Terra nullius revisited
1. The Meriam people claimed traditional ownership over the land they lived on, even though they had never paid for it and did not own the ‘Torrens Title’ to it. The Meriam people argued that Australian law should recognise their ownership because they had lived there as a people since before Australia was settled by Europeans. They claimed that they had ‘Native Title’.
2. Terra nullius was a common law assumption that the land of Australia belonged to no-one, because it was not settled by a society the English respected as ‘civilised’, and was therefore available for the taking. The Privy Council in England said in 1889 that the Aboriginal people were “so low in the scale of social organisation” that it was “idle to impute to [them] some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.”
3. A majority of the High Court agreed with Mabo’s claim, rejecting the principle of terra nullius and recognising native title. If Aboriginal people could show an uninterrupted occupation of, and relationship with, a parcel of land, since before British annexation – and as long as their ownership had not been explicitly extinguished by a modern Australia law – then the Australian legal system would recognise that ownership. The Court recognised native title under common law.
4. In 1993 the Commonwealth Parliament led by the Keating Labor Government passed the Native Title Act, which acknowledged the existence of native title as developed by the High Court. The Act codified the law of native title.
5. The Native Title Act went beyond codifying the law of native title by establishing a system for hearing native title claims – for instance, the Act created the federal Native Title Tribunal. As a result of the Native Title Act, any land subsequently taken from the Aboriginal people by the Commonwealth also had to be paid for under the ‘just terms’ provision of the Constitution.
6. The Act was not taken to have ‘covered the field’, because the Wik case in 1996 involved the High Court deciding whether statutory leases such as pastoral leases extinguished native title. That had not been provided for in the legislation.
7. Student responses will vary. However, students may suggest that codification is when parliament puts an existing legal principle into legislation. Parliament is the supreme law-maker, so it has the authority to decide, in relation to the Mabo case, that court-made law should continue to operate. Parliament decided that the precedent set by the High Court established effective and desirable law, and chose to take the precedent and arrange the legal principle in a more organised statement of law. The principle of native title was created in the Mabo Case of 1992, and was confirmed and expanded upon by the Commonwealth Parliament in the Native Title Act the following year.