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Van Krieken, Robert --- "From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship" [2000] UNSWLawJl 3; (2000) 23(1) UNSW Law Journal 63



When a story is well told, I park my analytic faculties at the door.[1]

The success of the critique of legal positivism has been such that there is in current legal thought a widespread adherence to the idea that normativity – with norms understood as ‘morals’, ‘ethics’ or ‘principles’ – is central to law, and that moral integrity in the legal field is closely tied to a critical attitude towards the past.[2] Legal positivism and the framing of judgments in terms of precedent or ‘good law’ risks being equated, then, with a hide-bound inability to adjust to the changed nature of the current moral community. Precedent, wrote Sir Anthony Mason, “brings in its train... a mode of argumentation which... is preoccupied with past decisions and dicta, and an inability to respond to the need for change”.[3]

Both the sympathetic supporters[4] and the hostile critics[5] generally view the Mabo[6] judgments in this light. In the sympathetic version, particular judicial decisions and past legal doctrines are seen as embodying principles regarding the nature of civilization and racial equality to which ‘we’ no longer adhere, confronting the High Court with a choice between an (amoral) adherence to existing legal authority and a (moral) overturning of that authority in conformity with current values. As Brennan J stated:

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.[7]

Deane and Gaudron JJ voiced a similar view of the law’s role in acknowledging and retreating from “past injustices”.[8] Kathy Laster affirms that Mabo is an example of “a judicial response to changing values”, a set of judgments where “the judges of the High Court noted attitudinal changes in the community towards Aboriginal people and, despite precedent, six of them were prepared to overrule decisions which they felt belonged to a bygone age”.[9] The political storm which then broke out over the decision concerned whether it was appropriate for the High Court to be taking this step in renovating the common law, or whether such a task should properly be left to Parliament.[10]

At the centre of the conflict between legal authority and ‘contemporary values’ which has been most visibly at issue in the debate over the Mabo judgment is the doctrine of terra nullius – the consideration of a territory as “practically unoccupied” if occupied by indigenous peoples who do not cultivate the land. It is the rejection or overruling of this ‘doctrine’ which is generally said to constitute the High Court’s judicial activism and its concession to ‘contemporary values’, to underlie the legal recognition of native title,[11] and to restore the legitimacy of Australian law in relation to its indigenous peoples.

I would like to address two issues raised by the framing of the character of the decision in this way. First, as Richard Bartlett has explained, “[t]erra nullius is not a concept of the common law, and it had never been referred to in any case prior to Mabo as justifying a denial of native title”.[12] With Henry Reynolds[13] providing the leading exception, very little of the scholarly discussion of native title or Aboriginal land rights prior to Mabo found it necessary either to raise or to address the concept of terra nullius.[14] What, then, was being ‘overturned’, and what was the point of doing so? Second, both Justice Dawson’s dissenting judgment and the earlier judgment of Blackburn J in Milirrpum[15] were no less normatively based than the majority in Mabo, and no more concerned to base their legitimacy on the authority of the common law. In the Mabo judgments, we see not a choice between a particular normativity and a strict legal formalism which is somehow non-normative, but rather a choice between different articulations of norms and law, varying combinations of different interpretations of common law authorities and diverging moral orientations. The problem raised by the foregrounding of the moral dimensions of the Mabo judgments’ entrepreneurship is, as Tim Rowse has remarked:

To reason in moral terms about the nation’s very foundations in law, about the ‘traditional’ and adapted ‘moralities’ of indigenous peoples and about the sympathies of contemporary Australians, is to engage with matters that are not so much imponderable as endlessly ponderable, because they are not amenable either to final pronouncement or to definite arbitration by reference to ‘the facts’.[16]

Rather than settling too comfortably into either the self-congratulatory normative certitude or the outraged political condemnation of the so-called ‘rejection of terra nullius’, I will suggest that perhaps the moral tale of the slaying of terra nullius has been a story told a little too well. The overall aim will be to work towards a more careful and modest reading of the legal, political and ethical significance of the Mabo judgments, a particularly important example of judicial venturing into the normative realm, and a form of essentially ethico-political activity which I shall refer to as the High Court’s “moral entrepreneurship”.[17]


What was the legal precedent facing the High Court when it considered Mabo? Strictly speaking, there was only one case: Milirrpum, which had been presided over by Blackburn J of the Supreme Court of the Northern Territory. A proper understanding of the Mabo judgments, especially what they are meant to have ‘overturned’, depends on a familiarity with Mabo’s ‘prehistory’, the Milirrpum case. This prehistory has been obscured by the triumphalism of the leading Mabo judgments as well as the debate following Mabo, both of which tend to gloss over some of the central features of Justice Blackburn’s reasoning in order to preserve the consistency of the idea of a ‘doctrine of terra nullius’. The questions at issue in that case were: did Australian common law include recognition of a doctrine of ‘communal native title’? And did the plaintiffs have a proprietary interest in the land in question?

Blackburn J identified a number of hurdles which needed to be cleared before both these questions could be answered in the affirmative. His Honour’s first reason for rejecting the plaintiff’s claim was one of fact, namely that the plaintiffs had not established that their links to the relevant land were the same as their predecessors’ in 1788. Second, he found that as a matter of law, regardless of what new interpretations of the facts might conclude, New South Wales had to be regarded as a settled or occupied territory, rather than a conquered or ceded one.[18] Third, he found that Australian courts binding on his own had identified the Crown as “the owner in demesne of all the land of New South Wales immediately the settlement was established”.[19] Fourth, he found that there was no doctrine of communal title in English law as it applied to settled colonies. Fifth, he found that the plaintiffs could not demonstrate an interest in land that could be recognised in Australian law as “proprietary”.

Blackburn J did not use the concept terra nullius explicitly; if it could be said to play an implicit role in the judgment, it was in his finding that New South Wales was to be regarded as a settled or occupied territory, rather than as a conquered or ceded one. What then followed from this was that “in principle from the moment of the foundation of a settled colony English law, so far as it was applicable, applied in the whole of the colony”.[20] For Blackburn J there was, then, no question of the recognition or incorporation of indigenous sources of law. However, what was decisive for the direction of Justice Blackburn’s argument specifically in relation to native title was not this conclusion. Rather, it was his response to the question of “whether English law, as applied to a settled colony, included or now includes a rule that communal native title where proved to exist must be recognized”.[21]

A crucial element of His Honour’s reasoning in answering this question was his third finding, viz from the time of settlement, the Crown held title to all unalienated land. This land was considered ‘waste land’ and the Crown as possessor held the beneficial as well as the radical title to such lands. The basis for this doctrine is found in a number of High Court cases,[22] which Blackburn J held he was bound to follow .[23] This led inexorably to his fourth conclusion, that there was no doctrine of communal native title in either English or Australian common law, and that “wherever the principles for which Mr Woodward contended have to any extent been put into practice, that has been done by statute or by executive policy”.[24]

It is also of interest to note Justice Blackburn’s final finding concerning the nature of the plaintiffs’ interest in land, since it qualifies his conclusion that the colony was in law to be considered as ‘settled’. His Honour responded to defence counsel’s assertion that the plaintiffs’ had no recognisable system of law at all, let alone a proprietary interest in land, by stating that he did not find himself “much impressed by this line of argument”. His Honour declared:

I am very clearly of the opinion, upon the evidence, that the social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence 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 of men”, it is that shown in the evidence before me.[25]

The differences between the Australian Aboriginal system of law and the English system of law were, then, “differences of degree”.[26] His Honour proceeded to declare that those differences were significant and that the plaintiffs’ interests in land were “not in the nature of proprietary interests”.[27] He remarked, however, that this was not because he regarded them as so low in the scale of social organisation that they could not possibly display such an interest. It was Justice Blackburn’s characterisation of proprietary interests, which emphasised the exclusionary and individualistic aspects of the concept of property, which precluded the plaintiffs’ interest in the land from being legally recognised. Among the critics of Justice Blackburn’s characterisation of proprietary interests is Nancy Williams, who argues that his decision “affirmed the principles underlying the rights of the citizen isolate as individual economic man, principles basic to assumptions of Australian law in 1970”.[28]

Most importantly, of all the five elements of Justice Blackburn’s reasoning, the second concerning the colony as a “settled or occupied” territory, rather than a “conquered or ceded” one, should be seen as the least significant in settling His Honour’s construction of native title. As we shall see, it was an interpretation with which the Mabo judgments would agree. Whether indigenous law survived was not at issue, and ‘native title’ is not a concept in Aboriginal law;[29] ‘settled’ or ‘conquered’, terra nullius or not, the question to which Blackburn J was turning his mind was whether English and Australian common law recognised native title in either settled or conquered territories. The answer would be the same in both cases. This means that it makes no difference whether or not the colony was regarded as terra nullius in the ‘restricted’ sense of a settled rather than conquered or ceded colony.[30] In other words, Blackburn J could also have “overturned the doctrine of terra nullius”, but his position on other points of law would have led him to the same conclusion. Far more decisive – and this is the real departure of the Mabo judgments, as we shall see – is the separate question of whether the common law of England and Australia equates the radical title acquired by the Crown on assuming sovereignty with absolute beneficial title.


In handing down a judgment which accorded with Lord Denning’s, but for different reasons, Lord Diplock once exclaimed “[a]fter all, that is the beauty of the common law; it is a maze and not a motorway”.[31] The Mabo judgments display two quite different conceptual and rhetorical routes through the maze of the common law towards settling the question of native title; one operating with a ‘restricted’ conception of terra nullius (Australia as a settled colony), and the other with an ‘expanded’ notion of terra nullius (Australia as settled and practically unoccupied).

Brennan J identifies a central basis of the notion that the Crown acquired absolute beneficial title on assuming sovereignty as being the idea that “there is no other proprietor”. He notes that this idea in turn depended on the ‘expanded’ conception of terra nullius:

It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other.... the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land.[32]

Similarly, Deane and Gaudron JJ propose that “inevitably”,

... one is compelled to acknowledge the role played, in the dispossession and oppression of the Aboriginals, by 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 of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgments of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands.[33]

These formulations are thus organised around the expanded’ conception of terra nullius, as well as around the question of whether the Crown’s radical title is to be equated with beneficial ownership.

Brennan J, for example, states that the existing authorities lead him to the conclusion that it is “preferable” in relation to title to land, to equate the inhabitants of settled colonies with those of conquered territories,[34] rendering the ‘restricted’ concept of terra nullius immaterial. His Honour also noted that:

[T]he dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists.[35]

This means that the common law was actually immaterial to the dispossession of Australian Aborigines, and if there was any legal foundation to that dispossession, it was not the ‘doctrine of terra nullius’. As David Ritter explains, “the colonists required no legal doctrine to explain why Aboriginal people’s land rights were not to be recognized under law because no doctrine was required for what was axiomatic”.[36]

Ian Hunter suggests that this renders the Mabo judgment a particularly weak form of recognising indigenous rights, being only given real force by legislation.[37] In reality, however, this is simply an observation of the way the common law and the courts always relate to government and ‘acts of state’, certainly in relation to the entire history of colonisation and the inexorable dispossession of indigenous inhabitants. Indeed, prior to Mabo, Les Hiatt remarked on the tendency to overlook the fact that Milirrpum was followed by the Woodward Royal Commission and the Aboriginal Land Rights (NT) Act 1976 (Cth), which provided a statutory establishment of Aboriginal land ownership arguably firmer than the kind of common law recognition in Mabo. “With hindsight”, wrote Hiatt, “we could reasonably say that the case was a legal battle that the Aborigines of the Northern Territory had to lose in order to win the war”.[38] In any case, the concern here is a different one, with the problems associated with the peculiarly normative way in which majority judgments in Mabo framed that relationship between law and government.

Deane and Gaudron JJ also paint a scenario in which the rights associated with common law native title had always been binding on the Crown, but that for all practical purposes,

there is an element of the absurd about the suggestion that it would have even occurred to the native inhabitants of a new British Colony that they should bring proceedings in a British court against the British Crown to vindicate their rights under a common law of which they would be likely to know nothing.[39]

Their Honours also point out the major – indeed, fatal – flaws in the four Australian cases[40] which support the “two propositions”: they consisted of “little more than bare assertion”, they were not concerned with Aboriginal title to land, and the relevant comments are all dicta.[41] We are also asked to accept the notion that it is the very poverty of their reasoning which establishes the “formidable” authority of these four cases, since it “tends to emphasise the fact that the propositions were regarded as either obvious or well settled”.[42]

Richard Bartlett has correctly identified these comments as overstating the significance of the dicta of the Australian cases, as well as pointing out that the “authority” which the three Justices presented themselves as sparring with was largely illusory.[43] Toohey J observed that the plaintiffs accepted that the territory in question had been settled rather than conquered or ceded, but this did not mean that their land should be treated simply as vacant land, and this problem simply fails to be adequately addressed by the relevant Australian cases.[44] Indeed, as Toohey J states, the common law position is that “previous interests in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them”, which means that “the onus rests with those claiming that traditional title does not exist”.[45] Toohey J also points out that the line of authority which led Blackburn J to his conclusions is countered by another which ought to be regarded as more persuasive, namely the “doctrine of continuity” expressed in the Privy Council African cases, which presumes the continuance of existing property rights upon colonisation.[46] For Toohey J, making indigenous inhabitants trespassers on their own land was not simply contrary to current moral principles, it was “at odds with the basic values of the common law”, as it has always operated.[47]

The majority in Mabo agreed with Blackburn J that, at law, Australia is to be regarded as a “settled” colony, so that English common law “subject to appropriate adjustment, automatically became the domestic law of the colony”, with limited possibility of recognition of indigenous law. Thus, the ‘restricted’ conception of terra nullius was left entirely intact.[48] The two interconnected questions at the heart of the Mabo judgments were: first, whether the English feudal doctrine of tenure should be interpreted in such a way that the Crown’s radical title is to be equated with absolute beneficial title to all land in the Colony (no matter how a colony is classified – settled, conquered or ceded), as apparently indicated by the dicta concerning the ‘waste lands’ cases;[49] and second, whether native title had only been recognised in common law jurisdictions in legislation or executive policy, as Blackburn J had held? The majority of the High Court answered both questions in the negative, for reasons of law, not in response to community values nor to formulate a different approach to a supposed doctrine of terra nullius.

On the first question, the majority in Mabo decided that the feudal doctrine of tenure is, and always has been, entirely compatible with survival of native title. “What the Crown acquired”, wrote Brennan J, “was a radical title to land, a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land”. Where the Crown’s political power to disregard native title had not actually been exercised, “there is no reason to deny the law’s protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown’s acquisition of sovereignty”.[50] The only real barrier to recognition of such residual indigenous rights in land was the assumption in Attorney-General v Brown that “all lands of the Colony were relevantly unoccupied at the time of its establishment”.[51] But this is a question of fact, not law, which any concrete evidence of indigenous occupation settles. To presume non-occupancy – populus nullus as Barbara Hocking terms it[52] – is simply factually incorrect and an embarrassment to Australian law in terms of reason and logic, quite apart from its moral dimensions.[53]

In relation to the second question, only Justice Dawson’s dissenting judgment followed Justice Blackburn’s interpretation in arguing that native interests in land have to be explicitly recognised by a new sovereign if they are not to be regarded as having been extinguished on the acquisition of sovereignty. The majority felt themselves well persuaded by the:

many precedents in the Privy Council, African, Canadian, USA, New Zealand, New Guinea, the Solomon Islands and other cases in the long line of authority bearing on this point..... all holding that the Crown’s radical title is subject to (burdened, reduced, or qualified by) the prior interests.[54]

Justice Hall’s position in Calder v Attorney-General of British Columbia[55] was treated as representing the correct interpretation of the common law, namely that “the aboriginal Indian title does not depend on treaty, executive order or legislative enactment”, and that Justice Blackburn’s construction of the North American authorities was “wholly wrong”.[56]

The difference between Milirrpum and Mabo was not, then, that Blackburn J accepted a supposed ‘doctrine of terra nullius’ and the majority in Mabo did not. There is no dispute between the two judgments about the treatment of Australia as a ‘settled’ colony and whether English common law became domestic law on the acquisition of sovereignty, nor did Blackburn J regard the Australian Aborigines as being so “low on the scale of social organisation” that their physical presence should be legally ignored. Where they did differ was in their construction of the relevant legal authorities. Blackburn J held that they indicated that beneficial title was acquired by the Crown along with radical title, and that native title had only been recognised in statutory executive action. In contrast, the majority in Mabo found that the authorities, including the Privy Council and the Australian High Court itself, overwhelmingly compelled one to the opposite conclusions on both these questions.


Jeremy Webber has suggested that the recognition of native title in Mabo is the result of a particular type of moral inquiry, and that its jurisprudence is a “jurisprudence of regret”[57]. The retention of terra nullius in Australia had become increasingly anomalous, “an archaic leftover profoundly out of step with the contemporary direction of Australian law”.[58] Faced with the ongoing presence of a particular legacy in the law, the High Court “had either to perpetuate or renounce it”.[59] Referring to Kent McNeil’s work,[60] Webber argues that “treating Mabo as though it were simply a rectification of a mistaken interpretation of the common law of indigenous title begs the essential question: why should Australia follow that law? It has not done so for 200 years”.[61]

The difficulty with this interpretation is that there was no real legacy of law concerning either terra nullius or native title to be followed at all. As Ritter notes:

[W]hile the Australian colonies were indeed judicially classified as “desert and uncultivated”, and Aboriginal people were apparently treated as having no common law right to their traditional lands, there was no judicial decision that created a nexus between the former legal proposition and the latter historical fact. That is, no early Australian or English case ever stated that because Australia was “terra nullius” or “desert and uncultivated”, Aboriginal people possessed no common law right to their tribal lands.[62]

There were dicta in four cases regarding the nature of Crown title to land,[63] a certain line of authority from the Indian Privy Council cases suggesting, weakly and arguably, that native title only exists under statutory provision, and only one Australian decision, Milirrpum, by a relatively junior court, directly concerned with the question. It is problematic to speak of Australia following a particular interpretation of the common law of indigenous title before 1971, since Milirrpum was the first and only time the question had come before an Australian court.

As James Crawford remarked in 1989, the doctrine of communal native title had been “treated ‘on the ground’ as inapplicable, and there were for 150 years no judicial decisions to confirm or set against that calculated ignorance”.[64] Milirrpum was never appealed, although there was the Woodward Royal Commission and the legislative efforts to correct Milirrpum’s outcome,[65] (the effectiveness of which there is a tendency to underestimate). Mabo was the first opportunity the Australian High Court has had to turn its mind to the question. The essential weakness of the supposed ‘legacy’ being overturned in Mabo is apparent in the judgment of Toohey J, who finds it unnecessary to ‘overturn’ terra nullius at all, because he correctly sees no reason to dignify the mere presumption of the absence of indigenous occupation with the designation of a legal ‘doctrine’ requiring ‘overturning’.[66]

Although there is clearly ‘regret’ running through the judgments of Brennan, Deane and Gaudron JJ, I would suggest that it actually plays only a relatively minor role in their jurisprudence. The reception of Justice Blackburn’s construction of native title prior to Mabo, both in scholarly discussions[67] and in related decisions in other jurisdictions,[68] has been almost universally critical of the judgment without any reference to terra nullius, for the simple reason that it was jurisprudentially irrelevant, to native title at least. If the practitioners of Australian colonialism have been able to grin smugly at us across the two centuries prior to 1971, it is not because they have made such astute use of law in dispossessing the Aborigines; it is precisely because they have managed to evade law, to keep questions of indigenous interests in land out of law’s reach, and wholly within the realms of politics and administrative governance.

Henry Reynolds has been influential in introducing the concept of terra nullius as a touchstone for understanding the history of Aboriginal dispossession, but until Mabo, the role of substance played by terra nullius in Australian law has been in relation to questions of sovereignty, and this is an issue the High Court has much less accommodating views on.[69] That is why Garth Nettheim describes the judgment as “no ‘judicial revolution’, but a careful and scholarly application of established common law principles and methods”,[70] and why Bartlett sees the decision as determined by “the overwhelming dictates of the jurisprudence in every other part of the common law world”, and considers that in presenting themselves as “making law” in Mabo, Brennan, Deane and Gaudron JJ “overstated the extent to which the court was engaged in such a role”.[71]

A central problem with the idea of the law being responsive to ‘the contemporary values of the Australian people’ is that such values have no objective, absolute existence, and it is unclear how High Court Justices might present their understanding of community values as having any persuasive authority. Values, norms and moral principles are inherently contested in advanced industrial societies, especially those which we can characterise as liberal democracies. Law, as we understand it today, only emerges in those social contexts where it is not possible to rely on shared values to reproduce social order, integration and cohesion. There are, it is true, constant appeals made to ‘community values’, but such appeals are rhetorical strategies to generate support for a particular position within a moral debate, attempts to construct a particular moral community, rather than descriptions of a value consensus which actually exists.[72] When the High Court asserts that it is responding to ‘the contemporary values of the Australian people’, it is in fact choosing to play an active role in the construction of those values in a particular image, acting as a moral entrepreneur, rather than simply reflecting something that exists independently of itself.

This is not the place to discuss the virtues and difficulties of such moral entrepreneurship in any detail, but it is clear that both the decision to undertake it and the way in which it is undertaken have little to do with a choice between legal formalism or a responsiveness to surrounding community values, for the simple reason that precedent and legal authority can be utilised in a multiplicity of ways. The difference between Mabo and Milirrpum lay not in the differing attitudes to legal precedent, but in the ways in which it was used, and Brennan, Deane and Gaudron JJ were no less concerned to buttress their arguments with legal authority than was Blackburn J. Precedent is often, and certainly was in this particular case, not unified, and there were several ‘lines of authority’ to be drawn on, allowing for a significant degree of discretion as to how those differing lines of authority would be related to each other. The law’s appeals either to authority and precedent, or to “the contemporary values of the Australian people” are best understood, then, as no more, and also no less, than different rhetorical strategies for its legitimation in relation to other forms of discursive power.[73]

As such, the ‘rejection of terra nullius’ is arguably more about Australian history and moral community than Australian jurisprudence. It also had the rather perverse effect, in the subsequent public debate around the decision, of diverting our attention from the fact that there were strong reasons of law to recognise native title, and made the High Court far more vulnerable to the criticism of ‘excessive judicial activism’ than the substance of the case itself demanded. The effect of the foray by Brennan, Deane and Gaudron JJ into moral entrepreneurship was the almost entire disappearance from public view of the fact that both Milirrpum and Justice Dawson’s dissenting judgment were indefensible in a very straightforward legal and logical sense, quite apart from one’s moral position regarding the ‘unutterable shame’ of Australia’s past treatment of its indigenous population. It also provided an almost endless supply of rhetorical hostages and an easy ideological target for those commentators eager for an opportunity to flay the Hasluckian vision of monocultural assimilation back to life. If we agree that the achievement of something recognisable as ‘justice’ by both indigenous and non-indigenous Australians is clearly a desirable objective, and if that can be achieved modestly with sound judicial analysis, it remains an open question whether the Justices of the High Court improve their service of this aspiration by choosing, additionally, to foreground their ventures into the realms of historiography and moral entrepreneurship. This does not mean that jurisprudential normativity disappears, that there is such a thing as ‘pure’ law stripped of normative concerns, but merely that there are times when it achieves its aims more effectively by working less ostentatiously.

We can end with a contrast: Chief Justice Warren’s opinion in Brown v Board of Education,[74] one of the best known judgments of the century. Sanford Levinson observes how bland the opinion is, how unilluminating it is about the history of race relations in America, and he asks why Warren CJ passed over the chance “to educate the public about the ravages of racial segregation or to arouse a truly righteous anger against the oppression that had characterized, at that time, well over three centuries of American history?”[75] The answer, says Levinson, was provided by Warren CJ himself, who wrote that opinions should be “short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory”,[76] an orientation which could be attributed to Chief Justice Warren’s sensitivity to “not getting everyone’s back up when embarking on important political campaigns”.[77] Levinson also refers to Barrett Prettyman outlining how the opinion “took the sting off the decision, it wasn’t accusatory, and it didn’t pretend that the Fourteenth Amendment was more helpful than the history suggested”.[78] These characteristics might usefully serve as a model for a counter-factual, less morally entrepreneurial position on Mabo, which Justice Toohey’s judgment comes closest to, one which ‘took the sting off the decision, wasn’t accusatory, and didn’t pretend that terra nullius was more significant than the history suggested’.

[*] BA (Hons) PhD (UNSW); Senior Lecturer in Sociology, Department of Social Work, Social Policy and Sociology, University of Sydney. I would like to thank Paul Patton, Tim Rowse and Duncan Ivison.

[1] HL Dalton, “Storytelling on its Own Terms” in P Brooks and P Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (1996) 57 at 57.

[2] This meaning of ‘norm’ is to be distinguished from its usage in Michel Foucault’s work. In Foucault’s work, as François Ewald suggests, “the norm is a measurement and a means of producing a common standard”, a point of reference or standard by which social diversity is coordinated: F Ewald, “Norms, Discipline, and the Law” (1990) 30 Representations 138. See also the discussion in N Rose and M Valverde, “Governed by Law?” (1998) 7(4) Social & Legal Studies 541. There is clearly a relationship between the two, but here we are concerned with different questions.

[3] Sir A Mason, “The Use and Abuse of Precedent” (1988) 4 Australian Bar Review 93 at 94. This uncoupling of moral community from tradition is a rather striking and novel phenomenon. It has been more common throughout human history and across human cultures to approach ‘looking forward’ with caution, to see tradition precisely as embodying basic human values, demanding considerable allegiance – indeed, this has been one of the central arguments for the virtues of the doctrine of stare decisis: GJ Postema, “On the Moral Presence of Our Past’ (1991) 36(4) McGill LJ 1153.

[4] N Sharp, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case, Aboriginal Studies Press (1996); J Webber, “The Jurisprudence of Regret: the Search for Standards of Justice in Mabo” [1995] SydLawRw 1; (1995) 17(5) Syd LR 5.

[5] LJM Cooray, “The High Court in Mabo: Legalist or L’égotiste” in M Goot and T Rowse (eds), Make a Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; overviews can also be found in G Cowlishaw, “Did the Earth Move for You? The anti-Mabo debate” (1995) 6(1/2) The Australian Journal of Anthropology 43 and H Wootten, “Mabo and the Lawyers” (1995) 6(1/2) The Australian Journal of Anthropology 116.

[6] Mabo and Others v Queensland (No 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (“Mabo”)

[7] Ibid at 42.

[8] Ibid at 109.

[9] K Laster, Law as Culture, Federation Press (1997) p 154 (emphasis added).

[10] For an overview, see F Brennan, One Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) pp 20-37.

[11] M Kirby, “In Defence of Mabo” in M Goot and T Rowse (eds), note 5 supra 67; D Ivison, “Decolonizing the Rule of Law: Mabo’s Case and Postcolonial Constitutionalism” (1997) 17(2) Oxford Legal Studies 253 at 256; H Reynolds, “Native Title and Pastoral Leases” [1996] AboriginalLawB 70; (1996) 3(85) Aboriginal Law Bulletin 14 at 14.

[12] RH Bartlett, The Mabo Decision, Butterworths (1993) p ix.

[13] H Reynolds, The Law of the Land, Penguin (1987). The earliest reference to the concept in relation to Aboriginal interests in land that I have been able to find is: A Frost in “New South Wales as Terra Nullius: the British Denial of Aboriginal Land Rights” (1981) 19 Historical Studies 513. The first discussion of the concept in relation to sovereignty is in E Scott, “Taking Possession of Australia: the Doctrine of ‘Terra Nullius’ (No Man’s Land)” (1940) 26 Journal of the Royal Australian Historical Society 1 (I am indebted to K Beattie’s “Terra Nullius and the Colonisation of Australia” (unpublished BA Honours Dissertation, Department of Government, University of Sydney, 1998) for drawing my attention to this reference).

[14] RH Bartlett, “Aboriginal Land Claims at Common Law” (1983) 15 University of Western Australia Law Journal 293; J Hookey, “The Land Rights Case: a Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’ (1972) 5 FLR 85; K McNeil, “A Question of Title: has the Common Law been Misapplied to Disposses the Aboriginals?” [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM Williams, The Yolngu and their Land, Australian Institute of Aboriginal Studies (1986); see also Sir H Gibbs, “Foreword” in MA Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution, University of Queensland Press (1993) xiii.

[15] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (“Milirrpum”).

[16] T Rowse, After Mabo: Interpreting Indigenous Traditions, Melbourne University Press (1993) p 1; see also P Patton’s discussion of the ‘values’ question in “After Mabo” (1994) 27(4) Southern Review 511. For a further exploration of this problem in relation to academics and law, see RA Posner, The Problematics of Moral and Legal Theory, Harvard University Press (1999).

[17] The term originates in the sociology of deviance, particularly from H Becker, Outsiders: Studies in the Sociology of Deviance, Free Press (1963).

[18] Note 15 supra at 243-4.

[19] Ibid at 247.

[20] Ibid at 244.

[21] Ibid (original emphasis).

[22] The ‘waste lands’ cases: Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404;

Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54.

[23] Note 15 supra at 246-7. Woodward’s submission that these constructions were based on questions of fact – was the territory occupied or not? – and thus not binding, fell on deaf ears. Blackburn J simply reasserted that “the categorization of New South Wales as a colony acquired by settlement or peaceful occupation, as being inhabited only by uncivilised people, is a matter of law”: at 249. This, of course, overlooked the fact that a territory regarded as “settled” or “practically unoccupied” for the purposes of sovereignty can nonetheless be simultaneously regarded as either occupied or not for the purposes of title to land, and that this is a question of fact, not law. See K McNeil, note 14 supra at 102-3, and B Hocking, “Aboriginal Law Does Now Run in Australia” [1993] SydLawRw 15; (1993) 15 Syd LR 187 at 195.

[24] Note 15 supra at 262; see also at 244.

[25] Ibid at 266-7.

[26] Ibid at 268.

[27] Ibid at 273.

[28] NM Williams, note 14 supra, p 202.

[29] This means that there are some problems with saying that “the Mabo case overturned the old view that British law applied without any account being taken of the existing indigenous law, including the indigenous land law”: K Booker, A Glass, and R Watt, Federal Constitutional Law, Butterworths (2nd ed, 1998) p 10. A similar formulation appears in A Blackshield and G Williams, Australian Constitutional Law and Theory Federation Press (2nd ed, 1998) p 178 where it is said that the judgment “recognised that the indigenous population had a pre-existing system of law, which.... would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action”. An important qualification is that the High Court, in Mabo and elsewhere, especially in relation to criminal law, resolutely refuses to recognise the force of indigenous law over English or Australian law. Whether native title is recognised in English and Australian law, then, is a matter internal to that body of law, and indigenous law only remains ‘in force’ to the extent that Australian law allows it to do so. One would also have to distinguish here between the High Court’s approach to the concept of property and to other legal concerns, especially questions of criminal law: see, for example, Chief Justice Mason’s position in Walker v State of New South Wales (1994) 182 CLR 45.

[30] G Nettheim noted in “Justice or Handouts? Aborigines, Law and Policy” (1986) 58(1) Australian Quarterly 60 at 61 that “even if he [Blackburn J] had accepted the conquered colony theory, the result in the Gove case would have been the same”. J Crawford notes in “The Appropriation of Terra Nullius” (1989) 59(3) Oceania 226 at 227, ie his review of Reynolds’ Law of the Land, note 13 supra, the major source of much of the terra nullius debate, that “... there is a tendency here to conflate the classification of Australia as settled or conquered with the existence or recognition of communal native title, which are essentially distinct issues”; again, K Beattie, note 13 supra, directed me to this reference. K McNeil also comments in note 14 supra at 92 that if Aboriginal land rights existed, “they should have continued regardless of whether Australia was conquered or settled”.

[31] Morris v CW Martin & Sons Ltd [1966] 1 QB 716 at 730.

[32] Note 6 supra at 45 (emphasis added).

[33] Ibid at 108-9 (emphasis added).

[34] Ibid at 57.

[35] Ibid at 58.

[36] D Ritter, “The ‘Rejection of Terra Nullius’ in Mabo: A Critical Analysis” [1996] SydLawRw 1; (1996) 18(1) Syd LR 5 at 6. For a related discussion of the role of terra nullius in imperial and colonial policy and administration, as opposed to law, see K Beattie, note 13 supra. This is a critique of the whole argument found especially in Reynolds’ work, but echoed in the Mabo majority, concerning the central significance of terra nullius in Aboriginal dispossession.

[37] I Hunter, “Native Title: Acts of State and the Rule of Law” in M Goot and T Rowse (eds), note 5 supra 97 at 107.

[38] LR Hiatt, “The Appropriation of Terra Nullius” (1989) 59(3) Oceania 222 at 226.

[39] Note 6 supra at 93.

[40] Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54; Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404.

[41] Note 6 supra at 104.

[42] Ibid.

[43] Note 12 supra, p xi.

[44] Note 40 supra.

[45] Note 6 supra at 183.

[46] Amodu Tijani v Secretary of Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER 785.

[47] Note 6 supra at 184.

[48] Ibid at 78-81, per Deane and Gaudron JJ.

[49] Attorney-General v Brown (1847) 1 Legge 312; Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54, and NSW v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (“Sea and Submerged Lands Act Case”).

[50] Note 6 supra at 53.

[51] Ibid at 102, per Deane and Gaudron JJ.

[52] B Hocking, note 23 supra at 191.

[53] It is actually an interesting counter-factual to pose: if a case concerning indigenous title had been brought before the NSW Supreme Court in 1947, if Stephens CJ, Dickinson and Therry JJ had been asked whether they thought that all the ‘waste’ lands of the colony were genuinely unoccupied, and what they thought of the evidence of indigenous habitation, would they have declared that those lands were truly ‘unoccupied’?

[54] B Hocking, note 23 supra at 195.

[55] (1973) 34 DLR (3d) 145 (SC).

[56] Ibid at 218.

[57] J Webber, note 4 supra at 10.

[58] Ibid at 25.

[59] Ibid at 28.

[60] Note 14 supra.

[61] J Webber, note 4 supra at 5.

[62] D Ritter, note 36 supra at 9.

[63] Note 40 supra.

[64] J Crawford, note 30 supra at 228.

[65] Aboriginal Land Rights (NT) Act 1976 (Cth). Woodward later wrote: “I took the view that the finding of close identification between particular groups of people and particular land was sufficient to mount a claim for recognition of Aboriginal title at a political level. I had no confidence that the High Court, as it was then constituted, would produce any better result for the Aboriginal people than had already been achieved. Indeed, I was afraid that doubts might be cast on Justice Blackburn’s findings about Aboriginal law. I therefore advised against an appeal”: AE Woodward, Three Wigs and Five Hats, Northern Territory Library Service (1990) p 6.

[66] J Webber, note 4 supra at 17 finds fault with Justice Toohey’s judgment for precisely this reason, because “although it provides a solid discussion of the common law of indigenous title, it declines to suggest why, at this late date, Australia should adopt that law. Given the long history of denial, a judge should offer some justification, at least implicitly, for rejecting the old position and embracing the new. It is insufficient to state the common law as though it has always been thus, for in Australia that was manifestly not the case”. Clearly my own position is exactly the reverse of this; it is unclear why the fact that Milirrpum was simply bad law should not be reason enough for rejecting its construction of native title and turning to another.

[67] K McNeil, RH Bartlett and J Hookey, note 14 supra.

[68] For example, Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC).

[69] See Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty, Allen & Unwin (1996) p 1; J Hookey, “Settlement and Sovereignty” in P Hanks & B Keon-Cohen (eds) Aborigines and the Law (1984) 1 at 1; P Patton, “Sovereignty, Law, and Difference in Australia: After the Mabo case” (1996) 21(2) Alternatives 149; D Ivison, note 11 supra.

[70] G Nettheim, “Judicial Revolution or Cautious Correction? Mabo v Queensland[1993] UNSWLawJl 2; (1993) 16(1) UNSWLJ 1 at 16.

[71] RH Bartlett, note 12 supra, p xi.

[72] Versions of this argument which have surfaced in legal theory more broadly include R Delgado, “Norms and Normal Science: Toward a Critique of Normativity in Legal Thought” (1991) 139 University of Pennsylvania Law Review 933; RA Posner, note 16 supra; P Schlag, “Normative and Nowhere to Go” (1990) 43 Stanford Law Review 167; P Schlag, “Values” (1994) 6 Yale Journal of Law & Humanities 219. A leading example in another arena is B Anderson’s Imagined Communities, Verso (1991).

[73] D Ritter, note 36 supra at 6-7, 30 and 32. Ritter argues further that this particular rhetorical move was somehow “necessary” to restore the High Court’s broader moral legitimacy, but without making it clear where the compulsion behind this supposed “necessity” actually comes from.

[74] [1954] USSC 42; (1954) 347 US 483.

[75] S Levinson, “The Rhetoric of the Judicial Opinion” in P Brooks and P Gewirtz (eds), note 1 supra 187 at 197-8.

[76] Ibid at 198.

[77] Ibid.

[78] Ibid.

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