Nettheim, Garth --- "Article from Issue Number 4, June 1982: Major Test Case - New High Court Landrights Challenge" [2001] IndigLawB 56; (2001) 5(11) Indigenous Law Bulletin 7

Article from Issue Number 4, June 1982:

Major Test Case:

New High Court Landrights Challenge

by Garth Nettheim

This article was first published in issue number 4 of the Aboriginal Law Bulletin, June 1982.

In May, an action was instituted in the High Court of Australia under the name Mabo and others v Queensland and the Commonwealth. The action is likely to be the major test case to establish whether or not Aboriginal land rights exist in Australia in the absence of legislation.

Some Recent History

In 1971 Aborigines at Yirrkala in the Northern Territory, concerned at the granting of bauxite mining leases, brought an action in the NT Supreme Court under the name Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971) 17 FLR 141, known as the Gove land rights case. They claimed that they were the traditional owners of the land in question, and that European settlement in Australia had not changed the situation.

Their claim failed. Justice Blackburn did rule that the Aboriginals had a system of law. But he ruled that Aboriginal law did not contain anything which could be recognised as property rights. He held also that the plaintiff clans had not established that their links to the claimed land coincided with those of their predecessors. And, most importantly, he held that the common law does not recognise a doctrine of communal native title. The decision has been subject to much critical comment. But it was never appealed.

In the Northern Territory, however, judicial defeat led to a political victory when, following the Woodward Reports, the Commonwealth Parliament passed the Aboriginal Land Rights (Northern Territory) Act 1976. That Act allows Aboriginals to claim unalienated Crown land on the basis of traditional ownership.

But the Land Rights Act does not apply outside the Northern Territory. Elsewhere in Australia, the decision of Blackburn in the Gove case remains the first and last word on Aboriginal land rights at common law.

In 1979 the High Court dealt with a case, Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; 24 ALR 118, in which the plaintiff attempted to claim not only Aboriginal land rights but continuing Aboriginal sovereignty in Australia. The action failed on procedural grounds. But two judges, Jacobs and Murphy JJ, indicated that some of the issues put forward were arguable. And Gibbs J said:

The question what rights the Aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better.

Torres Strait Islanders Initiate the New Case

On 19 May 1982, an action was begun in the High Court to resolve these fundamental issues. The case, Mabo and others v Queensland and the Commonwealth is, in fact, brought not by Aboriginals but by members of Australia’s other Indigenous minority group, the Torres Strait Islanders.

The plaintiffs claim that their people have occupied and used Murray Island and surrounding islands, seas, seabeds and reefs since time immemorial. They claim that their laws recognise various rights in regard to the land, seas, and so on as belonging to various individuals or family groups or the people as a whole. They do not dispute that in or about 1879 the islands came under the sovereignty of the British Queen and were annexed to the colony of Queensland. But they claim that this did not disturb the rights of the Miriam people to continued enjoyment of their rights. They base their claim under Anglo-Australian law on custom, on traditional native title, and on use and enjoyment.

The plaintiffs concede that the Sovereign has the power to extinguish those rights. But they argue that the Sovereign was the British monarch until a later date when sovereignty was transferred to the Commonwealth of Australia; the sovereign power was never vested, they claim, in Queensland which has, therefore, no power to extinguish their continuing rights in regard to the land, seas, seabeds and reefs.

The plaintiffs argue that their rights have not been extinguished or surrendered to date but have in fact been recognised in various ways by Queen Victoria and by Queensland and the Commonwealth. In regard to Queensland they refer to Queensland laws establishing the Torres Strait Islands as reserves, and establishing Island Councils and Island Courts. The plaintiffs then claim that Queensland now denies the existence of those rights and proposes to terminate the reserves in favour of a new system of grants in trust which will substantially destroy their rights. (They also charge that these steps proposed by Queensland are to be taken for purposes other than the statutory purposes and in breach of the rules of natural justice). They claim various declarations, injunctions and damages. In particular, they seek a declaration that the Queensland Government has no power to extinguish their ownership, an injunction to restrain the Queensland Government from revoking the Murray Island reserve, and a declaration that a grant in trust would be inconsistent with their ownership. Solicitor for the plaintiffs, Mr Greg McIntyre of the Aboriginal Legal Service in Cairns, also advises that a similar claim on behalf of the people of a mainland Aboriginal reserve is in the final stages of preparation.

Fundamental Questions to Be Considered

It will presumably be some time before the case can be fully argued in the High Court and, of course, longer still before the judgment will be delivered. If the case proceeds, it will allow the correctness of the Gove decision to be judicially considered, and it will raise a number of complex questions of international law, constitutional law, property law and administrative law. In particular it will provide the first full-scale opportunity for the High Court to consider fundamental questions about the basis of European settlement in Australia, and the relationship between the settlers and the original inhabitants.

Professor Garth Nettheim is on the Management Committee of the Indigenous Law Centre, and was a co-founder of the Centre.