Order Of The Court
The Full Court, comprising seven Judges, had decided the case. The lead judgment was written by Justice Brennan, with whom Chief Justice Mason and Justice McHugh agreed. Justices Deane and Gaudron gave a separate joint judgment. Justice Toohey also wrote a separate judgment, as did Justice Dawson who dissented from the order of the Court..
The Order of the Court was a declaration which reads as follows:
'(1) That the land in the Murray Islands is not Crown land within the meaning of that term in s.5 of the Land Act 1962 (Q).
(2) That the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer except for that parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have been validly appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of Meriam people under native title.
(3) That the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.'
[(1992) 175 C.L.R. 1 at 76]
There were some discrepancies between the majority, principally regarding the basis on which compensation might be payable where the Crown extinguishes native title. But all six majority Judges agreed:
* That the concept of native title can be recognised under the common law of Australia;
* That the content of native title and the identification of native title holders is ascertained according to the laws and customs of the indigenous people connected to the land;
* That on the acquisition of sovereignty the Crown obtained an underlying ('radical') title to the land within the Colony;
* That the acquisition of sovereignty did not itself extinguish native title;
* That the Crown is able to extinguish native title, provided that the extinguishment is effected by a valid exercise of government power which reveals a clear and plain intention to extinguish.
The Order of the Court was a declaration which reads as follows:
'(1) That the land in the Murray Islands is not Crown land within the meaning of that term in s.5 of the Land Act 1962 (Q).
(2) That the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer except for that parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have been validly appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of Meriam people under native title.
(3) That the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.'
[(1992) 175 C.L.R. 1 at 76]
There were some discrepancies between the majority, principally regarding the basis on which compensation might be payable where the Crown extinguishes native title. But all six majority Judges agreed:
* That the concept of native title can be recognised under the common law of Australia;
* That the content of native title and the identification of native title holders is ascertained according to the laws and customs of the indigenous people connected to the land;
* That on the acquisition of sovereignty the Crown obtained an underlying ('radical') title to the land within the Colony;
* That the acquisition of sovereignty did not itself extinguish native title;
* That the Crown is able to extinguish native title, provided that the extinguishment is effected by a valid exercise of government power which reveals a clear and plain intention to extinguish.
Keywords: Brennan, Justice Gerard, crown land, Dawson, Justice, Deane, Sir William, Gaudron, Justice Mary, High Court judgement, High Court of Australia, Mabo judgement, Mabo v Queensland No.2, Mason, Chief Justice Anthony, McHugh, Justice Michael, Mer, native title, Order of the Court, Toohey, Justice , 1992
(1992) 175 CLR 1, p 76.
Author: Kenna, Jonathan
Author: Kenna, Jonathan