Land rights, Native Title and Indigenous land use agreements

For the first 200 years of European settlement in Australia, governments and the courts refused to acknowledge Aboriginal traditional rights over lands. During that time, Australia had harboured two ‘societies’ that were separated by barriers of inequity and injustice, one with human and citizen rights and the other with none. Pastor Bill Hollingworth, in his address to the Council of Aboriginal Reconciliation, said: ‘Our moral and legal rights have been neglected.’² It is not surprising then that Professor Garth Nettheim considered the High Court judgment in Mabo ‘to be one of the most fundamental ever to have been considered by the High Court – fundamental at least in the sense of going to the very foundation of the Australian nation’³ or that, as a consequence of that judgment, ‘[t]he legal and political position of Aboriginal and Torres Strait Islander people in relation to the non-Aboriginal Society must now be significantly different in a variety of ways’.⁴

Prior to the Mabo decision, the implementation of land law was dealt with by the colonising legislatures. The myth of terra nullius perpetuated that Aboriginal and Torres Strait Islander people had no valid interests in land outside of what was conferred by statute.⁵ The law applied in Australia was that of the British Empire, which relied upon the presumption that the original inhabitants had no legitimate rights to land.⁶

In Millirpum v Nabalco Pty Ltd (Gove), which was brought in the Northern Territory, the Yirrkala people of the Gove Peninsula sought to halt mining on their traditional lands. The action failed. Blackburn J concluded that the ‘doctrine of communal Native Title does not form and never has formed, part of the law of any part of Australia’.⁷ His Honour reached this conclusion after an examination of Native Title decisions in other common law jurisdictions, which it is now widely concluded were misconceived.⁸ Blackburn J recognised that groups of Aborigines in the Gove Peninsula area of the Northern Territory had a ‘subtle and elaborate’ system of law, highly adapted to their country,⁹ and links to identifiable tracts of land that he described as primarily spiritual – but he also held that the doctrine of communal Native Title did not form and had never formed part of the law of any part of Australia. The decision was not appealed and the focus in Australia shifted for the next twenty years to securing Indigenous rights to land through legislation (land rights legislation) rather than by action in the courts.

In Gove, Blackburn J followed the decision of the Privy Council in Cooper v Stuart, despite the evidence. His judgment was criticised for supporting the terra nullius argument and for holding that communal title was never part of Australian common law.¹⁰

In Mabo, Brennan J stated:

Historically, it had been accepted that the land in the new colony was vested in the Crown. This was based upon the feudal landholding system of England. In this regard, Calvin’s Case was considered the leading case.¹³ Although that case had nothing to do with the colonies, the judges expressed a view that a ‘new possession might be acquired, one by descent and the other by right of conquest’.¹⁴ Despite this, several subsequent cases showed contrasting views.¹⁵ In Dutton v Howell, for example, Sir Bartholomew Shower stated that ‘settlers in unoccupied lands should be treated differently from those in conquered territories’.¹⁶ On the other hand, Sir William Blackstone considered the concept of the power of the mother country over colonial possessions and concluded that settled colonies were those ‘where the lands are claimed by right of occupancy only finding them desert and uncultivated, and peopled from the mother country’. Further he stated that not all of the laws of England were applicable to the settled colonies and that only those laws that were suitable were adopted by the colonies.¹⁷

The above commentary shows differences of approach to the classification of Australia at the time of the arrival of the colonisers. How do you determine if there are inhabitants who, from a European standard, are considered to be primitive? Eighteenth-century jurist Vattel, argued ‘that a distinction should be made between “cultivated” and “uncultivated” lands in determining whether they could be obtained by conquest’.¹⁸ This formed the basis of the principle of terra nullius upon which Australia was considered to have been ‘settled’.