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Aboriginal Law Bulletin (ALB)
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McIntyre, Greg --- "Update: Torres Strait Land Rights Test Case" [1991] AboriginalLawB 26; (1991) 1(50) Aboriginal Law Bulletin 2


Torres Strait Land Rights Test Case

by Greg McIntyre

After hearing four days of argument by lawyers the High Court, on the 31st May, reserved its decision on whether the Murray Islands in the Torres Strait have ever been Crown Land.

Counsel for the Plaintiffs, a group of Torres Strait Islanders, have asked the Court to declare that they have land rights on the Islands and have done so since they were annexed to Queensland in 1879.

The Plaintiffs also claim that the Racial Discrimination Act makes it unlawful for their rights to be extinguished and that no Australian Colony was ever empowered by the British sovereign to extinguish the rights of Aboriginal inhabitants.

The Court was referred to ancient cases and authorities relating to the continuation of customary rights upon the conquest of England and Ireland, and to United States, Canadian and New Zealand authorities, Privy Council decisions concerning Africa and India and early Australian authorities concerning colonisation and the introduction of English property law into Australia.

It was submitted for the State of Queensland that the the findings of fact in this case were insufficient for the Plaintiffs to make out their claims to land and that in any event when Britain claimed sovereignty of the Islands they became Crown lands. Justice Deane posed the question to the Solicitor-General for Queensland as to whether it then followed that the native Islanders became trespassers and guilty of an offence under the Crown Lands Legislation upon annexation of the islands to Queensland. The Solicitor-General refrained from expressing a view on that. Justice Gauldron then asked if it followed that "at anytime from the time of annexation the native population could have been lawfully driven into the sea". The Solicitor-General said that it did and justice Deane commented that "they did not have to be driven, in that if (the Crown Lands Act ) applied... they were outlaws wherever they went on their island."

The Solicitor-General submitted that the islanders were allowed to remain on the Island and Justice Dawson suggested that islanders might have been on the islands pursuant to a license. Justice Deane commented that if Islanders were on the island pursuant to a grant of license then it was not Crown land and no grant of the land could be made because it was outside the Crown Lands Act.

The Solicitor-General for Queensland argued that at common law, Aborigines only had a personal right of occupancy, which could not be claimed against the Crown.

Justice Brennan commented that if that argument was right "it seems that the common law as applied in England, and perhaps the law as applied in Canada and the United States, was no more than a device to ensure that the indigenous people had nothing". He suggested that it was "scarcely an appropriate doctrine for a common law".

The Solicitor-General responded that "unfortunately the position seems to have been very much in those days that might was right". JusticeBrennan responded "That is a custom which is inconsistent with the case of Tanistry " (a 17th Century decision concerning customary rights following the conquest of Ireland).

The seven Judges of the High Court have hundreds of pages of written submissions and statutory materials to consider in the light of case law from several former British colonies, along with three volumes of factual findings from a Judge of the Supreme Court of Queensland. It is expected that they will take several months to reach a decision on the case.


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