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Mabo and the ownership of Crown lands

(Note: This forms of very short excerpt from the judgement)

"High Court of Australia

MABO AND OTHERS v. QUEENSLAND (No. 2) (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.
Canberra, 1991, May 28-31; 1992, June 3. #DATE 3:6:1992
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 ........"

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."