Reconciliation and Social Justice Library

HIGH COURT DECISION ON MABO

• HIGH COURT DECISION ON MABO
  • BRENNAN J.
    • INTRODUCTION
    • EARLY CONTACT WITH EUROPEANS
    • ANNEXATION OF THE MURRAY ISLANDS
    • THE THEORY OF UNIVERSAL AND ABSOLUTE CROWN OWNERSHIP
    • THE ACQUISITION OF SOVEREIGNTY
    • RECEPTION OF THE COMMON LAW
    • THE BASIS OF THE THEORY OF UNIVERSAL AND ABSOLUTE CROWN OWNERSHIP
    • CROWN TITLE TO COLONIES AND CROWN OWNERSHIP OF COLONIAL LAND DISTINGUISHED
    • THE FEUDAL BASIS OF THE PROPOSITION OF ABSOLUTE CROWN OWNERSHIP
    • THE "PATRIMONY OF THE NATION" BASIS OF THE PROPOSITION OF ABSOLUTE CROWN OWNERSHIP
    • THE ROYAL PREROGATIVE BASIS OF THE PROPOSITION OF ABSOLUTE CROWN OWNERSHIP
    • THE NEED FOR RECOGNITION BY THE CROWN OF NATIVE TITLE
    • THE NATURE AND INCIDENTS OF NATIVE TITLE
    • THE EXTINGUISHING OF NATIVE TITLE
    • THE EFFECT OF POST-ACQUISITION TRANSACTIONS
    • DEED OF GRANT IN TRUST
    • ANSWERS TO QUESTIONS
  • DEANE J AND GAUDRON J
    • INTRODUCTION
    • (I) THE ESTABLISHMENT OF NEW SOUTH WALES
    • (II) THE INTRODUCTION OF THE COMMON LAW
    • (III) THE ENGLISH LAW OF REAL PROPERTY
    • (IV) TRADITIONAL CLAIMS TO LAND UNDER THE LAW OF A "SETTLED" COLONY
    • (V) WHAT KINDS OF PRE-EXISTING NATIVE INTERESTS WERE RESPECTED AND PROTECTED BY THE COMMON LAW
    • (VI) COMMON LAW NATIVE TITLE
    • (VII) THE ACT OF STATE ESTABLISHING NEW SOUTH WALES
    • (VIII) THE ABORIGINES AND THE LAND IN 1788
    • (IX) THE AUSTRALIAN CASES
    • (X) THE "DISPOSSESSION OF THE ORIGINAL INHABITANTS"
    • (XI) SHOULD THE PROPOSITIONS SUPPORTED BY THE AUSTRALIAN CASES AND PAST PRACTICE BE ACCEPTED?
    • (XII) THE NATURE, INCIDENTS AND LIMITATIONS OF THE COMMON LAW NATIVE TITLE OF AUSTRALIAN ABORIGINES
    • (XIII) LEGISLATIVE POWERS WITH RESPECT TO COMMON LAW NATIVE TITLE.
    • (XIV) THE ENFORCEMENT AND PROTECTION OF COMMON LAW NATIVE TITLE
    • (XV) THE ANNEXATION OF THE MURRAY ISLANDS
    • (XVI) TRADITIONAL CLAIMS TO LAND IN THE MURRAY ISLANDS
    • (XVII) POST-ANNEXATION LEGISLATION AND EXECUTIVE ACTS
    • (XVIII) RELIEF
  • DAWSON J.
  • TOOHEY J.
    • INTRODUCTION
    • THE PLAINTIFFS' CLAIM
    • THE ISSUES
    • ANNEXATION - ITS CONSEQUENCES
    • TRADITIONAL TITLE
      • (I) EXISTENCE: RECOGNITION
      • (II) EXISTENCE: REQUIREMENTS OF PROOF
      • (III) OCCUPANCY OF LAND
    • EXTINGUISHMENT OF TRADITIONAL TITLE
      • (I) THE POWER OF THE CROWN TO EXTINGUISH TRADITIONAL TITLE
      • (II) HAS THERE BEEN ANY EXTINGUISHMENT?
      • (III) STATUS OF THE ISLANDS AS CROWN LAND
      • (IV) DEED OF GRANT IN TRUST
    • FIDUCIARY DUTY
      • (I) EXISTENCE OF THE OBLIGATION
      • (II) NATURE OF THE OBLIGATION
      • (III) CONTENT OF THE OBLIGATION
    • INTERIM SUMMARY
    • COMMON LAW ABORIGINAL TITLE
      • (I) THE PLAINTIFFS' CASE
      • (II) THE RELATIONSHIP BETWEEN POSSESSION AND TITLE: DOES POSSESSION GIVE RISE TO A PRESUMPTIVE TITLE.
      • (III) EJECTMENT: THE RELATIONSHIP BETWEEN POSSESSION AND TITLE
      • (IV) DID THE CROWN HAVE A BETTER CLAIM TO POSSESSION?
      • (V) POSSESSION
      • (VI) POSSESSORY TITLE - CONCLUSIONS
    • RACIAL DISCRIMINATION ACT
    • CONCLUSION