NO DECOROUS VEIL: THE CONTINUING RELIANCE ON AN ENLARGED TERRA NULLIUS NOTION IN MABO (NO 2).

• Date: 01 August 2019
• Author: Lavery, Daniel

I Introduction II The Sovereignty Issue A The Modes of Acquiring Territorial Sovereignty 1 Acquisition of the Murray Islands 2 How Were the Various Parts of New Holland/Australia Acquired? (a) Evatt's Paper (b) Cooper v Stuart (1889) III Which Justification? A Lindley's Backward Territory in International Law B Stating Lindley's Canon IV Inconsistency with Other Sources A The Differences between the US Approach and Mabo [No 2] B State Practice? C Blackstone's Commentaries V 'Backward Peoples' in International Law VI 'There Are [Other] Problems' VII The Irreconcilable Tensions VIII Conclusion I Introduction

In 1982, five Meriam commenced an action in the High Court of Australia claiming an inherent title to parcels of land on the island of Mer which had not been extinguished upon the assertion of British sovereignty in 1879. (1) Mabo v Queensland [No 2] ('Mabo [No 2]') (2) was the first occasion in which a claim of pre-existing Indigenous (3) interests in land in Australia was squarely before the High Court, and the litigation necessarily raised issues surrounding the acquisition of sovereignty over the New Holland/Australian territories by Great Britain. This is because the mode of acquisition of the territorial sovereignty in international law is a question anterior to, and determinative of, the issue of what property law rights and interests might inure in an indigenous society after an acquisition. (4) The validity of the various assertions of British sovereignty over continental New Holland/Australia was not in issue at trial; however, the mode of such acquisition of territorial sovereignty was in question, and the consequences of the acquisition were certainly live issues. (5)

While the Judicial Committee of the Privy Council remained the judicial apex of the Australian legal system, the distant authority of the advice in the 1889 case of Cooper v Stuart ('Cooper'), (6) albeit in bald dictum, was accepted as binding. In Cooper, it was stated that the New South Wales territory 'consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions'. (7) By the time Mabo [No 2] was argued in 1991, Privy Council precedent was no longer binding as the High Court of Australia had become the fundamental determiner of the common law of Australia. (8) When the reserved decision of the High Court was handed down in mid-1992, a majority of 6:1 declared that the assertion of British sovereignty had not extinguished the 'native title' of the Meriam people who were entitled to possession, occupation, use, and enjoyment of the island of Mer as against the whole world. (9)

This article concentrates on the ramifications of this landmark decision on the assertions of British sovereignty over continental New Holland/Australia in 1788, 1824, and 1829 respectively. (10) The property law aspects are canvassed only as a necessary backdrop. The Mabo [No 2] decision appeared to wholly reject earlier references to Australia as 'practically unoccupied', 'without settled inhabitants or settled law', or populated by 'uncivilized inhabitants in a primitive state of society' who could be dispossessed by 'more advanced peoples', as expressed in Cooper (11) and Milirrpum v Nabalco Pty Ltd ('Milirrpum') (12) respectively. Yet when the international law aspects of the decision are closely examined, the Indigenous peoples of Australia are nominated in the leading judgment of Brennan J, with which Mason CJ and McHugh J concurred, as 'backward peoples' for the purposes of international law in 1788. (13) The historical justification Brennan J nominated for the proposition that international law regarded these peoples as 'backward' was that they 'were not organized in a society that was united permanently for political action'. (14) New South Wales is stated to have been acquired by Great Britain under an engorged occupation mode of territorial acquisition which, at its core, has what Brennan J described as an 'enlarged notion of terra nullius'. (15) 'To these territories', Brennan J stated, 'the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius'. (16) Thus, the territories of the Indigenous peoples of Australia could be unilaterally appropriated as not 'occupied', without reliance on any other legitimate mode of acquisition of territorial sovereignty in international law.

This article interrogates this 'enlarged notion of terra nullius', especially as it is formulated in the leading judgment of Brennan J--lauded as perhaps the most influential judgment in Australian legal history. (17) It becomes clear that while an enlarged notion of terra nullius was condemned from the property law perspective in Mabo [No 2], paradoxically the territorial sovereignty of the modern Australian nation-state rests on this selfsame enlarged notion of terra nullius--one which treats its Indigenous peoples as 'backward'. Additionally, the decision exposed other 'problems' with the present orthodox theory of Anglo-Australian sovereignty, (18) not least the alleged instantaneity of the assertions of territorial sovereignty by Great Britain and the unbounded exercise of the so-called 'radical title' said to have been acquired by the Crown upon sovereignty.

The basis of territorial sovereignty, as stated by Brennan J, will be explored first in an attempt to source the provenance of this 'enlarged notion of terra nullius' with its 'backward peoples' concept in international law, to trace its manifestation in Imperial constitutional law, and to highlight the fundamental and inescapable reliance which is placed on this enlarged terra nullius notion in present-day Australian jurisprudence. It is shown that Australian jurisprudence continues to embrace an enlarged notion, one which views its Indigenous peoples as 'backward'--too low on a scale of sociopolitical organisation as to have ever been capable of being 'sovereign' or to have occupied their respective territories in international law. (19) To conclude, the various implications of the decision on the ahistorical orthodox theory of Anglo-Australian sovereignty will be examined. This orthodox theory, as presently constructed, is more story than history, and is in a counterfactual and parlous state.

II The Sovereignty Issue

Although the Meriam plaintiffs did not challenge the validity of British sovereignty over their traditional islands, some relevant principles of international law and Imperial constitutional law surrounding the acquisition of sovereignty of the Murray Islands and continental Australia were necessarily canvassed in the decision's reasoning. All four majority judgments in Mabo [No 2] declared the common law of Australia as recognising the pre-existing 'native title' to land and waters of Indigenous Australian peoples. (20) Crucially, the common law of Australia was declaratory of such native title, but did not source it. (21) Brennan J defined this native title as 'the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants'. (22) His Honour's opinion stated, after a 'lengthy examination of the problem', nine principles as being the common law of Australia. (23) Relevant to the sovereignty issue, these included:

1 The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.

2 On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.

3 Native title to land survived the Crown's acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.

...

6 Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land.... (24)

Brennan J accepted that the settled laws and customs of the Indigenous peoples--and, implicitly, the societies and normative systems generating these laws and customs--continued unabated after 'a change in sovereignty. (25) His Honour rejected that the contrary view could be accepted contemporarily, stating:

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 [in Milirrpum] 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, the assumption proved false. (26) As to the property law aspects, Brennan J wrote:

The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. (27) His Honour noted that any theory which had the British Crown acquiring an absolute beneficial title in all colonial land upon the relevant...