Mabo v Queensland - [1992] HCA 23 - HCA 1992 case summary — Zoe

CTHHCA

Mabo v Queensland

[1992] HCA 23

High Court of Australia|1992-06-03|Before: McHugh JJ, McHugh J, Brennan J, Dawson J, Gaudron JJ

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Source facts

Court

High Court of Australia

Decision date

1992-06-03

Before

McHugh JJ, McHugh J, Brennan J, Dawson J, Gaudron JJ

Source

Original judgment source is linked above.

Judgment (717 paragraphs)

[1]

Introduction 16 Early contact with Europeans 17 Annexation of the Murray Islands 20 The theory of universal and absolute Crown ownership 25 The acquisition of sovereignty 31 Reception of the common law 34 The basis of the theory of universal and absolute Crown ownership 38 Crown title to colonies and Crown ownership of colonial land distinguished 43 The feudal basis of the proposition of absolute Crown ownership 46 The "patrimony of the nation" basis of the proposition of absolute Crown ownership 52 The Royal Prerogative basis of the proposition of absolute Crown ownership 53 The need for recognition by the Crown of native title 54 The nature and incidents of native title 58 The extinguishing of native title 63 The effect of post-acquisition transactions 71 Deed of Grant in Trust 73 Answers to Questions 75

[2]

The Murray Islands lie in the Torres Strait, at about 10° S. Latitude and 144° E. Longitude. They are the easternmost of the Eastern Islands of the Strait. Their total land area is of the order of 9 km2. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 m. wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer. The Islands are surrounded for the most part by fringing reefs. The people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. Although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population. Anthropological records and research show that the present inhabitants of the Islands are descended from the people described in early European reports. The component of foreign ancestry among the present population is small compared with most communities living in the Torres Strait. The Meriam people of today retain a strong sense of affiliation with their forebears and with the society and culture of earlier times. They have a strong sense of identity with their Islands. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.

[26]

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. The Queensland Legislature passed the requisite law (the Queensland Coast Islands Act 1879) and, on 21 July 1879 at Brisbane, the Governor of Queensland by Proclamation declared: 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. The "most dominant" of the purposes for which the Torres Strait islands were annexed were found by Moynihan J. to have been: (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. And, in Wacando v The Commonwealth [2] , Gibbs C.J. noted Professor Cumbrae-Stewart's view that the occasion for the passing of the Letters Patent was that the inhabitants of some of the islands had no protection against violence and that the islands provided bases for those intent on evading Queensland's revenue and immigration laws. The acquisition of beneficial ownership of land by the Crown does not appear to have been among the purposes of the annexation entertained by either the Queensland or the Imperial Government. 1. (1981) 148 C.L.R. 1, at p. 10.

[53]

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 the Constitution 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. So conceiving the common law, his Honour understood a statutory reference to "the waste lands of the Crown" to mean "all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor of such lands" [7] . 1. ibid., at pp. 317-318. 2. (1847) 1 Legge, at p. 319.

[59]

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 Cth came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. The Privy Council itself held that the common law of this country might legitimately develop independently of English precedent [17] . Increasingly since 1968 [18] , the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation. Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country [19] , it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own [20] . The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.

[63]

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. This principle, stated by Gibbs J. in the Seas and Submerged Lands Case [21] , precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown's Dominions. The Murray Islands were annexed by an exercise of the prerogative evidenced by the Letters Patent; a mode of acquisition recognized by the common law as a valid means of acquiring sovereignty over foreign territory. The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts [22] . In Post Office v Estuary Radio Ltd. , Diplock L.J. said [23] : 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. This proposition was approved by Gibbs J. in the Seas and Submerged Lands Case and, in Wacando , Gibbs C.J. and Mason J. accepted that an annexation of territory by exercise of the prerogative is an act of State [24] . 1. New South Wales v The Commonwealth (1975), 135 C.L.R., at p. 388. 2. Sobhuza II. v Miller [1926] AC. 518, at p. 525; The Fagernes, [1927] P. 311; Reg. v Kent Justices; Ex parte Lye [1967] 2 QB. 153, at pp. 176-177, 181-182; Ffrost v Stevenson (1937), 58 C.L.R. 528, at pp. 565-566; Raptis (A.) Son v South Australia (1977), 138 C.L.R. 346, at p. 360; cf. Bonser v La Macchia (1969), 122 C.L.R. 177, at pp. 193, 217, where the meaning of a constitutional term was in issue. 3. [1968] 2 Q.B. 740, at p. 753. 4. (1981) 148 C.L.R., at p. 11, per Gibbs C.J.; p. 21, per Mason J. See also Coe v The Commonwealth (1979), 53 A.L.J.R. 403, at p. 410, per Jacobs J.

[65]

International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant [25] . The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers [26] , provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organized in a society that was united permanently for political action [27] . To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest [28] . Various justifications for the acquisition of sovereignty over the territory of "backward peoples" were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times [29] . Another justification for the application of the theory of terra nullius to inhabited territory - a justification first advanced by Vattel at the end of the eighteenth century - was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants [30] . It may be doubted whether, even if these justifications were accepted, the facts would have sufficed to permit acquisition of the Murray Islands as though the Islands were terra nullius. The Meriam people were, as Moynihan J. found, devoted gardeners. In 1879, having accepted the influence of the London Missionary Society, they were living peacefully in a land-based society under some sort of governance by the Mamoose and the London Missionary Society. However that may be, it is not for this Court to canvass the validity of the Crown's acquisition of sovereignty over the Islands which, in any event, was consolidated by uninterrupted control of the Islands by Queensland authorities [31] .

[70]

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. According to Blackstone, English law would become the law of a country outside England either upon first settlement by English colonists of a "desert uninhabited" country or by the exercise of the Sovereign's legislative power over a conquered or ceded country. Blackstone did not contemplate other ways by which sovereignty might be acquired. In the case of a conquered country, the general rule was that the laws of the country continued after the conquest until those laws were altered by the conqueror [36] . The Crown had a prerogative power to make new laws for a conquered country although that power was subject to laws enacted by the Imperial Parliament [37] . The same rule applied to ceded colonies, though the prerogative may have been limited by the treaty of cession [38] . When "desert uninhabited countries" were colonized by English settlers, however, they brought with them "so much of the English law as [was] applicable to their own situation and the condition of an infant colony" [39] . English colonists were, in the eye of the common law, entitled to live under the common law of England which Blackstone described as their "birthright" [40] . That law was not amenable to alteration by exercise of the prerogative [41] . The tender concern of the common law of England for British settlers in foreign parts led to the recognition that such settlers should be regarded as living under the law of England if the local law was unsuitable for Christian Europeans [42] . This rule was applied even to English residents in Eastern countries which were not under British sovereignty [43] . 1. Commentaries , Bk I, ch. 4, pp. 106-108; accord: Forbes v Cochrane (1824), 2 B. C. 448, at p. 463 [107 E.R. 450, at p. 456]. 2. Blankard v Galdy (1693), Holt K.B. 341 [90 E.R. 1089]; Campbell v Hall (1774), Lofft 655, at p. 741 [98 E.R. 848, at pp. 895-896]; Beaumont v Barrett (1836), 1 Moo. P.C. 59 [12 E.R. 733]. 3. Campbell v Hall (1774), Lofft, at pp. 741, 742 [98 E.R., at pp. 895, 896]. 4. See the discussion in Roberts-Wray, Commonwealth and Colonial Law (1966), pp. 214ff; Sammut v Strickland [1938] AC. 678; Blankard v Galdy (1693), 2 Salk. 411 [91 E.R. 356]; and Buchanan v The Commonwealth (1913), 16 C.L.R. 315, at p. 334. 5. Commentaries , Bk I, ch. 4, p. 107; State Government Insurance Commission v Trigwell (1979), 142 C.L.R. 617, at pp. 625, 634. 6. Commentaries , Bk I, ch. 4, p. 107. And see Sabally and N'Jie v H.M. Attorney-General [1965] 1 QB. 273, at p. 294. 7. Sammut v Strickland [1938] AC., at p. 701. 8. Ruding v Smith (1821), 2 Hag.Con. 371 [161 E.R. 774]; Freeman v Fairlie (1828), 1 Moo. Ind. App. 306, at pp. 323-325, aff. p. 341 [18 E.R. 117, at pp. 127-128, 137]; cf. Campbell v Hall (1774), Lofft, at p. 741 [98 E.R., at pp. 895, 896]. See also Yeap Cheah Neo v Ong Cheng Neo (1875), 6 L.R. 381, at p. 393; cf. Reg. v Willans (1858), 3 Kyshe 16, at pp. 20-25; and see Re Loh Toh Met (1961), 27 M.L.J. 234, at pp. 237-243; Khoo Hooi Leong v Khoo Chong Yeok [1930] AC. 346, at p. 355. 9. The "Indian Chief" (1801), 3 C. Rob. 12, at pp. 28-29 [165 E.R. 367, at pp. 373-374].

[72]

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. In Campbell v Hall Lord Mansfield suggested that Jamaica should be regarded as a settled colony because the English colonists arrived after the Spaniards had left [47] , the negro inhabitants presumably being of no significance [48] . In Cooper v Stuart Lord Watson proffered the absence of "settled inhabitants" and "settled law" as a criterion for determining whether inhabited territory had been acquired by "settlement" under English law [49] : 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. As the settlement of an inhabited territory is equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonization, the common law which the English settlers brought with them to New South Wales could not have been altered or amended by the prerogative - only by the Imperial Parliament or by the local legislature [50] . (This principle raises some doubts about the validity of the exercise of legislative power by the Governor of New South Wales before a Legislative Council was established in 1823, but we need not pause to consider that question [51] .) In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally. Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were "an uninhabited country discovered and planted by English subjects" [52] . The common law thus became the common law of all subjects within the Colony who were equally entitled to the law's protection as subjects of the Crown [53] . Its introduction to New South Wales was confirmed by s. 24 of the Australian Courts Act 1828 Imp [54] . As the laws of New South Wales became the laws of Queensland on separation of the two Colonies in 1859 [55] and, by the terms of the Queensland Coast Islands Act 1879 and the Governor's Proclamation, the Murray Islands on annexation became subject to the laws in force in Queensland, the common law became the basic law of the Murray Islands. Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. And this is so irrespective of the fact that, in 1879, the Meriam people were settled on their land, the gardens were being tilled, the Mamoose and the London Missionary Society were keeping the peace and a form of justice was being administered. 1. See A. James, Sovereign Statehood (1986), pp. 3ff., 203-209. 2. Lyons (Mayor of) v East India Co. (1836), 1 Moo. P.C. 175, at pp. 272-273 [12 E.R. 782, at p. 818]; Cooper v Stuart (1889), 14 App. Cas.; The Lauderdale Peerage (1885), 10 App. Cas. 692, at pp. 744-745; Kielley v Carson (1842), 4 Moo. P.C. 63, at pp. 84-85 [13 E.R. 225, at p. 233]. 3. (1863) 2 Moo. N.S. 22, at p. 59 [15 E.R. 811, at p. 824]; 9 Moo. Ind. App. 391, at p. 428 [19 E.R. 786, at p. 800]. 4. His Lordship may have wrongly appreciated the history of Jamaica: see Roberts-Wray, op. cit., pp. 46-47, 851-852. 5. See (1774) Lofft, at p. 745 [98 E.R., at p. 898]. 6. (1889) 14 App. Cas., at p. 291. 7. Holdsworth, A History of English Law, 3rd ed., vol. ix (1944), p. 84; Sammut v Strickland [1938] AC., at p. 701; Kielley v Carson (1843), 4 Moo. P.C., at pp. 84-85 [13 E.R., at p. 233]; Falkland Islands Co. v The Queen (1863), 2 Moo. P.C. (N.S.) 266, at p. 273 [15 E.R. 902, at p. 905]; Sabally and N'Jie v H.M. Attorney-General [1965] 1 QB., at p. 294. 8. See the discussion by Windeyer, Lectures on Legal History, 2nd ed. (1949), pp. 332-333; H. v Evatt, The Legal Foundations of New South Wales, Australian Law Journal, vol. 11 (1938) 409, at pp. 417-422; and Enid Campbell, Prerogative Rule in New South Wales, 1788-1823, Royal Australian Historical Society, vol. 50 (1964) 161. 9. See Cooper v Stuart (1889), 14 App. Cas., at p. 291, per Lord Watson; and cf. Roberts-Wray, op. cit., p. 540. 10. As the subjects of a conquered territory (Calvin's Case (1608), 7 Co. Rep. 1a, at p. 6a [77 E.R. 377, at p. 384]); Campbell v Hall (1774), Lofft, at p. 741 [98 E.R., at p. 895] and of a ceded territory (Donegani v Donegani (1835), 3 Knapp 63, at p. 85 [12 E.R. 571, at p. 580]) became British subjects (Lyons (Mayor of) v East India Co. (1836), 1 Moo. P.C., at pp. 286-287 [12 E.R., at p. 823]; 1 Moo. Ind. App. 175, at pp. 286-287 [18 E.R. 66, at pp. 108-109]), a fortiori the subjects of a settled territory must have acquired that status. And see Reg. v Wedge [1976] 1 NS.W.L.R. 581, at p. 585. 11. 9 Geo. IV c. 83. 12. Letters Patent of 6 June 1859: see pp. 24-25 above.

[88]

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. Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights [7] brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. It was such a rule which evoked from Deane J. [8] the criticism that: 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 [9] , 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. 1. [1919] A.C., at p. 232. 2. ibid., at p. 234. 3. See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2, p. 23. 4. Gerhardy v Brown (1985), 159 C.L.R. 70, at p. 149. 5. (1823) 8 Wheat., at p. 574 [21 U.S., at p. 253].

[112]

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. Similarly, after the conquest of Wales, in Witrong and Blany [35] it was held that the inhabitants who had been left in possession of land needed no new grant to support their possession under the common law and they held their interests of the King without a new conveyance. In these cases, the courts were speaking of converting the surviving interests into an estate of a kind familiar to the common law, but there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures. In Amodu Tijani [36] Viscount Haldane, speaking for the Privy Council, referred to the variable nature of native title to land capable of recognition by the common law: 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. And, in Administration of Papua and New Guinea v Daera Guba [37] Barwick C.J. was able to say that the indigenous people of Papua New Guinea "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". 1. (1608) Davis 28 [80 E.R. 516]; 4th ed. Dublin (1762) English translation 78, at pp. 110-111. 2. (1674) 3 Keb. 401, at p. 402 [84 E.R. 789, at p. 789] and see McNeil, op. cit., p. 174. 3. [1921] 2 A.C., at p. 403. 4. (1973) 130 C.L.R., at p. 397; but note comment by McNeil, op. cit., p. 297, fn. 237. Cf. the Indian title in Ontario under the Proclamation of 1763: St. Catherine's Milling Lumber Co. v The Queen (1888), 14 App. Cas. 46.

[115]

If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor. It would be wrong, in my opinion, to point to the inalienability of land by that community and, by importing definitions of "property" which require alienability under the municipal laws of our society [39] , to deny that the indigenous people owned their land. The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners. True it is that land in exclusive possession of an indigenous people is not, in any private law sense, alienable property for the laws and customs of an indigenous people do not generally contemplate the alienation of the people's traditional land. But the common law has asserted that, if the Crown should acquire sovereignty over that land, the new sovereign may extinguish the indigenous people's interest in the land and create proprietary rights in its place and it would be curious if, in place of interests that were classified as non-proprietary, proprietary rights could be created. Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown's radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum [40] , enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.

[119]

In Williams v Attorney-General (N.S.W.) [1] and in The Commonwealth v Tasmania (the Tasmanian Dam Case) [2] , there are references to the importance of the revenue derived from exercise of the power of sale of colonial land. The funds derived from sales of colonial land were applied to defray the cost of carrying on colonial government and to subsidize emigration to the Australian Colonies. Further, the power to reserve and dedicate land for public purposes was important to the government and development of the Colonies as it remains important to the government and development of the Commonwealth and the States and Territories. Therefore it is right to describe the powers which the Crown - at first the Imperial Crown and later the Crown in right of the respective Colonies - exercised with respect to colonial lands as powers conferred for the benefit of the nation as a whole [3] , but it does not follow that those were proprietary as distinct from political powers. Nor does it follow that a combination of radical title to land and a power of sale or dedication of that land was not a valuable asset of the Colonies. It can be acknowledged that the nation obtained its patrimony by sales and dedications of land which dispossessed its indigenous citizens and that, to the extent that the patrimony has been realized, the rights and interests of the indigenous citizens in land have been extinguished. But that is not to say that the patrimony was realized by sales and dedications of land owned absolutely by the Crown. What the Crown acquired was a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land. Until recent times, the political power to dispose of land in disregard of native title was exercised so as to expand the radical title of the Crown to absolute ownership but, where that has not occurred, there is no reason to deny the law's protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown's acquisition of sovereignty. Those are rights and interests which may now claim the protection of s. 10(1) of the Racial Discrimination Act 1975 Cth which "clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community": Mabo v Queensland [4] .

[129]

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. Presumably, until the relevant "acts of acknowledgment" occur, the Crown would be the absolute owner of private property but, when those acts occur, the rights and interests acknowledged would revest in their erstwhile possessor. One might think that the consequence of such a rule would be to create or compound chaos. Of course, if the Crown were to confiscate private property as an act of State [14] in acquiring sovereignty of a territory or if the Crown were to extinguish private property pursuant to a law having effect in the territory [15] , thereafter no recognition of the rights and interests which had existed under the old regime would be possible. In either of those events, however, the loss of the rights or interests possessed under the old regime is attributable to the action of the Crown, not to an absence of an act of recognition of those rights or interests. Those cases apart, Lord Dunedin's view that the rights and interests in land possessed by the inhabitants of a territory when the Crown acquires sovereignty are lost unless the Crown acts to acknowledge those rights is not in accord with the weight of authority. For example, Lord Sumner in In re Southern Rhodesia [16] understood the true rule as to the survival of private proprietary rights on conquest to be that "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". This view accords with the old authorities of Case of Tanistry and Witrong and Blany [17] , earlier mentioned. Again, Lord Dunedin's view does not accord with the rule stated by Viscount Haldane in Amodu Tijani [18] : 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. His Lordship does not limit the generality of the first sentence to acquisitions by cession; rather, he appears to be construing the terms of a cession in the light of the general principle by which private proprietary rights survive a change in sovereignty by whatever means. Despite his judgment in Vajesingji Joravarsingji , Viscount Dunedin subsequently accepted [19] that the decision in Amodu Tijani laid down that the cession of Lagos in 1861 "did not affect the character of the private native rights". As Viscount Haldane's statement of the rule was limited neither to the construction of a treaty of cession nor to the cession of Lagos, must it not be taken as the general rule of the common law? Again Lord Denning, speaking for the Privy Council in Adeyinka Oyekan v Musendiku Adele [20] , 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, even though those interests are of a kind unknown to English law. We are not concerned here with compensation for expropriation but we are concerned with the survival of private rights and interests in land and their liability to be extinguished by action of the Crown. The rule in Amodu Tijani was followed by the Privy Council in Sobhuza II. v Miller [21] where the title of an indigenous community, which their Lordships thought to be generally usufructuary in character, was held to survive as "a mere qualification of a burden on the radical or final title of whoever is sovereign", capable of being extinguished "by the action of a paramount power which assumes possession or the entire control of land." 1. Cook v Sprigg [1899] AC. 572, at pp. 578-579; Winfat Ltd. v Attorney-General [1985] AC. 733, at p. 746. 2. (1924) L.R. 51 Ind. App., at p. 361. 3. As in Secretary of State in Council of India v Kamachee Boye Sahaba (1859), 7 Moo. Ind. App. 476 [19 E.R. 388]; but cf. Attorney-General v Nissan [1970] AC. 179, at p. 227, and Burmah Oil Co. Ltd. v Lord Advocate [1965] AC. 75. 4. As in Winfat Ltd. v Attorney-General [1985] AC. 733. 5. [1919] A.C., at p. 233. 6. Supra, p. 59. 7. [1921] 2 A.C., at p. 407. 8. In Sakariyawo Oshodi v Moriamo Dakolo [1930] AC. 667, at p. 668. 9. [1957] 1 W.L.R. 876, at p. 880; [1957] 2 All E.R. 785, at p. 788. 10. [1926] A.C., at p. 525.

[140]

It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Such a right or interest can be acquired outside those laws and customs only by the Crown [25] . Once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown's sovereignty over all land in the territory carries the capacity to accept a surrender of native title. The native title may be surrendered on purchase or surrendered voluntarily, whereupon the Crown's radical title is expanded to absolute ownership, a plenum dominium, for there is then no other owner [26] . If native title were surrendered to the Crown in expectation of a grant of a tenure to the indigenous title holders, there may be a fiduciary duty on the Crown to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation [27] , but it is unnecessary to consider the existence or extent of such a fiduciary duty in this case. Here, the fact is that strangers were not allowed to settle on the Murray Islands and, even after annexation in 1879, strangers who were living on the Islands were deported. The Meriam people asserted an exclusive right to occupy the Murray Islands and, as a community, held a proprietary interest in the Islands. They have maintained their identity as a people and they observe customs which are traditionally based. There was a possible alienation of some kind of interest in two acres to the London Missionary Society prior to annexation but it is unnecessary to consider whether that land was alienated by Meriam law or whether the alienation was sanctioned by custom alone. As we shall see, native title to that land was lost to the Meriam people in any event on the grant of a lease by the Crown in 1882 or by its subsequent renewal.

[172]

A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title. If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium. Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable.

[173]

As the Governments of the Australian Colonies and, latterly, the Governments of the Commonwealth, States and Territories have alienated or appropriated to their own purposes most of the land in this country during the last two hundred years, the Australian Aboriginal peoples have been substantially dispossessed of their traditional lands. They were dispossessed by the Crown's exercise of its sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown's purposes. Aboriginal rights and interests were not stripped away by operation of the common law on first settlement by British colonists, but by the exercise of a sovereign authority over land exercised recurrently by Governments. To treat the dispossession of the Australian Aborigines as the working out of the Crown's acquisition of ownership of all land on first settlement is contrary to history. Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation. But, if this be the consequence in law of colonial settlement, is there any occasion now to overturn the cases which held the Crown to have become the absolute beneficial owner of land when British colonists first settled here? Does it make any difference whether native title failed to survive British colonization or was subsequently extinguished by government action? In this case, the difference is critical: except for certain transactions next to be mentioned, nothing has been done to extinguish native title in the Murray Islands. There, the Crown has alienated only part of the land and has not acquired for itself the beneficial ownership of any substantial area. And there may be other areas of Australia where native title has not been extinguished and where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title. Even if there be no such areas, it is appropriate to identify the events which resulted in the dispossession of the indigenous inhabitants of Australia, in order to dispel the misconception that it is the common law rather than the action of governments which made many of the indigenous people of this country trespassers on their own land.

[213]

The common law of this country had it origins in, and initially owed its authority to, the common law of England [59] . Under the common law of England, a distinction has traditionally been drawn, for the purposes of identifying the law of a new British Colony, between colonies where British sovereignty was established by cession or conquest and colonies where such sovereignty was established by settlement or "occupancy" [1] . In cases of cession and conquest, the pre-existing laws of the relevant territory were presumed to be preserved by the act of State constituting the Colony but the Crown, as new Sovereign, could subsequently legislate by proclamation pending local representative government. The position was quite different in the case of a settled Colony. Where persons acting under the authority of the Crown established a new British Colony by settlement, they brought the common law with them. The common law so introduced was adjusted in accordance with the principle that, in settled colonies, only so much of it was introduced as was "reasonably applicable to the circumstances of the Colony" [2] . This left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law. The adjusted common law was binding as the domestic law of the new Colony and, except to the extent authorized by statute, was not susceptible of being overridden or negatived by the Crown by the subsequent exercise of prerogative powers. Putting to one side the Crown's prerogative to establish courts and representative local government, the overall position was succinctly explained by the Privy Council in Sammut v Strickland [3] : the "English common law necessarily applied in so far as such laws were applicable to the conditions of the new Colony. The Crown clearly had no prerogative right to legislate in such a case." A fortiori, the Crown had no prerogative right to override the common law by executive act without legislative basis.

[225]

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 That case was concerned with the position in a Colony established by cession and the above passage needs to be modified to take account of the fact that, as has been seen, the Crown had no prerogative right to legislate by subsequent proclamation in the case of a Colony established by settlement. Otherwise, the "guiding principle" which their Lordships propounded is clearly capable of general application to British Colonies in which indigenous inhabitants had rights in relation to land under the pre-existing native law or custom. It should be accepted as a correct general statement of the common law. For one thing, such a guiding principle accords with fundamental notions of justice. Indeed, the recognition of the interests in land of native inhabitants was seen by early publicists as a dictate of natural law [11] . For another, it is supported by other convincing authority [12] applying to a wide spectrum of British Colonies, including a long-standing New Zealand [13] case and recent Canadian cases [14] . In this Court, the assumption that traditional native interests were preserved and protected under the law of a settled territory was accepted by Barwick C.J. (in a judgment in which McTiernan and Menzies JJ. concurred) in Administration of Papua and New Guinea v Daera Guba [15] as applicable to the settled territory of British Papua. 1. [1957] 1 W.L.R. 876, at p. 880; [1957] 2 All E.R. 785, at p. 788. 2. See, e.g., Wolff, Jus Gentium Methodo Scientifica Pertractatum (trans. Drake) (1934), vol. II, pp. 155-160, ss308-313; Vattel, The Law of Nations or Principles of the Law of Nature, London (1797), pp. 167-171; F. de Victoria, De Indis et de Jure Belli Relectiones (ed. Nys, trans. Bate) (1917), pp. 128, 138-139; Grotius, Of the Rights of War and Peace (1715), vol. 2, Ch. 22, pars 9, 10. 3. See, generally, the cases referred to by Professor McNeil in his landmark work, Common Law Aboriginal Title (1989), pp. 173-174, 183-184 and 186-188. 4. See Reg. v Symonds [1847] NZ.P.C.C. 387, at pp. 391-392. 5. See Calder v Attorney-General (British Columbia) [1973] SC.R. 313, at pp. 322-323, 328, 380-393; (1973) 34 D.L.R. (3d) 145, at pp. 152, 156, 193-202; Guerin v The Queen [1984] 2 SC.R. 335, at pp. 376-378; (1984) 13 D.L.R. (4th) 321, at pp. 335-336. 6. (1973) 130 C.L.R. 353, at p. 397; see also, Geita Sebea v Territory of Papua (1941), 67 C.L.R. 544, at p. 557.

[235]

On that approach, the pre-existing native interests with respect to land which were assumed by the common law to be recognized and fully respected under the law of a newly annexed British territory were not confined to interests which were analogous to common law concepts of estates in land or proprietary rights. Nor were they confined by reference to a requirement that the existing local social organization conform, in its usages and its conceptions of rights and duties, to English or European modes or legal notions. To the contrary, the assumed recognition and protection extended to the kinds of traditional enjoyment or use of land which were referred to by the Privy Council in Amodu Tijani. As their Lordships made plain in that [26] and subsequent [27] cases, such a traditional interest would ordinarily be that of a community or group. It could, however, be that of an individual. It could relate to lands which were under actual cultivation or to lands which, like much of the lands involved in the Canadian cases to which their Lordships referred, were left uncultivated but which, under the law or custom observed in the territory, constituted traditional homelands or hunting grounds. What the common law required was that the interest under the local law or custom involve an established entitlement of an identified community, group or (rarely) individual to the occupation or use of particular land and that that entitlement to occupation or use be of sufficient significance to establish a locally recognized special relationship between the particular community, group or individual and that land. In the context of the Privy Council's insistence [28] that English concepts of property might be quite inappropriate and that all that was involved might be the possession of the common enjoyment of a usufruct [29] , it is clear that such a traditional interest could result from the established and recognized occupation and use by a tribe or clan of particular land for purposes such as the obtaining of food [30] .

[252]

The substance of the judgment of the Privy Council in Attorney-General (Quebec) v Attorney-General (Canada) is, upon analysis, inconsistent with the notion that the common law native title was no more than a shadowy entitlement to occupy or use the relevant land until the Crown saw fit to terminate it. Their Lordships recognized that the Indian usufructuary title was "a right" which, while being "personal in the sense that it is in its nature inalienable except by surrender to the Crown" (emphasis added), was a "burden" on the Crown's proprietary estate in the land [17] . They also acknowledged [17] that the Crown's "substantial and paramount estate, underlying the Indian title" [18] did not become "a plenum dominium" "except after a surrender of [the Indian title] to the Crown" [19] . If common law native title conferred no more than entitlement to occupy or use until the Crown or those acting locally on its behalf told the native title-holders to cease their occupation or use, the term "title" would be misleading, the "rights" under it would be essentially illusory 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 proprietary estate and that the title precluded the Crown from possessing "a plenum dominium" would be simply wrong. It is true that, at one point in the judgment, their Lordships, quoting from the Privy Council judgment in the St. Catherine's Milling Case, referred to the Indian title as a personal right "dependent upon the goodwill of the Sovereign" [20] . That phrase may be explicable as a reference to past procedural difficulties in enforcing non-contractual rights against the Crown. Be that as it may, the context of the case makes it highly probable that the phrase was used to distinguish Indian title from an estate in land, and it cannot properly be understood as intended to convey the view that the Indian title was merely a kind of permissive occupancy terminable at will. In that regard, it is relevant to note that what was said in both the majority and minority judgments in the Supreme Court of Canada in the St. Catherine's Milling Case [21] was plainly inconsistent with the suggestion that the Indian occupancy under the native title was merely such a permissive occupancy. Ritchie C.J. (for the majority) stated [22] that the Indians possessed the "right of occupancy" and that the Crown's legal title was "subject to that occupancy, with the absolute exclusive right to extinguish the Indian title either by conquest or by purchase ". Strong J. (in the minority) disregarded the possibility of "conquest" and expressed the view [23] that the lands occupied by the Indians under native title "are, until surrendered, treated as their rightful though inalienable property, so far as the enjoyment and possession are concerned", adding [24] that "these territorial rights of the Indians were strictly legal rights".

[260]

Notwithstanding that the rights of use or occupancy under a common law native title recognized by the law of a settled British Colony were binding upon the Crown, the native inhabitants of such a Colony in the eighteenth century were in an essentially helpless position if their title was wrongfully denied or extinguished or their possession was wrongfully terminated by the Crown or those acting on its behalf. In theory, the native inhabitants were entitled to invoke the protection of the common law in a local court (when established) or, in some circumstances, in the courts at Westminster. In practice, there is an element of the absurd about the suggestion that it would have even occurred to the native inhabitants of a new British Colony that they should bring proceedings in a British court against the British Crown to vindicate their rights under a common law of which they would be likely to know nothing. There were, however, a few occasions on which, even in those times, proceedings were brought in British courts to vindicate the rights of the weak against the actions of the powerful. The case of James Sommersett (the " Negro Case ") [34] provides an example. Even if the native inhabitants of an eighteenth century Colony did somehow institute proceedings against the Crown or its agents in the British courts, however, they would have failed. As has been said, if the Crown had already made an unqualified grant of an inconsistent estate in the relevant land, the common law native title of the inhabitants would have been extinguished. The same position would apply if the Crown had reserved or dedicated the land for some inconsistent public purpose or use in circumstances giving rise to third party rights or assumed acquiescence. True it is that, subject to the effect of any acquiescence, the Crown would have infringed the legal rights of the traditional inhabitants and would have acted wrongfully. The extent of Crown immunity from curial proceedings was, however, such that, no breach of contract being involved, no action would have lain against the Crown to prevent the wrongful act being done or against the Crown or its agents for compensatory damages after it was done [35] . Indeed, until a general remedy was granted by statute against the Crown, the Sovereign's courts would not even entertain the suggestion that the Sovereign would do or had done wrong [36] .

[271]

Any explanation of the absence, in the documents encompassed by the act of State, of any specific reference to existing native interests in the lands of the Colony necessarily involves a degree of speculation. In the context of British experience in North America (including the 1763 Imperial Proclamation [46] which recognized Indian rights of occupation of their traditional homelands) and of the specific instructions to Phillip protecting the Aboriginal inhabitants of Australia from "any unnecessary interruption in the exercise of their several occupations", it is unlikely that there was any actual but unexpressed intent on the part of the Crown that the act of State establishing the Colony of New South Wales should reverse the assumption of the common law or extinguish existing native interests in land throughout the more than 1.4 million square miles of the Colony. The information provided by Cook and those who sailed with him had been misleading about the numbers of native inhabitants. Banks thought that there were "very few inhabitants" on either the eastern coast in general or around Botany Bay [47] and, while admitting that what the inland might produce was "totaly unknown", commented that "we may have liberty to conjecture however that [it is] totaly uninhabited" [48] . In fact, it is now clear that parts of the continent were, for an unindustralized and uncultivated territory, quite heavily populated. If one must speculate, the most likely explanation of the absence of specific reference to native interests in land is that it was simply assumed either that the land needs of the penal establishment could be satisfied without impairing any existing interests (if there were any) of the Aboriginal inhabitants in specific land or that any difficulties which did arise could be resolved on the spot with the assent or acquiescence of the Aboriginals: e.g., by "purchase" (on behalf of the Crown) "of a part of the country from the native inhabitants for articles more agreable and useful to them" [49] .

[298]

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. In his notes to that passage, Wharton was roundly condemnatory of the "native Australians" and their habits. For present purposes, however, the significance of his comments lies in his portrayal of the state of affairs, as regards the Aborigines and the land, which had developed by 1893 [10] : 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. It should be stressed that the statement that "the coarser order of colonists" treated the Aborigines "as wild beasts to be extirpated" was written in 1893 and was obviously a reference to free settlers not to transported convicts [11] . What the extract makes plain is that the oppression and, in some areas of the continent, the obliteration or near obliteration of the Aborigines were the inevitable consequences of their being dispossessed of their traditional lands. 1. See Captain Cook's Journal, op. cit., p. 323. 2. Captain Cook's Journal, op. cit., pp. 323-324. 3. Transportation of convicts to the Australian Colonies ended in 1868.

[303]

Nor can it be said that it did not occur to the Imperial and local authorities that the dispossession of the Aboriginal inhabitants might involve the infringement of rights recognized by the common law. The story of the development of South Australia, including the ineffective reservation in the Letters Patent of 1836 [16] protecting "the rights of any Aboriginal Natives [of South Australia] to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any land therein now actually occupied or enjoyed by such Natives", demonstrates that the contrary was the case [17] . Another example is apposite. In Williams v Attorney-General (N.S.W.) [18] , Isaacs J. referred to Governor Bourke's Proclamation approved by the Colonial Office, refusing to recognize Batman's 1835 Treaty with the local Aboriginal elders for the purchase of a large tract of land on the shores of Port Phillip, as a "very practical application" of the doctrine that the Crown had acquired full legal and beneficial ownership of all the lands of Australia. Examination of the contemporary documents discloses that the purchasers obtained advice from no less an authority than Dr. Stephen Lushington [19] . In an Opinion dated 18 January 1836 [20] , Dr. Lushington advised that the purported grants of land by the Aborigines were "not valid without the consent of the Crown". He added [20] that he did not think "that the right to this Territory is at present vested in the Crown" but that it was "competent to the Crown to prevent such settlements being made by British Subjects, if it should think fit". Presumably, Dr. Lushington was recognizing the radical title and associated right of pre-emption of the Crown but acknowledging the rights in relation to the territory of the Aboriginal occupants. When a copy of Dr. Lushington's Opinion was forwarded to the then Secretary of State for the Colonies, Lord Glenelg, he conceded [21] "the great weight which is due to the deliberate judgment of Dr. Lushington on a question of this nature" but dismissed Dr. Lushington's advice on the specious ground that he must have been "under a misapprehension of some of the most material parts of the case". It is perhaps relevant to mention that, in an earlier despatch to Bourke, Glenelg had written that, although many circumstances had contributed to render him anxious that the "Rights" of the Aborigines "should be studiously defended", to concede to them "any right to alienate to private adventurers would subvert the foundation on which all Proprietary rights in New South Wales at present rest" [22] .

[314]

Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. The ordinary rules of statutory interpretation require, however, that clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation [23] . Thus, general waste lands (or Crown lands) legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title. If lands in relation to which such title exists are clearly included within the ambit of such legislation, the legislative provisions conferring executive powers will, in the absence of clear and unambiguous words, be construed so as not to increase the capacity of the Crown to extinguish or diminish the native title. That is to say, the power of the Crown wrongfully to extinguish the native title by inconsistent grant will remain but any liability of the Crown to pay compensatory damages for such wrongful extinguishment will be unaffected. The executive acts of the Crown under Crown or waste lands legislation will likewise be presumed not to have been intended to derogate from the native title. Thus, when Crown lands or waste lands are transferred to trustees to be held upon trust for Aboriginal interests, it will be presumed, in the absence of clear and unambiguous words, that the lands were intended to be held by the trustees for the holders of the common law native title to the extent necessary to enable enjoyment of their rights of occupation and use.

[320]

In a case where the Crown or a trustee appointed by the Crown wrongly denies the existence or the extent of an existing common law native title or threatens to infringe the rights thereunder (e.g. by an inconsistent grant), the appropriate relief in proceedings brought by (or by a representative party or parties on behalf of) the native title-holders will ordinarily be declaratory only since it will be apparent that the Crown or the trustee, being bound by any declaration, will faithfully observe its terms. Further relief is, however, available where it is necessary to protect the rights of the title-holders. One example of such further relief is relief by way of injunction [25] . Notwithstanding their personal nature and their special vulnerability to wrongful extinguishment by the Crown, the rights of occupation or use under common law native title can themselves constitute valuable property. Actual or threatened interference with their enjoyment can, in appropriate circumstances, attract the protection of equitable remedies. Indeed, the circumstances of a case may be such that, in a modern context, the appropriate form of relief is the imposition of a remedial constructive trust framed to reflect the incidents and limitations of the rights under the common law native title. The principle of the common law that pre-existing native rights are respected and protected will, in a case where the imposition of such a constructive trust is warranted, prevail over other equitable principles or rules to the extent that they would preclude the appropriate protection of the native title in the same way as that principle prevailed over legal rules which would otherwise have prevented the preservation of the title under the common law. In particular, rules relating to requirements of certainty and present entitlement or precluding remoteness of vesting may need to be adapted or excluded to the extent necessary to enable the protection of the rights under the native title.

[324]

Upon the annexation of the Murray Islands to Queensland, the law of Queensland became applicable to them. For its part, the law of Queensland traced back to the law of New South Wales, from whose territory Queensland had been carved by the Imperial Letters Patent and Order in Council of 6 June 1859 [29] . Since the establishment of New South Wales in 1788, there had been no legislation enacted which expressly altered the Colony's domestic law in relation to the preservation and protection of pre-existing native entitlements to the occupation and use of land. Nor had there been any such legislation enacted in Queensland after its establishment as a Colony. There had been some general statutes - Imperial and Colonial - dealing with waste lands and their disposition. In a context where, as has been seen, the rights of occupation and use under common law native title can be "so complete as to reduce any radical right in the Sovereign to one which only extends to comparatively limited rights of administrative interference" [30] , the settled rules of statutory construction required that the general words of those provisions be construed as not intended to extinguish those rights [31] . Accordingly, where lands in respect of which common law native title existed were included in the "waste lands" affected by such legislation, the legislation neither obliterated nor reduced the personal rights of the native title-holders. To the extent that general provisions in such legislation would otherwise have the effect of making the native title-holders trespassers on the relevant land, those provisions must be read as inapplicable to those native title-holders. In particular, the provisions of the Crown Lands Alienation Act 1876 Q did not, of themselves, either extinguish existing common law native title in relation to the lands to which it applied or make them trespassers upon those lands. On the other hand, such legislation did not enhance the nature of common law native title by diminishing or abolishing the capacity of the Crown wrongfully to extinguish it by an inconsistent grant which was not invalid on its face. After Federation, the power of the Crown to deal with land in Queensland and to extinguish native title by inconsistent grant remained in the Crown in right of the State.

[328]

The detailed findings of Moynihan J. of the Supreme Court of Queensland in relation to the issues of fact remitted to that court unavoidably contain areas of uncertainty and elements of speculation. Nonetheless, they provide, for present purposes, a sound basis for some generalizations in relation to native entitlements to the occupation and use of land within the Murray Islands under local law or custom at the time of their annexation to Queensland. It suffices, for the purposes of this judgment, to say that the Meriam people lived in an organized community which recognized individual and family rights of possession, occupation and exploitation of identified areas of land. The entitlement to occupation and use of land differed from what has come to be recognized as the ordinary position in settled British Colonies in that, under the traditional law or custom of the Murray Islanders, there was a consistent focus upon the entitlement of the individual or family as distinct from the community as a whole or some larger section of it. It would seem that, with the exception of the area used by the London Missionary Society, those individual or familial entitlements under traditional law or custom extended to all the land of the Islands. It is true, as the learned Solicitor-General for Queensland submitted, that it is impossible to identify any precise system of title, any precise rules of inheritance or any precise methods of alienation. Nonetheless, there was undoubtedly a local native system under which the established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to found a presumptive common law native title. In circumstances where the strong assumption of the common law was unaffected by the act of State annexing the Islands, the effect of the annexation was that the traditional entitlements of the Meriam people were preserved. The radical title to all the lands of the Islands vested in the Crown. The Crown's proprietary estate in the land was, however, reduced, qualified or burdened by the common law native title of the Islanders which was thereafter recognized and protected by the law of Queensland. It is unnecessary to determine whether the lands of the Islands became, upon annexation, Crown lands for the purposes of the Crown Lands Alienation Act. If they did, the common law native title of the Islanders was not extinguished but remained a burden on the underlying title of the Crown, and any provisions of that Act which would have the effect of modifying the common law native title or restricting the rights of use and occupation of the Islanders were, to that extent, inapplicable.

[350]

The plaintiffs are Murray Islanders and members of the Meriam people. Each of them claims rights in specified parcels of land on 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. The plaintiffs contend that their rights are of a kind that have been enjoyed by the Meriam people since time immemorial. They say that these rights were not extinguished upon the assumption of sovereignty by the Crown over the Murray Islands at the time of annexation. And, while the plaintiffs acknowledge that the traditional land rights for which they contend are of a kind which may be extinguished at any time by the Crown, they say that they can only be extinguished by clear and unequivocal action so that, in effect, specific legislation is required. Thus the plaintiffs deny that the rights which they claim can be extinguished by manifest policy on the part of the Crown. In particular, the plaintiffs deny that the Queensland Crown lands legislation, which is of a kind found in all States of Australia, is sufficient to extinguish traditional land rights. The plaintiffs say that the Crown has taken no steps, other than by the Queensland Coast Islands Declaratory Act 1985 Q, to extinguish their traditional land rights. That Act, which amongst other things declared that upon annexation the Murray Islands were vested in the Crown in right of Queensland freed from all other rights, was held by a majority in Mabo v Queensland [35] upon certain assumptions to be invalid, in the sense of inoperative, under s. 109 of the Constitution by reason of its inconsistency with the Racial Discrimination Act 1975 Cth. It is implicit in the plaintiffs' case that, because any further legislation to extinguish their rights in the land would be inconsistent with the Racial Discrimination Act, they are, while that Act is in force, secure in their enjoyment of those rights.

[364]

Amodu Tijani v Secretary, Southern Nigeria [3] is a case in which the Crown did accord recognition to rights existing prior to the assumption of sovereignty by the Crown. In that case certain territory, comprising the colony of Lagos, was ceded by the Eleko (effectively the King of Lagos) to the British Crown and the issue to be determined was the basis for the calculation of compensation for land which was taken for public purposes under the Public Lands Ordinance 1903 of the colony. The cession itself was made on the footing that the rights of property of the inhabitants were to be fully respected, although there was no doubt that the radical title to the land vested in the British Crown at the time of cession [4] . These rights included the seigneurial rights of the "white cap chiefs" to receive rent or tribute from the occupiers of land allotted to them by the chiefs, the rights of the white cap chiefs to family lands held individually by them and the communal usufructuary right of the members of the native community to communal lands [5] . This arrangement of itself would have conferred no rights upon those inhabitants because the municipal courts cannot enforce obligations under a treaty against the sovereign, but it did afford some evidence of the recognition of those rights by the new sovereign. There was, however, other evidence of recognition of those rights. For example, the native inhabitants were assured that it was the settled intention of the British Government to secure them in the possession of all their rights and privileges existing at the time of the cession [6] . Moreover, in so far as the white cap chiefs' seigneurial rights were concerned, the lower courts noted that the British Government was apparently aware of their continued exercise after cession and did not prevent this, although it sometimes disregarded these rights by, for example, granting the land away to others [7] . Finally, the Privy Council considered that the system of Crown grants applying in the colony was not introduced with a view to altering substantive titles already existing but to define properly these substantive titles and to facilitate a system of conveyancing [8] . In the course of its judgment the Judicial Committee of the Privy Council noted that the precise incidents and nature of the rights held by the native inhabitants of the land (whether individually or communally) depended on the particular circumstances and that "[a]bstract principles fashioned a priori are of but little assistance, and are as often as not misleading" [9] . The Privy Council went on to conclude that the radical title to the land, which was then in the Crown as a result of the cession, was "throughout qualified by the usufructuary rights of communities, rights which, as the outcome of deliberate policy, have been respected and recognized" [10] . In reaching this conclusion, the Privy Council noted that "[a] mere change in sovereignty is not to be presumed as meant to disturb rights of private owners" [11] .

[367]

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. His Lordship went on to say that in inquiring what rights are recognized there is one guiding principle, namely: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. His Lordship then expounded a second proposition: 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. For the latter of these two propositions, Lord Denning cited as authority Amodu Tijani v Secretary, Southern Nigeria . Of course in Lagos there was legislative provision for the payment of compensation for the compulsory acquisition of such land. There is, however, no general proposition to be found, either in law or in history, that the Crown is legally bound to pay compensation for the compulsory acquisition of land or any interests in it by the exercise of sovereign rights. The first proposition - the guiding principle - may express sentiments which had emerged by the mid-nineteenth century, but whether, in any particular case, a change of sovereignty is accompanied by a recognition or acceptance by the new sovereign of pre-existing rights is a matter of fact. There is no basis for a general presumption either for or against recognition or acceptance by the new sovereign of pre-existing rights, although a presumption in favour of their recognition may be raised in the interpretation of a treaty of cession [14] . 1. [1957] 1 W.L.R. 876; [1957] 2 All E.R. 785. 2. ibid., at p. 880; p. 788. 3. Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC., at p. 407.

[421]

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. On advice that a condition to this effect could not validly be inserted in Crown leases by the local Government, Fitz Roy requested an Order in Council giving the necessary authority [3] . As a result, an Order in Council dated 18 July 1849 was made enabling the Governor to insert in pastoral leases "such conditions, clauses of forfeiture, exceptions, and reservations, as may be necessary for securing the peaceful and effectual occupation of the land comprised in such leases, and for preventing abuses and inconveniences incident thereto". Earl Grey considered that this Order in Council would enable the Governor "to prevent the injury to the public which would result from the absolute exclusion of natives or other persons travelling or searching for minerals and so forth" [4] . The somewhat imprecise wording of this Order in Council is self-evident and it was thus a safe prediction that "as the Earl refused to declare that the native rights deserved respect, they would not be respected" [4] . Thus, although a clause reserving to the Aborigines "free access to the said parcel of land" or to any portion of it including the trees and water which would "enable them to procure the animals, birds, fish and other foods of which they subsist" was apparently inserted in Queensland leases [5] , the squatters ignored this provision and, by and large, they continued to drive the aboriginal inhabitants from their runs. 1. Despatch No. 24 Earl Grey to Fitz Roy dated 11 February 1848 [H.R.A. (1925), i. 26.223, p. 225]. 2. Despatch No. 221 Fitz Roy to Earl Grey dated 11 October 1848 [H.R.A. (1925), i. 26.632]. 3. Quoted in Rusden, History of Australia (1883), vol. II, p. 513. 4. Quoted in Rusden, History of Australia (1883), vol. II, p. 513. 5. Reynolds, The Law of the Land (1987), p. 144.

[461]

This Act was repealed by the Aboriginals Preservation and Protection Act 1939 Q (s. 3) but the Murray Islands reserve was continued, and regulated, as a reserve under the Torres Strait Islanders Act 1939 Q (s. 1(4)(a)). Certain sections of the Aboriginals Preservation and Protection Act, which was to be read and construed with the Torres Strait Islanders Act [29] , also applied to the Murray Islands reserve. The former Act continued the office of Chief Protector of Aboriginals, albeit in the guise of the Director of Native Affairs (s. 6(1)), and the latter Act provided that a designated Protector of Aboriginals was to be the Protector of Islanders for the purposes of that Act (s. 4(2)). The Torres Strait Islanders Act also made detailed provision for the regulation of the affairs of the aboriginal inhabitants, including the protection and management of their property [30] . Further, it established a council to govern each island reserve in Torres Strait which was to be elected from among the native inhabitants of the relevant reserve (s. 11). Each council was to exercise "the functions of local government of the reserve" and was charged with "the good rule and government of the reserve in accordance with island customs and practices" (s. 18(1)). For these purposes the council was empowered to make by-laws, including by-laws in relation to the "subdivision of land and use and occupation of land, buildings and use and occupation of buildings, boundaries and fences" (s. 18(1), (3)). However, the by-laws were to be of no force or effect until approved by the Director (s. 18(8)). This Act also provided for an island court for each reserve consisting of members of the council (s. 20(1)), which was to adjudicate on all offences committed by islanders on the reserve against the by-laws of the reserve (s. 20(2)). Provision was made for appeal from a decision of the island court to the Protector of Islanders (s. 20(11)). The Governor in Council was given extensive power to make regulations for, among other things, the welfare, control and supervision of islanders and the jurisdiction and procedure of island courts (s. 6).

[463]

The Aboriginals Preservation and Protection Act and the Torres Strait Islanders Act were repealed by the Aborigines' and Torres Strait Islanders' Affairs Act 1965 Q (s. 4(1)). The Murray Islands reserve was, however, continued as a reserve under that Act (s. 4(2)(a)(ii), (v)). This Act created the position of Director of Aboriginal and Island Affairs (which was occupied by the former Director of Native Affairs) (s. 10(1), (2)). This position was later incorporated [31] . In the case of the Murray Islands the Director was also appointed trustee of the reserve [32] . The office of protector was abolished, but the previous superintendents of reserves became managers of the communities which resided on those reserves (s. 4(2)(b)(i), (ii)). Under the Act a district officer in the district in which a reserve was situated was given the power to manage and deal with the property of any islander residing on the reserve where the officer was satisfied that this was in the best interests of the islander or his dependent family members (ss. 27, 28), although the district officer could be required to cease doing so on the order of a stipendiary magistrate (s. 29). The island councils were continued (s. 45(1)(b)) with similar functions and powers although in addition they were empowered to levy a rate and to impose fees, charges, fares, rents and dues in respect of any property, service, matter or thing for the purpose of enabling them to exercise and perform their functions (s. 47). The island courts were also continued (s. 52(1)), but an appeal lay in the first instance to a group representative appointed under the Act (s. 51) and then to the district officer (s. 52(2)). The Governor in Council was also given extensive power to make regulations for, among other things, the administration of reserves and the employment, welfare and control of islanders residing on the reserves (s. 60). Pursuant to this power the Aborigines' and Torres Strait Islanders' Regulations 1966 were promulgated. They dealt with, among other things, the administration of reserves, entry on to reserves and the jurisdiction, powers and procedure of island courts.

[473]

The findings of fact made by Moynihan J. upon the remitter of this matter to the Supreme Court of Queensland are consistent with the conclusions which I have arrived at from a consideration of the legislation passed and executive action taken, namely that as from annexation traditional native title in the land was not recognized by the Crown (or, what amounts to the same thing, was extinguished by the Crown). In particular, Moynihan J. found that there was no concept of public or general community ownership of land before the arrival of Europeans but that all land was considered to be in the possession of a particular individual or family group. Whatever the true character of traditional native title, it seems that it can only be claimed by or on behalf of a group of native inhabitants and that it does not support the claim of an individual to a particular parcel of land. Of course this of itself does not deny the possibility that the Crown has recognized or granted to the native inhabitants of the Murray Islands after annexation something more than traditional native title, and more akin to private ownership of the land. But Moynihan J. was able to go only so far as to find that, prior to European contact, the native inhabitants of the Murray Islands had a strong sense of the propriety of respecting and not trespassing on "someone else's place or locality"; his Honour found this attitude to be "ingrained in the culture of the people rather than objectively laid down and enforced by some distinct agency - rather like our (or more likely another age's) concept of good manners for example than the traffic regulations enforced by the police force". This respect for another's "place or locality" was not due to any spiritual or religious relationship with the land or necessarily to any intrinsic value of the land as such; instead, it was at least partly due to "the need to control access in the terms of distribution or sharing life sustaining or socially advantageous resources in a potentially volatile social environment". In other words, controlled access to land on the basis of social groupings was necessary for social harmony. In addition Moynihan J. found that the disposition of and dealings in village land and garden land at this time essentially depended on whatever basis was acceptable to those directly affected and, to the extent to which a wider community might be affected, whatever basis was acceptable to that community. Moynihan J. concluded that, prior to the arrival of Europeans:

[482]

In my view, the conclusion is inevitable that, assuming the native inhabitants of the Murray Islands to have held some sort of rights in the land immediately before the annexation of those islands, the Crown in right of the Colony of Queensland, on their annexation, exerted to the full its rights in the land inconsistently with and to the exclusion of any native or aboriginal rights. It did so under the law which it brought with it. It did so from the start by acting upon the assumption (which was also the assumption lying behind the relevant legislation) that there was no such thing as native title and that the Crown was exclusively entitled to all lands which had not been alienated by it: lands which were designated as Crown lands. In making provision for the reservation of land for public purposes, in particular the welfare of the aboriginal population, the relevant legislation and the action taken pursuant to it disclose no intention to preserve native rights in the land: they were simply thought not to exist. The reservation of land for the use of the aboriginal population was in the exercise of a benevolent jurisdiction whereby the land was to be controlled by the Crown in accordance with a legislative scheme which was inconsistent with the exertion of native rights, communal or otherwise, in the land. If any ambiguity arose from the fact that practically the whole of the Murray Islands were reserved and the fact that the aboriginal inhabitants were allowed to continue in occupation of the land more or less as they had been in the past (or at all events since European contact), that ambiguity is resolved when it is recognized that the scheme under which the islands were reserved extended to the whole of the colony and was elsewhere plainly incompatible with the preservation of any native title and consistent only with the assertion by the Crown of full and complete dominion over land. Indeed, the creation of aboriginal reserves was for the purpose of actually retaining the land within the control of the Crown or its agencies in order that it might be administered for the benefit of the aboriginal population of the colony. Further, aboriginal reserves were not created in a manner which coincided with the aboriginal inhabitants' occupation of the land. On the contrary, aboriginal reserves were created without any regard to aboriginal title.

[531]

Finally, the plaintiffs contend that the land comprising the Murray Islands was not Crown land within the meaning of the Crown Lands Alienation Act 1876 (if the reserve was established in 1882) or within the meaning of the Land Act 1910 (if the reserve was established in 1912). According to the plaintiffs, waste land or Crown land must mean land which is genuinely vacant and unoccupied so that the Crown can take a full possessory title over it based on occupation which does not displace any other occupation. They say that if land occupied by indigenous peoples, such as the Murray Islands, were to be treated as waste land or Crown land it would result in those indigenous peoples becoming trespassers upon annexation. This argument is unsustainable. As I have already stated, waste land designates land that has not been alienated by the Crown. This is made clear by the definition of Crown lands in the Land Act 1910 (s. 4). While "Crown lands" are defined in the Crown Lands Alienation Act 1876 (s. 1) as lands "vested in Her Majesty" this does not mean vested in actual possession, as a matter of fact, but vested in legal possession. Of course the Crown does not physically possess waste lands but, as a matter of law, it is considered to possess them so that, for example, it can bring an action for trespass. Land inhabited by an indigenous people whose rights are not recognized by the Crown are therefore waste lands or Crown lands within the meaning of the Crown lands legislation. But the native inhabitants do not become trespassers if, as is the case with the Murray Islands, those native inhabitants occupy the land with the permission of the Crown. The plaintiffs also contend that, even if the Murray Islands are Crown land and so capable of being dealt with as such by the Crown, the Crown in right of the State of Queensland had, and still has, no power to deal with land 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, as opposed to lands on the mainland. The short answer to this contention is that it was the Crown in right of the Colony of Queensland which annexed the Murray Islands to Queensland under the authority of Imperial letters patent, later confirmed by Imperial legislation. The Crown in right of Queensland had power to deal with waste lands in that colony and upon annexation the Murray Islands fell within the ambit of that power.

[571]

(iii) Occupancy of land 1. See Calder [1973] SC.R., at p. 375; (1973) 34 D.L.R. (3d), at pp. 189-190. 2. (1924) L.R. 51 Ind. App. 357. 3. (1915) L.R. 42 Ind. App. 229. 4. (1947) 34 A.I.R. (P.C.) 1. 5. (1955) 348 U.S. 272. 6. (1924) L.R. 51 Ind. App., at p. 360. 7. (1971) 17 F.L.R., esp. at pp. 223-227. 8. See also Hookey, The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?, Federal Law Review, vol. 5 (1972) 85. 9. [1919] A.C. 211, at p. 233. 10. [1921] 2 A.C., at pp. 407, 410. 11. [1984] 2 S.C.R. 335, at pp. 378-379; (1984) 13 D.L.R. (4th) 321, at p. 336. 12. (1991) 79 D.L.R. (4th) 185. 13. [1919] A.C. 211, at p. 233. 14. [1921] 2 A.C., at p. 407. 15. Secretary of State in Council of India v Kamachee Boye Sahaba (1859), 7 Moo. Ind. App. 476 [19 E.R. 388]. 16. [1919] A.C., at pp. 233-234. 17. ibid., at p. 234. 18. (1971) 17 F.L.R., at pp. 244-245, 262. 19. ibid., at p. 198. 20. ibid., at p. 264. 21. [1921] 2 A.C., at pp. 402-403. 22. (1971) 17 F.L.R., at p. 267. 23. ibid., at p. 268. 24. ibid., at pp. 272-273. 25. [1980] 1 F.C. 518, at p. 557; (1979) 107 D.L.R. (3d) 513, at p. 542. 26. See Calder [1973] SC.R., at p. 372; (1973) 34 D.L.R. (3d), at p. 187. 27. Bartlett, Aboriginal Land Claims at Common Law, University of Western Australia Law Review, vol. 15 (1983) 293, at p. 310. 28. vol. 15 (1983), at pp. 311, 319-320. See now Ontario (Attorney-General) v Bear Island Foundation (1991), 83 D.L.R. (4th) 381; Hamlet of Baker Lake, [1980] 1 F.C., at pp. 557-558; (1979) 107 D.L.R. (3d), at p. 542; Reg. v Sparrow [1990] 1 SC.R. 1075; (1990) 70 D.L.R. (4th) 385. 29. See Calder [1973] SC.R., at p. 328; (1973) 34 D.L.R. (3d), at p. 156. 30. Sac and Fox Tribe of Indians of Oklahoma v United States (1967), 383 F. 2d 991, at p. 998. 31. [1980] 1 F.C., at pp. 559-560; (1979) 107 D.L.R. (3d), at pp. 544-545. 32. This is not to say that a nomadic lifestyle cannot amount to possession at common law: see McNeil, pp. 202-204. 33. Alcea Band of Tillamooks v United States (1945), 59 F. Supp. 934, at p. 965; affirmed (1946) 329 U.S. 40. 34. (1971) 17 F.L.R., at p. 152. 35. [1980] 1 F.C., at pp. 557-558, 562; (1979) 107 D.L.R. (3d), at pp. 542, 546. 36. (1941) 314 U.S. 339, at p. 345; see also Alcea Band of Tillamooks (1945), 59 F. Supp., at p. 965. 37. Blackburn J. in Milirrpum (1971), 17 F.L.R., at p. 273, expressly left open the possibility of a larger group establishing traditional title.

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[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. It is said that possession is the root of title [40] . To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land - both leasehold and freehold [41] . And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land [42] . It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumbersomeness and ineffeciency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages [43] , emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth [44] and by Pollock and Maitland [45] ; it is unnecessary to repeat what is said by those writers. 1. Bracton on the Laws and Customs of England, (Thorne Tr.) (1977), vol. III, p. 134. 2. Asher v Whitlock (1865), 1 Q.B. 1; Perry v Clissold [1907] AC. 73; Calder [1973] SC.R., at p. 368; (1973) 34 D.L.R. (3d), at p. 185; Megarry and Wade, Law of Real Property, 5th ed. (1984) (hereafter Megarry and Wade), pp. 105-106; Pollock and Wright, pp. 22, 94-95. Cf. Holdsworth, A History of English Law, 2nd ed. (1937), vol. VII, (hereafter Holdsworth, vol. VII), pp. 64-65, but see analysis of Holdsworth, vol. VII, in Allen v Roughley (1955), 94 C.L.R. 98, at pp. 134ff. 3. Holdsworth, vol. VII, p. 9. 4. Bristow v Cormican (1878), 3 App. Cas. 641, at p. 661; Megarry and Wade, pp. 105, 1158-1159. 5. Holdsworth, A History of English Law, 5th ed. (1942), vol. III (hereafter Holdsworth, vol. III), pp. 3-4; Holdsworth, vol. VII, p. 4. 6. Holdsworth, vol. III, pp. 3-29. 7. The History of English Law, 2nd ed. (1898), vol. II (hereafter "Pollock and Maitland"), pp. 46-80.