Plaintiffs' final submissions
This was not a case in which the High Court would hear fresh evidence. It was to decide the questions of law on the basis of the findings of Justice Moynihan and the final legal submissions of the parties.
The plaintiffs' legal team bunkered down in intense preparation of their final submissions for this ultimate hearing. Finally, in April 1991, after weeks of exhausting work, the six volumes of written submissions were finalised and filed in the High Court. The index alone runs to 24 Pages and provides an insight into the breadth and detail of the argument:
114 (i)
MABO v. OUEENSLAND (No. I and No. 2)
LITIGATION MATERIALS: 1982-1992
VOLUME SIXTY THREE
PLAINTIFFS' WRITTEN SUBMISSION TO HIGH COURT: APRIL 1991
(6 vols)
114 - (ii)
CONTENTS
Plaintiffs' Comprehensive Written Submissions to High Court: April 1991:
(6 Vols)
114 - (ii)
MABO v. QUEENSLAND
PLAINTIFFS COMPREHENSIVE WRITTEN SUBMISSIONS
TABLE OF CONTENTS
VOLUME 1
Doc Description Page No.
Chapter 1. Summary of Plaintiffs' Contentions. I - 5
Chapter 2. The Factual Background.
Part A. Location and Description. 6 - 8
Part B. Recorded History. 9 - 46
Part C. Murray Island People and Society. 47 - 79
Annexures:
(1) Ex 20, Haddon's Reports of the Cambridge Anthropological Expeditions to Torres Strait. per Wilkin. Ch VII
80 - 83
(2) Transcript of Evidence of J R Beckett
84 - 269
VOLUME 2
Chapter 2 The Factual Background (Cont)
Part D. Land tenure on the Murray Islands. 270 - 291
Annexures:-
(l) Ex 214, Miriam Land Tenure by Jeremy Beckett 292 - 308
(2) Ex 20, Haddon, Vol 6 Ch9 309 - 314
pp 163-8
(3) Selections from Murray Island Council and Court Records 315 - 392
Part E. Legislative and Executive History. 393 - 498
(see pp 114 (viii - xiii) for detailed contents)
Legislative History Commentary 399 - 418
114 (iii)
Chapter 2 Part E. (Cont)
Annexures:-
(1) Draft of letters patent, 10th October 1878 419
(2) Queensland Coast Islands Act 1879 420 - 421
(3) Governor's Proclamatlon, 21st July 1879 422 - 424
(4) Colonial Boundaries Act l895 425
(5) Proclamation of Reserve, G.G. 15 November 1912 426 - 427
Part F. The Plaintiffs' areas.
Murray Island Map: Plaintiffs' Portion 428
The claims by the Plaintiff Dave Passi: 429 - 437
Annexures:-
(1) D Passi's claim to Zomaned (37) Chain of Title 43B
(2) D Passi's claim to Giar (38) Chain of Title 439
(3) D Passi's claim to Portions 39-42 Chain of Title 440
(4) Murray Island: Map: Omar, Zomared & Mas Subdivision 441
(5) Line drawn by D Passi-in-Chief 20.06.89 442
(6) Dawar Island: Map: Plaintiff's Portions 443
(7) Waier Island: Map: Plaintiff's Portlons 444
The claims by the Plaintiff James Rice: 445 - 449
Annexures:
(1) Ex 168. Caretaker Agreement (handwritten) 450
Ex 168, Caretaker Agreement (Typescript) 451
114 (iv)
Chapter 2 Part F. [cont.)
(2) James Rice's Chains of Title to Bazmet (41) 452
(3) James Rice's Chains of Title to Claimed Portions Korog (45), DeiMei (46) 453
(4) Ex 175, Sketch, James Rice's Portion of Korog (45) Location and Boundaries 454
(5) Ex 176, Boundaries of James Rice's Land and Korog (45) 455
(6) Ex 177, James Rice's Land at Bazmet: Boundaries 456
(7) Ex 178, James Rice's Land at Dei-Mei (46) 457
The claims of the Plaintiff Eddie Mabo 458
VOLUME 3
Chapter 3. Pre-annexation rights and interests in land. 459-478
Annexures:-
(l) Lloyd: Introduction to Jurisprudence, pp. 331-385 479 - 507
(2) Jerome Frank: Law and the Modern Mind, Ch. XVII pp. 186-195 508 - 513
(3) H.L.A. Hart: The Concept of Law (1961) p. 76-90 514 - 525
(4) H.L.A. Hart: Definition and Theory in Jurisprudence (1954) 70. L.Q.R. 37 526 - 538
(5) S. Roberts: Order and Dispute, pp 17-29 539 - 546
(6) P.G. Sack: Land Between Two Laws (1973)
pps. 1-32 547 - 564
(7) E. Ehrlich in Cotterell: The Sociology of Law p 17-47 565 - 581
(8) Prof. J.G. Starke: Introduction to International Law pp. 157-198 582 - 603
114 (v)
VOLUME 4
Chapter 4. The effect of annexation upon rights and Interests in land (See pp 114 (xv-xvi) for summary) 604 - 656
Annexures:-
(1) Hookey: The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia (1972) 5 F.L.R. 85 657 - 674
(2) The Case of Tanistry (1608) Davis 28 80 E.R. 516, at 528. Davies Irish Cases (1762) p 78, at 101, 1. 675 - 694
(3) Hanasiki v. Syme (1951) (Unreported) Charles J 695 - 711
(4) Campbell v. Hall (1774) State Trials 239 98 E.R. 1045 712 - 735
(5) R. v. Bonjon Historical Records of Australia p 146 September 1841 736 - 745
(6) Kent's Commentaries on American Law Vol. 3 12th Edn p 377-400 746 - 761
(7) Blackstone's Commentaries Vol I p. 98-107 762 - 771
(8) McNeill, Common Law Aboriginal Title (1989) p 175-9 772 - 775
(9) NcNeill, "acquisitions of Title: Has the Common Law been Misapplied to Dispossess the Aboriginals" (1990) 16 Monash U.L.R. 91 776 - 786
Volume 5
Chapter 5
Part A. The nature of the rights and interests in land.
(See pp 114 (xvii - xvix) for summary) 787 - 843
Annexures:-
(1) 2 Blackstones Commentaries pp. 82-85 844 - 848
(2) 2 Blackstones Commentaries pp I03-113 849 - 860
114 (vi)
Chapter 5 Part A (Cont)
(3) Cokes Commentary on Littlejohn Vol 1 pp 165-168, 210-211 861 - 873
Part B. The rights and interests of the Plaintiffs
- Rights and interests of the Plaintiff David Passi 874
- Rights and interests of the Plaintiff James Rice 875
The incidents of [he rights of the Plaintiffs 876 - 907
Chapter 6. Recognition Conduct by the Defendant. 908- 948 (See114 (xx) for summary)
Chapter 7. Have the Plaintiffs' rights and interests been extinguished? (See114 (xxi) for summary) 949 - 973
References 974 - 975
Chapter 8. Fiduciary and Trust Duties. 976 -1012
List of References 1013-1014
Chapter 9. See 109 Conflict. (see 114 (xxii) for summary ) 1015-1022
Schedules describing the Deeds of Grant in Trust 1023-1030
List of Authorities 1031
Chapter 10. Limits of Queensland legislative power. 1032-1043 (See pp 114 (xxiii-xxiv) for summary)
114 (vii)
MABO v. QUEENSLAND
PLAINTIFFS' WRITTEN SUBMISSIONS
VOLUME 6
SUPPLEMENTARY VOLUME
TABLE OF CONTENTS TO VOLUME 6
Document Description Page no
1. Table of Contents Volumes 1045-1046
2. Questions Reserved Pursuant 1047-1050
to Section 18 of the Judiciary Act
3. Particulars and Further 1051-1076
Particulars supplied by the Plaintiffs pursuant to Order of Mason C.J. 20th March 1991
4. Summary of Analyses providing 1077-1092
answers to questions reserved for the Full Court
5. Corrections to and omissions 1093-1113
from Plaintiffs' Submissions Chapters 2-10
6. Additional annexures. 1114-1133
(a) Haddon, Volume V pages 291-2
(b) Haddon; Volume VI pages 169-184
114 (viii)
MABO -v- OUEENSLAND
PLAINTIFFS' SUBMISSIONS
CHAPTER 2
(E) LEGISLATIVE AND EXECUTIVE HISTORY:
1. Constitution
Australian Courts Act/Constitution Act 1828 9 Geo. IV c.83
Constitution Act 1840 3 and 4 Vic. c.62
Constitution Act l842 5 and 6 Vic. c.76
Constitution Act 1850 13 and 14 Vic. c.59
Constitution Act 1855 18 and 19 Vic. c.54
Letters Patent 6 June, 1859
Order in Council 6 June, 1859
Aust. Colonies Act 24 & 25 Vic. c.44 (1861)
Act to Remove Doubts - Queensland Legislative Authority 1861
Constitution of the Colony of Queensland 1867-1978
28th December, 1867 31 Vic. No. 38
11. Annexation Instruments
Draft of Letters Patent (U.K.) 10/10/1878
Queensland Coast Islands Act 1879 43 Vic. No. 1
24/6/1879
Governor's Proclamation (1879) 21/7/1879
Colonial Boundaries Act (1895) 58 & 59 Vic. C.34
111. Waste Lands
Sale of Waste Land (1842) 5 and 6 Vic. c.36 (U.K.)
Sale of Waste Land (1846) 9 and 10 Vic. c.104 (U.K.)
Disposal of Waste Land (1855) 18 and 19 Vic. c.56 (U.K.)
The Australian Waste Lands Act (1855) (Qld.)
114 (ix)
IV. Land Acts
see Constitution Acts 1855, 1867 above.
Crown Lands Alienation Act of 1868 31 Vic. No. 46
The Crown Lands Alienation Act of 1876 40 Vic. No. 15
- Amended in 1879 (43 Vic. No. 12)
- Repealed by Crown Lands Act 1884, S.37
The Corrected Titles to Land Act of 1882 46 Vic. No. 4
The Crown Lands Acts of 1884-1895 48 Vic. No. 28
- Amended by various Crown Lands Amendment Acts in 1855, 1886, 1889, 1891, 1892, 1894, 1895, plus Special Sales of Land Act 1891 55 Vic. No. 21
- Repealed by the Land Act 1897 (61 Vic. No. 25) s.5
The Land Act 1897-1910 61 Vic. No. 25
- Amended by the Land Act 1902 (2 Ed. VII No. 18)
The Land Acts and Agricultural Lands Purchase Acts Amendment Act of 1903 (5 Ed. VII, No 28)
The Land Acts Amendment Act 1908 (8 Ed. VII No. 14)
The Land Acts Amendment Act 1909 (9 Ed. VII No. 20)
- Repealed by The Land Act 1910
The Land Act 1910-1962 (1 Geo. Vic. No. 15)
- see numerous amendments at Legislation Volume
- Repealed by Land Act 1962-1985
The Land Act 1962-1984
- see numerous amendments, at Legislation Volume
Land Act (Aboriginal and Islander Land Grants) Amendment Act
- Amended by 1984 No. 30; 1985 No. 41
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (1985 No. 41)
Queensland Coast Islands Declaratory Act 1985 (1985 No. 27)
See also regarding Aurukun and Mornington Island Reserves
114 (x)
Local Government (Aboriginal Lands) Act 1978-1981 (1978 No. 6).
.Amended by Amending Acts of 1978 (1978 No 87) and I981 (1981 No. 106).
v. General Legislation Relating to Torres Strait Islanders
Commonwealth:
Racial Discrimination Act 1975
Aboriginals Councils and Associations Act 1976
Aboriginal and Torres Strait Islanders (Queensland Discrimination Laws) Act 1975
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978
Queensland:
Industrial and Reformatory Schools Act of 1865
Polynesian Labourer's Act of 1869 (31 Vic. No. 47)
Native Birds Protection Act Amendment Act of 1877
Pacific Islanders Labourers Act 1880: (44 Vic. No. 17) as amended.
. Regulations thereunder
Pearl Shell and Beche-de-Mer Fishery Act 1881 (45 Vic. No. 2)
. As amended 1886, 1891, 1896, 1898, 1913, 1913
Native Labourers Protection Act 1884 (48 Vic. No. 20)
. As amended 1901, 1908
Queensland Pearl Shell & Beche-de-Mer Fisheries (Extra Territorial) Act 1888
Sale and Use of Poisons Act 1891
The Liquor Act of 1895
The Aboriginals Protection and Restriction of the sale of Opium Acts 1897-1934 (61 Vic. No. 17)
. As amended 1901, 1927, 1928, 1934
114 (xi)
. Repealed by the Aboriginals Preservation and Protection Act of 1939
. Regulations under "Opium" Acts
The Native Animals Protection Act of 1906
The Liquor Act of 1912
The Animals and Birds Act of 1921
The Torres Strait Islanders Act 1939-1946 (3 Geo VI No. 7)
. As amended 1946 (10 Geo. VI No. 20) (10 Geo. VI No. 21)
. Repealed by Aborigines and Torres Strait Islanders Affairs Act of 1965 (1965 No. 27) S. 4 (1).
The Aboriginals Preservation and Protection Act of 1939-1946 (3 Geo. VI No. 6)
. As amended in 1946 (10 Geo. 6 No. 21)
. Per Torres Strait Islanders Act of 1939 the following Sections apply to Islanders: ss 6 (2)(3); 14-17; 18(1); 19(1)(a)(d); 23-28; 29(1)(2); 31-38
. Regulations Under 1939 Act
The Fauna Conservation Act 1952
The Fisheries Act of 1957
Aboriginals & Torres Strait Islanders Affairs Act of 1965 - 1971 (1965 No. 27)
. As amended in 1967 (1967 No. 32)
. Regulations under "Affairs" Act of 1966
Aboriginal Relics Preservation Act of 1967-1976 (1967 No. 29)
Torres Strait Islanders Act 1971-1979
. Amended by Amendments Acts 1974 No. 80 1975 No. 30, 1979 No. 3
Forestry Act Amendment Act 1968
Mining Act 1968
The Aborigines Act 1971-1984
114 (xii)
The Aborigines Regulations of 1972
Aboriginal Affairs (Transfer of Functions) Act 1974
Aurukun Associates Agreement Act 1975
Fisheries Act 1976
Local Government (Aboriginal Lands) Act Amendment Act 1978
. Re Aurukun and Mornington Island Reserves
Torres Strait Fisheries Act 1984
. Torres Strait Treaty Printed at Schedule Community
Services (Torres Strait) Act 1984
Community Services (Aborigines) Act 1984-1986 and
Regulations
Aborigines and Torres Strait Islanders (Land Holding) Act 1985
Cultural Record (Landscapes Queensland and Queensland Estate Act 1987.
VI. Imperial Legislation
Colonial Laws Validity Act (1865) 28 and 29 Vic. c.63
The Kidnapping Act 1872 (35 and 36 Vic. c.19)
Pacific Islanders Protection Act (1872) 35 and 36 Vic. c.19
Pacific Islanders Protection Act (1875) 38 and 39 Vic. c.52
Western Pacific Orders in Council (1877)
Pacific Order in Council (1893)
Statute of Westminster (1931)
Imperial Acts Application Act 1984
Statute Law Repeals Act 1986
VII. Executive Proclamations/Regulations/By-Laws, etc.
(l) Royal Instructions to Sir George Bowen, 20/5/1860.
(2) Pearl Shell and Beche-de-Mer Fisheries Regulations 1883, 1907, 1912, 1914, 1915, 1928.
114 (xiii)
(3) Regulations Prescribed for Murray Island Boundary Disputes 18/9/1886 (See Votes and Proceedings, Leg. Ass., 1886, Vol. II, 4th Session of 9th Parliament).
(4) Regulations under the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 of 1899 (Gov. Gaz. 23/9/1899,
p. 746).
(5) Proclamation of Murray Island as a Reserve per Land Act 1910, Gov. Gaz. 15/11/1912.
(6) Order-in-Council appointing Trustee to Murray Islands, 1939
(7) The Islanders Regulations 1946 (G. Gaz. 3/8/1946,300)
114 (xiv)
MABO v. QUEENSLAND
SUMMARY - CHAPTER 4
EFFECT OF ANNEXATION
604-615 Discovery/settlement, treaty/cession or conquest. Irrelevant - all lead to same result.
"Subject to the laws in force therein as modified".
What content of those laws? Includes Common Law of
England as operatlng in Queensland as applicable to
new colony, and as modified by Queensland. Thus
includes continuity of pre- existing interests in
land. No magic about "settled colonies".
617-619 Did interests continue after annexation? Debate: "Continuity" versus "abolition unless recognised" "Act of State" cases are wrong or should not be followed.
616 Amodu Tijani is correct.
619, 621, Reflects basic principles going back the
622, 623 Case of Tanistry and Campbell v. Hall (1774) 20 State Trials 239. Now fully accepted in Canada - Calder (34 D.L.R. 3rd 145) and Guerin (1984) 13 D.L.R. 4th 321, 335. Calder expressly rejected Act of State cases at 210-211 and criticised Blackburn J. in Milirrpum.
624 Similarly in Tito v. Waddell (1977) 2
W.L.R. 496.
626-7 In New Zealand - Baker v. Tamaki (1901) A.C.
561,577-80.
628 In Australia - Daera Guba (1974) 130
C.L.R. 353, 396-7.
Cooper v. Stuart (1889) 14 App. Cas.
286 irrelevant on this issue - or
wrong.
631-4 Randwick v. Rutledge & Others. on land law
in Australia don't address question or are
expressed too widely or are wrong. Crown
acquired paramount lordship of land subject
to interest of native owners, unless took
actual occupancy.
635-6 Rely on Bonjon (1841) per Willis J.
acknowledges reality of presence of
Aboriginal peoples.
637 Blackburn J. was wrong.
638 Wrong about classification of colony
being matter of law especially re: U.S.
639 Begs question to conclude "no trace of
the doctrine" from fact that interests
114 xv
are granted by Crown.
640 Ignores "policy" when recognised
interests (U.S.).
Applies "policy" when denies it
(Australia).
64-643 Misapplied Kent's Commentaries = "law" or
"policy".
644 Ignores fact of omitted categories in
Blackstone J. i.e. those inhabited.
but not conquered.
645 Ignores reception of English Law is "to
extent applicable" - therefore take
account of pre-existing owners.
646 Wrongly applies Campbell v. Hall
646-7 Disagrees with Marshall C. J. - confuses
claimant under Crown grant, with situation
where no conflicting grant.
21 Ignores Mitchel v. U.S. (1835) 9 Peters
711,746
648-9 Criticised Chapman J. in R. v. Symonds and
Wi Parata by saying wrong, or merely
referring to moral or political duties.
659-651 Relies on Ninety Mile Beach - misapplies it.
651-2 Relies on Calder in Court of Appeal. Hall
J. criticises Blackburn J. in Calder in
Supreme Court.
652-4 Ignores Nissan v. A.G. re: act of State.
Misunderstands difference between
rights in rem (in land) and rights in
personum (held of former sovereign).
Act of State has no relevance to
original owners.
114 (xvi)
831 Crown's lordship does not detract from
seisin and title.
833 Possessory title good against the whole
world Perry v. Clissold; Dalziel v. Minister
for the Army (1944) 68 C.L.R. 261. Title
obtained by possession is equivalent to fee
simple.
Crown has stood by acknowledged ownership
and is therefore bound. Ramsden v. Dyson
(1866) 1 H.R. 129; Plimmer v. Wellington
Corp. (1884) 9 App. Cas. 699.
833-4 Express references to possession in Calder
34 D.L.R. 3rd at 197 and in Tillamooks 329
U.S. 40 at 45-8.
833-4 Reference to title based on possession in
Santa Fe 314 U.S. 339 at 345, 347 and in
Lipan Apache v. U.S. (1967) 180 Ct. C1. 487
and in Calder at 201-2.
835-6 e) Usufructuary title - described as usufruct in
many cases e.g. Amodu Tijani.
836 Also in Daera Guba
836 In Calder, Judson J. - "personal
usufructuary right" not helpful in
determining nature of title.
836-7 No real inconsistency in varying descriptions.
114 (xvii)
MAB0 v QUEENSLAND
SUMMARY CHAPTER 5
787 Nature of interests in land:
a) General - must avoid English concepts -sui
generis characteristics vary - generalised
phrases misleading.
788 Refer to what in fact happens within
community - "communal native title"
inappropriate should rely on reality of
relationships. See Geita Sebea (1943) 67
C.L.R. 544,547,
788 "Society which recognizes connected
intelligible pattern of relationships to
land in which Plaintiffs are accepted as
participating.
789 Relationships change.
789-790 Legal limitation alienate only to Crown
790-1 Land privately owned "ownership' as
appropriate term.
b) Local legal custom
792-3 Criteria - antiquity, reasonableness.
conformity with law, observance as of
right, certainty, consistency. See
Hannigan
794 Concept of local legal custom part of
Australian law if practicable. See Dugan v.
Mirror Newspapers 53 A.L.R. 166.167-9. SGIC
v. Trigwell 53 A.L.J.R. 656, 658.
795-6 Not affected by act of State.
796-801 Nature of "time immemorial" 1789.
801-2 "Not interrupted".
802-3 Not unreasonable.
804-5 Certainty.
805-6 Compare "Borough English" in disposition by
Will.
806-7 Rely on statutory provisions re: "usages,
customs and practices". See 1984 Act
sections 23,41
c) Traditional Aboriginal title
808-9 U.S.A. - Johnson v. McIntosh (1823) 8 Wheat
543
810 Later decisions from Cherokee Nation to
Oneida.
811-2 Discussion of Tee-Hit-Ton.
812 Third Party intruders are trespassers
Edwardsen v. Norton (1973) 369 F. Supp. 1359
813 Rely on U.S. v. Santa Fe (1941) 314 U.S. 339
813 Canada - St. Catherines Milling (1888) 14
A.C. 46
But query reference to "personal and
usufructuary right".
814- 5 Calder 34 D.L.R. 3rd 145 discussed in
Detail.
815-6 Followed in later cases.
816-7 Baker Lake. Confirmation in Guerin.
114 (xviii)
MABO v. QVEENSLAND
SUMMARY CHAPTER 6
RECOGNITION
908 Recognition not required but has
occurred.
909 Comprises executive acts, legislation,
and administrative conduct.
909-10 Millirpum - Blackburn relies on
"policy" at 253-257.
911-2 Highlights - purchases of land.
912-3 L.M.S. purchase and lease.
913-5 Reserve.
915 Constant references to "owners".
916 Court records and signing off.
917 By-laws.
918 Statutory powers and functions.
918-9 Official conduct and statements.
920-947 Chronology of recognition conduct.
114 (xix)
MABO v. QUEENSLAND
SUMMARY CHAPTER 7
EXTINGUISHMENT
951 Blackburn - policy of treating land as open
to grants, together with reserves, operates
as extinguishment of title - wrong.
9sO Calder "clear and plain intent" but split on
application.
950-1 Hall J. : title not extinguished by mere
existence of ordinances.
Judson J. : Crown Lands Acts with clear
Intention, inconsistent with any conflicting
interest.
952-5 Baker Lake - not extinguished by mere
existence of statutes because of nature of
territory and not in legislatures mind.
955 Needed actual disposition to extinguish.
956 Followed by Bear Island, Paul Guerin and
Sparrow.
958 In Sparrow - regulation does not equal
extinguishment - adopted Hall J. in Calder,
at 427.
960 Paul v. C.P. 53 D.L.R. 487 at 504-6 mere
existence of scheme doesn't abolish rights
in reserve.
Simon v. R. 24 D.L.R. 43,90 at 406 opening
up land for farming is not of itself
sufficient, must look to use and disposition
of specific area of land.
6 -3 Delgamuukw enactments indicated intention to
extinguish interests and all extinguished
act provided "all land in the colony
belonging to the Crown in fee" but expressly
excepted reserves. (see Delgamuukw at page
245, and 235).
61-3 McEachern J. in error - assumed
acknowledgment of rights would prevent
grant of title to others. Not correct.
964 Seeks to escape Sparrow at 239 by excluding
fishing: in adequate reasoning,
964 References in Dams case per Brennan J. at
158 C.L.R. at 208 not negated by coexistence
of Aboriginal title - only when power to
dispose of land exercised that title is
extinguished.
965 This is consistent with Randwick v. Rutledge
102 C.L.R. 54 at 71 per Windeyer J.
66 Allodial title of Plaintiffs becomes feudal
- see case of Tanistry (1608) Davies at 111
- 112
966-7 Re Southern Rhodesia (1919) 2 A.C. 211
needed actual settlement to extinguish.
8 Amodu Tijani (1921) 2 A.C. 399, Gila River
(1974) 494 F. 2d 1386; U.S. v. Pueblo (1975)
206 Ct. C1. 649; U.S. v. Atlantic Richfield
114 (xx)
MABO v. OUEENSLAND
SUMMARY CHAPTER 9
SECTION 109
1015-16 D.O.G.I.T. scheme would take effect by
degazetting reserve and raking grant in
trust to Island Council. Continued
occupation would then depend on Council
exercising power to grant leases (approved
by responsible minister) and to approve
leases once divested from Council.
1023-1030 Details of operation of statutory scheme for
D.O.G.I.T.S.
1016-17 Breach of section 9 of Racial Discrimination
Act.
1018 Right under article 5 of Convention pursuant
to 9(2) of R.D.A. right to own property.
1018 Or do not enjoy right under section 10.
1019 Alternatively gives preferential rights to
Islanders but denies the same to non-
islanders and non-aborigines.
1019-20 Not a "special measure".
1020-21 Same principles apply here as in Mabo No.1
166 C.L.R. 186 Brennan, Toohey and Gordon
J.J. at 218-9.
1021 Conflict with section 10(2) Racial Discrimination Act by reason of sections 5(7), 51(1), 62, 64, 69, 71 and 73 of Community Services (Torres Strait) Act 1984
1022 Also conflict with Aboriginal and Torres
Strait Islanders (Queensland Discriminatory
Laws) 1975.
1022 Limits now to changes to land rights
leglslation.
1023-30 Details of D.O.G.I.T.S scheme
xxi
MABO v. OUEENSLAND
SUMMARY CHAPTER 1O
POWER TO EXTINGUISH
1032-1033 In Wacando (1981) 148 C.L.R. 1 Gibbs and
Aickin held letters patent authorised by
1861 Imperial Act; Mason J. disagreed but
said colony had power to annex Islands,
W1lson J. agreed letters patent not
authorised by 1861 Imperial Act but said no
effective annexation in 1879, Murphy and
Brennan said validated by 1895 Imperial Act
1034-35 Express words required to confer power
dealing with wastelands on colonial
parliaments. Hence New South Wales
Constitution Act section 2 and Australian
Wastelands Act 1855 (Imp). Queensland
constitutional power to deal with
wastelands in section 30 and section 40
explicitly granted. That grant limited to
land in colonies as then constituted no
additional power to dispose of an
unalienated Crown lands, when additional
territory annexed.
1035 Compare Coastal Waters State Title Act 1980
and Coastal Waters State Powers Act 1980
Section 5 express grant of power needed to
enable recipients to control seabeds.
1036 Rejected by Dawson J. in Mabo 166 C.L.R. 1B6
at 240.
1036-7 Wilson J. in Wacando was correct Imperial
Act needed to alter boundaries of State
since boundaries fixed by earlier Imperial
Act in Australian Colonies Act 1861.
1038 Court in Wacando did not consider section 6
and 7 of Pacific Islanders Protection Act
1872-1875 (Imp). Sovereignty expressly
acknowledged.
1039 When sovereignty acknowledged, not able to
be withdrawn except by Imperial Act.
1039 Therefore Imperial Act of 1895 required in
past. But did not abolish rights of native
inhabitants earlier recognized by earlier
Imperial statute.
1040 Imperial statute required to lay down terms
and conditions of annexation.
1041-2 Rights acknowledged in Pacific Islanders
Protection Act and power to abrogate not
vested in colonial legislature. Any
abrogation inconsistent with imperial
statute. Imperial Crown successor as
international sovereign, is the
Commonwealth.
1042 Imperial crown by letters patent of 1879 and
validating statute 1895 "covered the field"
of legal effects of change of sovereignty.
114 (xxii)
1042-3 Rights remain until affected by further express grant of power by imperial parliament to Queensland or by successor, the Commonwealth.
The plaintiffs' legal team bunkered down in intense preparation of their final submissions for this ultimate hearing. Finally, in April 1991, after weeks of exhausting work, the six volumes of written submissions were finalised and filed in the High Court. The index alone runs to 24 Pages and provides an insight into the breadth and detail of the argument:
114 (i)
MABO v. OUEENSLAND (No. I and No. 2)
LITIGATION MATERIALS: 1982-1992
VOLUME SIXTY THREE
PLAINTIFFS' WRITTEN SUBMISSION TO HIGH COURT: APRIL 1991
(6 vols)
114 - (ii)
CONTENTS
Plaintiffs' Comprehensive Written Submissions to High Court: April 1991:
(6 Vols)
114 - (ii)
MABO v. QUEENSLAND
PLAINTIFFS COMPREHENSIVE WRITTEN SUBMISSIONS
TABLE OF CONTENTS
VOLUME 1
Doc Description Page No.
Chapter 1. Summary of Plaintiffs' Contentions. I - 5
Chapter 2. The Factual Background.
Part A. Location and Description. 6 - 8
Part B. Recorded History. 9 - 46
Part C. Murray Island People and Society. 47 - 79
Annexures:
(1) Ex 20, Haddon's Reports of the Cambridge Anthropological Expeditions to Torres Strait. per Wilkin. Ch VII
80 - 83
(2) Transcript of Evidence of J R Beckett
84 - 269
VOLUME 2
Chapter 2 The Factual Background (Cont)
Part D. Land tenure on the Murray Islands. 270 - 291
Annexures:-
(l) Ex 214, Miriam Land Tenure by Jeremy Beckett 292 - 308
(2) Ex 20, Haddon, Vol 6 Ch9 309 - 314
pp 163-8
(3) Selections from Murray Island Council and Court Records 315 - 392
Part E. Legislative and Executive History. 393 - 498
(see pp 114 (viii - xiii) for detailed contents)
Legislative History Commentary 399 - 418
114 (iii)
Chapter 2 Part E. (Cont)
Annexures:-
(1) Draft of letters patent, 10th October 1878 419
(2) Queensland Coast Islands Act 1879 420 - 421
(3) Governor's Proclamatlon, 21st July 1879 422 - 424
(4) Colonial Boundaries Act l895 425
(5) Proclamation of Reserve, G.G. 15 November 1912 426 - 427
Part F. The Plaintiffs' areas.
Murray Island Map: Plaintiffs' Portion 428
The claims by the Plaintiff Dave Passi: 429 - 437
Annexures:-
(1) D Passi's claim to Zomaned (37) Chain of Title 43B
(2) D Passi's claim to Giar (38) Chain of Title 439
(3) D Passi's claim to Portions 39-42 Chain of Title 440
(4) Murray Island: Map: Omar, Zomared & Mas Subdivision 441
(5) Line drawn by D Passi-in-Chief 20.06.89 442
(6) Dawar Island: Map: Plaintiff's Portions 443
(7) Waier Island: Map: Plaintiff's Portlons 444
The claims by the Plaintiff James Rice: 445 - 449
Annexures:
(1) Ex 168. Caretaker Agreement (handwritten) 450
Ex 168, Caretaker Agreement (Typescript) 451
114 (iv)
Chapter 2 Part F. [cont.)
(2) James Rice's Chains of Title to Bazmet (41) 452
(3) James Rice's Chains of Title to Claimed Portions Korog (45), DeiMei (46) 453
(4) Ex 175, Sketch, James Rice's Portion of Korog (45) Location and Boundaries 454
(5) Ex 176, Boundaries of James Rice's Land and Korog (45) 455
(6) Ex 177, James Rice's Land at Bazmet: Boundaries 456
(7) Ex 178, James Rice's Land at Dei-Mei (46) 457
The claims of the Plaintiff Eddie Mabo 458
VOLUME 3
Chapter 3. Pre-annexation rights and interests in land. 459-478
Annexures:-
(l) Lloyd: Introduction to Jurisprudence, pp. 331-385 479 - 507
(2) Jerome Frank: Law and the Modern Mind, Ch. XVII pp. 186-195 508 - 513
(3) H.L.A. Hart: The Concept of Law (1961) p. 76-90 514 - 525
(4) H.L.A. Hart: Definition and Theory in Jurisprudence (1954) 70. L.Q.R. 37 526 - 538
(5) S. Roberts: Order and Dispute, pp 17-29 539 - 546
(6) P.G. Sack: Land Between Two Laws (1973)
pps. 1-32 547 - 564
(7) E. Ehrlich in Cotterell: The Sociology of Law p 17-47 565 - 581
(8) Prof. J.G. Starke: Introduction to International Law pp. 157-198 582 - 603
114 (v)
VOLUME 4
Chapter 4. The effect of annexation upon rights and Interests in land (See pp 114 (xv-xvi) for summary) 604 - 656
Annexures:-
(1) Hookey: The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia (1972) 5 F.L.R. 85 657 - 674
(2) The Case of Tanistry (1608) Davis 28 80 E.R. 516, at 528. Davies Irish Cases (1762) p 78, at 101, 1. 675 - 694
(3) Hanasiki v. Syme (1951) (Unreported) Charles J 695 - 711
(4) Campbell v. Hall (1774) State Trials 239 98 E.R. 1045 712 - 735
(5) R. v. Bonjon Historical Records of Australia p 146 September 1841 736 - 745
(6) Kent's Commentaries on American Law Vol. 3 12th Edn p 377-400 746 - 761
(7) Blackstone's Commentaries Vol I p. 98-107 762 - 771
(8) McNeill, Common Law Aboriginal Title (1989) p 175-9 772 - 775
(9) NcNeill, "acquisitions of Title: Has the Common Law been Misapplied to Dispossess the Aboriginals" (1990) 16 Monash U.L.R. 91 776 - 786
Volume 5
Chapter 5
Part A. The nature of the rights and interests in land.
(See pp 114 (xvii - xvix) for summary) 787 - 843
Annexures:-
(1) 2 Blackstones Commentaries pp. 82-85 844 - 848
(2) 2 Blackstones Commentaries pp I03-113 849 - 860
114 (vi)
Chapter 5 Part A (Cont)
(3) Cokes Commentary on Littlejohn Vol 1 pp 165-168, 210-211 861 - 873
Part B. The rights and interests of the Plaintiffs
- Rights and interests of the Plaintiff David Passi 874
- Rights and interests of the Plaintiff James Rice 875
The incidents of [he rights of the Plaintiffs 876 - 907
Chapter 6. Recognition Conduct by the Defendant. 908- 948 (See114 (xx) for summary)
Chapter 7. Have the Plaintiffs' rights and interests been extinguished? (See114 (xxi) for summary) 949 - 973
References 974 - 975
Chapter 8. Fiduciary and Trust Duties. 976 -1012
List of References 1013-1014
Chapter 9. See 109 Conflict. (see 114 (xxii) for summary ) 1015-1022
Schedules describing the Deeds of Grant in Trust 1023-1030
List of Authorities 1031
Chapter 10. Limits of Queensland legislative power. 1032-1043 (See pp 114 (xxiii-xxiv) for summary)
114 (vii)
MABO v. QUEENSLAND
PLAINTIFFS' WRITTEN SUBMISSIONS
VOLUME 6
SUPPLEMENTARY VOLUME
TABLE OF CONTENTS TO VOLUME 6
Document Description Page no
1. Table of Contents Volumes 1045-1046
2. Questions Reserved Pursuant 1047-1050
to Section 18 of the Judiciary Act
3. Particulars and Further 1051-1076
Particulars supplied by the Plaintiffs pursuant to Order of Mason C.J. 20th March 1991
4. Summary of Analyses providing 1077-1092
answers to questions reserved for the Full Court
5. Corrections to and omissions 1093-1113
from Plaintiffs' Submissions Chapters 2-10
6. Additional annexures. 1114-1133
(a) Haddon, Volume V pages 291-2
(b) Haddon; Volume VI pages 169-184
114 (viii)
MABO -v- OUEENSLAND
PLAINTIFFS' SUBMISSIONS
CHAPTER 2
(E) LEGISLATIVE AND EXECUTIVE HISTORY:
1. Constitution
Australian Courts Act/Constitution Act 1828 9 Geo. IV c.83
Constitution Act 1840 3 and 4 Vic. c.62
Constitution Act l842 5 and 6 Vic. c.76
Constitution Act 1850 13 and 14 Vic. c.59
Constitution Act 1855 18 and 19 Vic. c.54
Letters Patent 6 June, 1859
Order in Council 6 June, 1859
Aust. Colonies Act 24 & 25 Vic. c.44 (1861)
Act to Remove Doubts - Queensland Legislative Authority 1861
Constitution of the Colony of Queensland 1867-1978
28th December, 1867 31 Vic. No. 38
11. Annexation Instruments
Draft of Letters Patent (U.K.) 10/10/1878
Queensland Coast Islands Act 1879 43 Vic. No. 1
24/6/1879
Governor's Proclamation (1879) 21/7/1879
Colonial Boundaries Act (1895) 58 & 59 Vic. C.34
111. Waste Lands
Sale of Waste Land (1842) 5 and 6 Vic. c.36 (U.K.)
Sale of Waste Land (1846) 9 and 10 Vic. c.104 (U.K.)
Disposal of Waste Land (1855) 18 and 19 Vic. c.56 (U.K.)
The Australian Waste Lands Act (1855) (Qld.)
114 (ix)
IV. Land Acts
see Constitution Acts 1855, 1867 above.
Crown Lands Alienation Act of 1868 31 Vic. No. 46
The Crown Lands Alienation Act of 1876 40 Vic. No. 15
- Amended in 1879 (43 Vic. No. 12)
- Repealed by Crown Lands Act 1884, S.37
The Corrected Titles to Land Act of 1882 46 Vic. No. 4
The Crown Lands Acts of 1884-1895 48 Vic. No. 28
- Amended by various Crown Lands Amendment Acts in 1855, 1886, 1889, 1891, 1892, 1894, 1895, plus Special Sales of Land Act 1891 55 Vic. No. 21
- Repealed by the Land Act 1897 (61 Vic. No. 25) s.5
The Land Act 1897-1910 61 Vic. No. 25
- Amended by the Land Act 1902 (2 Ed. VII No. 18)
The Land Acts and Agricultural Lands Purchase Acts Amendment Act of 1903 (5 Ed. VII, No 28)
The Land Acts Amendment Act 1908 (8 Ed. VII No. 14)
The Land Acts Amendment Act 1909 (9 Ed. VII No. 20)
- Repealed by The Land Act 1910
The Land Act 1910-1962 (1 Geo. Vic. No. 15)
- see numerous amendments at Legislation Volume
- Repealed by Land Act 1962-1985
The Land Act 1962-1984
- see numerous amendments, at Legislation Volume
Land Act (Aboriginal and Islander Land Grants) Amendment Act
- Amended by 1984 No. 30; 1985 No. 41
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (1985 No. 41)
Queensland Coast Islands Declaratory Act 1985 (1985 No. 27)
See also regarding Aurukun and Mornington Island Reserves
114 (x)
Local Government (Aboriginal Lands) Act 1978-1981 (1978 No. 6).
.Amended by Amending Acts of 1978 (1978 No 87) and I981 (1981 No. 106).
v. General Legislation Relating to Torres Strait Islanders
Commonwealth:
Racial Discrimination Act 1975
Aboriginals Councils and Associations Act 1976
Aboriginal and Torres Strait Islanders (Queensland Discrimination Laws) Act 1975
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978
Queensland:
Industrial and Reformatory Schools Act of 1865
Polynesian Labourer's Act of 1869 (31 Vic. No. 47)
Native Birds Protection Act Amendment Act of 1877
Pacific Islanders Labourers Act 1880: (44 Vic. No. 17) as amended.
. Regulations thereunder
Pearl Shell and Beche-de-Mer Fishery Act 1881 (45 Vic. No. 2)
. As amended 1886, 1891, 1896, 1898, 1913, 1913
Native Labourers Protection Act 1884 (48 Vic. No. 20)
. As amended 1901, 1908
Queensland Pearl Shell & Beche-de-Mer Fisheries (Extra Territorial) Act 1888
Sale and Use of Poisons Act 1891
The Liquor Act of 1895
The Aboriginals Protection and Restriction of the sale of Opium Acts 1897-1934 (61 Vic. No. 17)
. As amended 1901, 1927, 1928, 1934
114 (xi)
. Repealed by the Aboriginals Preservation and Protection Act of 1939
. Regulations under "Opium" Acts
The Native Animals Protection Act of 1906
The Liquor Act of 1912
The Animals and Birds Act of 1921
The Torres Strait Islanders Act 1939-1946 (3 Geo VI No. 7)
. As amended 1946 (10 Geo. VI No. 20) (10 Geo. VI No. 21)
. Repealed by Aborigines and Torres Strait Islanders Affairs Act of 1965 (1965 No. 27) S. 4 (1).
The Aboriginals Preservation and Protection Act of 1939-1946 (3 Geo. VI No. 6)
. As amended in 1946 (10 Geo. 6 No. 21)
. Per Torres Strait Islanders Act of 1939 the following Sections apply to Islanders: ss 6 (2)(3); 14-17; 18(1); 19(1)(a)(d); 23-28; 29(1)(2); 31-38
. Regulations Under 1939 Act
The Fauna Conservation Act 1952
The Fisheries Act of 1957
Aboriginals & Torres Strait Islanders Affairs Act of 1965 - 1971 (1965 No. 27)
. As amended in 1967 (1967 No. 32)
. Regulations under "Affairs" Act of 1966
Aboriginal Relics Preservation Act of 1967-1976 (1967 No. 29)
Torres Strait Islanders Act 1971-1979
. Amended by Amendments Acts 1974 No. 80 1975 No. 30, 1979 No. 3
Forestry Act Amendment Act 1968
Mining Act 1968
The Aborigines Act 1971-1984
114 (xii)
The Aborigines Regulations of 1972
Aboriginal Affairs (Transfer of Functions) Act 1974
Aurukun Associates Agreement Act 1975
Fisheries Act 1976
Local Government (Aboriginal Lands) Act Amendment Act 1978
. Re Aurukun and Mornington Island Reserves
Torres Strait Fisheries Act 1984
. Torres Strait Treaty Printed at Schedule Community
Services (Torres Strait) Act 1984
Community Services (Aborigines) Act 1984-1986 and
Regulations
Aborigines and Torres Strait Islanders (Land Holding) Act 1985
Cultural Record (Landscapes Queensland and Queensland Estate Act 1987.
VI. Imperial Legislation
Colonial Laws Validity Act (1865) 28 and 29 Vic. c.63
The Kidnapping Act 1872 (35 and 36 Vic. c.19)
Pacific Islanders Protection Act (1872) 35 and 36 Vic. c.19
Pacific Islanders Protection Act (1875) 38 and 39 Vic. c.52
Western Pacific Orders in Council (1877)
Pacific Order in Council (1893)
Statute of Westminster (1931)
Imperial Acts Application Act 1984
Statute Law Repeals Act 1986
VII. Executive Proclamations/Regulations/By-Laws, etc.
(l) Royal Instructions to Sir George Bowen, 20/5/1860.
(2) Pearl Shell and Beche-de-Mer Fisheries Regulations 1883, 1907, 1912, 1914, 1915, 1928.
114 (xiii)
(3) Regulations Prescribed for Murray Island Boundary Disputes 18/9/1886 (See Votes and Proceedings, Leg. Ass., 1886, Vol. II, 4th Session of 9th Parliament).
(4) Regulations under the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 of 1899 (Gov. Gaz. 23/9/1899,
p. 746).
(5) Proclamation of Murray Island as a Reserve per Land Act 1910, Gov. Gaz. 15/11/1912.
(6) Order-in-Council appointing Trustee to Murray Islands, 1939
(7) The Islanders Regulations 1946 (G. Gaz. 3/8/1946,300)
114 (xiv)
MABO v. QUEENSLAND
SUMMARY - CHAPTER 4
EFFECT OF ANNEXATION
604-615 Discovery/settlement, treaty/cession or conquest. Irrelevant - all lead to same result.
"Subject to the laws in force therein as modified".
What content of those laws? Includes Common Law of
England as operatlng in Queensland as applicable to
new colony, and as modified by Queensland. Thus
includes continuity of pre- existing interests in
land. No magic about "settled colonies".
617-619 Did interests continue after annexation? Debate: "Continuity" versus "abolition unless recognised" "Act of State" cases are wrong or should not be followed.
616 Amodu Tijani is correct.
619, 621, Reflects basic principles going back the
622, 623 Case of Tanistry and Campbell v. Hall (1774) 20 State Trials 239. Now fully accepted in Canada - Calder (34 D.L.R. 3rd 145) and Guerin (1984) 13 D.L.R. 4th 321, 335. Calder expressly rejected Act of State cases at 210-211 and criticised Blackburn J. in Milirrpum.
624 Similarly in Tito v. Waddell (1977) 2
W.L.R. 496.
626-7 In New Zealand - Baker v. Tamaki (1901) A.C.
561,577-80.
628 In Australia - Daera Guba (1974) 130
C.L.R. 353, 396-7.
Cooper v. Stuart (1889) 14 App. Cas.
286 irrelevant on this issue - or
wrong.
631-4 Randwick v. Rutledge & Others. on land law
in Australia don't address question or are
expressed too widely or are wrong. Crown
acquired paramount lordship of land subject
to interest of native owners, unless took
actual occupancy.
635-6 Rely on Bonjon (1841) per Willis J.
acknowledges reality of presence of
Aboriginal peoples.
637 Blackburn J. was wrong.
638 Wrong about classification of colony
being matter of law especially re: U.S.
639 Begs question to conclude "no trace of
the doctrine" from fact that interests
114 xv
are granted by Crown.
640 Ignores "policy" when recognised
interests (U.S.).
Applies "policy" when denies it
(Australia).
64-643 Misapplied Kent's Commentaries = "law" or
"policy".
644 Ignores fact of omitted categories in
Blackstone J. i.e. those inhabited.
but not conquered.
645 Ignores reception of English Law is "to
extent applicable" - therefore take
account of pre-existing owners.
646 Wrongly applies Campbell v. Hall
646-7 Disagrees with Marshall C. J. - confuses
claimant under Crown grant, with situation
where no conflicting grant.
21 Ignores Mitchel v. U.S. (1835) 9 Peters
711,746
648-9 Criticised Chapman J. in R. v. Symonds and
Wi Parata by saying wrong, or merely
referring to moral or political duties.
659-651 Relies on Ninety Mile Beach - misapplies it.
651-2 Relies on Calder in Court of Appeal. Hall
J. criticises Blackburn J. in Calder in
Supreme Court.
652-4 Ignores Nissan v. A.G. re: act of State.
Misunderstands difference between
rights in rem (in land) and rights in
personum (held of former sovereign).
Act of State has no relevance to
original owners.
114 (xvi)
831 Crown's lordship does not detract from
seisin and title.
833 Possessory title good against the whole
world Perry v. Clissold; Dalziel v. Minister
for the Army (1944) 68 C.L.R. 261. Title
obtained by possession is equivalent to fee
simple.
Crown has stood by acknowledged ownership
and is therefore bound. Ramsden v. Dyson
(1866) 1 H.R. 129; Plimmer v. Wellington
Corp. (1884) 9 App. Cas. 699.
833-4 Express references to possession in Calder
34 D.L.R. 3rd at 197 and in Tillamooks 329
U.S. 40 at 45-8.
833-4 Reference to title based on possession in
Santa Fe 314 U.S. 339 at 345, 347 and in
Lipan Apache v. U.S. (1967) 180 Ct. C1. 487
and in Calder at 201-2.
835-6 e) Usufructuary title - described as usufruct in
many cases e.g. Amodu Tijani.
836 Also in Daera Guba
836 In Calder, Judson J. - "personal
usufructuary right" not helpful in
determining nature of title.
836-7 No real inconsistency in varying descriptions.
114 (xvii)
MAB0 v QUEENSLAND
SUMMARY CHAPTER 5
787 Nature of interests in land:
a) General - must avoid English concepts -sui
generis characteristics vary - generalised
phrases misleading.
788 Refer to what in fact happens within
community - "communal native title"
inappropriate should rely on reality of
relationships. See Geita Sebea (1943) 67
C.L.R. 544,547,
788 "Society which recognizes connected
intelligible pattern of relationships to
land in which Plaintiffs are accepted as
participating.
789 Relationships change.
789-790 Legal limitation alienate only to Crown
790-1 Land privately owned "ownership' as
appropriate term.
b) Local legal custom
792-3 Criteria - antiquity, reasonableness.
conformity with law, observance as of
right, certainty, consistency. See
Hannigan
794 Concept of local legal custom part of
Australian law if practicable. See Dugan v.
Mirror Newspapers 53 A.L.R. 166.167-9. SGIC
v. Trigwell 53 A.L.J.R. 656, 658.
795-6 Not affected by act of State.
796-801 Nature of "time immemorial" 1789.
801-2 "Not interrupted".
802-3 Not unreasonable.
804-5 Certainty.
805-6 Compare "Borough English" in disposition by
Will.
806-7 Rely on statutory provisions re: "usages,
customs and practices". See 1984 Act
sections 23,41
c) Traditional Aboriginal title
808-9 U.S.A. - Johnson v. McIntosh (1823) 8 Wheat
543
810 Later decisions from Cherokee Nation to
Oneida.
811-2 Discussion of Tee-Hit-Ton.
812 Third Party intruders are trespassers
Edwardsen v. Norton (1973) 369 F. Supp. 1359
813 Rely on U.S. v. Santa Fe (1941) 314 U.S. 339
813 Canada - St. Catherines Milling (1888) 14
A.C. 46
But query reference to "personal and
usufructuary right".
814- 5 Calder 34 D.L.R. 3rd 145 discussed in
Detail.
815-6 Followed in later cases.
816-7 Baker Lake. Confirmation in Guerin.
114 (xviii)
MABO v. QVEENSLAND
SUMMARY CHAPTER 6
RECOGNITION
908 Recognition not required but has
occurred.
909 Comprises executive acts, legislation,
and administrative conduct.
909-10 Millirpum - Blackburn relies on
"policy" at 253-257.
911-2 Highlights - purchases of land.
912-3 L.M.S. purchase and lease.
913-5 Reserve.
915 Constant references to "owners".
916 Court records and signing off.
917 By-laws.
918 Statutory powers and functions.
918-9 Official conduct and statements.
920-947 Chronology of recognition conduct.
114 (xix)
MABO v. QUEENSLAND
SUMMARY CHAPTER 7
EXTINGUISHMENT
951 Blackburn - policy of treating land as open
to grants, together with reserves, operates
as extinguishment of title - wrong.
9sO Calder "clear and plain intent" but split on
application.
950-1 Hall J. : title not extinguished by mere
existence of ordinances.
Judson J. : Crown Lands Acts with clear
Intention, inconsistent with any conflicting
interest.
952-5 Baker Lake - not extinguished by mere
existence of statutes because of nature of
territory and not in legislatures mind.
955 Needed actual disposition to extinguish.
956 Followed by Bear Island, Paul Guerin and
Sparrow.
958 In Sparrow - regulation does not equal
extinguishment - adopted Hall J. in Calder,
at 427.
960 Paul v. C.P. 53 D.L.R. 487 at 504-6 mere
existence of scheme doesn't abolish rights
in reserve.
Simon v. R. 24 D.L.R. 43,90 at 406 opening
up land for farming is not of itself
sufficient, must look to use and disposition
of specific area of land.
6 -3 Delgamuukw enactments indicated intention to
extinguish interests and all extinguished
act provided "all land in the colony
belonging to the Crown in fee" but expressly
excepted reserves. (see Delgamuukw at page
245, and 235).
61-3 McEachern J. in error - assumed
acknowledgment of rights would prevent
grant of title to others. Not correct.
964 Seeks to escape Sparrow at 239 by excluding
fishing: in adequate reasoning,
964 References in Dams case per Brennan J. at
158 C.L.R. at 208 not negated by coexistence
of Aboriginal title - only when power to
dispose of land exercised that title is
extinguished.
965 This is consistent with Randwick v. Rutledge
102 C.L.R. 54 at 71 per Windeyer J.
66 Allodial title of Plaintiffs becomes feudal
- see case of Tanistry (1608) Davies at 111
- 112
966-7 Re Southern Rhodesia (1919) 2 A.C. 211
needed actual settlement to extinguish.
8 Amodu Tijani (1921) 2 A.C. 399, Gila River
(1974) 494 F. 2d 1386; U.S. v. Pueblo (1975)
206 Ct. C1. 649; U.S. v. Atlantic Richfield
114 (xx)
MABO v. OUEENSLAND
SUMMARY CHAPTER 9
SECTION 109
1015-16 D.O.G.I.T. scheme would take effect by
degazetting reserve and raking grant in
trust to Island Council. Continued
occupation would then depend on Council
exercising power to grant leases (approved
by responsible minister) and to approve
leases once divested from Council.
1023-1030 Details of operation of statutory scheme for
D.O.G.I.T.S.
1016-17 Breach of section 9 of Racial Discrimination
Act.
1018 Right under article 5 of Convention pursuant
to 9(2) of R.D.A. right to own property.
1018 Or do not enjoy right under section 10.
1019 Alternatively gives preferential rights to
Islanders but denies the same to non-
islanders and non-aborigines.
1019-20 Not a "special measure".
1020-21 Same principles apply here as in Mabo No.1
166 C.L.R. 186 Brennan, Toohey and Gordon
J.J. at 218-9.
1021 Conflict with section 10(2) Racial Discrimination Act by reason of sections 5(7), 51(1), 62, 64, 69, 71 and 73 of Community Services (Torres Strait) Act 1984
1022 Also conflict with Aboriginal and Torres
Strait Islanders (Queensland Discriminatory
Laws) 1975.
1022 Limits now to changes to land rights
leglslation.
1023-30 Details of D.O.G.I.T.S scheme
xxi
MABO v. OUEENSLAND
SUMMARY CHAPTER 1O
POWER TO EXTINGUISH
1032-1033 In Wacando (1981) 148 C.L.R. 1 Gibbs and
Aickin held letters patent authorised by
1861 Imperial Act; Mason J. disagreed but
said colony had power to annex Islands,
W1lson J. agreed letters patent not
authorised by 1861 Imperial Act but said no
effective annexation in 1879, Murphy and
Brennan said validated by 1895 Imperial Act
1034-35 Express words required to confer power
dealing with wastelands on colonial
parliaments. Hence New South Wales
Constitution Act section 2 and Australian
Wastelands Act 1855 (Imp). Queensland
constitutional power to deal with
wastelands in section 30 and section 40
explicitly granted. That grant limited to
land in colonies as then constituted no
additional power to dispose of an
unalienated Crown lands, when additional
territory annexed.
1035 Compare Coastal Waters State Title Act 1980
and Coastal Waters State Powers Act 1980
Section 5 express grant of power needed to
enable recipients to control seabeds.
1036 Rejected by Dawson J. in Mabo 166 C.L.R. 1B6
at 240.
1036-7 Wilson J. in Wacando was correct Imperial
Act needed to alter boundaries of State
since boundaries fixed by earlier Imperial
Act in Australian Colonies Act 1861.
1038 Court in Wacando did not consider section 6
and 7 of Pacific Islanders Protection Act
1872-1875 (Imp). Sovereignty expressly
acknowledged.
1039 When sovereignty acknowledged, not able to
be withdrawn except by Imperial Act.
1039 Therefore Imperial Act of 1895 required in
past. But did not abolish rights of native
inhabitants earlier recognized by earlier
Imperial statute.
1040 Imperial statute required to lay down terms
and conditions of annexation.
1041-2 Rights acknowledged in Pacific Islanders
Protection Act and power to abrogate not
vested in colonial legislature. Any
abrogation inconsistent with imperial
statute. Imperial Crown successor as
international sovereign, is the
Commonwealth.
1042 Imperial crown by letters patent of 1879 and
validating statute 1895 "covered the field"
of legal effects of change of sovereignty.
114 (xxii)
1042-3 Rights remain until affected by further express grant of power by imperial parliament to Queensland or by successor, the Commonwealth.
Keywords: claim, High Court of Australia, Mabo, Edward Koiki, Mabo v Queensland No.2, Moynihan, Justice Martin, plaintiffs, 1991
Author: Kenna, Jonathan