Our last column was about a book by Michael Connor which argues that the High Court was wrong to find that the British had determined Australia was terra nullius both to justify the settlement in 1788 and the property law they adopted which took no account of native title.
Now one of the judges in Mabo, Sir Anthony Mason, says this is “a quibbling point". His comments can be read in reports by Deborah Hope, “Judge breaks silence on Mabo”, and “Smokescreen nullius” in The Weekend Australian of 25 February 2006:
Sir Anthony said that the ideas behind the concept of terra nullius "had been around for a very long time before the expression gained currency…It wasn’t a critical issue in Mabo, because the court accepted that Britain had established sovereignty over Australia and indeed it wasn’t open to the courts to challenge."
The critical issue he says was "did the British Crown on the establishment of sovereignty … acquire an absolute and universal right to land so no other person could hold any right or interest in those lands except by crown grant".
The British believed they did, and successive governments, parliaments, courts and lawyers assumed they were correct until Mabo, which came as a surprise.
Professor Greg Craven believes Connor is "half right" on terra nullius. But he says this is no more than an historical "debating point" that "just doesn’t matter". It is "not convincing as a way of knocking Mabo off".
"You can argue about Mabo that it didn’t follow precedent, that its results were not as good as hoped, but not on terra nullius," he says. "It’s not one of its more important aspects. Mabo rests on its foundations. I think it’s just a storm in a sherry glass."
The point of our previous column was that one result of Mabo is that students are being taught that the British acquisition of Australia was tainted because Australia was not the terra nullius the British thought it was. The suggestion is that this was in breach of international law. The High Court did not say this-they could not. But in finding that the property law of Australia is based on a mistaken assumption that Australia was terra nullius, the Court has lent credence to the suggestion that the foundation of modern Australia is tainted.
I suspect that Australia is alone, or almost alone, in teaching the young that the birth of their nation is tainted and shameful. You don’t for example hear the British lamenting the wrongs of 1066. Every piece of land in the world has been the subject of invasion, occupation, and annexation which has impacted on the previous inhabitants.
In our modern settled world things are different. The activities of national states are regulated more precisely by international law. But the acts of states in the past cannot be judged by today’s standards and laws, but by those prevailing at the time.
The report in The Weekend Australian says: "Conservative lawyer David Flint also jumped into the inflammatory debate, positing that farmers and miners "who have paid for Mabo, and are still paying" may have grounds to sue."
This was a reference to my comment in the review about a possible consequence if Mabo were in fact wrongly decided. It is generally assumed that the native title legislation cured any defect in Mabo.
But if the legislation created a new title, rather than confirming an existing title, those adversely affected may have grounds to argue that this constituted an acquisiton of property not on just terms in breach of the Constitution.