Mabo v Queensland (1992)

Facts

The Plaintiff [Mabo, representing the Merriam people] had occupied

certain islands in Queensland long before colonial occupation. The
present inhabitants were direct descendants of those people described
in colonial reports.
The islands were annexed to the Crown in 1879.

After being challenged by the Plaintiff in the past, the Queensland

government enacted the Queensland Coast Islands Declaratory Act
1985 (Qld). This declared that upon annexation of the islands in 1879,
everything became vested solely in the state of Queensland.

The Plaintiff opposed this, seeking a declaration that this legislation

was invalid as it was contrary to the Racial Discrimination Act
1975 (Cth).

In Mabo (No 1), the court held that the new legislation was indeed
contrary to the Racial Discrimination Act. This case concerned the
question of ownership and title, in particular, whether the common law
doctrine of tenure could coexist with native title.

Argument

Plaintiffs:
1. The Plaintiffs were entitled to use and enjoy the islands as
owners, possessors, occupiers or as persons entitled to use
and enjoy the islands;
2. The islands were not and never had been Crown land per
the Land Act 1962 (Qld) and previous Crown lands legislation;
3. The Defendant was not entitled to extinguish the title of the
Plaintiff.

Defendant:

1. When the land became part of the Crowns dominions, the law
of England applied to the colony.
2. The Crown thus acquired absolute beneficial ownership of all
land.
The Crown is absolute owner because there is no other

proprietor (terra nullius).

When English law was brought to Australia with and by

British colonists, the common law to be applied in the colonies

included the feudal doctrine of tenure (the feudal basis) .
All land in a colony is patrimony of the nation. The

Crown acquired ownership of the patrimony on behalf of the

nation (the patrimony basis).
The Crown acquired property in all land on the Royal

Prerogative (the prerogative basis).

3. No right or interest in any land could be possessed by any
person thereafter, unless granted by the Crown.

Issues
Native Title:

Whether the Crown acquired full beneficial ownership or

radical title to the land in the Murray Islands.

The nature and extent to which the feudal doctrine of

tenure applied in Australia, as a colony of England.

The nature and incidents of native title claims, and the

extent to which they burden the Crowns radical title, having
survived the Crowns acquisition of sovereignty.

The Crowns power to extinguish native title

circumstances which do, do not or just conditionally extinguish
native title.

Whether rights under common law native title are true

legal rights which are recognised and property by the law, whose
extinguishment would give rise to a claim for compensation
under s 51 (xxxi) of the Constitution.

Judgement
Radical Title

Upon arrival in Australia, the Crown acquired radical title. If

Australia were truly terra nullius, this radical title would become
into absolute beneficial title of the Crown. However,
since Australia was inhabited (and not terra nullius),
radical title did not mean full beneficial ownership.

The Crowns radical title only conferred

sovereignty. Sovereignty did not extinguish native title by
default.

The Applicability of the Feudal Doctrine of Tenure in

Australia

Once the Crown made a land grant, that land was thereafter held
on the basis of tenure, and the Crown got full beneficial
ownership over that land. A title thus acquired cannot be
disturbed.

However, land which was not the subject of such 'grants' were
not acquired by the crown and thus are not subject to the
doctrine of tenure.

Native Title

The common law of Australia recognises a form of native title.

This title reflects the rights of the indigenous inhabitants in
accordance with their laws and customs.

Native title exists where:

The indigenous can prove a continuous connection (from
before the time of colonisation) to the land through traditional
customs; and

This title hasnt been extinguished or modified subsequently

(ie, the Crown hasn't 'granted' it to someone).

Only the indigenous can have native title, and once it is lost (eg,
by purchase, voluntarily, by losing connection with the land, if it
was extinguished by the Crown), it is lost forever.

Native title may be protected by legal and equitable remedies,

provided it is not repugnant to natural justice, equity and good
conscience.

Possession under native title may be enforced by representatives

of the indigenous clan or group.

The Crowns Power to Extinguish Native Title

As the sovereign power, the Crown has the power to extinguish

native title. Once the native title of the Indigenous inhabitants
expires, the radical title of the Crown expands to a full beneficial
title.

There are certain requirements for the Crown to extinguish

native title, the most important being 'a clear and plain
intention to do so'.

Circumstances which do not evince a clear and plain intention

include:

A law merely regulating the enjoyment of native title.

A law creating a regime of control consistent with the

continued enjoyment of native title.

A law authorising the reservation of land from sale to

permit indigenous inhabitants to enjoy native title.

Compensation for Inconsistent Grants and

Extinguishment of Native Title

Extinguishment of native title by the Crown does not entitle the

native title-holders to compensation under s 51 (xxxi) of the
Constitution. However, they may possibly rely on the Racial
Discrimination Act 1975 (Cth) to establish compensation.