Elder John Jones: Fraser Island - Submssion to UN ________

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APPENDIX 3: A DISCUSSION OF FRASER ISLAND AND THE GREAT SANDY REGION LEGAL BASIS FOR CLAIM

1.1 PROPOSITION

It is proposed that :-

(i) The Aboriginal people who have an interest in the land at Fraser Island and the Great Sandy Region referred to in this submission ( the "Aboriginal people" ) have a title to the land on Fraser Island recognisable by the common law which is based upon:

(a) their possessory title from which they have been forcefully and wrongly deprived, or

(b) their pre-existing Aboriginal title which has neither been surrendered nor validly extinguished by legislation.

(ii) The legal rights of the Aboriginal people based upon their title have not been time barred by the operation of the Statute of Limitations or the Doctrine of Laches.

(iii) The Commission is afforded by this inquiry an unique opportunity to recommend a process by which issues relating to the Aboriginal claim to Fraser Island and the Great Sandy Region can be dealt.

1.2 THE TITLE OF THE ABORIGINAL PEOPLE TO FRASER ISLAND AND THE GREAT SANDY REGION

(a) Common Law Possessory Title

Common law has long recognised peaceful possession of land as

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the basis for establishing title. There is a common misconception that title can only be acquired by crown grant. At common law a mere possessor of land has title that goes with possession. 1 This title remains whilst the person is in possession and is presumed to be a fee simple title. If the original acquisition of possession was not obtained wrongly there is in addition presumptive title which can allow recovery of the possession of the land in various circumstances including where there is wrongful taking of that possessory title. Adverse possession also provides title based on possession. 2

The emphasis of the common law on possessory title derives from its concern that it protect the peaceful possession of land and disallow the forceful acquisition of title. Indeed, Blackstone in his "Commentaries on the Laws of England" 3 stated that :-

Property, both in lands and movables, being thus originally required by first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains with him, by the principles of universal law, until such time as he does some other act which "shews an intention to abandon it".

He added that to have any other system of laws would lead to a situation where "all property would soon be confined to the most strong or the most cunning", which would amount to "a transgression of the law of society, which is a kind of secondary law of nature". 4

1 See Allen V. Roughley (1955) CLR 98 where the High Court found that possession provides prima facie evidence of title. See also K. McNeil "Common Law Aboriginal Title" (Clarendon Press, Oxford 1989) at 74.
2 See A.J. Bradbrok, S.V. MacCallum and A.P. Moore "Australian Real Property Law" (Law Book Company; Sydney, 1991) at 559.
3 2nd ed., Book II (Oxford; Clarendon Press,1767) at 9.
4 Ibid.

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Although under Australian law the Crown holds ultimate sovereignty over Australian territory which provides the basis for its law making authority and the Crown holds prima facie title to all land, this does not of itself extinguish or abolish any underlying possessory interests in land. The burden is on the Crown to establish its title against a person in possession of the land. 5 Evidence will be provided to the Commission to establish that the Aboriginal People were in possession of Fraser Island and Great Sandy region after the Crown made its claim of sovereignty over Australian territory, including Fraser Island and the Great Sandy Region.

Thus, assuming prior possession the Aboriginal people hold possessory and presumptive title from which it will be shown they were forcefully and wrongfully ousted by the Crown, its agents and others.

(b) Aboriginal Title

Alternatively, the Aboriginal people have an Aboriginal title to the land at Fraser Island and the Great Sandy Region which is recognisable at common law. Aboriginal title is similar in many respects to common law possessory title, however, it contains a number of elements which derive from the unique historic and social characteristics relating to the Aboriginal possessors.
There is no authoritative Australian decision which denies the existance of Aboriginal title recognisable at common law.
The Northern Territory decision of Milirrpum v. Nabalco 6 which denied that Aboriginal propriety interest in land was capable of recognition by the common law was determined by a single judge of the Supreme Court of the Northern Territory and is therefore not binding authority. In any event it has been criticised by the Supreme Court of Canada and has been widely

5 K. McNeil "Common Law Aboriginal Title" (Clarendon Press; Oxford 1989) 106-7.
6 (1971) 17 FLR 141

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criticised by academic commentators. 7

It is anticipated that the High Court in Mabo v. Queensland will for the first time make an authoritative Australian determination upon the nature of pre-existing Aboriginal title recognisable by the common law. The plaintiffs in that case brought their action before the High Court in the exercise of its original jurisdiction. The High Court remitted the question of determining the facts to Justice Monynihan of the Supreme Court of Queensland. Moynihan J. handed down his finding of fact in December 1990. The High Court is likely to hear the legal argument in relation to the case in May of this year. The determination of the High Court is likely to be available in November or December of this year.

In the absence of any authoritative Australian decisions, reliance must be made upon the persuasive authority of non-binding Australian decisions and decisions of other relevant former British colonies such as the United States, Canada and New Zealand to determine the nature of Aboriginal title. There is therefore no authoritative case in Australia which rules out the existence of Aboriginal title recognisable by the common law and there is, as will be discussed below, a large body of law recognising the existence of Aboriginal title.

1.3 PRE-EXISTING ABORIGINAL TITLE

The United States Supreme Court has long held that the European claim of sovereignty over American territory provided "ultimate dominion" over the land to the European claimants, but that sovereignty was subject "to the Indian right of occupancy" which gave the Indians "a legal as well as a just claim to retain

7 See Calder v. Attorney-General of British Colombia (1973) SCR 313 at 372-5; Hookey "Gove Land Rights Case" (1972) 5 Fed LR; Priestly "Communal Native Title and the Common Law" (1974) 6 Fed. LR 150; Hocking "Does Aboriginal Law now run in Australia?" (1979) 10 Fed LR 161 and Bartlett, "Aboriginal Land Claims at Common Law" (1983) 15 UWALR 293.

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possession of it". 8 The Canadian Supreme Court ruled in Guerin v. The Queen 9 that the rights of the aboriginal people in the lands they traditionally occupied "both predated and survived the claims to sovereignty made by the various European nations in the territories of the North American continent" 10
The United States Supreme Court held in Johnson v. M'Intosh that European acquisition of the United States territory did not affect the pre-existing Indian title to their land as "they were admitted to be the rightful occupants of the soil with a legal as well as a just claim to retain possession of it and to use it according to their own discretion . . ." 11 That case was relied upon by Dickson J. in Guerin as authority for the principle that "discovery which justified (European claims to sovereignty) gave the ultimate title in the land in a particular area to the nation which had discovered and claimed it. In that respect, at least, the Indians' rights in the land were obviously diminished; but their rights of occupancy and possession remained unaffected". 12

On this basis the Aboriginal people have an underlying Aboriginal title to their land providing they can establish their long and historic attachment to the land prior to and for a time after European contact.
If their title is established on the basis of their historic attachment, the question then arises as to whether :-

a) the Aboriginal title has been extinguished through specific legislation;

b) the title has been surrendered by the Aboriginal people; or

8 See Johnson v. M'Intosh (1823) 21 US 543 at 574
9 (1984) 2 SCR 335. See also New Zealand Maori Council v. Attorney-General (1987) NZ LR 641.
10 Ibid at 378.
11 Supra, per Marshall C.J. at 573.
12 Guerin, supra at 377.

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c) their legal rights are unenforceable due to their absence from the land for a prolonged period of time.

(a) Extinguishment of Title

Aboriginal title may be extinguished by consent or by legislation. Consent generally involves an agreement or treaty whereby the Aboriginal people agree to surrender their claims in return for legislated land title and financial assistance and other entitlements from the Government. This process is presently taking place in Canada as part of the comprehensive lands claims agreements process. 13

Aboriginal title can also be extinguished by legislation. However, as the extinguishment involves the exappropriation of property, the common law presumption against seizures of property without compensation applies. Such legislation must be "cear and plain" and cannot be lightly implied. 14
In the Canadian case of Calder v. Attorney-General of British Colombia 15 the Supreme Court Canada split 3/3 as to whether extinguishment could be implied from general land ordinances or whether specific legislation providing a "clear and plain" indication of extinguishment was required. 16
Hall J. was of the opinion that legislation must be plain and unambiguous as shown either by surrender to the Crown or by competent legislative authority, and

13 See N.Peterson and M. Langton eds. "Aborigines, Land and Land Rights" (Aust. Inst. Aboriginal Studies, Canberra, 1983) pp 405 - 438; B.W. Morse ed. "Aboriginal Peoples and the Law: Indian, Metis and Intuit Rights" (Carleton Uni Press; Ottawa, 1989), pp. 617-694; Report of the Task Force to Review Comprehensive Claims Policy "Living Treaties: Lasting Agreements" (Dept. of Indian Affairs and Northern Development, Ottawa, 1985).
14 See US v. Santa Fe Pacific Railroad Company (1941) 314 US 339.
15 (1973) SCR 313.
16 Ibid. pp 393 and 402.

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then only be specific legislation. In a subsequent Canadian case, it was held that "an Indian title can not compulsorily be divested in the absence of a clear indication on the part of the legislature". This being "a special application of the general presumption that the legislature does not in the absence of clear words, intend to interfere with the existing rights". 17 In Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development 18 the court held that legislation does not require specific reference to the Aboriginal title which it seeks to extinguish to amount to a clear and plain intent to extinguish title.
In US v. Santa Fe Pacific Railway Company the court held that "an extinguishment cannot be likely implied in view of the avowed solicitude of the Federal Government of the welfare of its Indian Wards". 19

It is arguable that the grant of fee simple title under the Real Property Act is itself a sufficiently specific act by the Crown in extinguishing the underlying Aboriginal interest in the land.
The overseas authorities referred to above and academic opinion is somewhat divided on this point. 20
Given this doubt, it is unlikely that the Commission would seek to displace the Crown grant of fee simple.
It is unclear as to whether the grant of general or special leases under the Land Act is sufficient in itself to extinguish Aboriginal title. However, leaving that matter aside for the present there is little doubt on the basis of overseas authority that unalienated Crown land is land upon which the Aboriginal interest has not been extinguished unless there is express legislation to the contrary. For present purposes the establishment of Crown Reserve land or State Forest, National Parks or other forms of Crown land

17 Paul v. Canadian Pacific Ltd (1983) 2 DLR (4th) 22.
18 (1979) 017 DLR (3rd) 513 at 551.
19 Supra.
20 R.H. Bartlett, "Aboriginal Claims of Common Law" (1983) 15 Uni of W.A. LR 293 at 331 and 341.

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would not amount to an alienation from the Crown and therefore would not constitute an extinguishment of Aboriginal title.

(b) Surrender of Title

The United States and Canadian authorities recognise that either through the treaty process or (as in Canada) the Comprehensive Lands Claims Agreement process the Aboriginal title holders are able to surrender their pre-existing Aboriginal title to the land in exchange for negotiated benefits set out in a treaty or comprehensive lands claims agreement. 21 There is no record of this process ever having taken place in relation to the original occupants of Fraser Island or the Great Sandy Region.

Indeed, the strong evidence is that the right to the land on Fraser Island was in the last century strongly defended by the Aboriginal occupants. It is noted by Henry Reynolds in "Frontier" 22 that:-

Maryborough's early settlers suffered extreme anxiety for more than a decade. The district was densely forested; it had a large Aboriginal population and Fraser Island provided a secure sanctuary to which the blacks could retreat after forays on the mainland. Travel outside the settlement was considered dangerous for years. In 1852 it was reported that labourers were fearful to go any distance from the village because they were "apprehensive of certain destruction". During the following year the Commissioner of

21 Supra. See also P.G. Hugh "Aboriginal Servitudes and the Transfer of Land Act 1952" (1986) 16 VUWLR 313. In relation to the Alaska Native claims Settlement Act which terminated native title while granting the natives fee simple title to 40 million acres, see 16 USC 1601-28, also see D.S. Case "Alaska Natives and American Laws" (Uni of Alaska Press; Fairbanks, 1984), T.R. Berger "Village Journey: The Report of the Alaska Native Title Review Commission" (Hill & Wang; New York, 1985).
22 Allen and Unwin; Sydney, 1987 at 19.

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Crown Lands reported that it was hazardous to travel the four miles from his camp to the township and his men were unwilling to go to the garden, or to the creek for water or even into the paddock without their guns... In 1852 people were "daily apprehensive of an attack upon our village" while a year later the Commissioner of Crown Lands reported that it was almost impossible for him to describe the "constant state of alarm in which the towns people are kept from a dread of agression of the blacks".

Eventually, however, attempts by the Aborigines to retain possession of their land failed and they were forcefully and without consent removed from Fraser Island and the Great Sandy Region. Evidence of the level of forcefulness and violence used by non-Aboriginal people to remove them from Fraser Island or the Great Sandy Region can be gleaned from the records relating to the conduct toward Aboriginal people at nearby Maryborough. The records of white people in relation to the violence used to expel them from their land is for understandable reasons far from complete. However, a number of incidences can be referred to so as to gain an indication of the nature of the force used. As examples provided by Reynolds:-

... a group of Maryborough boys acted out a grisly parody of a punitive expedition. They went out one evening with their guns. They surrounded the camp of the "town blacks" in the accustomed manner. A 12 year old presented his gun at an old woman and ordered her to get up and dance. She refused. He pulled the trigger and blew her brains out. 23

In Queensland the native police occasionally arrested "town blacks", marched them a mile or two down the road and shot them. In 1876, for instance, an Aborigine known as Jimmy was taken out of the township of Maryborough and executed. The incident came to public notice because the fire kindled to dispose of the evidence only smouldered and local

23 Ibid at 62.

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children found the half roasted corpse a few days later. In April 1861 Sub-Lieutenant Bligh led his troopers into Maryborough to disperse the town blacks. A couple were shot in the street, others were picked off while swimming in the river. By then a crowd had gathered to witness the spectacle. 24

But despite sporadic violence, the towns were safer for the blacks than the bush. Even small settlements had residents opposed to the use of indiscriminate violence and who afforded protection to the local Aborigines. In the larger towns newspapers and police forces restrained the more brutal members of the community. In the bush many squatters developed a stern paternalism which stopped short of murder. Yet in the absence of restraint it is likely that Aborigines were often killed, their fate passing unnoticed outside the immediate district. 25

Part 11.2.4 of the Commission's final discussion papers refers to other evidence of the forced removal of the Aboriginal people from the land at Fraser Island and the Great Sandy Region. Thus Aboriginal title to the land at Fraser Island and the Great Sandy Region has not been voluntarily surrendered by the Aboriginal people or by their descendants.

It might be argued that any entitlement the Aboriginal people had to their land after European contact was subsequently lost due to their physical absence from the land. That is, their present lack of possesion of the land, statute bars their present claim to the land. These arguments were raised in the American Supreme Court Case of County of Oneida, New York v. Oneido Indian Nation

24 Ibid at 67.
25 Ibid at 68.

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of New York State. 26

In that case the Oneida Indians claimed that their ancestors conveyed 100,000 acres of their land to the State of New York under a 1795 agreement that violated the federal Trade and Intercourse Act of 1793 and thus the transaction was void. They sought and gained an order from the court for damages representing the fair rental value for part of the land presently owned and occupied by the County of Oneida and Madison.

The appellant petitioners to the Supreme Court argued that any cause of action the respondent Indians may have had was now time barred. The majority of the Supreme Court rejected that argument . They held that "an action of ejectment could be maintained on an Indian right to occupancy and use" of their land. 27 They held on the basis of congressional policy that the federal statute of limitations did not apply to the action. However, the dissenting judges in that case were of the opinion that the federal statute of limitations applied generally. Despite their view that the statute had general application they were of the opinion that:-

Nevertheless, there are unique considerations in cases involving Indian caims that warrant departure from the ordinary practice. Indians have long occupied a protected status in our law and in the 19th century they were often characterised as wards of the State. At common law, conveyance of persons subject to similar disabiities were void. 28

The minority, therefore, who did not rely on the congressional policy to find that the federal satute of limitations did not apply relied upon the characterisation of the Indians as "Wards

26 (1985) 470 US 226.
27 Ibid at 235.
28 Ibid at 258.

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of the State" to find that the statute did not apply. Canadian law, however, like the Australian law, does not have a long line of legal authority recognising the trust relationship between the Crown and the native people. Despite that, in the Canadian case of Guerin v. The Queen the court held that the Crown owed a fiduciary duty to act in the best interests of the Aboriginal people whose title derives from their pre-existing Aboriginal title to the land. Dickson J. stated that "it does not matter, in my opinion, that the present case is concerned with the interest of an Indian band in a reserve rather than with unrecognised Aboriginal title in traditional lands". 29 On that basis it can be argued that the Crown owes either a fiduciary duty or a duty as a trustee towards the Aboriginal people.

In Australia, as in the United States and Canada, a trustee cannot obtain a title to land by way of adverse possession against the beneficiaries. 30 Thus the trustee cannot benefit by obtaining the land under the trust against the interests of the beneficiary. The trustee cannot rely on the statute of limitations to bar the beneficiary's claim. Therefore, as the minority concluded in Oneida "the statute of limitations applicable to actions seeking to gain recovery of the real estate conveyed under such disabilities (as suffered by the beneficiary) did not begin to run against a ward until his unique disabilities had been overcome". 31

However the minority in Oneida II relied on the equitable doctrine of laches to reach the conclusion that the respondents claim was barred. That doctrine focuses on "legitimate reliance and inexcusable delay". 32
The minority in that case relied on the fact that the Oneida Indian nation in 1795 entered into a

29 Supra at 378.
30 See "Australian Real Property Law" Bradbrook, McCallum and Moore, supra at 581.
31 Oneida II supra at 259.
32 Ibid at 261.

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conveyance of their land freely made for valuable consideration. It was the absence of any evidence of deception, concealment, or interference with the tribe's right to assert a claim and the fact that in their view there was ample claim for the Oneida Indians to bring a claim, that the doctrine of laches applied.
By way of contrast, in the case of Aboriginal people at Fraser Island and the Great Sandy Region, no attempt was ever made to gain any lawful conveyance of their land or in any other way attempt a settlement with them. Therefore, the doctrine of laches is unlikely to be successfully sustained against the Aboriginal people.

Thus, in lands which have been transferred to third parties who are bona fide purchasers without notice of the trust relationship of the Crown, there may be a valid claim that the statute of limitations operates. That is, the statute of limitations may operate in favour of the bona fide purchasers who may include private purchasers who have acquired fee simple title from the Crown under the Real Property Act.
However, those lands held by the Crown as either National Parks or State Forests or in any other form are held subject to the trust or fiduciary duty the Crown owes to the Aboriginal people. As a consequence the Crown cannot defeat the Aboriginal claim on the basis of arguments dependant upon the operation of the Statute of Limitations.

1.4 NEGOTIATED SETTLEMENT

The Commission may recommend that a process be embarked upon in which the descendants of the original occupants of the land negotiate with representatives of the Crown in the right of Queensland for the statutory codification of the Aboriginal possessory title to the land. The terms of the negotiated settlement may include an agreement that legislation be enacted which grants the Aboriginal people unalienable freehold title to the greater part of the Island and the Great Sandy Region. However, some of which land may, under the terms of the negotiated settlement, be leased back to the National Parks Authority and be

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jointly managed by the National Parks Authority and the Aboriginal People. The Commission may recommend a process and timetable for such negotiated settlement.

This process may form the basis for a model which could be applied throughout other parts of Australia where Aboriginal title has not been validly extinguished or surrendered. This provides the Commission with an unique opportunity to outline the process which in anticipation of the High Court findings in Mabo that Aboriginal people are entitled to claim pre-existing Aboriginal title, allowing the orderly resolution of disputed claim of the Aboriginal people to their land.

1.5 CONCLUSION

There is a strong body of legal precedent which recognises that title can be derived from possession which has not been wrongly derived. Such title can be surrendered or extinguished by specific legislation.
Alternatively, in the absence of binding Australian authority, the common law in the other former British colonies can be relied upon to determine the nature and existence of Aboriginal title. The decisions of the Supreme Courts of the United States and Canada and the Court of Appeal of New Zealand emphasise that the European claim of sovereignty over the land now forming their nations did not of itself abolish or otherwise extinguish the underlying Aboriginal possessory title in the land.

The legal entitlements to the land at Fraser Island and the Great Sandy Region were never voluntarily surrendered by the Aboriginal people. No legislation has been passed extinguishing their possessory or Aboriginal title, with the possible exception of legislation granting fee simple title. In any event the statute of limitations may prevent Aboriginal claimants pursuing those who hold fee simple title. However, the Crown cannot maintain a defence using the Statute of Limitations against the Aboriginal people in relation to Crown land as such a defence is not available to a trustee against its beneficiaries. The Crown

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stands as a trustee or fiduciary for the benefit of the Aboriginal inhabitants of Australia.

The Aboriginal interest in the majority of Fraser Island and the Great Sandy Region remains as an underlying interest which has never been lawfully extinguished or surrendered. The interest is in obeyance.
The Commission has a unique opportunity to recommend a process by which the underlying interest can be properly and lawfully dealt with through the process of a negotiated settlement. The processes used in Canada and Alaska can be referred to as a basis for the negotiation process. Any model recommended by the Commission may well serve as a basis for resolving the outstanding claims for Aboriginal and Torres Strait Islander people throughout Australia. It will provide a process which will confront an important issue of fundamental justice which has been ignored in many parts of Australia for almost 200 years.