Series Details

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Series ID429
Previous System LocationSRS429
TitleRecords of the Defence - Mabo and Ors v the State of Queensland and the Commonwealth of Australia (No. 2)
Parent Series
This series does not have a parent series.
Start Date 20/5/1982
End Date 3/6/1992
Date Statement The case ran from 1982 to 1992, however the papers also contain evidence and documentary sources etc. extending back to the late 17th century or earlier.
Date Notes N/A
Abstract

Evidence, papers, transcripts, submissions and statements re Mabo and Ors v State of Queensland and the Commonwealth of Australia, used and accumulated by the Department of Families, Youth and Community Care, for purposes relating to the Crown's Defence.

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Items Total Items: 39
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Departmental NumbersN/A
System of Arrangement By topic/document title. Many of these items are copies of original documents, used and annotated for research. Papers are not in chronological order.
How To Use Series Search item list by topic. Please note items with Extended Descriptions that contain more detailed information about the item.
 

Creating Agencies

Access and Restrictions

Access Category100 Years
Access ProcedurePermission to access restricted material by responsible agency
Agency Now Responsible
Agency ID: 11653
Department of Aboriginal and Torres Strait Islander Partnerships
Restriction DetailsDifferent Restricted Access Periods (RAPs) apply to some items in this series
Regulation Details
N/A
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Physical / Technical Use

Copies Elsewhere

Copyright Status

Copyright State of Queensland
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Remarks

Information Sources

Guide to the Papers of Edward Koiki Mabo in the National Library of Australia, National Library of Australia, Canberra, 1955
Mabo: A Judicial Revolution - The Aboriginal Land Rights Decision and Its Impact on Australian Law, edited by MA Stephenson and Suri Ratnapala (in particular, introduction and 'Some Problems of Proof: the Admissibility of Traditional Evidence' by BA Keon-Cohen), St Lucia, University of Queensland Press, 1993.
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Description

These papers document the native land title claim launched in 1982 in the High Court by Eddie Mabo, Celuia Mapo Salee, Sam Passi, David Passi, and James Rice (the Plaintiffs) against the State of Queensland and the Commonwealth of Australia (the Defendants).

The Claim: The plaintiffs claimed that they had lived in permanently settled communities on the islands and had maintained a valid and traditional connection with the land. Although they acknowledged that sovereignty was asserted by the British Crown upon annexation, they argued that their native rights to traditional lands had not been extinguished by the Crown's granting of land to others. On behalf of the Meriam people, through the Statement of Claim issued on 20 May 1982, the plaintiffs maintained that compensation was owed to them in relation to dealings with the claimed land.

In June 1985, the plaintiffs filed a demurrer contesting the validity of the Queensland Coast Islands Act 1985 which Queensland relied on as part of its defence. Consequently the proceedings of the Supreme Court were temporarily suspended and in December 1988, the High Court delivered its judgment regarding the demurrer proceedings, deciding in the plaintiffs' favour and declaring the Act contrary to the Federal Racial Discrimination Act 1975. In May 1989, the case was remitted by the High Court to the Supreme Court for resolution of all the issues of fact. Both sides presented comprehensive written submissions in August 1989. The plaintiffs abandoned certain claims (pertaining to the region near the Great Barrier Reef) during the case whereupon the Commonwealth ceased to be a defendant on 5 June 1989 by order of Judge Moynihan. In November 1990, Judge Moynihan delivered the Supreme Court's 'Determination of Facts' (in three volumes and annexures). Argument was heard before the High Court during May 1991 and on 3 June 1992 a legal and historical precedent was set when the High Court delivered its ruling in the plaintiffs' favour. The decision recognised that Aboriginal native title had existed prior to European settlement and consequently rejected the legal doctrine of terra nullius (a land 'practically unoccupied'; at the point of Britain's proclaimed sovereignty).

Statements of facts were lodged by the Murray Islanders to prove the 'existence and nature' of their traditions and customs on land dealings and to demonstrate the 'existence and nature' of traditional rights in certain identified areas claimed by the plaintiffs (Keon-Cohen 1993; 185-186). The issues of the case were 'defined by the pleadings', including the statement of claim (lodged in May 1982), numerous particulars and the defences of Queensland and the Commonwealth (Keon-Cohen 1993; 185). The Crown Solicitor presented an alternative Statement of Facts to those lodged by the plaintiffs. Queensland as the defendant, produced a wide array of case material i.e. historical, anthropological, administrative and departmental sources, which were incorporated into the pleadings. Evidence submitted by the Crown consisted of 'original evidence' (oral and documentary), 'opinion evidence' and 'admissibility of hearsay evidence'. Islander and non-Islander witnesses were called by both parties. Islanders gave oral evidence on behalf of the plaintiffs, although other witnesses such as the Anthropologist, Dr Jeremy Beckett also provided evidence. The Crown engaged, on behalf of the Defence, an historian, an anthropologist, a retired senior officer of a Queensland department and an ethnohistorian. Among those seconded by the Crown, Ruth Kerr and Patrick Killoran's papers became evidence/court exhibits which are included in this series.

Documentary evidence was submitted for the case in the form of exhibits and includes: Historical works re initial contact on the Islands and activities thereafter; Professor A.C. Haddon's anthropological expedition to Murray Island in the 1890s; various papers/official Government documents and annotated photocopied articles recording past dealings with land portions on the Islands (eg. order in councils, law reports, court cases, proclamations, correspondence, acts and regulations); analysis of Murray Island Court decisions); plaintiffs' documents, and annexures (genealogy tables, maps, drawings, diagrams, plans, photographs of the Murray Islands and the portions claimed).

The series contains: Personal statements; Statement of facts (plaintiffs' and defendant's, and the Crown's preferred Statement of Facts); Patrick J Killoran's papers; affidavits; examinations of exhibits and plaintiffs' statement of facts; reports; responses to the plaintiffs' statement of facts; court transcripts; submissions (also specific claims, tables, chains of title, and life/personal histories); plaintiffs' response to the defendant's submission; categories of evidence; court order; statement of claim; and the bylaws of Island Councils, etc. Some items include detailed extended descriptions.

Notes: There are duplicate or triplicate copies of some items within this series. Some papers are annotated (however the author of the annotations is mostly not stated). It is possible that some files contain sensitive material about adoptions.
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Preferred Citation

Queensland State Archives Series ID 429, Records of the Defence - Mabo and Ors v the State of Queensland and the Commonwealth of Australia (No. 2)
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Last updated 9 September 2016
Creative Commons Attribution 3.0 Australia (CC BY 3.0) ( http://creativecommons.org/licenses/by/3.0/au/ )
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