All legal systems of previously colonised countries have grappled with the contest between land rights for the original peoples of those countries and the claims of settlers or conquerors. Australia was an unusual case. It wasn’t exactly conquered. Nor did the Indigenous peoples cede the land to the English settlers.
The only remaining option under international law at the time was for Australia to have been “discovered”. But this meant ignoring the thousands of people who had “discovered” it tens of thousands of years earlier. Australia was declared “terra nullius” – land belonging to no one.
The consequence was that the British Crown acquired sovereignty and any native land rights were extinguished.
The fiction of terra nullius became more and more repugnant and eventually the High Court of Australia found a way through, in the case of Mabo v Queensland (No 2) in 1992. The Crown (now the Australian states) had legal title but Indigenous people who could show continuous occupation might have “beneficial” title, unless it had actually been extinguished.
In this extended episode we hear from Professor Kate Galloway, an expert in land law with long experience of native title matters, about the case of Eddie Mabo, one of the most important cases in Australian legal history.
TRANSCRIPT
Stephen Bottomley (00:00)
Our typically attentive listeners will know that we have talked in earlier episodes about the High Court case brought in the name of Eddie Mabo in 1992. We said it was an example of judges clearly making new law, and also that it showed the limits of the common law imagination to encompass ways of living and using property that were communal rather than individualistic.
We’re joined today by Professor Kate Galloway an expert in land tenure at the Australian Catholic University based in Brisbane. Kate, thank you for coming into the Law in Context podcast and talking about what continues to be a complicated issue.
Kate Galloway (00:39)
Thanks so much for having me. It’s my pleasure to be here.
Stephen Parker (00:43)
To get straight into the case, as I understand it, until the Mabo v Queensland decision in 1992, the legal fiction was that when Australia was colonised in 1788, it was terra nullius, land belonging to no one, unoccupied. And this fiction was maintained in order to legitimate the sovereignty of the English crown over Australia.
This was because the other two avenues were not available.
Australia hadn’t been conquered, nor had it been ceded by agreement of the local peoples. So the only other way for sovereignty to be acquired under the international law of the time was that it had been discovered, and for it to have been discovered, it had to have been unoccupied.
And because many lands did actually have native people on them, the concept of terra nullius was conveniently enlarged to ignore the native occupants unless they had a sovereign, laws, and a recognised social organisation.
And I’m deliberately not using language used in earlier cases, which today we would find most offensive.
The consequence of terra nullius, as interpreted at the time, was that the English common law applied throughout those lands, so far as relevant to the situation, and crucially, through another enlargement, the English Crown became the beneficial owner of all lands meaning that any native title or rights over land were extinguished.
Kate, how are we doing so far?
Kate Galloway (02:20)
I would give you full marks for that. That’s an excellent overview of what happened. Probably there’s a nuance to that that I’d like to introduce here, because it does help us to understand the fundamental change that the Mabo decision brought in. And that’s that we’re dealing with two steps.
The first step is the acquisition of sovereignty at international law. And that was derived because of this enlarged version of terra nullius. But the consequence of having sovereignty then raised another question, which wasn’t a question of international law. It was a question for the common law itself. And that is what laws applied in the new territory?
And the common law reflected the international law of the time. Blackstone refers to the relevant doctrine as desert and uncultivated. It’s the equivalent of terra nullius. And so the common law having taken sovereignty then says to itself, I’m anthropomorphizing just a bit, says to itself, hmm, what law shall we apply here? And in particular, what property law, which is relevant to the distribution of land, et cetera, et cetera?
And then it says were these lands conquered or seeded or settled? Same framework as the international law. They say, well, actually it’s desert and uncultivated. And that led to the reception of English law.
And importantly for native title, the consequences of that were that the feudal doctrine of tenure was deemed to have been received, very passive there, into the new territory in Australia, which resulted in the Crown not only being sovereign, but owning all of the lands in the country.
Stephen Parker (04:19)
And that meant that the Crown was the beneficial owner, and that extinguished native title, at least under the law until 1992.
Kate Galloway (04:26)
That’s right. Well, they didn’t even need to concern themselves with whether there was any other property law because as soon as the Crown became the sovereign, they also became the beneficial owner of all the lands in Australia.
Stephen Parker (04:33)
Okay.
Stephen Bottomley (04:42)
So Kate, to stop Steve from going on any further, and because you know what you’re talking about, the specific case was about the Murray Islander people who’d been living on their lands when those islands were annexed to the colony of Queensland in 1879. But it was treated as a case about all native peoples in Australia.
How did the High Court change the situation and recognise that native title was capable of surviving English sovereignty and the arrival of the common law, despite a long line of cases that pointed the other way?
Kate Galloway (05:21)
Yeah, that’s a good question and that’s one of the reasons I wanted to highlight the application of the Doctrine of Tenure in Australia. So that idea, that original idea of sovereignty was not just that you had the power to govern, but also that you were the absolute owner of land.
And the way that the feudal Doctrine of Tenure operated was this very idea that the Crown was what they described as Lord Paramount and owned all of the land and the only way that any other person could gain a title to land was through a Crown grant.
So it’s not just the declaration of terra nullius but the operation of the Doctrine of Tenure and that principle of Lord Paramount that means that the only type of land tenure that can possibly be recognised is something deriving from the Crown.
So in that system, there is absolutely no space for any other type of land tenure. So you can see how that reception of the doctrine of tenure blocked out any other title.
So the court in Mabo actually had two problems or the law had two problems. The first was, hmm, I guess we could overturn the doctrine of terra nullius and accept that Australia was perhaps conquered or at the very least recognizing that Aboriginal and Torres Strait Islander people were here first.
But to overturn terra nullius would interfere with sovereignty itself. It would overturn the basis of sovereignty. And as I’ve always told my students, you know, the court can’t declare itself out of existence.
And so the court invoked the Act of State doctrine and it said, look, that idea of terra nullius at international law in the 18th century, that’s beyond our jurisdiction. That is not a question for determination by a municipal court. So it didn’t actually interfere with that international law finding sovereignty, it couldn’t.
So it turned its attention then to the common law application and said, well, looking at this doctrine of desert and uncultivated, it’s too much really to overturn the entire framework. But what if we said that settlement was a myth, that lack of occupation by Aboriginal and Torres Strait Islander peoples was a myth?
What if we said that instead of rejecting it altogether and finding that there’s no basis for the English legal system? So the court said we can’t do that. The skeleton of land law would be broken if we toss that out altogether. So what if we say instead, we confirm sovereignty, we confirm that international law, terra nullius, still applies, that we update the common law? We find that Australia was settled, but occupied. It’s effectively a new category within the common law.
And as a consequence of that occupation, the right of the Crown to land was split. The Crown retained sovereignty, but it didn’t retain full beneficial ownership.
So the court effectively generated an Australian doctrine of tenure, not the English doctrine of tenure, which confirmed that Lord Paramount idea that the Crown owns all the land.
It said instead that the crown has radical title. That means that the land, the ultimate underlying title might belong to the crown. And that includes power, the power to make land grants. But the full beneficial title of the land belongs to the traditional owners.
That full beneficial title can be extinguished by the crown. And once that title is extinguished the Australian doctrine of tenure comes into play and the crown has that full title.
So that’s two steps. The first step is the court affirmed effectively the effect of terra nullius and international law, affirmed sovereignty. And the second step is it introduced effectively a new category of settled but occupied.
And it tore apart that implicit connection between sovereignty and land ownership that created a space for the existence of a prior land ownership system.
Stephen Parker (10:17)
So Kate, coming out of the Mabo decision, there was thought to be much uncertainty. Was compensation payable to people whose rights had been distinguished? A majority of, I think, four of the seven judges seemed to say not.
Could native title still be lawfully extinguished now that Australia had legislation against racial discrimination?
What needed to be proved to show a sufficient connection between the native peoples living on the land at the time of colonisation, and the native peoples now there?
And then what procedure was needed to prove native title in the future?
So Kate, can you bring us up to date about what happened next in the aftermath of Mabo and what is the present law?
Kate Galloway (11:03)
Following the Mabo decision, there was, as you’ve intimated, an uproar. I think it was the Minerals Council, full page ads in the national press threatening that Aboriginal people would take people’s backyards. Former Victorian Premier, Jeff Kennett, came out extremely strongly suggesting the same thing. He’s since apologised for that and walked those comments back and realised that it was radically overblown.
Some commentators have identified that the High Court didn’t go far enough, that in fact that it could have gone a lot further than it did.
The Keating government took up the fight and introduced the Native Title Act as part of a tranche of measures designed to rectify the situation.
So the Native Title Act provided for claims to be made by traditional owners to satisfy a few different elements.
They had to identify that their people had a connection to the land, a traditional connection going back to the land to sovereignty effectively.
They had to satisfy the court that the interest had not been extinguished. And so that onus was on the applicants.
The system was designed initially to have determinations made by a tribunal. And following another case, the case of Brandy, the Human Rights Tribunal was found to be exceeding authority and acting as a court.
So there’s this issue about whether these determinations are made by a tribunal or a court.
It became an adversarial procedure in the courts. And so native title applicants bring a claim. All claims are contested by the relevant state or territory government and anyone else who had any kind of connection with the land.
So I worked at the Cape York Land Council in the early 2000s when Queensland was quite vigorously defending all of these claims and it was a very hard time. It’s since changed.
I think the politics have changed significantly in native title now, in the last couple of decades. So the onus is on Aboriginal and Torres Strait Islander people to show their connection, their ongoing connection and to show that it hasn’t been extinguished.
Stephen Bottomley (13:52)
it suggests that the main legal questions about native titles seem to have been sorted out at the moment. But of course, the whole position of Australia’s First Nations people is still very problematic and particularly after a majority of Australians in 2023 voted not to afford them a constitutionally guaranteed voice to Parliament on issues that particularly affect them.
So what is the way forward in your view? A treaty, you mentioned that idea just now?
Another attempt at changing the constitution?
Kate Galloway (14:32)
I can’t see that a government of any stripe would have the appetite to take the nation to another referendum. And I think there are all sorts of questions about social fragmentation and fake news and all of those other issues that I think plagued the referendum campaign.
I’m very conscious of the fact that I’m not an Aboriginal or Torres Strait Islander person and I’m a lawyer. So my response is a very white lawyer kind of response. It’s a common lawyer response. I don’t think there’s any one way to do this. I think there’s multiple ways. And in fact, I think we need a combination of legal mechanisms to be able to achieve what I might describe as self -determination.
Stephen Parker (15:22)
Kate, that was extraordinarily interesting. Thank you.
Listeners will find on our website the transcript of this conversation and also some further reading, including how to read the Mabo case’s full judgments. Those judgments contain fascinating accounts of earlier views about colonization, including legal cases concerning lands in India, the Sahara, North America, Ireland and Wales.
They also contain observations by some High Court judges about the behaviour of some English colonists which are, to say the least, a stain on the nation’s past. Thank you very much, Kate Galloway, for coming onto the programme.
Kate Galloway (16:03)
Thanks for having me, Stephen.
Further Reading: