Mabo v Queensland (no 2) Hca 23; (1992) 175 Clr 1 (3 June 1992)

Mabo v Queensland (No 2) HCA 23; (1992) 175 CLR 1				placed fairness obligation on the Crown, or its agents
(3 June 1992)				when dealing with land that involve native claim.
By : Kingsley OkaforIgwe				Fundamental fairness and equity is therefore the basis
Introduction				for fiduciary obligation. It seeks to ensure that the
The rights of indigenous inhabitants to occupy, use, and				Indigenous people or those that have indigenous
or to possess land that they, prior, and in the aftermath				interests to land are not shortchanged in their dealing
of annexation or settlement, occupation or being				with the Governments and, or in dealings with third
conquered by the European powers, is referred to as,				parties. In Mabo, Toohey J., held the view that if the
native title. It has been suggested that land that does				Crown has the power to extinguish, and, or to impair
not have an outright paramount ruler, or lands that				native title to the land, the Crown therefore is duty
have no recognizable laws or legal system, that are				bound to ensure that equity prevails in any event.
not consonant with the European legal system, or				Dawson J. disagrees with Dean J and other Justices.
property law, may not be recognized as a sovereign				Deane J.
nation. It was agreed, among the European nations in				It was believed that the land in the Australian colonies
the 18th Century, that foreign lands, which fall within this				was ownerless and therefore available for acquisition
category, would be deemed the terra nullius, in other				by England who settled the territory. In so doing, the
words uninhabited lands. Although Australia has always				Crown was assumed to have acquired radical title to
been inhabited, at least, at the time of European				the land. 28 This theory of Crown’s radical (also
contact, it was wrongly held that Australia was a terra				knows as absolute title) ownership of land was
nullius. On this basis, the colony of New South Wales				developed after the Norman Conquest where it was
was settled, even though, European settlers’				believed that the King acquired all the land in the
encountered indigenous inhabitants at the time of the				Kingdom. Deane J., was of the view that although,
initial settlement.				upon colonial settlement in Australia, the radical title
One of the central impediments to the recognition of,				was vested in the Crown, the only purpose for taking
and the granting of native title to land, lies in the very				such procedure was to enable the establishment of
fact that most nations whose interests were being				English property law in a newly acquired Colony. 29
protected and furthered most by not recognizing				Deane J., relied on the decisions of the Privy Council, in
native title to land would be unwilling to freely relinquish				Re Southern Rhodesia, see also Amodu Tijani v.
that which they enjoy. This was ‘absolute title to				Secretary, Southern Nigeria (1921) to argue that
the land’, in the right of the Crown, as in the former				propitiatory interests which existed under native law or
colonies of England.				customs before conquest or settlement was to be
Australia is a good example of such colonies that				respected in the absence of any express
appear to be unwilling to recognize that indigenous				expropriation or extinguishments through legislated
people have rights to both the private, and the				scheme.
communal ownership of land. However, the decision in				30 Therefore, Deane J., asserted that, as the factual
Mabo v Queensland pronounced otherwise. In the				evidence shows, there is no law in Queensland that
Mabo case, the High Court found that indigenous				expressly extinguished native interests to the land, and
people, at least the Meriam people of the Murray				that the ‘Imperial Letters Patent and Order in
Islands, against the whole of the world, are entitled to				Council of 6 June 1859 (303)’ which carved out the
both private and communal ownership to the land.				Colony of Queensland from New South Wales, did
Even though the court found that radical title is still				nothing to extinguish native title. From the time of the
vested in the Crown, the Court also confirmed that				establishment of the Colony of New South Wales in
native people are entitled to use, possess, occupy, and				1788, till the present day, no legislation has been
therefore enjoy the land in the virtue of inheritance.				enacted explicitly to extinguish native interests in the
This essay is in two parts. First, the exploration of the				land nor has this occurred in Queensland. 31 The
culture of the Murray Islanders, the legal arguments				provisions of the Crown Lands Alienation Act 1876 (Q.)
covered in the case, the history of the proceedings,				did not extinguish native title, rather it served the
and the decision reached in the Mabo case. Second,				purpose of preserving native interests in the land,
the analysis of the approaches taken by Justice				native customs and native laws. This preservation was
Deane and Justice Dawson who played integral roles				strengthened by the creation of Aboriginal reserves by
amongst the decision making of the High Court				the Queensland Government, Deane J., denotes.
Justices who adjudicated in Mabo v Queensland.				32 The doctrine of domestic law in Queensland and
History of the Murray Islands:				that of New South Wales, as well as the common law
1 Murray Islands are part of Torres Strait Islands.				of England, provides for the preservation and
Natives of the Murray Islands who occupied the Islands				protection of pre-existing native interests in the land at
for many generations are refer to as the Meriam				the time of the annexation of the Murray Islands to the
people. In, or about the end of the 18th century, contact				Colony of Queensland. Deane J., justified these
occurred for the first time, between the Murray				statements by reference to the applicable section of
Islanders and the Europeans. The Meriam people have				the Land Act 1962(Q). 33 Section 5, Land Act 1962(Q).
inhabited the Islands for generations before any				states that land reserved for use by the public, is not
European contact was made. The lifestyle of the				Crown land. For the purpose of this Act, land
Meriam people is a communal one. Social interaction is				preserved for public purposes includes Aboriginal
an essential feature of the Meriam peoples’ life.				reserves. 34 In 1912, the Murray Islands were
Land was used predominantly for the cultivation of				permanently reserved by the Governor in Council for
garden produce as well as for ceremonial and ritual				the use of the native inhabitants of the State.
purposes.				35 Deane J., therefore was satisfied that although
Meriam people place great emphasis on prowess to				radical title to the land was vested in the Crown, that
work the land due to the value attached to farm				entitlement however, does not confer beneficial
produce. 2 The produce gained by use of the land for				ownership of the land to the Crown, but to the
farming, whilst used on daily basis for sustenance, was				indigenous inhabitants with reference to native laws
equally important for ceremonies, such as marriages				and customs, and were protected under common law.
and adoption. Gardening and hunting involve a great				8
deal of work and therefore is an important and integral				Dawson J.
part of the Meriam people’s culture, in the sense				On the other hand, Dawson J., towed a different line in
that it provides a vital plank for social interaction as				contrast to Deane’s view. 36 Dawson was
well as being a medium for the exchange of goods,				satisfied that by the virtue of Crown assertion of
services and ideas. Therefore he or she who has the				sovereignty over the Colony, and the creation of
right technique or expertise to work the land and to				reserves that this excluded native title and resulted in
produce abundant harvests gains considerable status				extinguishments of any usufructuary rights that may
and respect from his or her peers. 3 Traditionally the				have existed before annexation.
Island men would prepare the land and the women				37 Moreover, he suggested that native title does not
would cultivate the soil. 4 Men often stood watch while				exist in the absence of any recognizable system of
women worked, to repel any possible attack from				land ownership that is consonant with the European
unwelcome and unsolicited suitors from other Islands. 5				model. The argument that there were no recognizable
In the less fertile areas the Islanders commonly fished,				laws in the Colony prior to the British settlement in
collected shellfish and gathered native plants. The				Australia appears the opposite of the conclusion
hunting of sea animals such as dugong and turtles was				reached by Justice Burton of the New South Wales
a significant part of their existence.				Supreme Court in 1836. Justice Burton “concluded
European contact:				that prior to settlement the Aborigines were entitled to
6 It was recorded that in 1834, there were two British				be regarded as a free and independent people”. 38
castaways who were rescued in the Island of Mer,				Could it be that the “free and independent”
and resided in that Island until 2 years later. The				native people lost independence upon assertion of
discovery of pearl shell in 1861 marked the turning point				dominion by the Crown?
in the chain of events that followed soon after. As a				39 The creation of reserves, Dawson argues, was to
consequence of this discovery, the 7 first pearling				further Crown’s dominion over the land, and
station was established on Warrior Island in 1868. In				therefore would not be interpreted as a concession of
1871, the 8 London Missionary Society came to the				native title to land, or as a recognition that such title
Murray Islands and in 1877 relocated its Torres Strait				exits.
mission to Mer.				40 In other words it does not follow from the decision
It followed that the Murray Islands were subsequently				of other Justices that the Crown, upon assertion of
annexed to the Colony of Queensland. 9 The				sovereignty does not gain beneficial ownership of the
Governor in Council created indigenous reserves on				land, but radical title. In fact, it can be strongly argued
the Islands, and a system of indirect rule was				that Dawson is of the opinion that the Crown did
established on the Island. This successfully brought the				acquire beneficial ownership as well as radical title over
Islands into the Crown’s dominion.				the land under English law that it brought with it. 41
Annexation of the Murray Islands.				Beneficial ownership of the land, Dawson J., said, could
10 On October 10, 1878 the ruling English Monarch				be ascertained through the deeds of the Crown, for
“passed Letters Patent” calling for the				example, assertion of sovereignty over the Colony.
“rectification of the Maritime Boundary of the				This on its own recognized no native title, Dawson
Colony of Queensland”. 11 Authority derived from				declared. 42 Dawson argued that lands reserved for
the Letters Patent allowed the annexation of the				the use of the native inhabitants was only a good will,
Murray Islands. 12 Empowered by this authority, the				a permissive occupancy by the Crown that allowed
Governor of Queensland successfully annexed the				the indigenous population to use the land. 43 He argued
Murray Islands into the Crown dominion, and therefore				that from the onset, the Crown through legislated
declared that the Islands were part of the Colony of				schemes that appear to be inconsistent with any
Queensland and consequently, liable to the laws of				native or communal rights to land controlled the native
Queensland. 13 As a result of the annexation,				reserves.
Queensland Legislature on 21 July 1879 passed a				9
corresponding legislation (the Queensland Coast Islands				It goes to show that Dawson considered that native
Act) rubber-stamping the concluded annexation. It was				title to land does not subsist at all, and that the native
reported that 14 in September of 1879 Captain				inhabitants of the land have no right to remain on the
Pennefather visited the Islands for the purpose of				land in virtue of inheritance if the Crown elects to
announcing to them that the Islands were now				alienate the land for other purposes. Dawson stated,
annexed and that they, (the inhabitants) would be				as opposed to the consideration of Deane, that the
subject to British laws.				reserves created for the use of the indigenous people
It appears that the Queensland Government in 1882				should not be misinterpreted as an intention of the
decided to keep the Murray Islands for its traditional				Crown to preserve native rights that do not subsist.
inhabitants. 15 At this time the London Missionary				44 The fact that the Murray Islanders were allowed to
Service was authorized to lease 2 acres on Mer by				remain on the land by the Crown, similar to the
the Queensland Government to enable them to be				permission given by the Crown to other indigenous
responsible for dispute resolution and general law and				people all over the Colony to remain on the land,
order on the islands. It was noted that in the immediate				removes any ambiguity that these reservations may
aftermath of the reserve creation, the Queensland				have created. 45 The permission, Dawson argues,
Government deported some non-indigenous people				was consistent as a matter of the Crown’s
from the Islands who were considered as trespassers				assertion of uninterrupted dominion over the land, but
by the Meriam people.				was incompatible with any claim that native title was
15 It appears that the Queensland Government				preserved through the creation of reserves. Dawson
authority in Thursday Island believed the application of				conflicted with the Racial Discrimination Act 1975 (Cth)
Queensland law in Murray to be difficult, as the Acting				in which the plaintiffs based some of their arguments
Government Resident in Thursday Island expressed				that they have been discriminated against, on the basis
his fears and doubts about the workability of the				of their ethnic origin. 45 He considered the Act to have
current Queensland Laws in the Murray Islands in his				no application in this matter given that s.334 (4) of the
official communication with the Queensland Chief				Land Act 1962(Q). provides that the Governor in
Secretary in 1886. He stated that every land in the				Council may annul any Crown land that has been
Islands had a rightful owner. 16 He also stated,				set-aside for public purpose. In view of the fact that
“every grove or single tree of any value has its				Aborigines reserves were set-aside for the
proper and legitimate hereditary owner…to disturb				aforementioned purpose, Dawson J., argues, the
these rights, great care would have to be exercised				plaintiffs’ claim of racial discrimination is baseless.
and the natives recompensed for any loss that they				46 Dawson J., was not satisfied by the argument of
might suffer through deprivation”.				the plaintiffs that their human rights or fundamental
Mabo v Queensland (1)				freedoms to own or inherit property would be
17 In 1992, Eddie Mabo, a member of the Meriam				rescinded or damaged by the Crown’s action. In
community (the native inhabitants of the Murray				light of this line of argument, Dawson J., argued that
Islands), together with four other Meriam plaintiffs,				any proprietary right that the plaintiffs may have had in
commenced a legal challenge against the State of				land had been extinguished by the Crown upon
Queensland in the High Court. The Plaintiffs sought to				annexation.
establish ownership of the Islands by the Meriam				47 Dawson J., therefore refused to grant any of the
people, by virtue of inheritance, and therefore urged				declarations sought by the plaintiffs for the reasons
that the Court acknowledge their rights to occupy, use,				that he expressed in the present case, more
and therefore to enjoy the Islands. The case was				importantly, that the plaintiffs, and those that lived
twofold. First, upon the commencement of the case in				before them since annexation, lost any interest that
the High Court, Queensland Parliament enacted				they might have had on the land, but were permitted
legislation- Coast Islands Declaratory Act 1985(Q.)				to remain on the land not on basis that native title were
purporting to dispose of, and therefore to invalidate				recognized by the Crown, but because of the
any native title, interests, or whatsoever that the				reserves created by the Crown in pursuant to
plaintiffs may have had in those Islands. Mr. Mabo and				legislation.
his fellow plaintiffs challenged the legislation in the High				10
Court. 18 The High Court ruled against the Queensland				Conclusion
Government by citing that the legislation is invalid				In conclusion, the judgment in Mabo v Queensland has
because of inconsistency with the Racial Discrimination				set an important turning point in Australian
Act 1975(Cth).				jurisprudence, in the sense that the idea that the
19 The Racial Discrimination Act was enacted in 1975				Crown possess beneficial title to the land has been
in pursuant of Australian Government obligation under				seriously wounded. More importantly, the principle that
the International Convention on the Elimination of All				Australia was a terra nullius prior to 1788 settlement by
Forms of Racial Discrimination. The High Court held				Britain has been voided by the Mabo case. The view
that the Queensland legislation discriminated against the				of the High Court that native title to land survived
people of the Murray Islands. In light of this ruling, the				annexation by the Crown would indicate that
Queensland Act was incompatible with the Racial				independence of Australian indigenous people might
Discrimination Act and therefore, in effect, invalidated.				have survived annexation. As stated by Justice Burton
Under the Australian Constitution, Commonwealth laws				in 1836, Aborigines were free and independent people
may override any State Law that is inconsistent with				prior to the acquisition of sovereignty by the Crown,
the laws of the Commonwealth. The Queensland				therefore their entitlement to land that they inhabited
retrospective legislation intended to depose native				prior to the Crown claim of dominion should not be
interests to land, and thus failed in its purpose due to				abrogated by a mere annexation of the territories.
this inconsistency pursuant to the Racial Discrimination				The fact that there were indigenous inhabitants on the
Act.				Colony prior to settlement and subsequent annexation
Mabo (2)				is good enough to satisfy any doubts or argument, and
The Queensland Supreme Court conducted a series				would demonstrate that those who inhabit the land first
of hearings in Brisbane, the Murray Islands and				are entitled against the whole of the world to possess,
Thursday Island. The hearings, more or less were				use, occupy and enjoy the land. Although the High
concerned with fact-finding. The hearings went on for				Court ruled against the Queensland Coast Islands
67 days, and upon conclusion of this undertaking the				Declaratory Act 1985 with reference to inconsistency
case was returned to the High Court for legal				with the Racial Discrimination Act, the same High Court
argument.				confirmed that native title could still be extinguished
In Mabo v Queensland, the Defendant, in right of the				through consistent, and unambiguous legislation. It would
Crown claimed that both radical title and beneficial				appear that native title is therefore liable to
ownership of the Murray Islands was vested in the				extinguishments. In view of this risk of extinguishments,
Crown from the time the Islands were annexed to				every effort should be made to protect the rights of
Queensland, in 1879. 20 The Court held that the				those whose interests to their land may be
Meriam people held beneficial ownership of the Islands,				extinguished by the Crown through legislation. As the
and that such title survived annexation with relevance				Court confirmed the sovereignty of the Crown, it is
to customary laws. 21 This Court ruling confirmed the				imperative that the government receive with a sense
existence of native title and, that the Meriam people				of responsibility, fiduciary obligation to ensure that in
possess the right to own property. The Court also				any dealing, where native title may be threatened, that
recognized that the indigenous interests on the Murray				the interest of the titleholders are at best, protected.
Islands was communal and, and therefore protected				Dawson J., who dissented with the opinion of the other
by the Racial Discrimination Act, and that, in view of				Justices in the present case, was of the view that
the fact that it was protected by an Act of Parliament,				native title did not survive annexation. He argued that
was recognized under common law. As a				any interests to the land that the indigenous population
consequence of this ruling, the proposition that Australia				may had had was destroyed by the Crown’s
was a terra nullius (uninhabited land) at the time of				assertion of sovereignty. It followed that he did not
British settlement in 1788 was seriously defeated.				consider as inalienable, the right to own or to inherit
22 The High Court confirmed that the Crown obtained				property, as he argued that those rights even if they
radical title to the land when Britain claimed Australia,				previously existed, as the plaintiffs claimed, was lost at
but did not gain beneficial ownership of the land, and				the moment of annexation of the Murray Islands.
therefore, the right of the aboriginal inhabitants was				These rights are fundamental human rights, as well as
preserved.				legal rights and were confirmed as inalienable by the
However, this right can still be extinguished through				other Justices of the High Court who adjudicated along
consistent legislation. The benchmark for such				side Dawson J., in the present case.
extinguishments is validity, plainness and compatibility of				Bibliography:
such legislation to pre-existing Commonwealth laws or				Brennan, Gerard, ‘ Aboriginal Land Claims- an
constitution, as stated by the High Court.				Australian Perspective’ (1995)
What then would happen to persons who hold native				Charles Sturt University, ‘Indigenous Australian
title to land should the government in exercise of its				Case Study: Torres Strait Mer (Murray Island) and
duty, validly extinguish native title?				Eddie ‘Koiki’ Mabo’
Fiduciary.				Crommelin, Michael, ‘ Mabo: The Decision and the
23 The case also raised issues whether government,				Debate’
states, territories, or federal are duty bound to act in				Delgamuukw v Her Majesty the Queen in Right of the
the interest of Aboriginal people when lands that is				Province of British Columbia and the Attorney
subject to native title is in issue. 24 In Guerin v The				–General of Canada (1987)
Queen (1984), the Supreme Court of Canada held that				Koppenol G J, ‘ The Evolution of Native Title in The
the government of Canada owned a fiduciary duty to				High Court of Australia’ (2003)
native people, to take appropriate steps that would				Mabo v Queensland (1992) 107 ALR 1
safeguard indigenous interests in dealings with land				Moore, Penelope’ Land, Rights, Law: Issues of
where native title may be extinguished. 25 The Court in				Native Title’ (1998)
Guerin asserted that aborigines’ title to native land				Reynolds, Henry,’ After Mabo, What About
is a legal right that existed before assertion of				Aboriginal Sovereignty?’(1996) Australian
sovereignty over the Colonies by Britain. 26 The Court				Humanities Review
therefore, stated that the fiduciary obligation is				Rush, Stuart, ‘Aboriginal Title and The State’s of
unavoidable as a result of government power to				Fiduciary Obligations’ (1999)
extinguish native titles, or to alienate land through validly				Saunders, Cheryl ‘ Blurring Distinctions.
legislated scheme. 27 These factors, the Court said,

Kwik Stamp

Mabo v Queensland (no 2) Hca 23; (1992) 175 Clr 1 (3 June 1992)