Secher, Ulla --- "The High Court and Recognition of Native Title: Distinguishing Between the Doctrines of Terra Nullius and 'Desert and Uncultivated" [2007] UWSLawRw 1; (2007) 11(1) University of Western Sydney Law Review 1

THE HIGH COURT AND RECOGNITION OF NATIVE TITLE: DISTINGUISHING BETWEEN THE DOCTRINES OF TERRA NULLIUS AND ‘DESERT AND UNCULTIVATED’

ULLA SECHER*

I. INTRODUCTION

In a rare interview with The Weekend Australian in February 2006,^[1] Sir Anthony Mason, former Chief Justice of the High Court of Australia, responded to claims by historian, Michael Connor, in his book The Invention of Terra Nullius: Historical and legal fictions on the foundation of Australia,^[2] that the doctrine of terra nullius is a new concept, introduced into legal and political debate as recently as the 1970s. Indeed, the essence of Connor’s argument lies in the syllogism that the doctrine of terra nullius did not exist in 1788; Captain Cook claimed sovereignty over Australia in 1788; therefore, Captain Cook could not have claimed sovereignty as a result of the doctrine of terra nullius. Moreover, according to Connor, this syllogism provides the basis for challenging the validity of the High Court’s decision in Mabo and Others v State of Queensland (No.2) (‘Mabo’).^[3] In this context, Connor’s contention is threefold: first, that the doctrine of terra nullius was ‘invented’ by historian, Henry Reynolds, in his work The Law of the Land;^[4] secondly, that the doctrine of terra nullius is, therefore, a modern fiction rather than the legal foundation of Australia’s sovereignty; and, thirdly, because the Mabo decision was based upon Reynolds’ flawed invention of the doctrine of terra nullius, the Mabo decision was itself flawed. Thus, Connor purports to discredit the doctrine of terra nullius and – with it – the decision in Mabo.

Sir Anthony Mason duly defended the Mabo decision against Connor’s attacks, stating that Connor had got it all wrong. Mason explained that the Mabo decision was not about the doctrine of terra nullius; it dealt with ‘another question altogether: does the common law (as applied in the Australian colonies) exclude altogether the rights of the indigenous people …?’^[5]

Although Mason’s comments are indubitably correct, almost 15 years after the High Court’s decision in Mabo, many people – lawyers included – continue to equate Mabo with the ‘overturning of the doctrine of terra nullius’. This paper will, however, explain why the Mabo High Court did not reject the doctrine of terra nullius: an explanation which turns on the jurisdictional dichotomy between international law and common law. Indeed, this is the crucial point overlooked by Connor.^[6]

The doctrine of terra nullius is a well-established principle of international law; it is not a principle of the common law.^[7] Nevertheless, it will be seen that the doctrine has a common law counterpart in the ‘desert and uncultivated’ doctrine.^[8] Although both doctrines classified inhabited land as uninhabited land, crucially, the two doctrines did so for different purposes: the doctrine of terra nullius served the purpose of legitimising the acquisition of sovereignty in international law and the ‘desert and uncultivated’ doctrine served the purpose of ascertaining the law which is to govern a territory on colonisation at common law.^[9]

In Mabo, it was conceded by all parties and accepted by the Court that the Crown had acquired sovereignty of Australia by occupancy under international law; the international law doctrine of terra nullius was, therefore, not an issue in Mabo. Indeed, ‘terra nullius’ was not mentioned in any of the plaintiffs’ submissions, and was not referred to at all during the four days of substantive argument before the High Court of Australia. Furthermore, all members of the High Court concluded that, irrespective of the original presence of the Aboriginal inhabitants, on the basis of the ‘desert and uncultivated’ doctrine at common law, Australia was a territory acquired by settlement.^[10] Accordingly, the question before the court was whether or not native title was part of the common law of a settled territory.^[11] However, notwithstanding that the classification of inhabited territory as uninhabited for legal purposes served different functions in international law and at common law, in rejecting the proposition that the common law of a settled colony did not recognise native title, one of the most contentious and misunderstood aspects of the High Court’s decision in Mabo has been its treatment of the international law doctrine of terra nullius.^[12]

Accepting that Australia was not in fact uninhabited in 1788, yet legally uninhabited for the purpose of acquisition of sovereignty, the High Court equated occupation of an inhabited territory with occupation of an uninhabited territory. Sovereignty was, therefore, acquired under the enlarged notion of terra nullius. Although the Court challenged the classification of Australia as a territory acquired by occupation and, therefore, the legal foundation for the Crown’s assertion of sovereignty, the Court’s unanimous view that the acquisition of sovereignty is not justiciable before municipal courts^[13] precluded any review of this classification.^[14] Municipal courts have, however, jurisdiction to determine the consequences of an acquisition of sovereignty: thus, it was open to the High Court to determine the body of law that applied in the newly acquired territory of Australia. Crucially, it will be seen that it is in this context that the High Court reconsidered and rejected the ‘desert and uncultivated’ doctrine in its application to Australia. Accordingly, this article explains that the Mabo High Court did not reject the doctrine of terra nullius;^[15] recognition of native title in the Australian real property law context is exclusively the result of the Court’s restatement of the common law.

The article is divided into two parts: Part I examines the international law doctrine of terra nullius and the common law ‘desert and uncultivated’ doctrine in their application to Australia pre-Mabo. It explains that, as a result of the application of these principles of international and domestic law concerning the formation of new colonies, the feudal doctrine of tenure was received as part of the law of the Australian colonies and ‘unequivocally informed the articulation of Australian land law’.^[16] Moreover, since the reception of English law into the settled colony of Australia was justified on the ground that it was ‘legally uninhabited’, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule. Although the authorities supported either the doctrine of continuity or the recognition doctrine in this context, only under the doctrine of continuity were pre-existing rights enforced without the need for express statutory provision.^[17] Pre-Mabo, therefore, it was the combination of the universal acceptance of the feudal doctrine of tenure and the application of the recognition doctrine in Australia that precluded any recognition of non-feudal rights in land, such as native title.

Part II, considers the post-Mabo status of both the terra nullius and ‘desert and uncultivated’ doctrines in their application to Australia. It explains that the High Court’s decision in Mabo did not reject the doctrine of terra nullius in any sense of denying Australian sovereignty which remains non-justiciable.^[18] Rather, the High Court distinguished between the doctrine of terra nullius, which is only relevant at international law, and the concept of terra nullius, which has two limbs: it applies to questions of sovereignty (at international law) and to questions of property (at common law). Crucially, it will be seen that only the common law limb of the concept of terra nullius has been rejected. By identifying Australia as a new class of settled colony at common law, a settled yet inhabited colony, the High Court was free to prescribe a doctrine relating to the law that applied in the colony: a modified doctrine of reception. It will be seen that the modified doctrine of reception includes the test for determining whether pre-existing land rights survive a change in sovereignty: the doctrine of continuity pro tempore (a merged version of the continuity and recognition doctrines).

II. PART I: THE DOCTRINE OF TERRA NULLIUS AND THE ‘DESERT AND UNCULTIVATED’ DOCTRINE PRE-MABO: PRECLUDING COMMON LAW RECOGNITION OF NON-FEUDAL RIGHTS IN LAND

Although the manner in which a sovereign acquires a new territory is a matter of international law, the system of law applicable in a newly acquired territory is determined by the common law.^[19] The international law of the eighteenth century^[20] recognised four^[21] ways of acquiring sovereignty over a new territory: by conquest, cession, occupation or annexation.^[22] The British acquisition of sovereignty over the colony of New South Wales was regarded as dependent upon the occupation of territory that was terra nullius.^[23] Initially, the doctrine of terra nullius was applied to the acquisition of new territory which was uninhabited. Emmerich de Vattel, one of the most influential writers on the law of nations in the eighteenth century, argued that as a principle of natural law:

All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. ^[24]

Gradually, however, the doctrine of terra nullius was extended to justify acquisition of inhabited territories by occupation if the land was uncultivated or its indigenous inhabitants were not ‘civilised’ or not organised in a society that was united permanently for political action.^[25] De Vattel explained this extension by answering the ‘celebrated question, to which the discovery of the New World ha[d] principally given rise’:

It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole? … [I]n establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth … belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature, in confining the Indians within narrower limits. ^[26]

A modern explanation of the doctrine of terra nullius is provided by the International Court of Justice in its Advisory Opinion on Western Sahara:

[T]he expression 'terra nullius' was a legal term of art employed in connection with 'occupation' as one of the accepted legal methods of acquiring sovereignty over territory. 'Occupation' being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid 'occupation' that the territory should be terra nullius - a territory belonging to no-one - at the time of the act alleged to constitute the 'occupation' … In the view of the Court, therefore, a determination that Western Sahara was a 'terra nullius' at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of 'occupation'.

Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes of peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories 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. ^[27]

It is clear, therefore, that the doctrine of terra nullius has a place in the discourse of the legal methods of acquiring sovereignty over territory which are recognised by the rules of international law. It is not, however, a doctrine which has significance in the municipal law of Australia.^[28] Indeed, pre-Mabo, the High Court had made it clear that any claim challenging the validity of the Crown’s acquisition of sovereignty over Australia could have no foundation. In Coe v The Commonwealth,^[29] Mason J said of a claim that sovereignty in or over Australia was vested in the Aboriginal people:

It is inconsistent with the accepted legal foundations of Australia deriving from British occupation and settlement and the exercise of legislative authority over Australia by the Parliament of the United Kingdom … The plaintiff's counsel sought to derive support for the proposition that Australia was not terra nullius at the date of British occupation and settlement from the decision of the International Court in the Western Sahara case … Whatever that decision may say it has no relevance to the domestic or municipal law of Australia based on the Constitution which this Court is bound to apply.^[30]

Gibbs J, with whom Aickin J concurred, explained that:

The annexation of the east coast of Australia by Captain Cook in 1770, and the subsequent acts by which the whole of the Australian continent became part of the dominions of the Crown, were acts of state whose validity cannot be challenged ... If the amended statement of claim intends to suggest either that the legal foundation of the Commonwealth is insecure, or that the powers of the Parliament are more limited than is provided in the Constitution, or that there is an aboriginal nation which has sovereignty over Australia, it cannot be supported. ^[31]

Although the doctrine of terra nullius is neither a concept of the common law^[32] nor justiciable before municipal courts, the doctrine has a common law counterpart in the ‘desert and uncultivated’ doctrine:^[33] a doctrine recognized by Blackstone 23 years before the British acquisition of sovereignty over Australia which classified inhabited land as uninhabited for the purpose of the doctrine of reception. The common law doctrine determining the law in force in a newly acquired territory depended upon the manner of its acquisition by the Crown. In 1722, the Privy Council had recognised a distinction between conquered or ceded and settled territories^[34] in terms of the law which governed the new possession.^[35] In the case of a settled colony, the common law of England became the law of the colony in so far as it was applicable to colonial conditions.^[36] A different position prevailed if a country was ceded or conquered. In that case, the law in force at the time of cession or conquest remained in force unless and until it was altered by or under the authority of the sovereign.^[37]

At common law, the only category of land that could be acquired by settlement was land that was found to be ‘desert and uncultivated.’ According to Blackstone’s classic exposition in 1765:

Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. ^[38]

At this juncture, it is significant to note that De Vattel’s reference to the international law concept of terra nullius, first published in 1758, was expressed in language reminiscent of Blackstone’s elucidation of the ‘desert and uncultivated’ doctrine: it was made in the context of examining ‘[h]ow a nation appropriates to itself a desert country’; the term ‘terra nullius’ was not mentioned, De Vattel simply referred to ‘a nation find[ing] a country uninhabited, and without an owner’.^[39] However, just as the categories of land that were terra nullius under international law were expanded to embrace certain inhabited land, ‘desert and uncultivated’ land under the common law was expanded to include land that was inhabited. Indeed, the extended meaning of ‘desert and uncultivated’ was the result of the common law’s acceptance of the international law doctrine of terra nullius.^[40] Consequently, judicial classification of inhabited land as ‘desert and uncultivated’ was justified on the basis of similar criteria justifying the expanded version of the doctrine of terra nullius.^[41]

The common law concept of acquiring territory by ‘settlement’ is, therefore, analogous to the international law mode of acquiring territory by ‘occupation’; land that can be lawfully acquired by settlement at common law is the equivalent of territory that is regarded as terra nullius in either its narrow or extended senses at international law. Accordingly, the concept of terra nullius (as opposed to the doctrine) has two limbs: it applies to questions of sovereignty (at international law) and to questions of property (at common law). The doctrine of terra nullius is, however, only relevant at international law in deciding whether a state has acquired sovereignty by purported occupation; it is not relevant at common law in determining the law which is to govern the new possession.^[42]

Nevertheless, pre-Mabo, when sovereignty of a territory was acquired under the enlarged notion of terra nullius for the purpose of international law, that territory was treated as ‘desert and uncultivated’ country for the purpose of the common law because there was an absence of ‘settled inhabitants’ and ‘settled law.’^[43] In Mabo, Brennan J explained the pre-Mabo position:

The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called ‘settled colonies’. Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. ^[44]

According to pre-Mabo orthodoxy, therefore, if an inhabited territory was terra nullius for the purpose of acquisition of sovereignty, it was assumed that there could be no sufficiently organised system of native law and tenure to admit of recognition by the common law. In such circumstances, since the indigenous inhabitants and their occupancy of land were ignored when considering title to land in the settled colony, the Crown’s sovereignty over the territory was equated with Crown ownership of the lands therein because there was ‘no other proprietor of such lands’.^[45]

Accordingly, the classification of territory as ‘desert and uncultivated’ has been a basis for attributing absolute beneficial ownership of all land in Australia in the Crown. In this respect, therefore, the ‘occupation of’ and the ‘settlement of’ an inhabited territory were equated with the ‘occupation of’ and the ‘settlement of’ an uninhabited territory for the purpose of legitimising the acquisition of sovereignty in international law and in ascertaining the law of the territory on colonisation at common law respectively.^[46] Thus, the confusion of sovereignty and ownership, political power and property rights, is responsible not only for the extension of the terra nullius doctrine, but also for the fiction of original Crown ownership of all land – the fundamental tenet of the feudal doctrine of tenure.^[47] Moreover, since it was the principle nulle terre sans seigneur^[48] that ensured an unusually perfect feudal structure, it is this principle, rather than the doctrine of terra nullius, that has been overturned as a result of the Mabo decision: recognition of native title is recognition of land that is not held of any superior.

Nevertheless, pre-Mabo, the basis upon which the common law of England was received as the law of the colony of New South Wales was that Australia was settled.^[49] This classification should have meant that English law applied in New South Wales on settlement of the colony.^[50] The colony’s character as a penal settlement, however, raised doubts as to the extent to which English law applied in the colony.^[51] These doubts were settled in 1828 when the British Parliament passed the Australian Courts Act.^[52] Thus, so much of the English land law of 1828 as was applicable to the colonial conditions of New South Wales, and ultimately all the Australian colonies,^[53] became the basis of Australian land law.

Although a number of commentators have suggested that the English system of land tenure was never appropriate or adequate to describe the legal nature of landholding in Australia,^[54] the first expression of feudalism by the courts of the Australian colonies^[55] made it clear that there was no question that the feudal principle was applicable to Australia.^[56] Accordingly, the maxim that all land is held, either mediately or immediately, of the Crown applied in Australia, as did the legal fiction justifying this feudal theory. The two-fold fiction that all lands in the realm were once in the hands of the King and that all titles were originally derived from royal grants was, therefore, as fundamental to the application of the common law doctrine of tenure in Australia as it was in England.

Consequently, Australian courts took judicial notice of the fact that the Crown was the legal owner of all land in Australia at the time of settlement in 1788. There was no doubt that the wastelands in the colonies were originally owned by the British Crown.^[57] Importantly, however, judicial opinion was divided on the question of the source of such ownership: it was regarded as either a consequence of the feudal principle^[58] or as acquired by occupancy.^[59] Moreover, it appears that these two sources of Crown title to land were not treated as mutually exclusive. Notwithstanding a conclusion that the Crown had an actual title by occupancy, it was invariably held that the same result could be arrived at by the adaption of the feudal fiction.^[60]

The weight of opinion of the early New South Wales Supreme Court appears to support occupancy rather than the feudal fiction as the basis of the Crown’s title to land.^[61] Pre-Mabo, however, the High Court had not specified the source of the Crown’s original title to all land in the Australian colonies.^[62] Nevertheless, in either event, the consequence was considered to be the same: ‘the lands of Australia became the property of the King of England.’^[63] Since the Crown was the ultimate proprietor of all lands, it was assumed that all titles, rights and interests in land must be the direct consequence of Crown grants.^[64] It was also assumed that, as a result of the feudal principle, the Crown was the proprietor of all land for which no subject could show a title.^[65] Indeed, the universal acceptance of the doctrine of tenure in Australia precluded any consideration of the matter of rights in land which did not owe their existence to a Crown grant until as recently as 1968-1971, when Milirrpum v Nabalco Pty Ltd (‘Milirrpum’)^[66] was decided.^[67]

Before the decision in Mabo, Milirrpum,^[68] a decision by Justice Blackburn, a single judge of the Supreme Court of the Northern Territory, was the only reported Australian decision dealing directly with the merits of an Aboriginal claim to particular traditional tribal land. For the first time in Australian legal history, it was argued that ‘at common law, communal occupation of land by the aboriginal inhabitants of a territory acquired by the Crown is recognised as a legally enforceable right.’^[69]

Blackburn J concluded, on the basis of his examination of what had happened in the laws of the various places where English law had been applied, that the doctrine of communal native title has no place in a settled colony except under express statutory provision.^[70] Thus, Blackburn J applied the ‘recognition doctrine’, as opposed to the ‘doctrine of continuity’. Pre-Mabo, since Australia’s classification as a settled colony was justified on the ground that it was ‘legally uninhabited’ pursuant to the ‘desert and uncultivated’ doctrine, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule. In this context, the authorities supported either the doctrine of continuity or the recognition doctrine.^[71]

The continuity doctrine can be traced to Brian Slattery’s pioneering work, ‘The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories’.^[72] According to Slattery, notwithstanding the constitutional status of a colony (whether conquered, ceded or settled), pre-existing private property rights continue by virtue of the ‘doctrine of continuity’^[73] and cannot normally be unilaterally terminated by the sovereign without recourse to Parliament.^[74] In contradistinction, Geoffrey S. Lester identified two theories in his thesis ‘The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument’.^[75] The first, which he also refers to as the doctrine of continuity is, however, narrower than the theory suggested by Slattery.^[76] It applies only where the constitutional situation is one of settlement. For Lester, however, the concept of settlement properly applies to uninhabited or inhabited land, and in the latter case, the existing rights of the aboriginal inhabitants not only continue, but cannot be terminated by the sovereign without the consent of the owners of those rights.^[77] The second theory identified by Lester, the recognition theory, applies where the constitutional situation is one of conquest or cession and in such a case, enforceability of the rights of aboriginal inhabitants depends exclusively on what has or has not been recognised by the Sovereign.^[78]

Importantly, however, both Slattery and Lester conclude, by quite different reasoning,^[79] that aboriginal rights in a settlement are capable of being enforced against the Crown, without any prior requirement of executive or legislative recognition. This conclusion is also shared by Kent McNeil. McNeil argues that the doctrine of continuity as articulated by Slattery is historically correct and that the recognition doctrine arose from the ‘unfortunate misinterpretation of a few isolated decisions’.^[80]

Blackburn J, however, applied the recognition doctrine and concluded that native title has no place in a settled colony except under express statutory provision. Blackburn J also observed that the same conclusion must be drawn from earlier Australian cases dealing with the issue of the Crown’s original title to land.^[81] This was because such decisions:

[A]ll affirm the principle, fundamental to the English law of real property, that the Crown is the source of title to all land; that no subject can own land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown. On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown. ^[82]

For Blackburn J, therefore, the plaintiffs could not succeed because they could neither point to any grant from the Crown as the basis of the title which they claimed (as required by the received feudal doctrine of tenure) nor show that there was a doctrine in their favour (the doctrine of continuity) which in Australia co-existed in some manner with the dominium of the Crown.^[83] The crucial point is that, since the classification of Australia as a settled colony was justified on the ground that it was ‘legally uninhabited’, the enforceability of pre-existing rights under either the recognition or continuity doctrine, contradicted the ‘legally uninhabited’ rule. Consequently, the common law, in determining the law which was to govern a new possession, had two limbs, one general and one specific. The general limb consisted of a doctrine prescribing the law (whether English or local) that applied in the newly acquired territory (in the case of settlements, the doctrine of reception). The specific limb consisted of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine).

The controversial nature of the decision in Milirrpum led to it being strongly criticised by many writers as being wrong in law in respect of the findings: that New South Wales was a settled colony; that the doctrine of communal native title was not a part of the Australian common law; and that the plaintiffs’ relationship with the land did not constitute a proprietary interest.^[84] Prior to Mabo, there were also indications that, were the matter to come before the High Court, aspects of Blackburn J’s decision would be reconsidered. As early as 1972, in Administration of Papua v Daera Guba,^[85] Barwick CJ, after citing Milirrpum, observed, albeit in obiter, that legislative acts confirming the customary title of the Papuans were not inconsistent with the traditional result of acquisition of a territory by settlement, viz the Crown acquired the ultimate title to land subject to the usufructuary title of the inhabitants.^[86] In 1979 the High Court suggested that the correctness of the decision in Milirrpum was an ‘arguable question if properly raised’^[87] and in 1987 the High Court referred to it as ‘a question of fundamental importance.’^[88] Until 1992, however, Blackburn J’s decision stood as authority that, at common law, the necessary result of the categorisation of a colony as settled (whether uninhabited in fact or ‘legally uninhabited’ pursuant to the ‘desert and uncultivated’ doctrine) was that English law, including the feudal doctrine of tenure, applied ipso jure throughout the colony and that the recognition doctrine applied in Australia. Crucially, the effect of the feudal doctrine of tenure and the recognition doctrine meant that Australian Aborigines had no legal title to their traditional lands as they were not claiming a derivative title from the Crown, unless their title was expressly recognized by statute.^[89]

Indeed, it will be seen in Part II, that common law recognition of native title is only possible in the post-Mabo Australian real property law context because the Mabo High Court rejected the common law concept of ‘desert and uncultivated’^[90] territory for the purpose of determining the law which was to govern Australia on colonisation. In this way, the High Court identified Australia as a new class of settled colony at common law: a settled yet inhabited colony. Crucially, since there was no rule relating to the law that applied to a settled territory which was not uninhabited, the High Court had to prescribe a doctrine relating to the law to be applied in such a colony.

III. PART II: THE DOCTRINE OF TERRA NULLIUS AND THE ‘DESERT AND UNCULTIVATED’ DOCTRINE POST-MABO: COMMON LAW RECOGNITION OF NON-FEUDAL RIGHTS IN LAND

It was seen in Part I that the distinction between a territory acquired by occupation/settlement, a territory acquired through treaty, and a territory acquired as a result of conquest was significant not only for the purpose of legitimising English rule in international law, but also for its consequences in English law. While the doctrine of terra nullius is only relevant for the purpose of justifying the acquisition of territory by occupation at international law,^[91] the doctrine is broadly analogous to the common law concept of colonial acquisition by ‘settlement’ of a ‘desert and uncultivated’ country pursuant to which the common law of England, including the feudal doctrine of tenure, became the law of the colony in so far as it was applicable to colonial conditions.^[92] Thus, although both these principles of international and domestic law classify inhabited land as uninhabited land for legal purposes, they have different spheres of operation. Accordingly, only the concept, as distinct from the doctrine, of terra nullius applies both to questions of sovereignty at international law and to questions of property at common law.

Indeed, the High Court in Mabo emphasised this distinction. By accepting that Australia was not, in fact, terra nullius in 1788, yet legally uninhabited for the purpose of acquisition of sovereignty, the Mabo High Court acknowledged that sovereignty was acquired over Australia under the enlarged doctrine of terra nullius. Despite this conclusion, however, the majority of the High Court expressly disapproved of the application of the concept of terra nullius to an inhabited country and recognised that the notion that inhabited land may be classed as terra nullius no longer commanded general support in international law.^[93] Although the Court questioned the classification of Australia as an empty uninhabited land in the extended legal sense at the international level, the Court’s unanimous view was that the acquisition of sovereignty cannot be challenged by municipal courts.^[94] The High Court did, however, have jurisdiction to determine the consequences of an acquisition of sovereignty; to determine the body of law that applied in the newly acquired territory of Australia.

Since the enlarged doctrine of terra nullius had ceased to command acceptance under international law, the Mabo High Court found that its broadly analogous application in the common law of property (the ‘desert and uncultivated’ doctrine) was brought into question.^[95] Crucially, in contradistinction to their conclusion on the issue of acquisition of sovereignty, the majority refused to follow the ‘orthodox’ approach which equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of a territory on colonisation. Thus, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement.^[96] It has been seen, however, that, pre-Mabo, the common law determining the law which was to govern a new possession had two limbs: a general limb consisting of a doctrine prescribing the law (whether English or local) that applied in the newly-acquired territory (in the case of settlements, the doctrine of reception); and a specific limb consisting of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine).^[97] It will be seen that, in rejecting the ‘desert and uncultivated’ doctrine, the Mabo High Court effectively reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonization and replaced them with a singular doctrine: a modified doctrine of reception.

The Court’s rejection of the conventional approach endorsing the ‘desert and uncultivated’ doctrine was, substantially, on three grounds. In addition to the fact that its analogue in international law no longer commanded general support,^[98] the factual premise underpinning the colonial reception of the common law of England was not only false,^[99] but also manifestly unjust.^[100] As Brennan J’s reasons were adopted by Mason CJ and McHugh J, his leading judgment represents a fundamental restatement of the common law as it applies in Australia.^[101]

Brennan J observed that the common law had had to ‘march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.’^[102] His Honour found, however, that the acquisition of territory by way of the enlarged doctrine of terra nullius raised difficulties in determining what law was to be applied when inhabited territories were acquired by occupation (or ‘settlement’, to use the term of the common law).^[103] Brennan J thus transposed the concept (as opposed to the doctrine) of terra nullius into the Australian common law^[104] by suggesting that the operation of the international law principles governing acquisition of territory had created an anomaly for the domestic law. Although the enlarged doctrine of terra nullius allowed Australia to be acquired by occupation even though it was inhabited, Brennan J noted that Blackstone was unable to expound any rule by which the common law of England became the law of a territory which was not uninhabited when the Crown acquired sovereignty over the territory by occupation.^[105] Consequently, the common law had to prescribe a doctrine relating to the law to be applied in such colonies. Pre-Mabo,^[106]

[t]he view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of municipal law that territory (though inhabited) could be treated as ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). …The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.

Accordingly, the theory advanced to support the application of English law to colonial New South Wales was that because the indigenous inhabitants were regarded as ‘barbarous or unsettled and without a settled law,’^[107] the law of England, including the common law, became the law of the colony as though it was an uninhabited colony.^[108] The result was that ‘the settlement of an inhabited territory [was] equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation ’.^[109]

Although contemporary law accepted that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies, Brennan J considered that the theory advanced to support the introduction of the common law could be abandoned. Because the present understanding and appreciation of the facts^[110] ‘do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England,’^[111] Brennan J found that there was no warrant for contemporary law to continue to apply English legal propositions which were the product of that theory.^[112]

Brennan J also considered that the theory advanced to justify depriving indigenous inhabitants of a proprietary interest in the land, was unacceptable as it was ‘unjust’^[113] and ‘depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs.’^[114] His Honour strongly criticised the discriminatory doctrine formulated by the Privy Council in In re Southern Rhodesia^[115] which had been applied to the detriment of the plaintiffs in Milirrpum v Nabalco Pty Ltd.^[116] In classifying systems of native law for the purpose of determining whether rights under it are to be recognised at common law, the Privy Council implied the existence of a natural hierarchy of societies, some being ‘so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of a civilised society.’^[117] Accordingly, if the inhabitants of a colony had no meaningful or recognisable system of land tenure, the colony was considered ‘desert uninhabited’ territory for legal purposes.^[118] For Brennan J, the Court was faced with two options: ‘the Court [could] either apply the existing authorities and proceed to inquire whether the Meriam people [were] higher ‘in the scale of social organisation’^[119] than the Australian Aborigines whose claims were ‘utterly disregarded’ by the existing authorities or the Court [could] overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those that were not.’^[120]

Observing that the notion that inhabited land may be classified as terra nullius no longer commands general support in international law,^[121] Brennan J chose the latter option. Since Australia was in fact inhabited at the time of colonisation, it could not, at common law, be considered uninhabited for legal purposes. Consequently, the conventional doctrine of reception could not apply to the colony. Effectively, therefore, Brennan J (and thus the majority)^[122] identified Australia as a new class of settled colony at common law: one over which sovereignty had been acquired via occupation of territory that was terra nullius; yet one acquired, at common law, by settlement of territory that was not legally uninhabited.^[123] Consequently, Brennan J had to prescribe a new doctrine relating to the law that applied in the colony. This allowed him to find, retrospectively, that the common law that applies in inhabited settled colonies presumptively recognises native title rights to land.^[124] In finding that prior native rights in land were presumed to be recognised, his Honour followed Blackstone^[125] and regarded occupation as the natural law basis of ownership rather than the attainment of any particular degree of civilisation.^[126]

In reaching this conclusion, Brennan J equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land.’^[127] It will be seen that this comparison has two significant implications. First, it reinforces Brennan J’s view that, in an inhabited settled colony, elements of both the continuity and recognition doctrines determine the legal status of pre-existing property rights after a change in sovereignty.^[128] Secondly, it limits the practical consequences of Brennan J’s reasoning to rights to land.

According to Brennan J’s analysis, the effect of a change in sovereignty in the context of the inhabited settled colony of Australia was that, like other settled territories, the common law of England applied as far as applicable; but unlike other settlements, English common law principles relating to land did not immediately apply. In particular, rather than acquiring absolute beneficial ownership of ‘every square inch of land,’^[129] the Crown acquired only a radical title to all land. Crucially, this was because, like the legal position in a conquered territory, local land law continued until replaced by the new sovereign. In this way, Brennan J incorporated elements of the continuity theory within his new rule for prescribing the law that applied upon settlement of Australia.

We have seen that the doctrine of continuity can be traced to Brian Slattery’s pioneering work,^[130] and that both Slattery and Lester conclude, by quite different reasoning,^[131] that aboriginal rights in a settlement are capable of being enforced against the Crown, without any prior requirement of executive or legislative recognition. In Mabo, however, Brennan J’s conclusion that, in an inhabited settled colony, the new sovereign retained powers by virtue of which it could extinguish local property rights meant that aspects of the recognition theory were also accommodated within this new doctrine.^[132]

By combining aspects of the continuity and recognition doctrines, Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled these two formerly distinct doctrines^[133] and replaced them with a singular doctrine: ‘continuity pro tempore’.^[134] Indeed, Brennan J’s reconciliatory approach bears a striking resemblance to that adopted by the Privy Council in Adeyinka Oyekan v Musendiku Adele,^[135] a case involving the cession of land to the British Crown in the former colony of Lagos. In that case, Lord Denning, delivering the judgment of the Judicial Committee of the Privy Council, expounded two propositions. The first was that in inquiring what rights are recognised after a change in sovereignty there is one guiding principle, namely that ‘[t]he courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.’^[136] The second proposition was that

‘[w]hilst ... the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.’^[137]

Thus, for both Brennan J and the Privy Council the test for determining whether pre-existing interests survive a change in sovereignty has two limbs: the continuity limb and the recognition limb. According to the continuity limb, there is a presumption that pre-existing rights survive a change in sovereignty. According to the recognition limb, however, the sovereign has power to unilaterally extinguish these surviving pre-existing rights. Consequently, in both ‘inhabited settled’ and ‘ceded’ territories (and, a fortiori, conquered territories) there is a rebuttable presumption of fact that the antecedent rights of the inhabitants survive a change of sovereignty.^[138] Thus, the continuity limb is a general guiding principle that applies irrespective of the colonial classification of a colony. Consequently, it is only in the context of the recognition limb that the constitutional status of a particular colony is relevant. The scope of the sovereign’s power of unilateral extinguishment varies, therefore, according to whether a colony is classified as inhabited settled, ceded or conquered.^[139]

A critical aspect of Brennan J’s treatment of the recognition limb is his agreement with Lester that the Recognition Doctrine addresses the question of the Crown’s prerogative power rather than the Crown’s proprietary rights.^[140] Thus, it is through the election to exercise, or to refrain from exercising, the Crown’s prerogative power that antecedent rights may be respected or abrogated.^[141] Contrary to Lester, however, rather than focusing on what amounts to recognition, Brennan J focuses on what amounts to extinguishment.^[142] As a result, Brennan J’s approach affords no basis for a general presumption for recognition by the new sovereign of pre-existing rights. Rather, recognition is a relative concept. Recognition is not concerned with extinguishment at the time when sovereignty is assumed. Nevertheless, it is only possible to draw an inference of recognition of pre-existing rights to land in circumstances where the Crown has not validly extinguished those rights. Only when the Crown has, at any given point in time, refrained from exercising its power to extinguish pre-existing rights are the rights recognised and thus enforceable. Accordingly, although the new sovereign allows native occupation and use of the land to continue undisturbed, this does not prevent the sovereign from subsequently exercising its power to abrogate those rights.

This interpretation of the recognition limb laid the foundation for Brennan J’s (and thus the majority’s) unique conclusion on the scope of the sovereign’s power to unilaterally extinguish pre-existing rights in Australia: in contradistinction to the generally accepted position in other common law jurisdictions which recognise pre-existing rights to land,^[143] the sovereign has a power to extinguish native title by inconsistent executive grant per se (without the need for legislative authority to extinguish).^[144] Thus, although the Crown has power to unilaterally extinguish pre-existing rights in conquered, ceded and inhabited settled colonies, this power is more ample in the case of an inhabited settled colony. The Crown’s power to acquire land in a conquered or ceded territory after it has accepted the territory into its dominions requires either confiscatory legislation or an agreement to purchase.^[145] In an inhabited settled colony, however, the Crown has power to extinguish antecedent rights and interests in land^[146] in the absence of legislation, without consent^[147] and without compensation.^[148]

The crucial point is that, as the counterbalance to rejecting the common law ‘desert and uncultivated’ doctrine for the purpose of determining the law on colonisation, Brennan J had to ‘resort to some new and different rule, better adapted to the actual state of things.’^[149] Brennan J developed a theory for the law that applied upon settlement of an inhabited territory that was consistent with Australia’s history and did not fracture a skeletal principle of the Australian legal system:^[150] upon acquisition of sovereignty, the Crown acquired a radical, rather than a beneficial, title to all land because pre-existing land rights continued until replaced by the new sovereign (by virtue of the doctrine of continuity pro tempore).^[151] Importantly, this theory did not disturb the validity of titles granted by the Crown.^[152]

In this context, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law,^[153] six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate. As the postulate of the Australian doctrine of tenure, radical title enables the common law regime governing the doctrine of tenure to apply ‘to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.’^[154] Thus, the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: although the ‘postulate of the doctrine of tenure’ limb of radical title continues to assure the Crown of its paramount lordship over tenures created by Crown grant, it does so in new, limited circumstances. Title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant: the principle ‘nulle terra sans seignour’ is otiose.

Indeed, the High Court redefined the English doctrine of tenure, or, more accurately, defined the Australian doctrine of tenure, to accommodate the recognition of pre-existing property rights (not derived from Crown grant) via the continuity pro tempore doctrine. Thus, as a result of the Australian version of the doctrine of tenure, with radical title as its postulate, and the ‘continuity’ element of the doctrine of continuity pro tempore, common law recognition of rights in land created outside the doctrine of tenure was possible.^[155]

In this way, Brennan J reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonisation of a settled, yet inhabited, colony. Whereas the common law pre-Mabo distinguished between the doctrine prescribing the general law that applied upon settlement and the doctrine prescribing the effect of Crown acquisition of territory on aboriginal land rights (as the two doctrines were justified on antithetical grounds), the Australian common law post-Mabo includes a singular doctrine. In prescribing the law that applies upon settlement, this singular doctrine (a modified doctrine of reception) includes the test for determining whether pre-existing land rights survive a change in sovereignty.

Since the new doctrine prescribing the system of law that applies upon settlement of an inhabited territory (a modified doctrine of reception) includes a merged version of the continuity and recognition doctrines (continuity pro tempore), it effectively replaces the three formerly distinct doctrines of reception, continuity and recognition. ‘Legal history, authority and principle’,^[156] therefore, combined to develop a theory for the recognition of pre-existing property rights following the Crown’s acquisition of sovereignty over Australia: an inhabited settled territory.^[157]

Accordingly, the High Court’s decision in Mabo not only preserves the distinction between settled territories on the one hand and conquered or ceded territories on the other, it also clarifies the law that applies in territories which have been settled in circumstances like Australia. The only similarity between a settlement analogous to Australia and a territory acquired by conquest, therefore, is that rights in land predating sovereignty continued until altered. Brennan J’s analogy between ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’ is, therefore, an accurate statement of the legal consequences of Mabo. The rationale underlying the Mabo decision is, however, crucial: it means that arguments for similar recognition of Aboriginal customary laws beyond those relating to land cannot be based upon the Mabo principle.^[158]

It is clear that under the common law doctrine of reception, the laws of a conquered or ceded territory remain in force unless and until they are altered by the conquering nation.^[159] Accordingly, in a conquered or ceded territory, the doctrine of reception preserves all legal rights, not just property rights, of the inhabitants of the territory unless and until such rights are superseded by English law.^[160] Thus, on the hypothetical assumption that Australia was conquered, Aboriginal laws and customs including, but not necessarily limited to, laws and customs relating to land, would remain in force until altered. In Mabo, however, the High Court accepted that Australia was a settled territory. The essence of the Court’s decision lies in changing the law relating to land that applies in a colony acquired by settlement where the colony was not previously uninhabited.

IV. CONCLUSION

It has been seen that the concept of terra nullius (as opposed to the doctrine) has two limbs: the international law limb, which applies to questions of sovereignty, and the common law limb, which applies to questions of property. Thus, while the doctrine of terra nullius is only relevant at international law in deciding whether a state has acquired sovereignty by purported occupation, it is broadly analogous to the common law ‘desert and uncultivated’ doctrine, pursuant to which colonial acquisition by settlement dictated that the common law of England became the law of the colony in so far as it was applicable to colonial conditions.^[161] Land that can be lawfully acquired by settlement at common law (‘desert and uncultivated’ land) is, therefore, the equivalent of territory that is regarded as terra nullius in either its narrow or extended senses at international law. The crucial point, however, is that while both limbs of the concept of terra nullius classify inhabited land as uninhabited land for legal purposes, they serve different functions: a dichotomy highlighted by the High Court’s decision in Mabo.

In Mabo, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement. The Mabo High Court did not, however, reject the doctrine of terra nullius^[162] in any sense of denying Australian sovereignty which remains non-justiciable.^[163] Nor did the Court’s decision have the effect of re-classifying Australia as ‘conquered’ or ‘ceded’ rather than ‘settled’. Indeed, the High Court accepted that Australia was a settled territory.

The new element introduced by the High Court was the recognition of a new class of settled colony at common law.^[164] By ascribing to Australia the status of a colony acquired by settlement, though not previously uninhabited, the Court rejected the concept of terra nullius, rather than the doctrine of terra nullius,^[165] in its application to questions of property at common law. Thus, although sovereignty over Australia had been acquired under the enlarged doctrine of terra nullius at international law, the common law ‘desert and uncultivated’ doctrine, which had equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation, was rejected. Consequently, the High Court was free to prescribe (and indeed had to prescribe because there was no law on point) a doctrine relating to the law that applied in the colony.

Common law recognition of native title is therefore, the legal outcome of the application of a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore. The new, modified, doctrine of reception is itself, however, the direct result of the finding that, although Australia was settled, it was inhabited for legal purposes at common law. The application of the new doctrine of reception to Australia meant that, like other settled territories, the common law of England applied as far as applicable;^[166] but unlike other settlements, English common law principles relating to land did not immediately apply. Instead, because local land law continued to apply until replaced, the Crown acquired a radical, rather than beneficial, title to all land.

Rejection of the conventional approach undermined the two-fold feudal fiction of original Crown ownership of all land and original Crown grant, which is fundamental to the English doctrine of tenure, and facilitated the High Court’s redefinition of the doctrine of tenure, which would otherwise have applied as universally as it does in England.^[167] Thus, the doctrine of tenure has a limited role in Australian land law: title to land is no longer exclusively derived from Crown grant. The High Court’s finding that Australia was inhabited for legal purposes at common law has, therefore, resulted in the adjustment of ‘established’ legal doctrines to accommodate pre-existing aboriginal property rights.

Pre-Mabo, the land law of the previous inhabitants was not recognised or applied in a settled colony because the classification of such a colony as settled was justified on the ground that it was ‘legally uninhabited’ and thus there was no such previous law that could be applied. The enforceability of pre-existing property rights, therefore, depended on some different rule that, because it contradicted the ‘legally uninhabited’ rule, was necessarily a distinct and independent rule. Pre-Mabo, the authorities supported either the doctrine of continuity or recognition in this context. By combining aspects of the continuity and recognition doctrines, the doctrine of continuity pro tempore effectively reconciled these two formerly distinct doctrines and replaced them with a singular doctrine. Moreover, by incorporating the doctrine of continuity pro tempore, the modified doctrine of reception effectively replaced the three formerly distinct common law doctrines of reception, continuity and recognition.

Common law recognition of native title in Australia is, therefore, only possible because the Mabo High Court retrospectively clarified the doctrine of reception as it applied to Australia.^[168] The crucial point is that by proceeding within a framework of general principles of municipal law, the Mabo High Court rejected the legal doctrine classifying inhabited land as uninhabited in its application to questions of property at common law, but not in its application to the establishment of English sovereignty in international law. Thus, although the indigenous inhabitants and their occupancy of land are no longer retrospectively ignored when considering title to land in the settled yet inhabited colony of Australia, the Crown’s acquisition of sovereignty over Australia is still regarded as dependent upon the occupation of territory that was terra nullius. The Crown’s sovereignty over the territory is, however, no longer equated with Crown ownership of the lands therein.

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* LLB (Hons [1]) (JCU), PhD (UNSW); Barrister of the Supreme Court of Queensland; Senior Lecturer in Law, James Cook University. This article is derived from Chapters 1, 2 and 3 of the author’s PhD thesis: A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (UNSW, 2003, under contract for publication as a monograph by Routledge International). The author would like to thank Ms Rachel Bradshaw for her valuable work as research assistant for this paper.

¹ See D Hope, ‘Smokescreen Nullius’, The Weekend Australian: Inquirer, 25-26 February 2006, 22.

^[2] M Connor, The Invention of Terra Nullius: Historical and legal fictions on the foundation of Australia (2005).

^[3] (1992) 175 CLR 1. Mabo has also been reported in the following services: 66 ALJR 408; 107 ALR 1.

^[4] H Reynolds, The Law of the Land (1987).

^[5] Hope, above n 1, 52.

^[6] Although it will be seen that, contrary to Connor’s conclusion, terra nullius was in fact a legally recognized doctrine before the British acquisition of sovereignty over Australia (see text accompanying n 40), Connor’s failure to distinguish between international law and common law doctrines when examining the implications of the Mabo decision renders his analysis otiose from a legal perspective. Accordingly, Connor’s arguments that the doctrine of terra nullius was invented by historian Henry Reynolds and that the Mabo decision was based upon Reynolds’ flawed invention of terra nullius will not be pursued here.

^[7] Mabo and Others v State of Queensland (No.2) (1992) 175 CLR 1, 32-34; [33]-[34] (Brennan J). See also R H Bartlett, The Mabo Decision (1993) ix; D Ritter, ‘The ‘Rejection of Terra Nullius’ in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18(3) Sydney Law Review 5, 8.

^[8] The phrase is Blackstone’s: W Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (1765) (A Facsimile of the First Edition of 1765-1769, 1979) vol 1, 104; (15^th ed, 1982) 107 and is discussed in Mabo, 34-37 (Brennan J) and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 427. Note, however, that Blackstone also uses the phrase ‘desert uninhabited’ interchangeably with the phrase ‘desert and uncultivated’: W Blackstone, Commentaries on the Laws of England: Of the Rights of Things (1766) (A Facsimile of the First Edition of 1765-1769, 1979) vol 2, 7. In Mabo, Brennan J prefers the phrase ‘desert uninhabited’: at 34, 35, 36, 48, 58. See also U Secher, A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (unpublished Doctoral Thesis, UNSW, 2003), Chapter 1, 37-39.

^[9] See also U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of ‘Continuity Pro-Tempore’ [2004] UNSWLawJl 38; (2004) 27(3) University of New South Wales Law Journal 703, 707-708.

^[10] Mabo, above n 3, 37-38, 57 (Brennan J); 79-80 (Deane and Gaudron JJ); 182 (Toohey J; 138-139 (Dawson J).

^[11] Counsel for the Plaintiffs made it clear that their submissions were not directed towards arguing that Australia had not been ‘settled’: Transcript of Proceedings, Mabo and Another v Queensland, (High Court of Australia, 28-31 May 1991) 146. Counsel merely argued that, irrespective of the mode of acquisition of a colony, native interests inland were preserved as a burden upon the title of the Crown: at 3.

^[12] See, eg, former Chief Justice Sir Anthony Mason’s recent comments published in The Weekend Australian: D Hope, above n 1 , 52; D M Austin, ‘Mabo: Sorting the Fact from Fiction’ (1993) 7(4) Commercial Law Quarterly 13, 15; M Brabazon, ‘Mabo, The Constitution and the Republic’ (1994) 11 Australian Bar Review 229, 232; F Brennan, ‘Implications for Aborigines and Islanders’ in M A Stephenson, S Ratnapala (eds), Mabo: A Judicial Revolution (1993) 26; P Butt, ‘Native Land Rights in Australia: The Mabo Case’ (1995) The Conveyancer and Property Lawyer 33, 34-35; J R S Forbes, ‘Mabo and the Miners - Ad Infinitum?’ in M A Stephenson (ed), Mabo: The Native Title Legislation - A Legislative Response to the High Court’s Decision (1995) 49; M Gregory, ‘Rewriting History 1: Mabo v Queensland: The Decision’ (1992) 17(4) Alternative Law Journal 157; B Hocking, ‘Aboriginal Law Does Now Run in Australia’ [1993] SydLawRw 15; (1993) 15 Sydney Law Review 187, 188-189; G P McGinley, ‘Indigenous Peoples’ Rights: Mabo and Others v State of Queensland - The Australian High Court Addresses 200 Years of Oppression’ (1993) 21(2) Denver Journal of International Law and Policy 311, 318; G D Meyers, J Mugumbwa, ‘The Mabo Decision: Australian Aboriginal Land Rights in Transition’ (1993) 23 Environmental Law 1203, 1213; K Puri, ‘Mabo - A Legal Revolution?’ in Mabo - A Critical Review: Proceedings of the University of Queensland TC Bernie School of Law Annual Symposium, Brisbane, Friday, 6 November 1992, 19; H Reynolds, The Law of the Land (1992), 186, 195-196; G Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 205; Cf R H Bartlett, ‘The Mabo Decision’ (1993) Australian Property Law Journal 236, 241; H Gibbs, ‘Foreword’ in Stephenson and Ratnapala (eds), Mabo: A Judicial Revolution (1993) xiv; G Nettheim, ‘Native Title and International Law’ in M A Stephenson (ed), Mabo: The Native Title Legislation - A Legislative Response to the High Court’s Decision (1995) 36; P O’Connor, ‘Aboriginal Land Rights at Common Law: Mabo v Queensland’ [1992] MonashULawRw 13; (1992) 18(2) Monash University Law Review 251, 255; D Ritter, above n 7, 5.

^[13] This principle was stated by Gibbs J in New South Wales v The Commonwealth (The Seas and Submerged Lands Case) (1975) 135 CLR, 388 in the following terms: ‘The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.’ It precludes ‘any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown’s dominions’: Mabo, 31 (Brennan J). See also Post Office v Estuary Radio Ltd [1968] 2 QB 740, 753, (Diplock LJ); Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 11 (Gibbs J); 21 (Mason J).

^[14] The Court’s approach in relation to this aspect of the case also accords with inter-temporal law: see below, n 95.

^[15] See text below accompanying n 93. See also Former Chief Justice Sir Anthony Mason’s exposition of the correct position in The Weekend Australian: D Hope, ‘Smokescreen Nullius’, above n 1, 52: ‘the ideas behind terra nullius were not totally irrelevant but they weren’t critical to the decision at all’.

^[16] M Stuckey, ‘Feudalism and Australian Land Law: ‘A Shadowy, Ghostlike Survival’?’ [1994] UTasLawRw 4; (1994) 13 (1) University of Tasmania Law Review 102, 108. By a simple ceremony, which took place on 26 January 1788 and following the traditional form for claiming new territory, the British Crown asserted the right to control New South Wales. On 7 February 1788, in a more elaborate ceremony, the commission of Governor Phillip was read out, along with the Act of Parliament establishing the new colony, and the First Charter of Justice, which was given by Letters Patent of 2 April 1787.

^[17] See text below accompanying n 72.

^[18] See Part 2 below, text accompanying n 95. See also Coe v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193, 199-200.

^[19] See Secher, above n 9, section headed ‘The Constitutional Status of Australia: An Inhabited Settled Colony’, esp text accompanying n 5.

^[20] Although the acquisition of Australia occurred over 200 hundred years ago, the inter-temporal rule requires that the analysis focus, not on contemporary rules of international law, but on the rules existing in the 1770s: I Brownlie, Principles of Public International Law (1979) 131-133.

^[21] Cf N L Wallace-Bruce, ‘Two Hundred Years On: A Re-examination of the Acquisition of Australia’ (1989) 19(1) Ga J Int’l & Comp L 87, 89 and the authorities referred to in n 14, who states that there are five main modes of acquiring territory under international law: cession, occupation, prescription, accretion and conquest.

^[22] W Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (1765) (A Facsimile of the First Edition of 1765-1769, 1979) vol 1, 104-105; E de Vattel, The Law of Nations (Trans, original publication, 1982) Ch 18 [trans of: Le droit des gens]; K Roberts-Wray, Commonwealth and Colonial Law (1966) 99. A colony may be acquired by any one of these means or by a combination of two of them: at 99. For example, annexation of ceded colonies or conquered colonies: at 104-105, 107.

^[23] That is, land belonging to no one. ‘Terra Nullius’ ‘derives from classical Roman law under which the doctrine of ‘Occupatio’ acted to confer title upon the discoverer of an object that was ‘res nullius’, that is, ‘belonged to nobody’.’ In The Law of Nations, above n 22, the first edition of which appeared in 1758, (1758, Londres, Neufchatel, 2 vol. in quarto: see also Preface to the 1852 London edition), De Vattel refers to ‘How a nation acquires the property of a desert country’ (emphasis added). In post-Renaissance Europe, this doctrine was ‘conveniently and analogously’ applied in international law to the acquisition of territory by states: Ritter, above n 7, 7. See also G Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 203-205.

^[24] De Vattel, above n 22, Chapter 18, [207] headed: ‘How a nation appropriates to itself a desert country’. In this context, ‘uninhabited territory’ means ‘uninhabited territory that is also not under the control of any sovereign’: M F Lindley, The Acquisition and Government of Backward Territory at International Law: being a Treatise on the Law and Practice relating to Colonial Expansion (1926) 10. See also Ritter, above n 7, 7.

^[25] De Vattel, above n 22, Chapter 18, [208]. See also Ritter, above n 7, 7. Although opinions differed about exactly what types of inhabited land could be treated as terra nullius, ‘all the expanded definitions ... shared the common feature of explicit ethnocentricity’: Ritter, above n 7, 8.

^[26] De Vattel did, however, add ‘… we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession. This laudable example was followed by William Penn, and the colony of Quakers that he conducted to Pennsylvania’: The Law of Nations, above n 22), Chapter 18, [208]. De Vattel also ‘questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate’: id. He observed that: ‘It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use’. See also J M Bennett, A C Castles, A Sourcebook of Australian Legal History (1979) 250-252; H McRae, G Nettheim; L Beacroft, Aboriginal Legal Issues (1991) 76-78. Vattel’s ideas reflected the ideas of men such as John Locke on the justification for private ownership of property in the sphere of international law: see J Locke, The Second Treatise of Civil Government (edited and with an introduction by J W Gough) (1946). Reynolds argues that although Vattel’s writings offered a justification for colonising part of the continent, they did not justify the expropriation of the whole continent: H Reynolds, The Law of the Land (1987) 18.

^[27] [1975] 1 ICJR 12, 38-39; [79]-[80]. See also Re Thomas Steven Phillips Ex parte Aboriginal Development Commission (1987) FCA 128, [8] (Neaves J).

^[28] Or the United Kingdom: see Re Thomas Steven Phillips Ex parte Aboriginal Development Commission (1987) FCA 128, [9] (Neaves J).

^[29] (1979) 18 ALR 592 (FCA); 24 ALR 118 (HCA).

^[30] (1979) 18 ALR 592, 596.

^[31] (1979) 24 ALR 118, 128. See also Jacobs J, 132-133: ‘[The validity of the Crown’s proclamations of sovereignty and sovereign possession] are not matters of municipal law but of the law of nations and are not cognizable in a court exercising jurisdiction under that sovereignty which is sought to be challenged.’

^[32] Sir Harry Gibbs, former Chief Justice of the High Court of Australia, has observed that the ‘expression ‘terra nullius’ seems to have been unknown to the common law. I have found no trace of it in legal dictionaries ranging from Cowel’s Interpreter (1701 ed) to Stroud’s Judicial Dictionary (1986 ed). It is not mentioned in Tarring’s Law Relating to the Colonies (1913 ed) which in its day was regarded as authoritative’: Foreword in Stephenson and Ratnapala (eds), Mabo: A Judicial Revolution - The Aboriginal Land Rights Decision and Its Impact on Australian Law, above n 12, xiv. See also Re Thomas Steven Phillips Ex parte Aboriginal Development Commission (1987) FCA 128, [9]-[11] (Neaves J). The Commonwealth Government also acknowledged this in its written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989, stating that ‘[t]erra nullius is a concept of public international law; it would be inappropriate to use it in the context of domestic land claims’: cited by G Simpson ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 210, n 109..

^[33] The phrase is Blackstone’s: see above n 8. See also text accompanying n 39 below. See also Blankard v Galdy [1795] EngR 570; (1693) Holt KB 341 (91 ER 356), n 39.

^[34] According to Blackstone, this distinction was based upon the law of nature, or at least upon that of nations: Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104. See also Blankard v Galdy [1795] EngR 570; (1693) Holt KB 341 (91 ER 356); Lyons (Mayor of) v East India Co. [1836] EngR 1155; (1836) 1 Moo PC 175, 272-273 [1836] EngR 1155; (12 ER 782, 818); Cooper v Stuart (1889) 14 App Cas; The Lauderdale Peerage (1885) 10 App Cas 692, 744-745; Kielley v. Carson [1842] EngR 593; (1842) 4 Moo PC 63, 84-85 [1842] EngR 593; (13 ER 225, 233).

^[35] In Case 15 - Anonymous ((1772) 2 Peer William’s Reports 75; [1722] EngR 1; 24 ER 646, it was held that ‘if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so, wherever they go, they carry their laws with them, and therefore such new-found country is governed by the laws of England.’ See also Mr Justice B H McPherson, ‘The Mystery of Anonymous (1722)’ (2001) 75 Australian Law Journal 169. A different position prevailed, however, if a country was conquered. In that case, the governance of the country was within the royal prerogative, and the king could impose upon them whatever law he chose to make. However, until such time as the king did in fact make new law, the laws and customs of the conquered country remained in force: ‘unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent.’ See also Blackstone, 1 Commentaries on the Laws of England, vol 1, above n 8, 104-105. In the case of Campbell v Hall [1774] EngR 5; (1774) 20 State Tr 239; 98 ER 1045, where the law of a ceded colony was in question, treated the doctrine as stated by Blackstone as settled beyond doubt. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 201, Blackburn J, citing Campbell v Hall, considered that Blackstone’s doctrine was settled beyond doubt in 1788 for settled colonies: Roberts-Wray, above n 22, 540-541.

^[36] Case 15 - Anonymous ((1772) 2 Peer William’s Reports 75; [1722] EngR 1; 24 ER 646; Mabo, 35 per Brennan J; Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104-105; (15^th ed) 107; accord Forbes v Cochrane [1824] EngR 93; (1824) 2 B & C 448, 463; [1824] EngR 93; 107 ER 450, 456; Roberts-Wray, above n 22, 540-541. English law would become the law of a territory outside England either upon first settlement by English colonists of a ‘desert and uncultivated’ country or by the exercise of the Sovereign’s legislative power over a conquered or ceded territory. The received English law of a colony included both the unwritten law (common law and equity) and the statute law in force at the time of settlement. English statute law subsequently enacted only applied if it was specifically extended to the colony: J Chitty, A Treatise on the Law of the Prerogatives of the Crown and the Relative Rights and Duties of the Subject (1820) 32-33. See also Blankard v Galdy (1693) Holt KB 341; PC Memorandum [1722] EngR 1; (1722) 2 P Wms 75; R v Vaughan [1769] EngR 73; (1769) 4 Burr 2494, 2500; Forbes v Cochrane [1824] EngR 93; (1824) 2 B & C 448, 463; Kielley v Carson [1842] EngR 593; (1843) 4 Moo PC 63, 84-85; The Lauderdale Peerage (1885) 10 App Cas. 692, 744-745; Cooper v Stuart (1889) 14 App Cas 286, 291-292. The situation that English law accompanied the colonists to the extent that it was applicable to local circumstances in settled territories, had the result that, apart from statute, the Crown had no legislative authority: Jennings v Hunt (1820) 1 Nfld LR 220, 225; affd sub nom. Hunt v Jennings (1827, PC, no reasons: see Privy Council, ‘Printed Cases in Indian and Colonial Appeals Heard in 1827’, 333, 362; G S Lester, ‘Primitivism versus Civilisation’ in C Brice-Bennett (ed), Our Footprints are Everywhere, 351, 371 n 77 cited by K McNeil, Common Law Aboriginal Title (1989) 115; Kielley v Carson [1842] EngR 593; (1843) 4 Moo PC 63, 84-84; Sammut v Strickland [1938] AC 678, 701; H V Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409, 421-422. Thus, although the Crown had power to establish courts of justice and constitute a representative assembly, the British Settlements Acts (6 & 7 Vict, c 13; 23 and 24 Vict, c 121; 50 & 51 Vict, c 54, amended 9 Geo VI, c 7) were passed to give the Crown legislative authority over settlements not within British legislative jurisdiction: Sabally & N’Jie v Attorney-General [1964] 3 WLR 732, 744-745.

^[37] Case 15 - Anonymous ((1772) 2 Peer William’s Reports 75; [1722] EngR 1; 24 ER 646. See also Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104-105; Roberts-Wray, above n 22, 541-542. This was, however, subject to the qualification that where English settlers formed their own separate community, English law governed that community: Advocate General of Bengal v Ranee Surnomoye Dossee [1863] EngR 761; (1863) 15 ER 811, 824.

^[38] Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104. See also Mabo, [35] per Brennan J and n 8. As early as 1693, the Court of King’s Bench in Blankard v Galdy (1693) Holt KB 341, 342 [1795] EngR 570; (91 ER 356, 357) observed that: ‘In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there; so it seemed to be agreed’.

^[39] De Vattel, above n 22, Chapter 18, [207], emphasis added. See also above n 25 and accompanying text and n 26.

^[40] Mabo, 41 (Brennan J); P Butt, Land Law (2001) 61.

^[41] In the context of Australian Aborigines, the two most important elements were the ‘established law’ approach combined with a ‘vague criterion of nomadism’: K McNeil, Common Law Aboriginal Title, above n 36), 121.

^[42] See comments by Harry Gibbs, former Chief Justice of the High Court of Australia and the Commonwealth Government’s written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989: see above n 33.

^[43] Cooper v Stuart (1889) 14 App Cas, 291 per Lord Watson.

^[44] Mabo, [36].

^[45] Attorney-General v Brown (1847) Legge 312, 319 per Stephen CJ; also cited in Mabo, 40 per Brennan J.

^[46] ‘Occupation’ and ‘settlement’ are used interchangeably in respect of both the common law and the international law doctrines relating to the classification of inhabited land as uninhabited. However, and notwithstanding that the term ‘settlement’ has often been preferred by Australian judges and writers when referring to the international law method of acquisition known as ‘occupation’ (see, for example, Coe v The Commonwealth (1979) 24 ALR 118, 129 (Gibbs J)), as the common law term is ‘settlement’ (see Mabo, 33 (Brennan J, Mason CJ and McHugh J concurring)), ‘occupation’ will be employed to refer to the international law doctrine.

^[47] See text accompanying n 57 above. Indeed, such confusion raises interesting questions about the very foundation of such an extension. Although the matter cannot be pursued here, if, to use the words of Brennan J in Mabo (at 52), the ‘fallacy of equating sovereignty and beneficial ownership of land’ gave rise to the enlarged doctrine of terra nullius, this may, post-Mabo, provide a basis for allowing the appropriate Court to reconsider and retrospectively reject the doctrine.

^[48] No land without a lord. That is, feudalism involved dependent landholding: the holding of land in return for the rendering of services.

^[49] This identification of New South Wales as a settled territory was confirmed by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286, 291 (Lord Watson delivering the opinion of the Privy Council). That South Australia came into the same category, as a matter of law, has been held by the Supreme Court of that State: White v McLean (1890) 24 SASR 97. John Hookey argues that the declaration of Australian colonies as settled rather than conquered was a ‘convenient doctrine’ but not a satisfactory one, and that neither the settlement nor conquest hypothesis were satisfactory as each required the acceptance of too many legal fictions: J. Hookey, ‘Settlement and Sovereignty’ in P Hanks, B Keon-Cohen (eds), Aborigines and the Law (1984). It will be seen in Chapter 3 that the High Court has confirmed that Australia was settled. The new element introduced by the majority of the High Court was the rejection of the common law classification of inhabited land as ‘desert and uncultivated’ for the purpose of the doctrine of reception.

^[50] Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 107.

^[51] Butt, above n 42, 2; H V Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409, 421.

^[52] 9 Geo IV c 83, s 24. Section 24 of the Act provided that all laws and statutes in force in England at the date of the enactment of the legislation should be applied in the courts of New South Wales and Van Diemen’s Land so far as they were applicable. See also State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 625, 634.

^[53] From 25 July 1828, the date of the enactment of the Australian Courts Act 1828 (Imp), the two colonies of New South Wales and Van Diemen’s Land were placed on the same footing as any other settled colony. Queensland and Victoria were originally part of New South Wales, and, therefore, the same date applies in those states for the reception of English law. South Australia and Western Australia adopted a different date for the reception of English law. English law was taken to have been received as at the date of the settlement of the colony. The relevant dates are 28 December 1836 for South Australia, and 1 June 1829 for Western Australia: see the Acts Interpretation Act 1915 (SA), s 48 and the Interpretation Act 1918 (WA), s 43. The significance of these dates for future Australian law was that all the common law and statute law which existed in England as at the relevant date was treated as being the law of the colony without the need for further enactment by the local legislature.

^[54] See, for example, A J Bradbrook, S MacCallum, A P Moore, Australian Real Property Law (1997) 1-2; Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23(4) Anglo-American Law Review 397, 398; S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ [2005] MelbULawRw 2; (2005) 29(1) Melbourne University Law Review 39; S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ [2005] SydLawRw 3; (2005) 27 Sydney Law Review 49.

^[55] R v Farrell (1831) 1 Legge 5; MacDonald v Levy (1833) 1 Legge 39; R v Steele (1834) Legge 65; Hatfield v Alford (1846) 1 Legge 330; Attorney-General v Brown (1847) Legge 312; Doe d Wilson v Terry (1849) 1 Legge 505, 508-509.

^[56] For the post-Mabo position see U Secher, ‘Aboriginal Customary Law Versus Native Title: the Mabo Decision - Preserving the Distinction between ‘Settled’ and ‘Conquered or Ceded’ Territories’ [2005] UQLawJl 2; (2005) 24 (1) University of Queensland Law Journal 35.

^[57] New South Wales v Commonwealth of Australia (1975) 135 CLR 337, 438, Stephen J citing Isaacs J in Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404.

^[58] Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 439 (Isaacs J); New South Wales v Commonwealth of Australia (1975) 135 CLR 337, 438-439 (Stephen J); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

^[59] The King v Steel (1834) 1 Legge 65, 68-69 (Forbes CJ); Hatfield v Alford (1846) 1 Legge 330, 336 (Stephen CJ); 345 (Dickinson J); Attorney-General v Brown (1847) 1 Legge 312, 316 (Stephen CJ delivering the judgment of the Court); Doe d Wilson v Terry (1849) 1 Legge 505, 508-509 (Stephen CJ); Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 428 (Barton CJ); Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71 (approving Stephen CJ’s treatment of the matter in Brown). The implications of the Mabo decision for both of these sources of the Crown’s title are examined by the author in her doctoral thesis, above n 8, Chapter 4. Occupancy as the basis of the Crown’s title to land is specifically dealt with in Chapter 7.

^[60] Attorney-General v Brown (1847) 1 Legge 312, 318, 324 per Stephen CJ; Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71 (approving Stephen CJ’s treatment of the matter in Brown). See also New South Wales v Commonwealth of Australia 1975) 135 CLR 337, 438-439 per Stephen J.

^[61] See above n 60.

^[62] For the post-Mabo position see Secher, above n 9, Chapters 3 and 7.

^[63] Attorney-General v Brown (1847) 1 Legge 312 (Stephen CJ) cited in New South Wales v Commonwealth of Australia 1975) 135 CLR 337, 439 (Stephen J).

^[64] The King v Steel (1834) 1 Legge 65, 68-69 per Forbes CJ; Hatfield v Alford (1846) 1 Legge 330, 336 per Stephen CJ; 345 per Dickinson J; Attorney-General v Brown (1847) 1 Legge 312, 316 (Stephen CJ) (delivering the judgment of the Court); Doe d Wilson v Terry (1849) 1 Legge 505, 508-509 (Stephen CJ); Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 428 (Barton CJ); 439 (Isaacs J); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 244-245; New South Wales v Commonwealth of Australia (1975) 135 CLR 337, 438-439 (Stephen J).

^[65] Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 439 (Isaacs J).

^[66] (1971) 17 FLR 141 (The Gove Land Rights Case).

^[67] Mr Woodward, counsel for the plaintiffs in Milirrpum, conceded that the plaintiffs’ contention was a ‘novel one in an Australian Court’, above n 64, 150, 199.

^[68] (1971) 17 FLR 141 (The Gove Land Rights Case).

^[69] Milirrpum, 198.

^[70] Ibid 217, 262. See also 201-244; M A Neave, C J Rossiter, M.A. Stone, Sackville & Neave Property Law: Cases and Materials (1999), 154; McNeil, above n 36, 293.

^[71] See Secher, above n 8, Chapter 3, 141-142.

^[72] B Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories (Doctoral Thesis, University of Saskatchewan Native Law Centre, Saskatoon, Saskatchewan, 1979).

^[73] Ibid 50-59. In the absence of seizure of privately held lands by act of state during the course of acquisition of territorial sovereignty by the Crown or subsequent confiscation by legislation there is a presumption that private property rights continue after a change in sovereignty. Slattery rejects the distinction between settled and conquered colonies: B Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727, 738. He treats the ‘doctrine of aboriginal rights’ as a colonial law (or imperial constitutional law) doctrine, which, like other doctrines of colonial law applied automatically to a new colony when the colony was acquired. Thus, in the same way that colonial law determined whether a colony was deemed to be settled or conquered, it also supplied the presumptive legal structure governing the position of native peoples: at 737. In this way, the doctrine of aboriginal rights was ‘part of a body of fundamental constitutional law that was logically prior to the introduction of English common law and governed its application in the colony’: at 737-738. In this way, Slattery amalgamates the two theories. He also refers to the history of English settlement together with the practice of importing English law into the English factories in India to explain why English law applied in the Canadian communities. His theory is ultimately based upon Canadian history and constitutes a legal description of what occurred politically: at 732.

^[74] Slattery, above n 72, 146-153, 156-157; Slattery (1987) above n 73, 748. In a conquered or ceded colony the Crown retains prerogative legislative powers by which it could extinguish such property rights before a representative assembly was summoned (Campbell v Hall [1774] EngR 5; (1774) Lofft 655, 742) or before English law was introduced: see authorities cited by K McNeil, above n 36), 164 nn 14 and 15.

^[75] G S Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (D Juris Thesis, York University, Toronto, 1981). Lester’s thesis was cited by Brennan J in Mabo, 39. It is summarised by D W Elliott, ‘Aboriginal Title’ in B W Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1991) 100, 110-111.

^[76] Lester supports this theory as being the more correct approach.

^[77] Lester, above n 75, 1412-1445. Lester derives this theory from cases from Ireland and Wales and from the decision in The Queen v Symonds (1847) [1840-1932] NZPCC 387 (NZSC) as supported by some comments of the Privy Council in Tamaki v Baker [1901] AC 561, 579.

^[78] Lester, above n 75, 75-81. Slattery refers to this approach as the ‘doctrine of radical discontinuity’: B Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Title (University of Saskatchewan Native Law Centre, Saskatoon, Saskatchewan, 1983), 8-9.

^[79] See summary of Lester’s arguments in D W Elliott, above n 75; and summary of Slattery’s argument in Slattery, above n 73.

^[80] K McNeil, above n 36, 162 ff. McNeil agrees with Slattery that whatever the constitutional status of a colony, pre-existing private property rights continue as a result of the doctrine of continuity. Although McNeil agrees with Lester’s conclusion that the Crown could not, in its executive capacity and simply by virtue of acquiring sovereignty over a settlement, acquire title to land then occupied by indigenous people under their own customary systems of law (McNeil at 4) he disagrees with Lester’s view that in conquered and ceded territories land rights must have been recognised legislatively or executively to be enforceable against the Crown (see McNeil, Chapter 6).

^[81] Milirrpum, 245.

^[82] Ibid.

^[83] Ibid 245. For a discussion on the continuity and recognition doctrines, see text accompanying n 72.

^[84] For general critiques of the decision see: J Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia’ [1972] FedLawRw 5; (1972) 5 Federal Law Review 85; L J Priestley, ‘Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case’ [1974] FedLawRw 5; (1974) 6 Federal Law Review 150; B Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (1979) 10 Federal law Review 161; and R H Bartlett, ‘Aboriginal Land Claims at Common Law’ (1983) 15 University of Western Australia Law Review 293; M C Blumm, J Malbon, ‘Aboriginal Title, the Common Law and Federalism: A Different Perspective’ in M P Ellinghaus, A J Bradbrook, and A J Duggan, The Emergence of Australian Law (Butterworths, Sydney, 1989). Among the most vocal of critics was the historian Henry Reynolds, who, in his book, The Law of the Land, above n 4, raised questions about the correctness of the vesting of ownership in the Australian continent in the British Crown.

^[85] (1972-3) 130 CLR 353, 397: An appeal to the High Court from Papua New Guinea.

^[86] Ibid.

^[87] Coe v Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland (1979) 53 ALJR 403.

^[88] Northern Land Council v Commonwealth of Australia (No 2) [1987] HCA 52; (1987) 61 ALJR 616.

^[89] For a discussion of the recognition doctrine see text accompanying n 72. This situation was remedied, to some extent, in the Northern Territory by the enactment of the first Commonwealth land rights legislation in 1976: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Equivalent measures were subsequently adopted in a number of other Australian: see B Hocking, above n 13, 180, nn 25 and 27; 183, n 40; G Nettheim, ‘Native Title and Statutory Title’ in Stephenson (ed), Mabo: The Native Title Legislation - A Legislative Response to the High Court’s Decision, above n 12; M A Stephenson, ‘Statutory Schemes of Native Title and Aboriginal Land in Queensland: The Relationship of the Queensland Aboriginal Land Act 1991 with the Commonwealth Native title Act 1993 and the Native Title (Queensland) Act 1993 (1995) 2 James Cook University Law Review 109.

^[90] Blackstone uses this term: see above n 8.

^[91] The Commonwealth Government acknowledged this in its written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989, stating that ‘[t]erra nullius is a concept of public international law; it would be inappropriate to use it in the context of domestic land claims’: cited by G Simpson ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 210 n 109. See also comments by Sir Harry Gibbs, former Chief Justice of the High Court of Australia: above n 32

^[92] See above n 38.

^[93] Four of the majority judges expressly relied upon the critical examination of the theory of terra nullius by the International Court of Justice in its Advisory Opinion on Western Sahara [1975] ICJR 12 to reject the doctrine of terra nullius as a basis for the colonial acquisition of inhabited territories: at 40-41 (Brennan J with whom Mason CJ and McHugh J concurred); 141-142 (Toohey J). It was not until 1975 that an international tribunal raised doubts about the question whether land occupied by indigenous people could be considered terra nullius: Advisory Opinion on Western Sahara (1975) ICJR 12. Although the separate opinion of Vice President Ammoun considered that the concept of terra nullius had been employed at all periods to justify conquest and colonisation and as such stood condemned (at 86), the majority thought that territory was not terra nullius if it were occupied by people having ‘social and political organisation’: 39. The majority view appears to indicate that territory inhabited by people not having such organisation is terra nullius. Further, the High Court failed to note that the International Court of Justice actually applied the inter-temporal rule: see above n 81. ‘The question was whether the territory was terra nullius according to the international practice of 1884, the date of Spain’s colonisation ... The relevant date was 1884, not 1974 (when the dispute arose) or 1975 (when the Court wrote its opinion)’: R L Sharwood, ‘Aboriginal Land Rights: Further Reflections’ (1995) 93 Victorian Bar News 41, 45-46. See also D J Harris, Cases and Materials on International Law (3^rd ed, 1983), 165-167; N L Wallace-Bruce, ‘Two Hundred Years on: A Re-examination of the Acquisition of Australia’ (1989) 19 Georgia Journal of International and Comparative Law 87, 88.

^[94] Mabo, 69 (Brennan J). This principle was stated by Gibbs J in New South Wales v The Commonwealth (The Seas and Submerged Lands Case) (1975) 135 CLR, 388 in the following terms: ‘The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.’ It precludes ‘any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown’s dominions’: Mabo, 31 (Brennan J). See also Post Office v Estuary Radio Ltd [1968] 2 QB 740, 753, (Diplock LJ); Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 11 (Gibbs J); 21 (Mason J). The Court’s approach in relation to this aspect of the case also accords with inter-temporal law. The inter-temporal rule is an established rule of international law and provides that where ‘the rights of parties to a dispute derive from legally significant acts ... very long ago ... the situation in question must be appraised ... in the light of the rules of international law as they existed at the time, and not as they exist today’: D J Harris, Cases and Materials on International Law, above n 93, 165-167. In the Island of Palmas Case 2 RIAA 829, the rule was stated thus: ‘judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be determined.’

^[95] Mabo, 41 (Brennan J). Note that, although all the majority justices referred to the concept of terra nullius (Mabo, 32, 33, 34, 36, 40, 41, 45, 48, 58 (Brennan J, with whom Mason CJ and McHugh J agreed at 15; 103, 108, 109 (Deane and Gaudron JJ); 180, 181, 182 (Toohey J), Toohey J was the only judge who expressly referred to the ‘doctrine of terra nullius’, and this was in a footnote: see Mabo, 181, fn 79.

^[96] That is, all the majority justices rejected the concept, or to use the words of Brennan and Toohey JJ, the ‘notion’ of terra nullius rather than the doctrine of terra nullius: Mabo, 45, 58 (Brennan J, with whom Mason CJ and McHugh J agreed at 15); 109-109 (Deane and Gaudron JJ); 182 (Toohey J).

^[97] Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of ‘Continuity Pro-Tempore’, above n 9. Part III: ‘The Continuity and Recognition Doctrines Revisited’. See also text accompanying n 129.

^[98] Mabo, 40-41 (Brennan J relying on the International Court of Justice Advisory Opinion on Western Sahara [1975] 1 ICJR 12, 39); 182 (Toohey J).

^[99] Ibid 17-18, 21-22 (Brennan J); 99-100 (Deane and Gaudron JJ); 182 (Toohey J).

^[100] Ibid 42 (Brennan J); 109 (Deane and Gaudron JJ).

^[101] See Mabo, 15 (Mason CJ and McHugh J).

^[102] Ibid 32. This was because the manner in which a sovereign acquires new territory is a matter of international law, and, by the common law, the law in force in a newly-acquired territory depends upon the manner of its acquisition by the Crown.

^[103] Ibid 33.

^[104] See also above n 96.

^[105] Mabo, 33-34. See also Blackstone, Commentaries on the Laws of England vol 1, above n 8, 104; (15^th ed), 107.

^[106] Ibid 36. See also text accompanying n 45.

^[107] Mabo, 38.

^[108] Ibid 37-38.

^[109] Ibid 37. Moreover, because the indigenous inhabitants of a settled colony and their occupancy of colonial land were ignored in considering the title to land, the ‘Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein’: Mabo, 40.

^[110] His Honour’s conclusion was supported by evidence demonstrating the existence of a complex and settled relationship of rights and obligations between the indigenous people and their land: the findings of Moynihan J are summarised at 17-18, 21-22, 24. See also Blackburn J’s findings on the evidence presented in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267: ‘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.’ Thus, faced with a contradiction between the authority of the Privy Council in Cooper v Stuart and the evidence, Blackburn J concluded that the class to which a colony belonged was a question of law, not of fact: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 244; see also Mabo, 39 (Brennan J).

^[111] Mabo, 39.

^[112] Ibid 38, 39.

^[113] Ibid 42.

^[114] Ibid 40. See also 42.

^[115] (1919) AC 211.

^[116] (1971) 17 CLR 141. See also text accompanying n 68.

^[117] [1919] AC 211, 233-234.

^[118] This theory suggested a possible ground of distinction in the case of settled territories and led to detailed analysis of the legal and social systems of the plaintiffs in Milirrpum v Nabalco Pty Ltd (1971)17 FLR 141 and in Mabo. If accepted, this distinction could conceivably have seen a distinction drawn between the rights of the Meriam people and other Aboriginal and Islander people on the basis that some were more ‘civilised’ than others. Brennan J clearly repudiated the In re Southern Rhodesia doctrine to the extent that it dismissed a priori the claims of native inhabitants of settled colonies: see Mabo, 40.

^[119] With respect, this was the theory advanced to justify the extension of the doctrine of terra nullius to the acquisition of inhabited territories by occupation under international law, and not to determine what system of law would be applied and what proprietary rights would be recognised in settled colonies: see In re Southern Rhodesia [1919] AC 11, 233-234.

^[120] Mabo, 40 (emphasis added). His Honour’s reference to the concept of terra nullius merely acknowledged that when sovereignty of a territory was acquired under the enlarged doctrine of terra nullius, it followed that for the purposes of the common law that such territory was treated as ‘desert and uninhabited’ although it was inhabited: at 36. See also n 96 above.

^[121] Relying on the International Court of Justice Advisory Opinion on Western Sahara [1975] 1 ICJR 12, 39, 85-86.

^[122] As Brennan J’s reasons were adopted by Mason CJ and McHugh J, his leading judgment represents a fundamental restatement of the common law as it applies in Australia: see n 103 above.

^[123] A division of ceded territories into two classes, those acquired by an act of cession from some sovereign power and those ceded by the general consent of the inhabitants, was suggested by the respondent in Sammut v Strickland [1938] AC 678, 699-701. The Privy Council, however, rejected this contention as they interpreted it to mean that British possessions acquired by voluntary cession would, in effect, be British settlements: at 700. Observing that ‘until the present case no one seems to have distinguished or divided cessions to the Crown in the way suggested’, they nevertheless noted that cases of voluntary cession are rare and urged that the case had been neglected by text-book writers and had not been noticed by the legislature: at 700-701.

^[124] It will be seen that this finding reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonization: see text accompanying n 129 below.

^[125] Blackstone, Commentaries on the Laws of England: Of the Rights of Things, vol 2, above n 8, 8.

^[126] Mabo, 45. His Honour observed that ‘[i]t 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 in a colony 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. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too.’

^[127] Mabo, 57. Thus recognition of pre-existing rights was limited to rights in land. See also Secher, ‘Aboriginal Customary Law Versus Native Title: the Mabo Decision - Preserving the Distinction between ‘Settled’ and ‘Conquered or Ceded’ Territories’, above n 56 and Secher, above n 8, Chapter 9, esp, 510-513.

^[128] Although it will be seen that the land rights of inhabitants of a settled colony are more vulnerable than those in a conquered colony, before a conquered colony becomes accepted into the Crown’s dominion, the act of state doctrine allows the Crown, at the time of conquest, to seize and thus acquire title to both land and chattels: see McNeil, above n 36, 161-180, esp162-163 and authorities cited at 162 n 10.

^[129] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 245 (Blackburn J).

^[130] See text accompanying n 73 above. McNeil argues that the doctrine of continuity as articulated by Slattery is historically correct: see text accompany n 80 above.

^[131] See text accompanying n 80 above. See also summary of Lester’s arguments in D W Elliott, above n 76; and summary of Slattery’s argument in Slattery, above n 74.

^[132] In this context, Brennan J’s approach accords with Lester’s conclusion that ‘the Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated’: Lester, above n 75, 959. Cf Lester’s conclusion that the recognition doctrine does not apply to inhabited settled colonies. Lester reached this conclusion because he applied the received view of the doctrine of reception to such colonies: at 961. Accordingly, there was no prerogative power to unilaterally abrogate the property rights of the Crown’s subjects. Note that in Mabo, Deane, Gaudron and Toohey JJ applied the doctrine of continuity as articulated by Slattery and adopted by McNeil. For a different interpretation of the approaches of the majority judges on the effect of Crown acquisition of territory on aboriginal rights to land see: B Selway QC, ‘The Role of Policy in the Development of Native Title’ (2000) Federal Law Review 403, 414-416.

^[133] The term ‘continuity pro tempore’ (indicating that continuity is for the time being only) is suggested as a useful alternative for the new assimilated doctrine: Cf McNeil, above n 36, 175-176. See also U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of ‘Continuity Pro-Tempore’ [2004] UNSWLawJl 38; (2004) 27(3) University of New South Wales Law Journal 703.

^[134] Indicating the presumption of continuity is only ‘for the time being’; that continuity is a rebuttable presumption of fact. See above n 133, See also Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of ‘Continuity Pro-Tempore’ [2004] UNSWLawJl 38; (2004) 27(3) University of New South Wales Law Journal 703, where the author examines the status of the ‘continuity’ and ‘recognition’ doctrines in Australia post-Mabo and the distinction between the scope of the Crown’s prerogative powers in inhabited settled colonies (like Australia) on the one hand, and in conquered or ceded colonies on the other. Crucially, the author’s argument that, as a result of the High Court’s restatement of the common law in Mabo, there is a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the doctrine of continuity pro tempore (a merged version of the continuity and recognition doctrines), has been cited with approval by the Federal Court: Gumana v Northern Territory [2005] FCA 50, [121].

^[135] [1957] 2 All ER 785.

^[136] [1957] 2 All ER 785, 788.

^[137] Ibid.

^[138] Cf Lester, above n 75, 933.

^[139] Although Lester agrees with this proposition, his conclusion on the scope of the sovereign’s power in a settled colony is in stark contrast to that of Brennan J, see Lester, above n 76, 961-962, 933.

^[140] Lester had concluded that: ‘[T]he Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated: see Lester, above n 75, 95. See also at 881, where Lester states that the ‘Recognition Doctrine addresses the question of the enforceability against the Crown’. Although Lester concludes that the recognition doctrine does not apply to inhabited settled colonies, this is because he applied the received view of the doctrine of reception to such colonies: at 961. Accordingly, there was no prerogative power to unilaterally abrogate the property rights of the Crown’s subjects.

^[141] Lester, above, n 75, 959.

^[142] Lester argues that pursuant to the recognition doctrine ‘the only enforceable rights which the inhabitants have as against their new sovereign are those, and only those, which that sovereign, by agreement, express or implied, or by a course of conduct, has elected to confer on them’: Lester, above, n 75, 959.

^[143] Although noting that other common law countries have recognised that there can be grants of interests in land that are inconsistent with the continued existence of native title, the High Court dismissed such cases as providing direct assistance on the ground that they may have been affected by the existence of treaty or other like obligations: see authorities cited in Fejo v Northern Territory [1998] HCA 58; (1998) 72 ALJR 1442, 1545 n 70. Note that these authorities do not, however, relate to extinguishment by executive grant per se.

^[144] Mabo, 68-69 (Brennan J). Although Deane and Gaudron JJ also indicated that native title might be extinguished by inconsistent Crown grant irrespective of any legislative intention to extinguish, they held, in accordance with the doctrine of continuity, that although native title would be subordinated to the Crown grant it would constitute a wrongful act and be actionable: Mabo, 88-90, 94, 110. Deane and Gaudron JJ decided that native title could be extinguished executively by inconsistent Crown grant or appropriation. However, they concluded that such executive extinguishment would be wrongful and would create a valid claim for compensatory damages in appropriate circumstances. See also Toohey J, 192-197, but note that Toohey J concluded that since the plaintiffs claimed no relief in respect of the two leases granted on the Murray Islands, the question whether the leases were effective to extinguish any traditional title (as he called native title) must remain unanswered: at 197. See also Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373, 422, 439; Wik, 176 (Gummow J); 250 (Kirby J); see also 90-92 (Brennan CJ); 124-125 (Toohey J); cf Nullagine Investments Pty Ltd v Western Australia Club Inc [1993] HCA 45; (1993) 177 CLR 635, 656. A clear and plain legislative intention to extinguish is not required provided that the act of the executive reveals a clear and plain intention to extinguish: Fejo v Northern Territory [1998] HCA 58; (1998) 72 ALJR 1442, 1452-1454 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 1463- 1466 (Kirby J). See also Wik, 185-186 (Gummow J) and Western Australia v Ward [2002] HCA 28, [78], [79] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Cf Western Australia v Ward [2002] HCA 28, [619], [625] (Callinan J) and Wilson v Anderson [2002] HCA 29, [194] (Callinan J).

For details relating to the legal position in other jurisdictions see R H Bartlett, The Mabo Decision: Commentary and Text (1993), xi-xii; R H Bartlett, Native Title in Australia (2000), Chapter 14 (United States law); Morse, Aboriginal Peoples and the Law, above n 75, 111-120 (Canadian Law), K McNeil, ‘Extinguishment of Native Title: The High Court and American Law’ (1997) 2 Australian Indigenous Law Reporter 365, esp, 369; Selway QC, above n 132 esp, 424-429.

^[145] The Crown does, however, have power at the time of conquest to seize, and thus acquire title to, both lands and chattels (see authorities referred to by McNeil, above n 36, 162. Such seizure would be an act of state and thus outside the jurisdiction of the courts. Cf Lester, above n 76, 933.

^[146] Cf the position with respect to rights held under customary law: see generally Secher, above n 8, Chapter 9.

^[147] The High Court accepted Brennan J’s approach to extinguishment by inconsistent grant in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ citing Mabo, 64). Although the majority of the High Court in Wik, comprising Toohey, Gaudron Gummow and Kirby JJ, held that an inconsistent Crown grant of a pastoral lease can only unilaterally extinguish native title if there is a clear and plain legislative intention for such a result (at 126, 130; 155, 166; 168, 171, 185-186, 203; 242-243, 247), in Wik the fundamental issue did not concern the extinguishment of native title by grant of fee simple or of a leasehold interest as known to the common law. Rather, it concerned the impact upon native title of statute and of sui generis interests created thereunder: Wik, 176 (Gummow J). See also obiter comments relating to the executive generally: Wik, 84-85 per Brennan CJ (with whom McHugh and Dawson JJ agreed: 167 and 100 respectively); 135 (Gaudron J); 175-176 (Gummow J); and 213-214 (Kirby J). Toohey J noted that ‘[w]hile nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable starting point because it explores the relationship between the common law and the ‘‘law’ which evidences native title rights’: at 129. A differently constituted High Court in Fejo v Northern Territory [1998] HCA 58; (1998) 72 ALJR 1442 unanimously held that a clear and plain legislative intention to extinguish is not required, provided that the act of the executive reveals a clear and plain intention to extinguish: 1452-1454 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 1463- 1466 (Kirby J).

^[148] Mabo, 15-16 (Mason CJ and McHugh J, agreeing with the judgment of Brennan J). Since Dawson J also did not think that the extinguishment of native title required the payment of compensation, a majority of four judges were in support of that proposition. Cf Lester, above n 75, 946, 961-962. In Mabo, Deane, Gaudron and Toohey JJ dissented on the question of compensation: 111, 112, 203. In Wik, the majority of a differently constituted High Court accepted the ruling of the court in Mabo that native title could be unilaterally extinguished without compensation. The United States Supreme Court has held that there is no presumption that compensation is payable upon the extinguishment of native title: Johnson v McIntosh [1823] USSC 22; (1823) 8 Wheat 543; Tee-Hit-Ton Indians v United States [1955] USSC 24; (1955) 348 US 272, 279. Canadian and New Zealand authorities are based on the early decision of Marshall CJ in Johnson v McIntosh, and thus have accepted the same principles of denying compensation. Canada: Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145; Simon v R (1985) 24 DLR 390,402, 405. New Zealand: R v Symonds (1847) NZPCC 387; Te Runangao Muriwhenua Inc v Attorney-General [1990] NZCA 7; (1990) 2 NZLR 641 (CA). There is, of course, no need for compensation in the context of legislative extinguishment because being derived from British Constitutional law, the legislative power of extinguishment in theory contains no protection against interference with rights by the British Parliaments. Accordingly, provided a legislative body has the requisite constitutional authority, it can confiscate property by legislative act and vest it in the Crown without compensation if the intention to deny compensation is unequivocally expressed: see K. McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ [1996] AUIndigLawRpr 45; (1996) 1(2) Australian Indigenous Law Reporter 181, 182-183 and authorities cited above n 12, 182 and above n 13, 183.

^[149] The words are Marshall CJ’s: Johnson v McIntosh [1823] USSC 22; 8 Wheat 543, 591, 599; [1823] USSC 22; 5 L Ed 681, 693, 695 (1823). It is worth noting, however, that although the Chief Justice acknowledged that native title could be extinguished by conquest, he did not recognise a power to extinguish native title by inconsistent grant per se. See also United States v Sante Fe Pacific Railroad Co [1942] USSC 12; 314 US 339, 347 (1941), which affirmed the power of an acquiring sovereign to extinguish pre-existing rights ‘by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy’ but only pursuant to unambiguous legislative authority.

^[150] See Mabo, 29 and 45 (Brennan J).

^[151] Ibid 30, 43.

^[152] Ibid 47. See also Sir Gerard Brennan, ‘Reconciliation’ [1999] UNSWLawJl 10; (1999) 22 University of New South Wales Law Journal 595, 596-597. Cf Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159, 358 where North J suggests that the doctrine of tenure should be rejected.

^[153] Mabo, 45-52 (Brennan J); 80, 81, 102-104 (Deane and Gaudron JJ); 180 (Toohey J); 122-123 (Dawson J).

^[154] Mabo, 48-49 per Brennan J. See also Secher, above n 8, Chapter 3, 122, 135.

^[155] See Secher, ‘Aboriginal Customary Law Versus Native Title: the Mabo Decision - Preserving the Distinction between ‘Settled’ and ‘Conquered or Ceded’ Territories’, above n 57; Secher, The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of ‘Continuity Pro-Tempore’, above n 8.

^[156] The words are Kirby J’s: Fejo v Northern Territory [1998] HCA 58; (1998) 72 ALJR 1442, 1466 [107].

^[157] Bradley Selway QC opines that ‘[i]f the common law was to recognise native title, accept the validity of existing titles and b consistent with [the] historical facts, then the new common law had to be very similar to that identified by Brennan J’: Selway, above n 132, 418.

^[158] This point is discussed further by the author in ‘Aboriginal Customary Law Versus Native Title: the Mabo Decision - Preserving the Distinction between ‘Settled’ and ‘Conquered or Ceded’ Territories’, above n 57.

^[159] Mabo, 34-35 (Brennan J, Mason CJ and McHugh J concurring). See also Part 1, text accompanying n 38.

^[160] Mabo, 34-36 (Brennan J).

^[161] Mabo, 35 (Brennan J); see also n 37.

^[162] Cf references cited in n 13.

^[163] See text accompanying n 14. See also Coe v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193, 199-200.

^[164] See Part 1, text immediately following n 97.

^[165] Indeed, Brennan J expressly refers to the ‘rejection of the notion of terra nullius’ (emphasis added): Mabo, 45. See also n 97 and accompanying text.

^[166] See above n 37.

^[167] See Secher, ‘Aboriginal Customary Law Versus Native Title: the Mabo Decision - Preserving the Distinction between ‘Settled’ and ‘Conquered or Ceded’ Territories’, above n 57.

^[168] See text above n 97.