Reconciliation and Social Justice Library

HIGH COURT DECISION ON MABO - ANNEXATION - ITS CONSEQUENCES

If these procedures were ineffective to incorporate the Islands into Queensland, it must be taken that the Colonial Boundaries Act 1895 (Imp.) authorised their incorporation retrospectively (528).

In considering the consequences of the annexation of the Islands, the distinction between sovereignty and title to or rights in land is crucial. The distinction was blurred in English law because the sovereignty of the Crown over England derived from the feudal notion that the King owned the land of that country. It was ownership of the land that produced the theory of tenures, of obligations owed to the Crown in return for an estate in land. The position of the Crown as the ultimate owner of land, the holder of the radical title, has persisted and is not really in issue in these proceedings. What is in issue is the consequences that flow from that radical title.

The blurring of the distinction between sovereignty and title to land should not obscure the fact that (529):

" [t]he former is mainly a matter of jurisdiction, involving questions of international and constitutional law, whereas the latter is a matter of proprietary rights, which depend for the most part on the municipal law of property. Moreover, acquisition of one by the Crown would not necessarily involve acquisition of the other."

Lord Reid, in Nissan v. Attorney-General (530), after referring to some nineteenth century decisions of English courts, said:

"In my view, none of these cases decides that when the Crown annexes territory it is entitled to confiscate the property of British subjects which is in that territory."

But what of the annexation of territory not occupied by British subjects? It was only with the colonising of territories that were uninhabited or treated as such that settlement came to be recognised, as an effective means of acquiring sovereignty, additional to conquest and cession. There is no question of annexation of the Islands by conquest or cession so it must be taken that they were acquired by settlement even though, long before European contact, they were occupied and cultivated by the Meriam people.

One thing is clear. The Islands were not terra nullius . Nevertheless, principles applicable to the acquisition of territory that was terra nullius have been applied to land that was inhabited. Justification for this extension has been sought in various ways, including the extent to which the indigenous people have been seen as "civilised" or to be in permanent occupation. Thus, in Cooper v. Stuart (531) Lord Watson observed:

" There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled. law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class."

The reference to "peacefully annexed" carries a certain irony in the light of what we now know. But, in any event, the idea that land is terra nullius because it lacks "settled inhabitants" is a contentious one (532). In particular, the view that a nomadic lifestyle is inconsistent with occupation of land is at odds with reality. It pays no regard to the reason why people move from one area of land to another. Often people move, not because they lack any association with the land over which they travel but to follow the availability of water and food in a harsh climate. An approach more in accord with reality may be found in the judgment of the International Court of Justice in Western Sahara (Advisory Opinion). The majority concluded (533):

"In the view of the Court, therefore, a determination that Western Sahara was a `terra nullius' at the time of colonisation by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of `occupation'."

The matter was put even more strongly by Vice-President Ammoun in a separate opinion apparently endorsing the following assessment by one of the parties (534):

"Mr. Bayona-Ba-Meya goes on to dismiss the materialistic concept of terra nullius , which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr. Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or `mother nature', and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. This amounts to a denial of the very concept of terra nullius in the sense of a land which is capable of being appropriated by someone who is not born therefrom. It is a condemnation of the modern concept, as defined by Pasquale Fiore, which regards as terrae nullius territories inhabited by populations whose civilisation, in the sense of the public law of Europe, is backward, and whose political organisation is not conceived according to Western norms.

One might go still further in analysing the statement of the representative of Zaire so as to say that he would exclude from the concept of terra nullius any inhabited territory. His view thus agrees with that of Vattel, who defined terra nullius as a land empty of inhabitants."

The idea that land which is in regular occupation may be terra nullius is unacceptable, in law as well as in fact. Even the proposition that land which is not in regular occupation may be terra nullius is one that demands scrutiny, there may be good reason why occupation is irregular. Rather, in terms of Western Sahara (Advisory Opinion) , the question is whether, at the time of colonisation, the land belonged to no-one.

The operation of the notion of terra nullius only arises in the present case because of its theoretical extension to the Islands. But clearly it can have no operation. The plaintiffs accept that the Islands were settled by Britain rather than conquered or ceded. But it does not follow that principles of land law relevant to acquisition of vacant land are applicable. The acquisition of sovereignty was effected, both with respect to other European colonisers and the indigenous inhabitants, by the acquisition by the British Crown of radical title. No more was required or, with respect to occupied land, possible. Immediately on acquisition indigenous inhabitants became British subjects whose interests were to be protected in the case of a settled colony by the immediate operation of the common law. The Crown did not acquire a proprietary title to any territory except that truly uninhabited.

The real question is whether the rights of the Meriam people to the Islands survived annexation. This is not answered by pointing

to dicta which acknowledge that, on settlement, land vested in the Crown (535), irrespective of whether there were indigenous inhabitants.