Keon-Cohen, B A --- "The Mabo Litigation: A Personal and Procedural Account" [2000] MelbULawRw 35; (2000) 24(3) Melbourne University Law Review 893

The Mabo Litigation: A Personal and Procedural Account

B A KEON-COHEN[*]

[The Mabo cases have generated a great deal of writing and commentary, but not much of this has described, or described accurately, the course of the litigation from its inception in 1981 to the delivery of the High Court’s judgment in 1992. Lengthy, hard-fought ‘test case’ litigation of this significance carries with it, from time to time, in addition to technical, court-focussed procedural problems and options, a wider penumbra of policy and strategic issues. Personal attitudes and life-decisions of both clients and their representatives can also play a part in the progress of such lengthy litigation. These various threads, the peculiar difficulties of the remitter trial proceedings in the Supreme Court of Queensland, the supervising role of and doctrinal developments in the High Court through this decade, and some significant setbacks experienced by the plaintiffs, all hitherto not widely appreciated, are described in a seven-stage chronological treatment. In some respects a somewhat subjective account is given, but all that follows is carefully based on an extensive collection of court and other materials generated by the proceedings, and the recollections of the author.]

INTRODUCTION

Long-running cases develop a life of their own. In the Yorta Yorta[1] native title claim I began my final address on behalf of the claimants: ‘When I was young, my mother told me that ...’. In that case, as in the Mabo trial, the choice of words was not entirely irrelevant, since much of the evidence led from the claimants about their traditions and customs was in precisely that form.[2] The ruse caught on, such that counsel for each of the dozen or so respondents[3] addressed in like fashion. So too with this article.

When I was young, my father once told me: ‘Son, never talk about yourself; leave that to others.’ This was and remains wise advice which I have attempted to follow. However, times they are a-changing: Justice Michael Kirby has recently recited, in some detail, at a distinguished oration, his (equally distinguished) life’s history.[4] I merely follow high precedent. That said, lawyers’ ‘war stories’ about their favourite cases are generally of little interest to anyone, save the author. But the account which follows contains, I hope, some inherent justification and intrinsic interest.

The case was hard-fought, broke new ground, and always possessed significant implications, a scenario which can attract both unwanted attention and additional procedural problems over and above ‘ordinary’ litigation — if such a beast exists. Such a lengthy ‘test’ case can also become, in turn, a real test of the participants, of the system, of human strengths and weaknesses, of political and legal forces — all focusing on one arena, the court proceedings, in the time-honoured (and some argue, entirely inappropriate) fashion of the common law.[5] The case has triggered significant legal, political and social responses, not to mention an already voluminous literature, none of which I will attempt to summarise here.[6]

Since the High Court handed down its decision on 3 June 1992,[7] the procedural story has never been comprehensively told — nor should it be, bearing in mind client legal privilege, confidentiality, and personal sensitivities. However, the account which follows, derived from the public record, should I think be told, since the genesis, prosecution and results of this case are now a significant part of the nation’s recent history. I am grateful that the Editors of this special centenary edition agree.

In a case of this size and complexity, and given the involvement of so many, what follows is incomplete. Moreover, this can only be a personal account — albeit one based on two primary sources. First, my involvement as junior counsel and, second, an extensive collection of court and related materials covering the period 1982–92 which I have collected, researched, indexed and lodged with the National Library, Canberra.[8]

Another reason for the telling is that in my view, too much of ‘Mabo’ has entered not only recent history, but also the unfortunate realms of misleading mythology. Some accounts of procedural aspects are simply wrong, and it is probably desirable now to set the record straight. I leave aside much ideologically driven journalism[9] and political pontificating, some of which can only be described as irresponsible and deliberate scare-mongering.[10]

Finally and sadly, this account lacks the input and the wise counsel of two leading figures who have now passed away: Eddie Mabo[11] and Ron Castan AM QC.[12] Both gave a significant part of their life’s work to this litigation. Indeed, according to Eddie Mabo’s friend and biographer, Noel Loos, ‘The last words [Eddie Mabo] said to his wife, Netta, were “land claim”’.[13] I do not know the last words spoken by Ron Castan; but I know that this case, and the cause it represented, was both close to his heart and, as with all of the plaintiffs’ legal representatives, a professional priority second to none over a decade. Many others who could shed light on this ten-year odyssey have now also died.[14]

Hard-fought litigation stretching over a decade — like any theatre of war — can digress into many areas and can reveal much at the personal level. After a decade the dust has settled — to some extent — and some things can now be said. But equally, and not only for reasons of client legal privilege, some things still cannot be said, and perhaps never should be — at least not by me. People are entitled to respect and privacy; personal careers continue to evolve; and the brutal bottom line is that the Mabo so-called ‘judicial revolution’[15] remains fragile, and strenuously opposed by powerful interests in this country. In this (still) polarised atmosphere, care and caution are required: one would not wish to provide ammunition for use by irresponsible terrorists — or even by astute legal opponents.

B THE SEVEN AGES OF MABO

Describing procedural aspects of the Mabo litigation is a little like Rich J’s elegant observation concerning the role of the High Court: that is, ‘to explain the elliptical and expound the unexpressed.’[16] The procedural aspects of this case may be examined in a number of ways — doctrinally, thematically, chronologically, personally — but I will take (for sanity’s sake) a chronological approach. To that end, and to shorten much tedious detail, a Select Procedural Chronology is set out at Appendix I and underpins much that follows. With apologies to the ubiquitous bard,[17] the proceedings may be conveniently examined under seven heads:

1. The Law of Terra Nullius in 1981;
2. The Genesis for Action: 1936–81;
3. Pleadings, Particulars and Power Plays: 1982–86;
4. Justice Moynihan’s Trial — Phase 1: October–November 1986;
5. Bjelke-Petersen’s Demurrer Interregnum: 1985–88;
6. Justice Moynihan’s Trial — Phase 2: May–September 1989; and
7. The High Court’s Own ‘Autochthonous Expedient’: 1991–92.

I The Law of Terra Nullius in 1981[18]

1 The Common Law

In 1981 Australian law concerning indigenous land rights was neither simple, sensible, nor just. It starkly diverged from that which applied in equivalent former British colonies, especially the United States of America, New Zealand and Canada. Modern doctrines in this arena were laid down in three classic and much quoted judgments of Chief Justice John Marshall in the US Supreme Court in 1823,[19] 1831[20] and in 1832.[21] Those cases recognised pre-existing traditional rights to land, and that those rights survived the act of colonisation by the British Crown as enforceable property rights. These principles stated by the Chief Justice were followed in New Zealand in 1847;[22] in Canada in 1888[23] and (by a minority) in 1973;[24] in the Privy Council on appeal from African states, including in recent years;[25] and in the International Court of Justice.[26] In Western Sahara Vice-President Ammoun concluded that ‘the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned.’[27]

Australian law in 1981 was beginning to emerge from the shackles of the Privy Council, especially leading to the passage of the Australia Acts in 1986[28] and a new-found willingness by the High Court as this country’s ultimate court of appeal to state the common law of and for Australia. But in relation to native title, the law of Australia was still locked in the past. The issue had never been directly presented to the High Court; and the Court had indicated, on more than one occasion, that it considered the issue to be significant and worthy of attention. Indeed, the doctrine applying in Australia, as spelt out by the Privy Council in 1889,[29] had been described in 1979 by Murphy J as a ‘convenient falsehood’.[30]

The High Court had in fact considered the issue — albeit arising in Papua New Guinea — in two cases, Geita Sebea[31] and Daera Guba,[32] and had issued dicta recognising pre-existing traditional rights to land in that country. In Daera Guba Barwick CJ said:

I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. ... [T]he traditional result of occupation or settlement [was] that though the indigenous people were secure in their usufructuary title to land ... the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown.[33]

These words are reflected in the relevant passages of Brennan J’s leading judgment in Mabo [No 2][34] 20 years later — where the Court did decide the matter.

Australian courts in colonial and modern times had, in the main, rejected arguments seeking to establish traditional land rights at common law. In 1836 the New South Wales Supreme Court held that the criminal law applied equally to all persons, including Aborigines, who were deemed to have no recognisable laws of their own.[35] The proposition that no land law existed in New South Wales prior to 1788 was upheld by the Privy Council in 1889[36] and was never debated, let alone challenged, during the constitutional debates of the 1890s. As has been discussed elsewhere,[37] the Constitution not only ignored the indigenous population, it positively discriminated against them[38] — the founding fathers no doubt comfortable with the notion that they were acting in accordance with the common law. This ‘convenient falsehood’ and various common law principles underlying it were further upheld in Australian property cases ‘of great authority’[39] decided between 1847 and 1959.[40] These were again upheld in the Northern Territory Supreme Court in 1971 in the Gove Case,[41] discussed below; in the New South Wales Supreme Court in 1976;[42] before the High Court in 1979;[43] and in other judgments in this century in India,[44] New Zealand,[45] the USA[46] and the UK on appeal from Africa.[47] Thus in 1981 the common law stood against the plaintiffs, but with some room for argument.

The leading Australian case — the Gove Case,[48] argued in 1970 — was in 1981 the most substantial and scholarly confirmation of this position. In Gove the Yolgnu people of Arnhem Land argued in essence that which was argued in Mabo [No 2][49] 20 years later: that is, that Anglo-Australian common law incorporates a doctrine of ‘communal native title’ which recognises pre-existing traditional rights to land founded on the community’s prior occupation, customs and traditions, and that these rights survive the relevant act of British colonisation, and continue as enforceable legal rights known to Australian law. Blackburn J decided that no such doctrine was known to Australian law ‘for want of authority to support it’.[50] However, Blackburn J left the door ajar — just a fraction. He ruled that the plaintiffs before him manifested a system of customary laws which delivered to the community ‘a government of laws, not of men’ and which was a recognisable system of law. His Honour said, however, that this system did not contain rights in land recognisable by the Australian common law. He stated:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me. ... Great as they are, the differences between that system and our system are, for the purposes in hand, differences of degree. I hold that I must recognise the system revealed by the evidence as a system of law.[51]

His Honour, from this position, proceeded to examine whether that traditional system of law delivered property rights recognisable by Australian law. His Honour concluded, after examining ‘the substance of property interests [being] the right to use and enjoy, the right to exclude others, and the right to alienate’,[52] that ‘these [traditional] claims are not in the nature of proprietary interests’.[53]

2 Legislative Reform?

The Gove Case was not appealed,[54] and in the following years was the subject of much scholarly criticism.[55] However, this significant legal loss led to an equally significant political response. Upon attaining government Prime Minister Gough Whitlam, early in 1973, commissioned senior counsel for the Gove plaintiffs, Ted Woodward QC, to inquire into and report upon, not whether, but how traditional rights to land in the Northern Territory might be recognised.[56] The Woodward Reports[57] of 1973 and 1974 led directly to the introduction of a Bill[58] by the Labor Party in 1975 (which fell with the Government in November 1975), and its eventual revival and enactment, in modified form, by a new Fraser Coalition Government in 1976. This became the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Therein lies another large story which is not pursued here save to make two observations. First, by 1981, no such legislative reforms were proposed, or seemed possible, at the Commonwealth or Queensland levels, to the above mentioned common law denial of native title in the Torres Straits or any other part of Queensland — or in any other State for that matter.[59] Indeed, as discussed below,[60] in 1981 the long-standing Queensland Bjelke-Petersen Government was proposing the opposite — to reduce such minimal protections previously enjoyed by Aborigines and Islanders to reside on lands gazetted as reserves under the Land Act 1910 (Qld) unmolested by development, being a scheme which had been in place in Queensland since 1912.[61] Second, and ironically, the Gove failure of 1971 triggered a stronger and more supportive legislative regime in the Northern Territory in relation to protecting indigenous ‘land rights’ there, than the Mabo [No 2] victory triggered around the country 20 years later, especially when the 1998 amendments to the Native Title Act 1993 (Cth) are factored in.[62] The legislative history has indeed moved strangely — and backwards — in this arena, at least from the indigenous perspective.

II The Genesis for Action: 1936–81

Like the instigation of the Aboriginal Legal Service in Melbourne,[63] ‘[t]oday a number of people nurse the belief that he or she “began” the case.’[64] The case began, on one view, with Blackburn J’s adverse decision in 1971, the decision not to appeal the Gove Case to the High Court, and subsequent criticism of both events. Court cases, including ‘test cases’, all start somewhere — usually with a grievance — and can ‘start’ at all sorts of moments and in all sorts of ways, depending upon your perspective. However, all do require at least one plaintiff.

1 Eddie Koiki Mabo

Eddie Mabo, his fellow plaintiffs, and the Meriam people, only a small proportion of whom lived at Murray Island at any one time, were, collectively, that plaintiff. However, in my view, without Eddie Mabo there was no case. Whilst acknowledging significant contributions from the other plaintiffs and many Murray Islanders and others, the fact remains that Eddie Mabo was the main driving force, the indispensable bridge between the Anglo-Australian legal system and the traditional system of land-holding on the Murray Islands. It was he who came to understand each system; and he who was able to explain each to the other with the necessary authority, detail, and eye to relevance that is so necessary for court purposes. It was he who pushed on, despite formidable personal difficulties and political opposition, to his (ultimately unfulfilled) personal end; but to a community victory.

Eddie Mabo was born on Mer (Murray Island) on 29 June 1936, and passed away after suffering from cancer on 21 January 1992. As I said at his funeral in Townsville in February 1992:

[F]or me and the lawyers we particularly remember his friendliness and hospitality, his initiative and originality, his courage and quiet determination, his intelligence and astonishing knowledge and memory of his people, his island, its history, customs and traditions. Above all I remember his deep commitment to correcting historical wrongs, some very personal, and to achieving recognition of traditional land rights of his family, and his people. He was in the best sense a fighter for equal rights, a rebel, a free-thinker, a restless spirit, a reformer who saw far into the future and far into the past.[65]

I adhere to all the above. But perhaps here it should be said that other, less complimentary, views have been expressed about Eddie Mabo by both his own people[66] and the broader Australian community. One such critical view which mattered and which he never accepted, was that of Moynihan J when assessing him as a major witness in the Mabo trial.[67]

Mabo gave substantial evidence spread over 15 days[68] before Moynihan J in the (to Mabo) strange environment of the Queensland Supreme Court, sitting in full panoply in Brisbane. A critical issue was whether Eddie Mabo was adopted by Benny Mabo, his paternal uncle, and his wife, Maiga, and thus inherited the lands he claimed. Moynihan J, in his Determination of Facts,[69] recorded that Mabo lacked credibility and that he would not accept his evidence on any matter going to self-interest, save if corroborated by other credible evidence.[70] Thus no claims made by Eddie Mabo to his family lands and seas on and around Mer were accepted at trial.

2 Personal Motivations

One might ask: ‘why did Eddie Mabo pursue this case, relentlessly over ten hard years?’ My own view, for what it’s worth, is that he was much impressed and guided by his father’s leadership in the Torres Strait Maritime Industry strikes in 1936.[71] Eddie Mabo was also offended, rightly so, by severe restraints imposed upon him and other Islanders under the Queensland Aboriginal and Torres Strait Islanders statutory regime,[72] known colloquially as ‘Killoran’s law’.[73] He was also deeply affected by the then Murray Island Council’s decision which banned him from the island as a teenager for a petty misdemeanour; and a further decision by the Council, delivered, Mabo believed, with the active support of the Queensland administration in 1975, which granted him permission to return home to be with his dying father provided he avoided ‘political affairs’.[74] These wounds were still real and evident during the 1980s. He spoke of these injustices during his evidence, describing how, in defiance of the ban, he sailed a boat to the Island — but arrived too late. He broke down in court, weeping, when Queensland played a tape[75] of his adopted father’s voice, as part of their case.[76]

A further motivation, felt by many Torres Strait Islanders, was that though Islanders had assumed for generations that they continued to enjoy their traditional rights to their islands and surrounding seas, Mabo had recently discovered, to his astonishment, that Australian law said otherwise. The public record suggests that this realisation arose from two sources. First, the issue came to light during agitation concerning the Whitlam Government’s proposed redrawing of the borders between Australia and Papua New Guinea leading to the signing of the Torres Strait Treaty 1978.[77] The suggestion was that if Islanders became citizens of Papua New Guinea, their traditional rights would be recognised in that country. Islanders strenuously resisted any such alteration of the international border and their citizenship. Second, whilst Mabo was working as a gardener and part-time teacher at James Cook University during the 1970s, he was advised of this legal reality by one Professor Henry Reynolds. This to him and other islanders was legal nonsense, and a situation which had to be rectified.

Mabo was also a loving husband and father,[78] and an Islander activist and politician. He sought to advance the interests of, and secure a brighter future for himself, his family, the Meriam people, Islanders and the broader Australian indigenous community. The national prominence the case offered in the running, let alone if it succeeded, was obvious from the early days, and such attention was not lost on him.

3 Threats to Their Island Home[79]

Since 1912 Murray Island, along with other islands in the Torres Strait, had been ‘permanently reserved and set apart for use of the Aboriginal Inhabitants of the State’.[80] Allied to the Islanders’ general opposition to Queensland’s repressive laws was the unwelcome announcement by the then Bjelke-Petersen Government, early in 1981, that it proposed to repeal the Torres Strait Islanders Act 1971 (Qld) and de-gazette the various Torres Strait Islands as reserves.[81] The Government initially proposed, as an alternative, to grant 50 year leases to Island communities.[82] This scheme was opposed by the Torres Strait Islanders Advisory Council[83] which secured the Premier’s agreement that no action would be taken until they had tested the feelings of Islanders in the Strait.[84] Early in 1982 Mr Bjelke-Petersen announced a new proposal: that the Government would revoke the reserves and issue Deeds of Grant in Trust (‘DOGITs’) to replace them.[85] Under this proposal nominated Trustees (including government appointees) were given power to lease the areas until then reserved for the plaintiffs’ benefit and to prevent the Meriam people and the plaintiffs from residing on the lands for more than one month without the permission of the Minister for Lands pursuant to the Land Act 1962–1975 (Qld) s 350.[86] This scheme also caused alarm, and was opposed: its details were pleaded in the statement of claim,[87] and injunctive relief sought to prevent its introduction.

Given the attitude of the Queensland Government to indigenous rights, be they land-related or otherwise, these proposals were alarming news for Murray Islanders. Thus they might well have thought that they had nothing to lose by supporting the proposed case — save a quiet life. This was not, however, quite how things turned out. By April 1991 DOGITs had been granted in respect of all islands in the Torres Strait other than Murray Island.[88] The Murray Island reserve was not de-gazetted, and the DOGIT scheme was never introduced to it, as threatened. But as discussed below, further legislation was enacted by the Queensland Government expressly to defeat the case once and for all.

4 The 1981 Conference

This brings us to what is widely considered to be the immediate trigger that ‘started’ legal proceedings: a land rights conference held in Townsville on

28–30 August 1981.[89] At that time the Townsville Chapter of the Aboriginal Treaty Committee[90] (co-chaired by Mabo and Loos) and the James Cook University Students’ Union organised a conference entitled ‘Land Rights and the Future of Australian Race Relations’. Henry Reynolds, by way of introduction, indicated that an impetus for the conference was an endeavour to understand public antagonism in north Queensland to land rights, and spoke of a ‘vast historical injustice’.[91] Several speeches of substance were delivered.[92]

One Eddie Koiki Mabo delivered an address[93] where he, inter alia, spoke of his traditional education received from many people, especially ‘my late mother and father Maiga and Benny Mabo of Las village’ — a statement supportive of his evidence going to his land inheritance before Moynihan J but not tendered.[94] Mabo also explained the traditional land ownership and inheritance system on Mer, and suggested that the Torres Straits should be ‘transferred to the Commonwealth’ since ‘[w]hat we actually want is real help, not patronizing colonial rule anymore’.[95]

Subsequent speakers[96] reaffirmed that the Meriam people owned, traditionally, their island; that they feared the stated intention of the Queensland Government to repeal the Torres Strait Islanders Act 1971 (Qld); and that recent consultations by the Island Advisory Council recorded that the Islanders had ‘agreed ... that they should have inalienable freehold title to the land and that also they should be given control over their own affairs’.[97] On this basis, the immediate trigger for the Mabo litigation was fear of these proposed reforms by the Bjelke-Petersen Government.

The technical contributions (so far as Olbrei reveals) at this conference concerning the prospects of litigation emerged in the last session, entitled ‘A High Court Challenge’, through substantial legal papers presented by Barbara Hocking,[98] of the Melbourne Bar, and Greg McIntyre,[99] solicitor. Hocking’s paper reviewed a range of common law, international law, and constitutional issues (especially the reasoning of Blackburn J in the Gove Case),[100] and commenced with the somewhat prescient observation that:

[W]hether or not [such a claim] was successful, [it] might very well act as a catalyst for action at the political level. ... A test case brought by a group of Queensland Aboriginals who still live on their tribal lands could influence the attitudes of white Australians and the terms of the Makarrata [treaty]. It might for example lead to the establishment of a Court of Claims and an Aboriginal Claims Commission similar to the ones set up in the U.S.A. to determine the Indian claims to compensation for the loss of tribal lands.[101]

Although she did not expressly say so, it is fair to infer from her paper that Hocking was ‘proposing that an Aboriginal group should consider a High Court challenge’.[102] On this basis Eddie Mabo, ever the political opportunist,[103] seized upon an initiative also intended for an aboriginal mainland group.[104]

Greg McIntyre, then a solicitor with the Aboriginal and Torres Strait Islanders Legal Service in Cairns, and the then instructing solicitor in another significant Queensland contribution to race relations — Koowarta[105] — followed Hocking with a similarly substantial and legalistic paper, stating that his aim was ‘to put forward the theory that Aboriginal land rights do have some existence outside statute law in Australia’.[106] He discussed various common law issues, covering similar ground to Hocking, concluding with some foresight: ‘It is my view that the Aboriginal inhabitants of a community defined by their association together for the purpose of their believed right to use a certain piece of land would have a good claim to its continued exclusive use.’[107]

McIntyre subsequently was the instructing solicitor, and occasional counsel, in the Mabo cases throughout 1982–92.

It seems that following these papers, the Murray Islanders held an in camera meeting. Present were[108] Dr Nonie Sharp, Professor Garth Nettheim, Dr Nugget Coombs, Eddie Mabo, Father Dave Passi, Phillip Mills (observer) and Flo Kennedy.[109] The meeting emerged with the announcement that the Murray Islanders wished to pursue such a ‘Gove-type’ case. Eddie Mabo became the leading plaintiff in the litigation which, thereafter, emerged. Before the end of the day, Greg McIntyre was instructed as solicitor, and Barbara Hocking was retained to consult with senior counsel in Melbourne and to provide an initial advice.

III Pleadings, Particulars and Power Plays: 1982–86

This period ran, broadly, from September 1981 to February 1986 — though amendments to the statement of claim continued to the very last day of argument before the full High Court in May 1991![110] During this third ‘age’ the legal team was retained; research was initiated into the legal and factual issues (including two visits to Mer); the statement of claim was laboriously drafted and filed in the High Court Registry in Brisbane; and the authorities in Canberra were pursued (with partial success) regarding a grant of legal aid. On 27 February 1986 Gibbs CJ made orders, after argument, remitting the trial of the action to the Supreme Court of Queensland, albeit in federal jurisdiction — a matter of some importance.[111] In summary, the period (at least from my chair in Melbourne) saw delays in relation to pleading and squabbles over requests for, and a reluctance to provide, particulars and further particulars of the statement of claim broke out. Finally, argument arose over which court should conduct the trial of facts — or whether such a trial could be avoided in favour of an alternative procedure, for example, referring a case stated to the full High Court on a set of agreed facts,[112] being the facts alleged in the statement of claim.

1 Two Test Cases?

Initially, work proceeded on developing two cases: one for Mer, another for the Yarrabah community, located on an aboriginal reserve in Far North Queensland. Meetings and preliminary advices in mid-September 1981 raised these prospects[113] and by March 1982, two draft statements of claim had been prepared.[114] However, for reasons uncertain to me, but apparently associated with a death in the community in June 1982,[115] and difficulties in obtaining instructions, the Yarrabah aboriginal action faded away. Alternatively, perhaps the complexity — and the expense — of running two such cases quickly became apparent, and all too much to contemplate. Some hard decisions were doubtless taken, somewhere, by somebody. Yet another explanation sometimes heard is that instructions from Yarrabah were coming mainly from one Mr Neal — who was ‘entitled to be an agitator’[116] — but who, during this period, was notoriously jailed by a local Magistrate for spitting through a wire-screen door at a police officer.

Some peculiar features surrounding the pursuit of an Islander, rather than an Aboriginal, native title test case should be noted. The Torres Straits[117] were annexed to the Colony of Queensland by the British Crown in 1879[118] — 101 years after Governor Phillip proclaimed the Colony of New South Wales as a British colony at Botany Bay. That annexation was held valid by the High Court in Wacando[119] in 1981. The three modes of acquisition of a new colony — cession, settlement or conquest — were pleaded in the alternative in Mabo’s case, and were put in issue, but in the end, ‘settlement’ as the accepted mode of colonisation of the Torres Straits was not seriously questioned by the plaintiffs. Nor was the validity of the extension of British sovereignty questioned: indeed, the statement of claim at paras 7–9 pleaded that by the extension of British sovereignty, the island became part of the Colony of Queensland in 1879[120] — but ‘subject to the laws in force therein’.[121] These laws of Empire had developed a little since the same body of law was applied to the colonisation of Australia in 1788 — especially with the enactment of the Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19 and the Pacific Islanders Protection Act 1875 (Imp) 38 & 39 Vict, c 51 by the Imperial Parliament. This law was applicable to various Pacific Islands, including Murray Island, prior to annexation in 1879 and thereafter. Under its provisions Murray Island was subjected to English law in a limited way. Courts were constituted to govern British subjects who were present on such islands. In addition, s 7 proclaimed the sovereignty of the Chiefs of the various islands and, by implication at least, accepted that these communities and their Chiefs were sovereign and independent powers.[122] This legal history raised interesting and unique (as compared with Aboriginal Australia) prospects for the recognition of customary law and traditional connections to land — though in the end, nothing came of this line of argument.

Second, as to the details of land holdings, Murray Islanders, in stark contrast to most mainland aboriginal communities, engaged in small-scale gardening and horticultural activities which suggested a possible means of distinguishing, or distancing this case, on the facts, from the Gove precedent. In the end, this aspect was irrelevant in the Court’s reasoning in Mabo [No 2]: the underlying common law principles applied Australia-wide, irrespective of factual variation in traditional life.

Another intriguing wild-card touching the Murray Island situation was the application of the doctrine of ‘terra nullius’ to the seas — especially those seas beyond the territorial limits of Queensland — ie, the plaintiffs’ claims to the Great Barrier Reef lying 20 km to the east of Murray Island.[123] Why would those doctrines extinguish, upon colonisation, traditional rights to those outer seas when those areas were never ‘colonised’ — at least not until the commencement of the Australian Constitution by an Imperial Act in 1901.[124] Perhaps, if all else failed, a ruling concerning the seas located immediately offshore, or the outer seas located solely within Commonwealth jurisdiction, might be achieved. The Seas and Submerged Lands Case[125] had examined such issues in detail in 1975, raising arguments concerning sovereignty, the Commonwealth’s external affairs power (s 51(xxix)), and the legislative powers of the Imperial, Commonwealth and State Parliaments[126] over coastal waters.[127] That case held that the colonies’ boundaries extended only to the low water mark and no further.[128] But none of the Mabo issues had been considered, and thus the seas assumed some unique importance. Further, as to the daily realities of Island life, a success in relation to these seas alone would still be of great significance to the plaintiffs. As it is, the failure at trial to prove traditional interests in these sea areas — even to the beach-side fish traps and surrounding reefs — was and remains a source of total bewilderment to the plaintiffs. To them, the land and seas hold no boundaries: they form part of one holistic domain, all governed by custom and tradition. Complex questions of whether native title, at common law or under the Native Title Act 1993 (Cth), extends to the seas and, if so, how far offshore, are now being agitated before the High Court in the Croker Island Case.[129]

Last, and importantly, the circumstances of such a remote and recently ‘settled’ island raised the obvious possible advantage of less destruction of cultural life due to the impact of colonisation. Following occasional visits by explorers[130] and surveying parties[131] to the Straits, the bêche-de-mer and pearl-shell fishing industries began in the Straits in the 1840s and 1860s respectively. In 1877 two members of the London Missionary Society arrived at Murray Island[132] and purchased or rented land on the Island from the traditional owners. By 1879 a church had been built and government administrators were visiting. In 1894 J S Bruce was appointed the first government school teacher on the Island and the Island Court began to sit, informally at first but later pursuant to statute.[133] This relatively low level of European contact presented a real contrast compared to the experience of Aboriginal communities since 1788 along the east coast of the mainland. However, a risk arose with the Murray Islands’ relative isolation: that the Court would respond in a localised way, a situation complicated by the fact that Torres Strait Islanders, although Australian citizens and subject to the same laws, were, and strongly considered themselves to be, a different and distinct race (being Melanesian in origin) from the Aboriginal race. Again, being the last inhabited territory to be colonised of all the Australian colonies,[134] and given different laws of Empire, any precedent (successful or otherwise) might be confined to the Torres Straits. However, as mentioned, this limited legal result did not come to pass. But these issues were earnestly discussed late in 1981 when it appeared that two communities — Aboriginal and Islander — had provided instructions.

2 The Statement of Claim

This, like every other such statement of claim, was an important document and was, so we authors thought, a pure piece of poetry — although it was repeatedly amended by the same authors as the decade wore on! The task was lengthy, all of it done, redone and redone again, on a then state-of-the-art IBM golf-ball typewriter, steadfastly operated with increasing frustration by Ron Castan’s then secretary (later his clerk) Glenda McNaught. It was at about this time that we began to realise the difficulties ahead; and that various professional and personal lives began to change. Both experiences continued for the next decade (and in some instances, beyond). There were no precedents, though pleadings arising from the Gove Case[135] were examined. Likewise, Blackburn J’s decision, with many other North American, New Zealand and Privy Council decisions, some referred to above, were all examined for helpful pleading clues — not to mention one or two issues of substance. Finally, a writ with an endorsed statement of claim was filed in the Brisbane registry of the High Court. It bears the date 30 May 1982 and led to a tangled plethora of pleadings and particulars.[136] Five Murray Islanders were named as plaintiffs: Eddie Koiki Mabo; Celuia Mapo Salee;[137] Sam Passi; his brother, Father Dave Passi; and James Rice. Of these, Celuia Mapo Salee and Eddie Mabo died,[138] and Sam Passi discontinued his action,[139] suffered a stroke in 1988 and died in 1990.

3 A Representative Action

As Moynihan J noted more than once in his Determination the claim was, from the beginning, a representative action — an issue which became of added significance before the full High Court.[140] The pleading records that the plaintiffs ‘bring this action [on] their own behalf, and on behalf of the members of their respective family groups’.[141] Declaratory and injunctive relief was sought, variously, on behalf of the plaintiffs, their predecessors in title, and the Meriam People.[142] In his Determination Moynihan J made findings both about individual claims made on behalf of groups and, less directly, about Murray Islanders’ relationship to the Islands and seas as a whole. The Judge stated:

[I]t may be accepted on the evidence that Murray Islanders have a strong sense of relationship to their Islands and the land and seas of the islands which persists from the time prior to European contact. They have no doubt that the Murray Islands are theirs. ... There is no doubt that those Murray Islanders who gave evidence succeed in conveying a strong sense of the observation of propriety in respect of land. ... I have little difficulty in accepting that the people of the Murray Islands perceive themselves as having an enduring relationship with land on the Islands and the seas and reefs surrounding them.[143]

4 The High Court, Defendants and Original Jurisdiction

From the beginning, the claim was intended for the original jurisdiction of the High Court[144] — even though, after the lengthy trial heard by Murphy J in the DOGS Case,[145] we as counsel assumed that the Court would not in future favour utilising the time of High Court Justices to conduct trials. The plaintiffs’ procedural strategy was to issue in the High Court, and have the matter remitted — hopefully to the Federal Court — to determine questions of fact only, thus retaining the High Court in a supervisory role in relation to fact-finding, and as the sole arbiter of the critical legal issues. This was considered a desirable course, in order (in the main) to avoid, or at least distance, the impact of adverse precedent;[146] to avoid lengthy and expensive appeals from an inferior court; and to avoid further layers of potentially adverse decisions.

The defendants were Queensland and the Commonwealth. Queensland was an obvious choice — and at this stage, considerable fears were still entertained in Melbourne, Cairns and on Mer concerning the Queensland Government’s intentions to de-gazette the island reserves. Thus injunctions and declarations were sought against it.[147] Indeed, mutterings about injunctions and the need for secrecy leading up to the issue of the writ can be found in the correspondence of that time.[148] The Commonwealth as a defendant, however, was more problematic, especially since no relief other than declarations[149] was sought against it. However, the claim included issues involving interpretation of the Constitution, in that s 109 was triggered by reason of alleged conflict between various Queensland laws applying to Murray Island, on the one hand, and the Racial Discrimination Act 1975 (Cth) ss 9 and 10 and other Commonwealth laws, on the other. These laws were pleaded,[150] as was an international treaty,[151] in various versions of the statement of claim. All of this founded original jurisdiction in the High Court under the Constitution s 75(iii).

However, this question of original jurisdiction was agitated, from time to time, by Queensland when time permitted — especially when, by agreement, the Commonwealth withdrew as a party.[152] With no Commonwealth as a defendant, hanging onto the original jurisdiction of the High Court under s 75(iii) became problematic — although s 109 questions and the Torres Strait Treaty 1978 were still in issue.

5 The High Court: 1982–92

The decision as to whether to issue in the original jurisdiction of the High Court also involved an assessment of how long this saga might run, and how the High Court as then composed might deal with these issues, including the question of a remitter. We hopelessly underestimated the question of duration, but did better on outcomes! Ten years in the life of any court — including the High Court — can be a long time. The changes in membership, and jurisprudential developments over the period 1982–92, were both considerable — as has been the case in the decade since. One wonders how the case might be received today. In May 1982 the Court comprised Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. During 1982–92 two Justices died (Aickin and Murphy JJ),[153] two resigned (Stephen and Wilson JJ),[154] and one retired (Gibbs CJ).[155] A new Chief Justice was appointed — Mason CJ,[156] as were a total of five new puisne Justices — Deane,[157] Dawson,[158] Toohey,[159] Gaudron[160] and finally McHugh JJ in 1989.[161] Thus a differently constituted Full Court heard argument, in March 1988, in the crucial Mabo [No 1][162] from that which heard argument, in May 1991, in Mabo [No 2].[163] And of course, Eddie Mabo himself died on 21 January 1992 whilst awaiting judgment. Such are the fortunes of history for courts, and litigants. However, given the development through the eighties of the ‘activist’ character of the Mason Court, these delays — early pleading procrastination and denial (mainly by Queensland); two years spent arguing the demurrer leading to Mabo [No 1]; a lengthy trial; plus one year for the trial Judge to deliver his Determination of Facts — all worked, arguably, to the plaintiffs’ advantage in that Mabo [No 2] can be seen as the high point of this activist period. Yet another unknown during this period was the trials and tribulations of Murphy J,[164] which began around 1982, ending with his death in October 1986.

In 1982 we considered the Court to be interested in both resolving the central issue, and maintaining some oversight over the litigious process. As mentioned above, some dicta then recorded in various judgments prior to 1982 supported this approach.

6 First Visit to Mer

In June 1982 the plaintiffs’ legal team[165] made its first visit to Mer. This involved commercial flights to Thursday Island, over-nighting there,[166] then a further small-aircraft ‘milk-run’, island-hopping out to Mer on the eastern fringe of the Torres Strait. We picked up one Eddie Mabo along the way in Cairns, and Ms Flo Kennedy[167] on Thursday Island.

Whilst on the island for three days, we viewed it all (5 km long, 3 km wide) and travelled by dinghy to the two adjacent islands also under claim, Dawar and Waier. We interviewed potential witnesses, and held a community meeting explaining the proceedings — all normal activity in such a ‘land claim’. We marvelled at the tidy house plots and garden areas — mostly overgrown — but nevertheless in many instances clearly bounded by wooden fences, or by rocks placed at corners and along the boundaries. The legal team, transformed in an instant into expert, highly qualified and immensely experienced surveyors, set about producing, by hand and on the spot, accurate maps of the areas under claim — all of which were subsequently tendered. We saw ladies examining the bare earth in front of their homes every morning for footprints, to ascertain whether anybody had ‘trespassed’ during the night, against the laws of Malo. We were told about, and shown written accounts of, these ancient Malo laws, one of which, broadly rendered, states:

Malo tag mauki mauki,

Teter mauki mauki.

Malo tag aorir aorir,

Teter aorir aorir.

Malo tag tupamait tupamait,

Teter tupamait tupamait.[168]

Roughly translated from the Meriam, this means:

Malo keeps his hands to himself; he does not touch what is not his.

He does not permit his feet to carry him towards another man’s property.

His hands are not grasping, he holds them back.

He does not wander from his path. He walks on tiptoe, silent, careful,

Leaving no sign to tell that this is the way he took.[169]

All of this spoke to us of evidence of ‘custom and tradition’ and ‘traditional connection to land’. We marvelled at the fish traps — long lines of blocks of basalt, piled to 100–150 cm high, running offshore for perhaps 300 metres, then curving round in a great arc to return to shore 2–300 metres further down the beach. These had been built in the distant past by unknown persons using materials not locally available — none of which was ever explained.[170] We visited the village of Las at the northern tip of the island, a place which Eddie Mabo called home and where he is now buried. This was where he grew up with his adopted parents (as he saw it) and where he now claimed traditional lands and fish traps, being areas he inherited from Benny Mabo under ‘Aislan Kustom’. This too was the home of the Bomai-Malo cult, the ancient religion of Mer Island. We also saw massive shoals of sardines swimming just offshore, with Islanders in hot pursuit, throwing nets and spilling them, wriggling and glistening, across the sand. And with the catch came the camp followers — squads of cats — fat, lazy and very well-fed. This was instant fresh Snappy Tom, in huge abundance! It was also living evidence of daily use of the resources of the seas, and one explanation of the powerful physiques of the Murray Islanders — especially as depicted in photos taken around the 1880s and 1890s.

We also saw another side: the impact of colonisation since 1789. This took obvious forms: an airstrip perched precariously on top of a plateau (reminiscent of strips one negotiates in Papua New Guinea); well-established administrative buildings; a medical aid post; a primary and secondary school; a council chamber; a community hall (subsequently brilliantly decorated and used as a court room for hearings before Moynihan J); an ugly overflowing tip; a canteen (alcohol sold during late afternoon only); dozens of small wooden family houses on stilts; and one (repeat one) public phone booth, located outside the general store. Due to an inadequate water supply and limited employment opportunities, the Mer community during the 1980s numbered about 200 only at any one time,[171] with some thousands located on other islands and on the mainland, especially in Townsville, where Eddie Mabo and his family lived. A modern Anglican church — the latest in a line — has also been built in the main village, presided over by plaintiff Father Dave Passi, an ordained Anglican Minister.[172] His Sunday services were attended by many devout local Christians, of all ages. In addition, various Pentecostal faiths enjoyed a strong following, with much vigorous gospel worship, singing and dancing bursting forth all over the Island on Sunday mornings. A prominent and well-tended cemetery flanked the village beach, with many names of importance in tracing genealogical connections. This cemetery is not Eddie Mabo’s final resting place, however. Following the desecration of his grave in Townsville in June 1995[173] he was put to rest two kilometres to the north, just up the hill above Las, in a clearing amongst the dense tropical rainforest, his spiritual home. A map of the Island is found at Appendix II.

7 Strike Out Application

On 18 August 1982 Queensland issued a summons to strike out the whole of the Statement of Claim as revealing no reasonable cause of action, or as frivolous or vexatious; alternatively to refer questions of law to the Full Court.[174] This application was supported by a lengthy affidavit sworn by one Patrick James Killoran, the long-serving and very senior Director of the then Queensland Department of Aboriginal and Islanders Advancement.[175] The summons, returnable in Canberra on 15 September 1982, led to a fulsome letter from the plaintiffs’ solicitor, complaining about lack of courtesies and the like, and pointing out the realities, namely, that the plaintiffs’ application for legal aid was still under consideration in Canberra.[176] The strike out posed a maze of procedural possibilities, some of them attractive (at least from the financial point of view), for example, referring questions to the Full Court, thus avoiding a trial.

The hearing came on before the recently appointed junior puisne Justice Deane on 28 October 1982.[177] In the event, the issue was never agitated before him, save that the parties advised, at 10:15 am, that they wished time to confer — a wish that was, of course, readily granted. The lawyers thereupon crowded into chambers on the sixth floor of the High Court building to negotiate the fate of the application: counsel and solicitors for the plaintiffs,[178] for Queensland[179] and for the Commonwealth.[180] Eddie Mabo, the ubiquitous stream of tourists, members of the public, and the odd journalist waited in the cafeteria below.

After some considerable discussion, none of which, to my memory, seriously pursued the strike out application, it was agreed in essence that Queensland’s application would be withdrawn; and that the plaintiffs would go away and prepare a statement of facts intended to be agreed by the defendants with a view to, thereafter, enabling agreed facts and questions of law to be drafted and posed to the Full Court[181] to dispose of the whole action. At this stage no trial was contemplated: thus easing considerably the plaintiffs’ resources problems. Deane J agreed to make appropriate orders, by consent, and everybody went home.

8 Further Pleadings

In the event, a lengthy statement of facts was prepared by the plaintiffs’ lawyers over the next 15 months but, as is obvious, it was never agreed to by Queensland. Thus, after much haggling between the lawyers at a directions hearing on 27 November 1984,[182] Gibbs CJ ordered[183] that the plaintiffs should deliver an amended statement of claim by 19 December 1984; Queensland and the Commonwealth should deliver their defences by 5 February 1985; and that the matter be adjourned generally. Thereafter, the plaintiffs’ Statement of Facts and Contentions, already developed when attempting to agree to facts and state questions of law, could now become particulars and further particulars to the various factual allegations in the proposed amended statement of claim. This result was welcomed by the plaintiffs, since this procedure avoided another year’s work responding to Queensland complaints that it ‘didn’t understand’ the claims, and voluminous requests for further and better — and betterer and even betterest — particulars. Thus this statement of facts, comprising four white spirex bound volumes,[184] was incorporated by reference into the amended statement of claim as particulars. In volume 2 of his Determination Moynihan J duly ruled on each of those factual matters, embracing many aspects of the history and administration of the island since 1789.[185]

9 Second Visit to Mer

During 3–7 March 1983 the lawyers made a second visit, and continued the proofing process. This time, a significant discovery of a different ‘colonial’ character was made. In addition to imposing development and a damaging cultural impact, the short colonial period and the State of Queensland’s administration since 1901, ironically, also provided valuable and unexpected evidence. Since the 1890s, ultimately pursuant to a series of statutes,[186] regulations and by-laws, ‘Island Courts’ had been established on the various island reserves in the Torres Straits and on Aboriginal reserves on the mainland to administer local justice, with the involvement of the local people. Under the relevant Regulations[187] a Clerk of Courts was appointed, and he (always in those days a ‘he’) was required to keep a record of court proceedings. Such a court met on Mer from time to time to hear and determine various ‘civil’ and ‘criminal’ disputes. A record was duly kept, as required, usually by a visiting Queensland Government official, or the resident school teacher sitting-in as the Clerk. Some of the matters brought before the court were trivial — even offensive — for example, being out at night beyond a stated hour; fraternising with girls; and the like. Other matters were more serious.

We knew, from various sources,[188] that such a court had operated on Mer since the 1890s. However, on this visit we located quite by chance, in a disused council hut under some dry banana leaves, a bundle of dirty old papers. On closer inspection, these were identified as hand-written reports of cases heard over a period of 80 years in the Murray Island Community Court — including cases concerning disputes over the inheritance and use of land on the island. These were considered of real evidential value: here was a written account of, inter alia, Mer Island disputes about land, and the resolution of those disputes with reference, in part, to traditional laws and customs.

We lawyers dusted off the dirt and spiders, spoke to our clients, and (much to Queensland’s subsequent annoyance)[189] brought the papers back to Melbourne for detailed examination and transcription. During the following year or so, relevant case reports were identified, typed up, indexed, and filed and served as, ultimately, further particulars to the amended Statement of Claim;[190] some were tendered in evidence during the trial;[191] and all were the subject of analysis in the plaintiffs’ final submissions.[192] The trial Judge was not, however, greatly impressed by this item of evidence,[193] taking the view that

the operation of the [Murray Island] Court reflected as much as anything the imperative of achieving social harmony by seeking to reconcile conflicting parties or having them accept a decision perhaps in terms of accepted expectation. ... None of this is to say that the Court in its decision did not seek to achieve a consistent application of certain basic principles. That was however rather because of the value of consistency and predictability than by reason of the application of ‘Malo’s law’ or of any ‘traditional’ system of Murray Island - ‘laws’ (in whatever sense one likes to use that word[)].[194]

I beg to differ. It is suggested that these cases, recording ‘the Common Law of Murray Island’ are a valuable body of material, both as an item of proof in the case, and to the Meriam people at large. Today they may assist them in the resolution of sometimes fierce and long-running land disputes on Mer — disputes which continue.[195]

10 The Remitter

This ‘federal’ strategy, in the end, proved profitable — though, like many other decisions made, not without risk. The whole question turned on how the Court might respond to the small matter of dealing with a trial — hopefully by referring that fact-finding procedure to a Federal Court Justice — or whether a trial might be avoided entirely. The rules provided for various options, all of them bringing their own uncertainties. Under the Judiciary Act 1903 (Cth) s 18 a single Justice may reserve a question of law to the Full Court: but referring such a bare question, without the colour and context, and detail that Murray Island had to offer, might sell our clients very short. Alternatively, under the Judiciary Act 1903 (Cth) s 44(1) the Court or a Justice may remit a matter, or a part of a matter, for trial ‘subject to any directions’. The purpose of a remitter is to ‘facilitate the course of litigation’.[196] The options and factors were many; some of them quite peculiar. For example, intense debate arose in Ron Castan’s chambers on the question, assuming the matter was remitted for trial to the Queensland Supreme Court and lost federal jurisdiction, whether we as Victorian counsel could appear in the trial. As Victorian counsel we were not admitted to practice in Queensland, because the Rules Relating to the Admission of Barristers of the Supreme Court of Queensland prevented this at the time.[197] And if we couldn’t appear, who should?

In the event agreement was reached with Queensland that the matter should be remitted for trial solely as to questions of fact. The only issue to be resolved was, to which court: the Federal Court as contended by the plaintiffs, or the Queensland Supreme Court as contended by Queensland? On 27 February 1986, following argument, Gibbs CJ remitted the matter for determination of ‘the facts raised by the pleadings and the particulars and the further particulars’[198] to the Queensland Supreme Court — sitting in federal jurisdiction. Counsel retained for the plaintiffs were somewhat relieved![199] Gibbs CJ also recorded another issue of importance:

The parties agreed that any question whether the determination of the particular issues raises a question of fact or a question of law should be reserved for the determination of this court. I hope that the proper course of proceedings in the Supreme Court will not be interrupted by applications to this court.[200]

Such applications were made, however, as addressed below.[201]

IV Justice Moynihan’s Trial — Phase 1: October–November 1986

Justice Moynihan of the Queensland Supreme Court conducted the trial. As his Honour records,[202] 44 witnesses gave evidence before him, 29 for the plaintiffs and 15 for Queensland. There were 312 exhibits tendered (some very voluminous), and the court sat for 67 hearing days. Together with submissions, all this occupies some 3489 pages of transcript.[203] Sixteen Islander residents of Mer gave evidence in the plaintiffs’ case, and six in support of Queensland’s case.[204] Four Mer Island witnesses who lived in Townsville gave evidence in the plaintiffs’ case in Brisbane or on Murray or Thursday Islands.[205] Five Islander witnesses, one in the defendant’s case and four in the plaintiffs’ case, gave evidence on Thursday Island.[206]

Following directions hearings held in Brisbane on 25 July and 13 October 1986[207] Ron Castan QC opened the case for the plaintiffs over three days, on

15–17 October 1986.[208] The first witness, Eddie Mabo, was called on 17 October — and was still there (in chief) two years and six months later, when the trial resumed after the demurrer proceedings were finalised.[209] At an earlier directions hearing in May 1986 counsel for the parties quoted a four week trial — as things turned out, a gross underestimate! This first phase adjourned, part-heard on 17 November 1986,[210] with one witness only completed.[211]

1 Who’s Who in the Trenches

After the opening in October 1986 Castan QC returned to Melbourne and McIntyre, Hocking and I carried on. Queensland and the Commonwealth[212] were both represented, in strength — especially Queensland. It had initially retained John Byrne QC[213] with junior counsel, Margaret White[214] and Greg Koppenol,[215] backed up by a team of solicitors, led by Paul Smith[216] of the Queensland Government Solicitor’s office, plus departmental advisers and assistants of various sorts. Suffice to say that the bar table was a little unevenly stacked from the beginning of hostilities — and it got worse.[217]

Assisting the plaintiffs during the two stages of the trial, at various times and in various places, was an interesting and varied team of partly-paid[218] and variously located lawyers,[219] law student volunteers from Sydney and Brisbane,[220] counsels’ spouses[221] and children,[222] interested Brisbane colleagues, friends, the occasional mother, an invaluable secretarial service,[223] and sundry others.

Melissa Castan and her partner, Robert Lehrer, attended in Brisbane, rented a flat and procured a photocopier,[224] and assumed the vital task of looking after and organising the Murray Island witnesses. This involved a lengthy and difficult task: organising bookings from Mer — a long way from Brisbane;[225] assisting witnesses to negotiate their way through the airport (many for the first time); accommodating them in a city hotel; presenting witnesses to the lawyers that night to run through (often for the first time) their evidence; and to draft and redraft (usually in counsel’s handwriting — secretarial assistance was limited) their witness statements at my rented house — all the night before taking the stand. In addition, witnesses would (on a good day) attend at ‘McDonald’s Chambers’ the next morning for a final conference prior to court; and then attend court. There (again, on a good day) the witnesses were called, gave their evidence, were cross-examined, were normally excused from further attendance, and departed the field — for the hotel, the airport, and ultimately, Murray Island — two days (involving several hours’ flying-time) away. These complicated logistics were managed successfully by the Castan and Lehrer team over the duration of the trial — most particularly during Phase 2 in 1989. Without them there would simply have been no witnesses, and no trial. And of course, as every trial lawyer knows, ‘good days’ are rare beasts, their frequency diminishing in direct proportion to the length of the trial and the building exhaustion of all concerned.[226]

2 McDonald’s Chambers

The witness arrangements lead me to mention another vital piece of the plaintiffs’ extensive litigious infrastructure: ‘McDonald’s Chambers’. The Brisbane Bar heard that strangers were in town. Some members kindly offered accommodation — but most chambers on offer were not available at the right moment, and all were too expensive. However, a ‘street-wise’ solution soon emerged. Close to the Supreme Court in George St there was then (and there still is) a McDonald’s Family Restaurant. Due to long years of carefully nurtured caffeine addiction, I fell into the habit of stopping by (bit like Pommeroy’s, you might say, in that other place) on my way to Court. These visits soon turned into not just early morning caffeine hits, but full-blown pre-court conferences with witnesses and others. McDonald’s Chambers were indeed very serviceable, close to court, spacious, quick food, clean amenities, limited privacy, but with very pleasant, if sometimes bemused, company. The staff got to know ‘the Murray Island mob’ rather well, over several weeks in mid-1989. But importantly, these were informal, non-threatening, and nutritious (!) surroundings for the witnesses, many of whom had never been to Brisbane before, and none of whom had ever been involved in Supreme Court proceedings before — let alone having taken the witness box in a sometimes brutal war of attrition.

3 Objections

During these initial weeks of evidence in 1986, three memories stand out. First, my sore feet. Second, Eddie Mabo’s evidence in chief and his extraordinary memory for details[227] along the lines: ‘My father told me, “son, this land will belong to you when I die”’. Third, on the plaintiffs’ tally, 289 separate objections being made by Queensland counsel — sometimes four or five per page of transcript — to the giving of such evidence as inadmissible on various grounds, and argument and rulings about those objections.

The major objections were that such evidence was hearsay, which did not attract any of the exceptions[228] available in proceedings conducted in the Queensland Supreme Court;[229] was irrelevant; deposed to ultimate issues when speaking of ‘ownership’ or ‘boundaries’; was mere assertion; or that the witness was not sufficiently competent to make the proposed statement so as to render the statement admissible from that witness.[230] Argument raged back and forth during the early weeks. The plaintiffs contended that all such evidence was admissible and relevant. In particular, the evidence objected to as hearsay was not in truth hearsay, but statements evidencing the existence of the plaintiffs’ traditional system of land holding, and was properly admissible as ‘traditional evidence’ of such a system, and of the particular plaintiffs’ rights under that system. Alternatively, the plaintiffs contended that such evidence was properly admissible as an exception to the hearsay rule, being evidence of statements by deceased declarants as to public or general rights, or as to pedigree, or as evidence of custom, or as statements of a deceased declarant in the course of duty. Alternatively, the plaintiffs contended that the evidence was admissible as part of the res gestae of particular acts of ownership occurring while on or near the particular lots claimed.[231]

These issues were obviously vital: without such evidence, the plaintiffs’ action was surely lost. Numerous rulings were given both in the running, and reserved.[232] As mentioned, the issue was also agitated after the first phase of the trial adjourned, before Deane J at a directions hearing in Sydney on 13 February 1987, but his Honour, under the terms of the remitter, refused to rule on such issues.[233] Further argument occurred before Moynihan J in Brisbane on 23 February 1987, where the prospect of him ruling in the alternative was canvassed — ie, making findings of fact first on the basis of all evidence, or secondly only upon such evidence as remained after ruling on questions of admissibility. However, the Judge considered that, given the ‘hundreds of pages of pleadings, particulars and further particulars giving rise to ... a myriad of issues’, such a solution was virtually impossible.[234] On 23 February 1987, during argument on these questions, his Honour also expressed concern about the interrelationship between the substantive issues of law which were raised in the proceedings, and which were reserved to the High Court, and the handling of the determination of issues of fact when intertwined with objections to evidence which involved assumptions about those ultimate issues of law. In the course of discussing the weight to be given to statements deposed to by a witness giving ‘traditional evidence’ his Honour observed:

That is the nicety of my dilemma. We are talking about two parallel systems of law and their effect on each other. Ultimate questions revolve around how far I enter from one into the other in order to determine matters of evidence. [But] [t]hat’s the question I cannot decide.[235]

On 23 February 1987 his Honour ruled that he would not exclude such evidence in the running, but would reserve all rights to the parties, and resolve the matter of admissibility after all the evidence was in, during final submissions. Thereafter, through exhaustion as much as anything else, the combatants settled into a formulaic process designed to preserve all rights to argue admissibility issues, and to get on with hearing the evidence. Upon the asking of what was perceived to be yet another preposterous question likely to elicit a hopelessly inadmissible answer, the formula kicked in. The question was asked; an objection was heard in the form of ‘the usual objections, your Honour’ (delivered with a studied air of utter boredom and futility); and the witness’s answer was given — all duly recorded, and all to be argued about in due course.[236]

After some thousands of pages of such disputed evidence (not to mention 312 exhibits, many of which raised similar issues), in his Determination Moynihan J finally let all of this disputed evidence in, treating the issue as one, not so much of admissibility, but of weight.[237] Nobody appealed those aspects of the Judge’s Determination — nor any other aspects. The plaintiffs were not happy with the Judge’s rulings but couldn’t afford to appeal and, after some consideration, decided, in any event, not to. And perhaps the remaining defendant, Queensland, couldn’t face the prospect of doing it all again. More to the point, perhaps Queensland formed the view that the case was bound to lose where it really mattered — on questions of law in the High Court — in any event.

4 The Plaintiffs’ Evidence

The Meriam witnesses were an interesting group. They included a very old, frail and partially blind man sitting on a bed under some palm trees at his home on Mer with the court — Judge, counsel, court staff, transcription service — clustered around, trying to hear.[238] By contrast, an experienced community services officer — a Murray Islander — was called by Queensland at Thursday Island.[239] Of particular interest was the middle-aged ordained Anglican Minister, plaintiff Father Dave Passi. He was called in Brisbane, and spoke about his family lands that he claimed on the island, and about how he rationalised in his ministry both the word of his Christian God and the spiritual stories and traditions of his own people.[240] Not for him the existentialist ennui of Sartre[241] or Camus.[242] These two disciplines — the ‘coming of the light’ being the arrival of the Christian Missionaries on nearby Darnley Island in 1871[243] and the Bomai-Malo cult and the laws of Malo — fitted together, in Father Passi’s account, into one holistic philosophy of creation and being. Also called for the plaintiffs was a senior anthropologist, Dr Jeremy Beckett,[244] and the plaintiffs’ solicitor, Greg McIntyre, to prove photos of various garden areas — and certain beautifully drawn maps and charts of the claimed areas. Further evidence tendered by the plaintiffs included the typed-up Murray Island Court Reports;[245] historical and anthropological works; and much more.[246]

One point should be recorded here. As in all such native title trials, the collection of evidence in support of custom and tradition can be difficult, chancy, and dependent upon many unpredictable factors — including the trials and tribulations of human beings. One thing though is certain: in the Mabo case, as in other native title trials, the same evidence could not be called again. Many of the ‘best’ Meriam witnesses, being elderly men with knowledge of custom and tradition, have now passed away — Eddie Mabo amongst them. Communities, in this sense, may have one chance only to present their ‘best’ case. There is, I often think, a moment — indefinable but nevertheless always there — in the life of a claimant community and, in turn, of the nation, when these claims might be made, and these national issues resolved. Thereafter it may be too late — or at least, so much more difficult as to render the prospects of a fair hearing hopeless. This assumes, however, a perhaps unacceptable reliance upon ‘traditional’ evidence of the acknowledged kind — a highly contentious issue lying at the heart of native title appeals now underway.[247]

5 Queensland’s Evidence

Queensland called 15 witnesses, including the above mentioned Mr Patrick Killoran; several Meriam residents who mainly contested the inheritance of, and the metes and bounds of, some of Eddie Mabo’s claims;[248] an historian, Dr Ruth Kerr; a genealogist, Mr Colin Sheehan; and a compiler of myths and legends, Ms Margaret Lawrie.[249] The State also tendered extensive materials in support of their case. This included 42 volumes of photocopied departmental files recording the entire administrative history of Mer and much of the Torres Straits besides,[250] a large genealogy recording generations of the Meriam people,[251] extracts from the reports of the Cambridge anthropological expedition to the island in the 1890s,[252] death certificates of Robert Sambo[253] and Benny[254] and Maiga Mabo[255] tendered as part of Queensland’s cross-examination to show that Eddie Mabo was not ‘adopted’, extracts from the well-known novel Drums of Mer by Ion Idriess,[256] historical works,[257] photographs of the island[258] and more.

V Bjelke-Petersen’s Demurrer Interregnum: 1985–88

1 The Queensland Coast Islands Declaratory Act 1985 (Qld)

On the evening of Thursday 1 April 1985 I was at home, feeling pretty jaded, when the phone rang. It was a Labor politician in the Queensland Parliament, and he sounded rather annoyed and agitated. He explained that the Queensland (National Party) Government had had enough of this Mabo nonsense and that the next day, the Government was to introduce a Bill into the Parliament entitled the Queensland Coast Islands Declaratory Bill 1985 (Qld), which was designed to ‘kill off’ the case. Could I tell him a little about the case? What were the social, political, international, cultural (and legal) issues? What was the likely impact of the case on Queensland, Australia and civilisation as we knew it? Could I draft some quick speaker’s notes since he had to go into the Parliament and speak in opposition to the Bill? Such is the life of a politician in the Queensland (and other) Parliaments.

2 Melbourne Do-Gooders

The Queensland Coast Islands Declaratory Act 1985 (Qld) (‘Declaratory Act’), like life generally (but especially on Queensland Aboriginal and Islander reserves), was truly ‘nasty, brutish, and short’.[259] Its passage through the Parliament and, as it turned out, its operation as a valid law of Queensland was in each case also remarkably short.[260] The Declaratory Act purported to extinguish, retrospectively and without compensation, any and all traditional rights to land that might exist throughout the Torres Straits. The Bill was introduced and had its second reading speech on 2 April 1985. It contained just five sections, the two of critical importance stating:

3 Effect of annexation of islands to Queensland. For the purpose of removing any doubt ... it is hereby declared that upon the islands being annexed to and becoming part of Queensland and subject to the laws in force in Queensland —

(a) the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown

...

5 Claims to Compensation. No compensation was or is payable to any person —

(a) by reason of the annexation of the islands to Queensland;

(b) in respect of any right, interest or claim alleged to have existed prior to the annexation of the islands to Queensland ... or

(c) by reason of any provision of this Act.

There was no doubt that this law was aimed directly at the Mabo case. In his second reading speech the Honourable Bill Gunn, Deputy Premier, cited the Imperial Letters Patent of 10 October 1878, the Queensland Coast Islands Act 1879 (Qld) and the Governor’s proclamation of 24 June 1879, thus ‘annexing the Islands to Queensland as from 1 August 1879’ and continued:

This position was accepted until a small group of Murray Islanders commenced an action in the High Court Australia [sic] on 20 May 1982 against the State of Queensland and the Commonwealth of Australia to challenge the annexation[261] to Queensland in 1879 of three of the Torres Strait Islands. ... Questions raised by the islanders in their 25 page statement of claim concerned the intention behind the annexation. The purpose of [the Bill] is to make it clear and to declare that the intention of the 1879 legislation was —

(1) that the lands in question be vested in the Crown in right of Queensland; and

(2) that the land was freed and discharged from any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation.

The passage of this Bill will, it is hoped, remove the necessity for limitless research work being undertaken in relation to the position of the relevant Torres Strait islands prior to annexation and will prevent interminable argument in the courts on matters of history.

I commend the Bill to the House.

Debate, on motion of Mr Prest, adjourned.[262]

The Deputy Premier’s concern for the parties’ toiling researchers is truly touching. He did not utter a word about compensation. On 9 April the Bill was debated, with the Liberal Party supporting the measure, and the Labor opposition opposing. Mr Burns[263] described the Bill as ‘a cowardly act by a Government that is not prepared to face the independence and integrity of the High Court ... [T]he Government is dealing with this matter in a shonky way’.[264] Mr Scott of the Labor party reminded the House that the matter was sub judice, that ‘[t]he Government changes the rules as it goes along’, that he was ‘astounded by [Mr Gunn’s] meagre justification given for introducing the legislation’,[265] and that the ‘Government is simply denying litigants the right to have their case heard in court’.[266] Only one of five speakers mentioned the compensation issue. Mr Vievers[267] pointed to clause 5 and noted that ‘in the last 18 months, similar pieces of legislation have been introduced involving the annexation of land, but compensation has not been paid.’[268] In reply, Mr Gunn rejected the suggestion that the Bill had some relationship with the Torres Strait Treaty 1978, and asserted that the Bill ‘will not frustrate [the Islanders’ case]: they can do what they like. The Bill only declares what has always been the position.’[269] Further, in a speech occupying fully half a page, the Deputy Premier saw fit to include the following earth-shattering information:

The islanders were being led by two Melbourne University do-gooders, a Queen’s Counsel named Kastan [sic] and a person named Keon [sic]. The islanders were being led by those persons from Melbourne University. They are a long way from Murray Island. They were leading the Islanders up the garden path. Litigation has not stopped: it is still proceeding. I do not intend to enlarge on that matter. I am sure that no one in this Chamber would want to do so.[270]

If Mr A R Castan AM QC, and my Jewish hyphenated-grandparents were all alive, I’m sure they would all wish to ‘enlarge on that matter’ by joining me in the observation: some of us (unlike Deputy Premiers) just can’t help ourselves; we have greatness thrust upon us! I can only surmise that the Deputy Premier, first, had not read the statement of claim, where counsels’ names are clearly and correctly recorded; second, if he did, he didn’t check his Hansard proofs for that session; third, he didn’t much care, either way. Still, I suppose the Deputy Premier is a busy fellow. More seriously, both Castan and I did study law at Melbourne University;[271] and like Mr Neal and his agitation,[272] we are entitled to be do-gooders — and proud of it! With such momentous matters concluded, a vote on party lines was taken, and the Bill passed into law with the support of the Liberal Party, 48 votes to 31.

3 The Plaintiffs’ Demurrer

So began the saga leading to a very close run thing indeed: the initiation by the plaintiffs of a demurrer proceeding designed to have the Queensland law declared unconstitutional and invalid, thus enabling the case to proceed. The resulting judgment, which has come to be known as Mabo v Queensland [No 1],[273] ultimately shot the Queensland Government, and every other Australian Government, sharply in the foot. It demonstrated, by the narrowest of margins, that if native title was ever established, whilst s 109 of the Constitution and the Racial Discrimination Act 1975 (Cth) remained in place, along with constitutional entitlement to compensation on just terms for the acquisition by the Commonwealth of private property,[274] both the Commonwealth and the States were limited in the manner in which they might deal with, or extinguish, such native title. Without success in Mabo [No 1], no trial, no case, no Mabo [No 2], and no protection of native title against extinguishment by legislative or executive acts.

The power of the Parliament in our system of government is usually understood, à la Dicey, to be sovereign and paramount.[275] It is not that easy to induce a court to determine that a State law, enacted within the powers of that legislature, is invalid for any reason, including for reasons of inconsistency with Commonwealth laws. However, with this shock enactment, the plaintiffs’ legal team sat down to consider the options: how was the case, unquestionably (to us at least) a just cause, to survive this frontal assault by the Queensland Parliament? The result was a mixture of options and considerations which traversed seeking to defer the trial; procedural initiatives under the High Court Rules; the peculiar difficulties that the High Court itself was then experiencing, with the prosecution of Justice Lionel Murphy; the chronic realities of limited resources; the need not to get hung up for too long on legal issues prior to hearing the evidence; and other such matters.

On 24 May 1985, just to add insult to injury, Queensland filed and served an amended defence[276] (pursuant to prior arrangements) which now pleaded the Declaratory Act. Whatever their other sins, Queensland lawyers are not stupid, and were looking forward to ‘life after Mabo’.

The High Court Rules 1952 (Cth) provide that a party may demur to, in effect, bring on a question of law which might resolve the litigation without the need to determine facts.[277] Where a party pleads and demurs, ‘it is in the discretion of the Court or a Justice to direct whether the issues of law or fact shall be first disposed of.’[278] Further, the Court has power to set down a question of law to be heard and determined, and to stay all other proceedings.[279] A Justice has a wide discretion to make orders as are considered just in all the circumstances[280] — including the attitude of other parties. After much discussion the plaintiffs decided to pursue demurrer proceedings in order to test the law.

On 19 June 1985 the plaintiffs’ amended Demurrer to Queensland’s amended defence was filed and served.[281] In essence, this pleading went for broke: it pleaded that the Declaratory Act was invalid on a variety of grounds (one only of which ultimately succeeded) and sought an order striking it down as beyond the powers of the Queensland Parliament, as void, and of no effect. Meanwhile, a further decision was taken: that so far as the plaintiffs could achieve it, the matter should proceed nevertheless to trial — even given the risk that all that cost and expense might be thrown away should the demurrer fail, and the Declaratory Act be declared valid. Thus during 1985–88, before Mabo [No 1] was handed down, the plaintiffs were fighting on two fronts: pursuing the trial before Moynihan J; and preparing for and arguing the demurrer proceedings in the High Court.

On 3 April 1987, prior to recommencing the adjourned trial, the plaintiffs, after discussion and reaching agreement with counsel for Queensland and the Commonwealth,[282] obtained from Toohey J an order to set down the demurrer for argument before the Full Court of the High Court.[283] The trial was thereafter adjourned by consent on 22 April 1987. The demurrer was heard before a Full Court during 15–17 March 1988. Ten arguments were pleaded in the plaintiffs’ amended demurrer but these came down to four principal points.[284]

First, as a matter of construction, the plaintiffs contended that the Declaratory Act applied to land areas only, a position consistent with the rulings in the Seas and Submerged Lands Case which held that the colonies’ boundaries extended to the low water mark, and no further.[285] Second, the plaintiffs argued that Queensland lacked legislative power to enact the Declaratory Act, due to the impact of the applicable Commonwealth offshore legislation[286] and the ‘just terms’ requirements of the Commonwealth Constitution (s 51(xxxi)) in relation to extinguishing, retrospectively or prospectively, without compensation, the claimed rights, being rights vested and protected by s 4(2)(a) of the Coastal Waters (State Title) Act 1980 (Cth). Third, the Declaratory Act was inconsistent with Chapter III of the Constitution in that it determined the ultimate issue then before court amounting to an unacceptable interference with the judicial power of the Commonwealth.[287] Associated with this argument were the propositions that the Declaratory Act was beyond the powers of the Queensland Parliament, as not being a law for the ‘peace welfare and good government’ of Queensland within the meaning of s 2 of the Constitution Act 1867 (Qld);[288] and that the law was in direct conflict with Magna Carta of 1215,[289] a law which operates in Australia as a fundamental principle.[290] Fourth, the Declaratory Act was invalid and beyond power by reason that it was racially discriminatory, in that it expropriated, without compensation and retrospectively, the Islanders’ traditional rights and interests in land, whilst leaving untouched non-Islanders’ equivalent interests, contrary to ss 9 and 10 of the Racial Discrimination Act 1975 (Cth). As is well known, this argument succeeded, albeit by a bare majority, upon delivery of the Court’s judgment in Mabo [No 1] on 8 December 1988.[291]

VI Justice Moynihan’s Trial — Phase 2: May–September 1989

Having survived the demurrer, the plaintiffs took a deep breath, dusted off the piles of paper by now accumulated in every corner, began badgering legal aid authorities all over again, and generally prepared to recommence the trial. This second phase was the substantial hearing. The trial recommenced in Brisbane, after a directions hearing, on 2 May 1989 (the 17th day), and Eddie Mabo continued his evidence in chief on 4 May, after which he was cross-examined. The trial ended, after 67 days, on 6 September 1989, with the completion of final written[292] and oral submissions to Moynihan J. The Judge delivered his Determination of Facts on 16 November 1990.[293]

1 Two Plaintiffs Withdraw, One Returns

During the plaintiffs’ opening on 15 October 1986 the Court was advised that two plaintiffs, Dave Passi and his elder brother Sam Passi, had retained new solicitors; that these solicitors had instructed that those plaintiffs wished to withdraw from the action; and consequently that they were not represented by the plaintiffs’ lawyers, and no cases would be presented on their behalf.[294] Why this occurred is still something of a mystery. The decision was taken without notice to the plaintiffs’ legal team. However, prior to the reconvened sittings on 2 May 1989, Dave Passi gave instructions, and an application was then made to Moynihan J at a directions hearing on 18 April 1989, to readmit him as a plaintiff.[295] No such application was made on behalf of Sam Passi, who was by then unwell, having suffered a mild stroke. Sam Passi did not participate further in the action as a plaintiff. However, he gave some limited evidence, with the assistance of his daughter, during the sittings held on Mer.[296]

Father Dave Passi, however, was an important plaintiff (and witness). As is discussed below, the attrition rate in terms of loss of specified garden and other areas claimed on the island was severe: of an original 45 named and mapped areas about which evidence was given, the trial Judge found some traditional rights survived in relation to only four — depending how one reads his Determination. Of those, one — Dave Passi’s claimed area in the village called Zomared — was amongst the most sound in terms of findings of fact. Bearing in mind that, at the commencement of the final legal argument before the High Court in May 1991, Queensland continued to argue that the claim should be peremptorily dismissed due to insufficient factual findings by Moynihan J, had Dave Passi’s claims, and perhaps his evidence, been entirely lost, that particular submission might have gathered strength and perhaps found favour. In the event it did not, and in the final outcome individual claims lost their significance, in favour of community entitlements.[297] But that result was not known in April 1989.

The application to readmit Dave Passi was contested by Queensland. On 18 April 1989 Moynihan J deferred argument.[298] Following the visit to Murray Island, a summons seeking orders that David Passi be joined as a party was filed on 2 June 1989. On 5 June this question, plus objections to further proposed amendments to the statement of claim to include fiduciary duty as a new cause of action, were argued.[299] This was as important a moment as any throughout the decade. The defendants objected on the basis that to admit Dave Passi, with his allegedly different claims introducing a ‘caretaker’ element to traditional land-holding arrangements, meant recasting their defence midstream, and that prior cross-examination of witnesses may need to be revisited. Castan QC, for the plaintiffs, resisted these complaints, pointing out that Dave Passi’s pleading had been known from day one, and in any event, the caretaker element complained of was a matter of his proposed evidence, not pleading. Reluctantly, Moynihan J allowed the joinder[300] — or re-admittance — and the ‘fiduciary’ amendment.[301] In the end Dave Passi’s reintroduction as a plaintiff was critical, whilst the fiduciary question was not resolved in Mabo [No 2].[302] Toohey J, however, ruled that such a fiduciary obligation ‘in the nature of ... a constructive trustee’ did exist,[303] whilst Dawson J reached the opposite conclusion.[304] As mentioned, Father Dave Passi subsequently gave important evidence concerning his claimed areas, and the traditional and spiritual life of the Meriam people.

2 Extent of Remitter

Questions and argument arose concerning the admissibility of evidence and extent of the trial Judge’s powers under the remitter: that is, his power to rule out items of evidence as inadmissible prior to rulings on ultimate questions of law to which that evidence related; and to order amendments to the pleadings, including the incorporation of a new cause of action (breach of fiduciary duty) not contained in the pleadings when the remitter was originally ordered. On 2 May 1989, after argument, Moynihan J expressed uncertainty about his powers, suggesting he lacked jurisdiction under the remitter to make such amendments.[305] As a result, on 3 May 1989, the parties adjourned to Canberra for a hearing before Toohey J. After argument[306] on these issues, Toohey J ruled ‘that the Supreme Court of Queensland may make orders and give directions as may be appropriate for amendment of the parties and the pleadings and for the giving of further particulars in respect of the pleadings in this action.’[307]

The parties also agitated before Toohey J whether Moynihan J should rule on evidence to which objection had been taken.[308] Further, the Commonwealth Solicitor-General applied to vary the remitter by having all issues of fact and law referred.[309] Toohey J declined to intervene in relation to both issues, considering it premature to do so.[310]

On 13 February 1987, at a prior directions hearing before Deane J in Sydney, admissibility issues were also agitated[311] but Deane J also declined to interfere with ‘[Moynihan J’s] dealing with [the] issues of fact at this stage.’[312]

3 Visit to Mer: View and Evidence

After some argument Moynihan J accepted the plaintiffs’ request that the court should adjourn and reconvene on Murray Island for three days, to take evidence, particularly from 16 witnesses, mainly elderly and frail, and also to take a view of the claimed areas of garden plots and adjacent seas. The Court’s visit between 23–25 May 1989 was a valuable exercise evidentially for the plaintiffs, and a significant and enjoyable event for the Court, court staff, the lawyers, the Meriam residents, and various journalists who also turned up.[313] When opening proceedings on the Island on 23 May 1989, Moynihan J ‘doubted [whether] the Court has ever sat further north or perhaps further east’, and certainly never before on Murray Island.[314] On 26–27 May 1989 the Court also sat in the Magistrates’ Court of Thursday Island and heard five Islander witnesses.[315] The visit, as Moynihan J noted in his opening statement, provided a better understanding of the evidence, and of island life.[316] It also revealed the first opposition from some Islanders to the claims being made: two Islanders were called by Queensland during these sittings to oppose Eddie Mabo’s claims.[317]

McIntyre and I stayed with some of the witnesses in their homes. The Queensland team stayed in a hot, cramped, ugly looking barge, commandeered for the purpose, which was anchored 50 metres offshore. The sight of the Queensland team, robed, clambering into a dinghy each morning, and being rowed ashore was too reminiscent of certain past events to be pure chance! The gods are sometimes great!

4 The Agreement with the Commonwealth

Bearing in mind the alleged ‘judicial revolution’ constituted by the Mabo decision,[318] some, particularly in the mining sector, have asked: what happened to the Commonwealth? Why did it not participate in the High Court hearing in May 1991 to oppose the claim? As mentioned, the Commonwealth was named in the writ filed in May 1982, as a second defendant, although no relief other than declarations was sought against it. Likewise, notices under s 78B of the Judiciary Act 1903 (Cth) were forwarded to the Attorneys-General of the various States and Territories, advising them that the case raised constitutional issues (per s 109), and that they had the opportunity to intervene as of right, either to support or oppose the claim. None did so. During 1982–86 the Commonwealth duly appeared at various directions hearings, and was involved in negotiations with the plaintiffs,[319] who in the early years sought to convince the Commonwealth — ie, Attorney-General Gareth Evans — to become a plaintiff and to support the claim, logistically and substantially — all to no avail. Thus in the early weeks of the trial in 1986, and again in 1989, the Commonwealth appeared, through counsel[320] as a defendant, and participated fully, cross-examining the plaintiffs’ witnesses and generally opposing the claim in so far as the pleadings touched upon Commonwealth interests, being claims to seas around, and small portions of, the Great Barrier Reef.

In his evidence in chief Eddie Mabo, during the opening weeks of the first phase of the trial in Brisbane, spoke of these areas, of visiting them occasionally over his lifetime, and of harvesting bird eggs, turtle eggs, crayfish and other marine resources. During the Court’s visit to Murray Island in May 1989 further evidence was sought concerning this aspect of the claim, but only a little was forthcoming. Thereafter, upon return to Brisbane and during a short break in proceedings, these claims to the outer seas and reefs, were reviewed. A view was reached that the evidence, as it then stood, was too thin, and with no more available, that success at trial was unlikely. Upon instructions, it was decided that these areas should thus be abandoned. Such are the decisions that are made, on the run, in litigation.[321]

This then leads us to the Commonwealth, for these remote seas claims were the only areas of interest to it. Consequently, on 26 June 1989, an agreement was reached between counsel for the plaintiffs and the Commonwealth, documented, and tendered in evidence as Exhibit 225.[322] It records that the plaintiffs’ claims against the Commonwealth ‘will be wholly deferred and put on one side’ until the claims against Queensland are ‘finally disposed of by the High Court’.[323] On 7 July 1989 Moynihan J accordingly ordered, by consent, that ‘the Commonwealth be dismissed from the proceedings.’[324] Despite the fact that the Constitution was pleaded, and a s 109 point was lurking involving, critically, the Racial Discrimination Act 1975 (Cth), the Commonwealth was happy to withdraw. Why this was so is a matter, one presumes, for the then Attorney-General, and perhaps the federal Cabinet. Upon the trial Judge making the appropriate orders[325] counsel for the Commonwealth thereupon withdrew, and that party did not appear again. The plaintiffs were on balance content: at least now witnesses would be cross-examined once only, and their stretched legal team faced somewhat reduced paper warfare — especially in relation to final submissions.

5 Justice Moynihan’s Determination of Facts: A War of Attrition

A thorough review of the trial Judge’s Determination is unnecessary here. Suffice to say his Honour reviewed the issues arising on the pleadings, especially their representative character; discussed various categories of evidence and the vexed question of admissibility; raised considerations of the evaluation of the evidence arising from an oral tradition, with regard to ‘the Perception of One Culture from the Perspective of Another’;[326] reviewed the history, culture and relevant social features of the Meriam people with special focus on their relationship to land and the effect of European contact; and ruled on the claims of each of the plaintiffs to specific pieces of land and seas.

6 Claimed Areas

A map of the garden plots, fish traps immediately offshore, and other areas is shown at Appendix II. Approximately 45 specified areas of gardens, beaches, fish traps and seas located on and around the three islands, and on the Great Barrier Reef, were claimed, 36 of them by Eddie Mabo.[327] As mentioned, Moynihan J rejected all of Mabo’s claims, and all claims offshore commencing from the high water mark, including claims to land areas on the two adjacent islands, Dawar and Waier. This left positive findings in relation to one residential block in the village claimed by Dave Passi,[328] and three garden blocks claimed by James Rice.[329] Moynihan J’s findings of fact in relation to James Rice’s claims were expressed in somewhat equivocal language[330] — leaving, on one view, the whole case swinging on one block: Zomared. As to this block, the Judge concluded that

the Passi lands are held pursuant to ... a group holding arrangement usually involv[ing] brothers and sisters ... Such arrangements, which depend essentially upon acceptance by those affected, reflect an aspect of Murray Island social organisations [sic] for generations — probably antedating European contact.[331]

7 War Casualties: Rejection of Mabo’s Evidence

Eddie was the biological son of Robert Sambo and Poipe Sambo, née Mabo. Shortly after his birth, his mother died, and Eddie (as he claimed in evidence) was adopted,[332] in accordance with ‘Islander custom’, to his maternal uncle, Benny Mabo, and his wife, Eddie’s aunt, Maiga. He grew up on Mer as a member of Benny Mabo’s family and, he alleged, inherited traditional land through his adopted father and mother. These were the portions of land detailed in the pleadings, described on maps, and claimed by him under custom and tradition[333] for himself, and on behalf of the whole of the Meriam people.[334] As Moynihan J recorded: ‘Whether Eddie Mabo was adopted by Benny and Maiga Mabo with the consequence that he became their heir is very much in issue in the proceedings.’[335]

These claims through inheritance were, indeed, all hotly contested at trial, and were the subject of much Queensland research and cross-examination, occupying a significant part of Queensland’s case. Queensland contended that Eddie Mabo was not adopted at all, either under ‘Aislan Kustom’, or any other system. Rather, it was put to him, he lived with Benny Mabo and his family on an informal basis for a variety of reasons, including enabling his adoptive parents to claim extra social security payments to which they were otherwise not entitled.[336] In the event, Moynihan J ruled:

It seems that it is acknowledged by some at least of [sic] Murray Islanders that there is Mabo land on the Islands. I am however not prepared to find on the evidence in these proceedings that Eddie Mabo was adopted as heir by Benny and Maiga Mabo or that Benny transferred land to him during his lifetime.

There are moreover considerable difficulties in Eddie Mabo establishing, even if he was Benny and Maiga’s heir, descent through the male line to the eldest son, [which] is the basis on which he started out advancing his claims.[337]

His conclusion was very clear:

Eddie Mabo is, in my view, quite capable of tailoring his story to whatever shape he perceived would advance his cause in the particular forum. A particular illustration of this is found in the saga of his claim to be the Aiet and traditional leader of the Murray Islanders. ... I was not impressed with the creditability [sic] of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest (and most of his evidence was of this character one way or another) unless it was supported by other creditable [sic] evidence.[338]

Thus, Eddie Mabo’s claims (as compared to the claims of the two other surviving plaintiffs) to his portions of lands, fish traps, fringing reefs, and seas, failed.[339]

As mentioned, Mabo gave evidence over nine days in chief, and was cross-examined for a further six by Queensland’s junior counsel, Margaret White. Mabo traversed many aspects of the traditional life of the Island, but especially his boyhood memories of discussions with his (as he claimed) adoptive parents, Benny and Maiga Mabo, at their home at Las. As mentioned above, Moynihan J rejected this evidence, including the crucial claims to inherited land through adoption.

8 Questions of Appeal

Mabo, as might be expected, was devastated by these rulings, and his lawyers were equally concerned. What now was to be done? Many anxious conferences were held, involving phone link-ups (no e-mails) between Melbourne, Townsville, Cairns and Mer. Advice was given regarding appealing the factual findings of Moynihan J, being advice not confined to findings relating to Mabo’s particular claims. That advice, to his credit and that of the other plaintiffs, was accepted, and the case proceeded to the High Court for final argument, relying now upon the somewhat ambivalent factual findings of Moynihan J in relation to the plaintiffs James Rice and Father Dave Passi. Since the plaintiffs did not appeal, no submissions were made on Mabo’s behalf before the full High Court. He was separately represented before that Court[340] for this reason. Of course, had the plaintiffs rejected that advice and provided instructions to appeal, the procedural history of this case might have been very different,[341] perhaps with a different result. Who knows?

9 The Judicial Experience of the Remitter

Moynihan J found the conduct of the trial under the terms of the remitter frustrating. He gave that impression during the running, and forcibly said as much in his Determination. His Honour there stated under the heading ‘Conclusion — a personal view’:

I have found the experience of dealing with the remitter both enriching and rewarding. The process is however essentially both unsatisfactory and unsatisfying.

This may perhaps ultimately be because adversarial litigation is not apposite to the resolution of the issues which arise as a consequence of the proceedings brought in the High Court.

More immediately however the process is unsatisfactory because a remitter restricted — however widely it is expressed — to issues of fact has the consequence that the ultimate issues in the action are not readily addressed either in the course of hearing the remitter or in its determination.

As I understand, and have experienced it, the role of a Judge at first instance is to determine the issues of fact and law in the action — and hence the action. They seem to me inextricably interwoven. The experience has been unsatisfying because it seems to me that is the very thing the terms of the remitter have prevented me from doing.[342]

VII The High Court’s Own ‘Autochthonous Expedient’: 1991–92

A detailed doctrinal analysis of counsel’s arguments and various reasons for judgment is not attempted here. Rather, some procedural and contextual matters are mentioned which may be of interest.

1 A Basis of Facts to Proceed to Final Argument?

As mentioned above, the net result of the trial was equivocal findings concerning the traditional rights claimed by James Rice to three garden plots, and firmer findings concerning Dave Passi’s claims to one residential block at Zomared. This situation led to submissions by Queensland to the High Court in May 1989 that ‘the plaintiffs have not established on the findings of Mr Justice Moynihan that there was an ordered system of land tenure before annexation which has continued, albeit changed, to today.’[343] However, Deane J (during argument) held a different view, noting ‘the clear inference ... that there was a native system under which ... all land was recognized as being in the possession of a particular individual or family group’, and this particular challenge evaporated as argument proceeded.[344]

2 The Arguments and Further Amendments

The submissions of the parties are recited in the opening pages of the judgment as reported in the Commonwealth Law Reports.[345] They need not concern us here save for one matter. During final argument the High Court requested clarification of the relief sought as between individual, group and the whole community’s claims,[346] on the assumption that the plaintiffs’ argument succeeded. Overnight the plaintiffs drafted further amendments to the declarations sought, incorporating the entire community, and these were filed, served and discussed the next morning.[347] Deane J raised the options in argument as follows:

[T]here are three alternatives ... [O]ne is ... declarations defining [the plaintiffs’] precise entitlement to particular blocks of land, the second is ... a declaration ... that the land is held for individual members of the Meriam people, according to their rights under the communal system, ... the third is some general declaration about the Meriam people as a political entity.[348]

In the result, the Court’s various reasons and final order responded at the community level, speaking of ‘the Meriam People’.[349]

3 Judgment Day — Canberra: 3 June 1992

I took judgment with Robert Blowes, of the Canberra Bar. My learned leader was overseas — again. Anticipating complex findings on various results and perhaps a divided Court, I came prepared with a chart showing Judges and issues. The large No 1 Court was unusually full, and the air was a little tense. But as the decision came down, and success became clear, the atmosphere changed to one of deep satisfaction that a large measure of justice had been accorded to the Meriam people.

Upon subsequent reading and rereading, the practical implications — some might say the Court’s ‘autochthonous expedient’[350] — amongst other features of the decision, became clear. As some have noted,[351] native title was recognised, but Crown titles granted since 1788 in the face of pre-existing native title rights over the same area, were also ‘recognised’, that is, protected. In contrast to normal principles of indefeasibility of title, the short judgment of Mason CJ and McHugh J states:

[S]ubject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.[352]

Coupled with the reasoning of Dawson J the Court, by another close run thing (ie 4:3) had, on one view, through a sensible compromise, saved the Treasury and the country from a difficult quandary. On another view, the Court had unnecessarily subjected indigenous title to Crown title — thus the conservative nature of the decision. In this area of law and politics, it seems nobody is pleased all the time.

4 The Murray Islanders Rejoice

The Murray Islanders, however, were very pleased. Following delivery of written reasons, the Court adjourned. I repaired upstairs to chambers on the sixth floor of the High Court building, feeling somewhat overawed. With me was the veteran Age journalist, Cameron Forbes, who had attended court. I rang Murray Island — that is to say, I rang the phone box located, as readers will recall, outside the general store. The conversation went something like this:

‘Hello, Bryan Keon-Cohen here, who’s that?’

[Inaudible.]

‘Do you remember Eddie Mabo’s case, that court case about land?’

‘Yes.’

‘Well, I’m ringing you from that Court in Canberra where those top Judges are, you know, that High Court.’

‘Oh yes.’

‘Well, those Judges, they told us their decision just now: Eddie won. You Murray Islanders have won that court case. You own the island under your laws and custom.’

[Screams of what I took to be joy, laughter, yelling, much discussion in the background.]

‘Hello! Hello! Is anyone there?’ says I.

‘Oh thank you, thank you, we are very happy, I have to go and tell my Mum. Goodbye.’

‘Bye. See ya.’

And that, as they say, was that. I flew back to Melbourne, threw the brief into a corner in the time-honoured fashion of the Bar, and took a holiday from this litigation. Cameron Forbes wrote an article for The Age[353] and subsequently visited Murray Island. In the months and years that followed the politicians and the media took over the story — slowly at first, but with gathering momentum and intensity. On 26 January 1993 Eddie Mabo was made The Australian newspaper’s ‘Australian of the Year’.[354] But all of that is another story.

5 A Life Well Lived?

This is not the place for a detailed analysis of the new law of native title, nor the wider impact of this litigation. But some brief concluding remarks may be in order. First is the brutal reality that all governments, of whatever political persuasion, wanted Mabo [No 2] like a hole in the head. After 200 years of governments failing dismally to deliver a national land rights response, the High Court in 1992 stepped in and, exercising its proper constitutional function, dramatically filled the gap. The reluctant national response has always baffled me. But for Mabo [No 1], international commitments to racial equality, together with the ‘just terms’ protection entrenched in the Constitution with the resulting national bill for compulsory acquisition of native title, politicians of all persuasions would have denied these valuable new property rights with little more than pious platitudes about the need for economic development. There is something miserable in the Australian psyche on this issue which is not reflected in other acts of generosity to distressed communities, for example, the humanitarian crisis in East Timor in 1999. Why is this so?

The second observation is by way of response. There is, I feel, an amalgam of factors at work, but amongst them is the proposition that the decision challenges our national sense of self. It forces the nation to consider who we are, where we come from, and whether our very existence on this continent lacks integrity, whether the colonising society itself is built on a ‘convenient falsehood’[355] and founded, in the striking words of Deane and Gaudron JJ, on a ‘national legacy of unutterable shame.’[356] Beyond that, simple racism is perhaps part of it — but this to me is too simplistic an answer to embrace the wide-ranging resistance to the straightforward notion that some indigenous citizens may enjoy some traditional rights to some areas of this island continent.

So what has all this meant? What, in the final analysis, has been achieved from this litigation? It might be argued that the jury is still out, but to my mind, the national response is now clear. It is a sorry picture indeed. First, opportunities arising from Mabo [No 2] to deliver land justice have been squandered. The political solution, as embodied in federal, State and Territory statutory schemes, has distorted the underlying vision set out in Mabo [No 2] to the extent that not only do these schemes now not reflect the new common law, they deny and detract from it. It might be argued that the High Court’s legal ‘expedient’ paved the way for political variations on that theme, but I think not — for the simple reason that the political resolution of this serious national issue has not been rational. Second, the legislative solution[357] and its administration are deeply flawed. It is unnecessarily complex and controlling in an over-reaching attempt to deliver a fallacious reality — ‘certainty’ for Crown grantees — whilst on the indigenous side, the scheme (like Mabo’s legal team) is so squeezed for resources that it is now, in many respects, simply unable to deliver appropriate services to claimants. Finally, the statutory scheme merely replaces old grievances with new ones, and points not to ‘reconciliation’ but to continuing protests about perceived, and real, injustices. One is tempted, sometimes, to return to the common law and draft a new statement of claim: to endeavour, for example, to establish the existence of a free-standing fiduciary duty owed by the Crown[358] to traditional owners when dealing with their land. But that particular piece of poetry is also another story for another time, and with another plaintiff.

APPENDICES

I Select Procedural Chronology

This chronology has been compiled with the aid of the materials in the Mabo Collection (see above n 8). Volume 36 of these materials contains a more detailed chronology, including references to various documents in the collection. Where no source is cited below, relevant materials can be found by consulting volume 36. For further details about procedural aspects, see Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 6.

1 Key to Abbreviations Used

Chronology

Map of Claimed Areas

[*] QC; LLM, BA (Melb), DipEd (Monash); admitted to practice before the High Court of Australia, Federal Court of Australia and the Supreme Courts of Vic, NSW, Qld and NT; Principal Legal Officer, Mirimbiak Nations Aboriginal Corporation. I wish to acknowledge the considerable assistance of Simona Gory and Andrew North for research, Professor Garth Nettheim for his comments, and the Editors. All mistakes remain my own.

[1] See Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) (‘Yorta Yorta’). The claimants failed at trial. As at 31 December 2000, the outcome of an appeal in the Full Federal Court is pending.

[2] Strenuously objected to in Mabo as hearsay and for other reasons, such evidence was admitted in Yorta Yorta by reason of relaxed rules of evidence: see Native Title Act 1993 (Cth) s 82 (in its original form). See further below at n 228.

[3] There were approximately 500 respondents, organised into a dozen or so groups each represented by a legal team.

[4] See Justice Michael Kirby, ‘Seven Ages of a Lawyer’ (2000) 26 Monash Law Review 1, being the Leo Cussen Memorial Lecture for 1999.

[5] The 1998 amendments to the Native Title Act 1993 (Cth) encourage mediated outcomes to native title claims, rather than litigation. See especially Native Title Act 1993 (Cth) pt 2 div 3, pt 4 divs 1B, 1C, 2, pt 6; as amended by Native Title Amendment Act 1998 (Cth).

[6] For major contributions, see the Butterworths looseleaf service: Richard Bartlett, Native Title in Australia (2000); B A Keon-Cohen (ed), Native Title in the New Millennium (forthcoming, 2001); the Indigenous Law Bulletin (1997–) and the Australian Indigenous Law Reporter

(1996–); various law review symposia, eg: ‘Indigenous People: Issues for the Nineties’ [1993] UNSWLawJl 2; (1993) 16 University of New South Wales Law Journal 1–314 and ‘Wik: The Aftermath and Implications’ [1997] UNSWLawJl 6; (1997) 20 University of New South Wales Law Journal 487–524; and a large collection of material on the Internet: Trevor Graham et al, Mabo — The Native Title Revolution (2000) <http://www.mabonativetitle.com> at 31 December 2000, which is accompanied by a multimedia CD-ROM package by the same name.

[7] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo [No 2]’).

[8] See B A Keon-Cohen (ed), Mabo v Queensland (No 1) and (No 2) Litigation Materials 1982–1992 (1998) (‘Mabo Collection’ cited as ‘MC’ hereafter). The collection consists of 73 arch-lever volumes plus associated materials, and is held in the Manuscripts Collection (MS 9518) of the National Library of Australia, with a copy set held by myself. The National Library holds additional Mabo family archives, restricted until January 2005: Eddie Mabo, Papers (1943–92). See also a guide to the papers prepared by the National Library of Australia: Adrian Cunningham, MS 8822: The Papers of Edward Koiki Mabo (1936–1992) (1995) <http://www

.nla.gov.au/ms/findaids/8822.html> at 31 December 2000 (copy on file with author).

[9] See, eg, Hugh Morgan, ‘Mabo and Australia’s Future’ (1993) 37(12) Quadrant 63, being but one contribution to that magazine’s relentless anti-indigenous crusade.

[10] Eg, suggestions by former Premier Jeff Kennett that ‘backyards are at risk’ and by Premier Richard Court that native title compensation would lead to ‘apartheid’ in Australia: see, eg, Tom Ormond and Margaret Easterbrook, ‘Kennett Sparks New Row on Mabo’, The Age (Melbourne), 10 July 1993, 1; Innes Willox and Geoffrey Barker, ‘Some Welcome Proposals, Others Worried’, The Age (Melbourne), 4 June 1993, 6; Veronica Brady, ‘The State of Shame’, The Age (Melbourne), 25 October 1993, 13.

[11] Who died in a Brisbane hospital on 21 January 1992 from cancer. For an account of his life, see Noel Loos and Koiki Mabo, Edward Koiki Mabo: His Life and Struggle for Land Rights (1996).

[12] Who died in Melbourne on 21 October 1999. See, for one of many obituaries, Jack Fajgenbaum, Justice Alan Goldberg and Justice Ron Merkel, ‘Mabo Barrister Assailed Indifference’, The Australian (Sydney), 27 October 1999, 16.

[13] See Loos and Mabo, above n 11, xiv.

[14] Especially several Murray Islanders who gave evidence in support of the case. Native title claims tend to be a ‘once and for all’ event in the life of indigenous communities — for this and other reasons.

[15] See Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution — The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993). But see also below n 318.

[16] James v Cowan [1930] HCA 48; (1930) 43 CLR 386, 422.

[17] See William Shakespeare, As You Like It (1st folio, 1623) Act II Scene 7 lines 139–66.

[18] For a full account, see Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 25–58, 63–71 (Brennan J), and especially the summary propositions concerning ‘the common law of Australia with reference to land titles’ at 69–70 (Brennan J), 79–95, 101–4 (Deane and Gaudron JJ), 123–38 (Dawson J), 179–96, 207–14 (Toohey J).

[19] Johnson v M’Intosh, 21 US [1823] USSC 22; (8 Wheat) 543 (1823).

[20] Cherokee Nation v Georgia, 30 US [1831] USSC 6; (5 Pet) 1 (1831).

[21] Worcester v Georgia, 31 US [1832] USSC 39; (6 Pet) 515 (1832).

[22] R v Symonds (1847) NZPCC 387.

[23] St Catherine’s Milling & Lumber Co v The Queen (1888) 14 App Cas 46, 55 holding that Canadian Indians held a personal usufructuary right to their traditional lands, ‘dependant on the goodwill of the sovereign’.

[24] Calder v A-G (British Columbia) [1973] SCR 313; 34 DLR (3rd) 145 ruled 3:3 (with the seventh judge rejecting the claim on a technicality: at 425–7; 225–6 (Pigeon J)) that the Nishga Indians enjoyed, at common law, pre-existing rights to their traditional land, waters, and resources therein, and that these rights had not been extinguished by the colonisation of British Columbia, especially not by the British North America Act 1867 (Imp) 30 Vict, c 3.

[25] See Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399, 407; Oyekan v Adele [1957] 2 All ER 785, 788 (Lord Denning).

[26] Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 (‘Western Sahara’).

[27] Ibid 86, cited in Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 41 (Brennan J).

[28] See Australia Act 1986 (Cth); Australia Act 1986 (UK) c 2. Sections 11(1) of both Acts provide that no appeal lies from Australian courts to the Privy Council other than from the High Court. The Acts also repeal all provisions in UK legislation providing for such appeals.

[29] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, ruling by way of dicta that prior to colonisation, no society exhibiting any system of law, including rights to land, was present. The continent was ‘terra nullius’: ie, land belonging to no one.

[30] Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 138.

[31] Geita Sebea v Territory of Papua [1941] HCA 37; (1941) 67 CLR 544 (‘Geita Sebea’).

[32] Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (‘Daera Guba’), see especially 436–40 (Gibbs J). Papua was declared a protectorate by the British in 1884 before it became a British possession. Questions arose in that case as to whether Papuan traditional title survived annexation, and whether a sale of that title to a colonist was valid under native law.

[33] Ibid 396–7.

[34] [1992] HCA 23; (1992) 175 CLR 1, 60.

[35] R v Murrell (1836) 1 Legge 72.

[36] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; reviewed and adopted, as binding precedent, by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 242–3 (‘Gove Case’).

[37] See, eg, Justin Malbon, ‘The Race Power under the Australian Constitution: Altered Meanings’ (1999) 20 Sydney Law Review 80, 91–3.

[38] Eg Australian Constitution ss 51(xxvi), 127. Section 51(xxvi) was later amended, and s 127 repealed, by referendum and the Constitution Alteration (Aboriginals) 1967 (Cth).

[39] Discussed particularly by Deane and Gaudron JJ in Mabo [No 2] [1992] HCA 23; 175 CLR 1, 102–4.

[40] A-G (NSW) v Brown (1847) 1 Legge 312; Williams v A-G (NSW) [1913] HCA 33; (1913) 16 CLR 404; Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54.

[41] (1971) 17 FLR 141.

[42] R v Wedge [1976] 1 NSWLR 581.

[43] Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118.

[44] Notably Vajesingji Joravarsingji v Secretary of State for India [1924] UKPC 51; (1924) 51 Ind App 357, especially at 360; and see Sir Frederick Pollock, ‘Notes’ (1900) 61 Law Quarterly Review 1, 1–2.

[45] Eg Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72, 77–8.

[46] Tee-Hit-Ton Indians v United States, [1955] USSC 24; 348 US 272 (1954), but see United States v Santa Fe Pacific Railroad, [1942] USSC 12; 314 US 339, 345 (1941).

[47] Eg Re Southern Rhodesia [1919] AC 211.

[48] (1971) 17 FLR 141.

[49] [1992] HCA 23; (1992) 175 CLR 1.

[50] Gove Case (1971) 17 FLR 141, 262.

[51] Ibid 267–8.

[52] Ibid 272.

[53] Ibid 273.

[54] Perhaps because the plaintiffs’ advisers feared an adverse result in the High Court, as then constituted. But this is pure supposition.

[55] See, eg, John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia’ [1972] FedLawRw 5; (1972) 5 Federal Law Review 85; Geoffrey Lester and Graham Parker, ‘Land Rights: The Australian Aborigines Have Lost a Legal Battle but ...’ (1973) 11 Alberta Law Review 189; Barbara Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (1979) 10 Federal Law Review 161; cf L J Priestley, ‘Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case’ [1974] FedLawRw 5; (1974) 6 Federal Law Review 150.

[56] Enabled by the territories power: Australian Constitution s 122.

[57] See Aboriginal Land Rights Commission, First Report (1973) and Aboriginal Land Rights Commission, Second Report (1974).

[58] Aboriginal Land (Northern Territory) Bill 1975 (Cth).

[59] One exception, arguably, was the Pitjantjatjara Land Rights Act 1981 (SA).

[60] See below Part B(V).

[61] See Order in Council of the Queensland Governor dated 14 November 1912.

[62] See Native Title Amendment Act 1998 (Cth).

[63] An ‘in-joke’ which Melbourne lawyers will understand: ie, so many legal luminaries now claim to have ‘been there’ and ‘done that’, the claim is self-defeating: the Fitzroy Town Hall can’t hold that many!

[64] The words are those of Nonie Sharp, No Ordinary Judgment (1996) 26.

[65] Cited in Loos and Mabo, above n 11, 22. Funeral proceedings were recorded by the Townsville Aboriginal and Islander Media Association. For the above and other speeches, see John Faine (presenter), ‘A Tribute to Koiki Mabo’, Law Report, ABC Radio National, 3 March 1992.

[66] See discussion at below n 248 and accompanying text, indicating how some Murray Islanders gave evidence for Queensland, opposing Mabo’s claims to various garden plots.

[67] Discussed in below Part B(VI)(7).

[68] Being nine in chief, six in cross-examination, between 17 October to 7 November 1986 and 4 May to 6 June 1989. Examination in chief: see Transcript of Proceedings, Mabo v Queensland (Supreme Court of Queensland, Moynihan J, commencing 13 October 1986) (‘Trial Transcript’) MC vol 18 (1986) 69–138, 195–215, 222–336; MC vol 19 (1986) 341–597; MC vol 28 (1989) 693–717. Cross-examination and re-examination: see Trial Transcript MC vol 28 (1989) 718–1020; MC vol 30 (1989) 1425–93.

[69] Mabo v Queensland: Determination of Facts (Supreme Court of Queensland, Moynihan J, 16 November 1990) (‘Determination’) vol 1, 70–2, 196–7. The Determination consists of three bound volumes (bound together in MC vol 62): vol 1 contains the substance of the Determination; vol 2 contains findings in respect of 116 specific findings of fact sought by the plaintiffs; and vol 3 contains pleadings, witness and exhibit lists, and submissions on behalf of the plaintiffs and Queensland in relation to the Murray Island Court. The Determination is partially reported in relation to admissibility issues in Mabo v Queensland [1992] 1 Qd R 78.

[70] Discussed further in below Part B(VI)(7).

[71] See Jeremy Beckett, Torres Strait Islanders: Custom and Colonialism (1987) 51–5, described as ‘the first organized Islander challenge to European authority’: at 54.

[72] For critical studies of this oppressive administration, see Garth Nettheim, Victims of the Law: Black Queenslanders Today (1981); Frank Brennan, Land Rights Queensland Style: The Struggle for Aboriginal Self-Management (1992); Frank Brennan, ‘The Queensland Aboriginal Land Act 1991’ (1991) 2(50) Aboriginal Law Bulletin 10; Garth Nettheim, ‘Queensland’s Laws for Aborigines’ (1976) 1 Legal Service Bulletin 321.

[73] Pat Killoran was for many years Director of the Queensland Department of Aboriginal and Torres Strait Islander Affairs. See, eg, Aborigines Act 1971 (Qld); Torres Strait Islanders Act 1971 (Qld); Aborigines Act and Torres Strait Islanders Acts Amendment Act 1974 (Qld); Local Government (Aboriginal Lands) Act Amendment Act 1978 (Qld); Local Government (Aboriginal Lands) Act 1978 (Qld).

[74] Eddie’s adoptive father was Benny Mabo. See Loos and Mabo, above n 11, 15.

[75] Exhibits 258, 258A (not collected in MC). See Trial Transcript MC vol 33 (1989) 2598.

[76] The tape recorded Benny Mabo identifying place-names at Murray Island to Margaret Lawrie on 12 September 1968. See Trial Transcript MC vol 33 (1989) 2598.

[77] Treaty Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, 18 December 1978, Australia–Papua New Guinea, 1429 UNTS 207 (entered into force 15 February 1985) (‘Torres Strait Treaty 1978’). See Queensland, Parliamentary Debates, 9 April 1985, 4920–45, during debate on the Queensland Coast Islands Declaratory Bill 1985 (Qld).

[78] There were nine children. Family life is well shown on two documentary films: Sharon Connolly and Trevor Graham (directors), Land Bilong Islanders (Yarra Bank Films, 1989) and Trevor Graham (director), Mabo: Life of an Island Man (Film Australia, 1997). Both have been shown several times on Australian TV and internationally. See now a CD-ROM and website, Graham et al, above n 6.

[79] With apologies to the performer of ‘My Island Home’, Christine Anu (an Islander herself), and the composer, Neil Murray.

[80] Order in Council of the Queensland Governor dated 14 November 1912. See also Land Act 1910 (Qld) s 180, later Land Act 1962–1975 (Qld) ss 334, 335; Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 73 (Brennan J), 151–5 (Dawson J).

[81] Land Act 1962–1975 (Qld) s 334; Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld).

[82] Garth Nettheim, ‘The Queensland Acts and Human Rights’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 82, 86–8.

[83] An official state body composed of three representatives of the Eastern, Western and Central groups of Islands.

[84] See Queensland, Parliamentary Debates, 9 April 1985, 4932 (Thomas Burns) during the debate on the Queensland Coast Islands Declaratory Bill 1985 (Qld). Consultations during 1981 revealed ‘1047 in favour of inalienable freehold; 44 favouring freehold; 10 favouring perpetual leasehold; and 1 favouring leasehold’.

[85] Land Act 1962–1975 (Qld) s 334. See, for these legislative developments, Brennan, Land Rights Queensland Style, above n 72.

[86] ‘Amended Statement of Claim’ (20 October 1986) MC vol 26, para 15(c)(ii). See, for discussion of these proposals, Nettheim, ‘The Queensland Acts and Human Rights’, above n 82; Heather McRae, Garth Nettheim and Laura Beacroft, Indigenous Legal Issues: Commentary and Materials (2nd ed, 1997) 196–7.

[87] ‘Amended Statement of Claim’ (20 October 1986), above n 86.

[88] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 73 (Brennan J). The DOGIT provisions had, by then, been improved in terms of their impact upon Aborigines and Islanders, as compared to the original proposed amendments.

[89] See Loos and Mabo, above n 11, 15–16; Sharp, above n 64, 22–7; especially Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) being edited proceedings of the conference.

[90] The Australian Committee was led by the late Dr Nugget Coombs. These were the final days of the Committee’s existence. See, for the work of the Committee, Stewart Harris, ‘It’s Coming Yet ...’: An Aboriginal Treaty within Australia between Australians (1979); Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years Later ..., Parl Paper No 107/83 (1983).

[91] Henry Reynolds, ‘European Justification for Taking the Land’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 2, 5.

[92] See Olbrei, above n 89. This gathering included names of significance, eg, Bob Collins (Member for Arnhem in the Territory Parliament), Dr H C ‘Nugget’ Coombs, the Hon Al Grassby (Commissioner for Community Relations), Barbara Hocking (barrister), Senator Jim Keeffe, Flo Kennedy (Islander elder), Eric Kyle (Palm Islander), Marcia Langton (Australian Institute of Aboriginal Studies, Canberra), Noel Loos (Institute of Advanced Education, James Cook University), Eddie Mabo, Les Malezer (editor of Identity), Greg McIntyre (solicitor), Professor Garth Nettheim, Shorty O’Neill (North Queensland Land Council), Henry Reynolds, Lyndall Ryan (author), Dr Nonie Sharp (sociologist, La Trobe University) and Judith Wright (poet).

[93] Published as Eddie Mabo, ‘Land Rights in the Torres Strait’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 143.

[94] The plaintiffs’ research missed this useful item — doubtless with much more. Such are the fluctuating fortunes of litigation.

[95] Mabo, above n 93, 147.

[96] Dr Nonie Sharp, Flo Kennedy, Father Dave Passi (subsequently a plaintiff and witness), and Ben Mills (‘associated with the Torres Strait Advisory Council’: see Olbrei, above n 89, xvii).

[97] Ben Mills, ‘Islanders’ Response to Proposed Repeal of the Torres Strait Islanders Act’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 165, 167.

[98] Barbara Hocking, ‘Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian Courts’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 207. Barbara Hocking was counsel for the plaintiffs during 1981–86, and conducted pioneering research into the relevant international and common law. In 1992 she was awarded a Human Rights Medal for her contribution to the Mabo litigation, and to the advancement of human rights generally.

[99] Greg McIntyre, ‘Aboriginal Land Rights — A Definition at Common Law’ in Erik Olbrei (ed), Black Australians: The Prospects for Change (1982) 222.

[100] (1971) 171 FLR 141. See also Hocking, ‘Does Aboriginal Law Now Run in Australia?’, above n 55; Barbara Hocking, ‘Aboriginal Law Does Now Run in Australia — Reflections on the Mabo Case: From Cooper v Stuart through Milirrpum to Mabo’ [1993] SydLawRw 15; (1993) 15 Sydney Law Review 187.

[101] Hocking, ‘Is Might Right?’, above n 98, 207. As to compensation for loss of native title, see National Native Title Tribunal, Compensation for Native Title: Issues and Challenges (1999) being papers from workshops sponsored jointly by the Australian Property Institute and the National Native Title Tribunal, held in 1997.

[102] Loos and Mabo, above n 11, 15.

[103] See, eg, John Stanton, ‘The Islander Who Would Be King’, The Australian (Sydney), 26 May 1986, 13, put to Mabo in cross-examination by Queensland as part of their attack upon his credit. See Exhibit 71, MC vol 42; Trial Transcript MC vol 22 (1989) 795ff, 830.

[104] In fact, after the conference, two cases were initially prepared: see below Part B(III)(1).

[105] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.

[106] McIntyre, above n 99, 223.

[107] Ibid 233.

[108] See Sharp, above n 64, 23.

[109] A senior Islander lady, active in political circles, who cooked delicious fish and accompanied us lawyers on our first visit to Mer: see below n 167 and accompanying text.

[110] As to which, see further below Part B(VII)(2).

[111] Discussed in below Part B(III)(10).

[112] See High Court Rules 1952 (Cth) O 35. As it happened, such agreement was sought but, in the end, did not eventuate: see below nn 181–185 and accompanying text.

[113] See Barbara Hocking, ‘Preliminary Advice’ (29 October 1981) MC vol 5.

[114] Barbara Hocking, ‘Memorandum’ (11 March 1982) MC vol 5.

[115] Bryan Keon-Cohen, ‘Letter to Ron Castan’ (7 June 1982) MC vol 5.

[116] Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 317 (Murphy J).

[117] At least, that part of the Straits containing Murray Island.

[118] The annexation was achieved by various instruments, being acts of state (ie, by the executive) and laws passed by the United Kingdom and Queensland Parliaments: see Imperial Letters Patent of 10 October 1878; the Queensland Coast Islands Act 1879 (Qld) which commenced on 24 June 1879; and Proclamation of the Queensland Governor dated 18 July 1879. See also the Colonial Boundaries Act 1895 (Imp) 58 & 59 Vict, c 34.

[119] Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1 (‘Wacando’), where the Court held that the annexation was either valid on its face (the view of the majority) or alternatively, any alleged deficiencies were cured with retrospective effect by the Imperial Colonial Boundaries Act 1895 (Imp) 58 & 59 Vict, c 34.

[120] An approach which has caused Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 and all those associated with it to be severely criticised by some sections of the Aboriginal community ever since 1992. This criticism conveniently forgets the law and is misconceived. See Michael Mansell, ‘The Court Gives an Inch but Takes Another Mile’ (1992) 2(57) Aboriginal Law Bulletin 6.

[121] The phrase is found in the Queensland Coast Islands Act 1879 (Qld) s 1; and the Proclamation of the Queensland Governor dated 18 July 1879.

[122] Section 7 stated: ‘Nothing herein ... shall ... derogate from the rights of the tribes or people inhabiting such islands or places, or of Chiefs or Rulers thereof, to such sovereignty or dominion’.

[123] Being seas claims abandoned halfway through the trial: see below n 321 and accompanying text.

[124] See Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9.

[125] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (‘Seas and Submerged Lands Case’).

[126] See ibid 362–5 where Barwick CJ stated that power (dominion) over seas washing the shores of a colony was exercisable by the Imperial executive or legislature, and these matters constituted external affairs for the purposes of s 51(xxix) of the Australian Constitution. See also Mason J (at 476) discussing sovereignty in the seas in respect of inland waters.

[127] See also Coastal Waters (State Title) Act 1980 (Cth); Coastal Waters (State Powers) Act 1980 (Cth). Note that prior to the passage of this legislation in 1980, the coastal waters were not part of the Colony or the State of Queensland. See Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337, 363, 367, 370 (Barwick CJ), 467–8 (Mason J), 481–2 (Jacobs J).

[128] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337, 362–3, 367, 370 (Barwick CJ), 467 (Mason J), 484 (Jacobs J).

[129] See Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 (FCA) (‘Croker Island Case’), on appeal to the High Court, set down for hearing in February 2001.

[130] The Spanish in 1605, James Cook in 1770, William Bligh in 1789: see ‘Statement of Facts’, below n 184, vol 1, pt 1, 1; see also John Singe, The Torres Strait: People and History (revised ed, 1989) 15–20.

[131] Around 1842–47 in Her Majesty’s schooners ‘Bramble’ and ‘Fly’: see ‘Statement of Facts’, below n 184, vol 1, pt 1, 2; see also David Moore, Islanders and Aborigines at Cape York (1979) 1–3.

[132] Known as the ‘coming of the light’: see, eg, Trial Transcript MC vol 31 (1989) 2047–8 (cross-examination of Dave Passi); Beckett, Torres Strait Islanders: Custom and Colonialism, above n 71, 39–40. See also below nn 240–243 and accompanying text.

[133] Torres Strait Islanders Act 1939 (Qld) pt IV and Regulations.

[134] See M H McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 Australian Law Journal 671: New South Wales (including what is now Queensland, South Australia, Tasmania and Victoria) was colonised in 1788, Western Australia in 1829. As mentioned in above n 118, the Torres Straits islands were annexed to Queensland in 1879. See also Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 77–9, 113–14 (Deane and Gaudron JJ); 19–21, 25 (Brennan J).

[135] (1971) 17 FLR 141.

[136] ‘Statement of Claim’ (30 May 1982) MC vol 9. See also further court documents filed in response to the Statement of Claim in MC vol 9. The pleadings are listed in greater detail in the attached Chronology, Appendix I.

[137] An elderly lady, being Benny Mabo’s sister.

[138] Celuia Mapo Salee died in 1985 and Eddie Mabo died in 1992.

[139] See below Part B(VI)(1).

[140] See below nn 343–349 and accompanying text.

[141] ‘Statement of Claim as Amended June, 1989’ (20 June 1989) Exhibit 201, MC vol 26.

[142] Ibid ‘Prayer for Relief’, para BX.

[143] Determination, above n 69, vol 1, 155–7.

[144] Provided for under the Australian Constitution s 75(iii) and the Judiciary Act 1903 (Cth) s 30.

[145] A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (‘DOGS Case’). See especially at 561.

[146] Remembering, of course, that the High Court will depart from its own prior decisions, but only on well-established grounds. See, eg, Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585, 602–6 (‘Second Territory Senators’ Case’).

[147] See, for a summary of relief sought, Mabo v Queensland [1986] HCA 8; (1986) 64 ALR 1, 2–3 (Gibbs CJ).

[148] Barbara Hocking, ‘Preliminary Advice’ (29 October 1981) MC vol 5, 2–3.

[149] Under the High Court Rules 1952 (Cth) O 26 r 19 a party may seek merely a declaratory judgment and obtain ‘binding declarations of right’ — which the plaintiffs sought against both defendants, plus additional relief sought against Queensland, ie, injunctions and damages. Damages were never pursued, since by May 1991 the Island reserves had not been de-gazetted, and the associated protections had thus not been removed.

[150] The additional Commonwealth laws pleaded were Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) s 5; Coastal Waters (State Title) Act 1980 (Cth) s 4(2)(a); Torres Strait Fisheries Act 1984 (Cth). The allegedly conflicting Queensland laws were the Land Act 1962–1984 (Qld) as amended by the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) and Land Act (Aboriginal and Islander Land Grants) Amendment Act 1984 (Qld) ss 5, 334C, 347A, 350, 352A, 353A, 358(5); Community Services (Torres Strait) Act 1984 (Qld) ss 5(7), 51(1), 62, 64, 69, 71, 73.

[151] Torres Strait Treaty 1978, above n 77, especially arts 10–20, incorporated into the Torres Strait Fisheries Act 1984 (Cth).

[152] See further below Part B(VI)(4) and see ‘Heads of Agreement [between the Plaintiffs and the Commonwealth]’ (26 June 1989) Exhibit 225, MC vol 26.

[153] On 18 June 1982 and 21 October 1986 respectively.

[154] On 11 May 1982 and 13 February 1989 respectively.

[155] On 5 February 1987.

[156] On 6 February 1987.

[157] On 25 June 1982.

[158] On 30 July 1982.

[159] On 6 February 1987.

[160] On 6 February 1987.

[161] On 14 February 1989.

[162] Mabo v Queensland (1988) 166 CLR 186 (‘Mabo [No 1]’).

[163] [1992] HCA 23; (1992) 175 CLR 1.

[164] See R v Murphy (Unreported, Supreme Court of NSW, Cantor J, 5 July 1985); Murphy v The Queen [1985] HCA 50; (1985) 158 CLR 596; R v Murphy (1985) 4 NSWLR 42 (NSW CCA); R v Murphy (1986) 5 NSWLR 18 (NSW SC); R v Murphy (1986) 23 A Crim R 349 (NSW SC).

[165] Greg McIntyre, solicitor; Ron Castan QC, Barbara Hocking and the author, counsel.

[166] Another story: we stayed at the Federal Hotel, where the famous, and very melodious, Mills Sisters sang in the bar on Friday nights, to the delight of the inebriated sailors from all over the globe, and locals.

[167] She had been prominent in discussions at the Townsville conference of August 1981: see above n 92.

[168] See Determination, above n 69, vol 1, 134: the ‘Malo Ra Gelar “given by Marou at Murray Island 15 February, 1967”’. For another version, see Sam Passi, [Document Containing Malo’s Laws Written in Meriam with English Translation] (5 July 1986) Exhibit 131, MC vol 44. This reads, in part, ‘Malo plants everywhere even under the trees; no soil is left vacant. ... Malo never wanders to any body’s land neither picks or touch which are not his (unpermitted) [sic].’

[169] Determination, above n 69, vol 1, 134.

[170] The three islands forming the Murray Island group are the remains of an ancient volcano. Perhaps the rock used to construct the fish traps was conveyed across the seas from Papua New Guinea. Islanders — including the Meriam people — are of Melanesian ancestry and many have close relations residing in the southern areas of Papua New Guinea.

[171] Since the success of 1992, more islanders have sought to return. A large dam has now been built above the main village — use of the land for which had to be negotiated with the relevant traditional owners.

[172] See also below nn 240–243 and accompanying text.

[173] Mabo’s grave was desecrated on the evening of Saturday 3 June 1995: see Gareth Boreham, ‘Leaders Denounce Desecration of Mabo Grave’, The Age (Melbourne), 5 June 1995, 3.

[174] ‘[Queensland] Summons [to Strike Out]’ (18 August 1982) MC vol 10; per Judiciary Act 1903 (Cth) s 18.

[175] Patrick Killoran, ‘Affidavit of Patrick James Killoran’ (16 August 1982) MC vol 10. Killoran had administered Queensland’s Aboriginal and Islander legislation since 1 July 1963 — see his statement in evidence: Patrick Killoran, ‘Statement’ (3 July 1989) Exhibit 278, MC vol 51; and his evidence at trial: Trial Transcript MC vol 35 (1989) 3037ff. The statutes were colloquially known as ‘Killoran’s Law’: see above n 73 and accompanying text.

[176] Telex containing text of letter: Ron Castan, ‘Letter to State Crown Solicitor, Brisbane’ (25 August 1982) MC vol 5, 2–3.

[177] Transcript of Proceedings, Mabo v Queensland (High Court of Australia, Deane J, commencing 28 October 1982) MC vol 10 document 8.

[178] Being Ron Castan QC, Barbara Hocking and the author, counsel; and Greg McIntyre, solicitor.

[179] Being David Jackson QC and Robert Douglas of the Brisbane Bar.

[180] Being the then Solicitor-General, the late Sir Maurice Byers QC, and Ian Hanger.

[181] A common enough procedure: see High Court Rules 1952 (Cth) O 35.

[182] Transcript of Proceedings, Mabo v Queensland: Summons for Directions (High Court of Australia, Gibbs CJ, commencing 27 November 1984) MC vol 10 document 35.

[183] Mabo v Queensland: Order (High Court of Australia, Gibbs CJ, 27 November 1984) MC vol 10 document 36.

[184] See ‘Plaintiffs’ Statement of Facts; Annexures A [Maps and Photographs: General], B [Maps, Plans and Plaintiffs’ Portions], C [Plaintiffs’ Chains of Title]’ (November 1984) Exhibit 1, MC vol 1; ‘Plaintiffs’ Statement of Facts — Annexure D: Murray Island Records’ (December 1983) Exhibits 2–3, MC vols 2–3; ‘Plaintiffs’ Statement of Facts — Source Documents’ (November 1984) Exhibit 4, MC vol 4. (Collectively, ‘Statement of Facts’.)

[185] The ‘Statement of Facts’, above n 184, vol 1, pt 1 includes 116 numbered paragraphs. Some were accepted by Queensland, eg, historical matters. Moynihan J ruled on most of these alleged ‘facts’ in his Determination, above n 69, vol 2, 1–58. These findings traversed the history of settlement, features of Meriam society, and the customs and traditions said to found the traditional interests in land and seas claimed.

[186] See Torres Strait Islanders Act 1939 (Qld) s 20(1); Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) s 52(1); Torres Strait Islanders Act 1971 (Qld) s 42(1); Community Services (Torres Strait) Act 1984 (Qld) s 41. This legislation is discussed in Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 151–4 (Dawson J). The scheme was considered by many to be paternalistic, whilst Queensland argued at trial that decisions of the Island Court established thereunder were merely ‘informal’ and of no legal effect.

[187] Eg the Aborigines’ and Torres Strait Islanders’ Regulations 1966 (Qld) promulgated by the Governor in Council under the various acts set out above. The Regulations deal with, inter alia, the jurisdiction, powers and procedure of island courts.

[188] See, eg, ‘Annual Reports of the Chief Protector of Aboriginals’ (1907, 1908, 1909, 1911) MC vol 4 documents 56, 57, 58, 61; a report by the Government Resident, Thursday Island, to Chief Secretary, Brisbane: J Douglas, ‘Condition of Aboriginal Natives of Murray Island’ (24 June 1891) MC vol 4 document 50; A C Haddon (ed), Reports of the Cambridge Anthropological Expedition to Torres Straits (first published 1935, 1st reprint 1971) vol 6 ch 9, 163–8. See also Beckett, Torres Strait Islanders: Custom and Colonialism, above n 71, 122, 131–2.

[189] Queensland officials (archivists and others) complained that these were documents owned by Queensland which should never have been removed from their (dirty, unattended and exposed) location, ie, our clients had no interest in them or entitlement to them.

[190] See ‘Statement of Facts’, above n 184, vol 2 (entitled ‘Annexure D: Murray Island Records — Court Reports’); see also ‘Full Copy of Murray Island Court Records 1908–1929’ (22 May 1989) Exhibit 284, MC vols 56–9.

[191] See ‘Documents Identified by Sam Passi That He Has Witnessed as Either Court Reports, Wills or Land Transactions’ (various dates) Exhibit 135, MC vol 44; ‘Court Reports Nos 44/1, 54/2, 55/1, 56/4, 56/1, 57/4, 57/5, 57/7, 57/8, 58/4, 58/5, 58/6, 61/6, 61/7, 62/1, 64/1 as identified by Sam Passi’ (various dates) Exhibit 137, MC vol 44.

[192] See ‘Final Submissions on Behalf of the Plaintiffs’ (September 1989) MC vol 36, ch VIII. These were drafted by three University of Queensland Law School students being Janet Power (now of Attorney-General’s Department, Canberra); Justin Harper (now Senior State Negotiator, Native Title Services, Department of Premier and Cabinet, Queensland); and Matthew Coren (now employed in the merchant banking sector, Sydney). Following a lecture I gave, they were kind enough to offer their services to assist the plaintiffs, and were eagerly seized upon and mercilessly put to work on various tasks over several weeks, including an analysis of these court reports. Known colloquially as ‘Halsbury’s Laws of the Meriam People’, their analysis formed part of the plaintiffs’ final submissions to the trial Judge: see Moynihan J’s Determination, above n 69, vol 3, 137–203. I record our appreciation for their valuable efforts.

[193] Determination, above n 69, vol 1, 189–93.

[194] Ibid 192.

[195] Meriam society is traditionally very disputatious — especially over land boundaries and inheritance. Some such disputes run over generations. The Island Court has not met since the issuing of the writ in 1982, one reason being uncertainty about the impact of such hearings upon the case itself. However, following the High Court’s declaration of the Meriam people’s native title (Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1), under the Native Title Act 1993 (Cth) ss 56–7, 60AA a prescribed body corporate has been established, which includes, in its rules, provision for an island court to deal with traditional land disputes. See Paul Hayes, ‘Prescribed Body Corporate on Mer etc’ in B A Keon-Cohen (ed), Native Title in the New Millennium (forthcoming, 2001).

[196] Robinson v Shirley (1982) 149 CLR 132, 136 (Brennan J).

[197] See Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461.

[198] Mabo v Queensland [1986] HCA 8; (1986) 64 ALR 1, 5.

[199] Gibbs CJ discussed arguments concerning counsel’s right of appearance as ‘groundless’, stating (at ibid 4):

If part of the matter [ie issues of fact] is remitted to the Supreme Court of Queensland, that court will be exercising federal jurisdiction in hearing it. Any person entitled to practice as a barrister or solicitor, or as both, in a federal court will then have a right of audience in the State court in the matter: s 55B(4) of Judiciary Act.

[200] Ibid 4–5.

[201] See below nn 230–233 and Part B(VI)(2).

[202] See witnesses and exhibits conveniently listed at Determination, above n 69, vol 3, Annexures B and C.

[203] None of this, of course, includes the material generated for various hearings before the High Court in Mabo [No 1] (1988) 166 CLR 186 and Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1. In Mabo [No 2] the plaintiffs’ submissions ran to six volumes: see ‘Plaintiffs’ Submissions to High Court’ (April 1991) MC vol 63.

[204] Eg, Marwar Depoma, an elderly gentleman; Caroline Modee; and George Passi (the elder brother of plaintiff Father Dave Passi). Their evidence mainly contested the inheritance and precise location of boundaries of the various house and garden plots claimed by Eddie Mabo.

[205] Determination, above n 69, vol 1, 42.

[206] See below n 315 and accompanying text. The Determination (ibid vol 1, 42) is inaccurate on this point.

[207] Transcript of Proceedings, Mabo v Queensland: Directions (Supreme Court of Queensland, Moynihan J, commencing 25 July 1986) MC vol 18, 1–11; Trial Transcript MC vol 18 (1986) 1–18.

[208] Trial Transcript MC vol 18 (1986) 19–62.

[209] Trial Transcript MC vol 18 (1986) 69ff; MC vol 28 (1989) 693ff.

[210] Trial Transcript MC vol 19 (1986) 630.

[211] The witness was Robert Pitt, an elderly Islander called by the plaintiffs.

[212] Represented at various times by the Solicitor-General, Dr Gavan Griffith QC; with him Dennis Rose, Robert Gotterson and John Logan. John Logan appeared at the trial.

[213] Now Justice Byrne of the Queensland Supreme Court.

[214] Now Justice White of the Queensland Supreme Court.

[215] Now President, Queensland Land and Resources Tribunal, having jurisdiction in native title, mining and other matters.

[216] Now Deputy President, Queensland Land and Resources Tribunal.

[217] During June–July 1989 the plaintiffs’ legal team appearing at Court was reduced to one. However, quality (also abundantly evident amongst Queensland’s lawyers) is also important. Since 1992, whenever High Court appointments were mooted, and rumours were running hot in that most vital forum — the lifts of Owen Dixon Chambers — I often had a quiet joke with my very learned leader: ‘Ron’ said I, ‘Ron, you won the bloody case; and they got appointed. Where’s the justice in that?’ As Dixon CJ said of another outstanding lawyer of his generation, Sir Leo Cussen, the non-appointment of Ron Castan to the High Court from the mid 1980s was, in my view, a continuing tragedy for that Court, and for the nation. It was equally, very fortuitous for the Meriam people. See the remarks of Dixon CJ upon his retirement at (1964) 110 CLR v, x.

[218] Over the decade, largely due to the heroic persistence of Greg McIntyre, grants of aid from the Commonwealth Minister for Justice (Senator Michael Tait) and the Attorney-General’s Department were secured to partially defray the plaintiffs’ costs. For reasons (amongst others) of limited space, and incomplete records, this important aspect is not considered here.

[219] Ie, in Melbourne, where Castan was available on the phone; and in Brisbane, where Goss Downey Carne, Solicitors, acted occasionally as town agents for McIntyre & Co, Solicitors.

[220] In Sydney Professor Garth Nettheim’s indigenous rights students wrote research papers on various issues which Professor Nettheim and I selected. In Brisbane three law students assisted with final submissions: see above n 192.

[221] Eg the author’s wife, inter alia a solicitor, occasionally attended Court (to provide moral support and to build the numbers) and fed most of the witnesses during late-night proofing sessions at our rented Brisbane residence — whilst providing much other essential assistance. To remove any doubt: there was but one spouse for each counsel!

[222] Eg Melissa Castan, then a second year (deferred) law student and now lecturer at Monash University Law School, and partner, Robert Lehrer, an Arts graduate.

[223] Gay Kear of Organised Offices, who typed and copied many documents, especially the plaintiffs’ final submissions to Moynihan J.

[224] Neither was fully funded through legal aid — being one of the many instances where, but for Ron Castan’s personal commitment, the plaintiffs’ case most likely would have collapsed for want of resources to sustain it.

[225] By 1989 some extra phones had been installed in the Council Chambers at Mer — relieving the pressure on the single public phone we encountered in 1982.

[226] In July 1989 the Judge, fearing a collapse, stopped proceedings one Friday and sent the author home for a weekend’s rest. See Trial Transcript MC vol 33 (1989) 2693–94, 2722

(6–7 July 1989).

[227] All of which was rejected by Moynihan J. See above Part B(VI)(7).

[228] For the technical arguments, see B A Keon-Cohen, ‘Some Problems of Proof: The Admissibility of Traditional Evidence’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution — The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 185.

[229] It took a little while to work out, given that the Court was sitting in federal jurisdiction on remitter from the High Court, just what evidential law applied.

[230] For a description provided to the Court, see David Shaw (of Holding Redlich, town agents for the plaintiffs’ solicitors), ‘Affidavit in Support of Summons’ (12 March 1987) MC vol 21, para 15. This affidavit was tendered to Toohey J at a directions hearing seeking to set aside the remitter and set down the demurrer: see Transcript of Proceedings, Mabo v Queensland (High Court of Australia, Toohey J, commencing 3 April 1987) MC vol 21 (1987).

[231] See Shaw, ‘Affidavit’, above n 230, para 15.

[232] See Mabo v Queensland [1992] 1 Qd R 78.

[233] Transcript of Proceedings, Mabo v Queensland (High Court of Australia, Deane J, commencing 13 February 1987) MC vol 20 (1987).

[234] Trial Transcript MC vol 20 (23 February 1987) 635; also quoted in Shaw, ‘Affidavit’, above n 230, para 19.

[235] Cited in Shaw, ‘Affidavit’, above n 230, para 20. This passage does not appear in the transcript available in MC.

[236] Moynihan J alludes to this in his Determination, above n 69, vol 1, 36.

[237] Ibid 35–42.

[238] The witness was Meb Salee: see Trial Transcript MC vol 29 (1989) 1123.

[239] This witness was Lui Bon: see ibid 1339–77. See also Lui Bon, ‘Statement’ (26 May 1989) Exhibit 157, MC vol 45.

[240] See Trial Transcript MC vol 31 (1989) 2046–50 and Dave Passi’s ‘Statement’ (2 June 1989) Exhibit 197, MC vol 45. In his statement he deposes (at 2–3):

I see no conflict between my adoption and adherence to the Anglican Christian tradition as a priest and observance of the laws of Malo. ... [T]he Light came so that we could see everything. I believe that God was here, that God sent Malo, that God was here working ... in the Torres Strait. ... [We] can have a look at the Gospel ... and indigenize it ourselves as it applies to us in our own environment. Malo came to prepare the people, so that when the Light came, when the Gospel was first preached, the people changed over easily, because they had an idea of a God, sacrifices, priesthood ... Malo has all of that. ... Malo’s law is a law of preservation of land, soil, trees. ... The Missionaries wanted to replace Malo completely, but Malo survived, I believe because it was God sent.

[241] Eg, amongst many works, Jean-Paul Sartre, Being and Nothingness: An Essay on Phenomenological Ontology (1943).

[242] Eg Albert Camus, The Myth of Sisyphus (1943); Albert Camus, The Stranger (1943); Albert Camus, The Rebel (1951) amongst others.

[243] See Beckett, Torres Strait Islanders: Custom and Colonialism, above n 71, 24, 39. The London Missionaries actually took up residence at Murray Island in 1877: see Jeremy Beckett, ‘Haddon Attends a Funeral: Fieldwork in Torres Strait, 1888, 1898’ in Anita Herle and Sandra Rouse (eds) Cambridge and the Torres Strait: Centenary Essays on the Anthropological Expedition (1998) 23, 38.

[244] Who wrote Torres Strait Islanders: Custom and Colonialism, above n 71. A second anthropologist, a Japanese gentleman, was proofed, was brought to Brisbane, but whilst being walked to court (via McDonald’s Chambers), was suddenly turned around and sent home. Counsel decided there was no benefit in opening up the possibility of variable anthropological accounts, thus detracting from the integrity of each.

[245] See ‘Statement of Facts’, above n 184, vol 2 (entitled ‘Annexure D: Murray Island Records — Court Reports’).

[246] A total of 312 exhibits were tendered, including witness statements. These are mainly collected at MC vols 39–61.

[247] See, eg, the appeal of Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998), which was heard in the Full Federal Court in August 1999, judgment pending at the time of publication.

[248] Including George Passi, brother of the plaintiffs Dave and Sam Passi. See also Determination, above n 69, vol 1, 200–2 regarding islander witnesses Caroline Modee and Marwar Depoma challenging Mabo’s inheritance of some garden blocks.

[249] Author of Myths and Legends of Torres Strait (1970) tendered by Queensland, Exhibit 255 (not collected in MC).

[250] Exhibit 80 (not collected in MC).

[251] ‘Updated Genealogical Charts Which Are Replacements of Exhibit 61 [Four-Tiered Chart of All Descendants of Eski and Zaia]’ Exhibit 237, MC vol 48. This material is confidential and subject to restricted access.

[252] See Haddon, above n 188, also tendered as Exhibit 117 (not collected in MC).

[253] ‘Death Certificate of Robert Zezuo Sambo Who Died at General Hospital, Townsville on 10th June, 1972’ Exhibit 64, MC vol 42.

[254] ‘Death Certificate of Benny Mabo Who Died on Kiam, Murray Island on 5th November, 1974’ Exhibit 68, MC vol 42.

[255] ‘Death Certificate of Maiga Mabo Who Died on Murray Island on 3rd February, 1965’ Exhibit 67, MC vol 42.

[256] Ion Idriess, Drums of Mer (6th ed, 1934) 159–67; also Exhibit 116, MC vol 44. Idriess had visited the island during the 1930s and was recalled by some witnesses. Legend has it that he stayed and wrote at the Grand Hotel, a fine wooden colonial building on Thursday Island, burnt down during the 1980s.

[257] See, eg, Exhibit 301 (not collected in MC), which includes records of ‘a visit to Murray Island in September, 1876 by Major Campbell on the Colonial Schooner Isabella in search of water’.

[258] Eg various photographs comprising Exhibits 81–109, MC vol 44.

[259] Thomas Hobbes, Leviathan (1914) ch 13.

[260] The Queensland Coast Islands Declaratory Bill 1985 (Qld) was introduced on 2 April 1985; the first and second readings lasted three minutes: see Queensland, Parliamentary Debates, 2 April 1985, 4740–1. The Bill was debated on 9 April 1985, was voted on, went into Committee and had its third reading, all in 2 hrs 30 mins: see Queensland, Parliamentary Debates, 9 April 1985, 4929–45.

[261] This of course is wrong. The effect of the annexation upon pre-existing traditional rights to land was challenged: not the annexation itself. The erroneous assertion that the case sought to argue that Murray Island was not part of Queensland was repeated by the Deputy Premier throughout the short debate that followed.

[262] Queensland, Parliamentary Debates, 2 April 1985, 4740 (footnote added). The entire second reading speech occupies less than one page of Hansard: at 4740–1.

[263] Member for Lytton and deputy Opposition leader in the House.

[264] Queensland, Parliamentary Debates, 9 April 1985, 4931–2.

[265] Ibid 4935.

[266] Ibid 4936.

[267] Labor, Member for Ashgrove.

[268] Queensland, Parliamentary Debates, 9 April 1985, 4942.

[269] Ibid 4944.

[270] Ibid.

[271] Where, characteristically, amongst other activities, Castan won the Supreme Court Prize in 1961, whilst the author won a full blue for rowing in 1967.

[272] See Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 317 (Murphy J) and text accompanying above n 116.

[273] (1988) 166 CLR 186.

[274] Australian Constitution s 51(xxxi).

[275] See, eg, A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) chh 1–3.

[276] ‘Amended Defence of the First Defendant the State of Queensland’ (24 May 1985) MC vol 9.

[277] High Court Rules 1952 (Cth) O 26 r 1.

[278] High Court Rules 1952 (Cth) O 26 r 5(2).

[279] High Court Rules 1952 (Cth) O 35 r 2.

[280] High Court Rules 1952 (Cth) O 52 r 15(2).

[281] ‘Demurrer of the Plaintiffs to the Amended Defence of First Defendant’ (18 June 1985) MC vol 9. This pleading was further amended pursuant to an order of Toohey J on 3 April 1987: Mabo v Queensland: Order (High Court of Australia, Toohey J, 3 April 1987) MC vol 21. See ‘Amended Demurrer of the Plaintiffs to the Amended Defence of First Defendant’ (3 April 1987) MC vol 21.

[282] The agreement was that the demurrer be set down for hearing; that the parties join in requesting Moynihan J to adjourn the trial pending the outcome of the demurrer; and that if the Queensland Declaratory Act was declared valid and effective to extinguish the plaintiffs’ claimed rights, the plaintiffs would not, in this litigation, further pursue any land or seas claims, including claims to the outer seas of concern solely to the Commonwealth: see ‘Agreement’ (3 April 1987) MC vol 21.

[283] Mabo v Queensland: Order (High Court of Australia, Toohey J, 3 April 1987) MC vol 21.

[284] See ‘Amended Demurrer of the Plaintiffs to the Amended Defence of First Defendant’ (3 April 1987) MC vol 21.

[285] [1975] HCA 58; (1975) 135 CLR 337, 362–3, 367, 370 (Barwick CJ), 467 (Mason J), 484 (Jacobs J).

[286] Coastal Waters (State Title) Act 1980 (Cth); and Coastal Waters (State Powers) Act 1980 (Cth).

[287] See Lyanage v The Queen [1967] 1 AC 259. In Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth [1986] HCA 47; (1986) 161 CLR 88 the Court held, however, that there is a distinction between statutes which interfere with the judicial process itself, as compared to the substantive rights which are in issue in the relevant proceedings. See also Queensland Electricity Commission v Commonwealth [1985] HCA 56; (1985) 159 CLR 192.

[288] See, eg, Sprigg v Sigcau [1897] UKLawRpAC 7; [1897] AC 238, 246–7 questioning whether a law expropriating all private property without compensation might tend to disorder, rebellion and disunity; Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, 383 (Street CJ) indicating that the grant of the power is not unlimited in scope; and the reference to the ‘blue-eyed baby’ argument: at 420 (Priestley JA). See also Sir Robin Cooke’s reference to ‘some rights run so deep, that not even parliament may abrogate them’: Fraser v State Services Commission [1984] 1 NZLR 116, 121.

[289] See the enacted version of Magna Carta of 1297: The Great Charter of the Liberties of England and of the Liberties of the Forest 1297 (Eng) 25 Edw 1. Chapter 29 reads: ‘No Freeman shall be ... disseised [ie ‘dispossessed’] of his Freehold, or ... free Customs ... but by ... the Law of the Land’, coupled with the Statute of 1354 (Eng) 28 Edw 3, c 3, which states: ‘[t]hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement ... without being brought in Answer by due Process of the Law’, which refers to legal processes, as distinct from parliamentary enactment without compensation.

[290] Ex parte Walsh and Johnston; Re Yates [1925] HCA 53; (1925) 37 CLR 36, 79 (Isaacs J).

[291] (1988) 166 CLR 186. Of critical importance here was Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 84, 86 (Gibbs CJ), 103–4 (Mason J), 118 (Brennan J). Gerhardy was, of course, a very recent decision when Mabo [No 1] was argued.

[292] See ‘Final Submissions on Behalf of the Plaintiffs’, above n 192; ‘Submissions on Behalf of State of Queensland’ (28 August 1989) MC vols 37–8.

[293] Determination, above n 69.

[294] See Trial Transcript MC vol 18 (1986) 23. Notices of Change of Practitioner and of Discontinuance had been filed in the High Court Registry with the assistance of a Cairns law firm, MacDonnells Solicitors: Trial Transcript MC vol 18 (1986) 24; see also Transcript of Proceedings, Mabo v Queensland: Directions (Supreme Court of Queensland, Moynihan J, commencing 18 April 1989) MC vol 27, 11.

[295] Transcript of Proceedings, Mabo v Queensland: Directions (Supreme Court of Queensland, Moynihan J, commencing 18 April 1989) MC vol 27.

[296] Trial Transcript MC vol 29 (1989) 1099–118, 1132–8.

[297] See Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 176 (Toohey J) and discussion at below nn 345–349 and accompanying text.

[298] Transcript of Proceedings, Mabo v Queensland: Directions (Supreme Court of Queensland, Moynihan J, commencing 18 April 1989) MC vol 27, 11.

[299] Trial Transcript MC vol 30 (1989) 1379–420. In addition to the normal Queensland counsel, the Commonwealth’s counsel, Dennis Rose and John Logan, appeared in relation to both applications. Ron Castan QC and the author appeared for the plaintiffs.

[300] Ibid 1397.

[301] Ibid 1404. This amendment was sought following the delivery of Guerin v R [1984] 2 SCR 335; 13 DLR (4th) 321 in Canada, which confirmed in that country that the Crown owed a fiduciary duty to the Indians when dealing with their traditional lands.

[302] [1992] HCA 23; (1992) 175 CLR 1. See, however, contrasting discussion of this issue by Toohey J (at 199–205) and Dawson J (at 163–70).

[303] Ibid 204.

[304] See ibid 169.

[305] Trial Transcript MC vol 28 (1989) 675–7.

[306] See Transcript of Proceedings, Mabo v Queensland: Directions (Application to Vary Remitter Order) (High Court of Australia, Toohey J, commencing 3 May 1989) MC vol 27, 1–44.

[307] Ibid 44.

[308] Ibid 45–68.

[309] Ibid 69–76.

[310] Ibid 67–8, 75–6.

[311] See Transcript of Proceedings, Mabo v Queensland: Directions (High Court of Australia, Deane J, commencing 13 February 1987) MC vol 20 (1987).

[312] Ibid 15.

[313] See two television documentaries incorporating footage of this visit: Connolly and Graham, above n 78; Graham, above n 78.

[314] See Moynihan J’s comments on opening the court in the Council Hall on Murray Island at Trial Transcript MC vol 29 (1989) 1038. He further stated (at 1038–9):

This case is an important one involving, as it does, the people of Murray Island pursuing claims against the State of Queensland and the Commonwealth of Australia. Sitting here, helps me to understand the evidence concerning Murray Island, its people, and its culture. And perhaps most importantly it, to a degree, enables the people of Murray Island to participate in the process of justice that is being worked out in these proceedings. You do that by your presence here this morning and in your participation in the work of the Court.

I would like to thank the people of Murray Island and their Council for making the facilities available to us to permit the hearing to proceed and for the hospitality they have extended to me and to those who have accompanied me in the course of [the] visit.

[315] Being Emanee Akee: Trial Transcript MC vol 29 (1989) 1287–301; Uni Passi: 1302–7; Apey Sambo: 1308–10; Dalton Cowley: 1311–37; Lui Bon: 1339–77.

[316] See above n 314.

[317] Marwar Depoma (at Murray Island): Trial Transcript MC vol 29 (1989) 1203–23; and Lui Bon (at Thursday Island): at 1339–77. Further Murray Islanders were called by Queensland in Brisbane.

[318] The phrase is borrowed from the book Mabo: A Judicial Revolution, above n 15. In fact, the decision was conservative: the appellation ‘revolutionary’ is, in many senses, nonsense. See Garth Nettheim, ‘Judicial Revolution or Cautious Correction? Mabo v Queensland’ [1993] UNSWLawJl 2; (1993) 16 University of New South Wales Law Journal 1.

[319] Ron Castan QC conducted these discussions, especially during 1983–94. I have very little understanding of what transpired.

[320] John Logan of the Brisbane Bar.

[321] Moynihan J in his Determination, on the evidence before him, also rejected sea and fish trap claims to areas immediately offshore, and to areas of seas located between Mer and the two adjacent islands, Dawar and Waier: Determination, above n 69, vol 1, 185. Argument in the High Court thus concerned land areas only, a circumstance reflected in the Court’s order: see Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 217. The plaintiffs could never understand this result, entirely anomalous to them: see text accompanying above n 129. Murray Islanders are now pursuing these seas claims under the Native Title Act 1993 (Cth).

[322] ‘Heads of Agreement’, above n 152.

[323] Ibid cl 1.

[324] Mabo v Queensland: Order (Supreme Court of Queensland, Moynihan J, 7 July 1989) MC vol 36 ch I p 17. See also Trial Transcript MC vol 33 (1989) 2720.

[325] Ibid.

[326] Determination, above n 69, vol 1, 57.

[327] Listed in ibid vol 1, 204A–204D.

[328] Called Zomared: see ibid vol 1, 205–13, especially 212.

[329] Called Korog, Dei-Mei and Bazmet: see ibid vol 1, 214–22.

[330] See ibid.

[331] Ibid vol 1, 212.

[332] Moynihan J, at ibid vol 1, 146, records that ‘his father gave him into the care of his maternal uncle Benny Mabo and his wife [Maiga,] who brought him up’. The text of the Determination actually refers to Poipe here instead of Maiga; however, this is clearly a mistake. Moynihan J in the next paragraph (quoted in text accompanying n 335) refers to Maiga as Benny Mabo’s wife, as was in fact the case.

[333] See Eddie Mabo, ‘Statement’ (1986) Exhibit 35, MC vol 42; various maps comprising Exhibits 37–46A, MC vol 42; Trial Transcript MC vol 42 (1986) 271–305; Loos and Mabo, above n 11, xxii.

[334] The claim was pleaded as a representative action; and see below nn 343–349 and accompanying text, regarding further amendments during final submissions.

[335] Determination, above n 69, vol 1, 146.

[336] See Trial Transcript MC vol 28 (1986) 753–5 where the Queensland Department of Aboriginal Affairs social history cards were put to him.

[337] Determination, above n 69, vol 1, 204.

[338] Ibid 70, 71–2.

[339] See further above Parts B(IV)(3)–(4) and B(VI)(3)–(4) where the plaintiffs’ evidence is discussed.

[340] By Greg McIntyre who adopted the submissions of the other two plaintiffs in relation to the claims of the community — of which Mabo was a member: see Transcript of Proceedings, Mabo v Queensland [No 2] (High Court of Australia, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, commencing 28 May 1991) (‘Mabo [No 2] High Court Transcript’) MC vol 64, 270.

[341] A further difficulty, however, was the lack of resources to run an appeal and pursue a successful outcome — for example, return to trial. This difficulty, amongst others, was in the event avoided.

[342] Determination, above n 69, vol 1, 227.

[343] Mabo [No 2] High Court Transcript MC vol 64 (1991) 262 (Geoffrey Davies QC, Solicitor-General for Queensland).

[344] Ibid 268.

[345] See Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 7–15.

[346] Mabo [No 2] High Court Transcript MC vol 64 (1991) 261.

[347] Ibid 316–21 (31 May 1991).

[348] Ibid 320.

[349] Mabo [No 2] [1992] HCA 23; 175 CLR 1, 217 being the final order. See also reference to this aspect in Toohey J’s judgment at 176.

[350] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 268 (Dixon CJ, McTiernan, Fullagar and Kitto JJ): the autochthonous expedient in this case was the conferring of federal jurisdiction on State courts.

[351] Eg, Richard Bartlett, ‘Inequality before the Law in Western Australia: The Land (Titles and Traditional Usage) Act’ [1993] AboriginalLawB 57; (1993) 3(65) Aboriginal Law Bulletin 7; Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181.

[352] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 15.

[353] Cameron Forbes, ‘Mabo Decision a Victory over White Arrogance’, The Age (Melbourne), 4 June 1992, 13.

[354] Jamie Walker, ‘Eddie Mabo — Australian of the Year’, The Australian (Sydney), 26 January 1993, 1.

[355] Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 138 (Murphy J).

[356] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 104.

[357] Native Title Act 1993 (Cth), especially as amended by the Native Title Amendment Act 1998 (Cth).

[358] Ie, in right of the Commonwealth, the States or Territories. See, for a fiduciary argument which failed, Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97 (FCA), now on appeal to the Full Court of the Federal Court of Australia.