MABO AND OTHERS V. QUEENSLAND
High Court of Australia 1992
Page 1 of 2

High Court of Australia

MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014

Aborigines - Constitutional Law - Real Property

COURT
High Court of Australia
Mason C.J.(1), Brennan(2), Deane(3), Dawson(4), Toohey(5), Gaudron(3) and
McHugh(1) JJ.
HRNG
Canberra, 1991, May 28-31; 1992, June 3. #DATE 3:6:1992

JUDGE1
MASON C.J. AND McHUGH J. We agree with the reasons for judgment of Brennan J.and with the declaration which he proposes.

2. In the result, six members of the Court (Dawson J. dissenting) are in
agreement that the common law of this country recognizes a form of native
title which, in the cases where it has not been extinguished, reflects the
entitlement of the indigenous inhabitants, in accordance with their laws or
customs, to their traditional lands and that, subject to the effect of some
particular Crown leases, the land entitlement of the Murray Islanders in
accordance with their laws or customs is preserved, as native title, under the
law of Queensland. The main difference between those members of the Court who
constitute the majority is that, subject to the operation of the Racial
Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the
conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ.
that, at least in the absence of clear and unambiguous statutory provision to
the contrary, extinguishment of native title by the Crown by inconsistent
grant is wrongful and gives rise to a claim for compensatory damages. We note
that the judgment of Dawson J. supports the conclusion of Brennan J. and
ourselves on that aspect of the case since his Honour considers that native
title, where it exists, is a form of permissive occupancy at the will of the
Crown.

3. We are authorized to say that the other members of the Court agree with
what is said in the preceding paragraph about the outcome of the case.

4. Te formal order to be made by the Court accords with the declaration
proposed by Brennan J. but is cast in a form which will not give rise to any
possible implication affecting the status of land which is not the subject of
the declaration in par.2 of the formal order.

 

JUDGE2
BRENNAN J. The Murray Islands lie in the Torres Strait, at about 10 degrees
S. Latitude and 144 degrees E. Longitude. They are the easternmost of the
Eastern Islands of the Strait. Their total land area is of the order of 9
square kilometres. 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 forbears 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.

Early contact with Europeans

2. The Meriam people were in occupation of the Islands for generations before
the first European contact. They are a Melanesian people (perhaps an
integration of differing groups) who probably came to the Murray Islands from
Papua New Guinea. Their numbers have fluctuated, probably no more than 1000,
no less than 400.

3. Some of the features of life in the Murray Islands at the time of first
European contact, at the end of the 18th century, are described by Moynihan J.
in his findings in the present case:
" Communal life based on group membership seems to have
been the predominant feature of life. Many of the
activities of daily life were social activities which took
place in the context of group activities of a ceremonial
or ritualistic nature. Behaviour was regulated in the
interest of the community by social pressures. ...
The people lived in groups of huts strung along the
foreshore or strand immediately behind the sandy beach.
They still do although there has been a contraction of
the villages and the huts are increasingly houses. The
cultivated garden land was and is in the higher central
portion of the island. There seems however in recent times
a trend for cultivation to be in more close proximity with
habitation.
The groups of houses were and are organised in named
villages. It is far from obvious to the uninitiated, but
is patent to an islander, that one is moving from one
village to another. The area occupied by an individual
village is, even having regard to the confined area on a
fairly small island which is in any event available for
'village land', quite small.
Garden land is identified by reference to a named
locality coupled with the name of relevant individuals if
further differentiation is necessary. The Islands are not
surveyed and boundaries are in terms of known land marks
such as specific trees or mounds of rocks.
Gardening was of the most profound importance to the
inhabitants of Murray Island at and prior to European
contact. Its importance seems to have transcended that of
fishing ...
Gardening was important not only from the point of view
of subsistence but to provide produce for consumption
or exchange during the various rituals associated with
different aspects of community life. Marriage and adoption
involved the provision or exchange of considerable quantity
of produce. Surplus produce was also required for the
rituals associated with the various cults at least to
sustain those who engaged in them and in connection with
the various activities associated with death.
Prestige depended on gardening prowess both in terms
of the production of a sufficient surplus for the social
purposes such as those to which I have referred and to be
manifest in the show gardens and the cultivation of yams
to a huge size. Considerable ritual was associated with
gardening and gardening techniques were passed on and
preserved by these rituals. Boys in particular worked with
their fathers and by observations and imitations reinforced
by the rituals and other aspects of the social fabric
gardening practices were passed on."
Later, his Honour said:
" It seems that before European contact social cohesion
was sought by the combined operation of a number of
factors. Children were inculcated from a very early
age with knowledge of their relationships in terms of
social groupings and what was expected of them by a
constant pattern of example, imitation and repetition
with reinforcing behaviour. It was part of their
environment - the way in which they lived. ... Initiation
and other group activities reinforced these patterns. A
sense of shame was the outcome of a failure to observe.
It could be reinforced by group pressures leading to
retribution. Ultimately force might be resorted to by
those who had access to the means of exerting it.
Sorcery, magic and taboo were obviously important
cohesive factors and a source of sanction."
The findings show that Meriam society was regulated more by custom than by
law.

4. Contacts with Europeans were initially few and sporadic. There were
occasional visits by passing ships in the early 19th century. In 1834, two
young British castaways were rescued and they stayed on Mer until a ship
called there 2 years later. The ship's captain, Captain Lewis, recorded that
the natives "acknowledge no chief each family being distinct and independent
of each other. Quarrels frequently take place which, after a fight are
generally followed by a speedy reconciliation." The London Missionary Society
came to the Murray Islands in about 1871 and moved its Torres Strait
headquarters to Mer in 1877. It was a significant influence in keeping the
peace among the Meriam people and in modifying some of their customs. It
appears that, prior to the arrival of the London Missionary Society, elaborate
funeral ceremonies and the collection and preservation of human heads were
features of life in the Murray Islands.

5. Although the Murray Islands, prior to their annexation to Queensland in
1879, were not part of her Majesty's dominions, Imperial and Colonial
authorities were concerned for the maintenance of order in, and the protection
of the indigenous inhabitants of, those Islands and other islands in the
Western Pacific. "Blackbirding" was being practised and in the 1860s the
Murray Islands were raided, women seized and some of the Meriam people
murdered. The Pacific Islanders Protection Acts of 1872 and 1875 (Imp) (1) 35
and 36 Vict c 19 (P9/579); 38 and 39 Vict c 51. were enacted to stamp out
blackbirding (2) See O'Connell and Riordan, Opinions on Imperial
Constitutional Law, (1971), pp 100-103 and to confer on a High Commissioner's
Court jurisdiction over British subjects in the islands of the Western
Pacific. However, the 1875 Act expressly disavowed "any claim or title
whatsoever to dominion or sovereignty over any such islands or places" and any
intention "to derogate from the rights of the tribes or people inhabiting such
islands or places, or of chiefs or rulers thereof, to such sovereignty or
dominion".

6. Nevertheless, it appears that the Queensland authorities exercised some de
facto control in the 1870s over islands in the Torres Strait which were not
part of that Colony's territory. When a proposal to expand the maritime
boundaries of Queensland to include these islands was under consideration,
CommandER Heath, R.N., the Portmaster at Brisbane, reported to the Colonial
Treasurer on 11 December 1877:
"Where any lodgment of Islanders or others for questionable
purposes had been made on the islands beyond our
jurisdiction and yet not within the limits of Polynesia,
the police have been obliged to act as though these islands
did belong to Queensland, the Police Magistrate wisely
considering it a lesser evil to exceed his authority in
this matter than to allow any attempt at settlement on
these islands for improper purposes."

7. The proposal to annex coastal islands that were not already part of
Queensland found favour with the Executive Council. The Hon. John Douglas,
then Premier of the Colony, sent the Governor of Queensland a memorandum dated
27 December 1877 containing the following:
"A sort of police surveillance is even now exercised over
some of the islands outside our limits, but it is certainly
desirable that we should possess a real authority to deal
with the somewhat doubtful characters who are occasionally
found to act in a very independent way. It does not at
all follow that we should form settlements. They will
be frequented by pearl-shellers, and probably eventually
by more permanent settlers. They ought to be visited
occasionally by the Resident Magistrate at Thursday Island,
but it would not be necessary to do more than this at
present, and I do not think that we should have to increase
our expenditure on that account."

8. In July 1878, as Moynihan J. found -
"H.M. Chester the Police Magistrate at Thursday Island
... visited Murray. He advised the people to select a
chief and submit to his authority which, if properly
exercised, would be supported. Harry (Ari) Buzire was
designated. The name Mamoose came to be applied to the
holders of such office throughout the Straits. ... The
reasons for Ari's selection are obscure. He had apparently
no important ritual office or any particular claim to
elevation to central authority which was itself the
creature of Chester's intervention. Ari was provided with
executive capacity in the form of some designated
constables and a boat."

9. The Mamoose, as Moynihan J. found, became "something of an executive arm
to the mission".

Annexation of the Murray Islands

10. Ultimately, the proposal to extend the maritime boundaries of Queensland
to include the Murray and Darnley Islands was adopted by the Colonial Office
and, on 10 October 1878 at Westminster, Queen Victoria passed Letters Patent
"for the rectification of the Maritime Boundary of the Colony of Queensland,
and for the annexation to that Colony of (certain) Islands lying in Torres
Straits, and between Australia and New Guinea". The Murray Islands lay within
the maritime boundary mentioned in the Letters Patent.

11. The Letters Patent authorized the Governor of Queensland by Proclamation -
"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 of 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 (3) (1981) 148 CLR 1, at p 10, 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.

12. In September 1879, Captain Pennefather on the instructions of H.M.
Chester visited the Murray Islands where (as he reported) he "mustered the
natives" and informed them "that they would be held amenable to British law
now the island was annexed". He also noted:
"The Chief acts as magistrate, he has a staff of 10 or 12
men as policemen, they have built a church and courthouse
of which they are very proud, there is also a very good
house belonging to the London Missionary Society this
island being the headquarters for the mission in these
waters."
The system of local administration, established prior to annexation, proved to
be tyrannous in its operation and, in October 1882, Captain Pennefather
reported that he had dismantled it. (It appears from later history, however,
that Harry, the Mamoose, continued to exercise considerable authority.) At
the same time, he reported:
"The natives are very tenacious of their ownership of the
land and the island is divided into small properties which
have been handed down from father to son from generation
to generation, they absolutely refuse to sell their land
at any price, but rent small portions to the beche-de-mer
men and others. These natives, though lazy like all
Polynesians on their islands, build good houses and
cultivate gardens, they are a powerful intelligent race and
a white man is as safe if not safer residing amongst them,
as in Brisbane."
Moynihan J. found that there was apparently no concept of public or general
community ownership among the people of Murray Island, all the land of Murray
Island being regarded as belonging to individuals or groups.

13. In about February 1882, the Queensland Government "reserved" Murray
Island for native inhabitants. In the same year, a special lease of 2 acres
on Mer was granted by the Queensland Government to the London Missionary
Society, which had assumed some responsibility for law and order and for the
peaceful resolution of disputes. Shortly after the Reserve was created, the
Queensland authorities, at the request of the Meriam people, "removed a number
of trespassers" from the Islands.

14. In 1885, the Hon. John Douglas, by then Government Resident at Thursday
Island, went to the Murray Islands to arrange for the eviction of "intruders"
(South Sea Islanders) in order to ensure that "the Murray Islanders will have
Murray Island to themselves". He successfully negotiated the departure of the
intruders. He found Harry, "the Chief or primate of Murray Island", to be a
"benignant despot ... (whose) position is respected."

15. In 1886, the Acting Government Resident at Thursday Island reported to
the Chief Secretary of Queensland on the application of Queensland law:
"I do not see how it will be possible to administer these
islands under the present laws of Queensland, more
especially as touching the land question, and the tenure
under which the native races are to be allowed to hold the
land they own. There is no doubt that if every acre has
not a reputed owner (and I am inclined to think every acre
has) but every grove or single tree of any value has its
proper and legitimate hereditary owner. To disturb these
rights, great care would have to be exercised and the
natives recompensed for any loss that they might suffer
through deprivation."

16. By 1891 the headquarters of the London Missionary Society had been moved
from the Murray Islands. Later, Douglas, in a report on a visit to the Murray
Islands, described the system of government then in place:
"The secular government is conducted by 'Harry', the
recognised chief or headman who is assisted in his
administration by four officers, or 'policemen' so called.
They are recognised by me, and they assist to keep the
peace when it is necessary that their authority should be
invoked, which is not often.
They receive a small annual honorarium, and they are
privileged to wear a uniform. 'Harry' has a whaleboat,
presented to him by the Government, the 'policemen' man
this boat. 'William' a native of New Zealand, is the head
of the spiritual or theocratic government."
Douglas recommended that a teacher and adviser be appointed to reside on the
Islands. John Stuart Bruce took up an appointment to that office in October
1892 and remained there until January 1934.

17. The "system of self-government ... as instituted by the late Hon. John
Douglas, C.M.G." was described by the Chief Protector of Aboriginals in
Queensland in his Annual Report for 1907 as follows:
"The Governing body consists of the native chief or
'mamoose', assisted and advised by the councillors or
elders of the village, with a staff of native police
to uphold his authority and to keep order among the
inhabitants or visitors.
The European school teacher acts as clerk and treasurer of
the native court, assisting with suggestion or advice when
requested, but otherwise has no authority to interfere in
the internal management of affairs.
The mamoose acts as a police magistrate and governor, with
power to deal summarily with offences and breaches of local
regulations, and is directly responsible for the behaviour
and cleanliness of his village to the Government Resident
and Police Magistrate at Thursday Island. He may inflict
punishment by fine or imprisonment upon minor offences, but
misdemeanours and serious offences must be reserved for
the bench at Thursday Island. The councillors attend at
courthouse to assist the mamoose with advice and, in order
of seniority, may act on his behalf during his absence.
They also meet to confer monthly with the mamoose upon any
questions concerning the conduct of affairs.
The native island police, under a native sergeant, are
responsible to the mamoose for the good behaviour of the
inhabitants, etc., and may arrest and lock up offenders till
the next meeting of court. They have also to inspect and
see that each householder keeps his premises and grounds
clean, and that the portion of the public road adjacent to
his residence is kept in good repair and order; also that
the public properties (coconut-trees, fish-traps, etc.), and
buildings (court-house, lock-up, school-house, etc.) are not
damaged or destroyed.
The European teacher resident upon the island acts as clerk
of the court and registrar of births, marriages, and
deaths, keeping all books and records, and also as
treasurer, keeping an account and taking charge of all
collections from fines, taxes upon dogs, etc., the mamoose
having authority to expend all such collections upon public
improvements, repairs, etc."

18. It appears from reports by Mr Bruce that, from the end of the 19th
century, the Mamoose's court entertained cases arising from disputes over land
or land boundaries.

19. When an anthropological expedition from Cambridge visited the Islands in
1898 they found that -
"Queensland has not affected native land tenure which is
upheld in the Court of the Island. In a few instances it
is not impossible that English ideas, especially of
inheritance are making themselves felt. There is no common
land and each makes his own garden on his own land at his
own convenience."
The Island Court, according to Moynihan J., sought "to achieve a consistent
application of certain basic principles" although his Honour went on to say
that -
"the role of the Court was to maintain social harmony by
accommodating peoples wishes as far as possible and doing
what seemed to be right in the circumstances."
Although there was a clear insistence on exclusive possession by the "owners"
of particular blocks of land and a general expectation that land would be
passed on patrilineally, his Honour thought that:
"The ultimate determining factor in terms of the control and
disposition of land was simply what was acceptable in terms
of social harmony and the capacity of an individual to
impose his (it seems almost (always) to have been a him)
will on the community. This was easier done if the claim
had the appearance of certain expected characteristics."
It would not be surprising to find that land disputes in a small community
were settled by a consensus which is arrived at aftER consideration of a
variety of factors. Strict legal rules might have been disruptive of
community life.

20. Without pausing to enquire into the legal support for the "system of
self-government" instituted by Douglas or for the jurisdiction of the Island
Court, it appears that the Meriam people came peacefully to accept a large
measure of control by Queensland authorities and that officials of the
Queensland Government became accustomed to exercise administrative authority
over the Murray Islands. Formal annexation had been followed by an effective
exercise of administrative power by the Government of Queensland.

21. In 1894, some doubts had arisen in the Colonial Office as to the legality
of the annexation of the islands included in the 1879 Letters Patent to
Queensland. Queensland had been separated from New South Wales and erected
into a Colony pursuant to The New South Wales Constitution Act, 1855 (Imp) (4)
18 and 19 Vict c 54 by Letters Patent of 6 June 1859 and an Order in Council
of the same day. The boundaries of the new colony were fixed, the Colony was
granted a constitution with representative institutions and the laws of New
South Wales became the laws of Queensland on separation. The doubts which
arose in the Colonial Office related to the legality of incorporating new
territory into a colony with representative institutions once the boundaries
of the colony were fixed by or under Imperial legislation. To settle these
doubts, the Colonial Boundaries Act 1895 (Imp) (5) 58 and 59 Vict c 34 was
enacted. As this Court held in Wacando, if the Queensland Coast Islands Act
1879 did not suffice to effect the incorporation of the Murray Islands into
Queensland (either by its own force or by satisfying a condition bringing the
Letters Patent of 1879 into operation), the requisite Imperial legislative
authority could be found in the Colonial Boundaries Act.

22. With this brief conspectus of the history of the Murray Islands, we may
now turn to an examination of the effect of annexation on the legal rights of
the members of the Meriam people to the land of the Murray Islands.

The theory of universal and absolute Crown ownership

23. It may be assumed that on 1 August 1879 the Meriam people knew nothing of
the events in Westminster and in Brisbane that effected the annexation of the
Murray Islands and their incorporation into Queensland and that, had the
Meriam people been told of the Proclamation made in Brisbane on 21 July 1879,
they would not have appreciated its significance. The legal consequences of
these events are in issue in this case. Oversimplified, the chief question in
this case is whether these transactions had the effect on 1 August 1879 of
vesting in the Crown absolute ownership of, legal possession of and exclusive
power to confer title to, all land in the Murray Islands. The defendant
submits that that was the legal consequence of the Letters Patent and of the
events which brought them into effect. If that submission be right, the Queen
took the land occupied by Meriam people on 1 August 1879 without their knowing
of the expropriation; they were no longer entitled without the consent of the
Crown to continue to occupy the land they had occupied for centuries past.

24. The defendant's submission is founded on propositions that were stated in
cases arising from the acquisition of othER colonial territory by the Imperial
Crown. Although there are differences which might be said to distinguish the
Murray Islands and the Meriam people of 1879 from other colonial territories
and their indigenous inhabitants when those territories respectively became
British colonies, the propositions on which the defendant seeks to rely have
been expressed to apply universally to all colonial territories "settled" by
British subjects. Assuming that the Murray Islands were acquired as a
"settled" colony (for sovereignty was not acquired by the Crown either by
conquest or by cession), the validity of the propositions in the defendant's
chain of argument cannot be determined by reference to circumstances unique to
the Murray Islands; they are advanced as general propositions of law
applicable to all settled colonies. Nor can the circumstances which might be
thought to differentiate the Murray Islands from other parts of Australia be
invoked as an acceptable ground for distinguishing the entitlement of the
Meriam people from the entitlement of other indigenous inhabitants to the use
and enjoyment of their traditional lands. As we shall see, such a ground of
distinction discriminates on the basis of race or ethnic origin for it denies
the capacity of some categories of indigenous inhabitants to have any rights
or interests in land. It will be necessary to consider presently the racial
or ethnic basis of the law stated in earlier cases relating to the entitlement
of indigenous people to land in settled colonies.

25. On analysis, the defendant's argument is that, when the territory of a
settled colony became part of the Crown's dominions, the law of England so far
as applicable to colonial conditions became the law of the colony and, by that
law, the Crown acquired the absolute beneficial ownership of all land in the
territory so that the colony became the Crown's demesne and no right or
interest in any land in the territory could thereafter be possessed by any
other person unless granted by the Crown. Perhaps the clearest statement of
these propositions is to be found in Attorney-General v. Brown (6) (1847) 1
Legge 312, at p 316, when the Supreme Court of New South Wales rejected a
challenge to the Crown's title to and possession of the land in the Colony.
Stephen C.J. stated the law to be -
"that the waste lands of this Colony are, and ever have
been, from the time of its first settlement in 1788, in
the Crown; that they are, and ever have been, from that
date (in point of legal intendment), without office found,
in the Sovereign's possession; and that, as his or her
property, they have been and may now be effectually granted
to subjects of the Crown".
The reasons for this conclusion were stated (7): ibid., at pp 317-318
"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".
(8) ibid., at p 319.

26. This judgment has formidable support. It was described as "notable" by
Windeyer J. (9) In Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969)
121 CLR 177, at p 194 who followed its doctrine in Randwick Corporation v.
Rutledge (10) (1959) 102 CLR 54, at p 71:
" On the first settlement of New South Wales (then
comprising the whole of eastern Australia), all the land
in the colony became in law vested in the Crown. The
early Governors had express powers under their commissions
to make grants of land. The principles of English real
property law, with socage tenure as the basis, were
introduced into the colony from the beginning - all lands
of the territory lying in the grant of the Crown, and
until granted forming a royal demesne. The colonial Act,
6 Wm IV No. 16 (1836), recited in its preamble that the
Governors by their commissions under the Great Seal had
authority 'to grant and dispose of the waste lands' - the
purpose of the Act being simply to validate grants which
had been made in the names of the Governors instead of
in the name of the Sovereign. And when in 1847 a bold
argument, which then had a political flavour, challenged
the right of the Crown, that was to say of the Home
Government, to dispose of land in the colony, it was as
a legal proposition firmly and finally disposed of by
Sir Alfred Stephen C.J.: The Attorney-General v.
Brown (11) (1847) 1 Legge, at pp 317-320."

27. The doctrine of exclusive Crown ownership of all land in the Australian
colonies was again affirmed by Stephen J. in New South Wales v. The
Commonwealth ("the Seas and Submerged Lands Case") (12) (1975) 135 CLR 337, at
pp 438-439:
" That originally the waste lands in the colonies were
owned by the British Crown is not in doubt. Such ownership
may perhaps be regarded as springing from a prerogative
right, proprietary in nature, such as is described by
Dr. Evatt in his unpublished work on the subject ... the
prerogatives of the Crown were a part of the common law
which the settlers brought with them on settlement
(R. v. Kidman, per Griffith C.J. (13) (1915) 20 CLR 425,
at pp 435-436); 'the prerogative
of the Queen, when it has not been expressly limited by
local law or statute, is as extensive in Her Majesty's
colonial possessions as in Great Britain' (per Lord Watson
speaking for their Lordships in Liquidators of Maritime
Bank of Canada v. Receiver-General (New Brunswick) (14)
(1892) AC 437, at p 441);
cited by Isaacs J. in The Commonwealth v. New South
Wales (15) (1923) 33 CLR 1, at p 37. On the other hand
that ownership may be
described as a consequence of the feudal principle which,
on first settlement in Australia, was 'extended to the
lands oversea', so that all colonial land belonged 'to the
Crown until the Crown chose to grant it' (per Isaacs J. in
Williams' Case (16) Williams v. Attorney-General for New South
Wales (1913) 16 CLR 404, at p 439). In either event the
consequence is
the same, the lands of Australia became the property of the
King of England (Attorney-General v. Brown (17) (1847) 1
Legge, at pp 317-320)."
Dawson J., following this line of authority in Mabo v. Queensland (18) (1988)
166 CLR 186, at p 236, said that "colonial lands which remained unalienated
were owned by the British Crown".

28. The proposition that, when the Crown assumed sovereignty ovER an
Australian colony, it became the universal and absolute beneficial owner of
all the land therein, invites critical examination. If the conclusion at
which Stephen C.J. arrived in Attorney-General v. Brown be right, the
interests of indigenous inhabitants in colonial land were extinguished so soon
as British subjects settled in a colony, though the indigenous inhabitants had
neither ceded their lands to the Crown nor suffered them to be taken as the
spoils of conquest. According to the cases, the common law itself took from
indigenous inhabitants any right to occupy their traditional land, exposed
them to deprivation of the religious, cultural and economic sustenance which
the land provides, vested the land effectively in the control of the Imperial
authorities without any right to compensation and made the indigenous
inhabitants intruders in their own homes and mendicants for a place to live.
Judged by any civilized standard, such a law is unjust and its claim to be
part of the common law to be applied in contemporary Australia must be
questioned. This Court must now determine whether, by the common law of this
country, the rights and interests of the Meriam people of today are to be
determined on the footing that their ancestors lost their traditional rights
and interests in the land of the Murray Islands on 1 August 1879.

29. 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 (19) See Australian
Consolidated Press Ltd. v. Uren (1967) 117 CLR 221, at pp 238, 241; (1969) AC
590, at pp 641, 644. Increasingly since 1968 (20) See the Privy Council
(Limitation of Appeals) Act 1968 (Cth) and see the Privy Council (Appeals from
the High Court) Act 1975 (Cth), 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 (21) Cook v. Cook (1986) 162 CLR 376, at pp 390,
394; Viro v. The Queen (1978) 141 CLR 88, at pp 93, 120-121, 132, 135,
150-151, 166, 174, 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 (22) Jones v. The Commonwealth (1987)
61 ALJR 348, at p 349; 71 ALR 497, at pp 498-499; John v. Federal Commissioner
of Taxation (1989) 166 CLR 417, at pp 438-439, 451-452; McKinney v. The Queen
(1991) 171 CLR 468, at pp 481-482. 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.

30. In the present case, the defendant's chain of argument contains several
links, each of which must be separately considered although, as we shall see,
a common theme or thread runs through them. Some of these links are
unchallenged. We start with the proposition that the Imperial Crown acquired
sovereignty over the Murray Islands on 1 August 1879 and that the laws of
Queensland (including the common law) became the law of the Murray Islands on
that day - or, if it be necessary to rely on the Colonial Boundaries Act 1895,
is deemed to have become the law of the Murray Islands on that day. Next, by
the common law, the Crown acquired a radical or ultimate title to the Murray
Islands. The plaintiffs accept these propositions but challenge the final
link in the chain, namely, that the Crown also acquired absolute beneficial
ownership of the land in the Murray Islands when the Crown acquired
sovereignty ovER them.

31. As the passages cited from the judgments in Attorney-General v. Brown and
the Seas and Submerged Lands Case show, the proposition that, by the common
law, the Sovereign acquired absolute beneficial ownership of all land in the
Murray Islands rests on a number of bases. In the first place, it is said
that the Crown is absolute owner because "there is no othER proprietor". This
basis denies that the indigenous inhabitants possessed a proprietary interest.
The negative basis is then buttressed by three positive bases to show why it
is necessary to attribute absolute beneficial ownership to the Crown. One
basis is that, 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. Just as the Crown acquired or is deemed to have acquired
universal ownership of all land in England, so the Crown became the owner of
all land in the Australian colonies. We may call this the feudal basis.
Another basis is that all land in a colony is "the patrimony of the nation"
and, on this basis, the Crown acquired ownership of the patrimony on behalf of
the nation. A third basis is the prerogative basis mentioned by Stephen J. in
the Seas and Submerged Lands Case. In order to determine whether, on any or
all of these bases, the Crown acquired beneficial ownership of the land in the
Murray Islands when the Crown acquired sovereignty over them, we must first
review the legal theories relating to the acquisition of sovereignty and the
introduction of the common law.

The acquisition of sovereignty

"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 (23)
New South Wales v. The Commonwealth (1975) 135 CLR, at p 388, 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 (24) 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 CLR 528, at pp 565-566; A Raptis and Son v. South
Australia (1977) 138 CLR 346, at p 360; cf. Bonser v. La Macchia (1969) 122
CLR 177, at pp 193, 217, where the meaning of a constitutional term was in
issue. In Post Office v. Estuary Radio Ltd., Diplock L.J. said (25) (1968) 2
QB 740, at p 753:
" 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 (26) (1981) 148
CLR, per Gibbs C.J. at p 11; per Mason J. at p 21. See also Coe v. The
Commonwealth (1979) 53 ALJR 403, per Jacobs J. at p 410.

32. Although the question whether a territory has been acquired by the Crown
is not justiciable before municipal courts, those courts have jurisdiction to
determine the consequences of an acquisition under municipal law.
Accordingly, the municipal courts must determine the body of law which is in
force in the new territory. By the common law, the law in force in a
newly-acquired territory depends on the manner of its acquisition by the
Crown. Although the manner in which a sovereign state might acquire new
territory is a matter for international law, the common law has had to march
in step with international law in order to provide the body of law to apply in
a territory newly acquired by the Crown.

33. 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 (27) See E. Evatt, "The
Acquisition of Territory in Australia and New Zealand" in (1968) Grotian
Society Papers, p 16, who mentions only cession and occupation as relevant to
the Australasian colonies. 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 (28) Worcester v. Georgia (1832) 6 Pet 515, at pp 543-544 (31 US
350, at p 369), 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 (29) Lindley, The Acquisition and
Government of Backward Territory in International Law, (1926), Chs III and IV.
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 (30) See
Lindley, ibid., p 47. 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 (31) See Williams, The American
Indian in Western Legal Thought, (1990), pp 78ff; and Johnson v. McIntosh
(1823) 8 Wheat 543, at p 573 (21 US 240, at p 253). 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 18th 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 (32) Vattel, The Law of
Nations (1797), Bk I, pp 100-101. See Castles, An Australian Legal History,
(1982), pp 16-17. 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 (33) 10 Encyclopaedia of Public International Law,
(1987), p 500; cf. J. Crawford, "The Criteria for Statehood in International
Law", (1977) 48 The British Year Book of International Law 93, at p 116.

34. The enlarging of the concept of terra nullius by international law to
justify the acquisition of inhabited territory by occupation on behalf of the
acquiring sovereign raised some difficulties in the expounding of the common
law doctrines as to the law to be applied when inhabited territories were
acquired by occupation (or "settlement", to use the term of the common law).
Although Blackstone commended the practice of "sending colonies (of settlers)
to find out new habitations", he wrote (34) Commentaries on the Laws of
England, 17th ed. (1830), Bk II, ch 1, p 7-
"so long as it was confined to the stocking and cultivation
of desert uninhabited countries, it kept strictly within
the limits of the law of nature. But how far the seising
on countries already peopled, and driving out or massacring
the innocent and defenceless natives, merely because
they differed from their invaders in language, in religion,
in customs, in government, or in colour; how far such
a conduct was consonant to nature, to reason, or to
christianity, deserved well to be considered by those,
who have rendered their names immortal by thus civilizing
mankind".
As we shall see, Blackstone's misgivings found a resonance in international
law after two centuries (35) Advisory Opinion on Western Sahara (1975) 1 ICJR
12. But he was unable to declare any rule by which the laws of England became
the laws of a territory which was not a "desert uninhabited" country when the
Crown acquired sovereignty over that territory by discovery and occupation as
terra nullius. As the British acquisition of sovereignty over the Colony of
New South Wales was regarded as dependent upon the settlement of territory
that was terra nullius consequent on discovery (36) See E. Evatt, op cit, at p
25; Cooper v. Stuart (1889) 14 App Cas 286, and as the law of New South Wales
is the source of the law applicable to the Murray Islands, we must next
examine the basis on which the common law was received as the law of the
Colony of New South Wales.

Reception of the common law

35. The means by which the municipal laws of England, including the common
law, became the law of a country that had been outside the King's dominions
were stated by Blackstone (37) Commentaries, Bk I, ch.4, pp 106-108; accord:
Forbes v. Cochrane (1824) 2 B and C 448, at p 463 (107 ER 450, at p 456) as
follows:
"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 (38) Blankard v. Galdy (1693)
Holt KB 341 (90 ER 1089); Campbell v. Hall (1774) Lofft 655, at p 741 (98 ER
848, at pp 895-896); Beaumont v. Barrett (1836) 1 Moo PC 59 (12 ER 733). 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
(39) Campbell v. Hall, (1774) Lofft, at pp 741, 742 (98 ER, at pp 895, 896).
The same rule applied to ceded colonies, though the prerogative may have been
limited by the treaty of cession (40) 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 ER 356); Buchanan v. The
Commonwealth (1913) 16 CLR 315, at p 334. 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" (41) Commentaries, Bk I, ch 4, p 107; State
Government Insurance Commission v. Trigwell (1979) 142 CLR 617, at pp 625,
634. 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" (42) 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. That law was not amenable
to alteration by exercise of the prerogative (43) Sammut v. Strickland (1938)
AC, at p 701. 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 (44) Ruding v. Smith (1821) 2 Hag.Con.371 (161 ER
774); Freeman v. Fairlie (1828) 1 Moo Ind App 306, at pp 323-325, aff p 341
(18 ER 117, at pp 127-128, 137); cf. Campbell v. Hall (1774) Lofft, at p 741
(98 ER, at pp 895,896). See also Yeap Cheah Neo v. Ong Cheng Neo (1875) 6 LR
381, at p 393; cf. Reg. v. Willans (1858) 3 Kyshe 16, at pp 20-25; and see Re
Loh Toh Met (1961) 27 MLJ 234, at pp 237-243; Khoo Hooi Leong v. Khoo Chong
Yeok (1930) AC 346, at p 355. This rule was applied even to English residents
in Eastern countries which were not under British sovereignty (45) The "Indian
Chief" (1801) 3 C Rob 12, at pp 28-29 (165 ER 367, at pp 373-374).

36. When British colonists went out to other inhabited parts of the world,
including New South Wales, and settled there undER the protection of the
forces of the Crown, so that the Crown acquired sovereignty recognized by the
European family of nations under the enlarged notion of terra nullius, it was
necessary for the common law to prescribe a doctrine relating to the law to be
applied in such colonies, for sovereignty imports supreme internal legal
authority (46) See A. James, Sovereign Statehood, (1986), pp 3ff., 203-209.
The view was taken that, when sovereignty of a territory could be acquired
under the enlarged notion of terra nullius, for the purposes of the municipal
law that territory (though inhabited) could be treated as a "desert
uninhabited" country. The hypothesis being that there was no local law
already in existence in the territory (47) Lyons (Mayor of) v. East India Co.
(1836) 1 Moo PC 175, at pp 272-273 (12 ER 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 PC 63, at pp 84-85 (13 ER 225, at p
233), the law of England became the law of the territory (and not merely the
personal law of the colonists). Colonies of this kind were called "settled
colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had
no recognized sovereign, else the territory could have been acquired only by
conquest or cession. The indigenous people of a settled colony were thus
taken to be without laws, without a sovereign and primitive in their social
organization. In Advocate-General of Bengal v. Ranee Surnomoye Dossee (48)
(1863) 2 Moo N S 22, at p 59 (15 ER 811, at p 824); 9 Moo Ind App 391, at p
428 (19 ER 786, at p 800) Lord Kingsdown used the term "barbarous" to describe
the native state of a settled colony:
" 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 (49) His Lordship may have wrongly appreciated the history of
Jamaica: see Roberts-Wray, op cit, pp 46-47, 851-852, the negro inhabitants
presumably being of no significance (50) See (1774) Lofft, at p 745 (98 ER, at
p 898). 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 (51)
(1889) 14 App Cas, at p 291:
" 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 (52) 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 PC, at pp 84-85 (13 ER, at
p 233); Falkland Islands Co. v. The Queen (1863) 2 Moo PC (NS) 266, at p 273
(15 ER 902, at p 905); Sabally and N'Jie v. H.M. Attorney-General (1965) 1 QB
, at p 294. (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 (53) 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", (1938) 11 Australian Law Journal 409, at pp 417-422; and Enid
Campbell, "Prerogative Rule in New South Wales, 1788-1823", (1964) 50 Royal
Australian Historical Society 161) 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" (54) See per Lord Watson in
Cooper v. Stuart (1889) 14 App Cas, at p 291; and cf. Roberts-Wray, op cit, p
540. 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 (55) As the subjects of a conquered territory (Calvin's Case (1608) 7 Co
Rep 1a, at p 6a (77 ER 377, at p 384)); Campbell v. Hall (1774) Lofft, at p
741 (98 ER, at p 895) and of a ceded territory (Donegani v. Donegani (1835) 3
Knapp 63, at p 85 (12 ER 571, at p 580)) became British subjects (Lyons (Mayor
of) v. East India Co. (1836) 1 Moo PC, at pp 286-287 (12 ER, at p 823); 1 Moo
Ind App 175, at pp 286-187 (18 ER 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 NSWLR 581, at p 585. Its introduction to New South Wales was
confirmed by s.24 of the Australian Courts Act 1828 (Imp) (56) 9 GEO IV c.83.
As the laws of New South Wales became the laws of Queensland on separation of
the two Colonies in 1859 (57) Letters Patent of 6 June 1859: see p 11 above
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.

The basis of the theory of universal and absolute Crown ownership

37. It is one thing for our contemporary law to accept that the laws of
England, so far as applicable, became the laws of New South Wales and of the
other Australian colonies. It is anothER thing for our contemporary law to
accept that, when the common law of England became the common law of the
several colonies, the theory which was advanced to support the introduction of
the common law of England accords with our present knowledge and appreciation
of the facts. When it was sought to apply Lord Watson's assumption in Cooper
v. Stuart that the colony of New South Wales was "without settled inhabitants
or settled law" to Aboriginal society in the Northern Territory, the
assumption proved false. In Milirrpum v. Nabalco Pty. Ltd. Blackburn J. said
(58) (1971) 17 FLR 141, at p 267:
"The evidence shows a subtle and elaborate system highly
adapted to the country in which the people led their lives,
which provided a stable order of society and was remarkably
free from the vagaries of personal whim or influence. If
ever a system could be called 'a government of laws, and
not of men', it is that shown in the evidence before me."
Faced with a contradiction between the authority of the Privy Council and the
evidence, his Honour held that the class to which a colony belonged was a
question of law, not of fact (59) ibid., at p 244; McNeil, Common Law
Aboriginal Title, (1989), p 292, fn.207; Lester, The Territorial Rights of the
Inuit of the Canadian Northwest Territories: A Legal Argument, (unpublished
doctoral thesis (1981)), pp 100-107, 155-157:
"Whether or not the Australian aboriginals living in any
part of New South Wales had in 1788 a system of law which
was beyond the powers of the settlers at that time to
perceive or comprehend, it is beyond the power of this
Court to decide otherwise than that New South Wales came
into the category of a settled or occupied colony."

38. The facts as we know them today do not fit the "absence of law" or
"barbarian" theory underpinning the colonial reception of the common law of
England. That being so, there is no warrant for applying in these times rules
of the English common law which were the product of that theory. It would be
a curious doctrine to propound today that, when the benefit of the common law
was first extended to Her Majesty's indigenous subjects in the Antipodes, its
first fruits were to strip them of their right to occupy their ancestral
lands. Yet the supposedly barbarian nature of indigenous people provided the
common law of England with the justification for denying them their
traditional rights and interests in land, as Lord SumnER speaking for the
Privy Council said in In re Southern Rhodesia (60) (1919) AC 211, at pp
233-234:
" The estimation of the rights of aboriginal tribes is
always inherently difficult. Some tribes are so low in
the scale of social organization that their usages and
conceptions of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized
society. Such a gulf cannot be bridged. It would be idle
to impute to such people some shadow of the rights known
to our law and then to transmute it into the substance of
transferable rights of property as we know them."

39. As the indigenous inhabitants of a settled colony were regarded as "low
in the scale of social organization", they and their occupancy of colonial
land were ignored in considering the title to land in a settled colony.
Ignoring those rights and interests, the Crown's sovereignty over a territory
which had been acquired under the enlarged notion of terra nullius was equated
with Crown ownership of the lands therein, because, as Stephen C.J. said,
there was "no other proprietor of such lands". Thus, a Select Committee on
Aborigines reported in 1837 to the House of Commons that the state of
Australian Aborigines was "barbarous" and "so entirely destitute ... of the
rudest forms of civil polity, that their claims, whether as sovereigns or
proprietors of the soil, have been utterly disregarded" (61) Cited by Lindley,
op cit, at p 41. The theory that the indigenous inhabitants of a "settled"
colony had no proprietary interest in the land thus depended on a
discriminatory denigration of indigenous inhabitants, their social
organization and customs. As the basis of the theory is false in fact and
unacceptable in our society, there is a choice of legal principle to be made
in the present case. This Court can either apply the existing authorities and
proceed to inquire whether the Meriam people are higher "in the scale of
social organization" than the Australian Aborigines whose claims were "utterly
disregarded" by the existing authorities or the Court can overrule the
existing authorities, discarding the distinction between inhabited colonies
that were terra nullius and those which were not.

40. The theory of terra nullius has been critically examined in recent times
by the International Court of Justice in its Advisory Opinion on Western
Sahara (62) (1975) ICJR, at p 39. There the majority judgment read:
"'Occupation' being legally an original means of peaceably
acquiring sovereignty over territory otherwise than by
cession or succession, it was a cardinal condition of a
valid 'occupation' that the territory should be terra
nullius - a territory belonging to no-one - at the time of
the act alleged to constitute the 'occupation' (cf. Legal
Status of Eastern Greenland, P.C.I.J., Series A/B, No.53,
pp 44 f. and 63 f.). In the view of the Court, therefore,
a determination that Western Sahara was a 'terra nullius'
at the time of colonization by Spain would be possible only
if it were established that at that time the territory
belonged to no-one in the sense that it was then open to
acquisition through the legal process of 'occupation'.
80. Whatever differences of opinion there may have been
among jurists, the State practice of the relevant period
indicates that territories inhabited by tribes or peoples
having a social and political organization were not
regarded as terrae nullius. It shows that in the case of
such territories the acquisition of sovereignty was not
generally considered as effected unilaterally through
'occupation' of terra nullius by original title but through
agreements concluded with local rulers. On occasion, it
is true, the word 'occupation' was used in a non-technical
sense denoting simply acquisition of sovereignty; but that
did not signify that the acquisition of sovereignty through
such agreements with authorities of the country was
regarded as an 'occupation' of a "terra nullius" in the
proper sense of these terms. On the contrary, such
agreements with local rulers, whether or not considered as
an actual 'cession' of the territory, were regarded as
derivative roots of title, and not original titles obtained
by occupation of terrae nullius."
Judge Ammoun, Vice-President of the Court, delivered a separate opinion in
which he commended as penetrating the views expressed on behalf of the
Republic of Zaire which he restated as follows (63) ibid., at pp 85-86:
" Mr. Bayona-Ba-Meya, goes on to dismiss the materialistic
concept of terra nullius, which led to this dismemberment
of Africa following the Berlin Conference of 1885.
Mr. Bayona-Ba-Meya substitutes for this a spiritual notion:
the ancestral tie between the land, or 'mother nature', and
the man who was born therefrom, remains attached thereto,
and must one day return thither to be united with his
ancestors. This link is the basis of the ownership of the
soil, or better, of sovereignty. This amounts to a denial
of the very concept of terra nullius in the sense of a land
which is capable of being appropriated by someone who is
not born therefrom. It is a condemnation of the modern
concept, as defined by Pasquale Fiore, which regards as
terrae nullius territories inhabited by populations whose
civilization, in the sense of the public law of Europe, is
backward, and whose political organization is not conceived
according to Western norms.
One might go still further in analysing the statement
of the representative of Zaire so as to say that he would
exclude from the concept of terra nullius any inhabited
territory. His view thus agrees with that of Vattel, who
defined terra nullius as a land empty of inhabitants."
He concluded (64) ibid., at p 86 that "the concept of terra nullius, employed
at all periods, to the brink of the twentieth century, to justify conquest and
colonization, stands condemned." The court was unanimously of the opinion
that Western Sahara at the time of colonization by Spain in 1884 was not a
territory belonging to no-one (terra nullius).

41. If the international law notion that inhabited land may be classified as
terra nullius no longer commands general support, the doctrines of the common
law which depend on the notion that native peoples may be "so low in the scale
of social organization" that it is "idle to impute to such people some shadow
of the rights known to our law" (65) In re Southern Rhodesia (1919) AC, at pp
233-234 can hardly be retained. If it were permissible in past centuries to
keep the common law in step with international law, it is imperative in
today's world that the common law should neither be nor be seen to be frozen
in an age of racial discrimination.

42. The fiction by which the rights and interests of indigenous inhabitants
in land were treated as non-existent was justified by a policy which has no
place in the contemporary law of this country. The policy appears explicitly
in the judgment of the Privy Council in In re Southern Rhodesia in rejecting
an argument (66) ibid., at p 232 that the native people "were the owners of
the unalienated lands long before either the Company or the Crown became
concerned with them and from time immemorial ... and that the unalienated
lands belonged to them still". Their Lordships replied (67) ibid., at p 234-
"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 (68) See Communication 78/1980 in Selected Decisions of the Human
Rights Committee under the Optional Protocol, vol.2, p 23 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. (69) Gerhardy v. Brown (1985) 159 CLR 70, at p 149 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 (70) (1823) 8 wheat, at p 574 (21 US , at
p 253), 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".

43. However, recognition by our common law of the rights and interests in
land of the indigenous inhabitants of a settled colony would be precluded if
the recognition were to fracture a skeletal principle of our legal system.
The proposition that the Crown became the beneficial owner of all colonial
land on first settlement has been supported by more than a disregard of
indigenous rights and interests. It is necessary to consider these other
reasons for past disregard of indigenous rights and interests and then to
return to a consideration of the question whether and in what way our
contemporary common law recognizes such rights and interests in land.

Crown title to colonies and Crown ownership of colonial land distinguished

44. In the trilogy of cases cited earlier in this judgment (71) Supra, pp
12-15: Attorney-General v. Brown; Randwick Corporation v. Rutledge; the Seas
and Submerged Lands Case, it was said that colonial land became a royal
demesne - that is, that the Crown became the absolute beneficial owner in
possession of all colonial land - on first settlement, the event which
conferred sovereignty on the Imperial Crown. Curiously, in Williams v.
Attorney-General for New South Wales (72) (1913) 16 CLR 404, at p 439, Isaacs
J. said it was unquestionable that -
"when Governor Phillip received his first Commission from
King George III. on 12th October 1786, the whole of the
lands of Australia were already in law the property of the
King of England".
With respect to Isaacs J., that proposition is wholly unsupported.
Roberts-Wray comments (73) Commonwealth and Colonial Law op cit, p 631 that
the proposition is "startling and, indeed, incredible". We need not be
concerned with the date on which sovereignty over the Australian colonies was
acquired by the Crown but we are concerned with the proposition that on, and
by reason of, the acquisition of sovereignty, the Crown acquired all colonial
land as a royal demesne.

45. There is a distinction between the Crown's title to a colony and the
Crown's ownership of land in the colony, as Roberts-Wray points out (74)
ibid., p 625:
"If a country is part of Her Majesty's dominions, the
sovereignty vested in her is of two kinds. The first
is the power of government. The second is title to the
country ...
This ownership of the country is radically different
from ownership of the land: the former can belong only to
a sovereign, the latter to anyone. Title to land is not,
per se, relevant to the constitutional status of a country;
land may have become vested in the Queen, equally in
a Protectorate or in a Colony, by conveyance or under
statute ...
The distinction between these two conceptions has,
however, become blurred by the doctrine that the
acquisition of sovereignty over a Colony, whether by
settlement, cession or conquest, or even of jurisdiction
in territory which remains outside the British dominions,
imports Crown rights in, or in relation to, the land
itself."
Similarly, Sir John Salmond distinguished the acquisition of territory from
the Crown's acquisition of property (75) Jurisprudence, 7th ed. (1924),
appendix "The Territory of the State", p 554:
"The first conception pertains to the domain of public law,
the second to that of private law. Territory is the
subject-matter of the right of sovereignty or imperium
while property is the subject-matter of the right of
ownership or dominium. These two rights may or may not
co-exist in the Crown in respect of the same area. Land
may be held by the Crown as territory but not as property,
or as property but not as territory, or in both rights at
the same time. As property, though not as territory, land
may be held by one state within the dominions of another."
Professor O'Connell in his work International Law (76) 2nd ed. (1970), at p
378, cited by Hall J. in Calder v. Attorney-General of British Columbia (1973)
SCR.313, at pp 404-405; (1973) 34 DLR (3d) 145, at p 210 points to the
distinction between acquisition of territory by act of State and the abolition
of acquired rights:
"This doctrine (of act of State), which was affirmed in
several cases arising out of the acquisition of territory
in Africa and India, has been misinterpreted to the effect
that the substantive rights themselves have not survived
the change."
The acquisition of territory is chiefly the province of international law; the
acquisition of property is chiefly the province of the common law. The
distinction between the Crown's title to territory and the Crown's ownership
of land within a territory is made as well by the common law as by
international law. A.W.B. Simpson (77) A History of the Land Law, 2nd ed.
(1986) distinguishes the land law rule in England that all land is held of the
Crown from the notion that all land is owned by the Crown. Speaking of the
mediaeval conception of materialism, he comments (78) ibid., p 47:
"This attitude of mind also encouraged the rejection of any
theory which would say that the lord 'owned' the land, and
that the rights of tenants in the land were iura in re
aliena. Such a theory would have led inevitably to saying
that the King, who was ultimately lord of all land, was the
'owner' of all land.
The lawyers never adopted the premise that the King
owned all the land; such a dogma is of very modern
appearance. It was sufficient for them to note that the
King was lord, ultimately, of all the tenants in the realm,
and that as lord he had many rights common to other lords
(e.g. rights to escheats) and some peculiar to his position
as supreme lord (e.g. rights to forfeitures)."
The general rule of the common law was that ownership could not be acquired by
occupying land that was already occupied by another. As Blackstone pointed
out (79) Commentaries, Bk.II, ch.1, p 8:
"Occupancy is the thing by which the title was in fact
originally gained; every man seizing such spots of ground
as he found most agreeable to his own convenience, provided
he found them unoccupied by any one else." (Emphasis
added.)

46. It was only by fastening on the notion that a settled colony was terra
nullius that it was possible to predicate of the Crown the acquisition of
ownership of land in a colony already occupied by indigenous inhabitants. It
was only on the hypothesis that there was nobody in occupation that it could
be said that the Crown was the owner because there was no other. If that
hypothesis be rejected, the notion that sovereignty carried ownership in its
wake must be rejected too. Though the rejection of the notion of terra
nullius clears away the fictional impediment to the recognition of indigenous
rights and interests in colonial land, it would be impossible for the common
law to recognize such rights and interests if the basic doctrines of the
common law are inconsistent with their recognition.

47. A basic doctrine of the land law is the doctrine of tenure, to which
Stephen C.J. referred in Attorney-General v. Brown, and it is a doctrine which
could not be overturned without fracturing the skeleton which gives our land
law its shape and consistency. It is derived from feudal origins.

The feudal basis of the proposition of absolute Crown ownership

48. The land law of England is based on the doctrine of tenure. In English
legal theory, every parcel of land in England is held either mediately or
immediately of the King who is the Lord Paramount; the term "tenure" is used
to signify the relationship between tenant and lord (80) Attorney-General of
Ontario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, not the relationship
between tenant and land. The characteristic of feudalism "is not tenere
terram, but tenere terram de X" (81) Pollock and Maitland, The History of
English Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit in
the relationship of tenure that both lord and tenant have an interest in the
land: "The King had 'dominium directum', the subject 'dominium utile'" (82)
ibid., p 773; Co Litt 16. Absent a "dominium directum" in the Crown, there
would be no foundation for a tenure arising on the making of a grant of land.
When the Crown acquired territory outside England which was to be subject to
the common law, there was a natural assumption that the doctrine of tenure
should be the basis of the land law. Perhaps the assumption did not have to
be made. After all, as Holdsworth observed (83) op cit, vol.ii, p 199, the
universal application of the doctrine of tenure is a purely English
phenomenon. And Pollock and Maitland may be correct in saying (84) op cit,
vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that the
notion of universal tenure "perhaps was possible only in a conquered country".
In Scotland, the King was not Paramount Lord of all land: some allodial lands
remained in the Orkney and Shetland Islands, though most land that had been
held allodially became subject to feudal tenure (85) Bell, Lectures on
Conveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, The
Institutions of the Law of Scotland, 4th ed. (1826), pp 219, 222; Craigie,
Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v.
Balfour (1907) SC 1360, at p 1368-1369. However, the English view favoured a
universal application of the doctrine of tenure (86) Pollock and Maitland, op
cit, pp 232-233:
" Every acre of English soil and every proprietary right
therein have been brought within the compass of a single
formula, which may be expressed thus: - Z tenet terram
illam de ... domino Rege. The king himself holds land which
is in every sense his own; no one else has any proprietary
right in it; but if we leave out of account this royal
demesne, then every acre of land is 'held of' the king. The
person whom we may call its owner, the person who has the
right to use and abuse the land, to cultivate it or leave
it uncultivated, to keep all others off it, holds the land
of the king either immediately or mediately."

49. It is arguable that universality of tenure is a rule depending on English
history and that the rule is not reasonably applicable to the Australian
colonies. The origin of the rule is to be found in a traditional belief that,
at some time after the Norman Conquest, the King either owned beneficially and
granted, or otherwise became the Paramount Lord of, all land in the Kingdom
(87) Bacon's Abridgement, 6th ed. (1807), vol.V, "Prerogative", B,1.
According to Digby's History of the Law of Real Property (88) (1897), p 34
William I succeeded to all rights over land held by the Anglo-Saxon kings; he
acquired by operation of law the land of those who had resisted his conquest
and a vast quantity of land was deemed to have been forfeited or surrendered
to William and regranted by him. He may have become the proprietor of all
land in England so that no allodial land remained. Or it may be, as
Blackstone asserts, that in England, as in France, the allodial estates were
surrendered into the king's hands and were granted back as feuds, the only
difference being that in France the change "was effected gradually, by the
consent of private persons; (the change) was done at once, all over England,
by the common consent of the nation" (89) Commentaries, Bk II, ch.4, pp 50-51.
But, whatever the fact, it is the fiction of royal grants that underlies the
English rule. Blackstone says (90) ibid that -
"it became a fundamental maxim, and necessary principle
(though in reality a mere fiction) of our English tenures,
'that the king is the universal lord and original
proprietor of all the lands in his kingdom; and that no man
doth or can possess any part of it, but what has, mediately
or immediately, been derived 'as a gift from him, to be
held upon feodal services.' For this being the real case
in pure, original, proper feuds, other nations who adopted
this system were obliged to act upon the same supposition,
as a substruction and foundation of their new polity,
though the fact was indeed far otherwise".
It is not surprising that the fiction that land granted by the Crown had been
beneficially owned by the Crown was translated to the colonies and that Crown
grants should be seen as the foundation of the doctrine of tenure which is an
essential principle of our land law. It is far too late in the day to
contemplate an allodial or other system of land ownership. Land in Australia
which has been granted by the Crown is held on a tenure of some kind and the
titles acquired under the accepted land law cannot be disturbed.

50. Accepting the doctrine of tenure, it was an essential postulate that the
Crown have such a title to land as would invest the Sovereign with the
character of Paramount Lord in respect of a tenure created by grant and would
attract the incidents appropriate to the tenure, especially the Crown's right
to escheat (91) Wright, Introduction to the Law of Tenures, 4th ed. (1792), p
5. The Crown was invested with the character of Paramount Lord in the
colonies by attributing to the Crown a title, adapted from feudal theory, that
was called a radical, ultimate or final title: see, for example, Amodu Tijani
v. Secretary, Southern Nigeria (92) (1921) 2 AC 399, at pp 403, 404, 407;
Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration of
Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR 353, at pp 396-397.
The Crown was treated as having the radical title to all the land in the
territory over which the Crown acquired sovereignty. The radical title is a
postulate of the doctrine of tenure and a concomitant of sovereignty. As a
sovereign enjoys supreme legal authority in and over a territory, the
sovereign has power to prescribe what parcels of land and what interests in
those parcels should be enjoyed by others and what parcels of land should be
kept as the sovereign's beneficial demesne.

51. By attributing to the Crown a radical title to all land within a
territory over which the Crown has assumed sovereignty, the common law enabled
the Crown, in exercise of its sovereign power, to grant an interest in land to
be held of the Crown or to acquire land for the Crown's demesne. The notion
of radical title enabled the Crown to become Paramount Lord of all who hold a
tenure granted by the Crown and to become absolute beneficial owner of
unalienated land required for the Crown's purposes. But it is not a corollary
of the Crown's acquisition of a radical title to land in an occupied territory
that the Crown acquired absolute beneficial ownership of that land to the
exclusion of the indigenous inhabitants. If the land were desert and
uninhabited, truly a terra nullius, the Crown would take an absolute
beneficial title (an allodial title) to the land for the reason given by
Stephen C.J. in Attorney-General v. Brown (95) See pp 13-14 above; (1847) 1
Legge, at pp 317-318: there would be no other proprietor. But if the land
were occupied by the indigenous inhabitants and their rights and interests in
the land are recognized by the common law, the radical title which is acquired
with the acquisition of sovereignty cannot itself be taken to confer an
absolute beneficial title to the occupied land. Nor is it necessary to the
structure of our legal system to refuse recognition to the rights and
interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The Englishlegal system accommodated the recognition of rights and interests derived from
occupation of land in a territory over which sovereignty was acquired by
conquest without the necessity of a Crown grant.

52. After the conquest of Ireland, it was held in The Case of Tanistry (96)
(1608) Davis 28 (80 ER 516); 4th ed. Dublin (1762) English translation 78, at
pp 110-111 that the Crown was not in actual possession of the land by virtue
of the conquest and that -
"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 (97) (1674) 3
Keb.401, at p 402 (84 ER 789, at p 789) and see McNeil, op cit, p 174 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 (98) (1921) 2 AC, at p 403
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 (99) (1973) 130
CLR, 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 and Lumber Company v. The Queen (1888) 14 App Cas 46 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".
In Amodu Tijani, the Privy Council admitted the possibility of recognition not
only of usufructuary rights but also of interests in land vested not in an
individual or a number of identified individuals but in a community. Viscount
Haldane observed(100) (1921) 2 AC, at pp 403-404:
"The title, such as it is, may not be that of the
individual, as in this country it nearly always is in some
form, but may be that of a community. Such a community
may have the possessory title to the common enjoyment
of a usufruct, with customs under which its individual
members are admitted to enjoyment, and even to a right
of transmitting the individual enjoyment as members by
assignment inter vivos or by succession. To ascertain
how far this latter development of right has progressed
involves the study of the history of the particular
community and its usages in each case. Abstract principles
fashioned a priori are of but little assistance, and are as
often as not misleading."
Recognition of the radical title of the Crown is quite consistent with
recognition of native title to land, for the radical title, without more, is
merely a logical postulate required to support the doctrine of tenure (when
the Crown has exercised its sovereign power to grant an interest in land) and
to support the plenary title of the Crown (when the Crown has exercised its
sovereign power to appropriate to itself ownership of parcels of land within
the Crown's territory). Unless the sovereign power is exercised in one or
other of those ways, there is no reason why land within the Crown's territory
should not continue to be subject to native title. It is only the fallacy of
equating sovereignty and beneficial ownership of land that gives rise to the
notion that native title is extinguished by the acquisition of sovereignty.

53. 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(101) See, for example, National Provincial Bank Ltd. v.
Ainsworth (1965) AC 1175, at pp 1247-1248, 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(102) (1971) 17 FLR, at p 272,
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.

54. Once it is accepted that indigenous inhabitants in occupation of a
territory when sovereignty is acquired by the Crown are capable of enjoying -
whether in community, as a group or as individuals - proprietary interests in
land, the rights and interests in the land which they had theretofore enjoyed
under the customs of their community are seen to be a burden on the radical
title which the Crown acquires. The notion that feudal principle dictates
that the land in a settled colony be taken to be a royal demesne upon the
Crown's acquisition of sovereignty is mistaken. However, that was not the
only basis advanced to establish the proposition of absolute Crown ownership
and the alternative bases must next be considered.
The "patrimony of the nation" basis of the proposition of absolute Crown
ownership

55. In Williams v. Attorney-General for New South Wales(103) (1913) 16 CLR,
at pp 449-450 and in The Commonwealth v. Tasmania. The Tasmanian Dam Case(104)
(1983) 158 CLR 1, at pp 208-212, 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(105) Reg. v. Symonds (1847) NZPCC 387, at
p 395, 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(106) (1988) 166 CLR, at p 219.
The Royal Prerogative basis of the proposition of absolute Crown ownership

56. Mr Justice Evatt described ownership of vacant lands in a new colony as
one of the proprietary prerogatives(107) See The Attorney-General for New
South Wales v. Butterworth and Co. (Australia) Ltd. (1938) 38 SR (NSW) 195, at
pp 246-247 . But, as that author's lately published work on The Royal
Prerogative shows(108) (1987), at pp 102-103, there was no judicial consensus
as to whether title to ownership of the vacant lands in the Australian
Colonies was vested in the King as representing the supreme executive power of
the British Empire or in the Crown in right of the respective Colonies. The
management and control of the waste lands of the Crown were passed by Imperial
legislation to the respective Colonial Governments as a transfer of political
power or governmental function not as a matter of title(109) Williams v.
Attorney-General for New South Wales (1913) 16 CLR, at pp 453, 456. The
suggestion that, after the passing of these powers to colonial governments the
Crown commenced to hold Crown lands "in right of the colony"(110) Per Stephen
J. in the Seas and Submerged Lands Case (1975) 135 CLR, at p 439; and note per
O'Connor J. in The State of South Australia v. The State of Victoria (1911) 12
CLR 667, at pp 710-711 and held those lands in absolute ownership, involves
the notion that ownership resided in the Executive Government whose
legislature was vested with power to enact laws governing the management and
control of colonial waste lands. But the Imperial Parliament retained the
sovereign - that is, the ultimate - legislative power over colonial affairs,
at least until the adoption of the Statute of Westminster(111) Madzimbamuto v.
Lardner-Burke (1969) 1 AC 645, at p 722 and it is hardly to be supposed that
absolute ownership of colonial land was vested in colonial governments while
the ultimate legislative power over that land was retained by the Imperial
Parliament. However, if the Crown's title is merely a radical title - no more
than a postulate to support the exercise of sovereign power within the
familiar feudal framework of the common law - the problem of the vesting of
the absolute beneficial ownership of colonial land does not arise: absolute
and beneficial Crown ownership can be acquired, if at all, by an exercise of
the appropriate sovereign power.

57. As none of the grounds advanced for attributing to the Crown an universal
and absolute ownership of colonial land is acceptable, we must now turn to
consider a further obstacle advanced against the survival of the rights and
interests of indigenous inhabitants on the Crown's acquisition of
sovereignty.

The need for recognition by the Crown of native title

58. The defendant contests the view that the common law recognizes the
possession of rights and interests in land by indigenous inhabitants of
British colonies and submits that, by the common law governing colonization,
pre-existing customary rights and interests in land are abolished upon
colonization of inhabited territory, unless expressly recognized by the new
sovereign. There is a formidable body of authority, mostly cases relating to
Indian colonies created by cession, to support this submission(112) Secretary
of State for India v. Bai Rajbai (1915) LR 42 Ind App 229, at pp 237, 238-239;
Vajesingji Joravarsingji v. Secretary of State for India (1924) LR 51 Ind App
357, at pp 360, 361; Secretary of State for India v. Sardar Rustam Khan (1941)
AC 356, at pp 370-372. Thus Lord Dunedin's judgment in Vajesingji
Joravarsingji v. Secretary of State for India contains the following oft-cited
passage(113) (1924) LR 51 Ind App, at p 360:
"But a summary of the matter is this: when a territory is
acquired by a sovereign state for the first time that is an
act of state. It matters not how the acquisition has been
brought about. It may be by conquest, it may be by cession
following on treaty, it may be by occupation of territory
hitherto unoccupied by a recognized ruler. In all cases
the result is the same. Any inhabitant of the territory
can make good in the municipal Courts established by the
new sovereign only such rights as that sovereign has,
through his officers, recognized. Such rights as he had
under the rule of predecessors avail him nothing. Nay
more, even if in a treaty of cession it is stipulated that
certain inhabitants should enjoy certain rights, that does
not give a title to those inhabitants to enforce these
stipulations in the municipal Courts."

59. The proposition that pre-existing rights and interests in land must be
established, if at all, under the new legal system introduced on an
acquisition of sovereignty is axiomatic, and the proposition that treaties do
not create rights enforceable in municipal courts is well established(114)
Cook v. Sprigg (1899) AC 572, at pp 578-579; Winfat Ltd. v. Attorney-General
(1985) AC 733, at p 746. However, the relevant question is whether the rights
and interests in land derived from the old regime survive the acquisition of
sovereignty or do they achieve recognition only upon an express act of
recognition by the new sovereign? Lord Dunedin's view in Vajesingji
Joravarsingji(115) (1924) LR 51 Ind App, at p 361 was that recognition by the
sovereign of rights and interests possessed under the old regime was a
condition of their recognition by the common law:
"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(116) As in Secretary of State in Council of India v. Kamachee
Boye Sahaba (1859) 7 Moo Ind App 476 (19 ER 388); but cf. Attorney-General v.
Nissan (1970) AC 179, at p 227, and Burmah Oil Co. Ltd. v. Lord Advocate
(1965) AC 75 in acquiring sovereignty of a territory or if the Crown were to
extinguish private property pursuant to a law having effect in the
territory(117) As in Winfat Ltd. v. Attorney-General (1985) AC 733, 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(118) (1919) AC, at p 233 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 The Case of Tanistry and Witrong
and Blany(119) Supra, pp 37-38, earlier mentioned. Again, Lord Dunedin's view
does not accord with the rule stated by Viscount Haldane in