...The Statement Of Claim...
As its name suggests, the statement of claim sets out the claims made by the plaintiffs and also the orders which the plaintiffs want the court to make. It asserted that the Meriam people had 'continuously inhabited and exclusively possessed' the Murray Islands since time immemorial and that the 'Plaintiffs continue to own and have rights in particular areas of land ... and particular parts of the surrounding sea and seabeds and surrounding reefs ... in accordance with the law, customs, traditions and practices of the Miriam people.'
The plaintiffs' claims to these areas was thus based on their traditional native title which, the statement of claim asserted, had survived Queensland's acquisition of sovereignty over the islands. The plaintiffs sought a declaration from the court acknowledging these native title rights, including a declaration that any impairment of these rights by the State would entail the payment of compensation to the native titleholders.
The action was brought against both the State of Queensland (in respect of the land areas under claim) and against the Commonwealth (in respect of those areas of sea which lay beyond the control of Queensland).
On 20 October 1986, during the hearing before Moynihan J in the Queensland Supreme Court, senior counsel for the plaintiffs, Ron Castan QC, explained to the court that:
... it is essential to the claim to examine the position as at 1879, as at the change of sovereignty. It is one of the essential components in order to show that the system [of rights relating to land] as a whole survives, because unless we demonstrate the system as a whole survives, we do not get to the stage where we come to analyse the particular claims of the particular plaintiffs, now in 1986, in relation to their particular plots now on Murray island. So that one of the substantial elements that we have to confront is establishing the overall claim. We have to establish that there was a system in 1879 and that Murray Island has thereafter continued to be under that system ...
His Honour (HH): In other words, what you are saying is unless there was a system where every member of the community's rights to land was capable of recognition, then there's no point in you saying 'we have particular rights'?
RC: Yes, Your Honour, precisely ... this is not a system of this kind of clan ownership in the way in which it is so often referred to in some of the African cases.
HH: So it is not really in a sense what Mr Justice Blackburn was considering in the Northern Territory case?
RC: Yes, Your Honour, it is different. In one sense it is much more precise, a much more active kind of system in relation to particular items of land, as well as in relation to particular individuals, than the kind of system that His Honour Mr Justice Blackburn was considering ...The corollary of that is that it is not essential so far as the plaintiffs are concerned - it is not essential to their case - to show a successive chain of title in relation to the particular land that they own, though we say we are entitled to do that and can do that ... ultimately, once it is established that there was a system at the time of the change of sovereignty, and establish the continuity of the system through to today, then in relation to any given individual all one has to say is 'As from today in that system I am the owner of this particular piece. Someone else is the owner of the next piece and he is not joined in this.'
HH: I suppose theoretically then an ultimate outcome of, if not these proceedings then perhaps subsequent proceedings, would be to the effect, 'I am satisfied that there was a local custom of individual land ownership, but I am not satisfied that the plaintiff has established his entitlement in respect of this particular piece.'
RC: One could well have such a case.
HH: I think I understand where you are going.
The plaintiffs' claims to these areas was thus based on their traditional native title which, the statement of claim asserted, had survived Queensland's acquisition of sovereignty over the islands. The plaintiffs sought a declaration from the court acknowledging these native title rights, including a declaration that any impairment of these rights by the State would entail the payment of compensation to the native titleholders.
The action was brought against both the State of Queensland (in respect of the land areas under claim) and against the Commonwealth (in respect of those areas of sea which lay beyond the control of Queensland).
On 20 October 1986, during the hearing before Moynihan J in the Queensland Supreme Court, senior counsel for the plaintiffs, Ron Castan QC, explained to the court that:
... it is essential to the claim to examine the position as at 1879, as at the change of sovereignty. It is one of the essential components in order to show that the system [of rights relating to land] as a whole survives, because unless we demonstrate the system as a whole survives, we do not get to the stage where we come to analyse the particular claims of the particular plaintiffs, now in 1986, in relation to their particular plots now on Murray island. So that one of the substantial elements that we have to confront is establishing the overall claim. We have to establish that there was a system in 1879 and that Murray Island has thereafter continued to be under that system ...
His Honour (HH): In other words, what you are saying is unless there was a system where every member of the community's rights to land was capable of recognition, then there's no point in you saying 'we have particular rights'?
RC: Yes, Your Honour, precisely ... this is not a system of this kind of clan ownership in the way in which it is so often referred to in some of the African cases.
HH: So it is not really in a sense what Mr Justice Blackburn was considering in the Northern Territory case?
RC: Yes, Your Honour, it is different. In one sense it is much more precise, a much more active kind of system in relation to particular items of land, as well as in relation to particular individuals, than the kind of system that His Honour Mr Justice Blackburn was considering ...The corollary of that is that it is not essential so far as the plaintiffs are concerned - it is not essential to their case - to show a successive chain of title in relation to the particular land that they own, though we say we are entitled to do that and can do that ... ultimately, once it is established that there was a system at the time of the change of sovereignty, and establish the continuity of the system through to today, then in relation to any given individual all one has to say is 'As from today in that system I am the owner of this particular piece. Someone else is the owner of the next piece and he is not joined in this.'
HH: I suppose theoretically then an ultimate outcome of, if not these proceedings then perhaps subsequent proceedings, would be to the effect, 'I am satisfied that there was a local custom of individual land ownership, but I am not satisfied that the plaintiff has established his entitlement in respect of this particular piece.'
RC: One could well have such a case.
HH: I think I understand where you are going.
Keywords: Blackburn, Justice, Castan, Ron, claim, evidence, inheritance, Meriam Mer, Moynihan, Justice Martin, Murray Island, plaintiffs, Queensland, 1986
Author: Kenna, Jonathan