David Hornby

Today, the perspective and context has changed as the legal validity and significance of English settlement of Australia is under close scrutiny. This is shown particularly by the Mabo decision of the High Court. The historical problem which has largely been remedied by Mabo was the legal fiction that when Australia was first colonised it was terra nullius (empty land), and therefore, was treated as a settled colony, as distinct from a conquered or ceded territory.

On the other hand in New Zealand the UK Parliament was obliged to sign a treaty with the Maoris. Terra Nullius was an entirely convenient doctrine to support white settlement in Australia, for on that basis the British could claim both sovereignty and ownership of the land. This, led to the dispossession of the original Aboriginal inhabitants of their land. Under Mabo, although Britain had "radical" title to Australia, it did not inherently have "beneficial" title over native lands and therefore native title remains intact where land was not alienated or used for a purpose contrary to native title.

The general principles for the introduction of British law into a 'settled', as distinct from a 'conquered', colony were articulated by Blackstone in 1765, and Blackburn J in Milirrpum described the distinction as follows:

There is a distinction between settled colonies, where the land being desert and uncultivated, is claimed by right of occupancy, and conquered a ceded colonies. The words 'desert and uncultivated' are Blackstone's own; they have always been taken to include territory in which live uncivilized inhabitants in a primitive state of society. The difference between the laws of the two kinds of colony is that in those of the former kind all the English laws which are applicable to the colony are immediately in force there upon its foundation. In those of the latter kind, the colony already having law of its own, the law remains in force until altered.

This distinction had originally been confirmed by the British Privy Council in Cooper v Stuart (1889) 14 App 286 at 291 where it was pointed out that NSW had been regarded as a 'tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions'. What this meant, of course, was that Aboriginal tribal law and land rights could be conveniently disregarded. Murphy J of the High Court had scant respect for the settled colonies theory:

Although the Privy Council referred in Cooper v Stuart to peaceful annexation, the Aborigines did not give up their lands peacefully; they were killed or removed forcibly from the lands by United Kingdom forces or the European colonists in what amounted to attempted (and in Tasmania almost complete) genocide. The statement by the Privy Council may be regarded as either having been made in ignorance or as a convenient falsehood to justify the taking of Aboriginal land (Coe v Commonwealth (1979) 24 ALR 118 at 138).

A related problem of early colonization was the question of Aborigines in relation to the law, and this question too, hinged on the settled colony theory. Since Australia was deemed to be 'uninhabited' (however bizarre this might seem) there could obviously be no prior existing Aboriginal law, so it was taken as axiomatic that British law came to Australia as part of the 'invisible and inescapable cargo' of settlers. The context of law was mentioned above and the history of Aboriginal land rights claims in the courts well illustrates the gradually changing community attitudes towards these basic claims.

In its landmark 6 1 judgment in Mabo v Queensland (1992) 66 ALJR 408, the High Court finally put an end to the elaborate fiction of terra nullius. Mabo is now the law in Australia so that Aborigines did possess property rights prior to British settlement, and still have property rights as native title where their claims have not been overridden by subsequent government actions and land uses:

Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg authorities to prospect for minerals) (Mabo v Queensland (1992) 66 ALJR 408 at 422).