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Interview by Susan Varga
Edited by Alastair Walton
The following interview was undertaken by Susan Varga at the end of last year for some work she was doing for the ABC's radio programme 'Law Report'. Greg McIntyre is a solicitor from Cairns, Queensland, who has been actively involved with indigenous people's rights.
The Mabo case is a long running attempt by some Torres Strait Islanders, specifically the Murray Islands, which are an eastern group of the Torres, to gain their land rights. The. Murray Islands are tropical islands of volcanic origin, inhabited by the Miriam speaking people, who are known as 'the greatest gardeners of the Strait'. 'The coming of the missionaries had a great influence on the lives of the Islanders, whereas the annexation to Queensland in the 1870s did not.' These people, despite having experienced kidnapping, enslaving and missionaries in their history, have always had a strong traditional way of life on their islands.
SUSAN VARGA: Greg, you have been acting as the solicitor in Mabo v Queensland and the Commonwealth, so let us start with some background on how the case came about, and what it will be seeking to establish.
GREG McINTYRE: It arose out of a meeting at a conference between myself and one of the barristers, Eddie Mabo who is the last named plaintiff, and Noni Sharp who is a sociologist. ,We got talking about the possibility of a test case, and Eddie Mabo and others were very keen to establish their traditional rights.
And what will the case seek to establish?
That the Murray Islanders and in particular the named plaintiffs have traditional rights to 'their lands which have been handed down to them from their ancestors, and that those rights are recognised as part of the common law which Australia has inherited from England.
Will the Murray Islanders be seeking to establish ownership of both the lands and the waters around the Island ... Or will It be something less than ownership?
It will be ownership. Ownership. of course, has a number of aspects to it, and at lowest we would say that it is a possessory kind of title; but it's in common terms ownership.
The Queensland government passed legislation In 1982 (Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982) establishing a system of Deeds of Grant In Trust. What rights does it give to the Islanders, and how does It differ from land rights or freehold ownership?
It's a grant of a title or a deed which is a piece of paper over an area of land. In the case of the Torres Strait and the Aboriginal communities it has been a grant to the elected Council of those communities. It's held in trust by that Council for the community's benefit and use. whether it's an Aboriginal community or an islander community. There are two problems with it as Murray Islanders see it: one is that the grant gives power firstly to the Council to control lands which formerly were held by traditional owners, such as Eddie Mabo and James Rice. who has been a Council Chairman himself. James Rice for example believes, 'Well, it's all very well to them, the Queensland government, to grant the title to the Council. But even if I was the chairman. I wouldn't feel that was right. because I would not be holding it as head of my family but as a government appointed person or a community elected person, and that changes the tenure system'. The second point, is that it also gives the Minister, and in some cases the Cabinet, the power to make overriding decisions in relation to the use of those lands; they have to approve any leases, for instance, granted by the Council; add they can evict people who don't have leases.
What about ownership of minerals or natural resources? Is that residing In the Queensland government?
The Queensland government will have a legislative power in relation to minerals, despite any result that this case might arrive at. Title to those minerals is not going to be decided by this case, although there may be some conclusions drawn from it, because there are no known minerals at Murray Island. The proposed Mabo title doesn't say whether we go into the depths of the land or not, because that's not part of the tradition. But it maybe arguable that those minerals are protected as part of the ownership rights because mining would disturb the surface of the land.
As I understand t, the Murray Islanders have refused to accept the Deeds of Grant in Trust. Is that right?
Yes.
Are they the only ones among the former inhabitants of reserves who have refused to accept the deal the Queensland government has offered?
Yes, to my knowledge[1].
Why have they refused to accept it and how does that refusal affect this present case?
The Islanders were offered the Deed of Grant in Trust after they'd issued the writ in relation to this case. So when it came to an offer to all the other islands as to whether they wanted the Deed of Grant in Trust, Murray Island people. though I wasn't present there but as I understand it, said to the Minister that they wish to pursue their case rather than accept the Deed of Grant in Trust. They would pursue a result from their case before they would consider any offer of the Deed of Grant in Trust.
Now I would like to talk about another major case that has brought up the question of Indigenous rights to land and that is Millirpum v Nabalco Ply Ltd and Commonwealth (1971) (17 FLR 141). Can you talk a bit about the connection between the failure of Millirpum and why you think that this case may have more chance of success.
There's one basic reason why I think that this case is more likely to be successful than Millirpum, and it really boils down to the pleading point. When Millirpum was initially put before the court they pleaded possessory title, but there was an application to strike the case out. and the judge indicated to the plaintiffs' Counsel that they ought to change their pleading. They did change it and pleaded customary native right. The court then made a finding that there was no such thing as customary native title in Australia. If the court makes a decision of a similar kind in this case we still have pleaded the concept of possessory title and that gives us a great advantage. That Is because one of the problems that they had in the Gove case (short title of Millirpum v Nabalco) was that not having pleaded on the basis of possession. They had to prove on the balance of probability that the particular plaintiffs had held their title since time immemorial. They weren't able to bring sufficient evidence to prove that and the judge said he couldn't be satisfied that those particular plaintiffs had held that land continuously since time immemorial. If they had retained the pleading of possession, then there is a presumption at law that if you prove possession, at the present time, or as back as far as living memory, then possession is presumed to have continued, and also a basis on which you can presume ownership. So I'm hopeful that just on that pleading point alone we're at an advantage in relation to Gove. There are common law cases in Canada, which followed the Gove case which suggested a different result. In the Calder case (Calder et al v Attorney-General of British Columbia, 1973) the British Columbia Supreme Court Judges split 3/6 in a decision to the opposite effect to that of Mr Justice Blackburn (Gove) and Calder was a case where they pleaded possession as well.
Are you also hopeful that you may have a better evidentiary basis because the system of land tenure that you will be describing is very different from the Aboriginal system?
Yes. It's a very detailed system. It has advantages and disadvantages as we found out recently. The advantages are that it is extremely detailed and we can prove possession of tracks of land fairly carefully; the disadvantage is that there are limitations in relation to the hearsay rules of evidence-one of those rules is that you can bring evidence of what your father or your grandfather told you, which is known as hearsay, where you're talking of a general right as distinct from a private right. However, we have to establish that we fit within that system of general rights. The argument against us is attempting to show that we are talking about private rights because they are individual's rights. That argument will go before the Supreme Court in February 1987. We're hoping to win it to a sufficient degree, so we can lead the evidence that we wish to lead.
A lot of research has been undertaken by Noni Sharp and Flo Kennedy amongst others, on Malo’s law of the Murray Islands, which is concerned with the laws of cultivation and land ownership. Are you Intending to use that research on Malo's law as evidence?
Yes we will. Noni Sharp is one of the witnesses that we've told the court we will be calling to give evidence. and to relate that the introduction of Christianity was the continuation of Malo's law, and Malo's law says a lot in relation to land law. It's the basis of the traditional law of trespass which we say is integral to the system we're presenting to the court. So we've already heard quite a lot of evidence in fact, about Malo's law and its Tag mouki mauki. Teter maukf maulai. (see [1986] AboriginalLB 3; 1(18)pg3). literally Foot not walking, Hand not moving, which is interpreted as trespassing on other people's land. So it's very integral to our case.
Since annexation, the Islanders have managed a system of local courts with tour; records, where a lot of the issues concerned disputes with land. Will those court records be utilised in any way?
Yes, we have put them in evidence and we'll be relying very heavily on them when we summarise our case.
What sort of disputes about land do they reveal? And do they reveal the use of customary law or common law or a mixture of both?
The basis upon which we put them say that they are an exercise in the use of customary law and that the customary law fits within the common law. The disputes are commonly over boundaries with arguments between adjoining owners as to where the boundary actually is and a settlement by the court of that question. Other areas of disputation cover questions of inheritance-who was the rightful inheritor of the land; who was the rightful person to be in possession of the land; and who was appointed as a caretaker. All of these matters relate to their traditional system of use and ownership of land.
Does this show some kind of de facto recognition by the Queensland government of the Murray Island law?
Well it's more than a de facto; we say it's a de jute recognition because it's been recorded. They're decisions made by a court which was eventually created by a Queensland statute, the Torres Strait Islanders Act of 1939, while more recently the Community Services Act recognise the existence of those courts and in fact promulgates them. We believe the courts have continued to make decisions in accordance with tradition.
In 1985 the Queensland government passed a retrospective Act which was Interpreted as an attempt to bypass this very court case. Could you tell me a bit about that and how it has affected the case?
The Act purported to declare that the annexation of the Torres Strait Islands had the effect of extinguishing any rights in the native holders of those rights, on those islands. That was then pleaded by the Queensland Government as an amendment to their defence. We countered that by pleading that the legislation was in fact invalid on various Constitutional bases. Firstly, that it infringes on the power of the Federal judiciary because the matter was already before the Federal judiciary; and secondly. that it was an attempt to override Imperial legislation and, thirdly. that they can't retrospectively change whatever that legislation meant in the 19th century. Altogether there are about seven different heads on which we've argued that the legislation is beyond the power of the Queensland Parliament, and that matter will ultimately be argued in the High Court.
The Commonwealth government Is a party to a treaty with New Guinea which made the Tortes Strait a protected zone. Now, does that have any bearing on this case, because it does cover the protection of traditional lifestyles and traditional fishing rights?
Yes it does. It forms a section of our pleadings on the basis that it represents a recognition, by the Federal government, of those traditional rights and a exercise of their duty to protect those rights. We say that the Federal government has the duty to protect all the traditional rights of our plaintiffs and the Torres Strait Islanders in general. and that the Treaty merely reflects that.
A final question. I understand that the Murray Islanders requested that the Supreme Court of Queensland sit on the island to see for itself the system that operates there. Has the Court acceded to that request?
The court has accepted that offer to the extent that they are prepared to hear evidence from witnesses who are incapable of moving from Murray Island. They are not keen, but they will go there for a view; they will look at the lands that we show them and they will hear evidence from perhaps one or two witnesses and others from Thursday Island.
[1] 23 of Qld's 27 communities have leasehold title under Deed of Grant in Trust -Ed.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1987/6.html