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...Territory practically unoccupied...
Prior to the High Court's decision in Mabo No. 2, Australian courts had defended the doctrine of terra nullius.

The 1889 decision in Cooper v Stuart concerned the validity of a reservation inserted into a grant of land made by the Governor of the Colony of New South Wales which was made prior to 1824. As Garth Nettheim notes in his writings in the Terra Nullius stream, the Privy Council 'had to decide whether the laws of England operated in the colony at the time of the grant. They held that New South Wales should be treated as a settled colony as at 1788, such that applicable English law arrived with the first settlers.'

The Privy Council stated that:
'[t]he extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to the circumstances. There is a great deal of difference between the case of 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 when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class. ... There was no land law or tenure existing in the Colony at the time of its annexation to the Crown.' (1889) 14 App Cas 286 at 291

As Justices Deane and Gaudron noted in their judgements in Mabo No 2, the Privy Council's judgment in Cooper v Stuart 'was thereafter seen as authoritative, establishing that the territory of New South Wales had, in 1788, been terra nullius not in the sense of unclaimed by any other European power, but in the sense of unoccupied or uninhabited for the purposes of the law'.

This position was further entrenched by the 1971 decision of Justice Blackburn of the Federal Court in Milirrpum v Nabalco and the Commonwealth (1971) 17 Federal Law Reports 141, more commonly referred to as the Gove Land Rights case. The case was brought by representatives of the 11 clans of the Yolgnu people from Yirrkala on the Gove Peninsula. Bauxite had been discovered there in 1953 and mining leases had been granted by the Federal Government without any consultation with the traditional owners. In 1968 a lease was granted to Nabalco allowing the company to mine bauxite and to establish a township for the mineworkers. Deeply concerned at both the potential social impacts and the dangers to sacred site protection posed by this development, the plaintiffs commenced an action in the Federal Court which challenged the doctrine of terra nullius and asserted their communal native title over the lands subject to the lease.

Justice Blackburn acknowledged that the evidence from the Yolngu plaintiffs: '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 men', it is that shown in the evidence before me.' (1971) FLR 141 at 267.

Nevertheless, Justice Blackburn felt constrained by precedent to hold that the doctrine of communal native title was not recognised by the common law: '[the authorities] all affirm the principle, fundamental to the English law of real property, that the Crown is the source of title to all land ... On the foundation of New South Wales, therefore, and of South Australia, every square inch of the territory in the Colony became the property of the Crown.' (1971) FLR 141 at 245.

To succeed in overturning the terra nullius doctrine was clearly a formidable challenge.
Keywords: Australian Court Case, Blackburn, Justice, Cooper V Stuart, doctrine of tenure, Federal Court of Australia, Gove Case, Mabo v Queensland No.2, Milirrpum v Nabalco Pty Ltd, 1971 , mining, Nabalco, Nettheim, Garth, New South Wales, Northern Territory, Privy Council, terra nullius, Yirrkala, Yolgnu, 1889-1991

Author: Kenna, Jonathan