European settlement of Australia commenced in 1788. Prior to this, Indigenous Australians inhabited the continent and had unwritten legal codes
Terra Nullius: A Latin term which translates as ‘Empty Land’ or ‘Nobody’s Land’. Captain Cook declared Australia to be ‘Terra Nullius’ when he sailed into Botany Bay on April 28th 1770, so that he could claim Australia for Britain. This proclamation ignored the fact that hundreds of different groups of Indigenous people occupied the land. The indigenous people did not have any form of political organisation. The British could not find any recognised leaders with authority so they couldn’t sign treaties. The first test of terra nullius in Australia occurred with the decision of R v Tommy (Monitor, 28 November 1827), which indicated that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems.
This position was further reinforced by the decisions of R v Boatman or Jackass and Bulleyes (Sydney Gazette, 25 February 1832) and R v Ballard (Sydney Gazette, 23 April 1829). In 1835 Governor Bourke implemented the doctrine of terra nullius by proclaiming that Indigenous Australians could not sell or assign land, nor could an individual person or group acquire it. In 1971, in the controversial Gove land rights case, Justice Richard Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title in Australian law.
Court cases in 1977, 1979, and 1982 brought by or on behalf of Aboriginal activists challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact. These cases were rejected by the courts, but the Australian High Court left the door open for a reassessment of whether the continent should be considered “settled” or “conquered”. Mabo:
This changed again in 1992 with the High Court judgement on the land mark Mabo case. Eddie Mabo was an Indigenous inhabitant of the Murray (Mer) Islands in the Torres Strait. He led a group of the Meriam people in a Supreme Court challenge against the Queensland government on the issue of land ownership. Their case stated;
‘Since time immemorial the Torres Strait Islands of the Mer (known as Murray), Danar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets have been continuously inhabited by people called the Meriam people’
The High Court in Mabo took the view that the British Crown’s acquisition of sovereignty over colony on the land mass of Australia did not automatically extinguish customary native title. The common law could, and did, accommodate native customary title. The Crown’s sovereignty carried “beneficial” ownership only over areas where no native title to the land in fact existed. The Crown’s radical title empowers the Crown to appropriate land to itself or alienate land to others; but until the Crown so acts, any traditional native interests in the land that existed under native law or custom when the colony was established, survive.
The Queensland government reacted to the land rights claim by passing the Queensland Coast Islands Declaratory Act 1985 (Qld) which said that the Torres Strait Islander rights and claims had been extinguished in 1879 when the islands came under the rule of the Queensland government. It was a futile move to stop the Mer people’s claim and in 1989 it was overruled as it contravened the Racial Discrimination Act 1975 (Cth). The case then came to the High Court of Australia – the highest court in the country. In the High Court the Meriam people claimed continuous connection with their land. This was despite the fact it had been declared a possession of the New South Wales Colony in 1797 and then annexed by the Queensland government in 1879.
The Queensland government said it had saved the Indigenous people of the Murray Islands from ‘barbarism’ and that the Crown had assumed all rights to the land in 1879. This assertion, however, was undermined by the fact that in 1913 the Queensland government had bought land from the Meriam people on which to build a police station. If the Crown (and therefore the State government) already owned the land then why would it have to buy some from the Indigenous inhabitants? The government had also established a land court in the early part of the 20th Century to preside over land disputes between the Meriam people. Again, why establish a court to make judgements if the land belonged to the Crown?
On 3rd June 1992 six of the seven High Court Judges ruled; ‘The Meriam people are entitled as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands’ On June 3rd 1992, six months after Eddie “Koiki” Mabo’s tragic death, the High Court upheld his claim that Murray Islanders held native title to land in the Torres Strait. Mabo v Queensland [No 2] (1992) 175 CLR 1 (Mabo) declared that terra nullius had never legally existed and that it had been wrongfully applied to Australia. The high court said that ‘ultimate’ title existed instead, and through that, native title could be claimed. Australian land law has developed from English land law and it was under those principles that Australia was settled. At common law all land is owned by the Crown which then deals with that land as it sees fit.
Under common law, landowners don’t exclusively own their land One of the High Court judges involved in the Mabo case, Justice Brennan, described native title as; ‘Indigenous inhabitants’ interests and rights in land, whether communal groups or individuals, under their traditional laws and customs’ The Mabo decision ended forever the idea of terra nullius in relation to Australia, when it recognised the Meriam people as the owners of the Murray Islands. It also opened the door for other Indigenous groups to be able to claim ownership of land that they could prove a continuous connection with. Native Title:
Native title: is the acknowledgement by Australian law that Indigenous people have rights and interests to their land that come from their traditional laws and customs. The Native Title Act 1993 provides for determinations of native title in Australia. The Act was passed by the Keating Labor Government in response to the High Court’s decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.
Crown land: is an area belonging to the monarch (“the Crown”)