High Court of Australia Mabo v Queensland (o 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) HIGH COURT OF AUSTRALIA MABO AND OTHERS v. QUEENSLAND (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 Aborigines - Constitutional Law - Real Property High Court of Australia Mason C.J.(1), Brennan(2), Deane(3), Dawson(4), Toohey(5), Gaudron(3) and McHugh(1) JJ. CATCHWORDS Aborigines - Native title to land - Whether extinguished by annexation by Crown - Reception of common law in Australia - Effect on native title - Terra nulius - Whether doctrine applicable in Australia. Constitutional Law (Q.) - Reception of common law in settled colony - Effect on title of indigenous people - Annexation of territory by colony - Terra nullius - Whether doctrine applicable in Australia - Power of Parliament of Qeensland to extinguish native title. Real Property - Tenures and estates - Application on settlement of New South Wales - Effect on native title - Land over which native title exists - Whether Crown land - Land Act 1962 (Q.), s. 5 - "Crown land." HEARIG Canberra, 1991, May 28-31; 1992, June 3. 3:6:1992 DECISIO 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. The 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. 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." " 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.