Allocating property rights 143
to decide otherwise than that New South Wales came into the category of a settled or occupied colony. (Milirrpum, pp. 267 and 244)
Consequently, he thought he had no alternative but to dismiss the claimants’ case. A second factor which influenced Blackburn J in coming to this conclusion was something that also troubled Dawson J in his dissenting judgment in Mabo (No. 2). It is generally accepted that it is within the power of a sovereign state to extinguish pre-existing property rights, provided that, in doing so, it is acting lawfully according to the rules of its own system (or according to the rules of international law if it is taking over new territory). It is also generally (although not so universally) accepted that, when colonising a new territory, whether inhabited or not, the Crown could lawfully extinguish pre-existing rights without specific legislation provided it made its intentions plain. It seems clear that this is what the Crown thought it had done in Australia. From the outset, the Crown assumed that the land was its own, to use or dispose of absolutely as it saw fit, with no legal constraints imposed by any pre-existing rights of indigenous inhabitants, and it acted on this basis. If the law as it was perceived to be at the time was that the Crown was legally entitled to absolute beneficial ownership of Australia, and that any claims of Aboriginal tribes had been extinguished by colonisation, is it now open to the courts to say that this was wrong in law?
As Dawson J says in Mabo (No. 2):
There may not be a great deal to be proud of in this history of events. But a dispassionate appraisal of what occurred is essential to the determination of the legal consequences, notwithstanding the degree of condemnation which is nowadays apt to accompany any account . . . The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. In the meantime, it would be wrong to attempt to revise history or to fail to recognize its legal impact, however unpalatable it may now seem. To do so would be to impugn the foundations of the very legal system under which this case must be decided. (Mabo (No. 2), paragraph 48)
4.5.3. Mabo (No. 2)
4.5.3.1. Terra nullius
The Aboriginals who brought the claims in Mabo (No. 2), the Meriam Indians who inhabited the Murray Islands, used their land in a very different way from the Gove Peninsula Indians. They lived mostly in settled villages rather than nomadically, and lived primarily by cultivating gardens rather than by hunting and gathering. Also, they inhabited a part of Australia that had been annexed to the Crown at a different time and by a different process. The High Court of Australia could therefore technically have allowed the Aboriginals’ claim in Mabo (No. 2) without
144 Property Law
overruling Milirrpum, confining the effect of Milirrpum to the claims of Aboriginal tribes of a culturally similar type who inhabited that locality. As Brennan J said:
This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher ‘in the scale of social organization’ than the Australian Aborigines whose claims were ‘utterly disregarded’ by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.
(Mabo (No. 2), paragraph 39)
The court decided by a majority of six to one (Dawson J dissenting) to follow the latter course. Brennan J described the extended doctrine of terra nullius (i.e. treating inhabited territories as if they were uninhabited if the inhabitants were ‘so low in the scale of social organisation’ that it would be ‘idle to impute to such people some shadow of the rights known to our law’) as ‘an unjust and discriminatory doctrine of the kind that can no longer be accepted’:
37. It is one thing for our contemporary law to accept that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies. It is another thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts. When it was sought to apply Lord Watson’s assumption in Cooper v. Stuart that the colony of New South Wales was ‘without settled inhabitants or settled law’ to Aboriginal society in the Northern Territory [in Milirrpum] the assumption proved false . . .
38. The facts as we know them today do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands . . .
39. . . . The theory that the indigenous inhabitants of a ‘settled’ colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. [T]he basis of the theory is false in fact and unacceptable in our society . . .
41. If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be ‘so low in the scale of social organization’ that it is ‘idle to impute to such people some shadow of the rights known to our law’ (Re Southern Rhodesia [1919] AC at pp. 233–4) can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.
Allocating property rights 145
42. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country . . . Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people . . . The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.
Consequently, the Court held that, as a matter of law, the rights of Aboriginal Australians survived colonisation and continue to survive unless, and except to the extent that, they have since been extinguished.
This raises two questions that have proved to be crucially important. What counts as a right for these purposes? And precisely what can extinguish Aboriginal rights? We look at the first question in the next chapter. In order to appreciate the importance of the second question, on extinguishment, we need to say something more about what the court decided was the effect of transporting English common law to Australia.
4.5.3.2. Property, sovereignty and the doctrine of radical title
When a sovereign state acquires new territory (inhabited or uninhabited), it acquires sovereignty over the new territory, which includes the power to create and extinguish property rights. However, as Brennan J explains in paragraphs 44–6, sovereignty is not the same as ownership: in general the fact that a state acquires sovereignty over new territory does not mean that it automatically acquires ownership of all resources in it, even previously unowned ones. All it acquires by assuming sovereignty is power to make the laws to give ownership to itself or to others. In a passage cited with approval by Toohey J (in paragraph 15 of his judgment in Mabo (No. 2)), McNeil explains the difference between sovereignty and title to land:
The former is mainly a matter of jurisdiction involving questions of jurisdiction and constitutional law, whereas the latter is a matter of proprietary rights, which depend for the most part on the municipal law of property. Moreover, acquisition of one by the Crown does not necessarily involve acquisition of the other.
(McNeil, Common Law Aboriginal Title, p. 108)
146Property Law
However, when a state acquires new territory, it also brings its own system of law to the new territory, so if, for example, it is an established principle of law in the colonising state that all swans belong to the state, all swans in the new territory will also automatically belong to the state (unless already subject to rights of indigenous people which are binding on the state). In English common law, as a matter of law, all land in this country is ultimately ‘owned’ by the Crown. This is a principle of law that has been taken to apply in Australia and other colonised territories as well as in England, and in Mabo (No. 2) it was used as an argument in support of the Government of Queensland’s contention that the annexation of Australia to the Crown vested ownership of all land in Australia.
However, this ‘ownership’ of land by the Crown is a peculiar vestigial type of ownership, a relic of the feudal system of land ownership that used to operate in this country (as Brennan J explains in paragraphs 48–52 in Mabo (No. 2), and Deane and Gaudron JJ in paragraphs 7 and 8). It is still integral to the technical structure of land ownership in this country, as we see later in Chapter 6, but it has long ceased to have any practical significance here. All that it means is that it is the Crown that has the residual power to grant perpetual private holdings of land (called fee simple or freehold estates, but corresponding in all respects to ownership as described by Honore´), and that, when a fee simple estate is extinguished, the land reverts to the Crown – there can never be any unowned land in England. The extinction of a fee simple estate is a very rare event, and even when it does occur the Crown probably has no power to do anything with the reversionary interest apart from grant a new fee simple estate out of it to someone else. In England, therefore, the Crown’s ownership of land has very little content.
In the case of colonised territories, however, it had been argued that the effect of the doctrine of Crown ownership of land was that the Crown automatically became full beneficial owner of all land in the colonised territory, whether previously owned or unowned. This argument was rejected by the majority in Mabo (No. 2). They accepted that the technical feudal common law structure of land ownership was imported into Australia, but they took the view that all this meant was that the Crown acquired what they called ‘radical title’ to the land, not full ownership. This radical title gave the Crown title to grant beneficial property interests, like fee simple estates and leases, over tracts of land to itself and to others, but it did not of itself give the Crown any rights that overrode pre-existing Aboriginal rights. In other words, the Crown’s radical title to the land was held by the Crown subject to Aboriginal rights.
What actually happened in Australia was that the government kept control over the development of resources by granting what were called pastoral leases to settlers to enable them to farm land, and mining and other leases to those, like Nabalco Pty Ltd, who were engaged in extracting and exploiting natural resources. Land taken by settlers under these leases was almost invariably inhabited to some extent by Aboriginal tribes. Sometimes this led to the displacement of the tribes concerned and the disintegration of their way of life, other times not. One of the