Mabo v Queensland [1986] HCA 8;

Mabo v Queensland [1986] HCA 8; - HCA 1986 case summary — Zoe

GIBBS C.J.: This action is brought by the plaintiffs, who are Murray Islanders, and who claim that they are respectively the owners by custom, the holders of traditional native title and the holders of usufructuary rights to particular areas of land on the islands of Mer, Dawar, and Waier, which are situated in Torres Strait and form part of the State of Queensland. The defendants are the State of Queensland and the Commonwealth. It would serve no useful purpose to set out in detail the allegations in the statement of claim or to describe fully and precisely the nature of the plaintiffs' claims, but it is necessary to indicate the general nature of the action. The plaintiffs claim, inter alia, declarations that they are the owners (which term for convenience I shall use to include holders of traditional native title and usufructuary rights as well as owners by custom) of the respective lands in the islands, that the State of Queensland is not entitled to impair their ownership, and alternatively, that the State is not entitled to impair that ownership without compensation, otherwise than in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation, and in the further alternative, that the plaintiffs are entitled to compensation for any impairment of their rights in their respective lands. Various injunctions are sought, including (1) an injunction to restrain the State from taking any step pursuant to the Land Act 1962 (Q.), as amended, or otherwise to cause the islands to cease to be a reserve or part thereof for the purposes of that Act or for the purposes of the Torres Strait Islanders Act 1971 (Q.), as amended, or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self- Management) Act 1978 (Cth); (2) an injunction to restrain the State from taking any such step, without compensation, otherwise than in accordance with a law of Queensland which expressly provides for such conduct without payment of compensation; (3) an injunction to restrain the State from granting the islands by way of deed of grant in trust under the Land Act 1962 (Q.); and (4) an injunction to restrain the State from granting the islands by way of such deed of grant without the payment of compensation to the plaintiffs. A declaration is sought that the Queensland statutes just mentioned, and certain other Queensland statutes, are inconsistent with certain laws of the Commonwealth and are invalid. The statement of claim includes a claim for a declaration that in so far as the Commonwealth has impaired the ownership by custom, the traditional native title or the usufructuary rights of the plaintiffs with respect to their respective lands without compensation, such conduct amounts to an acquisition of property otherwise than on just terms and is beyond the power of the Commonwealth. However, the statement of claim does not reveal what actions of the Commonwealth are challenged by this claim for a declaration, although it may perhaps be surmised that what is sought to be brought in question is some assertion by the Commonwealth of its right and title to the sea, sea-bed and fringing reefs. Defences have been filed by both defendants and the plaintiffs have demurred to the amended defence delivered by the State of Queensland.

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Mabo v Queensland [1986] HCA 8; (1986) 64 ALR 1; (1986) 60 ALJR 255 (27 February 1986)

Parties

Legislation Cited (4)

Cases Cited (3)