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HIGH COURT DECISION ON MABO - (VIII) THE ABORIGINES AND THE LAND IN 1788

The numbers of the Aboriginal inhabitants of the Australian continent in 1788, the relationship between them and the lands on which they lived, and the content of the traditional laws and customs which governed them are still but incompletely known or imperfectly comprehended. The following broad generalisations must, however, now be accepted as beyond real doubt or intelligent dispute at least as regards significant areas of the territory which became New South Wales. As has been said, it is clear that the numbers of Aboriginal inhabitants far exceeded the expectations of the settlers. The range of current estimates for the whole continent is between three hundred thousand and a million or even more. Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. Their laws or customs were elaborate and obligatory. The boundaries of their traditional lands were likely to be long-standing and defined. The special relationship between a particular tribe or clan and its land was recognised by other tribes or groups within the relevant local native system and was reflected in differences in dialect over relatively short distances. In different ways and to varying degrees of intensity, they used their homelands for all the purposes of their lives: social, ritual, economic. They identified with them in a way which transcended common law notions of property or possession. As was the case in other British Colonies (260), the claim to the land was ordinarily that of the tribe or other group, not that of an individual in his or her own right.

In the context of the above generalisations, the conclusion is inevitable that, at the time of the establishment of the Colony of New South Wales in 1788, there existed, under the traditional laws or customs of the Aboriginal peoples in the kaleidoscope of relevant local areas, widespread special entitlements to the use and occupation of defined lands of a kind which founded a presumptive common law native title under the law of a settled Colony after its establishment. Indeed, as a generalisation, it is true to say that, where they existed, those established entitlements of the Australian Aboriginal tribes or clans in relation to traditional lands were no less clear, substantial and strong than were the interests of the Indian tribes and bands of North America, at least in relation to those parts of their traditional hunting grounds which remained uncultivated.

It follows from what has been said in earlier parts of this judgment that the application of settled principle to well-known facts leads to the conclusion that the common law applicable to the Colony in 1788, and thereafter until altered by valid legislation, preserved and protected the pre-existing claims of Aboriginal tribes or communities to particular areas of land with which they were specially identified, either solely or with others, by occupation or use for economic, social or ritual purposes. Under the law of the Colony, they were entitled to continue in the occupation or use of those lands as the holders of a common law native title which was a burden upon and reduced the title of the Crown. The Crown and those acting on behalf of the Crown were bound by that native title notwithstanding that the Crown's immunity from action and the fiction that the King could do no wrong precluded proceedings against the Crown to prevent, or to recover compensation for, its wrongful infringement or extinguishment. In accordance with the basic principles of English constitutional law applicable to a settled Colony, the sovereignty of the British Crown did not, after the act of State establishing the Colony was complete, include a prerogative right to extinguish by legislation or to disregard by executive act the traditional Aboriginal rights in relation to the land which were recognised and protected by the common law as true legal rights. The combined effect of (I) the personal nature of those rights, (ii) the absence of any presumption of a prior grant to the Aboriginal title-holders, and (iii) the applicable principles of English land law was that native title would be extinguished by a subsequent inconsistent grant of the relevant land by the Crown which was not invalid on its face. That extinguishment would, however, involve a wrongful infringement by the Crown of the rights of the Aboriginal title-holders.

It is unnecessary for the purpose of this judgment, and probably now impracticable, to seek to ascertain what proportion of the lands of the continent were affected by such common law native titles. Obviously, the proportion was a significant one. Conceivably, it was the whole.


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