Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
The plaintiffs put their claim on three bases. First, that the interests their predecessors enjoyed in the Islands prior to annexation survived acquisition by the British Crown and became a dimension of the common law ("traditional title", sometimes referred to as "native title"). Second, that those predecessors acquired a possessory title as a consequence of the operation of the common law in the new colony ("common law aboriginal title" ). The precise way in which this argument was put will need attention later in the judgment.
Third, that they could establish, as of today, local legal customary rights (520). They said that legal customs exercised by the Meriam people today, though different from common law, should prevail so long as certain conditions are met. The customs must be certain; they must have been exercised since "time immemorial" without interruption; they must be reasonable and not oppressive at the time of their inception; they must be observed as of right and not pursuant to any licence or permission granted by another; and they must not be inconsistent with any statute law (521).
This third basis of claim raises difficult questions with respect to the interruption of these rights since such a "title" rests, not on factual occupation or possession, but on the exercise of particular customs. Difficulties also arise in so far as authority supporting customary rights focuses on specific customs. Entitlement is to enjoy a particular custom rather than to continue a way of life, occupation, generally (522). It has become unnecessary to pursue these questions. Given my conclusions in regard to traditional title, I need not consider this basis of claim further. The judgment turns on conclusions as to traditional title though important questions are raised by the plaintiffs' claim to a possessory title.
The plaintiffs say that their traditional title is good against the whole world and that it continues today, "subject to the capacity of the Defendant to extinguish the same by, or pursuant to clear and plain legislation" (523). They say (and the defendant so concedes, while denying the existence of any title) that power has not been exercised to extinguish that title with respect to the Islands generally. They say further that the defendant is bound as a trustee or is under a fiduciary duty to recognise and protect the rights asserted and that the defendant is accountable in law for a breach of that trust or that obligation. As to their possessory title, the plaintiffs contend that it also is good against all the world and say that no action has been taken by the defendant to extinguish or acquire it.
Finally, the plaintiff s seek a declaration that the defendant is not empowered to make a deed of grant in trust in respect of the Islands under the Land Act 1962 (Q.) and that any such deed would be unlawful by reason of ss.9 and 10 of the Racial Discrimination Act 1975 (Cth). Alternatively, they say, such a deed may not be granted except upon payment of proper compensation.