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HIGH COURT DECISION ON MABO - (IV) DEED OF GRANT IN TRUST

As indicated at the outset of this judgment, the plaintiffs seek declaratory relief in regard to any deed of grant in trust in respect of the Islands. They say that the defendant is not "empowered" to make such a grant under the Land Act and that the making of such a grant would be unlawful by reason of ss.9 and 10 of the Racial Discrimination Act . There is an alternative claim, namely, that a deed may be granted in respect of the Islands only upon payment of "proper compensation".

Section 334(1) of the Land Act empowers the Governor in Council to grant in trust, or by Order in Council to reserve and set apart, any Crown land which is or may be required for any public purpose. For reasons already given, the Islands are not Crown land and they would have to become Crown land before s.334(1) could be brought into operation. It would be necessary therefore to rescind the Order in Council creating the existing reserve: s.334 (4).

Section 353A(1) of the Land Act contains a special provision whereby, in the case of land granted in trust for the benefit of Aboriginal or Islander inhabitants, the Governor in Council may, by Order in Council, declare that the land shall revert to the

Crown. But he may do so only if authorised by an Act of Parliament specifically relating to that land. The effect of such a declaration is that 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".

If there were a real prospect that the Governor in Council intended to make a deed of grant in trust in respect of the Islands, it would be appropriate for the Court to determine this aspect of the plaintiffs' claim to declaratory relief. But there was no evidence to this effect and the Solicitor-General denied that there was any indication of the Governor's intentions to do so. In those circumstances no justification exists for making a declaration in the terms sought even if the plaintiffs had otherwise made good their case for that relief.

That case depends upon the operation of ss.9 and 10 of the Racial Discrimination Act . But the questions raised by those sections in the present context are not the same questions decided in Mabo v. Queensland and they could not be answered without reference to factual matters, a decision about which is not before the Court. Nevertheless, the Racial Discrimination Act has a wider significance which is explored towards the end of this judgment.


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