• Any

ORDER

DECISION

(i) A declaration that all lands and waterways within the

continent of Australia presently occupied traversed and/or

used by the aboriginal people for the purposes of habitation,

hunting, food gathering, fishing, tribal ceremonial or

religious usage and/or tribal burial are and shall remain at

the absolute command of the aboriginal people free from

interference at the suit of the Defendants or either of them

or any person or corporation claiming thereunder whether

under colour of law or otherwise.

(ii) A declaration that all legislation of the first

named Defendant allowing permitting or facilitating the

transfer of land or mining is invalid in so far as it

interferes with the religious rights of the Plaintiff and the

aboriginal community and nation.

(iii) An injunction restraining the first named Defendant

from authorising any mining or other activity which

interferes with the proprietory (sic) and/or possessory

rights and/or religious rights of the aboriginal people

unless and until internationally recognised arrangements are

made for the transfer of such rights as may be necessary for

such mining.

(iv) An order against the first named and second named

Defendants for compensation to be made to the aboriginal

people and nation and to such individuals and tribes as have

been deprived of their proprietory and/or possessory and

other rights in land and religious rights and for

compensation for interference with their culture, religion,

customs, language and way of life which they would have

otherwise enjoyed.

(v) Costs.

(vi)Such further or other order as the Court thinks fit.

3. As a further or alternative Statement of Claim the Plaintiff furthersays:

20A. The Plaintiff repeats each of the allegations made

in paragraphs 1A, 1B and 1 hereof.

(or 8X)21A. In 1770 Captain James Cook in 1788 Captain

Arthur Phillip and others made claims in respect of the

territory now known as Australia on behalf of King George

III and his heirs and successors. These claims

established in the continent now known as Australia the

laws, customs, benefits and usages of the Common Law.

(or 4X) and (5X) (6X & 7X) 22A. The Plaintiff repeats

each of the allegations made in paragraphs 3C, 3D, 4A,

5A, 6A and 7A.

8X (1), 9X, 10X, 11X. The Common Law established by the

proclamations set out in paragraph 21A hereof entitled

the Plaintiff and the aboriginal people to the

continuation of the proprietary and/or possessory and

other rights which they had prior to 1770 unless these

are taken away by bilateral treaty, lawful compensation

and/or lawful international intervention.

12X. On and after the 26th day of January, 1788 when

Captain Arthur Phillip landed at Sydney Cove the said Captain

Phillip and others including the servants and agents of the

first and second named Defendants and persons claiming

through and under them unlawfully and contrary to the common

law dispossessed certain of the aboriginal people of certain

of their rights, privileges, interests, claims and

entitlements in respect of their lands. The Plaintiff and

certain of the aboriginal people have therefore lost the

benefits of their common law rights in the said lands and

have suffered in their culture, religion, customs, language

and way of life.

14X. Since the proclamations aforesaid the first named

Defendant has legislated to allow and permit the plundering

of the territory of the continent of Australia of its

minerals and oil resources so that the complete destruction

of certain fuels and Minerals being part of lands of

religious significance to the said aboriginal people and

nation is imminent.

15X. The first named Defendant by its servants and agents

has legislated to permit the mining and export of that

mineral known as uranium part of lands of religious

significance from time immemorial to the said aboriginal

nation contrary to the rights, privileges, interests, claims

and entitlements including religious entitlements of the said

aboriginal people and aboriginal community and nation.

13X. As and from the date of Federation on or about the

year 1900 the first named Defendant has purported to exercise

sovereignty over the continent of Australia. From the same

date the first named Defendant has had the obligation not to

prohibit the free exercise of any religion but yet the said

first named Defendant has legislated to deprive the Plaintiff

and the aboriginal community and nation of his and its

rights, privileges, interests, claims and entitlements in

part and in whole from time to time including his and its

rights to freely practice his and its religion to his and its

hurt, degradation and humiliation.

4. And the Plaintiff claims:

(i) A declaration that all lands and waterways within the

Commonwealth of Australia presently occupied traversed and/or

used by the aboriginal people for the purposes of habitation,

hunting, food gathering, fishing, tribal ceremonial or

religious usage and/or tribal burial are and shall remain at

the absolute command of the aboriginal people free from

interference at the suit of the Defendants or either of them

or any person or corporation claiming thereunder whether

under colour of law or otherwise.

(ii) A declaration that all legislation of the first

named Defendant allowing permitting or facilitating the

transfer of land or mining is invalid in so far as it

interferes with the religious rights of the Plaintiff and the

aboriginal community and nation.

(iii) An injunction restraining the first named Defendant

from authorising any mining or other activity which

interferes with the proprietary and/or possessory rights

and/or religious rights of the aboriginal people unless and

until internationally recognised arrangements are made for

the transfer of such rights as may be necessary for such

mining.

(iv) An order against the first named and second named

Defendants for compensation to be made to the aboriginal

people and nation and to such individuals and tribes as have

been deprived of their proprietary and/or possessory and

other rights in land and religious rights and for

compensation for interference with their culture, religion,

customs, language and way of life which they would have

otherwise enjoyed.

(v) Costs.

(vi) Such further or other order as the Court thinks fit.

5. As a further or alternative Statement of Claim the Plaintiff furthersays:

1M. The Plaintiff repeats each of the allegations made in

paragraphs 1A, 1B and 1 hereof.

2-3M. In 1770 Captain James Cook, in 1788 Captain Arthur

Phillip and others made proclamations amounting to claims

of conquest of what is now known as the continent of

Australia on behalf of King George III and his heirs and

successors.

4M, 5M, 6M & 7M. The Plaintiff repeats each of the

allegations made in paragraphs 3C, 3D, 4A, 5A, 6A and 7A.

8M. On conquest the radical title in the land vested in

King George III but subject to the rights of occupancy

and proprietory (sic) and/or possessory rights of the

aboriginal people and nation.

9M. After the conquest aforesaid the aboriginal people

and nation retained their rights, privileges, interests,

claims and entitlements in respect of their lands unless and

until these are taken away by specific act of prerogative.

No such specific act of prerogative was ever exercised.

12M. On and after the 26th day of January, 1788 when

Captain Arthur Phillip landed at Sydney Cove the said Captain

Phillip and others including the servants and agents of the

first and second named Defendants and persons claiming

through and under the first and second named Defendants

unlawfully and contrary to the common law dispossessed

certain of the aboriginal people of certain of their rights,

privileges, interests, claims and entitlements in respect of

their lands. The Plaintiff and certain of the aboriginal

people have therefore lost the benefits of their common law

rights in the said lands and have suffered in their culture,

religion, customs, language and way of life.

14M. Since the claims of conquest aforesaid the first

named Defendant has legislated to allow and permit the

plundering of the territory of the continent of Australia of

its minerals and oil resources so that the complete

destruction of certain fuels and minerals being part of lands of

religious significance belonging to the said aboriginal people

and nation is imminent.

15M. The first named Defendant has legislated to permit

the mining and export of that mineral known as uranium

belonging to and being part of lands of religious

significance from time immemorial to the said aboriginal

nation contrary to the rights, privileges, interests, claims

and entitlements including religious entitlement of the said

aboriginal people and aboriginal community and nation.

13M. As and from the date of Federation on or about the

year 1900 the first named Defendant has purported to exercise

sovereignty over the continent of Australia. From the same

date the first named Defendant has had the obligation not to

prohibit the free exercise of any religion but yet the said

first named Defendant has legislated from that date to

deprive the Plaintiff and the aboriginal community and nation

to his and its rights, privileges, interests, claims and

entitlements in part and in whole from time to time including

his and its rights to freely practice his and its religion to

his and its hurt, degradation and humiliation.

6. And the Plaintiff claims:

(i) A declaration that all lands and waterways within the

continent of Australia presently occupied traversed and/or

used by the aboriginal people for the purposes of habitation,

hunting, food gathering, fishing, tribal ceremonial or

religious usage and/or tribal burial are and shall remain at

the absolute command of the aboriginal people free from

interference at the suit of the Defendants or either of them

or any person or corporation claiming thereunder whether

under colour of law or otherwise.

(ii) A declaration that all legislation of the first

named Defendant allowing permitting or facilitating the

transfer of land or mining is invalid in so far as it

interferes with the religious rights of the Plaintiff and the

aboriginal community and nation.

(iii) An injunction restraining the first named Defendant

from authorising any mining or other activity which

interferes with the proprietory (sic) and/or possessory

rights and/or religious rights of the aboriginal people

unless and until internationally recognised arrangements are

made for the transfer of such rights as may be necessary for

such mining.

(iv) An order against the first named and second named

Defendants for compensation to be made to the aboriginal

people and nation and to such individuals and tribes as have

been deprived of their proprietory (sic) and/or possessory

and other rights in land and religious rights and for

compensation for interference with their culture, religion,

customs, language and way of life which they would have

otherwise enjoyed.

(v) Costs.

(vi) Such further or other order as the Court thinks fit.

23A. On November 2nd, 1976 members of the aboriginal nation

including the Plaintiff planted their national flag on the

beach at Dover, England, in the presence of witnesses and

natives of the territory of the second named Defendant and

proclaimed sovereignty on behalf of the aboriginal nation

over all of the territory of the second named Defendant,

namely the United Kingdom of Great Britain and Northern

Ireland. On the 9th day of April, 1977 the aboriginal nation

confirmed this sovereignty over its lands, country and

territory known as the Commonwealth of Australia by planting

its flag in the presence of witnesses at Kurnell.

7. And the Plaintiff claims:

(i) A declaration as to the lawfulness of the

proclamations and other acts set forth in paragraph 23

hereof.

(ii) Costs.

(iii) Such further or other order as the Court thinks

fit."

8. The amended statement of claim almost entirely replaces the originalstatement of claim; only par 1 remains the same. It wassigned by theplaintiff's solicitor, and experienced counsel appeared in this Court to arguethe appeal. Counsel did not attemptto support the inclusion of par 16A butdid strive to justify the rest of the statement of claim, including even par.23A.

9. To read the amended statement of claim is enough to reveal itsdeficiencies. It is repetitious, confused and obscure and insome respectsinconsistent within itself. It fails to give essential particulars, either ofthe lands in question or of the legislationimpugned. Even the numbering ofits paragraphs is marked by eccentricity. What is more serious, it containsallegations and claimsthat are quite absurd and so clearly vexatious as toamount to an abuse of the process of the Court: for the moment it is enoughtorefer to par. 23A and to the claim that the plaintiff and other members of theaboriginal nation lawfully proclaimed sovereigntyon behalf of the aboriginalnation over the United Kingdom and later confirmed this sovereignty overAustralia. No judge could inthe proper exercise of his discretion permit theamendment of a pleading to put it in such a shape.

10. However the Solicitor-General for the Commonwealth very fairly concededthat the matter might be treated as though an applicationhad been made tostrike out a statement of claim which had been duly delivered, and for thatreason I shall consider whether someparts of the amended statement of claimshould be allowed to stand notwithstanding that other parts are objectionable.The firstquestion will be whether it discloses a reasonable cause of action(O26, r18); if so, it will not be struck out merely because theappellant'scase seems weak, or unlikely to succeed. The second question, which in thepresent case is associated with the first,is whether any matter in thepleading may tend to prejudice, embarrass or delay the fair trial of theaction (O20, r. 29); allegationsthat are wholly irrelevant, and yet raiseissues that may involve expense, delay and trouble, would come within thisdescription.

11. I have set out the amended statement of claim in full, and therefore neednot discuss its contents paragraph by paragraph. I would, however, endeavourto summarize the effect of its allegations, although having regard to thenature of the pleading thistask is not altogether easy. The following appearto be the main facts and circumstances asserted as the foundation of theappellant'sclaims:

(a) There is an aboriginal nation which, before European

settlement, enjoyed exclusive sovereignty over the whole

of Australia, and which still has sovereignty: see pars.

1A, 1B, 1, 4A, 6A, 7A, 11A, 16A, 16B and 23A.

(b) Captain Cook wrongly proclaimed sovereignty and

dominion over the east coast of Australia, and Captain

Phillip wrongly claimed possession and occupation thereof, on

behalf of His Majesty King George III, and the defendants are

the successors in title, in Australia and the United Kingdom

respectively, of that monarch; the Commonwealth now claims,

and "has purported to exercise" sovereignty over Australia:

see pars. 2A, 3A, 3B, 3C, 3D, 8A, 13A, 13X, 13M.

(c) Before European settlement, individual members, and

tribes, of the aboriginal people had proprietary and

possessory rights in land, subject to usufructuary rights in

others, but the whole of Australia was held by the aboriginal

nation for the benefit of all its members: see pars. 3B, 5A,

7A, 8A.

(d) Australia was acquired by the British Crown by

conquest, after which the aboriginal people and nation

retained their rights in respect of their lands: pars. 2-3M,

8M, 9M.

(e) The Commonwealth has enacted legislation which

interfered with the free exercise of the religion of the

plaintiff and of the aboriginal community and nation, inter

alia, by allowing parts of lands of religious significance to

be mined and by permitting the mining and export of uranium:

see pars. 13A, 14A, 15A, 13X, 14X, 15X, 13M, 14M, 15M.

(f) The plaintiff and the aboriginal people are entitled

at common law to the proprietary and possessory rights which

they had prior to 1770, unless those rights were taken away

by "bilateral treaty, lawful compensation and/or lawful

international intervention": see pars. 11A, 21A, 8X (1), 9X,

10X, 11X.

(g) Since 1788 certain of the aboriginal people have been

unlawfully dispossessed of their lands by Captain Phillip and

other persons including servants and agents of the

defendants: pars. 12A, 12X, 12M.

12. It is clear that the allegations whose effect I have briefly stated inpars. (a) and (b) above could not form the basis of anycause of action. Theannexation of the east coast of Australia by Captain Cook in 1770, and thesubsequent acts by which the wholeof the Australian continent became part ofthe dominions of the Crown, were acts of state whose validity cannot bechallenged: seeNew South Wales v. The Commonwealth[1975] HCA 58; (1975), 135 CLR 337, at p388, and cases there cited. If the amended statementof claim intendstosuggest either that the legalfoundation of the Commonwealth is insecure, orthat the powers of the Parliamentare more limitedthan is provided in theConstitution, or that there is an aboriginal nation which has sovereignty overAustralia, it cannot be supported. In fact, we were told in argument,it isintended to claim that there is an aboriginal nation which has sovereigntyover its own people, notwithstanding that they remaincitizens of theCommonwealth; in other words, it is sought to treat the aboriginal people ofAustralia as a domestic dependent nation,to use the expression which MarshallCJ applied to the Cherokee Nation of Indians: Cherokee Nation v. State ofGeorgia[1831] USSC 6; (1831), 5Pet 1, at p 17. However the history of the relationshipsbetween the white settlers and the aboriginal people has notbe the sameinAustralia and in the United States, and it is not possible to say, as was saidby Marshall CJ, at p. 16, of the CherokeeNation,that the aboriginal peopleof Australia are organised as a "distinct political society separated fromothers", or that theyhavebeen uniformly treated as a state. The judgmentsin that case therefore provide no assistance in determining the position inAustralia.The aboriginal people are subject to the laws of the Commonwealthand of the States or Territories in which they respectivelyreside. They haveno legislative, executive or judicial organs by which sovereignty might beexercised. If such organs existed,they wouldhave no powers, except such asthe laws of the Commonwealth, or of a State or Territory, might confer uponthem. Thecontentionthat there is in Australia an aboriginal nationexercising sovereignty, even of a limited kind, is quite impossible inlaw tomaintain.

13. The allegations summarised in par. (d) above also do not raise an issuefit for consideration. It is fundamentally to our legalsystem that theAustralian colonies became British possessions by settlement and not byconquest. It is hardly necessary to saythat the question is not how themanner in which Australia became a British possession might appropriately bedescribed. For thepurpose of deciding whether the common law was introducedinto a newly acquired territory, a distinction was drawn between a colonyacquired by conquest or cession, in which there was an established system oflaw of European type, and a colony acquired by settlementin a territorywhich, by European standards, had no civilised inhabitants or settled law.Australia has always been regarded as belongingto the latter class: seeCooper v. Stuart (1889), 14 App Cas 286, at p 291.

14. As to the allegations summarised in par. (e) above, a law of theCommonwealth is invalid if it prohibits the free exercise ofany religion:s.116. Whether a law expropriating, or permitting mining upon, land ofreligious significance can be said to prohibit the free exerciseof anyreligion is a question that might be regarded as arguable, although, if thelaw attacked was made unders. 122 of theConstitution, the further questionwould arise whether the powers given by that section are restricted bys. 116.However such questions cannot be decided hypothetically or in the abstract.The amended statement of claim does not reveal the situationof the lands, thelegislative provisions which affect them, or the persons or groups whose freeexercise of religion is said to beprohibited.

15. The allegations summarised in pars. (c) and (f) above may have beenintended to raise a claim that the aboriginal people hadrights and interestsin land which were recognised by the common law and are still subsisting. Inother words it may have been desiredto attack the correctness of the decisionof Blackburn J in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. Thatwould be an arguablequestion if properly raised. However, the assertionsmade are perfectly general; no particular land is identified, unless, indeed,the land on which the Commonwealth Offices in Sydney are situated as intendedto be part of the lands in question (see par. 3A). Whether the claims areintended to refer to lands which have been alienated, and to lands which havebeen specifically dealt withby statute, and to lands in States as well as inTerritories, is not made clear, but it appears that they are so intended.Moreover,it is plainly erroneous to state as a matter of law that the holdersof proprietary or possessory rights could not be dispossessedwithoutbilateral treaty, lawful compensation or lawful international intervention.

16. The allegations mentioned in par. (g) above may be intended to do no morethan state a conclusion flowing from the other allegationsmade. If, however,they are intended to assert acts of trespass they do not indicate by whom(except by Governor Phillip) or howlong ago or where or in what circumstancesthose acts occurred.

17. It will have been seen that the greater part of the amended statement ofclaim discloses no cause of action, and is embarrassing,but that some of theallegations hint at the existence of questions that might be regarded asarguable. If the amended statementof claim was defective only in failing togive particulars, that would not be a ground for striking it out, but ratherfor orderingparticulars to be furnished. In argument counsel for theappellant suggested that it would be impossible to give particulars ofall thelands in respect of which claims are made, but it should not be difficult toselect particulars areas of land a the subjectof a test case if that isdesired. However, the defects of the amended statement of claim go beyond amere lack of particulars. I have discussed the allegations made in the bodyof the amended statement of claim, but the claims themselves remain to beconsidered;they, too, are defective.

18. I shall refer first to the claims that are thrice repeated in identicalterms. Claim (i) appears to assert, not that the aboriginalpeople have lawfulright or title to lands which they presently occupy, traverse or use, but thatsuch lands are beyond the reachof the law. Such a claim would be unarguable.Claim (ii) is for a declaration that certain unidentified legislation isinvalid. Clearly such a claim is defective. Claim (iii) is bad, not onlybecause of its vagueness and imprecision, but also because no allegationinthe amended statement of claim would support a conclusion in law that themaking of "internationally recognised arrangements"is a condition precedentto the validity of the grant of mining rights by the Commonwealth. Claim (iv)is a claim for compensation. No facts have been pleaded which would supportsuch a claim. If it is based on a statute, the statute has not beenidentified. If it is suggested that any of the lands in question wereacquired by the Commonwealth other than on just terms, it must be rememberedthat it has been held that the power conferred bys. 122 is not limited bys.51 pl. (xxxi): Teori Tau v. The Commonwealth[1969] HCA 62; (1969), 119 CLR 564. However theamended statement of claim does not disclosewhether,when or by whatauthority any of the landsin question were acquired.

19. The further claims made at the end of the fourth part of the statement ofclaim require no discussion - the claim for declarationas to the lawfulnessof the proclamations and other acts set forth in par. 23A is absurd andvexatious, as I have already said.

20. For these reasons, it is clear that if the amended statement of claim hadbeen delivered without leave, the proper course wouldhave been to strike itout. The order of Mason J was plainly right. Indeed, it is somewhatsurprising that this appeal was brought,since the defects in the statement ofclaim are so clearly manifest, and the order dismissing the application forleave to amenddid not preclude the appellant from delivering anotherstatement of claim.

21. The question what rights the aboriginal people of this country have, orought to have, in the lands of Australia is one whichhas become a matter ofheated controversy. If there are serious legal questions to be decided as tothe existence or nature of suchrights, no doubt the sooner they are decidedthe better, but the resolution of such questions by the courts will not beassistedby imprecise, emotional or intemperate claims. In this, as in anyother litigation, the claimants will be best served if their claimsare putbefore the court dispassionately, lucidly and proper form.

22. I must however add that nothing that I have just said is intended tosuggest that the present action is properly constitutedas to parties. In thefirst place, there is the question whether the appellant has any standing tosue for the relief which he seeks. That involves the questions whether thereis a body of persons properly described as "the aboriginal community andnation of Australia"and if so whether rights and interests in lands inparticular parts of Australia vest in or ensure for the benefit of that"communityand nation" and whether the appellant is entitled to sue on itsbehalf. I have already indicated that there is no aboriginal nation,if bythat expression is meant a people organised as a separate State or exercisingany degree of sovereignty. Secondly it is gravelydoubtful whether the seconddefendant is a legal person capable of being sued, and if so whether it couldbe impleaded in an actionsuch as this. In any case it is difficult to seehow the second defendant could be regarded as a proper party. Thirdly,dependingon where the lands claimed are situated and what persons claim titleadverse to the aboriginal claimants, it may be necessary tojoin otherdefendants. These matters do not arise on this application, but if furtherproceedings are brought they will requiregrave consideration.

23. The appeal must be dismissed.

JACOBS J The writ of summons and statement of claim in this action were filedon 18th July, 1977. On 2nd September, 1977 a summonswas taken out by theCommonwealth for an order that the statement of claim be struck out. On 23rdSeptember, 1977, the appellantplaintiff applied by summons for leave to amendthe statement of claim. This summons was heard before the summons that thestatementof claim be struck out. The application for leave to amend wasrefused by Mason J and from his decision this appeal is now brought.

2. As matters now stand there is upon the file a statement of claim in a formwhich the plaintiff by his application for leave toamend has indicated thathe does not wish to pursue. But, unless the proceedings themselves arevexatious, the plaintiff on the strikingout of the statement of claim wouldthen in the ordinary court have been granted leave to re-plead. If and whenhe did so, the Commonwealthcould then have applied to strike out the amendedstatement of claim. The court which has been followed has in effect reachedthatstage. In these circumstances the Commonwealth agrees that the presentapplication should be treated in the same way as if it werean application tostrike out the amended statement of claim. This is not without significance.A court has a discretion whetheror not amendments should be allowed and, ifthe statement of claim as a whole is not in proper form, leave to amend inthat particularform may be refused. On the other hands if a statement ofclaim already filed is sufficient to raise a substantial question whichoughtto be judicially determined then prima facie it should not be wholly struckout. If a substantial question is disclosed thepleading cannot be struck outunder O26, r18 (1) on the ground that it does not disclose a reasonable causeof action. The lastmentioned rule is not a substitute for proceedings by wayof demurrer even though as a matter of convenience the court, if it hasheardfully argument on a distinct question of law, may pronounce upon it as thoughthe proceedings were a demurrer. The presentcase is certainly not such acase. Nor generally should the whole of a pleading be struck out under O20r29, which provides forthe striking out of any matter which is unnecessary orscandalous or which may tend to prejudice, embarrass or delay the fair trialof the action. That rule only permits the striking out of the whole of astatement of claim when objectionable matter is so closelyintertwined withother matter that the pleading as a whole may tend to embarrass the fair trialof the action. The whole pleadingmay then be struck out even though a causeof action might be able to be spelled out of the pleading as a whole. SeeTurner v. BulletinNewspaper Co. Pty. Ltd.[1974] HCA 25; (1974) 131 CLR 69 Menzies J at p88. It appears to me that the real question in the presentcase is whetherthe proposed amendedstatement of claim falls into the latter category.

3. The proposed amended statement of claim seeks to raise a number of issueswhich can be regarded separately. The first part isapparently intended todispute the validity of the British Crown's and now the Commonwealth ofAustralia's claim to sovereignty overthe continent of Australia in the faceof sovereignty alleged to be possessed by the Aboriginal nation. Paragraphs 2Aand 3A arein much the same form as the original statement of claim but theword "wrongfully" has been added, thus disputing the validity ofthe Crown'sproclamations of sovereignty and sovereign possession. These are not mattersof municipal law but of the law of nationsand are not cognisable in a courtexercising jurisdiction under that sovereignty which is sought to bechallenged. As such, theyare embarrassing and cannot be allowed. I wouldtherefore strike out of the proposed amendments the word "wrongfully" where itappearsin pars. 2A and 3A. I would also strike out (or, strictly, refuse toallow) par. 3B. Paragraph 3C suffers from the same defect andso far as itstates the coming into existence of the Commonwealth of Australia it isunnecessary; and the same is true of par. 3D.Paragraph 8A appears also to bedirected to the question whether under the law of nations Australia was terranullius in 1770 and1788. Further, it seeks to impugn the proclamationstaking possession of New South Wales on behalf of the British Crown. This isnot permissible in a municipal court. Paragraphs 13A and 14A suffer in thesame way. Paragraphs 15A, 16A and 16B are also directedto a claim ofinternational sovereignty and cannot be allowed. The same is true of pars.11A and 12A in their context. Thus whatI have called the first branch of theproposed statement of claim cannot be allowed because generally it isformulated as a claimbased on a sovereignty adverse to the Crown.

4. I now go back to pars. 5A, 6A and 7A. If these paragraphs simply formedpart of the first branch of the statement of claim,the claim to a sovereigntyadverse to the British Crown and now the Commonwealth, they also could not beallowed. However, theyare repeated by reference in par. 22A which is placedin what may be described as the second formulation of the claim; and to thisInow turn. It commences with par. 20A which repeats the allegations made inpars. 1A, 1B and 1. The numbering in the proposedamendments has gone awrybut I shall retain the existing numbering even though a requirement of leaveto amend would be that theappellant renumber the paragraphs.

"1A. The Plaintiff sues on behalf of the Aboriginal

community and nation of Australia and for the benefit of that

community which is a community of more than seven persons.

1B. The plaintiff is a member of the Wiradjeri Tribe and

has authority from this and from other tribes and the whole

aboriginal community and nation to bring this action.

1. The plaintiff is a member of and a descendant of the

aboriginal people of Australia and is a member of the

aboriginal nation.

21A. In 1770 Captain James Cook in 1788 Captain Arthur

Phillip and others made claims in respect of the territory

now known as Australia on behalf of King George III and his

heirs and successors. These claims established in the

continent now known as Australia the laws, customs, benefits

and usages of the Common Law."

5. Next par. 22A repeats each of the allegations made in pars. 3C, 3D, 4A,5A, 6A and 7A. Pars. 3C and 3D are either impermissibleor unnecessary, as Ihave earlier stated, so there remain pars. 4A, 5A, 6A and 7A, as follows:

"4A. From time immemorial prior to 1770 the aboriginal

nation had enjoyed exclusive sovereignty over the whole

of the continent now known as Australia.

5A. The aboriginal people have had from time immemorial a

complex social, religious, cultural and legal system under

which individuals and tribes had proprietary and/or

possessory rights, privileges, interest, claims and

entitlements to particular areas of land subject to

usufructuary rights in other aboriginal people. Some of the

aboriginal people still exercise these rights.

6A. Clans, tribes and groups of aboriginal people

travelled widely over the said continent now known as

Australia developing a system of interlocking rights and

responsibilities making contact with other tribes and larger

groups of aboriginal people thus forming a sovereign

aboriginal nation.

7A. The whole of the said continent now known as

Australia was held by the said aboriginal nation from time

immemorial for the use and benefit of all members of the said

nation and particular proprietary possessory and usufructuary

rights in no way derogated from the sovereignty of the said

aboriginal nation."

6. Then come paragraphs numbered 8X-11X onwards. Whey they are so numberedis not at all clear but they are as follows:

"8X-11X. The Common Law established by the proclamations

set out in paragraph 21A hereof entitled the Plaintiff

and the aboriginal people to the continuation of the

proprietary and/or possessory and other rights which they had

prior to 1770 unless these are taken away by bilateral

treaty, lawful compensation and/or lawful international

intervention.

12X. On and after the 26th day of January, 1788 when

Captain Arthur Phillip landed at Sydney Cove the said Captain

Phillip and others including the servants and agents of the

first and second named Defendants and persons claiming

through and under them unlawfully and contrary to the common

law dispossessed certain of the aboriginal people of certain

of their rights, privileges, interests, claims and

entitlements in respect of their lands. The Plaintiff and

certain of the aboriginal people have therefore lost the

benefits of their common law rights in the said lands and

have suffered in their culture, religion, customs, language

and way of life."

7. There then follow three paragraphs numbered 14X, 15X and 13X in that orderand I shall refer to them presently.

8. The second branch of the statement of claim them concludes with the reliefsought in respect of that part. It first claims adeclaration in thefollowing terms:

"A declaration that all lands and waterways within the

Commonwealth of Australia presently occupied traversed and/or

used by the aboriginal people for the purposes of habitation,

hunting, food gathering, fishing, tribal ceremonial or

religious usage and/or tribal burial are and shall remain at

the absolute command of the aboriginal people free from

interference at the suit of the Defendants or either of them

of any person or corporation claiming thereunder whether

under colour of law or otherwise."

9. This declaration may not be in the precise form which would or could begranted but a statement of claim will not be struck outbecause thedeclarations and other relief sought are defective.

10. It has been submitted on behalf of the Commonwealth that this secondbranch of the proposed statement of claim is also a claimto a sovereigntyvested in the aboriginal nation adverse to the sovereignty of theCommonwealth. But that cannot be correct in viewof the allegation in par.21A that the claims of Cook and Phillip on behalf of the British Crownestablished in Australia the lawscustoms benefits and usages of the commonlaw. Then in par. 11X it is alleged that the proclamations set out in par.21A entitledthe plaintiff and the aboriginal people to the continuation ofthe proprietary and/or possessory and other rights which they hadprior to1770 unless taken away by bilateral treaty, lawful compensation and/or lawfulinternational intervention. The substanceof this allegation is that thecommon law entitled the aboriginal people to the continuation of "theproprietary and/or possessoryrights" which they had prior to 1770. Thereference to the manner in which the rights may be lost is not the substanceof the matteralleged. Paragraph 12X then alleges that (inter alios) servantsand agents of the Commonwealth have unlawfully and contrary to thecommon lawdispossessed certain of the aboriginal people of certain of their rightsprivileges interests claims and entitlementsin respect of their lands. Thepresence in the Statement of Claim of these allegations is not consistent withthe Commonwealth'scontention that the whole Statement of Claim is based on adenial of the sovereignty of the British, and now the Australian, Crown.

11. The second submission on behalf of the Commonwealth is that the lands thesubject of the claim are not identified. I do notthink that this objectionis a valid one in view of the particular nature of the claim which is made.The object of these paragraphsin the Statement of Claim is to have determinedby this Court the question whether the aboriginals had, and now have, anyrightsunder the Australian Crown and the common law principles applicable toany of the lands in those parts of Australia which are Commonwealthterritory.It is public knowledge that there are large tracts of land in the NorthernTerritory which have never been alienated bygrant from the Crown, and it ispublic knowledge that in those tracts of land there are aboriginal people inconsiderable numbers. It seems to me that the matters stated in thoseparagraphs of the Statement of Claim which I have set out above are sufficienttoraise for consideration the kinds of question which were dealt with byBlackburn J in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR141. I wish on anapplication of this kind carefully to avoid any discussion or consideration ofthe problem of aboriginal landrights and I only say that the problem is onewhich is difficult and complex and the subject of no small body of authorityin relationto colonies or former colonies of the British Crown. Much of thatauthority is referred to by Blackburn J in the Milirrpum Case. See alsoarticles upon the subject in the Federal Law Review (1972) Vol 5, pp. 85-114and (1974) Vol. 6, pp. 150-177, and in theAlberta Law Review (1973), Vol. 11,pp. 189-237.

12. The allegations in the proposed amendments do not raise the questions inthe neatest way that it could be done; and the paragraphsappear among otherallegations which cannot be allowed. But it is at this point that theCommonwealth's concession that the mattershould be dealt with as anapplication to strike out the whole statement of claim has particularsignificance. If the applicationwere to be treated simply as one for leaveto amend, the Court in its discretion might require that the amendments beframed witha greater precision and particularity before the leave would begiven. However, there is no discretion to strike out the whole ofa statementof claim if it discloses a cause of action in the sense that it states matterswhich raise a question which ought tobe determined. I have earlier statedthe exception where all the allegations are so closely intertwined that thepleading as a wholeis embarrassing. That is not this case. The paragraphswith which I have been dealing are separate paragraphs which can be allowedtostand without any embarrassment.

13. However, I do not think that pars. 14X, 15X and 13X ought to be allowed.It may be that they are intended to challenge the validityof someCommonwealth legislation upon the ground that it infringes the prohibition ins. 116 of theConstitution but the paragraphs do not make it clear that thisis their sole purpose and they do not specify the legislation which ischallenged. For those reasons they should be characterised as embarrassing inthe sense that the Commonwealth is left in doubt on the preciseallegations towhich it should plead.

14. I go now to the third part of the proposed statement of claim. This isin parallel with the second part. Whereas the secondpart is based upon theassumption that New South Wales was a settled colony of the Crown, the thirdpart is based upon the allegationthat the colony was conquered territory. Ido not think that paragraphs in this alternative form ought to be struck out.The viewhas generally been taken that the Australian colonies were settledcolonies; but, although that view was expressed in Cooper v. Stuart,(1889) 14AC. 286 and in Council of the Municipality of Randwick v. Rutledge[1959] HCA 63; (1959), 102CLR 54, there is no actualdecision of thisCourt or of the Privy Council tothat effect. The plaintiff should be entitledto rely on he alternativeargumentswhen it comesto be determined whether the aboriginal inhabitants ofAustralia had and have anyrights in land. I would strike outthe referenceto pars. 3C and 3D in par. 4M but otherwise I would allow pars. 1M, 2-3M,4-7M,8M, 9M and 12M. I would not allowpars. 14M, 15M,and 13M for the samereasons as I would not allow pars. 14X, 15X and 13X.

15. Finally there is par. 23A. It cannot be allowed and I do not think thatit was seriously pressed. I would allow the appealand in lieu of whollyrefusing leave to amend I would grant leave to amend the Statement of Claim byadding pars. 1A, 1B, 2A and3A (omitting the word "wrongfully" in each ofthese paragraphs), 21A, 4A, 5A, 6A, 7A, 8X-11X, 12X, 1M, 2-3M, 4-7M (omittingthe referenceto pars. 3C and 3D), 8M, 9M, and 12M.

MURPHY J The appellant has issued a writ against the Commonwealth ofAustralia and the Government of the United Kingdom of GreatBritain andNorthern Ireland, together with a statement of claim. The Commonwealthappeared and applied to have the statement struckout. The appellant appliedfor leave to file and serve an amended statement of claim before Mason J whodismissed the application.

2. The difficulties in framing a claim for aboriginal land rights orcompensation for their loss should not be underestimated. However, theamended statement of claim exhibits a degree of irresponsibility rarely foundin a statement intended to be seriouslyentertained by a court. For example,it includes a claim by the plaintiff on behalf of the aboriginal nation,persisted with on thisappeal, to the whole of the territory of the UnitedKingdom. It is one thing for a person to present a document on his own behalfwhich is partly frivolous or irresponsible and generally badly drawn; it isanother when he claims to represent others. There isa duty on anyone whoclaims to represent others to see that any claim is presented efficiently andresponsibly.

3. As put by both parties before Mason J, the application was for hisHonour's leave to file the amended claim. If it remainedthat way, hisHonour's decision declining to give leave in respect of this document shouldnot be disturbed. It was a correct exerciseof discretion to decline to giveleave to file such a document in view of the contents to which I havereferred. On this appeal,the question arose whether leave was necessary.However, the parties have agreed that it should be dealt with on the basisthat noquestion of leave should be considered; that the amended statementshould be treated as if it were an original statement of claim;and that theapplication be dealt with as if it were an application to strike out astatement of claim. For the reasons given byJacobs J, this puts a differentcomplexion on the case. The question then is, notwithstanding theobjectionable parts, whether anyof the amended statement should be allowed tostand.

4. The wide language used in parts of the statement embraces claims which, ifseparated out and stated clearly, could be heard anddetermined. The claim torights over land or compensation for loss of such rights is capable of beingformulated and presented inan intelligible way.

5. Several obstacles to success were mentioned during argument: one wasBlackburn J's judgment in Milirrpum v. Nabalco Pty Ltd (1971),17 FLR 141which is not binding on this Court. It has been subjected to reasonedcriticism (see John Hookey, "The Gove Land RightsCase: A JudicialDispensation for the taking of Aboriginal Lands in Australia?"(1972), 5 Fed LRev 85). Another was Cooper v. Stuart(1883), 14 AC 286. In that case, thePrivy Council stated that the colony of New South Wales was notacquired byconquest, but was"practically unoccupied, without settled inhabitants orsettled law at the time it was peacefully annexedto the British dominions"(at p. 291). That view is not binding on us (see Viro v. The Queen[1978] HCA 9; (1978), 52ALJR. 418). "Occupation"was originally a legal meansof peaceably acquiringsovereignty over territory otherwise thanby secession or conquest. It was acardinal condition of a valid"occupation" that the territory should be terranullius - a territorybelonging to no-one - at thetime of the act alleged toconstitutethe occupation. "Territory inhabited by tribes or peoples havingasocial and political organisationcannot be of the nature terranullius" (seeProf. J. G. Starke, International Law (8th ed. 1977),at p. 185, andgenerally). Theextent to which the internationallaw of occupation isincorporated in Australian municipal law isa question which would arise fordetermination in the proceedings.

6. The plaintiff claims that the fact is that Australia was at (or during)the time of its acquisition inhabited by the aboriginalpeople who had acomplex social, religious, cultural and legal system and that their lands wereacquired by the British Crown byconquest. There is a wealth of historicalmaterial to support the claim that the aboriginal people had occupiedAustralia for manythousands of years; that although they were nomadic, thevarious tribal groups were attached to defined areas of land over whichtheypassed and stayed from time to time in an established pattern; that they had acomplex social and political organisation; thattheir laws were settled and ofgreat antiquity (for example, see D.C. Biernoff, Land and law in EasternArnhem Land: TraditionalModels for Social and Political Organisation (1975).

7. Independent tribes, travelling over a territory or stopping in certainplaces, may exercise a de facto authority which preventsthe territory being"terra nullius" (see Advisory Opinion on Western Sahara, ICJ Reports 1975, 12,in particular the declarationof Judge Gros at p. 75). There have beenvarious estimates of the population in 1788, the most consistently mentionednumber ofaboriginal people at that date being 300,000 (see EncyclopaediaBritannica Vol. 1 (1969) at p. 795; C. M. H. Clark, A History ofAustralia,Vol. 1 (1962), at p. 4; The Modern Encyclopaedia of Australia and New Zealand(1964), at p. 75; and The Official YearBook of the Commonwealth of Australia,No. 23 (1930), at p. 696).

8. Although the Privy Council referred in Cooper v. Stuart to peacefulannexation, the aborigines did not give up their lands peacefully;they werekilled or removed forcibly from the lands by United Kingdom forces or theEuropean colonists in what amounted to attempted(and in Tasmania almostcomplete) genocide. The statement by the Privy Council may be regarded eitheras having been made in ignoranceor as a convenient falsehood to justify thetaking of aborigines' land.

9. The plaintiff is entitled to endeavour to prove that the concept of terranullius had no application to Australia, that the landswere acquired byconquest, and to rely upon the legal consequences which follow. He may rely,in the alternative, on common lawrights which would arise if there werepeaceful settlement. Whether the territory is treated as having been acquiredby conquestor peaceful settlement, the plaintiff is entitled to argue thatthe sovereignty acquired by the British Crown did not extinguish"ownershiprights" in the aborigines and that they have certain proprietary rights (atleast in some lands) and are entitled to declarationand enjoyment of theirrights or compensation.

10. I agree generally with Jacobs J and with the order proposed by him.

AICKIN J I have had the advantage of reading the reasons for judgmentprepared by my brother Gibbs. I am in full agreement withwhat he has saidand there is nothing I can usefully add. I therefore agree that the appealshould be dismissed.