaintiffs in respect of the plaintiffs' rights claimed herein.
(BZ) A declaration that impairment of the rights claimed by the plaintiffs with respect to their respective areas would constitute a breach by the firstnamed Defendant of the said fiduciary duty or of the said trust.
C. (i) A Declaration that the firstnamed Defendant is not entitled to impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights of the Plaintiffs with respect to their respective lands.
(ii) Further or alternatively to C(i) above, a Declaration that the firstnamed Defendant is not entitled to impair -
(a) the ownership by custom;
(b) the traditional native title;
24
(c) the usufructuary rights. of the Plaintiffs with respect to their respective lands without compensation, otherwise than in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation.
(iii) Further or alternatively to C(i) and (ii) above a declaration that the Plaintiffs are entitled to compensation for any impairment of their rights in their respective lands.
D. A Declaration that the laws referred to in paragraph 15 above are inconsistent with the laws referred to in paragraph 21 above and are invalid to the extent of the inconsistency.
E A Declaration that the right to impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands is vested exclusively in, the secondnamed Defendant.
F. (i) A Declaration that a grant of the said Islands by the firstnamed Defendant by way of a Deed of grant in trust
under the Land Act 1962-1975 as amended of the
firstnamed Defendant would impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands
(ii) A Declaration that a grant of the said Islands by the firstnamed Defendant by way of a Deed of grant in trust under the Land act 1962-1975 as amended of the firstnamed Defendant, without compensation would impair -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
25
of the Plaintiffs with respect to their respective lands and would be unlawful in the absence of a law of Queensland which expressly provides for such impairment without the payment of compensation.
G A Declaration that the Plaintiffs are entitled to statutory rights of enjoyment and user in their respective lands which may not be impaired by the firstnamed Defendant without the payment of compensation in the absence of a law of Queensland which expressly provides for such impairment without the payment of compensation.
H. ( i ) An injunction to restrain the firstnamed Defendant from impairing
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands.
(ii) Further or alternatively to H(i) above, an injunction to restrain the firstnamed Defendant from impairing the -
(a) ownership by custom;
(b) traditional native title;
(c) usufructuary rights of the Plaintiffs with respect to their respective lands, without compensation, otherwise that in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation.
I. ( i ) An injunction to restrain the firstnamed Defendant from taking any step pursuant to the Land Act 1962-1975 as amended of the firstnamed Defendant or otherwise to cause the said Islands to cease to be a Reserve or part thereafter the purposes of the said Act or for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 both of the secondnamed Defendant.
(ii) An injunction to restrain the firstnamed Defendant from taking any step pursuant to the Land Act 1962-1975 as amended of the firstnamed Defendant or otherwise to cause the said Islands to cease to be a Reserve or part thereof for the purposes of the said Act or for the purposes of the Torres Strait Islanders Act 1971 as amended of the firstnamed Defendant or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 both of the secondnamed Defendant, without compensation, otherwise than in accordance with a law of Queensland which expressly provides for such conduct without the payment of compensation.
J. (i) An injunction to restrain the firstnamed Defendant from granting the said Islands by way of Deed of grant in trust under the Land Act 1962-1975 as amended of the firstnamed Defendant.
(ii) An injunction to restrain the firstnamed Defendant from granting the said Islands by way of Deed of grant in trust under the Land Act 1962-1975 as amended of the firstnamed Defendant without the payment of compensation to the Plaintiffs.
K. Damages for any impairment of the rights of the Plaintiffs with respect to their respective lands.
L Pursuant to paragraphs 28,29,30 and 31 above -
27
(a) a Declaration that the Defendants are obliged to act fairly towards the Plaintiffs and to accord to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice prior to taking any steps designed or intended to impair the -
(i) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
of the Plaintiffs with respect to their respective lands;
(b) an injunction restraining the firstnamed Defendant from taking any steps designed or intended to impair the -
(i) ownership by custom;
(ii) traditional native title;
(iii) usufructuary rights
of the Plaintiffs with respect to their respective lands without first acting fairly towards the Plaintiffs and according to the Plaintiffs the right to be heard and other rights in accordance with the principles of natural justice.
M. Pursuant to paragraph 32 above -
(a) a Declaration that the steps referred to in paragraph 15 above are steps which are taken for improper purposes and are ultra vires;
(b) an injunction to restrain the taking of the said steps for such improper purposes.
N A Declaration that insofar as the secondnamed Defendant has impaired -
(a) the ownership by custom;
(b) the traditional native title;
(c) the usufructuary rights
of the Plaintiffs with respect to their respective lands without compensation, such conduct amounts to an acquisition of property otherwise than on just terms and is beyond the power of the Secondnamed Defendant.
28
Q. Further or other relief.
Delivered the 20th day of June 1989.
A. R. Castan
B. A. Keon-Cohen
G.M.G. Mclntyre
See accompanying Diagram (8b)
Transaction B : 1913 - Government Reserve at Omar Extract from Murray Island Records, September, 1913 :
Plan of Government Reserve at Omar
The boundaries of this Reserve were defined between Basee's portion on the North East side, and on the South West portions belonging to her and Teebe In presence of Basee and Teebe. The following men were also present who knew the boundaries perfectly between the above portions of land. Basee and Teebe expressed themselves as satisfied with the boundaries defined and were present at the erection of the boundary posts and marking of trees on the lines. Names of men present who knew the boundaries. Pasee (Mamus) Jimmy Rice Snr., Wasalgee, Jimmy Day, Eroto, Pais, Teebe and J.S. Bruce.
North East boundaries : Commencing at the beach on the North West corner of the North East side of the Reserve (Omar) and bound thence on the North East side by Basee's portion, bearing South East and extending from the beach to right up the hill (Gelam), three posts and three trees are on the line marked thus ( (arrow points upwards)
South West boundaries - Commencing at the beach on the North West corner of the South West side of the Reserve (Omar) and bounded thence on the South West side by Basee's portion to the road, and thence by Teebe's portion from the road extending up the hill bearing South East. Three posts and two coconut trees are on the line marked thus ( (arrow points upwards)
See accompanying Diagram (8b)
MABO v. QUEENSLAND and THE COMMONWEALTH
SCHEDULE II S. 109 Provisions
Provisions of Commonwealth Law Conflicting Queensland Law
Racial Discrimination Act 1975 Land Act 1962 - 1981 (As amended
Ss. 9, 10 by Land Act (Aboriginal and
Islander Land Grants) Amendment
Act 1982; and Land Act
(Aboriginal and Islander Land
Grants) Amendment Act 1984
S. 5
S.334C
S.347A
S.350
S.352A
S.353A
S.358(5)
Land Act (Aboriginal and Islander
Land Grants) Amendment Act 1982,
S.21 coupled with Community
Services (Torres Strait) Act
1984 S.64
Land Act (Aboriginal and Islander
Land Grants) Amendment Act 1982,
S.22
Aboriginal and Torres Strait
Islanders (Queensland each of the above provisions
Discriminatory Laws) Act 1975,
Racial Discrimination Act 1975
Community Services (Torres Strait)
10; Act 1984
Aboriginal and Torres Strait S.5(7)
Islanders (Queensland S.Sl(l)
Discriminatory Laws) Act S.62
1975, S. 5 S.64
S.69
S.71
S.73
2.
Provisions of Commonwealth Law
Conflicting Queensland Law
Coastal waters (State Title)
Such of the provisions of the Land
Act 1980 S. 4(2)(a)
Act 1962-1984 (as amended by the
Land Act (Aborigina1 and Islander
land Grants) Amendment Act 1982;
and the Land Act (Aboriginal and
Islander Land Grants) Amendment
Act 1984, and of the Community
Services (Torres Strait) Act 1984
as purport to operate upon or
enable governmental action to
take effect in relation to those
parts of the Murray Islands
which consist of the surrounding
seas, seabeds and fringing reefs.
Torres Strait Treaty 1978,
Such of the provisions of the
enacted into law by the
Land Act 1962-1984 (as amended
The Torres Strait Fisheries Act
by the said Acts of 1982 and 1984)
1984 as purport to operate upon or
enable governmental action to take
effect in relation to the fisheries
in and the use of the seas, sea
beds and fringing reefs in the
protected zone, and in particular
surrounding the Murray Islands.
Keywords: claim, claim, High Court of Australia, land ownership, Mabo Case, Mer, Statement of Claim, 1989
Statement of claim as amended June 1989. High Court of Australia, Brisbane registry.