Property and Sovereignty.

Property 1

Lent Term 2004

1 Property and Sovereignty

A. The emergence of native title

1 Themes and Questions

These lectures, and the accompanying seminars, focus on the question of indigenous title. In the common law world, claims to indigenous title have become especially prominent in North America and Australia, where Aboriginal peoples, or the `First Nations’, have sought ownership of their ancestral lands. Substantively, these claims might be construed as demands for some measure of sovereignty or self-determination, but they take the form of claims to the ownership of land. As a result, the private law structure of rights in land has been exposed to a number of political questions about the justification of sovereign acquisition, and a set of theoretical questions about the nature of property. From our perspective, claims to indigenous title are to the point precisely because they expose a number of the hidden assumptions which structure commonsense ideas about ownership as much as developed doctrines of property law. We approach the question of indigenous title by reflecting on the form of 'native title' which was recognised by the High Court of Australia in Queensland v Mabo (No2) (1992). We set this contemporary discussion in relation to the conception of property that was developed by John Locke some three hundred years ago, and which is still the most influential justification of ownership. In the last set of lectures in this part of the course, we return to the legal formulation of native title, with particular reference to the question of how native title is `extinguished’.

2 Terra nullius

What did the British Crown get when it `took’ the continent of Australia? According to what might now be called the `discredited’ view, `on the foundation of New South Wales, every square inch of territory in the colony became the property of the Crown’ (Milirrpum v Nobalco (1971) FLR 245, per Blackburn J.).

The basis of this finding was the long-standing legal determination that Australia was terra nullius at the time it was colonised:

The waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; ...they are, and ever have been, from that date ...in the Sovereign's possession.

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...

(Attorney General v. Brown (1847) 1 Legge 312)

The concept of terra nullius emerges from international law, so it should initially be understood in terms of the three basic ways in which territory could be acquired in international law: conquest, cession, and occupation. One should also distinguish between discovery and possession. In undertaking his 1776 expedition, Captain Cook was authorised `with the consent of the Natives to take possession, in the name of the King of Great Britain, of convenient situation in such countries as you may discover, that have not already been discovered or visited by any other European Power…But if you find the Countries so discovered are uninhabited, you are to take possession of them for His Majesty’ (cited in Reynolds, The Law of the Land, at p 52). So, discovery was just the preliminary step to taking possession.

Moreover, it was unusual for states to justify their acquisition of territory in terms of the occupation of a terra nullius:

It appears that, on the whole, European States, in establishing their dominion over countries inhabited by peoples in a more or less backward stage of political development, have adopted, as the method of such extension, Cession of Conquest, and have not based their rights upon the Occupation of territorium nullius.

(M.F. Lindley, The Acquisition and Government of Backward Territory in International Law (1926), at p 43).

Even where territories were taken by conquest or cession, the new sovereign was expected to respect for the inhabitants and their established laws (the case of French Canada, which, having been first colonised by the French, was then taken by the British Crown in 1760, offers an interesting parallel). Yet, the same respect was not shown to indigenous Australians. And, before the decision in Mabo No 2, indigenous people themselves identified the continuing insistence that Australia had been terra nullius as emblematic of the historically racist stance of the Australian government:

[T]he arrogance displayed towards indigenous Australian people is epitomised by Australia’s failure to recognise the fundamental basis of its claim to territorial sovereignty. The discredited racist doctrine of Terra Nullius lies at the heart of the issue. The failure by the original British colonists to recognise the efficacy, legitimacy and integrity of Aboriginal people’s culture and their legitimate claim to possession precipitated and justified the original genocidal acts. The failure of modern Australia to denounce Terra Nullius and its implications perpetuates attitudes and conditions which will continue to affect Aborigines in a similar manner as did the original genocidal acts.

(Aboriginal submission to the United Nations Commission on Human Rights , 1986)

3 The Mabo litigation

The Meriam people may have been particularly strong candidates for native title because they were recognised as almost English. They were, apparently, `a stable community’ with `a strong of sense of the observation of propriety in respect of land.’ So, where in the Gove case a different indigenous group – the Yolngu – had lost their claim in part because they were seen as having only a spiritual relationship with their land, the Meriam were seen as having an instrumental or economic relationship with their land:

The evidence seems to establish that within the boundaries of a village the land continues to be divided into what in modern town planning jargon might be referred to as single residential lots or house sites upon which is erected a single unit dwelling… Each site was and is divided from the adjoining site by some geographical or artificial feature, although on occasion adjoining occupiers might share some facilities. The rights associated with a site include a right to use it for domestic residence to the exclusion of others and an entitlement to determine the disposition of land, either during life or as a consequence of death.

(Findings of fact of Moynihan J in Mabo No2 at first instance).

The point here is that `the Meriam's land tenure system has qualities - in particular private rights to land - which bear a recognisable resemblance to Western property rights’ (Nonie Sharp, `No Ordinary Case; Reflections Upon Mabo (No 2),' in (1993) 15 Sydney Law Review, at p 154). Also, the Meriam people seemed to evidence judicially recognisable continuity in their genealogy and traditions:

The people who were in occupation of these Islands before first European contact and who have continued to occupy these 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.’ (Brennan, J. in Mabo No 2)

However, in 1879 the islands were formally annexed and declared to be part of the Colony of Queensland, so that henceforth they were administered from mainland Queensland. There was an island court administered by a Meriam chief, which dealt with such things as property disputes, but there is no doubt that the islands were under the control of the colonial government. What was the effect of that annexation?

4 Distinguishing property from sovereignty: the concept of radical title

The majority view in Mabo: was that the doctrine of terra nullius should be recognised to have been inapplicable to the colonisation of Australia:

The theory that the indigenous inhabitants of a `settled' colony had no proprietary interest in the land [depends] on a discriminatory denigration of indigenous inhabitats, their social organisation 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. … 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.

(per Brennan J at pp 421 and 422).

Rather than apply that doctrine, the court held that the acquisition of sovereignty does not imply the acquisition of property:

The strong assumption of the common law was that interests in property which existed under native law or customs were not obliterated by the act of State establishing a new British Colony but were preserved and protected by the domestic law of the Colony after its establishment. Thus, in In re Southern Rhodesia [1919] AC, at p 233, the Privy Council expressly affirmed that there are 'rights of private property', such as a proprietary interest in land, of a category 'such that upon a conquest it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected them and forborne to diminish or modify them'. Similarly, in Amodu Tijani v Secretary, Southern Nigeria ('Amodu Tijani') [1921] 2 AC 399, at p 407, the Privy Council affirmed and applied the 'usual' principle 'under British ... law' that when territory is occupied by cession, 'the rights of property of the inhabitants (are) to be fully respected'.

(per Deane and Gaudron JJ).

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 the 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 nulllius, the Crown would take an absolute beneficial title (an allodial title) to the land [because] 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 recognised 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.

(per Brennan J)

What exactly is `radical title’? The phrase is first used in a decision of the Privy Council with respect to indigenous title in New Zealand, but it has never been used as a term of art. Perhaps the reference to `allodial title’ suggests part of what is going on here. To some extent, radical title is a way of modernising the old idea of feudal tenure. In other respects, it is a way of trying to hold the difficult balance between property and sovereignty.

5 How is native title recognised?

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. (per Brennan J.).

What does this mean?

What is involved in recognising native title? According to some commentators, native title is just an additional – if somewhat exceptional – category tacked on to the structures of Anglo-Australian property law. But it might be argued that title based in the (normative) culture of indigenous groups implies something more than this:

The recognition of native title is about far more than simply the recognition of a particular kind of land tenure, surviving from the period before contact. It is intrinsically bound up with issues of political organisation and self-government. This is true, first, in that the title is grounded in and its content determined by contemporary indigenous societies, which have their own legal orders and their own continuing capacity for legal change. Indigenous societies are, by the very doctrine of indigenous title itself, contemporary polities with continuing control over their own normative orders (at least until displaced). The recognition of indigenous title is simultaneously a recognition of that political capacity.

(Jeremy Webber, `Beyond Regret: Mabo’s Implications for Australian Constitutionalism’).

The question is whether or how the recognition of political capacity affects property doctrine.

6 Why feudalism?

The idea that doctrines ascribed to feudalism are central to Anglo-Australian land law, and impose limits to the development of the jurisprudence of native title:

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, bit 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 the aspirations of the 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 or 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.

(Mabo No2, per Brennan J).

In what senses might the feudal structure of land law doctrine be said to be essential to Anglo-Australian land law?

Week 1: Questions for seminar discussion

1. What elements have to be proved in seeking to establish native title?

2. What kind of materials or evidence would you need to assemble in seeking to make good such a claim?

Readings*

Shaunnagh Dorsett `Land Law and Dispossession’, in Bright & Dewar, eds, Land Law: Themes and Perpectives, pp 279-301.

Susan Reynolds Fiefs and Vassals, OUP, 1994, pp 48-74.

*All readings are contained in the Property I Study Pack

Case

Mabo v Queensland [1992] 66 CLR 408, esp. judgment of Brennan J and Toohey J (attached as Appendix One).

This is a preview of the whole essay

The terms of one of the pastoral leases in Wik were as follows:

WE DO FURTHER RESERVE the right of any person duly authorised in that behalf by the Governor of Our said State in Council at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same." The leases under the 1910 Act were issued "pursuant to Part III, Division I" of that Act and were expressed to be subject to "the conditions and provisoes of Part III, Division I". That Division provided for the Minister by notification to declare any Crown land to be open for pastoral lease and to specify "the areas to be leased, the term of the lease ... and the rent per square mile during the term.

Did this amount to a grant of exclusive possession? Compare the views of Brennan CJ and Toohey J:

On the issue of a pastoral lease under the 1910 Act, the lessee acquired an estate. There is no legal principle which would defer the vesting of, or qualify, that estate in order to allow the continuance of a right to enjoy native title. Given that the pastoral lessee acquired a right to exclusive possession at latest when the lease was issued, there was an inconsistency between that right and the right of any other person to enter or to remain on the land demised without the lessee's consent. Assuming that access to the land is an essential aspect of the native title asserted, inconsistency arises precisely because the rights of the lessee and the rights of the holders of native title cannot be fully exercised at the same time (Brennan CJ).

A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee's right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No 2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time (Toohey J)

What is the basis of each of these views?

6 Extinguishment or suspension?

Native title claimants have argued that even if a fee simple ousts native title, it does so only temporarily, so that native title might be revived at some later point. What is the basis of that argument? In Wik and Fejo, it was suggested that the common law deal in rights not facts. The grant of a fee simple creates a right of exclusive possession which leaves no room for any adverse rights. Native title is fragile or vulnerable because it can, as Kirby J says, be `blown away’ by a fee simple or a lease. At most, according to what is becoming the orthodox judicial interpretation, eone can say that some elements of native title survive. Native title will be only `partially extinguished’ if the relevant property right only extinguishes some parts of the `bundle of rights’ which make up a native title. Against that, there is (or was?) a minority view that indigenous and `western’ interests can only be balanced if native title is regarded as an `underlying title’, which can survive certain extinguishing acts. The basis for these two views appears in the Ward case:

Bundle of rights

In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a "bundle of rights". It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens "partial extinguishment" occurs. In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. Further, it is possible that a succession of different grants may have a cumulative effect, such that native title rights and interests that survived one grant that brought about partial extinguishment, may later be extinguished by another grant. (State of Western Australia v Ward [2000] FCA 191, at para 109, per Beaumont and Von Doussa JJ).

Underlying title

Whilst the nature and content of native title in a particular case are matters of fact which must be found by the Court, it is possible to provide a general description of native title without reference to fact findings in a particular case. This was done in Mabo [No 2] itself: see Brennan J at 59. Since then the several native title cases which have come before the Courts have extended and refined the general understanding of the nature of native title. The comprehensive and detailed examination of the nature of native title in the present case provides a clear idea of some general features of native title. From this examination Lee J concluded [at first instance in Western Australia v Ward] that native title is a right to the land itself. That conclusion reflects the traditional law of the aboriginal people. It reflects the fact of aboriginal law translated into the language of the Australian legal system. What is involved is a characterisation of the relationship between aboriginal people and the land translated into terms which have meaning for Australian law. As a characterisation of the relationship, the notion that native title is a right to the land itself conforms more closely to the traditional aboriginal law than the notion that native title consists of a bundle of rights. That latter notion suggests a number of separate rights which are individual, capable of standing alone and recognised by traditional law as standing alone. The unifying factor which creates the bundle is the feature that all the rights relate to the land. However, the relation to the land arises only by reason of the practical necessity that the exercise of the rights depends on the existence of the land. Thus, a "right" to hunt is meaningless without a place to hunt. But aboriginal traditional law does not treat the "rights" as stand-alone rights. The incidents of native title depend upon the connection of the aboriginal people with the land. The underlying connection is the foundation for the exercise of various rights. The land is not just the place to hunt. Rather the right to hunt follows as a result of the significance of the land as the centrepiece in aboriginal law and culture. It is for this reason that the proper question to ask when seeking to ascertain whether native title has been extinguished is whether the Crown has shown a clear and plain intention to abolish the underlying connection with the land. It is for the same reason that there cannot be partial extinguishment of native title by the restriction or even abolition of some or all of the rights or interests dependent upon the existence of native title. (State of Western Australia v Ward [2000] FCA 191, at para 784, per North J).

What practical difference does it make? In Ward, the majority finds that pastoral leases only partially extinguish native title where there is a reservation in favour of Aboriginal people. In Western Australia, reservations in pastoral leases only cover ‘unimproved’ and ‘unenclosed’ land. Where the land does not fall under this category, native title may be totally extinguished. In Ward, before the Federal Court, the majority observed that mining leases in totally extinguish native title as do the Ord River Irrigation Project and the Argyle Diamond Project, because they are inconsistent with the exercise of native title rights. Similarly, the grant of mining leases also extinguish native title rights in minerals and petroleum. However, the majority holds that native title subsists in the Keep River National Park, because reservations of land for a public purpose do not prima facie extinguish native title, though they may do so.

Of the two views, the majority is endorsed by the High Court in Ward:

The third member of the Full Court (North J) took a different view about extinguishment. This proceeded from the premise that there may be "inconsistency between the rights and interests created by the law or act [in question] and native title but the degree of inconsistency is not sufficient to extinguish native title" (emphasis added). A little later in his reasons, his Honour said:

"A minor or insignificant inconsistency between the rights or interests created and native title could not lead to such a far-reaching consequence as total abrogation of native title. There must be proportionality between the impact of the law or the act and the effect on native title. Only a law or act which has the effect of totally replacing native title by completely nullifying it will result in extinguishment of native title. The inconsistency between the law or act must be total, fundamental or absolute to effect extinguishment. Thus, where native title is a permanent right to land, only a law or act which has permanent consequences adverse to the existence of the right to land will extinguish native title. Such a law or act must give rise to rights which fully eclipse native title. Where the inconsistency is not total or absolute it is not necessary that native title be abolished in order to allow the unfettered exercise of inconsistent rights or interests. It is only necessary that the enjoyment of the rights and interests dependent upon the holding of native title is held in abeyance for the duration of the existence of the inconsistent rights or interests. As long as the exercise of the rights or interests dependent on native title is suspended, the exercise of inconsistent rights or interests is not impeded."

This approach to extinguishment as understood with respect to the withdrawal of recognition by the common law should not be adopted. First, it is an approach which proceeds from a false premise, that there can be degrees of inconsistency of rights, only some of which can be described as "total", "fundamental" or "absolute". Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. Secondly, it is a mistake to assume that what the NTA refers to as "native title rights and interests" is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement. It is true that the NTA (in par (b)(ii) of s 23G(1)) and the State Validation Act (in par (b)(ii) of s 12M(1)) speak of the "suspension" of inconsistent native title rights and interests in certain circumstances. However, this statutory outcome is postulated upon an inconsistent grant of rights and interests which, apart from the NTA and the State Validation Act, would not extinguish the native title rights and interests. An example would be a post-1975 grant which, by operation of the RDA, was ineffective to extinguish native title rights and interests. It will be necessary to return to this aspect of the legislation later in these reasons (Ward v Western Australia, at paras 81 & 82, per Gleeson CJ and Gummow, Toohey, and JJ).

Week 4: Questions for seminar discussion

Readings

Lee Godden `Wik, Feudalism, Capitalism and the State. A Revision of Land Law in Australia? (1997) Australian Journal of Property Law 162.

Cases

Yanner v Eaton (1999) 166 ALR 258.

Wik and Thayorre Peoples v Queensland (1996) 187 CLR 1.

Fejo v Northern Territory [1998] HCA 58 (10 September 1998)

State of Western Australia v Ward (2000) 99 FCR 316.

Ward v Western Australia (2002) HCA

Yorta Yorta v Victoria (2001) 110 FCR 244; (2002) HCA 58 (12 December 2002):

1. What approach should the courts take in determining whether native title has been extinguished?

2. What do you make of the disagreement between Brennan J and Toohey J in relation to the reversionary interest of the Crown in pastoral leases?

3. To what extent is it appropriate to regard native title as a `bundle of rights’?

4. When is a cultural practice `traditional’? Did the majorities in the Federal Court and High Court make the right decision in the Yorta Yorta case?

Appendix One

Judgment of Toohey J in Mabo v. Queensland

The plaintiffs seek declarations as to their entitlement and that of the Meriam people as a whole to three Torres Strait islands Mer (known also as Murray Island), Dauer (also spelt Dauar and Dawar) and Waier and as to the powers and obligations of the defendant, the State of Queensland, with respect to those islands and the rights of the Meriam people who live there. The three islands are collectively known as the Murray Islands; I shall refer to them in this judgment simply as "the Islands"(519) For general background, see Hocking, Torres Strait Islanders and Australian Law, (1987), International Academy of Comparative Law, 12th Congress, Session A.1: "The Aborigine in Comparative Law". The plaintiffs' claim

2. Central to the case is the plaintiffs' claim that they or the Meriam people are, and have been since prior to annexation by the British Crown, entitled to the Islands: (a) as owners (b) as possessors (c) as occupiers or (d) as persons entitled to use and enjoy the Islands. The declarations now sought give primacy to the rights of the Meriam people rather than to those of the individual plaintiffs. Indeed, at the end of the hearing the plaintiff Mr Mabo, who has since died, no longer asserted any claim on his own behalf.

3. The plaintiffs put their claim on three bases. First, that the interests their predecessors enjoyed in the Islands prior to annexation survived acquisition by the British Crown and became a dimension of the common law ("traditional title", sometimes referred to as "native title"). Second, that those predecessors acquired a possessory title as a consequence of the operation of the common law in the new colony ("common law aboriginal title"). The precise way in which this argument was put will need attention later in the judgment. Third, that they could establish, as of today, local legal customary rights(520) An argument not reliant on the effect of annexation. They said that legal customs exercised by the Meriam people today, though different from common law, should prevail so long as certain conditions are met. The customs must be certain; they must have been exercised since "time immemorial" without interruption; they must be reasonable and not oppressive at the time of their inception; they must be observed as of right and not pursuant to any licence or permission granted by another; and they must not be inconsistent with any statute law(521)Hanasiki v. O.J. Symes (Unreported, High Court of the Solomon Islands, 17 August 1951); Bastard v. Smith (1837) 2 M and Rob 129 (174 ER 238); Pain v. Patrick (1690) 3 Mod. 289 (87 ER 191); Halsbury's Laws of England, 4th ed., vol.12, par.406.

4. This third basis of claim raises difficult questions with respect to the interruption of these rights since such a "title" rests, not on factual occupation or possession, but on the exercise of particular customs. Difficulties also arise in so far as authority supporting customary rights focuses on specific customs. Entitlement is to enjoy a particular custom rather than to continue a way of life, or occupation, generally(522) For example the custom of "Borough English" in which the youngest son, and not the eldest, succeeded to the burgage tenement on the death of his father: Blackstone, Commentaries, 17th ed. (1830), vol.II, p 83. It has become unnecessary to pursue these questions. Given my conclusions in regard to traditional title, I need not onsider this basis of claim further. The judgment turns on conclusions as to traditional title though important questions are raised by the plaintiffs' claim to a possessory title.

5. The plaintiffs say that their traditional title is good against the whole world and that it continues today, "subject to the capacity of the Defendant to extinguish the same by, or pursuant to clear and plain legislation"(523) Plaintiffs' claim for declaratory relief as finally formulated during the hearing: par.1.E.. They say (and the defendant so concedes, while denying the existence of any title) that power has not been exercised to extinguish that title with respect to the Islands generally. They say further that the defendant is bound as a trustee or is under a fiduciary duty to recognise and protect the rights asserted and that the defendant is accountable in law for a breach of that trust or that obligation. As to their possessory title, the plaintiffs contend that it also is good against all the world and say that no action has been taken by the defendant to extinguish or acquire it.

6. Finally, the plaintiffs seek a declaration that the defendant is not empowered to make a deed of grant in trust in respect of the Islands under the Land Act 1962 (Q.) and that any such deed would be unlawful by reason of ss.9 and 10 of the Racial Discrimination Act 1975 (Cth). Alternatively, they say, such a deed may not be granted except upon payment of proper compensation. The issues

7. Broadly speaking, the legal issues to be decided by the Court include: the effect of annexation, involving questions of the presumption of vacancy and the position of the Crown on annexation by settlement; the existence and nature of aboriginal interests which may continue after annexation or be created by operation of the common law on settlement; the capacity of the Crown to extinguish any such interests; and the consequences in law of any breach of trust or fiduciary obligation owed by the defendant to the plaintiffs or to the Meriam people.

8. The two kinds of interest claimed by the plaintiffs have different sources and different characteristics, though the two overlap in some ways and the same set of circumstances, it is said, may give rise to either title. The first interest, traditional title(524) See generally McNeil, Common Law Aboriginal Title, (1989) (hereafter "McNeil"), Ch.6, has been the most commonly argued in land rights cases; its origin lies in the indigenous society occupying territory before annexation. This title is one recognised by the common law (though what is required to establish that recognition is a matter of contention) but its specific nature and incidents correspond to those of the traditional system of law existing before acquisition of sovereignty by the Crown. The second kind of title, common law aboriginal title(525) See generally McNeil, Ch.7, has no existence before annexation since it is said to arise by reason of the application of the common law. Not only its existence but its nature and incidents are determined entirely by principles of common law. "Title" is a title based on possession and the consequences of that status at common law. It would, if made out, amount to a fee simple.

9. It will be necessary to examine each form of title at greater length. But it is important to appreciate that, particularly with respect to traditional title, the use of the term "title" is artificial and capable of misleading. The rights claimed by the plaintiffs on behalf of the Meriam people do not correspond to the concept of ownership as understood by the land law of England, developed since feudal times, and by the later land law of Australia. "Title" is no doubt a convenient expression and has the advantage that, when recognised by the law of Australia (or Canada, the United States or New Zealand), it fits more comfortably into the legal system of the colonising power. In the case of the Meriam people (and the Aboriginal people of Australia generally), what is involved is "a special collective right vested in an Aboriginal group by virtue of its long residence and communal use of land or its resources"(526) The Law Reform Commission, Australia, Report No.31, The Recognition of Aboriginal Customary Laws, (1986), par.63. Speaking generally, traditional or native title is communal and the rights it generates belong to the group as a whole: Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399, at pp 403404; Calder v. AttorneyGeneral of British Columbia (1973) SCR 313, at p 355; (1973) 34 DLR (3d) 145, at p 175; Re Paulette and Registrar of Titles (No.2) (1973) 42 DLR (3d) 8, at p 27 (reversed on appeal on different grounds).

10. At the forefront of the argument is the issue whether such rights in land as were held by indigenous groups survived annexation. There are of course evidentiary problems that will arise in this regard but they do not affect the principle involved. If the matter is seen strictly in terms of aboriginal "title", it is perhaps not surprising that a court may reject such a claim as not giving rise to a title recognised by the common law. That was the approach taken by Blackburn J. to the plaintiffs' claim in Milirrpum v. Nabalco Pty. Ltd.(527) (1971) 17 FLR 141. But in truth what the courts are asked to recognise are simply rights exercised by indigenous peoples in regard to land, sufficiently comprehensive and continuous so as to survive annexation.

11.Before proceeding further, one more point should be noted. While this case concerns the Meriam people, the legal issues fall to be determined according to fundamental principles of common law and colonial constitutional law applicable throughout Australia. The Meriam people are in culturally significant ways different from the Aboriginal peoples of Australia, who in turn differ from each other. But, as will be seen, no basic distinction need be made, for the purposes of determining what interests exist in ancestral lands of indigenous peoples of Australia, between the Meriam people and those who occupied and occupy the Australian mainland. The relevant principles are the same.

Annexation its consequences

12. In his judgment Brennan J. has traced the steps leading up to the Letters Patent passed by Queen Victoria on 10 October 1878 "for the rectification of the Maritime Boundary of the Colony of Queensland, and for the annexation to the Colony of (certain) Islands lying in Torres Straits, and between Australia and New Guinea". Pursuant to authority contained in the Letters Patent and The Queensland Coast Islands Act 1879 (Q.), the Governor of Queensland, on 21 July 1879, declared that the islands described in the Schedule to the Proclamation (which included the Islands) "shall be annexed to and become part of the Colony of Queensland".

13. If these procedures were ineffective to incorporate the Islands into Queensland, it must be taken that the Colonial Boundaries Act 1895 (Imp) authorised their incorporation retrospectively(528) Wacando v. The Commonwealth (1981) 148 CLR 1.

14. In considering the consequences of the annexation of the Islands, the distinction between sovereignty and title to or rights in land is crucial. The distinction was blurred in English law because the sovereignty of the Crown over England derived from the feudal notion that the King owned the land of that country. It was ownership of the land that produced the theory of tenures, of obligations owed to the Crown in return for an estate in land. The position of the Crown as the ultimate owner of land, the holder of the radical title, has persisted and is not really in issue in these proceedings. What is in issue is the consequences that flow from that radical title.

15.The blurring of the distinction between sovereignty and title to land should not obscure the fact that(529) McNeil, p 108:

"(t)he former is mainly a matter of jurisdiction, involving questions of international and constitutional law, whereas the latter is a matter of proprietary rights, which depend for the most part on the municipal law of property. Moreover, acquisition of one by the Crown would not necessarily involve acquisition of the other."

16. Lord Reid, in Nissan v. AttorneyGeneral(530) (1970) AC 179, at pp 210211, after referring to some nineteenth century decisions of English courts, said:

" In my view, none of these cases decides that when the Crown annexes territory it is entitled to confiscate the property of British subjects which is in that territory."

But what of the annexation of territory not occupied by British subjects? It was only with the colonising of territories that were uninhabited or treated as such that settlement came to be recognised as an effective means of acquiring sovereignty, additional to conquest and cession. There is no question of annexation of the Islands by conquest or cession so it must be taken that they were acquired by settlement even though, long before European contact, they were occupied and cultivated by the Meriam people.

17.One thing is clear. The Islands were not terra nullius. Nevertheless, principles applicable to the acquisition of territory that was terra nullius have been applied to land that was inhabited. Justification for this extension has been sought in various ways, including the extent to which the indigenous people have been seen as "civilised" or to be in permanent occupation. Thus, in Cooper v. Stuart(531) (1889) 14 App Cas 286, at p 291 Lord Watson observed:

"There is a great difference between the case of a Colony acquired by conquest or session, 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."

18.The reference to "peacefully annexed" carries a certain irony in the light of what we now know. But, in any event, the idea that land is terra nullius because it lacks "settled inhabitants" is a contentious one(532) The application of the doctrine of terra nullius to Australia is strongly attacked in Reynolds, The Law of the Land, (1987), passim. In particular, the view that a omadic lifestyle is inconsistent with occupation of land is at odds with reality. It pays no regard to the reason why people move from one area of land to another. Often people move, not because they lack any association with the land over which they travel but to follow the availability of water and food in a harsh climate. An approach more in accord with reality may be found in the judgment of the International Court of Justice in Western Sahara (Advisory Opinion). The majority concluded(533) (1975) ICJR 12, at p 39:

"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 noone in the sense that it was then open to acquisition through the legal process of 'occupation'."

19.The matter was put even more strongly by VicePresident Ammoun in a separate opinion apparently endorsing the following assessment by one of the parties(534) ibid., at pp 8586:

" Mr. BayonaBaMeya goes on to dismiss the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr. BayonaBaMeya susbtitutes 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."

20. The idea that land which is in regular occupation may be terra nullius is unacceptable, in law as well as in fact. Even the proposition that land which is not in regular occupation may be terra nullius is one that demands scrutiny; there may be good reason why occupation is irregular. Rather, in terms of Western Sahara (Advisory Opinion), the question is whether, at the time of colonisation, the land belonged to noone.

21. The operation of the notion of terra nullius only arises in the present case because of its theoretical extension to the Islands. But clearly it can have no operation. The plaintiffs accept that the Islands were settled by Britain rather than conquered or ceded. But it does not follow that principles of land law relevant to acquisition of vacant land are applicable. The acquisition of sovereignty was effected, both with respect to other European colonisers and the indigenous inhabitants, by the acquisition by the British Crown of radical title. No more was required or, with respect to occupied land, possible. Immediately on acquisition indigenous inhabitants became British subjects whose interests were to be protected in the case of a settled colony by the immediate operation of the common law. The Crown did not acquire a proprietary title to any territory except that truly uninhabited.

22. The real question is whether the rights of the Meriam people to the Islands survived annexation. This is not answered by pointing to dicta which acknowledge that, on settlement, land vested in the Crown(535) See for instance AttorneyGeneral v. Brown (1847) 1 Legge 312, at pp 316318; Randwick Corporation v. Rutledge (1959) 102 CLR 54, at p 71; New South Wales v. The Commonwealth ("The Seas and Submerged Lands Case") (1975) 135 CLR 337, at pp 438439, irrespective of whether there were indigenous inhabitants.

Traditional title

(i) Existence: Recognition

23. It follows from what has been said that traditional title is not precluded by the argument that the Crown acquired a proprietary interest in all land in the colony on annexation. Previous interests in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them. That is, the onus rests with those claiming that traditional title does not exist(536) See Calder (1973) SCR, at p 375; (1973) 34 DLR(3d), at pp 189190.

24. In this respect the defendant argued that previously existing aboriginal interests in ancestral lands continue after annexation only if they are recognised by positive executive or legislative acts. This submission is supported by a line of authority including Vajesingji Joravarsingji v. Secretary of State for India(537) (1924) LR 51 Ind App 357, Secretary of State for India v. Bai Rajbai(538) (1915) LR 42 Ind App 229, Asrar Ahmed v. Durgah Committee, Ajmer(539) (1947) 34 AIR(PC) 1. and TeeHitTon Indians v. United States(540) (1955) 348 US 272.

25. In Vajesingji Joravarsingji Lord Dunedin said(541) (1924) LR 51 Ind App, at p 360, referring to the act of state which amounts to acquisition of sovereignty whether by conquest, cession or settlement:

"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."

Blackburn J., in Milirrpum(542) (1971) 17 FLR, especially at pp 223227, followed this line of authority. This perhaps is not surprising, at least in so far as the Privy Council decisions were concerned, since they were binding on him where applicable(543) See also Hookey, "The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?", (1972) 5 Federal Law Review 85.

26. However, a line of authority represented by In re Southern Rhodesia(544) (1919) AC 211, at p 233, Amodu Tijani(545) (1921) 2 AC, at pp 407, 410, Guerin v. The Queen(546) (1984) 2 SCR 335, at pp 378379; (1984) 13 DLR (4th) 321, at p 336, Calder and Delgamuukw v. British Columbia(547) (1991) 79 DLR (4th) 185 is more persuasive and should be followed. This so called doctrine of continuity was exemplified by Lord Sumner in the Privy Council in In re Southern Rhodesia(548) (1919) AC, at p 233:

"(U)pon a conquest it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected (private property rights) and forborne to diminish or modify them".

And in Amodu Tijani(549) (1921) 2 AC, at p 407 Viscount Haldane, speaking for the Privy Council, confirmed this presumption, without limiting it to colonies acquired by conquest.

27. A sovereign can, by a positive act, seize private as well as public property in the act of acquiring sovereignty and the seizure is nonjusticiable(550) Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 7 Moo Ind App 476 (19 ER 388). But seizure of private property by the Crown in a settled colony after annexation has occurred would amount to an illegitimate act of state against British subjects since in a settled colony, where English law applies, there is no power in the Crown to make laws, except pursuant to statute. Emergency powers aside, the common law required legislative authority for compulsory acquisition of property. Furthermore, the proposition that positive acts of recognition are required before interests exist entails the difficult idea that on acquisition of sovereignty rights disappear, only to spring back to life immediately recognition occurs. Even more startling is the consequence that, immediately on annexation, all indigenous inhabitants became trespassers on the land on which they and their ancestors had lived. That was not a consequence the common law dictated; if it were thought to be, this Court should declare it to be an unacceptable consequence, being at odds with basic values of the common law.

28.I conclude therefore that, subject to proof of the relevant interest, traditional title to land is not extinguished by the act of state amounting to annexation but is presumed to continue unless and until lawfully terminated.

(ii) Existence: Requirements of proof

29. Given that traditional title may exist after annexation because it was not precluded by Crown ownership of occupied lands and because it arose regardless of positive recognition by the Crown, what is required to prove such a title? At the outset a distinction should be noted between the existence of traditional title and the nature of the title. These two questions dictate different lines of inquiry but they have been blurred in some instances, leading to confusion in the proof required to establish title.

30.Relevant authority has dealt with the question of proof of the existence of traditional title in different ways. In English and Australian decisions two requirements have emerged: that the interests said to constitute title be proprietary and that they be part of a certain kind of system of rules. Both of these requirements are apparent in In re Southern Rhodesia. There the Privy Council said(551).(1919) AC, at pp 233234, in relation to the question whether the rights of the Matabele and Mashonas (the indigenous inhabitants of what became Southern Rhodesia) survived annexation:

"(I)t was necessary that the argument should go to the length of showing that the rights, whatever they exactly were, belonged to the category of rights of private property ... 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. ... On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own."

The Court concluded that "the position of the natives of Southern Rhodesia ... approximate(s) rather to the lower than to the higher limit"(552) ibid., at p 234.

31. Thus traditional title was said to depend on proof of something akin to a private proprietary right emanating from a "civilized society". The Court did not spell out what "institutions or ... legal ideas" were necessary to constitute such a society but it is clear that approximation to British society would suffice. The passage implies the possibility of "conceptions of rights and duties" which, because of their nature (determined by their source), do not amount to traditional title. There may be a system of rules, but not such as to attract the notion of traditional title at common law. The distinction echoes that said to exist between law and custom.

32.In Milirrpum Blackburn J. concluded(553) (1971) 17 FLR, at pp 244245, 262 that no positive doctrine of "communal native title" existed at common law at the time of annexation. So he did not need to deal with proof of title. But, in order to answer submissions made to him, his Honour went on to consider that question. Based on those submissions, he said that communal native title involved proof that the aboriginal interests said to comprise the title were

"capable of recognition" and that they were "proprietary"(554) ibid., at p 198. In answering the first question, whether the interests were capable of recognition, Blackburn J. quoted(555) ibid., at p 264 the passage from In re Southern Rhodesia noted earlier in this judgment and then heeded comments made by Viscount Haldane for the Privy Council in Amodu Tijani(556) (1921) 2 AC, at pp 402403: "(I)n interpreting the native title to (the) land ...(t)here is a tendency, operating at times unconsciously, to render that 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."

33.Blackburn J. then considered the distinction made by the Privy Council in In re Southern Rhodesia, leaving open the question whether assessment according to such a scale may be possible, and said(557) (1971) 17 FLR, at p 267:

"(T)he social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which ... 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."

34. Thus, his Honour recognised the system before him as a system of law(558) ibid., at p 268. However, on the other requirement of proof, that the aboriginal interests be proprietary, the plaintiffs failed. Blackburn J. held that the clan's relationship with the land was not proprietary because it failed to satisfy the essential elements of a proprietary interest under the common law, those elements being: the right to use or enjoy, the right to exclude others and the right to alienate(559) ibid., at pp 272273.

35.North American courts have taken a different approach to the question of proof of the existence of traditional title. One of the leading discussions in this regard is to be found in Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development. There Mahoney J. concluded(560) (1979) 107 DLR (3d) 513, at p 542, after an examination of Canadian and United States authority and a reference to Milirrpum:

" The elements which the plaintiffs must prove to establish an aboriginal title cognizable at common law are:

1. That they and their ancestors were members of an organized society.

2. That the organized society occupied the specific territory over which they assert the aboriginal title.

3. That the occupation was to the exclusion of other organized societies.

4. That the occupation was an established fact at the time sovereignty was asserted by England."

36. Hamlet of Baker Lake and like authority may be analysed in the following way. Ultimately, traditional title has a common law existence because the common law recognises the survival of traditional interests and operates to protect them. Proof of existence, therefore, is a threshold question. The content of the interests protected is that which already exists traditionally; the substance of the interests is irrelevant to the threshold question. Moreover, it would defeat the purpose of recognition and protection if only those existing rights and duties which were the same as, or which approximated to, those under English law could comprise traditional title; such a criterion is irrelevant to the purpose of protection. Furthermore, the problem which arises where, for example, the evidence of the claimed traditional right is so vague that there is doubt that it existed, or exists, is different. That is an evidentiary problem and the criterion for dealing with it is not the claimed right's similarity to, difference from, or even incomprehensibility at, common law. Therefore, inquiries into the nature of traditional title are essentially irrelevant(561) See Calder (1973) SCR, at p 372; (1973) 34 DLR (3d), at p 187. A determination that a traditional right or duty amounts to a proprietary interest, however that is defined, will not reveal the existence or nonexistence of traditional title, except in so far as it indicates that reasonably coherent rights and duties were, and are, exercised in an area of land.

37. The same criticism can be directed at a requirement which distinguishes between types of society. In the end such a criterion is concerned with the kind of traditional right or duty, the distinguishing feature being its source. It presupposes the possibility that rights and duties will not constitute a title even though they are coherent, existent and underlie a functioning society. Therefore, apart from a prohibition against discriminatory treatment of some indigenous societies, an inquiry into the kind of society from which rights and duties emanate is irrelevant to the existence of title, because it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilised in a way determined by that society. There must, of course, be a society sufficiently organised to create and sustain rights and duties, but there is no separate requirement to prove the kind of society, beyond proof that presence on land was part of a functioning system. It follows from this discussion that requirements that aboriginal interests be proprietary or part of a certain kind of system of rules are not relevant to proof of traditional title.

38. In general the approach taken in the North American authority is to be preferred. So, what is required to prove title?

39. The requirements of proof of traditional title are a function of the protection the title provides(562) Bartlett, "Aboriginal Land Claims at Common Law", (1983) 15 University of Western Australia Law Review 293, at p 310. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connection with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title(563) ibid., at pp 311, 319320. See now Ontario (AttorneyGeneral) v. Bear Island Foundation (1991) 83 DLR (4th) 381; Hamlet of Baker Lake (1979) 107 DLR (3d), at p 542; The Queen v. Sparrow (1990) 1 SCR 1075; (1990) 70 DLR (4th) 385. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.

(iii) Occupancy of land

40. North American cases have begun to articulate factors which will indicate this kind of presence on, or use of, land. Any such articulation cannot be exhaustive.

41. First, presence on land need not amount to possession at common law in order to amount to occupancy(564) See Calder (1973) SCR, at p 328; (1973) 34 DLR (3d), at p 156. United States and Canadian cases have required proof of occupancy by reference to the demands of the land and society in question "in accordance with the way of life, habits, customs and usages of the (indigenous people) who are its users and occupiers"(565) Sac and Fox Tribe of Indians of Oklahoma v. United States (1967) 383 F 2d 991, at p 998. In Hamlet of Baker Lake the Canadian Federal Court held that the Inuit succeeded in showing that they occupied their land. Mahoney J. said(566) (1979) 107 DLR (3d), at pp 544545:

"The absence of political structures like tribes was an inevitable consequence of the modus vivendi dictated by the Inuit's physical environment. ... Furthermore, the exigences of survival dictated the sparse, but wide ranging, nature of their occupation. ... The nature, extent or degree of the aborigines' physical presence on the land they occupied, required by the law as an essential element of their aboriginal title is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Inuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them."

42. This aspect of occupancy need not be pursued further since the economy of the Meriam people on the Islands was, compared with that described in Hamlet of Baker Lake, settled and intensive. It is clear, however, that a nomadic lifestyle is not inconsistent with occupancy(567) This is not to say that a nomadic lifestyle cannot amount to possession at common law: see McNeil, pp 202204.

43. Secondly, it has been said that to amount to occupancy presence on land must have been established "long prior" to the point of inquiry(568) Alcea Band of Tillamooks v. United States (1945) 59 F Supp 934, at p 965; affirmed (1946) 329 US 40. That is necessarily a relative concept. In Milirrpum Blackburn J. was content to approach the plaintiffs' claim as requiring proof of occupancy from a "time in the indefinite past". He rejected the expression "from time immemorial", though used in the statement of claim, as having technical connotations that were of no relevance to the plaintiffs' case(569) (1971) 17 FLR, at p 152. Blackburn J. thought it necessary that the plaintiffs prove occupancy from the acquisition of English sovereignty, a view also taken by Mahoney J. in Hamlet of Baker Lake(570) (1979) 107 DLR (3d), at pp 542, 546. If occupation by an indigenous people is an established fact at the time of annexation, why should more be required? In any event, in the present case, the defendant did not argue that the plaintiffs failed because their presence on the Islands was too recent.

44.Thirdly, it was said in United States v. Santa Fe Pacific Railroad Co.(571) (1941) 314 US 339, at p 345; see also Alcea Band of Tillamooks (1945) 59 F Supp, at p 965:

"If it were established as a fact that the land in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had 'Indian title'". (emphasis added)

This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis for the rule if it precludes title merely on the ground that more than one group utilises land. Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use; or traditional title vests in the larger "society" comprising all the rightful occupiers. Moreover, since occupancy is a question of fact, the "society" in occupation need not correspond to the most significant cultural group among the indigenous people(572) Blackburn J. in Milirrpum (1971) 17 FLR, at p 273, expressly left open the possibility of a larger group establishing traditional title.

45. It may be noted that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") speaks in various places of "Aboriginals entitled by Aboriginal tradition to the use or occupation of ... land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission"(573) For instance, s.11(1)(a), (1AD)(a), (1AE)(a), (1B)(4); see also s.71(1). The Land Rights Act recognises that traditional occupation may not be exclusive. It may be, for instance, that one group is entitled to come on to land for ceremonial purposes, all other rights in the land belonging to another group(574) The reports of Aboriginal Land Commissioners under the Land Rights Act contain a number of examples that bear out this observation.

46. It is, of course, ultimately a matter of speculation how long, and in what manner, the Meriam people lived on the Islands before European contact. However, it seems that the Islands were probably first inhabited by people of Melanesian origin coming from Papua New Guinea(575) Determination of Moynihan J., vol.1, p 89 and that the Islanders lived by way of a subsistence economy reliant on gardening and fishing. Cultivation was by a slash and burn technique(576) ibid., pp 7677. Dwellings, occupied by family groups, were built from bamboo and fenced around(577) ibid., p 96. Moynihan J. said(578) ibid., p 91:

"The islands had been occupied by such people for some generations."

Later his Honour said (579) ibid., p 155:

"Given considerations such as the constraints imposed by the rugged terrain on what are, in any event, three small islands, the pressures of population, the elaborate and complex social organisation of the people and the importance of gardening from the point of view of subsistence and socially it would perhaps be surprising if the Murray Islanders had not, during the period of their occupation of the Islands, developed ways of controlling access to and the use of land (in the extended sense) and the resources it afforded. In any event it seems fairly safe to assume they brought with them a social organisation which they adopted (sic) to the conditions on the Islands."

And, with respect to the current Meriam society, Moynihan J. found(580) ibid.,

pp 155156:

"Murray Islanders have a strong sense of relationship to their Islands and the land and seas of the islands which persists from the time prior to European contact. They have no doubt that the Murray Islands are theirs."

47. All the factors discussed above in support of traditional title are clearly satisfied in the present case. Indeed, the defendant agreed that the Meriam people were present on the Islands before and at the time of annexation and that the Crown in right of Queensland has not attempted since then to dispossess them. However, the defendant argued that there was no ordered system of land tenure before annexation which was continued, albeit changed, to the present time. The argument seems to have been that the system of rules on which Meriam society was based prior to European contact was too uncertain to amount to traditional title; and that, after annexation, disputes over land were resolved by the Island Court which owed little to the precontact situation.

The first aspect of the argument rests on such statements by Moynihan J. as(581) ibid., p 172:

"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 ... will on the community."

It is true that the findings of Moynihan J. do not allow the articulation of a precise set of rules and that they are inconclusive as to how consistently a principle was applied in local law, for example, with respect to inheritance of land. But, as has been said earlier in this judgment, the particular nature of the rules which govern a society or which describe its members' relationship with land does not determine the question of traditional land rights. Because rights and duties inter se cannot be determined precisely, it does not follow that traditional rights are not to be recognised by the common law.

49. The only relevance of an argument of uncertainty is if it can be said that the rules or practices governing Meriam society were so capricious and their application so inconsistent as to indicate that the Meriam people's presence on the Islands was coincidental and random(582) There may in some circumstances be an argument that a traditional system was so violent or otherwise repressive of human rights as to make adoption by the common law impossible: see Bastard v. Smith. But that is not relevant here. On the findings of Moynihan J. that is impossible to conclude.

50. An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise "traditional" rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing(583) Determination of Moynihan J., vol.1, pp 158159; vol.2, p 26.

51. But modification of traditional society in itself does not mean traditional title no longer exists(584) See Hamlet of Baker Lake (1979) 107 DLR (3d), especially at pp 527529. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life(585) In Hamlet of Baker Lake aboriginal title was held to exist despite the fact that the Inuit had changed from a nomadic to a settled lifestyle: see ibid., at pp 524529. See also Ontario (AttorneyGeneral) v. Bear Island Foundation; Re Paulette and Registrar of Titles (No.2) (1973) 42 DLR (3d) 8; Sparrow (1990) 1 SCR, at pp 10941099; (1990) 70 DLR (4th), at pp 397401.

52.It follows from what has been said that the Meriam people, represented by the plaintiffs, had traditional title to the Islands which survived annexation. It is necessary now to consider submissions as to the power of the Crown to extinguish that title.

Extinguishment of traditional title (i) The power of the Crown to extinguish traditional title

53. The plaintiffs' argument before the Court proceeded on the assumption that the Crown had power to extinguish traditional title, at any rate "by, or pursuant to, clear and plain legislation"(586) The precise language employed by counsel for the plaintiffs varied only little during argument e.g. "extinguishable by appropriate clear and plain legislative words"; "assuming the legislation clearly and plainly permitted it". Nevertheless, something should be said about the concept of extinguishment.

54. There is precedent for the proposition that the Crown has power to extinguish traditional title(587) Johnson v. McIntosh (1823) 21 US 240, at p 259; United States v. Santa Fe Pacific Railroad Co.; St Catherine's Milling and Lumber Company v. The Queen (1888) 14 AC 46; TeeHitTon Indians v. United States (1955) 348 US, at p 279; Hamlet of Baker Lake (1979) 107 DLR (3d), at p 549. In Mabo v. Queensland (1988) 166 CLR 186, at pp 195, 201, 213214, the power to extinguish by legislation consisting of "clear and plain" language, was assumed. But is such a power exercisable only with the consent of the titleholders (that is, akin to a right of preemption), or is it a power exercisable unilaterally without account of the traditional titleholders' interests? In what way is it different from the power in the Crown compulsorily to acquire any interest in land? Is it compensable? Although most authority appears to assume a power in the Crown to extinguish traditional title unilaterally, there is support for the proposition that consent is required. It is true that in St Catherine's Milling the Privy Council said(588) (1888) 14 App Cas, at pp 54, 55 that the Indians' interest was "a personal and usufructuary right, dependent upon the good will of the Sovereign" and that it existed at the "pleasure of the sovereign". In that case however, the Indians' interest was held to arise from the Royal Proclamation of 1763. On the other hand, in Worcester v. Georgia Marshall C.J. said(589) (1832) 31 US 350, at p 370 that the Crown's title comprised "the exclusive right of purchasing such lands as the natives were willing to sell". And in The Queen v. Symonds Chapman J. said(590) (1847) NZPCC 387, at p 390; Chapman J. continued: "It follows from what has been said, that in solemnly guaranteeing the Native title, and in securing what is called the Queen's preemptive right, the Treaty of Waitangi ... does not assert either in doctrine or in practice anything new and unsettled.":

"Whatever may be the opinion of jurists as to the strength or weakness of the Native title ... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers."

55. Furthermore, even assuming the power of extinguishment to be a power to act unilaterally, it is not easy to discern the basis for such a proposition. There are suggestions in decided cases that it may be a concomitant of an assertion of sovereignty(591) See Johnson v. McIntosh (1823) 21 US, at p 253. But to say that, with the acquisition of sovereignty, the Crown has the power to extinguish traditional title does not necessarily mean that such a power is any different from that with respect to other interests in land. The Crown has the power, subject to constitutional, statutory or common law restrictions, to terminate any subject's title to property by compulsorily acquiring it(592) See Calder (1973) SCR, at p 353; (1973) 34 DLR (3d), at p 174.

56. Another rationale for the special power of the Crown to extinguish traditional title appears to be that it is part of British colonial policy to protect the interests of indigenous inhabitants; that the Crown's power is the corollary of the general inalienability of title, which itself constituted a means of protecting aboriginal people from exploitation by settlers(593) See The Queen v. Symonds (1847) NZPCC , at pp 390391; Guerin v. The Queen (1984) 2 SCR, at pp 383384; (1984) 13 DLR (4th), at p 340, where reference is made to the Royal Proclamation of 1763, applicable to recentlyacquired North American colonies; note also the Proclamation by Governor Bourke and comments by Lord Glenelg following John Batman's attempted purchases of land at Port Phillip in 1835, discussed in McNeil, pp 224225. That traditional title is generally inalienable may itself be open to debate(594) Dicta referring to inalienability must be read in the light of ordinances and statutes precluding alienation except by surrender to the Crown. See for instance Nireaha Tamaki v. Baker (1901) AC 561, at p 579; AttorneyGeneral for Quebec v. AttorneyGeneral for Canada (1921) 1 AC 401, at pp 408, 411; Administration of Papua and New Guinea v. Daera Guba (1973) 130 CLR 353, at p 378. This is not the place for an examination of alienability of land in indigenous societies; no sufficient evidence was offered to the Court in that regard. But alienability itself is a relative concept and there was evidence in at least one of the claims made under the Land Rights Act of land being "given" by the few remaining survivors of one group to another group: see the Report by the Aboriginal Land Commissioner, Alligator Rivers Stage II land claim, (1981), pars 118, 119. But, in any event, a principle of protection is hardly a basis for a unilateral power in the Crown, exercisable without consent. Moreover, inalienability of the title says nothing of the Crown's power or the nature of the title. Rather, it describes rights, or restrictions on rights, of settlers or other potential purchasers(595) See The Queen v. Symonds (1847) NZPCC , at pp 389391; McNeil, pp 230235.

57. Finally, some cases suggest that a power to extinguish traditional title unilaterally is vested in the Crown as a result of an inherent quality of the title itself. This follows from characterisation of the title as "a personal and usufructuary right" as opposed to a proprietary right(596) St. Catherine's Milling (1888) 14 App Cas, at p 54; TeeHitTon Indians v. United States (1955) 348 US, at pp 279, 281 ("right of occupancy", not compensable); Calder (1973) SCR, at pp 352353; (1973) 34 DLR (3d), at pp 173174 ("usufructuary right", but right to compensation suggested), the former being inherently weaker and more susceptible to extinguishment. As long ago as 1921 the Privy Council cautioned against attempting to define aboriginal rights to land by reference to the English law notion of estates. In Amodu Tijani, Viscount Haldane said(597) (1921) 2 AC, at p 403:

"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."

58. As discussed earlier, the specific nature of such a title can be understood only by reference to the traditional system of rules. An inquiry as to whether it is "personal" or "proprietary" ultimately is fruitless and certainly is unnecessarily complex. The warning in Amodu Tijani has been heeded in recent cases. For example, in Calder Judson J. said(598) (1973) SCR, at p 328; (1973) 34 DLR (3d), at p 156. See also Dickson J. in Guerin (1984) 2 SCR, at p 382; (1984) 13 DLR (4th), at p 339: "It appears to me that there is no real conflict between the cases which characterize Indian title as a beneficial interest of some sort, and those which characterize it a personal, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest in land the courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law.":

"(T)he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a 'personal or usufructuary right'."

Therefore, a conclusion that traditional title is in its nature "personal" or "proprietary" will not determine the power of the Crown to extinguish the title unilaterally.

59. As I have said, the plaintiffs did not contest the Crown's power to extinguish traditional title by clear and plain legislation. That concession was properly made, subject to a consideration of the implications that arise in the case of extinguishment without the consent of the titleholders. Where the legislation reveals a clear and plain intention to extinguish traditional title, it is effective to do so. In this regard traditional title does not stand in a special position, although the canon of construction referred to by Lord Atkinson in Central Control Board (Liquor Traffic) v. Cannon Brewery Company Limited(599) (1919) AC 744, at p 752. See also The Commonwealth v. Hazeldell Ltd. (1918) 25 CLR 552, at p 563 and the decisions there referred to is of equal application:

"That canon is this: that an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms."

Application of this canon to traditional title may be found in several Canadian and American decisions(600) For Canada, see Calder (1973) SCR, at p 404; (1973) 34 DLR (3d), at p 210; Sparrow (1990) 1 SCR, at p 1099; (1990) 70 DLR (4th), at p 401. For the United States, see United States v. Santa Fe Pacific Railroad Co. (1941) 314 US, at pp 353354; Lipan Apache Tribe v. United States (1967) 180 Ct Cl 487, at p 492.

60.It need hardly be said that where an executive act is relied upon to extinguish traditional title, the intention of the legislature that executive power should extend this far must likewise appear plainly and with clarity.

61. It follows that traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land. That is not to say that the legislature must identify with specificity particular interests to be extinguished if the legislative intention is otherwise clear(601) Mabo v. Queensland (1988) 166 CLR, at pp 213214. Even if a law deals specifically with land the subject of traditional title, it may take the form of a reservation or grant to trustees for the benefit of indigenous people and so be consistent with the continuance of title. These are all questions, the answers to which depend upon the terms of the legislation and any relevant circumstances. Where there has been an alienation of land by the Crown inimical to the continuance of traditional title, any remedy against the Crown may have been lost by the operation of limitation statutes. And nothing in this judgment should be taken to suggest that the titles of those to whom land has been alienated by the Crown may now be disturbed. Except in the context of the lease to the London Missionary Society and the lease granted over Dauer and Waier (to be discussed), that is not a matter the Court was asked to consider.

(ii) Has there been any extinguishment?

62. While it is common ground that nothing has been done to extinguish the rights of the Meriam people to the Islands generally, there have been some transactions which were inconsistent with the continuance of traditional title in respect of the relevant land.

63. The London Missionary Society came to the Murray Islands in or about 1871; in 1877 it moved its local headquarters to Mer(602) Determination of Moynihan J., vol.1, p 99. In 1882 the Queensland Government granted the Society a special lease of 2 acres on Mer for a term of 14 years(603) ibid., vol.2, p 12. There were further leases of the land to the Society. In 1914 the Society assigned its leasehold interest to the General Secretary of the Australian Board of Missions. The General Secretary later assigned his interest to the trustees of the Board and in 1933 the trustees assigned their interest to the Corporation of the Synod of the Diocese of Carpentaria(604) ibid., vol.2, p 25.

64. The plaintiffs made submissions as to the consequences of the lease to the Society but claimed no relief in respect of what had occurred. Whether, in the light of the principles discussed in this judgment, the leases granted in 1882 and subsequently were effective to extinguish the traditional title of the Meriam people to that land is a question we do not have to answer. It may be that, since there was a special lease of 2 acres of the Islands, the intention of the legislature to extinguish title was expressed in unequivocal terms. If so, questions arise as to the consequences of that extinguishment. But, in the absence of a claim for particular relief in respect of the lease and in the absence of representation on behalf of anyone laying claim to an interest under any lease, these questions must remain unanswered.

65.In 1931 a lease was granted over the islands of Dauer and Waier for a term of 20 years for the purpose of establishing a sardine factory. The lease was granted to two persons who were not Meriam people(605) ibid., vol.2, p 47. Special conditions attached to the lease precluded the lessees from interfering with "the use by the Murray Island natives of their tribal gardens and plantations" or with "the operations of the Murray Island natives who fish around (the) reefs"(606) ibid., vol.2, pp 4849. Subsequently the Chief Protector of Aboriginals bought the improvements made on Dauer and the two islands became part of the reserve again(607) ibid., vol.2, pp 5152.

66.Whether that lease was effective to extinguish the traditional title of the Meriam people to Dauer and Waier, again is a question the Court was not asked to answer and no relief is claimed in regard to that transaction. In those circumstances it is unnecessary to say more about the lease.

(iii) Status of the Islands as Crown land

67. As mentioned earlier, the Islands were annexed to Queensland in 1879, whether by proclamation or, retrospectively, by legislation. By various statutes the Islands were "reserved" from sale. Brennan J. has identified the relevant legislative history and it is unnecessary to repeat what his Honour has said in that regard.

68.The current legislation is the Land Act 1962 (Q.), s.5 of which defines "Crown land" as follows:

"All land in Queensland, except land which is, for the time being

(a) lawfully granted or contracted to be granted in feesimple by the Crown; or

(b) reserved for or dedicated to public purposes; or

(c) subject to any lease or licence lawfully granted by the Crown: Provided that land held under an occupation licence shall be deemed to be Crown land."

69. Section 4 of the Land Act is the repeals and savings provision. By s.4(15)(a) all appointments of trustees of reserves and all things lawfully done under the repealed Acts and in force at the commencement of the 1962 statute "shall continue to be of full force and effect" and be deemed to have been done "under the analogous provisions of and for the purposes of this Act".

70. In consequence, the earlier reservation of the Islands from sale continued and the Islands are excluded from the definition of Crown land in the 1962 statute. In further consequence, there has been no alienation of the Islands by the Crown and there can be none, while the Islands are reserved for a public purpose. Nothing in the reservation of the Islands through various statutes nor the appointment of trustees to control reserved land could amount to an extinguishment of traditional title. Nor did the defendant contend otherwise.

71.Thus, if the plaintiffs can make good their claim to traditional title to the Islands, whether on their own behalf or on behalf of the Meriam people, there is nothing in the legislative history of Queensland, at least until the Queensland Coast Islands Declaratory Act 1985 (Q.), which is destructive of traditional title. And, so far as the plaintiffs' title is concerned, that Act was held to have been nullified by s.10 of the Racial Discrimination Act 1975 (Cth)(608) Mabo v. Queensland.

(iv) Deed of grant in trust

As indicated at the outset of this judgment, the plaintiffs seek declaratory relief in regard to any deed of grant in trust in respect of the Islands. They say that the defendant is not

"empowered" to make such a grant under the Land Act and that the making of such a grant would be unlawful by reason of ss.9 and 10 of the Racial Discrimination Act. There is an alternative claim, namely, that a deed may be granted in respect of the Islands only upon payment of "proper compensation".

73. Section 334(1) of the Land Act empowers the Governor in Council to grant in trust, or by Order in Council to reserve and set apart, any Crown land which is or may be required for any public purpose. For reasons already given, the Islands are not Crown land and they would have to become Crown land before s.334(1) could be brought into operation. It would be necessary therefore to rescind the Order in Council creating the existing reserve: s.334(4).

74. Section 353A(1) of the Land Act contains a special provision whereby, in the case of land granted in trust for the benefit of Aboriginal or Islander inhabitants, the Governor in Council may, by Order in Council, declare that the land shall revert to the Crown. But he may do so only if authorised by an Act of Parliament specifically relating to that land. The effect of such a declaration is that the land reverts to the Crown "freed and discharged from the trusts and all encumbrances, estates or interests whatsoever and may be dealt with by the Crown as if it had never been granted".

75. If there were a real prospect that the Governor in Council intended to make a deed of grant in trust in respect of the Islands, it would be appropriate for the Court to determine this aspect of the plaintiffs' claim to declaratory relief. But there was no evidence to this effect and the SolicitorGeneral denied that there was any indication of the Governor's intentions to do so. In those circumstances no justification exists for making a declaration in the terms sought even if the plaintiffs had otherwise made good their case for that relief.

76. That case depends upon the operation of ss.9 and 10 of the Racial Discrimination Act. But the questions raised by those sections in the present context are not the same questions decided in Mabo v. Queensland and they could not be answered without reference to factual matters, a decision about which is not before the Court. Nevertheless, the Racial Discrimination Act has a wider significance which is explored towards the end of this judgment. Fiduciary duty

77. The plaintiffs seek a declaration that:

"the Defendant is under a fiduciary duty, or alternatively bound as a trustee, to the Meriam People, including the Plaintiffs, to recognize and protect their rights and interests in the Murray Islands".

They argued that such a duty arises by reason of annexation, over which the Meriam people had no choice; the relative positions of power of the Meriam people and the Crown in right of Queensland with respect to their interests in the Islands; and the course of dealings by the Crown with the Meriam people and the Islands since annexation. However, while the plaintiffs claim the declaration just mentioned, the statement of claim does not seek any specific

relief for a breach of fiduciary duty.

(i) Existence of the obligation

78. The factors giving rise to a fiduciary duty are nowhere exhaustively defined(609) Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 CLR 41, at pp 68, 9697, 141142; Finn, Fiduciary Obligations, (1977), p 1. There are certain kinds of relationships which necessarily entail fiduciary obligations, for example, trustee and beneficiary, company director and shareholder, principal and agent. But a fiduciary obligation may arise in a variety of circumstances as a result of a particular relationship. The kinds of relationships which can give rise to a fiduciary obligation are not closed(610) Hospital Products Ltd. ibid., at pp 68, 96, 102; Tufton v. Sperni (1952) 2 TLR 516, at p 522; English v. Dedham Vale Properties Ltd. (1978) 1 WLR 93, at p 110; (1978) 1 All ER 382, at p 398. In Hospital Products Ltd. Mason J. said(611) (1984) 156 CLR, at pp 9697:

"The critical feature of (fiduciary) relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position."

79. Underlying such relationships is the scope for one party to exercise a discretion which is capable of affecting the legal position of the other. One party has a special opportunity to abuse the interests of the other. The discretion will be an incident of the first party's office or position(612) Weinrib, "The Fiduciary Obligation", (1975) 25 University of Toronto Law Journal 1, at pp 48; Guerin (1984) 2 SCR, at p 384; (1984) 13 DLR (4th), at pp 340341. The undertaking to act on behalf of, and the power detrimentally to affect, another may arise by way of an agreement between the parties, for example in the form of a contract, or from an outside source, for example a statute or a trust instrument. The powers and duties may be gratuitous and "may be officiously assumed without request"(613) Finn, Op Cit, p 201; Guerin ibid., at p 384; p 341 of DLR

80. The defendant argued that there is no source for any obligation on the Crown to act in the interests of traditional titleholders and that, given the power of the Crown to destroy the title, there is no basis for a fiduciary obligation. This can be answered in two ways. First, the argument ignores the fact that it is, in part at least, precisely the power to affect the interests of a person adversely which gives rise to a duty to act in the interests of that person(614) Hospital Products Ltd. (1984) 156 CLR, at p 97; Weinrib, Op Cit, at pp 48; the very vulnerability gives rise to the need for the application of equitable principles. The second answer is that the argument is not supported by the legislative and executive history of Queensland in particular and of Australia in general. In the present case, a policy of "protection" by government emerges from the legislation, examples of which are quoted above, as well as by executive actions such as the creation of reserves, the removal of nonIslanders from the Islands in the 1880s and the appointment of a school teacher and an "adviser" in 1892. More general indications include the stated policy of protection underlying the condemnation of purported purchases of land by settlers from Aborigines as, for example, the John Batman incident referred to earlier. And even the general presumption that the British Crown will respect the rights of indigenous peoples occupying colonised territory, as discussed above, itself indicates that a government will take care when making decisions which are potentially detrimental to aboriginal rights.

81. The defendant also argued that the Crown cannot be a trustee or fiduciary in the present circumstances because its responsibilities towards the Islanders with respect to the reserve are a matter of "governmental discretion", in reliance upon the "political trust" decisions in Kinloch v. Secretary of State for India (615) (1882) 7 App Cas 619 and Tito v. Waddell (No.2)(616) (1977) Ch 106, rather than an enforceable equitable obligation. In Kinloch Lord Selborne L.C. said (617) (1882) 7 App Cas, at pp 625626:

"Now the words 'in trust for' are quite consistent with, and indeed are the proper manner of expressing, every species of trust a trust not only as regards those matters which are the proper subjects for an equitable jurisdiction to administer, but as respects higher matters, such as might take place between the Crown and public officers discharging, under the directions of the Crown, duties or functions belonging to the prerogative and to the authority of the Crown. In the lower sense they are matters within the jurisdiction of, and to be administered by, the ordinary Courts of Equity; in the higher sense they are not."

82. Whether the idea of a political or "higher" trust has any utility need not be considered here because it does not, in any case, apply in the present circumstances. Kinloch concerned a specific grant of goods by Royal Warrant to the Secretary of State for India in Council "in trust" for armed forces personnel. The interest claimed to be held in trust was created expressly by the Crown itself. If a traditional title exists, it arises as a matter of common law, quite independently of any grant or other action on the part of the Crown. And if it is extinguishable, then the existence of the power is also a matter of law, independent of legislation or the Crown's action. Ultimately the decisions in both Kinloch and Tito v. Waddell (No.2)(618) The trust claimed in Tito v. Waddell (No.2) to exist for the benefit of Banaban landowners, with respect to a fund comprising compensation or royalties paid by Crown lessees, was a question of construction of the Mining Ordinance 1928 of the Gilbert and Ellice Islands Colony turned on the construction of an instrument to determine whether it created an express trust. The obligation relevant in the present case arises as a matter of law because of the circumstances of the relationship.

83.The defendant further relied on Williams v. AttorneyGeneral for New South Wales(619) (1913) 16 CLR 404. In that case, this Court held that use by the Crown of land for a Governor's residence in New South Wales did not dedicate the land for a public purpose so as to create a trust for the benefit of the public of New South Wales or of the United Kingdom, comprising the right to have the land continue to be used for that purpose. But the decision with respect to the trust question turned on the impossibility of specifying the interest in the land to which the public were entitled(620) ibid., at pp 429, 433435, 467. The decision also seems to have turned, in part, on the lack of specificity of the objects of the claimed trust that is, the public of New South Wales or of the United Kingdom: see pp 433435. No such difficulty occurs here.

84.In Guerin the Supreme Court of Canada held that the Crown had a fiduciary duty towards the Indians. Dickson J. (Beetz, Chouinard and Lamer JJ. concurring) said(621) (1984) 2 SCR, at p 376; (1984) 13 DLR (4th), at p 334:

" The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown."

In its terms the fiduciary obligation found by Dickson J. depended on the statutory scheme prescribing the process by which the Indian land could be disposed of(622) cf. ibid., per Wilson J. at pp 348350; pp 356357 of DLR. But the relevant elements of that scheme appear to be that the Indians' interest in land was made inalienable except by surrender to the Crown, arguably an attribute of traditional title independent of statute in any case.

85.Be that as it may, if the Crown in right of Queensland has the power to alienate land the subject of the Meriam people's traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people's power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people's interests in this way is extraordinary and is sufficient to attract regulation by Equity to ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power.

86. Moreover if, contrary to the view I have expressed, the relationship between the Crown and the Meriam people with respect to traditional title alone were insufficient to give rise to a fiduciary obligation, both the course of dealings by the Queensland Government with respect to the Islands since annexation for example the creation of reserves in 1882 and 1912 and the appointment of trustees in 1939 and the exercise of control over or regulation of the Islanders themselves by welfare legislation such as The Native Labourers' Protection Act of 1884 (Q.), The Torres Strait Islanders Act of 1939 (Q.) under which an Island Court was established and a form of "local government" instituted, and the Community Services (Aborigines) Act 1984 (Q.)

would certainly create such an obligation.
(ii) Nature of the obligation

87. To say that, where traditional title exists, it can be dealt with and effectively alienated or extinguished only by the Crown, but that it can be enjoyed only by traditional owners, may be tantamount to saying that the legal interest in the traditional rights is in the Crown whereas the beneficial interest in the rights is in the indigenous owners. In that case the kind of fiduciary obligation imposed on the Crown is that of a constructive trustee. In any event, the Crown's obligation as a fiduciary is in the nature of, and should be performed by reference to, that of a trustee.

88.In Guerin Dickson J. said(623) ibid., at p 376; p 334 of DLR, referring to the Crown's duty towards the Musqueam Indians:

"This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect."

Thus, the fiduciary obligation on the Crown, rooted in the extinguishability of traditional title, is in the nature of the obligation of a constructive trustee(624) The situation where a particular traditional title is dealt with by the Crown is distinguishable. This may occur where a parcel of land is alienated to a third party by the Crown with the consent of the traditional titleholders, as in Guerin. In such a case the Crown is clearly a trustee with respect to the particular traditional titleholders: see Guerin (1984) 2 SCR, per Wilson J. at p 355; (1984) 13 DLR (4th), at p 361.

(iii) Content of the obligation

89. The content of a fiduciary obligation or constructive trust will be tailored by the circumstances of the specific relationship from which it arises. But, generally, to the extent that a person is a fiduciary he or she must act for the benefit of the beneficiaries(625) Hospital Products Ltd.; Finn, Op Cit, p 15. Moreover, this general mandate comprises more particular duties with respect to, first, the procedure by which a fiduciary makes a decision or exercises a discretion and secondly, the content of that decision. On the one hand, a fiduciary must not delegate a discretion and is under a duty to consider whether a discretion should be exercised. And on the other hand, a fiduciary is under a duty not to act for his or her own benefit or for the benefit of any third person(626) Finn, ibid., pp 1516. The obligation on the Crown in the present case is to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the titleholders. For example, the Crown could not degazette the Islands, thereby terminating the reserve, or simply alienate the Islands contrary to the interests of the Islanders; nor could it take these or any other decisions affecting the traditional title without taking account of that effect. If it did, it would be in breach of its duty and liable therefor.

90.The content of the fiduciary obligation in this case will be different from that of an obligation arising as a result of particular action or promises by the Crown. For example, in Delgamuukw McEachern C.J. found(627) (1991) 79 DLR (4th), at p 482 the content of the Crown's fiduciary obligation to be:

"to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose. The Crown would breach its fiduciary duty if it sought arbitrarily to limit aboriginal use of vacant Crown land."

But that is not the kind of duty which is relevant here. Delgamuukw differed from the present case significantly in that both the nature of the protected rights and the source of the Crown's obligation were different. McEachern C.J. held that the Indians' traditional title had been extinguished prior to Confederation(628) ibid., at pp 464, 477478; that this unilateral extinguishment was, in part, the source of the Crown's obligation; and that the rights of the Indians protected by the obligation were those invoked by promises made by the Crown after extinguishment, to permit the Indians to use land not used for other purposes. In the present case, extinguishment or impairment of traditional title would not be a source of the Crown's obligation, but a breach of it.

91.A fiduciary has an obligation not to put himself or herself in a position of conflict of interests. But there are numerous examples of the Crown exercising different powers in different capacities. A fiduciary obligation on the Crown does not limit the legislative power of the Queensland Parliament, but legislation will be a breach of that obligation if its effect is adverse to the interests of the titleholders, or if the process it establishes does not take account of those interests.

Interim summary

92. It is convenient at this point to summarise the conclusions so far reached in this judgment. They are that the traditional title of the Meriam people survived the annexation of the Islands; that the title is capable of extinguishment by clear and plain legislation or by an executive act authorised by such legislation; that extinguishment would involve a breach of a fiduciary obligation owed by the Crown to the Meriam people; but that extinguishment of that title has not occurred. These conclusions accept what are the primary aspects of the plaintiffs' case.

93. It should be noted that the plaintiffs seek no more than recognition of a fiduciary duty or a trust; they do not ask the Court to spell out the consequences of a breach of that duty or trust. In particular they do not seek compensation or damages in respect of any past interference with the rights and interests of the Meriam people in the Islands. Whether there should be a declaration, even on the terms sought, depends in part upon the operation of the Racial Discrimination Act. I shall explain what I mean by this later. It is convenient at this point to turn to the other form of title claimed by the plaintiffs.

Common law aboriginal title

(i) The plaintiffs' case

94. The plaintiffs did not argue for an adverse title against the Crown but for a possessory title by reason of long possession. Such a title must, of course, be shown to exist at the present time to be of use to the plaintiffs. But the inquiry focuses on the point of annexation. It must, as was clear from the plaintiffs' written submissions, be shown that such a possessory title arose immediately after annexation and continues today. To succeed, the plaintiffs must show that the Crown never had title to the Islands; that issue concerns the law at the time of annexation.

95. The plaintiffs' submissions with respect to possessory title may be summarised in this way. The common and statute law of England applied in a settled colony, where applicable to local conditions. English land law applied in the Colony of Queensland. According to common law then, as now, possession of land gives rise to a title which is good against all the world except a person with a better claim. Such a possessor is "seised" of the land so that he or she acquires an estate in the land which is an estate in fee simple. It is a fee simple because the interest acquired is presumed to be such until shown otherwise. Therefore, even a wrongful possessor acquires a fee simple (sometimes called a "tortious fee simple")(629) See Pollock and Wright, An Essay on Possession in the Common Law, (1888) (hereafter "Pollock and Wright"), p 94, effective against all the world except a person with a better right. But, in addition, the title arising from possession is presumed to be lawful and by right (that is, it is presumed to be the best right to possession) unless the contrary is proved.

96. According to the plaintiffs' submissions, the Crown could not show that, on acquisition of New South Wales or Queensland, it had a better claim to possession of occupied land and so the presumption of a fee simple title in the indigenous possessors of land was left undisturbed. Such a title would have been held of the Crown, however, which held a radical title to all acquired territory. In order to establish such a possessory title, the indigenous inhabitants would have to prove occupation by their ancestors at the time of settlement, such that it amounted in law to possession of particular areas of land. This, they said, could be proved by reference to the findings of Moynihan J.

97. In the absence of argument to the contrary, it may be accepted that New South Wales and subsequently Queensland were settled colonies. It may also be accepted that English land law and its two fundamental doctrines, estates and tenures, applied in these colonies(630) AttorneyGeneral v. Brown (1847) 1 Legge, at p 318, though, as we have seen, Stephen C.J. understood its application to have a different effect. The issues which arise for consideration, therefore, are:

(a) the validity of the proposition that possession gives rise to a presumption of a fee simple title against all but a better claimant;

(b) the validity of the claim that the Crown was not, at the time of annexation, a better claimant to possession; and

98. As the plaintiffs put their case, there would be no more favourable consequences flowing from acceptance of their submissions as to possessory title than from acceptance of their submissions as to traditional title. After contending for the existence of a possessory title, the plaintiffs relied on the same line of argument as they did for traditional title. Significantly, they conceded that a possessory title is extinguishable by "clear and plain" legislation. And the argument as to fiduciary duty and trust did not focus on the existence of a possessory title. It may have been too great a concession that a fee simple arising from possession is "extinguishable" in the same way as traditional title. But, given my conclusions as to traditional title and, especially, those as to the existence of a fiduciary obligation on the Crown arising from it and given what follows concerning the Racial Discrimination Act, there is no need to express a firm opinion on the plaintiffs' arguments concerning possessory title.

99.Nevertheless, those arguments raised important issues which have not been examined before in this area of the law, and something should be said about the principles of law on which they rested. The plaintiffs' case in this regard owed much to McNeil; so too does this portion of my judgment.

(ii) The relationship between possession and title: Does possession give rise to a presumptive title?

100. "Possession" is notoriously difficult to define(631) See Pollock and Wright, pp 142; Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach", (1964) 4 Melbourne University Law Review 476 but for present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land. "Title" is, in the present case, the abstract bundle of rights associated with that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss; this includes the right to possession.

101. In the thirteenth century Bracton wrote(632) Bracton on the Laws and Customs of England, (Thorne Tr.) (1977), vol.III, p 134: "(E)veryone who is in possession, though he has no right, has a greater right (than) one who is out of possession and has no right". It is said that possession is the root of title(633) Asher v. Whitlock (1865) 1 QB 1; Perry v. Clissold (1907) AC 73; Calder (1973) SCR, at p 368; (1973) 34 DLR (3d), at p 185; Megarry and Wade, The Law of Real Property, 5th ed. (1984) (hereafter "Megarry and Wade"), pp 105106; Pollock and Wright, pp 22,9495. Cf. Holdsworth, A History of English Law, 2nd ed. (1937), vol.VII, (hereafter "Holdsworth, vol.VII"), pp 6465, but see analysis of Holdsworth, vol.VII, in Allen v. Roughley (1955) 94 CLR 98, at pp 134ff. To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land both leasehold and freehold(634) Holdsworth, vol.VII, p 9. And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land(635) Bristow v. Cormican (1878) 3 App Cas 641, at p 661; Megarry and Wade, pp 105, 11581159. It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumbersomeness and ineffeciency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages(636) Holdsworth, A History of English Law, 5th ed. (1942), vol.III (hereafter "Holdsworth, vol.III"), pp 34; Holdsworth, vol.VII, p 4., emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth(637) Holdsworth, vol.III, pp 329 and by Pollock and Maitland(638) The History of English Law, 2nd ed. (1898), vol.II (hereafter "Pollock and Maitland"), pp 4680; it is unnecessary to repeat what is said by those writers.

(iii) Ejectment: The relationship between possession and title

102. One view(639) See Holdsworth, vol.VII, pp 6264 is that the advent of ejectment represented a fundamental change in the concept of ownership in English law, involving the idea of absolute title divorced from its radical attribute, possession. But the other view(640) See Hargreaves, "Terminology and Title in Ejectment", (1940) 56 Law Quarterly Review 376; Pollock and Wright, pp 9397; Megarry and Wade, pp 104105; Asher v. Whitlock (1865) 1 QB, at p 5, which is more persuasive, is that the basic relationship between possession and ownership of land established by the earlier real actions, involving the idea of relative claims to possession, was maintained or even emphasised in the action of ejectment. A successful claim to an interest in land comprised the better claim to possession and its associated rights as between the parties.

103. In order to show a title which would defeat the defendant in possession, the plaintiff in ejectment had to prove a right of entry; the defendant could rely on possession. Therefore, the plaintiff was put to proof of the strength of his or her title and could not rely on the weakness of the defendant's title(641) Roe d. Haldane v. Harvey (1769) 4 Burr 2484, at p 2487 (98 ER 302, at p 304); Goodtitle d. Parker v. Baldwin (1809) 11 East 488, at p 495 (103 ER 1092, at p 1095). The central issue, therefore, in an action for ejectment, and on which opinions have differed, was what circumstances gave a right of entry. Was proof by the plaintiff of mere prior possession sufficient to found a right of entry against the defendant, indicating that possession gave rise to an enforceable "title", or was more required? Did possession give rise to a title which survived the loss of possession? The relevance of this question is that it points up the nature of the entitlements arising from the mere possession which would, subject to proof, have existed immediately on annexation.

104. So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest(642) Asher v. Whitlock; Ex parte Winder (1877) 6 ChD 696; Rosenberg v. Cook (1881) 8 QBD 162. A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead(643) Wheeler v. Baldwin (1934) 52 CLR 609, at pp 631633; Elvis v. Archbishop of York (1619) Hob 315, at p 322 (80 ER 458, at p 464); Pollock and Wright, pp 9394; Maitland "The Mystery of Seisin" (1886) 2 Law Quarterly Review 481, esp. pp 482486. A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved(644) Wheeler v. Baldwin (1934) 52 CLR, at p 632. And, in the circumstances under consideration, there is no possibility of a leasehold estate at the time of annexation or of some other lesser estate. Applied to these circumstances, prima facie all indigenous inhabitants in possession of their land on annexation are presumed to have a fee simple estate.

105. But what does English land law have to say if possession of land is lost? The seisin and fee simple enjoyed as a result of possession would also be lost because each successive possessor must enjoy the rights directly associated with possession. According to this analysis, the last possessor only in any succession would enjoy the entitlements. If the Crown dispossessed an indigenous people, its title arising from possession would be the best claim. This was the effect of Holdsworth's analysis of land law. He concluded that proof of prior possession was insufficient in itself to provide a right of entry in the plaintiff against a defendant who was a mere possessor(645) Holdsworth, vol.VII, pp 6168; Stokes v. Berry (1699) 2 Salk 421 (91 ER 366); Doe d. Wilkins v. Marquis of Cleveland (1829) 9 B. and C. 864 (109 ER 321). That is, possession of itself gives rise to no title which survives dispossession.

106. The better understanding is, I think, that if no other factors come into play, then, regardless of the length of time, as between mere possessors prior possession is a better right (646) Allen v. Rivington (1670) 2 Wms Saund 111 (85 ER 813); Doe d. Smith and Payne v. Webber (1834) 1 AD. and E 119 (110 ER 1152); Doe d. Hughes v. Dyeball (1829) M.and M. 346 (173 ER 1184); Asher v. Whitlock; Perry v. Clissold; Oxford Meat Co Pty. Ltd. v. McDonald (1963) 63 SR(NSW) 423; Spark v. Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; Allen v. Roughley; Wheeler v. Baldwin (1934) 52 CLR, at pp 624, 632633; Pollock and Maitland, p 46. Possession is protected against subsequent possession by a prima facie right of entry.

107. The proposition that possession of itself gives rise to a right in the plaintiff to recover possession, if lost, is supported by principle. In losing possession, a plaintiff has lost the rights associated with possession, including the right to defend possession as well as an estate in the land. But nothing has upset the presumption that the plaintiff's possession, and therefore his or her fee simple, was lawfully acquired and hence good against all the world. "Possession is prima facie evidence of seisin in fee simple"(647) Peaceable d. Uncle v. Watson (1811) 4 Taunt 16, at p 17 (128 ER 232, at p 232); Wheeler v. Baldwin (1934) 52 CLR, at p 632; see also Doe d. Stansbury v. Arkwright (1833) 5 Car. and P 575 (172 ER 1105); Denn d. Tarzwell v. Barnard (1777) 2 Cowp 595 (98 ER 1259); Asher v. Whitlock (1865) 1 QB, at p 6; Allen v. Roughley (1955) 94 CLR, at p 108. Without evidence to the contrary, nothing has displaced the presumption arising from proof of the plaintiff's possession that he or she had lawful title amounting to a fee simple. Thus, although a dispossessed plaintiff in ejectment must prove the strength of his or her own title and cannot rely on the weakness of the defendant's title, the presumption of lawfulness arising from prior possession is positive evidence in that regard(648) cf. note (a) in Allen v. Rivington (1670) 2 Wms Saund, at p 111 (85 ER, at p 813).

108. It follows from this, however, that a person's title arising from prior possession can be defeated either by a defendant showing that he or she (or another person, in so far as it undermines the plaintiff's claim) has a better, because older, claim to possession or by a defendant showing adverse possession against the person for the duration of a limitation period.

109. In sum, English land law, in 1879 and now, conferred an estate in fee simple on a person in possession of land enforceable against all the world except a person with a better claim. Therefore, since the Meriam people became British subjects immediately on annexation, they would seem to have then acquired an estate in fee simple. This is subject to the question whether the Meriam people could be said to be in possession. The question then arises does the Crown have a better title? Put another way, did the defendant have a better claim to possession when it acquired sovereignty in 1879 or 1895?

(iv) Did the Crown have a better claim to possession?

110. The defendant argued that upon annexation the Crown became the absolute owner of and was, in law, in possession of the Islands and that this precludes any possessory title in the plaintiffs. Furthermore, it says, since 1882 the possession of the plaintiffs and their predecessors in title (if any) has, in law, been attributable to the fact that the Crown has permitted them to occupy a reserve created for the benefit of Aboriginals and of Islanders of the State. It follows, so the argument runs, that the plaintiffs' possession now cannot constitute good title against the State of Queensland.

111. The position of the Crown resulting from annexation was discussed earlier in this judgment. There is no foundation for the conclusion that by annexation the Crown acquired a proprietary title or freehold possession of occupied land. It acquired a radical title only. This may dispose of the defendant's answer. However, it should be considered further in the context of English land law and the doctrine of tenures.

112. As McNeil observes(649) McNeil, p 85: "The Crown must prove its present title just like anyone else." The Crown could not have acquired original title by occupancy as a matter of fact because it had no presence in the colony before settlement and occupation of land by indigenous inhabitants would have excluded occupancy by the Crown after annexation, except in land truly vacant(650) See "Annexation its consequences" above; McNeil, pp 216217. However, underlying the doctrine of tenures is the proposition that landholders hold their land either mediately or immediately of the Crown(651) See Blackstone, Commentaries, 17th ed. (1830), vol.II, pp 5051. And a legal fiction justifies this feudal theory: that all land was, at one time, in the possession of the King who had granted some of it to subjects in return for services. Therefore, it is said in answer to the claim for a possessory title, at the commencement of the realm on annexation possession to all land was vested in the Crown.

113. However, the effect of the fiction of past possession by the Crown is to secure the paramount lordship or radical title of the Crown which is necessary for the operation of feudal land law. And since fictions in law are only acknowledged "for some special purpose"(652) Needler v. Bishop of Winchester (1614) Hob 220, at p 222 (80 ER 367, at p 369); Mostyn v. Fabrigas (1774) 1 Cowp 161, at p 177 (98 ER 1021, at p 1030); Anon., Considerations on the Law of Forfeitures, for High Treason, 4th ed. (1775), pp 6465, cited in McNeil, p 84, that should be taken to be the extent of the fiction. So far as the system of tenures is concerned, on which English land law is based, no more is required.

114.Furthermore, the fiction of a lost Crown grant(653) The idea of a presumption of a Crown grant to make good a title where possession is proved is referred to in Doe d. Devine v. Wilson in the Privy Council on appeal from New South Wales: (1855) 10 Moo 502, at pp 523528 (14 ER 581, at pp 589591) answers the fiction of original Crown ownership and in so doing protects titleholders. As McNeil points out (654) McNeil, p 84:

115. "The Crown cannot, on the strength of its fictitious original title, require a person who is in possession of land to prove his right by producing a royal grant, for in most cases no grant exists. The grant is deemed in law to have been made, if not to a predecessor of the present possessor, then to someone else."

116. Therefore, if the fiction that all land was originally owned by the Crown is to be applied, it may well be that it cannot operate without also according fictitious grants to the indigenous occupiers.

(v) Possession

117. Possession is a conclusion of English law, a law alien to indigenous inhabitants before annexation. Therefore, before annexation the Meriam people would not have been in possession. Occupation on the other hand is a question of fact. In some cases the person in occupation is not the possessor of land, for example, where he or she is an agent of the possessor. But it may be presumed, in the absence of circumstances which show possession is in another, that the occupier of land is also in possession(655) Pollock and Wright, p 20; Doe d. Stansbury v. Arkwright. As we have seen, the Crown could not show it had possession of occupied land after annexation.

118. At common law conduct required to prove occupation or possession will vary according to the circumstances including, for example, whether the claimant enters as a trespasser or as of right(656) Stanford v. Hurlstone (1873) LR 9 Ch App 116. And the nature of the land will to a large extent dictate the use that might be made of it. For example, conduct amounting to possession will be different in relation to a dwelling and to uncultivated land(657) Lord Advocate v. Lord Lovat (1880) 5 App Cas 273, at p 288; Johnston v. O'Neill (1911) AC 552, at p 583; Kirby v. Cowderoy (1912) AC 599, at pp 602603. Some land is barren and unproductive so that it cannot sustain people all the year round. It may be necessary for occupiers to seek water and sustenance elsewhere for part of the year, returning to "their" land as soon as it is possible.

119. These are matters which are discussed at some length by McNeil(658) McNeil, pp 196204. It is unnecessary to pursue evidentiary matters in the present case because the nature of the occupation of the Islands by the Meriam people, already discussed in relation to traditional title, points clearly enough to possession according to English law.

120. The defendant argued that the occupation enjoyed by the Meriam people today is by permission from the Crown, due to the creation of a reserve in 1882, and therefore cannot amount to possession in the relevant sense. In answer to this, first, since occupation by the Meriam people is, and was, apparent, the onus lies on the defendant to show possession is not in the occupiers. Secondly, there is no documentary evidence to prove the 1882 reserve. Assuming for the defendant that it was created, if annexation occurred in 1879 the reserve would amount to dispossession, unless the defendant can show that it and not the Meriam people acquired the right to possession on annexation. Subject to the limitation of actions and the question whether possession by the Crown was adverse, the Meriam people may well be entitled to recover possession according to the principles discussed above. If annexation occurred in 1895, the Crown in right of Queensland may have prevented the Meriam people acquiring possession on annexation. But it is unlikely that the creation of the reserve in 1882, or subsequently in 1912, affected the Meriam people's common law possession since that did not diminish enjoyment but ensured it remained with the people.

(vi) Possessory title conclusions

121. It follows from this analysis that the Meriam people may have acquired a possessory title on annexation. However, as I have said, the consequences here are no more beneficial for the plaintiffs and, the argument having been put as an alternative, it is unnecessary to reach a firm conclusion. In any event, it is unlikely that a firm conclusion could be reached since some matters, the creation of the reserve for example, were not fully explored.

Racial Discrimination Act

122. The effect of this judgment is that the traditional title of the Meriam people survived annexation. Anything done by the defendant constituting interference with that title would, on the view I have taken, be a breach of a fiduciary obligation owed by the defendant to the Meriam people. Earlier in this judgment I have referred to possible implications of the Racial Discrimination Act; I should now explain what I mean.

123. Ordinarily, land is only acquired for a public purpose on payment of just terms, whatever may be the precise statutory language employed(659) See for instance Lands Acquisition Act 1989 (Cth), Pt VII; Land Acquisition (Just Terms Compensation) Act 1991 (N.S.W.), Pt 3; Land Acquisition and Compensation Act 1986 (Vict), Pt 3; Acquisition of Land Act 1967 (Q.), Pt IV; Land Acquisition Act 1969 (S.A.), Pt IV; Public Works Act 1902 (W.A.), Pt III; Lands Resumption Act 1957 (Tas.), Pt IV; Lands Acquisition Act 1978 (N.T.), Pt VII. If the defendant sought to interfere with the Meriam people's enjoyment of the Islands which their traditional title gives them and failed to do so on just terms, a question arises whether that action would be in contravention of ss.9 or 10 of the Racial Discrimination Act.

124. Section 9 relevantly provides:

" (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. ...

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention."

125. Section 10 reads:

" (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the firstmentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

Where a law contains a provision that:

(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person."

126. In Mabo v. Queensland Brennan, Toohey and Gaudron JJ. said of s.9(660) (1988) 166 CLR, at p 216: "Section 9 proscribes the doing of an act of the character therein mentioned. It does not prohibit the enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land: Gerhardy v. Brown(661) (1985) 159 CLR 70, at pp 81, 120121. It is arguable that the operation of a law which brings into existence or extinguishes rights in or over land is not affected by s.9 merely because a consequence of the change in rights is that one person is free to do an act which would otherwise be unlawful or another person is no longer able to resist an act being done."

127. But, as the judgment continued, s.10 relates to the enjoyment of a right, not to the doing of an act and the right referred to in s.10(1) need not be a legal right. Rights referred to in Art.5 of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention referred to in s.10(2), include:

"(d)(v) The right to own property alone as well as in association with others;

(vi) The right to inherit."

The right to be immune from arbitrary deprivation of property is a human right, if not necessarily a legal right, and falls within s.10(1) of the Act, even if it is not encompassed within the right to own and inherit property to which Art.5 refers.

128. The question here is whether extinguishment of the traditional title of the Meriam people without the compensation provided for in the Acquisition of Land Act 1967 (Q.) means that, by reason of a law of Queensland, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin or enjoy a right to a more limited extent than those persons. If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other titleholders in Queensland or, at the least, they enjoy a right to a more limited extent. A law which purported to achieve such a result would offend s.10(1) of the Racial Discrimination Act and in turn be inconsistent with the Act within the meaning of s.109 of the Constitution. The Racial Discrimination Act would therefore prevail and the proposed law would be invalid to the extent of the inconsistency.

Conclusion

129. While this action raises questions of great importance, the answers which it is possible to give to those questions necessarily speak in general terms rather than deal with particular aspects of the traditional title of the Meriam people. This is not a criticism of the way in which the plaintiffs' claim was formulated; it is simply a recognition that the claim for declaratory relief does speak in general terms. Consistent with the general nature of the claim made and the reasons underlying this judgment, I would make a declaration in the following terms:

1. Upon the annexation of the Murray Islands to Queensland, the radical title to all the land in those islands vested in the Crown in right of Queensland.

2. The traditional title of the Meriam people to the Murray Islands, being their rights to possession, occupation, use and enjoyment of the Islands, survived annexation of the Islands to Queensland and is preserved under the law of Queensland.

3. The traditional title of the Meriam people to the land in the Islands has not been extinguished by subsequent legislation or executive act and may not be extinguished without the payment of compensation or damages to the traditional titleholders of the Islands.

4. The land in the Murray Islands is not Crown land within the meaning of that term in s.5 of the Land Act 1962 (Q.)

130. For the reasons that appear in this judgment, I would not make any declaration as to the consequences of the lease to the London Missionary Society in 1882 and the consequences of the lease granted over Dauer and Waier in 1931. It may be appropriate to grant liberty to apply in respect of each of those matters if any of the parties seeks an order to this effect.

ORDER

In lieu of answering the questions reserved for the consideration of the Full Court,

(1) declare that the land in the Murray Islands is not Crown land within the meaning of that term in s. 5 of the Land Act 1962 (Q.);

(2) putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, declare that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands;

(3) declare that the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.

Appendix Two

Extracts from Wik v Queensland

1 Brennan CJ on the relation between radical title and reversionary interests

In Mabo [No 2] I expressed the view:

"If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium."

If this be the correct view, there is no occasion for the revival of native title. The Crown's title to the land on reversion would be inconsistent with a continued right to enjoy native title. The Wik and Thayorre submissions together raise two grounds of challenge to the view I expressed in Mabo [No 2]: first, that a pastoral lease is issued in exercise of a statutory power, not in exercise of the Crown's proprietary rights in the land and that the interest of the Crown on reversion is no more than the radical title or, alternatively, no more than the minimum proprietary interest required to support the leasehold interest possessed by the lessee; and second, the rights and interest of the native title holders are suspended only to the extent necessary to admit the interest of the pastoral lessee and, on expiry of the term or earlier determination of the lease, revive.

The Wik and Thayorre submissions treat the grant of a pastoral lease as no more than an exercise of a statutory power conferring statutory rights, having no significance for the Crown's beneficial interest in the land demised. So viewed, the way is open to contend that native title is merely suspended during the currency of a lease and, when the lease is determined, the Crown has no reversionary interest but only its original radical title burdened by the native title. It is submitted that, although s 135 of the 1910 Act provided that on forfeiture or other determination of a lease prior to expiry of the term "the land shall revert to His Majesty and become Crown land, and may be dealt with under this Act accordingly", that section said nothing as to the Crown's legal and beneficial interest in the land but merely ensured that the Crown dealt with the land after it reverted to His Majesty in accordance with the Act. This argument accounts for the application of s 135 to the expiry of licences as well as to the determination of leases.

If it were right to regard Crown leaseholds not as estates held of the Crown but merely as a bundle of statutory rights conferred on the lessee, it would be equally correct to treat a "grant in fee simple" not as the grant of a freehold estate held of the Crown but merely as a larger bundle of statutory rights. If the grant of a pastoral lease conferred merely a bundle of statutory rights exercisable by the lessee over land subject to native title in which the Crown (on the hypothesis advanced) had only the radical title, the rights of the lessee would be jura in re aliena: rights in another's property. And, if leases were of that character, an estate in fee simple would be no different. Then in whom would the underlying or residual common law title subsist? Presumably, in the holders of native title. But such a theory is inconsistent with the fundamental doctrines of the common law. And it would equate native title with an estate in fee simple which, ex hypothesi, it is not. To regard interests derived from the Crown as a mere bundle of statutory rights would be to abandon the whole foundation of land law applicable to Crown grants. In Mabo [No 2], Deane and Gaudron JJ declared that the general common law system of land law applied from the establishment of the first Australian colony. Their Honours said:

"It has ... long been accepted as incontrovertible that the provisions of the common law which became applicable upon the establishment by settlement of the Colony of New South Wales included that general system of land law. It follows that, upon the establishment of the Colony, the radical title to all land vested in the Crown. Subject to some minor and presently irrelevant matters, the practical effect of the vesting of radical title in the Crown was merely to enable the English system of private ownership of estates held of the Crown to be observed in the Colony. In particular, the mere fact that the radical title to all the lands of the Colony was vested in the British Crown did not preclude the preservation and protection, by the domestic law of the new Colony, of any traditional native interests in land which had existed under native law or custom at the time the Colony was established." (Emphasis added.)

The English system of private ownership of estates held of the Crown rests on "two fundamental doctrines in the law of real property", namely, the doctrine of tenure and the doctrine of estates.

By the interlocking doctrines of tenure and estates, the land law provides for the orderly enjoyment in succession of any parcel of land. The doctrine of tenure creates a single devolving chain of title and the doctrine of estates provides for the enjoyment of land during successive periods. The doctrines of tenure (with its incident of escheat) and estates ensure that no land in which the Crown has granted an interest is ever without a legal owner. The creation of a tenure, however limited the estate in the particular parcel of land may be, establishes exhaustively the entire proprietary legal interests which may be enjoyed in that parcel of land. If the interests alienated by the Crown do not exhaust those interests, the remaining proprietary interest is vested in the Crown. In In re Mercer and Moore, Jessel MR said:

"If a freehold estate comes to an end by death without an heir, or by attainder, it goes back to the Crown on the principle that all freehold estate originally came from the Crown, and that where there is no one entitled to the freehold estate by law it reverts to the Crown."

In this country, the Crown takes either by reversion on expiry of the interest granted or by escheat on failure of persons to take an interest granted. It is unnecessary for present purposes to distinguish between them.

By exercise of a statutory power to alienate an estate in land, the Crown creates, subject to statute, a tenure between the Crown and the alienee. It follows that, subject to statute - and all powers of alienation of interests in land in Australia are governed by statute - where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land and the lessee is in possession, a legal reversionary interest must be vested in the Crown. Such an interest is the necessary foundation for the existence of a right to forfeit for breach of condition.

An exercise of the statutory power of alienation of an estate in land brings the land within the regime governed by the doctrines of tenure and estates. Once land is brought within that regime, it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out from either an estate or the Crown's reversionary title. Native title is not a tenure; it is not an interest held of the Crown, mediately or immediately. It is derived solely from the traditional laws and customs of the indigenous peoples. Consistently with our constitutional history and our legal system, it is recognised as a common law interest in land provided it has not been extinguished by statute, by a valid Crown grant of an estate inconsistent with the continued right to enjoy native title or by the Crown's appropriation and use of land inconsistently with the continued enjoyment of native title. As the majority judgment in Western Australia v The Commonwealth. Native Title Act Case said:

"Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown." (Emphasis added.)

It was only in respect of unalienated and unappropriated land that native title was recognised as subsisting. Thus I noted in Mabo [No 2]:

" As the Governments of the Australian Colonies and, latterly, the Governments of the Commonwealth, States and Territories have alienated or appropriated to their own purposes most of the land in this country during the last two hundred years, the Australian Aboriginal peoples have been substantially dispossessed of their traditional lands. They were dispossessed by the Crown's exercise of its sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown's purposes."

Native title is not recognised in or over land which has by alienation become subject to inconsistent rights or which has by Crown use become unavailable for continued enjoyment of native title.

The provisions of the 1910 Act admit of no interest in land the subject of a pastoral lease being held by any person other than the Crown, the lessee and persons taking an interest under the lease. Historically, it is impossible to suppose that Parliament, in enacting the 1910 Act (or, for that matter, the 1962 Act) might have intended that any person other than the Crown should have any reversionary interest in land subject to a pastoral lease. In 1910 (as in 1962), no recognition was accorded by Australian courts to the existence of native title in or over land in Australia. On the contrary, the common understanding was that, from the beginning of colonial settlement, Crown grants were made out of the Crown's proprietary title to all land in the colony. The 1910 Act makes it clear that, on the issue of a pastoral lease, the reversion was held by the Crown. Rent was a debt "due to His Majesty", the Minister was the recipient of a notice of intention to surrender and forfeiture was enforced only if the Governor in Council so decided. On forfeiture, the land reverted to His Majesty; on forfeiture or surrender, improvements to the property were deemed to be vested in the Crown but were to be paid for by the "incoming lessee, selector, or purchaser"; and provision was made for dealing with land "pursuant to a certificate given under 'The Escheat (Procedure and Amendment) Act, 1891'". The last-mentioned Act provided a simplified procedure for ascertaining "the failure of the heirs or next-of-kin of an intestate, or the alienage of a grantee, or such other facts, as may be necessary to establish the title of Her Majesty in right of the Crown or otherwise". The procedure was prescribed in order to determine, inter alia, questions arising "as to the title of Her Majesty in right of the Crown to any land or interest in land in any case of escheat or alleged escheat". Thus, the 1910 Act treated the Crown as having not only the power to issue a lease and thus entitle the lessee to a leasehold estate but also as having the reversionary interest which, under the ordinary doctrines of the common law, a lessor had to possess in order to support and enforce the relationship of landlord and tenant. The 1910 Act also conferred certain statutory rights on pastoral lessees, the exercise of which would require the carving of further proprietary interests out of the reversion. The lessee of a pastoral lease whose term had expired had a priority right, if the land was then open to selection, to apply for a selection, some categories of which conferred a right to acquire the selection in fee simple and others a right to take it on perpetual lease. These interests were clearly intended to be carved out of the Crown's reversionary title, not out of the title of a third party.

The Wik submission then denies the Crown's title to the reversion on the ground that it is not assignable. That objection could as easily be raised to the proprietary interest of the Crown. But the Crown "assigns" a proprietary interest in its land by grant unless the Crown has acquired an interest that is assignable, for example, the interest of a sub-lessor.

It is only by treating the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary interest that the fundamental doctrines of tenure and estates can operate. On those doctrines the land law of this country is largely constructed. It is too late now to develop a new theory of land law that would throw the whole structure of land titles based on Crown grants into confusion. Moreover, a new theory which undermines those doctrines would be productive of uncertainty having regard to the nature of native title.

2 Toohey J on the nature of radical title and reversionary interests

Because of the course taken by the argument before the Court in the present appeals, it is necessary to say something about radical title, though this matter was considered by the Court in Mabo [No 2]. As is clear from the judgments in that case, a consequence of sovereignty is the attribution of radical title to the Crown. But radical title does not of itself carry beneficial ownership. Brennan J described it in these terms:

"The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty."

In Amodu Tijani v Secretary, Southern Nigeria the Privy Council, in a judgment delivered by Viscount Haldane, spoke of the title of the Sovereign as "a pure legal estate, to which beneficial rights may or may not be attached".

From the distinction thus made, it is apparent that the grant of an estate in land does not require the Crown to assume beneficial ownership of the land. Nor does the relevant legislation so dictate. As Brennan J observed in Mabo [No 2]:

"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."

Later his Honour said

That the radical title lies with the Crown immediately before the grant of a pastoral lease is clear. But how relevant is it to speak of the Crown acquiring the "reversion" in such a case and of the Crown's title becoming a plenum dominium? It has been said: "A reversion is the interest which remains in a grantor who creates out of his own estate a lesser estate" (emphasis added). In support of the foregoing statement, the author quotes from Blackstone:

"An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. ... For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him."

The doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the "title" of the Crown itself. The discussion of reversion in the standard texts invariably focuses on the holder of an estate in fee simple who grants some lesser estate, usually a life estate or lease. But that is not the case here. The matter was explained by Brennan J in Mabo [No 2] when he said:

"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)."

To speak, in relation to the Crown, of a reversion expectant on the expiry of the term of a lease as expanding the Crown's radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. To say this in no way detracts from the doctrine of sovereignty; the Crown may thereafter deal with the land as is authorised by statute, disposing of it in some way or appropriating it to its own use. Indeed it may deal with the land during the term to the extent that it is authorised by statute or by the terms of the grant to do so. In the present case, once a pastoral lease came to an end, the land answered the description of "Crown land" and might be dealt with accordingly. The invocation of reversion and plenum dominium, as those expressions are usually understood, does not lie easily with the position of the Crown under the relevant statutes.

The proposition that it is the radical title of the Crown with which we are concerned and that, on the expiration or other termination of a pastoral lease, it is still the radical title that must be considered in relation to native title rights, does not minimise the sovereignty of the Crown. Nor does it undermine the principle that native title rights depend on their recognition by the common law. That recognition carries with it the power to extinguish those rights. But it requires a very clear act to do so. To contend that there is a beneficial reversionary interest in the Crown which ensures that there is no room for the recognition of native title rights, is in my view, to read too much into the Crown's title. Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease? There is a curious paradox involved in the proposition.

While nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable starting point because it explores the relationship between the common law and the "law" which evidences native title rights. So far as the scope of Mabo [No 2] is concerned, it should be noted that in their joint judgment Mason CJ and McHugh J, with the authority of the other members of the Court constituting the majority, said:

"The formal order to be made by the Court ... 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 ... the formal order."

This simply reinforces the proposition that while the judgments in Mabo [No 2] are significant for an understanding of the issues in the present appeals, they do not determine their outcome.

Non-entry into possession

The lessees of the Mitchellton leases did not go into possession. Council for the Thayorre People relied upon this point of distinction with the Holroyd lease to argue that the Mitchellton leases vested in interest but never in possession.

The argument was in part that if the concept of feudal tenures applied to pastoral leases, the Crown did not acquire a reversion expectant necessary for the plenum dominium required to extinguish native title rights. The feudal principle was expressed in Coke on Littleton in the following manner:

"For before entry the lessee hath but interesse termini, an interest of a terme, and no possession, and therefore a release which enures by way of enlarging of an estate cannot worke without a possession, for before possession there is no reversion".

Although the rule has been abolished in all States of Australia, including Queensland, it occasionally rears its head. However the earlier existence of the rule does not advance the argument of the Thayorre People. Section 6(2) of the Land Act 1910, under which the Mitchellton leases were granted, declares the leases to be "valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated". It follows that execution of the leases in question was sufficient to vest in the lessees a grant in accordance with the statute.