Mabo v Queensland - Detailed case brief, including paragraph/page references Property law: PDF

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Detailed case brief, including paragraph/page references
Property law:...

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Mabo v Queensland Area of law concerned:

Property Rights; Native Rights

Court:

Australian High Court

Date:

1991-2

Judge:

Brennan, Dawson JJ

Counsel: Summary of Facts:

Meriam people were in occupation of the Murray Islands before the first European contact. Queensland annexed Murray Islands on 10 October 1878 (exactly 4 years after Fiji.) Dominant purposes for annexation found by Moynihan J: (a) Command of the Torres Strait and the sea lane to India (b) Control of fishery industry in Torres Strait (c) The protection of shipping and shipwrecked crews (d) Extension of jurisdiction to non-British subjects and native inhabitants (e) The protection of the native inhabitants In 1882, Queensland Government ‘reserved’ Murray Island for native inhabitants.

Relief sought: Issues:

Oversimplified, main question is whether the transactions vested in the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands. [19]

Relevant Statute(s): Procedural History: Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result: Judge’s reasoning:

Comprehensive summary @ [78]

1- Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian Court This Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle w hich gives the body of our law its shape and internal consistency. Can’t question skeletal principles [25]

Crown won’t question validity of acquisition of sovereignty [30]

2- On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title in the land in that part Acquiring sovereignty 101: can either conquer, cede or occupy a terra nullius [30]

In 1879 the Meriam people became British subjects [34]

3- Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title Attorney General (NSW) v Brown (1847): rights of indigenous people were extinguished upon settlement of British. Judged by any civilised standard, such a law is unjust and must be questioned. [24]

This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher ‘in the scale of social organisation’ than the Australian Aborigines whose claims were ‘utterly disregarded’ by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not. Can be racist or can overrule the racist law [36]

There is a distinction between the Crown’s title to a colony and the Crown’s ownership of land in the colony. [43]

The term ‘tenure’ is used to signify the relationship between tenant and lord, not the relationship between tenant and land. [46]

Too late to contemplate allodial or other system of land ownership. Land in Australia is held on tenure of some kind, and titles acquired under accepted land law cannot be disturbed. [47]

Crown was treated in several cases as having radical title to all land in a territory over which it had acquired sovereignty. [47]

But it is not a corollary of the Crown’s acquisition of a radical title to

land in an occupied territory that the Crown acquired absolute benficial ownership of that land to the exclusion of indigenous inhabitants. But if the land was truly a terra nullius, the Crown would take absolute beneficial title. Radical title yes, but absolute beneficial title ONLY if a TRUE terra nullius [48]

If land were occupied by indigenous inhabitants and their rights and interests in land are recognised by common law, radical title does not extend to absolute beneficial title. A precedent- Wiltrong and Blany in Wales, (noted in [49] [48]

There is no reason why land within the Crown’s territory should not continue to be subject to native title. [50]

Re Southern Rhodesia: it is to be presumed, in the absence of express confiscation, that the conqueror has respected them and forborne to diminish or modify the rights of natives. [56]

A mere change in sovereignty does not extinguish native title to land. Calder v Attorney General (British Columbia) [57]

Native title definition: interests and rights of indigenous inhabitnats in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitnats. In my opinion, common law of Australia rejects the notion that when Crown acquired sovereignty it acquired absolute beneficial ownership of all land, and accepts that antecedent rights and interests in land possessed by indigenous inhabitants survived the change in sovereignty. Thus a burden on Crown radical title exists [58]

This is overruling some cases. To not overrule them would destroy the equality of Australian citizens before the law. The concept of the enlarged notion of terra nullius (which includes new land inhabited by ‘savages’) would be racist. [59]

4- Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests. (eg mineral rights) Sovereignty carries the power to create and extinguish private rights

and interests in land within the Sovereign’s territory. Therefore, native rights may be extinguished and the Courts cannot question the merits of this. [68]

But the exercise of a power to extinguish native title must reveal a clear and plain intention to do so. This is a result of the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests. [70]

Crown did not purport to extinguish native title in 1879. [71]

Land Act 1910 ‘permanently reserved and set apart’ the Murray Islands for ‘use of the Aboriginal Inhabitants of the State’ [72]

Native title was not extinguished by the creation of reserves nor by the mere appointment of ‘trustees’ to control a reserve where no grant of title was made. This was done to protect native title from being extinguished by alienation. [74]

It is right to say that their native title is effective as against the State of Queensland and as against the whole world unless the State, in valid exercise of its legislative or executive power, extinguishes the title. [91]

It is also right to say that the Murray Islands are not Crown land just because the land has been either reserved for or dedicated to public purposes or is subject to lease.

5- Where the Crown has validly and effectively appropriated land to itself in such a way that it is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished, to the extent of the inconsistency. A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or creates a regime of control that is consistent with enjoyment of native title. [71]

6- Native title to particular land, and relevant considerations are ascertained according to the laws and customs of the indigenous people who, by those laws and customs have a connexion with the land. It is immaterial if those laws and customs have undergone change, as long as the general nature of the connexion remains. membership of the indigenous group depends on biological descent from the indigenous people and on mutual recognition of a

particular person’s membership by that person and the elders or other authority figures of that group The only title dependent on custom which the common law will recognise is one which is consistent with the common law. Traditional rights will be respected, to the extent it does not violate common law principles. [61]

The Meriam people have clearly not lost their connexion with their land. But possible alienation of 2 acres to London Missionary Society prior to annexation as stated in [63] [62]

Native title, being recognised byt eh common law (though not as common law tenure) may be protected by such legal or equitable remedies as are appropriate. [64]

Rights and incidents of land are to be determined by the laws of the indigenous inhabitants, provided that they are not so repugnant to natural justice, equity and good conscience. [64]

7- Native title is extinguished if the clan or group, by ceasing to acknowledge those laws and observe those customs, loses its connexion with the land or on the death of the last members of the group/clan. When the tide of history has washed away any real acknowledgement of traditional law and customs, the foundation of native title has disappeared and cannot be revived. [62]

Native title cannot be acquired from an indigenous group who is not a member of the indigenous people and does not acknowledge their customs. Obviously [63]

8- Native title over any parcel of land can be surrendered to the Crown voluntarily Native title may be surrendered on purchase or surrendered voluntarily, whereupon the Crown’s radical title is expanded to absolute ownership. [63]

9- Crown becomes the absolute beneficial owner if native title is extinguished. Dawson J

The law that the Crown brought with it was the common law, and at common law, land is not the subject of absolute ownership other than by the Crown. It is the subject of tenure. 122 LHS

Thus, upon annexation the crown became absolute owner of the land and rights as others might have in it must be derived from the Crown and amount to something less than absolute ownership. 122 LHS

There is no general proposition to be found, either in law or history, that the Crown is legally bound to pay compensation for the compulsory acquisition of land or any interests in it by the exercise of sovereign rights. Although usually Crown usually compensates, they are not legally bound to do so., 126

Recognition of native interests by the Crown may be a matter of inference from all the facts, including mere acquiescence. It is obvious that if, following a change in sovereignty, the new sovereign allows native occupation and use of the land to continue undisturbed, that may afford some foundation for the conclusion that such native interests (if any) in the land as may have existed prior to assumption of sovereignty are recognised by the Crown. 127 RhS.

New native title is not a mere continuation of a title previously held. There has been a change in sovereign. If new title is to be held, the crown must accept it. But it is not continuous. 129 RHS

NZ authority is not that relevant as it is affected by the Treaty of Waitangi. 137 top

Re 90 Mile Beach (NZ): …’the rights of the Maoris to their tribal lands depended wholly on the grace and favour of Her Majesty Queen Victoria, who had an absolute right to disregard the Native title to any lands in New Zealand.’ 137

The extinction of aboriginal title does not, therefore require specific legislation. No doubt the intention of the Crown must be plain, but there is no reason why it should not be inferred… Lower threshold for extinguishing title than the majority 138 LHS

It is plain that the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land.

What was done was quite inconsistent with any recognition, by acquiescence or otherwise, of native title. Crown’s actions do not suggest recognition of native title- for him, onus is more on the natives to prove that they recognised, as opposed to the position of the majority, who said that the Crown has to be really clear in extinguishing title. 139

In my view, the conclusion is inevitable that, assuming the native inhabitants of the Murray Island to have held some sort of rights in the land immediately before the annexation of those islands, the Crown in right of the Colony of Queensland, on their annexation, exerted to the full its rights in the3 land inconsistently with and to the exclusion of any native or aboriginal rights. It did so under the law which it brought with it upon annexation. 159

The creation of aboriginal reserves was for the purpose of actually retaining the land within the control of the Crown or its agencies in order that it might be administered for the benefit of the aboriginal population of the colony. Contrast this with what the majority said 160.

In the absence of any native title… there is no foundation for the imposition of a fiduciary duty upon the Crown to deal with the lands comprising the Murray Islands in a manner involving the recognition of any of the rights which the plaintiffs claim. 169

The inhabitants do not become trespassers in their own land if those native inhabitants occupy the land with the permission of the Crown. 174

If traditional land rights are to be afforded to the inhabitants of the Murray Islands, the responsibility, both legal and moral, lies with the legislature and not with the Courts. Again, a reverse onus relative to the position of the majority. At the end...