Reconciliation and Social Justice Library

[RSJ Home] [Global AustLII Search] [RSJ Database Search]
[Table of Contents] [Previous] [Next] [Download]

HIGH COURT DECISION ON MABO - ANSWERS TO QUESTIONS

This matter came before the Full Court pursuant to an order made by the Chief Justice under s.18 of the Judiciary Act 1903 (Cth) reserving questions relating to the rights and interests claimed by two of the plaintiffs, David Passi and James Rice in specified blocks of land on the islands of Mer, Dauar and Waier. No such claim was made before this Court by the plaintiff Eddie Mabo. In the course of the hearing before this Court, it emerged that it was not practicable to answer those questions by acting upon findings made by Moynihan J.

The plaintiffs' statement of claim was then amended to seek declarations relating to the title of the Meriam people. The plaintiffs Passi and Rice claim rights and interests dependent on the native title of the Meriam people, not as interests dependent upon Crown grants. In the absence of any party seeking to challenge their respective claims under the laws and customs of the Meriam people, the action is not constituted in a way that permits the granting of declaratory relief with respect to claims based on those laws and customs - even had the findings of fact been sufficient to satisfy the Court of the plaintiffs' respective interests. Declaratory relief must therefore be restricted to the native communal title of the Meriam people. The plaintiffs have the necessary interest to support an action for declarations relating to that title.

The plaintiffs seek declarations that the Meriam people are entitled to the Murray Islands -

"(a) as owners

(b) as possessors

(c) as occupiers, or

(d) as persons entitled to use and enjoy the said islands";

that -

"The Murray Islands are not and never have been `Crown Lands' within the meaning of the Lands Act 1962 (Qld) (as amended) and prior Crown lands legislation"

and that the State of Queensland is not entitled to extinguish the title of the Meriam people.

As the Crown hold the radical title to the Murray Islands and as native title is not a title created by grant nor is it a common law tenure, it may be confusing to describe the title of the Meriam people as conferring "ownership", a term which connotes an estate in fee simple or at least an estate of freehold. Nevertheless, it is right to say that their native title is effective as against the State of Queensland and as against the whole world unless the State, in valid exercise of its legislative or executive power, extinguishes the title. It is also right to say that the Murray Islands are not Crown land because the land has been either "reserved for or dedicated to public purposes" or is "subject to ... lease". However, that does not deny that the Governor in Council may, by appropriate exercise of his statutory powers, extinguish native title. The native title has already been extinguished over land which has been leased pursuant to powers conferred by the Land Act in force a the time of the granting or renewal of the lease. Accordingly, title to the land leased to the Trustees of the Australian Board of Missions has been extinguished and title to Dauar and Waier may have been extinguished. It may be that areas on Mer have been validly appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and interests of Meriam people in those areas pursuant to Meriam law or custom and, in that event, native title has been extinguished over those areas. none of these areas can be included in the declaration.

I would therefore make a declaration in the following terms:

Declare -


[RSJ Home] [Global AustLII Search] [RSJ Database Search]
[Table of Contents] [Previous] [Next] [Download]