Van Krieken, Robert --- "From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship" [2000] UNSWLawJl 3; (2000) 23(1) UNSW Law Journal 63

[*] BA (Hons) PhD (UNSW); Senior Lecturer in Sociology, Department of Social Work, Social Policy and Sociology, University of Sydney. I would like to thank Paul Patton, Tim Rowse and Duncan Ivison.

[1] HL Dalton, “Storytelling on its Own Terms” in P Brooks and P Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (1996) 57 at 57.

[2] This meaning of ‘norm’ is to be distinguished from its usage in Michel Foucault’s work. In Foucault’s work, as François Ewald suggests, “the norm is a measurement and a means of producing a common standard”, a point of reference or standard by which social diversity is coordinated: F Ewald, “Norms, Discipline, and the Law” (1990) 30 Representations 138. See also the discussion in N Rose and M Valverde, “Governed by Law?” (1998) 7(4) Social & Legal Studies 541. There is clearly a relationship between the two, but here we are concerned with different questions.

[3] Sir A Mason, “The Use and Abuse of Precedent” (1988) 4 Australian Bar Review 93 at 94. This uncoupling of moral community from tradition is a rather striking and novel phenomenon. It has been more common throughout human history and across human cultures to approach ‘looking forward’ with caution, to see tradition precisely as embodying basic human values, demanding considerable allegiance – indeed, this has been one of the central arguments for the virtues of the doctrine of stare decisis: GJ Postema, “On the Moral Presence of Our Past’ (1991) 36(4) McGill LJ 1153.

[4] N Sharp, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case, Aboriginal Studies Press (1996); J Webber, “The Jurisprudence of Regret: the Search for Standards of Justice in Mabo” [1995] SydLawRw 1; (1995) 17(5) Syd LR 5.

[5] LJM Cooray, “The High Court in Mabo: Legalist or L’égotiste” in M Goot and T Rowse (eds), Make a Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; overviews can also be found in G Cowlishaw, “Did the Earth Move for You? The anti-Mabo debate” (1995) 6(1/2) The Australian Journal of Anthropology 43 and H Wootten, “Mabo and the Lawyers” (1995) 6(1/2) The Australian Journal of Anthropology 116.

[6] Mabo and Others v Queensland (No 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (“Mabo”)

[7] Ibid at 42.

[8] Ibid at 109.

[9] K Laster, Law as Culture, Federation Press (1997) p 154 (emphasis added).

[10] For an overview, see F Brennan, One Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) pp 20-37.

[11] M Kirby, “In Defence of Mabo” in M Goot and T Rowse (eds), note 5 supra 67; D Ivison, “Decolonizing the Rule of Law: Mabo’s Case and Postcolonial Constitutionalism” (1997) 17(2) Oxford Legal Studies 253 at 256; H Reynolds, “Native Title and Pastoral Leases” [1996] AboriginalLawB 70; (1996) 3(85) Aboriginal Law Bulletin 14 at 14.

[12] RH Bartlett, The Mabo Decision, Butterworths (1993) p ix.

[13] H Reynolds, The Law of the Land, Penguin (1987). The earliest reference to the concept in relation to Aboriginal interests in land that I have been able to find is: A Frost in “New South Wales as Terra Nullius: the British Denial of Aboriginal Land Rights” (1981) 19 Historical Studies 513. The first discussion of the concept in relation to sovereignty is in E Scott, “Taking Possession of Australia: the Doctrine of ‘Terra Nullius’ (No Man’s Land)” (1940) 26 Journal of the Royal Australian Historical Society 1 (I am indebted to K Beattie’s “Terra Nullius and the Colonisation of Australia” (unpublished BA Honours Dissertation, Department of Government, University of Sydney, 1998) for drawing my attention to this reference).

[14] RH Bartlett, “Aboriginal Land Claims at Common Law” (1983) 15 University of Western Australia Law Journal 293; J Hookey, “The Land Rights Case: a Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’ (1972) 5 FLR 85; K McNeil, “A Question of Title: has the Common Law been Misapplied to Disposses the Aboriginals?” [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM Williams, The Yolngu and their Land, Australian Institute of Aboriginal Studies (1986); see also Sir H Gibbs, “Foreword” in MA Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution, University of Queensland Press (1993) xiii.

[15] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (“Milirrpum”).

[16] T Rowse, After Mabo: Interpreting Indigenous Traditions, Melbourne University Press (1993) p 1; see also P Patton’s discussion of the ‘values’ question in “After Mabo” (1994) 27(4) Southern Review 511. For a further exploration of this problem in relation to academics and law, see RA Posner, The Problematics of Moral and Legal Theory, Harvard University Press (1999).

[17] The term originates in the sociology of deviance, particularly from H Becker, Outsiders: Studies in the Sociology of Deviance, Free Press (1963).

[18] Note 15 supra at 243-4.

[19] Ibid at 247.

[20] Ibid at 244.

[21] Ibid (original emphasis).

[22] The ‘waste lands’ cases: Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404;

Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54.

[23] Note 15 supra at 246-7. Woodward’s submission that these constructions were based on questions of fact – was the territory occupied or not? – and thus not binding, fell on deaf ears. Blackburn J simply reasserted that “the categorization of New South Wales as a colony acquired by settlement or peaceful occupation, as being inhabited only by uncivilised people, is a matter of law”: at 249. This, of course, overlooked the fact that a territory regarded as “settled” or “practically unoccupied” for the purposes of sovereignty can nonetheless be simultaneously regarded as either occupied or not for the purposes of title to land, and that this is a question of fact, not law. See K McNeil, note 14 supra at 102-3, and B Hocking, “Aboriginal Law Does Now Run in Australia” [1993] SydLawRw 15; (1993) 15 Syd LR 187 at 195.

[24] Note 15 supra at 262; see also at 244.

[25] Ibid at 266-7.

[26] Ibid at 268.

[27] Ibid at 273.

[28] NM Williams, note 14 supra, p 202.

[29] This means that there are some problems with saying that “the Mabo case overturned the old view that British law applied without any account being taken of the existing indigenous law, including the indigenous land law”: K Booker, A Glass, and R Watt, Federal Constitutional Law, Butterworths (2nd ed, 1998) p 10. A similar formulation appears in A Blackshield and G Williams, Australian Constitutional Law and Theory Federation Press (2nd ed, 1998) p 178 where it is said that the judgment “recognised that the indigenous population had a pre-existing system of law, which.... would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action”. An important qualification is that the High Court, in Mabo and elsewhere, especially in relation to criminal law, resolutely refuses to recognise the force of indigenous law over English or Australian law. Whether native title is recognised in English and Australian law, then, is a matter internal to that body of law, and indigenous law only remains ‘in force’ to the extent that Australian law allows it to do so. One would also have to distinguish here between the High Court’s approach to the concept of property and to other legal concerns, especially questions of criminal law: see, for example, Chief Justice Mason’s position in Walker v State of New South Wales (1994) 182 CLR 45.

[30] G Nettheim noted in “Justice or Handouts? Aborigines, Law and Policy” (1986) 58(1) Australian Quarterly 60 at 61 that “even if he [Blackburn J] had accepted the conquered colony theory, the result in the Gove case would have been the same”. J Crawford notes in “The Appropriation of Terra Nullius” (1989) 59(3) Oceania 226 at 227, ie his review of Reynolds’ Law of the Land, note 13 supra, the major source of much of the terra nullius debate, that “... there is a tendency here to conflate the classification of Australia as settled or conquered with the existence or recognition of communal native title, which are essentially distinct issues”; again, K Beattie, note 13 supra, directed me to this reference. K McNeil also comments in note 14 supra at 92 that if Aboriginal land rights existed, “they should have continued regardless of whether Australia was conquered or settled”.

[31] Morris v CW Martin & Sons Ltd [1966] 1 QB 716 at 730.

[32] Note 6 supra at 45 (emphasis added).

[33] Ibid at 108-9 (emphasis added).

[34] Ibid at 57.

[35] Ibid at 58.

[36] D Ritter, “The ‘Rejection of Terra Nullius’ in Mabo: A Critical Analysis” [1996] SydLawRw 1; (1996) 18(1) Syd LR 5 at 6. For a related discussion of the role of terra nullius in imperial and colonial policy and administration, as opposed to law, see K Beattie, note 13 supra. This is a critique of the whole argument found especially in Reynolds’ work, but echoed in the Mabo majority, concerning the central significance of terra nullius in Aboriginal dispossession.

[37] I Hunter, “Native Title: Acts of State and the Rule of Law” in M Goot and T Rowse (eds), note 5 supra 97 at 107.

[38] LR Hiatt, “The Appropriation of Terra Nullius” (1989) 59(3) Oceania 222 at 226.

[39] Note 6 supra at 93.

[40] Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54; Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404.

[41] Note 6 supra at 104.

[42] Ibid.

[43] Note 12 supra, p xi.

[44] Note 40 supra.

[45] Note 6 supra at 183.

[46] Amodu Tijani v Secretary of Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER 785.

[47] Note 6 supra at 184.

[48] Ibid at 78-81, per Deane and Gaudron JJ.

[49] Attorney-General v Brown (1847) 1 Legge 312; Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54, and NSW v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (“Sea and Submerged Lands Act Case”).

[50] Note 6 supra at 53.

[51] Ibid at 102, per Deane and Gaudron JJ.

[52] B Hocking, note 23 supra at 191.

[53] It is actually an interesting counter-factual to pose: if a case concerning indigenous title had been brought before the NSW Supreme Court in 1947, if Stephens CJ, Dickinson and Therry JJ had been asked whether they thought that all the ‘waste’ lands of the colony were genuinely unoccupied, and what they thought of the evidence of indigenous habitation, would they have declared that those lands were truly ‘unoccupied’?

[54] B Hocking, note 23 supra at 195.

[55] (1973) 34 DLR (3d) 145 (SC).

[56] Ibid at 218.

[57] J Webber, note 4 supra at 10.

[58] Ibid at 25.

[59] Ibid at 28.

[60] Note 14 supra.

[61] J Webber, note 4 supra at 5.

[62] D Ritter, note 36 supra at 9.

[63] Note 40 supra.

[64] J Crawford, note 30 supra at 228.

[65] Aboriginal Land Rights (NT) Act 1976 (Cth). Woodward later wrote: “I took the view that the finding of close identification between particular groups of people and particular land was sufficient to mount a claim for recognition of Aboriginal title at a political level. I had no confidence that the High Court, as it was then constituted, would produce any better result for the Aboriginal people than had already been achieved. Indeed, I was afraid that doubts might be cast on Justice Blackburn’s findings about Aboriginal law. I therefore advised against an appeal”: AE Woodward, Three Wigs and Five Hats, Northern Territory Library Service (1990) p 6.

[66] J Webber, note 4 supra at 17 finds fault with Justice Toohey’s judgment for precisely this reason, because “although it provides a solid discussion of the common law of indigenous title, it declines to suggest why, at this late date, Australia should adopt that law. Given the long history of denial, a judge should offer some justification, at least implicitly, for rejecting the old position and embracing the new. It is insufficient to state the common law as though it has always been thus, for in Australia that was manifestly not the case”. Clearly my own position is exactly the reverse of this; it is unclear why the fact that Milirrpum was simply bad law should not be reason enough for rejecting its construction of native title and turning to another.

[67] K McNeil, RH Bartlett and J Hookey, note 14 supra.

[68] For example, Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC).

[69] See Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty, Allen & Unwin (1996) p 1; J Hookey, “Settlement and Sovereignty” in P Hanks & B Keon-Cohen (eds) Aborigines and the Law (1984) 1 at 1; P Patton, “Sovereignty, Law, and Difference in Australia: After the Mabo case” (1996) 21(2) Alternatives 149; D Ivison, note 11 supra.

[70] G Nettheim, “Judicial Revolution or Cautious Correction? Mabo v Queensland” [1993] UNSWLawJl 2; (1993) 16(1) UNSWLJ 1 at 16.

[71] RH Bartlett, note 12 supra, p xi.

[72] Versions of this argument which have surfaced in legal theory more broadly include R Delgado, “Norms and Normal Science: Toward a Critique of Normativity in Legal Thought” (1991) 139 University of Pennsylvania Law Review 933; RA Posner, note 16 supra; P Schlag, “Normative and Nowhere to Go” (1990) 43 Stanford Law Review 167; P Schlag, “Values” (1994) 6 Yale Journal of Law & Humanities 219. A leading example in another arena is B Anderson’s Imagined Communities, Verso (1991).

[73] D Ritter, note 36 supra at 6-7, 30 and 32. Ritter argues further that this particular rhetorical move was somehow “necessary” to restore the High Court’s broader moral legitimacy, but without making it clear where the compulsion behind this supposed “necessity” actually comes from.

[74] [1954] USSC 42; (1954) 347 US 483.

[75] S Levinson, “The Rhetoric of the Judicial Opinion” in P Brooks and P Gewirtz (eds), note 1 supra 187 at 197-8.

[76] Ibid at 198.

[77] Ibid.

[78] Ibid.