• Any

CATCHWORDS

Constitutional Law (Q.) - Reception of common law in settled colony - Effecton title of indigenous people - Annexation of territoryby colony - Terranullius - Whether doctrine applicable in Australia - Power of Parliament ofQeensland to extinguish native title.

Real Property - Tenures and estates - Application on settlement of New SouthWales - Effect on native title - Land over which nativetitle exists - WhetherCrown land - Land Act 1962 (Q.), s. 5 - "Crown land."

HEARING

DECISION

2. In the result, six members of the Court (Dawson J. dissenting) are inagreement that the common law of this country recognizesa form of nativetitle which, in the cases where it has not been extinguished, reflects theentitlement of the indigenous inhabitants,in accordance with their laws orcustoms, to their traditional lands and that, subject to the effect of someparticular Crown leases,the land entitlement of the Murray Islanders inaccordance with their laws or customs is preserved, as native title, under thelawof Queensland. The main difference between those members of the Court whoconstitute the majority is that, subject to the operationof theRacialDiscrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with theconclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ.that,at least in the absence of clear and unambiguous statutory provision tothe contrary, extinguishment of native title by the Crownby inconsistentgrant is wrongful and gives rise to a claim for compensatory damages. We notethat the judgment of Dawson J. supportsthe conclusion of Brennan J. andourselves on that aspect of the case since his Honour considers that nativetitle, where it exists,is a form of permissive occupancy at the will of theCrown.

3. We are authorized to say that the other members of the Court agree withwhat is said in the preceding paragraph about the outcomeof the case.

4. The formal order to be made by the Court accords with the declarationproposed by Brennan J. but is cast in a form which willnot give rise to anypossible implication affecting the status of land which is not the subject ofthe declaration in par.2 of theformal order.

BRENNAN J. The Murray Islands lie in the Torres Strait, at about 10 degreesS. Latitude and 144 degrees E. Longitude. They are theeasternmost of theEastern Islands of the Strait. Their total land area is of the order of 9square kilometres. The biggest isMer (known also as Murray Island), oval inshape about 2.79 kms long and about 1.65 kms across. A channel about 900 m.wide separatesMer from the other two islands, Dauar and Waier, which lieclosely adjacent to each other to the south of Mer. The Islands aresurroundedfor the most part by fringing reefs. The people who were inoccupation of these Islands before first European contact and who havecontinued to occupy those Islands to the present day are known as the Meriampeople. Although outsiders, relatively few in number,have lived on the MurrayIslands from time to time and worked as missionaries, government officials, orfishermen, there has notbeen a permanent immigrant population.Anthropological records and research show that the present inhabitants of theIslands aredescended from the people described in early European reports. Thecomponent of foreign ancestry among the present population issmall comparedwith most communities living in the Torres Strait. The Meriam people of todayretain a strong sense of affiliationwith their forbears and with the societyand culture of earlier times. They have a strong sense of identity with theirIslands. The plaintiffs are members of the Meriam people. In this case, thelegal rights of the members of the Meriam people to the landof the MurrayIslands are in question.

Early contact with Europeans

2. The Meriam people were in occupation of the Islands for generations beforethe first European contact. They are a Melanesianpeople (perhaps anintegration of differing groups) who probably came to the Murray Islands fromPapua New Guinea. Their numbershave fluctuated, probably no more than 1000,no less than 400.

3. Some of the features of life in the Murray Islands at the time of firstEuropean contact, at the end of the 18th century, aredescribed by Moynihan J.in his findings in the present case:

" Communal life based on group membership seems to have

been the predominant feature of life. Many of the

activities of daily life were social activities which took

place in the context of group activities of a ceremonial

or ritualistic nature. Behaviour was regulated in the

interest of the community by social pressures. ...

The people lived in groups of huts strung along the

foreshore or strand immediately behind the sandy beach.

They still do although there has been a contraction of

the villages and the huts are increasingly houses. The

cultivated garden land was and is in the higher central

portion of the island. There seems however in recent times

a trend for cultivation to be in more close proximity with

habitation.

The groups of houses were and are organised in named

villages. It is far from obvious to the uninitiated, but

is patent to an islander, that one is moving from one

village to another. The area occupied by an individual

village is, even having regard to the confined area on a

fairly small island which is in any event available for

'village land', quite small.

Garden land is identified by reference to a named

locality coupled with the name of relevant individuals if

further differentiation is necessary. The Islands are not

surveyed and boundaries are in terms of known land marks

such as specific trees or mounds of rocks.

Gardening was of the most profound importance to the

inhabitants of Murray Island at and prior to European

contact. Its importance seems to have transcended that of

fishing ...

Gardening was important not only from the point of view

of subsistence but to provide produce for consumption

or exchange during the various rituals associated with

different aspects of community life. Marriage and adoption

involved the provision or exchange of considerable quantity

of produce. Surplus produce was also required for the

rituals associated with the various cults at least to

sustain those who engaged in them and in connection with

the various activities associated with death.

Prestige depended on gardening prowess both in terms

of the production of a sufficient surplus for the social

purposes such as those to which I have referred and to be

manifest in the show gardens and the cultivation of yams

to a huge size. Considerable ritual was associated with

gardening and gardening techniques were passed on and

preserved by these rituals. Boys in particular worked with

their fathers and by observations and imitations reinforced

by the rituals and other aspects of the social fabric

gardening practices were passed on."

" It seems that before European contact social cohesion

was sought by the combined operation of a number of

factors. Children were inculcated from a very early

age with knowledge of their relationships in terms of

social groupings and what was expected of them by a

constant pattern of example, imitation and repetition

with reinforcing behaviour. It was part of their

environment - the way in which they lived. ... Initiation

and other group activities reinforced these patterns. A

sense of shame was the outcome of a failure to observe.

It could be reinforced by group pressures leading to

retribution. Ultimately force might be resorted to by

those who had access to the means of exerting it.

Sorcery, magic and taboo were obviously important

cohesive factors and a source of sanction."

4. Contacts with Europeans were initially few and sporadic. There wereoccasional visits by passing ships in the early 19th century. In 1834, twoyoung British castaways were rescued and they stayed on Mer until a shipcalled there 2 years later. The ship's captain,Captain Lewis, recorded thatthe natives "acknowledge no chief each family being distinct and independentof each other. Quarrelsfrequently take place which, after a fight aregenerally followed by a speedy reconciliation." The London Missionary Societycameto the Murray Islands in about 1871 and moved its Torres Straitheadquarters to Mer in 1877. It was a significant influence in keepingthepeace among the Meriam people and in modifying some of their customs. Itappears that, prior to the arrival of the London MissionarySociety, elaboratefuneral ceremonies and the collection and preservation of human heads werefeatures of life in the Murray Islands.

5. Although the Murray Islands, prior to their annexation to Queensland in1879, were not part of her Majesty's dominions, Imperialand Colonialauthorities were concerned for the maintenance of order in, and the protectionof the indigenous inhabitants of, thoseIslands and other islands in theWestern Pacific. "Blackbirding" was being practised and in the 1860s theMurray Islands were raided,women seized and some of the Meriam peoplemurdered. The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) (1) 35and 36Vict c 19 (P9/579); 38 and 39 Vict c 51. were enacted to stamp outblackbirding (2) See O'Connell and Riordan, Opinions on ImperialConstitutional Law, (1971), pp 100-103 and to confer on a High Commissioner'sCourt jurisdiction over British subjects in the islandsof the WesternPacific. However, the 1875 Act expressly disavowed "any claim or titlewhatsoever to dominion or sovereignty overany such islands or places" and anyintention "to derogate from the rights of the tribes or people inhabiting suchislands or places,or of chiefs or rulers thereof, to such sovereignty ordominion".

6. Nevertheless, it appears that the Queensland authorities exercised some defacto control in the 1870s over islands in the TorresStrait which were notpart of that Colony's territory. When a proposal to expand the maritimeboundaries of Queensland to includethese islands was under consideration,CommandER Heath, R.N., the Portmaster at Brisbane, reported to the ColonialTreasurer on 11December 1877:

"Where any lodgment of Islanders or others for questionable

purposes had been made on the islands beyond our

jurisdiction and yet not within the limits of Polynesia,

the police have been obliged to act as though these islands

did belong to Queensland, the Police Magistrate wisely

considering it a lesser evil to exceed his authority in

this matter than to allow any attempt at settlement on

these islands for improper purposes."

7. The proposal to annex coastal islands that were not already part ofQueensland found favour with the Executive Council. TheHon. John Douglas,then Premier of the Colony, sent the Governor of Queensland a memorandum dated27 December 1877 containing thefollowing:

"A sort of police surveillance is even now exercised over

some of the islands outside our limits, but it is certainly

desirable that we should possess a real authority to deal

with the somewhat doubtful characters who are occasionally

found to act in a very independent way. It does not at

all follow that we should form settlements. They will

be frequented by pearl-shellers, and probably eventually

by more permanent settlers. They ought to be visited

occasionally by the Resident Magistrate at Thursday Island,

but it would not be necessary to do more than this at

present, and I do not think that we should have to increase

our expenditure on that account."

8. In July 1878, as Moynihan J. found -

"H.M. Chester the Police Magistrate at Thursday Island

... visited Murray. He advised the people to select a

chief and submit to his authority which, if properly

exercised, would be supported. Harry (Ari) Buzire was

designated. The name Mamoose came to be applied to the

holders of such office throughout the Straits. ... The

reasons for Ari's selection are obscure. He had apparently

no important ritual office or any particular claim to

elevation to central authority which was itself the

creature of Chester's intervention. Ari was provided with

executive capacity in the form of some designated

constables and a boat."

9. The Mamoose, as Moynihan J. found, became "something of an executive armto the mission".

Annexation of the Murray Islands

10. Ultimately, the proposal to extend the maritime boundaries of Queenslandto include the Murray and Darnley Islands was adoptedby the Colonial Officeand, on 10 October 1878 at Westminster, Queen Victoria passed Letters Patent"for the rectification of theMaritime Boundary of the Colony of Queensland,and for the annexation to that Colony of (certain) Islands lying in TorresStraits,and between Australia and New Guinea". The Murray Islands lay withinthe maritime boundary mentioned in the Letters Patent.

11. The Letters Patent authorized the Governor of Queensland by Proclamation-

"to declare that, from and after a day to be therein

mentioned, the said Islands shall be annexed to and form

part of Our said Colony. Provided always that Our said

Governor issues no such Proclamation as aforesaid until the

Legislature of Our said Colony of Queensland shall have

passed a law providing that the said Islands shall, on the

day aforesaid, become part of Our said Colony, and subject

to the laws in force therein. Provided also that the

application of the said laws to the said Islands may be

modified either by such Proclamation as aforesaid, or by

any law or laws to be from time to time passed by the

Legislature of Our said Colony for the government of the

said Islands so annexed."

"that from and after the first day of August, in the year

of our Lord one thousand eight hundred and seventy-nine,

the Islands described in the Schedule (which followed the

Letters Patent and the Act) shall be annexed to and become

part of the Colony of Queensland, and shall be and become

subject to the laws in force therein."

"(a) command of Torres Strait and the sea lane to India;

(b) control of the fishery industry in Torres Strait

including the pearl-shell industry; (c) the protection

of shipping and ship-wrecked crews; (d) the extension

of jurisdiction to non-British subjects and the native

inhabitants of the islands; (e) the protection of the

native inhabitants of the islands".

12. In September 1879, Captain Pennefather on the instructions of H.M.Chester visited the Murray Islands where (as he reported)he "mustered thenatives" and informed them "that they would be held amenable to British lawnow the island was annexed". He alsonoted:

"The Chief acts as magistrate, he has a staff of 10 or 12

men as policemen, they have built a church and courthouse

of which they are very proud, there is also a very good

house belonging to the London Missionary Society this

island being the headquarters for the mission in these

waters."

"The natives are very tenacious of their ownership of the

land and the island is divided into small properties which

have been handed down from father to son from generation

to generation, they absolutely refuse to sell their land

at any price, but rent small portions to the beche-de-mer

men and others. These natives, though lazy like all

Polynesians on their islands, build good houses and

cultivate gardens, they are a powerful intelligent race and

a white man is as safe if not safer residing amongst them,

as in Brisbane."

13. In about February 1882, the Queensland Government "reserved" MurrayIsland for native inhabitants. In the same year, a speciallease of 2 acreson Mer was granted by the Queensland Government to the London MissionarySociety, which had assumed some responsibilityfor law and order and for thepeaceful resolution of disputes. Shortly after the Reserve was created, theQueensland authorities,at the request of the Meriam people, "removed a numberof trespassers" from the Islands.

14. In 1885, the Hon. John Douglas, by then Government Resident at ThursdayIsland, went to the Murray Islands to arrange for theeviction of "intruders"(South Sea Islanders) in order to ensure that "the Murray Islanders will haveMurray Island to themselves". He successfully negotiated the departure of theintruders. He found Harry, "the Chief or primate of Murray Island", to be a"benignantdespot ... (whose) position is respected."

15. In 1886, the Acting Government Resident at Thursday Island reported tothe Chief Secretary of Queensland on the applicationof Queensland law:

"I do not see how it will be possible to administer these

islands under the present laws of Queensland, more

especially as touching the land question, and the tenure

under which the native races are to be allowed to hold the

land they own. There is no doubt that if every acre has

not a reputed owner (and I am inclined to think every acre

has) but every grove or single tree of any value has its

proper and legitimate hereditary owner. To disturb these

rights, great care would have to be exercised and the

natives recompensed for any loss that they might suffer

through deprivation."

16. By 1891 the headquarters of the London Missionary Society had been movedfrom the Murray Islands. Later, Douglas, in a reporton a visit to the MurrayIslands, described the system of government then in place:

"The secular government is conducted by 'Harry', the

recognised chief or headman who is assisted in his

administration by four officers, or 'policemen' so called.

They are recognised by me, and they assist to keep the

peace when it is necessary that their authority should be

invoked, which is not often.

They receive a small annual honorarium, and they are

privileged to wear a uniform. 'Harry' has a whaleboat,

presented to him by the Government, the 'policemen' man

this boat. 'William' a native of New Zealand, is the head

of the spiritual or theocratic government."

17. The "system of self-government ... as instituted by the late Hon. JohnDouglas, C.M.G." was described by the Chief Protectorof Aboriginals inQueensland in his Annual Report for 1907 as follows:

"The Governing body consists of the native chief or

'mamoose', assisted and advised by the councillors or

elders of the village, with a staff of native police

to uphold his authority and to keep order among the

inhabitants or visitors.

The European school teacher acts as clerk and treasurer of

the native court, assisting with suggestion or advice when

requested, but otherwise has no authority to interfere in

the internal management of affairs.

The mamoose acts as a police magistrate and governor, with

power to deal summarily with offences and breaches of local

regulations, and is directly responsible for the behaviour

and cleanliness of his village to the Government Resident

and Police Magistrate at Thursday Island. He may inflict

punishment by fine or imprisonment upon minor offences, but

misdemeanours and serious offences must be reserved for

the bench at Thursday Island. The councillors attend at

courthouse to assist the mamoose with advice and, in order

of seniority, may act on his behalf during his absence.

They also meet to confer monthly with the mamoose upon any

questions concerning the conduct of affairs.

The native island police, under a native sergeant, are

responsible to the mamoose for the good behaviour of the

inhabitants, etc., and may arrest and lock up offenders till

the next meeting of court. They have also to inspect and

see that each householder keeps his premises and grounds

clean, and that the portion of the public road adjacent to

his residence is kept in good repair and order; also that

the public properties (coconut-trees, fish-traps, etc.), and

buildings (court-house, lock-up, school-house, etc.) are not

damaged or destroyed.

The European teacher resident upon the island acts as clerk

of the court and registrar of births, marriages, and

deaths, keeping all books and records, and also as

treasurer, keeping an account and taking charge of all

collections from fines, taxes upon dogs, etc., the mamoose

having authority to expend all such collections upon public

improvements, repairs, etc."

18. It appears from reports by Mr Bruce that, from the end of the 19thcentury, the Mamoose's court entertained cases arising fromdisputes over landor land boundaries.

19. When an anthropological expedition from Cambridge visited the Islands in1898 they found that -

"Queensland has not affected native land tenure which is

upheld in the Court of the Island. In a few instances it

is not impossible that English ideas, especially of

inheritance are making themselves felt. There is no common

land and each makes his own garden on his own land at his

own convenience."

"the role of the Court was to maintain social harmony by

accommodating peoples wishes as far as possible and doing

what seemed to be right in the circumstances."

"The ultimate determining factor in terms of the control and

disposition of land was simply what was acceptable in terms

of social harmony and the capacity of an individual to

impose his (it seems almost (always) to have been a him)

will on the community. This was easier done if the claim

had the appearance of certain expected characteristics."

20. Without pausing to enquire into the legal support for the "system ofself-government" instituted by Douglas or for the jurisdictionof the IslandCourt, it appears that the Meriam people came peacefully to accept a largemeasure of control by Queensland authoritiesand that officials of theQueensland Government became accustomed to exercise administrative authorityover the Murray Islands. Formal annexation had been followed by an effectiveexercise of administrative power by the Government of Queensland.

21. In 1894, some doubts had arisen in the Colonial Office as to the legalityof the annexation of the islands included in the 1879Letters Patent toQueensland. Queensland had been separated from New South Wales and erectedinto a Colony pursuant to The New SouthWalesConstitution Act, 1855 (Imp) (4)18 and 19 Vict c 54 by Letters Patent of 6 June 1859 and an Order in Councilof the same day. The boundariesof the new colony were fixed, the Colony wasgranted a constitution with representative institutions and the laws of NewSouth Walesbecame the laws of Queensland on separation. The doubts whicharose in the Colonial Office related to the legality of incorporatingnewterritory into a colony with representative institutions once the boundariesof the colony were fixed by or under Imperial legislation.To settle thesedoubts, the Colonial Boundaries Act 1895 (Imp) (5) 58 and 59 Vict c 34 wasenacted. As this Court held in Wacando,if theQueensland Coast Islands Act1879 did not suffice to effect the incorporation of the Murray Islands intoQueensland (eitherby its own force or by satisfying a conditionbringing theLetters Patent of 1879 into operation), the requisite Imperial legislativeauthority could be found in the ColonialBoundaries Act.

22. With this brief conspectus of the history of the Murray Islands, we maynow turn to an examination of the effect of annexationon the legal rights ofthe members of the Meriam people to the land of the Murray Islands.

The theory of universal and absolute Crown ownership

23. It may be assumed that on 1 August 1879 the Meriam people knew nothing ofthe events in Westminster and in Brisbane that effectedthe annexation of theMurray Islands and their incorporation into Queensland and that, had theMeriam people been told of the Proclamationmade in Brisbane on 21 July 1879,they would not have appreciated its significance. The legal consequences ofthese events are inissue in this case. Oversimplified, the chief question inthis case is whether these transactions had the effect on 1 August 1879ofvesting in the Crown absolute ownership of, legal possession of and exclusivepower to confer title to, all land in the MurrayIslands. The defendantsubmits that that was the legal consequence of the Letters Patent and of theevents which brought them intoeffect. If that submission be right, the Queentook the land occupied by Meriam people on 1 August 1879 without their knowingofthe expropriation; they were no longer entitled without the consent of theCrown to continue to occupy the land they had occupiedfor centuries past.

24. The defendant's submission is founded on propositions that were stated incases arising from the acquisition of othER colonialterritory by the ImperialCrown. Although there are differences which might be said to distinguish theMurray Islands and the Meriampeople of 1879 from other colonial territoriesand their indigenous inhabitants when those territories respectively becameBritishcolonies, the propositions on which the defendant seeks to rely havebeen expressed to apply universally to all colonial territories"settled" byBritish subjects. Assuming that the Murray Islands were acquired as a"settled" colony (for sovereignty was not acquiredby the Crown either byconquest or by cession), the validity of the propositions in the defendant'schain of argument cannot be determinedby reference to circumstances unique tothe Murray Islands; they are advanced as general propositions of lawapplicable to all settledcolonies. Nor can the circumstances which might bethought to differentiate the Murray Islands from other parts of Australia beinvoked as an acceptable ground for distinguishing the entitlement of theMeriam people from the entitlement of other indigenousinhabitants to the useand enjoyment of their traditional lands. As we shall see, such a ground ofdistinction discriminates on thebasis of race or ethnic origin for it deniesthe capacity of some categories of indigenous inhabitants to have any rightsor interestsin land. It will be necessary to consider presently the racialor ethnic basis of the law stated in earlier cases relating to theentitlementof indigenous people to land in settled colonies.

25. On analysis, the defendant's argument is that, when the territory of asettled colony became part of the Crown's dominions,the law of England so faras applicable to colonial conditions became the law of the colony and, by thatlaw, the Crown acquiredthe absolute beneficial ownership of all land in theterritory so that the colony became the Crown's demesne and no right orinterestin any land in the territory could thereafter be possessed by anyother person unless granted by the Crown. Perhaps the cleareststatement ofthese propositions is to be found in Attorney-General v. Brown (6) (1847) 1Legge 312, at p 316, when the Supreme Courtof New South Wales rejected achallenge to the Crown's title to and possession of the land in the Colony.Stephen C.J. stated thelaw to be -

"that the waste lands of this Colony are, and ever have

been, from the time of its first settlement in 1788, in

the Crown; that they are, and ever have been, from that

date (in point of legal intendment), without office found,

in the Sovereign's possession; and that, as his or her

property, they have been and may now be effectually granted

to subjects of the Crown".

"The territory of New South Wales, and eventually the whole

of the vast island of which it forms a part, have been

taken possession of by British subjects in the name of the

Sovereign. They belong, therefore, to the British Crown.

... The fact of the settlement of New South Wales in

that manner, and that it forms a portion of the Queen's

Dominions, and is subject to and governed by British laws,

may be learned from public colonial records, and from Acts

of Parliament. New South Wales is termed in the statute

54 GEO III, c.15, and in the 59 GEO III, c.122, His

Majesty's Colony; not the colony of the people, not even

the colony of the empire. It was maintained that this

supposed property in the Crown was a fiction. Doubtless,

in one sense, it was so. The right of the people of

England to their property, does not in fact depend on

any royal grant, and the principle that all lands are

holden mediately or immediately of the Crown flows from

the adoption of the feudal system merely (Co Lit 1, and

ibid.191, a, Mr. Butler's note 6; Bac Ab Prerog B.;

Vin Ab same title K.A. 19). That principle, however, is

universal in the law of England, and we can see no reason

why it shall be said not to be equally in operation here.

The Sovereign, by that law is (as it is termed) universal

occupant. All property is supposed to have been,

originally, in him. Though this be generally a fiction,

it is one "adopted by theConstitution to answer the ends

of government, for the good of the people." (Bac Ab ubi

supra, marginal note.) But, in a newly-discovered country,

settled by British subjects, the occupancy of the Crown

with respect to the waste lands of that country, is no

fiction. If, in one sense, those lands be the patrimony of

the nation, the Sovereign is the representative, and the

executive authority of the nation, the 'moral personality'

(as Vattel calls him, Law of Nations, book 1, chap 4),

by whom the nation acts, and in whom for such purposes

its power resides. Here is a property, depending for its

support on no feudal notions or principle. But if the

feudal system of tenures be, as we take it to be, part of

the universal law of the parent state, on what shall it be

said not to be law, in New South Wales? At the moment of

its settlement the colonists brought the common law of

England with them."

26. This judgment has formidable support. It was described as "notable" byWindeyer J. (9) In Wade v. New South Wales Rutile MiningCo. Pty. Ltd.[1969] HCA 28; (1969)121 CLR 177, at p 194 who followed its doctrine in Randwick Corporation v.Rutledge (10)[1959]HCA 63; (1959) 102 CLR 54,at p 71:

" On the first settlement of New South Wales (then

comprising the whole of eastern Australia), all the land

in the colony became in law vested in the Crown. The

early Governors had express powers under their commissions

to make grants of land. The principles of English real

property law, with socage tenure as the basis, were

introduced into the colony from the beginning - all lands

of the territory lying in the grant of the Crown, and

until granted forming a royal demesne. The colonial Act,

6 Wm IV No. 16 (1836), recited in its preamble that the

Governors by their commissions under the Great Seal had

authority 'to grant and dispose of the waste lands' - the

purpose of the Act being simply to validate grants which

had been made in the names of the Governors instead of

in the name of the Sovereign. And when in 1847 a bold

argument, which then had a political flavour, challenged

the right of the Crown, that was to say of the Home

Government, to dispose of land in the colony, it was as

a legal proposition firmly and finally disposed of by

Sir Alfred Stephen C.J.: The Attorney-General v.

Brown (11) (1847) 1 Legge, at pp 317-320."

27. The doctrine of exclusive Crown ownership of all land in the Australiancolonies was again affirmed by Stephen J. in New SouthWales v. TheCommonwealth ("the Seas and Submerged Lands Case") (12)[1975] HCA 58; (1975) 135 CLR 337, atpp 438-439:

" That originally the waste lands in the colonies were

owned by the British Crown is not in doubt. Such ownership

may perhaps be regarded as springing from a prerogative

right, proprietary in nature, such as is described by

Dr. Evatt in his unpublished work on the subject ... the

prerogatives of the Crown were a part of the common law

which the settlers brought with them on settlement

(R. v. Kidman, per Griffith C.J. (13)[1915] HCA 58; (1915) 20 CLR 425,

at pp 435-436); 'the prerogative

of the Queen, when it has not been expressly limited by

local law or statute, is as extensive in Her Majesty's

colonial possessions as in Great Britain' (per Lord Watson

speaking for their Lordships in Liquidators of Maritime

Bank of Canada v. Receiver-General (New Brunswick) (14)

(1892) AC 437, at p 441);

cited by Isaacs J. in The Commonwealth v. New South

Wales (15)[1923] HCA 34; (1923) 33 CLR 1, at p 37. On the other hand

that ownership may be

described as a consequence of the feudal principle which,

on first settlement in Australia, was 'extended to the

lands oversea', so that all colonial land belonged 'to the

Crown until the Crown chose to grant it' (per Isaacs J. in

Williams' Case (16) Williams v. Attorney-General for New South

Wales[1913] HCA 33; (1913) 16 CLR 404, at p 439). In either event the

consequence is

the same, the lands of Australia became the property of the

King of England (Attorney-General v. Brown (17) (1847) 1

Legge, at pp 317-320)."

28. The proposition that, when the Crown assumed sovereignty ovER anAustralian colony, it became the universal and absolute beneficialowner ofall the land therein, invites critical examination. If the conclusion atwhich Stephen C.J. arrived in Attorney-Generalv. Brown be right, theinterests of indigenous inhabitants in colonial land were extinguished so soonas British subjects settledin a colony, though the indigenous inhabitants hadneither ceded their lands to the Crown nor suffered them to be taken as thespoilsof conquest. According to the cases, the common law itself took fromindigenous inhabitants any right to occupy their traditionalland, exposedthem to deprivation of the religious, cultural and economic sustenance whichthe land provides, vested the land effectivelyin the control of the Imperialauthorities without any right to compensation and made the indigenousinhabitants intruders in theirown homes and mendicants for a place to live.Judged by any civilized standard, such a law is unjust and its claim to bepart ofthe common law to be applied in contemporary Australia must bequestioned. This Court must now determine whether, by the commonlaw of thiscountry, the rights and interests of the Meriam people of today are to bedetermined on the footing that their ancestorslost their traditional rightsand interests in the land of the Murray Islands on 1 August 1879.

29. In discharging its duty to declare the common law of Australia, thisCourt is not free to adopt rules that accord with contemporarynotions ofjustice and human rights if their adoption would fracture the skeleton ofprinciple which gives the body of our law itsshape and internal consistency.Australian law is not only the historical successor of, but is an organicdevelopment from, the lawof England. Although our law is the prisoner of itshistory, it is not now bound by decisions of courts in the hierarchy of anEmpirethen concerned with the development of its colonies. It is notimmaterial to the resolution of the present problem that, since theAustraliaAct 1986 (Cth) came into operation, the law of this country is entirely freeof Imperial control. The law which governs Australia is Australianlaw. ThePrivy Council itself held that the common law of this country mightlegitimately develop independently of English precedent(19) See AustralianConsolidated Press Ltd. v. Uren[1967] UKPCHCA 2; (1967) 117 CLR 221, at pp 238, 241; (1969) AC590, at pp 641,644. Increasinglysince 1968 (20) See thePrivy Council(Limitation of Appeals) Act 1968 (Cth) and see the Privy Council (Appeals fromthe High Court) Act 1975 (Cth), the common law of Australia has beensubstantiallyin the hands of this Court. Here rests the ultimateresponsibility of declaring the law of the nation. Although this Court is freeto depart from English precedent which was earlier followed as stating thecommon law of this country (21) Cook v. Cook[1986] HCA73; (1986) 162CLR 376, at pp 390,394; Viro v. The Queen[1978] HCA 9; (1978) 141 CLR 88, at pp 93, 120-121, 132, 135,150-151,166, 174, it cannot do so wherethe departure would fracture what Ihavecalled the skeleton of principle. The Court is even morereluctant todepart from earliERdecisions of its own (22) Jones v. TheCommonwealth (1987)61 ALJR 348, at p 349; 71 ALR 497, atpp 498-499; John v. Federal Commissionerof Taxation[1989] HCA 5; (1989) 166 CLR 417, at pp 438-439, 451-452; McKinney v. The Queen[1991] HCA 6; (1991) 171 CLR 468, at pp 481-482. The peace and orderof Australian societyis built on the legal system. It canbe modifiedto bring it into conformitywith contemporary notions ofjustice and human rights, but it cannot bedestroyed. It isnot possible,a priori, to distinguish between cases thatexpress askeletal principle and those which do not, but no case can commandunquestioningadherence if the rule it expresses seriously offendsthe valuesof justice and human rights (especially equality beforethe law)which areaspirations of the contemporary Australianlegal system. If a postulated ruleof the common law expressed inearlier casesseriously offends thosecontemporary values, thequestion arises whether the rule should be maintainedand applied. Whenever sucha question arises, it is necessary to assesswhetherthe particular rule is an essential doctrine of our legal systemandwhether,if the rule were to be overturned, the disturbanceto be apprehendedwould be disproportionate to the benefit flowingfrom the overturning.

30. In the present case, the defendant's chain of argument contains severallinks, each of which must be separately considered although,as we shall see,a common theme or thread runs through them. Some of these links areunchallenged. We start with the propositionthat the Imperial Crown acquiredsovereignty over the Murray Islands on 1 August 1879 and that the laws ofQueensland (includingthe common law) became the law of the Murray Islands onthat day - or, if it be necessary to rely on the Colonial Boundaries Act1895,is deemed to have become the law of the Murray Islands on that day. Next, bythe common law, the Crown acquired a radicalor ultimate title to the MurrayIslands. The plaintiffs accept these propositions but challenge the finallink in the chain, namely,that the Crown also acquired absolute beneficialownership of the land in the Murray Islands when the Crown acquiredsovereigntyovER them.

31. As the passages cited from the judgments in Attorney-General v. Brown andthe Seas and Submerged Lands Case show, the propositionthat, by the commonlaw, the Sovereign acquired absolute beneficial ownership of all land in theMurray Islands rests on a numberof bases. In the first place, it is saidthat the Crown is absolute owner because "there is no othER proprietor". Thisbasis deniesthat the indigenous inhabitants possessed a proprietary interest.The negative basis is then buttressed by three positive bases toshow why itis necessary to attribute absolute beneficial ownership to the Crown. Onebasis is that, when English law was broughtto Australia with and by Britishcolonists, the common law to be applied in the colonies included the feudaldoctrine of tenure. Just as the Crown acquired or is deemed to have acquireduniversal ownership of all land in England, so the Crown became the ownerofall land in the Australian colonies. We may call this the feudal basis.Another basis is that all land in a colony is "the patrimonyof the nation"and, on this basis, the Crown acquired ownership of the patrimony on behalf ofthe nation. A third basis is the prerogativebasis mentioned by Stephen J. inthe Seas and Submerged Lands Case. In order to determine whether, on any orall of these bases,the Crown acquired beneficial ownership of the land in theMurray Islands when the Crown acquired sovereignty over them, we mustfirstreview the legal theories relating to the acquisition of sovereignty and theintroduction of the common law.

The acquisition of sovereignty

"The acquisition of territory by a sovereign state for the

first time is an act of state which cannot be challenged,

controlled or interfered with by the courts of that state."

" It still lies within the prerogative power of the Crown

to extend its sovereignty and jurisdiction to areas of

land or sea over which it has not previously claimed or

exercised sovereignty or jurisdiction. For such extension

the authority of Parliament is not required."

32. Although the question whether a territory has been acquired by the Crownis not justiciable before municipal courts, those courtshave jurisdiction todetermine the consequences of an acquisition under municipal law.Accordingly, the municipal courts must determinethe body of law which is inforce in the new territory. By the common law, the law in force in anewly-acquired territory dependson the manner of its acquisition by theCrown. Although the manner in which a sovereign state might acquire newterritory is a matterfor international law, the common law has had to marchin step with international law in order to provide the body of law to applyina territory newly acquired by the Crown.

33. International law recognized conquest, cession, and occupation ofterritory that was terra nullius as three of the effectiveways of acquiringsovereignty. No other way is presently relevant (27) See E. Evatt, "TheAcquisition of Territory in Australia andNew Zealand" in (1968) GrotianSociety Papers, p 16, who mentions only cession and occupation as relevant tothe Australasian colonies. The great voyages of European discovery opened toEuropean nations the prospect of occupying new and valuable territories thatwerealready inhabited. As among themselves, the European nations parcelledout the territories newly discovered to the sovereigns ofthe respectivediscoverers (28) Worcester v. Georgia[1832] USSC 39; (1832) 6 Pet 515, at pp 543-544 (31 US350, at p 369), provided the discoverywas confirmed by occupation andprovided the indigenousinhabitants were not organized in a society that wasunited permanently forpolitical action (29) Lindley, The Acquisition andGovernmentof Backward Territory in International Law, (1926), Chs III and IV.To these territories the European colonial nations applied thedoctrinesrelating to acquisition of territory that was terra nullius. They recognizedthe sovereignty of the respective Europeannations over the territory of"backward peoples" and, by State practice,permitted the acquisition ofsovereignty of such territoryby occupation rather than by conquest (30) SeeLindley, ibid., p 47. Various justifications for the acquisition ofsovereignty overthe territory of "backward peoples" were advanced. Thebenefits ofChristianity and European civilization had been seen as asufficientjustification from mediaeval times (31) See Williams, The AmericanIndian in Western Legal Thought, (1990), pp 78ff; and Johnsonv. McIntosh[1823] USSC 22; (1823) 8 Wheat 543, at p 573 (21 US 240, at p 253). Anotherjustification forthe application of the theory of terra nullius toinhabited territory - ajustification first advanced by Vattelat the end of the 18th century - wasthat new territories could beclaimed by occupation if the land wereuncultivated, for Europeanshad a right to bring lands into production if theywere left uncultivatedby the indigenous inhabitants (32) Vattel, The Law ofNations(1797), Bk I, pp 100-101. See Castles, An Australian Legal History,(1982), pp 16-17. It may be doubted whether, even if thesejustificationswere accepted, the facts would have sufficed to permitacquisition of theMurray Islands as though the Islands wereterra nullius. The Meriam peoplewere, as Moynihan J. found, devotedgardeners. In 1879, having accepted theinfluence of the LondonMissionary Society, they were living peacefully in aland-basedsociety under some sort of governance by the Mamoose and the LondonMissionary Society. However that may be, it is not for thisCourt to canvassthe validity of the Crown's acquisition of sovereigntyover the Islands which,in any event, was consolidated byuninterrupted control of the Islands byQueensland authorities (33) 10Encyclopaedia of Public International Law,(1987), p 500;cf. J. Crawford, "The Criteria for Statehood in InternationalLaw", (1977)48 The British Year Book of International Law 93, at p116.

34. The enlarging of the concept of terra nullius by international law tojustify the acquisition of inhabited territory by occupationon behalf of theacquiring sovereign raised some difficulties in the expounding of the commonlaw doctrines as to the law to be appliedwhen inhabited territories wereacquired by occupation (or "settlement", to use the term of the common law).Although Blackstonecommended the practice of "sending colonies (of settlers)to find out new habitations", he wrote (34) Commentaries on the Laws ofEngland, 17th ed. (1830), Bk II, ch 1, p 7-

"so long as it was confined to the stocking and cultivation

of desert uninhabited countries, it kept strictly within

the limits of the law of nature. But how far the seising

on countries already peopled, and driving out or massacring

the innocent and defenceless natives, merely because

they differed from their invaders in language, in religion,

in customs, in government, or in colour; how far such

a conduct was consonant to nature, to reason, or to

christianity, deserved well to be considered by those,

who have rendered their names immortal by thus civilizing

mankind".

35. The means by which the municipal laws of England, including the commonlaw, became the law of a country that had been outsidethe King's dominionswere stated by Blackstone (37) Commentaries, Bk I, ch.4, pp 106-108; accord:Forbes v. Cochrane (1824) 2 B andC 448, at p 463[1824] EngR 93; (107 ER 450, at p 456) asfollows:

"Plantations or colonies, in distant countries, are either

such where the lands are claimed by right of occupancy

only, by finding them desert and uncultivated, and peopling

them from the mother-country; or where, when already

cultivated, they have been either gained by conquest, or

ceded to us by treaties. And both these rights are founded

upon the law of nature, or at least upon that of nations.

But there is a difference between these two species of

colonies, with respect to the laws by which they are bound.

For it hath been held, that if an uninhabited country be

discovered and planted by English subjects, all the English

laws then in being, which are the birthright of every

subject, are immediately there in force. But this must be

understood with very many and very great restrictions.

Such colonists carry with them only so much of the English

law, as is applicable to their own situation and the

condition of an infant colony; ... What shall be admitted

and what rejected, at what times, and under what

restrictions, must, in case of dispute, be decided in

the first instance by their own provincial judicature,

subject to the revision and control of the king in council:

the whole of their constitution being also liable to be

new-modelled and reformed by the general superintending

power of the legislature in the mother-country. But in

conquered or ceded countries, that have already laws of

their own, the king may indeed alter and change those laws;

but, till he does actually change them, the ancient laws

of the country remain, unless such as are against the law

of God, as in the case of an infidel country. Our American

plantations are principally of this latter sort, being

obtained in the last century either by right of conquest

and driving out the natives (with what natural justice

I shall not at present inquire) or by treaties. And

therefore the common law of England, as such, has no

allowance or authority there; they being no part of the

mother-country, but distinct (though dependent) dominions.

They are subject, however, to the control of the

parliament".

36. When British colonists went out to other inhabited parts of the world,including New South Wales, and settled there undER theprotection of theforces of the Crown, so that the Crown acquired sovereignty recognized by theEuropean family of nations underthe enlarged notion of terra nullius, it wasnecessary for the common law to prescribe a doctrine relating to the law to beappliedin such colonies, for sovereignty imports supreme internal legalauthority (46) See A. James, Sovereign Statehood, (1986), pp 3ff.,203-209.The view was taken that, when sovereignty of a territory could be acquiredunder the enlarged notion of terra nullius, forthe purposes of the municipallaw that territory (though inhabited) could be treated as a "desertuninhabited" country. The hypothesisbeing that there was no local lawalready in existence in the territory (47) Lyons (Mayor of) v. East India Co.[1836] EngR 1155; (1836) 1 Moo PC 175,at pp 272-273[1836] EngR 1155; (12 ER 782, at p 818); Cooper v. Stuart(1889) 14 App Cas ; The Lauderdale Peerage (1885) 10 App Cas 692, at pp744-745;Kielleyv. Carson[1842] EngR 593; (1842) 4 Moo PC 63, at pp 84-85[1842] EngR 593; (13 ER 225, at p233), the law of England became the law of the territory (andnot merely thepersonal law of the colonists). Coloniesof this kind were called "settledcolonies". Ex hypothesi, the indigenousinhabitants of a settled colony hadno recognized sovereign,else the territory could have been acquired only byconquest or cession. The indigenous people of a settled colony were thustakento be without laws, without a sovereign and primitive in their socialorganization. In Advocate-General of Bengal v. Ranee SurnomoyeDossee (48)(1863) 2 Moo N S 22, at p 59[1863] EngR 761; (15 ER 811, at p 824); 9Moo Ind App 391, at p428[1863] EngR 767; (19 ER 786, at p 800) Lord Kingsdown used the term "barbarous" to describethe native state of a settledcolony:

" Where Englishmen establish themselves in an uninhabited

or barbarous country, they carry with them not only the

laws, but the sovereignty of their own State; and those who

live amongst them and become members of their community

become also partakers of, and subject to the same laws."

" The extent to which English law is introduced into a

British Colony, and the manner of its introduction, must

necessarily vary according to circumstances. There is a

great difference between the case of a Colony acquired

by conquest or cession, in which there is an established

system of law, and that of a Colony which consisted of a

tract of territory practically unoccupied, without settled

inhabitants or settled law, at the time when it was

peacefully annexed to the British dominions. The Colony

of New South Wales belongs to the latter class. In the

case of such a Colony the Crown may by ordinance, and the

Imperial Parliament, or its own legislature when it comes

to possess one, may by statute declare what parts of the

common and statute law of England shall have effect within

its limits. But, when that is not done, the law of England

must (subject to well-established exceptions) become from

the outset the law of the Colony, and be administered by

its tribunals. In so far as it is reasonably applicable

to the circumstances of the Colony, the law of England

must prevail, until it is abrogated or modified, either by

ordinance or statute."

37. It is one thing for our contemporary law to accept that the laws ofEngland, so far as applicable, became the laws of New SouthWales and of theother Australian colonies. It is anothER thing for our contemporary law toaccept that, when the common law ofEngland became the common law of theseveral colonies, the theory which was advanced to support the introduction ofthe common lawof England accords with our present knowledge and appreciationof the facts. When it was sought to apply Lord Watson's assumptionin Cooperv. Stuart that the colony of New South Wales was "without settled inhabitantsor settled law" to Aboriginal society inthe Northern Territory, theassumption proved false. In Milirrpum v. Nabalco Pty. Ltd. Blackburn J. said(58) (1971) 17 FLR 141,at p 267:

"The evidence shows a subtle and elaborate system highly

adapted to the country in which the people led their lives,

which provided a stable order of society and was remarkably

free from the vagaries of personal whim or influence. If

ever a system could be called 'a government of laws, and

not of men', it is that shown in the evidence before me."

"Whether or not the Australian aboriginals living in any

part of New South Wales had in 1788 a system of law which

was beyond the powers of the settlers at that time to

perceive or comprehend, it is beyond the power of this

Court to decide otherwise than that New South Wales came

into the category of a settled or occupied colony."

38. The facts as we know them today do not fit the "absence of law" or"barbarian" theory underpinning the colonial reception ofthe common law ofEngland. That being so, there is no warrant for applying in these times rulesof the English common law whichwere the product of that theory. It would bea curious doctrine to propound today that, when the benefit of the common lawwas firstextended to Her Majesty's indigenous subjects in the Antipodes, itsfirst fruits were to strip them of their right to occupy theirancestrallands. Yet the supposedly barbarian nature of indigenous people provided thecommon law of England with the justificationfor denying them theirtraditional rights and interests in land, as Lord SumnER speaking for thePrivy Council said in In re SouthernRhodesia (60) (1919) AC 211, at pp233-234:

" The estimation of the rights of aboriginal tribes is

always inherently difficult. Some tribes are so low in

the scale of social organization that their usages and

conceptions of rights and duties are not to be reconciled

with the institutions or the legal ideas of civilized

society. Such a gulf cannot be bridged. It would be idle

to impute to such people some shadow of the rights known

to our law and then to transmute it into the substance of

transferable rights of property as we know them."

39. As the indigenous inhabitants of a settled colony were regarded as "lowin the scale of social organization", they and theiroccupancy of colonialland were ignored in considering the title to land in a settled colony.Ignoring those rights and interests,the Crown's sovereignty over a territorywhich had been acquired under the enlarged notion of terra nullius was equatedwith Crownownership of the lands therein, because, as Stephen C.J. said,there was "no other proprietor of such lands". Thus, a Select CommitteeonAborigines reported in 1837 to the House of Commons that the state ofAustralian Aborigines was "barbarous" and "so entirely destitute... of therudest forms of civil polity, that their claims, whether as sovereigns orproprietors of the soil, have been utterly disregarded"(61) Cited by Lindley,op cit, at p 41. The theory that the indigenous inhabitants of a "settled"colony had no proprietary interestin the land thus depended on adiscriminatory denigration of indigenous inhabitants, their socialorganization and customs. As thebasis of the theory is false in fact andunacceptable in our society, there is a choice of legal principle to be madein the presentcase. This Court can either apply the existing authorities andproceed to inquire whether the Meriam people are higher "in the scaleofsocial organization" than the Australian Aborigines whose claims were "utterlydisregarded" by the existing authorities or theCourt can overrule theexisting authorities, discarding the distinction between inhabited coloniesthat were terra nullius and thosewhich were not.

40. The theory of terra nullius has been critically examined in recent timesby the International Court of Justice in its AdvisoryOpinion on WesternSahara (62) (1975) ICJR, at p 39. There the majority judgment read:

"'Occupation' being legally an original means of peaceably

acquiring sovereignty over territory otherwise than by

cession or succession, it was a cardinal condition of a

valid 'occupation' that the territory should be terra

nullius - a territory belonging to no-one - at the time of

the act alleged to constitute the 'occupation' (cf. Legal

Status of Eastern Greenland, P.C.I.J., Series A/B, No.53,

pp 44 f. and 63 f.). In the view of the Court, therefore,

a determination that Western Sahara was a 'terra nullius'

at the time of colonization by Spain would be possible only

if it were established that at that time the territory

belonged to no-one in the sense that it was then open to

acquisition through the legal process of 'occupation'.

80. Whatever differences of opinion there may have been

among jurists, the State practice of the relevant period

indicates that territories inhabited by tribes or peoples

having a social and political organization were not

regarded as terrae nullius. It shows that in the case of

such territories the acquisition of sovereignty was not

generally considered as effected unilaterally through

'occupation' of terra nullius by original title but through

agreements concluded with local rulers. On occasion, it

is true, the word 'occupation' was used in a non-technical

sense denoting simply acquisition of sovereignty; but that

did not signify that the acquisition of sovereignty through

such agreements with authorities of the country was

regarded as an 'occupation' of a "terra nullius" in the

proper sense of these terms. On the contrary, such

agreements with local rulers, whether or not considered as

an actual 'cession' of the territory, were regarded as

derivative roots of title, and not original titles obtained

by occupation of terrae nullius."

" Mr. Bayona-Ba-Meya, goes on to dismiss the materialistic

concept of terra nullius, which led to this dismemberment

of Africa following the Berlin Conference of 1885.

Mr. Bayona-Ba-Meya substitutes for this a spiritual notion:

the ancestral tie between the land, or 'mother nature', and

the man who was born therefrom, remains attached thereto,

and must one day return thither to be united with his

ancestors. This link is the basis of the ownership of the

soil, or better, of sovereignty. This amounts to a denial

of the very concept of terra nullius in the sense of a land

which is capable of being appropriated by someone who is

not born therefrom. It is a condemnation of the modern

concept, as defined by Pasquale Fiore, which regards as

terrae nullius territories inhabited by populations whose

civilization, in the sense of the public law of Europe, is

backward, and whose political organization is not conceived

according to Western norms.

One might go still further in analysing the statement

of the representative of Zaire so as to say that he would

exclude from the concept of terra nullius any inhabited

territory. His view thus agrees with that of Vattel, who

defined terra nullius as a land empty of inhabitants."

41. If the international law notion that inhabited land may be classified asterra nullius no longer commands general support, thedoctrines of the commonlaw which depend on the notion that native peoples may be "so low in the scaleof social organization" thatit is "idle to impute to such people some shadowof the rights known to our law" (65) In re Southern Rhodesia (1919) AC, at pp233-234can hardly be retained. If it were permissible in past centuries tokeep the common law in step with international law, it is imperativeintoday's world that the common law should neither be nor be seen to be frozenin an age of racial discrimination.

42. The fiction by which the rights and interests of indigenous inhabitantsin land were treated as non-existent was justified bya policy which has noplace in the contemporary law of this country. The policy appears explicitlyin the judgment of the Privy Councilin In re Southern Rhodesia in rejectingan argument (66) ibid., at p 232 that the native people "were the owners ofthe unalienatedlands long before either the Company or the Crown becameconcerned with them and from time immemorial ... and that the unalienatedlands belonged to them still". Their Lordships replied (67) ibid., at p 234-

"the maintenance of their rights was fatally inconsistent

with white settlement of the country, and yet white

settlement was the object of the whole forward movement,

pioneered by the Company and controlled by the Crown, and

that object was successfully accomplished, with the result

that the aboriginal system gave place to another prescribed

by the Order in Council".

"the common law of this land has still not reached the stage

of retreat from injustice which the law of Illinois and

Virginia had reached in 1823 when Marshall C.J., in Johnson

v. McIntosh (70) (1823) 8 wheat, at p 574 (21 US , at

p 253), accepted that, subject to the assertion

of ultimate dominion (including the power to convey title

by grant) by the State, the 'original inhabitants' should

be recognized as having 'a legal as well as just claim' to

retain the occupancy of their traditional lands".

43. However, recognition by our common law of the rights and interests inland of the indigenous inhabitants of a settled colonywould be precluded ifthe recognition were to fracture a skeletal principle of our legal system.The proposition that the Crown becamethe beneficial owner of all colonialland on first settlement has been supported by more than a disregard ofindigenous rights andinterests. It is necessary to consider these otherreasons for past disregard of indigenous rights and interests and then toreturnto a consideration of the question whether and in what way ourcontemporary common law recognizes such rights and interests in land.

Crown title to colonies and Crown ownership of colonial land distinguished

44. In the trilogy of cases cited earlier in this judgment (71) Supra, pp12-15: Attorney-General v. Brown; Randwick Corporationv. Rutledge; the Seasand Submerged Lands Case, it was said that colonial land became a royaldemesne - that is, that the Crown becamethe absolute beneficial owner inpossession of all colonial land - on first settlement, the event whichconferred sovereignty onthe Imperial Crown. Curiously, in Williams v.Attorney-General for New South Wales (72)[1913] HCA 33; (1913) 16 CLR 404, at p439, IsaacsJ. saidit was unquestionable that -

"when Governor Phillip received his first Commission from

King George III. on 12th October 1786, the whole of the

lands of Australia were already in law the property of the

King of England".

45. There is a distinction between the Crown's title to a colony and theCrown's ownership of land in the colony, as Roberts-Wraypoints out (74)ibid., p 625:

"If a country is part of Her Majesty's dominions, the

sovereignty vested in her is of two kinds. The first

is the power of government. The second is title to the

country ...

This ownership of the country is radically different

from ownership of the land: the former can belong only to

a sovereign, the latter to anyone. Title to land is not,

per se, relevant to the constitutional status of a country;

land may have become vested in the Queen, equally in

a Protectorate or in a Colony, by conveyance or under

statute ...

The distinction between these two conceptions has,

however, become blurred by the doctrine that the

acquisition of sovereignty over a Colony, whether by

settlement, cession or conquest, or even of jurisdiction

in territory which remains outside the British dominions,

imports Crown rights in, or in relation to, the land

itself."

"The first conception pertains to the domain of public law,

the second to that of private law. Territory is the

subject-matter of the right of sovereignty or imperium

while property is the subject-matter of the right of

ownership or dominium. These two rights may or may not

co-exist in the Crown in respect of the same area. Land

may be held by the Crown as territory but not as property,

or as property but not as territory, or in both rights at

the same time. As property, though not as territory, land

may be held by one state within the dominions of another."

"This doctrine (of act of State), which was affirmed in

several cases arising out of the acquisition of territory

in Africa and India, has been misinterpreted to the effect

that the substantive rights themselves have not survived

the change."

"This attitude of mind also encouraged the rejection of any

theory which would say that the lord 'owned' the land, and

that the rights of tenants in the land were iura in re

aliena. Such a theory would have led inevitably to saying

that the King, who was ultimately lord of all land, was the

'owner' of all land.

The lawyers never adopted the premise that the King

owned all the land; such a dogma is of very modern

appearance. It was sufficient for them to note that the

King was lord, ultimately, of all the tenants in the realm,

and that as lord he had many rights common to other lords

(e.g. rights to escheats) and some peculiar to his position

as supreme lord (e.g. rights to forfeitures)."

"Occupancy is the thing by which the title was in fact

originally gained; every man seizing such spots of ground

as he found most agreeable to his own convenience, provided

he found them unoccupied by any one else." (Emphasis

added.)

46. It was only by fastening on the notion that a settled colony was terranullius that it was possible to predicate of the Crownthe acquisition ofownership of land in a colony already occupied by indigenous inhabitants. Itwas only on the hypothesis thatthere was nobody in occupation that it couldbe said that the Crown was the owner because there was no other. If thathypothesisbe rejected, the notion that sovereignty carried ownership in itswake must be rejected too. Though the rejection of the notionof terranullius clears away the fictional impediment to the recognition of indigenousrights and interests in colonial land, itwould be impossible for the commonlaw to recognize such rights and interests if the basic doctrines of thecommon law are inconsistentwith their recognition.

47. A basic doctrine of the land law is the doctrine of tenure, to whichStephen C.J. referred in Attorney-General v. Brown, andit is a doctrine whichcould not be overturned without fracturing the skeleton which gives our landlaw its shape and consistency.It is derived from feudal origins.

The feudal basis of the proposition of absolute Crown ownership

48. The land law of England is based on the doctrine of tenure. In Englishlegal theory, every parcel of land in England is heldeither mediately orimmediately of the King who is the Lord Paramount; the term "tenure" is usedto signify the relationship betweentenant and lord (80) Attorney-General ofOntario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, not the relationshipbetween tenantand land. The characteristic of feudalism "is not tenereterram, but tenere terram de X" (81) Pollock and Maitland, The HistoryofEnglish Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit inthe relationship of tenure that both lord and tenanthave an interest in theland: "The King had 'dominium directum', the subject 'dominium utile'" (82)ibid., p 773; Co Litt 16. Absenta "dominium directum" in the Crown, therewould be no foundation for a tenure arising on the making of a grant of land.When theCrown acquired territory outside England which was to be subject tothe common law, there was a natural assumption that the doctrineof tenureshould be the basis of the land law. Perhaps the assumption did not have tobe made. After all, as Holdsworth observed(83) op cit, vol.ii, p 199, theuniversal application of the doctrine of tenure is a purely Englishphenomenon. And Pollock and Maitlandmay be correct in saying (84) op cit,vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that thenotion of universaltenure "perhaps was possible only in a conquered country".In Scotland, the King was not Paramount Lord of all land: some allodiallandsremained in the Orkney and Shetland Islands, though most land that had beenheld allodially became subject to feudal tenure(85) Bell, Lectures onConveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, TheInstitutions of the Law of Scotland,4th ed. (1826), pp 219, 222; Craigie,Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v.Balfour (1907)SC 1360, at p 1368-1369. However, the English view favoured auniversal application of the doctrine of tenure (86) Pollock and Maitland,opcit, pp 232-233:

" Every acre of English soil and every proprietary right

therein have been brought within the compass of a single

formula, which may be expressed thus: - Z tenet terram

illam de ... domino Rege. The king himself holds land which

is in every sense his own; no one else has any proprietary

right in it; but if we leave out of account this royal

demesne, then every acre of land is 'held of' the king. The

person whom we may call its owner, the person who has the

right to use and abuse the land, to cultivate it or leave

it uncultivated, to keep all others off it, holds the land

of the king either immediately or mediately."

49. It is arguable that universality of tenure is a rule depending on Englishhistory and that the rule is not reasonably applicableto the Australiancolonies. The origin of the rule is to be found in a traditional belief that,at some time after the Norman Conquest,the King either owned beneficially andgranted, or otherwise became the Paramount Lord of, all land in the Kingdom(87) Bacon's Abridgement,6th ed. (1807), vol.V, "Prerogative", B,1.According to Digby's History of the Law of Real Property (88) (1897), p 34William I succeededto all rights over land held by the Anglo-Saxon kings; heacquired by operation of law the land of those who had resisted his conquestand a vast quantity of land was deemed to have been forfeited or surrenderedto William and regranted by him. He may have becomethe proprietor of allland in England so that no allodial land remained. Or it may be, asBlackstone asserts, that in England, asin France, the allodial estates weresurrendered into the king's hands and were granted back as feuds, the onlydifference beingthat in France the change "was effected gradually, by theconsent of private persons; (the change) was done at once, all over England,by the common consent of the nation" (89) Commentaries, Bk II, ch.4, pp 50-51.But, whatever the fact, it is the fiction of royalgrants that underlies theEnglish rule. Blackstone says (90) ibid that -

"it became a fundamental maxim, and necessary principle

(though in reality a mere fiction) of our English tenures,

'that the king is the universal lord and original

proprietor of all the lands in his kingdom; and that no man

doth or can possess any part of it, but what has, mediately

or immediately, been derived 'as a gift from him, to be

held upon feodal services.' For this being the real case

in pure, original, proper feuds, other nations who adopted

this system were obliged to act upon the same supposition,

as a substruction and foundation of their new polity,

though the fact was indeed far otherwise".

50. Accepting the doctrine of tenure, it was an essential postulate that theCrown have such a title to land as would invest theSovereign with thecharacter of Paramount Lord in respect of a tenure created by grant and wouldattract the incidents appropriateto the tenure, especially the Crown's rightto escheat (91) Wright, Introduction to the Law of Tenures, 4th ed. (1792), p5. TheCrown was invested with the character of Paramount Lord in thecolonies by attributing to the Crown a title, adapted from feudaltheory, thatwas called a radical, ultimate or final title: see, for example, Amodu Tijaniv. Secretary, Southern Nigeria (92) (1921)2 AC 399, at pp 403, 404, 407;Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration ofPapua and New Guinea v.Daera Guba (94) (1973) 130 CLR 353, at pp 396-397.The Crown was treated as having the radical title to all the landin theterritoryover which the Crown acquired sovereignty. The radical title is apostulate of the doctrine of tenure and a concomitantof sovereignty. As asovereign enjoys supreme legal authority in and over a territory, thesovereign has power to prescribe whatparcels of landand what interests inthose parcels should be enjoyed by others and what parcels of land should bekept as the sovereign'sbeneficialdemesne.

51. By attributing to the Crown a radical title to all land within aterritory over which the Crown has assumed sovereignty, thecommon law enabledthe Crown, in exercise of its sovereign power, to grant an interest in land tobe held of the Crown or to acquireland for the Crown's demesne. The notionof radical title enabled the Crown to become Paramount Lord of all who hold atenure grantedby the Crown and to become absolute beneficial owner ofunalienated land required for the Crown's purposes. But it is not a corollaryof the Crown's acquisition of a radical title to land in an occupied territorythat the Crown acquired absolute beneficial ownershipof that land to theexclusion of the indigenous inhabitants. If the land were desert anduninhabited, truly a terra nullius, theCrown would take an absolutebeneficial title (an allodial title) to the land for the reason given byStephen C.J. in Attorney-Generalv. Brown (95) See pp 13-14 above; (1847) 1Legge, at pp 317-318: there would be no other proprietor. But if the landwere occupiedby the indigenous inhabitants and their rights and interests inthe land are recognized by the common law, the radical title whichis acquiredwith the acquisition of sovereignty cannot itself be taken to confer anabsolute beneficial title to the occupied land.Nor is it necessary to thestructure of our legal system to refuse recognition to the rights andinterests in land of the indigenousinhabitants. The doctrine of tenureapplies to every Crown grant of an interest in land, but not to rights andinterests which donot owe their existence to a Crown grant. The Englishlegal system accommodated the recognition of rights and interests derivedfromoccupation of land in a territory over which sovereignty was acquired byconquest without the necessity of a Crown grant.

52. After the conquest of Ireland, it was held in The Case of Tanistry (96)(1608) Davis 28 (80 ER 516); 4th ed. Dublin (1762) Englishtranslation 78, atpp 110-111 that the Crown was not in actual possession of the land by virtueof the conquest and that -

"a royal monarch (who) hath made a new conquest of a realm,

although in fact he hath the lordship paramount of all the

lands within such realm, so that these are all held of him,

mediate vel immediate, and he hath also the possession of

all the lands which he willeth actually to seise and retain

in his own hands for his profit or pleasure, and may also

by his grants distribute such portions as he pleaseth ...

yet ... if such conqueror receiveth any of the natives or

antient inhabitants into his protection and avoweth them

for his subjects, and permitteth them to continue their

possessions and to remain in his peace and allegiance,

their heirs shall be adjudged in by good title without

grant or confirmation of the conqueror, and shall enjoy

their lands according to the rules of the law which the

conqueror hath allowed or established, if they will submit

themselves to it, and hold their lands according to the

rules of it, and not otherwise."

"There is a tendency, operating at times unconsciously, to

render (native) title conceptually in terms which are

appropriate only to systems which have grown up under

English law. But this tendency has to be held in check

closely. As a rule, in the various systems of native

jurisprudence throughout the Empire, there is no such full

division between property and possession as English lawyers

are familiar with. A very usual form of native title is

that of a usufructuary right, which is a mere qualification

of or burden on the radical or final title of the Sovereign

where that exists. In such cases the title of the

Sovereign is a pure legal estate, to which beneficial

rights may or may not be attached. But this estate is

qualified by a right of beneficial user which may not

assume definite forms analogous to estates, or may, where

it has assumed these, have derived them from the intrusion

of the mere analogy of English jurisprudence."

"were secure in their usufructuary title to land, (but)

the land came from the inception of the colony into the

dominion of Her Majesty. That is to say, the ultimate

title subject to the usufructuary title was vested in the

Crown. Alienation of that usufructuary title to the Crown

completed the absolute fee simple in the Crown".

"The title, such as it is, may not be that of the

individual, as in this country it nearly always is in some

form, but may be that of a community. Such a community

may have the possessory title to the common enjoyment

of a usufruct, with customs under which its individual

members are admitted to enjoyment, and even to a right

of transmitting the individual enjoyment as members by

assignment inter vivos or by succession. To ascertain

how far this latter development of right has progressed

involves the study of the history of the particular

community and its usages in each case. Abstract principles

fashioned a priori are of but little assistance, and are as

often as not misleading."

53. If it be necessary to categorize an interest in land as proprietary inorder that it survive a change in sovereignty, the interestpossessed by acommunity that is in exclusive possession of land falls into that category.Whether or not land is owned by individualmembers of a community, a communitywhich asserts and asserts effectively that none but its members has any rightto occupy or usethe land has an interest in the land that must be proprietaryin nature: there is no other proprietor. It would be wrong, in myopinion,to point to the inalienability of land by that community and, by importingdefinitions of "property" which require alienabilityunder the municipal lawsof our society(101) See, for example, National Provincial Bank Ltd. v.Ainsworth[1965] UKHL 1; (1965)AC 1175, at pp 1247-1248,to deny that the indigenous peopleowned their land. The ownership of land within a territoryin the exclusiveoccupation of a peoplemust be vested in that people: land is susceptible ofownership, and there are no otherowners. True itis that land in exclusivepossession of an indigenous people is not, in any private law sense, alienablepropertyfor the laws andcustoms of an indigenouspeople do not generallycontemplate the alienation of the people's traditional land. Butthe commonlawhas asserted that, if theCrown should acquire sovereignty over that land,the new sovereign may extinguish the indigenouspeople'sinterest in the landandcreate proprietary rights in its place and it would be curious if, inplace of interests that wereclassifiedas non-proprietary,proprietary rightscould be created. Where a proprietary title capable of recognition by thecommonlaw is foundto have been possessedby a community in occupation of aterritory, there is no reason why that title should not berecognized asaburden on the Crown'sradical title when the Crown acquires sovereignty overthat territory. The fact that individualmembers ofthe community, like theindividual plaintiff Aborigines in Milirrpum(102) (1971) 17 FLR, at p 272,enjoy only usufructuaryrightsthat are not proprietaryin nature is noimpediment to the recognition of a proprietary community title. Indeed, it isnotpossibleto admit traditional usufructuaryrights without admitting atraditional proprietary community title. There may be difficultiesofproof ofboundaries or of membershipof the community or of representatives of thecommunity which was in exclusive possession,butthose difficulties afford noreasonfor denying the existence of a proprietary community title capable ofrecognition by thecommonlaw. That being so, there is noimpediment to therecognition of individual non-proprietary rights that are derived fromthecommunity'slaws and customs and aredependent on the community title. Afortiori, there can be no impediment to the recognitionof individualproprietary rights.

54. Once it is accepted that indigenous inhabitants in occupation of aterritory when sovereignty is acquired by the Crown are capableof enjoying -whether in community, as a group or as individuals - proprietary interests inland, the rights and interests in theland which they had theretofore enjoyedunder the customs of their community are seen to be a burden on the radicaltitle which theCrown acquires. The notion that feudal principle dictatesthat the land in a settled colony be taken to be a royal demesne upontheCrown's acquisition of sovereignty is mistaken. However, that was not theonly basis advanced to establish the proposition ofabsolute Crown ownershipand the alternative bases must next be considered.

The "patrimony of the nation" basis of the proposition of absolute Crownownership

55. In Williams v. Attorney-General for New South Wales(103) (1913) 16 CLR,at pp 449-450 and in The Commonwealth v. Tasmania. TheTasmanian Dam Case(104)[1983] HCA 21; (1983) 158 CLR 1, at pp 208-212, there are references to the importance of therevenue derivedfrom exerciseof the power of saleof colonial land. Thefunds derived from sales of colonial land were applied to defray the costofcarryingon colonial governmentand to subsidize emigration to the AustralianColonies. Further, the power to reserve and dedicateland forpublic purposeswas importantto the government and development of the Colonies as it remainsimportant to the governmentand developmentof the Commonwealth andthe Statesand Territories. Therefore it is right to describe the powers which the Crown- at first theImperial Crown and laterthe Crown in right of the respectiveColonies - exercised with respect to colonial landsas powers conferredforthe benefit of thenation as a whole(105) Reg. v. Symonds (1847) NZPCC 387, atp 395, but it does not followthat those wereproprietary as distinctfrompolitical powers. Nor does it follow that a combination of radical title toland anda power of saleor dedication of that landwas not a valuable assetof the Colonies. It can be acknowledged that the nation obtaineditspatrimonyby sales and dedicationsof land which dispossessed its indigenouscitizens and that, to the extent that the patrimonyhas been realized,therights and interestsof the indigenous citizens in land have beenextinguished. But that is not to say thatthe patrimony wasrealized by salesand dedicationsof land owned absolutely by the Crown. What the Crownacquired was a radicaltitle to land anda sovereign political power overland, the sum of which is not tantamount to absolute ownership of land. Untilrecent times, thepolitical power to dispose of landin disregard of nativetitle was exercised so as to expand the radical titleof the Crown to absoluteownership but, where that hasnot occurred, there is no reason to deny thelaw's protection to the descendantsof indigenous citizenswho can establishtheir entitlementto rights and interests which survived the Crown'sacquisition of sovereignty. Those are rightsand interests which may nowclaimthe protection ofs.10(1) of theRacial Discrimination Act 1975 (Cth)which "clothes the holders of traditional native title who are of the nativeethnic group with the same immunity from legislativeinterference with theirenjoyment of their human right to own and inherit property as it clothes otherpersons in the community": Mabo v. Queensland(106) (1988) 166 CLR, at p 219.

The Royal Prerogative basis of the proposition of absolute Crown ownership

56. Mr Justice Evatt described ownership of vacant lands in a new colony asone of the proprietary prerogatives(107) See The Attorney-Generalfor NewSouth Wales v. Butterworth and Co. (Australia) Ltd. (1938) 38 SR (NSW) 195, atpp 246-247 . But, as that author's latelypublished work on The RoyalPrerogative shows(108) (1987), at pp 102-103, there was no judicial consensusas to whether title toownership of the vacant lands in the AustralianColonies was vested in the King as representing the supreme executive power oftheBritish Empire or in the Crown in right of the respective Colonies. Themanagement and control of the waste lands of the Crown werepassed by Imperiallegislation to the respective Colonial Governments as a transfer of politicalpower or governmental function notas a matter of title(109) Williams v.Attorney-General for New South Wales (1913) 16 CLR, at pp 453, 456. Thesuggestion that, afterthe passing of these powers to colonial governments theCrown commenced to hold Crown lands "in right of the colony"(110) Per StephenJ. in the Seas and Submerged Lands Case (1975) 135 CLR, at p 439; and note perO'Connor J. in The State of South Australia v. TheState of Victoria[1911] HCA 17; (1911) 12CLR 667, at pp 710-711 and held those lands in absolute ownership, involvesthe notionthat ownershipresided in the ExecutiveGovernment whoselegislature was vested with power to enact laws governing the managementandcontrol ofcolonial waste lands. Butthe Imperial Parliament retained thesovereign - that is, the ultimate - legislative powerover colonialaffairs,at least untilthe adoption of the Statute of Westminster(111) Madzimbamuto v.Lardner-Burke[1968] UKPC 2; (1969) 1 AC 645, at p 722 andit is hardly to be supposed thatabsolute ownership of colonial land was vested in colonial governmentswhilethe ultimate legislativepower over that land was retained by the ImperialParliament. However, if the Crown's title is merelya radical title - no morethan a postulate to support the exercise of sovereign power within thefamiliar feudal framework of thecommon law - the problemof the vesting ofthe absolute beneficial ownership of colonial land does not arise: absoluteand beneficialCrown ownership canbe acquired, if at all, by an exercise ofthe appropriate sovereign power.

57. As none of the grounds advanced for attributing to the Crown an universaland absolute ownership of colonial land is acceptable,we must now turn toconsider a further obstacle advanced against the survival of the rights andinterests of indigenous inhabitantson the Crown's acquisition ofsovereignty.

The need for recognition by the Crown of native title

58. The defendant contests the view that the common law recognizes thepossession of rights and interests in land by indigenousinhabitants ofBritish colonies and submits that, by the common law governing colonization,pre-existing customary rights and interestsin land are abolished uponcolonization of inhabited territory, unless expressly recognized by the newsovereign. There is a formidablebody of authority, mostly cases relating toIndian colonies created by cession, to support this submission(112) Secretaryof Statefor India v. Bai Rajbai (1915) LR 42 Ind App 229, at pp 237, 238-239;Vajesingji Joravarsingji v. Secretary of State for India (1924)LR 51 Ind App357, at pp 360, 361; Secretary of State for India v. Sardar Rustam Khan (1941)AC 356, at pp 370-372. Thus Lord Dunedin'sjudgment in VajesingjiJoravarsingji v. Secretary of State for India contains the following oft-citedpassage(113) (1924) LR 51 IndApp, at p 360:

"But a summary of the matter is this: when a territory is

acquired by a sovereign state for the first time that is an

act of state. It matters not how the acquisition has been

brought about. It may be by conquest, it may be by cession

following on treaty, it may be by occupation of territory

hitherto unoccupied by a recognized ruler. In all cases

the result is the same. Any inhabitant of the territory

can make good in the municipal Courts established by the

new sovereign only such rights as that sovereign has,

through his officers, recognized. Such rights as he had

under the rule of predecessors avail him nothing. Nay

more, even if in a treaty of cession it is stipulated that

certain inhabitants should enjoy certain rights, that does

not give a title to those inhabitants to enforce these

stipulations in the municipal Courts."

59. The proposition that pre-existing rights and interests in land must beestablished, if at all, under the new legal system introducedon anacquisition of sovereignty is axiomatic, and the proposition that treaties donot create rights enforceable in municipal courtsis well established(114)Cook v. Sprigg (1899) AC 572, at pp 578-579; Winfat Ltd. v. Attorney-General(1985) AC 733, at p 746. However,the relevant question is whether the rightsand interests in land derived from the old regime survive the acquisition ofsovereigntyor do they achieve recognition only upon an express act ofrecognition by the new sovereign? Lord Dunedin's view in VajesingjiJoravarsingji(115)(1924) LR 51 Ind App, at p 361 was that recognition by thesovereign of rights and interests possessed under the old regime was acondition of their recognition by the common law:

"The moment that cession is admitted the appellants

necessarily become petitioners and have the onus cast on

them of showing the acts of acknowledgment, which give them

the right they wish to be declared."

"it is to be presumed, in the absence of express

confiscation or of subsequent exproprietary legislation,

that the conqueror has respected them and forborne to

diminish or modify them".

"A mere change in sovereignty is not to be presumed as meant

to disturb rights of private owners; and the general terms

of a cession are prima facie to be construed accordingly."

"In inquiring ... what rights are recognized, there is one

guiding principle. It is this: The courts will assume

that the British Crown intends that the rights of property

of the inhabitants are to be fully respected. Whilst,

therefore, the British Crown, as Sovereign, can make

laws enabling it compulsorily to acquire land for public

purposes, it will see that proper compensation is awarded

to every one of the inhabitants who has by native law

an interest in it: and the courts will declare the

inhabitants entitled to compensation according to their

interests, even though those interests are of a kind

unknown to English law".

60. In Calder v. Attorney-General of British Columbia(124) (1973) SCR, at p416; contra per Judson J. at pp 328-330; (1973) 34 DLR(3d), at p 218; contraper Judson J. at pp 156, 157 Hall J. rejected as "wholly wrong" "theproposition that after conquest or discoverythe native peoples have no rightsat all except those subsequently granted or recognized by the conqueror ordiscoverer".

61. The preferable rule, supported by the authorities cited, is that a merechange in sovereignty does not extinguish native titleto land. (The term"native title" conveniently describes the interests and rights of indigenousinhabitants in land, whether communal,group or individual, possessed underthe traditional laws acknowledged by and the traditional customs observed bythe indigenousinhabitants.) The preferable rule equates the indigenousinhabitants of a settled colony with the inhabitants of a conquered colonyinrespect of their rights and interests in land and recognizes in the indigenousinhabitants of a settled colony the rights andinterests recognized by thePrivy Council in In re Southern Rhodesia as surviving to the benefit of theresidents of a conqueredcolony.

62. If native title survives the Crown's acquisition of sovereignty as, in myview, it does, it is unnecessary to examine the alternativearguments advancedto support the rights and interests of the Meriam people to their traditionalland. One argument raised the presumptionof a Crown grant arising from theMeriam people's possession of the Murray Islands from a time beforeannexation; another was theexistence of a title arising after annexation inaccordance with a supposed local legal custom under the common law whereby theMeriampeople were said to be entitled to possess the Murray Islands. Thereare substantial difficulties in the way of accepting eitherof thesearguments, but it is unnecessary to pursue them. It is sufficient to statethat, in my opinion, the common law of Australiarejects the notion that, whenthe Crown acquired sovereignty over territory which is now part of Australiait thereby acquired theabsolute beneficial ownership of the land therein, andaccepts that the antecedent rights and interests in land possessed by theindigenous inhabitants of the territory survived the change in sovereignty.Those antecedent rights and interests thus constitutea burden on the radicaltitle of the Crown.

63. It must be acknowledged that, to state the common law in this wayinvolves the overruling of cases which have held the contrary. To maintainthe authority of those cases would destroy the equality of all Australiancitizens before the law. The common law ofthis country would perpetuateinjustice if it were to continue to embrace the enlarged notion of terranullius and to persist incharacterizing the indigenous inhabitants of theAustralian colonies as people too low in the scale of social organization tobeacknowledged as possessing rights and interests in land. Moreover, toreject the theory that the Crown acquired absolute beneficialownership ofland is to bring the law into conformity with Australian history. Thedispossession of the indigenous inhabitants ofAustralia was not worked by atransfer of beneficial ownership when sovereignty was acquired by the Crown,but by the recurrent exerciseof a paramount power to exclude the indigenousinhabitants from their traditional lands as colonial settlement expanded andlandwas granted to the colonists. Dispossession is attributable not to afailure of native title to survive the acquisition of sovereignty,but to itssubsequent extinction by a paramount power. Before examining the power toextinguish native title, it is necessary tosay something about the nature andincidents of the native title which, surviving the Crown's acquisition ofsovereignty, burdensthe Crown's radical title.

The nature and incidents of native title

64. Native title has its origin in and is given its content by thetraditional laws acknowledged by and the traditional customsobserved by theindigenous inhabitants of a territory. The nature and incidents of nativetitle must be ascertained as a matterof fact by reference to those laws andcustoms. The ascertainment may present a problem of considerable difficulty,as MoynihanJ. perceived in the present case. It is a problem that did notarise in the case of a settled colony so long as the fictions weremaintainedthat customary rights could not be reconciled "with the institutions or thelegal ideas of civilized society"(125) Inre Southern Rhodesia (1919) AC, at p233, that there was no law before the arrival of the British colonists in asettled colony andthat there was no sovereign law-maker in the territory of asettled colony before sovereignty was acquired by the Crown. These fictionsdenied the possibility of a native title recognized by our laws. But once itis acknowledged that an inhabited territory which becamea settled colony wasno more a legal desert than it was "desert uninhabited" in fact, it isnecessary to ascertain by evidence thenature and incidents of native title.Though these are matters of fact, some general propositions about native titlecan be statedwithout reference to evidence.

65. First, unless there are pre-existing laws of a territory over which theCrown acquires sovereignty which provide for the alienationof interests inland to strangers, the rights and interests which constitute a native titlecan be possessed only by the indigenousinhabitants and their descendants.Native title, though recognized by the common law, is not an institution ofthe common law andis not alienable by the common law. Its alienability isdependent on the laws from which it is derived. If alienation of a rightorinterest in land is a mere matter of the custom observed by the indigenousinhabitants, not provided for by law enforced by asovereign power, there isno machinery which can enforce the rights of the alienee. The common lawcannot enforce as a proprietaryinterest the rights of a putative alieneewhose title is not created either under a law which was enforceable againstthe putativealienor at the time of the alienation and thereafter until thechange of sovereignty or under the common law. And, subject to animportantqualification, the only title dependent on custom which the common law willrecognize is one which is consistent with thecommon law. Thus, in The Caseof Tanistry, the Irish custom of tanistry was held to be void because it wasfounded in violence andbecause the vesting of title under the custom wasuncertain(126) (1608) Davis (80 ER ); 4th ed. Dublin (1762) Englishtranslation,at pp 94-99. The inconsistency that the court perceived betweenthe custom of tanistry known to the Brehon law of Ireland and thecommon lawprecluded the recognition of the custom by the common law. At that stage inits development, the common law was too rigidto admit recognition of a nativetitle based on other laws or customs, but that rigidity has been relaxed, atleast since the decisionof the Privy Council in Amodu Tijani. The generalprinciple that the common law will recognize a customary title only if it beconsistentwith the common law is subject to an exception in favour oftraditional native title.

66. Of course, since European settlement of Australia, many clans or groupsof indigenous people have been physically separatedfrom their traditionalland and have lost their connexion with it. But that is not the universalposition. It is clearly not theposition of the Meriam people. Where a clanor group has continued to acknowledge the laws and (so far as practicable) toobservethe customs based on the traditions of that clan or group, wherebytheir traditional connexion with the land has been substantiallymaintained,the traditional community title of that clan or group can be said to remain inexistence. The common law can, by referenceto the traditional laws andcustoms of an indigenous people, identify and protect the native rights andinterests to which they giverise. However, when the tide of history haswashed away any real acknowledgment of traditional law and any real observanceof traditionalcustoms, the foundation of native title has disappeared. Anative title which has ceased with the abandoning of laws and customsbased ontradition cannot be revived for contemporary recognition. Australian law canprotect the interests of members of an indigenousclan or group, whethercommunally or individually, only in conformity with the traditional laws andcustoms of the people to whomthe clan or group belongs and only where membersof the clan or group acknowledge those laws and observe those customs (so farasit is practicable to do so). Once traditional native title expires, theCrown's radical title expands to a full beneficial title,for then there is noother proprietor than the Crown.

67. It follows that a right or interest possessed as a native title cannot beacquired from an indigenous people by one who, notbeing a member of theindigenous people, does not acknowledge their laws and observe their customs;nor can such a right or interestbe acquired by a clan, group or member of theindigenous people unless the acquisition is consistent with the laws andcustoms ofthat people. Such a right or interest can be acquired outside thoselaws and customs only by the Crown(127) This result has beenreached in otherjurisdictions, though for different reasons: see Reg. v. Symonds (1847) NZPCC, at p 390; Johnson v. McIntosh (1823)8 wheat, at p 586 (21 US , at p 259);St. Catherine's Milling and Lumber Co. v. The Queen (1887) 13 SCR 577, at p599. Once the Crownacquires sovereignty and the common law becomes the law ofthe territory, the Crown's sovereignty over all land in the territorycarriesthe capacity to accept a surrender of native title. The native title may besurrendered on purchase or surrendered voluntarily,whereupon the Crown'sradical title is expanded to absolute ownership, a plenum dominium, for thereis then no other owner(128) St.Catherine's Milling and Lumber Co. v. TheQueen (1888) 14 App Cas, at p 55. If native title were surrendered to theCrown in expectationof a grant of a tenure to the indigenous title holders,there may be a fiduciary duty on the Crown to exercise its discretionarypowerto grant a tenure in land so as to satisfy the expectation(129) See Guerin v.The Queen(1984) 13 DLR (4th) 321, at pp 334,339, 342-343, 356-357, 360-361,but it is unnecessary to consider the existence or extent of such a fiduciaryduty inthis case. Here, the fact is that strangers were not allowed tosettle on the Murray Islands and, even after annexation in 1879,strangerswhowere living on the Islands were deported. The Meriam people asserted anexclusive right to occupy the Murray Islandsand, asa community, held aproprietary interest in the Islands. They have maintained their identity as apeople and they observecustomswhich are traditionally based. There was apossible alienation of some kind of interest in 2 acres to the LondonMissionarySocietyprior to annexation but it is unnecessary to considerwhether that land was alienated by Meriam law or whether the alienationwassanctioned by custom alone. As we shall see, native title to that land waslost to the Meriam people in any event on the grantofa lease by the Crown in1882 or by its subsequent renewal.

68. Secondly, native title, being recognized by the common law (though not asa common law tenure), may be protected by such legalor equitable remedies asare appropriate to the particular rights and interests established by theevidence, whether proprietaryor personal and usufructuary in nature andwhether possessed by a community, a group or an individual. The incidents ofa particularnative title relating to inheritance, the transmission oracquisition of rights and interests on death or marriage, the transferofrights and interests in land and the grouping of persons to possess rights andinterests in land are matters to be determinedby the laws and customs of theindigenous inhabitants, provided those laws and customs are not so repugnantto natural justice, equityand good conscience that judicial sanctions underthe new regime must be withheld: Idewu Inasa v. Oshodi(130) (1934) AC 99, atp105. Of course in time the laws and customs of any people will change andthe rights and interests of the members of the people amongthemselves willchange too. But so long as the people remain as an identifiable community,the members of whom are identified byone another as members of that communityliving under its laws and customs, the communal native title survives to beenjoyed by themembers according to the rights and interests to which they arerespectively entitled under the traditionally based laws and customs,ascurrently acknowledged and observed. Here, the Meriam people have maintainedtheir own identity and their own customs. The MurrayIslands clearly remaintheir home country. Their land disputes have been dealt with over the years bythe Island Court in accordancewith the customs of the Meriam people.

69. Thirdly, where an indigenous people (including a clan or group), as acommunity, are in possession or are entitled to possessionof land under aproprietary native title, their possession may be protected or theirentitlement to possession may be enforced bya representative action broughton behalf of the people or by a sub-group or individual who sues to protect orenforce rights orinterests which are dependent on the communal native title.Those rights and interests are, so to speak, carved out of the communalnativetitle. A sub-group or individual asserting a native title dependent on acommunal native title has a sufficient interestto sue to enforce or protectthe communal title(131) Australian Conservation Foundation v. The Commonwealth (1980)146 CLR 493,atpp 530-531, 537-539, 547-548; Onus v. Alcoa ofAustralia Ltd.[1981] HCA 50; (1981) 149 CLR 27, at pp 35-36, 41-42,46, 51, 62, 74-75. Acommunalnative title enures for the benefit of the community as awhole andfor the sub-groups and individualswithin it who have particularrights andinterests in the community's lands.

70. The recognition of the rights and interests of a sub-group or individualdependent on a communal native title is not precludedby an absence of acommunal law to determine a point in contest between rival claimants. Bycustom, such a point may have to besettled by community consensus or in someother manner prescribed by custom. A court may have to act on evidence whichlacks specificityin determining a question of that kind. That is statutorilyrecognized in the case of the Murray Islands. The jurisdiction conferredonthe Island Court by s.41(2)(b) of the Community Services (Torres Strait) Act1984-1990 (Q.) includes a jurisdiction which mustbe exercised in accordancewith the customs of the Meriam people. The Act provides -

"An Island Court has jurisdiction to hear and

determine -

...

(b) disputes concerning any matter that -

(i) is a matter accepted by the community resident in

its area as a matter rightly governed by the usages

and customs of that community;

and

(ii) is not a breach of the by-laws applicable within

its area or of a law of the Commonwealth or the

State or a matter arising under a law of the

Commonwealth or the State;

and shall exercise ... that jurisdiction referred to in

provision (b) in accordance with the usages and customs of

the community within its area."

71. Whatever be the precision of Meriam laws and customs with respect toland, there is abundant evidence that land was traditionallyoccupied byindividuals or family groups and that contemporary rights and interests arecapable of being established with sufficientprecision to attract declaratoryor other relief. Although the findings made by Moynihan J. do not permit aconfident conclusionthat, in 1879, there were parcels of land in the MurrayIslands owned allodially by individuals or groups, the absence of such afinding is not critical to the final resolution of this case. If the doctrineof Attorney-General v. Brown were applied to the MurrayIslands, allodialownership would have been no bar to the Crown's acquisition of universal andabsolute ownership of the land andthe extinguishing of all native titles.But, by applying the rule that the communal proprietary interests of theindigenous inhabitantssurvive the Crown's acquisition of sovereignty, it ispossible to determine, according to the laws and customs of the Meriam people,contests among members of the Meriam people relating to rights and interestsin particular parcels of land.

72. The native titles claimed by the Meriam people - communally, by group orindividually - avoid the Scylla of the 1879 annexationof the Murray Islandsto Queensland, but we must now consider whether they avoid the Charybdis ofsubsequent extinction.

The extinguishing of native title

73. Sovereignty carries the power to create and to extinguish private rightsand interests in land within the Sovereign's territory(132)Joint TribalCouncil of the Passamaquoddy Tribe v. Morton (1975) 528 Fed 2d 370, at p 376n.6. It follows that, on a change of sovereignty,rights and interests in landthat may have been indefeasible under the old regime become liable toextinction by exercise of thenew sovereign power. The sovereign power may ormay not be exercised with solicitude for the welfare of indigenous inhabitantsbut,in the case of common law countries, the courts cannot review the merits,as distinct from the legality, of the exercise of sovereignpower(133) UnitedStates v. Santa Fe Pacific Railroad Company[1942] USSC 12; (1941) 314 US 339, at p 347;Tee-Hit-Ton Indians v. United States (1954)348 US 272, at pp 281-285.However, under the constitutionallaw of this country, the legality (and hencethe validity) of an exerciseof a sovereign power depends on the authorityvested inthe organ of government purporting to exercise it: municipalconstitutionallaw determines the scope of authority to exercise a sovereignpower over matters governed by municipal law, including rights andinterestsin land.

74. In Queensland, the Crown's power to grant an interest in land is, byforce ofss.30 and40 of theConstitution Act of 1867 (Q.), an exclusivelystatutory power and the validity of a particular grant depends upon conformitywith the relevantstatute(134) Cudgen Rutile (No.2) Ltd. v. Chalk (1975) AC520, at pp 533-534. When validly made, a grant of an interest in landbindsthe Crown and the Sovereign's successors(135) Halsbury, op cit, 4th ed.,vol.8, par.1047. The courts cannot refuse to giveeffect to a Crown grant"except perhaps in a proceeding by scire facias or otherwise, on theprosecution of the Crown itself"(136)Wi Parata v. Bishop of Wellington (1877)3 NZ(Jur) NS 72, at p 77. Therefore an interest validly granted by the Crown,or a rightor interest dependent on an interest validly granted by the Crowncannot be extinguished by the Crown without statutory authority. As the Crownis not competent to derogate from a grant once made(137), a statute whichconfers a power on the Crown will be presumed(so far as consistent with thepurpose for which the power is conferred) to stop short of authorizing anyimpairment of an interestin land granted by the Crown or dependent on a Crowngrant. But, as native title is not granted by the Crown, there is nocomparablepresumption affecting the conferring of any executive power on theCrown the exercise of which is apt to extinguish native title.

75. However, the exercise of a power to extinguish native title must reveal aclear and plain intention to do so, whether the actionbe taken by theLegislature or by the Executive. This requirement, which flows from theseriousness of the consequences to indigenousinhabitants of extinguishingtheir traditional rights and interests in land, has been repeatedly emphasizedby courts dealing withthe extinguishing of the native title of Indian bandsin North America. It is unnecessary for our purposes to consider the severaljuristic foundations - proclamation, policy, treaty or occupation - on whichnative title has been rested in Canada and the UnitedStates but reference tothe leading cases in each jurisdiction reveals that, whatever the juristicfoundation assigned by those courtsmight be, native title is not extinguishedunless there be a clear and plain intention to do so(138) Calder v.Attorney-General ofBritish Columbia (1973) SCR, at p 404; (1973) 34 DLR (3d),at p 210; Hamlet of Baker Lake v. Minister of Indian Affairs (1979) 107DLR(3d) 513, at p 552; Reg. v. Sparrow (1990) 1 SCR.1075, at p 1094; (1990) 70DLR (4th) 385, at p 401; United States v. Santa FePacific Railroad Co. (1941)314 US , at pp 353, 354; Lipan Apache Tribe v. United States (1967) 180 Ct Cl487, at p 492. That approachhas been followed in New Zealand(139) Te Weehi v.Regional Fisheries Officer (1986) 1 NZLR 680, at pp 691-692. It is patentlytheright rule.

76. A clear and plain intention to extinguish native title is not revealed bya law which merely regulates the enjoyment of nativetitle(140) Reg. v.Sparrow (1990) 1 SCR, at p 1097; (1990) 70 DLR (4th), at p 400 or whichcreates a regime of control that is consistentwith the continued enjoyment ofnative title(141) United States v. Santa Fe Pacific Railroad Co. (1941) 314 US, at pp 353-354 .A fortiori, a law which reserves or authorizes thereservation of land from sale for the purpose of permitting indigenousinhabitantsand their descendants to enjoy their native title works noextinguishment.

77. The Crown did not purport to extinguish native title to the MurrayIslands when they were annexed in 1879. In 1882, in purportedexercise ofpowers conferred by the Crown Lands Alienation Act of 1876 (Q.), the MurrayIslands were reserved from sale. The 1882instrument of reservation has notbeen traced, and it is arguable that the 1876 Act did not apply to land in theMurray Islands forthe Murray Islands were not part of Queensland when thatAct was passed. That Act was repealed by the Crown Lands Act 1884 (Q.),whichtook its place. In 1912, a proclamation was made pursuant to s.180 of theLand Act 1910 which "permanently reserved and setapart" the Murray Islands"for use of the Aboriginal Inhabitants of the State". Section 180(1) of theLand Act 1910 empowered theGovernor in Council to reserve any Crown land fromsale or lease "which, in the opinion of the Governor in Council, is or may berequired for public purposes". "Public purposes" included "Aboriginalreserves"(142) s.4. "Crown land" was defined by s.4 of theLand Act 1910 asfollows:

"All land in Queensland, except land which is, for the time

being -

(a) Lawfully granted or contracted to be granted in

fee-simple by the Crown; or

(b) Reserved for or dedicated to public purposes; or

(c) Subject to any lease or license lawfully granted by the

Crown: Provided that land held under an occupation

license shall be deemed to be Crown land".

" All land heretofore reserved or set apart for any public

purpose, and the fee-simple whereof has not been granted by

the Crown, shall hereafter be deemed to be a reserve for

public purposes under this Act, and deemed to have been so

reserved under this section."

78. No doubt the term "Crown land" was defined in these Acts in the belief,which has been current since Attorney-General v. Brown,that the absoluteownership of all land in Queensland is vested in the Crown until it isalienated by Crown grant. Nevertheless,the denotation of the term "Crownland" in the Land Act 1910 and the Land Act 1962 is the same whether thecommon law attributesto the Crown the radical title or absolute ownership. Adifficulty of construction arises, however, in connection with the provisionsrelating to the removal of intruders from Crown land or land reserved forpublic purposes. Section 91 of the Crown Lands AlienationAct, for example,makes it an offence for a person to be found in occupation of any such land"unless lawfully claiming under a subsistinglease or licence". If thisprovision were construed as having denied to the Meriam people any right toremain in occupation of theirland, there would have been an indication thattheir native title was extinguished. The Solicitor-General for Queenslandconcededthat, if s.91 applied - and he did not contend that it did - theMeriam people could lawfully have been driven into the sea at anytime afterannexation and that they have been illegally allowed to remain on the MurrayIslands ever since. Such a conclusion wouldmake nonsense of the law. As HallJ. said of a similar proposition in Calder v. Attorney-General of BritishColumbia(143) (1973)SCR, at p 414; (1973) 34 DLR (3d), at p 217: "The ideais self-destructive". To construe s.91 or similar provisions as applyingtothe Meriam people in occupation of the Murray Islands would be trulybarbarian. Such provisions should be construed as beingdirected to those whowere or are in occupation under colour of a Crown grant or without any colourof right; they are not directedto indigenous inhabitants who were or are inoccupation of land by right of their unextinguished native title.

79. Native title was not extinguished by the creation of reserves nor by themere appointment of "trustees" to control a reservewhere no grant of titlewas made. To reserve land from sale is to protect native title from beingextinguished by alienation undera power of sale. To appoint trustees tocontrol a reserve does not confer on the trustees a power to interfere withthe rights andinterests in land possessed by indigenous inhabitants under anative title. Nor is native title impaired by a declaration that landisreserved not merely for use by the indigenous inhabitants of the land but "foruse of Aboriginal Inhabitants of the State" generally(144)Assuming that thatterm relates to all indigenous inhabitants of the State whether having anyconnection with the particular reserveor not: see Corporation of theDirector of Aboriginal and Islanders Advancement v. Peinkinna (1978) 52 ALJR286. If the creationof a reserve of land for Aboriginal Inhabitants of theState who have no other rights or interest in that land confers a right tousethat land, the right of user is necessarily subordinate to the right of userconsisting in legal rights and interests conferredby native title. Ofcourse, a native title which confers a mere usufruct may leave room for otherpersons to use the land eithercontemporaneously or from time to time.

80. In this case, the Solicitor-General did not contend that if, contrary tohis submissions, native title became, after annexationand without an act ofrecognition by the Crown, a legally recognized interest in the Murray Islands,the Crown had extinguished thattitle. He drew attention to the fact that theMeriam people had been left in peaceful occupation of the Murray Islands. Forhispart, counsel for the plaintiffs submitted that the State of Queenslandhad no power to extinguish native title. That argument proceededon thefooting that sovereignty is an attribute possessed only by an internationallyrecognized sovereign and that the Commonwealthanswers that description butthe States of the Commonwealth do not(145) Seas and Submerged Lands Case(1975) 135 CLR, at p 373. Although that proposition is significant indetermining title to the territorial sea, seabed and airspace and continentalshelfand incline, it has no relevance to the power to extinguish native titleto land which is not a matter of international concern(146)ibid., at pp 373,467. The sovereign powers which might be exercised over the waste lands ofthe Crown within Queensland were vestedin the Colony of Queensland subject tothe ultimate legislative power of the Imperial Parliament so long as thatParliament retainedthat power and, after Federation, subject to theConstitution of the Commonwealth of Australia. The power to reserve anddedicate land to a public purpose and the power to grant interests inland areconferred by statute on the Governor in Council of Queensland and an exerciseof these powers is, subject to theRacialDiscrimination Act, apt toextinguish native title. The Queensland Parliament retains, subject to theConstitution and to restrictions imposed by valid laws of theCommonwealth(147) Mabo v. Queensland (1988) 166 CLR 186, a legislativepowertoextinguish native title. This being so, it is necessary to consider theeffect which the granting of leases over partsof theMurrayIslands has hadon native title before theRacial Discrimination Act came into force.

81. A Crown grant which vests in the grantee an interest in land which isinconsistent with the continued right to enjoy a nativetitle in respect ofthe same land necessarily extinguishes the native title. The extinguishing ofnative title does not depend onthe actual intention of the Governor inCouncil (who may not have adverted to the rights and interests of theindigenous inhabitantsor their descendants), but on the effect which thegrant has on the right to enjoy the native title. If a lease be granted, thelessee acquires possession and the Crown acquires the reversion expectant onthe expiry of the term. The Crown's title is thus expandedfrom the mereradical title and, on the expiry of the term, becomes a plenum dominium.Where the Crown grants land in trust or reservesand dedicates land for apublic purpose, the question whether the Crown has revealed a clear and plainintention to extinguish nativetitle will sometimes be a question of fact,sometimes a question of law and sometimes a mixed question of fact and law.Thus, ifa reservation is made for a public purpose other than for the benefitof the indigenous inhabitants, a right to continued enjoymentof native titlemay be consistent with the specified purpose - at least for a time - andnative title will not be extinguished. But if the land is used and occupiedfor the public purpose and the manner of occupation is inconsistent with thecontinued enjoymentof native title, native title will be extinguished. Areservation of land for future use as a school, a courthouse or a publicofficewill not by itself extinguish native title: construction of thebuilding, however, would be inconsistent with the continued enjoymentofnative title which would thereby be extinguished. But where the Crown has notgranted interests in land or reserved and dedicatedland inconsistently withthe right to continued enjoyment of native title by the indigenousinhabitants, native title survives andis legally enforceable.

82. As the Governments of the Australian Colonies and, latterly, theGovernments of the Commonwealth, States and Territories havealienated orappropriated to their own purposes most of the land in this country during thelast 200 years, the Australian Aboriginalpeoples have been substantiallydispossessed of their traditional lands. They were dispossessed by theCrown's exercise of its sovereignpowers to grant land to whom it chose and toappropriate to itself the beneficial ownership of parcels of land for theCrown's purposes. Aboriginal rights and interests were not stripped away byoperation of the common law on first settlement by British colonists,but bythe exercise of a sovereign authority over land exercised recurrently byGovernments. To treat the dispossession of the AustralianAborigines as theworking out of the Crown's acquisition of ownership of all land on firstsettlement is contrary to history. Aborigineswere dispossessed of their landparcel by parcel, to make way for expanding colonial settlement. Theirdispossession underwrotethe development of the nation. But, if this be theconsequence in law of colonial settlement, is there any occasion now tooverturnthe cases which held the Crown to have become the absolute beneficialowner of land when British colonists first settled here? Doesit make anydifference whether native title failed to survive British colonization or wassubsequently extinguished by governmentaction? In this case, the differenceis critical: except for certain transactions next to be mentioned, nothing hasbeen done toextinguish native title in the Murray Islands. There, the Crownhas alienated only part of the land and has not acquired for itselfthebeneficial ownership of any substantial area. And there may be other areas ofAustralia where native title has not been extinguishedand where an Aboriginalpeople, maintaining their identity and their customs, are entitled to enjoytheir native title. Even if therebe no such areas, it is appropriate toidentify the events which resulted in the dispossession of the indigenousinhabitants of Australia,in order to dispel the misconception that it is thecommon law rather than the action of governments which made many of theindigenouspeople of this country trespassers on their own land.

83. After this lengthy examination of the problem, it is desirable to statein summary form what I hold to be the common law ofAustralia with referenceto land titles:

1. The Crown's acquisition of sovereignty over the several parts of Australiacannot be challenged in an Australian municipal court.

2. On acquisition of sovereignty over a particular part of Australia, theCrown acquired a radical title to the land in that part.

3. Native title to land survived the Crown's acquisition of sovereignty andradical title. The rights and privileges conferred bynative title wereunaffected by the Crown's acquisition of radical title but the acquisition ofsovereignty exposed native titleto extinguishment by a valid exercise ofsovereign power inconsistent with the continued right to enjoy native title.

4. Where the Crown has validly alienated land by granting an interest that iswholly or partially inconsistent with a continuingright to enjoy nativetitle, native title is extinguished to the extent of the inconsistency. Thusnative title has been extinguishedby grants of estates of freehold or ofleases but not necessarily by the grant of lesser interests (e.g., authoritiesto prospectfor minerals).

5. Where the Crown has validly and effectively appropriated land to itself andthe appropriation is wholly or partially inconsistentwith a continuing rightto enjoy native title, native title is extinguished to the extent of theinconsistency. Thus native titlehas been extinguished to parcels of the wastelands of the Crown that have been validly appropriated for use (whether bydedication,setting aside, reservation or other valid means) and used forroads, railways, post offices and other permanent public works whichprecludethe continuing concurrent enjoyment of native title. Native title continueswhere the waste lands of the Crown have notbeen so appropriated or used orwhere the appropriation and use is consistent with the continuing concurrentenjoyment of nativetitle over the land (e.g., land set aside as a nationalpark).

6. Native title to particular land (whether classified by the common law asproprietary, usufructuary or otherwise), its incidentsand the personsentitled thereto are ascertained according to the laws and customs of theindigenous people who, by those laws andcustoms, have a connection with theland. It is immaterial that the laws and customs have undergone some changesince the Crownacquired sovereignty provided the general nature of theconnection between the indigenous people and the land remains. Membershipofthe indigenous people depends on biological descent from the indigenous peopleand on mutual recognition of a particular person'smembership by that personand by the elders or other persons enjoying traditional authority among thosepeople.

7. Native title to an area of land which a clan or group is entitled to enjoyunder the laws and customs of an indigenous peopleis extinguished if the clanor group, by ceasing to acknowledge those laws, and (so far as practicable)observe those customs, losesits connection with the land or on the death ofthe last of the members of the group or clan.

8. Native title over any parcel of land can be surrendered to the Crownvoluntarily by all those clans or groups who, by the traditionallaws andcustoms of the indigenous people, have a relevant connection with the land butthe rights and privileges conferred by nativetitle are otherwise inalienableto persons who are not members of the indigenous people to whom alienation ispermitted by the traditionallaws and customs.

9. If native title to any parcel of the waste lands of the Crown isextinguished, the Crown becomes the absolute beneficial owner.

84. These propositions leave for resolution by the general law the questionof the validity of any purported exercise by the Crownof the power toalienate or to appropriate to itself waste lands of the Crown. In Queensland,these powers are and at all materialtimes have been exercisable by theExecutive Government subject, in the case of the power of alienation, to thestatutes of the Statein force from time to time. The power of alienation andthe power of appropriation vested in the Crown in right of a State are alsosubject to the valid laws of the Commonwealth, including theRacialDiscrimination Act. Where a power has purportedly been exercisedas aprerogative power, the validity of the exercise depends on the scope of theprerogativeand the authority of the purported repositoryin the particularcase.

85. It remains to apply these principles to the Murray Islands and the Meriampeople.

The effect of post-acquisition transactions

86. In February 1882, the Murray Islands were reserved from sale by theGovernor in Council acting under the Crown Lands AlienationAct of 1876 (Q.).Section 6 of that Act authorized the proclamation of reserves "for the use orbenefit of the aboriginal inhabitantsof the colony". Far from extinguishingthe native title of the Meriam people, the reservation of the Murray Islandsfrom sale leftthem in undisturbed enjoyment of their land(148) RandwickCorporation v. Rutledge (1959) 102 CLR, at pp 71-73; cf. United Statesv.Sante Fe Pacific Railroad Co. (1941) 314 US , at p 353. Nor was their nativetitle affected when, in 1912, acting under the LandAct 1910 the Governor inCouncil ordered that the Murray Islands (with the exception of an area leasedto the London Missionary Society)be permanently reserved and set apart forthe use of the Aboriginal Inhabitants of the State; nor in 1939 when trusteesof the reservewere appointed. There was no disposition of the reserve landswhich was inconsistent with the continued right of the Meriam peopleto enjoytheir native title.

87. However, leases were granted by the Crown over certain parcels of land inthe Murray Islands. In 1882, a special lease of 2acres on Mer was granted tothe London Missionary Society and in later years further leases of the sameland were granted to theLondon Missionary Society. The London MissionarySociety lease was subsequently transferred to the Australian Board of Missionsthence to trustees of the Board. Whatever native title had been enjoyed inthis parcel of land, that title was extinguished by thegranting or renewal ofthe lease.

88. Another lease was purportedly granted on 6 May 1931 to two lessees (notbeing members of the Meriam people) under either s.171(1)or s.179(1) of theLand Act 1910-1930 (Q.) over the whole of the islands of Dauar and Waier for aperiod of 20 years for the purposeof establishing a sardine factory. Thespecial conditions contained in the lease included the following:

"The Lessees shall not in any way obstruct or interfere with

the use by the Murray Island natives of their tribunal (semble tribal)

gardens and plantation of the leased land.

The Lessees shall not in any way obstruct or interfere with

the operations of the Murray Island natives who fish around

the reefs adjacent to the leased land for Beche-de-mer,

Trochus etc."

"The Murray Island natives are asking for unrestricted entry

to these islands, although under the terms of the lease

they can proceed there for gardening purposes".

89. The plaintiffs submit that the Crown had no power under the Land Acts togrant a lease of these Islands for the purpose of establishingand carrying ona sardine factory. If that submission be right, the lease was whollyineffective, for a purported lease grantedwithout statutory authority isineffective to dispose of any interest in land(149) Cudgen Rutile (No.2) Ltd.v. Chalk (1975) AC,at pp 533-534. The submission is founded on a reading downof s.179(1) of the Land Act 1910-1930 (which contains a general powerto granta lease for business purposes) so that it conforms to the power conferred bys.179(2) to grant a lease of country land whichhas been reserved for a publicpurpose when the land is infested with noxious weeds. In my opinion thepowers conferred by sub-ss.(1)and (2) of s.179 are cumulative and the powerconferred by sub-s.(1) should not be read down in the manner suggested.Section 179does not deny the validity of the lease. Whether land reservedfor a public purpose under s.180 could be leased by anybody but trusteesofthe reserve under s.185(2) is perhaps an open question, but it was not raisedin argument. It should not now be finally determined. The question can beleft for determination, if need be, in proceedings in which the Crown's powerto grant the lease of Dauar andWaier on 6 May 1931 is canvassed and in whichall interested parties can be joined. If the lease of Dauar and Waier werevalidlygranted, the limited reservations in the special conditions are notsufficient to avoid the consequence that the traditional rightsand interestsof the Meriam people were extinguished. By granting the lease, the Crownpurported to confer possessory rights onthe lessee and to acquire for itselfthe reversion expectant on the termination of the lease. The sum of thoserights would haveleft no room for the continued existence of rights andinterests derived from Meriam laws and customs.

90. Moynihan J's findings mention the use of other land on Mer foradministrative purposes, namely, for the construction of a CourtHouse, ahospital, a store, a school, a teacher's residence, a Jail House, a new"native constable's residence with lock-up" anda village square. His Honourmentions a Murray Island Court Record relating to an area which "was resumedby the Protector of Aboriginalsand set aside for a new village". Whetherthese activities were authorized by law and whether, if so, they wereinconsistent withcontinued enjoyment of the native title to the land affectedby these activities are questions which were not discussed in submissionsbefore this Court. It is not possible now finally to determine whether theaffected parcels of land are the subject of native title.

Deed of Grant in Trust

91. The Court was informed that deeds of grant in trust pursuant to the LandAct 1962-1988 have been granted in respect of all islandsin the Torres Straitother than the Murray Islands pursuant to the Land Act 1962-1988 and that theplaintiffs are concerned thatsimilar action may be taken in respect of theMurray Islands. A deed of grant in trust can be granted in respect of anyCrown landwhich, in the opinion of the Governor in Council, is or may berequired for any public purpose: s.334(1). To bring a reserve withinthedefinition of "Crown land", the Order in Council creating the reserve must berescinded: ss.5 and 334(4). Although the Governorin Council is empoweredgenerally to declare that land granted in trust for a public purpose shall"revert to the Crown" (s.353)an Act of Parliament is needed to authorize theGovernor in Council to declare that land granted in trust for the benefit ofAboriginalor Islander inhabitants should revert to the Crown: s.353A. As nodeed of grant in trust has issued in respect of the Murray Islands,s.353Adoes not appear to have any present application to those Islands. Theplaintiffs contend that theAborigines and Torres Strait Islanders (LandHolding) Act 1985 (Q.) is an Act of Parliament satisfying s.353A but, in theabsence of a deed of grant in trust, there is no need to consider thatcontention. It appears that the plaintiffs see some advantage in preventingthe granting of a deed of grant in trust and they seek,inter alia, adeclaration that the granting of a deed of grant in trust "would be unlawfulby reason of the provisions ofsection 9 and10 of theRacial DiscriminationAct 1975 (Commonwealth)."

92. This declaration is founded on the decision in Mabo v. Queensland(150) (1988) 166 CLR 186 in which it was heldthat the QueenslandCoast IslandsDeclaratory Act 1985 (Q.) which purported to extinguish the plaintiffs' nativetitle, was nullifiedby operation ofs.10 of theRacial Discrimination Act.The plaintiffs now seek to deny the power of the Governor in Council to granta deed of grantin trust because, if effective, thealienation of the MurrayIslands to a trustee - albeit the trustee would be theIsland Councilconstituted under the Community Services(Torres Strait) Act - wouldextinguish native title including the nativetitle claimed bythe individualplaintiffs. Under the relevantprovisions of the Land Act, the Island Councilas trustee would havepower to leaseland inconsistently with native title.

93. There are two reasons why the declaration sought by the plaintiffs shouldbe refused. First, there is no evidence that theGovernor in Council intendsto grant a deed of grant in trust in respect of land in the Murray Islands andthe Solicitor-Generaldenied that there were "the slightest indications" thatthe Governor in Council would do so. Secondly,s.10 of theRacialDiscriminationAct may not have an effect on the granting of a deed of grantin trust similar to the effect whichs.10 had upon the Queensland CoastIslands Declaratory Act 1985. It will not have a nullifying effect if theaction taken under the relevantState laws constitutesa special measurefalling withins.8(1) of theRacial Discrimination Act and thereby escapes theoperation ofs.10(151) Gerhardyv. Brown[1985] HCA 11; (1985) 159 CLR 70. Whether thegranting of a deed of grant in trust would constitute a special measureis aquestion whichcannotbe answered without an examination of all the relevantcircumstances; it involves findings of fact. Inthe absence of findingswhichdetermine whether a deed of grant in trust would constitute a special measure,no declaration thatthe granting of such a deedwouldbe "unlawful" can bemade. There is no need to determine whethers.9 of theRacial DiscriminationAct is inconsistent withthe relevant provisions of the Land Act 1962, forthere is nothing to show that those provisions will beusedto affectinterestswhich the plaintiffs seek to protect.

Answers to Questions

94. This matter came before the Full Court pursuant to an order made by theChief Justice unders.18 of theJudiciary Act 1903 (Cth) reserving questionsrelating to the rights and interests claimed by two of the plaintiffs, DavidPassi and James Rice in specifiedblocks of land on the islands of Mer, Dauarand Waier. No such claim was made before this Court by the plaintiff EddieMabo. In thecourse of the hearing before this Court, it emerged that it wasnot practicable to answer those questions by acting upon findingsmade byMoynihan J. The plaintiffs' statement of claim was then amended to seekdeclarations relating to the title of the Meriampeople. The plaintiffs Passiand Rice claim rights and interests dependent on the native title of theMeriam people, not as interestsdependent upon Crown grants. In the absenceof any party seeking to challenge their respective claims under the laws andcustomsof the Meriam people, the action is not constituted in a way thatpermits the granting of declaratory relief with respect to claimsbased onthose laws and customs - even had the findings of fact been sufficient tosatisfy the Court of the plaintiffs' respectiveinterests. Declaratory reliefmust therefore be restricted to the native communal title of the Meriampeople. The plaintiffs havethe necessary interest to support an action fordeclarations relating to that title.

95. The plaintiffs seek declarations that the Meriam people are entitled tothe Murray Islands -

"(a) as owners

(b) as possessors

(c) as occupiers, or

(d) as persons entitled to use and enjoy the said islands";

"the Murray Islands are not and never have been 'Crown Lands'

within the meaning of the Lands Act 1962 (Qld) (as amended) and

prior Crown lands legislation"

96. As the Crown holds the radical title to the Murray Islands and as nativetitle is not a title created by grant nor is it a commonlaw tenure, it may beconfusing to describe the title of the Meriam people as conferring"ownership", a term which connotes an estatein fee simple or at least anestate of freehold. Nevertheless, it is right to say that their native titleis effective as againstthe State of Queensland and as against the whole worldunless the State, in valid exercise of its legislative or executive power,extinguishes the title. It is also right to say that the Murray Islands arenot Crown land because the land has been either "reservedfor or dedicated topublic purposes" or is "subject to ... lease". However, that does not denythat the Governor in Council may,by appropriate exercise of his statutorypowers, extinguish native title. The native title has already beenextinguished over landwhich has been leased pursuant to powers conferred bythe Land Act in force at the time of the granting or renewal of the lease.Accordingly, title to the land leased to the Trustees of the Australian Boardof Missions has been extinguished and title to Dauarand Waier may have beenextinguished. It may be that areas on Mer have been validly appropriated foruse for administrative purposesthe use of which is inconsistent with thecontinued enjoyment of the rights and interests of Meriam people in thoseareas pursuantto Meriam law or custom and, in that event, native title hasbeen extinguished over those areas. None of these areas can be includedin thedeclaration.

97. I would therefore make a declaration in the following terms:

Declare -

(1) that the land in the Murray Islands is not Crown land within

the meaning of that term in s.5 of the Land Act 1962-1988

(Q.);

(2) that the Meriam people are entitled as against the whole world

to possession, occupation, use and enjoyment of the island of

Mer except for that parcel of land leased to the Trustees of

the Australian Board of Missions and those parcels of land

(if any) which have been validly appropriated for use for

administrative purposes the use of which is inconsistent with

the continued enjoyment of the rights and privileges of Meriam

people under native title;

(3) that the title of the Meriam people is subject to the power

of the Parliament of Queensland and the power of the Governor

in Council of Queensland to extinguish that title by valid

exercise of their respective powers, provided any exercise

of those powers is not inconsistent with the laws of the

Commonwealth.

DEANE AND GAUDRON JJ. The issues raised by this case directly concern theentitlement, under the law of Queensland, of the Meriampeople to theirhomelands in the Murray Islands. Those issues must, however, be addressed inthe wider context of the common lawof Australia. Their resolution requires aconsideration of some fundamental questions relating to the rights, past andpresent,of Australian Aborigines in relation to lands on which theytraditionally lived or live. The starting point lies in the second halfofthe eighteenth century with the establishment of the Colony of New SouthWales.

(i) The establishment of New South Wales

2. The international law of the eighteenth century consisted essentially ofthe rules governing the relations and dealings amongthe nations of Europe.Under it, the three main theoretical methods by which a State could extend itssovereignty to new territorywere cession, conquest and settlement.Settlement was initially seen as applicable only to unoccupied territory. Theannexationof territory by "settlement" came, however, to be recognized asapplying to newly "discovered" territory which was inhabited by nativepeoplewho were not subject to the jurisdiction of another European State. The"discovery" of such territory was accepted as entitlinga State to establishsovereignty over it by "settlement", notwithstanding that the territory wasnot unoccupied and that the processof "settlement" involved negotiations withand/or hostilities against the native inhabitants.

3. The consistent references to "our territory called New South Wales" in thetwo Commissions(152) 12 October 1786 and 2 April 1787: see Historical Recordsof Australia (hereafter "HRA"), (1914) Series 1, vol.1, pp 1, 2 and in theInstructions(153) 25 April 1787: ibid., p 9 from George III to Captain ArthurPhillip indicate a view that at least part(154) i.e. the coastline andadjacent islandsbetween latitudes 10 37' and 38 south (see Captain Cook'sJournal (ed. Wharton), (1893), p 312), perhaps "backed by an unexploredinterior": see In re Southern Rhodesia (1919) AC 211, at pp 215-216 of thenew Colony had automatically become British territoryin 1770 by virtue ofCook's "discovery" and various pronouncements of taking "possession ... in theName of His Majesty"(155) See,e.g., Captain Cook's Journal, op cit, p 312and, generally, Scott, "Taking Possession of Australia - The Doctrine of'Terra Nullius'",(1940) 26 Royal Australian Historical Society Journal andProceedings, 1, at pp 8-9. In the context of the contemporary internationallaw, however, the preferable view is that it was the intention of the Crownthat the establishment of sovereignty would be by "settlement"in the extendedsense explained above and would be effected when, after the arrival of theFirst Fleet, Phillip complied with hisInstructions and caused his secondCommission as Governor to be read and published "with all due solemnity"(156)HRA, (1914), Series1, vol.1, p 9. The Commission was so read and publishedon 7 February, 1788: HRA, (1922), Series 4, p xiv. Even on that approach,there are problems about the establishment of the Colony in so far as theinternational law of the time is concerned. In particular,contemporaryinternational law would seem to have required a degree of actual occupation ofa "discovered" territory over which sovereigntywas claimed by settlement andit is scarcely arguable that the establishment by Phillip in 1788 of the penalcamp at Sydney Coveconstituted occupation of the vast areas of the hinterlandof eastern Australia designated by his Commissions(157) i.e. "all thecountryinland (from the eastern coastline) westward as far as" longitude 135 east:HRA, (1914), Series 1, vol.1, p 2. However,in so far as the establishment ofBritish sovereignty is concerned, those problems do not exist for the purposesof our domesticlaw.

4. Under British law in 1788, it lay within the prerogative power of theCrown to extend its sovereignty and jurisdiction to territoryover which ithad not previously claimed or exercised sovereignty or jurisdiction(158) SeePost Office v. Estuary Radio Ltd. (1968)2 QB 740, at p 753; New South Walesv. The Commonwealth ("the Seas and Submerged Lands Case")[1975] HCA 58; (1975) 135 CLR 337,at p 388; Wacandov. The Commonwealth[1981] HCA 60; (1981) 148 CLR 1, at p 11. Theassertion by the Crown of an exercise of thatprerogative to establish a newColony by "settlement"was an act of State whose primary operation lay not inthe municipal arenabut in international politics orlaw. The validity ofsuch an act of State (including any expropriation of property orextinguishmentof rights which it effected)could not be challengedin Britishcourts(159) See, e.g., Salaman v. Secretary of State for India (1906)1 KB613, at pp 625-627,635, 639-640; Sobhuza II.v. Miller (1926) AC 518, at pp528-529; Secretary of State for India v. SardarRustam Khan (1941) AC 356,atpp 369-370. Nor couldany promise or undertaking which it embodied be directlyenforced against theCrown in those courts(160)See, e.g., Cook v. Sprigg(1899) AC 572; Secretary of State for India v. Sardar Rustam Khan (1941) AC,at p 371; J.H. Rayner Ltd.v. Dept. of Trade (1990)2 AC 418. The result isthat, in a case such as the present where no questionof constitutional powerisinvolved, it must be acceptedin this Court(161) See, e.g., Seas andSubmerged Lands Case (1975) 135 CLR,at p 388 that the wholeof the territorydesignated inPhillip's Commissions was, by 7 February 1788, validlyestablished as a "settled"British Colony.

(ii) The introduction of the common law

5. The common law of this country had it origins in, and initially owed itsauthority to, the common law of England(162) Confirmedby 9 GEO IV c.83 (TheAustralian Courts Act 1828 (Imp)), s.24. Under the common law of England, adistinction has traditionally beendrawn, for the purposes of identifying thelaw of a new British Colony, between colonies where British sovereignty wasestablishedby cession or conquest and colonies where such sovereignty wasestablished by settlement or "occupancy"(163) See Blackstone, Commentaries,17th ed. (1830) (hereafter "Blackstone"), vol.1, par.107. In cases of cessionand conquest, the pre-existing laws of the relevantterritory were presumed tobe preserved by the act of State constituting the Colony but the Crown, as newSovereign, could subsequentlylegislate by proclamation pending localrepresentative government. The position was quite different in the case of asettled Colony. Where persons acting under the authority of the Crownestablished a new British Colony by settlement, they brought the common lawwith them. The common law so introduced was adjusted in accordance with theprinciple that, in settled colonies, only so much ofit was introduced as was"reasonably applicable to the circumstances of the Colony"(164) Cooper v.Stuart (1889) 14 App Cas 286,at p 291; see, also, State Government InsuranceCommission v. Trigwell[1979] HCA 40; (1979) 142 CLR 617, esp. at p 634; Blackstone,vol.1,par.107.This left room for the continued operation of some local laws orcustoms among the native people and even the incorporationof someof thoselaws and customs as part of the common law. The adjustedcommon law wasbinding as the domestic law of the newColony and,except to the extentauthorized by statute, was not susceptibleof being overridden or negatived bythe Crown by thesubsequent exerciseof prerogative powers. Putting to oneside the Crown'sprerogative to establish courts and representative localgovernment, theoverall position was succinctly explained by the Privy Councilin Sammut v. Strickland(165) (1938) AC 678, at p 701: the "Englishcommon lawnecessarily applied in so far as such laws were applicableto the conditionsof the new Colony. The Crownclearly hadno prerogative right to legislate insuch a case." A fortiori, the Crownhad no prerogative right to override thecommonlaw by executiveact without legislative basis.

6. It follows that, once the establishment of the Colony was complete on 7February 1788, the English common law, adapted to meetthe circumstances ofthe new Colony, automatically applied throughout the whole of the Colony asthe domestic law except to the extent(if at all) that the act of Stateestablishing the Colony overrode it. Thereafter, within the Colony, both theCrown and its subjects,old and new, were bound by that common law.

(iii) The English law of real property

7. The English common law principles relating to real property developed asthe product of concepts shaped by the feudal systemof medieval times. Thebasic tenet was that, consequent upon the Norman Conquest, the Crown was theowner of all land in the kingdom. A subject could hold land only as a tenant,directly or indirectly, of the Crown. By 1788, the combined effect of theStatute QuiaEmptores 1290 and the Tenures Abolition Act 1660 had been largelyto abolish the "pyramid of free tenants"(166) Gray, Elements ofLand Law,(1987), p 57 which had emerged under the feudal system of tenure and toconfine the practical significance of the basictenet that all land was ownedby the Crown to matters such as escheat and foreshore rights. The "estate"which a subject held inland as tenant was itself property which was thesubject of "ownership" both in law and in equity. The primary estate of asubject,the estate in fee simple, became, for almost all practical purposes,equivalent to full ownership of the land itself. Nonetheless,the underlyingthesis of the English law of real property remained that the radical title to(or ultimate ownership of) all landwas in the Crown and that the maximuminterest which a subject could have in the land was ownership not of the landitself but ofan estate in fee in it. The legal ownership of an estate inland was in the person or persons in whom the legal title to it wasvested.Under the rules of equity, that legal estate could be held upon trust for someother person or persons or for some purpose.

8. If the slate were clean, there would be something to be said for the viewthat the English system of land law was not, in 1788,appropriate forapplication to the circumstances of a British penal colony(167) See, e.g.,Roberts-Wray, Commonwealth and ColonialLaw, (1966), p 626. It has, however,long been accepted as incontrovertible that the provisions of the common lawwhich became applicableupon the establishment by settlement of the Colony ofNew South Wales included that general system of land law(168) See, e.g.,Deloheryv. Permanent Trustee Co. of N.S.W.[1904] HCA 10; (1904) 1 CLR 283, at pp 299-300;Williams v. Attorney-General for New South Wales[1913] HCA 33; (1913) 16 CLR 404. Itfollows that, upon the establishment of the Colony, the radical title to allland vestedin the Crown. Subject to someminor and presently irrelevantmatters, the practical effect of the vesting of radical title in theCrown wasmerelyto enable theEnglish system of private ownership of estates held ofthe Crown to be observed in the Colony. Inparticular, themere fact thattheradical title to all the lands of the Colony was vested in the British Crowndid not precludethe preservationand protection,by the domestic law of thenew Colony, of any traditional native interests in land which had existedunder nativelaw or custom atthe time the Colony was established. Whether,and to what extent, such pre-existing native claims toland survivedannexation andwere translated into or recognized as estates, rights or otherinterests must be determined by referenceto that domesticlaw.

(iv) Traditional claims to land under the law of a "settled" Colony

9. There are some statements in the authorities which support a generalproposition to the effect that interests in property whichexisted under theprevious law or custom of a new British Colony availed "nothing" unlessrecognized by the Crown(169) See, e.g.,Vajesingji Joravarsingji v. Secretaryof State for India (1924) LR 51 Ind Ap 357, at p 360; Secretary of State forIndia v. SardarRustam Khan (1941) AC, at p 371. Those statements are correctto the extent that they recognize that the act of State establishinga Colonyis itself outside the domestic law of the Colony and beyond the reach of thedomestic courts. As has been seen, however,once a Colony was established by"settlement", the Crown was bound by the common law which, subject toappropriate adjustment, automaticallybecame the domestic law of the Colony.After the establishment of the Colony, the act of State doctrine does notpreclude proceedingsin the courts in which, rather than seeking to enforce orchallenge the act of State establishing the Colony, it is sought to vindicatedomestic rights arising under the common law consequent upon that act ofState.

10. The strong assumption of the common law was that interests in propertywhich existed under native law or customs were not obliteratedby the act ofState establishing a new British Colony but were preserved and protected bythe domestic law of the Colony after itsestablishment. Thus, in In reSouthern Rhodesia(170) (1919) AC, at p 233, the Privy Council expresslyaffirmed that there are "rightsof private property", such as a proprietaryinterest in land, of a category "such that upon a conquest it is to bepresumed, in theabsence of express confiscation or of subsequentexpropriatory legislation, that the conqueror has respected them and forbornetodiminish or modify them". Similarly, in Amodu Tijani v. Secretary, SouthernNigeria ("Amodu Tijani")(171) (1921) 2 AC 399, at p 407,the Privy Councilaffirmed and applied the "usual" principle "under British ... law" that whenterritory is occupied by cession,"the rights of property of the inhabitants(are) to be fully respected".

11. In Adeyinka Oyekan v. Musendiku Adele(172) (1957) 1 WLR 876, at p 880;(1957) 2 All ER 785, at p 788, the Privy Council expresslyheld that theassumption that pre-existing rights are recognized and protected under the lawof a British Colony is a "guiding principle". In a judgment read by LordDenning, their Lordships said:

"In inquiring ... what rights are recognized, there is one

guiding principle. It is this: The courts will assume that

the British Crown intends that the rights of property of the

inhabitants are to be fully respected. Whilst, therefore,

the British Crown, as Sovereign, can make laws enabling it

compulsorily to acquire land for public purposes, it will

see that proper compensation is awarded to every one of the

inhabitants who has by native law an interest in it: and

the courts will declare the inhabitants entitled to

compensation according to their interests ... "

12. The judgments in past cases contain a wide variety of views about thekinds of pre-existing native interests in land which areassumed to have beenfully respected under the common law applicable to a new British Colony. Insome cases, a narrow and somewhatrigid approach was taken. Thus, in In reSouthern Rhodesia(178) (1919) AC, at p 233, it was said by the Privy Councilthat pre-existinginterests in relation to land are presumed to be protectedand preserved under the law of a newly annexed British territory onlyif they"belonged to the category of rights of private property" and were the productof a "social organization" whose "usages andconceptions of rights and duties"were able "to be reconciled with the institutions or the legal ideas ofcivilized society". Itis true that their Lordships went on to makeclear(179) ibid., at p 234 that those requirements could be satisfied in thecase ofrights claimed by "indigenous peoples whose legal conceptions" weredifferently developed from those recognized by the common law.Nonetheless,the requirement that the pre-existing rights be of the category of "rights ofprivate property" invited a formulationin terms of common law "proprietaryrights" and the requirement that local "usages and conceptions of rights andduties" be reconcilablewith the "institutions or the legal ideas of civilizedsociety" involved a degree of conformity with the social and legal mores ofEngland or Europe.

13. In contrast, one finds clear support in other judgments, including laterjudgments of the Privy Council, for a less demandingand more flexibleapproach. In Amodu Tijani(180) (1921) 2 AC, at p 403, their Lordshipsdisparagingly referred to "a tendency, operatingat times unconsciously, torender (native title to land) conceptually in terms which are appropriate onlyto systems which have grownup under English law". That tendency must, theysaid(181) ibid, be "held in check closely" since "(a)s a rule, in the varioussystemsof native jurisprudence throughout the Empire, there is no such fulldivision between property and possession as English lawyersare familiarwith." Subsequently, having referred to a number of different types of "nativetitle" to land, their Lordships said(182)ibid., at pp 403-404:

"The title, such as it is, may not be that of the

individual, as in this country it nearly always is in some

form, but may be that of a community. Such a community

may have the possessory title to the common enjoyment of

a usufruct, with customs under which its individual

members are admitted to enjoyment, and even to a right

of transmitting the individual enjoyment as members by

assignment inter vivos or by succession. To ascertain how

far this latter development of right has progressed involves

the study of the history of the particular community and its

usages in each case. Abstract principles fashioned a priori

are of but little assistance, and are as often as not

misleading."

14. It is important to note that the judgment in Amodu Tijani makes quiteclear(183) ibid., at p 403 that their Lordships saw theIndian claims totraditional homelands in Canada as providing the obvious example of the kindof traditional native title which wasassumed to be recognized and protectedunder the law of a British Colony. They referred to the judgments in St.Catherine's Millingand Lumber Company v. The Queen(184) (1888) 14 App Cas 46(hereafter "St. Catherine's Milling Case") and Attorney-General for Quebecv.Attorney-General for Canada(185) (1921) 1 AC 401, two cases dealing with theIndian claims, as explaining the relevant principles. The traditional nativetitle involved in the St. Catherine's Milling Case was that of the Salteauxtribe of Ojibbeway Indians. The land, which was in the Province of Ontario,consisted of "a tract of country upwards of 50,000 square miles inextent"(186) St.Catherine's Milling Case (1888) 14 App Cas, at p 51. It waslargely uncultivated and the Indians' claim to it was as lands uponwhich theypursued "their avocations of hunting and fishing"(187) ibid. The claim wasthat of the whole tribe and was clearly seenby their Lordships as of a naturewhich did not conform to English notions of property. It provided an"illustration of the necessityfor getting rid of the assumption that theownership of land naturally breaks itself up into estates, conceived ascreatures of inherentlegal principle"(188) Amodu Tijani (1921) 2 AC, at p403. Under the law of the Province, it was to be recognized and protected asaright of occupation or user of the relevant land which "qualified" the"radical or final title" of the Sovereign(189) ibid.

15. In Adeyinka Oyekan v. Musendiku Adele(190) (1957) 1 WLR, at p 880; (1957)2 All ER, at p 788, the Privy Council, while usingthe phrase "rights ofproperty", clearly endorsed the more lenient approach adopted in Amodu Tijanito the kind of pre-existing native"rights" which are to be assumed to befully respected under the law of a new British territory. The courts will,their Lordshipssaid(191) ibid, assume that the traditional interests of thenative inhabitants are to be so respected "even though those interestsare ofa kind unknown to English law". That approach is supported by otherauthority(192) See, e.g., Sunmonu v. Disu Raphael (1927)AC 881, at pp883-884; Sakariyawo Oshodi v. Moriamo Dakolo (1930) AC 667, at pp 668-669 andby compelling considerations of justice. It should be accepted as correct.

16. On that approach, the pre-existing native interests with respect to landwhich were assumed by the common law to be recognizedand fully respectedunder the law of a newly annexed British territory were not confined tointerests which were analogous to commonlaw concepts of estates in land orproprietary rights. Nor were they confined by reference to a requirement thatthe existing localsocial organization conform, in its usages and itsconceptions of rights and duties, to English or European modes or legalnotions. To the contrary, the assumed recognition and protection extended tothe kinds of traditional enjoyment or use of land which werereferred to bythe Privy Council in Amodu Tijani. As their Lordships made plain in that(193)(1921) 2 AC, at pp 403-404 and subsequent(194)See, e.g., Sobhuza II. v.Miller (1926) AC, at p 525; Sunmonu v. Disu Raphael (1927) AC, at pp 883-884cases, such a traditionalinterest would ordinarily be that of a community orgroup. It could, however, be that of an individual. It could relate to landswhich were under actual cultivation or to lands which, like much of the landsinvolved in the Canadian cases to which their Lordshipsreferred, were leftuncultivated but which, under the law or custom observed in the territory,constituted traditional homelandsor hunting grounds. What the common lawrequired was that the interest under the local law or custom involve anestablished entitlementof an identified community, group or (rarely)individual to the occupation or use of particular land and that thatentitlement tooccupation or use be of sufficient significance to establish alocally recognized special relationship between the particular community,group or individual and that land. In the context of the Privy Council'sinsistence(195) Amodu Tijani (1921) 2 AC, at pp 403-404that English conceptsof property might be quite inappropriate and that all that was involved mightbe the possession of the commonenjoyment of a usufruct(196) ibid., at p 402,it is clear that such a traditional interest could result from the establishedandrecognized occupation and use by a tribe or clan of particular land forpurposes such as the obtaining of food(197) ibid., at pp409-410: "primafacie based ... on a communal usufructuary occupation".

(vi) Common law native title

17. As has been seen, it must be accepted as settled law that the provisionsof the common law which became applicable upon theestablishment by settlementof the Colony of New South Wales included the system of land law which existedin England and that theconsequence of that was that the radical title to allland in the new Colony vested in the Crown. If there were lands within theColony in relation to which no pre-existing native interest existed, theradical title of the Crown carried with it a full and unfetteredproprietaryestate. Put differently, the radical title and the legal and beneficialestate were undivided and vested in the Crown. Thereafter, any claim by theAboriginal inhabitants to such lands by reason of possession or occupationafter the establishmentof the Colony must be justified by ordinary common lawprinciples or presumptions which apply and (at least theoretically) appliedindifferently to both native inhabitants and Europeans (e.g. possessory titlebased on a presumed lost grant).

18. On the other hand, if there were lands within a settled Colony inrelation to which there was some pre-existing native interest,the effect ofan applicable assumption that that interest was respected and protected underthe domestic law of the Colony wouldnot be to preclude the vesting of radicaltitle in the Crown. It would be to reduce(198) ibid., at p 410, qualify(199)ibid., atpp 403, 404 or burden(200) Attorney-General for Quebec v.Attorney-General for Canada (1921) 1 AC, at pp 409-410 the proprietaryestatein land which would otherwise have vested in the Crown, to the extent whichwas necessary to recognize and protect the pre-existingnative interest.Obviously, where the pre-existing native interest was "of a kind unknown toEnglish law", its recognition and protectionunder the law of a newly settledBritish Colony would require an adjustment either of the interest itself or ofthe common law: eithera transformation of the interest into a kind known tothe common law or a modification of the common law to accommodate the new kindof interest.

19. In Amodu Tijani, the Privy Council gave careful consideration to themanner in which traditional native claims may be recognizedand protectedunder the law of a British Colony. The claim which their Lordships recognizedas established in that case was thatof a native community based on communaloccupation. Their Lordships recognized that the interests underlying such aclaim couldtheoretically be respected and protected under the law of a Colonyby transforming them into some "definite forms analogous to estates...derived ... from the intrusion of the mere analogy of Englishjurisprudence"(201) (1921) 2 AC 399, at p 403. They concluded,however, thatthe appropriate course was to recognize a "full native title of usufruct"(202)ibid., at p 403 which qualified andreduced the proprietary estate of theCrown as radical owner. In rejecting the conclusion reached by the SupremeCourt of Nigeriato the effect that native "title" under the earlier law orcustom had been extinguished upon the establishment of the Colony by cession,they said(203) ibid., at pp 409-410:

"That title ... is prima facie based, not on such individual

ownership as English law has made familiar, but on a

communal usufructuary occupation ... In (our) opinion there

is no evidence that this kind of usufructuary title of the

community was disturbed in law".

20. The content of such a common law native title will, of course, varyaccording to the extent of the pre-existing interest ofthe relevantindividual, group or community. It may be an entitlement of an individual,through his or her family, band or tribe,to a limited special use of land ina context where notions of property in land and distinctions betweenownership, possession anduse are all but unknown(206) See, e.g., Amodu Tijani(1921) 2 AC, at pp 404-405. In contrast, it may be a community title which ispractically "equivalent to full ownership"(207) Geita Sebea v. Territory ofPapua (1941) 67 CLR, at p 557 and see Amodu Tijani (1921)2 AC, at pp 409-410.Even where (from the practical point of view) common law native titleapproaches "full ownership", however,it is subject to three importantlimitations.

21. The first limitation relates to alienation. It is commonly expressed asa right of pre-emption in the Sovereign, sometimessaid to flow from"discovery" (i.e. in the European sense of "discovery" by a EuropeanState)(208) See, e.g., Johnson v. McIntosh[1823] USSC 22; (1823) 8 Wheat 543, at p 592 (21 US240, at p 261); Reg. v. Symonds (1847) NZPCC, at pp 389-391. The effect ofsuch a right ofpre-emption in the Crown is not to preclude changes toentitlement and enjoyment within the local native system. It is to precludealienation outside that native system otherwise than by surrender to theCrown. The existence of any rule restricting alienationoutside the nativesystem has been subjected to some scholarly questioning and criticism(209)See, e.g., McNeil, op cit, pp 221ff.In our view, however, the rule must beaccepted as firmly established(210) See, e.g., Nireaha Tamaki v. Baker (1901)AC, at p 579;Attorney-General for Quebec v. Attorney-General for Canada(1921) 1 AC, at pp 408, 411; Administration of Papua and New Guinea v.DaeraGuba (1973) 130 CLR, at p 397.

22. The second limitation has sometimes been seen as flowing from thefirst(211) See Attorney-General for Quebec v. Attorney-Generalfor Canada(1921) 1 AC, at p 408. Arguably, it would be more accurate to say that thefirst flows from it. It is that the title,whether of individual, family,band or community, is "only a personal ... right"(212) See, ibid., at p 406;and see St. Catherine'sMilling Case (1888) 14 App Cas, at p 54 and, thatbeing so(213) Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd.[1982] HCA 69; (1982) 158CLR 327, at p 342, it does not constitute a legal or beneficial estate orinterest in the actual land. Thus, it washeld by the PrivyCouncil inAttorney-General for Quebec v. Attorney-General for Canada(214) (1921) 1 AC,at pp 408, 411 that evena specific provisionin an 1850 Canadian statute(215)13 and 14 Vict c 42, s.1 that lands set aside under the statute for aparticularband were to be"vested in trust for" that band did not, in acontext where the traditional Indian title was merely "a personal andusufructuaryright", suffice to create an equitable estate in the lands setaside under the statute. The inalienability outsidethe native systemofcommon law native title except by surrender to the Crown, the personal natureof the rights under it and theabsence of any legalor equitable estate orinterest in the land itself invite analogy with the kind of entitlement to useor occupythe land of anotherwhich confers no estate or interest in the landand constitutes a "mere equity"(216) See, e.g., National ProvincialBank Ltd.v.Ainsworth[1965] UKHL 1; (1965) AC 1175, at pp 1238-1239, 1247-1248; Reg. v. Toohey; Exparte Meneling Station Pty.Ltd. (1982) 158 CLR, at p 342.On theother hand,the rights under common law native title can, as the Privy Council has pointedout(217) Amodu Tijani (1921) 2AC, atpp 409-410, approach the rights flowingfrom full ownership at common law. The preferableapproach is that adopted inAmoduTijani(218)ibid., at p 403 and by Dickson J. in the Supreme Court ofCanada in Guerin v. The Queen(219)(1984) 13 DLR (4th), atp 339, namely,torecognize the inappropriateness of forcing the native title to conform totraditional commonlaw concepts and toaccept it assui generis or unique.

23. The third limitation is related to both the first and the second. It isthat common law native title, being merely a personalright unsupported by anyprior actual or presumed Crown grant of any estate or interest in the land,was susceptible of being extinguishedby an unqualified grant by the Crown ofan estate in fee or of some lesser estate which was inconsistent with therights under thecommon law native title. In such a case, prior occupation oruse under the common law native title is explained by the common law'srecognition of prior entitlement under the earlier indigenous law or customand is predicated upon the absence of any interveninggrant from the Crown.Accordingly, it does not found an assumption of a prior lost grant and wouldbe unavailing against those claimingunder the inconsistent grant which wouldotherwise be beyond challenge except on the ground of invalidity on itsface(220) See, e.g.,Nireaha Tamaki v. Baker (1901) AC, at p 579. Common lawnative title could also be effectively extinguished by an inconsistent dealingby the Crown with the land, such as a reservation or dedication for aninconsistent use or purpose, in circumstances where thirdparty rightsintervened or where the actual occupation or use of the native title-holderswas terminated. In the latter case, anultimate lack of effective challengewould found either an assumption of acquiescence in the extinguishment of thetitle or a defencebased on laches or some statute of limitations.

24. Implicit in what has been written above is the rejection of anyproposition to the effect that the common law native title recognizedby thelaw of a British Colony was no more than a permissive occupancy which theCrown was lawfully entitled to revoke or terminateat any time regardless ofthe wishes of those living on the land or using it for their traditionalpurposes. Acceptance of that,or any similar, proposition would deprive thetraditional inhabitants of any real security since they would be liable to bedispossessedat the whim of the Executive, however unjust. There is somesupport in the decided cases for such a proposition. In particular,it issupported by some cases in the United States(221) See, in particular,Tee-Hit-Ton Indians v. United States[1955] USSC 24; (1954) 348 US 272,at p 279; but cf.,per Marshall C.J., Johnson v. McIntosh (1823) 8 wheat, at p 587; (21 US, at p259) and CherokeeNation v. Georgia[1831] USSC 6; (1831) 5 Pet 1, at p 17; (30 US 1, at p12), where special constitutional and historical considerations arguablyapply(222) See,e.g., Priestley, "Communal Native Title and the Common Law",(1974) 6 Fed LR 150 and Hookey, "Chief Justice Marshall and the EnglishOak:A Comment", (1974) 6 Fed LR 174, and, superficially, by the ambiguousreference to "dependent upon the goodwill of the Sovereign"in the PrivyCouncil's judgments in the St. Catherine's Milling Case(223) (1888) 14 AppCas, at p 54 and Attorney-General for Quebecv. Attorney-General forCanada(224) (1921) 1 AC, at p 406. However, the weight of authority (seebelow) and considerations of justiceseem to us to combine to compel itsrejection.

25. The substance of the judgment of the Privy Council in Attorney-Generalfor Quebec v. Attorney-General for Canada is, upon analysis,inconsistent withthe notion that the common law native title was no more than a shadowyentitlement to occupy or use the relevantland until the Crown saw fit toterminate it. Their Lordships recognized that the Indian usufructuary titlewas "a right" which,while being "personal ... in the sense that it is in itsnature inalienable except by surrender to the Crown" (emphasis added), wasa"burden" on the Crown's proprietary estate in the land(225) ibid., at pp 408,411. They also acknowledged(226) ibid., at p 411that the Crown's"substantial and paramount estate, underlying the Indian title"(227)) ibid.,at p 410, quoting from the St. Catherine'sMilling Case did not become "aplenum dominium" "except after a surrender of (the Indian title) ... to theCrown"(228) ibid., atp 411. If common law native title conferred no more thanentitlement to occupy or use until the Crown or those acting locally onitsbehalf told the native title-holders to cease their occupation or use, theterm "title" would be misleading, the "rights" underit would be essentiallyillusory since they could be lawfully terminated at the whim of the Executive,the reference to inalienability"except by surrender" would be inappropriate,and the statements that the title was a "burden" on the Crown's proprietaryestateand that the title precluded the Crown from possessing "a plenumdominium" would be simply wrong. It is true that, at one pointin thejudgment, their Lordships, quoting from the Privy Council judgment in the St.Catherine's Milling Case, referred(229) ibid.,at p 406 to the Indian title asa personal right "dependent upon the goodwill of the Sovereign". That phrasemay be explicable asa reference to past procedural difficulties in enforcingnon-contractual rights against the Crown. Be that as it may, the contextofthe case makes it highly probable that the phrase was used to distinguishIndian title from an estate in land, and it cannot properlybe understood asintended to convey the view that the Indian title was merely a kind ofpermissive occupancy terminable at will.In that regard, it is relevant tonote that what was said in both the majority and minority judgments in theSupreme Court of Canadain the St. Catherine's Milling Case(230) (1887) 13 SCR577 was plainly inconsistent with the suggestion that the Indian occupancyunder the native title was merely such a permissive occupancy. Ritchie C.J.(for the majority) stated(231) ibid., at pp 599-600(emphasis added) that theIndians possessed the "right of occupancy" and that the Crown's legal titlewas "subject to that occupancy,with the absolute exclusive right toextinguish the Indian title either by conquest or by purchase". Strong J. (inthe minority)disregarded the possibility of "conquest" and expressed theview(232) ibid., at p 612 (emphasis added). See, also, per Gwynne J.at p 664that the lands occupied by the Indians under native title "are, untilsurrendered, treated as their rightful though inalienableproperty, so far asthe enjoyment and possession are concerned", adding(233) ibid., at p 613 that"these territorial rights of theIndians were strictly legal rights".

26. The judgments in subsequent Privy Council cases make plain theirLordships' view that the Crown was not, as between the nativeinhabitants anditself, lawfully entitled to effect a unilateral extinguishment of common lawnative title against the wishes ofthe native occupants. Thus, in NireahaTamaki v. Baker(234) (1901) AC, at p 579, their Lordships quoted with approvalthe followingcomment of Chapman J. in Reg. v. Symonds(235) (1847) NZPCC , atp 390 which they described as being "very pertinent" to the casebefore them:

"Whatever may be the opinion of jurists as to the strength

or weakness of the Native title ... it cannot be too

solemnly asserted that it is entitled to be respected, that

it cannot be extinguished (at least in times of peace)

otherwise than by the free consent of the Native occupiers."

27. The Privy Council judgment in Amodu Tijani is also inconsistent with thenotion that the common law native title was merelya permissive occupancywhich the Crown could terminate at any time without any breach of its legalobligations to the traditionaloccupants. Their Lordships consistentlyreferred to the native title as "a right" or "rights". They described thelegal title ofthe Crown as being qualified(237) (1921) 2 AC, at p 403 andreduced(238) ibid., at p 410 by the common law native title. They rejectedviews expressed by the Chief Justice of Nigeria to the effect that the merely"seigneurial" rights of control possessed by the nativeswere extinguishedupon cession, on the ground that those views "virtually exclude ... the legalreality of the community usufruct"by failing to "recognize the real characterof the title to land occupied by a native community"(239) ibid., at p 409(emphasis added). That title was, their Lordships said(240) ibid., at pp409-410:

"prima facie based, not on such individual ownership as

English law has made familiar, but on a communal

usufructuary occupation, which may be so complete as to

reduce any radical right in the Sovereign to one which only

extends to comparatively limited rights of administrative

interference" (emphasis added).

28. In Administration of Papua and New Guinea v. Daera Guba(242) (1973) 130CLR, at p 397 (emphasis added), Barwick C.J. identifiedthe "traditionalresult" of the establishment of British sovereignty by "occupation orsettlement" as being that "the indigenouspeople were secure in theirusufructuary title to land" and that "the ultimate title subject to theusufructuary title was vestedin the Crown. Alienation of that usufructuarytitle to the Crown completed the absolute fee simple in the Crown." In acontextwhere the primary issue in the case was whether a claim by traditionalinhabitants against the Crown was defeated by reason of anearlier "purchase"by the Crown, it is most unlikely that Barwick C.J., who spoke for themajority of the Court on that issue, wouldso describe the common law nativetitle if he had considered that the Crown could extinguish it by unilateralact at any time withoutbreach of its legal obligations to the traditionalowners. Similarly, it is most unlikely that Williams J., whose judgment wasthatof the majority in Geita Sebea v. Territory of Papua, would haveheld(243) (1941) 67 CLR, at p 557 that, for the purposes of assessingcompensation, the communal usufructuary title was "equivalent to fullownership" and that no deduction should be made by reason ofrestrictions uponalienability, if his Honour had considered that the title was extinguishableat the will of the Crown without infringementof the rights of the nativetitle-holders.

29. Notwithstanding that the rights of use or occupancy under a common lawnative title recognized by the law of a settled BritishColony were bindingupon the Crown, the native inhabitants of such a Colony in the eighteenthcentury were in an essentially helplessposition if their title was wrongfullydenied or extinguished or their possession was wrongfully terminated by theCrown or thoseacting on its behalf. In theory, the native inhabitants wereentitled to invoke the protection of the common law in a local court(whenestablished) or, in some circumstances, in the courts at Westminster. Inpractice, there is an element of the absurd aboutthe suggestion that it wouldhave even occurred to the native inhabitants of a new British Colony that theyshould bring proceedingsin a British court against the British Crown tovindicate their rights under a common law of which they would be likely toknow nothing. There were, however, a few occasions on which, even in thosetimes, proceedings were brought in British courts to vindicate therights ofthe weak against the actions of the powerful. The case of James Sommersett(the "Negro Case")(244) (1772) 20 Howells'State Trials 2 provides an example.Even if the native inhabitants of an eighteenth century Colony did somehowinstitute proceedingsagainst the Crown or its agents in the British courts,however, they would have failed. As has been said, if the Crown had alreadymade an unqualified grant of an inconsistent estate in the relevant land, thecommon law native title of the inhabitants would havebeen extinguished. Thesame position would apply if the Crown had reserved or dedicated the land forsome inconsistent public purposeor use in circumstances giving rise to thirdparty rights or assumed acquiescence. True it is that, subject to the effectof anyacquiescence, the Crown would have infringed the legal rights of thetraditional inhabitants and would have acted wrongfully. Theextent of Crownimmunity from curial proceedings was, however, such that, no breach ofcontract being involved, no action would havelain against the Crown toprevent the wrongful act being done or against the Crown or its agents forcompensatory damages after itwas done(245) See, e.g., Clode, The Law andPractice of Petition of Right, (1887), pp 53-54; Tobin v. The Queen[1864] EngR 21; (1864) 16CB (NS)310, at pp 353-356[1864] EngR 21; (143 ER 1148, at p 1165); Windsor and AnnapolisRailway Co. v. The Queen and the Western Counties Railway Co.(1886) 11 AppCas607, at p 614; and see also, as to New South Wales, Farnell v. Bowman(1887) 12 App Cas 643, at p 649 and notethat it may be theoreticallyarguable that a claim could have been framed as a real action: see,generally, Holdsworth, A Historyof English Law, 3rd ed. (1944),vol.9, p 19.Indeed, until a general remedy was granted by statute against the Crown, theSovereign'scourts would not even entertainthe suggestion that the Sovereignwould do or had done wrong(246) See, e.g., Werrin v. The Commonwealth[1938] HCA 3; (1938)59 CLR 150, at pp 167-168; Williams v. Downs (1970) 72 SR (NSW) 622, at pp628-629.

30. The practical inability of the native inhabitants of a British Colony tovindicate any common law title by legal action in theevent of threatened oractual wrongful conduct on the part of the Crown or its agents did not,however, mean that the common law'srecognition of that title was unimportantfrom the practical point of view. The personal rights under the title werenot illusory:they could, for example, be asserted by way of defence in bothcriminal and civil proceedings (e.g. alleged larceny of produce ortrespassafter a purported termination of the title by the Crown by mere notice asdistinct from inconsistent grant or other dealing). More important, if thedomestic law of a British Colony recognized and protected the legitimateclaims of the native inhabitantsto their traditional lands, that fact itselfimposed some restraint upon the actions of the Crown and its agents even ifthe nativeinhabitants were essentially helpless if their title was wrongfullyextinguished or their possession or use was forcibly terminated.

(vii) The act of State establishing New South Wales

31. It has been seen that the validity of the act of State establishing a newColony cannot be challenged in the domestic courts.Nor can the domesticcourts invalidate an expropriation of property or extinguishment of rightseffected in the course of that actof State, or enforce a promise orundertaking made or given as part of it. On the other hand, when the subjectseeks to assert aright alleged to arise under the domestic law and a questionarises whether the act of State establishing a Colony excluded whatwouldotherwise be a rule of the common law or precluded or extinguished rightswhich would otherwise exist under the domestic law,it is incumbent upon thedomestic courts in the discharge of their jurisdiction to determine whether,as a matter of domestic law,the act of State did have that extendedoperation. Were the law otherwise, the subject would have no rights againstthe Executivein any case where the Executive simply asserted that property orrights to which the subject was presumptively entitled under thecommon lawhad been expropriated, precluded or extinguished by the act of Stateestablishing a Colony. Accordingly, it is open tothe domestic courts toconsider the question whether the act of State establishing a particularColony, or other act or declarationperformed or made as part of that act ofState, or some other expropriation of property had the effect of negativingthe strong assumptionof the common law that pre-existing native interests inlands in the Colony were respected and protected(247) See, e.g., In reSouthernRhodesia (1919) AC, at p 233; Amodu Tijani (1921) 2 AC, at p 407;Adeyinka Oyekan v. Musendiku Adele (1957) 1 WLR, at p 880; (1957)2 All ER, atp 788; Administration of Papua and New Guinea v. Daera Guba (1973) 130 CLR, atp 397. Both legal principle relatingto the deprivation of property orrights and considerations of justice require that any such act or declarationbe clear and unambiguous(248)See, e.g., In re Southern Rhodesia (1919) AC, atp 233; Adeyinka Oyekan v. Musendiku Adele (1957) 1 WLR, at p 880; (1957) 2 AllER,at p 788; Calder v. Attorney-General of British Columbia (1973) 34 DLR(3d), at p 210; Hamlet of Baker Lake v. Minister of IndianAffairs (1979) 107DLR (3d) 513, at p 552.

32. As has been said, the establishment of the Colony of New South Wales bysettlement was complete, at the latest, when CaptainPhillip caused his secondCommission to be read and published in the territory of the Colony. It isdebatable whether the act ofState constituting the Colony consisted solely ofthe reading and publishing of the second Commission or should be extended toincludethe other documents which were read and published(249) the Statute 27GEO III c.2 (authorizing the establishment of a Criminal Courtof Record) andthe Letters Patent of 2 April and 5 May 1787 (establishing courts) and/or theearlier activities of Captain Cook andthe members of his expedition on theeastern coastline. Even if the act of State establishing the Colony be soextended to includeall the documents read and all those activities, there isnothing which could properly be seen as effecting a general confiscationorextinguishment of any native interests which may have existed in the Colonyunder native law or custom or as negating or reversingthe strong assumptionof the common law that any such pre-existing native interests were respectedand protected under the law ofthe Colony once established.

33. Cook's activities of discovery and pronouncements of taking possessionwere in no way directed to depriving the native inhabitantsof the ownershipof any land in which they had an interest under their law or custom. Theywere concerned with the assertion ofBritish sovereignty. Examination of thedocuments which might arguably be involved in the act of State establishingthe Colony discloseslittle that is relevant to the question of its intendedeffect upon any existing native interests in the lands of the new Colony. Thefirst Commission was a formal document which, for present purposes, did nomore than appoint Phillip as the Governor of thedesignated territory. Thesecond Commission conferred upon Phillip "full power and authority to agreefor such lands tenements andhereditaments as shall be in our power to disposeof and them to grant to any person or persons"(250) HRA, (1914) Series 1,vol.1,p 7 (emphasis added). The Instructions recorded(251) ibid., p 12 theRoyal intent that, after arrival in the territory of the newColony, suppliesof livestock be acquired by the use of "a quantity of arms and other articlesof merchandize" for the purposes of"barter with the natives either on theterritory of New South Wales or the islands adjacent". They also recorded(252)ibid., pp 14-15the Royal wish that land be granted and provisions be suppliedto emancipated convicts. In order to enable encouragement to be giventoprospective new settlers, Phillip was instructed(253) ibid., p 15 that heshould, "with all convenient speed, transmit a reportof the actual state andquality of the soil at and near the said intended settlement". As regards theAboriginal inhabitants, theInstructions contained what was to become afamiliar clause. It read(254) ibid., pp 13-14:

"You are to endeavour by every possible means to open

an intercourse with the natives, and to conciliate their

affections, enjoining all our subjects to live in amity

and kindness with them. And if any of our subjects shall

wantonly destroy them, or give them any unnecessary

interruption in the exercise of their several occupations,

it is our will and pleasure that you do cause such offenders

to be brought to punishment according to the degree of

the offence. You will endeavour to procure an account

of the numbers inhabiting the neighbourhood of the

intended settlement, and report your opinion to one of our

Secretaries of State in what manner our intercourse with

these people may be turned to the advantage of this colony."

34. It follows that, for present purposes, the most that can be said aboutthe act of State establishing the Colony is that it envisaged(i) that somelands within the Colony would become Crown lands and be available both for theestablishment of the penal settlementand for future grants of Crown land toemancipated convicts and new settlers, and (ii) that the native inhabitantsof the Colonywould be protected and not subjected to "any unnecessaryinterruption in the exercise of their several occupations". The expectationthat some colonial lands would become Crown lands and be available both forthe use of the Crown and for future grant to others wasone that would haveprobably existed in respect of all of the British Colonies established in theeighteenth and nineteenth centuries. It may be arguable, though we thinkunpersuasively, that the Instructions unambiguously authorized the unilateralextinguishmentby the Crown of any existing native interests in the landrequired for the actual establishment of the convict settlement ("at andnearthe said intended settlement"(255) ibid., p 15). Otherwise, it seems to us tobe simply not arguable that there was anythingin the act of Stateestablishing the Colony which constituted either an expropriation orextinguishment of any existing native interestsin the vast areas of land inthe new Colony or a negation or reversal of the strong assumption of thecommon law that such nativeinterests were respected and protected under thelaw of the Colony after its establishment.

35. Any explanation of the absence, in the documents encompassed by the actof State, of any specific reference to existing nativeinterests in the landsof the Colony necessarily involves a degree of speculation. In the context ofBritish experience in NorthAmerica (including the 1763 ImperialProclamation(256) the "Indian Bill of Rights", which had "force ... analogousto the statusof Magna Carta" and which "has always been considered to be thelaw throughout the Empire", following "the flag" to "newly discoveredoracquired lands or territories": see Calder v. Attorney-General of BritishColumbia (1973) 34 DLR (3d), at p 203; Reg. v. ForeignSecretary; ex parteIndian Association of Alberta (1982) QB 892, at p 912 which recognized Indianrights of occupation of theirtraditional homelands) and of the specificinstructions to Phillip protecting the Aboriginal inhabitants of Australiafrom "any unnecessaryinterruption in the exercise of their severaloccupations", it is unlikely that there was any actual but unexpressed intenton thepart of the Crown that the act of State establishing the Colony of NewSouth Wales should reverse the assumption of the common lawor extinguishexisting native interests in land throughout the more than 1.4 million squaremiles of the Colony. The informationprovided by Cook and those who sailedwith him had been misleading about the numbers of native inhabitants. Banksthought that therewere "very few inhabitants" on either the eastern coast ingeneral or around Botany Bay(257) See the extract from Banks' evidencebeforethe House of Commons Committee on Transportation quoted by R.J. King in "TerraAustralis: Terra Nullius aut Terra Aboriginum?",(1986) 72 Journal of theRoyal Australian Historical Society, 75, at p 77 and, while admitting thatwhat the inland might producewas "totaly unknown", commented that "we mayhave liberty to conjecture however that (it is) totaly uninhabited"(258) J.Banks, The'Endeavour' Journal of Joseph Banks, 1768-1771, (ed. Beaglehole),(1962), vol.2, p 122. In fact, it is now clear that parts of thecontinentwere, for an unindustralized and uncultivated territory, quite heavilypopulated. If one must speculate, the most likelyexplanation of the absenceof specific reference to native interests in land is that it was simplyassumed either that the land needsof the penal establishment could besatisfied without impairing any existing interests (if there were any) of theAboriginal inhabitantsin specific land or that any difficulties which didarise could be resolved on the spot with the assent or acquiescence of theAboriginals: e.g., by "purchase" (on behalf of the Crown) "of a part of thecountry from the native inhabitants for articles more agreable anduseful tothem"(259) "An Anonymous Proposal for the Settlement of New South Wales",(1783-86), Historical Records of New South Wales,vol.2, p 364 (semble,written by Sir John Call).

36. There can be cases in which events after an act of State can removeuncertainty or ambiguity about what was involved in theact of State itself.What was done after the establishment of the Colony of New South Wales doesnot, however, affect the natureand content of the act of State whichestablished it. The reason why that is so is that there is no relevantambiguity about theact of State establishing the Colony. We know what wasdone and it is plain that what was done neither constituted a specificexpropriationof pre-existing native interests in the lands of the Colony norsufficed to negate the strong assumption of the common law that anysuchpre-existing native interests were respected and protected under the law ofthe Colony after its establishment. In any event,while those subsequent actswere increasingly inconsistent with the existence of any valid Aboriginalclaims to land within the Colony,they cannot properly be seen as evincing anintention to extinguish any Aboriginal interests of a kind presumptivelyrecognized bythe common law. When they were purportedly rationalized andjustified, it was on the basis of a denial that there were pre-existingAboriginal interests of the relevant kind for the law to respect and protect.All the lands of the Colony had been, so it was asserted,unoccupied forpractical purposes. As such, they were all unoccupied and unclaimed wastelands of which the Crown had become thecomplete and unqualified legal andbeneficial owner.

(viii) The Aborigines and the land in 1788

37. The numbers of the Aboriginal inhabitants of the Australian continent in1788, the relationship between them and the lands onwhich they lived, and thecontent of the traditional laws and customs which governed them are still butincompletely known or imperfectlycomprehended. The following broadgeneralizations must, however, now be accepted as beyond real doubt orintelligent dispute atleast as regards significant areas of the territorywhich became New South Wales. As has been said, it is clear that the numbersof Aboriginal inhabitants far exceeded the expectations of the settlers. Therange of current estimates for the whole continentis between three hundredthousand and a million or even more. Under the laws or customs of therelevant locality, particular tribesor clans were, either on their own orwith others, custodians of the areas of land from which they derived theirsustenance and fromwhich they often took their tribal names. Their laws orcustoms were elaborate and obligatory. The boundaries of their traditionallands were likely to be long-standing and defined. The special relationshipbetween a particular tribe or clan and its land wasrecognized by other tribesor groups within the relevant local native system and was reflected indifferences in dialect over relativelyshort distances. In different ways andto varying degrees of intensity, they used their homelands for all thepurposes of theirlives: social, ritual, economic. They identified with themin a way which transcended common law notions of property or possession. Aswas the case in other British Colonies(260) See, e.g., Amodu Tijani (1921) 2AC, at p 404; Sobhuza II. v. Miller (1926) AC, atp 525, the claim to the landwas ordinarily that of the tribe or other group, not that of an individual inhis or her own right.

38. In the context of the above generalizations, the conclusion is inevitablethat, at the time of the establishment of the Colonyof New South Wales in1788, there existed, under the traditional laws or customs of the Aboriginalpeoples in the kaleidoscope ofrelevant local areas, widespread specialentitlements to the use and occupation of defined lands of a kind whichfounded a presumptivecommon law native title under the law of a settledColony after its establishment. Indeed, as a generalization, it is true tosaythat, where they existed, those established entitlements of the AustralianAboriginal tribes or clans in relation to traditionallands were no lessclear, substantial and strong than were the interests of the Indian tribes andbands of North America, at leastin relation to those parts of theirtraditional hunting grounds which remained uncultivated.

39. It follows from what has been said in earlier parts of this judgment thatthe application of settled principle to well-knownfacts leads to theconclusion that the common law applicable to the Colony in 1788, andthereafter until altered by valid legislation,preserved and protected thepre-existing claims of Aboriginal tribes or communities to particular areas ofland with which they werespecially identified, either solely or with others,by occupation or use for economic, social or ritual purposes. Under the lawof the Colony, they were entitled to continue in the occupation or use ofthose lands as the holders of a common law native titlewhich was a burdenupon and reduced the title of the Crown. The Crown and those acting on behalfof the Crown were bound by thatnative title notwithstanding that the Crown'simmunity from action and the fiction that the King could do no wrong precludedproceedingsagainst the Crown to prevent, or to recover compensation for, itswrongful infringement or extinguishment. In accordance with thebasicprinciples of English constitutional law applicable to a settled Colony, thesovereignty of the British Crown did not, afterthe act of State establishingthe Colony was complete, include a prerogative right to extinguish bylegislation or to disregard byexecutive act the traditional Aboriginal rightsin relation to the land which were recognized and protected by the common lawastrue legal rights. The combined effect of (i) the personal nature of thoserights, (ii) the absence of any presumption of a priorgrant to theAboriginal title-holders, and (iii) the applicable principles of English landlaw was that native title would be extinguishedby a subsequent inconsistentgrant of the relevant land by the Crown which was not invalid on its face.That extinguishment would,however, involve a wrongful infringement by theCrown of the rights of the Aboriginal title-holders.

40. It is unnecessary for the purposes of this judgment, and probably nowimpracticable, to seek to ascertain what proportion ofthe lands of thecontinent were affected by such common law native titles. Obviously, theproportion was a significant one. Conceivably,it was the whole.

(ix) The Australian cases

41. The only reported decision of an Australian court directly dealing withthe merits of an Aboriginal claim to particular traditionaltribal or communallands is Milirrpum v. Nabalco Pty. Ltd.(261) (1970) 17 FLR 141. There, agroup of Aborigines representing nativetribes sued a mining company and theCommonwealth in the Supreme Court of the Northern Territory claiming relief inrelation to thepossession and enjoyment of areas of land which had initiallybeen part of the Colony of New South Wales. The learned trial judge(Blackburn J.) rejected the plaintiffs' claim of common law communal nativetitle. The primary reason for that rejection was thathis Honour found thatthe plaintiffs had not established, on the balance of probabilities, thattheir predecessors had had the samelinks as themselves to the relevant areasof land at the time of the establishment of New South Wales. It is notnecessary, forpresent purposes, to examine the correctness or the relevanceof that particular finding in the context of the evidence in Milirrpum. Theimportance of the case for present purposes lies in Blackburn J.'s conclusionthat, quite apart from that finding, there weregeneral reasons of principlewhich precluded the plaintiffs' success. One was that a doctrine of common lawnative title had no placein a settled Colony except under express statutoryprovisions. Another was that, under any such doctrine, the narrow andsomewhatrigid approach referred to in In re Southern Rhodesia would beappropriate and that the plaintiffs had failed to establish any pre-existinginterest in relation to the land which satisfied the requirement that it be ofthe category of "rights of property".

42. It should be apparent from what has been written above that we disagreewith each of the above conclusions of general principlereached by BlackburnJ. in Milirrpum. As has been seen, the doctrine of presumptive common lawnative title, which has long beenrecognized by the common law, is applicableto a settled British Colony. As has also been seen, the view expressed in Inre SouthernRhodesia, to the effect that pre-existing native interests are notassumed to be recognized by the law of a British Colony unlessthey fallwithin the category of "rights of private property", has not prevailed insubsequent cases and should be rejected. Nonetheless,it must be acknowledgedthat Blackburn J.'s ultimate conclusion that the doctrine of common law nativetitle had never formed partof the law of any part of Australia derivessupport from some general statements of great authority in earlier Australiancases. We turn to consider the four most important of those cases. They are:Attorney-General v. Brown(262) (1847) 1 Legge 312, Cooperv. Stuart(263)(1889) 14 App Cas 286, Williams v. Attorney-General for New South Wales(264)[1913] HCA 33; (1913) 16 CLR 404 andRandwick Corporationv. Rutledge(265)[1959] HCA 63; (1959) 102 CLR54.

43. In Attorney-General v. Brown, Williams v. Attorney-General for New SouthWales and Randwick Corporation v. Rutledge, one findsstrong support for thebroad proposition that, upon the settlement of New South Wales, theunqualified legal and beneficial ownershipof all land in the Colony vested inthe Crown. Arguably, the judgment of the Supreme Court of New South Wales(Stephens C.J., Dickinsonand Therry JJ.) in Attorney-General v. Brown isambiguous in that their Honours confined the proposition(266) See (1847) 1Legge,at p 318 to "waste lands" which they defined(267) ibid., at p 319 asmeaning "all the waste and unoccupied lands of the colony" (emphasisadded).Careful reading of the judgment seems to us, however, to make plain thatimplicit in it is the assumption that all the landsof the Colony wererelevantly unoccupied at the time of its establishment.

44. In Williams v. Attorney-General for New South Wales, Isaacs J., in thecourse of a judgment dealing with the ownership of theland of StateGovernment House in Sydney, identified as his starting point "theunquestionable position that, when Governor Phillipreceived his firstcommission from King George III on 12 October 1786, the whole of the lands ofAustralia were already in law theproperty of the King of England"(268) (1913)16 CLR, at p 439. It has been pointed out that that proposition is far from"unquestionable"in so far as its identification of the time of establishmentof the Colony is concerned(269) See Roberts-Wray, op cit, p 631: "startlingand, indeed, incredible". Be that as it may, it is clear that Isaacs J.regarded the proposition that, on the establishment of NewSouth Wales, theunqualified legal and beneficial property in all the lands of the Colonyvested in the Crown as being clear beyondargument. His Honour's judgmentalso made plain his view that the Aboriginal inhabitants had no claims whichqualified or affectedthe absolute ownership of the Crown(270) See thereference to Batman's Treaty: (1913) 16 CLR, at p 439.

45. The question in Randwick Corporation v. Rutledge was whether the landsused for Randwick Racecourse in Sydney fell within anexemption from ratingunder the Local Government Act 1919 (N.S.W.). Windeyer J., in the course of ajudgment with which Dixon C.J.and Kitto J. (and perhaps Fullagar J.(271) See(1959) 102 CLR, at p 61) agreed, stated(272) ibid., at p 71 that from thefirst settlementof New South Wales all lands of the territory lay in thegrant of the Crown and, until grant, formed "a royal demesne". His Honouradded(273) ibid that, "when in 1847 a bold argument ... challenged the rightof the Crown ... to dispose of land in the colony, itwas as a legalproposition firmly and finally disposed of by Sir Alfred Stephen C.J.: TheAttorney-General v. Brown".

46. The other case, Cooper v. Stuart, was a decision of the Privy Council onappeal from the Supreme Court of New South Wales. In the course ofconsidering whether the rule against perpetuities had been applicable to areservation in an 1823 Crown grant ofland in the Colony, their Lordshipsasserted(274) (1889) 14 App Cas, at p 291 that, at the time of theestablishment of the Colony,it "consisted of a tract of territory practicallyunoccupied, without settled inhabitants or settled law". Their statement tothateffect was thereafter seen as authoritatively establishing that theterritory of New South Wales had, in 1788, been terra nulliusnot in the senseof unclaimed by any other European power, but in the sense of unoccupied oruninhabited for the purposes of thelaw.

47. It is important to note that, in each of those four cases, the reasoningsupporting one or both of the broad propositions thatNew South Wales had beenunoccupied for practical purposes and that the unqualified legal andbeneficial ownership of all land inthe Colony had vested in the Crown,consists of little more than bare assertion. The question of Aboriginalentitlement was not directlyinvolved in any of them and it would seem that noargument in support of Aboriginal entitlement was advanced on behalf of anyparty. In three(275) Attorney-General v. Brown; Williams v. Attorney-Generalfor New South Wales; Randwick Corporation v. Rutledge, andarguably all, ofthem the relevant comments were obiter dicta. Nonetheless, the authoritywhich the four cases lend to the two propositionsis formidable. Indeed, thepaucity of the reasoning tends to emphasize the fact that the propositionswere regarded as either obviousor well-settled. Certainly, they accordedwith the general approach and practice of the representatives of the Crown inthe Colonyafter its establishment.

(x) The "dispossession of the original Inhabitants"

48. The first days of the Colony were peaceful in so far as the Aboriginalinhabitants were concerned. They received numerous giftsfrom the newarrivals(276) See, e.g., Phillip's despatch of May 15, 1788, HistoricalRecords of New South Wales, vol.1, Pt 2, pp128-129, 131. They gave up,without dispute, the lands initially occupied by, and in connection with, thepenal camp.

49. As time passed, the connection between different tribes or groups andparticular areas of land began to emerge. The Europeanstook possession ofmore and more of the lands in the areas nearest to Sydney Cove. Inevitably,the Aborigines resented being dispossessed.Increasingly there was violence asthey sought to retain, or continue to use, their traditional lands.

50. An early flash point with one clan of Aborigines illustrates the firststages of the conflagration of oppression and conflictwhich was, over thefollowing century, to spread across the continent to dispossess, degrade anddevastate the Aboriginal peoplesand leave a national legacy of unutterableshame. It came in 1804 in the fertile areas surrounding the lower reaches ofthe HawkesburyRiver. The Aborigines were said to have threatened to set fireto the settlers' wheat crops when they ripened. Governor King summonedthreerepresentatives of the Aborigines for questioning. They "readily came"(277)ibid., vol.5, p 513. In his despatch of 20 December1804 to Lord Hobart, Kingreported(278) ibid that "they very ingenuously answered that they did not liketo be driven from the fewplaces that were left on the banks of the river,where alone they could procure food; that they had gone down the river as thewhitemen took possession of the banks; if they went across white men's groundthe settlers fired upon them and were angry; that if theycould retain someplaces on the lower part of the river they should be satisfied and would nottrouble the white men. The observationand request appear to be so just and soequitable that I assured them no more settlements should be made lower downthe river." Inan earlier despatch to King, Hobart had expresslyacknowledged(279) ibid., vol.4, p 684 the extent to which the practice in theColonyhad departed from "the wise and humane instructions" of his"predecessors" and that the Aborigines had been "too often" subjectedto"unjustifiable injuries". In due course, King's assurance that no moresettlements should be made lower down the river was dishonoured.While thewrongs involved in the dispossession of the Aborigines were acknowledged, theunderlying problems were left unaddressed.

51. Throughout the rest of the century, the white expropriation of landcontinued, spreading not only throughout the fertile regionsof the continentbut to parts of the desert interior. There were some reserves established forAborigines and some reservations,increasingly ignored, in pastoral leasesprotecting Aboriginal usufructuary access. On the broad front, however, landwas grantedby the Crown or dedicated or reserved for inconsistent publicpurposes without regard to Aboriginal claims. As political power inrelationto domestic matters was transferred from the Imperial Government in England tothe European Colonists on the other sideof the world, the Aborigines wereincreasingly treated as trespassers to be driven, by force if necessary, fromtheir traditionalhomelands. A dramatic illustration of the effect upon themof the first one hundred and five years of European settlement is providedbythe contrast between what Cook wrote in the Endeavour's Log Book in August1770 and what Captain Wharton F.R.S. wrote as editorof a transcription of theLog Book in 1893. Cook had written of the Aborigines(280) See Captain Cook'sJournal, op cit, p 323:

"They live in a Tranquility which is not disturbed by the

Inequality of Condition. The earth and Sea of their own

accord furnishes them with all things necessary for Life

... they live in a Warm and fine Climate, and enjoy every

wholesome Air, so that they have very little need of

Cloathing; ... in short, they seem'd to set no Value upon

anything we gave them; nor would they ever part with

anything of their own ... This, in my opinion Argues that

they think themselves provided with all the necessarys of

Life."

"Their treachery, which is unsurpassed, is simply an outcome

of their savage ideas, and in their eyes is a form of

independence which resents any intrusion on their land,

their wild animals, and their rights generally. In their

untutored state they therefore consider that any method

of getting rid of the invader is proper. ... although

treated by the coarser order of colonists as wild beasts

to be extirpated, those who have studied them have formed

favourable opinions of their intelligence. The more savage

side of their disposition being, however, so very apparent,

it is not astonishing that, brought into contact with white

settlers, who equally consider that they have a right to

settle, the aborigines are rapidly disappearing."

52. Only seven years later, the Australian Aborigines were, at least as amatter of legal theory, included among the people who,"relying on theblessing of Almighty God", agreed to unite in an indissoluble Commonwealth ofAustralia(283) See the preamble tothe Commonwealth of AustraliaConstitutionAct (63 and 64 Vict c 12). TheConstitution contained but two references tothem. Both were dismissive and have now been removed. The first(284)s.51(xxvi) excluded them from the reach of the power of the CommonwealthParliament to make laws with respect to the people of any race. Ina contextwhere the courts had affirmed the proposition that the territory of New SouthWales had been "practically unoccupied" in1788 and that the lands of theColony were unaffected by any pre-existing traditional claims, the second(285)s.127 was not all thatsurprising. It had been adopted by the framers of theConstitution without any dissent or, for that matter, any real discussion. Itprovided that, "in reckoning the numbers of the people of the Commonwealth,orof a State or other part of the Commonwealth, aboriginal natives shall not becounted".

53. In the very early days, the explanation of the disregard of Aboriginalclaims and the resulting dispossession and conflict mayhave been that the newarrivals were ignorant of the fact that, under pre-existing local law orcustom, particular tribes or clanshad established entitlements to theoccupation and use of particular areas of land. That explanation is not,however, a plausibleone in respect of later events. Increasingly, the factthat particular tribes or clans enjoyed traditional entitlements to theoccupationand use of particular lands for ritual, economic and socialpurposes was understood. Increasingly, that fact was even acknowledgedbygovernment authorities and in formal despatches(286) See, e.g., the examplesgiven by Reynolds, The Law of the Land, (1987), Chs.IIIand V. Thus, on 14March 1841, James Stephen, probably the most knowledgeable of all thenineteenth century permanent heads of theImperial Colonial Office, noted on adespatch received from South Australia(287) Colonial Office Records,Australian Joint CopyingProject, File No.13/16, Folio 57:

"It is an important and unexpected fact that these Tribes

had proprietary rights in the Soil - that is, in particular

sections of it which were clearly defined or well understood

before the occupation of their country".

54. Nor can it be said that it did not occur to the Imperial and localauthorities that the dispossession of the Aboriginal inhabitantsmight involvethe infringement of rights recognized by the common law. The story of thedevelopment of South Australia, includingthe ineffective reservation in theLetters Patent of 1836(289) Appendix to Reprints of the Public General Acts ofSouth Australia1837-1936, vol.8, pp 830-831 protecting "the rights of anyAboriginal Natives (of South Australia) to the actual occupation or enjoymentin their own persons or in the persons of their descendants of any landtherein now actually occupied or enjoyed by such Natives",demonstrates thatthe contrary was the case(290) See, e.g., the sources referred to in Reynolds,op cit, pp 103-120. Another exampleis apposite. In Williams v.Attorney-General for New South Wales(291) (1913) 16 CLR, at p 439, Isaacs J.referred to Governor Bourke'sProclamation approved by the Colonial Office,refusing to recognize Batman's 1835 Treaty with the local Aboriginal eldersfor thepurchase of a large tract of land on the shores of Port Phillip, as a"very practical application" of the doctrine that the Crownhad acquired fulllegal and beneficial ownership of all the lands of Australia. Examination ofthe contemporary documents disclosesthat the purchasers obtained advice fromno less an authority than Dr. Stephen Lushington(292) Then a leader of theEnglish Bar andjudge of the London consistory court and subsequently theeminent English Admiralty Judge and a member of the Judicial Committeeof thePrivy Council. In an Opinion dated 18 January 1836(293) See HRA, (1923),Series 1, vol.18, p 389 (emphasis added), Dr. Lushingtonadvised that thepurported grants of land by the Aborigines were "not valid without the consentof the Crown". He added(294) ibidthat he did not think "that the right tothis Territory is at present vested in the Crown" but that it was "competentto the Crownto prevent such settlements being made by British Subjects, if itshould think fit". Presumably, Dr. Lushington was recognizing theradicaltitle and associated right of pre-emption of the Crown but acknowledging therights in relation to the territory of the Aboriginaloccupants. When a copyof Dr. Lushington's Opinion was forwarded to the then Secretary of State forthe Colonies, Lord Glenelg,he conceded(295) ibid., p 390 "the great weightwhich is due to the deliberate judgment of Dr. Lushington on a question ofthis nature"but dismissed Dr. Lushington's advice on the specious ground thathe must have been "under a misapprehension of some of the mostmaterial partsof the case". It is perhaps relevant to mention that, in an earlier despatchto Bourke, Glenelg had written that,although many circumstances hadcontributed to render him anxious that the "Rights" of the Aborigines "shouldbe studiously defended",to concede to them "any right to alienate to privateadventurers ... would subvert the foundation on which all Proprietary rightsin New South Wales at present rest"(296) ibid., p 379.

55. Inevitably, one is compelled to acknowledge the role played, in thedispossession and oppression of the Aborigines, by the twopropositions thatthe territory of New South Wales was, in 1788, terra nullius in the sense ofunoccupied or uninhabited for legalpurposes and that full legal andbeneficial ownership of all the lands of the Colony vested in the Crown,unaffected by any claimsof the Aboriginal inhabitants. Those propositionsprovided a legal basis for and justification of the dispossession. Theyconstitutedthe legal context of the acts done to enforce it and, whileaccepted, rendered unlawful acts done by the Aboriginal inhabitants toprotecttraditional occupation or use. The official endorsement, by administrativepractice and in judgments of the courts, of thosetwo propositions providedthe environment in which the Aboriginal people of the continent came to betreated as a different and lowerform of life whose very existence could beignored for the purpose of determining the legal right to occupy and use theirtraditionalhomelands.

(xi) Should the propositions supported by the Australian cases and pastpractice be accepted?

56. If this were any ordinary case, the Court would not be justified inreopening the validity of fundamental propositions whichhave been endorsed bylong-established authority and which have been accepted as a basis of the realproperty law of the countryfor more than one hundred and fifty years. Andthat would be so notwithstanding that the combined effect of Crown grants, ofassumedacquiescence in reservations and dedications and of statutes oflimitations would be that, as a practical matter, the consequencesofre-examination and rejection of the two propositions would be largely, andprobably completely, confined to lands which remainunder Aboriginaloccupation or use. Far from being ordinary, however, the circumstances of thepresent case make it unique. As hasbeen seen, the two propositions inquestion provided the legal basis for the dispossession of the Aboriginalpeoples of most of theirtraditional lands. The acts and events by which thatdispossession in legal theory was carried into practical effect constitute thedarkest aspect of the history of this nation. The nation as a whole mustremain diminished unless and until there is an acknowledgmentof, and retreatfrom, those past injustices. In these circumstances, the Court is under aclear duty to re-examine the two propositions. For the reasons which we haveexplained, that re-examination compels their rejection. The lands of thiscontinent were not terranullius or "practically unoccupied" in 1788. TheCrown's property in the lands of the Colony of New South Wales was, under thecommonlaw which became applicable upon the establishment of the Colony in1788, reduced or qualified by the burden of the common law nativetitle of theAboriginal tribes and clans to the particular areas of land on which theylived or which they used for traditional purposes.

(xii) The nature, incidents and limitations of the common law native title ofAustralian Aborigines

57. To a large extent, the nature, incidents and limitations of the rightsinvolved in the common law native title of AustralianAborigines appear fromwhat has been written above. It would, however, seem desirable to identifythem in summary form at this stageof this judgment.

58. Ordinarily, common law native title is a communal native title and therights under it are communal rights enjoyed by a tribeor other group. It isso with Aboriginal title in the Australian States and internal Territories.Since the title preserves entitlementto use or enjoyment under thetraditional law or custom of the relevant territory or locality, the contentsof the rights and theidentity of those entitled to enjoy them must beascertained by reference to that traditional law or custom. The traditionallawor custom is not, however, frozen as at the moment of establishment of aColony. Provided any changes do not diminish or extinguishthe relationshipbetween a particular tribe or other group and particular land, subsequentdevelopments or variations do not extinguishthe title in relation to thatland.

59. The rights of an Aboriginal tribe or clan entitled to the benefit of acommon law native title are personal only. The enjoymentof the rights can bevaried and dealt with under the traditional law or custom. The rights arenot, however, assignable outsidethe overall native system. They can bevoluntarily extinguished by surrender to the Crown. They can also be lost bythe abandonmentof the connection with the land or by the extinction of therelevant tribe or group. It is unnecessary, for the purposes of thiscase, toconsider the question whether they will be lost by the abandonment oftraditional customs and ways. Our present view isthat, at least where therelevant tribe or group continues to occupy or use the land, they will not.

60. The personal rights conferred by common law native title do notconstitute an estate or interest in the land itself. They areextinguished byan unqualified grant of an inconsistent estate in the land by the Crown, suchas a grant in fee or a lease conferringthe right to exclusive possession.They can also be terminated by other inconsistent dealings with the land bythe Crown, such asappropriation, dedication or reservation for aninconsistent public purpose or use, in circumstances giving rise to thirdparty rightsor assumed acquiescence. The personal rights of use andoccupation conferred by common law native title are not, however, illusory.They are legal rights which are infringed if they are extinguished, againstthe wishes of the native title-holders, by inconsistentgrant, dedication orreservation and which, subject only to their susceptibility to beingwrongfully so extinguished, are bindingon the Crown and a burden on itstitle.

(xiii) Legislative powers with respect to common law native title.

61. Like other legal rights, including rights of property, the rightsconferred by common law native title and the title itselfcan be dealt with,expropriated or extinguished by valid Commonwealth, State or Territoriallegislation operating within the Stateor Territory in which the land inquestion is situated. To put the matter differently, the rights are notentrenched in the sensethat they are, by reason of their nature, beyond thereach of legislative power. The ordinary rules of statutory interpretationrequire, however, that clear and unambiguous words be used before there willbe imputed to the legislature an intent to expropriateor extinguish valuablerights relating to property without fair compensation(297) See, e.g., TheCommonwealth v. Hazeldell Ltd.[1918]HCA 75;[1918] HCA 75; (1918)25 CLR 552, at p 563; Central ControlBoard (Liquor Traffic) v. Cannon Brewery Company Ltd. (1919) AC 744, at p752;Clissoldv.Perry[1904] HCA 12; (1904) 1 CLR 363, at pp 373-374 (affirmed (1907) AC 73): acase dealing with possessorytitle. Thus, general waste lands(or Crownlands)legislation is not to be construed, in the absence of clear and unambiguouswords,as intended to apply in a waywhich willextinguish or diminish rightsunder common law native title. If lands in relation to whichsuch title existsare clearlyincludedwithin the ambit of such legislation, the legislativeprovisions conferring executive powerswill, in the absence of clearandunambiguouswords, be construed so as not to increase the capacity of theCrown to extinguish ordiminish the native title. That is to say,the powerof the Crown wrongfully to extinguish the native title by inconsistent grantwill remain but any liabilityof the Crownto pay compensatory damages forsuch wrongful extinguishment will be unaffected. The executiveacts of theCrown underCrown or wastelands legislation will likewise be presumed not tohave been intended to derogate from thenative title. Thus, whenCrown landsor waste lands are transferred to trustees to be held upon trust forAboriginal interests,it will be presumed, in theabsence ofclear andunambiguous words, that the lands were intended to be held by the trustees fortheholders of the common lawnative titleto the extent necessary to enableenjoyment of their rights of occupation and use.

62. There are, however, some important constraints on the legislative powerof Commonwealth, State or Territory Parliaments to extinguishor diminish thecommon law native titles which survive in this country. In so far as theCommonwealth is concerned, there is therequirement ofs.51(xxxi) of theConstitution that a law with respect to the acquisition of property provide"just terms". Our conclusion that rights under common law nativetitle aretrue legal rights which are recognized and protected by the law would, wethink, have the consequence that any legislativeextinguishment of thoserights would constitute an expropriation of property, to the benefit of theunderlying estate, for the purposesofs.51(xxxi). An even more importantrestriction upon legislative powers to extinguish or diminish common lawnative title flows from the paramountcyof valid legislation of theCommonwealth Parliament over what would otherwise be valid State or Territorylegislation. In particular,as Mabo v. Queensland(298) (1988) 166 CLR 186has demonstrated, the provisions of theRacial Discrimination Act 1975 (Cth)represent an important restraint upon State or Territory legislative power toextinguish or diminish common law native title.

63. It is unnecessary and would be impracticable to seek to identify theextent to which particular legislative provisions haveclearly andunambiguously extinguished or adversely affected common law native title indifferent areas of this country. That beingso, the general comments aboutenforcement and protection in the next section of this judgment mustnecessarily be read as subjectto the provisions of any valid applicablelegislation.

(xiv) The enforcement and protection of common law native title

64. As has been seen, common law native title-holders in an eighteenthcentury British Colony were in an essentially helpless positionif theirrights under their native title were disregarded or wrongly extinguished bythe Crown. Quite apart from the inherent unlikelihoodof such title-holdersbeing in a position to institute proceedings against the British Crown in aBritish court, the vulnerabilityof the rights under native title resulted inpart from the fact that they were personal rights susceptible toextinguishment by inconsistentgrant by the Crown and in part from theimmunity of the Crown from court proceedings. The vulnerability persists tothe extent thatit flows from the nature of the rights as personal. On theother hand, as legislative reforms increasingly subjected the Crown oranominal defendant on its behalf to the jurisdiction of the courts and toliability for compensatory damages for a wrong done toa subject, the abilityof native title-holders to protect and vindicate the personal rights undercommon law native title significantlyincreased. If common law native titleis wrongfully extinguished by the Crown, the effect of those legislativereforms is that compensatorydamages can be recovered provided the proceedingsfor recovery are instituted within the period allowed by applicablelimitationsprovisions. If the common law native title has not beenextinguished, the fact that the rights under it are true legal rights meansthat they can be vindicated, protected and enforced by proceedings in theordinary courts.

65. In a case where the Crown or a trustee appointed by the Crown wronglydenies the existence or the extent of an existing commonlaw native title orthreatens to infringe the rights thereunder (e.g. by an inconsistent grant),the appropriate relief in proceedingsbrought by (or by a representative partyor parties on behalf of) the native title-holders will ordinarily bedeclaratory only sinceit will be apparent that the Crown or the trustee,being bound by any declaration, will faithfully observe its terms. Furtherreliefis, however, available where it is necessary to protect the rights ofthe title-holders. One example of such further relief is reliefby way ofinjunction(299) See, e.g., Nireaha Tamaki v. Baker (1901) AC, at p 578.Notwithstanding their personal nature and theirspecial vulnerability towrongful extinguishment by the Crown, the rights of occupation or use undercommon law native title canthemselves constitute valuable property. Actualor threatened interference with their enjoyment can, in appropriatecircumstances,attract the protection of equitable remedies. Indeed, thecircumstances of a case may be such that, in a modern context, the appropriateform of relief is the imposition of a remedial constructive trust framed toreflect the incidents and limitations of the rights underthe common lawnative title. The principle of the common law that pre-existing native rightsare respected and protected will, ina case where the imposition of such aconstructive trust is warranted, prevail over other equitable principles orrules to the extentthat they would preclude the appropriate protection of thenative title in the same way as that principle prevailed over legal ruleswhich would otherwise have prevented the preservation of the title under thecommon law. In particular, rules relating to requirementsof certainty andpresent entitlement or precluding remoteness of vesting may need to be adaptedor excluded to the extent necessaryto enable the protection of the rightsunder the native title.

(xv) The annexation of the Murray Islands

66. It must now be accepted as settled(300) See Wacando v. The Commonwealth[1981] HCA 60; (1981) 148 CLR 1 that the Murray Islandsbecame, orare deemed to havebecome, part of the Colony of Queensland on 1 August 1879pursuant to thecombined effect of the ImperialLettersPatent of 10 October 1878, theQueensland Coast Islands Act 1879 (Q.) and the Proclamation of 18 July1879(301) See Supplement to the Queensland Government Gazette, vol.25, No.10,21 July, 1879: the Proclamation was made on 18 July, gazetted on 21 July andexpressed to take effect from 1 August of the Queensland Governorin Council.If, as is arguable, the Imperial Letters Patent did not validly authorize thelocal Act and Proclamation of 1879, anydefect was retrospectively cured bythe Colonial Boundaries Act 1895 (Imp)(302) See Wacando v. The Commonwealth(l981) 148 CLR atpp 16-18, 24-27, 28, 30; and note that the possiblerelevance of the Pacific Islanders Protection Acts 1872-1875 (Imp) appears notto have been adverted to in Wacando. See, generally, Lumb, "The Torres StraitIslands: Some Questions Relating to their Annexationand Status", (1990) 19FLR 154.

67. Upon the annexation of the Murray Islands to Queensland, the law ofQueensland became applicable to them. For its part, thelaw of Queenslandtraced back to the law of New South Wales, from whose territory Queensland hadbeen carved by the Imperial LettersPatent and Order in Council of 6 June1859(303) Pursuant to 18 and 19 Vict c 54 (Imp) (the New South WalesConstitution Act 1855). The power to separate the northern portion of NewSouth Wales was first inserted in theAustralian Constitutions Act1842 (Imp),s.51, and continued in the Australian Constitutions Act 1850 (Imp), s.34 andthe New South WalesConstitution Act 1855 (Imp) respectively. Since theestablishment of New South Wales in 1788, there had been no legislationenacted which expresslyaltered the Colony's domestic law in relation to thepreservation and protection of pre-existing native entitlements to theoccupationand use of land. Nor had there been any such legislation enactedin Queensland after its establishment as a Colony. There had beensomegeneral statutes - Imperial and Colonial - dealing with waste lands and theirdisposition. In a context where, as has beenseen, the rights of occupationand use under common law native title can be "so complete as to reduce anyradical right in the Sovereignto one which only extends to comparativelylimited rights of administrative interference"(304) Amodu Tijani (1921) 2 AC,at p 410,the settled rules of statutory construction required that thegeneral words of those provisions be construed as not intended to extinguishthose rights(305) See, e.g., the cases referred to in fn.297 (above).Accordingly, where lands in respect of which common law nativetitle existedwere included in the "waste lands" affected by such legislation, thelegislation neither obliterated nor reduced thepersonal rights of the nativetitle-holders. To the extent that general provisions in such legislationwould otherwise have theeffect of making the native title-holders trespasserson the relevant land, those provisions must be read as inapplicable to thosenative title-holders. In particular, the provisions of the Crown LandsAlienation Act 1876 (Q.) did not, of themselves, either extinguishexistingcommon law native title in relation to the lands to which it applied or makethem trespassers upon those lands. On theother hand, such legislation didnot enhance the nature of common law native title by diminishing or abolishingthe capacity of theCrown wrongfully to extinguish it by an inconsistent grantwhich was not invalid on its face. After Federation, the power of theCrown todeal with land in Queensland and to extinguish native title by inconsistentgrant remained in the Crown in right of theState.

68. It follows that, at the time the Murray Islands were annexed to theColony, it was a doctrine of the domestic law of Queensland,as it was of thedomestic law of New South Wales and the common law of England, thatpre-existing native interests in relation toland were preserved andprotected. There was nothing at all in the Proclamation of the Governorannexing the Islands, or in theassociated Letters Patent and legislation,which could even arguably be suggested as evincing an intention to negativethat strongassumption of the common law. To the contrary, the unavoidableinference is that it was the intention of the Crown that the existingentitlements of the native inhabitants to the occupation and use of theirtraditional homelands would be preserved and protected. The questiontherefore arises whether those existing entitlements were of a nature such asto found a common law native title.

(xvi) Traditional claims to land in the Murray Islands

69. The detailed findings of Moynihan J. of the Supreme Court of Queenslandin relation to the issues of fact remitted to that courtunavoidably containareas of uncertainty and elements of speculation. Nonetheless, they provide,for present purposes, a sound basisfor some generalizations in relation tonative entitlements to the occupation and use of land within the MurrayIslands under locallaw or custom at the time of their annexation toQueensland. It suffices, for the purposes of this judgment, to say that theMeriampeople lived in an organized community which recognized individual andfamily rights of possession, occupation and exploitation ofidentified areasof land. The entitlement to occupation and use of land differed from what hascome to be recognized as the ordinaryposition in settled British Colonies inthat, under the traditional law or custom of the Murray Islanders, there was aconsistentfocus upon the entitlement of the individual or family as distinctfrom the community as a whole or some larger section of it. Itwould seemthat, with the exception of the area used by the London Missionary Society,those individual or familial entitlementsunder traditional law or customextended to all the land of the Islands. It is true, as the learnedSolicitor-General for Queenslandsubmitted, that it is impossible to identifyany precise system of title, any precise rules of inheritance or any precisemethodsof alienation. Nonetheless, there was undoubtedly a local nativesystem under which the established familial or individual rightsof occupationand use were of a kind which far exceed the minimum requirements necessary tofound a presumptive common law nativetitle. In circumstances where the strongassumption of the common law was unaffected by the act of State annexing theIslands, theeffect of the annexation was that the traditional entitlements ofthe Meriam people were preserved. The radical title to all thelands of theIslands vested in the Crown. The Crown's proprietary estate in the land was,however, reduced, qualified or burdenedby the common law native title of theIslanders which was thereafter recognized and protected by the law ofQueensland. It is unnecessaryto determine whether the lands of the Islandsbecame, upon annexation, Crown lands for the purposes of the Crown LandsAlienationAct. If they did, the common law native title of the Islanders wasnot extinguished but remained a burden on the underlying titleof the Crown,and any provisions of that Act which would have the effect of modifying thecommon law native title or restrictingthe rights of use and occupation of theIslanders were, to that extent, inapplicable.

(xvii) Post-annexation legislation and executive acts

70. In 1985, the Queensland Parliament enacted the Queensland Coast IslandsDeclaratory Act. In Mabo v. Queensland(306) [1988]HCA 69; (1988)166 CLR 186, this Courtheld that the effect of that Act, if it had been wholly valid, would have beenretrospectivelyto extinguish,from the time of annexation in 1879, anyrights, interests and claims which any of the Meriam people might have hadinrelation toland in the Islands. The Act was, however, held by the Court tobe invalid, by reason of inconsistency withs.10(1) of theRacialDiscrimination Act 1975 (Cth), to the extent that it purportedly extinguishedany traditional native title of the Murray Islanders. In the present case,the defendant State of Queensland has conceded that any native title to theoccupation and use of lands in the Murray Islands whichsurvived annexationhas not been extinguished by subsequent legislation. That concession wasrightly made since, putting to oneside the purported extinguishment by theQueensland Coast Islands Declaratory Act, there is no provision of any otherrelevant statutewhich could properly be construed as evidencing a legislativeintent to extinguish the rights of the Murray Islanders under the commonlawnative title which preserved traditional entitlements.

71. After 1879, there were some dealings with two particular areas of MurrayIslands land which set them apart from the other landsof the Islands. One ofthose areas was the subject of a series of leases by the Crown to the LondonMissionary Society. The current"lessees" of that area are the trustees ofthe Australian Board of Missions. The parties interested in it are not beforethe Courtand the general comments made hereunder in relation to land in theMurray Islands should not be understood as applicable to thatarea of land.The second area, consisting of the whole of the Islands of Dauer and Waier,was the subject of a purported twenty-yearCrown lease to two non-Islandersfor the purpose of establishing a sardine factory. This lease recognized andprotected usufructuaryrights of the Murray Islanders and was subsequentlyforfeited. It would seem likely that, if it was valid, it neitherextinguishednor had any continuing adverse effect upon any rights of MurrayIslanders under common law native title. It is, however, appropriateto leavethe question of the validity and possible effect of that lease until anotherday.

72. In 1882, a "reservation from sale" of the lands of the Murray Islands waspurportedly made pursuant to the provisions of theCrown Lands Alienation Act1876 (Q.). The instrument of reservation has not been located. Its validityis open to doubt since itis arguable that the Crown Lands Alienation Act wasinapplicable to lands within a territory which was not annexed to Queenslanduntil after its enactment. Be that as it may, there is nothing to suggestthat the instrument of reservation contained anythingwhich would have theeffect of extinguishing the common law native title of Murray Islanders tolands within the Islands.

73. It is unnecessary to trace in detail the history of subsequent Crownlands legislation in Queensland. It was argued on behalfof the plaintiffsthat the lands of the Murray Islands had remained right outside the provisionsof the Land Act 1910 (Q.). The preferableview is, however, that, by onecourse or another, the Murray Islands were initially within the definition of"Crown Lands" for thepurposes of that Act(307) See the definition of "Crownland" in s.4 and the provisions of s.180(3). Section 180(1) of the Land Act1910 authorized the Governor in Council to reserve any Crown land required for"public purposes", which by definition included "Aboriginalreserves"(308)s.4, from sale or lease. In 1912, the Governor in Council permanentlyreserved and set apart the Murray Islands "foruse of the Aboriginalinhabitants of the State". Section 181 of the Land Act authorized theGovernor in Council, without issuingany deed of grant, to place any landreserved for any public purpose under the control of trustees. In 1939, theGovernor in Councilplaced the Murray Islands reserve under the control oftrustees without specifically declaring any particular trust upon which itwasheld. The effect of subsequent legislative provisions is that the reservationof the Murray Islands and the appointment of trusteescontinue in force as ifmade under the presently operative provisions of the Land Act 1962 (Q.).However, by reason of that reservation,the lands included in the MurrayIslands reserve are not "Crown lands" for the purposes of the Land Act 1962since s.5 of that Actexcludes, from its definition of "Crown land", any land"which is, for the time being ... reserved for ... public purposes" and thedefinition of "public purposes" includes "Aboriginal reserves"(309) s.5.

74. None of the above-mentioned executive acts had the effect ofextinguishing the existing rights of Murray Islanders under commonlaw nativetitle. The reservation from sale or lease "for use of the Aboriginalinhabitants of the State" should clearly be construedas intended to protect,rather than extinguish, any existing native rights of occupation and use. Theplacing of the lands of theMurray Islands under the control of trustees mustlikewise be construed as intended to safeguard rather than extinguish thoseexistingrights. It follows that the common law native title of MurrayIslanders in relation to land in the Murray Islands survives. In thelight ofwhat has been said previously in this judgment, the identity of familial orindividual title-holders and the content ofthe rights possessed in relationto particular land fall to be determined by reference to local law or custom.

(xviii) Relief

75. Subsequent to the completion of the argument, the firstnamed plaintiff,Mr. Eddie Mabo, died. The secondnamed and thirdnamedplaintiffs, Mr. DavidPassi and Mr. James Rice, remain as competent plaintiffs. Each of them claimsto be a native title-holderin relation to land on Mer Island and to have aninterest in that land.

76. It would be inappropriate for this Court to seek to define the rights ofany plaintiffs in the absence of other persons whomay have competing claimsto the relevant areas of land. Each of Mr. Passi and Mr. Rice has, however,standing to seek and obtainmore general declaratory relief against thedefendant State of Queensland in relation to the question whether all existingentitlementsto land within the Murray Islands were, as the defendant Stateclaims, extinguished upon annexation of the Islands to Queensland. In thesecircumstances, the answers to the questions reserved for the Full Court andany declaratory relief should be confined todeclarations:

1. That, upon the annexation of the Murray Islands to

Queensland, the radical title to all the lands in the

Murray Islands vested in the Crown in right of the State

of Queensland;

2. That, putting to one side the London Missionary Society

land and subject to the effect of the grant of the forfeited

Crown lease of the islands of Dauer and Waier, the Crown's

ownership of lands in the Murray Islands after their

annexation to Queensland was qualified and reduced by a

communal native title of the Murray Islanders to the land of

the Islands which was preserved and protected by the common

law;

3. That the entitlement of particular Island families or

individuals with respect to particular land under that common

law communal title falls to be determined by reference to

traditional law or custom;

4. That, apart from the effect of the leases of the London

Missionary Society land and of the forfeited Crown lease of

the islands of Dauer and Waier, the common law native title

of Murray Islanders in respect of land in the Islands has not

been extinguished by subsequent legislation or executive act;

5. That the lands of the Murray Islands are not "Crown lands"

for the purposes of the Land Act 1962 (Q.); and

6. That the rights under that common law native title are true

legal rights which may be enforced and protected by legal

action and which, if wrongfully extinguished (e.g., by

inconsistent grant) without clear and unambiguous statutory

authorization, found proceedings for compensatory damages.

77. It should be mentioned that the plaintiffs also sought a declaration thatany future grant by the Governor in Council of landson Murray Island inpurported pursuance of the Land Act 1962 would be unlawful by reason of theprovisions ofss.9 and10 of theRacial Discrimination Act 1975 (Cth). In ourview, it has not been shown that such a declaration is warranted. For onething, the material before the Court doesnot establish that there exists anyintention to make such a grant. For another, the effect of this judgment isthat any such deedof grant would, if it had the effect of extinguishing therights of the Murray Islanders under common law native title, be wrongfulunless it was clearly and unambiguously authorized by a valid enactment of theQueensland Parliament. There is no basis upon whichthe Court could properlyconclude that the Queensland Government is likely, in the absence of suchclear and unambiguous legislativeauthorization, to infringe the rights ofMurray Islanders by such an inconsistent deed of grant. If such clear andunambiguous legislationwas purportedly enacted, it would be necessary toexamine its operation to determine whether it was invalid by reason ofinconsistencywith theRacial Discrimination Act 1975.

78. There are two further matters which should be mentioned. The first isthat we are conscious of the fact that, in those partsof this judgment whichdeal with the dispossession of Australian Aborigines, we have used languageand expressed conclusions whichsome may think to be unusually emotive for ajudgment in this Court. We have not done that in order to trespass into thearea ofassessment or attribution of moral guilt. As we have endeavoured tomake clear, the reason which has led us to describe, and expressconclusionsabout, the dispossession of Australian Aborigines in unrestrained language isthat the full facts of that dispossessionare of critical importance to theassessment of the legitimacy of the propositions that the continent wasunoccupied for legal purposesand that the unqualified legal and beneficialownership of all the lands of the continent vested in the Crown. Longacceptance oflegal propositions, particularly legal propositions relating toreal property, can of itself impart legitimacy and preclude challenge. It istheir association with the dispossession that, in our view, precludes thosetwo propositions from acquiring the legitimacywhich their acceptance as abasis of the real property law of this country for more than a hundred andfifty years would otherwiseimpart. The second further matter is that, in thewriting of this judgment, we have been assisted not only by the materialplacedbefore us by the parties but by the researches of the many scholars whohave written in the areas into which this judgment has necessarilyventured.We acknowledge our indebtedness to their writings and the fact that our ownresearch has been largely directed to sourceswhich they had alreadyidentified.

DAWSON J. In 1879 the Murray Islands (comprising Mer, Dauer and Waier), whichlie between Australia and New Guinea in Torres Strait,were annexed by theColony of Queensland(310) See U.K. Letters Patent dated 10 October 1878;Proclamation of 18 July 1879; QueenslandGovernment Gazette, 21 July 1879; andtheQueensland Coast Islands Act 1879 (Q.). The Colonial Boundaries Act 1895(Imp) (58 and 59 Vict c 34) removed any doubts about the effectiveness ofthese measuresby authorizing the incorporation of the Murray Islands intoQueensland retrospectively. See also Wacando v. The Commonwealth[1981]HCA 60; (1981)148CLR 1 and Mabo v. Queensland (1988) 166 CLR 186, at pp 235-236. Thoseislands thereupon becamepart of the colonyand wereproclaimed to be subjectto the laws in force in Queensland. Although the letters patent whichauthorizedthe Governorof Queenslandto proclaim the annexation provided thatthe application of Queensland laws to the islands might be modified,therewasno modificationand upon annexation the laws in force in Queensland wereapplied in their entirety.

2. The annexation of the Murray Islands is not now questioned. It was an actof state by which the Crown in right of the Colonyof Queensland exertedsovereignty over the islands. Whatever the justification for the acquisitionof territory by this means (andthe sentiments of the nineteenth century by nomeans coincide with current thought), there can be no doubt that it was, andremains,legally effective.

3. The plaintiffs are Murray Islanders and members of the Meriam people.Each of them claims rights in specified parcels of landon the Murray Islands.The basis of their claims is, alternatively:

(a) their holding the land under traditional native title;

(b) their possessing usufructuary rights over the land; or

(c) their owning the land by way of customary title.

4. The plaintiffs also claim that the Crown, far from extinguishing theirrights, has recognized them. In this respect the plaintiffspoint to thereservation of the Murray Islands by the Crown for the use or benefit of theaboriginal inhabitants of the State. Theysay that the reservation of theseislands shows that they were not intended to be opened up for settlement or tobe the subject ofCrown grants which, they freely concede, would extinguishany traditional land rights.

5. The defendant argues that if the traditional land rights claimed by theplaintiffs ever existed, they were extinguished fromthe moment of annexation.It contends that those rights could not have survived the assertion ofsovereignty by the Crown unlessthey were recognized in some way. Thedefendant argues that not only were any traditional land rights over theMurray Islands notrecognized, but they were extinguished by the exercise of aclear governmental policy which existed at the time of annexation andhascontinued since then. The defendant does not contend that, if there aretraditional land rights that survived the assumptionof sovereignty, they havebeen subsequently extinguished.

6. One thing is clear - I do not understand it to have been contested by theplaintiffs - and that is that, upon annexation, theultimate title to thelands comprising the Murray Islands vested in the Crown. This was a necessaryconsequence of the exertion ofsovereignty by the Crown for, under the systemof law which the Crown brought with it, the ultimate title to land - sometimescalledthe absolute or radical title - resides in the Crown. The law that theCrown brought with it was the common law and, at common law,land is not thesubject of absolute ownership other than by the Crown(312) See Williams, "TheFundamental Principles of the PresentLaw of Ownership of Land", (1931) 75 TheSolicitors' Journal 843, at p 844; rather, it is the subject of tenure. Thatnotion mayfor most purposes be of historical rather than practical interest,for the fee simple which may be acquired under the Crown carrieswith it allthe advantages of absolute ownership. But it is fundamental in anyconsideration of the acquisition of territory suchas is required by thiscase. Thus it was that upon annexation of the Murray Islands the Crown becamethe absolute owner of the landand such rights as others might have in it mustbe derived from the Crown and amount to something less than absoluteownership. Thenotion that only the Crown has the radical title stems from thefeudal system of land tenure but, as Stephen J. pointed out in NewSouth Walesv. The Commonwealth(313)[1975] HCA 58; (1975) 135 CLR 337, at pp 438-439, it does not muchmatter whether it now beregarded in thatway or whether it be regarded as aprerogative right accompanying the exertion of sovereignty. The result is thesame: upon annexationthe lands annexed became theproperty of the Crown andany rights in the land that the plaintiffs have mustbe held under the Crown.

7. The main thrust of the plaintiffs' case is, however, that following theannexation of the Murray Islands no formal grant of aninterest in land to theMeriam people was necessary for their existing interests in the land tocontinue, notwithstanding that fromthe time of annexation they held theirinterests under the Crown. Further, the plaintiffs deny that the continuationof their rightswas dependent upon any positive act of recognition by theCrown, although they contend that, in any event, there have been acts ofrecognition by the Crown and, later, the Queensland legislature. Indeed, theplaintiffs argue that their rights are presumed to continueeven in theabsence of some positive act of recognition. In other words, the plaintiffsargue that if the continuation of the rightsof the Meriam people existing inthe land prior to annexation requires some form of recognition, thatrecognition need not be expressbut may be established by acquiescence.

8. There is ample authority for the proposition that the annexation of landdoes not bring to an end those rights which the Crownchooses, in the exerciseof its sovereignty, to recognize. This is so whether the assumption ofsovereignty is by way of conquest,cession or annexation, or by the occupationof territory that is not at the time held under another sovereign. The lawwas summarizedby the Privy Council in Vajesingji Joravarsingji v. Secretaryof State for India(314) (1924) LR 51 Ind App 357, at p 360:

"(W)hen a territory is acquired by a sovereign state for the

first time that is an act of state. It matters not how the

acquisition has been brought about. It may be by conquest,

it may be by cession following on treaty, it may be by

occupation of territory hitherto unoccupied by a recognized

ruler. In all cases the result is the same. Any inhabitant

of the territory can make good in the municipal Courts

established by the new sovereign only such rights as that

sovereign has, through his officers, recognized. Such

rights as he had under the rule of predecessors avail him

nothing."

"The moment that cession is admitted the appellants

necessarily become petitioners and have the onus cast on

them of showing the acts of acknowledgment, which give them

the right they wish to be declared. ...

The whole object accordingly of inquiry is to see

whether, after cession, the British Government has conferred

or acknowledged as existing the proprietary right which the

appellants claim."

9. In Secretary of State for India v. Bai Rajbai the Privy Council wasconcerned with the cession of territory previously undernative rule and saidof the members of the class of persons (the kasbatis) one of whom was therespondent's ancestor(316) (1915)LR 42 Ind App 229, at p 237:

"The relation in which they stood to their native sovereigns

before this cession, and the legal rights they enjoyed under

them, are, save in one respect, entirely irrelevant matters.

They could not carry in under the new regime the legal

rights, if any, which they might have enjoyed under the

old. The only legal enforceable rights they could have

as against their new sovereign were those, and only those,

which that new sovereign, by agreement expressed or implied,

or by legislation, chose to confer upon them. Of course

this implied agreement might be proved by circumstantial

evidence, such as the mode of dealing with them which the

new sovereign adopted, his recognition of their old rights,

and express or implied election to respect them and be bound

by them, and it is only for the purpose of determining

whether and to what extent the new sovereign has recognized

these ante-cession rights of the kasbatis, and has elected

or agreed to be bound by them, that the consideration of

the existence, nature, or extent of these rights becomes a

relevant subject for inquiry in this case."

10. And in Secretary of State for India v. Sardar Rustam Khan the PrivyCouncil again dealt with what was in effect a cession ofterritory by thepassing over of sovereignty to the Government of India. Lord Atkin,delivering the judgment of their Lordships,observed(317) (1941) AC 356, at p371:

"It follows, therefore, that in this case the Government

of India had the right to recognize or not recognize the

existing titles to land. In the case of the lands in suit

they decided not to recognize them, and it follows that the

plaintiffs have no recourse against the Government in the

municipal courts."

11. Amodu Tijani v. Secretary, Southern Nigeria(319) (1921) 2 AC 399 is acase in which the Crown did accord recognition to rightsexisting prior to theassumption of sovereignty by the Crown. In that case certain territory,comprising the colony of Lagos, wasceded by the Eleko (effectively the Kingof Lagos) to the British Crown and the issue to be determined was the basisfor the calculationof compensation for land which was taken for publicpurposes under the Public Lands Ordinance 1903 of the colony. The cessionitselfwas made on the footing that the rights of property of the inhabitantswere to be fully respected, although there was no doubt thatthe radical titleto the land vested in the British Crown at the time of cession(320) ibid., atp 407. These rights included theseigneurial rights of the "white cap chiefs"to receive rent or tribute from the occupiers of land allotted to them by thechiefs,the rights of the white cap chiefs to family lands held individuallyby them and the communal usufructuary right of the members ofthe nativecommunity to communal lands(321) ibid., at pp 410-411; in the Divisional andFull Courts below the white cap chiefs wereheld not to have absoluteownership of the communal lands but only to have a form of seigneurial rightin relation to them (AmoduTijani v. Secretary, Southern Provinces (1914-1922)III Nig LR 24). This arrangement of itself would have conferred no rightsuponthose inhabitants because the municipal courts cannot enforce obligationsunder a treaty against the sovereign, but it did affordsome evidence of therecognition of those rights by the new sovereign. There was, however, otherevidence of recognition of thoserights. For example, the native inhabitantswere assured that it was the settled intention of the British Government tosecure themin the possession of all their rights and privileges existing atthe time of the cession(322) ibid., at pp 406-407; see also AmoduTijani v.Secretary, Southern Provinces (1914-1922) III Nig LR, at p 29 (DivisionalCourt). Moreover, in so far as the white capchiefs' seigneurial rights wereconcerned, the lower courts noted that the British Government was apparentlyaware of their continuedexercise after cession and did not prevent this,although it sometimes disregarded these rights by, for example, granting thelandaway to others(323) Amodu Tijani v. Secretary, Southern Provinces(1914-1922) III Nig LR, at pp 29-30 (Divisional Court) and at p45 (FullCourt). Finally, the Privy Council considered that the system of Crown grantsapplying in the colony was not introducedwith a view to altering substantivetitles already existing but to define properly these substantive titles and tofacilitate a systemof conveyancing(324) Amodu Tijani v. Secretary, SouthernNigeria (1921) 2 AC, at pp 404, 407-408. In the course of its judgmenttheJudicial Committee of the Privy Council noted that the precise incidents andnature of the rights held by the native inhabitantsof the land (whetherindividually or communally) depended on the particular circumstances and that"(a)bstract principles fashioneda priori are of but little assistance, andare as often as not misleading"(325) ibid., at p 404. The Privy Council wenton to concludethat the radical title to the land, which was then in the Crownas a result of the cession, was "throughout qualified by the usufructuaryrights of communities, rights which, as the outcome of deliberate policy, havebeen respected and recognized"(326) ibid. In reachingthis conclusion, thePrivy Council noted that "(a) mere change in sovereignty is not to be presumedas meant to disturb rights ofprivate owners"(327) ibid., at p 407.

12. The Privy Council was again concerned with the cession of land to theBritish Crown in the former colony of Lagos in AdeyinkaOyekan v. MusendikuAdele(328) (1957) 1 WLR 876. Lord Denning, delivering the judgment of theJudicial Committee of the Privy Council,recognized(329) ibid., at p 880 thatthe treaty of cession was an act of state by which the British Crown acquiredfull rights ofsovereignty over Lagos. He continued:

"The effect of the Act of State is to give to the British

Crown sovereign power to make laws and to enforce them,

and therefore the power to recognize existing rights

or extinguish them or to create new ones. In order to

ascertain what rights pass to the Crown or are retained by

the inhabitants, the courts of law look, not to the treaty,

but to the conduct of the British Crown."

"The courts will assume that the British Crown intends that

the rights of property of the inhabitants are to be fully

respected".

"Whilst, therefore, the British Crown, as Sovereign, can

make laws enabling it compulsorily to acquire land for

public purposes, it will see that proper compensation is

awarded to every one of the inhabitants who has by native

law an interest in it: and the courts will declare the

inhabitants entitled to compensation according to their

interests, even though those interests are of a kind unknown

to English law".

13. In any event, whether or not there is any presumptive recognition ofnative interests in land upon a change in sovereignty maybe little more thana matter of emphasis upon which there is some variance in the cases. Once itis accepted, as I think it mustbe, that recognition of these interests by theCrown may be a matter of inference from all the facts, including mereacquiescence,it is obvious that if, following a change in sovereignty, thenew sovereign allows native occupation and use of the land to continueundisturbed, that may afford some foundation for the conclusion that suchnative interests (if any) in the land as may have existedprior to theassumption of sovereignty are recognized by the Crown. Of course, theseinterests need not correspond with title toland as known to the sovereignunder its own law(331) ibid., at pp 402-404 - for example, the interests byvirtue of which land wasoccupied by the natives of Lagos was held to becommunal(332) ibid., at pp 409-410 and this is not a form of title to landthat isknown to the British Crown under English law. On the other hand, ifnative interests in land are not recognized at all by the newsovereign, theywill be extinguished at the time sovereignty is assumed. But, in the end, thequestion whether any native interestsin the land have been extinguished by anassumption of sovereignty is a question of fact which can only be determinedby referenceto the surrounding circumstances.

14. There may be circumstances which render it impossible to draw anyinference of recognition of native interests in land evenwhere there is nointerference with the continued native occupation of land following a changein sovereignty. For example, in Inre Southern Rhodesia(333) (1919) AC 211 thePrivy Council considered lands in Southern Rhodesia over which the sovereignruler wasat one time a chief known as Lobengula. A charter had been issuedwhich incorporated the British South Africa Company for commercialpurposesand gave it wide administrative powers. After hostilities Lobengula fled andhis rule came to an end, and thus the company,in 1894, became the effectiveruler by conquest on behalf of the Crown. Amongst the powers exercised by thecompany was the powerto grant title to land in the name of the Crown. Uponthe question of the recognition of native title, Lord Sumner, delivering thejudgment of the Board, said(334) ibid., at pp 234-235:

"According to the argument the natives before 1893 were

owners of the whole of these vast regions in such a sense

that, without their permission or that of their King and

trustee, no traveller, still less a settler, could so

much as enter without committing a trespass. If so, the

maintenance of their rights was fatally inconsistent with

white settlement of the country, and yet white settlement

was the object of the whole forward movement, pioneered by

the Company and controlled by the Crown, and that object

was successfully accomplished, with the result that the

aboriginal system gave place to another prescribed by the

Order in Council.

This fact makes further inquiry into the nature of the

native rights unnecessary. If they were not in the nature

of private rights, they were at the disposal of the Crown

when Lobengula fled and his dominions were conquered; if

they were, any actual disposition of them by the Crown upon

a conquest, whether immediately in 1894 or four years later,

would suffice to extinguish them as manifesting an intention

expressly to exercise the right to do so. The Matabeleland

Order in Council of 1894 and the Southern Rhodesia Order in

Council of 1898 provided for native reserves, within which

the tribal life of the natives might be continued under

protection and control, and to the rest of the country the

Company's officers and white men were admitted independently

of any consent of the natives. The Company's alienations

by grant are unquestionably valid, yet the natives have no

share in them. The ownership of the reserves was, at least

administratively, vested in the Company under the Southern

Rhodesian Native Regulations promulgated by the High

Commissioner in 1898, and with the consent of the Crown

other dispositions of those reserves can be made by the

Company from time to time. By the will of the Crown and

in exercise of its rights the old state of things, whatever

its exact nature, as it was before 1893, has passed away

and another and, as their Lordships do not doubt, a better

has been established in lieu of it. Whoever now owns the

unalienated lands, the natives do not."

15. The recognition of native interests in land following the exercise ofsovereignty by the Crown is sometimes described as therecognition of thecontinued existence of those interests. The vesting of the radical title inthe Crown upon the assumption of sovereignauthority is, however, incompatiblewith the continued existence in precisely the same form of any pre-existingrights. Necessarilythe pre-existing rights were held of a former sovereign orin the absence of any sovereign at all. After the Crown has assumedsovereigntyand acquired the radical title to the land, any pre-existing"title" must be held, if it is held at all, under the Crown. This newtitleis therefore not merely the continuation of a title previously held,notwithstanding that it may be identifiable by referenceto the previoustitle. If the new title is to be held under the Crown, the Crown mustobviously accept it. Such acceptance maybe by way of acquiescence in thecontinued occupancy of land by the aboriginal inhabitants and, if the nativeinterests are acceptedin this manner by the Crown, the nature of thoseinterests can then only be determined by reference to the nature of the formeroccupancyby the aboriginal inhabitants. The appearance (although not thefact as a matter of law) is, then, that these native interests continueundisturbed. In this sense it may be true to say that positive recognition ofnative interests by the Crown is unnecessary for theircontinued existence andthat what appear to be different views upon the subject are, on analysis,fundamentally the same.

16. In my view this explains the conclusion of Hall J. (Spence and Laskin JJ.agreeing) in Calder v. Attorney-General of BritishColumbia that traditionalnative title is not dependent upon a grant to or recognition of rights in thenative inhabitants(336) (1973)34 DLR (3d) 145, at p 218 because such title isnot dependent upon a treaty, statute or other formal government action(337)ibid.,at p 200; see also United States v. Santa Fe Pacific Railroad Co.[1942] USSC 12; (1941) 314 US 339, at p 347; Narragansett Tribe v. Southern RhodeIsland LandDevelopment Corp (1976) 418 F Supp 798, at p 807;Hamlet of Baker Lake v.Minister of Indian Affairs (1979) 107 DLR (3d)513, at p 541; Delgamuukw v.British Columbia (1991) 79 DLR(4th) 185, at p 286; Guerin v. The Queen(1984)13 DLR (4th) 321, atp 336. But if what Hall J. meant was that traditionalnative title somehow survived the exertion of sovereignty by the Crownindependentlyof any recognition of it by the Crown (accepting that mereacquiescence might, depending upon the circumstances, providethe necessaryrecognition), I am unable to agree.

17. What I have said is not inconsistent with the well-established principlethat the municipal courts have no jurisdiction to entertaina challenge to anact of state and, in particular, that obligations assumed by one sovereign toanother, as in a treaty, cannot beenforced by municipal courts(338) SeeSecretary of State for India v. Kamachee Boye Sahaba (1859) 13 Moo 22, at pp75, 86 (15 ER9, at pp 28-29, 32-33); Doss v. Secretary of State for India inCouncil (1875) LR 19 Eq. 509, at pp 534, 535; Cook v. Sprigg (1899)AC, at pp578-579; Vajesingji Joravarsingji v. Secretary of State for India (1924) LR 51Ind.App, at p 360; Hoani Te Heuheu Tukinov. Aotea District Maori Land Board(1941) AC 308, at pp 324-325; Secretary of State for India v. Sadar RustamKhan (1941) AC, atpp 369-372. Recent authority for this proposition is to befound in Winfat Enterprise (HK) Co. Ltd. v. Attorney-General of HongKong(339)(1985) AC 733. In that case, the Privy Council was concerned with the cessionof the New Territories in Hong Kong to theBritish Crown. The PekingConvention, by which the cession was made, expressed an understanding thatthere would be no expropriationor expulsion of the inhabitants of the NewTerritories but that if land were required for public purposes a fair pricewould be paid.

18. Lord Diplock delivered the judgment of the Judicial Committee of thePrivy Council and, if I may say so with respect, accuratelyreflected theauthorities when he observed of a claim by the appellant land developers to atitle which survived the cession(340)ibid., at p 746:

"The elementary fallacy of British constitutional law

which vitiates the land developers' claim is the contention

that this vaguely expressed understanding, stated in the

Peking Convention, that there shall not be expropriation or

expulsion, is capable of giving rise to rights enforceable

in the municipal courts of Hong Kong or by this Board acting

in its judicial capacity. Although there are certain obiter

dicta to be found in cases which suggest the propriety of

the British Government giving effect as an act of state to

promises of continued recognition of existing private titles

of inhabitants of territory obtained by cession, there is

clear long-standing authority by decision of this Board

that no municipal court has authority to enforce such an

obligation."

19. As I have said, the plaintiffs base their claim upon traditional nativetitle, usufructuary rights and customary ownership. It would seem that theyseek to draw a distinction between all three and, in particular, betweentraditional native, or aboriginal,title and usufructuary rights. Since themain thrust of the plaintiffs' case was directed towards establishing theexistence oftraditional native title, it is that aspect of the case to whichI turn first.

20. Although the earliest cases upon this subject were decided in the UnitedStates, it is convenient to deal initially with theCanadian authorities.This is because the historical context in which the United States cases aroseand the policy which they reflectdo not find any real counterpart elsewhere.That policy involved dealing with a largely hostile native population in thecourse ofEuropean settlement and concluding various treaties with the nativesthat afforded them a particular status which, to a large extent,forms thebasis of the law laid down in the cases. On the other hand, in Canada, whilstthere are unique features, the Privy Councilwas the final court of appeal andthere is thus a common origin for the law upon the subject of aboriginal title(or Indian titleas it is often called) in both Canada and Australia.

21. St. Catherine's Milling and Lumber Company v. The Queen(341) (1888) 14App Cas 46 was a case which concerned, amongst otherthings, the nature of thetenure of the aboriginal inhabitants - the Indians - of land in Ontario. LordWatson, who gave judgmentfor the Privy Council, decided the case upon thebasis that Indian title stemmed from a royal proclamation of 1763 thatextendedto the land in question. That proclamation recited that it was justand reasonable that the several nations and tribes of Indianswho lived underBritish protection should not be molested or disturbed in the "possession ofsuch parts of Our dominions and territoriesas, not having been ceded to orpurchased by us, are reserved to them or any of them as their hunting grounds"and declared thatno warrants of survey should be granted or patents be passedfor lands beyond the bounds of the respective governments of the coloniesestablished under the proclamation or "until Our further pleasure be known",such lands, not having been ceded or purchased as aforesaid,being reserved tothe Indians. It was further declared that, subject to an exception in favourof the Hudson's Bay Company, landoutside the bounds of such governments wasreserved "under Our sovereignty, protection, and dominion, for the use of thesaid Indians".Finally, the proclamation enacted that no private person shouldmake any purchase from the Indians of lands reserved to them withinthosecolonies where settlement was permitted, and that all purchases had to be onbehalf of the Crown, in a public assembly of theIndians, by the governor orcommander-in-chief of the colony in which the lands lay.

22. Lord Watson said(342) ibid., at pp 54-55:

"It was suggested in the course of the argument for the

Dominion, that inasmuch as the proclamation recites that the

territories thereby reserved for Indians had never 'been

ceded to or purchased by' the Crown, the entire property of

the land remained with them. That inference is, however, at

variance with the terms of the instrument, which shew that

the tenure of the Indians was a personal and usufructuary

right, dependent upon the good will of the Sovereign. The

lands reserved are expressly stated to be 'parts of Our

dominions and territories;' and it is declared to be the

will and pleasure of the sovereign that, 'for the present,'

they shall be reserved for the use of the Indians, as their

hunting grounds, under his protection and dominion. There

was a great deal of learned discussion at the Bar with

respect to the precise quality of the Indian right, but

their Lordships do not consider it necessary to express any

opinion upon the point. It appears to them to be sufficient

for the purposes of this case that there has been all

along vested in the Crown a substantial and paramount

estate, underlying the Indian title, which became a plenum

dominium whenever that title was surrendered or otherwise

extinguished."

23. Although Lord Watson chose to base the interest of the Indians in theland entirely upon the proclamation, that was not theonly source of theirtitle or, at all events, it has not subsequently been treated as being so.Instead, a title of the same kindhas been held to arise independently of theproclamation so that both Indians who are not covered by the proclamation andthose whoare covered have been held to have the same kind of title overland(343) See Calder v. Attorney-General of British Columbia (1973)34 DLR(3d), at pp 156, 200; Hamlet of Baker Lake v. Minister of Indian Affairs(1979) 107 DLR (3d), at p 541; Delgamuukw v. BritishColumbia (1991) 79 DLR(4th), at p 286.

24. The question upon which the Privy Council refrained from expressing anopinion - the nature of Indian title - has never beengiven a precise answer.Lord Watson did, however, suggest that Indian title was a kind of "personaland usufructuary right". A personaland usufructuary right is a righttemporarily to possess, use or enjoy the advantages of land belonging toanother so far as maybe had without causing damage or prejudice to it. InDelgamuukw v. British Columbia(344) (1991) 79 DLR (4th) 185, at p 458; seealso Attorney-General for Ontario v. Bear Island Foundation (1984) 15 DLR(4th) 321, at p 360, for example, McEachern C.J. describedIndian title forthe purposes of that case as including "all those sustenance practices and thegathering of all those products ofthe land and waters ... which (the Indians)practised and used before exposure to European civilization (or sovereignty)for subsistenceor survival".

25. Whilst attempts have subsequently been made to classify the rightsarising from Indian title as proprietary rights(345) SeeGuerin v. The Queen(1982) 143 DLR (3d) 416, at p 462 (Federal Court of Appeal); but cf. Calder v.Attorney-General of British Columbia(1973) 34 DLR (3d), at p 167; Hamlet ofBaker Lake v. Minister of Indian Affairs (1979) 107 DLR (3d), at p 558;Delgamuukw v. BritishColumbia (1991) 79 DLR (4th), at pp 415-416 which heldto the contrary, such a notion is contrary to the observation of Lord Watsonthat the tenure of the Indians was "dependent upon the good will of theSovereign" or his later observation(346) (1888) 14 App Cas.,at p 58 that thecharacter of the interest of the Indian inhabitants in the land was less thanthat of owners in fee simple and wasa "mere burden" upon the Crown's presentproprietary estate. However, it may be that in truth aboriginal title isneither a personalnor a proprietary right but is sui generis. This was theview of Dickson J. (with whom Beetz, Chouinard and Lamer JJ. concurred)inGuerin v. The Queen where he said(347)(1984) 13 DLR (4th) 321, at p 339:

"It appears to me that there is no real conflict between

the cases which characterize Indian title as a beneficial

interest of some sort, and those which characterize it a

personal, usufructuary right. Any apparent inconsistency

derives from the fact that in describing what constitutes

a unique interest in land the courts have almost inevitably

found themselves applying a somewhat inappropriate

terminology drawn from general property law. There is a

core of truth in the way that each of the two lines of

authority has described native title, but an appearance of

conflict has none the less arisen because in neither case is

the categorization quite accurate.

Indians have a legal right to occupy and possess certain

lands, the ultimate title to which is in the Crown. While

their interest does not, strictly speaking, amount to

beneficial ownership, neither is its nature completely

exhausted by the concept of a personal right. It is true

that the sui generis interest which the Indians have in the

land is personal in the sense that it cannot be transferred

to a grantee, but it is also true, as will presently appear,

that the interest gives rise upon surrender to a distinctive

fiduciary obligation on the part of the Crown to deal with

the land for the benefit of the surrendering Indians."

26. However, it is the question not of whether, but of how, Indian title canbe extinguished that has given rise to greater dispute.In Calder v.Attorney-General of British Columbia an action was brought on behalf of theNishga Indian tribe seeking a declarationthat their Indian title to certainlands in British Columbia had never been lawfully extinguished. Apart fromPigeon J., who heldthat the Court had no jurisdiction without the fiat of theLieutenant-Governor of the Province, the remaining members of the courtwereequally divided: Judson, Martland and Ritchie JJ. held that whatever rightsthe aboriginal inhabitants had had in the land,they were extinguished by theexercise of sovereign powers, whereas Hall, Spence and Laskin JJ. held to thecontrary. Judson, Martlandand Ritchie JJ. also agreed with Pigeon J., sothat the plaintiff's appeal was dismissed. Judson J. (with whom Martland andRitchieJJ. concurred) held that "the sovereign authority elected to exercisecomplete dominion over the lands in question, adverse to anyright ofoccupancy which the Nishga Tribe might have had, when, by legislation, itopened up such lands for settlement, subject tothe reserves of land set asidefor Indian occupation"(348) (1973) 34 DLR (3d), at p 167. This legislation,which consisted of a seriesof proclamations, ordinances and statutes,comprehensively regulated the method of alienation and possession of therelevant lands.

27. Conversely, Hall J. (with whom Spence and Laskin JJ. concurred) held thatthe Indian title of the Nishga tribe, being a legalright, could not beextinguished "except by surrender to the Crown or by competent legislativeauthority, and then only by specificlegislation"(349) ibid., at p 208. Hefurther held that once Indian title is established it is presumed to continueuntil the contraryis proved(350) ibid. The consequence was, in his view,that as there was no specific legislation and no surrender, the title oftheNishga tribe had not been extinguished.

28. However, in Reg. v. Sparrow(351) (1990) 70 DLR (4th) 385, a case whichdealt with the issue of whether an aboriginal right tofish for food had beenextinguished, the Supreme Court of Canada failed to endorse the requirement,suggested by Hall J. in Calder,that specific legislation was necessary toextinguish Indian title. In a judgment delivered by Dickson C.J.C. and LaForest J. itmerely said(352) ibid., at p 401:

"The test of extinguishment to be adopted, in our opinion,

is that the Sovereign's intention must be clear and plain if

it is to extinguish an aboriginal right."

29. It is now possible to turn briefly to several United States authorities.As I have explained, the course of history in thatcountry finds no realparallel elsewhere and the law in its detailed application is of limitedassistance in a case such as the presentone. That is because the Indiantribes were regarded as "domestic dependent nations" who retained a certaindegree of sovereigntyand thus had a very special relationship with the UnitedStates government(355) See, for example, Cherokee Nation v. Georgia[1831] USSC 6; (1831)30US 1, at p 12; Worcester v. Georgia (1832) 31 US 350, at p 376; United Statesv. Kagama[1886] USSC 194; (1886) 118 US 375, at pp 383-384; SeminoleNation v. United States[1942] USSC 105; (1942) 316 US 286, at pp 296-297; United States v. Mitchell[1983] USSC 154; (1983) 463 US 206,at p 225.

30. Nevertheless, the notion of native or Indian title owes much to thecelebrated judgment of Marshall C.J. in the case of Johnsonv. McIntosh(356)(1823) 21 US 240. It is unnecessary to refer to the detailed facts of thecase. As Marshall C.J. pointed out(357)ibid., at p 253, the inquiry was ingreat measure "confined to the power of Indians to give, and of privateindividuals to receive,a title, which can be sustained in the courts of thiscountry". He then described the discovery of the American continent and therelations which were to exist between the discoverers and the natives. Onthis aspect, Marshall C.J. said(358) ibid., at pp 253-254:

"In the establishment of these relations, the rights of

the original inhabitants were, in no instance, entirely

disregarded; but were, necessarily, to a considerable

extent, impaired. They were admitted to be the rightful

occupants of the soil, with a legal as well as just claim

to retain possession of it, and to use it according to their

own discretion; but their rights to complete sovereignty,

as independent nations, were necessarily diminished, and

their power to dispose of the soil, at their own will,

to whomsoever they pleased, was denied by the original

fundamental principle, that discovery gave exclusive title

to those who made it. While the different nations of Europe

respected the right of the natives, as occupants, they

asserted the ultimate dominion to be in themselves; and

claimed and exercised, as a consequence of this ultimate

dominion, a power to grant the soil, while yet in possession

of the natives. These grants have been understood by

all, to convey a title to the grantees, subject only to the

Indian right of occupancy."

31. The nature and extent of Indian title in the United States is amplydescribed in Tee-Hit-Ton Indians v. United States(359)[1955] USSC 24; (1955)348 US 272. Inthat case a claim was made under the Fifth Amendment of the United StatesConstitution for compensation for the taking of timber by the United Statesfrom lands in Alaska over which the Tee-Hit-Ton Indians claimed Indiantitle.The Supreme Court held that the claimants' Indian title amounted to apermissive occupancy which could be extinguished bythe government withoutcompensation. Reed J., delivering the judgment of the Court, said(360) ibid.,at p 279:

"It is well settled that in all the States of the Union the

tribes who inhabited the lands of the States held claim to

such lands after the coming of the white man, under what

is sometimes termed original Indian title or permission

from the whites to occupy. That description means mere

possession not specifically recognized as ownership by

Congress. After conquest they were permitted to occupy

portions of territory over which they had previously

exercised 'sovereignty,' as we use that term. This is not

a property right but amounts to a right of occupancy which

the sovereign grants and protects against intrusion by third

parties but which right of occupancy may be terminated

and such lands fully disposed of by the sovereign itself

without any legally enforceable obligation to compensate the

Indians."

32. So, not unlike the position in Canada, Indian title in the United States(in the absence of recognition by Congress throughtreaty or legislation sothat it becomes property within the meaning of the Fifth Amendment) is a rightof occupancy which can beterminated by Congress at will(361) See OneidaIndian Nation v. County of Oneida[1974] USSC 15; (1974) 414 US 661, at p 667; Lipan ApacheTribev. United States (1967) 180 Ct Cl 487, at p 492; United States v. SantaFe PacificRailroad Co. (1941) 314 US, at p 347; Johnsonv. McIntosh (1823) 21US, at pp 258, 259; United States v. Tillamooks[1946] USSC 126; (1946) 329 US 40, at p 46;United States v. Atlantic RichfieldCo. (1977) 435 F Supp 1009, at p 1031;Narragansett Tribe v. SouthernRhode Island Land Development Corp (1976) 418 FSupp, at p807; Gila River Pima-Maricopa Indian Community v. United States(1974)494 F 2d 1386, at p 1389 The actual title to the land liesin theUnited States(362) Johnson v. McIntosh (1823) 21 US, at p 253;Oneida IndianNation v. County of Oneida (1974) 414 US, atp 667; United States v.Tillamooks (1946) 329 US, at p 46. However, Indiantitle will only beextinguished where Congress' intentionto effect such extinguishment is "clearand plain"(363) Lipan Apache Tribev. United States (1967) 180 Ct Cl, at p492.

33. In New Zealand the course of the law has been affected by the statutoryimplementation of the Treaty of Waitangi. This treatyguaranteed to thenative inhabitants of New Zealand "the full, exclusive, and undisturbedpossession of their Lands and Estates,Forests, Fisheries, and otherproperties which they may collectively or individually possess, so long as itis their wish and desireto retain the same in their possession"(364) Art.2 asquoted in Nireaha Tamaki v. Baker (1901) AC 561, at pp 566-567. The sole andabsolute right of pre-emption from the aboriginal inhabitants was vested inthe Crown: Land Claims Ordinance 1841 (N.Z.). For thatreason New Zealandauthority is, for the most part, not directly relevant, but the basicprinciple that, upon the assumption of sovereignty,the radical title to landsin New Zealand vested in the Crown giving it the right - apart from the treaty- to extinguish nativetitle, has not been doubted(365) See Reg. v. Symonds(1847) NZPCC 387, at pp 388-389 and 393-394. The position was summarized byNorth J. in In re the Ninety-Mile Beach(366) (1963) NZLR 461, at p 468:

"There is no doubt that it is a fundamental maxim of

our laws that the Queen was the original proprietor of all

lands in the Kingdom and consequently the only legal source

of private title, and that this principle has been imported

with the mass of the common law into New Zealand; that it

'pervades and animates the whole of our jurisdiction in

respect to the tenure of land.' ... (I)n my opinion it

necessarily follows that on the assumption of British

sovereignty - apart from the Treaty of Waitangi - the rights

of the Maoris to their tribal lands depended wholly on the

grace and favour of Her Majesty Queen Victoria, who had

an absolute right to disregard the Native title to any

lands in New Zealand, whether above high-water mark or below

high-water mark. But as we all know, the Crown did not

act in a harsh way and from earliest times was careful to

ensure the protection of Native interests and to fulfil the

promises contained in the Treaty of Waitangi."

34. I have been able to deal with the authorities, other than the Australianauthorities, in a somewhat selective way. A full andscholarly examination isto be found in the judgment of Blackburn J. in Milirrpum v. Nabalco Pty.Ltd.(367) (1971) 17 FLR 141. But I have been able to do so because, at leastso far as the plaintiffs' claim to traditional native title is concerned, thiscaseturns upon the application of accepted principles rather than upon theascertainment of the principles themselves. It is obviouslya convenientcourse, which has been adopted in other cases, to assume that traditionalnative title or aboriginal title existed inthe Murray Islands prior toannexation and to see whether it has been extinguished. That is essentially aquestion of historicalfact to which I shall now turn. The plaintiffs, againstthe weight of overseas authority to which I have referred, maintain thataboriginal title may be extinguished only by express legislation. However,this is to confuse the prerogative of the Crown withthe power of thelegislature. No doubt aboriginal title - or any other title for that matter -may be extinguished by legislation,but that is because of the power of thelegislature, not because of the nature of the title of the Crown. Aboriginaltitle (andit is in this context that the word "title" is misleading) is anoccupancy which the Crown, as absolute owner, permits to continue.Thepermission may be withdrawn. The extinction of aboriginal title does not,therefore, require specific legislation. No doubtthe intention of the Crownmust be plain, but there is no reason in principle or logic why it should notbe inferred from the coursetaken by the Crown in the exercise of its powers,whether in administering statute law or otherwise.

35. The genesis of the law which applies in the Murray Islands is to be foundin the Colony of New South Wales, of which Queenslandoriginally formed apart. The law of New South Wales included the common law. If there ever hadbeen any doubt about that, it wassettled by s.24 of the Australian Courts Act1828 (Imp) (9 GEO IV c.83) which provided that all the laws and statutes inforce withinthe realm of England at the time of the passing of that Actshould be applied in the Colony of New South Wales so far as they couldbeapplied. The Colony of Queensland inherited the laws of the Colony of NewSouth Wales upon its separation from New South Walesin 1859. To use the wordsof the Letters Patent of 6 June 1859 that erected Queensland into a separatecolony, the Governor of thenew colony was commanded to govern "according tosuch laws and ordinances as are now in force in our said colony of New SouthWalesand its dependencies and as shall hereafter be in force in our saidColony of Queensland". It was the law of Queensland which wasintroduced uponthe annexation of the Murray Islands. It was introduced expressly and thepower of the new sovereign, the Crown inright of the Colony of Queensland, tointroduce that law cannot be questioned. There is no need to classify theMurray Islands asconquered, ceded or settled territory. Thoseclassifications have been used to determine the question of what law, if any,is introducedto acquired territory, but they are irrelevant where the lawwhich is introduced is expressly declared by the new sovereign(368)See Cooperv. Stuart (1889) 14 App Cas 286, at p 291. There is thus no need to resort tonotions of terra nullius in relation tothe Murray Islands. The law whichapplied upon annexation was the law of Queensland and, as I understand theplaintiffs' submissions,there is no issue about that in this case.

36. Upon any account, the policy which was implemented and the laws whichwere passed in New South Wales make it plain that, fromthe inception of thecolony, the Crown treated all land in the colony as unoccupied and afforded norecognition to any form of nativeinterest in the land. It simply treated theland as its own to dispose of without regard to such interests as the nativesmighthave had prior to the assumption of sovereignty. What was done was quiteinconsistent with any recognition, by acquiescence or otherwise,of nativetitle. Indeed, it is apparent that those in authority at the time did notconsider that any recognizable form of nativetitle existed.

37. Thus it was that successive Governors of the Colony of New South Waleswere given power to grant land without reference to anyclaim or consent bythe aboriginal inhabitants. The power of the earlier Governors (from GovernorPhillip to Governor Brisbane)to grant land extended to the whole of thecolony which at that time (so far as the mainland was concerned) extended fromCape Yorkin the north, in the latitude of 10 degrees 37' south, to South Capein the south, in the latitude of 43 degrees 49' south, and toall countryinland to the west as far as the 135th degree of east longitude.

38. The instructions to these earlier Governors, which accompanied theirCommissions, merely required the Governors to extend theirintercourse withthe natives, to conciliate their affections, and to enjoin the Sovereign'ssubjects to live in kindness and amitywith them(369) Governor Hunter'sInstructions dated 23 June 1794 (Historical Records of Australia ("HRA"),(1914), Series I, vol.1,p 520, at p 522); see also Governor Phillip'sInstructions dated 25 April 1787 (HRA, (1914), i.1.9, at pp 13-14); GovernorKing'sInstructions dated 23 February 1802 (HRA, (1915), i.3.391, at p 393);Governor Bligh's Instructions dated 25 May 1805 (HRA, (1916),i.6.8, at p 10);Governor Macquarie's Instructions dated 9 May 1809 (HRA, (1916), i.7.190, at p192); Governor Brisbane's Instructionsdated 5 February 1821 (HRA, (1917),i.10.596, at p 598). The generality of these instructions, which made noreference at all toany interest of the aboriginal inhabitants in the land,may be contrasted with the considerable and minute detail in the instructionsas to the way in which the Governors' power to grant land was to beexercised(370) See, for example, Governor Phillip's Instructionsdated 25April 1787 (HRA, (1914), i.1.9, at pp 14-15); Governor Phillip's Instructionsre Land Grants enclosed in Despatch No.3 Grenvilleto Phillip dated 22 August1789 (H.R.A, (1914), i.1.124-128); Governor Hunter's Instructions dated 23June 1794 (HRA, (1914), i.1.520,at pp 523-526); Governor King's Instructionsdated 23 February 1802 (HRA, (1915), i.3.391, at pp 394-396); Governor Bligh'sInstructionsdated 25 May 1805 (HRA, (1916), i.6.8, at pp 11-14); GovernorMacquarie's Instructions dated 9 May 1809 (HRA, (1916), i.7.190, atpp193-196); Governor Brisbane's Instructions dated 5 February 1821 (HRA, (1917),i.10.596, at pp 598-601).

39. Some efforts were, however, made for the welfare of the aboriginalinhabitants by setting aside land for their use and benefit. For example,Governor Macquarie assigned 10,000 acres of land for the "permanent Benefit"of certain natives for the purposes ofestablishing a reserve on which thosenatives could be educated and "civilized", and encouraged to cultivate theland(371) DespatchNo.10 Macquarie to Earl Bathurst dated 24 February 1820(HRA, (1917), i.10.262). Governor Macquarie also indicated anddemonstratedhis willingness to grant small areas of land to individualaboriginal inhabitants(372) See Despatch No.15 Macquarie to Earl Bathurstdated 8 October 1814 (HRA, (1916), i.8.367, at p 369); Despatch No.4 Macquarieto Earl Bathurst dated 24 March 1815 (HRA, (1916),i.8.461, at p 467);Despatch from Macquarie to Earl Bathurst dated 27 July 1822 (HRA, (1917),i.10.671, at pp 677-678); HRA, (1916),i.8. note 86; HRA, (1917), i.10 note64; Proclamation dated 4 May 1816 enclosed in Despatch No.10 Macquarie to EarlBathurst dated8 June 1816 (HRA, (1917), i.9.141). Likewise, Governor Brisbanereserved 10,000 acres of land "for the use of the Aborigines" andappointedcertain officers as trustees of the land upon which the London MissionarySociety was to establish a mission. The trusteeswere empowered to removeintruders or trespassers and "to convey, for terms of years, or in tail, or infee simple" an amount notexceeding 30 acres to any Aborigine on conditionthat the land not be sold, let or given to any white person(373) DespatchNo.33Brisbane to Earl Bathurst dated 8 February 1825 (HRA, (1917), i.11.512,at pp 512-513). The land was to revert to the Crown ifthe projectfailed(374) Despatch No.1 Earl Bathurst to Darling dated 10 January 1827 (HRA,(1920), i.13.14, at p 15). Examplesmight be multiplied but it issufficient to observe that none of the measures taken for the welfare of theaboriginal inhabitantsinvolved the acceptance of any native rights over theland. On the contrary, in so far as the measures involved the provision ofland, they were undertaken in the exercise of the relevant Governor'sdiscretion under the power conferred upon him by his Commissionand the landso provided was not necessarily that which the aboriginal inhabitants settledon it had traditionally occupied.

40. As settlement expanded under successive Governors of New South Wales,conflict between the colonists and the aboriginal inhabitantsintensified.There was correspondingly more pressure to attend to the welfare of theaboriginal inhabitants(375) See, e.g. the reportof a Select Committee of theHouse of Commons on Aborigines 1836 (538), vol.VII, p 1. Most of the measuresthat were taken did not,however, relate to land. For instance, instructionswere issued by Lord Glenelg for the appointment of Protectors of Aborigineswho were, amongst other things, to watch over the rights and interests of thenatives within their jurisdiction, to represent theirwants, wishes orgrievances to the colonial government and to attempt to settle them down andto educate and "civilize" them(376)Despatch No.72 Lord Glenelg to Gipps dated31 January 1838 (HRA, (1923), i.19.252). However, outrages committed onthe nativeinhabitants did not cease and were the subject of concern. WhenLord Russell succeeded Lord Glenelg in the colonial office, he reiteratedthesolicitude of the Imperial government for the Aborigines, saying that "it isimpossible that the Government should forget thatthe original aggression wasour own, and that we have never yet performed the sacred duty of making anysystematic or considerableattempt to impart to the former occupiers of NewSouth Wales the blessings of Christianity, or the knowledge of the Arts andadvantagesof civilised life"(377) Despatch No.62 Lord Russell to Gipps dated21 December 1839 (HRA, (1924), i.20.439, at p 440). But stillnothing wassaid which could be construed in any way as a recognition or acceptance by theCrown of any native rights in the land.

41. Alternatively, to the extent that measures were taken which related toland, they were too late to produce any fundamental changein the character ofthe occupation of the land following the assumption of sovereignty. Forexample, in 1848 Earl Grey stated ina despatch to Governor Fitz Roy(378)Despatch No.24 Earl Grey to Fitz Roy dated 11 February 1848 (HRA, (1925),i.26.223, at p 225):

"I think it essential that it should be generally understood

that leases granted for (the purpose of pastoral occupation)

give the grantees only an exclusive right of pasturage for

their cattle, and of cultivating such Land as they may

require within the large limits thus assigned to them; but

that these Leases are not intended to deprive the natives

of their former right to hunt over these Districts, or to

wander over them in search of subsistence, in the manner

to which they have been heretofore accustomed, from the

spontaneous produce of the soil, except over land actually

cultivated or fenced in for that purpose."

42. Therefore, the policy of the Imperial Government during this period isclear: whilst the aboriginal inhabitants were not tobe ill-treated,settlement was not to be impeded by any claim which those inhabitants mightseek to exert over the land. Settlementexpanded rapidly and the selection andoccupation of the land by the settlers were regulated by the Governors in away that was intendedto be comprehensive and complete and was simplyinconsistent with the existence of any native interests in the land.

43. Initially settlers were permitted to occupy land only where that land hadbeen granted or leased to them by, or on the authorityof, the Governor and sothe earlier Governors were able to control the settlement of the colony. As Ihave said, such settlementwas regulated in considerable detail by theinstructions given to these earlier Governors. However, as settlementexpanded, thequantity of land surveyed was insufficient to meet the demand,and so settlers were permitted by Governors Macquarie and Brisbaneto occupyland without a grant or lease, such occupation being terminable at the will ofthe Crown(383) Perry, Australia's FirstFrontier, (1963), pp 33-34, 44. TheGovernors after Governor Brisbane were empowered by their Commissions, withthe advice and consentof the Executive Council, to divide the whole of thecolony "into Districts, Counties, Hundreds, Towns, Townships andParishes"(384)See, for example, Governor Darling's Commission dated 16 July1825 (HRA, (1919), i.12.99, at p 103); Governor Bourke's Commissiondated 25June 1831 (HRA, (1923), i.16.837, at p 841) and Governor Gipps' Commissiondated 5 October 1837 (HRA, (1923), i.19.295,at p 299). The disposal (bysale or grant without purchase) of the waste lands within these divisions, theterms and mode ofsuch disposal, the purchase price (in the case of sale) andthe quit rent (in the case of grant without purchase) were exhaustivelyandcomprehensively specified in the instructions issued to the Governors fromtime to time(385) See, for example, Governor Darling'sInstructions dated 17July 1825 (HRA, (1919), i.12.107, at pp 113-124) and "the Ripon Regulations"(see Roberts, History of AustralianLand Settlement: (1788-1920), (1924), p95, fn.9).

44. Under Governor Darling the settlers were only permitted to select landwithin certain prescribed limits(386) First specifiedby Government Orderdated 5 September 1826 and then expanded by Government Order dated 14 October1829, which came to be known asthe "Limits of Location" and, as of 14 October1829, consisted of nineteen counties which essentially comprised the area thatistoday known as the State of New South Wales. Land outside these limits(such as that comprising today's States of Victoria and Queensland)wasconsidered and treated by the Crown as waste lands just as was unalienatedland within these limits. When it became clear thatthe government could notprevent squatters from grazing their stock outside the Limits of Location, thegovernment acted to regulatetheir occupation and to assert the rights of theCrown over that land. The government treated these squatters as unauthorizedoccupantsof unalienated Crown land and permitted the land to be occupied onlyunder a licence. For the purposes of regulating the use andoccupation ofland beyond the Limits of Location, the government divided this land intodistricts, each of which had a Commissionerand a Border Police Force(387) See4 Wm IV No.10 (amended by 5 Wm IV No.12); 7 Wm IV No.4; 2 Vict No.19; 2 VictNo.27; 5 Vict No.1.

45. Subsequently the Sale of Waste Land Act 1842 (Imp) (5 and 6 Vict c.36)was passed. This Act made comprehensive provision forthe terms on which theGovernor was to exercise his power to alienate the waste lands of the Crownand it was followed by the Saleof Waste Land Act 1846 (Imp) (9 and 10 Victc.104), which was to similar effect. Both of these Acts were clearly based onthe premisethat the waste lands were owned by the Crown. Squatting wasfurther regulated by an Order in Council dated 9 March 1847 which dividedallland in the Colony of New South Wales into three classes (settled land,intermediate land and unsettled land) and specified theterms on whichpastoral leases in those classes would be granted by the Crown. The classdesignated "unsettled land" comprised landwhich was unsuitable for farmingpurposes but might be the subject of squatting. Most of the land in what wasto become Queenslandwas unsettled land.

46. The fact that the Crown regarded unalienated waste land as entirely itsown to deal with as it pleased is further exemplifiedby its refusal torecognize a "treaty" whereby John Batman purported to acquire 500,000 acresknown as "Dutigalla" and 100,000 acresknown as "Geelong" from certainnatives. Given the policy of the Crown which I have described, the refusalemphasized that the Crownconsidered itself to be the owner of the land,unencumbered by any form of native title.

47. It is unnecessary to trace in detail the history of land settlement inQueensland. It is sufficient to say that squatters hadreached the fringe ofwhat is now Queensland in 1836 and expanded throughout Queensland by the early1860s(388) See generally Roberts,op cit, pp 53-58, 155-165, 202; Roberts, TheSquatting Age in Australia: 1835-1847, (1935), pp 169-177, 208-214. Thepattern ofconflict between the settlers and the aboriginal inhabitants whichwas manifest in early New South Wales was repeated. But againno basis wasafforded for saying that native rights in the land were recognized oraccepted. There is nothing to indicate that anychange occurred in the way inwhich the Crown dealt with the land. That is to say, land was dealt with uponthe basis that, wherenot retained or reserved for public purposes, it wasavailable for settlement without regard to any claim on the part of theaboriginalinhabitants. Certainly the comprehensive system of land regulationthat was adopted by the Colony of Queensland(389) See, for example,Alienationof Crown Lands Act 1860 (Q.), Unoccupied Crown Lands Occupation Act 1860 (Q.),Tenders for Crown Lands Act 1860 (Q.),Occupied Crown Lands Leasing Act 1860(Q.), Unoccupied Crown Lands Act 1860 (Q.), Pastoral Leases Act 1863 (Q.),Crown Lands AlienationAct 1868 (Q.), the Homestead Acts, Crown Lands Act 1884(Q.), Land Act 1910 (Q.) made no mention of native rights. Indeed, so farasthe native inhabitants were concerned, the first Governor of the Colony ofQueensland, Sir George Bowen, was merely required to"promote religion andeducation among the native inhabitants", "to protect them in their persons andin the free enjoyment of theirpossessions", "by all lawful means (to) preventand restrain all violence and injustice which may in any manner be practisedor attemptedagainst them" and to take such measures as appeared to himnecessary "for their conversion to the Christian Faith and for theiradvancementin civilization"(390) Governor Bowen's Instructions dated 6 June1859.

48. There may not be a great deal to be proud of in this history of events.But a dispassionate appraisal of what occurred is essentialto thedetermination of the legal consequences, notwithstanding the degree ofcondemnation which is nowadays apt to accompany anyaccount(391) See, e.g.Wacando v. The Commonwealth (1981) 148 CLR, per Murphy J. at pp 27-28. Thepolicy which lay behind the legalregime was determined politically and,however insensitive the politics may now seem to have been, a change in viewdoes not of itselfmean a change in the law. It requires the implementation ofa new policy to do that and that is a matter for government rather thanthecourts. In the meantime it would be wrong to attempt to revise history or tofail to recognize its legal impact, however unpalatableit may now seem. To doso would be to impugn the foundations of the very legal system under whichthis case must be decided.

49. Having dealt with the history I now turn specifically to the Crown landslegislation which, in my view, makes it abundantlyclear that the Crownassumed ownership of the waste lands, unencumbered by any native interests.The early legislation is recountedby Windeyer J. in Randwick Corporation v.Rutledge(392)[1959] HCA 63; (1959) 102 CLR 54, at p 71 et seq.; see also Mabo v. Queensland(1988) 166CLR, at pp 236-240 in a judgment with which Dixon C.J.and Kitto J.agreed. Upon settlement, all the land in the Colonyof New SouthWales, whichthen comprised the whole of eastern Australia,became in law vested in theCrown. The early Governorshad express powersunder their Commissions to makegrants of land, referredto in the preamble to 6 Wm.IV No.16 (1836) asauthority"to grant and disposeof the waste lands". The term "waste lands"was, apartfrom legislative definition, understood long beforethecolonization of NewSouth Wales in 1788 to designate colonial lands notappropriatedunder any title from the Crown(393) Williamsv. Attorney-Generalfor New South Wales[1913] HCA 33; (1913) 16 CLR 404, per Isaacs J. at p 440; see also perBarton ACJ. at p428. Initially, ultimate control overthe disposal ofwastelands was retained by the Imperial Crown. The revenue from this sourcewasused to fund the administrationof, and emigrationto, the colony. So it wasthat while TheAustralian Constitutions Act 1842(Imp) (5 and 6 Vict c.76)empoweredthe Governor of New South Wales to make laws for the peace, welfareand good government of NewSouth Wales with the advice and consentof alegislative council, this power was made subject to the proviso that "no suchlaw shall... interfere in any manner with thesale or other appropriation ofthe lands belonging to the Crown within (New South Wales) orwith the revenuethence arising"(394)s,29.

50. As I have said, the sale of the waste lands of the Crown came to beregulated by the Sale of Waste Land Act 1842. "Waste Landsof the Crown" wasdefined to mean "any Lands situate (in New South Wales), and which now are orshall hereafter be vested in HerMajesty, Her Heirs and Successors, and whichhave not been already granted or lawfully contracted to be granted to anyPerson orPersons in Fee Simple, or for an Estate of Freehold, or for a Termof Years, and which have not been dedicated and set apart forsome publicUse"(395) s.23. Under this Act the Queen and her authorized agents wereexpressly empowered to except from sale and eitherreserve to Her Majesty, HerHeirs and Successors, or dispose of in such other manner as for the publicinterest may seem best, "suchLands as may be required ... for the Use orBenefit of the aboriginal Inhabitants of the Country"(396) s.3. A later Act,the Saleof Waste Land Act 1846, empowered the Queen to demise, or to grant alicence to occupy, waste lands of the Crown for a term not exceedingfourteenyears(397) s.1 and provision was made in that Act for the prosecution ofpersons in occupation of waste lands without sucha demise or licence(398)s.4. The definition of "Waste Lands of the Crown" in the 1846 Act was similarto that contained in the1842 Act, except that it expressly included wastelands "whether within or without the Limits allotted to Settlers forLocation"(399)s.9.

51. In 1855 responsible government was attained in New South Wales. The stepspreceding it - direct Crown rule, followed by a limitedlegislature in 1823and further advances towards representative institutions in 1828 and 1842(400)New South Wales Act 1823 (Imp)(4 GEO IV. c.96); Australian Courts Act 1828(Imp) (9 GEO IV c.83); TheAustralian Constitutions Act 1842 (Imp) (5 and 6Vict c.76)- were all accompanied by a refusal by the Imperial government torelinquish control of the disposal ofwaste lands, notwithstandingthat before1850 the Imperial government ceased to contribute to the expenses of thecolonial government. However, by 1855 "(t)heinsistence of the public forcomplete powers, added to the revolutionary change on the subject ofemigration,which took place onthe discovery of gold, led to the finalconcession"(401) Williams v. Attorney-General for New South Wales (1913)16CLR, per IsaacsJ. at p 449. The New South WalesConstitution Act 1855 (Imp)(18 and 19 Vict c.54) provided that as from its date of proclamation "theentire management and control of the wastelands belonging to the Crown in(New South Wales) and also the appropriation of the gross proceeds of the saleof any such landsand of all other proceeds and revenues of the same fromwhatever source arising within the said colony including all royalties minesand minerals shall be vested in the legislature of the said colony"(402) s.2.Accordingly, the Sale of Waste Land Acts 1842 and 1846were repealed by TheAustralian Waste Lands Act 1855 (Imp) (18 and 19 Vict c.56)(403) s 1. However,past appropriations of the proceedsof the sale or disposal of the waste landsofthe Crown made under the repealed Acts were deemed not to be invalid(404)s.8 and allregulations respecting the disposal of the waste lands of theCrown made under the repealed Acts were to remain in forcein New SouthWalesuntil otherwise provided by the legislature of New South Wales(405)s.6. TheNew South WalesConstitution Act also contained a proviso that preservedcontracts, promises or engagements made with respect to land under theprevious legislation(406)s.2; see also TheAustralian Waste Lands Act,s.4. Idirected my attention to this proviso in Mabo v. Queensland(407) (1988) 166CLR, at pp 237-240 and need not repeat what I saidthere.

52. In 1847 in The Attorney-General v. Brown(408) (1847) 1 Legge (N.S.W.) 312the suggestion was made that the Crown had neitherthe property in the wastelands of the Colony of New South Wales nor possession of them. Stephen C.J.,delivering a judgment, whichwas the judgment of the Court, gave the firmanswer(409) ibid., at p 316:

"We are of the opinion, then, that the waste lands of this

Colony are, and ever have been, from the time of its first

settlement in 1788, in the Crown; that they are, and ever

have been, from that date (in point of legal intendment),

without office found, in the Sovereign's possession; and

that, as his or her property, they have been and may now be

effectually granted to subjects of the Crown."

53. The separation of the Colony of Queensland from the Colony of New SouthWales was effected by Letters Patent dated 6 June 1859. At the same time anOrder in Council was made providing for the government of the new colony.Clause 5 of the Letters Patent gavepower to the Governor of the Colony ofQueensland, with the advice of the Executive Council, to grant any "waste orunsettled" landsvested in the Crown within the Colony of Queensland subjectto any laws in force in that colony regulating the sale or disposal ofsuchlands. Clause 17 of the Order in Council provided that, subject to The NewSouth WalesConstitution Act and TheAustralian Waste Lands Act, thelegislature of the Colony of Queensland was to have power to make laws forregulatingthe sale, letting, disposal and occupationof the waste lands ofthe Crown within the colony.

54. In 1867 the Queensland legislature passed a consolidating Act, theConstitution Act 1867 (Q.), which incorporated Queensland constitutionallegislation passed between 1860 and 1867. Section 30 of that Act providesthat, subject to the provisions of The New South WalesConstitution Act and ofTheAustralian Waste Lands Act "which concern the maintenance of existingcontracts", the legislature of the colony haspower to make laws forregulating the sale,letting, disposal and occupation of the waste lands ofthe Crown within the colony. Section 40 provides that the entire managementand control of waste lands belonging to the Crown in the colony shall bevested inits legislature subject to a proviso which issimilar to thatcontained in s.2 of The New South WalesConstitution Act. Section 40 alsoprovides that the appropriation of the gross proceeds of the sales of suchlands and of all other proceedsand revenues shall be vested in thelegislature.Sections 30 and40 of theConstitution Act are the source oflegislative power in Queensland to deal with waste lands. They are authorizedby cl.17 of the Order in Councilof 1859 which is in turn authorized by s.7 ofThe New South WalesConstitution Act. Upon the annexation of the MurrayIslands in 1879 the powers referred to in ss.30 and 40 extended to thoseislands as part ofQueensland. The Queensland legislature thereupon had powerto deal with the waste lands of the Murray Islands, and that power wasnotlimited by the proviso to s.40, the proviso having no application in thecircumstances, as I explained in Mabo v. Queensland(410)(1988) 166 CLR, at p239.

55. There followed a series of Acts passed by the Queensland parliamentdealing with the alienation of Crown lands. The term "Crownlands" was usedas an alternative to the term "waste lands" and is variously defined in thelegislation. For example, in the CrownLands Alienation Act 1868 (Q.), s.2,it is defined in part as:

"All lands vested in Her Majesty which have not been

dedicated to any public purpose or which have not been

granted or lawfully contracted to be granted to any person

in fee simple".

"All lands vested in Her Majesty which are not dedicated

to any public purpose and which are not for the time being

subject to any deed of grant lease contract promise or

engagement made by or on behalf of Her Majesty"(411) See

also Crown Lands Act 1884 (Q.), s.4 and Land Act 1897 (Q.), s.4.

"All land in Queensland, except land which is, for the time

being -

(a) Lawfully granted or contracted to be granted in

fee-simple by the Crown; or

(b) Reserved for or dedicated to public purposes; or

(c) Subject to any lease or license lawfully granted

by the Crown: Provided that land held under an

occupation license shall be deemed to be Crown

land".

56. Generally speaking these Acts empowered the Governor in Council to grantin fee simple or to demise for a term of years or tootherwise deal with Crownlands in Queensland. They also empowered the Governor in Council to reserveCrown lands for public purposes,including for the use or benefit of theaboriginal inhabitants or for aboriginal reserves, and to place such landunder the controlof trustees; alternatively the Governor in Council wasempowered to grant Crown lands in trust for such public purposes(412) SeeCrown Lands Alienation Act 1868, s.18; Crown Lands Alienation Act 1876, ss.6,7; Crown Lands Act 1884, ss.95, 96; Land Act 1897,ss.190, 191; Land Act 1910,ss.4, 180, 181; and see now Land Act 1962, ss.5, 334, 335.

57. The observation of Blackburn J. in Milirrpum(413) (1971) 17 FLR, at pp254-255 (although it was made in relation to the entirehistory of land policyand legislation in New South Wales, South Australia and the NorthernTerritory) is apposite:

"The first event in that history, for the purposes of this

case, was the inclusion in Governor Phillip's second

commission of the words 'full power and authority to agree

for such lands tenements and hereditaments as shall be in

our power to dispose of and them to grant to any person or

persons ...'. (Since then there has been) a long succession

of legislative and executive acts designed to facilitate

the settlement and development of the country, not expressly

by white men, but without regard for any communal native

title."

58. The very concept of waste lands is an indication that the Crownproceeded, and was required to proceed, in disregard of anynotion of nativetitle and this is emphasized by the power to reserve from the sale of wastelands land required for the use or benefitof the aboriginal inhabitants.This was the case both on the mainland and in the Murray Islands, where theCrown lands legislationapplied by virtue of the instruments effecting theannexation.

59. It was pursuant to Crown lands legislation that reserves in Queenslandwere created. For instance, on 30 June 1871 an aboriginalreserve at Mackaywas gazetted and, following recommendations by a Commission of Inquiry (set upin 1873) and growing interstateand international concern about the treatmentof Aborigines in Queensland, further reserves at Durundur, Bribie Island, CapeHillsborough,Townsville, Bowen and Cardwell were gazetted in 1877. However,partly due to the opposition of certain settlers and partly due toa lack offinancial support from the government, most of these reserves were cancelledin 1878 (the reserve at Mackay was cancelledin 1880 and that at Durundur in1885). Subsequently, in the late 1880s and early 1890s, further reserves wereestablished to be runby church organizations with little financial supportfrom the government.

60. Following recommendations made to the Queensland government in 1896 theAboriginals Protection and Restriction of the Sale ofOpium Act 1897 (Q.) waspassed. It was pursuant to this Act that the natives were placed ongovernment controlled reserves and wereentirely isolated from contact withother races. The first of these reserves was set up in 1897 at Bogimbah Creekon Fraser Islandand was initiated by the removal of about 50 natives from theMaryborough district. This was the beginning of a large-scale programofremovals (authorized under s.9 of the Act) to reserves at places such asYarrabah, Durundur, Barambah, Taroom, Hull River, Woorabindaand Palm Island.By the end of the 1930s, reserves had also been gazetted in the north atEdward River, Lockhart River and Doomadgee.Concurrently, "country reserves"(often on the outskirts of rural towns) were set up to provide a source ofaboriginal labour forpastoral areas (e.g. outside Herberton andGeorgetown)(415) See generally Foxcroft, Australian Native Policy, (1941), pp115-119;Anderson, "Queensland" in Peterson (ed.), Aboriginal Land Rights: AHandbook, (1981), pp 54-64; Singe, The Torres Strait: Peopleand History,(1979), pp 214-215.

61. Thus, whilst land was reserved in Queensland for Aborigines, those placedon the reserves did not necessarily have any traditionalassociation with theland. Moreover, the land remained land owned by the Crown, the reserves couldbe revoked or altered by theCrown and the location and size of the reserveswas largely dictated by the suitability of the land for settlement by thewhite population.

62. It appears that by a proclamation issued in 1882 the Murray Islands werereserved for native use. The proclamation would seemto have been issuedpursuant to the powers conferred on the Governor in Council by s.6 of theCrown Lands Alienation Act 1876. Inthe same year a special lease (SpecialLease 164) of two acres on Mer was granted by the Crown to the LondonMissionary Society forfourteen years. That lease appears to have beensubsequently renewed and was later transferred to the General Secretary,AustralianBoard of Missions, then to the Trustees of the Australian Board ofMissions and finally to the Corporation of the Synod of the DioceseofCarpentaria.

63. By an Order in Council dated 14 November 1912, the Governor in Councilordered that "the Murray Islands (Mer, Daua, Waua) containingan area of about1200 acres (exclusive of Special Lease 1677)" were to be "permanently reservedand set apart for use of the AboriginalInhabitants of the State (ofQueensland)". Presumably Special Lease 1677 relates to the land previously thesubject of Special Lease164. The reservation was made pursuant to the powersconferred upon the Governor in Council by s.180 of the Land Act 1910.

64. By an Order in Council dated 9 September 1939 the reserve comprising theMurray Islands was placed under the control of trusteespursuant to s.181(1)of the Land Act 1910. This section provided that the Governor in Councilmight, by Order in Council and withoutissuing any deed of grant, place anyland reserved for any public purpose under the control of trustees and mightdeclare the styleor title of such trustees and the trusts of the land.

65. Aboriginal reserves, whether created under the Crown Lands Alienation Act1876 or the Land Act 1910, were, as I have said, initiallyregulated by theAboriginals Protection and Restriction of the Sale of Opium Act 1897. For thepurposes of that Act, an "aboriginal"included an aboriginal inhabitant ofQueensland(416) s.4(a). The Governor in Council was empowered to appoint aProtector of Aboriginalsin respect of proclaimed districts in Queensland anda superintendent for each reserve in each district(417) ss.5, 6, 7. The Actprovided in a detailed way for the welfare of "aboriginals" by the impositionof controls upon them and upon others in relation tothem.

66. This Act was repealed by the Aboriginals Preservation and Protection Act1939 (Q.)(418) s.3 but the Murray Islands reserve wascontinued, andregulated, as a reserve under the Torres Strait Islanders Act 1939 (Q.)(419)s.1(4)(a). Certain sections of the AboriginalsPreservation and ProtectionAct, which was to be read and construed with the Torres Strait IslandersAct(420) Torres Strait IslandersAct 1939, s.21, also applied to the MurrayIslands reserve. The former Act continued the office of Chief Protector ofAboriginals,albeit in the guise of the Director of Native Affairs(421)s.6(1), and the latter Act provided that a designated Protector of Aboriginalswas to be the Protector of Islanders for the purposes of that Act(422) s.4(2).The Torres Strait Islanders Act also made detailedprovision for theregulation of the affairs of the aboriginal inhabitants, including theprotection and management of their property(423)See the AboriginalsPreservation and Protection Act, s.16 read in conjunction with the TorresStrait Islanders Act, s.21. Further,it established a council to govern eachisland reserve in Torres Strait which was to be elected from among the nativeinhabitantsof the relevant reserve(424) s.11. Each council was to exercise"the functions of local government of the reserve" and was chargedwith "thegood rule and government of the reserve in accordance with island customs andpractices"(425) s.18(1). For these purposesthe council was empowered to makeby-laws, including by-laws in relation to the "subdivision of land and use andoccupation of land,buildings and use and occupation of buildings, ...boundaries and fences"(426) s.18(1), (3). However, the by-laws were to be ofno force or effect until approved by the Director(427) s.18(8). This Act alsoprovided for an island court for each reserve consistingof members of thecouncil(428) s.20(1), which was to adjudicate on all offences committed byislanders on the reserve against theby-laws of the reserve(429) s.20(2).Provision was made for appeal from a decision of the island court to theProtector of Islanders(430)s.20(11). The Governor in Council was givenextensive power to make regulations for, among other things, the welfare,control andsupervision of islanders and the jurisdiction and procedure ofisland courts(431) s.6.

67. The Aboriginals Preservation and Protection Act and the Torres StraitIslanders Act were repealed by the Aborigines' and TorresStrait Islanders'Affairs Act 1965 (Q.)(432) s.4(1). The Murray Islands reserve was, however,continued as a reserve under thatAct(433) s.4(2)(a)(ii) and (v). This Actcreated the position of Director of Aboriginal and Island Affairs (which wasoccupied bythe former Director of Native Affairs)(434) s.10(1), (2). Thisposition was later incorporated(435) s.10A inserted by the Aborigines'andTorres Strait Islanders' Affairs Act Amendment Act 1967 (Q.), s.3. In thecase of the Murray Islands the Director was also appointedtrustee of thereserve(436) Queensland Government Gazette, 29 November 1969, p 1297. Theoffice of protector was abolished, butthe previous superintendents ofreserves became managers of the communities which resided on thosereserves(437) s.4(2)(b)(i), (ii). Under the Act a district officer in thedistrict in which a reserve was situated was given the power to manage anddeal with theproperty of any islander residing on the reserve where theofficer was satisfied that this was in the best interests of the islanderorhis dependent family members(438) ss.27, 28, although the district officercould be required to cease doing so on the order ofa stipendiarymagistrate(439) s.29. The island councils were continued(440) s.45(1)(b) withsimilar functions and powers althoughin addition they were empowered to levya rate and to impose fees, charges, fares, rents and dues in respect of anyproperty, service,matter or thing for the purpose of enabling them toexercise and perform their functions(441) s.47. The island courts were alsocontinued(442) s.52(1), but an appeal lay in the first instance to a grouprepresentative appointed under the Act(443) s.51 and thento the districtofficer(444) s.52(2). The Governor in Council was also given extensive powerto make regulations for, among otherthings, the administration of reservesand the employment, welfare and control of islanders residing on thereserves(445) s.60. Pursuant to this power The Aborigines' and Torres StraitIslanders' Regulations 1966 were promulgated. They dealt with, among otherthings, the administration of reserves, entry on to reserves and thejurisdiction, powers and procedure of island courts.

68. The Act succeeding the Aborigines' and Torres Strait Islanders' AffairsAct, the Torres Strait Islanders Act 1971 (Q.), maybe dealt with shortly.This Act continued the Murray Islands as a reserve(446) s.4(1). It alsocontinued The Corporation of theDirector of Aboriginal and IslandAffairs(447) s.5 (its name was subsequently changed to The Corporation of theDirector of Aboriginaland Islanders Advancement(448) Aborigines Act and OtherActs Amendment Act 1975 (Q.), s.4) and the island councils(449) s.4(3) (thesewere subsequently incorporated(450) s.35A inserted by the Aborigines andIslanders Acts Amendment Act 1979 (Q), s.21) with much thesame powers as theyhad under the previous Act. The island courts were continued as well(451)s.42(1), but an appeal now lay inthe first instance to the grouprepresentative, then to the Island Advisory Council appointed under theAct(452) s.49 and then toa stipendiary magistrate(453) s.43(1). Asignificant change, however, was that under the Act a district officer couldonly assumethe management of an islander's property when requested to do soby the islander(454) s.61(1) and, subsequently, an islander wasable toterminate such management as of right(455) Aborigines Act and Torres StraitIslanders Act Amendment Act 1974 (Q.), s.6. Again, the Governor in Councilwas given extensive power to make regulations for the welfare of islanders andfor the administrationof the reserves on which they resided(456) s.78. TheTorres Strait Islanders Regulations 1972 were made under this Act; theseregulationsrelated to, among other things, the administration and control ofreserves, the proceedings of island councils and the powers, jurisdictionandproceedings of island courts.

69. This Act was repealed by theCommunity Services (Torres Strait) Act 1984(Q.)(457)s.4. Under that Act the Murray Islands are continued as a trustarea(458) s.5(1). "Trust area" was at that time defined as "land grantedintrust by the Governor in Council for the benefit of Islander inhabitants orreserved and set apart by the Governor in Councilfor the benefit of Islandersunder the provisions of law relating to Crown lands"(459) s.6(1); thisdefinition has since been amendedby the Aboriginal and Torres Strait IslanderLand (Consequential Amendments) Act 1991 (Q.), s.22(2). The island councilsare continued(460)s.593) and, as under the repealed Act, areincorporated(461) s.15(1) and made "capable in law of suing and being sued, ofacquiring,holding (absolutely or subject to trusts), letting, leasing,hiring, disposing of and otherwise dealing with property real andpersonal"(462)s.15(3). The previous powers of island councils are alsoextended to include the powers of a "Local Authority" in certaincircumstances(463)s.23(3)(d). Although a council's by-laws have no force oreffect until approved by the Governor in Council, there is no longer anypowerin another body to suspend a by-law. Provision is also made for island courtsbut these are now generally to be constitutedby two justices of the peace whoare islanders resident in the relevant trust area(464) s.40(2)(a). Thejurisdiction of an islandcourt extends, among other things, to disputesconcerning any matter that "is a matter accepted by the community resident in(therelevant trust area) as a matter rightly governed by the usages andcustoms of that community"(465) s.41(2)(b)(i). The decision ofan island courtupon such a matter is final and conclusive(466) s.41(3). Finally, the Governorin Council is given extensive powerto make regulations for, among otherthings, the administration and supervision of island councils, thejurisdiction and procedureof island courts, the self-management and goodgovernment of islanders, the skills development, training and employment ofislandersand the financial well-being of islanders(467) s.81.

70. As can be seen from the preceding summary none of these Acts thatregulated or now regulate reserves (such as the Murray Islandsreserve)adverts to any native interests in the reserved land and, significantly, thepower of an island council under these Actsdoes not extend to dealing withtitles to land.

71. So far as the Murray Islands are concerned, the creation of a reserve ofpractically all of the land on the Murray Islands forthe benefit ofaboriginal inhabitants so soon after annexation is, in the light of the policyadopted by Queensland towards landand the aboriginal inhabitants on themainland, a clear indication that the Crown was proceeding upon a basis otherthan that ofpreserving any native rights in respect of the land. The creationof a reserve is not necessarily inconsistent with the continuedexistence ofnative title(468) See United States v. Santa Fe Pacific Railroad Co. (1941)314 US, at p 353; Gila River Pima-MaricopaIndian Community v. United States(1974) 494 F 2d, at pp 1389-1392. However, it is to be noted that in thesecases the issue waswhether the creation of the reserve extinguished Indiantitle outside the reserve, rather than whether the creation of the reserveextinguished any pre-existing Indian title over the reserved land, but wherethe circumstances which accompany a reservation of landclearly indicate theCrown's exercise of rights of absolute ownership such that there is no roomfor the continued existence of nativetitle, then the reservation will clearlybe inconsistent with the recognition of that title. The reservation of theMurray Islandsand the regulation of the affairs of the aboriginal inhabitantswas part of a legislative and administrative scheme extending tothe whole ofthe colony and it is clear that elsewhere the creation of aboriginal reserveswas unrelated to the preservation of nativetitle. The reservation was in noway a recognition of any traditional land rights. The policy behind thecreation of reserves onthe mainland was accurately described by Blackburn J.in Milirrpum(469) (1971) 17 FLR, at p 255:

"The creation of aboriginal reserves - a policy which goes

back at least to the time of Governor Macquarie - implies

the negation of communal native title, for they are set up

at the will of the Government and in such places as the

Government chooses. There is never the slightest suggestion

that their boundaries are negotiated between parties by way

of the adjustment of rights."

72. Just as those concerned with the administration of the Murray Islandsassumed full power to regulate the affairs of the occupantsof the MurrayIslands reservation, the Crown (and its agents) assumed full power to dealwith the land as it saw fit. Indeed, thecreation of reserves out of Crownland was itself the exercise by the Crown of its rights of absolute ownershipover the land. Inthese circumstances the fact that almost the whole of theMurray Islands was reserved carries with it no particular significance. Onthe contrary, there is a certain unreality in any separate examination of thereservation of the Murray Islands in order to discernan intention not todisturb native title. The lands comprising the islands were quite plainlythought to be Crown lands and to bein no different category to Crown landselsewhere in the colony. There was never in Queensland, as there was not inNew South Wales,any policy which could be said to embrace the concept ofnative title. The opposite was the case and it is in that context thatthecreation of reserves for the benefit of aboriginal inhabitants must be seen.

73. The findings of fact made by Moynihan J. upon the remitter of this matterto the Supreme Court of Queensland are consistentwith the conclusions which Ihave arrived at from a consideration of the legislation passed and executiveaction taken, namely thatas from annexation traditional native title in theland was not recognized by the Crown (or, what amounts to the same thing, wasextinguished by the Crown). In particular, Moynihan J. found that there wasno concept of public or general community ownershipof land before the arrivalof Europeans but that all land was considered to be in the possession of aparticular individual or familygroup. Whatever the true character oftraditional native title, it seems that it can only be claimed by or on behalfof a groupof native inhabitants and that it does not support the claim of anindividual to a particular parcel of land. Of course this ofitself does notdeny the possibility that the Crown has recognized or granted to the nativeinhabitants of the Murray Islands afterannexation something more thantraditional native title, and more akin to private ownership of the land. ButMoynihan J. was ableto go only so far as to find that, prior to Europeancontact, the native inhabitants of the Murray Islands had a strong sense ofthe propriety of respecting and not trespassing on "someone else's place orlocality"; his Honour found this attitude to be "ingrainedin the culture ofthe people ... rather than objectively laid down and enforced by some distinctagency - rather like our (or morelikely another age's) concept of goodmanners for example than the traffic regulations enforced by the policeforce". This respectfor another's "place or locality" was not due to anyspiritual or religious relationship with the land or necessarily to anyintrinsicvalue of the land as such; instead, it was at least partly due to"the need to control access in the terms of distribution or sharinglifesustaining or socially advantageous resources in a potentially volatile socialenvironment". In other words, controlled accessto land on the basis ofsocial groupings was necessary for social harmony. In addition Moynihan J.found that the disposition ofand dealings in village land and garden land atthis time essentially depended on whatever basis was acceptable to thosedirectlyaffected and, to the extent to which a wider community might beaffected, whatever basis was acceptable to that community. MoynihanJ.concluded that, prior to the arrival of Europeans:

"The ultimate determining factor in terms of the control and

disposition of land was simply what was acceptable in terms

of social harmony and the capacity of an individual to

impose his (it seems almost (always) to have been a him)

will on the community."

74. Moynihan J. thus appears to have formed the view that it would be no morethan speculation to conclude that there was any particularsystem controllingthe use of land on the Murray Islands before European contact.

75. European contact brought with it certain changes. In particular a systemof chieftainship was introduced with the appointmentof the "mamoose" (orchief) at the instigation of the European authorities and this was followed bythe establishment of the islandcouncil, the island court and the islandpolicemen. These were all introduced agencies that, in the words of MoynihanJ., bore "littleor no relationship to anything previously in place in thesociety or reflected by the culture". Other changes included the introductionof school for the children, the introduction of Christianity, the migration ofa number of islanders to the mainland and a changein the economy from onebased on subsistence gardening supplemented by fishing to one based on cashfrom employment. To some extentthe manner of dealing with land was alsoaffected - for example, it appears that since European contact the practice ofleasing orloaning garden land to other Murray Islanders has become arelatively common and accepted transaction. In particular though, afterEuropean contact, the London Missionary Society, the schoolmaster and finallythe island court assumed the function of resolvingdisputes concerningresidential (or village) land and gardening land. Previously, there wasnothing resembling these institutionsor performing their functions. Of thecourt Moynihan J. said:

"I am inclined to think that the operation of the Court

reflected as much as anything the imperative of achieving

social harmony by seeking to reconcile conflicting parties

or having them accept a decision perhaps in terms of

accepted expectation."

"The view I take on the whole of the evidence is that

the role of the Court was to maintain social harmony by

accommodating peoples' wishes as far as possible and doing

what seemed to be right in the circumstances."

76. On 6 May 1931 a lease (Special Lease 6619) was granted to two persons(not being aboriginal inhabitants) over the whole of theislands of Dauer andWaier for a period of twenty years for the purpose of establishing a sardinefactory. A new lease (Special Lease6856) was later granted in the same yearon the same terms except that it provided for an extension of the lease forthirty yearsupon the giving of six months' notice. This lease was thentransferred to Murray Island Fisheries Limited on 10 June 1932. Theleasewas, however, forfeited in 1938 for failure to pay the rent due and theimprovements made on the leased land were purchasedby the Lands Department onbehalf of the Chief Protector of Aboriginals.

77. The granting of the lease of land to the London Missionary Societyreferred to earlier and of the lease for the purposes ofa sardine factory areinconsistent with the preservation of native title, although in the lattercase the lease was subject to conditionsthat the lessees would not in any wayobstruct or interfere with the use of the Murray Island natives of "theirtribal gardens andplantations" on the demised land and would not in any wayobstruct or interfere with the operations of the Murray Island nativeswhofished around the reefs adjacent to the demised land. The construction ofpublic buildings and the carrying out of public workson the islands is alsoinconsistent with the preservation of native title.

78. The court records do show that in September 1913 the government purchasedthree portions of land for a gaol house, a court houseand a recreationreserve respectively for a total sum of 6.0.0 pounds. Further, it appearsthat during the 1960s the Departmentof Native Affairs paid $50 for a site fora kindergarten "in recognition of any claim he (the recipient) had to the useof the land". And, in 1973 the area of land used by the kindergarten wasincreased and another person was paid $75 by the Department of AboriginalandIslander Affairs for the loss of use of the land. Each of these transactionswas variously referred to as a "sale", a "disposal",an "acquisition" or a"purchase". The court records also show that in 1928 land on Mer "was resumedby the Protector of Aboriginalsand set aside for a new village. The land wasthen cleared and subdivided into 23 lots and balloted for".

However, it was only upon some occasions when Murray

79. In my view, the conclusion is inevitable that, assuming the nativeinhabitants of the Murray Islands to have held some sortof rights in the landimmediately before the annexation of those islands, the Crown in right of theColony of Queensland, on theirannexation, exerted to the full its rights inthe land inconsistently with and to the exclusion of any native or aboriginalrights. It did so under the law which it brought with it. It did so from thestart by acting upon the assumption (which was also the assumptionlyingbehind the relevant legislation) that there was no such thing as native titleand that the Crown was exclusively entitled toall lands which had not beenalienated by it: lands which were designated as Crown lands. In makingprovision for the reservationof land for public purposes, in particular thewelfare of the aboriginal population, the relevant legislation and the actiontakenpursuant to it disclose no intention to preserve native rights in theland: they were simply thought not to exist. The reservationof land for theuse of the aboriginal population was in the exercise of a benevolentjurisdiction whereby the land was to be controlledby the Crown in accordancewith a legislative scheme which was inconsistent with the exertion of nativerights, communal or otherwise,in the land. If any ambiguity arose from thefact that practically the whole of the Murray Islands were reserved and thefact thatthe aboriginal inhabitants were allowed to continue in occupation ofthe land more or less as they had been in the past (or at allevents sinceEuropean contact), that ambiguity is resolved when it is recognized that thescheme under which the islands were reservedextended to the whole of thecolony and was elsewhere plainly incompatible with the preservation of anynative title and consistentonly with the assertion by the Crown of full andcomplete dominion over land. Indeed, the creation of aboriginal reserves wasforthe purpose of actually retaining the land within the control of the Crownor its agencies in order that it might be administeredfor the benefit of theaboriginal population of the colony. Further, aboriginal reserves were notcreated in a manner which coincidedwith the aboriginal inhabitants'occupation of the land. On the contrary, aboriginal reserves were createdwithout any regard toaboriginal title.

80. My conclusion that the plaintiffs have no aboriginal title to the landnecessarily carries with it the further conclusion thatthe plaintiffs'separate claim to usufructuary rights over the land cannot succeed. Impreciseas the authorities are concerningthe nature of aboriginal title, it wouldappear upon any view to embrace usufructuary rights. The separate claims madeby the plaintiffsto aboriginal title and usufructuary rights would appear tobe based upon the notion that aboriginal title is proprietary by nature,whereas usufructuary rights are, by definition, not proprietary in nature. Theweight of authority rather suggests that aboriginaltitle is of its naturealso non-proprietary and carries with it little if anything more thanusufructuary rights. But it is unnecessaryto pursue the matter because it isnot, and cannot be, questioned that aboriginal title may be extinguished andit follows that anyusufructuary rights amounting to something less thanaboriginal title may also be extinguished. The exertion by the Crown of itsrights over the Murray Islands, as evidenced by, among other things, thecreation of a reserve, to the exclusion of any native rightsin that land,carries with it the result that any usufructuary rights in the land stemmingfrom occupancy before annexation, havebeen extinguished.

81. Similarly, in the light of what I have already said, the plaintiffs'claims to ownership by custom of the lands comprising theMurray Islandscannot be sustained. The short answer is that, upon the facts found byMoynihan J., which I have set out previously,the plaintiffs failed toestablish any custom by which they could be said to have inherited rights overthe land which they claim. A system, such as that which apparently existedprior to annexation, whereby the control and disposition of land depended onwhatwas acceptable in terms of social harmony and on the capacity of theindividual to impose his will on the community, does not seemto me to amountto any sort of custom, whether or not characterized as a system of laws,regarding the control and disposition ofland. But, more fundamentally,customary rights which are not recognized by a new sovereign who acquires theradical title to theland are extinguished upon the assumption of sovereignty,no less than rights which might be characterized as aboriginal title. Nodoubt, as in my view is the case with aboriginal title, recognition may takethe form of acquiescence, at least where the customaryrights arereasonable(470) Halsbury's Laws of England (4th ed.), vol.12, pars 406,409-414; New Windsor Corporation v. Mellor (1975)Ch 380, at p 386; Lockwoodv. Wood (1844) 6 QB 50, at p 64[1844] EngR 452; (115 ER 19, at p 24); Mercer v. Denne (1904) 2Ch 534, at pp 551-552;Tyson v. Smith (1838) 9 Ad. and E 406, at p 421 (112 ER1265,at p 1271) and not repugnant to the common law(471) The Case of Tanistry(1608) Davis 28, at p 40 (80 ER 516, at p 527); 4th ed.Dublin (1762) p 78, atp 109 (English translation). But the history, bothlegislative and executive,to which I have made reference,affords no basis for any claim that the Crownin right of the Colony orState of Queensland recognized the existence of anycustomaryrights of ownership on the part of the aboriginal inhabitants of theMurray Islands.

82. As I have said, under both theCommunity Services (Torres Strait) Act andits predecessor, an island council is required togovern the reserve "inaccordance with the customs and practices" of the islanders. Indeed, the 1980by-laws expressly require thetransmission of land on the holder's death orpermanent departure to be "in accordancewith native custom" (by-law no.35)and providethat, if a deceased islander does not make a will, the deceasedislander's land andproperty is to be distributed by the island court"bynative custom" (by-law no.38). Also, in some cases, the jurisdiction of theisland court is required to be exercised havingregard to or in accordancewith "the usages and customs of the community"(472) See,for example,Community Services (Torres Strait)Act,s.41(2)(a), (b). The plaintiffscontend that these provisions confer "statutory rights" on the Meriam people.However, theseprovisions cannotpreserve that which has been found not toexist by Moynihan J. and they do not constitute a recognition of customaryrights which,at least so far as land is concerned, are inconsistent withQueensland laws introduced upon annexation.

83. The plaintiffs placed reliance upon The Case of Tanistry(473) (1608)Davis 28 (80 ER 516); 4th ed. Dublin (1762) p 78 (Englishtranslation). Thatwas a case in which it was sought to establish the continuation in Ireland ofthe custom of tanistry (a tenureinvolving a mode of descent through the maleline) despite the introduction of the common law of England. It was held inthat casethat the custom did not survive because it was unreasonable andrepugnant to the common law(474) ibid., at pp 33-35, 40 (pp 521-523,527 ofER); pp 92-95, 109 of English translation. In addition, the court affirmedthe basic principle which I have stated before(475)ibid., at pp 40-41 (p 528of ER); pp 111-112 of English translation:

"queen Elizabeth shall not be said to be in actual

possession of this land, by virtue of the first conquest, if

it doth not appear by some record that the first conqueror

had seised this land at the time of the conquest, and

appropriated it particularly to himself as parcel of his

proper demesne.

For the kings of England have always claimed and had

within their dominions, a royal monarchy and not a despotick

monarchy or tyranny ... And therefore when such a royal

monarch, who will govern his subjects by a just and positive

law, hath made a new conquest of a realm, although in fact

he hath the lordship paramount of all the lands within

such realm, so that these are all held of him, mediate vel

immediate, and he hath also the possession of all the lands

which he willeth actually to seise and retain in his own

hands for his profit or pleasure, and may also by his grants

distribute such portions as he pleaseth to his servants and

warriors, or to such colonies as he will plant immediately

upon the conquest ... yet Sir James Ley chief-justice said,

that if such conqueror receiveth any of the natives or

antient inhabitants into his protection and avoweth them

for his subjects, and permitteth them to continue their

possessions and to remain in his peace and allegiance, their

heirs shall be adjudged in by good title without grant or

confirmation of the conqueror, and shall enjoy their lands

according to the rules of the law which the conqueror hath

allowed or established, if they will submit themselves to

it, and hold their lands according to the rules of it, and

not otherwise."

84. Alternatively, the plaintiffs argue that, whether or not they are able toestablish that they have traditional land rights,they nevertheless have atitle based on possession. This argument is heavily based on a theoryadvanced by Professor McNeil in hisbook Common Law Aboriginal Title, (1989).The starting point is that the plaintiffs' predecessors in title have been inoccupationof the land since beyond living memory. Upon annexation, the commonlaw was introduced into the Murray Islands as part of the lawof Queensland.Under the common law, occupation is prima facie proof of possession andpossession carries with it a possessory title,which is good as against thosewho cannot show a better title in themselves. Indeed, mere possession of landis prima facie evidenceof a seisin in fee. Thus, say the plaintiffs, sincethey were allowed to remain in possession of their lands and since no one canassert a better title against them, they must be taken to hold their land byway of an estate in fee simple.

85. But, of course, any presumption that the plaintiffs have an estate in feesimple is rebuttable(476) See Wheeler v. Baldwin[1934]HCA 58; (1934)52 CLR 609, at p 632and any possessory title would not withstand the assertion by the Crown of itsradical title.In otherwords,upon the assumption of sovereignty by theCrown, the plaintiffs or their predecessors could only retain such interestsasthe Crownchose to recognize by one means or another and, as I haveendeavoured to explain, the Crown upon annexation asserteditsright totheland to the exclusion of any rights of ownership on the part of the plaintiffsor their predecessors.

86. The plaintiffs put yet another argument. They submit that if they failto establish title to the lands which they claim onthe Murray Islands,nevertheless the Crown, whether as a trustee or not, owes them a fiduciaryduty to deal with those lands in sucha manner as to have regard to theirtraditional rights in them. They argue that this duty arises from theunilateral assumptionof control by the Crown over the native inhabitants onannexation, the policy of protection of the native inhabitants adopted bytheCrown and the creation of a reserve (later put under the control of trustees)for the use and benefit of the native inhabitants. The plaintiffs say thatthis duty imposes an obligation on the defendant, among other things, topreserve or have regard to thetraditional land rights of the plaintiffs, toexercise any discretionary powers conferred by statute or otherwise in amanner whichpreserves or has regard to these rights, and to pay propercompensation for any extinguishment or impairment of these rights. Ihavesome difficulty with this submission because, assuming that the plaintiffs hadtraditional rights in those lands, I have reachedthe conclusion that thoserights have been extinguished. It is in the end for that reason that I havealso concluded that thereis no fiduciary duty imposed upon the Crown such asis advanced by the plaintiffs, but it is necessary for me to elaborate myreasonsfor reaching that conclusion.

87. In the United States it has been held that a fiduciary relationshipexists between the United States government and the variousIndian tribes.Its foundation is said to lie in the judgments of Marshall C.J. in CherokeeNation v. Georgia(477)[1831] USSC 6; (1831) 30 US 1and in Worcester v. Georgia(478) (1832)31 US 350. This relationship seems to derive from the fact that the Indiantribes, as "domesticdependent nations", rather than as individuals abandoningtheir national character and submitting as subjectsto the laws of another,have sought and received the protection of a more powerful government, namely,that of the United States. Accordingly there hasarisen between the Indiantribes and the United States government a relationship which has beendescribedas resembling that betweena ward and his guardian(479) CherokeeNation v. Georgia (1831) 30 US, at p 12 and Worcester v. Georgia(1832) 31 US,at p 376; seealso United States v. Kagama (1886) 118 US, at pp 383-384. Thisrelationship has also been describedas "a general trust relationshipbetweenthe United States and the Indian people"(480) United States v. Mitchell (1983)463 US, atp 225, and the United States government,in dealing with theIndians, and in particular in carrying out its treaty obligations towardsthem, is under "a humane and self imposedpolicy" whereby "it has chargeditself with moral obligations of the highest responsibilityand trust"(481)Seminole Nation v. UnitedStates (1942) 316 US, at pp 296-297. The preciseorigins of this United States "federaltrust responsibility", as it issometimescalled, as well as its content, are somewhat obscure. Marshall C.J.spoke in broad moralterms, but the theoretical basis has beenvariouslyexplained(482) See Note, "Rethinking the Trust Doctrine in Federal Indian Law"(1984) 98 Harvard Law Review 422. It isclear, however, that the doctrine isdependent upon a history of protection of the Indiantribes, as separatedomestic dependentnations with their own limited form of sovereignty andterritorial and governmental integrity,the protection being undertaken bytheUnited States government either pursuant to legislation or otherwise. Thedoctrine also assumessome form of title in the Indiantribes to the land,either by way of aboriginal title ("unrecognized Indian title") or undertreaty("recognized Indian title").

88. In Canada the notion of a fiduciary duty with respect to aboriginal landswas taken up in Guerin v. The Queen(483)(1984) 13DLR (4th) 321. In that casepart of an Indian reserve set apart for the use of the Musqueam band wassurrendered to the Crown bythe band "in trustto lease the same to suchperson or persons, and upon such terms as the Government of Canada may deemmost conduciveto our Welfareand that of our people". The Crown accepted thesurrender and entered into a lease upon terms substantially lessadvantageousthanthose which had been discussed with the band. No copy of the lease wasmade available to the band until a considerabletime afterit had been enteredinto. Under the Indian Act, RSC 1952, c.149, it was provided that reserveswere to be held by theCrown forthe use of the respective Indian bands forwhich they were set apart: s.18(1). It was also provided that generally landsin a reservewere not to be sold, alienated, leased or otherwise disposed ofuntil they had been surrendered to the Crown by theband for whoseuse andbenefit in common the reserve was set apart: s.37. The purpose of thislatter stipulation was to interposethe Crown betweenthe bands and theprospective purchasers or lessees of their land so as to prevent the bandsfrom being exploited(484)ibid., atp 340.

89. Dickson J. (with whom Beetz, Chouinard and Lamer JJ. agreed) found thatthe Crown was under a fiduciary duty towards the Indianswith respect to thesurrendered land which, whilst not a trust, made the Crown liable in the sameway and to the same extent as ifa trust were in effect. The finding ofDickson J. that a fiduciary duty existed was dependent upon the existence ofIndian titleand the statutory provisions prohibiting the disposal of reserveland except through surrender to the Crown. He said(485) ibid.,at p 334:

"In my view, the nature of Indian title and the

framework of the statutory scheme established for disposing

of Indian land places upon the Crown an equitable

obligation, enforceable by the courts, to deal with the land

for the benefit of the Indians. ...

The fiduciary relationship between the Crown and the

Indians has its roots in the concept of aboriginal, native

or Indian title. The fact that Indian bands have a certain

interest in lands does not, however, in itself give rise to

a fiduciary relationship between the Indians and the Crown

The conclusion that the Crown is a fiduciary depends upon

the further proposition that the Indian interest in the land

is inalienable except upon surrender to the Crown."

90. Wilson J. (with whom Ritchie and McIntyre JJ. agreed) held that, whilethe Crown did not hold reserve land under s.18 of theIndian Act in trust forthe bands because the bands' interests were limited by the nature of Indiantitle, it did hold the landssubject to a fiduciary obligation to protect andpreserve the bands' interests from invasion or destruction. Thus the Crowncouldnot utilize reserve land for purposes incompatible with the bands'Indian title unless the relevant band agreed(486) ibid., at p357. Wilson J.further held that this fiduciary duty, which was founded upon aboriginaltitle, "crystallized upon the surrenderinto an express trust of specific landfor a specific purpose"(487) ibid., at p 361.

91. The existence of some sort of fiduciary or trust obligation upon theCrown in dealing with surrendered reserve land which isidentified in Guerinis similar to a manifestation of the fiduciary relationship said to generallyexist between the Indian tribesand the United States government. That isthat land in the United States, whether held under unrecognized or recognizedIndian title,cannot be disposed of without the consent of Congress; in otherwords, analogously to the position of the Crown in Canada, the UnitedStatesgovernment has assumed a responsibility to protect the Indian tribes in theirland transactions(488) See, for example, CatawbaIndian Tribe of SouthCarolina v. State of South Carolina[1983] USCA4 1475; (1983) 718 F 2d 1291, at pp 1298-1299;Joint Tribal Council of PassamaquoddyTribe v. Morton (1975)[1975] USCA1 273; 528 F 2d 370, atp 379; Narragansett Tribe v. Southern Rhode Island Land Development Corp(1976) 418 F Supp,at p 803; United Statesv. Oneida Nation of New York (1973)477 F 2d 939, at p 942; Fort Sill Apache Tribe of State of Oklahoma v.UnitedStates (1973) 477F 2d 1360, at p 1366.

92. However, it has been suggested that in Canada, as in the United States,the Crown in fact has a broader responsibility to actin a fiduciary capacitywith respect to its aboriginal peoples. That responsibility is said to ariseout of the Crown's historicpowers over, and assumption of responsibility for,those aboriginal peoples and out of the recognition and affirmation ofexistingaboriginal rights contained in s.35(1) of the CanadianConstitution(489) Reg. v. Sparrow (1990) 70 DLR (4th), at p 408 but cf.Delgamuukwv. British Columbia (1991) 79 DLR (4th), at p 482.

93. But once it is accepted, as I think it must be, that aboriginal title didnot survive the annexation of the Murray Islands,then there is no room forthe application of any fiduciary or trust obligation of the kind referred toin Guerin or of a broadernature. In either case the obligation is dependentupon the existence of some sort of aboriginal interest existing in or over theland. Yet, as I have said, upon annexation the lands comprising the MurrayIslands became Crown lands and the Crown asserted theright to deal with thoselands unimpeded by any recognition of, or acquiescence in, native title.

94. As I have already stated, in 1939 a trust (at least in name) of the landscomprising the Murray Islands was created pursuantto s.181(1) of the Land Act1910. The present trustee would appear to be a corporation sole, TheCorporation of the Director ofAboriginal and Islanders Advancement. But theterms of the trust, which are now to be gleaned from the Land Act 1962, areinconsistentwith the preservation of any form of native title and may in thisrespect be contrasted with the provisions of the Indian Act. Thetrust wascreated without any deed of grant from the Crown to the trustees and appearsto be limited to the imposition of an obligationto control the use of theland without any title being vested in the trustees. It is, therefore, moreakin to an administrative arrangementthan a conventional trust. Whether ornot a trust of this kind creates any enforceable rights in equity against theCrown or thoseappointed as "trustees" by the Crown is a question which may onsome other occasion require to be answered(490) cf. Williams v.Attorney-Generalfor N.S.W.[1913] HCA 33; (1913) 16 CLR 404; see also Tito v. Waddell (No.2)(1977) Ch 106, at pp 211, 216, 223, 228-229, 234, 235-236;Kinlochv.Secretaryof State for India (1882) 7 App Cas 619, per Lord Selborne L.C. atpp 625-626, Lord O'Hagan at p 630, and LordBlackburnat pp 631-632;TownInvestments v. Department of Environment[1977] UKHL 2; (1978) AC 359, per Lord Diplock at p382 andLord Simon of Glaisdaleat p 397; Aboriginal Development Commission v.Treka AboriginalArts and Crafts Ltd. (1984) 3 NSWLR 502,at p 517; Guerin v.TheQueen (1982) 143 DLR (3d), at pp 468-470, but I am prepared to assumeforthe purposes of argument that someform of trust has beencreated giving riseto enforceable obligations on the part of the Crown. As I have said, it isthe Land Act1962 which defines thenature of the trust and it seems to methat the relevant provisions ofthat Act assert the control of theCrown tothe exclusionof any native interests in the land.

95. Under the Land Act 1962, the trustees may take action for the removal oftrespassers, for the protection of the land or forinjury to or misuse of theland(491) s.338(1). They may also, with the approval of the Governor inCouncil, make by-laws for, amongother things, protecting the land fromtrespass, injury or misuse and regulating the use and enjoyment of the landand imposing reasonablefees and charges therefor(492) s.339. The trusteesare also prohibited from permitting any person to occupy the reserved land forany purpose that is contrary to or inconsistent with the purposes for whichthe land was reserved(493) s.350(1)(a). Further, thetrustees may lease thewhole or any part of the land, but only with the prior approval of therelevant Minister(494) s.343(1). Inthis respect it is relevant to note thatthe Governor in Council may, on the recommendation of the Minister, approvethe leasingof the land for a purpose other than the purpose for which theland was reserved(495) s.343A(1) and that, while any rents are generallyto beapplied solely for the purposes of the trust, the Minister does have the powerto apply them for some other purpose(496) s.346. Moreover, the trustees donot have power to sell or transfer the land(497) s.342(1). Finally, theGovernor in Council, by Orderin Council, is empowered to rescind in whole orin part or amend, alter, vary or otherwise modify any Order in Councilreservingand setting apart any Crown land for any public purpose(498)s.334(4). If the Order in Council reserving the land for a public purposeisrescinded by the Governor in Council, the Minister may order the trust to bewound up and any surplus moneys are to be remittedto the Minister to bedisposed of as the Minister may direct(499) s.354(1).

96. These provisions define the parameters of the trust and they do sowithout any reference to any interest in the land on thepart of theinhabitants of the reserve. It is clear that, in establishing a reserve, theCrown is not creating an interest in theland in anyone else which can formthe subject of a fiduciary or trust obligation owed by the Crown to that otherperson or persons. It is merely setting aside Crown land for a particularpurpose. The Crown retains absolute control over the disposition of thatlandand the legislation does not prevent, but expressly enables, the Crown torevoke the reserve, whereupon it once again becomesCrown land within themeaning of s.5 of the Land Act 1962 and so is available for disposal by theCrown as absolute owner just asit was before it was reserved. In dealing withreserved land in this way there is no legislative requirement imposed on theCrownto consider the interests of the inhabitants of the reserve at all.

97. Moreover, it does not appear that the reserve comprising the MurrayIslands or the trust created with respect to those landswas for the benefitof the inhabitants of the Murray Islands to the exclusion of the otheraboriginal inhabitants of the State ofQueensland. It has not proved possibleto locate the actual terms of the proclamation issued in 1882 but the Order inCouncil dated14 November 1912, which reserved the Murray Islands, did so forthe use of "the Aboriginal Inhabitants of the State". Moreover,the Order inCouncil dated 9 September 1939, which placed the reserve under the control oftrustees, did so by reference to the reservein those terms, that is to say,it referred to the reserve as being a reserve for the use of "the AboriginalInhabitants of the State". In The Corporation of the Director of Aboriginaland Islanders Advancement v. Peinkinna(500) (1978) 52 ALJR 286, the PrivyCouncilconsidered the nature of a reserve "for the Benefit of the AboriginalInhabitants of the State, Aurukun" which was placed under thecontrol of theDirector of Native Affairs as trustee. The Privy Council was prepared toassume, without deciding, that a publiccharitable trust arose by reason ofthe Land Act 1962 and the Orders in Council made under it reserving that landand placing itunder the control of a trustee. However, their Lordshipsconcluded that such a trust would be a trust for the benefit of the aboriginalinhabitants of the State as a class and not a trust for the benefit of theaboriginal inhabitants upon the reserve at Aurukun. Thatcase isindistinguishable in all relevant respects from the present one and it may beobserved that a trust to control land for theuse of the aboriginalinhabitants of the State generally does not suggest a trust intended toprotect such communal or individualinterests in the land as may have beenpreviously possessed by the inhabitants of the Murray Islands.

98. There is no doubt that the initial annexation of the Murray Islands wasmotivated in part by a desire on the part of the Crownin right of the Colonyof Queensland to protect the native inhabitants of the islands. Further, itis clear that the policy adoptedby the Queensland legislature towards thenative inhabitants of the Murray Islands and of Queensland in general was oneof protectionof their welfare and, to a certain extent, preservation of theirtraditional way of life(501) See, for example, Pearl-Shell and Beche-de-MerFishery Act 1881 (Q.); Liquor Act 1912 (Q.), s.71(2); Native AnimalsProtection Act 1906 (Q.), s.9(c); Fauna Conservation Act 1952(Q.), s.78;Fisheries Act 1957 (Q.), s.3; Fisheries Act 1976 (Q.), s.5(d);Torres StraitFisheries Act 1984 (Q.). But the measures taken in furtherance of this policyin no way relate to native interests in land and cannot be used to foundafiduciary duty upon the Crown to deal with land in a particular way.

99. In the absence of any native title and in the light of the detailedlegislative provisions which govern the relationship ofthe Crown with theaboriginal inhabitants of the State upon the basis that there is no nativetitle or (if there is a difference)traditional rights in the land, there is,in my view, no foundation for the imposition of a fiduciary duty upon theCrown to dealwith the lands comprising the Murray Islands in a mannerinvolving the recognition of any of the rights which the plaintiffs claim. Ofcourse, it was not suggested, nor could it be, that the Queensland legislaturewhich, subject to any paramount Commonwealth legislation,has plenary power todeal with those lands, is under any fiduciary duty in the exercise of thatpower.

100. The plaintiffs also pursued an argument based on theRacialDiscrimination Act 1975 (Cth). As I have said, under s.334(4) of the Land Act1962 the Governor in Council may rescind an Order in Council reserving andsetting apart any Crown land for any public purpose. The Murray Islands aredeemed to have been so reserved and set apart under suchan Order in Council:s.334(3). Under s.334(1) the Governor in Council may grant in trust any Crownland which, in the opinion ofthe Governor in Council, is or may be requiredfor any public purpose. "Public purpose" includes the benefit of aboriginaland islanderinhabitants or any objects or purposes connected therewith orincidental thereto: s.5. The plaintiffs contend that by virtue oftheseprovisions the Governor in Council may rescind the Order in Council reservingthe Murray Islands for the use of the aboriginalinhabitants of the State andgrant the land in trust for the benefit of the aboriginal and islanderinhabitants of the Murray Islands. The grant, they say, may be to the MurrayIsland Council, which is a body corporate capable of holding land (absolutelyor subjectto trusts) unders.15(3) of theCommunity Services (Torres Strait)Act. To do that, the plaintiffs argue, would be unlawful unders.9(1) of theRacial Discrimination Act.Section 9(1) provides:

"It is unlawful for a person to do any act involving a

distinction, exclusion, restriction or preference based on

race, colour, descent or national or ethnic origin which

has the purpose or effect of nullifying or impairing the

recognition, enjoyment or exercise, on an equal footing,

of any human right or fundamental freedom in the political,

economic, social, cultural or any other field of public

life."

101. The consequences of a grant in trust of the Murray Islands to the IslandCouncil under the Land Act 1962 would include: givingto the Governor inCouncil an authority to exclude certain lands and improvements to the landfrom the grant(502) ss.334C, 334F andto make certain reservations from thegrant(503) ss.334D; an inability on the part of the trustee to lease any partof the land exceptwith the prior approval of the relevant Minister and thenonly on certain conditions including that the term of the lease is nottoexceed seventy-five years(504) ss.343,344; a prohibition upon a lessee fromtransferring or mortgaging the lease or sub-lettingwithout the prior approvalof the Minister(505) s.347; and giving a power to the Minister to cancel alease for breach of its termsby the lessee or where "it is desirable in thepublic interests so to do" without any right to compensation(506) s.348.Further,the Governor in Council may, by Order in Council, declare that landgranted in trust for the benefit of aboriginal or islander inhabitantsshallrevert to the Crown, but only if he is authorized to do so by an Act thatspecifically relates to that land; in such a case,the land reverts to theCrown freed and discharged from the trusts and all encumbrances, estates orinterests whatsoever and maybe dealt with by the Crown as if it had neverbeen granted(507) s.353A(1); see also s.352A which relates to the resumptionof landgranted in trust for the benefit of aboriginal or islander inhabitantswhere that land is approved by an Act for resumption as landsurplus to therequirements of the trust.

102. At the time when argument was heard, a further Act, theAborigines andTorres Strait Islanders (Land Holding) Act 1985 (Q.), permitted land vested inan island council as trustee to be divested and thereupon to become Crown landunder the Land Act1962(508) s.10. This divestiture of land from an islandcouncil was to take place when a "qualified" islander (defined in s.4(1))applied to the council for a lease (of a kind described in s.9 of that Act) ofpart of the land and that application was approvedby the council. TheGovernor in Council was thereupon authorized to grant the lease pursuant tothe Land Act 1962(509) s.9(2). The restrictions imposed by the Land Act 1962on the transfer and mortgaging of leases and on sub-letting were equallyapplicableto leases granted under this Act(510) s.18. The Act furtherstipulated the method by which the annual rent payable under such leaseswasto be determined(511) s.16, the rent being payable to the relevant islandcouncil(512) s.17(1) to be used by that council forthe purposes of the localgovernment of the trust area under its control or otherwise for the benefit ofthat trust area(513) s.17(2).Finally the Act stipulated the grounds on whichthese leases became liable to forfeiture(514) ss.21-24, in which event theland wasto revert to and vest in the relevant council(515) s.27. The systemof granting leases under this Act has, however, been terminatedby theAboriginal and Torres Strait Islander Land (Consequential Amendments) Act 1991(Q.), s.13(516) Section 13 inserted s.33A intothe Aboriginal and TorresStrait Islanders (Land Holding) Act, an Act which came into operation afterhearing argument in this case.

103. It is unnecessary to refer in any more detail to the consequences whichmay follow upon a grant in trust of the land comprisingthe Murray Islands,for the discrimination which the plaintiffs allege unders.9(1) of theRacialDiscrimination Act is the nullificationor impairment of the traditional landrights which they claim in the land. The view which I have expressedis thatany rights inthe land held by the aboriginal inhabitants were extinguishedupon annexation and it follows that the relevantlegislation cannotberegarded as authorizing the nullification or impairment of the enjoyment orexercise of those rights. On thecontrary, on theview that I have taken, thelegislation authorizes the conferring of rights of a kind which the plaintiffsotherwisedo not have.

104. In dealing with this aspect of the plaintiffs' argument as I have, Ihave been able to avoid the problem adverted to in Mabov. Queensland byBrennan, Toohey and Gaudron JJ.(517) (1988) 166 CLR, at p 216 that:

Section 9 (of theRacial Discrimination Act) proscribes

the doing of an act of the character therein mentioned.

It does not prohibit the enactment of a law creating,

extinguishing or otherwise affecting legal rights in or

over land: Gerhardy v. Brown(518)[1985] HCA 11; (1985) 159 CLR 70,

at pp 81, 120-121. It is arguable that

the operation of a law which brings into existence or

extinguishes rights in or over land is not affected bys.9

merely because a consequence of the change in rights is that

one person is free to do an act which would otherwise be

unlawful or another person is no longer able to resist an

act being done. It is not necessary to decide that question

now."

105. The plaintiffs also place reliance upons.10(1) of theRacialDiscrimination Act. That sub-section provides:

"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."

106. As I have said, for the purpose of reaching their conclusion in Mabo v.Queensland the majority assumed the existence of traditionalland rights overthe Murray Islands and it was upon this basis that they determined that theQueensland Coast Islands DeclaratoryAct 1985 (Q.) was inconsistent with theRacial Discrimination Act. The minority considered it inappropriate to allowa demurrerto the defendant's defence upon the assumption of facts yet to beproved by the plaintiff. In the event, I have concluded that thosefacts havenot been proved with the result that, in my view, therewas no inconsistencybetween the Queensland Coast Islands DeclaratoryAct (which, in any event, hassince been repealed by theTorres Strait Islander Land Act 1991 (Q.),s.1.03)and theRacial Discrimination Act. Nor is there any inconsistency between thelatter Act and the provisions of theLand Act 1962which enable a grant intrust tobe made of the lands comprising the Murray Islands.

107. As I have said, since the Court heard this case, a further Act, theTorres Strait Islander Land Act 1991 has come into operation.Under this Actland may be granted in fee simple to trustees to be held for the benefit ofislanders, theirancestors and descendants.The trustees are empowered to dealwith that land in a number of ways and, in particular, to grant a leaseorlicence over the wholeor part of that land to an islander who has aparticular connection with that land under island custom. Provision is alsomade forland to be claimed by an islander or group of islanders on thegrounds, among other things, of customaryaffiliation or historicalassociation, in which case, if the claim is established, and the Ministeragrees, the land may be grantedin fee simple to trusteesto hold for thebenefit of the successful claimants.

108. Finally, the plaintiffs contend that the land comprising the MurrayIslands was not Crown land within the meaning of the CrownLands AlienationAct 1876 (if the reserve was established in 1882) or within the meaning of theLand Act 1910 (if the reserve wasestablished in 1912). According to theplaintiffs, waste land or Crown land must mean land which is genuinely vacantand unoccupiedso that the Crown can take a full possessory title over itbased on occupation which does not displace any other occupation. Theysaythat if land occupied by indigenous peoples, such as the Murray Islands, wereto be treated as waste land or Crown land it wouldresult in those indigenouspeoples becoming trespassers upon annexation. This argument is unsustainable.As I have already stated,waste land designates land that has not beenalienated by the Crown. This is made clear by the definition of "Crown lands"in theLand Act 1910 (s.4). While "Crown lands" are defined in the CrownLands Alienation Act 1876 (s.1) as lands "vested in Her Majesty"this does notmean vested in actual possession, as a matter of fact, but vested in legalpossession. Of course the Crown does notphysically possess waste lands but,as a matter of law, it is considered to possess them so that, for example, itcan bring an actionfor trespass. Land inhabited by an indigenous peoplewhose rights are not recognized by the Crown are therefore waste lands orCrownlands within the meaning of the Crown lands legislation. But the nativeinhabitants do not become trespassers if, as is the casewith the MurrayIslands, those native inhabitants occupy the land with the permission of theCrown. The plaintiffs also contendthat, even if the Murray Islands are Crownland and so capable of being dealt with as such by the Crown, the Crown inright of theState of Queensland had, and still has, no power to deal withland on the Murray Islands (e.g. under the deed of grant in trust legislation)because there was no Imperial grant of power to deal with these lands, asopposed to lands on the mainland. The short answer tothis contention is thatit was the Crown in right of the Colony of Queensland which annexed the MurrayIslands to Queensland underthe authority of Imperial letters patent, laterconfirmed by Imperial legislation. The Crown in right of Queensland had powertodeal with waste lands in that colony and upon annexation the Murray Islandsfell within the ambit of that power.

109. This matter comes before the Court in the form of questions reserved forits consideration pursuant tos.18 of theJudiciary Act 1903 (Cth). The firsttwo of those questions relate to the particular interest of the plaintiffsPassi and Rice in individual parcelsof land. The claim of the plaintiff Mabois no longer pursued. Towards the conclusion of argument, the attention ofthe plaintiffs'counsel was directed to the difficulty of answering the firsttwo questions asked having regard to the findings made by MoynihanJ. whichmay not support the claims made by individuals or families to specific parcelsof land.

110. It was suggested that there may nevertheless be room for argument thatthe plaintiffs exercised traditional rights in the landas members of arelevant group. Accordingly, the plaintiffs reformulated the declarationswhich they sought in the action and itseems appropriate to express myultimate conclusions with respect to the reformulated declarations, ratherthan attempt to answerthe questions referred. For mypart I would refuseeach of the declarations sought. However, the first and second of thosedeclarations incorporate a claim, in the alternative,that the Meriam peopleare, and have been since 1879, entitled as against the whole world to occupy,use and enjoy the Murray Islands. Of course, the plaintiffs and theirpredecessors have, since annexation, been permitted to occupy, use and enjoylands which comprisesome part of the Murray Islands, but they have beenpermitted to do so, not in recognition of any traditional land rights, but asoccupants of a reserve created by the Crown pursuant to legislation. It isbecause I conceive the first and second declarationssought, in the form whichI have described, to be based upon the continued existence of traditional landrights in one form or anotherthat I am of the view that they ought to berefused. As I have said, any traditional land rights which the plaintiffs mayhave hadwere extinguished upon the assumption of sovereignty by the Crownover the Murray Islands and any fiduciary or trust obligation thatmightotherwise have existed in relation to such rights is precluded by the terms ofthe relevant legislation. Accordingly, if traditionalland rights (or at leastrights akin to them) are to be afforded to the inhabitants of the MurrayIslands, the responsibility, bothlegal and moral, lies with the legislatureand not with the courts.

Introduction TOOHEY J. The plaintiffs seek declarations as to theirentitlement and that of the Meriam people as a whole to threeTorres Straitislands - Mer (known also as Murray Island), Dauer (also spelt Dauar andDawar) and Waier - and as to the powers andobligations of the defendant, theState of Queensland, with respect to those islands and the rights of theMeriam people who livethere. The three islands are collectively known as theMurray Islands; I shall refer to them in this judgment simply as "theIslands"(519)For general background, see Hocking, Torres Strait Islanders andAustralian Law, (1987), International Academy of Comparative Law,12thCongress, Session A.1: "The Aborigine in Comparative Law".

The plaintiffs' claim

2. Central to the case is the plaintiffs' claim that they or the Meriampeople are, and have been since prior to annexation by theBritish Crown,entitled to the Islands: (a) as owners (b) as possessors (c) as occupiers or(d) as persons entitled to use and enjoythe Islands. The declarations nowsought give primacy to the rights of the Meriam people rather than to those ofthe individualplaintiffs. Indeed, at the end of the hearing the plaintiff MrMabo, who has since died, no longer asserted any claim on his ownbehalf.

3. The plaintiffs put their claim on three bases. First, that the intereststheir predecessors enjoyed in the Islands prior toannexation survivedacquisition by the British Crown and became a dimension of the common law("traditional title", sometimes referredto as "native title"). Second, thatthose predecessors acquired a possessory title as a consequence of theoperation of the commonlaw in the new colony ("common law aboriginal title").The precise way in which this argument was put will need attention later inthe judgment. Third, that they could establish, as of today, local legalcustomary rights(520) An argument not reliant on the effectof annexation.They said that legal customs exercised by the Meriam people today, thoughdifferent from common law, should prevailso long as certain conditions aremet. The customs must be certain; they must have been exercised since "timeimmemorial" withoutinterruption; they must be reasonable and not oppressiveat the time of their inception; they must be observed as of right and notpursuant to any licence or permission granted by another; and they must not beinconsistent with any statute law(521)Hanasiki v.O.J. Symes (Unreported, HighCourt of the Solomon Islands, 17 August 1951); Bastard v. Smith (1837) 2 M andRob 129[1837] EngR 942; (174 ER 238);Pain v. Patrick (1690) 3 Mod. 289 (87 ER 191);Halsbury's Laws of England, 4th ed., vol.12, par.406.

4. This third basis of claim raises difficult questions with respect to theinterruption of these rights since such a "title" rests,not on factualoccupation or possession, but on the exercise of particular customs.Difficulties also arise in so far as authoritysupporting customary rightsfocuses on specific customs. Entitlement is to enjoy a particular customrather than to continue a wayof life, or occupation, generally(522) Forexample the custom of "Borough English" in which the youngest son, and not theeldest,succeeded to the burgage tenement on the death of his father:Blackstone, Commentaries, 17th ed. (1830), vol.II, p 83. It has becomeunnecessary to pursue these questions. Given my conclusions in regard totraditional title, I need not consider this basis of claimfurther. Thejudgment turns on conclusions as to traditional title though importantquestions are raised by the plaintiffs' claimto a possessory title.

5. The plaintiffs say that their traditional title is good against the wholeworld and that it continues today, "subject to thecapacity of the Defendantto extinguish the same by, or pursuant to clear and plain legislation"(523)Plaintiffs' claim for declaratoryrelief as finally formulated during thehearing: par.1.E.. They say (and the defendant so concedes, while denying theexistenceof any title) that power has not been exercised to extinguish thattitle with respect to the Islands generally. They say furtherthat thedefendant is bound as a trustee or is under a fiduciary duty to recognise andprotect the rights asserted and that the defendantis accountable in law for abreach of that trust or that obligation. As to their possessory title, theplaintiffs contend that italso is good against all the world and say that noaction has been taken by the defendant to extinguish or acquire it.

6. Finally, the plaintiffs seek a declaration that the defendant is notempowered to make a deed of grant in trust in respect ofthe Islands under theLand Act 1962 (Q.) and that any such deed would be unlawful by reason ofss.9and10 of theRacial Discrimination Act 1975 (Cth). Alternatively, they say,such a deed may not be granted except upon payment of proper compensation.

The issues

7. Broadly speaking, the legal issues to be decided by the Court include:the effect of annexation, involving questions of the presumptionof vacancyand the position of the Crown on annexation by settlement; the existence andnature of aboriginal interests which maycontinue after annexation or becreated by operation of the common law on settlement; the capacity of theCrown to extinguish anysuch interests; and the consequences in law of anybreach of trust or fiduciary obligation owed by the defendant to theplaintiffsor to the Meriam people.

8. The two kinds of interest claimed by the plaintiffs have different sourcesand different characteristics, though the two overlapin some ways and thesame set of circumstances, it is said, may give rise to either title. Thefirst interest, traditional title(524)See generally McNeil, Common LawAboriginal Title, (1989) (hereafter "McNeil"), Ch.6, has been the mostcommonly argued in land rightscases; its origin lies in the indigenoussociety occupying territory before annexation. This title is one recognised bythe commonlaw (though what is required to establish that recognition is amatter of contention) but its specific nature and incidents correspondtothose of the traditional system of law existing before acquisition ofsovereignty by the Crown. The second kind of title, commonlaw aboriginaltitle(525) See generally McNeil, Ch.7, has no existence before annexationsince it is said to arise by reason of theapplication of the common law. Notonly its existence but its nature and incidents are determined entirely byprinciples of commonlaw. "Title" is a title based on possession and theconsequences of that status at common law. It would, if made out, amount toafee simple.

9. It will be necessary to examine each form of title at greater length. Butit is important to appreciate that, particularly withrespect to traditionaltitle, the use of the term "title" is artificial and capable of misleading.The rights claimed by the plaintiffson behalf of the Meriam people do notcorrespond to the concept of ownership as understood by the land law ofEngland, developedsince feudal times, and by the later land law of Australia."Title" is no doubt a convenient expression and has the advantage that,whenrecognised by the law of Australia (or Canada, the United States or NewZealand), it fits more comfortably into the legal systemof the colonisingpower. In the case of the Meriam people (and the Aboriginal people ofAustralia generally), what is involved is"a special collective right vestedin an Aboriginal group by virtue of its long residence and communal use ofland or its resources"(526)The Law Reform Commission, Australia, ReportNo.31, The Recognition of Aboriginal Customary Laws, (1986), par.63. Speakinggenerally,traditional or native title is communal and the rights it generatesbelong to the group as a whole: Amodu Tijani v. Secretary, SouthernNigeria(1921) 2 AC 399, at pp 403-404; Calder v. Attorney-General of British Columbia(1973) SCR 313, at p 355; (1973) 34 DLR (3d)145, at p 175; Re Paulette andRegistrar of Titles (No.2) (1973) 42 DLR (3d) 8, at p 27 (reversed on appealon different grounds).

10. At the forefront of the argument is the issue whether such rights in landas were held by indigenous groups survived annexation. There are of courseevidentiary problems that will arise in this regard but they do not affect theprinciple involved. If the matteris seen strictly in terms of aboriginal"title", it is perhaps not surprising that a court may reject such a claim asnot givingrise to a title recognised by the common law. That was theapproach taken by Blackburn J. to the plaintiffs' claim in Milirrpumv.Nabalco Pty. Ltd.(527) (1971) 17 FLR 141. But in truth what the courts areasked to recognise are simply rights exercised byindigenous peoples in regardto land, sufficiently comprehensive and continuous so as to surviveannexation.

11. Before proceeding further, one more point should be noted. While thiscase concerns the Meriam people, the legal issues fallto be determinedaccording to fundamental principles of common law and colonial constitutionallaw applicable throughout Australia. The Meriam people are in culturallysignificant ways different from the Aboriginal peoples of Australia, who inturn differ fromeach other. But, as will be seen, no basic distinction needbe made, for the purposes of determining what interests exist in ancestrallands of indigenous peoples of Australia, between the Meriam people and thosewho occupied and occupy the Australian mainland. Therelevant principles arethe same.

Annexation - its consequences

12. In his judgment Brennan J. has traced the steps leading up to the LettersPatent passed by Queen Victoria on 10 October 1878"for the rectification ofthe Maritime Boundary of the Colony of Queensland, and for the annexation tothe Colony of (certain) Islandslying in Torres Straits, and between Australiaand New Guinea". Pursuant to authority contained in the Letters Patent andTheQueensland Coast Islands Act 1879 (Q.), the Governor of Queensland, on 21July 1879, declared that the islands described in the Schedule to theProclamation (whichincluded the Islands) "shall be annexed to and become partof the Colony of Queensland".

13. If these procedures were ineffective to incorporate the Islands intoQueensland, it must be taken that the Colonial BoundariesAct 1895 (Imp)authorised their incorporation retrospectively(528) Wacando v. TheCommonwealth[1981] HCA 60; (1981) 148 CLR 1.

14. In considering the consequences of the annexation of the Islands, thedistinction between sovereignty and title to or rightsin land is crucial.The distinction was blurred in English law because the sovereignty of theCrown over England derived from thefeudal notion that the King owned the landof that country. It was ownership of the land that produced the theory oftenures, ofobligations owed to the Crown in return for an estate in land.The position of the Crown as the ultimate owner of land, the holderof theradical title, has persisted and is not really in issue in these proceedings.What is in issue is the consequences that flowfrom that radical title.

15. The blurring of the distinction between sovereignty and title to landshould not obscure the fact that(529) McNeil, p 108:

"(t)he former is mainly a matter of jurisdiction, involving

questions of international and constitutional law,

whereas the latter is a matter of proprietary rights,

which depend for the most part on the municipal law of

property. Moreover, acquisition of one by the Crown would

not necessarily involve acquisition of the other."

16. Lord Reid, in Nissan v. Attorney-General(530)[1969] UKHL 3; (1970) AC 179, at pp210-211, after referring to some nineteenthcentury decisionsof Englishcourts, said:

" In my view, none of these cases decides that when the

Crown annexes territory it is entitled to confiscate the

property of British subjects which is in that territory."

17. One thing is clear. The Islands were not terra nullius. Nevertheless,principles applicable to the acquisition of territorythat was terra nulliushave been applied to land that was inhabited. Justification for this extensionhas been sought in variousways, including the extent to which the indigenouspeople have been seen as "civilised" or to be in permanent occupation. Thus,in Cooper v. Stuart(531) (1889) 14 App Cas 286, at p 291 Lord Watsonobserved:

"There is a great difference between the case of a Colony

acquired by conquest or cession, in which there is an

established system of law, and that of a Colony which

consisted of a tract of territory practically unoccupied,

without settled inhabitants or settled law, at the time

when it was peacefully annexed to the British dominions.

The Colony of New South Wales belongs to the latter class."

18. The reference to "peacefully annexed" carries a certain irony in thelight of what we now know. But, in any event, the ideathat land is terranullius because it lacks "settled inhabitants" is a contentious one(532) Theapplication of the doctrine of terranullius to Australia is strongly attackedin Reynolds, The Law of the Land, (1987), passim. In particular, the viewthat a nomadiclifestyle is inconsistent with occupation of land is at oddswith reality. It pays no regard to the reason why people move fromone areaof land to another. Often people move, not because they lack any associationwith the land over which they travel but tofollow the availability of waterand food in a harsh climate. An approach more in accord with reality may befound in the judgmentof the International Court of Justice in Western Sahara(Advisory Opinion). The majority concluded(533) (1975) ICJR 12, at p 39:

"In the view of the Court, therefore, a determination that

Western Sahara was a 'terra nullius' at the time of

colonization by Spain would be possible only if it were

established that at that time the territory belonged to

no-one in the sense that it was then open to acquisition

through the legal process of 'occupation'."

19. The matter was put even more strongly by Vice-President Ammoun in aseparate opinion apparently endorsing the following assessmentby one of theparties(534) ibid., at pp 85-86:

" Mr. Bayona-Ba-Meya goes on to dismiss the materialistic

concept of terra nullius, which led to this dismemberment

of Africa following the Berlin Conference of 1885.

Mr. Bayona-Ba-Meya susbtitutes for this a spiritual notion:

the ancestral tie between the land, or 'mother nature', and

the man who was born therefrom, remains attached thereto,

and must one day return thither to be united with his

ancestors. This link is the basis of the ownership of the

soil, or better, of sovereignty. This amounts to a denial

of the very concept of terra nullius in the sense of a land

which is capable of being appropriated by someone who is

not born therefrom. It is a condemnation of the modern

concept, as defined by Pasquale Fiore, which regards as

terrae nullius territories inhabited by populations whose

civilization, in the sense of the public law of Europe, is

backward, and whose political organization is not conceived

according to Western norms.

One might go still further in analysing the statement

of the representative of Zaire so as to say that he would

exclude from the concept of terra nullius any inhabited

territory. His view thus agrees with that of Vattel, who

defined terra nullius as a land empty of inhabitants."

20. The idea that land which is in regular occupation may be terra nullius isunacceptable, in law as well as in fact. Even theproposition that land whichis not in regular occupation may be terra nullius is one that demandsscrutiny; there may be good reasonwhy occupation is irregular. Rather, interms of Western Sahara (Advisory Opinion), the question is whether, at thetime of colonisation,the land belonged to no-one.

21. The operation of the notion of terra nullius only arises in the presentcase because of its theoretical extension to the Islands. But clearly it canhave no operation. The plaintiffs accept that the Islands were settled byBritain rather than conquered or ceded. But it does not follow thatprinciples of land law relevant to acquisition of vacant land are applicable.The acquisition of sovereigntywas effected, both with respect to otherEuropean colonisers and the indigenous inhabitants, by the acquisition by theBritish Crownof radical title. No more was required or, with respect tooccupied land, possible. Immediately on acquisition indigenous inhabitantsbecame British subjects whose interests were to be protected in the case of asettled colony by the immediate operation of the commonlaw. The Crown did notacquire a proprietary title to any territory except that truly uninhabited.

22. The real question is whether the rights of the Meriam people to theIslands survived annexation. This is not answered by pointingto dicta whichacknowledge that, on settlement, land vested in the Crown(535) See forinstance Attorney-General v. Brown (1847) 1Legge 312, at pp 316-318; RandwickCorporation v. Rutledge[1959] HCA 63; (1959) 102 CLR 54, at p 71; New South Wales v. TheCommonwealth("TheSeas and Submerged Lands Case")[1975] HCA 58; (1975) 135 CLR 337, at pp438-439, irrespective of whether there were indigenousinhabitants.

Traditional title

(i) Existence: Recognition

23. It follows from what has been said that traditional title is notprecluded by the argument that the Crown acquired a proprietaryinterest inall land in the colony on annexation. Previous interests in the land may besaid to survive unless it can be shown thatthe effect of annexation is todestroy them. That is, the onus rests with those claiming that traditionaltitle does not exist(536)See Calder (1973) SCR, at p 375; (1973) 34 DLR(3d),at pp 189-190.

24. In this respect the defendant argued that previously existing aboriginalinterests in ancestral lands continue after annexationonly if they arerecognised by positive executive or legislative acts. This submission issupported by a line of authority includingVajesingji Joravarsingji v.Secretary of State for India(537) (1924) LR 51 Ind App 357, Secretary of Statefor India v. Bai Rajbai(538)(1915) LR 42 Ind App 229, Asrar Ahmed v. DurgahCommittee, Ajmer(539) (1947) 34 AIR(PC) 1. and Tee-Hit-Ton Indians v. UnitedStates(540)[1955] USSC 24; (1955) 348 US 272.

25. In Vajesingji Joravarsingji Lord Dunedin said(541) (1924) LR 51 Ind App,at p 360, referring to the act of state which amountsto acquisition ofsovereignty whether by conquest, cession or settlement:

"In all cases the result is the same. Any inhabitant of the

territory can make good in the municipal Courts established

by the new sovereign only such rights as that sovereign

has, through his officers, recognized. Such rights as he

had under the rule of predecessors avail him nothing."

26. However, a line of authority represented by In re Southern Rhodesia(544)(1919) AC 211, at p 233, Amodu Tijani(545) (1921) 2AC, at pp 407, 410, Guerinv. The Queen(546) (1984) 2 SCR 335, at pp 378-379;(1984) 13 DLR (4th) 321, atp 336, Calder and Delgamuukwv. British Columbia(547) (1991) 79 DLR (4th) 185is more persuasive and should be followed. Thisso called doctrine ofcontinuitywas exemplified by Lord Sumner in the Privy Council in In reSouthern Rhodesia(548) (1919) AC, atp 233:

"(U)pon a conquest it is to be presumed, in the absence of

express confiscation or of subsequent expropriatory

legislation, that the conqueror has respected (private

property rights) and forborne to diminish or modify them".

27. A sovereign can, by a positive act, seize private as well as publicproperty in the act of acquiring sovereignty and the seizureisnon-justiciable(550) Secretary of State in Council of India v. Kamachee BoyeSahaba[1859] EngR 837; (1859) 7 Moo Ind App 476 (19 ER 388). Butseizure of private propertyby the Crown in a settled colony after annexation has occurredwould amount toan illegitimate act ofstate against British subjects since in a settledcolony, where English law applies, thereis no power in the Crown to makelaws,except pursuant to statute. Emergency powers aside, the common lawrequired legislative authorityfor compulsory acquisition ofproperty.Furthermore, the proposition that positive acts of recognition are requiredbefore interestsexist entails the difficultidea that on acquisition ofsovereignty rights disappear, only to spring back to life immediatelyrecognitionoccurs. Even morestartling is the consequence that, immediatelyon annexation, all indigenous inhabitants became trespassers onthe land onwhichthey and their ancestors had lived. That was not a consequence thecommon law dictated; if it were thought tobe, this Court shoulddeclare it tobe an unacceptable consequence, being at odds with basic values of the commonlaw.

28. I conclude therefore that, subject to proof of the relevant interest,traditional title to land is not extinguished by the actof state amounting toannexation but is presumed to continue unless and until lawfully terminated.

(ii) Existence: Requirements of proof

29. Given that traditional title may exist after annexation because it wasnot precluded by Crown ownership of occupied lands andbecause it aroseregardless of positive recognition by the Crown, what is required to provesuch a title? At the outset a distinctionshould be noted between theexistence of traditional title and the nature of the title. These twoquestions dictate different linesof inquiry but they have been blurred insome instances, leading to confusion in the proof required to establish title.

30. Relevant authority has dealt with the question of proof of the existenceof traditional title in different ways. In Englishand Australian decisionstwo requirements have emerged: that the interests said to constitute title beproprietary and that theybe part of a certain kind of system of rules. Bothof these requirements are apparent in In re Southern Rhodesia. There the PrivyCouncil said(551).(1919) AC, at pp 233-234, in relation to the questionwhether the rights of the Matabele and Mashonas (the indigenousinhabitants ofwhat became Southern Rhodesia) survived annexation:

"(I)t was necessary that the argument should go to the

length of showing that the rights, whatever they exactly

were, belonged to the category of rights of private

property ...

The estimation of the rights of aboriginal tribes is

always inherently difficult. Some tribes are so low in

the scale of social organization that their usages and

conceptions of rights and duties are not to be reconciled

with the institutions or the legal ideas of civilized

society. Such a gulf cannot be bridged. It would be idle

to impute to such people some shadow of the rights known

to our law and then to transmute it into the substance of

transferable rights of property as we know them. ... On

the other hand, there are indigenous peoples whose legal

conceptions, though differently developed, are hardly less

precise than our own."

31. Thus traditional title was said to depend on proof of something akin to aprivate proprietary right emanating from a "civilizedsociety". The Court didnot spell out what "institutions or ... legal ideas" were necessary toconstitute such a society but itis clear that approximation to Britishsociety would suffice. The passage implies the possibility of "conceptions ofrights andduties" which, because of their nature (determined by theirsource), do not amount to traditional title. There may be a system ofrules,but not such as to attract the notion of traditional title at common law. Thedistinction echoes that said to exist betweenlaw and custom.

32. In Milirrpum Blackburn J. concluded(553) (1971) 17 FLR, at pp 244-245,262 that no positive doctrine of "communal native title"existed at common lawat the time of annexation. So he did not need to deal with proof of title.But, in order to answer submissionsmade to him, his Honour went on toconsider that question. Based on those submissions, he said that communalnative title involvedproof that the aboriginal interests said to comprise thetitle were "capable of recognition" and that they were "proprietary"(554)ibid., at p 198. In answering the first question, whether the interests werecapable of recognition, Blackburn J. quoted(555) ibid.,at p 264 the passagefrom In re Southern Rhodesia noted earlier in this judgment and then heededcomments made by Viscount Haldanefor the Privy Council in Amodu Tijani(556)(1921) 2 AC, at pp 402-403:

"(I)n interpreting the native title to (the) land ...(t)here

is a tendency, operating at times unconsciously, to render

that title conceptually in terms which are appropriate only

to systems which have grown up under English law. But this

tendency has to be held in check closely."

33. Blackburn J. then considered the distinction made by the Privy Council inIn re Southern Rhodesia, leaving open the questionwhether assessmentaccording to such a scale may be possible, and said(557) (1971) 17 FLR, at p267:

"(T)he social rules and customs of the plaintiffs cannot

possibly be dismissed as lying on the other side of an

unbridgeable gulf. The evidence shows a subtle and

elaborate system highly adapted to the country in which

the people led their lives, which ... was remarkably free

from the vagaries of personal whim or influence. If ever

a system could be called 'a government of laws, and not of

men', it is that shown in the evidence before me."

34. Thus, his Honour recognised the system before him as a system of law(558)ibid., at p 268. However, on the other requirementof proof, that theaboriginal interests be proprietary, the plaintiffs failed. Blackburn J. heldthat the clan's relationship withthe land was not proprietary because itfailed to satisfy the essential elements of a proprietary interest under thecommon law,those elements being: the right to use or enjoy, the right toexclude others and the right to alienate(559) ibid., at pp 272-273.

35. North American courts have taken a different approach to the question ofproof of the existence of traditional title. One ofthe leading discussionsin this regard is to be found in Hamlet of Baker Lake v. Minister of IndianAffairs and Northern Development. There Mahoney J. concluded(560) (1979) 107DLR (3d) 513, at p 542, after an examination of Canadian and United Statesauthorityand a reference to Milirrpum:

" The elements which the plaintiffs must prove to

establish an aboriginal title cognizable at common law are:

1. That they and their ancestors were members of an

organized society.

2. That the organized society occupied the specific

territory over which they assert the aboriginal title.

3. That the occupation was to the exclusion of other

organized societies.

4. That the occupation was an established fact at the time

sovereignty was asserted by England."

36. Hamlet of Baker Lake and like authority may be analysed in the followingway. Ultimately, traditional title has a common lawexistence because thecommon law recognises the survival of traditional interests and operates toprotect them. Proof of existence,therefore, is a threshold question. Thecontent of the interests protected is that which already exists traditionally;the substanceof the interests is irrelevant to the threshold question.Moreover, it would defeat the purpose of recognition and protection ifonlythose existing rights and duties which were the same as, or which approximatedto, those under English law could comprise traditionaltitle; such a criterionis irrelevant to the purpose of protection. Furthermore, the problem whicharises where, for example, theevidence of the claimed traditional right is sovague that there is doubt that it existed, or exists, is different. That isan evidentiaryproblem and the criterion for dealing with it is not theclaimed right's similarity to, difference from, or even incomprehensibilityat, common law. Therefore, inquiries into the nature of traditional title areessentially irrelevant(561) See Calder (1973) SCR,at p 372; (1973) 34 DLR(3d), at p 187. A determination that a traditional right or duty amounts to aproprietary interest, howeverthat is defined, will not reveal the existenceor non-existence of traditional title, except in so far as it indicates thatreasonablycoherent rights and duties were, and are, exercised in an area ofland.

37. The same criticism can be directed at a requirement which distinguishesbetween types of society. In the end such a criterionis concerned with thekind of traditional right or duty, the distinguishing feature being itssource. It presupposes the possibilitythat rights and duties will notconstitute a title even though they are coherent, existent and underlie afunctioning society. Therefore,apart from a prohibition againstdiscriminatory treatment of some indigenous societies, an inquiry into thekind of society fromwhich rights and duties emanate is irrelevant to theexistence of title, because it is inconceivable that indigenous inhabitantsinoccupation of land did not have a system by which land was utilised in a waydetermined by that society. There must, of course,be a society sufficientlyorganised to create and sustain rights and duties, but there is no separaterequirement to prove the kindof society, beyond proof that presence on landwas part of a functioning system. It follows from this discussion thatrequirementsthat aboriginal interests be proprietary or part of a certainkind of system of rules are not relevant to proof of traditional title.

38. In general the approach taken in the North American authority is to bepreferred. So, what is required to prove title?

39. The requirements of proof of traditional title are a function of theprotection the title provides(562) Bartlett, "AboriginalLand Claims at CommonLaw", (1983) 15 University of Western Australia Law Review 293, at p 310. Itis the fact of the presence ofindigenous inhabitants on acquired land whichprecludes proprietary title in the Crown and which excites the need forprotectionof rights. Presence would be insufficient to establish title if itwas coincidental only or truly random, having no connection withor meaning inrelation to a society's economic, cultural or religious life. It is presenceamounting to occupancy which is the foundationof the title and which attractsprotection, and it is that which must be proved to establish title(563) ibid.,at pp 311, 319-320. See now Ontario (Attorney-General) v. Bear IslandFoundation (1991) 83 DLR (4th) 381; Hamlet of Baker Lake (1979) 107 DLR (3d),at p 542; The Queen v. Sparrow (1990) 1 SCR 1075; (1990) 70 DLR (4th) 385.Thus traditional title is rooted in physical presence. That the use of landwas meaningful must be proved but it is to be understood from the point ofview of the members of the society.

(iii) Occupancy of land

40. North American cases have begun to articulate factors which will indicatethis kind of presence on, or use of, land. Any sucharticulation cannot beexhaustive.

41. First, presence on land need not amount to possession at common law inorder to amount to occupancy(564) See Calder (1973) SCR,at p 328; (1973) 34DLR (3d), at p 156. United States and Canadian cases have required proof ofoccupancy by reference to the demandsof the land and society in question "inaccordance with the way of life, habits, customs and usages of the (indigenouspeople) whoare its users and occupiers"(565) Sac and Fox Tribe of Indians ofOklahoma v. United States (1967) 383 F 2d 991, at p 998. In Hamletof BakerLake the Canadian Federal Court held that the Inuit succeeded in showing thatthey occupied their land. Mahoney J. said(566)(1979) 107 DLR (3d), at pp544-545:

"The absence of political structures like tribes was an

inevitable consequence of the modus vivendi dictated by

the Inuit's physical environment. ... Furthermore,

the exigences of survival dictated the sparse, but wide

ranging, nature of their occupation.

...

The nature, extent or degree of the aborigines'

physical presence on the land they occupied, required by

the law as an essential element of their aboriginal title

is to be determined in each case by a subjective test.

To the extent human beings were capable of surviving on

the barren lands, the Inuit were there; to the extent the

barrens lent themselves to human occupation, the Inuit

occupied them."

42. This aspect of occupancy need not be pursued further since the economy ofthe Meriam people on the Islands was, compared withthat described in Hamletof Baker Lake, settled and intensive. It is clear, however, that a nomadiclifestyle is not inconsistentwith occupancy(567) This is not to say that anomadic lifestyle cannot amount to possession at common law: see McNeil, pp202-204.

43. Secondly, it has been said that to amount to occupancy presence on landmust have been established "long prior" to the pointof inquiry(568) AlceaBand of Tillamooks v. United States (1945) 59 F Supp 934, at p 965; affirmed[1946] USSC 126; (1946) 329 US 40. That is necessarilya relative concept. In MilirrpumBlackburn J. was content to approach the plaintiffs' claimas requiring proofof occupancy froma "time in the indefinite past". He rejected the expression"from time immemorial", though usedin the statement of claim, as havingtechnical connotations that were of no relevance to the plaintiffs' case(569)(1971) 17 FLR,at p 152. Blackburn J. thought itnecessary that theplaintiffs prove occupancy from the acquisition of English sovereignty, aviewalso taken by Mahoney J. in Hamletof Baker Lake(570) (1979) 107 DLR (3d), atpp 542, 546. If occupation by an indigenous peopleis an established fact atthe timeof annexation, why should more be required? In any event, in thepresent case, the defendantdid not argue that the plaintiffs failedbecausetheir presence on the Islands was too recent.

44. Thirdly, it was said in United States v. Santa Fe Pacific RailroadCo.(571)[1942] USSC 12; (1941) 314 US 339, at p 345; see also Alcea Bandof Tillamooks (1945)59 F Supp, at p 965:

"If it were established as a fact that the land in question

were, or were included in, the ancestral home of the

Walapais in the sense that they constituted definable

territory occupied exclusively by the Walapais (as

distinguished from lands wandered over by many tribes),

then the Walapais had 'Indian title'". (emphasis added)

45. It may be noted that theAboriginal Land Rights (Northern Territory) Act1976 (Cth) ("theLand Rights Act") speaks in various places of "Aboriginalsentitled by Aboriginal tradition to the use or occupationof ... land, whetheror notthe traditional entitlement is qualified as to place, time,circumstance, purpose or permission"(573)For instance,s.11(1)(a), (1AD)(a),(1AE)(a), (1B)(4); see alsos.71(1). TheLand Rights Act recognises thattraditional occupationmay not be exclusive. It may be, for instance, thatone group is entitled to come on to landfor ceremonial purposes, all otherrights in the land belonging to another group(574) The reports of AboriginalLand Commissionersunder theLand Rights Act containa number of examples thatbear out this observation.

46. It is, of course, ultimately a matter of speculation how long, and inwhat manner, the Meriam people lived on the Islands beforeEuropean contact.However, it seems that the Islands were probably first inhabited by people ofMelanesian origin coming from PapuaNew Guinea(575) Determination of MoynihanJ., vol.1, p 89 and that the Islanders lived by way of a subsistence economyreliant ongardening and fishing. Cultivation was by a slash and burntechnique(576) ibid., pp 76-77. Dwellings, occupied by family groups,werebuilt from bamboo and fenced around(577) ibid., p 96. Moynihan J. said(578)ibid., p 91:

"The islands had been occupied by such people for some

generations."

" Given considerations such as the constraints imposed

by the rugged terrain on what are, in any event, three

small islands, the pressures of population, the elaborate

and complex social organisation of the people and the

importance of gardening from the point of view of

subsistence and socially it would perhaps be surprising

if the Murray Islanders had not, during the period of their

occupation of the Islands, developed ways of controlling

access to and the use of land (in the extended sense) and

the resources it afforded. In any event it seems fairly

safe to assume they brought with them a social organisation

which they adopted (sic) to the conditions on the Islands."

"Murray Islanders have a strong sense of relationship to

their Islands and the land and seas of the islands which

persists from the time prior to European contact. They

have no doubt that the Murray Islands are theirs."

47. All the factors discussed above in support of traditional title areclearly satisfied in the present case. Indeed, the defendantagreed that theMeriam people were present on the Islands before and at the time of annexationand that the Crown in right of Queenslandhas not attempted since then todispossess them. However, the defendant argued that there was no orderedsystem of land tenure beforeannexation which was continued, albeit changed,to the present time. The argument seems to have been that the system of rulesonwhich Meriam society was based prior to European contact was too uncertainto amount to traditional title; and that, after annexation,disputes over landwere resolved by the Island Court which owed little to the pre-contactsituation.

48. The first aspect of the argument rests on such statements by Moynihan J.as(581) ibid., p 172:

"The ultimate determining factor in terms of the control

and disposition of land was simply what was acceptable in

terms of social harmony and the capacity of an individual

to impose his ... will on the community."

49. The only relevance of an argument of uncertainty is if it can be saidthat the rules or practices governing Meriam society wereso capricious andtheir application so inconsistent as to indicate that the Meriam people'spresence on the Islands was coincidentaland random(582) There may in somecircumstances be an argument that a traditional system was so violent orotherwise repressive ofhuman rights as to make adoption by the common lawimpossible: see Bastard v. Smith. But that is not relevant here. On thefindingsof Moynihan J. that is impossible to conclude.

50. An argument to the effect that, regardless of the state of things at thetime of annexation, the Meriam people now do not havetitle because they nolonger exercise "traditional" rights and duties and have adopted European waysalso fails. There is no questionthat indigenous society can and will changeon contact with European culture. Since annexation a school, a hospital, theIslandCourt, the Island Council, a police force and other government agencieshave been introduced to the Islands. Christianity has hada profoundinfluence; so too have changed means of communication. The economy of theIslands is now based on cash from employmentrather than on gardening andfishing(583) Determination of Moynihan J., vol.1, pp 158-159; vol.2, p 26.

51. But modification of traditional society in itself does not meantraditional title no longer exists(584) See Hamlet of BakerLake (1979) 107DLR (3d), especially at pp 527-529. Traditional title arises from the fact ofoccupation, not the occupation of aparticular kind of society or way of life.So long as occupation by a traditional society is established now and at thetime of annexation,traditional rights exist. An indigenous society cannot,as it were, surrender its rights by modifying its way of life(585) In Hamletof Baker Lake aboriginal title was held to exist despite the fact that theInuit had changed from a nomadic to a settled lifestyle: see ibid., at pp524-529. See also Ontario (Attorney-General) v. Bear Island Foundation; RePaulette and Registrar of Titles (No.2) (1973) 42 DLR (3d) 8; Sparrow (1990)1 SCR, at pp 1094-1099; (1990) 70 DLR (4th), at pp 397-401.

52. It follows from what has been said that the Meriam people, represented bythe plaintiffs, had traditional title to the Islandswhich survivedannexation. It is necessary now to consider submissions as to the power of theCrown to extinguish that title.

Extinguishment of traditional title

(i) The power of the Crown to extinguish traditional title

53. The plaintiffs' argument before the Court proceeded on the assumptionthat the Crown had power to extinguish traditional title,at any rate "by, orpursuant to, clear and plain legislation"(586) The precise language employedby counsel for the plaintiffs variedonly little during argument e.g."extinguishable by appropriate clear and plain legislative words"; "assumingthe legislation clearlyand plainly permitted it". Nevertheless, somethingshould be said about the concept of extinguishment.

54. There is precedent for the proposition that the Crown has power toextinguish traditional title(587) Johnson v. McIntosh (1823)21 US 240, at p259; United States v. Santa Fe Pacific Railroad Co.; St Catherine's Millingand Lumber Company v. The Queen (1888)14 AC 46; Tee-Hit-Ton Indians v. UnitedStates (1955) 348 US, at p 279; Hamlet of Baker Lake (1979) 107 DLR (3d), at p549. InMabo v. Queensland (1988) 166 CLR 186, at pp 195, 201, 213-214, thepower to extinguish by legislation consistingof "clear andplain"language,was assumed. But is such a power exercisable only with the consent of thetitleholders (that is,akin to a rightof pre-emption),or is it a powerexercisable unilaterally without account of the traditional titleholders'interests? In what wayis it differentfrom the power in the Crowncompulsorily to acquire any interest in land? Is it compensable? Althoughmost authorityappears toassume a power in the Crown to extinguishtraditional title unilaterally, there is support for the propositionthatconsentis required. It is true that in St Catherine's Milling the PrivyCouncil said(588) (1888) 14 App Cas, at pp 54, 55that the Indians'interestwas "a personal and usufructuary right, dependent upon the good will of theSovereign" and that it existedat the "pleasureof thesovereign". In thatcase however, the Indians' interest was held to arise from the RoyalProclamation of1763. On the otherhand,in Worcester v. Georgia MarshallC.J. said(589) (1832) 31 US 350, at p 370 that the Crown's title comprised"the exclusiverightof purchasing such lands as the natives were willing tosell". And in The Queen v. Symonds Chapman J. said(590)(1847) NZPCC 387,atp 390; Chapman J. continued: "It follows from what has been said, that insolemnly guaranteeing the Nativetitle, and insecuringwhat is called theQueen's pre-emptive right, the Treaty of Waitangi ... does not assert eitherin doctrineor in practiceanythingnew and unsettled.":

"Whatever may be the opinion of jurists as to the strength

or weakness of the Native title ... it cannot be too

solemnly asserted that it is entitled to be respected,

that it cannot be extinguished (at least in times of

peace) otherwise than by the free consent of the Native

occupiers."

55. Furthermore, even assuming the power of extinguishment to be a power toact unilaterally, it is not easy to discern the basisfor such a proposition.There are suggestions in decided cases that it may be a concomitant of anassertion of sovereignty(591) SeeJohnson v. McIntosh (1823) 21 US, at p 253.But to say that, with the acquisition of sovereignty, the Crown has the powerto extinguishtraditional title does not necessarily mean that such a power isany different from that with respect to other interests in land. The Crownhas the power, subject to constitutional, statutory or common lawrestrictions, to terminate any subject's title to propertyby compulsorilyacquiring it(592) See Calder (1973) SCR, at p 353; (1973) 34 DLR (3d), at p174.

56. Another rationale for the special power of the Crown to extinguishtraditional title appears to be that it is part of Britishcolonial policy toprotect the interests of indigenous inhabitants; that the Crown's power is thecorollary of the general inalienabilityof title, which itself constituted ameans of protecting aboriginal people from exploitation by settlers(593) SeeThe Queen v. Symonds(1847) NZPCC , at pp 390-391; Guerin v. The Queen (1984)2 SCR, at pp 383-384; (1984) 13 DLR (4th), at p 340, where reference ismadeto the Royal Proclamation of 1763, applicable to recently-acquired NorthAmerican colonies; note also the Proclamation by GovernorBourke and commentsby Lord Glenelg following John Batman's attempted purchases of land at PortPhillip in 1835, discussed in McNeil,pp 224-225. That traditional title isgenerally inalienable may itself be open to debate(594) Dicta referring toinalienabilitymust be read in the light of ordinances and statutes precludingalienation except by surrender to the Crown. See for instance NireahaTamakiv. Baker (1901) AC 561, at p 579; Attorney-General for Quebec v.Attorney-General for Canada (1921) 1 AC 401, at pp 408, 411;Administration ofPapua and New Guinea v. Daera Guba[1973] HCA 59; (1973) 130 CLR 353, at p 378. This is notthe place for anexamination of alienabilityof land in indigenous societies;no sufficientevidence was offered to the Court in that regard. Butalienability itself is a relativeconcept and there was evidence in at leastone of the claims made under theLand Rights Act ofland being "given" by thefew remainingsurvivors of one group to another group: see the Report by theAboriginal Land Commissioner,Alligator Rivers Stage II land claim,(1981),pars 118, 119. But, in any event, a principle of protection is hardly a basisfora unilateral power in the Crown, exercisablewithout consent. Moreover,inalienability of the title says nothing of the Crown'spower or the nature ofthe title. Rather, itdescribes rights, or restrictions on rights, ofsettlers or other potential purchasers(595)See The Queen v. Symonds (1847)NZPCC, at pp 389-391; McNeil, pp 230-235.

57. Finally, some cases suggest that a power to extinguish traditional titleunilaterally is vested in the Crown as a result ofan inherent quality of thetitle itself. This follows from characterisation of the title as "a personaland usufructuary right"as opposed to a proprietary right(596) St. Catherine'sMilling (1888) 14 App Cas, at p 54; Tee-Hit-Ton Indians v. United States(1955)348 US, at pp 279, 281 ("right of occupancy", not compensable); Calder(1973) SCR, at pp 352-353; (1973) 34 DLR (3d), at pp 173-174("usufructuaryright", but right to compensation suggested), the former being inherentlyweaker and more susceptible to extinguishment. As long ago as 1921 the PrivyCouncil cautioned against attempting to define aboriginal rights to land byreference to the Englishlaw notion of estates. In Amodu Tijani, ViscountHaldane said(597) (1921) 2 AC, at p 403:

"There is a tendency, operating at times unconsciously, to

render (native) title conceptually in terms which are

appropriate only to systems which have grown up under

English law. But this tendency has to be held in check

closely."

58. As discussed earlier, the specific nature of such a title can beunderstood only by reference to the traditional system of rules. An inquiryas to whether it is "personal" or "proprietary" ultimately is fruitless andcertainly is unnecessarily complex. Thewarning in Amodu Tijani has beenheeded in recent cases. For example, in Calder Judson J. said(598) (1973)SCR, at p 328; (1973)34 DLR (3d), at p 156. See also Dickson J. in Guerin(1984) 2 SCR, at p 382; (1984) 13 DLR (4th), at p 339: "It appears to methat there is no real conflict between the cases which characterize Indiantitle as a beneficial interest of some sort, and thosewhich characterize it apersonal, usufructuary right. Any apparent inconsistency derives from thefact that in describing what constitutesa unique interest in land the courtshave almost inevitably found themselves applying a somewhat inappropriateterminology drawnfrom general property law.":

"(T)he fact is that when the settlers came, the Indians were

there, organized in societies and occupying the land as

their forefathers had done for centuries. This is what

Indian title means and it does not help one in the solution

of this problem to call it a 'personal or usufructuary

right'."

59. As I have said, the plaintiffs did not contest the Crown's power toextinguish traditional title by clear and plain legislation. That concessionwas properly made, subject to a consideration of the implications that arisein the case of extinguishment withoutthe consent of the titleholders. Wherethe legislation reveals a clear and plain intention to extinguish traditionaltitle, it iseffective to do so. In this regard traditional title does notstand in a special position, although the canon of construction referredto byLord Atkinson in Central Control Board (Liquor Traffic) v. Cannon BreweryCompany Limited(599) (1919) AC 744, at p 752. Seealso The Commonwealth v.Hazeldell Ltd.[1918] HCA 75; (1918) 25 CLR 552, at p 563 and the decisions there referred tois of equalapplication:

"That canon is this: that an intention to take away the

property of a subject without giving to him a legal right

to compensation for the loss of it is not to be imputed

to the Legislature unless that intention is expressed in

unequivocal terms."

60. It need hardly be said that where an executive act is relied upon toextinguish traditional title, the intention of the legislaturethat executivepower should extend this far must likewise appear plainly and with clarity.

61. It follows that traditional title may not be extinguished by legislationthat does no more than provide in general terms forthe alienation of thewaste lands of the colony or Crown land. That is not to say that thelegislature must identify with specificityparticular interests to beextinguished if the legislative intention is otherwise clear(601) Mabo v.Queensland (1988) 166 CLR, atpp 213-214. Even if a law deals specificallywith land the subject of traditional title, it may take the form of areservationor grant to trustees for the benefit of indigenous people and sobe consistent with the continuance of title. These are all questions,theanswers to which depend upon the terms of the legislation and any relevantcircumstances. Where there has been an alienationof land by the Crowninimical to the continuance of traditional title, any remedy against the Crownmay have been lost by the operationof limitation statutes. And nothing inthis judgment should be taken to suggest that the titles of those to whom landhas been alienatedby the Crown may now be disturbed. Except in the contextof the lease to the London Missionary Society and the lease granted overDauerand Waier (to be discussed), that is not a matter the Court was asked toconsider.

(ii) Has there been any extinguishment?

62. While it is common ground that nothing has been done to extinguish therights of the Meriam people to the Islands generally,there have been sometransactions which were inconsistent with the continuance of traditional titlein respect of the relevant land.

63. The London Missionary Society came to the Murray Islands in or about1871; in 1877 it moved its local headquarters to Mer(602)Determination ofMoynihan J., vol.1, p 99. In 1882 the Queensland Government granted theSociety a special lease of 2 acres on Merfor a term of 14 years(603) ibid.,vol.2, p 12. There were further leases of the land to the Society. In 1914the Society assignedits leasehold interest to the General Secretary of theAustralian Board of Missions. The General Secretary later assigned hisinterestto the trustees of the Board and in 1933 the trustees assigned theirinterest to the Corporation of the Synod of the Diocese of Carpentaria(604)ibid., vol.2, p 25.

64. The plaintiffs made submissions as to the consequences of the lease tothe Society but claimed no relief in respect of whathad occurred. Whether,in the light of the principles discussed in this judgment, the leases grantedin 1882 and subsequently wereeffective to extinguish the traditional title ofthe Meriam people to that land is a question we do not have to answer. It maybethat, since there was a special lease of 2 acres of the Islands, theintention of the legislature to extinguish title was expressedin unequivocalterms. If so, questions arise as to the consequences of that extinguishment.But, in the absence of a claim for particularrelief in respect of the leaseand in the absence of representation on behalf of anyone laying claim to aninterest under any lease,these questions must remain unanswered.

65. In 1931 a lease was granted over the islands of Dauer and Waier for aterm of 20 years for the purpose of establishing a sardinefactory. The leasewas granted to two persons who were not Meriam people(605) ibid., vol.2, p 47.Special conditions attached tothe lease precluded the lessees frominterfering with "the use by the Murray Island natives of their tribal gardensand plantations"or with "the operations of the Murray Island natives who fisharound (the) reefs"(606) ibid., vol.2, pp 48-49. Subsequently theChiefProtector of Aboriginals bought the improvements made on Dauer and the twoislands became part of the reserve again(607) ibid.,vol.2, pp 51-52.

66. Whether that lease was effective to extinguish the traditional title ofthe Meriam people to Dauer and Waier, again is a questionthe Court was notasked to answer and no relief is claimed in regard to that transaction. Inthose circumstances it is unnecessaryto say more about the lease.

(iii) Status of the Islands as Crown land

67. As mentioned earlier, the Islands were annexed to Queensland in 1879,whether by proclamation or, retrospectively, by legislation. By variousstatutes the Islands were "reserved" from sale. Brennan J. has identified therelevant legislative history and it isunnecessary to repeat what his Honourhas said in that regard.

68. The current legislation is the Land Act 1962 (Q.), s.5 of which defines"Crown land" as follows:

"All land in Queensland, except land which is, for the time

being -

(a) lawfully granted or contracted to be granted in

fee-simple by the Crown; or

(b) reserved for or dedicated to public purposes; or

(c) subject to any lease or licence lawfully granted by the

Crown: Provided that land held under an occupation

licence shall be deemed to be Crown land."

69. Section 4 of the Land Act is the repeals and savings provision. Bys.4(15)(a) all appointments of trustees of reserves and allthings lawfullydone under the repealed Acts and in force at the commencement of the 1962statute "shall continue to be of full forceand effect" and be deemed to havebeen done "under the analogous provisions of and for the purposes of thisAct".

70. In consequence, the earlier reservation of the Islands from salecontinued and the Islands are excluded from the definitionof Crown land inthe 1962 statute. In further consequence, there has been no alienation of theIslands by the Crown and there canbe none, while the Islands are reserved fora public purpose. Nothing in the reservation of the Islands through variousstatutesnor the appointment of trustees to control reserved land could amountto an extinguishment of traditional title. Nor did the defendantcontendotherwise.

71. Thus, if the plaintiffs can make good their claim to traditional title tothe Islands, whether on their own behalf or on behalfof the Meriam people,there is nothing in the legislative history of Queensland, at least until theQueensland Coast Islands DeclaratoryAct 1985 (Q.), which is destructive oftraditional title. And, so far as the plaintiffs' title is concerned, thatAct was held tohave been nullified bys.10 of theRacial Discrimination Act1975 (Cth)(608) Mabo v. Queensland.

(iv) Deed of grant in trust

72. As indicated at the outset of this judgment, the plaintiffs seekdeclaratory relief in regard to any deed of grant in trustin respect of theIslands. They say that the defendant is not "empowered" to make such a grantunder the Land Act and that the makingof such a grant would be unlawful byreason ofss.9 and10 of theRacial Discrimination Act. There is analternative claim, namely,that a deed may be granted in respect of theIslands only upon payment of "proper compensation".

73. Section 334(1) of the Land Act empowers the Governor in Council to grantin trust, or by Order in Council to reserve and setapart, any Crown landwhich is or may be required for any public purpose. For reasons already given,the Islands are not Crown landand they would have to become Crown land befores.334(1) could be brought into operation. It would be necessary therefore torescindthe Order in Council creating the existing reserve: s.334(4).

74. Section 353A(1) of the Land Act contains a special provision whereby, inthe case of land granted in trust for the benefit ofAboriginal or Islanderinhabitants, the Governor in Council may, by Order in Council, declare thatthe land shall revert to the Crown. But he may do so only if authorised by anAct of Parliament specifically relating to that land. The effect of such adeclarationis that the land reverts to the Crown "freed and discharged fromthe trusts and all encumbrances, estates or interests whatsoeverand may bedealt with by the Crown as if it had never been granted".

75. If there were a real prospect that the Governor in Council intended tomake a deed of grant in trust in respect of the Islands,it would beappropriate for the Court to determine this aspect of the plaintiffs' claim todeclaratory relief. But there was noevidence to this effect and theSolicitor-General denied that there was any indication of the Governor'sintentions to do so. Inthose circumstances no justification exists formaking a declaration in the terms sought even if the plaintiffs had otherwisemadegood their case for that relief.

76. That case depends upon the operation ofss.9 and10 of theRacialDiscrimination Act. But the questions raised by those sectionsin the presentcontext are not the same questions decided in Mabo v. Queensland andtheycould not be answered without referenceto factual matters, a decision aboutwhich is not before the Court. Nevertheless, theRacial Discrimination Act hasa wider significancewhich is explored towards the end of this judgment.

Fiduciary duty

77. The plaintiffs seek a declaration that:

"the Defendant is under a fiduciary duty, or alternatively

bound as a trustee, to the Meriam People, including the

Plaintiffs, to recognize and protect their rights and

interests in the Murray Islands".

78. The factors giving rise to a fiduciary duty are nowhere exhaustivelydefined(609) Hospital Products Ltd. v. United States SurgicalCorporation[1984] HCA 64; (1984) 156 CLR 41, at pp 68, 96-97, 141-142; Finn, Fiduciary Obligations,(1977), p 1. There are certainkinds of relationshipswhich necessarily entailfiduciary obligations, for example, trustee and beneficiary, company directorandshareholder, principaland agent. But a fiduciary obligation may arise ina variety of circumstances as a result of a particularrelationship. The kindsof relationships which can give rise to a fiduciary obligation are notclosed(610) Hospital Products Ltd.ibid., at pp 68, 96, 102;Tufton v. Sperni(1952) 2 TLR 516, at p 522; English v. Dedham Vale Properties Ltd. (1978) 1WLR 93, atp 110; (1978) 1 All ER 382,at p 398. In Hospital Products Ltd.Mason J. said(611) (1984) 156 CLR, at pp 96-97:

"The critical feature of (fiduciary) relationships is that

the fiduciary undertakes or agrees to act for or on behalf

of or in the interests of another person in the exercise

of a power or discretion which will affect the interests

of that other person in a legal or practical sense. The

relationship between the parties is therefore one which

gives the fiduciary a special opportunity to exercise the

power or discretion to the detriment of that other person

who is accordingly vulnerable to abuse by the fiduciary of

his position."

79. Underlying such relationships is the scope for one party to exercise adiscretion which is capable of affecting the legal positionof the other. Oneparty has a special opportunity to abuse the interests of the other. Thediscretion will be an incident of thefirst party's office or position(612)Weinrib, "The Fiduciary Obligation", (1975) 25 University of Toronto LawJournal 1, at pp 4-8;Guerin (1984) 2 SCR, at p 384; (1984) 13 DLR (4th), atpp 340-341. The undertaking to act on behalf of, and the power detrimentallyto affect, another may arise by way of an agreement between the parties, forexample in the form of a contract, or from an outsidesource, for example astatute or a trust instrument. The powers and duties may be gratuitous and"may be officiously assumed withoutrequest"(613) Finn, Op Cit, p 201; Guerinibid., at p 384; p 341 of DLR

80. The defendant argued that there is no source for any obligation on theCrown to act in the interests of traditional titleholdersand that, given thepower of the Crown to destroy the title, there is no basis for a fiduciaryobligation. This can be answeredin two ways. First, the argument ignoresthe fact that it is, in part at least, precisely the power to affect theinterests of aperson adversely which gives rise to a duty to act in theinterests of that person(614) Hospital Products Ltd. (1984) 156 CLR, atp 97;Weinrib, Op Cit, at pp 4-8; the very vulnerability gives rise to the need forthe application of equitable principles. Thesecond answer is that theargument is not supported by the legislative and executive history ofQueensland in particular and of Australiain general. In the present case, apolicy of "protection" by government emerges from the legislation, examples ofwhich are quotedabove, as well as by executive actions such as the creationof reserves, the removal of non-Islanders from the Islands in the 1880sandthe appointment of a school teacher and an "adviser" in 1892. More generalindications include the stated policy of protectionunderlying thecondemnation of purported purchases of land by settlers from Aborigines as,for example, the John Batman incidentreferred to earlier. And even thegeneral presumption that the British Crown will respect the rights ofindigenous peoples occupyingcolonised territory, as discussed above, itselfindicates that a government will take care when making decisions which arepotentiallydetrimental to aboriginal rights.

81. The defendant also argued that the Crown cannot be a trustee or fiduciaryin the present circumstances because its responsibilitiestowards theIslanders with respect to the reserve are a matter of "governmentaldiscretion", in reliance upon the "political trust"decisions in Kinloch v.Secretary of State for India(615) (1882) 7 App Cas 619 and Tito v. Waddell(No.2)(616) (1977) Ch 106, ratherthan an enforceable equitable obligation. InKinloch Lord Selborne L.C. said(617) (1882) 7 App Cas, at pp 625-626:

"Now the words 'in trust for' are quite consistent with,

and indeed are the proper manner of expressing, every

species of trust - a trust not only as regards those

matters which are the proper subjects for an equitable

jurisdiction to administer, but as respects higher matters,

such as might take place between the Crown and public

officers discharging, under the directions of the Crown,

duties or functions belonging to the prerogative and to

the authority of the Crown. In the lower sense they are

matters within the jurisdiction of, and to be administered

by, the ordinary Courts of Equity; in the higher sense they

are not."

82. Whether the idea of a political or "higher" trust has any utility neednot be considered here because it does not, in any case,apply in the presentcircumstances. Kinloch concerned a specific grant of goods by Royal Warrantto the Secretary of State for Indiain Council "in trust" for armed forcespersonnel. The interest claimed to be held in trust was created expressly bythe Crown itself. If a traditional title exists, it arises as a matter ofcommon law, quite independently of any grant or other action on the partofthe Crown. And if it is extinguishable, then the existence of the power isalso a matter of law, independent of legislation orthe Crown's action.Ultimately the decisions in both Kinloch and Tito v. Waddell (No.2)(618) Thetrust claimed in Tito v. Waddell(No.2) to exist for the benefit of Banabanlandowners, with respect to a fund comprising compensation or royalties paidby Crownlessees, was a question of construction of the Mining Ordinance 1928of the Gilbert and Ellice Islands Colony turned on the constructionof aninstrument to determine whether it created an express trust. The obligationrelevant in the present case arises as a matterof law because of thecircumstances of the relationship.

83. The defendant further relied on Williams v. Attorney-General for NewSouth Wales(619)[1913] HCA 33; (1913) 16 CLR 404. Inthat case, thisCourt held that useby the Crown of land for a Governor's residence in New South Wales didnotdedicate the landfor a public purposeso as to create a trust for the benefitof the public of New South Wales or of the UnitedKingdom, comprisingtheright to have theland continue to be used for that purpose. But the decisionwith respect to the trust questionturned on theimpossibility of specifyingthe interest in the land to which the public were entitled(620) ibid., at pp429, 433-435,467. Thedecision also seems to haveturned, in part, on thelack of specificity of the objects of the claimed trust - that is,the publicof New South Wales or of theUnited Kingdom: see pp 433-435. No suchdifficulty occurs here.

84. In Guerin the Supreme Court of Canada held that the Crown had a fiduciaryduty towards the Indians. Dickson J. (Beetz, Chouinardand Lamer JJ.concurring) said(621) (1984) 2 SCR, at p 376; (1984) 13 DLR (4th), at p 334:

" The fiduciary relationship between the Crown and the

Indians has its roots in the concept of aboriginal, native

or Indian title. The fact that Indian Bands have a certain

interest in lands does not, however, in itself give rise to

a fiduciary relationship between the Indians and the Crown.

The conclusion that the Crown is a fiduciary depends upon

the further proposition that the Indian interest in the

land is inalienable except upon surrender to the Crown."

85. Be that as it may, if the Crown in right of Queensland has the power toalienate land the subject of the Meriam people's traditionalrights andinterests and the result of that alienation is the loss of traditional title,and if the Meriam people's power to dealwith their title is restricted in sofar as it is inalienable, except to the Crown, then this power andcorresponding vulnerabilitygive rise to a fiduciary obligation on the part ofthe Crown. The power to destroy or impair a people's interests in this way isextraordinary and is sufficient to attract regulation by Equity to ensure thatthe position is not abused. The fiduciary relationshiparises, therefore, outof the power of the Crown to extinguish traditional title by alienating theland or otherwise; it does notdepend on an exercise of that power.

86. Moreover if, contrary to the view I have expressed, the relationshipbetween the Crown and the Meriam people with respect totraditional titlealone were insufficient to give rise to a fiduciary obligation, both thecourse of dealings by the Queensland Governmentwith respect to the Islandssince annexation - for example the creation of reserves in 1882 and 1912 andthe appointment of trusteesin 1939 - and the exercise of control over orregulation of the Islanders themselves by welfare legislation - such as TheNativeLabourers' Protection Act of 1884 (Q.), The Torres Strait Islanders Actof 1939 (Q.) under which an Island Court was establishedand a form of "localgovernment" instituted, and theCommunity Services (Aborigines) Act 1984 (Q.)- would certainly create such an obligation.

(ii) Nature of the obligation

87. To say that, where traditional title exists, it can be dealt with andeffectively alienated or extinguished only by the Crown,but that it can beenjoyed only by traditional owners, may be tantamount to saying that the legalinterest in the traditional rightsis in the Crown whereas the beneficialinterest in the rights is in the indigenous owners. In that case the kind offiduciary obligationimposed on the Crown is that of a constructive trustee.In any event, the Crown's obligation as a fiduciary is in the nature of,andshould be performed by reference to, that of a trustee.

88. In Guerin Dickson J. said(623) ibid., at p 376; p 334 of DLR, referringto the Crown's duty towards the Musqueam Indians:

"This obligation does not amount to a trust in the private

law sense. It is rather a fiduciary duty. If, however,

the Crown breaches this fiduciary duty it will be liable

to the Indians in the same way and to the same extent as if

such a trust were in effect."

89. The content of a fiduciary obligation or constructive trust will betailored by the circumstances of the specific relationshipfrom which itarises. But, generally, to the extent that a person is a fiduciary he or shemust act for the benefit of the beneficiaries(625)Hospital Products Ltd.;Finn, Op Cit, p 15. Moreover, this general mandate comprises more particularduties with respect to, first,the procedure by which a fiduciary makes adecision or exercises a discretion and secondly, the content of that decision.On theone hand, a fiduciary must not delegate a discretion and is under aduty to consider whether a discretion should be exercised. Andon the otherhand, a fiduciary is under a duty not to act for his or her own benefit or forthe benefit of any third person(626)Finn, ibid., pp 15-16. The obligation onthe Crown in the present case is to ensure that traditional title is notimpaired or destroyedwithout the consent of or otherwise contrary to theinterests of the titleholders. For example, the Crown could not degazette theIslands, thereby terminating the reserve, or simply alienate the Islandscontrary to the interests of the Islanders; nor could ittake these or anyother decisions affecting the traditional title without taking account of thateffect. If it did, it would bein breach of its duty and liable therefor.

90. The content of the fiduciary obligation in this case will be differentfrom that of an obligation arising as a result of particularaction orpromises by the Crown. For example, in Delgamuukw McEachern C.J. found(627)(1991) 79 DLR (4th), at p 482 the contentof the Crown's fiduciary obligationto be:

"to permit aboriginal people, but subject to the general law

of the province, to use any unoccupied or vacant Crown land

for subsistence purposes until such time as the land is

dedicated to another purpose. The Crown would breach its

fiduciary duty if it sought arbitrarily to limit aboriginal

use of vacant Crown land."

91. A fiduciary has an obligation not to put himself or herself in a positionof conflict of interests. But there are numerousexamples of the Crownexercising different powers in different capacities. A fiduciary obligation onthe Crown does not limit thelegislative power of the Queensland Parliament,but legislation will be a breach of that obligation if its effect is adverseto theinterests of the titleholders, or if the process it establishes doesnot take account of those interests.

Interim summary

92. It is convenient at this point to summarise the conclusions so farreached in this judgment. They are that the traditionaltitle of the Meriampeople survived the annexation of the Islands; that the title is capable ofextinguishment by clear and plainlegislation or by an executive actauthorised by such legislation; that extinguishment would involve a breach ofa fiduciary obligationowed by the Crown to the Meriam people; but thatextinguishment of that title has not occurred. These conclusions accept whatarethe primary aspects of the plaintiffs' case.

93. It should be noted that the plaintiffs seek no more than recognition of afiduciary duty or a trust; they do not ask the Courtto spell out theconsequences of a breach of that duty or trust. In particular they do notseek compensation or damages in respectof any past interference with therights and interests of the Meriam people in the Islands. Whether thereshould be a declaration,even on the terms sought, depends in part upon theoperation of theRacial Discrimination Act. I shall explain what I mean bythislater. It is convenient at this point to turn to the other form of titleclaimed by the plaintiffs.

Common law aboriginal title

(i) The plaintiffs' case

94. The plaintiffs did not argue for an adverse title against the Crown butfor a possessory title by reason of long possession.Such a title must, ofcourse, be shown to exist at the present time to be of use to the plaintiffs.But the inquiry focuses on thepoint of annexation. It must, as was clearfrom the plaintiffs' written submissions, be shown that such a possessorytitle aroseimmediately after annexation and continues today. To succeed, theplaintiffs must show that the Crown never had title to the Islands;that issueconcerns the law at the time of annexation.

95. The plaintiffs' submissions with respect to possessory title may besummarised in this way. The common and statute law of Englandapplied in asettled colony, where applicable to local conditions. English land law appliedin the Colony of Queensland. Accordingto common law then, as now, possessionof land gives rise to a title which is good against all the world except aperson with a betterclaim. Such a possessor is "seised" of the land so thathe or she acquires an estate in the land which is an estate in fee simple.Itis a fee simple because the interest acquired is presumed to be such untilshown otherwise. Therefore, even a wrongful possessoracquires a fee simple(sometimes called a "tortious fee simple")(629) See Pollock and Wright, AnEssay on Possession in the CommonLaw, (1888) (hereafter "Pollock andWright"), p 94, effective against all the world except a person with a betterright. But, inaddition, the title arising from possession is presumed to belawful and by right (that is, it is presumed to be the best right topossession) unless the contrary is proved.

96. According to the plaintiffs' submissions, the Crown could not show that,on acquisition of New South Wales or Queensland, ithad a better claim topossession of occupied land and so the presumption of a fee simple title inthe indigenous possessors of landwas left undisturbed. Such a title wouldhave been held of the Crown, however, which held a radical title to allacquired territory. In order to establish such a possessory title, theindigenous inhabitants would have to prove occupation by their ancestors atthetime of settlement, such that it amounted in law to possession ofparticular areas of land. This, they said, could be proved by referenceto thefindings of Moynihan J.

97. In the absence of argument to the contrary, it may be accepted that NewSouth Wales and subsequently Queensland were settledcolonies. It may also beaccepted that English land law and its two fundamental doctrines, estates andtenures, applied in thesecolonies(630) Attorney-General v. Brown (1847) 1Legge, at p 318, though, as we have seen, Stephen C.J. understood itsapplicationto have a different effect. The issues which arise forconsideration, therefore, are:

(a) the validity of the proposition that possession gives

rise to a presumption of a fee simple title against all

but a better claimant;

(b) the validity of the claim that the Crown was not, at the

time of annexation, a better claimant to possession; and

(c) the question of what, as a matter of law, amounts to

possession of land.

98. As the plaintiffs put their case, there would be no more favourableconsequences flowing from acceptance of their submissionsas to possessorytitle than from acceptance of their submissions as to traditional title.After contending for the existence of apossessory title, the plaintiffsrelied on the same line of argument as they did for traditional title.Significantly, they concededthat a possessory title is extinguishable by"clear and plain" legislation. And the argument as to fiduciary duty andtrust didnot focus on the existence of a possessory title. It may have beentoo great a concession that a fee simple arising from possessionis"extinguishable" in the same way as traditional title. But, given myconclusions as to traditional title and, especially, thoseas to the existenceof a fiduciary obligation on the Crown arising from it and given what followsconcerning theRacial DiscriminationAct, there is no need to express a firmopinion on the plaintiffs' arguments concerning possessory title.

99. Nevertheless, those arguments raised important issues which have not beenexamined before in this area of the law, and somethingshould be said aboutthe principles of law on which they rested. The plaintiffs' case in thisregard owed much to McNeil; so toodoes this portion of my judgment.

(ii) The relationship between possession and title:

Does possession give rise to a presumptive title?

100. "Possession" is notoriously difficult to define(631) See Pollock andWright, pp 1-42; Tay, "The Concept of Possession in theCommon Law:Foundations for a New Approach",[1964] MelbULawRw 17; (1964) 4 Melbourne University Law Review 476but for present purposes it may be saidto be a conclusion of law defining thenatureand status of a particular relationship of control by a person overland. "Title" is,in the present case, the abstract bundle ofrightsassociated with that relationship of possession. Significantly, it is alsousedto describe the group of rights which resultfrom possession but whichsurvive its loss; this includes the right to possession.

101. In the thirteenth century Bracton wrote(632) Bracton on the Laws andCustoms of England, (Thorne Tr.) (1977), vol.III, p 134:

"(E)veryone who is in possession, though he has no right,

has a greater right (than) one who is out of possession

and has no right".

102. One view(639) See Holdsworth, vol.VII, pp 62-64 is that the advent ofejectment represented a fundamental change in the conceptof ownership inEnglish law, involving the idea of absolute title divorced from its radicalattribute, possession. But the otherview(640) See Hargreaves, "Terminologyand Title in Ejectment", (1940) 56 Law Quarterly Review 376; Pollock andWright, pp 93-97;Megarry and Wade, pp 104-105; Asher v. Whitlock (1865) 1 QB,at p 5, which is more persuasive, is that the basic relationship betweenpossession and ownership of land established by the earlier real actions,involving the idea of relative claims to possession, wasmaintained or evenemphasised in the action of ejectment. A successful claim to an interest inland comprised the better claim topossession and its associated rights asbetween the parties.

103. In order to show a title which would defeat the defendant in possession,the plaintiff in ejectment had to prove a right ofentry; the defendant couldrely on possession. Therefore, the plaintiff was put to proof of the strengthof his or her title andcould not rely on the weakness of the defendant'stitle(641) Roe d. Haldane v. Harvey[1769] EngR 17; (1769) 4 Burr 2484, at p 2487[1769] EngR 17; (98 ER 302,atp 304); Goodtitle d. Parker v. Baldwin[1809] EngR 457; (1809) 11 East 488, at p 495 (103 ER1092, at p 1095). The central issue, therefore, in anaction for ejectment,and on which opinionshave differed, was what circumstances gave a right ofentry. Was proof by the plaintiffof mere prior possession sufficient to founda right of entry against the defendant, indicating that possession gave riseto an enforceable"title", or was more required? Didpossession give rise toa title which survived the loss of possession? The relevance of thisquestionis that it points up the natureof the entitlements arising from the merepossession which would, subject to proof, haveexisted immediately onannexation.

104. So long as it is enjoyed, possession gives rise to rights, including theright to defend possession or to sell or to devisethe interest(642) Asher v.Whitlock; Ex parte Winder (1877) 6 ChD 696; Rosenberg v. Cook (1881) 8 QBD162. A defendant in possessionacquires seisin even if possession istortiously acquired. That is, a person in possession has an estate in feesimple in the land;it is this interest on which a defendant in an action forejectment could rely. The disseisee loses seisin and acquires a rightofentry in its stead(643) Wheeler v. Baldwin[1934] HCA 58; (1934) 52 CLR 609, at pp 631-633;Elvis v. Archbishop of York (1619)Hob 315, at p322[1792] EngR 2252; (80 ER 458, at p 464);Pollock and Wright, pp 93-94; Maitland "The Mystery of Seisin" (1886) 2 LawQuarterly Review481, esp.pp482-486. A possessor acquires a fee simpleestate because the fullest estate known to the law is presumed until a lesserestateis proved(644) Wheeler v. Baldwin (1934) 52 CLR, at p 632. And, in thecircumstances under consideration, there is no possibilityof a leaseholdestate at the time of annexation or of some other lesser estate. Applied tothese circumstances, prima facie all indigenousinhabitants in possession oftheir land on annexation are presumed to have a fee simple estate.

105. But what does English land law have to say if possession of land islost? The seisin and fee simple enjoyed as a result ofpossession would alsobe lost because each successive possessor must enjoy the rights directlyassociated with possession. Accordingto this analysis, the last possessoronly in any succession would enjoy the entitlements. If the Crowndispossessed an indigenouspeople, its title arising from possession would bethe best claim. This was the effect of Holdsworth's analysis of land law. Heconcluded that proof of prior possession was insufficient in itself to providea right of entry in the plaintiff against a defendantwho was a merepossessor(645) Holdsworth, vol.VII, pp 61-68; Stokes v. Berry[1795] EngR 3275; (1699) 2 Salk421 (91 ER 366); Doe d. Wilkins v. Marquisof Cleveland (1829) 9 B. and C. 864[1829] EngR 57; (109 ER 321). That is, possession of itself gives rise to no title whichsurvives dispossession.

106. The better understanding is, I think, that if no other factors come intoplay, then, regardless of the length of time, as betweenmere possessors priorpossession is a better right(646) Allen v. Rivington[1845] EngR 2; (1670) 2 Wms Saund 111(85 ER 813); Doe d. Smith and Paynev. Webber (1834) 1 AD. and E 119 (110 ER1152); Doe d. Hughes v. Dyeball(1829) M.and M. 346 (173 ER 1184); Asher v.Whitlock; Perryv. Clissold; Oxford Meat Co Pty. Ltd. v. McDonald (1963) 63SR(NSW) 423;Spark v. Whale Three Minute Car Wash (1970) 92 WN (NSW)1087;Allen v. Roughley; Wheeler v. Baldwin (1934) 52 CLR, at pp 624, 632-633;Pollock and Maitland, p 46. Possession is protectedagainst subsequentpossession by a prima facie right of entry.

107. The proposition that possession of itself gives rise to a right in theplaintiff to recover possession, if lost, is supportedby principle. Inlosing possession, a plaintiff has lost the rights associated with possession,including the right to defend possessionas well as an estate in the land.But nothing has upset the presumption that the plaintiff's possession, andtherefore his or herfee simple, was lawfully acquired and hence good againstall the world. "Possession is prima facie evidence of seisin in feesimple"(647)Peaceable d. Uncle v. Watson[1811] EngR 375; (1811) 4 Taunt 16, at p 17 (128 ER232, at p 232); Wheeler v. Baldwin (1934) 52 CLR, at p 632; see alsoDoe d.Stansbury v. Arkwright(1833) 5 Car. and P 575[1833] EngR 481; (172 ER 1105); Denn d. Tarzwellv. Barnard[1777] EngR 3; (1777) 2 Cowp 595 (98 ER 1259);Asher v. Whitlock (1865) 1 QB, at p6; Allen v. Roughley (1955) 94 CLR, at p 108. Without evidenceto thecontrary, nothing hasdisplaced the presumption arising from proof of theplaintiff's possession that he or she had lawfultitle amounting to a feesimple. Thus, although a dispossessed plaintiff in ejectment must prove thestrength of his or her owntitle and cannot rely on the weaknessof thedefendant's title, the presumption of lawfulness arising from prior possessionis positiveevidence in that regard(648) cf.note (a) in Allen v. Rivington(1670) 2 Wms Saund, at p 111 (85 ER, at p 813).

108. It follows from this, however, that a person's title arising from priorpossession can be defeated either by a defendant showingthat he or she (oranother person, in so far as it undermines the plaintiff's claim) has abetter, because older, claim to possessionor by a defendant showing adversepossession against the person for the duration of a limitation period.

109. In sum, English land law, in 1879 and now, conferred an estate in feesimple on a person in possession of land enforceableagainst all the worldexcept a person with a better claim. Therefore, since the Meriam people becameBritish subjects immediatelyon annexation, they would seem to have thenacquired an estate in fee simple. This is subject to the question whether theMeriampeople could be said to be in possession. The question then arises -does the Crown have a better title? Put another way, did thedefendant have abetter claim to possession when it acquired sovereignty in 1879 or 1895?

(iv) Did the Crown have a better claim to possession?

110. The defendant argued that upon annexation the Crown became the absoluteowner of and was, in law, in possession of the Islandsand that this precludesany possessory title in the plaintiffs. Furthermore, it says, since 1882 thepossession of the plaintiffsand their predecessors in title (if any) has, inlaw, been attributable to the fact that the Crown has permitted them to occupyareserve created for the benefit of Aboriginals and of Islanders of theState. It follows, so the argument runs, that the plaintiffs'possession nowcannot constitute good title against the State of Queensland.

111. The position of the Crown resulting from annexation was discussedearlier in this judgment. There is no foundation for theconclusion that byannexation the Crown acquired a proprietary title or freehold possession ofoccupied land. It acquired a radicaltitle only. This may dispose of thedefendant's answer. However, it should be considered further in the context ofEnglish land lawand the doctrine of tenures.

112. As McNeil observes(649) McNeil, p 85:

"The Crown must prove its present title just like anyone else."

113. However, the effect of the fiction of past possession by the Crown is tosecure the paramount lordship or radical title ofthe Crown which is necessaryfor the operation of feudal land law. And since fictions in law are onlyacknowledged "for some specialpurpose"(652) Needler v. Bishop of Winchester(1614) Hob 220, at p 222[1792] EngR 49; (80 ER 367, at p 369); Mostyn v. Fabrigas[1774] EngR 104; (1774) 1Cowp 161,at p 177[1774] EngR 104; (98 ER 1021, at p 1030); Anon., Considerations on the Lawof Forfeitures, for High Treason, 4th ed. (1775), pp 64-65, citedin McNeil,p84, that should be taken to be the extent of the fiction. So far as the systemof tenures is concerned, on which Englishland lawis based, no more isrequired.

114. Furthermore, the fiction of a lost Crown grant(653) The idea of apresumption of a Crown grant to make good a title where possessionis provedis referred to in Doe d. Devine v. Wilson in the Privy Council on appeal fromNew South Wales: (1855) 10 Moo 502, at pp523-528[1855] EngR 708; (14 ER 581, at pp 589-591)answers the fiction of original Crown ownership and in so doing protectstitleholders. As McNeilpointsout(654) McNeil, p 84:

"The Crown cannot, on the strength of its fictitious

original title, require a person who is in possession of

land to prove his right by producing a royal grant, for

in most cases no grant exists. The grant is deemed in law

to have been made, if not to a predecessor of the present

possessor, then to someone else."

115. Therefore, if the fiction that all land was originally owned by theCrown is to be applied, it may well be that it cannot operatewithout alsoaccording fictitious grants to the indigenous occupiers.

(v) Possession

116. Possession is a conclusion of English law, a law alien to indigenousinhabitants before annexation. Therefore, before annexationthe Meriam peoplewould not have been in possession. Occupation on the other hand is a questionof fact. In some cases the personin occupation is not the possessor of land,for example, where he or she is an agent of the possessor. But it may bepresumed, inthe absence of circumstances which show possession is in another,that the occupier of land is also in possession(655) Pollock andWright, p 20;Doe d. Stansbury v. Arkwright. As we have seen, the Crown could not show ithad possession of occupied land afterannexation.

117. At common law conduct required to prove occupation or possession willvary according to the circumstances including, for example,whether theclaimant enters as a trespasser or as of right(656) Stanford v. Hurlstone(1873) LR 9 Ch App 116. And the nature of theland will to a large extentdictate the use that might be made of it. For example, conduct amounting topossession will be differentin relation to a dwelling and to uncultivatedland(657) Lord Advocate v. Lord Lovat (1880) 5 App Cas 273, at p 288; Johnstonv. O'Neill(1911) AC 552, at p 583; Kirby v. Cowderoy (1912) AC 599, at pp602-603. Some land is barren and unproductive so that it cannotsustainpeople all the year round. It may be necessary for occupiers to seek waterand sustenance elsewhere for part of the year,returning to "their" land assoon as it is possible.

118. These are matters which are discussed at some length by McNeil(658)McNeil, pp 196-204. It is unnecessary to pursue evidentiarymatters in thepresent case because the nature of the occupation of the Islands by the Meriampeople, already discussed in relationto traditional title, points clearlyenough to possession according to English law.

119. The defendant argued that the occupation enjoyed by the Meriam peopletoday is by permission from the Crown, due to the creationof a reserve in1882, and therefore cannot amount to possession in the relevant sense. Inanswer to this, first, since occupationby the Meriam people is, and was,apparent, the onus lies on the defendant to show possession is not in theoccupiers. Secondly,there is no documentary evidence to prove the 1882reserve. Assuming for the defendant that it was created, if annexationoccurredin 1879 the reserve would amount to dispossession, unless thedefendant can show that it and not the Meriam people acquired the righttopossession on annexation. Subject to the limitation of actions and thequestion whether possession by the Crown was adverse,the Meriam people maywell be entitled to recover possession according to the principles discussedabove. If annexation occurredin 1895, the Crown in right of Queensland mayhave prevented the Meriam people acquiring possession on annexation. But itis unlikelythat the creation of the reserve in 1882, or subsequently in 1912,affected the Meriam people's common law possession since thatdid not diminishenjoyment but ensured it remained with the people.

(vi) Possessory title - conclusions

120. It follows from this analysis that the Meriam people may have acquired apossessory title on annexation. However, as I havesaid, the consequenceshere are no more beneficial for the plaintiffs and, the argument having beenput as an alternative, it isunnecessary to reach a firm conclusion. In anyevent, it is unlikely that a firm conclusion could be reached since somematters,the creation of the reserve for example, were not fully explored.

Racial Discrimination Act

121. The effect of this judgment is that the traditional title of the Meriampeople survived annexation. Anything done by the defendantconstitutinginterference with that title would, on the view I have taken, be a breach of afiduciary obligation owed by the defendantto the Meriam people. Earlier inthis judgment I have referred to possible implications of theRacialDiscrimination Act; I shouldnow explain what I mean.

122. Ordinarily, land is only acquired for a public purpose on payment ofjust terms, whatever may be the precise statutory languageemployed(659) Seefor instanceLands Acquisition Act 1989 (Cth),Pt VII;Land Acquisition (JustTerms Compensation) Act 1991 (N.S.W.),Pt 3;Land Acquisition and CompensationAct 1986 (Vict),Pt 3;Acquisition of Land Act 1967 (Q.),Pt IV;LandAcquisition Act 1969 (S.A.),Pt IV;Public Works Act 1902 (W.A.),Pt III;Lands Resumption Act 1957 (Tas.), Pt IV; Lands Acquisition Act 1978 (N.T.), PtVII. If the defendant sought to interfere with theMeriam people's enjoymentof the Islands which their traditional title gives them and failed to do so onjust terms, a question ariseswhether that action would be in contravention ofss.9 or10 of theRacial Discrimination Act.

123.Section 9 relevantly provides:

" (1) It is unlawful for a person to do any act

involving a distinction, exclusion, restriction or

preference based on race, colour, descent or national or

ethnic origin which has the purpose or effect of nullifying

or impairing the recognition, enjoyment or exercise, on an

equal footing, of any human right or fundamental freedom

in the political, economic, social, cultural or any other

field of public life.

...

(2) A reference in this section to a human right or

fundamental freedom in the political, economic, social,

cultural or any other field of public life includes any

right of a kind referred to in Article 5 of the

Convention."

124.Section 10 reads:

" (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 subsection (1) to a right includes

a reference to a right of a kind referred to in Article 5

of the Convention.

(3) Where a law contains a provision that:

(a) authorizes property owned by an Aboriginal or a

Torres Strait Islander to be managed by another person

without the consent of the Aboriginal or Torres Strait

Islander; or

(b) prevents or restricts an Aboriginal or a Torres

Strait Islander from terminating the management by

another person of property owned by the Aboriginal or

Torres Strait Islander;

not being a provision that applies to persons generally

without regard to their race, colour or national or ethnic

origin, that provision shall be deemed to be a provision in

relation to which subsection (1) applies and a reference in

that subsection to a right includes a reference to a right

of a person to manage property owned by the person."

125. In Mabo v. Queensland Brennan, Toohey and Gaudron JJ. said ofs.9(660)(1988) 166 CLR, at p 216:

"Section 9 proscribes the doing of an act of the

character therein mentioned. It does not prohibit the

enactment of a law creating, extinguishing or otherwise affecting

legal rights in or over land: Gerhardy v. Brown(661)[1985] HCA 11; (1985) 159

CLR 70, at pp 81, 120-121. It is arguable that the operation of a

law which brings into existence or extinguishes rights in or over

land is not affected bys.9 merely because a consequence of the

change in rights is that one person is free to do an act which

would otherwise be unlawful or another person is no longer able to

resist an act being done."

126. But, as the judgment continued,s.10 relates to the enjoyment of aright, not to the doing of an act and the right referredto ins.10(1) neednot be a legal right. Rights referred to in Art.5 of the InternationalConvention on the Elimination of All Formsof RacialDiscrimination, theConvention referred to ins.10(2), include:

"(d)(v) The right to own property alone as well as in

association with others;

(vi) The right to inherit."

127. The question here is whether extinguishment of the traditional title ofthe Meriam people without the compensation providedfor in theAcquisition ofLand Act 1967 (Q.) means that, by reason of a law of Queensland, persons of aparticular race, colour or national or ethnic origin do not enjoya right thatis enjoyed by persons of another race, colour or national or ethnic origin orenjoy a right to a more limited extentthan those persons. If the traditionaltitle of the Meriam people may be extinguished without compensation, they donot enjoy a rightthat is enjoyed by other titleholders in Queensland or, atthe least, they enjoy a right to a more limited extent. A law which purportedto achieve such a result would offends.10(1) of theRacial Discrimination Actand in turn be inconsistent with the Act within themeaning ofs.109 of theConstitution. TheRacial Discrimination Act would therefore prevail and theproposed law would be invalid to the extent of the inconsistency.

Conclusion

128. While this action raises questions of great importance, the answerswhich it is possible to give to those questions necessarilyspeak in generalterms rather than deal with particular aspects of the traditional title of theMeriam people. This is not a criticismof the way in which the plaintiffs'claim was formulated; it is simply a recognition that the claim fordeclaratory relief does speakin general terms. Consistent with the generalnature of the claim made and the reasons underlying this judgment, I wouldmake adeclaration in the following terms:

1. Upon the annexation of the Murray Islands to Queensland, the

radical title to all the land in those islands vested in the

Crown in right of Queensland.

2. The traditional title of the Meriam people to the Murray Islands,

being their rights to possession, occupation, use and enjoyment

of the Islands, survived annexation of the Islands to Queensland

and is preserved under the law of Queensland.

3. The traditional title of the Meriam people to the land in the

Islands has not been extinguished by subsequent legislation or

executive act and may not be extinguished without the payment of

compensation or damages to the traditional titleholders of the

Islands.

4. The land in the Murray Islands is not Crown land within the

meaning of that term in s.5 of the Land Act 1962 (Q.)

129. For the reasons that appear in this judgment, I would not make anydeclaration as to the consequences of the lease to the LondonMissionarySociety in 1882 and the consequences of the lease granted over Dauer and Waierin 1931. It may be appropriate to grantliberty to apply in respect of each ofthose matters if any of the parties seeks an order to this effect.

ORDER

(1) declare that the land in the Murray Islands is not Crown land withinthe meaning of that term in s. 5 of the Land Act 1962(Q.);

(2) putting to one side the Islands of Dauer and Waier and the parcel ofland leased to the Trustees of the Australian Board ofMissions and thoseparcels of land (if any) which have validly been appropriated for use foradministrative purposes the use of whichis inconsistent with the continuedenjoyment of the rights and privileges of the Meriam people under nativetitle, declare that theMeriam people are entitled as against the whole worldto possession, occupation, use and enjoyment of the lands of the MurrayIslands;

(3) declare that the title of the Meriam people is subject to the power ofthe Parliament of Queensland and the power of the Governorin Council ofQueensland to extinguish that title by valid exercise of their respectivepowers, provided any exercise of those powersis not inconsistent with thelaws of the Commonwealth.