Mabo and Others v. State of Queensland (No. 2)

In: International law reports, Band 112, S. 457-638

Abstract

457Territory — Title — Effects of change of sovereignty — Annexation — Annexation of Murray Islands to State of Queensland on 1 August 1879 — British Crown acquiring sovereignty over the Murray Islands upon annexation — Legal consequences of annexation — Laws of Queensland including common law of England becoming the laws of the Murray Islands — Doctrine of universal and absolute Crown ownership — Relevance — Whether British Crown acquiring absolute beneficial ownership as well as radical title to the Murray Islands upon annexation — Whether Meriam people legally entitled to land in the Murray Islands — Classification of rights in the land — whether any pre-existing rights of the Meriam people in land extinguished upon annexation — Capacity of the British Crown to extinguish interests in land — Whether recognition of any rights or interests necessary by British Crown — Whether rights in land dependent on Crown grants — Powers and obligations of the defendant — Whether British Crown owing Meriam people a fiduciary duty — Consequences of any breach of trust or fiduciary obligationTerritory — Acquisition of sovereignty — Modes of acquisition — Customary international law accepting conquest, cession and settlement as valid modes — Expansion of terra nullius doctrine — Application of doctrine to inhabited land if peoples considered too primitive to possess proprietary rights — Acquisition of beneficial ownership of land as well as sovereignty where no other proprietor found to exist — Annexation of Murray Islands to Colony of Queensland on 1 August 1879 — British Crown acquiring sovereignty — Meriam people being indigenous inhabitants of Murray Islands — Whether application of expanded terra nullius doctrine appropriateHuman rights — Property rights — Recognition of indigenous land rights — Legal rights of Meriam people to the land of the Murray Islands — Whether native title or any interests in land existing prior to annexation — Whether native title or other interests in land surviving annexation — Nature and incidents of native title — Reference to laws and customs of Meriam people — Relevance — Whether native title extinguished — Whether extinguishment possible — Need to balance conformity to universal human rights with retention of skeletal principles of municipal legal system — Australia's accession to the Optional Protocol to the International 458Covenant on Civil and Political Rights — Racial discrimination — Racial Discrimination Act 1975 (Cth), Sections 9 and 10(1) — Whether rendering any future deed of grant in trust unlawfulRelationship of international law and municipal law — Acquisition of sovereignty — Annexation — Act of State — Whether State sovereignty over territory justiciable by municipal courtsDamages — Compensatory damages — Whether any grant by Crown inconsistent with native title giving rise to claim for compensatory damages — Declaratory relief — Whether appropriate — The law of Australia