Dominello, Francesca --- "In a World Without a Sovereign: Native Title Law in Australia" [2008] ELECD 312; in van Schooten, Hanneke; Verschuuren, Jonathan (eds), "International Governance and Law" (Edward Elgar Publishing, 2008)

Book Title: International Governance and Law

Editor(s): van Schooten, Hanneke; Verschuuren, Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207272

Section: Chapter 10

Section Title: In a World Without a Sovereign: Native Title Law in Australia

Author(s): Dominello, Francesca

Number of pages: 23

Extract:

10. In a world without a sovereign:
native title law in Australia
Francesca Dominello

1. INTRODUCTION

In Mabo v Queensland (No. 2)1 the High Court of Australia held, by a six-
member majority, that the Meriam people, the recognized indigenous
inhabitants of the Murray Islands, were entitled, as against the whole
world, to possession, occupation, use and enjoyment of the lands of the
Murray Islands.2 For the first time in Australian law a form of indigenous
native title was found not only to exist, but also to have pre-dated and to
have survived the acquisition of British sovereignty over the Australian ter-
ritories. The Court's formulation was grounded in the common law: the
common law recognized that native title did exist; however, the content of
native title would arise from the traditions and customs of the indigenous
peoples themselves.
In order to facilitate the common law recognition of native title, the
Court first considered it necessary to reject the terra nullius doctrine as
forming any part of Australian law.3 The Court found that the terra nullius
doctrine had operated to deny any indigenous rights to land through the
characterization of Australia at the time of first settlement as a land
belonging to no one. This legal characterization had found support from a
line of judicial pronouncements that had declared the continent to be in
effect `desert and uncultivated'4 at the time of British settlement.
Before Mabo indigenous customary law only had the status of ...