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207 Barbara Hocking -a high court challenge?

Barbara Hocking: Is might right? An argument for the recognition of traditional Aboriginal title to land in the Australian courts.

With the single exception of Australia, all of England's ex-colonial countries have legally upheld the basic principle of recognition of the title of their indigenous people. The United States of America, Canada, New Zealand, the Pacific Islands, including New Guinea and the African nations have all done so. Will Australia ever join with her fellow members of the British Commonwealth and uphold the customary traditional ownership of the indigenous Aboriginal people? Will the two states of Queensland and Western Australia remain the only places in the English-speaking common law world that continue to refuse to recognize the native title of those Aboriginals who are still the possessors from time immemorial of their traditional lands? Could a legal claim to this title succeed and would it be worth making?

Let us start with the easiest question. In my opinion, such a claim, whether or not it was successful, might very well act as a catalyst tor action at the political level. After the first Aboriginal land rights (a) case was heard by Blackburn J in the Northern Territory [Supreme] Court, a Royal Commission was set up by the Federal government to inquire into Aboriginal land rights (b) in the Northern Territory, and this was followed by the passage, among other Acts, (c) of the Aboriginal Land Rights (Northern Territory) Act 1976. A test case brought by a group of Queensland Aboriginals who still live on their tribal lands could influence the attitudes of white Australians and the terms of the Makarrata. It might for example lead to the establishment of a Court of Claims and an Aboriginal Claims Commission similar to the ones set up in the USA to determine the Indian claims to compensation for the loss of tribal lands.(d)

(a) Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR141. Referred to as Milirrpum.
(b) The Aboriginal Land Rights Commission, Report, A.G.P.S., Canberra, 1974
(c) E.g., the Aboriginal Land Fund Act 1974
(d) The operation of the Land Commissioner in the Northern Territory is at present limited to that State and to land not alienated by the Crown. He has no power to assess any compensation entitlement and only recommends or advises recognition of traditional ownership.

208 Barbara Hocking -a high court challenge?

If the case succeeded only in having the basic principle of the existence of native title established as part of the law in Australia, there must be some political consequences because, whereas in other countries this principle is taken for granted, here in Australia it is still to be determined by the High Court. (a)

It is possible that a test case might lead to the ratification by the Federal government of the Convention of the International Labour Organization that is concerned with tribal and indigenous populations. (b) At present this Convention, ratification of which would in itself provide another legal basis for recognition of traditional Aboriginal ownership in our courts, remains unratified only because of the opposition of the Queensland state government. (c) Indeed, there may be no other way of altering the intransigent position of the National Party government of Queensland than by imposing the rule of law upon it through a decision of the High Court. (d)

Whether the finding of the High Court would be that the principle of the recognition of native title is part of Australian law, and, if it were held to be part of Australian law, whether any such native title would be found to be still in existence, are matters that go to the 'grass roots' of our legal system. The arguments in support of a submission that the native title of the Aboriginal people of Australia is part of our law would be based on rules of international law, the application and nature of the common law, the operation of

(a) It seems to me that in Coe v. The Commonwealth (1979) 53 ALJR 403 the High Court is interested in the prospect of a test case on this question.
(b) Convention 107, in particular Articles 4 and 11. Article 4 provides that indigenous peoples 'should receive the same treatment as other members of the national population in relation to the ownership of underground wealth or preference rights in the development of such wealth.
Article 11 states that the 'right of ownership, collective or individual of the members of the populations concerned over the lands which these people traditionally occupy shall be recognised'; the intention being the indigenous people be guaranteed a full proprietary status on their ancestral 'land' including rivers, lakes and forests.
(c) Mr Street, Hansard, November 1979
(d) See 'Does Aboriginal Law now run in Australia?' (1979) 10 Federal law Review 161 where this and the following points are dealt with by me in greater detail.

209 Barbara Hocking -a high court challenge?

the concepts of sovereignty and property the history of the legislation in partitular that of New `South Wales and Queensland in this area constitutional law English Canadian, New Zealand and American cases and legislation even as Chief Justice Marshall of the United States said the question of whether might is right (a) -the nature of justice.

To put it more bluntly are we a nation of thieves?

It has always been and still is both morally and legally indefensible to take the property of other people without their consent and without any form of compensation. Not only in international law but also in the common law there are rules to this effect that recognize and protect property rights. Indeed the English common law has been criticised for regarding rights of property as of greater moment than those of the individual - 'as sacred as the fee simple' is a commonly used phrase.

In considering the recognition in Australia of the title of traditional aboriginal owners (their native title) one of the primary distinctions to he made is between

(1) the constitutional concept of the ultimate or radical title that i6 to he found in the sovereign of a territory for the purposes of the recognition of sovereignty in international law

(2) the private proprietary rights that are granted by the sovereign English Crown, and

(3) 'rights whatever they exactly were [that] belonged to the category of rights of private property such that upon a conquest it is to be presumed in the absence of express confiscation or of subsequent expropriatory legislation that the conqueror has respected them and foreborne to diminish or modify them.' These rights existed prior to the acquisition of the radical title. (b)

This dictum [in (3)] is from the case of In Re Southern Rhodesia, (c) a leading case insofar as a conquered colony is concerned. It is a nice precedent for the later finding by Blackburn J in Milirrpum (d) that the system established by the Aboriginal plaintiffs was recognisable as a system of law for it continues by pointing out that 'there are indigenous

(a) Worcester v. State of Georgia (1832) 6 Peters 515, 542-4
(b) In Re Southern Rhodesia [1919] AC 211, 233-4 per Lord Sumner. Emphasis added.
(c) [1919] AC 211. The rights referred to were of native title.
(d) (1971) 17 FLR 141.

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peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law.'' (a)

In my opinion, Blackburn J failed to draw these three vital distinctions and thus adversely affected the way the plaintiffs' case in Milirrpum was pleaded. He had earlier given leave for the plaintiffs to deliver a fresh statement of claim but at the same time he imposed a particular structure of argument upon them that made it almost impossible for the plaintiffs to succeed. (b) In both the interlocutory proceedings and in his final judgment he confused pre-existing rights that could be categorised as property (3), with private proprietary rights created by the Crown after the acquisition of sovereignty (2) and with the radical title of the Crown (1). Pre-existing rights grounded in native title (3) of course can never be private proprietary rights as in (2).

The nature of native title then has two aspects: the first being its legal status in the structure of the derivation of rights over land and the second being its internal form which may be quite unlike anything to be found in English property law. Blackburn J unfortunately and again, in my respectful opinion, incorrectly, did not consider the traditional Aboriginal owners' relationships with their land to be a matter of property and held that they were not in the nature of proprietary interests. (c) Happily, this finding ha6 been corrected by statute. (d)

In the leading case of Amodu Tiiani v. Secretary, Southern Nigeria, (e) Lord Haldane, giving the opinion of the Judicial Committee of the Privy Council, delivered a warning to

(a) In Re southern Rhodesia [1919] AC 211, 233-4 per Lord Sumner. See too note, p.220.
(b) Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10. The pleadings are absolutely vital and must be properly drawn. To be fair to Blackburn J, his requirements would have been based on the arguments already placed before him.
(c) Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141, 273
(d) The Aboriginal Land Rights (Northern Territory ) Act 1976 (Cth), s.3(1):
'Traditional Aboriginal owners', in relation to land, means a local descent group of Aboriginals who
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land
(e) [1921] 2 AC 399.

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beware of the 'tendency, operating at times unconsciously, to render that title (the native title to land) conceptually in terms which are appropriate only to systems which have grown up under English law.' (a) At least as far as the part of a case involving a claim to native title is concerned, traditional Aboriginal ownership would property now to be held to be matter of property.

The proof of its existence however could raise problems. Here again Blackburn J imposed an impossible burden on the plaintiffs in Milirrpum and this would have to be overcome by legal argument in support of a less onerous evidentiary requirement.

In Australia, a claim to native title must successfully argue that by the exclusion of areas reserved for the use and benefit of the Aboriginal people from tho operation of the original Waste Lands Acts in NSW and Queensland, the native title or traditional Aboriginal ownership of these areas was intended by the Crown - as it was in Canada and the U.S.A. - to be respected, not confiscated and that, since there has been no express expropriatory legislation, where such reserved areas had been and still are occupied by their traditional Aboriginal or Islander owners undisturbed in their customary possession, then the native title has not yet been extinguished; that the conduct of the Crown indicates that it has either already exercised its right of pre-emption (b) in favour of recognition or has still to do so.

If it has still to do so, then that right of pre-emption is now in the Commonwealth government and no longer in any State. (c)

In support of this argument, the full history of the relevant Acts would have to be analysed and the American and Canadian cases that support this interpretation, in particular Calder's case (d) and the Baker Lake case relied on Both these Canadian cases dealt with native title to land in a settled colonial area and the judgements rely strongly on the definitive judgments of Marshall CJ in the series of American

(a) Id. 402-403. 'The title ... may be that of a community'.
(b) See below.
(c) Since the passage of the 1967 referendum to the Constitution that gave the Commonwealth power to legislate for Aboriginals.
(d) Calder v. A-G of British Columbia (1973) 34 DLR (3d) 145. Referred to as Calder's case.
(e) Baker Lake v. Min. of Indian Affairs [1980] 1 FCR 518. Referred to as the Baker Lake case.
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cases for which he is so highly regarded. (a) It would also be necessary to rely on the decision of the Privy Council in Re Southern Rhodesia (b) where, in that conquered colony, the fact that the indigenous people concerned had been driven from their tribal lands was held to be conduct of the Crown that indicated an intention not to respect any native title.

There is a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and enjoyment of lands of Aborigines. (c)

In the commentaries of Chancellor Kent and in some decisions of the Supreme Court of the United States we have very full and clear accounts of the policy in question. It may be summarily stated as consisting in the recognition by the Crown of a usufructuary title in the Indians to all unsurrendered lands. This title, though not perhaps susceptible of any accurate legal definition in exact legal terms, was one which nevertheless surfaced to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the Crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested. (d)

The three distinctions to which attention has already been drawn are spelt out in this extract-the ultimate or radical title in the Crown, and the pre-existing native title. The right of the English Crown to exclusive pre-emption is the corollary of the incapacity imposed upon the Indians of making any valid alienation to anyone else. This rule prevented any private acquisitions of title to land from the original

(a) Johnson v. M'Intosh (1823) 8 Wheat 543; Worcester v. Georgia (1832) 6 Pet 515.
(b) [1919] AC211.
(c) Calder's Case 190 per Hall J
(d) St Catherine's Milling and Lumbar Co. v The Queen (1887) 13 SCR 577, 608-9 per Strong J (later CJC). Affirmed in the Privy Council (1888) LR 14 App Cas 46. This part of Canada was both a conquered and ceded colony. Neither in the American nor in the Canadian cases however is any significance attached to the difference between a settled, ceded and conquered colony on this point, partly because either the common law was introduced at the time of settlement or it became the law of the land soon after the acquisition of sovereignty by conquest or cession and partly because there was no effective difference between the two concerning the recognition of pre-existing native titles.

213 Barbara Hocking -a high court challenge?

owners by new settlers to the colony and it was universally imposed in all English colonies. (a) By the rules of the common law, sovereignty and the ultimate radical title are in tho Crown which grants private proprietary rights that stem from this root of title. By the rules of the common law, all 'ownership' stems only from the Crown, and property titles can not be original in their creation after the common law has been introduced. Such a feudal doctrine did not apply to colonial powers that imported civil law to their colonies and it was Marshall CJ who provided the analysis that enabled the pre-existing and originally acquired root of native title to operate as a possessory right on the radical title of the English Crown. By virtue of the operation of the doctrines of the common law regarding the acquisition of title to land, it was not possible for the English Crown to pass on any private proprietary title until after the native title had been lawfully acquired or extinguished.

In Johnson v. M'Intosh, (b) Marshall CJ expounded the rules of International law in operation between the European nations as establishing a principle

that discovery gave title to the government by whose, subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it... the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it and to use it according to their own discretion; but their rights to complete sovereignty... were necessarily diminished, and

it led to a great deal of trouble in New Zealand land dealings and the New Zealand cases must be applied with this in mind. Here too Blackburn J completely misunderstood the operation of the rule contended for, and regarded the inability to alienate (either to other people or within the Aboriginal community itself) as an indication that the native title was not a matter of property. On the one hand, native titles are quite commonly inalienable within the community and, on the other hand, the inalienability of native title to anyone other than the English Crown is an influential part of the common law theory of the feudal origin of private property titles and clearly indicates that native title is a property right.

(a) It led to a great deal of trouble in New Zealand land dealings and the New Zealand cases must be applied with this in mind. Here too Blackburn J completely misunderstood the operation of the rule contended for, and regarded the inability to alienate (either to other people or within the Aboriginal community itself) as an indication that the native title was not a matter of property. On the one hand, native titles are quite commonly inalienable within the community and, on the other hand, the inalienability of native title to anyone other than the English Crown is an essential part of the common law theory of the feudal origin or private property titles and clearly indicates that native title is a property right.
(b) (1823) 8 Wheat 543.

214 Barbara Hocking -a high court challenge?

their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. (a)

Again, nearly ten years later, he reiterated this ruling - discovery by Europeans' gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.' (b)

The long line of cases must all be relied on to support the argument that these rules were part of the common law itself at the time it became the law in Canada, the U.S.A., Australia and New Zealand. It cannot be said to be clear whether or not some express statutory form of expropriation or of recognition was required. If it too were held to be a necessary element in the recognition of native title by the Crown, it is submitted that in Australia there is now a statute in which traditional Aboriginal ownership has been respected. (c) It is a federal Act and when it was passed it applied to a Commonwealth territory; a territory that is now a State. It is argued that this is the express statutory provision without which Blackburn J held in Milirrpum (d) that a doctrine of native title had no place in a settled colony.

It can also be argued that the traditional Aboriginal ownership still to be found in parts of Queensland, Western Australia and South Australia, upon which a claim for recognition would be based, has not yet been either recognized or extinguished by the Commonwealth government which, as has been pointed out, now has the right of preemption of native title. Since there has been express recognition of traditional Aboriginal ownership in the Northern Territory, then clearly it was still in existence and had not been expropriated. On the contrary, the continued reservation for the use and enjoyment of Aborigines of areas where traditional owners remained in undisturbed possession has become, since the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) part of the confirmation of native title culminating in its grant as a proprietary right. The conduct of the Crown has indicated an intention to uphold the pre-existing native title.

(a) Id. 572-4
(b) Worcester v. Georgia (1832) 6 Pet 515, 544
(c) The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
(d) (1971) 17 FLR 141

215 Barbara Hocking -a high court challenge?

There would be of course a further argument to pursue concerning the Commonwealth being required by the Constitution to acquire interests in land on just terms. (a) The High Court has held that this does not apply to a Commonwealth territory. (b) It has been held in the U.S.A. that their equivalent but differently worded constitutional provision does not extend to the Crown's exercise of its rights of preemption against the Indian title. (c) However, the High Court has already laid down a liberal interpretation of the 'just terms' provision in the Australian Constitution insofar as the acquisition of interests in land in a State are concerned, (d) and it may hold that this would apply to extant native title (e) whether situated in a State or Territory over which the Crown in right of the Commonwealth has therefore 'the exclusive right to extinguish (that native) title either by conquest or by purchase.' (f)

It is further submitted that in the exercise of this right of pre-emption, the Commonwealth clearly does not have to pay any compensation to the State government wherein the traditional Aboriginal land is situated for it is not, in relation to that State, acquiring property under s. 51(xxxi) of the Constitution, but exercising a sovereign right. Since this is the exclusive right to purchase-presumably on just terms -the original native title that has existed undisturbed since time immemorial, it can be argued that in relation to the traditional Aboriginal owners the Commonwealth would indeed be 'acquiring an interest in land' and bound accordingly to do so on 'just terms', if it decided to exercise its right of pre-emption by expropriating or confiscating (in express legislation) the native title rather than either purchasing it from or according proprietary status to the traditional Aboriginal owners. Furthermore, it should he borne in mind that in Canada and the USA it has been laid down the when the federal Crown exercises its exclusive right to purchase, or expropriate or confiscate, it is the

(a) The Constitution of Australia, s. 51 (xxxi)
(b) Tau v. The Commonwealth (1969) 44 ALJR 25. Thhis case has been criticised (1970) 44 ALJ 171.
(c) Tee-Hit-Ton Indians v. United States (1954) 348 US272
(d) See Barbara Hocking, (1979) 10 FLRev 161 at 181-3
(e) Ibid. That is of course only if there is any traditional Aboriginal ownership still unextinguished in some Australian states.
(f) St Catherine's Milling and Lumber Co. v. The Queen (1887) 13 SCR 577, 599-600 per Ritchie CJ

216 Barbara Hocking -a high court challenge?

State, not the Federal government, that then becomes the owner of the unencumbered land.

Until such time as the Commonwealth did decide by express legislation not to allow traditional Aboriginal ownership to continue, it is my contention that State government may not have the power to legislate concerning such land if that legislation infringed the rights of traditional Aboriginal owners, rights that have either been upheld by the Commonwealth or are awaiting the Commonwealth's exercise of its right of pre-emption.

If Australia were a conquered rather than a settled colony, it is argued here that there would be little if any significant difference in these rules and their operation. But this would only be so if the principles contended for as being part of the common law introduced into Australia at the time of settlement are those that are held by the High Court to apply here. It has always been considered to be clear law that, for the purposes of international law, there was no sovereign nation in Australia that was conquered by England when it claimed the radical title to Australia by right of discovery followed by settlement. (a) Classic international law denied legal personality to tribal groups. It i6 clear, however, that this is an over-simplification of the position. Lord Watson himself said in 1889 that there is a difference between:

'A colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully | annexed to the British Dominions. The Colony of New South Wales belongs to the latter class. (b)

Since that opinion was given, Blackburn J has held that there was a recognisable system of law in Australia in 1788 and there has been a clarification of the international law

Cooper v. Stuart [1889] 14 AC 286, 291 per Lord Watson. See the brief outline of the position in English law in Barbara Hocking, op. clt., 161-164. In a settled colony the members of an indigenous population automatically become British subjects whereas this is not the case in a conquered colony.

(a) Cooper v. Stuart [1899] 14 AC 286, 291 per Lord Watson. See the brief outline of the position in English law in Barbara Hocking, op. Cit., 161-164. In a settled colony the members of an indigenous population automatically become British subjects whereas this is not the case in a conquered colony.
(b) Ibid.

217 Barbara Hocking -a high court challenge?

on this question. (a) In an advisory opinion by the International Court of Justice concerning the status of the Western Sahara as a terra nullius or a territory belonging to no one when it was colonised by Spain in 1884, (b) the Court applied the rule of international law requiring it to look at the state practice of the relevant period (1884) to determine whether or not territories inhabited by tribes or peoples having a social and political organization were considered to be terra nullius. It advised that the state practice of that time indicated that such territories were not regarded as it belonging to no one and that

'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... These, whether or not considered as an actual 'cession' of the territory, were derivative roots of not original titles, and not obtained by occupation of terra nullius. (c)

Spain of course is a civil law country and had also claimed title to parts of what became the USA some centuries earlier.

The comments of Marshall CJ can be seen therefore to have even greater import than mentioned above. Not only was he establishing tile right to native title of the indigenous Indian tribes of the U.S.A., but he was also actually legitimising the root of title from which derived the structure of private property rights that had been granted by the English Crown. In his judgment in Worcester v. State of Georgia, he said:

(a) In the Status of Eastern Greenland case (1933) PC 1 J. Rep Ser A/R No 53 at p 47, the Permanent Court of International Justice regarded as terra nullius any territory inhabited by 'backward' peoples whose political organisations did not correspond to Western norms. Thus it followed that such territories vested automatically in the first 'civilised' power that chose to occupy them. But this case involved a dispute between Norway, who in 1933 claimed sovereignty over eastern Greenland, and Denmark, who had governed the whole territory since 1814. It is therefore an example of the operation of the rule of first discovery and settlement spelt out by Marshall CJ and does not conflict with the opinion later given in the Western Sahara case ICJ Rep (1975).
(b) ICJ Rep (1975), p 6.
(c) Id. 39 Emphasis added.

218 Barbara Hocking -a high court challenge?

America ... was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws.... (It was) ... in possession of a people ... whose general employment was war, hunting and fishing.
But power, war and conquest give rights, which after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions. (a)

Because Marshall CJ found that most of the U.S.A. was not uninhabited terra nullius, he had to regard the English Crown's radical title as derivative, not original, and for it to be lawfully acquired under the rules of international law as well as of the common law there had to be a cession by the previous occupants.

As Gibbs J (now CJ) pointed out in Coe's case:

'For the purpose of deciding whether the common law was I introduced Into a newly acquired territory, a distinction was drawn between a colony acquired by conquest or cession, In which there was an established system of law of a European type, and a colony acquired by settlement in a territory which by European standards, had no civilised inhabitants or settled law. (b)

It is submitted that this is consistent with the analysis made here-the common law was introduced in America because there was no European legal system in existence and its rules were those applied by Marshall CJ, and included its own rules concerning title to land and the rules of international law

'There has been theoretical argument about the acquisition of sovereignty over the American continent. At the time of Anglo-European settlement, it was regarded as discovered as between European nations but Marshall CJ refers to it as discovered or conquered as between the particular European nation following up its discovery with settlement and 'those already in possession, either as aboriginal occupants

(a) (1832) 6 Peters 515, 542-4. Emphasis added.
(b) Coe v. Commonwealth of Australia (1979) 53 ALJR 403, 408 per Gibbs J.

219 Barbara Hocking -a high court challenge?

or as occupants by virtue of a discovery made before the memory of man.'. As another judge has commented, 'Something more than sovereign grace prompted the obvious regard given to original Indian title.' The judgment in that case was based squarely on the recognition by the court of 'original Indian title' founded on their previous possession of the land. It was held that 'the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.

Therefore, there are rules of international law and rules of the common law that have the effect of requiring recognition of indigenous rights in colonial situations. To Marshall CJ, to the Privy Council and to the Canadian judges, the obligations on the Crown were the same whether arising from the prerogative attached to conquest or from the common law that accompanied settlement pursuant to discovery because:

'On discovery or on conquest the aborigines of newly-found lands were conceded to be the rightful occupants of the soil with a legal as well as a just claim to retain possession of it... and... discovery or conquest gave exclusive title to those who made it.'

Whether native title is 'a just claim' that ought to be recognized in Australia may be a 'political, not justiciable' question. If so, then it has been answered affirmatively by the Federal government. But the extent of the operation of this decision also involves 'truly judicial' issues that may arise for determination in the future. As a general rule, customary native law operates only among a community

(a) (1832) 6 Peters 515, 542-4 per Marshall CJ.
(b) United States v. Alcea Band of Tillamooks (1946) 329 US 40,
45-8 per Vinson CJ.
(c) Calder v. A-G of British Columbia (1973) 34 DLR (3d) 145, 195 per Hall J quoting Marshall CJ already set out in full above, p 213. Emphasis added.
(d) United States as Guardian of Hualpai v. Sante Fe Pacific Railroad Company (1941) 314 US 339, 347

220 Barbara Hocking -a high court challenge?

That is in possession of its own territory, (a) and whenever customary traditional land tenure is destroyed, so too is the social structure that was based upon it. In Australia, because of the unique spiritual element present in the Aboriginal systems of law and land tenure, the result of dispossession is that the system of law can no longer operate.

In the undefined area of whether land with a native population was occupied or vacant, the particular art of the common law flowered. Because of the failure to make a consistent distinction between a conquered colony and a settled one in a territory inhabited by native tribes, the law was able to evolve at the same time as population pressures created the facts upon which the Privy Council and the courts decided whether land was occupied, waste, conquered, ceded by consent or treaty, purchased, or vacant. (b) The process was thus a delicate balancing one, in which the desire of the Crown for peace and friendship with the natives of new colonies helped to moderate the rapacity of the newcomers for their land. The English and American courts upheld both parts of the rule of first occupancy as observed by European legal systems: first, original occupation gave rise to title respected by others, and secondly

(a) There are common law rules for determining whether or not customary traditional, ie. native law, including some form of land tenure, exists. The condition. for recognition of a customary rule by the common law courts have been said to be:

(a) that the rule concerned had existed as a rule of conduct from time immemorial

(b) that it had been continuously observed;

(c) that enjoyment of its benefits had been peaceable;

(d) that it had been recognized as having force as an obligatory rule;

(e) that it had sufficient certainty in operation;

(f) that it could be seen to be reasonable;

(g) that it did not conflict with another rule accepted as having obligatory force.
Derham, 'Law and custom in the australian Territory of Papua and New Guinea', 30 University of Chicago Law review (1963) 495, 500. See, too, Hanasiki v. O.J. Symes (1951) Solomon Islands (unreported), a judgement of Charles J, wherein the common law rules for upholding customary law and title were applied in a protectorate before their statutory recognition, reprinted in Hocking, op. Cit., footnote a, p.221. Appendix B; Tito v. Waddell (No 2) [1977] 2 WLR 496.
(b) cf. the judgements of Lord Mansfield in R. v. Vaughan (1769) 4 Burr 2495; 98 ER 308 and Campbell v. Hall (1774) 1 Cowp Rep 204; 98 ER 1045 with that of Holt CJ in Blankard v. Galdy (1693) 2 Salk 411; 91 ER 356.

221 Barbara Hocking -a high court challenge?

the first European nation to discover and settle an area already inhabited by non-European natives acquired a title upon which the original occupants had a recognized and protected right of possession. (a) This 'better right to possess' was not equated by the courts with a 'might is right' attitude unless the facts had outstripped the adjudication because 'humanity demands and a wise policy requires, that the rights of the conquered to property should remain unimpaired. (b) Although the policies adopted by the European nations towards their native people attempted to observe these principles, it was common for the home government of a new colony established in previously inhabited territories to be unable to establish law and order in frontier 'colonial' areas until the movement of populations had become stabilised.

Local courts recognized such legal 'facts of life' lay superimposing the common law rules that transfer title onto those principles of international law that recognized both the original title established by immemorial possession, and the sovereignty gained by discovery.
It can be seen that

'All through the cases... runs the basic question whether the acquisition of wealth by superior force establishes a right to legal protection of such acquisitions. Whichever way you answer the question, whether you answer that might makes right, or answer it the other way, you are answering a basic question of ethics, or theology, or whatever else you want to call the study of values, of good and bad. (c)

When these factors are present, together with the 'question of weighing conflicting social policies against each other', (d) then the situation is one in which the very 'stuff of law' (e) itself has arisen. It is in this sense that courts can create the law, and it is in the few cases that require decisions of this nature-ones

(a) Hocking, Native Title Land rights (LL.M. Thesis, Monash University, 1970) Chapters 2 and 3.
(b) Johnson v. M'Intosh (1823) 8 Wheat 543, 589 per Marshall CJ.
(c) Cohen (ed.), The Legal Conscience (New Haven, Yale University Press, 1960), p 164.
(d) Cohen, 'Dialogue on Private Property' (1954) 9 Rutgers Law Review 357, 383.
(e) Derham, 'Theories of Legal Personality' in Webb (ed.) Legal Personality and Political Pluralism (Melb. Univ. Press, 1958), p 12.

222 Barbara Hocking -a high court challenge?

That state an existing fact situation that is part of the system's social structure, but unavoidably affect the future balance of both facts and social structures by the judgment made - that it becomes a part of their proper function for courts, particularly federal ones, to take judicial notice of considerations that would otherwise be 'extra-legal.' In Australia there are still some areas where, in the absence of decisive political action, the High Court, in its role as the legal balance of our society, may have to 'do this duty, however unpleasant',. and determine what is the position with regard to remaining Aboriginal possession and formulate the nature of any property ownership that is created by that possession. In this way it will be possible to accord ethical arguments their proper place and influence, alongside those other more practical factors that help to create the recognition of original native titles by the colonial powers of Europe, for all of these legal considerations were the 'stuff' of the policies upon which the judgments of the Privy Council and the Supreme Courts of Canada and the USA were based.

They may play a part in determining whether surviving traditional Aboriginal owners are held by the High Court to have 'a just and a legal claim' to their Australian lands.

Keywords: conference, Hocking, Barbara, The Townsville Conference, 1981

'Is might right? An argument for the recognition of traditional Aboriginal title to land in the Australian courts', paper presented by Barbara Hocking at the Townsville Conference, 1981.
Author: Kenna, Jonathan
Source: Hocking, Barbara