Mabo : a judicial revolution : the Aboriginal land rights decision and its impact on Australian law

Abstract

ForewordThe Right Honourable Sir Harry Gibbs GCMG AC KBEformerly Chief Justice of the High Court of AustraliaMany decisions of the High Court have resulted in controversy, but few, if any, have given rise to such a diversity of responses, ranging from euphoria to deep anxiety, as Mabo v. Queensland.The case raises a number of questions of great public importance. Did the Court carry judicial activism too far in departing from principles that were thought to have been settled for well over a century, on the ground that those principles were contrary to international standards and the fundamental values of the common law? In doing so, the Court applied what some of its members perceived to be current values and the further question arises whether in fact those values are widely accepted in the community and whether, assuming that they are, it is right to apply contemporary standards to overturn rules formulated at a time when community values were not necessarily the same. These issues become all the more significant if the decision has a wider operation than merely in relation to the title to, and use of, land and if it provides authority for the acceptance of Aboriginal customary law in relation to other matters - in respect of crime for instance. The further questions arise whether the decision casts any doubt on the rights of such persons as pastoral lessees, holders of mining leases and occupation licences and trustees of public reserves and whether the Crown is able to recover for itself, or provide for others, the unencumbered possession, occupation, use or enjoyment of lands long believed to be Crown lands without payment of compensation to persons not yet identified. A final question, of a practical, or perhaps moral, rather than a legal kind, is whether on the whole it will prove more beneficial for the Aboriginal people that they should be provided with what may be an uncertain basis for making legal claims which are likely to result in protracted controversy and litigation, rather than leaving it to the political process to do justice to them.The authors of this special edition of the University of Queensland Law Journal have provided a comprehensive and balanced discussion of these important issues. The edition is to be welcomed as a valuable contribution to this important subject.There is one matter which has puzzled me a little. In the judgments in Mabo, and in much public discussion which has followed, there are frequent references to the doctrine of terra nullius, which the Court is said to have rejected. The question whether land was terra nullius is relevant at international law in deciding whether a state has acquired sovereignty by attempted occupation. So far as I am aware, it was not the question asked at common law to determine whether a colony, admittedly under the sovereignty of Great Britain, was acquired by settlement. Indeed theexpression ‘terra nullius' seems to have been unknown to the common law. I have found no trace of it in legal dictionaries ranging from Cowel’s Interpreter (1701 ed.) to Stroud’s Judicial Dictionary (1986 ed.). It is not mentioned in Tarring’s Law relating to the Colonies (1913 ed.) which in its day was regarded as authoritative. It may have been thought that the expression was synonymous with the common law rule that if Englishmen establish themselves in ‘an uninhabited or barbarous country’ the colony will be regarded as acquired by settlement but that ignores the fact that it was enough to satisfy the common law that the land was ‘barbarous’, by which was meant not under civilised government. Australia was certainly not unoccupied in 1788 but it is another thing to say that the social organisation of the Aboriginal inhabitants was of a kind which the nations of Europe in the eighteenth and nineteenth centuries recognised as civilised. Of course, the High Court understood the full extent of the common law principles but public understanding is not assisted when those principles are described by a phrase which is misleading and perhaps emotive.

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