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by Greg McIntyre
The Mabo case will test the decision in Milirrpum v Nabalco Pty. Ltd. and the Commonwealth (1971) 17 FLR 141 where a single judge in the Supreme Court of the NT found that the Aboriginal system of law did not contain notions of property which are recognizable by the Anglo-Australian legal system. The Mabo case which was instituted in the High Court of Australia in May 1982 has, in 1991, yet to be decided. The case has been brought by Murray Islanders from the Torres Strait, who claim that their rights to the Murray Islands have never been extinguished, despite the Islands being annexed to the colony of Queensland in or about 1879. Hence, the claim is testing the existence and extent of Aboriginal land rights at common law, it is not a challenge to The Commonwealth or Queensland's sovereignty.
The Mabo case has faced many obstacles. In October 1982 in a preliminary hearing all parties attempted to try to reach an agreed statement of facts. This was not possible and the case was remitted to the Supreme Court of Queensland for a determination of the issues of fact. These proceedings were commenced in February 1987, but were adjourned whilst the High Court determined the validity of Queensland legislation. The Queensland Government had attempted to circumvent a judicial determination of the issues raised in Mabo by passing the Queensland Coast Islands Declaratory Act, 1985. The purpose of this Act was to declare retrospectively that the Queensland legislature in 1879 intended to extinguish any property rights which may have existed prior to the British annexation of the colony. The High Court determined that this legislation was invalid for inconsistency with the Racial Discrimination Act, 1975 (Cth). .A narrow majority found that the Queensland legislation was discriminatory in its arbitrary extinguishment of the rights of the Murray Islanders, while leaving intact property and inheritance rights derived form Queensland law. (Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 F.C. 88/062. see Aboriginal Law Bulletin [1989] AboriginalLB 11; 2(36)pg17)
The proceedings which had commenced in the Supreme Court of Queensland in 1987 to determine the issues of fact were resumed in 1989 and were finalised on the 16th of November, 1990 when Moynihan J delivered his judgement. It is now for the High Court to decide whether pre-colonial rights to land can be recognised in Australian law. Below Greg McIntyre summarises Moynihan J's findings. The High Court hearing will probably be listed for May 1991 and a decision might be brought down by the end of 1991.
Mabo v Queensland and the Commonwealth
Supreme Court of Queensland: Moynihan J
16th November 1990
On the 16th of November, 1990, Moynihan J finalised his task of hearing evidence and making findings of fact which are to be delivered to the High Court so that it may make determinations on the applicable law.
Moynihan J found that the people of Murray Island have in the past and continued to:-
He found that the need for land to live on has been a continuing imperative throughout the history of the Islands and the evidence established that, within the boundaries of a village, the land continues to be divided into single residential lots, usually occupied by a married couple, with the male being the person to whom rights in respect of the lot inure. He found that there were boundary disputes between residents which were dealt with by the Murray Island Court and he found that the rights associated with a site include a right to use it for domestic residency to the exclusion of others and an entitlement to determine the disposition of the land. He found that the entitlement in respect of dwelling sites within the villages was by way of inheritance and that the expectation was that a disposition by descent would be to a blood-relation by the male line with some flexibility, and that adopted children had an expectation of inheriting land in the same way as natural children.
Males have a stronger entitlement than females and the eldest of brothers have the stronger claim but that might yield to other considerations.
Moynihan J found that short dispositions in the form of leases, licenses and loans were acceptable and that caretaking arrangements were not uncommon.
In relation to garden land, he found that it was primarily acquired by inheritance and that there was a remaining practice of inheritance and there is no doubt that Murray Islanders recognise the continuance of claims to garden plots and recognise or dispute entitlement by individuals. Boundaries are determined in terms of natural or artificial features and in the event of a dispute the matter is resolved by the Island Court. The owner has the disposition of the produce of the garden and the garden lands are frequently loaned and leased and are subject of disputes.
The Judge accepted that there was a system providing for access to the produce of the gardens. He accepted that there was a system providing for access to the produce of the reef flat areas and the boundaries played a role in this, however the system seems to have been lost and replaced by a more pragmatic approach and he was not inclined to conclude that the Plaintiffs had any of the rights which they claim to the area of the reefs and reef flats.
The Court found that there was a complex system of social positioning by reference to descent and territory. Moynihan J remarked on the speed with which alien executive institutions became a part of Island life following colonisation, suggesting that they satisfied needs which the pre-contact society failed to fulfil. He concluded that someone predisposed to do so could approach the Court Records and leave them persuaded that they are a systematic manifestation of the application of rules developed prior to European contact and he said that those witnesses who acquiesced in that proposition were exhibiting a retrospective reconstruction. He found 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. He found that the Courts were consistent in their application of certain basic principles but that was because of the value of consistency and predictability rather than by reason of the application of any traditional system of Murray Island laws.
The Court was not prepared to find on the evidence in these proceedings that the first named Plaintiff, Eddie Mabo was adopted as heir to lands of the Mabo family or that his adopted grandfather transferred land to him during his lifetime. The Court pointed to difficulties in Eddie Mabo establishing descent through the male line to the eldest son and found that claims by Eddie Mabo could succeed only in respect of the village or garden land, some of which were disputed claims.
The Court found that the claim of the second named plaintiff, David Passi, as a member of a representative group, is in the nature of a general inchoate right to land claimed as Passi land and pursuant to specific permission he had from his older brother concerning a block in the village.
In relation to James Rice, the Judge found that while he was sceptical about the chain of title to sustain the claim of James Rice to land at Korog on Murray Island, there was no other claim or dispute in respect of the land and Court Records show the resolution of disputes in favour of James Rice's ancestor, which may refer to the land in issue.
He found that the evidence of James Rice's claims on the island of Dauar was unsatisfactory and that the facts have now been largely lost. However, he found that the use of the Bazmet plot on Murray Island by James Rice and his father for gardening was confirmed, as was a second plot on Murray Island, where a caretaker had been appointed by James Rice.
In summary, the Court found that each of the plaintiffs had some claim to land in accordance with the traditional system but made a finding against Eddie Mabo in relation to the opposition which was mounted by the State in the form of claims by a relation of his who claimed competing title based on inheritance.
The Court made findings that there were historical statements by official visitors to the Island concerning the relationship of the Islanders to their land.
He made a finding that Captain Penny-Father in 1879, when visiting Warrior Island, placed Chief Kebishaw in chains as a warning following an alleged poisoning offence and he fired five shells close to the Island from a distance of 2000 yards for the purpose of "showing them what could be done if necessary" and later liberating his prisoners. He also met with Chiefs at Murray Island and reported on the tenacity of "their ownership of land" and noted that "the island is divided into small properties which have been handed down from father to son from generation to generation".
Moynihan J found that there was a system of government instituted upon Murray Island with the Island leader 'Harry' being recognised as the Chief or Headman and assisted by 'Policemen'.
The Court found that between the years 1893 and 1980 there were at least 400 land cases or transactions involving land dealt with by the Murray Island Council and Court and contained within the Council and Court Records involving:-
The Court also found that the State of Queensland had purchased lands from Islanders for valuable consideration for the purpose of erecting a kindergarten and other government offices and the Court found that there had been strong community support for the setting aside of lands for an airstrip following a community meeting.
It now remains for a Full Bench of the High Court to determine whether such a system as is operating on Murray Island is capable of recognition as part of the Common Law in Australia.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/6.html