15 Oct 1992
Chairman
Working Party on the Mabo decision
Department of the Prime Minister
Parliament House
Canberra ACT 2600
Dear Sir,
Warumungu land claim title and Mabo.
Toohey, J at page 204 of the Mabo decision states:
...the fiduciary obligation of the Crown, rooted in the
extinguishability of traditional title, is in the nature
of the obligation of a constructive trustee....generally,
to the extent that a person is a fiduciary he or she must
act for the benefit of the beneficiaries...The obligation
of the Crown...is to ensure that traditional title is not
impaired or destroyed without the consent...of the
titleholders. If it did, it would be in breach of its
duty and liable therefor.
Without being a lawyer, it seems to me that the proposed
granting of title in the Warumungu land claim under the
Aboriginal Land Rights (NT) Act 1976, without ensuring the
protection of any existing Native title rights and without the
informed consent of the Native titleholders, constitutes a
clear breach of the duty of the Commonwealth of Australia in
respect to the Aboriginal people in the Commonwealth's
Northern Territory.
I have brought this matter to the attention of the Minister
for Aboriginal and Torres Strait Islander Affairs and the
Attorney-General. Copies of that correspondence are enclosed.
Yours truly,
Bruce Reyburn