Reconciliation and Social Justice Library

HIGH COURT DECISION ON MABO - DAWSON J.

The annexation of the Murray Islands is not now questioned. It was an act of state by which the Crown in right of the Colony of Queensland exerted sovereignty over the islands. Whatever the justification for the acquisition of territory by this means and the sentiments of the nineteenth century by no means coincide with current thought), there can be no doubt that it was, and remains, legally effective.

The plaintiffs are Murray Islanders and members of the Meriam people. Each of them claims rights in specified parcels of land on the Murray Islands. The basis of their claim is, alternatively:

(a) their holding the land under traditional native title;

(b) their possessing usufructuary rights over the land, or

(c) their owning the land by way of customary title.

The plaintiffs contend that their rights are of a kind that have been enjoyed by the Meriam people since time immemorial. They say that these rights were not extinguished upon the assumption of sovereignty by the Crown over the Murray Islands at the time of annexation. And, while the plaintiffs acknowledge that the traditional land rights for which they contend are of a kind which may be extinguished at any time by the Crown, they say that they can only be extinguished by clear and unequivocal action so that, in effect, specific legislation is required. Thus the plaintiffs deny that the rights which they claim can be extinguished by manifest policy on the part of the Crown. In particular, the plaintiffs deny that the Queensland Crown lands legislation, which is of a kind found in all States of Australia, is sufficient to extinguish traditional land rights. The plaintiffs say that the Crown has taken no steps, other than by the Queensland Coast Islands Declaratory Act 1985 (Q.), the extinguish their traditional land rights. That Act, which amongst other things declared that upon annexation the Murray Islands were vested in the Crown in right of Queensland freed from all other rights, was held by a majority in Mabo v. Queensland (311) upon certain assumptions to be invalid, in the sense of inoperative, under s.109 of the Constitution by reason of its inconsistency with the Racial Discrimination Act 1975 (Cth). It is implicit in the plaintiff's case that, because any further legislation to extinguish their rights in the land would be inconsistent with the Racial Discrimination Act, they are, while that Act is in force, secure in their enjoyment of those rights.

The plaintiffs also claim that the Crown, far from extinguishing their rights, has recognised them. In this respect the plaintiffs point to the reservation of the Murray Islands by the Crown for the use or benefit of the aboriginal inhabitants of the State. They say that the reservation of these islands shows that they were not intended to be opened up for settlement or to be the subject of Crown grants which, they freely concede, would extinguish any traditional land rights.

The defendant argues that if the traditional land rights claimed by the plaintiffs ever existed, they were extinguished from the moment of annexation. It contends that those rights could not have survived the assertion of sovereignty by the Crown unless they were recognised in some way. The defendant argues that not only were any traditional land rights over the Murray Islands not recognised, but they were extinguished by the exercise of a clear governmental policy which existed at the time of annexation and had continued since then. The defendant does not contend that, if there are traditional land rights that survived the assumption of sovereignty, they have been subsequently extinguished.

One thing is clear - I do not understand it to have been contested by the plaintiffs - and that is, upon annexation, the ultimate title to the lands comprising the Murray Islands vested in the Crown. This was a necessary consequence of the exertion of sovereignty by the Crown for, under the system of law which the Crown brought with it, the ultimate title to land - sometimes called absolute or radical title - resides in the Crown. The law that the Crown brought with it was the common law and, at common law, land is not the subject of absolute ownership other than by the Crown (312); rather, it is the subject of tenure. That notion may for most purposes be of historical rather than practical interest, for the fee simple which may be acquired under the Crown carries with it all the advantages of absolute ownership. But it is fundamental in any consideration of the acquisition of territory such as is required by this case. Thus it was that upon annexation of the Murray Islands the Crown became the absolute owner of the land and such rights as others might have in it must be derived from the Crown and amount to something less than absolute ownership. The notion that only the Crown has the radical title stems from the feudal system of land tenure but, as Stephen J. pointed out in New South Wales v. The Commonwealth (313), it does not much matter whether it now be regarded in that way or whether it be regarded as a prerogative right accompanying the exertion of sovereignty. The result is the same: upon annexation the lands annexed became the property of the Crown and any rights in the land that the plaintiffs have must be held under the Crown.

The main thrust of the plaintiff's case is, however, that following the annexation of the Murray Islands no formal grant of an interest in land to the Meriam people was necessary for their existing interests in the land to continue, notwithstanding that from the time of annexation they held their interests under the Crown. Further, the plaintiffs deny that the continuation of their rights was dependant upon any positive act of recognition by the Crown, although they contend that, in any event, there have been acts of recognition by the Crown and, later, the Queensland legislature. Indeed, the plaintiffs argue that their rights are presumed to continue even in the absence of some positive act of recognition. In other words, the plaintiffs argue that if the continuation of the rights of Meriam people existing in the land prior to annexation requires some form of recognition, that recognition need not be express but may be established by acquiescence.

There is ample authority for the proposition that the annexation of land does not bring to an end those rights which the Crown chooses, in the exercise of its sovereignty, to recognise. This is so whether the assumption of sovereignty is by way of conquest, cession or annexation, or by the occupation of territory that is not at the time held under another sovereign. The law was summarised by the Privy Council in Vajesingji Joraavarsingji v. Secretary of State for India (314):

" [W]hen a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the conquest, acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccuppied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing."

Their Lordships went on to point out that in that case, which was a case of the acquisition of territory by cession (315):

" The moment that cession is admitted the appellants necessarily become petitioners and have the onus cast on them of showing the acts of acknowledgment, which give them the rights they wish to be declared. ...

The whole object accordingly of inquiry is to see whether, after cession, the British Government has conferred or acknowledged as existing the proprietary rights which the appellants claim."

In Secretary of State for India v. Bai Rajbai the Privy Council was concerned with the cession of territory previously under native rule and said of the members of the class of persons (the kasbatis) one of whom was the respondent's ancestor (316):

" The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, that the consideration of the existence, nature, or extent of these rights becomes a relevant subject for inquiry in this case."

And in Secretary of State for India v. Sardar Rustam Khan the Privy Council again dealt with what was in effect a cession of territory by the passing over the sovereignty to the Government of India. Lord Atkin, delivering the judgement of their Lordships, observed (317):

" It follows, therefore, that is this case the Government of India had the right to recognise or not recognise the existing titles to land. In the case of the lands in suit they decided not to recognise them, and it follows that the plaintiffs have no recourse against the Government in the municipal courts."

In making this observation, his Lordship declined, in accordance with the authorities, to embark upon any consideration of whether the decision was just or unjust, politic or impolitic (318).

Amodu Tijani v.Secretary, Southern Nigeria (319) is a case in which the Crown did accord recognition to rights existing prior to the assumption of sovereignty by the Crown. In that case certain territory, comprising the colony of Lagos, was ceded by the Eleko (effectively the King of Lagos) to the British Crown and the issue to be determined was the basis for the calculation of compensation for land which was taken for public purposes under the Public Lands Ordinance 1903 of the colony. The cession itself was made on the footing that the rights of property of the inhabitants were to be fully respected, although there was no doubt that the radical title to the land vested in the British Crown at the time of cession (320). These rights included the seigneurial rights of the "white cap chiefs" to receive rent or tribute from the occupiers of land allotted to them by the chiefs, the rights of the white cap chiefs to family lands held individually by them and the communal usufructuary right of the members of the native community to communal lands (321). This arrangement of itself would have conferred no rights upon those inhabitants because the municipal courts cannot enforce obligations under a treaty against the sovereign, but it did afford some evidence of the recognition of those rights by the new sovereign. There was, however, other evidence of recognition of those rights. For example, the native inhabitants were assured that it was the settled intention of the British Government to secure them in the possession of all their rights and privileges existing at the time of the cession (322). Moreover, in so far as the white cap chiefs' seigneurial rights were concerned, the lower courts noted that the British Government was apparently aware of their continued exercise after cession and did not prevent this, although it sometimes disregarded these rights by, for example, granting the land away to others (323). Finally, the Privy Council considered that the system of Crown grants applying in the colony was not introduced with a view to altering substantive titles already existing but to define properly these substantive titles and to facilitate a system of conveyancing(324). In the course of its judgement the Judicial Committee of the Privy Council noted that the precise incidents and nature of the rights held by the native inhabitants of the land (whether individually or communally) depended on the particular circumstances and that "[a]bstract principles fashioned a priori are of but little assistance, and are as often as not misleading" (325). The Privy Council went on to conclude that the radical title to the land, which was then in the Crown as a result of the cession, was "throughout qualified by the usufructuary rights of communities, rights which, as the outcome of deliberate policy, have been respected and recognised" (326). In reaching this conclusion, the Privy Council noted that "[a] mere change in sovereignty is not to be presumed as meant to disturb rights of private owners" (327).

The Privy Council was again concerned with the cession of land to the British Crown in the former colony of Lagos in Adeyinka Oyekan v. Musendiku Adele (328). Lord Denning, delivering the judgement of the Judicial Committee of the Privy Council, recognised (329) that the treaty of cession was an act of state by which the British Crown acquired full rights of sovereign over Lagos. He continued:

" The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and therefore the power to recognise existing rights or extinguish them or to create new ones. In order to ascertain what rights pass to the Crown or are retained by the inhabitants, the courts of law look, not to the treaty, but to the conduct of the British Crown."

His Lordship went on the say that in inquiring what rights are recognised there is one guiding principle, namely:

" The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected".

His Lordship then expounded a second proposition:

" Whilst, therefore, the British Crown, as sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has any native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a king unknown to English law".

For the latter of these two propositions, Lord Denning cited as authority Amodu Tijani v. Secretary, Southern Nigeria. Of course in Lagos there was legislative provision for the payment of compensation for the compulsory acquisition of such land. There is, however, no general proposition to be found, either in law or in history, that the Crown is legally bound to pay compensation for the compulsory acquisition of land or any interests in it by the exercise of sovereign rights. The first proposition - the guiding principle - may express sentiments which had emerged by the mid-nineteenth century, but whether, in any particular case, a change of sovereignty is accompanied by a recognition or acceptance by the new sovereign of pre-existing rights is a matter of fact. There is no basis for a general presumption either for or against recognition or acceptance by the new sovereign of pre-existing rights, although a presumption in favour of their recognition may be raised in the interpretation of a treaty of cession (330).

In any event, whether or not there is any presumptive recognition of native interests in land upon a change in sovereignty may be little more than a matter of emphasis upon which there is some variance in the cases. Once it is accepted, as I think it must be, that recognition of these interests by the Crown may be a matter of inference from all the facts, including mere acquiescence, it is obvious that if, following a change in sovereignty, the new sovereign allows native occupation and the use of the land to continue undisturbed, that may afford some foundation for the conclusion that such native interests (if any) in the land as may have existed prior to the assumption of sovereignty are recognised by the Crown. Of course, the interests need to correspond with title to land as known to the sovereign under its own law (331) - for example, the interests by virtue of which land was occupied by the natives of Lagos was held to be communal (332) and this is not a form of title to land that is known to the British Crown under English law. On the other hand, if native interests in land are not recognised at all by the new sovereign, they will be extinguished at the same time sovereignty is assumed. But, in the end, the question whether any native interests in the land have been extinguished by an assumption of sovereignty is a question of fact which can only be determined by reference to the surrounding circumstances.

There may be circumstances which render it impossible to draw any inference of recognition of native interests in land even where there is no interference with the continued native occupation of land following a change in sovereignty. For example, in In re Southern Rhodesia (333) the Privy Council considered lands in Southern Rhodesia over which the sovereign ruler was at one time a chief known as Lobengula. A charter had been issued which incorporated the British South Africa Company for commercial purposes and gave it wide administrative powers. After hostilities Lobengula fled and his rule came to an end, and thus the company, in 1894, became the effective ruler by conquest on behalf of the Crown. Amongst the powers exercised by the company was the power to grant title to land in the name of the Crown. Upon the question of the recognition of native title, Lord Sumner, delivering the judgment of the Board, said (334):

" According to the argument the natives before 1893 were owners of the whole of these vast regions in such a sense that, without their permission or that of their King and trustee, no traveller, still less a settler, could so much as enter without committing a trespass. If so, the maintenance of their rights was fatally inconsistent with white settlement of the country, and yet white settlement was the object of the whole forward movement, pioneered by the Company and controlled by the Crown, and that object was successfully accomplished, with the result that the aboriginal system gave place to another prescribed by the Order in Council.

This fact makes further inquiry into the nature of the native rights unnecessary. If they were not in the nature of private rights, they were at the disposal of the Crown when Lobengula fled and his dominions were conquered; if they were, any actual disposition of them by the Crown upon a conquest, whether immediately in 1894 or four years later, would suffice to extinguish them as manifesting an intention expressly to exercise the right to do so. The Matebeleland Order in Council of 1894 and the Southern Rhodesia Order in Council of 1898 provided for natives reserves, within which the tribal life of the natives might be continued under protection and control, and to the rest of the country the Company's officers and white men were admitted independently of any consent of the natives. The Company's alienations by grant are unquestionably valid, yet the natives have no share in them. The ownership of the reserves was, at least administratively, vested in the Company under the Southern Rhodesian Native Regulations promulgated by the High Commissioner in 1898, and with the consent of the Crown other dispositions of those reserves can be made by the Company from time to time. By the will of the Crown and in exercise of its rights the old state of things, whatever its exact nature, as it was before 1893, has passed away and another and , as their Lordships do not doubt, a better has been established in lieu of it. Whoever now owns the unalienated lands, the natives do not."

These unalienated lands consisted partly of native reserves, partly of land in the company's own occupation and partly of country altogether waste and unsettled (335). Thus the circumstances surrounding or following the assumption of sovereignty (in that case, by conquest) indicated that even though the occupation of the natives had not necessarily been physically disturbed, their pre-existing rights (if any) had nevertheless not been accepted by the Crown and so had not been recognised by it.

The recognition of native interests in land following the exercise of sovereignty by the Crown is sometimes described as the recognition of the continued existence of those interests. The vesting of the radical title in the Crown upon the assumption of sovereign authority is, however, incompatible with the continued existence in precisely the same form of any pre-existing rights. Necessarily the pre-existing rights were held of a former sovereign or in the absence of any sovereign at all. After the Crown has assumed sovereignty and acquired the radical title to the land, any pre-existing "title" must be held, if it is held at all, under the Crown. This new title is therefore not merely the continuation of a title previously held. notwithstanding that it may be identifiable by reference to the previous title. If the new title is to be held under the Crown, the Crown must obviously accept it. Such acceptance may be by way of acquiescence in the continued occupancy of land by the aboriginal inhabitants and, if the native interests are accepted in this manner by the Crown, the nature of those interests can then only be determined by reference to the nature of the former occupancy by the aboriginal inhabitants. The appearance (although not the fact as a matter of law) is, then, that these native interests continue undisturbed. In this sense it may be true to say that positive recognition of native interests by the Crown is unnecessary for their continued existence and that what appear to be different views upon the subject are, on analysis, fundamentally the same.

In my view this explains the conclusion of Hall J. (Spence and Laskin JJ. agreeing) in Calder v. Attorney-General of British Columbia that traditional native title is not dependent upon a grant to or recognition of rights in the native inhabitants (336) because such title is not dependent upon a treaty, statute or other formal government action (337). But if what Hall J. meant was that traditional native title somehow survived the exertion of sovereignty by the Crown independently of any recognition of it by the Crown (accepting that mere acquiescence might, depending upon the circumstances, provide the necessary recognition), I am unable to agree.

What I have said is not inconsistent with the well-established principle that the municipal courts have no jurisdiction to entertain a challenge to an act of state and, in particular, that obligations assumed by one sovereign to another, as in a treaty, cannot be enforced by municipal courts (338). Recent authority for this proposition is to be found in Winfat Enterprises (HK) So. Ltd. v. Attorney-General of Hong Kong (339). In that case, the Privy Council was concerned with the cession of the New Territories in Hong Kong to the British Crown. The Peking Convention, by which the cession was made, expressed an understanding that there would be no expropriation or expulsion of the inhabitants of the New Territories but that if land were required for public purposes a fair price would be paid.

Lord Diplock delivered the judgement of the Judicial Committee of the Privy Council and, if I may say so with respect, accurately reflected the authorities when he observed a claim by the appellant land developers to a title which survived the cession (340):

"The elementary fallacy of British constitutional law which vitiates the land developers' claim is the contention that this vaguely expressed understanding, stated in the Peking Convention, that there shall not be expropriation or expulsion, is capable of giving rise to rights enforceable in the municipal courts of Hong Kong or by this Board acting in its judicial capacity. Although there are certain obiter dicta to be found in cases which suggest the propriety of the British Government giving effect as an act of state to promises of continued recognition of existing private titles of inhabitants of territory obtained by cession, there is clear long-standing authority by decision of this Board that no municipal court has authority to enforce such an obligation."

As I have said, the plaintiffs base their claim upon traditional native title, usufructuary rights and customary ownership. It would seem that they seek to draw a distinction between all three and, in particular, between traditional native, or aboriginal, title and usufructuary rights. Since the main thrust of the plaintiffs' case was directed towards establishing the existence of traditional native title, it is that aspect of the case to which I turn first.

Although the earliest cases upon this subject were decided in the United States, it is convenient to deal initially with the Canadian authorities. This is because the historical context in which the United States cases arose and the policy which they reflect do not find any real counterpart elsewhere. That policy involved dealing with a largely hostile native population in the course of European settlement and concluding various treaties with the natives that afforded them a particular status which, to a large extent, forms the basis of the law laid down in the cases. On the other hand, in Canada, whilst there are unique features, the Privy Council was the final court of appeal and there is thus a common origin for the law upon the subject of aboriginal title (or Indian title as it is often called) in both Canada and Australia.

St. Catherine's Milling and Lumbar Company v. The Queen (341) was a case which concerned, amongst other things, the nature of the tenure of the aboriginal inhabitants - the Indians - of land in Ontario. Lord Watson, who gave judgment for the Privy Council, decided the case upon the basis that Indian title stemmed from a royal proclamation of 1763 that extended to the land in question. That proclamation recited that it was just and reasonable that the several nations and tribes of Indians who lived under British protection should not be molested or disturbed in the "possession of such parts of Our dominions and territories as, not having been ceded to or purchased by us, are reserved to them or any of them as their hunting grounds" and declared that no warrants of survey should be granted or patents be passed for lands beyond the bounds of the respective governments of the colonies established under the proclamation or "until Our further pleasure be known", such lands, not having been ceded or purchased as aforesaid, being reserved to the Indians. It was further declared that, subject to an exception in favour of the Hudson's Bay Company, land outside the bounds of such governments was reserved "under Our sovereignty, protection, and dominion, for the use of the said Indians". Finally, the proclamation enacted that no private person should make any purchase from the Indians of lands reserved to them within those colonies where settlement was permitted, and that all purchases had to be on behalf of the Crown, in a public assembly of the Indians, by the governor or commander-in-chief of the colony in which the lands lay.

Lord Watson said (342):

" It was suggested in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby reserved for Indians had never `been ceded to or purchased by' the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be `parts of Our dominions and territories;' and it is declared to be the will and pleasure of the sovereign that, `for the present,' they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished."

Although Lord Watson chose to base the interest of the Indians in the land entirely upon the proclamation, that was not the only source of their title or, at all events, it has not subsequently been treated as being so. Instead, a title of the same kind has been held to arise independently of the proclamation so that both Indians who are not covered by the proclamation and those who are covered have been held to have the same kind of title over land (343).

The question upon which the Privy Council refrained from expressing an opinion - the nature of Indian title - has never been given a precise answer. Lord Watson did, however, suggest that Indian title was a kind of "personal and usufructuary right". A personal and usufructuary right is a right is a right temporarily to possess, use or enjoy the advantages of land belonging to another so far as may be had without causing damage or prejudice to it. In Delgamuukw v. British Columbia (344), for example, McEachern C.J. described Indian title for the purposes of that case as including "all those sustenance practices and the gathering of all those products of the land and waters ... which [the Indians] practised and used before exposure to European civilisation (or sovereignty) for subsistence or survival".

Whilst attempts have subsequently been made to classify the rights arising from Indian title as proprietary rights (345), such a notion is contrary to the observation of Lord Watson that the tenure of the Indians was "dependent upon the good will of the Sovereign" or his later observation (346) that the character of the interest of the Indian inhabitants in the land was less than that of owners in fee simple and was a "mere burden" upon the Crown's present proprietary estate. However, it may be that in truth aboriginal title is neither a personal nor a proprietary right but is sui generis . This was the view of Dickson J. (with whom Beetz, Chouinard and Lamer JJ. concurred) in Guerin v. The Queen where he said (347):

" It appears to me that there is no real conflict between the cases which characterise Indian title as a beneficial interest of some sort, and those which characterise it a person, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest in land the courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law. There is a core of truth in the way that each of the two lines of authority has described native title, but an appearance of conflict has none the less arisen because in neither case is the categorisation quite accurate.

Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation of the part of the Crown to deal with the land for the benefit of the surrendering Indians."

I will deal later with the fiduciary obligation referred to by Dickson J.

However, it is the question not of whether, but of how, Indian title can be extinguished that has given rise to greater dispute. In Calder v. Attorney-General of British Columbia an action was brought on behalf of the Nishga Indian tribe seeking a declaration that their Indian title to certain lands in British Columbia had never been lawfully extinguished. Apart from Pigeon J., who held that the Court had no jurisdiction without the fiat of the Lieutenant-Governor of the Province, the remaining members of the court were equally divided: Judson, Martland and Ritchie JJ. held that whatever rights the aboriginal inhabitants had had in the land, they were extinguished by the exercise of sovereign powers, whereas Hall, Spence and Laskin JJ. held to the contrary. Judson, Martland and Ritchie JJ. also agreed with Pigeon J., so that the plaintiff's appeal was dismissed. Judson J. (with whom Martland and Ritchie JJ. concurred) held that "the sovereign elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation" (348). This legislation, which consisted of a series of proclamations, ordinances and statutes, comprehensively regulated the method of alienation and possession of the relevant lands.

Conversely, Hall J. (with whom Spence and Laskin JJ. concurred) held that the Indian title of the Nishga tribe, being a legal right, could not be extinguished "except by surrender to the Crown or by competent legislative authority, and then only by specific legislation" (349). He further held that once Indian title is established it is presumed to continue until the contrary is proved (350). The consequence was, in his view, that as there was no specific legislation and no surrender, the title of the Nishga tribe had not been extinguished.

However, in Reg. b. Sparrow (351), a case which dealt with the issue of whether an aboriginal right to fish for food had been extinguished, the Supreme Court of Canada failed to endorse the requirement, suggested by Hall J. in Calder , that specific legislation was necessary to extinguish Indian title. In a judgment delivered by Dickson C.J.C. and La Forest J. it merely said (352):

" The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right."

This test was accepted in two single judge decisions after Calder - that of Mahoney J. of the Federal Court of Canada in hamlet of Baker Lake v. minister of Indian Affairs (353) and that of McEachern C.J. of the Supreme Court of British Columbia in Delgamuukw v. British Columbia - which clearly contemplated that specific legislation was not essential to extinguish Indian title. In particular, in the latter case McEachern C.J. held that a series of ordinances (which made provision for, among other things, pre-emption of land, leases, actions for ejectment, Crown reserves and surveys, water privileges and mining licences) established such a thorough and comprehensive land system in British Columbia based on the appropriation of all lands in that colony to the Crown that, together with a policy of throwing open the colony for settlement, was entirely inconsistent with the continued existence of any system of aboriginal interests in land, and so had the effect of extinguishing Indian title (354).

It is now possible to turn briefly to several United States authorities. As I have explained, the course of history in that country finds no real parallel elsewhere and the law in its detailed application is of limited assistance in a case such as the present one. That is because the Indian tribes ere regarded as "domestic dependent nations" who retained a certain degree of sovereignty and thus had a very special relationship with the United States government (355).

Nevertheless, the notion of native or Indian title owes much to the celebrated judgment of Marshall C.J. in the case of Johnson v. McIntosh (356). It is unnecessary to refer to the detailed facts of the case. As Marshall C.J. pointed out (357), the inquiry was in great measure "confined to the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country". He then described the discovery of the American continent and the relations which were to exist between the discoverers and the natives. On this aspect, Marshall C.J. said (358):

"In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soul, at their own will, to whomsoever they please, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy."

The nature and extent of Indian title in the United States is amply described in Tee-Hit-Ton Indians v. United States (359). In that case a claim was made under the Fifth Amendment of the United States Constitution for compensation for the taking of timber by the United States from lands in Alaska over which the Tee-Hit-Ton Indians claimed Indian title. The Supreme Court held that the claimants' Indian title amounted to a permissive occupancy which could be extinguished by the government without compensation. Reed J., delivering the judgment of the Court, said (360):

" It is well settled that in all the States of the Union the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession not specifically recognised as ownership by Congress. After conquest they were permitted to occupy portions of territory over which they had previously exercised `sovereignty,' as we use that term. This is not a property right but amount to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy my be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians."

So, not unlike the position in Canada, Indian title in the United States (in the absence of recognition by Congress through treaty or legislation so that it becomes property within the meaning of the Fifth Amendment) is a right of occupancy which can be terminated by Congress at will (361). The actual title to the land lies in the United States (362). However, Indian title will only be extinguished where Congress; intention to effect such extinguishment is "clear and plain" (363).

In New Zealand the course of the law has been affected by the statutory implementation of the Treaty of Waitangi, This treaty guaranteed to the native inhabitants of new Zealand "the full, exclusive, and undisturbed possession of their Lands and Estates, Forests, Fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession" (364). The sole and absolute right of pre-emption from the aboriginal inhabitants was vested in the Crown: Land Claims Ordinance 1841 (N.Z.). For that reason New Zealand authority is, for the most part, not directly relevant, but the basic principle that, upon the assumption of sovereignty, the radical title to lands in new Zealand vested in the Crown giving it the right - apart from the treaty - to extinguish native title, has not been doubted (365). The position was summarised by North J. in In re the Ninety-Mile Beach (366):

"There is no doubt that it is a fundamental maxim of our laws that the Queen was the original proprietor of all lands in the Kingdom and consequently the only legal source of private title, and that this principle has bee imported with the mass of the common law into New Zealand; that it `pervades and animates the whole of our jurisdiction in respect to the tenure of land.' ... [I]n my opinion it necessarily follows that on the assumption of British sovereignty - apart from the Treaty of Waitangi - the rights of the Maoris to their tribal lands depended wholly on the grace and favour of Her Majesty Queen Victoria, who had an absolute right to disregard the Native title to any lands in New Zealand, whether above high-water mark or below high-water mark. But as we all know, the Crown did not act in a harsh way and from earliest times was careful to ensure the protection of Native interests and to fulfil the promises contained in the Treaty of Waitangi."

I have been able to deal with the authorities, other than the Australian authorities, in a somewhat selective way. A full and scholarly examination is to be found in the judgment of Blackburn J. in Milirrpum v. Nabalco Pty. Ltd. (367). But I have been able to do so because, at least so far as the plaintiffs; claim to traditional native title is concerned, this case turns upon the application of accepted principles rather than upon the ascertainment of the principles themselves. It is obviously a convenient course, which has been adopted in other cases, to assume that traditional native title or aboriginal title existed in the Murray Islands prior to annexation and to see whether it has been extinguished. That is essentially a question of historical fact to which I shall now turn.

The plaintiffs, against the weight of overseas authority to which I have referred, maintain that aboriginal title may be extinguished only by express legislation. However, this is to confuse the prerogative of the Crown with the power of the legislature. No doubt aboriginal title - or any other title for that matter - may be extinguished by legislation, but that is because of the power of the legislature, not because of the nature of the title of the Crown. Aboriginal title (and it is in this context that the word "title" is misleading) is an occupancy which the Crown, as absolute owner, permits to continue. The permission may be withdrawn. The extinction of aboriginal title does not, therefore, require specific legislation. No doubt the intention of the Crown must be plain, but there is no reason in principle or logic why it should not be inferred from the course taken by the Crown in the exercise of its powers, whether in administering statute law or otherwise.

The genesis of the law which applies in the Murray Islands is to be found in the Colony of New South Wales, of which Queensland originally formed a part. The law of New South Wales included the common law. If there ever had been any doubt about that, it was settled by s.24 of the Australian Courts Act 1828 (Imp.) (9 Geo. IV c.83) which provided that all the laws and statutes in force within the realm of England at the time of the passing of that Act should be applied in the Colony of New South Wales so far as they could be applied. The Colony of Queensland inherited the laws of New South Wales in 1859. To use the words of the Letters Patent of 6 June 1859 that erected Queensland into a separate colony, the Governor of the new colony was commanded to govern "according to such laws and ordinances as are now in force in our said colony of New South Wales and its dependencies and as shall hereafter be in force in our said Colony of Queensland". It was the law of Queensland which was introduced upon the annexation of the Murray Islands. It was introduced expressly and the power of the new sovereign, the Crown in right7of7the7Colony7of7Queensland,7to7introduce7that7law7cannot7be7questioned.7Tere7is7no7need7to7classify7the7Murray7Islands7as7conquered,7ceded7or7settled7territory.7Those7classifications7have7been7used7to7determine7the7question7of7what7law,7if7any,7is7introduced7to7acquired7territory,7but7they7are7irrelevant7where7the7law7which7is7introduced7is7expressly7declared7by7the7new7sovereign7(368). There is thus no need to resort to notions of terra nullius in relation to the Murray Islands. The law which applied upon annexation was the law of Queensland and, as I understand the plaintiffs' submissions, there is no issue about that in this case.

Upon any account, the policy which was implemented and the laws which were passed in New South Wales make it plain that, from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to any from of native interest in the land. It simply treated the land as its own to dispose of without regard to such interests as the natives might have had prior to the assumption of sovereignty. What was done was quite inconsistent with any recognition, by acquiescence or otherwise, of native title. Indeed, it is apparent that those in authority at the time did not consider that any recognisable form of native title existed.

Thus it was that successive Governors of the Colony of New South Wales were given power to grant land without reference to any claim or consent by the aboriginal inhabitants. The power of the earlier Governors (from Governor Phillip to Governor Brisbane) to grant land extended to the whole of the colony which at the time (so far as the mainland was concerned) extended from Cape York in the north, in the latitude of 10deg.37' south, to South Cape in the south, in the latitude of 43deg.49' south, and to all country inland to the west as far as the 135th degree of east longitude.

The instructions to these earlier Governors, which accompanied their Commissions, merely required the Governors to extend their intercourse with the natives, to conciliate their affections, and to enjoin them (369). The generality of these instructions, which made no reference at all to any interest of the aboriginal inhabitants in the land, may be contrasted with the considerable and minute detail in the instructions as to the way in which the Governors' power to grant land was to be exercised (370).

Some efforts were, however, made for the welfare of the aboriginal inhabitants by setting aside land for their use and benefit. For example, Governor Macquarie assigned 10,000 acres of land for the "permanent Benefit" of certain natives for the purposes of establishing a reserve on which those natives could be educated and "civilised", and encouraged to cultivate the land (371). Governor Macquarie also indicated and demonstrated his willingness to grant small areas of land to individual aboriginal inhabitants (372). Likewise, Governor Brisbane reserved 10,000 acres of land "for the use of the Aborigines" and appointed certain officers as trustees of the land upon which the London Missionary Society was to establish a mission. The trustees were empowered to remove intruders or trespassers and "to convey, for terms of years, or in tail, or in fee simple" an amount not exceeding 30 acres to any Aborigine on condition that the land not be sold, let or given to any white person (373). The land was to revert to the Crown if the project failed (374). Examples might be multiplied but it is sufficient to observe that none of the measures taken for the welfare of the aboriginal inhabitants involved the acceptance of any native rights over the land. On the contrary, in so far as the measures involved the provision of land, they were undertaken in the exercise of the relevant Governor's discretion under the power conferred upon him by his Commission and the land so provided was not necessarily that which the aboriginal inhabitants settled an it had traditionally occupied.

As settlement expanded under successive Governors of New South Wales, conflict between the colonists and the aboriginal inhabitants intensified. There was correspondingly more pressure to attend to the welfare of the aboriginal inhabitants (375). Most of the measures that were taken did not, however, relate to land. For instance, instructions were issued by Lord Glenelg for the appointment of Protectors of Aborigines who were, amongst other things, to watch over the rights and interests of the natives within their jurisdiction, to represent their wants, wishes or grievances to the colonial government and to attempt to settle them down and to educate and "civilise" them (376). However, outrages committed on the native inhabitants did not ease and were the subject of concern. When Lord Russell succeeded Lord Glenelg in the colonial office, he reiterated the solicitude of the Imperial government for the Aborigines, saying that "it is impossible that the Government should forget that the original aggression was our own, and that we have never yet performed the sacred duty of making any systematic or considerable attempt to impart to the former occupiers of New South Wales the blessings of Christianity, or the knowledge of the Arts and advantages of civilised life" (377). But still nothing was said which could be construed in any way as a recognition or acceptance by the Crown of any native rights in the land.

Alternatively, to the extent that measures were taken which related to land, they were too late to produce any fundamental change in the character of the occupation of the land following the assumption of sovereignty. For example, in 1848 Earl Grey stated in a despatch to Governor Fitz Roy (378):

" I think it essential that it should be generally understood that leases granted for [the purpose of pastoral occupation] give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such Land as they may require within the large limits thus assigned to them; but that these Leases are not intended to deprive the natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil, except over land actually cultivated or fenced in for that purpose."

On advice that a condition to this effect could not validly be inserted in Crown leases by the local Government, Fitz Roy requested an Order in Council giving the necessary authority (379). As a result, an Order in Council dated 18 July 1849 was made enabling the Governor to insert in pastoral leases "such conditions, clauses of forfeiture, exceptions, and reservations, as may be necessary for securing the peaceful and of actual occupation of the land comprised in such leases, and for preventing abuses and inconveniences incident thereto". Earl Grey considered that this Order in Council would enable the Governor "to prevent the injury to the public which would result from the absolute exclusion of natives or other persons travelling or searching for minerals and so forth" (380). The somewhat imprecise wording of this Order in Council is self-evident and it was thus a safe prediction that "as the Earl refused to declare that the native rights deserved respect, they would not be respected" (381). Thus, although a clause reserving to the Aborigines "free access to the said parcel of land" or to any portion of it including the trees and water which would "enable them to procure the animals, birds, fish and other foods of which they subsist" was apparently inserted in Queensland leases (382), the squatters ignored this provision and, by and large, they continued to drive the aboriginal inhabitants from their runs.

Therefore, the policy of the Imperial Government during this period is clear: whilst the aboriginal inhabitants were not to he ill-treated, settlement was not to be impeded by any claim which those inhabitants might seek to exert over the land. Settlement expanded rapidly and the selection and occupation of the land by the settlers were regulated by the Governors in a way that was intended to be comprehensive and complete and was simply inconsistent with the existence of any native interests in the land.

Initially settlers were permitted to occupy land only where that land had been granted or leased to them by, or on the authority of, the Governor and so the earlier Governors were able to control the settlement of the colony. As I have said, such settlement was regulated in considerable detail by the instructions given to these earlier Governors. However, as settlement expanded, the quantity of land surveyed was insufficient to meet the demand, and so settlers were permitted by Governors Macquarie and Brisbane to occupy land without a grant or lease, such occupation being terminable at the will of the Crown (383). The Governors after Governor Brisbane were empowered by their Commissions, with the advice and consent of the Executive Council, to divide the whole of the colony "into Districts, Counties, Hundreds, Towns, Townships and Parishes" (384). The disposal (by sale or grant without purchase) of the waste lands within these divisions, the terms and mode of such disposal, the purchase price (in the case of sale) and the quit rent (in the case of grant without purchase) were exhaustively and comprehensively specified in the instructions issued to the Governors from time to time (385).

Under Governor Darling the settlers were only permitted to select land within certain prescribed limits (386), which came to be known as the "Limits of Location" and, as of 14 October 1829, consisted of nineteen counties which essentially comprised the area that is today known as the State of New South Wales. Land outside these limits (such as that comprising today's States of Victoria and Queensland) was considered and treated by the Crown as waste lands just as was unalienated land within these limits. When it became clear that the government could not prevent squatters from grazing their stock outside the Limits of Location, the government acted to regulate their occupation and to assert the rights of the Crown over that land. The government treated these squatters as unauthorised occupants of unalienated Crown land and permitted the land to be occupied only under a licence. For the purposes of regulating the use and occupation of land beyond the Limits of Location, the government divided this land into districts, each of which had a Commissioner and a Border Police Force(387).

Subsequently the Sale of Waste Land Act 1842 (Imp.) (5 & 6 Vict. c.36) was passed. This Act made comprehensive provision for the terms on which the Governor was to exercise his power to alienate the waste lands of the Crown and it was followed by the Sale of Waste Land Act 1846 (Imp.) (9 & 10 Vict. c.104), which was to similar effect. Both of these Acts were clearly based on the premise that the waste lands were owned by the Crown. Squatting was further regulated by an Order in Council dated 9 March 1847 which divided all land in the Colony of New South Wales into three classes (settled land, intermediate land and unsettled land) and specified the terms on which pastoral leases in those classes would be granted by the Crown. The class designated "unsettled land" comprised land which was unsuitable for farming purposes but might be the subject of squatting. Most of the land in what was to become Queensland was unsettled land.

The fact that the Crown regarded unalienated waste land as entirely its own to deal with as it pleased is further exemplified by its refusal to recognise a "treaty" whereby John Batman purported to acquire 500,000 acres known as "Dutigalla" and 100,000 acres known as "Geelong" from certain natives. Given the policy of the Crown which I have described, the refusal emphasised that the Crown considered itself to be the owner of the land, unencumbered by any form of native title.

It is unnecessary to trace in detail the history of land settlement in Queensland. It is sufficient to say that squatters had reached the fringe of what is now Queensland in 1836 and expanded throughout Queensland by the early 1860s (388). The pattern of conflict between the settlers and the aboriginal inhabitants which was manifest in early New South Wales was repeated. But again no basis was afforded for saying that native rights in the land were recognised or accepted. There is nothing to indicate that any change occurred in the way in which the Crown dealt with the land. That is to say, land was dealt with upon the basis that, where not retained or reserved for public purposes, it was available for settlement without regard to any claim on the part of the aboriginal inhabitants. Certainly the comprehensive system of land regulation that was adopted by the Colony of Queensland (389) made no mention of native rights. Indeed, so far as the native inhabitants were concerned, the first Governor of the Colony of Queensland, Sir George Bowen, was merely required to "promote religion and education among the native inhabitants", "to protect them in their persons and in the free enjoyment of their possessions", "by all lawful means [to] prevent and restrain all violence and injustice which may in any manner be practised or attempted against them" and to take such measures as appeared to him necessary "for their conversion to the Christian Faith and for their advancement in civilisation" (390).

There may not be a great deal to be proud of in this history of events. But a dispassionate appraisal of what occurred is essential to the determination of the legal consequences, notwithstanding the degree of condemnation which is nowadays apt to accompany any account ( 391). The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. In the meantime it would be wrong to attempt to revise history or to fail to recognise its legal impact, however unpalatable it may now seem. To do so would be to impugn the foundations of the very legal system under which this case must be decided.

Having dealt with the history I now turn specifically to the Crown lands legislation which, in my view, makes it abundantly clear that the Crown assumed ownership of the waste lands, unencumbered by any native interests. The early legislation is recounted by Windeyer J. in Randwick Corporation v. Rutledge (392) in a judgment with which Dixon C.J. and Kitto J. agreed. Upon settlement, all the land in the Colony of New South Wales, which then comprised the whole of eastern Australia, became in law vested in the Crown. The early Governors had express powers under their Commissions to make grants of land, referred to in the preamble to 6 Wm.IV No.16 (1836) as authority "to grant and dispose of the waste lands". The term "waste lands" was, apart from legislative definition, understood long before the colonisation of New South Wales in 1788 to designate colonial lands not appropriated under any title from the Crown (393). Initially, ultimate control over the disposal of waste lands was retained by the Imperial Crown. The revenue from this source was used to fund the administration of, and emigration to, the colony. So it was that while The Australian Constitutions Act 1842 (Imp.) (5 & 6 Vict. c.76) empowered the Governor of New South Wales to make laws for the peace, welfare and good government of New South Wales with the advice and consent of a legislative council, this power was made subject to the proviso that "no such law shall ... interfere in any manner with the sale or other appropriation of the lands belonging to the Crown within [New South Wales] or with the revenue thence arising" (394).

As I have said, the sale of the waste lands of the Crown came to be regulated by the Sale of Waste Land Act 1842. "Waste Lands of the Crown" was defined to mean "any Lands situate [in New South Wales], and which now are or shall hereafter be vested in Her Majesty, Her Heirs and Successors, and which have not been already granted or lawfully contracted to be granted to any Person or Persons in Fee Simple, or for an Estate or Freehold, or for a Term of Years, and which have not bean dedicated and set apart for some public Use"(395). Under this Act the Queen and her authorised agents were expressly empowered to except from sale and either reserve to Her Majesty, Her Heirs and Successors, or dispose of in such other manner as for the public interest may seem best, "such Lands as may be required ... for the Use or Benefit of the aboriginal Inhabitants of the Country" (396). A later Act, the Sale of Waste Land Act 1846, empowered the Queen to demise, or to grant a licence to occupy, waste lands of the Crown for a term not exceeding fourteen years (397) and provision was made in that Act for the prosecution of persons in occupation of waste lands without such a demise or licence(398). The definition of "Waste Lands of the Crown" in the 1846 Act was similar to that contained in the 1842 Act, except that it expressly included waste lands "whether within or without the Limits allotted to Settlers for Location" (399).

In 1855 responsible government was attained in New South Wales. The steps preceding it - direct Crown rule, followed by a limited legislature in 1823 and further advances towards representative institutions in 1828 and 1842(400) - were all accompanied by a refusal by the Imperial government to relinquish control of the disposal of waste lands, notwithstanding that before 1850 the Imperial government ceased to contribute to the expenses of the colonial government. However, by 1855 "[t]he insistence of the public for complete powers, added to the revolutionary change on the subject of emigration, which took place on the discovery of gold, led to the final concession" (401). The New South Wales Constitution Act 1S55 (Imp.) (18 & 19 Vict. c.54) provided that as from its date of proclamation "the entire management and control of the waste lands belonging to the Crown in [New South Wales] and also the appropriation of the gross proceeds of the sale of any such lands and of all other proceeds and revenues of the same from whatever source arising within the said colony including all royalties mines and minerals shall he vested in the legislature of the said colony" (402). Accordingly, the Sale of Waste Land Acts 1842 and 1846 were repealed by The Australian Waste Lands Act 1855 (Imp.) (18 & 19 Vict. c. 56) (403). However, past appropriations of the proceeds of the sale or disposal of the waste lands of the Crown made under the repealed Acts were deemed not to be invalid (404) and all regulations respecting the disposal of the waste lands of the Crown made under the repealed Acts were to remain in force in New South Wales until otherwise provided by the legislature of New South Wales (405). The New South Wales Constitution Act also contained a proviso that preserved contracts, promises or engagements made with respect to land under the previous legislation(406).

I directed my attention to this proviso in Mabo v. Queensland (407) and need not repeat what I said there.

In 1847 in The Attorney-General v. Brown (408) the suggestion was made that the Crown had neither the property in the waste lands of the Colony of New South Wales nor possession of them. Stephen C.J., delivering a judgment, which was the judgment of the Court, gave the firm answer (409):

" We are of the opinion, then, that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign's possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown."

The separation of the Colony of Queensland from the Colony of New South Wales was effected by Letters Patent dated 6 June 1859. At the same time an Order in Council was made providing for the government of the new colony. Clause 5 of the Letters Patent gave power to the Governor of the Colony of Queensland, with the advice of the Executive Council, to grant any "waste or unsettled" lands vested in the Crown within the Colony of Queensland subject to any laws in force in that colony regulating the sale or disposal of such lands. Clause 17 of the Order in Council provided that, subject The New South Wales Constitution Act and The Australian Waste Lands Act , the legislature of the Colony of Queensland was to have power to make laws for regulating the sale, letting, disposal and occupation of the waste lands of the Crown within the colony.

In 1867 the Queensland legislature passed a consolidating Act, the Constitution Act 1867 (Q.), which incorporated Queensland constitutional legislation passed between 1860 and 1867. Section 30 of that Act provides that, subject to the provisions of The New South Wales Constitution Act and of The Australian Waste Lands Act "which concern the maintenance of existing contracts", the legislature of the colony has power to make laws for regulating the sale, letting, disposal and occupation of the waste lands of the Crown within the colony. Section 40 provides that the entire management and control of waste lands belonging to the Crown in the colony shall be vested in its legislature subject to a proviso which is similar to that contained in s.2 of The New South Wales Constitution Act . Section 40 also provides that the appropriation of the gross proceeds of the sales of such lands and of all other proceeds and revenues shall be vested in the legislature. Sections 30 and 40 of the Constitution Act are the source of legislative power in Queensland to deal with waste lands. They are authorised by cl.17 of the Order in Council of 1859 which is in turn authorised by s.7 of The New South Wales Constitution Act . Upon the annexation of the Murray Islands in 1879 the powers referred to in ss.30 and 40 extended to those islands as part of Queensland. The Queensland legislature thereupon had power to deal with the waste lands of the Murray Islands, and that power was not limited by the proviso to s.40, the proviso having no application in the circumstances, as I explained in Mabo v. Queensland (410).

There followed a series of Acts passed by the Queensland parliament dealing with the alienation of Crown lands. The term "Crown lands" was used as an alternative to the term "waste lands" and is variously defined in the legislation. For example, in the Crown Lands Alienation Act 1868 (Q.), s.2, it is defined in part as:

" All lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted to any person in fee simple".

In the Crown Lands Alienation Act 1876 (Q.), s.1, it is defined in part as:

" All lands vested in Her Majesty which are not dedicated to any public purpose and which are not for the time being subject to any deed of grant lease contract promise or engagement made by or on behalf of Her Majesty" (411).

And, in the Land Act 1910 (Q.), s.4, it is defined as it is in the current legislation, the Land Act 1962 (Q.) (s.5), namely, as:

"All land in Queensland, except land which is, for the time being -

(a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or

(b) Reserved for or dedicated to public purposes; or

(c) Subject. to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land".

Generally speaking these Acts empowered the Governor in Council to grant in fee simple or to demise for a term of years or to otherwise deal with Crown lands in Queensland. They also empowered the Governor in Council to reserve Crown lands for public purposes, including for the use or benefit of the aboriginal inhabitants or for aboriginal reserves, and to place such land under the control of trustees; alternatively the Governor in Council was empowered to grant Crown lands in trust for such public purposes (412).

The observation of Blackburn J. in Milirrpum (413) (although it was made in relation to the entire history of land policy and legislation in New South Wales, South Australia and the Northern Territory) is apposite:

" The first event in that history, for the purposes of this case, was the inclusion in Governor Phillip's second commission of the words 'full power and authority to agree for such lands tenements and hereditaments as shall be in our power to dispose of and them to grant: to any person or persons ... '. [Since then there has been] a long succession of legislative and executive acts designed to facilitate the settlement and development of the country, not expressly by white men, but without regard or any communal native title."

His Honour regarded it as significant, as indeed I do, that there was a consciousness that the occupation of the land by white men was a deprivation of the Aborigines, but that nevertheless no attempt was made to solve this problem by way of the creation or application of law relating to title to land which the Aborigines could invoke (414).

The very concept of waste lands is an indication that the Crown proceeded, and was required to proceed, in disregard of any notion of native title and this is emphasised by the power to reserve from the sale of waste lands land required for the use or benefit of the aboriginal inhabitants. This was the case both on the mainland and in the Murray Islands, where the Crown lands legislation applied by virtue of the instruments effecting the annexation.

It was pursuant to Crown lands legislation that reserves in Queensland were created. For instance, on 30 June 1871 an aboriginal reserve at Mackay was gazetted and, following recommendations by a Commission of Inquiry (set up in 1873) and growing interstate and international concern about the treatment of Aborigines in Queensland, further reserves at Durundur, Bribie Island, Cape Hillsborough, Townsville, Bowen and Cardwell were gazetted in 1877. However, partly due to the opposition of certain settlers and partly due to a lack of financial support from the government, most of these reserves were cancelled in 1878 (the reserve at Mackay was cancelled in 1880 and that at Durundur in 1885). Subsequently, in the late 1880s and early 1890s, further reserves were established to be run by church organisations with little financial support from the government.

Following recommendations made for the Queensland government in 1896 the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Q.) was passed. It was pursuant to this Act that the natives were placed on government controlled reserves and were entirely isolated from contact with other races. The first of these reserves was set up in 1897 at Bogimbah Creek on Fraser Island and was initiated by the removal of about 50 natives from the Maryborough district. This was the beginning of a large-scale program of removals (authorised under s.9 of the Act) to reserves at places such as Yarrabah, Durundur, Barambah, Taroom, Hull River, Woorabinda and Palm Island. By he end of the 1930s, reserves had also been gazetted in the north at Edward River, Lockhart River and Doomadgee. Concurrently, "country reserves" (often on the outskirts of rural towns) were set up to provide a source of aboriginal labour for pastoral areas (e.g. outside Herberton and Georgetown) (415).

Thus, whilst land was reserved in Queensland for Aborigines, those placed on the reserves did not necessarily have any traditional association with the land. Moreover, the land remained land owned by the Crown, the reserves could be revoked or altered by the Crown and the location and size of the reserves was largely dictated by the suitability of the land for settlement by the white population.

It appears that by a proclamation issued in 1882 the Murray Islands were reserved for native use. The proclamation would seem to have been issued pursuant to the powers conferred on the Governor in Council by s.6 of the Crown Lands Alienation Act 1876. In the same year a special lease (Special Lease 164) of two acres on Mer was granted by the Crown to the London Missionary Society for fourteen years. That lease appears to have been subsequently renewed and was later transferred to the General Secretary, Australian Board of Missions, then to the Trustees of the Australian Board at Missions and finally to the Corporation of the Synod of the Diocese of Carpentaria.

By an Order in Council dated 14 November 1912, the Governor in Council ordered that "the Murray Islands (Mer, Daua, Waua) containing an area of about 1200 acres (exclusive of Special Lease 1677)" were to be "permanently reserved and set apart for use of the Aboriginal Inhabitants of the State [of Queensland]". Presumably Special Lease 1677 relates to the land previously the subject of Special Lease 164. The reservation was made pursuant to the powers conferred upon the Governor in Council by s.180 of the Land Act 1910.

By an Order in Council dated 9 September 1939 the reserve comprising the Murray Islands was placed under the control of trustees pursuant to s.l81(1) of the Land Act 1910. This section provided that the Governor in Council might, by Order in Council and without issuing any deed of grant, place any land reserved for any public purpose under the control of trustees and might declare the style or title of such trustees and the trusts of the land.

Aboriginal reserves, whether created under the Crown Lands Alienation Act 1876 or the Land Act 1910, were, as I have said, initially regulated by the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 For the purposes of that Act, an "aboriginal" included an aboriginal inhabitant of Queensland (416). The Governor in Council was empowered to appoint a Protector of Aboriginals in respect of proclaimed districts in Queensland and a superintendent for each reserve in each district (417). The Act provided in a detailed way for the welfare of "aboriginals" by the imposition of controls upon them and upon others in relation to them.

This Act was repealed by the Aboriginals Preservation and Protection Act 1939 (Q.) (418) but the Murray Islands reserve was continued, and regulated, as a reserve under the Torres Trait Islanders Act 1939 (Q.) (419). Certain sections of the Aboriginals Preservation and Protection Act , which was to be read and construed with the Torres Strait Islanders Act (420), also applied to the Murray Islands reserve. The former Act continued the office of Chief Protector of Aboriginals, albeit in the guise of the Director of Native Affairs (421), and the latter Act provided that a designated Protector of Aboriginals was to be the Protector of Islanders for the purposes of that Act (422). The Torres Strait Islanders Act also made detailed provision for the regulation of the affairs of the aboriginal inhabitants, including the protection and management of their property (423). Further, it established a council to govern each island reserve in Torres Strait which was to be elected from among the native inhabitants of the relevant reserve (424). Each council was to exercise "the functions of local government of the reserve" and was charged with "the good rule and government of the reserve in accordance with island customs and practices" (425). For these purposes the council was empowered to make by-laws, including by-laws in relation to the "subdivision of land and use and occupation of land, buildings and use and occupation of buildings, ... boundaries and fences" (426). However, the by-laws were to be of no force or effect until approved by the Director (427). This Act also provided for an island court for each reserve consisting of members of the council (428), which was to adjudicate on all offences committed by islanders on the reserve against the by-laws of the reserve (429). Provision was made for appeal from a decision of the island court to the Protector of Islanders (430). The Governor in Council was given extensive power to make regulations for, among other things, the welfare, control and supervision of islanders and the jurisdiction and procedure of island courts (431).

The Aboriginals Preservation and Protection Act and the Torres Strait Islanders Act were repealed by the Aborigines' and Torres Strait Islanders' Affairs Act 1965 (Q.) (432). The Murray Islands reserve was, however, continued as a reserve under that Act (433). This Act created the position of Director of Aboriginal and Island Affairs (which was occupied by the former Director of Native Affairs) (434). This position was later incorporated (435). In the case of the Murray Islands the Director was also appointed trustee of the reserve (436). The office of protector was abolished, but the previous superintendents of reserves became managers of the communities which resided on those reserves (437). Under the Act a district officer in the district in which a reserve was situated was given the power to manage and deal with the property of any islander residing on the reserve where the officer was satisfied that this was in the best interests of the islanders or his dependent family members (438), although the district officer could be required to cease doing so on the order of a stipendiary magistrate (439). The island councils were continued (440) with similar functions and powers although in addition they were empowered to levy a rate and to impose fees, charges, fares, rents and dues in respect of any property, service, matter or thing for the purpose of enabling them to exercise and perform their functions (441). The island courts were also continued (442), but an appeal lay in the first instance to a group representative appointed under the Act (443) and then to the district officer (444). The Governor in Council was also given extensive power to make regulations for, among other things, the administration of reserves and the employment, welfare and control of islanders residing on the reserves (445). Pursuant to this power The Aborigines' and Torres Strait Islanders' Regulations 1966 were promulgated. They dealt with, among other things, the administration of reserves, entry on to reserves and the jurisdiction, powers and procedure of island courts.

The Act succeeding the Aborigines' and Torres Strait Islanders; Affairs Act , the Torres Strait Islanders Act 1971 (Q.), may be dealt with shortly. This Act continued the Murray Islands as a reserve (446). It also continued The Corporation of the Director of Aboriginal and Island Affairs (447) (its name was subsequently changed to The Corporation of the Director of Aboriginal and Islanders Advancement (448)) and the island councils (449) (these were subsequently incorporated (450)) with much the same powers as they had under the previous Act. The island courts were continued as well (451), but an appeal now lay in the first instance to the group representative, then to the Island Advisory Council appointed under the Act (452) and then to a stipendiary magistrate (453). A significant change, however, was that under the Act a district officer could only assume the management of an islander's property when requested to do so by the islander (454) and, subsequently, an islander was able to terminate such management as of right (455). Again, the Governor in Council was given extensive power to make regulations for the welfare of islanders and for the administration of the reserves on which they resided (456). The Torres Strait Islanders Regulations 1972 were made under this Act; these regulations related to, among other things, the administration and control of reserves, the proceedings of island councils and the powers, jurisdiction and proceedings of island courts.

This Act was repealed by the Community Services (Torres Strait) Act 1984 (Q.) (457). Under that Act the Murray Islands are continued as a trust area (458). "Trust area" was at that time defined as "land granted in trust by the Governor in Council for the benefit of Islander inhabitants or reserved and set apart by the Governor in Council for the benefit of Islanders under the provisions of law relating to Crown lands" (459). The island councils are continued (460) and, as under the repealed Act, are incorporated (461) and made "capable in law of suing and being sued, of acquiring, holding (absolutely or subject to trusts), letting, leasing, hiring, disposing of and otherwise dealing with property real and personal" (462). The previous powers of island councils are also extended to include the powers of a "Local Authority" in certain circumstances (463). Although a council's by-laws have no force or effect until approved by the Governor in Council, there is no longer any power in another body to suspend a by-law. Provision is also made for island courts but these are now generally to be constituted by two justices of the peace who are islanders resident in the relevant trust area (464). The jurisdiction of an island court extends, among other things, to disputes concerning any matter that "is a matter accepted by the community resident in [the relevant trust area] as a matter rightly governed by the usages and customs of that community" (465). The decision of an island court upon such a matter is final and conclusive (466). Finally, the Governor in Council is given extensive power to make regulations for, among other things, the administration and supervision of island councils, the jurisdiction and procedure of island courts, the self-management and good government of islanders, the skills development, training and employment of islanders and the financial well-being of islanders (467).

As can be seen from the preceding summary none of these Acts that regulated or now regulate reserves (such as the Murray Islands reserve) adverts to any native interests in the reserved land and, significantly, the power of an island council under these Acts does not extend to dealing with titles to land.

So far as the Murray Islands are concerned, the creation of a reserve of practically all of the land on the Murray Islands for the benefit of aboriginal inhabitants so soon after annexation is, in the light of the policy adopted by Queensland towards land and the aboriginal inhabitants on the mainland, a clear indication that the Crown was proceeding upon a basis other than that of preserving any native rights in respect of the land. The creation of a reserve is not necessarily inconsistent with the continued existence of native title (468), but where the circumstances which accompany a reservation of land clearly indicate the Crown's exercise of rights of absolute ownership such that there is no room for the continued existence of native title, then the reservation will clearly be inconsistent with the recognition of that title. The reservation of the Murray Islands and the regulation of the affairs of the aboriginal inhabitants was part of a legislative and administrative scheme extending to the whole of the colony and it is clear that elsewhere the creation of aboriginal reserves was unrelated to the preservation of native title. The reservation was in no way a recognition of any traditional land rights. The policy behind the creation of reserves on the mainland was accurately described by Blackburn J. in Milirrpum (469):

" The creation of aboriginal reserves - a policy which goes back at least to the time of Governor Macquarie - implies the negation of communal native title, for they are set up at the will of the Government and in such places as the Government chooses. There is never the slightest suggestion that their boundaries are negotiated between parties by way of the adjustment of rights."

Just as those concerned with the administration of the Murray Islands assumed full power to regulate the affairs of the occupants of the Murray Islands reservation, the Crown (and its agents) assumed full power to deal with the land as it saw fit. Indeed, the creation of reserves out of Crown land was itself the exercise by the Crown of its rights of absolute ownership over the land. In these circumstances the fact that almost the whole of the Murray Islands was reserved carries with it no particular significance. On the contrary, there is a certain unreality in any separate examination of the reservation of the Murray Islands in order to discern an intention not to disturb native title. The lands comprising the islands were quite plainly thought to be Crown lands and to be in no different category to Crown lands elsewhere in the colony. There was never in Queensland, as there was not in New South Wales, any policy which could be said to embrace the concept of native title. The opposite was the case and it is in that context that the creation of reserves for the benefit of aboriginal inhabitants must be seen.

The findings of fact made by Moynihan J. upon the remitter of this matter to the Supreme Court of Queensland are consistent with the conclusions which I have arrived at from a consideration of the legislation passed and executive action taken, namely that as from annexation traditional native title in the land was not recognised by the Crown (or, what amounts to the same thing, was extinguished by the Crown). In particular, Moynihan J. found that there was no concept of public or general community ownership of land before the arrival of Europeans but that all land was considered to be in the possession of a particular individual or family group. Whatever the true character of traditional native title, it seems that it can only be claimed by or on behalf of a group of native inhabitants and that it does not support the claim of an individual to a particular parcel of land. Of course this of itself does not deny the possibility that the Crown has recognised or granted to the native inhabitants of the Murray Islands after annexation something more than traditional native title, and more akin to private ownership of the land. But Moynihan J. was able to go only so far as to find that, prior to European contact, the native inhabitants of the Murray Islands had a strong sense of the propriety of respecting and not trespassing on "someone else's place or locality"; his Honour found this attitude to be "ingrained in the culture of the people ... rather than objectively laid down and enforced by some distinct agency - rather like our (or more likely another age's) concept of good manners for example than the traffic regulations enforced by the police force". This respect for another's "place or locality" was not due to any spiritual or religious relationship with the land or necessarily to any intrinsic value of the land as such; instead, it was at least partly due to "the need to control access in the terms of distribution or sharing life sustaining or socially advantageous resources in a potentially volatile social environment". In other words, controlled access to land on the basis of social groupings was necessary for social harmony. In addition Moynihan J. found that the disposition of and dealings in village land and garden land at this time essentially depended on whatever basis was acceptable to those directly affected and, to the extent to which a wider community might be affected, whatever basis was acceptable to that community. Moynihan J. concluded that, prior to the arrival of Europeans:

" The ultimate determining factor in terms of the control and disposition of land was simply what was acceptable in terms of social harmony and the capacity of an individual to impose his (it seems almost [always] to have been a him) will on the community."

Moynihan J. thus appears to have formed the view that it would be no more than speculation to conclude that there was any particular system controlling the use of land on the Murray Islands before European contact.

European contact brought with it certain changes. In particular a system of chieftainship was introduced with the appointment of the "mamoose" (or chief) at the instigation of the European authorities and this was followed by the establishment of the island council, the island court and the island policemen. These were all introduced agencies that, in the words of Moynihan J., bore "little or no relationship to anything previously in place in the society or reflected by the culture". Other changes included the introduction of school for the children, the introduction of Christianity, the migration of a number of islanders to the mainland and a change in the economy from one based on subsistence gardening supplemented by fishing to one based on cash from employment. To some extent the manner of dealing with land was also affected - for example, it appears that since European contact the practice of leasing or loaning garden land to other Murray Islanders has become a relatively common and accepted transaction. In particular though, after European contact, the London Missionary Society, the schoolmaster and finally the island court assumed the function of resolving disputes concerning residential (or village) land and gardening land. Previously, there was nothing resembling these institutions or performing their functions. Of the court Moynihan J. said:

"I am inclined to think that the operation of the 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."

And, a little later, he concluded that:

"The view I take on the whole of the evidence is that the role of the Court was to maintain social harmony by accommodating peoples' wishes as far as possible and doing what seemed to be right in the circumstances."

In other words, it appears that the court proceeded upon an ad hoc basis rather than upon the basis of protecting such rights (if any) as may have existed before the annexation of the Murray Islands. whilst the court did seek to achieve a consistent application of certain basic principles, this was because of the intrinsic value of consistency and predicability rather than an attempt to apply any traditional or customary law. Thus the institutions introduced by the Europeans (in particular, the island court) do not provide evidence of the recognition of any rights in land enjoyed by the native inhabitants before annexation.

On 6 May 1931 a lease (Special Lease 6619) was granted to two persons (not being aboriginal inhabitants) over the whole of the islands of Dauer and Waier for a period of twenty years for the purpose of establishing a sardine factory. A new lease (Special Lease 6856) was later granted in the same year on the same terms except that it provided for an extension of the lease for thirty years upon the giving of six months' notice. This lease was then transferred to Murray Island Fisheries Limited on 10 June 1932. The lease was, however, forfeited in 1938 for failure to pay the rent due and the improvements made on the leased land were purchased by the Lands Department on behalf of the Chief Protector of Aboriginals.

The granting of the lease of land to the London Missionary Society referred to earlier and of the lease for the purposes of a sardine factory are inconsistent with the preservation of native title, although in the latter case the lease was subject to conditions that the lessees would not in any way obstruct or interfere with the use of the Murray Island natives of "their tribal gardens and plantations" on the demised land and would not in any way obstruct or interfere with the operations of the Murray Island natives who fished around the reefs adjacent to the demised land. The construction of public buildings and the carrying out of public works on the islands is also inconsistent with the preservation of native title.

The court records do show that in September 1913 the government purchased three portions of land for a gaol house, a court house and a recreation reserve respectively for a total sum of [[sterling]]6.0.0. Further, it appears that during the 1960s the Department of Native Affairs paid $50 for a site for a kindergarten "in recognition of any claim he [the recipient] had to the use of the land". And, in 1973 the area of land used by the kindergarten was increased and another person was paid $75 by the Department of Aboriginal and Islander Affairs for the loss of use of the land. Each of these transactions was variously referred to as a "sale", a "disposal", an "acquisition" or a "purchase". The court records also show that in 1928 land on Mer "was resumed by the Protector of Aboriginals and set aside for a new village. The land was then cleared and subdivided into 23 lots and balloted for".

However, it was only upon some occasions when Murray Islanders were deprived of the use of their land that they were compensated. For example, in 1978 land was used for the construction of an air-strip on Mer without any question of compensation being raised. In any event, such payments as were made were (despite some of the terminology used) for the loss of use of the land rather than for the acquisition of any rights in the land, the payments being made in some instances after the intervention of the island council. In my view there was no legal obligation to give such compensation and the giving of it is explicable on the grounds that it was desirable to avoid ill-feeling and possibly to compensate the occupier for any improvements (such as gardens or dwellings) that may have been made by him. It is true that on occasions land on the Murray Islands has been referred to as being "owned" by or "belonging to" the native inhabitants and that in one instance land was said to have been "resumed". However, in the circumstances, this again only reflects an imprecision in the language used rather than the true legal position. It is equally true that on occasions "trespassers" were removed from the Murray Islands, but this is explicable not on the basis that they were trespassers on land owned by the native inhabitants but that they were trespassers on land owned by the Crown, notwithstanding that they may have been removed to protect the native inhabitants.

In my view, the conclusion is inevitable that, assuming the native inhabitants of the Murray Islands to have held some sort of rights in the land immediately before the annexation of those islands, the Crown in right of the Colony of Queensland, on their annexation, exerted to the full its rights in the land inconsistently with and to the exclusion of any native or aboriginal rights. It did so under the law which it brought with it. It did so from the start by acting upon the assumption (which was also the assumption lying behind the relevant legislation) that there was no such thing as native title and that the Crown was exclusively entitled to all lands which had not been alienated by it: lands which were designated as Crown lands. In making provision for the reservation of land for public purposes, in particular the welfare of the aboriginal population, the relevant legislation and the action taken pursuant to it disclose no intention to preserve native rights in the land: they were simply thought not to exist. The reservation of land for the use of the aboriginal population was in the exercise of a benevolent jurisdiction whereby the land was to be controlled by the Crown in accordance with a legislative scheme which was inconsistent with the exertion of native rights, communal or otherwise, in the land. If any ambiguity arose from the fact that practically the whole of the Murray Islands were reserved and the fact that the aboriginal inhabitants were allowed to continue in occupation of the land more or less as they had been in the past (or at all events since European contact), that ambiguity is resolved when it is recognised that the scheme under which the islands were reserved extended to the whole of the colony and was elsewhere plainly incompatible with the preservation of any native title and consistent only with the assertion by the Crown of full and complete dominion over land. Indeed, the creation of aboriginal reserves was for the purpose of actually retaining the land within the control of the Crown or its agencies in order that it might be administered for the benefit of the aboriginal population of the colony. Further, aboriginal reserves were not created in a manner which coincided with the aboriginal inhabitants' occupation of the land. On the contrary, aboriginal reserves were created without any regard to aboriginal title.

My conclusion that the plaintiffs have no aboriginal title to the land necessarily carries with it the further conclusion that the plaintiffs' separate claim to usufructuary rights over the land cannot succeed. Imprecise as the authorities are concerning the nature of aboriginal title, it would appear upon any view to embrace usufructuary rights. The separate claims made by the plaintiffs to aboriginal title and usufructuary rights would appear to be based upon the notion that aboriginal title is proprietary by nature, whereas usufructuary rights are, by definition, not proprietary in nature. The weight of authority rather suggests that aboriginal title is of its nature also non-proprietary and carries with it little if anything more than usufructuary rights. But it is unnecessary to pursue the matter because it is not, and cannot be, questioned that aboriginal title may be extinguished and it follows that any usufructuary rights amounting to something less than aboriginal title may also be extinguished. The exertion by the Crown of its rights over the Murray Islands, as evidenced by, among other things, the creation of a reserve, to the exclusion of any native rights in that land, carries with it the result that any usufructuary rights in the land stemming from occupancy before annexation, have been extinguished.

Similarly, in the light of what I have already said, the plaintiffs' claims to ownership by custom of the lands comprising the Murray Islands cannot be sustained. The short answer is that, upon the facts found by Moynihan J., which I have set out previously, the plaintiffs failed to establish any custom by which they could be said to have inherited rights over the land which they claim. A system, such as that which apparently existed prior to annexation, whereby the control and disposition of land depended on what was acceptable in terms of social harmony and on the capacity of the individual to impose his will on the community, does not seem to me to amount to any sort of custom, whether or not characterised as a system of laws, regarding the control and disposition of land. But, more fundamentally, customary rights which are not recognised by a new sovereign who acquires the radical title to the land are extinguished upon the assumption of sovereignty, no less than rights which might be characterised as aboriginal title. No doubt, as in my view is the case with aboriginal title, recognition may take the form of acquiescence, at least where the customary rights are reasonable (470) and not repugnant to the common law (471). But the history, both legislative and executive, to which I have made reference, affords no basis for any claim that the Crown in right of the Colony or State of Queensland recognised the existence of any customary rights of ownership on the part of the aboriginal inhabitants of the Murray Islands.

As I have said, under both the Community Services (Torres Strait) Act and its predecessor, an island council is required to govern the reserve "in accordance with the customs and practices" of the islanders. Indeed, the 1980 by-laws expressly require the transmission of land on the holder's death or permanent departure to be "in accordance with native custom" (by-law no.35) and provide that, if a deceased islander does not make a will, the deceased islander's land and property is to be distributed by the island court "by native custom" (by-law no.38). Also, in some cases, the jurisdiction of the island court is required to be exercised having regard to or in accordance with "the usages and customs of the community" (472). The plaintiffs contend that these provisions confer "statutory rights" on the Meriam people. However, these provisions cannot preserve that which has been found not to exist by Moynihan J. and they do not constitute a recognition of customary rights which, at least so far as land is concerned, are inconsistent with Queensland laws introduced upon annexation.

The plaintiffs placed reliance upon The Case of Tanistry (473). That was a case in which it was sought to establish the continuation in Ireland of the custom of tanistry (a tenure involving a mode of descent through the male line) despite the introduction of the common law of England. It was held in that case that the custom did not survive because it was unreasonable and repugnant to the common law (474). In addition, the court affirmed the basic principle which I have stated before (475):

" Queen Elizabeth shall not be said to be in actual possession of this land, by virtue of the first conquest, if it doth not appear by some record that the first conqueror had seised this land at the time of the conquest, and appropriated it particularly to himself as parcel of his proper demesne.

For the kings of England have always claimed and had within their dominions, a royal monarchy and not a despotick monarchy or tyranny ... And therefore when such a royal monarch, who will govern his subjects by a just and positive law, hath made a new conquest of a realm, although in fact he hath the lordship paramount of all the lands within such realm, so that these are all held of him, mediate vel immediate , and he hath also the possession of all the lands which he willeth actually to seise and retain in his own hands for his profit or pleasure, and may also by his grants distribute such portions as he pleaseth to his servants and warriors, or to such colonies as he will plant immediately upon the conquest ... yet Sir James Ley chief-justice said, that if such conqueror receiveth any of the natives or antient inhabitants into his protection and avoweth them for his subjects, and permitteth them to continue their possessions and to remain in his peace and allegiance, their heirs shall be adjudged in by good title without grant or confirmation of the conqueror, and shall enjoy their lands according to the rules of the law which the conqueror hath allowed or established, if they will submit themselves to it, and hold their lands according to the rules of it, and not otherwise."

In other words, on conquest the Crown took the paramount title to (though not actual possession of) all the lands in the conquered realm so that all the lands were held of the Crown. If the Crown permitted the conquered people to remain in possession of the land then they obtained good title to it (under the laws designated by the conqueror) without grant or confirmation of the Crown. The Case of Tanistry therefore does not assist the plaintiffs in their claim to ownership by custom. Even if they were able to establish the necessary custom, it did not survive the annexation o the Murray Islands by the Crown in right of the Colony of Queensland because, unlike the situation in The Case of Tanistry; the Crown did not permit the inhabitants of the Murray Islands to remain in possession of the land in accordance with its laws, including any custom recognised under Queensland law. Instead their continued occupation was at the pleasure of the Crown.

Alternatively, the plaintiffs argue that, whether or not they are able to establish that they have traditional land rights, they nevertheless have a title based on possession. This argument is heavily based on a theory advanced by Professor McNeil in his book Common Law Aboriginal Title , (1989]. The starting point is that he plaintiffs' predecessor in title have been in occupation of the land since beyond living memory. Upon annexation, the common law was introduced into the Murray Islands as part of the law of Queensland. Under the common law, occupation is prima facie proof of possession and possession carries with it a possessory title, which is good as against those who cannot show a better title in themselves. Indeed, mere possession of land is prima facie evidence of a seisin in fee. Thus, say the plaintiffs, since they were allowed to remain in possession of their lands and since no one can assert a better title against them, they must be taken to hold their land by way of an estate in fee simple.

But, of course, any presumption that the plaintiffs have an estate in fee simple is rebuttable (476) and any possessory title would not withstand the assertion by the Crown of its radical title. In other words, upon the assumption of sovereignty by the Crown, the plaintiffs or their predecessors could only retain such interests as the Crown chose to recognise by one means or another and, as I have endeavoured to explain, the Crown upon annexation asserted its right to the land to the exclusion of any rights of ownership on the part of the plaintiffs or their predecessors.

The plaintiffs put yet another argument. They submit that if they fail to establish title to the lands which they claim on the Murray Islands, nevertheless the Crown, whether as a trustee or not, owes them a fiduciary duty to deal with those lands in such a manner as to have regard, to their traditional rights in them. They argue that this duty arises from the unilateral assumption of control by the Crown over the native inhabitants on annexation, the policy of protection of the native inhabitants adopted by the Crown and the creation of a reserve (later put under the control of trustees) for the use and benefit of the native inhabitants. The plaintiffs say that this duty imposes an obligation on the defendant, among other things, to preserve or have regard to the traditional land rights of the plaintiffs, to exercise any discretionary powers conferred by statute or otherwise in a manner which preserves or has regard to these rights, and to pay proper compensation or any extinguishment or impairment of these rights. I have some difficulty with this submission because, assuming that the plaintiffs had traditional rights in those lands, I have reached the conclusion that those rights have been extinguished. It is in the end for that reason that I have also concluded that there is no fiduciary duty imposed upon the Crown such as is advanced by the plaintiffs, but it is necessary for me to elaborate my reasons for reaching that conclusion.

In the United States it has been held that a fiduciary relationship exists between the United States government and the various Indian tribes. Its foundation is said to lie in the judgments of Marshall C.J. in Cherokee Nation v. Georgia ( 477) and in Worcester v. Georgia (478). This relationship seems to derive from the fact that the Indian tribes, as "domestic dependent nations", rather than as individuals abandoning their national character and submitting as subjects to the laws of another, have sought and received the protection of a more powerful government, namely, that of the United States. Accordingly there has arisen between the Indian tribes and the United States government a relationship which has been described as resembling that between a ward and his guardian (479). This relationship has also been described as "a general trust relationship between the United States and the Indian people" (480), and the United States government, in dealing with the Indians, and in particular in carrying out its treaty obligations towards them, is under "a humane and self imposed policy" whereby "it has charged itself with moral obligations of the highest responsibility and trust" (481). The precise origins of this United States "federal trust responsibility", as it is sometimes called, as well as its content, are somewhat obscure. Marshall C.J. spoke in broad moral terms, but the theoretical basis has been variously explained (482). It is clear, however,. that the doctrine is dependent upon a history of protection of the Indian tribes, as separate domestic dependent nations with their own limited form of sovereignty and territorial and governmental integrity, the protection being undertaken by the United States government either pursuant to legislation or otherwise. The doctrine also assumes some form of title in the Indian tribes to the land, either by way of aboriginal title ("unrecognised Indian title") or under treaty ("recognised Indian title" ).

In Canada the notion of a fiduciary duty with respect to aboriginal lands was taken up in Guerin v. The Queen (483). In that case part of an Indian reserve set apart for the use of the Musqueam band was surrendered to the Crown by the band "in trust to lease the same to such person or persons, and upon such terms as the Government of Canada may deem most conducive to our Welfare and that of our people". The Crown accepted the surrender and entered into a lease upon terms substantially less advantageous than those which had been discussed with the band. No copy of the lease was made available to the band until a considerable time after it had been entered into. Under the Indian Act , R.S.C. 1952, c.149, it was provided that reserves were to be held by the Crown for the use of the respective Indian bands for which they were set apart: s.18(l). It was also provided that generally lands in a reserve were not to be sold, alienated, leased or otherwise disposed of until they had been surrendered to the Crown by the band for whose use and benefit in common the reserve was set apart: s.37. The purpose of this latter stipulation was to interpose the Crown between the bands and the prospective purchasers or lessees of their land so as to prevent the bands from being exploited (484).

Dickson J. (with whom Beetz, Chouinard and Lamer JJ. agreed) found that the Crown was under a fiduciary duty towards the Indians with respect to the surrendered land which, whilst not a trust, made the Crown liable in the same way and to the same extent as if a trust were in effect. The finding of Dickson J. that a fiduciary duty existed was dependent upon the existence of Indian title and the statutory provisions prohibiting the disposal of reserve land except through surrender to the Crown. He said (485):

"In my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. ...

The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown."

Wilson J. (with whom Ritchie and McIntyre JJ. agreed) held that, while the Crown did not hold reserve land under s.18 of the Indian Act in trust for the bands because the bands' interests were limited by the nature of Indian title, it did hold the lands subject to a fiduciary obligation to protect and preserve the bands interests from invasion or destruction. Thus the Crown could not utilise reserve land for purposes incompatible with the bands' Indian title unless the relevant band agreed (486). Wilson J. further held that this fiduciary duty, which was founded upon aboriginal title, "crystallised upon the surrender into an express trust of specific land for a specific purpose" (487).

The existence of some sort of fiduciary or trust obligation upon the Crown in dealing with surrendered reserve land which is identified in Guerin is similar to a manifestation of the fiduciary relationship said to generally exist between the Indian tribes and the United States government. That is that land in the United States, whether held under unrecognised or recognised Indian title, cannot be disposed of without the consent of Congress; in other words, analogously to the position of the Crown in Canada, the United States government has assumed a responsibility to protect the Indian tribes in their land transactions (488).

However, it has been suggested that in Canada, as in the United States, the Crown in fact has a broader responsibility to act in a fiduciary capacity with respect to its aboriginal peoples. That responsibility is said to arise out of the Crown's historic powers over, and assumption of responsibility for, those aboriginal peoples and out of the recognition and affirmation of existing aboriginal rights contained in s.35(1) of the Canadian Constitution (489).

But once it is accepted, as I think it must be, that aboriginal title did not survive the annexation of the Murray Islands, then there is no room for the application of any fiduciary or trust obligation of the kind referred to in Guerin or of a broader nature. In either case the obligation is dependent upon the existence of some sort of aboriginal interest existing in or over the land. Yet, as I have said, upon annexation the lands comprising the Murray Islands became Crown lands and the Crown asserted the right to deal with those lands unimpeded by any recognition of, or acquiescence in, native title.

As I have already stated, in 1939 a trust (at least in name) of the lands comprising the Murray Islands was created pursuant to s.181(1) of the Land Act 1910. The present trustee would appear to be a corporation sole, The Corporation of the Director of Aboriginal and Islanders Advancement. But the terms of the trust, which are now to be gleaned from the Land Act 1962, are inconsistent with the preservation of any form of native title and may in this respect be contrasted with the provisions of the Indian Act. The trust was created without any deed of grant from the Crown to the trustees and appears to be limited to the imposition of an obligation to control the use of the land without any title being vested in the trustees. It is, therefore, more akin to an administrative arrangement than a conventional trust. Whether or not a trust of this kind creates any enforceable rights in equity against the Crown or those appointed as "trustees" by the Crown is a question which may on some other occasion require to be answered (490), but I am prepared to assume for the purposes of argument that some form of trust has been created giving rise to enforceable obligations on the part of the Crown. As I have said, it is the Land Act 1962 which defines the nature of the trust and it seems to me that the relevant provisions of that Act assert the control of the Crown to the exclusion of any native interests in the land.

Under the Land Act 1962, the trustees may take action for the removal of trespassers, for the protection of the land or for injury to or misuse of the land (491). They may also, with the approval of the Governor in Council, make by-laws for, among other things, protecting the land from trespass, injury or misuse and regulating the use and enjoyment of the land and imposing reasonable fees and charges therefore (492). The trustees are also prohibited from permitting any person to occupy the reserved land for any purpose that is contrary to or inconsistent with the purposes for which the land was reserved (493). Further, the trustees may lease the whole or any part of the land, but only with the prior approval of the relevant Minister (494). In this respect it is relevant to note that the Governor in Council may, on the recommendation of the Minister, approve the leasing of the land for a purpose other than the purpose for which the land was reserved (495) and that, while any rents are generally to be applied solely for the purposes of the trust, the Minister does have the power to apply them for some other purpose (496). Moreover, the trustees do not have power to sell or transfer the land (497). Finally, the Governor in Council, by Order in Council, is empowered to rescind in whole or in part or amend, alter, vary or otherwise modify any Order in Council reserving and setting apart any Crown land for any public purpose (498). If the Order in Council reserving the land for a public purpose is rescinded by the Governor in Council, the Minister may order the trust to be wound up and any surplus moneys are to be remitted to the Minister to he disposed of as the Minister may direct (499).

These provisions define the parameters of the trust and they do so without any reference to any interest in the land on the part of the inhabitants of the reserve. It is clear that, in establishing a reserve, the Crown is not creating an interest in the land in anyone else which can form the subject of a fiduciary or trust obligation owed by the Crown to that other person or persons. It is merely setting aside Crown land for a particular purpose. The Crown retains absolute control over the disposition of that land and the legislation does not prevent, but expressly enables, the Crown to revoke the reserve, whereupon it once again becomes Crown land within the meaning of s.5 of the Land Act 1962 and so is available for disposal by the Crown as absolute owner just as it was before it was reserved. In dealing with reserved land in this way there is no legislative requirement imposed on the Crown to consider the interests of the inhabitants of the reserve at all.

Moreover, it does not appear that the reserve comprising the Murray islands or the trust created with respect to those lands was for the benefit of the inhabitants of the Murray Islands to the exclusion of the other aboriginal inhabitants of the State of Queensland. It has not proved possible to locate the actual terms of he proclamation issued in 1882 but the Order in Council dated 14 November 1912, which reserved the Murray Islands, did so for the use of "the Aboriginal Inhabitants of the State". Moreover, the Order in Council dated 9 September 1939, which placed the reserve under the control of trustees, did so by reference to the reserve in those terms, that is to say, it referred to the reserve as being a reserve for the use of "the Aboriginal Inhabitants of the State". In The Corporation of the Director of Aboriginal and Islanders Advancement v. Peinkinna (500), the Privy Council considered the nature of a reserve "for the Benefit of the Aboriginal Inhabitants of the State, Aurukun" which was placed under the control of the Director of Native Affairs as trustee. The Privy Council was prepared to assume, without deciding, that a public charitable trust arose by reason of the Land Act 1962 and the Orders in Council made under it reserving that land and placing it under the control of a trustee. However, their Lordships concluded that such a trust would be a trust for the benefit of the aboriginal inhabitants of the State as a class and not a trust for the benefit of the aboriginal inhabitants upon the reserve at Aurukun. That case is indistinguishable in all relevant respects from the present one and it may be observed that a trust to control land for the use of the aboriginal inhabitants of the State generally does not suggest a trust intended to protect such communal or individual interests in the land as may have been previously possessed by the inhabitants of the Murray Islands.

There is. no doubt that the initial annexation of the Murray Islands was motivated in part by a desire on the part of the Crown in right of the Colony of Queensland to protect the native inhabitants of the islands. Further, it is clear that the policy adopted by the Queensland legislature towards the native inhabitants of the Murray Islands and of Queensland in general was one of protection of their welfare and, to a certain extent, preservation of their traditional way of life (501). But the measures taken in furtherance of this policy in no way relate to native interests in land and cannot be used to found a fiduciary duty upon the Crown to deal with land in a particular way.

In the absence of any native title and in the light of the detailed legislative provisions which govern the relationship of the Crown with the aboriginal inhabitants of the State upon the basis that there is no native title or (if there is a difference) traditional rights in the land, there is, in my view, no foundation for the imposition of a fiduciary duty upon the Crown to deal with the lands comprising the Murray Islands in a manner involving the recognition of any of the rights which the plaintiffs claim. Of course, it was not suggested, nor could it be, that the Queensland legislature which, subject to any paramount Commonwealth legislation, has plenary power to deal with those lands, is under any fiduciary duty in the exercise of that power.

The plaintiffs also pursued an argument based on the Racial Discrimination Act 1975 (Cth). As I have said, under s.334(4) of the Land Act 1962 the Governor in Council may rescind an Order in Council reserving and setting apart any Crown land for any public purpose. The Murray Islands are deemed to have been so reserved and set apart under such an Order in Council: s.334 (3) Under s.334(1) the Governor in Council may grant in trust any Crown land which, in the opinion of the Governor in Council, is or may be required for any public purpose. "Public purpose" includes the benefit of aboriginal and islander inhabitants or any objects or purposes connected therewith or incidental thereto: s.5. The plaintiffs contend that by virtue of these provisions the Governor in Council may rescind the Order in Council reserving the Murray Islands for the use of the aboriginal inhabitants of the State and grant the land in trust for the benefit of the aboriginal and islander inhabitants of the Murray Islands. The grant, they say, may be to the Murray Island Council, which is a body corporate capable of holding land (absolutely or subject to trusts) under s.15(3) of the Community Services (Torres Strait) Act . To do that, the plaintiffs argue, would be unlawful under s.9(1) of the Racial Discrimination Act . Section 9(1) provides:

" It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

The human right or fundamental freedom which the plaintiffs allege would be nullified or impaired is, apparently, that identified in Mabo v. Queensland , namely, the right to own and inherit property (including the right to be immune from arbitrary deprivation of property).

The consequences of a grant in trust of the Murray Islands to the Island Council under the Land Act 1962 would include: giving to the Governor in Council an authority to exclude certain lands and improvements to the land from the grant (502) and to make certain reservations from the grant (503); an inability on the part of the trustee to lease any part of the land except with the prior approval of the relevant Minister and then only on certain conditions including that the term of the lease is not to exceed seventy-five years (504); a prohibition upon a lessee from transferring or mortgaging the lease or sub-letting without the prior approval of the Minister (505); and giving a power to the Minister to cancel a lease for breach of its terms by the lessee or where "it is desirable in the public interests so to do" without any right to compensation (506). Further, the Governor in Council say, by Order in Council, declare that land granted in trust for the benefit of aboriginal or islander inhabitants shall revert to the Crown, but only if he is authorised to do so by an Act that specifically relates to that land; in such a case, the land reverts to the Crown freed and discharged from the trusts and all encumbrances, estates or interests whatsoever and may be dealt with by the Crown as if it had never been granted (507).

At the time when argument was heard. a further Act, the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (