Reconciliation and Social Justice Library

[RSJ Home] [Global AustLII Search] [RSJ Database Search]
[Table of Contents] [Previous] [Next] [Download]

HIGH COURT DECISION ON MABO - (V) POSSESSION

Possession is a conclusion of English law, a law alien to indigenous inhabitants before annexation. Therefore, before annexation the Meriam people would not have been in possession. Occupation on the other hand is a question of fact. In some cases the person in occupation is not the possessor of land, for example, where he or she is an agent of the possessor. But it may be presumed, in the absence of circumstances which show possession is in another, that the occupier of land is also in possession (655). As we have seen, the Crown could not show it had possession of occupied land after annexation.

At common law conduct required to prove occupation or possession will vary according to the circumstances including, for example, whether the claimant enters as a trespasser or as of right (656). And the nature of the land will to a large extent dictate the use that might be made of it. For example, conduct amounting to possession will be different in relation to a dwelling and to uncultivated land (657). Some land is barren and unproductive so that it cannot sustain people all the year round. It may be necessary for occupiers to seek water and sustenance elsewhere or part of the year, returning to "their" land as soon as it is possible.

These are matters which are discussed at some length by McNeil (658). It is unnecessary to pursue evidentiary matters in the present case because the nature of the occupation of the Islands by the Meriam people, already discussed in relation to traditional title, points clearly enough to possession according. to English law.

The defendant argued that the occupation enjoyed by the Meriam people today is by permission from the Crown, due to the creation of a reserve in 1882, and therefore cannot amount to possession in the relevant sense. In answer to this, first, since occupation by the Meriam people is, and was, apparent, the onus lies on the defendant to show possession is not in the occupiers. Secondly, there is no documentary evidence to prove the 1882 reserve. Assuming for the defendant that it was created, if annexation occurred in 1879 the reserve would amount to dispossession, unless the defendant can show that it and not the Meriam people acquired the right to possession on annexation. Subject to the limitation of actions and the question whether possession by the Crown was adverse, the Meriam people may well be entitled to recover possession according to the principles discussed above. If annexation occurred in 1895, the Crown in right of Queensland may have prevented the Meriam people acquiring possession on annexation. But it is unlikely that the creation of the reserve in 1882, or subsequently in 1912, affected the Meriam people's common law possession since that did not diminish enjoyment but ensured it remained with the people.


[RSJ Home] [Global AustLII Search] [RSJ Database Search]
[Table of Contents] [Previous] [Next] [Download]