Reconciliation and Social Justice Library
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HIGH COURT DECISION ON MABO - (XI) SHOULD THE PROPOSITIONS SUPPORTED BY THE AUSTRALIAN CASES AND PAST PRACTICE BE ACCEPTED?
If this were any ordinary case, the Court would not be justified
in reopening the validity of fundamental propositions which have been
endorsed by long-established authority and which have been accepted
as a basis of the real property law of the country for more than
one hundred and fifty years. And that would be so notwithstanding
that the combined effect of Crown grants, of assumed acquiescence in
reservations and dedications and of statutes of limitations would be
that, as a practical matter, the consequences of re-examination and
rejection of the two propositions would be largely, and probably
completely, confined to lands which remain under Aboriginal occupation
or use. Far from being ordinary, however, the circumstances of the
present case make in unique. As has been seen, the two propositions
in question provided the legal basis for the dispossession of the
Aboriginal peoples of most of their traditional lands. The acts and
events by which that dispossession in legal theory was carried into
practical effect constitute the darkest aspect of the history of
this nation. The nation as a whole must remain diminished unless
and until there is an acknowledgment of, and retreat from, those
past injustices. In these circumstances, the Court is under a clear
duty to re-examine the two propositions. For the reasons which we
have explained, that re-examination compels their rejection. The lands
of this continent were not
terra nullius
or "practically unoccupied" in 1788. The Crown's property in the
lands of the Colony of New South Wales was, under the common law
which became applicable upon the establishment of the Colony in
1788, reduced or qualified by the burden of the common law native
title of the Aboriginal tribes and clans to the particular areas of
land on which they lived or which they used for traditional
purposes.
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