Australia - the land of no one?
- Terra nullius literally means ‘land of no-one’. In the 1770s if land had no inhabitants or was populated by what were thought of as a ‘backwards people’ it was declared to be terra nullius, and the land became the property of the country that claimed it.
- Mabo argued that Australia was not, in fact, terra nullius at the time of British settlement – instead, Mabo claimed, the indigenous Murray Islanders had a well-established system of property ownership. They were a sovereign people. According to Mabo’s legal argument, if Australia was not terra nullius in the late 18th century then the British Crown did not automatically take ownership of all land in Australia when it settled the continent.
3. Mabo and the group of other Meriam people were asking the High Court to recognise that, if Indigenous people owned and lived on the land prior to British arrival, they still owned the parts of land they had not stopped living on today. The High Court was being asked to recognise native title – that at the time of British settlement Australia was owned in a traditional way by the Aboriginal people, and was not land ‘belonging to no-one’. If terra nullius was overruled, the land of Australia would be considered conquered rather than settled, and the British (now Australian) Government would only have rights to those areas they physically conquered. Native title would continue to the present day in any area where it had not been physically conquered.
4. The applicants were asking the High Court to be more activist – the Court was being asked to change and update the law, departing from the common law legalconcept of terra nullius.
5. A majority of the Court of 6:1 agreed with Mabo’s claim, rejecting the principle of terra nullius and recognising native title.
6. The High Court justices acknowledged that they were not bound to follow earlier decisions, but said the High Court is usually slow to change the law. The justices stated that consistency in decision-making is important and that they were conservative in their approach to law-making out of respect for that. However, Justice Brennan said that the Court cannot follow earlier decisions in making law that impedes justice and human rights (especially equality).The Court argued that accepting the common law ruling that Australia was terra nullius and indigenous Australians had no local law at the time of settlement was racist and discriminatory. To allow the law to continue to reflect this prejudiced view of Australian history would be wrong. The Court decided that “the common law shouldn’t be frozen in an age of racial discrimination.”
Declaring terra nullius to be invalid meant the British arrival did not result in the British Crown automatically owning all of Australia. Instead, Indigenous Australians had native title ownership rights over land in Australia, which continued to exist after the British settled. The Court found that, in many parts of Australia, actions since 1788 such as buying, selling and using land had indeed extinguished native title; if, however, no actions since 1788 had interrupted or actively ended Indigenous use and possession of the land, then native title continued in that area.
7. Responses will vary. However, students might point out that, while the High Court did not follow previous common law rulings, it did not completely discard the doctrine of precedent. Rather, it exercised judicial creativity and overruled the existing precedent. The Court justified its decision in that following common law would result in a decision that negatively impacted on the principles of justice (namely equality).
8. Responses will vary. However, students might point out that the case is an example of judges demonstrating that their role is to keep the law in good repair as a vehicle for justice and society’s contemporary attitudes. The decision in Mabo might be considered ‘activist’ because it departed from the accepted law, interpretation of the law, or the original intended meaning of the law; often it does this to embrace a broader conception of rights and freedoms.
9. After the High Court’s decision in Mabo, the Commonwealth Parliament codified and extended the native title common law created by the Court. The Native Title Act confirmed that native title existed, and clarified issues about how Indigenous groups could prove their ownership of land. It also outlined when native title was extinguished, and what entitlements to compensation existed for those who had lost their ownership rights. In the Wik Case in 1996, the Court extended the principle of native title to areas covered by pastoral leases in Queensland, and by implication to land under pastoral lease over much of north and west Australia.