Mabo v Queensland (No 2) HCA 23; (1992) 175 CLR 1 (3 June 1992)

By : Kingsley OkaforIgwe

Introduction

The rights of indigenous inhabitants to occupy, use, and or to possess land that they, prior, and in the aftermath of annexation or settlement, occupation or being conquered by the European powers, is referred to as, native title. It has been suggested that land that does not have an outright paramount ruler, or lands that have no recognizable laws or legal system, that are not consonant with the European legal system, or property law, may not be recognized as a sovereign nation. It was agreed, among the European nations in the 18th Century, that foreign lands, which fall within this category, would be deemed the terra nullius, in other words uninhabited lands. Although Australia has always been inhabited, at least, at the time of European contact, it was wrongly held that Australia was a terra nullius. On this basis, the colony of New South Wales was settled, even though, European settlers’ encountered indigenous inhabitants at the time of the initial settlement.

One of the central impediments to the recognition of, and the granting of native title to land, lies in the very fact that most nations whose interests were being protected and furthered most by not recognizing native title to land would be unwilling to freely relinquish that which they enjoy. This was ‘absolute title to the land’, in the right of the Crown, as in the former colonies of England.

Australia is a good example of such colonies that appear to be unwilling to recognize that indigenous people have rights to both the private, and the communal ownership of land. However, the decision in Mabo v Queensland pronounced otherwise. In the Mabo case, the High Court found that indigenous people, at least the Meriam people of the Murray Islands, against the whole of the world, are entitled to both private and communal ownership to the land. Even though the court found that radical title is still vested in the Crown, the Court also confirmed that native people are entitled to use, possess, occupy, and therefore enjoy the land in the virtue of inheritance.

This essay is in two parts. First, the exploration of the culture of the Murray Islanders, the legal arguments covered in the case, the history of the proceedings, and the decision reached in the Mabo case. Second, the analysis of the approaches taken by Justice Deane and Justice Dawson who played integral roles amongst the decision making of the High Court Justices who adjudicated in Mabo v Queensland.

History of the Murray Islands:

1 Murray Islands are part of Torres Strait Islands. Natives of the Murray Islands who occupied the Islands for many generations are refer to as the Meriam people. In, or about the end of the 18th century, contact occurred for the first time, between the Murray Islanders and the Europeans. The Meriam people have inhabited the Islands for generations before any European contact was made. The lifestyle of the Meriam people is a communal one. Social interaction is an essential feature of the Meriam peoples’ life. Land was used predominantly for the cultivation of garden produce as well as for ceremonial and ritual purposes.

Meriam people place great emphasis on prowess to work the land due to the value attached to farm produce. 2 The produce gained by use of the land for farming, whilst used on daily basis for sustenance, was equally important for ceremonies, such as marriages and adoption. Gardening and hunting involve a great deal of work and therefore is an important and integral part of the Meriam people’s culture, in the sense that it provides a vital plank for social interaction as well as being a medium for the exchange of goods, services and ideas. Therefore he or she who has the right technique or expertise to work the land and to produce abundant harvests gains considerable status and respect from his or her peers. 3 Traditionally the Island men would prepare the land and the women would cultivate the soil. 4 Men often stood watch while women worked, to repel any possible attack from unwelcome and unsolicited suitors from other Islands. 5 In the less fertile areas the Islanders commonly fished, collected shellfish and gathered native plants. The hunting of sea animals such as dugong and turtles was a significant part of their existence.

European contact:

6 It was recorded that in 1834, there were two British castaways who were rescued in the Island of Mer, and resided in that Island until 2 years later. The discovery of pearl shell in 1861 marked the turning point in the chain of events that followed soon after. As a consequence of this discovery, the 7 first pearling station was established on Warrior Island in 1868. In 1871, the 8 London Missionary Society came to the Murray Islands and in 1877 relocated its Torres Strait mission to Mer.

It followed that the Murray Islands were subsequently annexed to the Colony of Queensland. 9 The Governor in Council created indigenous reserves on the Islands, and a system of indirect rule was established on the Island. This successfully brought the Islands into the Crown’s dominion.

Annexation of the Murray Islands.

10 On October 10, 1878 the ruling English Monarch “passed Letters Patent” calling for the “rectification of the Maritime Boundary of the Colony of Queensland”. 11 Authority derived from the Letters Patent allowed the annexation of the Murray Islands. 12 Empowered by this authority, the Governor of Queensland successfully annexed the Murray Islands into the Crown dominion, and therefore declared that the Islands were part of the Colony of Queensland and consequently, liable to the laws of Queensland. 13 As a result of the annexation, Queensland Legislature on 21 July 1879 passed a corresponding legislation (the Queensland Coast Islands Act) rubber-stamping the concluded annexation. It was reported that 14 in September of 1879 Captain Pennefather visited the Islands for the purpose of announcing to them that the Islands were now annexed and that they, (the inhabitants) would be subject to British laws.

It appears that the Queensland Government in 1882 decided to keep the Murray Islands for its traditional inhabitants. 15 At this time the London Missionary Service was authorized to lease 2 acres on Mer by the Queensland Government to enable them to be responsible for dispute resolution and general law and order on the islands. It was noted that in the immediate aftermath of the reserve creation, the Queensland Government deported some non-indigenous people from the Islands who were considered as trespassers by the Meriam people.

15 It appears that the Queensland Government authority in Thursday Island believed the application of Queensland law in Murray to be difficult, as the Acting Government Resident in Thursday Island expressed his fears and doubts about the workability of the current Queensland Laws in the Murray Islands in his official communication with the Queensland Chief Secretary in 1886. He stated that every land in the Islands had a rightful owner. 16 He also stated, “every grove or single tree of any value has its proper and legitimate hereditary owner…to disturb these rights, great care would have to be exercised and the natives recompensed for any loss that they might suffer through deprivation”.

Mabo v Queensland (1)

17 In 1992, Eddie Mabo, a member of the Meriam community (the native inhabitants of the Murray Islands), together with four other Meriam plaintiffs, commenced a legal challenge against the State of Queensland in the High Court. The Plaintiffs sought to establish ownership of the Islands by the Meriam people, by virtue of inheritance, and therefore urged that the Court acknowledge their rights to occupy, use, and therefore to enjoy the Islands. The case was twofold. First, upon the commencement of the case in the High Court, Queensland Parliament enacted legislation- Coast Islands Declaratory Act 1985(Q.) purporting to dispose of, and therefore to invalidate any native title, interests, or whatsoever that the plaintiffs may have had in those Islands. Mr. Mabo and his fellow plaintiffs challenged the legislation in the High Court. 18 The High Court ruled against the Queensland Government by citing that the legislation is invalid because of inconsistency with the Racial Discrimination Act 1975(Cth).

19 The Racial Discrimination Act was enacted in 1975 in pursuant of Australian Government obligation under the International Convention on the Elimination of All Forms of Racial Discrimination. The High Court held that the Queensland legislation discriminated against the people of the Murray Islands. In light of this ruling, the Queensland Act was incompatible with the Racial Discrimination Act and therefore, in effect, invalidated. Under the Australian Constitution, Commonwealth laws may override any State Law that is inconsistent with the laws of the Commonwealth. The Queensland retrospective legislation intended to depose native interests to land, and thus failed in its purpose due to this inconsistency pursuant to the Racial Discrimination Act.

Mabo (2)

The Queensland Supreme Court conducted a series of hearings in Brisbane, the Murray Islands and Thursday Island. The hearings, more or less were concerned with fact-finding. The hearings went on for 67 days, and upon conclusion of this undertaking the case was returned to the High Court for legal argument.

In Mabo v Queensland, the Defendant, in right of the Crown claimed that both radical title and beneficial ownership of the Murray Islands was vested in the Crown from the time the Islands were annexed to Queensland, in 1879. 20 The Court held that the Meriam people held beneficial ownership of the Islands, and that such title survived annexation with relevance to customary laws. 21 This Court ruling confirmed the existence of native title and, that the Meriam people possess the right to own property. The Court also recognized that the indigenous interests on the Murray Islands was communal and, and therefore protected by the Racial Discrimination Act, and that, in view of the fact that it was protected by an Act of Parliament, was recognized under common law. As a consequence of this ruling, the proposition that Australia was a terra nullius (uninhabited land) at the time of British settlement in 1788 was seriously defeated.

22 The High Court confirmed that the Crown obtained radical title to the land when Britain claimed Australia, but did not gain beneficial ownership of the land, and therefore, the right of the aboriginal inhabitants was preserved.

However, this right can still be extinguished through consistent legislation. The benchmark for such extinguishments is validity, plainness and compatibility of such legislation to pre-existing Commonwealth laws or constitution, as stated by the High Court.

What then would happen to persons who hold native title to land should the government in exercise of its duty, validly extinguish native title?

Fiduciary.

23 The case also raised issues whether government, states, territories, or federal are duty bound to act in the interest of Aboriginal people when lands that is subject to native title is in issue. 24 In Guerin v The Queen (1984), the Supreme Court of Canada held that the government of Canada owned a fiduciary duty to native people, to take appropriate steps that would safeguard indigenous interests in dealings with land where native title may be extinguished. 25 The Court in Guerin asserted that aborigines’ title to native land is a legal right that existed before assertion of sovereignty over the Colonies by Britain. 26 The Court therefore, stated that the fiduciary obligation is unavoidable as a result of government power to extinguish native titles, or to alienate land through validly legislated scheme. 27 These factors, the Court said, placed fairness obligation on the Crown, or its agents when dealing with land that involve native claim. Fundamental fairness and equity is therefore the basis for fiduciary obligation. It seeks to ensure that the Indigenous people or those that have indigenous interests to land are not shortchanged in their dealing with the Governments and, or in dealings with third parties. In Mabo, Toohey J., held the view that if the Crown has the power to extinguish, and, or to impair native title to the land, the Crown therefore is duty bound to ensure that equity prevails in any event.

Dawson J. disagrees with Dean J and other Justices.

Deane J.

It was believed that the land in the Australian colonies was ownerless and therefore available for acquisition by England who settled the territory. In so doing, the Crown was assumed to have acquired radical title to the land. 28 This theory of Crown’s radical (also knows as absolute title) ownership of land was developed after the Norman Conquest where it was believed that the King acquired all the land in the Kingdom. Deane J., was of the view that although, upon colonial settlement in Australia, the radical title was vested in the Crown, the only purpose for taking such procedure was to enable the establishment of English property law in a newly acquired Colony. 29 Deane J., relied on the decisions of the Privy Council, in Re Southern Rhodesia, see also Amodu Tijani v. Secretary, Southern Nigeria (1921) to argue that propitiatory interests which existed under native law or customs before conquest or settlement was to be respected in the absence of any express expropriation or extinguishments through legislated scheme.

30 Therefore, Deane J., asserted that, as the factual evidence shows, there is no law in Queensland that expressly extinguished native interests to the land, and that the ‘Imperial Letters Patent and Order in Council of 6 June 1859 (303)’ which carved out the Colony of Queensland from New South Wales, did nothing to extinguish native title. From the time of the establishment of the Colony of New South Wales in 1788, till the present day, no legislation has been enacted explicitly to extinguish native interests in the land nor has this occurred in Queensland. 31 The provisions of the Crown Lands Alienation Act 1876 (Q.) did not extinguish native title, rather it served the purpose of preserving native interests in the land, native customs and native laws. This preservation was strengthened by the creation of Aboriginal reserves by the Queensland Government, Deane J., denotes.

32 The doctrine of domestic law in Queensland and that of New South Wales, as well as the common law of England, provides for the preservation and protection of pre-existing native interests in the land at the time of the annexation of the Murray Islands to the Colony of Queensland. Deane J., justified these statements by reference to the applicable section of the Land Act 1962(Q). 33 Section 5, Land Act 1962(Q). states that land reserved for use by the public, is not Crown land. For the purpose of this Act, land preserved for public purposes includes Aboriginal reserves. 34 In 1912, the Murray Islands were permanently reserved by the Governor in Council for the use of the native inhabitants of the State.

35 Deane J., therefore was satisfied that although radical title to the land was vested in the Crown, that entitlement however, does not confer beneficial ownership of the land to the Crown, but to the indigenous inhabitants with reference to native laws and customs, and were protected under common law.

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Dawson J.

On the other hand, Dawson J., towed a different line in contrast to Deane’s view. 36 Dawson was satisfied that by the virtue of Crown assertion of sovereignty over the Colony, and the creation of reserves that this excluded native title and resulted in extinguishments of any usufructuary rights that may have existed before annexation.

37 Moreover, he suggested that native title does not exist in the absence of any recognizable system of land ownership that is consonant with the European model. The argument that there were no recognizable laws in the Colony prior to the British settlement in Australia appears the opposite of the conclusion reached by Justice Burton of the New South Wales Supreme Court in 1836. Justice Burton “concluded that prior to settlement the Aborigines were entitled to be regarded as a free and independent people”. 38

Could it be that the “free and independent” native people lost independence upon assertion of dominion by the Crown?

39 The creation of reserves, Dawson argues, was to further Crown’s dominion over the land, and therefore would not be interpreted as a concession of native title to land, or as a recognition that such title exits.

40 In other words it does not follow from the decision of other Justices that the Crown, upon assertion of sovereignty does not gain beneficial ownership of the land, but radical title. In fact, it can be strongly argued that Dawson is of the opinion that the Crown did acquire beneficial ownership as well as radical title over the land under English law that it brought with it. 41 Beneficial ownership of the land, Dawson J., said, could be ascertained through the deeds of the Crown, for example, assertion of sovereignty over the Colony. This on its own recognized no native title, Dawson declared. 42 Dawson argued that lands reserved for the use of the native inhabitants was only a good will, a permissive occupancy by the Crown that allowed the indigenous population to use the land. 43 He argued that from the onset, the Crown through legislated schemes that appear to be inconsistent with any native or communal rights to land controlled the native reserves.

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It goes to show that Dawson considered that native title to land does not subsist at all, and that the native inhabitants of the land have no right to remain on the land in virtue of inheritance if the Crown elects to alienate the land for other purposes. Dawson stated, as opposed to the consideration of Deane, that the reserves created for the use of the indigenous people should not be misinterpreted as an intention of the Crown to preserve native rights that do not subsist.

44 The fact that the Murray Islanders were allowed to remain on the land by the Crown, similar to the permission given by the Crown to other indigenous people all over the Colony to remain on the land, removes any ambiguity that these reservations may have created. 45 The permission, Dawson argues, was consistent as a matter of the Crown’s assertion of uninterrupted dominion over the land, but was incompatible with any claim that native title was preserved through the creation of reserves. Dawson conflicted with the Racial Discrimination Act 1975 (Cth) in which the plaintiffs based some of their arguments that they have been discriminated against, on the basis of their ethnic origin. 45 He considered the Act to have no application in this matter given that s.334 (4) of the Land Act 1962(Q). provides that the Governor in Council may annul any Crown land that has been set-aside for public purpose. In view of the fact that Aborigines reserves were set-aside for the aforementioned purpose, Dawson J., argues, the plaintiffs’ claim of racial discrimination is baseless.

46 Dawson J., was not satisfied by the argument of the plaintiffs that their human rights or fundamental freedoms to own or inherit property would be rescinded or damaged by the Crown’s action. In light of this line of argument, Dawson J., argued that any proprietary right that the plaintiffs may have had in land had been extinguished by the Crown upon annexation.

47 Dawson J., therefore refused to grant any of the declarations sought by the plaintiffs for the reasons that he expressed in the present case, more importantly, that the plaintiffs, and those that lived before them since annexation, lost any interest that they might have had on the land, but were permitted to remain on the land not on basis that native title were recognized by the Crown, but because of the reserves created by the Crown in pursuant to legislation.

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Conclusion

In conclusion, the judgment in Mabo v Queensland has set an important turning point in Australian jurisprudence, in the sense that the idea that the Crown possess beneficial title to the land has been seriously wounded. More importantly, the principle that Australia was a terra nullius prior to 1788 settlement by Britain has been voided by the Mabo case. The view of the High Court that native title to land survived annexation by the Crown would indicate that independence of Australian indigenous people might have survived annexation. As stated by Justice Burton in 1836, Aborigines were free and independent people prior to the acquisition of sovereignty by the Crown, therefore their entitlement to land that they inhabited prior to the Crown claim of dominion should not be abrogated by a mere annexation of the territories.

The fact that there were indigenous inhabitants on the Colony prior to settlement and subsequent annexation is good enough to satisfy any doubts or argument, and would demonstrate that those who inhabit the land first are entitled against the whole of the world to possess, use, occupy and enjoy the land. Although the High Court ruled against the Queensland Coast Islands Declaratory Act 1985 with reference to inconsistency with the Racial Discrimination Act, the same High Court confirmed that native title could still be extinguished through consistent, and unambiguous legislation. It would appear that native title is therefore liable to extinguishments. In view of this risk of extinguishments, every effort should be made to protect the rights of those whose interests to their land may be extinguished by the Crown through legislation. As the Court confirmed the sovereignty of the Crown, it is imperative that the government receive with a sense of responsibility, fiduciary obligation to ensure that in any dealing, where native title may be threatened, that the interest of the titleholders are at best, protected.

Dawson J., who dissented with the opinion of the other Justices in the present case, was of the view that native title did not survive annexation. He argued that any interests to the land that the indigenous population may had had was destroyed by the Crown’s assertion of sovereignty. It followed that he did not consider as inalienable, the right to own or to inherit property, as he argued that those rights even if they previously existed, as the plaintiffs claimed, was lost at the moment of annexation of the Murray Islands. These rights are fundamental human rights, as well as legal rights and were confirmed as inalienable by the other Justices of the High Court who adjudicated along side Dawson J., in the present case.

Bibliography:

Brennan, Gerard, ‘ Aboriginal Land Claims- an Australian Perspective’ (1995)

Charles Sturt University, ‘Indigenous Australian Case Study: Torres Strait Mer (Murray Island) and Eddie ‘Koiki’ Mabo’

Crommelin, Michael, ‘ Mabo: The Decision and the Debate’

Delgamuukw v Her Majesty the Queen in Right of the Province of British Columbia and the Attorney –General of Canada (1987)

Koppenol G J, ‘ The Evolution of Native Title in The High Court of Australia’ (2003)

Mabo v Queensland (1992) 107 ALR 1

Moore, Penelope’ Land, Rights, Law: Issues of Native Title’ (1998)

Reynolds, Henry,’ After Mabo, What About Aboriginal Sovereignty?’(1996) Australian

Humanities Review

Rush, Stuart, ‘Aboriginal Title and The State’s of Fiduciary Obligations’ (1999)

Saunders, Cheryl ‘ Blurring Distinctions., A review of Henry Reynolds’s Aboriginal Sovereignty’ (1996) Australian Humanities Review



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