Nullifying terra nullius

Jackson Wherrett looks at the research that is changing the way we view native title

When the High Court of Australia handed down the Mabo decision in 1992, significant public outcry ensued. Much of this criticism centred on the perception that the Court, in recognising the concept of native title for the first time in Australia, had usurped the law-making function of Parliament. At the time, the Chief Justice, Sir Anthony Mason, asserted in an article in The Australian that the court had merely performed the function it always had.

But recent research, particularly by Emeritus Professor Bruce Kercher of Macquarie University, has uncovered that the High Court in Mabo may not have been as radical as its critics suggested. Records of decisions of the NSW Supreme Court from as far back as the early 19th century have been discovered, revealing that some judges recognised that Indigenous Australians had property rights to the land and control over their own laws.

In 1841, Justice Willis held in R v Bonjon that “the native inhabitants of any land, have an incontrovertible right to their own soil; it is a plain and sacred right which seems not to have been understood.” The assumption that Indigenous Australians had land rights, which  over a century later the High Court would find conclusively in Mabo, also underpinned decisions like the 1829 case of R v Ballard or Barrett. But courts eventually drifted away from this premise and the terra nullius fiction prevailed. Years later the British Privy Council, the highest court of appeal for Australian cases at the time, found that NSW was a “tract of territory practically unoccupied, without settled inhabitants or settled law,” a completely opposite finding to that of many early Australian courts.

These decisions were not available to the High Court when it decided Mabo. Would it have made a difference to the outcome? Probably not, although it would have provided more cover for the court in recognising the concept of native title. But Professor Cameron Stewart, Pro-Dean of Sydney Law School, has another concern.

“It hasn’t had the impact it deserves on the teaching of native title in Australia,” said Professor Stewart. “We cover it in the Sydney Law School introductory property subject, but the research does not seem to have penetrated into some of the leading textbooks in this area. It shows we have a far longer and more interesting relationship with Aboriginal land rights than previously thought.”

This research is ongoing, but now many of these older cases are freely available on the internet. Now we just need people to read them.

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