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HIGH COURT DECISION ON MABO - DEED OF GRANT IN TRUST

The Court was informed that deeds of grant in trust pursuant to the Land Act 1962-1988 have been granted in respect of all islands in the Torres Strait other than the Murray Islands pursuant to the Land act 1962-1988 and that the plaintiffs are concerned that similar action may be taken in respect of the Murray Islands. A deed of grant in trust can be granted in respect of any Crown land which, in the opinion of the Governor in Council, is or may be required for any public purpose: s334(1). To bring a reserve within the definition of "Crown land", the Order in Council creating the reserve must be rescinded: ss.5 and 334(4). Although the Governor in Council is empowered generally to declare that land granted in trust for a public purpose shall "revert to the Crown" 9s.353) and Act of Parliament is needed to authorize the Governor in Council to declare that land granted in trust for the benefit of Aboriginal or Islander inhabitants should revert to the Crown: s.353A. As no deed of grant in trust has issued in respect of the Murray Islands, s.353A does not appear to have any present application to those Islands. The plaintiffs content that the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Q.) is an Act of Parliament satisfying s.353A but, in the absence of a deed of grant in trust, there is no need to consider that contention. It appears that the plaintiffs see some advantage in preventing the granting of a deed of grant in trust and they seek, inter alia, a declaration, that the granting of a deed of grant in trust "would be unlawful by reason of the provisions of section 9 and 10 of the Racial Discrimination Act 1975 (Commonwealth)."

This declaration is founded on the decision in Mabo v. Queensland (150) in which it was held that the Queensland Coast Islands Declaratory Act 1985 (Q.) which purported to extinguish the plaintiffs' native title, was nullified by operation of s.10 of the Racial Discrimination Act. The plaintiffs now seek to deny the power of the Governor in Council to grant a deed of grant in trust because, if effective, the alienation of the Murray Islands to a trustee - albeit the trustee would be the Island Council constituted under the Community Services (Torres Strait) Act - would extinguish native title including the native title claimed by the individual plaintiffs. Under the relevant provisions of the Land Act , the Island Council as trustee would have power to lease land inconsistently with native title.

There are two reasons why the declaration sought by the plaintiffs should be refused. First, there is no evidence that the Governor in Council intends to grand a deed of grant in trust in respect of land in the Murray Islands and the Solicitor-General denied that there were "the slightest indications" that the Governor in Council would do so. Secondly, s.10 of the Racial Discrimination Act may not have an effect on the granting of a deed of grant in trust similar to the effect which s.10 had upon the Queensland Coast Islands Declaratory Act 1985. It will not have a nullifying effect if the action taken under the relevant State laws constitutes a special measure falling within s.8(1) of the Racial Discrimination Act and thereby escapes the operation of s.10 (151). Whether the granting of a deed of grant in trust would constitute a special measure is a question which cannot be answered without and examination of all the relevant circumstances; it involves findings of fact. In the absence of findings which determine whether a deed of grant in trust would constitute a special measure, no declaration that the granting of such a deed would be "unlawful' can be made. There is no need to determine whether s.9 of the Racial Discrimination Act is inconsistent with the relevant provisions of the Land Act 1962, for there is nothing to show that those provisions will be used to affect interests which the plaintiffs seek to protect.


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