Nettheim, Garth --- "Mabo v Queensland (Plaintiffs' demurrer - Queensland Coast Islands Declaratory Act, 1985 - whether valid and effective to conclude the action - Racial Discrimination Act, 1975 (Cth), s10(1) - Constitution, s109)" [1989] AboriginalLawB 11; (1989) 1(36) Aboriginal Law Bulletin 17

• Mabo V Queensland
• Plaintiffs' Demurrer-Queensland Coast Islands Declaratory Act, 1985-Whether Valid And Effective To Conclude The Action-Racial Discrimination Act, 1975 (Cth), S10(1)-Constitution, S109.

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Mabo v Queensland

Plaintiffs' demurrer - Queensland Coast Islands Declaratory Act, 1985 - whether valid and effective to conclude the action - Racial Discrimination Act, 1975 (Cth), s10(1) - Constitution, s109.

Mabo v Queensland

High Court of Australia: Mason CJ, Wilson, Brennan, Deane,

Dawson, Toohey and Gaudron JJ.

8 December 1988

Casenote by Garth Nettheim

In the 1870s islands in the Torres Strait between Cape York and Papua were first brought under the sovereignty of the British Crown and, subsequently, became part of Queensland. Various legal instruments served to establish the new legal status of the islands in the eyes of British law. (The perspective from the point of view of the Islanders could, of course, be quite different). There were Letters Patent issued by Queen Victoria on 30 May 1872 appointing the Governor of Queensland to be Governor of all islands within 60 miles from the coast, and authorising the annexation of those islands to Queensland. There were further Letters Patent issued by the Queen on 10 October 1878 confirming the Governor's authority to proclaim the islands to be annexed to the Colony of Queensland but requiring a prior Act of the Legislature of Queensland. The Queensland Legislature enacted such an Act as the Queensland Coast Islands Act of 1879, and the final Proclamation was made by the Governor on 18 July 1879. A burst of naval gunfire was then necessary to consummate the legal paperwork.

Some discrepancies continued about the delineation of the boundaries of Queensland. In 1981 two Torres Strait Islanders argued in the High Court that the result of such discrepancies was that Darnley and other islands were not part of Queensland as at 1st January 1901 and, accordingly never became part of Australia on Federation. The High Court in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1 acknowledged that there had been a degree of sloppiness in the delineation of boundaries but held that all had been cured by an Imperial Act, the Colonial Boundaries Act 1895. Had that decision gone the other way, Darnley and other islands would, presumably, have been entitled to recognition of their sovereign independence.

The plaintiffs in Mabo v Queensland and the Commonwealth are from the Murray group of islands in the Torres Strait - Mer, in the Miriam language. The claim in Mabo, unlike that in Wacando, is not for recognition of sovereign independence. The Mabo claim acknowledges Australian sovereignty, and even acknowledges that the islands are part of Queensland. But it argues that the instruments which achieved that result in the 1870s did nothing to extinguish the pre-existing rights of the Miriam people, which continue to the present day.

The Government of Queensland, in recent years, has been overhauling its laws in relation to land occupied by Aboriginal people and by Torres Strait Islanders. Under the Land Acts of Queensland such areas had the status of Crown land dedicated, under Orders in Council, as reserves for the Aboriginal or Islander people. The Aboriginal reserves in particular used to be "managed" by missions, or, more often, by government officials under a particularly heavy-handed and paternalistic regime of law and administration. The Torres Strait Islands, for the most part, were subject to a slightly less repressive regime, partly as a legacy of a major maritime strike which the people staged in 1936, and partly as a result of greater remoteness.

Since 1979 the Queensland Government has been developing revised legislation for the reserves and their communities. The major feature of the new order involves the vesting in each community council of an instrument called a Deed of Grant in Trust under the Land Act. The initial proposals were singularly unattractive to most communities, and a far cry from Land Rights as understood in other parts of Australia. The Murray Islanders were particularly anxious not to accept title under the new arrangements - it would mean that their rights were derived from the laws of Queensland rather than from their own laws and would be vulnerable to changes in those laws or to exercise of powers under those laws. They also resisted the notion that title should be vested in Councils as distinct from the traditional owners.

In subsequent years Queensland has effected a number of improvements in its laws and most communities have now accepted Deeds of Grant in Trust. The Murray Islanders have preferred to await the result of the High Court action.

The action was commenced as long ago as May 1982. In October 1982, in a preliminary hearing before Deane J, all parties agreed to try to reach an agreed statement of the facts as a basis on which the High Court could decide the important questions of law. Such a proceeding would have avoided the more cumbersome process of having to establish the facts in a trial. In the event, it was not possible to achieve agreement on a statement of facts. On 27 February 1987, Gibbs CJ ordered that the case be remitted to the Supreme Court of Queensland for determination of issues of fact. Those proceedings commenced in February 1987, but bogged down in problems of admissibility of evidence. The proceedings were adjourned pending resolution in the High Court of a legal issue raised by the Plaintiffs.

Before discussing that legal issue and the High Court's decision, it is appropriate to say a few words about the much broader issues presented by the case.

In essence, Mabo and the other plaintiffs argue that their predecessors since time immemorial have had and exercised distinct rights in relation to the land, seas, sea beds and fringing reefs of the Murray Island group; that those rights continued after the islands became part of Queensland in 1879; that those rights have not been extinguished but have, instead, been recognized by Queensland. They argue that Queensland has no power to extinguish those rights but threatens to do so.

The central legal issue is whether Australian law recognizes that pre-existing land rights of indigenous peoples are capable of continuing after the territories came under British sovereignty.

Only one Australian court case has squarely addressed this question. That was a judgement of a single judge of the Northern Territory Supreme Court in the Gove case in 1971. (Milirrpum v Nabalco Pty. Ltd. and Commonwealth (1971)17 FLR 141.) Blackburn J. held that Anglo-Australian law does not recognize the continuation of Aboriginal land rights after the acquisition of British sovereignty. Significantly, Canadian cases have gone the other way. The Mabo case may provide an opportunity for the High Court to rule on this critical question.

In April 1985 Queensland decided to settle the broader issue in its own way. The then deputy premier introduced without notice a bill "to allay any doubts that may exist concerning certain islands forming part of Queensland". The Act was passed as the Queensland Coast Islands Declaratory Act, 1985. The intention of the Act was to declare, retroactively, that the Queensland legislature's intention in 1879 was not only to acquire sovereignty over the Islands but also to extinguish the land rights of those who, by the annexation, became British subjects.

The issue argued before the High Court in March 1988 was whether the 1985 Queensland Act was valid and effective. If so, it would have spelled the end of the litigation. And the critical issues of whether our law provides any recognition of pre-existing indigenous title would not need to be addressed. The Court needed to assume the continuance of such rights for the purpose of the proceedings.

Some thirteen separate arguments were put before the High Court (see Vol 2 AboriginalLB No 31, p15), but the only one to achieve sufficient support to be decisive was the argument that the 1985 Queensland Act was inconsistent with s10(l) of the Racial Discrimination Act, 1975 (Cth).

10(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

The particular rights in question, under Article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination were

(v) The right to own property alone as well as in association with others;
(vi) The right to inherit.

The Court was divided on the question whether the 1985 Queensland Act was inconsistent with s10. Wilson J treated the rights claimed under Miriam law as unique so that an Act extinguishing those rights for Murray Islanders did not leave the same rights in force for other people.

...The immediate difficulty confronting the submission is that there is no suggestion in the statement of claim that there are any persons of another race who enjoy the same rights of which the plaintiffs have been deprived by the Queensland Act. In those circumstances there is nothing to attract the operation of s10.

Dawson J's analysis was similar. Mason CJ did not rule out the possibility of s.10 being applicable but found insufficient basis to make a decision on the material before him:

It may be that there is substance in the plaintiffs' argument that the traditional rights and interests asserted by the plaintiffs constitute a right to own property or a right to inherit within the meaning of par (d) of Art 5 of the Convention and that their rights and interests are equivalent to rights and interests enjoyed by persons of another race, etc. However it is impossible to reach a conclusion on that argument without findings about the precise nature and extent of the rights and interests asserted by the plaintiffs.

The majority, however, felt able to treat the claimed rights as property rights in the same sense as the property rights of others, even though one set of rights derived from Miriam law and the other from Queensland law.

Brennan, Toohey and Gaudron JJ., in a joint judgement, summarised their assessment in these words:

By extinguishing the traditional legal rights characteristically vested in the Miriam people, the 1985 Act abrogated the immunity of the Miriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Miriam people.

Justice Deane's analysis was similar. Thus, by a narrow majority, the 1985 Queensland Act was rendered ineffective.

On another issues, it was generally accepted that s9 of the Racial Discrimination Act has no application in respect of a State statute (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ).

Deane J would have been prepared to adopt a narrow interpretation of the Queensland Act so as to extinguish, by s3, the Islanders' rights only in relation to those few areas of land, referred to in s.4, which had been previously alienated by Queensland to others, but Wilson, Brennan, Toohey, Gaudron and Dawson JJ were unable to adopt such an interpretation. Brennan, Toohey and Gaudron JJ were also unable to accept the argument that the 1985 Act would need to be more specific in order to extinguish the Islanders' rights.

Wilson and Dawson JJ rejected plaintiffs' argument that the Queensland legislature lacks power to deal with the waste lands of the Crown. Wilson J also rejected the argument that the 1985 Queensland Act was beyond power under the State's own Constitution as not being for the "precise welfare and good government of Queensland". Wilson and Dawson JJ also rejected the argument that it was beyond the power of a State legislature to deprive a person of property without compensation, and they also rejected the proposition that the Queensland Act represented an unlawful interference with the judicial process.

However the 4:3 majority decision in respect of s10 of the Racial Discrimination Act, 1975 (Cth) served to render the 1985 Queensland Act ineffective to block the principal action.

But the plaintiffs still have a long way to go. They still have the task of proving at trial the facts which were simply assumed for the purposes of the 1988 hearing - that the Murray Islanders have had the rights claimed from time immemorial, the precise nature of those rights, and the continuance of those rights to the present day. Assuming that they succeed in proving such matters, they will then have to persuade the High Court that the 1971 Gove decision was wrong in law, and that Australian law is capable of recognizing the continuance of pre-existing land rights.