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Mabo case: 'terra nullius an empty theory'
Written by Garth Nettheim and published in 'Australian Law News' (July 1992) 9-14 under the title '... As Against the Whole World'

The decision in Eddie Mabo and Others v The State of Queensland on 3 June 1992, represents one of the most fundamental cases that the High Court of Australia has ever had to consider, fundamental in the sense that the central issues go to the historical and juridical foundations of the Australian nation.

Sovereignty was not in issue, and, as Brennan J agreed, 'the question is not justiciable before municipal courts ...' But, His Honour added, '... those courts have jurisdiction to determine the consequences of an acquisition under municipal law.' (p18)

The particular consequence put in question by the plaintiffs was the correctness of the long-held assumption that, when Australia was colonised, any pre-existing land rights of the Indigenous peoples did not survive or, to put it another way, that the acts by which the Crown acquired sovereignty conferred on the Crown not only the radical title to the land but the beneficial ownership as well, on the basis that the lands were terra nullius, ie land belonging to no one.

Specifically, the statement of claim and the proceedings related only to Murray Island (Mer) and adjoining islets at the eastern end of the Torres Strait which had been annexed to Queensland, under Imperial authority, in 1879. The action was commenced in May 1982 in the High Court's original jurisdiction with the determination of facts being remitted to the Supreme Court of Queensland.

In 1985 the Bjelke-Petersen Government of Queensland, in an attempt to abort the action, secured the enactment of the Queensland Coast Islands Declaratory Act to declare, retroactively, that the Queensland legislature's intention when enacting the Queensland Coast Islands Act of 1879 was not only to acquire sovereignty but also to extinguish any land rights of the Islanders without any entitlement to compensation. In 1988, in proceedings by way of plaintiffs' demurrer, the High Court ruled, 4:3, that the legislation was inoperative for inconsistency with the Racial Discrimination Act 1975 (Cth). (Mabo v Queensland (1988) 166 CLR 186).

Hearings in the Queensland Supreme Court resumed in 1989 and, in November 1990, Moynihan J delivered his findings of fact. At the end of May 1991 the High Court heard oral argument, and it delivered its decision a year later. In the meantime three of the five plaintiffs had died, Eddie Mabo himself having succumbed to cancer as late as January 1992.

The Order made by the High Court, in effect, declares that the land in the Murray Islands is not Crown land within the meaning of s5 of the Land Act 1962 (Qld); that (with exceptions for specific areas) 'the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands'; but that such title is subject to the power of the Queensland Parliament and Governor-in-Council '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.'

Most of the judgments, while expressing concern at the injustice embodied in the propositions in question, also expressed concern about revising propositions which had for so long been accepted as well-settled. Brennan J said: 'In discharging its duty to declare the common law of Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.' (p16)

Deane and Gaudron JJ said:
'If this were any ordinary case, the Court would not be justified in reopening the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as a basis of the real property law of the country for more than one hundred and fifty years. And that would be notwithstanding that the combined effect of Crown grants, of assumed acquiescence in reservations and dedications and of statutes of limitations would be that, as a practical matter, the consequences of re-examination and rejection of the two propositions would be largely, and probably completely, confined to lands which remain under Aboriginal occupation or use. Far from being ordinary, however, the circumstances of the present case make it unique. As has been seen, the two propositions in question provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from those past injustices. In these circumstances, the Court is under a clear duty to re-examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. The lands of this continent were not terra nullius or "practically unoccupied" in 1788. The Crown's property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.' (pp100-101)

Dawson J (dissenting) said:
'There may not be a great deal to be proud of in this history of events. But a dispassionate appraisal of what occurred is essential to the determination of the legal consequences, notwithstanding the degree of condemnation which is nowadays apt to accompany any account. The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. In the meantime it would be wrong to attempt to revise history or to fail to recognize its legal impact, however unpalatable it may now seem. To do so would be to impugn the foundations of the very legal system under which this case must be decided.'(p138)

It was, presumably, the acknowledgment of the power of the sovereign authority to extinguish native title (in line with established doctrine elsewhere) that assisted the majority to declare the common law on native title in a way contrary to earlier judicial statements and the decision in Milirrpum v Nabalco Pty ltd (1971) 17 FLR 141. In doing so, and in reviewing judicial statements in cases from a range of jurisdictions, they were able to adopt a reading of the precedents which would serve to bring Australian law into conformity with the law in the United States, New Zealand, Canada and elsewhere. International law and human rights standards were also influential.

The Order occupies less than one page, but the judgments span 218 pages. The leading judgment, that of Brennan J, had the agreement of Mason CJ and McHugh J Deane and Gaudron JJ, in a joint judgment, and Toohey J, reached the same conclusion. Dawson J dissented.

On one major issue the majority were divided. In their brief statement of agreement with Brennan J, Mason CJ and McHugh J said:
'In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act (1975)(Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.
We are authorised to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case.'(p1)

The four judgments, in reaching their conclusions, spanned a broad range of judicial decisions and scholarly writings extending over several centuries and many parts of the globe where British sovereignty had been extended, including New Zealand, the USA, Canada, India and several parts of Africa. At the forefront were several statements from Australian courts, and a Privy Council decision from Australia, which supported unequivocally what Deane and Gaudron JJ described as 'the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands in the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants' (p100). The cases were Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cases 286; Williams v Attorney-General for New South Wales (1913) 16 CLR 404; Randwick Corporation v Rutledge (1959) 102 CLR 54. (Brennan J added other references). Of these four authorities, in particular, Deane and Gaudron JJ wrote:

'It is important to note that, in each of those four cases, the reasoning supporting one or both of the broad propositions that New South Wales had been unoccupied for practical purposes and that the unqualified legal and beneficial ownership of all land in the Colony had vested in the Crown, consists of little more than bare assertion. The question of Aboriginal entitlement was not directly involved in any of them and it would seem that no argument in support of Aboriginal entitlement was advanced on behalf of any party. In three, and arguably all of them, the relevant comments were obiter dicta. Nonetheless, the authority which the four cases lend to the two propositions is formidable. Indeed, the paucity of the reasoning tends to emphasise the fact that the propositions were regarded as either obvious or well-settled. Certainly, they accorded with the general approach and practice of the representatives of the Colony after its establishment.'(pp94-95)

There were numerous sub-issues to be addressed. One was whether the status of a colony as 'settled' instead of 'conquered' or 'ceded' (in Blackstone's well known dichotomy) precluded the survival of native title: the distinction between the two categories of colony is now irrelevant to the issue of pre-existing rights. Another sub-issue is whether the survival of 'native title' is dependant upon legislative or executive recognition: only Dawson J read the precedents as requiring this.

There is also much learning on the nature of native title and a clear holding that the relationship of an Indigenous people to their land does not need to coincide with common law notions of property, provided that their occupation is exclusive. Otherwise the incidents of the native title are to be determined by Indigenous law.

Toohey J explored more fully than other members of the Court two particular themes that had been argued. One was the concept of a fiduciary duty owed by the Crown to an Indigenous people. His Honour found such a fiduciary duty to arise from 'the power of the Crown to extinguish traditional title by alienating the land or otherwise' (p203) and, also, possibly from Queensland legislation and administrative history.

Toohey J also followed the persuasive line of argument developed by Professor Kent McNeil ('Common Law Aboriginal Title', Oxford, 1989) to accept an alternative basis for confirming Indigenous land rights: English land law has, since earliest times, attached to the fact of occupation of land presumptions of possession in the legal sense and, indeed, of a fee simple title unless a superior title could be proved to belong to another. In the outcome, His Honour felt no need to reach a firm conclusion on this approach, and he considered that the consequences of doing so would be 'no more beneficial for the plaintiffs.'(p214)

The separate judgments in their entirety merit - and will certainly receive - more extended analysis than space permits here. And they provide a baseline for further judicial development which may parallel, or diverge from, the jurisprudence of the Supreme Court of Canada, in particular. Modern Canadian decisions were particularly influential, especially Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145; Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513; Guerin v The Queen (1984) 13 DLR (4th) 321; Reg v Sparrow (1990) 70 DLR (4th) 385.

Brennan J, conveniently, provides a shorthand, 9-point summary of the common law of Australia with reference to land titles:

'The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part. Native title to land survived the Crown's acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.

Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg authorities to prospect for minerals).

Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (eg land set aside as a national park).

Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.

Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.

Native title over any parcel of land can be surrendered to the Crown voluntarily by all those clans or groups who, by the traditional laws and customs of the indigenous people, have a relevant connection with the land but the rights and privileges conferred by native title are otherwise inalienable to persons who are not members of the indigenous people to whom alienation is permitted by the traditional laws and customs.

If native title to any parcel of the waste lands of the Crown is extinguished, the Crown becomes the absolute beneficial owner. These propositions leave for resolution by the general law the question of the validity of any purported exercise by the Crown of the power to alienate or to appropriate to itself waste lands of the Crown. In Queensland, these powers are and at all material times have been exercisable by the Executive Government subject, in the case of the power of alienation, to the statutes of the state in force from time to time. The power of alienation and the power of appropriation vested in the Crown in right of a State are also subject to the valid laws of the Commonwealth, including the Racial Discrimination Act. Where a power has purportedly been exercised as a prerogative power, the validity of the exercise depends on the scope of the prerogative and the authority of the purported repository in the particular case.(pp58-60)

In many parts of Australia Indigenous peoples will not be able to demonstrate the necessary continuing connection with the land. Many peoples who can are likely to find that their native title has been extinguished. But some peoples may be able to establish their continuing title to their lands which would otherwise be unavailable to them under Australia's patchwork of Aboriginal land rights legislation. Whether the process of addressing such claims should be left to the judicial system or handled in some other way (eg negotiated settlements on the Canadian pattern) is a matter for consideration.

Very few judicial decisions represent such a watershed in the law. Within the broader political setting at both national and international levels the timing is perfect. Within Australia the continuing pathology of the relationship between Aboriginal peoples and non-Aboriginal society has been highlighted by the report of the Royal Commission into Aboriginal Deaths in Custody and the program of the Council for Aboriginal Reconciliation. In the international arena, the United Nations Working Group on Indigenous Populations is expected to conclude its drafting in July of a Declaration of the Rights of Indigenous Peoples, and 1993 is to be marked as the International Year of the World's Indigenous Peoples.

The time is highly propitious for a fundamental reassessment of the Aboriginal/non-Aboriginal relationship. In its reassessment of Australian common law the High Court has provided an impressive lead.
Keywords: Mabo Case, Mabo judgement, native title, terra nullius, 1992

Australian Law News, Vol.27, No.6, 1992.
Source: Nettheim, Garth