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HIGH COURT DECISION ON MABO - (XVI) TRADITIONAL CLAIMS TO LAND IN THE MURRAY ISLANDS
The detailed findings of Moynihan J. of the Supreme Court of
Queensland in relation to the issues of fact remitted to that court
unavoidably contain areas of uncertainty and elements of speculation.
Nonetheless, they provide, for present purposes, a sound basis for
some generalisations in relation to native entitlements to the
occupation and use of land within the Murray Islands, under local
law or custom at the time of their annexation to Queensland. It
suffices, for the purposes of this judgment, to say that the Meriam
people lived in and organised community which recognised individual
and family rights of possession, occupation and exploitation of
identified areas of land. The entitlement to occupation and use of
land differed from what has come to be recognised as the ordinary
position in settled British Colonies in that, under the traditional
law or custom of the Murray Islanders, there was a consistent focus
upon the entitlement of the Individual or family as distinct from
the community as a whole or some larger section of it. It would
seem that, with the exception of the area used by the London
Missionary Society, those individual or familial entitlements under
traditional law or custom extended to all the land of the Islands.
It is true, as the learned Solicitor-General for Queensland
submitted, that it is impossible to identify any precise system of
title, any precise rules of inheritance or any precise methods of
alienation. Nonetheless, there was undoubtedly a local native system
under which the established familial or individual right of
occupation and use were of a kind which far exceed the minimum
requirements necessary to found a presumptive common law native
title. In circumstances where the strong assumption of the common
law was unaffected by the act of State annexing the Islands, the
effect of the annexation was that the traditional entitlements of
the Meriam people were preserved. The radical title to all the
lands of the Islands vested in the Crown. The Crown's proprietary
estate in the land was, however, reduced, qualified or burdened by
the common law native title of the Islanders which was thereafter
recognised and protected by the law of Queensland. It is unnecessary
to determine whether the lands of the Islands became, upon
annexation, Crown lands for the purposes of the
Crown Lands Alienation Act.
If they did, the common law native title of the Islanders was not
extinguished but remained a burden on the underlying title of the
Crown, and any provisions of that Act which would have the effect
of modifying the common law native title or restricting the rights
of use and occupation of the Islanders were, to that extent,
inapplicable.
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