Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
The Letters Patent authorised the Governor of Queensland by Proclamation -
" to declare that, from and after a day to be therein mentioned, the said Islands shall be annexed to and form part of Our said Colony. Provided always that Our said Governor issues no such Proclamation as aforesaid until the Legislature of Our said Colony of Queensland shall, on the day aforesaid, become part of Our said Colony, and subject to the laws in force therein. Provided also that the application of the said laws to the said Islands may be modified either by such Proclamation as aforesaid, or by any law or laws to be from time to time passed by the Legislature of Our said Colony for the government of the Islands so annexed."
The Queensland Legislature passed the requisite law ( The Queensland Coast Islands Act of 1879 ) and, on 21 July 1879 at Brisbane, the Governor of Queensland by Proclamation declared -
" that from and after the first day of August, in the year of our Lord one thousand eight hundred and seventy-nine, the Islands described in the Schedule (which followed the Letters Patent and the Act) shall be annexed to and become subject to the laws in force therein."
The "most dominant" of the purposes for which the Torres Strait islands were annexed were found by Moynihan J. to have been:
" (a) command of Torres Strait and the sea lane to India; (b) control of the fishery industry in Torres Strait including the pearl-shell industry; (c) the protection of shipping and ship-wrecked crews; (d) the extension of jurisdiction to non-British subjects and the native inhabitants of the islands; (e) the protection of the native inhabitants of the islands".
And, in Wacando v. The Commonwealth (3), Gibbs C.J. noted Professor Cumbrae-Stewart's view that the occasion for the passing of the Letters Patent was that the inhabitants of some of the islands had no protection against violence and that the islands provided bases for those intent on evading Queensland's revenue and immigration laws. The acquisition of beneficial ownership of land by the Crown does not appear to have been among the purposes of the annexation entertained by either the Queensland of the Imperial Government.
In September 1879, Captain Pennefather on the instructions of H. M. Chester visited the Murray Islands where (as he reported) he "mustered the natives" and informed them "that they would be held amenable to British law now the island was annexed". He also noted:
" The Chief acts as magistrate, he has a staff of 10 or 12 men as policemen, they have built a church and courthouse of which they are very proud, there is also a very good house belonging to the London Missionary Society this island being the headquarters for the mission in these waters."
The system of local administration, established prior to annexation, proved to be tyrannous in its operation and, in October 1882, Captain Pennefather reported that he had dismantled it. (It appears from later history, however, that Harry, the Mamoose, continued to exercise considerable authority.) At the same time, he reported:
" The natives are very tenacious of their ownership of the land and the island is divided into small properties which have been handed down from generation to generation, they absolutely refuse to sell their land at any price, but rent small portions to the beche-de-mer men and others. These natives, though lazy like all Polynesians on their islands, build good houses and cultivate gardens, they are a powerful intelligent race and a white man is as safe if not safer residing amongst them, as in Brisbane."
Moynihan J. found that there was apparently no concept of public or general community ownership among the people of Murray Island, all the land of Murray Island being regarded as belonging to individuals of groups.
In about February 1882, the Queensland Government "reserved" Murray Island for native inhabitants. In the same year, a special lease of 2 acres on Mer was granted by the Queensland Government to the London Missionary Society, which had assumed some responsibility for law and order and for the peaceful resolution of disputes. Shortly after the Reserve was created, the Queensland authorities, at the request of the Meriam people, "removed a number of trespassers" from the Islands.
In 1885, the Hon. John Douglas, by then Government Resident at Thursday Island, went to the Murray Islands to arrange for the eviction of "intruders" (South Sea Islanders) in order to ensure that "the Murray Islanders will have Murray Island to themselves". He successfully negotiated the departure of the intruders. He found Harry, "the Chief or primate of Murray Island", to be a "benignant despot ... (whose) position is respected."
in 1886, the Acting Government Resident at Thursday Island reported to the Chief Secretary of Queensland on the application of Queensland law:
" I do not see how it will be possible to administer these islands under the present laws of Queensland, more especially as touching the land question, and the tenure under which the native races are to be allowed to hold the land they own. There is no doubt that if every acre has not a reputed owner (and I am inclined to think every acre has) but every grove or single tree of any value has its proper and legitimate hereditary owner. To disturb these rights, great care would have t be exercised and the natives recompensed for any loss that they might suffer through deprivation."
By 1891 the headquarters of the London Missionary Society had been moved from the Murray Islands. Later, Douglas, in a report on a visit to the Murray Islands, described the system of government then in place:
" The secular government is conducted by "Harry", the recognised chief or headman who is assisted in his administration by four officers, oar "policemen" so called. They are recognised by me, and they assist to keep the peace when it is necessary that their authority should be invoked, which is not often.
They receive a small annual honorarium, and they are privileged to wear a uniform. "Harry" has a whaleboat, presented to him by the Government, the "policemen" man this boat. "William" a native of New Zealand, is the head of the spiritual or theocratic government."
Douglas recommended that a teacher and adviser be appointed to reside on the islands. John Stuart Bruce took up an appointment to that office in October 1892 and remained there until January 1934.
The "system of self-government ... as instituted by the late Hon. John Douglas, C.M.G." was described by the Chief Protector of Aboriginals in Queensland in his Annual Report for 1907 as follows:
" The Governing body consists of the native chief or `Mamoose', assisted and advised by the councillors or elders of the village, with a staff of native police to uphold his authority and to keep order among the inhabitants or visitors.
The European school teacher acts as clerk and treasurer of the native court, assisting with suggestion or advice when requested, but otherwise has no authority to interfere in the internal management of affairs.
The Mamoose acts as a police magistrate and governor, with power to deal summarily with offences and breaches of local regulations, and is directly responsible for the behaviour and cleanliness of this village to the Government Resident and Police Magistrate at Thursday Island. He may inflict punishment by fine or imprisonment upon minor offences, but misdemeanours and serious offences must be reserved for the bench at Thursday Island. The councillors attend at the courthouse to assist the Mamoose with advice and, in order of seniority, may act on his behalf during his absence. They also meet to confer monthly with the Mamoose upon any questions concerning the conduct of affairs.
The native island police, under a native sergeant, are responsible to the Mamoose for the good behaviour of the inhabitants, &c., and may arrest and lock up offenders till the next meeting of court. They have also to inspect and see that each householder keeps his premises and grounds clean, and that the portion of the public road adjacent to his residence is kept in good repair and order; also that the public properties (coconut-trees, fish-traps, &c.), and buildings (court-house, lock-up, school-house, &c.) are not damaged or destroyed.
The European teacher resident upon the island acts as clerk of the court and registrar of births, marriages, and deaths, keeping all books and records, and also as treasurer, keeping an account and taking charge of all collections from fines, taxes upon dogs, &c., the Mamoose having authority to expend all such collections upon public improvements, repairs, &c."
It appears from reports by Mr Bruce that, from the end of the 19th century, the Mamoose's court entertained cases arising from disputes over land or land boundaries.
When an anthropological expedition from Cambridge visited the Islands in 1898 they found that -
" Queensland has not affected native land tenure which is upheld in the Court of the Island. In a few instances it is not impossible that English ideas, especially of inheritance are making themselves felt. There is no common land and each makes his own garden on his own land at his own convenience."
The Island Court, according to Moynihan J., sought "to achieve a consistent application of certain basic principles" although his Honour went on to say 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."
Although there was a clear insistence on exclusive possession by the "owners" of particular blocks of land and a general expectation that land would be passed on patrilineally, his Honour thought that"
" 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. This was easier done if the claim had the appearance of certain expected characteristics."
It would not be surprising to find that land disputes in a small community were settled by a consensus which is arrived at after consideration of a variety of factors. Strict legal rules might have been disruptive of community life.
Without pausing to enquire into the legal support for the "system of self-government" instituted by Douglas of for the jurisdiction of the Island Court, it appears that the Meriam people came peacefully to accept a large measure of control by Queensland authorities and that officials of the Queensland Government became accustomed to exercise administration authority over the Murray Islands. Formal annexation had been followed by an effective exercise of administrative power by the Government of Queensland.
In 1894, some doubts had arisen in the Colonial Office as to the legality of the annexation of the islands included in the 1879 Letters Patent to Queensland. Queensland had been separated from New South Wales and erected into a Colony pursuant to The New South Wales Constitution Act, 1855 (Imp.) (4) by Letters Patent of 6 June 1859 and Order in Council of the same day. The boundaries of the new colony were fixed, the Colony was granted a constitution with the laws of Queensland on separation. The doubts which arose in the Colonial Office related to the legality of incorporating new territory into a colony with the representative institutions once the boundaries of the colony were fixed by or under Imperial legislation. To settle these doubts, the Colonial Boundaries Act 1895 (Imp.) (5) was enacted. As this Court held in Wacando , if the Queensland Coast Islands Act 1879 did not suffice to effect the incorporation of the Murray Islands into Queensland either by its own force or by satisfying a condition bringing the Letters Patent of 1879 into operation), the requisite Imperial legislative authority could be found in the Colonial Boundaries Act.
With this brief conspectus of the history of the Murray Islands, we may now turn to an examination of the effect of annexation on the legal rights of the members of the Meriam people to the land of the Murray Islands.