Mabo was an extraordinary case both as to its conclusion, and the process the judges adopted in coming to their decision in a case apparently limited to the rights of certain Torres Straits Islanders , who were not nomads. The judges, or at least a majority of them, did their own research, apparently relying on historical texts which O’Connor says are wrong. Alone, Sir Daryl Dawson said that Aboriginal land rights were a matter for legislation, not for judicial interpretation.
Mabo decided that native title survived the British acquisition in relation to land the Crown had not alientated by way of grants . It therefore seemed to affect Crown land only. This was dramatically extended in the Wik Case ,where the Court was almost evenly balanced, 4:3. There the Court held that native title existed not only on Crown land , but also coexisted with leasehold title held principally by farmers. This led to hotly debated changes to the native titles legislation which had been introduced by the Keating Government as a result of Mabo.
Since the case, it has been widely accepted that terra nullius was the defining doctrine used by the British both to justify their acquisition of Australia and the system of land law they introduced . This assumed all land was vested in the Crown, which could then make grants to the settlers.
The orthodox view today in the schools and universities is that the High Court has conclusively demonstrated that the British were in error in determining that Australia was terra nullius, and that accordingly the birth of our nation, almost alone in the world, is legally tainted.
The High Court did not rule that the acquisition was illegal -it could not. Its own authority ultimately derived from the settlement. But its conclusion that the British were wrong to assume that Australia was terra nullius and that no land rights survived has led establishment historians to come to this conclusion.
Michael Connor argues that all this is based on a judicial fallacy. In his new book, The Invention of Terra Nullius (Macleay Books, 2005), Connor claims that terra nullius was surreptitiously introduced into political and legal debate as recently as the 1970s.
Most of the original owners or occupiers of land across the world have been disposessed by their successors. This is true on all continents. As international law developed, the right of a state to annex territory came to be limited , particularly in the twentieth century.
But the Mabo case hangs on the state of international law, not today, but at the time of the settlement. At that time, a state could, under international law, annex territory, occupied or not. The concept of terra nullius, the right of a state to occupy land without a sovereign, peopled or not, arose well after the settlement.
Hence the British made no judgement as to whether or not Australia constituted terra nullius; they had not heard of such a concept because it did not exist.
The Australian asked me to write on this, my piece appearing on 10 February, 2006:
( Note that the internet version contains a minor misprint in transposing the French term territoire sans maître )
Not everyone will agree with Michael Connor, or indeed with my conclusions, which of course are not ACM’s . ( I shall summarise some of the reponses in the following column)
The historical question is whether the British, as the basis of their acquisition, and for the purposes of land law , determined Australia to be terra nullius?
After all, that is the received truth which is being taught today.
There is no evidence that they did.
This has nothing to do with the compelling argument that Aboriginal Australians are entitled to the same rights and opportunities as all other Australians. Nor is it a critique of the early administrators , who were , by the standards of the time enlightened -and instructed to be enlightened by the Colonial Office – in the treatment of the indigenous people.
This is not just an academic argument. Since Mabo, the suggestion is that the birth of our nation, unlike the acquisition of just about every other square inch of the earth, was somehow tainted under the law of nations, international law then prevailing. This is not so.
Almost alone among the nations, a considerable proportion of the people and especially our youth, have been taught and are being taught to labor under a burden of guilt about the birth of Australia.
If this is based on a fallacy, as I think Connor clearly demonstrates, this burden should be lifted. (There may be a legal consequence for those deleteriously affected by Mabo, which I mention in my piece)
At the very least, the schools and universities, and the media are under an ethical obligation to ensure Australians and foreign scholars are at least aware of Connor’s thesis.
May we expect scholars such as Michael Connor and Keith Windschuttle to be, say, ABC Boyer lecturers, in the coming years? Will they be offered platforms in our universities and on our public braodcasters. Most importantly, will their works be prescribed as a text or reference by academia?
Rather, I suspect these works will be proscibed both by the media and the academy, with certain honourable exceptions.
And I repeat, less there be any misunderstanding, acceptance of Connor’s argument does not mean, and should not be taken to mean, that the nation should not continue to address the discrepancy in the living standards of the indigenous people.