NIC FAULKNER 2013

Terra Nullius, Aboriginal sovereignty and Mabo, an unresolved and compromised jurisprudence.

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Nicolas Faulkner

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Before attempting to address the issues raised by Mabo1 it is necessary to first understand the

historical context of Captain Arthur Phillips Admiralty Instructions and the ‘penal

colony/settlement’ at Sydney Cove in 1788. “You are to endeavour by every possible means to

open an intercourse with the natives, and to conciliate their affections.”2 This was no doubt in

response to both Lieutenant James Cook and Joseph Banks observation in their Journals of

‘natives’ and fires burning when they sailed up the East Coast of the continent in 1770. His

Instructions were also no doubt in reference to the accepted normative discourses by which

‘newly discovered’ territories could be taken possession of.3 Accordingly Chief Justice Brennan

in Mabo stated “international law recognized conquest, cession, and occupation of territory that

was terra nullius as three of the effective ways of acquiring sovereignty.”4 What is obvious from

Phillip’s Instructions is that the continent was understood by the British Crown to be inhabited

which under the ‘Law of Nations’ acknowledged the property rights and sovereignty of the

Indigenous inhabitants. In that regard Borch (2001) et al have raised questions as to “how and

when land inhabited by indigenous people came to be regarded and uninhabited or ownerless for

legal purposes.”5 This article will attempt to answer those questions in understanding the

doctrine of terra nullius, Aboriginal sovereignty and whether the Mabo judgment is an

unresolved and compromised jurisprudence.

The struggle for rights to land and justice by the original people of this continent has been

ongoing since the ‘first settlement’ with many recorded instances of Aboriginal resistance and

also massacres6 as the ‘rolling frontier’ moved outside of settlements and the law.

7 This rolling

frontier played a part in each newly formed colony from Van Diemen’s Land, Port Phillip,

Moreton Bay, Swan River and Adelaide over a 60 year period. In establishing these colonies, the

rights, interests and responsibilities in the land that the various Tribes had held for a time

immemorial (Dreamtime) was taken away with little regard for the welfare, customs, spirituality

or law of the land (Aboriginal sovereignty). During these times the status of Aboriginal people in

the colonies was debated within judicial circles as to whether or not British law applied to them.8

This met with directives from the Colonial Office that “all natives inhabiting the territories must

be considered subjects of the Queen… to which they derive the highest possible claim from the

sovereignty which has been assumed over the whole of their ancient possessions.”9 This led to

the enactments in each of the colonies of the Aboriginal Protection Acts and the establishment of

Reserves and missions, on which many tribes were placed contrary to their customary laws.

1 High Court of Australia Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June

1992) 2 Instruction to Captain Arthur Phillip, 23 April 1787, Historical Records of Australia, Vol 1 in Simpson, G (1993)

Mabo, International Law, Terra Nullius and the Stories of Settlement: An unresolved Jurisprudence. Melbourne

University Law Review, 195 1993-1994 pp 204 3 de Vattel, E (1758) The Law Of Nations Or Principles Of The Law Of Nature Applied To The Conduct And

Affairs Of Nations And Sovereigns 4 Majority Reasons (1992) Mabo para.33

5 Borch, M (2001) Rethinking the origins of terra nullius Australian Historical Studies Volume 32, Issue 117,

6 Georgatos, G The Killing Times April 20th, 2013The Stringer, Independent News

7 Flood, Josephine (2006) The Original Australians: story of the Aboriginal people pp103

8 Ward, D (2006): Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines

in the South Australian Supreme Court, c. 1840–60, The Journal of Imperial and Commonwealth History, 34:4, 483-

504 9 Lord Glenelg: British Parliamentary Papers 1837-40 in Hunter, I (2007): Natural Law, Historiography, and

Aboriginal Sovereignty Legal History Vol. 11 p. 26

However, despite this status as British subjects, with the establishment of the Commonwealth of

Australia in 1901, built on the ‘white Australia policy’ and that Aboriginal people were seen as a

‘dying race’10

they were not included in the new Constitution and left under the State laws and

‘protection’. Yet this struggle for justice in contemporary times was given new impetus with the

1967 Referendum to allow the Commonwealth to legislate on behalf of Aboriginal Australians

and for them to be counted in the Census. Then on the 26th

of January 1972 the Aboriginal Tent

Embassy was set up on the lawns outside Parliament House in Canberra partly in response to the

adverse decision handed down in Milirrpum v Nabalco (Gove Land Rights Case) in 1971. Their

demands were for land rights, self determination, sovereignty and other grievances occurring

from British colonization in 1788, right in the heart of the nation’s capital. From this to the Bi-

Centenary of the ‘first settlement’ in 1988 and Burnum Burnum’s arrival on the English coastline

at Dover and planting the Aboriginal flag in a symbolic act. His declaration “I, Burnum Burnum

of the Wurundjeri Tribe, do hereby take possession of England on behalf of the Aboriginal

Crown of Australia,”11

marked a new era of Aboriginal engagement, activism and resistance.

With much talk from Prime Minister Bob Hawke and the promise of a Treaty/Makarata(Yolηu

Matha) and reconciliation at the Barunga Festival a newer form of inter-cultural activism was set

to be shown on the international stage. Yothu Yindi (mother/child,) released their hit single

‘Treaty’ this followed on from the Yolηu Yirrkala Bark Petitions in 1963 and the Gove Land

Rights case 1971. Corn (2005) categorized their engagement with the Commonwealth and States

as “the Yolηu re‐invention of post‐Barunga intercultural discourses”12

with its haunting beat and

lyrics, the message was clear and set the tone for what was to follow. “This land was never given

up, this land was never bought and sold, the planting of the Union Jack never changed our law at

all.”13

This was of course in reference to the Yolηu not having contact with Europeans to any

great extent until 1885 “when pastoralist J.A Macartney set up the Florida station” and the

ensuing 50 year war.14

On June 3 1992 after almost 10 years of litigation between Eddie Mabo and others against the

State of Queensland the High Court of Australia handed down its decision in what is known as

Mabo. In what was lauded by many Australians, both black and white, to be a landmark decision

by the Full Bench, Eddie Mabo and his fellow Plaintiffs were acknowledged as having propriety

rights and interest in the islands of Mer (Murray Islands) in the Torres Strait. In its decision the

Court is said to have rejected the ‘doctrine of terra nullius’ which was purportedly used by the

Crown in 1788 in ‘asserting sovereignty’ over the whole eastern part of the continent. For many

Aboriginal people Mabo was seen as an acknowledgment of their prior and present ownership of

traditional lands, yet the complexity of the Dicta and Reasons of the Court left just as many

questions unanswered. As such many newspapers around Australia suggested that the decision

10

Reynolds, H (2001) An Indelible Stain? The question of genocide in Australia's history, Penguin Books Australia

Ltd, Melbourne, 11

Norst, M. J. (1999) Burnum Burnum – A Warrior for Peace Kangaroo Press: 1999 ISBN-13: 9780864179784 12

Corn, A (2005) When the waters will be one: Hereditary performance traditions and the Yolηu re‐invention of

post‐Barunga intercultural discourses Journal of Australian Studies

Vol. 28, Iss.84, 2005 13

Yothu Yindi (1990) Treaty Mushroom Records 14

Trudgen, R (2000) Why Warriors lay down and die p.18

would lead to claims by Aboriginal people to land all over Australia, even including land held

under freehold title.

The Courts decision was to lead to the enactment of the Native Title Act (Cwlth) 199315

which

quantified and qualified the common law however this was just the beginning of a new struggle

for Aboriginal people to try to prove their connection to ‘Country’. To put Mabo into perspective

it must be understood that when Queensland annexed the Murray Islands in 1879 the Meriam

people were already recognized as having land ownership and tenure. This was evidenced by the

London Missionary Society having leased land from the people to establish the Mission on the

islands prior to annexation. It is also evidenced by the enactment of the Pacific Islander

Protection Acts (IMP) 1872-75 and section 7 of the Act which purported to protect the

‘sovereignty and dominion of the islands and places, not within Her Majesty’s Dominions or

under foreign jurisdiction.’16

As such it would seem that ‘terra nullius’ had nothing to do with

Annexation and as Ritter (1996) noted, “the term terra nullius was not the subject of any

submissions by counsel, and was not mentioned by name even a single time.”17

Yet if you were to ask the Australian people what the Mabo case achieved most would say that

the Court overturned terra nullius and reconciled land rights for First Nations people.

Furthermore, as Bartlett (1993) has stated “terra nullius is not a concept of the common law, and

it has never been referred to in any case prior to Mabo as justifying a denial of native title.”18

He

further added, “The Mabo decision has been hailed as the rejection of the concept of "terra

nullius", and certainly Brennan at 41, Deane and Gaudron at 82-83 and Toohey at 142 suggest

such a conclusion. But the concept is essentially irrelevant to native title at common law. And

certainly the concept is not rejected in any sense of denying Australian sovereignty. The real

question before the court, and the question the court decided, was whether or not native title was

part of the common law of a settled territory such as Australia”19

It is therefore necessary to

look back at how, where and why the doctrine of terra nullius was applied and then rejected as to

the ‘acquisition of sovereignty’ by the Crown over lands that were previously occupied.

As Bartlett (1993) stated terra nullius “has never been referred to in any case prior to Mabo as

justifying a denial of native title”20

which is not surprising as it is a term in International

jurisprudence. This was particularly evident in Coe v the Commonwealth21

where Aboriginal

lawyer Paul Coe initiated a case in response to the Opinion of the International Court of Justice

in the Western Sahara case.22

The questions before the High Court in Coe were in regard to

“International Law - Acquisition of sovereignty over territory by the method of

occupation - Requirement of a valid occupation that the territory concerned be terra

15

Australian Legal Information Institute (AUSTLII) Commonwealth and State Consolidated Acts….. 16

Pacific Islander Protection Act (IMP) 1872-75 17

Ritter (1996) The "Rejection of Terra Nullius" in Mabo: A Critical Analysis Sydney Law Review [Vol.18:5 p.20 18

Bartlett, R (1993) The Mabo Decision, Butterworths, Sydney 1993, pp. 6. 19

Ibid. pp. 6 20

Ibid. pp. 6 21

Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; (1979) 24 ALR 118 (5 April 1979) 22

International Court of Justice Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975,

nullius - Whether Australia was terra nullius at date of foundation of British colonies in

Australian territory.”

In dismissing Coe’s legal argument as vexatious and an abuse of the process, the Court declared

that “the annexation of the east coast of Australia by Captain Cook in 1770, and the subsequent

acts by which the whole of the Australian continent became part of the dominions of the Crown,

were acts of state whose validity cannot be challenged.”23

However in his dissenting opinion,

Murphy, J gives a detailed historical background and an account of the common law as held by

the Courts prior to and leading up to the Coe matter which are relevant to the later the Mabo

judgment. It must also be noted that Coe’s case was in regard to mainland Aboriginal people as

opposed to the Meriam people (Mabo) who are of Melanesian decent. Murphy stated

“The wide language used in parts of the statement embraces claims which, if separated

out and stated clearly, could be heard and determined. The claim to rights over land or

compensation for loss of such rights is capable of being formulated and presented in an

intelligible way.

Several obstacles to success were mentioned during argument: one was Blackburn J's

judgment in Milirrpum v. Nabalco Pty Ltd (1971), 17 FLR 141 which is not binding on

this Court. It has been subjected to reasoned criticism (see John Hookey, "The Gove

Land Rights Case: A Judicial Dispensation for the taking of Aboriginal Lands in

Australia?" (1972), 5 Fed L Rev 85). Another was Cooper v. Stuart (1883), 14 AC 286.

In that case, the Privy Council stated that the colony of New South Wales was not

acquired by conquest, but was "practically unoccupied, without settled inhabitants or

settled law at the time it was peacefully annexed to the British dominions" (at p. 291).

That view is not binding on us (see Viro v. The Queen [1978] HCA 9; (1978), 52 ALJR.

418). "Occupation" was originally a legal means of peaceably acquiring sovereignty over

territory otherwise than by secession or conquest. It was a cardinal condition of a valid

"occupation" that the territory should be terra nullius - a territory belonging to no-one - at

the time of the act alleged to constitute the occupation. "Territory inhabited by tribes or

peoples having a social and political organisation cannot be of the nature terra nullius"

(see Prof. J. G. Starke, International Law (8th ed. 1977), at p. 185, and generally). The

extent to which the international law of occupation is incorporated in Australian

municipal law is a question which would arise for determination in the proceedings.

The plaintiff claims that the fact is that Australia was at (or during) the time of its

acquisition inhabited by the aboriginal people who had a complex social, religious,

cultural and legal system and that their lands were acquired by the British Crown by

conquest. There is a wealth of historical material to support the claim that the aboriginal

people had occupied Australia for many thousands of years; that although they were

nomadic, the various tribal groups were attached to defined areas of land over which they

passed and stayed from time to time in an established pattern; that they had a complex

social and political organisation; that their laws were settled and of great antiquity (for

23

Gibbs, CJ. (1979) Coe v Commonwealth H.C.A. para.12

example, see D.C. Biernoff, Land and law in Eastern Arnhem Land: Traditional Models

for Social and Political Organisation (1975).

Independent tribes, travelling over a territory or stopping in certain places, may exercise a

de facto authority which prevents the territory being "terra nullius" (see Advisory

Opinion on Western Sahara, ICJ Reports 1975, 12, in particular the declaration of Judge

Gros at p. 75).

Although the Privy Council referred in Cooper v. Stuart to peaceful annexation, the

aborigines did not give up their lands peacefully; they were killed or removed forcibly

from the lands by United Kingdom forces or the European colonists in what amounted to

attempted (and in Tasmania almost complete) genocide. The statement by the Privy

Council may be regarded either as having been made in ignorance or as a convenient

falsehood to justify the taking of aborigines' land.”24

Murphy added weight to and clarified the possibility of further matters being brought before the

Court when he stated

The plaintiff is entitled to endeavour to prove that the concept of terra nullius had no

application to Australia, that the lands were acquired by conquest, and to rely upon the

legal consequences which follow. He may rely, in the alternative, on common law rights

which would arise if there were peaceful settlement. Whether the territory is treated as

having been acquired by conquest or peaceful settlement, the plaintiff is entitled to argue

that the sovereignty acquired by the British Crown did not extinguish "ownership rights"

in the aborigines and that they have certain proprietary rights (at least in some lands) and

are entitled to declaration and enjoyment of their rights or compensation.25

Despite Coe’s Appeal being struck out what became obvious from the Dicta was that the Court

found itself in a position of having to reconcile international law surrounding the acquisition of

territories whether peacefully settled or as Murphy pointed out by conquest. As he noted, this is

evidenced by the almost complete genocide of the original inhabitants of the Colonies and

particularly of Tasmania, which as Bonwick (1870) sadly reflected was the reality of the

historical events.26

The other interesting aspect when comparing Gibbs assertions that matters of

the Crown’s acquisition of sovereignty were not judicable and that of Murphy who pointed out

that the common law as determined in Cooper v Stuart (1883) and Milirppum v Nabalco (1971)

was not binding was that a schism was emerging in the common law. Further, that regardless of

whether this continent was peacefully settled as the common law held to this point of time or

whether the Crown’s acquisition of sovereignty and territory was by conquest, Aboriginal people

had claims under international law that remained ‘un-resolved.’

Perhaps this schism was also partly due to comments made by Blackburn, J in Milirrpum v

Nabalco (1971) when he stated

24

Murphy, J (1979) Coe v Commonwealth H.C.A. para.5,6,7,8, 25

Murphy, J (1979) para.9 26

Bonwick, J (1870) The last of the Tasmanians: or, The black war of Van Diemen's Land ... James Bonwick.

Acton, London, October 13, 1869.

I am very clearly of the opinion, upon the evidence, that the 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 provided a stable order of society and 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.27

However despite Blackburn’s assessment, he believed he was bound by previous common law

decisions such as Cooper v Stuart (1883) where any form of native title was said to have been

extinguished on the Crowns assertion of sovereignty. In this case the Privy Council also held that

the colony of New South Wales had been peacefully settled, no doubt these assertions were now

right for challenge. It must also be remembered that in Milirrpum the doctrine of terra nullius

was not raised, as it had not entered the international stage for determination until the Western

Sahara Opinion of the International Court of Justice some 4 years later.

From Milirrpum (1971) and Coe (1979) along with civil protests by Aboriginal activist at the

Commonwealth Games in Brisbane in 1986 and the Bi-Centennial in 1988 new demands for

justice, sovereignty, Treaty and land rights were growing. During the 80’s further legal challenge

was being mounted which led in 1992 to Mabo. Like most Australians when we heard about the

decision we were caught up in the moment and the rhetoric with little deeper understanding of

the full implications and the outcomes of the case and just what they meant for the future. When

Chief Justice Brennan stated “the Meriam people are entitled as against the whole world to

possession, occupation, use and enjoyment of the lands of the Murray Islands”28

it seemed that

justice had been achieved. What had become obvious from Chief Justice Brennan’s following

statement in Mabo, and the Opinion handed down in the Western Sahara case was that Australia

could no longer stand outside of international law in regard to its First Nations people. Brennan

stated

Whatever the justification advanced in earlier days for refusing to recognise the rights

and interests in land of the indigenous inhabitants of settled colonies, an unjust and

discriminatory doctrine of that kind can no longer be accepted. The expectations of the

international community accord in this respect with the contemporary values of the

Australian people29

However Brennan’s statement is indicative of a somewhat unusual aspect of law where the Court

has taken on what Van Krieken refers to as ‘moral entrepreneurship.’30

It is perhaps worth

analyzing some of the terms used so that the deeper meaning of the statement becomes clear. The

discriminatory ‘doctrine’ referred to is terra nullius, which the Court is said to have rejected, yet

27

Van Krieken, R (2000): 'From Milirrpum to Mabo: the High Court, terra nullius and moral entrepreneurship' 23

NSW Law Journal pp.67 28

Mabo (1992) Reasons for Judgment p.122(2) 29

Mabo and Others v Queensland[1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) para.42 30

Van Krieken, R (2000): 'From Milirrpum to Mabo: the High Court, terra nullius and moral entrepreneurship' 23

NSW Law Journal 63-77.

despite this the Court still refers to Australia as ‘peacefully settled’ colonies. Secondly for the

Court to have consideration for the ‘expectations of the international community’ and

‘contemporary values of the Australian people’ would appear as Van Krieken has noted as acting

as a moral arbiter, as opposed to its Chapter III functions ‘under the Constitution’ to make good

law. In fact on deeper reading of the judgment and academic papers since 1992 it has become

apparent that there are many aspects of the case that are not supported by historical events and

realities, nor reconcile with international law. This has become particularly evident in 2013 in

that Australia is still the only common law country to not have entered into a Treaty with the

original inhabitants.

Brennan noted that ‘the theory of terra nullius has been critically examined in recent times by

the International Court of Justice in its Advisory Opinion on Western Sahara (62) (1975) ICJR,

at p 39. There the majority judgment read:

"'Occupation' being legally an original means of peaceably acquiring sovereignty over

territory otherwise than by cession or succession, it was a cardinal condition of a valid

'occupation' that the territory should be terra nullius - a territory belonging to no-one - at

the time of the act alleged to constitute the 'occupation' (cf. Legal Status of Eastern

Greenland, P.C.I.J., Series A/B, No.53, pp 44 f. and 63 f.). 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 no-one in the sense that it was then open to acquisition through the

legal process of 'occupation'. 80. Whatever differences of opinion there may have been

among jurists, the State practice of the relevant period indicates that territories inhabited

by tribes or peoples having a social and political organization were not regarded as terra

nullius. It shows that in the case of such territories the acquisition of sovereignty was not

generally considered as effected unilaterally through 'occupation' of terra nullius by

original title but through agreements concluded with local rulers.

As previously mentioned the Court placed quite some effort in addressing terra nullius despite

neither Mabo nor his Counsel making submissions regarding terra nullius and Queensland’s

annexation of Mer. Nor did the Murrays islands situation in 1879 have anything to do with the

original settlements law and colonial policy in the late 1700’s or early 1800’s. Yet despite a

major shift in this area of common law the Court still held that the Crown’s sovereignty

remained immutable and not challengeable in a domestic Court.

Although much weight has been placed on the Court’s overturning of terra nullius as the mode

by which the Crown asserted sovereignty a number of commentators have questioned just what

beast the Court is said to have sleighed. As Fitzmaurice has noted regarding the “genealogy of

the term terra nullius, which remains elusive even as it is now clear that the term is absent from

the eighteenth and early nineteenth century historical record”31

it seems that some of the Dicta

just doesn’t add up with the historical records. Further Borch (2001) “questions the accepted

view of how and when land inhabited by indigenous peoples came to be regarded as uninhabited

or ownerless for legal purposes.” She further suggests that “until the nineteenth century the

predominant view was that such land was acquired through conquest or cession. This early legal

31

Fitzmaurice, A (2007) The Genealogy of Terra Nullius Australian Historical Studies, 129, 2007 pp1-15

interpretation was supported by government policy which recognized indigenous title to land.”32

This recognition of indigenous title to land is evident in the North Americas and also through the

Treaty of Waitangi 1840. In Australia the South Australian Letters Patent 183633

establishing the

colony also acknowledge a proprietary interest of the indigenous people by the Crown ‘in

constructing British authority in Australasia’.34

In ‘rethinking the origins of terra nullius’ Borch (2001) asserts “there was no legal doctrine

maintaining that inhabited land could be regarded as ownerless, nor was this the basis of official

policy, in the eighteenth century or before.”35

Her citations of Privy Council decisions, jurists

such as de Vittoria, Locke, Blackstone, Vattel, Wolff and others counter the way the Majority in

Mabo interpreted the ‘discourse’ as opposed to ‘doctrine’ of terra nullius.36

“In fact on closer

inspection it is difficult to see that any of the frequently quoted international jurists provided

augmentation for seeing indigenous land as terra nullius either during the eighteenth century or

before.”37

She takes it even one step further by stating “Thus it will be seen that neither law nor

policy in eighteenth-century Britain nor even international law at the time supported the

proposition that inhabited land could be dealt with as if it was uninhabited or terra nullius.

Throughout the century, acquisition of inhabited lands continued to be regarded as falling within

the category of conquest and cession.”38

Borch seems to go even further towards a solution when

she suggest that “a better understanding of the legal history of acquisition leads to a questioning

of the very foundation of the nation, a problem that can only be addressed by a mobilization of

the political will to negotiate.”39

There can be little doubt that this is in reference to the need for a

Treaty to resolve what Ritter (1996) saw as a ‘crisis in the legitimacy of the law and the nation’

that Mabo did not resolve and as Simpson (1993) noted as an ‘interpretative crisis’ under

international law.

To shed more light on Simpson’s assessment of an interpretative crisis, Hunter (2007) notes that

the Court’s reliance on the “intellectual importance in seventeenth and eighteenth century

Europe, the law of nature or nations was not really a unified academic discipline and was

certainly not a law. Rather it formed a matrix for an array of disciplines- politics, theology,

‘positive’ law (Roman, civil and public), and moral philosophies of various kinds- inside which

an array of normative concepts (obligations, right, law, sovereignty, state, nation, ruler, citizen)

were ceaselessly formulated and reformulated.”40

Hunter further shows that this discourse on the

law of nature/nations was formulated by opposing schools of thought. As such the Court’s

interpretation and use of precedence in Australia has produced “historically and logically

incoherent judgments that conflict with international law.”41

This has occurred because the Court

32

Borch, M (2001) p.222 33

National Archives of Australia (2013) Founding Documents 34

Ward, D (2006): Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines

in the South Australian Supreme Court, c. 1840–60, The Journal of Imperial and Commonwealth History, 34:4,

483-504 35

Borch, M (2001) p.224 36

Ritter, D (1996) p.12 37

Borch, M (2001) p.232 38

Ibid (2001) p.238 39

Borch (2001) p.239 40

Hunter, I (2007): Natural Law, Historiography, and Aboriginal Sovereignty Legal History Vol 11 p.13 41

Simpson (1993) p.195

while rejecting the doctrine of terra nullius still maintained that Australia was ‘peacefully

settled’ as opposed to ceded or conquered contrary to its own reasoning in rejecting terra nullius.

Simpson (1993) observed, “in Mabo the Court, having found that Australia was not terra nullius,

baulked at considering these two alternatives (ceded or conquest, my emphasis) and instead

invented a completely new category of acquisition- i.e. the occupation of already occupied

territory (or occupation of land that is not terra nullius) The semantic impossibility of such a

finding is matched by its apparent lack of authoritative support in international law.”42

More

specifically he noted that both Blackburn, J in Milirrpum and the Majority in Mabo used the

same authorities, yet “came to the opposite conclusion.”43

In so doing Mabo “is a judgment that

shows the manipulation of the common law and the disregarding of two hundred years of

precedent on terra nullius and resulting in a theory that lacks foundation in international law.”44

As Ritter (1996) has also noted the doctrine of terra nullius is not a concept of the common law,

but a concept developed by the discourses of international law by the European colonizing

nations from the 17th

century onwards. The concept itself is what Robert A. Williams (1993)

defines as ‘discourses of power’ based on the notion that “the West’s religion, civilization and

knowledge are superior to the religion, civilization and knowledge of non-Western peoples.”45

Perhaps Simpson’s articulation of the relevant common law decisions and international law puts

Mabo into perspective as just another ‘discourse of power’. “Thus, for example, precedent is a

deity greater than accepted history in some cases (Milirrpum), but a disposable adjunct to

interpretation in others (Cooper v Stuart; Mabo). Finally in Coe v the Commonwealth and

Milirrpum the judiciary ignored international law and history, and called its decision ‘precedent’;

in Mabo it rewrote international law and the common law, and called the decision ‘justice’. What

must the original inhabitants of this land make of such mysticism?”46

We now turn to ‘Aboriginal sovereignty’ which to some degree has already been indirectly

discussed via the issues surrounding the doctrine of terra nullius. For many people the

overturning of terra nullius would ipso facto render Aboriginal sovereignty as a given historical

fact. This is evidenced in other common law jurisdictions and under international law via the

Treaties in the North Americas and New Zealand entered into by the Crown with the original

peoples of those lands. However on May 11 2000 John Howard made a statement which was

seen by many as moving towards the reconciliation agenda when he said “we recognise that this

land and its waters were settled as colonies without treaty or consent.”47

That reconciliation

agenda was part of the statutory obligations of the Council for Aboriginal Reconciliation

(CAR)48

. CAR had worked over a nine year period to present its detailed Roadmap toward

Reconciliation that was delivered at Corroborree 2000 in a grand ceremony at the Sydney Opera

42

Simpson, G (1993) p.198 43

Ibid. p.201 44

Ibid. p.209 45

Ritter, D (1996) p.10 46

Simpson, G (1993) p.210 47

Howard, J P.M. 11 May 2000 in Brennan, Sean, Gunn, Belinda and Williams, George (2004) 'Sovereignty' and its

Relevance to Treaty- Making Between Indigenous Peoples and Australian Governments Sydney Law Review Vol 26:

307 p.308 48

Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth

Parliament, December 2000 (AUSTLII)

House. One of the resolutions of the Final Report was the need for a Treaty to resolve

outstanding sovereignty issues, however just two days after this ceremony Howard declared “a

nation... does not make a treaty with itself.”49

Brennan, Gunn and Williams (2004) put the issue of Aboriginal sovereignty into context by

noting that “the first statement by Prime Minister John Howard is a matter of fact. From that fact

flows a sense of grievance, felt by many Indigenous people and shared by many other

Australians, that ultimate political and legal authority – or 'sovereignty' - was never properly

secured by the Crown over the Australian landmass. The second statement is an assertion. It

suggests that it is impossible to use a treaty to remedy the way that the continent was settled and

the Australian nation constructed.”50

Yet as noted by Simpson (1993) regarding the rejection of

terra nullius and the Courts view in Mabo of the ‘peaceful settlement’ of this continent that

questions of international law in regard to the Crown’s assertion of sovereignty remain

unresolved.51

Both Governor Phillips Instructions to ‘conciliate their affections’ and later Lord

Glenelg’s statement show that the Crown understood the reciprocal rights and allodial

sovereignty under the law of nations. “All natives inhabiting the territories must be considered

subjects of the Queen… to which they derive the highest possible claim from the sovereignty

which has been assumed over the whole of their ancient possessions.”52

When the Crown ‘assumed sovereignty’ as the statement acknowledges it was over ‘the whole of

their ancient possessions’, yet that ‘act of State’, supposedly under international law of

‘occupation’ can never be said to have been fulfilled by the ‘cultivation of the lands’. Many parts

of the continent were still unexplored and the ‘settlement’ of the continent was only very partial

in the first sixty years of colonization. “It was many years before even half of the land mass was

effectively administered and so Aboriginal communities remained outside of British Australia

until the twentieth century”53

Whilst one could further cite many historians views on Aboriginal

sovereignty such as Windschuttle, Reynolds, Attwood and others and their somewhat polarized

conclusions, which led to the ‘history wars’54

it is perhaps best to understand and acknowledge

the perspective of the grass roots sovereignty movement.

On the 26th

of January 2012 Australia/Invasion Day, Aboriginal people and their supporters from

all over Australia travelled to Canberra to attend the 40th

Anniversary of the Aboriginal Tent

Embassy. The ‘Sovereignty Corroborree’ as it was called, was an acknowledgement that, forty

years on from its origins in 1972 the ‘unfinished business’ that the Embassy brought to the

world’s attention was yet to be addressed. Despite promises of a Treaty in the late eighties,

Mabo, the Native Title Act 1993 and amendments, the Royal Commission into Aboriginal

Deaths in Custody, the Stolen Generations Report, Recommendations of the Council for

Aboriginal Reconciliation for a Treaty and a further ten years of Reconciliation Australia, the

49

Howard, J 27 May 2000 in Brennan, Sean, Gunn, Belinda and Williams, George (2004) p.308 50

Brennan, et al (2004) p.308 51

Simpson, G (1993) Mabo, International Law, Terra Nullius and the Stories of Settlement: An unresolved

Jurisprudence. Melbourne University Law Review, 195 1993-1994 pp 204 52

Lord Glenelg: British Parliamentary Papers 1837-40 in Hunter, I (2007): Natural Law, Historiography, and

Aboriginal Sovereignty Legal History Vol. 11 p. 26 53

Reynolds, H (1996) After Mabo, What about Aboriginal sovereignty? Australian Humanities Review 54

MacIntyre, S & Clarke, A (2003): The History Wars Melbourne University Press Carlton Victoria

rise and demise of ATSIC, the Northern Territory intervention, the Prime Ministers Apology

and even talk of Constitutional Recognition the issue of ‘land rights’ (sovereignty) would not go

away. This is perhaps best expressed by the simple observation that Native Title is not land

rights.

Yet most Australians heard nothing of the reasons for the ‘sovereignty’ Corroborree, instead they

were distracted by a somewhat stage managed and heavy handed attempt by the Prime Minister,

Opposition leader, the Australian Federal Police and the media to discredit the intentions of

sovereignty activists. Yet when the situation is viewed through the eyes of those present a

different picture emerges which demands independent scrutiny.55

It must also be understood that

from the 2012 Sovereignty Corroborree that many other Embassy’s have been established and

re-established around Australia. A number of other grass roots political organizations such as

Sovereign Union (SU), Original Sovereign Tribal Federation (OSTF), Original Sovereign

Confederation, and even the declaration of the Murrawirri Republic in March 2013 signified that

the issues of sovereignty have not gone away. Oddly enough this issue of [Ab] “Original

sovereignty never ceded”56

has been once again revitalized, given a context and stage due to the

proposal to ‘recognise Aboriginal and Torres Strait Islanders peoples in the Constitution.’57

It is

worth noting that all the above groups reject the proposed constitutional recognition until issues

of sovereignty and a treaty are resolved.

In December 2010 an Expert Panel was appointed by the Commonwealth government to resolve

constitutional issues that came from the White Australia policy at Federation in 1901 which

excluded Aboriginal people from being part of the Australian body politic. The Panel held a

series of meetings all around Australia, yet was given a somewhat constrained ‘Terms of

Reference’ which as the author observed from attending 4 meetings did not intend to include

addressing issues of ‘sovereignty.’ In their Final Report the Panel concluded that “while

questions relating to sovereignty are likely to continue to be the subject of debate in the

community, including among Aboriginal and Torres Strait Islander people, the Panel does not

consider that these questions can be resolved or advanced at this time by inclusion in a

constitutional referendum proposal.”58

As one of the Expert Panel was professor George

Williams,59

reference is made Brennan, Gunn and Williams, (2004) paper 'Sovereignty' and its

Relevance to Treaty- Making between Indigenous Peoples and Australian Governments. 60

As is

noted “the uninterrupted quest for a so-called 'proper' or 'adequate' definition of 'sovereignty', in

both its internal and international ramifications, bears witness to the unfading materiality of this

55

Forsythe, R (2012) ‘Understanding Indigenous Sovereignty’ http://www.independentaustralia.net 56

Aboriginal Tent Embassy Canberra (2013) Banner at Sacred Fire and statement by other Embassy’s around

Australia. 57

YouMeUnity (2013) Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report

of the Expert Panel 58

Executive Summary (2011) Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution p.xvi 59

Williams, G (2013) Anthony Mason Professor & Director: Gilbert &Tobin Centre of Public Law, Faculty of Law,

University of New South Wales; Barrister, New South Wales Bar 60

Brennan, Sean, Gunn, Belinda and Williams, George (2004) 'Sovereignty' and its Relevance to Treaty- Making

Between Indigenous Peoples and Australian Governments Sydney Law Review Vol 26:

word for human society .... However, far from being semantically crystallised, this word has in

fact never stopped changing.”61

As Brennan et al (2004) note that sovereignty is a concept that has been ever changing and

expanding depending on the context it is used, yet its simplest interpretation regards the valid

power and authority to govern. However Irene Watson (2002) puts it in the cultural perspective

in saying “we were 'sovereign' peoples, and we practiced our sovereignty differently from

European nation states. Our obligations were not to some hierarchical god, represented by a

monarch. Our obligations were to law and we were responsible for the maintenance of country

for the benefit of future carers of law and Country.”62

By examining other countries such as

Canada, The United States and New Zealand a clearer picture is available on how the Crown

dealt with and recognized the Tribes sovereignty. Furthermore “Canada and new Zealand show

that in countries like Australia debates over sovereignty can go on (and given its illusory nature,

they will go on) and in the meantime the choice can be made to re-negotiate or revisit the

fundamental settlement between peoples.”63

Although Brennan et al (2004) give a comprehensive historical background to the past present

and future they also show that concepts of sovereignty have been changed by the Courts. “The

concept of sovereignty will remain a central part of the ongoing debate about Australia's history

and future. However it does not pose a roadblock to moving forward with innovative new

settlements, including the idea of a treaty or treaties.”64

What is apparent from their analysis is

that “Australian public law, and specifically the notion of sovereignty, puts few, if any,

constraints on the outcomes that can be reached. The greater challenge lies in the ability of

Australians to imagine new paths for moving forward and in our willingness to overcome any

political obstacles.” What Brennan et al (2004) also note, is that the High Court has been willing

to redevelop its approach to constitutional sovereignty by a concept of ‘popular sovereignty’

over the last century. This concept shifted from the supremacy (sovereignty) of the British

Parliament to the Australian people in 1986 with the enactment of the Australia Acts. However

despite this change in the view of the source of sovereignty in one area (Constitutional law) the

Court’s analysis of the Native Title cases reasserts the old ‘act of State’ doctrine which precludes

acknowledgement of sovereignty residing with the original inhabitants.

As one of Australia’s most noted writers on native title Strelein (2009) notes “the decision in

Mabo was heralded as an abandonment of the ‘terra nullius’ myth, although this may be an

overstatement of the reform that took place.”65

Whilst the Mabo decision offered much hope for

Aboriginal people to reconcile that ‘sovereignty was never ceded’ as Strelein has noted of the

Native Title cases that have come before the Courts, each has watered down those hopes. As the

Court has expanded the scope of Naïve Title so to, has it made the complexities of proving

61

Beaulac, S (2003) 'The Social Power of Bodin's 'Sovereignty' and International Law' (2003) 4 Melbourne Journal

of International Law 1 at 24-25. 62

Watson, I (2002) 'Aboriginal Laws and the Sovereignty of TerraNullius' (2002) 1(2) Borderlands e-journal [49]:

<www.borderlandsejoumal.adelaide.edu.aulvollno2_2002!watson_laws.html>(31 May 2003). In Brennan et al

(2004) p.314 63

Brennan et al (2004) p.351 64

Brennan et al (2004) p.350 65

Strelein, L (2009) Compromised Jurisprudence: Native Title Cases since Mabo Aboriginal Studies Press Canberra

ACT p.1

connection to country more difficult. “The past seventeen years have been informative in terms

of the evolution of the legal concept of native title from uncertain foundations to a more detailed,

though arguably compromised jurisprudence.66

Perhaps this is because “the Courts grapple with

the notion of Indigenous societies as makers and keepers of the law. Native title confronts

assumptions of legal and political sovereignty that are enshrined in the law and the thinking of

lawyers and judges.” As such it appears that the Courts are constrained by a reasoning of history

that forbids looking at cultural, spiritual norms that form the basis of Indigenous peoples

connection to land and Lore (sovereignty).

Strelein emphasizes that “despite attempts to reject the continuing capacity of Indigenous people

to make law and govern themselves there are unavoidable acknowledgements of Indigenous

society present in the reasoning of native title that undermines the carefully constructed doctrinal

denial.”67

So just what is this ‘carefully constructed doctrinal denial’ and is this why Mabo is a

compromised jurisprudence? Perhaps the issues surrounding the Githabul people’s native Title

Determination in 2007 is indicative of what has been learned and what power the original people

hold. The Githabul people were inspired and followed on from the Mabo case and after ten years

where ‘granted’ non-exclusive rights to certain area of their traditional lands around the

Woodenbong area of Northern NSW. However they realized after a short period that other third

party groups or individuals had more rights than they had been granted. That the Native Title

holders had no right of vetoes over any activities or development of the lands in question, which

has led the Githabul Custodians to now reject Native Title.

Furthermore Neubauer (2013) quantifies and then qualifies Aboriginal people’s aspirations

towards self-determination by stating that “in the decade that has passed, nearly 200 native title

claims covering 1.3 million sq km of land — some 18% of the Australian continent — have been

approved. But the system has received mixed reviews, with claimants bemoaning its voluminous

red tape and perpetual delays.”68

Michael Anderson of Sovereign Union and original member of

the Aboriginal Tent Embassy satirically asked “you know what blackfellas right across this

country use Mabo as an acronym for? ‘Money Available [for] Barristers Only’ because they’re

the only ones benefitting from the system.”69

Also, as Wells (2013) has summarized in his thesis

“until recently, the NNTT never once declined to permit the grant of a mining lease. In 2006

O'Fairchcallaigh and Tony Corbett analysed all of the NNTT's arbitrated future act

determinations from its first ten years and published an article criticising the 'politics' of the

Tribunal as inherently predisposed to subordinating the interests of Aboriginal people to those of

mining companies. In 2009 the NNTT responded with a paper by Deputy President Christopher

Sumner and Legal Officer Lisa Wright. Sumner and Wright reveal obvious mistakes in Corbett

and O'Faircheallaigh's legal analysis. They state that too often 'there is no material on point or

the material provided is insufficient to allow inferences favourable to the native title party to be

66

Ibid. p.8 67

Ibid. p.8 68

Neubauer, I (2013) Australia’s Aborigines Launch a Bold Legal Push for Independence May 30, 2013

http://world.time.com/2013/05/30 69

Anderson, M (2013) Australia’s Aborigines Launch a Bold Legal Push for Independence In Ian Lloyd Neubauer

May 30, 2013 http://world.time.com/2013/05/30/australias-aborigines-launch-a-bold-legal-push-for-independence

drawn'. They further argue that, to the extent that the future act regime is biased toward mining

interests, this bias is located in the NTA itself, not in the institution of the Tribunal.”70

However in his farewell speech Peter Gray, the former Aboriginal land rights commissioner and

deputy president of the National Native Title Tribunal who retired after 29 years at the Federal

Court in 2013 goes even deeper than Neubauer. “The biggest disappointment in my career has

been to see the opportunity given to us by the High Court in the Mabo case squandered. The

concept of native title has been reduced to something of little practical significance by judges

who have been unable to understand, and legislators who have been consciously averse to, the

vital relationship between people and land in Aboriginal traditions.

He said a future generation of Australians had to devise a new native title system that ''recognises

and respects the rights of our indigenous peoples and returns to them a measure of control over

what, but for colonisation, would have been indisputably theirs.”71

His assessment appears to

support what Strelein (2009) saw and referred to as a ‘carefully constructed doctrinal denial’

which has compromised the jurisprudence handed down in Mabo.

What has become apparent since Mabo and the Native Title Act 1993 is that many original

people’s hopes and aspirations towards self-determination and managing their traditional lands

through the native title process have not eventuated. Third party applicants particularly in the

mining sector appear to have more rights to the land than ‘Traditional Owners’ (TO’s) which has

been highlighted by the Western Australian governments threat to compulsorily resume land

‘granted’ under Native Title determinations at James Price Point.72

Furthermore, native title

applications have also divided local indigenous communities which was highlighted recently

with the exposure of Twiggy Forrest’s financial support of one group of TO’s who were

prepared to sign off on his mining lease, whilst the other group believed they had cultural

obligation and responsibilities to protect country. Yet it is perhaps the grass roots Aboriginal

sovereignty activists, their supporters and others who are making applications to the International

Court of Justice and the Privy Council who will bring this agenda to the Australian people.

Whilst many Australians may think that because some eighteen percent of the continent has been

‘granted’ back since the Mabo judgment that all is fair and equitable in the land rights debate.

Yet the fact that those grants in most areas give Native Title holders no right of veto over any

proposal is due to the unresolved and compromised Dicta of the judgment. What is apparent is

that despite the High Court supposedly overturning the doctrine of terra nullius, its application to

Australia and the Crown’s ‘assertion of sovereignty’ was non-existent in the eighteenth and

nineteenth centuries. Furthermore the High Court’s position regarding the peaceful settlement of

this continent is not supported by the myriad of documented massacres and historical accounts

by both academics and by oral transmission. It has also become evident that many Aboriginal

Australians are moving into a new era of awareness and cultural responsibilities that is

70

Wells, D (2013) The Native Title System As A Market: Fortescue Metals Group And The Yindjibarndi

Indigenous Law Bulletin, vol 8/issue 4, January-February 2013 p.20 71

Gray, P (2013) I tried to locate ‘Speech’ from Federal Court but not available. Original source article:

http://www.smh.com.au/national/mabos-native-title-victory-squandered-says-judge-20130531-

2nheg.html#ixzz2V75WxXt4 72

As of writing the WA government is still pursuing compulsory acquisition of this land despite Woodside pulling

out from the onshore facilities at James Price Point.

empowering them to challenge the Australian government’s narrative and policies. The most

significant aspect of the Mabo judgment given the evidence presented in this paper is that the

inconsistencies of the common law and international law is that Mabo must be seen as a

contemporary ‘assertion of sovereignty’ by the Australian Crown. Much like the Court’s

narrative regarding the ‘evolutionary theory of nationhood’ and ‘popular sovereignty’ which just

does not correlate with historical events, the issues of sovereignty both blackfella and whitefella

way must be addressed.

References:

Aboriginal Tent Embassy (2013) King George V Terrace, Canberra.

Anderson, M (2013) Australia’s Aborigines Launch a Bold Legal Push for Independence In Ian

Lloyd Neubauer May 30, 2013 http://world.time.com/2013/05/30/

Attwood, B (2004): The Law of the Land or the Law of the Land? History, Law and Narrative in

a Settler Society History Compass 2 AU 082, 1–30

Bartlett, R.H. (1993) The Mabo Decision, Butterworths, Sydney 1993, pp. 5-26.

Bonwick (1870) The last of the Tasmanians: or, The black war of Van Diemen's Land ... James

Bonwick. Acton, London, October 13, 1869.

Borch, M (2001) Rethinking the origins of terra nullius Australian Historical Studies Volume 32,

Issue 117, 2001, - Taylor & Francis

Brennan, Sean, Gunn, Belinda and Williams, George (2004) 'Sovereignty' and its Relevance to

Treaty- Making Between Indigenous Peoples and Australian Governments Sydney Law Review

Vol 26: 307

Corn, A (2005) When the waters will be one: Hereditary performance traditions and the Yolηu

re‐invention of post‐Barunga intercultural discourses Journal of Australian Studies

Vol. 28, Iss.84, 2005

Council for Aboriginal Reconciliation (2000) Final Report to the Prime Minister and the

Commonwealth Parliament, December 2000 (AUSTLII)

de Vattel, E (1758) The Law Of Nations Or Principles Of The Law Of Nature Applied To The

Conduct And Affairs Of Nations And Sovereigns new edition, by Joseph chitty, esq. Barrister at

law With additional notes and references, By edward d. Ingraham, esq. Philadelphia: T. & j.w.

johnson & co., law booksellers, No. 535 chestnut street. 1883.

Fitzmaurice, A (2007): The genealogy of Terra Nullius, Australian Historical Studies, 38:129, 1-

15

Flood, Josephine (2006) The Original Australians: story of the Aboriginal people. Allen and

Unwin Crowns Nest NSW pp1-306

Georgatos, G (2013) ‘The Killing Times’ April 20th, 2013. The Stringer Independent News

http://www.thestringer.com.au

Gray, P (2013) I tried to locate ‘Speech’ from Federal Court but not available. Original source

article: http://www.smh.com.au/national/mabos-native-title-victory-squandered-says-judge-

20130531-2nheg.html#ixzz2V75WxXt4

Hunter, I (2007): Natural Law, Historiography, and Aboriginal Sovereignty Legal History Vol.

11 pp1-31

Neubauer, I (2013) Australia’s Aborigines Launch a Bold Legal Push for Independence May 30,

2013 http://world.time.com/2013/05/30

Norst, M. J. (1999) Burnum Burnum – A Warrior for Peace Kangaroo Press: 1999 ISBN-13:

9780864179784

Reynolds, H (1996) After Mabo, What about Aboriginal sovereignty? Australian Humanities

Review

Reynolds, H, (2001) An Indelible Stain? The question of genocide in Australia's history Penguin

Books Australia Ltd, Melbourne, pp.209 ISBN 0-670-91220-4 (2001)

Ritter, D (1996): The "Rejection of Terra Nullius" in Mabo: A Critical Analysis Sydney Law

Review [Vol 18: 5 pp1-29

Schaap, A (2009) The Absurd Proposition of Aboriginal Sovereignty Law and Agnostic Politics

2009 Ch.13

Simpson, G: (1993) Mabo, International Law, Terra Nullius and stories of settlement: An

unresolved Jurisprudence. Melbourne University Law Review 195, 1993- 1994 pp17

Sovereign Union, First Nations Interim National Unity Government http://sovereignunion.mobi/

Strelein, L (2009) Compromised Jurisprudence: Native Title Cases since Mabo Aboriginal

Studies Press Canberra ACT

Trudgen, R (2000) Why Warriors lay down and die Aboriginal Resource and Development

Services Inc Parap, Northern Territory p.1-269

Van Kreiken, R (2000): 'From Milirrpum to Mabo: the High Court, terra nullius and moral

entrepreneurship' 23 NSWLJ 63-77.

Ward, D (2006): Constructing British Authority in Australasia: Charles Cooper and the Legal

Status of Aborigines in the South Australian Supreme Court, c. 1840–60, the Journal of Imperial

and Commonwealth History, 34:4, 483-504

Wells, D (2013) The Native Title System as a Market: Fortescue Metals Group and the

Yindjibarndi Indigenous Law Bulletin, vol. 8/issue 4, January-February 2013 p.20

Legislation:

Native Title Act 1993 (Cwlth)

Pacific Islander Protection Act 1872&75 (IMP)

Court Cases:

High Court of Australia

Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; (1979) 24 ALR 118 (5 April 1979)

Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

Milirrpum v. Nabalco Pty Ltd (1971), 17 FLR 141

Viro v The Queen [1978] HCA 9; (1978), 52 ALJR. 418).

International Court Of Justice:

Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975,Western Sahara (Request for

Advisory Opinion) Order of 22 May 1975 Reports of Judgments, Advisory Opinions and Orders

Privy Council:

Cooper v. Stuart (1883), 14 AC 286.

Bibliography:

David, please disregard this Dicta I have just left it there for future reference.

Although Blackstone commended the practice of "sending colonies (of settlers) to find

out new habitations", he wrote (34) Commentaries on the

Laws of England, 17th ed. (1830), Bk II, ch 1, p 7-

"so long as it was confined to the stocking and cultivation

of desert uninhabited countries, it kept strictly within

the limits of the law of nature. But how far the seising

on countries already peopled, and driving out or massacring

the innocent and defenceless natives, merely because

they differed from their invaders in language, in religion,

in customs, in government, or in colour; how far such

a conduct was consonant to nature, to reason, or to

christianity, deserved well to be considered by those,

who have rendered their names immortal by thus civilizing

mankind".

As we shall see, Blackstone's misgivings found a resonance in international law after two

centuries (35) Advisory Opinion on Western Sahara (1975) 1 ICJR 12. But he was unable

to declare any rule by which the laws of England became the laws of a territory which

was not a "desert uninhabited" country when the Crown acquired sovereignty over that

territory by discovery and occupation as terra nullius English law to the Colony of New

South Wales is that English

settlers brought with them the law of England and that, as the indigenous inhabitants

were regarded as

barbarous or unsettled and without a settled law, the law of England including the

common law became

the law of the Colony (so far as it was locally applicable) as though New South Wales

were "an

uninhabited country ... discovered and planted by English subjects" (54) See per Lord

Watson in Cooper

v. Stuart (1889) 14 App Cas, at p 291; and cf. Roberts-Wray, op cit, p 540. The common

law thus

became the common law of all subjects within the Colony who were equally entitled to

the law's

protection as subjects of the Crown (55) As the subjects of a conquered territory (Calvin's

Case [1572]

EngR 64; (1608) 7 Co Rep 1a, at p 6a (77 ER 377, at p 384)); Campbell v. Hall (1774)

Lofft, at p 741

(98 ER, at p 895) and of a ceded territory (Donegani v. Donegani (1835) 3 Knapp 63, at p

85 (12 ER

571, at p 580)) became British subjects (Lyons (Mayor of) v. East India Co. (1836) 1

Moo PC, at pp

286-287 (12 ER, at p 823); 1 Moo Ind App 175, at pp 286-187 (18 ER 66, at pp 108-

109)), a fortiori

the subjects of a settled territory must have acquired that status.

@36: the Murray Islands on annexation became subject to the laws in force in

Queensland, the common law

became the basic law of the Murray Islands. Thus the Meriam people in 1879, like

Australian Aborigines

in earlier times, became British subjects owing allegiance to the Imperial Sovereign

entitled to such rights

and privileges and subject to such liabilities as the common law and applicable statutes

provided

40. The theory of terra nullius has been critically examined in recent times by the

International Court of Justice in its Advisory Opinion on Western Sahara (62) (1975)

ICJR, at p 39. There the majority

judgment read:

"'Occupation' being legally an original means of peaceably

acquiring sovereignty over territory otherwise than by

cession or succession, it was a cardinal condition of a valid 'occupation' that the territory

should be terra

nullius - a territory belonging to no-one - at the time of

the act alleged to constitute the 'occupation' (cf. Legal

Status of Eastern Greenland, P.C.I.J., Series A/B, No.53,

pp 44 f. and 63 f.). 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 no-one in the sense that it was then open to

acquisition through the legal process of 'occupation'.

80. Whatever differences of opinion there may have been

among jurists, the State practice of the relevant period

indicates that territories inhabited by tribes or peoples

having a social and political organization were not

regarded as terrae nullius. It shows that in the case of

such territories the acquisition of sovereignty was not

generally considered as effected unilaterally through

'occupation' of terra nullius by original title but through

agreements concluded with local rulers.

42. The fiction by which the rights and interests of indigenous inhabitants in land were

treated as nonexistent

was justified by a policy which has no place in the contemporary law of this country. The

policy

appears explicitly in the judgment of the Privy Council in In re Southern Rhodesia in

rejecting an argument

(66) ibid., at p 232 that the native people "were the owners of the unalienated lands long

before either the

Company or the Crown became concerned with them and from time immemorial ... and

that the

unalienated lands belonged to them still". Their Lordships replied (67) ibid., at p 234-

51. 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 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 nullius, the Crown would take an absolute

beneficial title

(an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General v.

Brown (95) See

pp 13-14 above; (1847) 1 Legge, at pp 317-318: 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

recognized 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. Nor is it necessary to the structure

of our legal

system to refuse recognition to the rights and interests in land of the indigenous

inhabitants. The doctrine

of tenure applies to every Crown grant of an interest in land, but not to rights and

interests which do not

owe their existence to a Crown grant. The English legal system accommodated the

recognition of rights

and interests derived from occupation of land in a territory over which sovereignty was

acquired by

conquest without the necessity of a Crown grant.

56. Mr Justice Evatt described ownership of vacant lands in a new colony as one of the

proprietary prerogatives(107) See The Attorney-General for New South Wales v.

Butterworth and Co. (Australia) Ltd. (1938) 38 SR (NSW) 195, at pp 246-247 . But, as

that author's lately published work on The Royal Prerogative shows(108) (1987), at pp

102-103, there was no judicial consensus as to whether title to ownership of the vacant

lands in the Australian Colonies was vested in the King as representing the supreme

executive power of the British Empire or in the Crown in right of the respective Colonies.

The management and control of the waste lands of the Crown were passed by Imperial

legislation to the respective Colonial Governments as a transfer of political power or

governmental function not as a matter of title(109) Williams v. Attorney-General for

New South Wales (1913) 16 CLR, at pp 453, 456. The suggestion that, after the passing

of these powers to colonial governments the Crown commenced to hold Crown lands "in

right of the colony"(110) Per Stephen J. in the Seas and Submerged Lands Case (1975)

Again Lord Denning, speaking for the Privy Council in Adeyinka

2/12/13 Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3

June 1992)

www.austlii.edu.au/au/cases/cth/HCA/1992/23.html 34/142

Oyekan v. Musendiku Adele(122) (1957) 1 WLR 876, at p 880; (1957) 2 All ER 785, at p

788, said:

"In inquiring ... what rights are recognized, there is one

guiding principle. It is this: The courts will assume

that the British Crown intends that the rights of property

of the inhabitants are to be fully respected. Whilst,

therefore, the British Crown, as Sovereign, can make

laws enabling it compulsorily to acquire land for public

purposes, it will see that proper compensation is awarded

to every one of the inhabitants who has by native law

an interest in it: and the courts will declare the

inhabitants entitled to compensation according to their

interests, even though those interests are of a kind

unknown to English law".

We are not concerned here with compensation for expropriation but we are concerned

with the survival

of private rights and interests in land and their liability to be extinguished by action of the

Crown. The rule

in Amodu Tijani was followed by the Privy Council in Sobhuza II. v. Miller(123) (1926)

AC, at p 525

where the title of an indigenous community, which their Lordships thought to be

generally usufructuary in

character, was held to survive as "a mere qualification of a burden on the radical or final

title of whoever

is sovereign", capable of being extinguished "by the action of a paramount power which

assumes

possession or the entire control of land."

62. If native title survives the Crown's acquisition of sovereignty as, in my view, it does,

it is unnecessary

to examine the alternative arguments advanced to support the rights and interests of the

Meriam people to

their traditional land. One argument raised the presumption of a Crown grant arising from

the Meriam

people's possession of the Murray Islands from a time before annexation; another was the

existence of a

title arising after annexation in accordance with a supposed local legal custom under the

common law

whereby the Meriam people were said to be entitled to possess the Murray Islands. There

are substantial

difficulties in the way of accepting either of these arguments, but it is unnecessary to

pursue them. It is

sufficient to state that, in my opinion, the common law of Australia rejects the notion

that, when the

Crown acquired sovereignty over territory which is now part of Australia it thereby

acquired the absolute

beneficial ownership of the land therein, and accepts that the antecedent rights and

interests in land

possessed by the indigenous inhabitants of the territory survived the change in

sovereignty. Those

antecedent rights and interests thus constitute a burden on the radical title of the Crown.

63. 63. It must be acknowledged that, to state the common law in this way involves the

overruling of cases

which have held the contrary. To maintain the authority of those cases would destroy the

equality of all

Australian citizens before the law. The common law of this country would perpetuate

injustice if it were to

continue to embrace the enlarged notion of terra nullius and to persist in characterizing

the indigenous

inhabitants of the Australian colonies as people too low in the scale of social organization

to be

acknowledged as possessing rights and interests in land. Moreover, to reject the theory

that the Crown

acquired absolute beneficial ownership of land is to bring the law into conformity with

Australian history.

The dispossession of the indigenous inhabitants of Australia was not worked by a transfer

of beneficial

ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of

a paramount

power to exclude the indigenous inhabitants from their traditional lands as colonial

settlement expanded

and land was granted to the colonists. Dispossession is attributable not to a failure of

native title to survive

the acquisition of sovereignty, but to its subsequent extinction by a paramount power.

Before examining

the power to extinguish native title, it is necessary to say something about the nature and

incidents of the

native title which, surviving the Crown's acquisition of sovereignty, burdens the Crown's

radical title.

The nature and incidents of native title

66. Of course, since European settlement of Australia, many clans or groups of

indigenous people have

been physically separated from their traditional land and have lost their connexion with it.

But that is not

the universal position. It is clearly not the position of the Meriam people. 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.

Australian law can

protect the interests of members of an indigenous clan or group, whether communally or

individually, only

in conformity with the traditional laws and customs of the people to whom the clan or

group belongs and

only where members of the clan or group acknowledge those laws and observe those

customs (so far as

it is practicable to do so). Once traditional native title expires, the Crown's radical title

expands to a full

beneficial title, for then there is no other proprietor than the Crown.

67. It follows that a right or interest possessed as a native title cannot be acquired from an

indigenous

people by one who, not being a member of the indigenous people, does not acknowledge

their laws and

observe their customs; nor can such a right or interest be acquired by a clan, group or

member of the

indigenous people unless the acquisition is consistent with the laws and customs of that

people. Such a

right or interest can be acquired outside those laws and customs only by the Crown(127)

This result has

been reached in other jurisdictions, though for different reasons: see Reg. v. Symonds

(1847) NZPCC ,

at p 390; Johnson v. McIntosh (1823) 8 wheat, at p 586 (21 US , at p 259); St. Catherine's

Milling and

Lumber Co. v. The Queen (1887) 13 SCR 577, at p 599. Once the Crown acquires

sovereignty and the

common law becomes the law of the territory, the Crown's sovereignty over all land in

the territory

carries the capacity to accept a surrender of native title. The native title may be

surrendered on purchase

or surrendered voluntarily, whereupon the Crown's radical title is expanded to absolute

ownership, a

plenum dominium, for there is then no other owner(128)