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Nettheim, Garth --- "The Mabo Case -- the Story thus Far" [1988] AboriginalLawB 26; (1988) 1(31) Aboriginal Law Bulletin 15


The Mabo Case – the Story thus Far

by Garth Nettheim

[This note is a summary of a much fuller analysis of the proceedings written by Greg McIntyre of Cairns, solicitor for the plaitiffs] Mabo v. Queensland and the Commonwealth (see 24 AboriginalLB p. 9, 26 AboriginalLB p.11, 29 AboriginalLB p.15) came before the full High Court on 15-17 March for hearing on plaintiffs' demurrer to a plea in Queensland's defence. Quensland claimed that its Queensland Coast Islands Declaratory Act 1985 was a complete answer to the action. The effect of plaintiffs demurrer was to challenge the validity and the effectiveness of that Act.

Murray Island and other islands in the Torres Strait had been formally annexed to Queensland by virtue of the Queensland Coast Islands Act of 1879. That Act was based on Imperial government authorisation. What Queensland purported to do in its 1985 Act was to declare that the effect of annexation in 1879 had been to extinguish all prior land rights.

Plaintiffs marshalled some 13 separate arguments against the 1985 Act. They can be grouped under 4 headings.

Inconsistency

(1) The colonial Constitution of Queensland provided that the lands are vested in Queensland subject to any rights of licensed occupants or lessees,- which are preserved by Imperial legislation.

(2) The Imperial grant to Queensland in 1885 of power to deal with lands did not apply to land annexed to the colony after that date, and no express Imperial authority to deal with lands subsequently annexed was granted in 1879 or 1895.

(3) The Colonial Boundaries Act, 1895 (Imp.), considered in Wacando v. Queensland [1981] HCA 60; (1981) 148 CLR 1 (3AboriginalLB p.9), also had effect. To the extent that annexation of the islands required an Imperial statue, the terms and conditions of the annexation can only be affected by Imperial statue.

(4) Queensland has never had sovereign power in the international sense and had no power to enact a provision impinging on a change of sovereignty.

(5) The 1985 Queensland Act is also an interference with the "external affairs" power of the Commonwealth.

(6) The 1985 Queensland Act is also inconsistent with the Racial Discrimination Act ,1975 (Cth), ss. 9, 10(1) and (3).

This argument raised the issue whether the 1985 Act affected rights or whether it simply declared, correctly, the legal consequences of the annexation of 1879. And that issue raised questions as to the scope of proceedings by way of demurrer.

Effectiveness/Insufficiency

(7) Specificity. Court decisions in Canada and elsewhere had held that express legislation was needed to extinguish Aboriginal title. A similar principle could be derived from Magna Carta.

(8) Retrospectivity. There was substantial evidence of executive government recognition of the continuance of the Islanders' property rights after annexation, and a retroactive declaratory Act could not effectively trespass upon facts of history.

(9) Continuance. Alternatively, even if pre-existing rights were extingushed upon annexation, subsequent Queensland government actions (including the establishment of a court which had decided over 400 land cases on the basis of traditional rights) amounted to recognition of Islander rights as customary rights under common law.

The distinction between settled and conquered colonies was also addressed. Plaintiff argued that the distinction was irrelevant - on either theory, of how territory comes under British sovereignty, the common law recognises that pre-existing rights continue until altered by valid statutes. The Gove case was wrong, and the Canadian decision in Calder is correct and applicable.

Coastal Waters

(10) the 1985 Queensland Act purported only to deal with "the islands" which properly interpreted, refers only to land to low water mark. The plaintiffs claim extended to reefs, seas and seabeds. Issues were raised concerning the power of the States against the Commonwealth to enact laws dealing with coastal waters - such issues were deferred.

Principles of General Law

(11) Interference with the Judicial Process. Plaintiffs argued that the case was one of state parliament purporting to alter rights in respect of a matter before a Commonwealth Court. Even if a Parliament at one level in the federal system may alter rights in issue in the court of that same level, this cannot be done across levels.

(12) Peace, welfare and good government. Plaintiffs also sought to rely on dicta of Street CJ and Priestly JA in the BLF case (1986) 7 NSWLR 372 that the words in the Constitutional conferment of legislative power impose a relevant substantive limit on the sort of laws which a State parliament may validly enact.

(13) Fundamental Principles. Plaintiffs lastly relied on several statements of the supremacy of fundamental principles for the validity of laws.

These several arguments, of course, produced counter-arguments from the respondents, particularly on issues of the survival of Aboriginal title (land rights) in common law. The rather unusual nature of the proceedings - legal issues raised in the absence of findings of fact - also gave rise to much discussion.

The High Court has reserved its decision.


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