...The doctrine of terra nullius...
'Prior to 1992 and the Mabo decision, Murray Island and the Aboriginal rights in Murray Island were the same as the rest of Australia. The law, when we started this case in 1982, was that no Aboriginal or Islander communities enjoyed traditional rights to land. This was the doctrine of terra nullius, which had been accepted by the courts as existing since 1788, through the whole of Australia. The Murray islands were annexed to Queensland by imperial instruments and Australian instruments in 1879, and attracted that doctrine of law. It said that upon the extension of British sovereignty to Australia in 1788, when Governor Arthur Phillip ran up the flag and shot off the muskets, by that event any and all pre-existing traditional Aboriginal or islander rights in land was automatically extinguished. Snuffed out throughout the length and breadth of the colonised area of the then New South Wales. Similarly, when the Torres Strait was annexed in 1879, the same principle applied.
So Eddie Mabo was really sort of taking on a high historical challenge.
The whole of the administration of the colonies, the whole of the laws governing land throughout the Australian colonies, were premised on that proposition: that nobody enjoyed rights in the land except the Crown. And therefore it was open slather to expand settlement, to enact laws, to grant fee simple or leasehold interests to the settlers without having to pay any regard to anyone else's pre-existing rights in those lands. And that's what happened. So if we roll up to 1982, Eddie Mabo and the Murray Island plaintiffs were facing a massive legal hurdle. They were comforted by much academic writing and even some judicial comments that this [terra nullius doctrine] was outrageously unjust. But, more to the point, that it was out of kilter with common law developments in America, Canada, New Zealand, African- prior British colonies in Africa. And all those international common law principles we brought to bear in the final High Court argument.'
Keywords: Canada, extinguishment, First Fleet, land rights, Mabo, Edward Koiki, Mabo judgement, Murray Island, New South Wales, New Zealand (Aotearoa), plaintiffs, Queensland, terra nullius, United States of America
Interviewed by Trevor Graham, 1996.
Author: Kenna, Jonathan
© Film Australia
Source: Keon-Cohen, Bryan