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Indigenous Law Bulletin

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Williams, Kevin --- "Book Review - The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia" [2006] IndigLawB 28; (2006) 6(19) Indigenous Law Bulletin 2

Book Review

The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia

Michael Connor, Macleay Press, 2005

review by Kevin Williams

Michael Connor, the author of The Invention of Terra Nullius, attacks the Mabo v Queensland (No 2)[1] (‘Mabo’) decision for its references to terra nullius, a term that he cannot find in the documentation of the British acquisition of Australia, and which does not have a single, precise agreed meaning.

In popular discourse, terra nullius is now, unfortunately, synonymous with Mabo and I agree it has been used out of context. However, it is quite wrong to suggest that the recency and vagueness of the term vitiates the Mabo decision. Bartlett, in the leading textbook on native title, argues that the same conclusions about native title could have been reached without reference to terra nullius.

Connor found reading Mabo ‘confusing’. I assume he too is confused. Correct legal reasoning by the High Court led to the recognition of the pre-existing rights of the original inhabitants of Australia. The High Court dealt with those pre-existing rights. The argument of the majority started with the fact that the British Crown acquired sovereignty over Australia. This acquisition did not have to be justified under domestic (or common) law, but the means of acquisition was important under international law. International law recognised three primary methods of acquisition: conquest, cession and settlement or occupation of land regarded as belonging to no one.

It is true that the term terra nullius was not used in common law at the time. Land was described as ‘practically unoccupied, without settled inhabitants or settled law’[2] or ‘deserted’ or ‘uncultivated’ or ‘uninhabited’.[3] The effect was the same and nothing turns on the fact that the judges in Mabo sometimes used the term terra nullius for the common law doctrine that had no succinct name.

The question remained whether rights in land were automatically destroyed when sovereignty was acquired. Even dissenting Justice Dawson was in agreement on this point:

There is ample authority for the proposition that the annexation of land does not bring to an end those rights which the Crown chooses, in the exercise of its sovereignty, to recognise.[4]

This left two issues that were critical in Mabo. The first was whether the existing rights required positive recognition by the Crown if they were to survive, or continued until they were extinguished by some act of the Crown. The majority took the latter view and went on to hold that for most of the land in the Murray Islands there had been no act of extinguishment.

The second issue was whether the Aboriginal inhabitants had rights of a kind that the common law could or would recognise. The court referred to a line of authority to some peoples ‘too low in the scale of social organization to be acknowledged as possessing rights and interest in land.’[5] The High Court refused to incorporate this doctrine in Australian law on the grounds that it was racially discriminatory.

It is a complete misreading of the Mabo decision to think that it depended on any mistaken views about the place of the terra nullius doctrine in the common law. It was based on consideration of common law decisions going back to the English conquest of Wales and Ireland (Case of Tanistry (1608)),[6] or made in other common law countries that faced similar problems - Canada, New Zealand and America. To the extent the court departed from previous decisions, it was in the exercise of its duty as Australia’s highest court to continue the development of the common law that has been the function of superior courts for centuries. Justice Brennan said:

If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. The fiction by which the rights and interests of Indigenous inhabitants were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.[7]

Connor emphatically states ‘The Mabo decision is wrong.’ I would suggest his understanding of legal reasoning is flawed and his conclusion unjustified. Mabo wasn’t about terra nullius. It was about recognising rights in land that existed prior to the acquisition of sovereignty.

Law does not exist in a vacuum; it evolves and changes with society. What Mabo did was drag Australia into the 20th Century by recognising something that had been recognised in other colonised lands: the pre-existing rights of the original inhabitants. The rights of Canada’s first peoples were recognised as far back as 1763, in the United States in the early 19th Century and in New Zealand in 1841. Was it too little to expect that Australia might finally catch up, in the eyes of the law, to the rest of the world?

Kevin Williams is a Lecturer in Law at the University of Newcastle. He is a descendant of the Wakka Wakka people.

[1] [1992] HCA 23; (1992) 175 CLR 1.

[2] Cooper v Stuart (1889) 14 App Cas 286.

[3] Blackstone Commentaries, Bk 1, Ch 4, 106-108.

[4] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 123 (Dawson J).

[5] In Re Southern Rhodesia (1919) AC 211, 233-234 (Lord Sumner) as cited in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[6] Davis {28 ER 516].

[7] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 41-42 (Brennan J).

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