McIntyre, Greg --- "News: Mabo v Queensland and the Commonwealth: Murray Island Traditional Land Claim" [1987] AboriginalLawB 30; (1987) 1(26) Aboriginal Law Bulletin 11

• Mabo V Queensland And The Commonwealth: Murray Island Traditional Land Claim

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Mabo v Queensland and the Commonwealth:
Murray Island Traditional Land Claim

by Greg McIntyre

The hearing of evidence in the Queensland Supreme Court in this action in which file plaintiffs allege a traditional file to land at common law became bogged down with a dispute to the admissibility of hearsay evidence.

The plaintiffs returned to the High Court, which had remitted the hearing to the Supreme Court, and succeeded in negotiating a consent order that an earlier demurrer by the plaintiffs be referred to the Full Bench of the High Court before proceeding any further on the factual hearing.

The Demurrer alleges that the Queensland Coast Islands Declaratory Act 1985 (QCID Act) is invalid.

The QCID Act, which was enacted after the Writ was issued, purports to declare that any indigenous rights to islands annexed to Queensland by the Coastal Islands Act of 1895 were extinguished upon annexation by that legislation.

The issues raised by the Demurrer include:

1. The existence at Common Low of private Indigenous rights to land.

2. The reservation to the Commonwealth as International Sovereign of the duty to protect and the right to extinguish indigenous rights, subject to a duty to pay compensation.

3. (a) The conflict between Commonwealth and State laws covering the field of indigenous rights to land;
(b) The conflict of Queensland State law with the Commonwealth Racial Discrimination Act.

4. The power of the Queensland Parliament to legislate to interfere with the Judicial power of the High Court, by passing legislation specifically intended to affect the result of this litigation.

5. The power of the Queensland Legislature to retrospectively effect;

(a) Legislation of the Colony of Queensland
(b) Imperial legislation.

6. The power of the Queensland Legislature to purport to deal with external affairs, and affect the meaning and operation of the Colonial Boundaries Act of the Imperial Parliament.

7. The form of annexation of Murray Island, as a part of the Colony of Queensland - whether it is by conquest, settlement or cession.

The Demurrer will probably be heard during October 1987 when all seven Judges will be available to sit on the Full Bench.