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HENRY REYNOLDS[*]
On 3 June 1992 the High Court delivered its judgement in the case Mabo v Queensland (No 2).[1] Six of the seven judges found for the Meriam plaintiffs – Mabo, Rice and Passi with Brennan J memorably declaring that the Meriam people were entitled ‘as against the whole world to possession, occupation, use and enjoyment of the islands of Mer ...’.[2] More significant still was the short statement of Mason CJ and McHugh J concurring with Brennan, but indicating that the principles which underpinned the judgement applied not just to the Murray Islands but to Australia as a whole. Six members of the Court were in agreement that,
the common law of this country recognizes a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands ... [3]
Mabo was one of the most dramatic, controversial and widely discussed cases in the history of the Court most of which receive little public attention. It was extensively reported both in Australia and overseas. There was an early appreciation that it represented a turning point in Australian jurisprudence. For some there was exhilaration; for others a sense of shock and consternation. The judgement was unexpected. It turned on the principles of native title which were little known or understood in Australia even in the legal profession. It was followed by months of intense discussion, angry disputation, serious consideration in specialist forums. People who had rarely, if ever, adopted a view about a legal judgement were drawn into the debate – corporate leaders, churchmen, politicians, industry lobbyists and farmers. There was an intense period of research in the legal profession as cases from Canada, New Zealand, the United States and the Privy Council were opened often for the first time.[4]
The debate continued while the federal government sought ways to respond to the judgement with legislation which eventually passed at the end of 1993 after tense negotiations with interested parties and contention within the ALP caucus. The controversy over native title was abating by the time that the concomitant Wik case of 1996 was decided with the Court determining, by a 4/3 majority, that elements of native title had been preserved on the vast lands held under pastoral lease. Controversy flared again with even greater intensity, the judgement confounding the many jurists who had assumed that a lease would, judging by the Court’s own definition in Mabo, extinguish native title.
Seen from the perspective of 2007 the Mabo and Wik[5] judgements have not diminished in significance. The overturned, traditional view that Australia had been both a territorium nullius, a land without government and a terra nullius, a land without laws or land tenure, might have been regrettable but it seemed both settled and certain. Among the minority of commentators who had followed the progress of the case through the courts the most notable feature was the courage – some would say the audacity – of the Court in applying principles enunciated for the particular circumstances of Murray and Darnly Islands to the whole continent.
Australian historians participated in the debate from the start. They appreciated the importance of the judgement and realized that the Court had re-interpreted the legal history of settlement which would inescapably impact on the way they would henceforth have to tell their stories. There were, after all, dramatic changes involved. The Court had determined that traditionally the Aborigines had a form of land tenure. They were owners and occupiers of territory. Their tenure wasn’t extinguished as an automatic consequence of annexation but rather in a slow piecemeal fashion over a long period of time as the settlers pushed into tribal territory. The squatters were not pushing out into vacant, or waste, crown land. Aboriginal resistance was, on the face of it, legitimate defence of property. The common law of the late C18th and early C19th had been capable of according recognition to native title but failed to do so. Justices Deane, Toohey and Gaudron argued that in the absence of clear and unambiguous statutory provision to the contrary ‘extinguishment of native title by the Crown by inconsistent grant’ was ‘wrongful and gave rise to a claim for compensatory damages’.[6]
It was a large agenda of re-interpretation which impinged on almost every aspect of Australian historiography, upsetting many long held beliefs while arousing a sense that the Court had intruded into intellectual territory where they lacked both knowledge and legitimacy. Deane and Gaudron JJ were more forthright about their historical perspective than their colleagues referring to,
the conflagration of oppression and conflict which was, over the following century, [after 1788], to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame.[7]
In a coda to their judgement Deane and Gaudron JJ returned to their historical interpretation indicating that they had been influenced by the researches of many scholars who had written in areas ‘into which this judgement has necessarily ventured’ and that their own research had been directed to sources which the historians had already identified. In explaining the historical reflection in their joint judgement they explained that they were,
conscious of the fact that, in those parts of this judgement which deal with the dispossession of the Australian Aborigines, we have used language and expressed conclusions which some may think to be unusually emotive for a judgement in this Court.[8]
That High Court judges would refer to a legacy of unutterable shame was seen by many people as an inexcusable attack on the legitimacy of the nation. It was one thing for such views to be proclaimed by radical academics in little-read journals or private post-graduate seminars but to have them put so bluntly by the leading judicial figures in the country was another matter altogether.
The prominent historian, Geoffrey Blainey, mounted a sustained and vociferous counter attack both as conservative commentator and eminent scholar. A crusade among intellectuals and journalists for compensation to the Aborigines had, he observed, infected the High Court and while it was a crusade among intellectuals, it was not an intellectual venture.[9] The Mabo decision was, in fact, ‘startling’ illustrating ‘deep divisions and wide confusion within Australia’. If a Menzies era politician or commentator had predicted what had happened the public ‘would have been astonished’.[10] Deane and Gaudron JJ were his principal targets. They had made erroneous statements about Australian history. They were ‘noteworthy in their ignorance’ and had based their views ‘partly on prejudice and misguided research’.[11] It was strange, he declared,
to find at least two judges making rash statements about Australian history, and specifically giving an erroneous explanation of why Aborigines were wiped out.
Some historians, after reading the judgements will express surprise that the majority of justices have built their case for restitution of lands to Aborigines on an interpretation of history which they might not easily be able to defend.[12]
The most striking feature of the Blainey onslaught was that he dealt with the judgements as though he was marking history essays written by wilfully radical undergraduates and in the process greatly exaggerated the importance of his own discipline and of his capacity to critically evaluate the judgement. The judges, he believed, had built their case on faulty interpretations of the past; bad history made bad law. We can clearly see that some of the judges – notably Deane, Gaudron and Toohey JJ – had read widely in recent historiography and it may well have shaped their understanding of settler-Aboriginal relations. But their historical comments are strictly obiter dicta and have little direct bearing on the meticulous legal arguments that advanced case by case, precedent by precedent. Like many critics of the Court, Blainey gave no indication that he followed the legal argument or had read the relevant case law. At no point did he address the legal reasoning on which the case turned and there was no indication that he was familiar with relevant case law in Canada, the United States and New Zealand or with the judgements of the Privy Council.
Blainey voiced common concerns and popular prejudices, declaring that the Court had imposed contemporary values on events of 200 years ago. The judgement looked back ‘through modern blinkers’. The judges had applied ‘supposedly dominant moral values’ of the 1990s to 1788 and had ‘reversed the legal thinking of long ago’.[13] In this, Blainey had a moot point but it was not the historiographical views of the judges that mattered most but contemporary developments both in the law itself and in anthropology to which he had been a notable contributor.
Anthropology was significant because a central question to be resolved was the nature of Aboriginal society. Such a question had been dealt with many times in courts in the white settler societies since the beginning of colonization. Many relevant cases had reached the Privy Council in London, none more important than In re Southern Rhodesia in 1919 which was necessarily addressed in the Mabo case, and in particular, a critical passage in Lord Summer’s judgement cited by both Toohey and Brennan JJ which read:
The estimation of the rights of Aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of rights known to our law and then to transmute it into the substance of transferable rights of property as we knew them.[14]
Historically the Aborigines had been judged to be a unique and primitive people, their society a relic from the Stone Age. Their stage of evolution was thousands of years removed from modern civilization. They were clearly among the tribes ‘so low in the scale of social organization’ who were to be found on the wrong side of Lord Sumner’s ‘unbridgeable gulf’. For a native title case to be won in C20th Australia, Aboriginal traditional rights had to be transmuted from shadow into substance. Either the Aborigines had to be seen as people who had crossed the ‘unbridgeable gulf’ or belief in the gulf itself had to be superseded. Both of these developments resulted from the emergence of anthropology and the concomitant reassessment of traditional societies. Several generations of Australian anthropologists contributed to this profound change in the country’s intellectual life. Many of the new ideas were both summarized and popularized by Geoffrey Blainey in his 1975 book The Triumph of the Nomads[15] which may, indeed, have been more pertinent to the Mabo judgement than the historians he so vigorously attacked.
The High Court looked for its assessment of traditional society to the 1972 judgement of Blackburn J in the Northern Territory Supreme Court case, Milerrpum v Nabalco, which in turn was based on extensive evidence presented by both anthropologists and Aboriginal elders. In a key passage in his judgement, Toohey J cited the passage where Blackburn had considered the relevance of In re Southern Rhodesia which read:
The social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which ... was remarkably free from the vagaries of personal whims 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.[16]
The same passage was cited by Brennan J in his judgment.
In his address to the Court, the counsel for the plaintiff, A. R. Castan, grasped the pivotal importance of the question arguing that the bench should reject the ‘two kinds of society’ or the ‘unbridgeable gulf’ theory espoused by Lord Sumner.[17] The correct approach was to determine the way in which the society functioned and how it regulated the use and inheritance of land. But Castan’s focus was on the Murray Islands and their distinctive form of land use and tenure. Both popular and expert opinion in the past had judged the Torres Strait Islanders as being more ‘civilized’ than the Aborigines, more advanced in an evolutionary sense. The Court had at its disposal the extensive findings of fact provided by Moynehan J of the Queensland Supreme Court. It is likely that even in the past the Murray Islanders would have been seen by Europeans to be on the right side of the unbridgeable gulf. But what of the very different society on mainland Australia? Should the same principles by applied?
It was Brennan J who supplied the answer. The Court, he explained, could apply the existing authorities and proceed to inquire whether the Meriam people were higher ‘in the scale of social organization’ than the Australian Aborigines or that the Court could over-rule the authorities, discarding the distinction between inhabited colonies that were terra-nullius and those which were not.[18] Nor could the circumstances which might be thought to differentiate the Murray Islands from other parts of Australia ‘be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands’.[19]
In a passage which illustrated the fundamental importance of modern assessment of traditional societies Brennan declared:
The theory that the indigenous inhabitants of a settled colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs ... the basis of the theory is false in fact and unacceptable in our society.[20]
If modern anthropology was more important than historiography in the Mabo judgement, developments in jurisprudence were more significant again. Once the bench had determined that indigenous Australians were not a uniquely primitive people then the full weight of native title law could be applied to their circumstances. Any reader of the judgement will be immediately aware of the critical importance of cases decided from the early C19th onwards in the United States, Canada and New Zealand along with relevant colonial cases which had reached the Privy Council in London. It was these leading cases which provided the intellectual stepping stones marking out the progress of Brennan, Toohey, Gaudron, and Deane JJ towards their recognition of native title in Australia. Without abundant precedents in common law jurisdictions they could not have undertaken their pilgrimage.
Few of the critics of the judgement gave any indication that they had read the cases on which Mabo rested. However, they were on firmer ground when they attacked the Court for applying modern standards to past decisions. This argument was central to Blainey’s public assault and it was the one which appeared to resonate most persistently in the community. Brennan J and his colleagues made no secret of this aspect of their decisions, explaining that they had responded to contemporary opinion, to human rights documents and to decisions of the International Court and in particular its reasoning in the Advisory Opinion on Western Sahara of 1975. Brennan argued that if it had been permissible in the past to keep the common law in step with international law it was imperative that in the modern world that it should not be seen ‘to be frozen in an age of racial discrimination’.[21] Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights had brought to bear a powerful influence on domestic law. Whatever the justification ‘in earlier days’ for refusing to recognize the rights and interests in land of indigenous people, ‘an unjust and discriminatory doctrine of that kind’ could no longer be accepted.[22] The expectations of the international community accorded in this respect with the contemporary values of the Australian people. With his eye set firmly on the modern world Brennan J declared that,
no case can commend unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied.[23]
In 2004 and 2005 controversy about Mabo flared anew. Historians were again in the front rank of combatants, their concern with the provenance of the term terra-nullius and with the actual attitudes and policies employed by the British authorities at the time of annexation of Eastern Australia in 1788. Although related these two questions will be considered in turn.
The first shots in the campaign were fired by Michael Connor in an essay ‘Error Nullius’ published in The Bulletin in August 2003 in which he argued that the term terra- nullius was unknown in the late C18th and was, indeed, a modern coinage which was adopted into Australian discourse following the International Court of Justice’s opinion on the Western Sahara Case.[24] It had been taken up by historians, and in particular, by Henry Reynolds in his 1987 book The Law of the Land. From there the term was adopted by the High Court who were ‘misled’ by the historian undermining the validity of the Mabo judgement. The Reynolds version of our history ‘underpinned’ the Mabo judges’ decision. When they rejected the doctrine that Australia was a terra-nullius ‘they were paraphrasing his book and accepting questionable historiography about 1788’.[25]
The controversy intensified in 2004 with the publication of Connor’s book The Invention of Terra Nullius[26] and the intervention by Bain Attwood with his article ‘”The Law of the Land”: History, Law and Narrative in a Settler Society’ in the electronic journal, History Compass,[27] and more particularly with his ‘Myth, history and the law of the land’ in the Australian Financial Review.[28] It is not possible to consider in any detail the complex arguments in Attwood’s long article in History Compass but one passage, in particular, had an electrifying effect on public debate. In discussing the ‘myth of terra-nullius’ he argued that while the discussion he found in The Law of the Land was ‘in some senses true’ this truth was ‘rather different to the truths that academic history usually seeks to advance and in those terms it can be regarded as a lie’.[29]
Attwood may have been surprised by the reaction to this assertion but during the middle of 2004 controversy reached fever pitch. An exchange between Michael Duffy and Michael Connor on the ABC radio’s ‘Counterpoint’ will illustrate the mood of the time:
Duffy: The revelation of this error [regarding terra-nullius] has shocked the history profession ... And since Michael Connor blew the whistle, another historian, Monash University’s Professor Bain Attwood has come out and acknowledged the Henry Reynolds’ story of terra-nullius is actually a lie.
Connor: I’ve been going round saying this is an error, et cetera, but suddenly the Attwood version is, Reynolds has told a lie. [30]
Christopher Pearson, the columnist in The Australian, followed up with two long articles explaining that the work of Attwood and Connor represented a ‘parade gun shift’ in Australian history. ‘Thanks to Reynolds’, Pearson declared,
High Court judges and most of the commentariat imagined that the Mabo decision had overturned the doctrine of terra-nullius, when, in fact, it had never been part of the law relied on to justify white settlement.[31]
But the height of the controversy was reached when Emeritus Professor of Law, David Flint, asked rhetorically in an opinion piece in The Australian ‘Is it time to sue over Mabo?’ and declared that those farmers and miners who had ‘paid for Mabo, and are still paying, may have a case’.[32]
In retrospect the intense controversy about terra-nullius seems to be a storm with very little substance but several issues remain to be discussed. The most obvious one is that at no point did anyone argue that terra-nullius was a term that was used in 1788. But it came to be used as a convenient way to refer to territory that was acquired on the assumption that resident tribes did not actually own the land or exercise sovereignty over it. Brennan J referred to an ‘enlarged’ concept of terra-nullius which related to the circumstances apparent in 1788 when the Crown was thought to have acquired both the sovereignty and the beneficial ownership of the land. In one sense the debate about the term was pointless. Its adoption by the High Court sanctioned its use in legal argument in Australia regardless of the provenance of the term. Henceforth it had the imprimatur of the highest court in the land. In so acting, the Court was doing nothing new or unusual. New terms are adopted by courts all the time and known terms are used in novel ways. In this the law is no different from any other discipline which, while dealing with the past, addresses a contemporary audience in words that have meaning for them. A comparison of the Court’s discussion of early Australia, with the treatment of the same period by scholars in other disciplines, is instructive. In his discussion of the economy of early New South Wales, the doyen of economic historians, N. G. Butlin, employed a plethora of modern terms unknown to those whose activities he was analysing. In just three pages we read of ‘business cycle performance’, ‘vertical social mobility’, ‘gross domestic product per unit of factor input’, ‘internal production function’, annual input series’, ‘systematic exchange pricing’, ‘land resource ratios’, Kuznet’s building cycle’, ‘marginal product’.[33] Such usages pass without comment or criticism. They have never been the cause of controversy.
The provenance of terra-nullius has recently been outlined in impressive detail by Andrew Fitzmaurice in his article ‘The Genealogy of Terra Nullius’.[34] But it is still necessary to return to the controversy arising from the work of Attwood and Connor which was based on a series of misconceptions. Having first come across the term in historical works, and in particular The Law of the Land, they made two quite erroneous assumptions. One was that it was given currency by historians rather than jurists; the other is that the High Court adopted it from them. But there is no evidence for either proposition. When he first uses the term terra-nullius Brennan J refers to classic 1926 book R. H. Lindley’s The Acquisition and Government of Backward Territory in International Law[35] while Toohey cites the Western Sahara opinion of the International Court of Justice. [36] There is clear evidence that ‘terra-nullius’ was employed by Australian jurists well before it was taken up by historians. The distinguished scholar, D. P. O’Connell, observed in 1965 in his International Law that Australia was treated as a terra-nullius because the Aborigines were ‘held incapable of intelligent transactions with regard to land’,[37] an interpretation followed by Elizabeth Evatt in 1968 and James Crawford in 1979.[38] The first use of the term by an historian appears to have been Allan Frost in his article of 1981 ‘New South Wales as Terra Nullius. The British Denial of Aboriginal Land Rights’[39] and by the time it was used by Reynolds in The Law of the Land in 1987 it was commonly understood by jurists and used to apply to the circumstances associated with the settlement of Australia.
Linked to discussion of the provenance of the term terra-nullius was the concomitant question of the actual application of the law in 1788. The issue was raised by David Ritter who argued in 1996 that when Australia was originally claimed by the Crown ‘neither terra-nullius or any other legal doctrine was used to deny recognition of traditional Aboriginal rights to land under common law’. Such a doctrine would not ‘have appeared necessary to the colonists’ because the Aborigines were seen, and defined by them, as intrinsically barbarous and without any interest in land. The colonists ‘required no legal doctrine’ to explain why land rights were not recognized under the law because no legal doctrine was required for what was axiomatic’.[40]
Both Attwood and Connor followed in Ritter’s wake. Attwood argued that the law ‘had no causal role’ in the dispossession which resulted from the actual ‘process of colonization’. The law and government ‘did not really begin to tell a story about the rights of British possession until the 1830s’.[41] Connor had a similar view, best illustrated during an exchange on radio with Michael Duffy:
Duffy: And so – I suppose it’s rather an obvious question – how did the British justify the settlement of 1788, if it wasn’t terra-nullius?
Connor: Well I think this is one of the problems, Michael, that in the period we’re looking at they didn’t really need to justify it. If there was a nice, clear- cut reason in the archives, we would have all grabbed it. I think later on, into the nineteenth century people started looking around and saying, well how did we get control of this? What did happen? And they start inventing different stories. But I think really in the eighteenth century they weren’t so concerned with it.
Duffy: They came, they liked what they saw, and they conquered ... [42]
Ritter, Attwood and Connor approach the subject from different directions and write with varying degrees of sophistication. However they share some common assumptions about the law and Australian settlement – that no legal doctrine was involved because one wouldn’t have appeared necessary, indeed the law had no causal role in the process of annexation, nor was there any need to justify the proceedings in 1788. Common assumptions emerge from shared misconceptions about C18th British society, about the rule of law, about colonization and, perhaps most surprisingly, about the Mabo judgement itself.[43]
It is highly improbable that the officials who planned the expedition to Botany Bay were ignorant of the law or thought it unimportant. The British had been dealing with colonies in America and the Caribbean for more than a century and the relevant legal principles had been thoroughly construed in the courts both in the metropolis and at the periphery. The authorities had to decide whose law was to apply in the new antipodean colony – that of the colonists or that of the host society until changed by the interlopers. It was a question that could not be avoided or left to some time in the future. Eighteenth century British society – even an overseas enclave – could not operate with legal uncertainty or with arbitrary power. Few societies in history have been as dependent on the rule of law as Britain at the time of Australian settlement. ‘Turn where you will’, E. P. Thompson observed, ‘the rhetoric of C18th England is saturated with the notion of law’. Indeed law ‘assumed unusual pre-eminence in that century’.[44]
The decision was made prior to the departure of the First Fleet that the common law would become the only law in the new colony and that the Aborigines would become subjects amenable to that law. British property law would prevail. There would be no recognition of indigenous tenure. Australia was to become a colony of settlement. Far from lacking jurisprudential doctrine the proceedings were securely anchored in the authoritative writing of William Blackstone as Brennan J made clear in his judgement citing the great jurist’s description of those colonies,
where lands are claimed by right of occupancy only, by finding them desert and uncultivated.[45]
Brennan J observed that this view was upheld by Stephen, C. J. in the Supreme Court of New South Wales in 1847 and by Lord Watson in the Privy Council in 1889 who declared that Australia had been at the time of settlement ‘a tract of territory practically unoccupied, without settled inhabitants or settled law’.[46]
The line of legal reasoning is straight and clear as Brennan J observed when he described what he meant by terra-nullius:
The 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 could be treated as a “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. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.[47]
Brennan J’s explanation of terra-nullius is clear, his use of the term justified and his explanation of why it should be overturned cogent and convincing.
The High Court was sharply criticised for the decision in Mabo. The judges’ grasp of Australian history was challenged. Blainey, in particular, argued that bad history had produced erroneous law. His views were influential. On reflection the reverse appears to be true. Those historians who have attacked the Court have all too often got the law wrong either through misunderstanding or, in some cases, a willing suspension of comprehension.
[*] Professor, History and Aboriginal Studies, University of Tasmania
[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[2] Ibid 76.
[3] Ibid 15.
[4] For an excellent survey of the controversy see the publication of the Commonwealth Parliamentary Library, The Mabo Debate: A Chronology, 14 October 1993.
[5] Wik Peoples v Queensland (1996) 187 CLR 1 ('Wik').
[6] Cited by Mason, C.J. and McHugh, J. in Mabo [1992] HCA 23; (1992) 175 CLR 1, 15.
[7] Ibid 104.
[8] Ibid 120.
[9] ‘Land Rights for All’, The Age (Melbourne), 10 November 1993.
[10] ‘Sitting in Judgement on History’, Australian Business Magazine, August 1993.
[11] Cited by B. Goff in Townsville Daily Bulletin, 13 November 1993.
[12] Australian Business Magazine, above n 10.
[13] The Australian, 13 May 1993, The Age, 10 November 1993.
[14] (1919) AC 211, 233-4.
[15] Geoffrey Blainey, The Triumph of the Nomads (1975).
[16] Mabo [1992] HCA 23; (1992) 175 CLR 1, 39 and 186.
[17] Ibid 7.
[18] Ibid 40.
[19] Ibid 26.
[20] Ibid 26-7.
[21] Ibid 41-2.
[22] Ibid.
[23] Ibid 30.
[24] The Bulletin, 26 August 2003.
[25] Ibid.
[26] Michael Connor, The Invention of Terra Nullius (2004).
[27] Vol. 2, 2004, 1-30.
[28] 11 June, 2004.
[29] Connor, ‘The Law of the Land’, above n 27, 18.
[30] 12 July 2004.
[31] The Weekend Australian, 10-11 July 2004.
[32] 21 March, 2006.
[33] N G Butlin, Forming a Colonial Economy, (1994) 198-9.
[34] Australian Historical Studies, No. 129, 2007, 1-15.
[35] Mabo [1992] HCA 23; (1992) 175 CLR 1, 33.
[36] Ibid, 180-2.
[37] 2 vols., (1965), vol I, p. 409.
[38] E. Evatt, ‘The Requisition of Territory in Australia and New Zealand’, Grotian Society Papers, 1968, 16. J. Crawford, The Creation of States in International Law (1979) 179.
[39] (1980-1) 19 Historical Studies 513.
[40] David Ritter, ‘The “Rejection of Terra-Nullius” in Mabo: A Critical Analysis’, (1996) 18 Sydney Law Review 6.
[41] Connor, ‘The Law of the Land’, above n 27, 23 footnote 36.
[42] ABC, Counterpoint, above n 30.
[43] For two recent and important considerations of the question see: S. Banner, ‘Why Terra-Nullius? Anthropology and Property Law in Early Australia’, (2005) 123 Law and History Review 95; M. Borch, ‘Rethinking the Origins of Terra Nullius’, (2001) 117 Historical Studies, 222.
[44] E P Thompson, Whigs and Hunters: The Origin of the Black Act, (1975) 263-5, 267-9.
[45] Brennan J in Mabo[1992] HCA 23; , (1992) 175 CLR 1, 34.
[46] Ibid 26-7, 37.
[47] Ibid 36.
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