Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
This principle, stated by Gibbs J. in the Seas and Submerged Lands Case (23). precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown's Dominions. The Murray Islands were annexed by an exercise of the prerogative evidenced by the Letters Patent; a mode of acquisition recognised by the common law as a valid means of acquiring sovereignty over foreign territory. The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts (24). In Post Office v. Estuary Radio Ltd ., Diplock L. J. said (25):
" It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty of jurisdiction. For such extension the authority of Parliament if not required."
This proposition was approved by Gibbs J. in the Seas and Submerged Lands Case and, in Wacando , Gibbs C. J. and Mason J. accepted that an annexation of territory by exercise of the prerogative is an act of State (26).
Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. Accordingly, the municipal courts must determine the body of law which is in force in the new territory. By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.
International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant (27). The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers (28), provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action (29). To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius . They recognised the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest (30). Various justifications for the acquisition of sovereignty over the territory of "backward peoples" were advanced. The benefits of Christianity and European civilisation had been seen as a sufficient justification from medieval times (31). Another justification for the application for the application of the theory of terra nullius to inhabited territory - a justification first advanced by Vattel at the end of the 18th century - was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants (32) It may be doubted whether, even if these justifications were accepted, the facts would have sufficed to permit acquisition of the Murray Islands as though the Islands were terra nullius. The Meriam people were, as Moynihan j. found, devoted gardeners. In 1879, having accepted the influence of the London Missionary Society, they were living peacefully in a land-based society under some sort of governance by the Mamoose and the London Missionary Society. However that may be, it is not this Court to canvass the validity of the Crown's acquisition of sovereignty over the Islands which, in any event, was consolidated by uninterrupted control of the Islands by Queensland authorities (33).
The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or "settlement", to use the term of the common law). Although Blackstone commanded the practice of sending colonies [of settlers] to find out new habitations", he wrote (34) -
" so land as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly with the limits of the law of nature. But how far the seising of countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those, who have rendered their names immortal by this civilising mankind".
As we shall see, Blackstone's misgiving found a resonance in international law after two centuries (35). But he was unable to declare any rule by which the laws of England became the laws of a territory which was not a "desert uninhabited" country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius consequent on discovery (36), and as the law of New South Wales is the source of the law applicable to the Murray Islands, we must next examine the basis on which the common law was received as the law of the Colony of New South Wales.