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TC Beirne School of Law
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Secher, Ulla --- "The Mabo Decision - Preserving the Distinction between Settled and Conquered or Ceded Territories" [2005] UQLawJl 2; (2005) 24(1) University of Queensland Law Journal 35


THE MABO DECISION – PRESERVING THE DISTINCTION BETWEEN ‘SETTLED’ AND ‘CONQUERED OR CEDED’ TERRITORIES

ULLA SECHER[*]

I. Introduction

In Mabo v Queensland [No. 2][1], Brennan J observed that the preferable rule, namely, that a ‘mere change in sovereignty does not extinguish native title to land,’ ‘equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’.[2] Although this is essentially the effect of the decision in Mabo, the High Court’s rationale for this conclusion is critical. Unfortunately, however, this rationale is often overlooked with the result that some commentators have been too eager to assume that the High Court has rendered the distinction between settled and conquered or ceded territories otiose.[3] Consequently, it has been argued that, at common law, recognition of Aboriginal land rights entails recognition of other aspects of Aboriginal customary law.[4]

To the contrary, however, this article explains that the decision in Mabo in fact highlights the distinction between settled territories and conquered or ceded territories: the analogy that Brennan J refers to being expressly limited to one particular aspect of the rights of the inhabitants of a conquered colony — their rights and interests in land. Thus, although Aboriginal law or custom can be a valid source of legal rights if it satisfies a number of requirements,[5] recognition of Aboriginal customary laws, beyond those relating to land, cannot be based upon the Mabo rationale. Indeed, the recent Queensland Court of Appeal decision in Jones v Public Trustee of Queensland[6] highlights this dichotomy: the Court observed that the appellant’s non-land Aboriginal customary law submission ‘appears to be based on a misconception of what was decided by the High Court in [Mabo].’[7] It will be seen, however, that the Court of Appeal did not go further and identify the rationale underlying the High Court’s recognition of native title: thus, the purpose of this article.

It is clear that under the common law doctrine of reception, the laws of a conquered or ceded territory remain in force unless and until they are altered by the conquering nation.[8] Accordingly, in a conquered or ceded territory, the doctrine of reception preserves all legal rights, not just property rights, of the inhabitants of the territory unless and until such rights are superseded by English law.[9] Thus, on the hypothetical assumption that Australia was conquered, Aboriginal laws and customs including, but not necessarily limited to, laws and customs relating to land, would remain in force until altered. In Mabo, however, the High Court accepted that Australia was a settled territory. It will be seen that the new element introduced by the High Court was the recognition of a new class of settled colony at common law: a settled, yet legally inhabited, colony.[10] Consequently, the High Court was free to prescribe (and indeed had to prescribe because there was no law on point) a doctrine relating to the law that applied in the colony. It will be seen, in Parts III and IV respectively, that this modified doctrine of reception included the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore. First, however, Part II examines the Queensland Court of Appeal’s decision in Jones v Public Trustee of Queensland.

II. JONES v PUBLIC TRUSTEE OF QUEENSLAND

Although Aboriginal customary entitlements beyond those relating to land, for example customs and practices relating to marriage, custody of children, and crime and punishment, may be as important as land rights from the perspective of the preservation of Aboriginal cultural identity, the Queensland Court of Appeal’s decision in Jones v Public Trustee of Queensland shows that the independent recognition of Aboriginal customary rights to land is in no sense arbitrary.

The question raised by this appeal was whether a claimed right, based upon traditional aboriginal law or custom, to represent beneficiaries of a deceased estate, without their knowledge, in an action against the personal representative could be recognised. The appellant, John Dalungdalee Jones, claimed such a right as senior elder of the Dulungdalee people of Fraser Island in relation to the intestate estate of Mr Bennett, a member of the Dulungdalee people.

The late Mr Bennett became the Australian bantamweight boxing champion in 1948 and, during the course of his career, won considerable money. Because he was an Aborigine, Mr Bennett’s earnings were controlled by a public officer[11] authorised to manage the property of Aboriginal persons. Mr Bennett died intestate on 10 December 1981 and, as a result of his investigations of Mr Bennett’s affairs, the appellant formed the opinion that not all the money received on behalf of Mr Bennett had been accounted for; the amount unaccounted for was estimated to be worth many millions of dollars according to current appreciated values. Therefore, as an aspect of his duty as senior elder, the appellant instituted proceedings in the Supreme Court on 11 March 2003. His claim was made under the Succession Act 1981 (Qld)[12] and the Uniform Civil Procedure Rules 1999 (Qld).[13]

On 9 February 2004, White J refused the appellant’s application to set the matter down for trial; her Honour made the order, inter alia, that ‘[o]ne or more of the intestacy beneficiaries of the estate … be substituted as Plaintiff or Plaintiffs to this proceeding’.[14] It was against White J’s decision that the appellant appealed. On 7 April 2004, the three surviving intestacy beneficiaries were substituted as plaintiffs in the proceeding, and each of them swore that they did not wish to be represented by the appellant.

The Court of Appeal unanimously concluded that the appeal should be dismissed.[15] In doing so, they found that there were two reasons why Uniform Civil Procedure Rule 75(1), providing for proceedings by the appellant in representative form, was not available or appropriate. Firstly, the appellant did not share with the surviving intestacy beneficiaries the same interest needed to satisfy the terms of the rule: all three intestacy beneficiaries, being children of the deceased were invested by the Succession Act with the sole right as next of kin to share in what remained of their father’s intestate estate.[16] Secondly (and for the Court more compellingly), the intestacy beneficiaries had been joined as individually named plaintiffs and sought to be substituted as the appellants in the appeal, which they did not wish to prosecute.[17]

More importantly for present purposes, the Court also considered the appellant’s submission that White J’s decision was incorrect because it failed to take account of Aboriginal traditional or customary law on the subject: that being, in terms of the interpretation of the Uniform Civil Procedure Rules and the appeal, that the appellant’s customary law duty and right to represent members of his people prevailed. The appellant advanced two reasons to support this submission: the provisions of the Native Title Act 1993 (Cth) (‘NTA’) and s 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’). [18]

Although noting that the same conclusion prevailed if the question were determined under the NTA or the RDA,[19] the Court held that the appellant’s submission based on Aboriginal customary law failed on the ground that there was ‘[no] evidence of the alleged traditional or customary law relied on or of its precise content’.[20] That is, the submission did not satisfy the fourth prerequisite for recognising a traditional law or custom identified by Kirby P in Mason v Tritton:[21] namely, ‘that the right claimed is sought to be relied on in the exercise of traditional Aboriginal laws and customs’.[22] In this context, McPherson JA observed that:

Apart altogether from the other three requirements, [the appellant’s] claim fails at this hurdle. There is no evidence that among the Dalungdalee people of Fraser Island there was or is a continuing custom that the eldest member is entitled to insist on representing individuals, whether in or out of litigation, without their consent and in spite of their expressed wish that he should not do so; and no evidence that the intestacy beneficiaries are here seeking to exercise any such right.[23]

Although this ground alone was sufficient to dismiss the appellant’s submission based on Aboriginal customary law, the Court offered two further reasons, by way of obiter, for rejecting the Aboriginal customary law submission. Crucially, both these reasons were based upon the High Court’s decision in Mabo. First, it was suggested that even if there were evidence that the appellant had a customary law duty and right to represent members of his people that extended to proceedings in a court of law, it was not established that:

[I]n consequence the intestacy beneficiaries lack or are deprived of authority to decide for themselves whether it will be he or someone else who will act on their behalf in this proceeding. To find that Aboriginal customary law denies them as individuals such a right of choice might well suggest that it is unreasonable or inconsistent with the common law, and therefore not capable of being recognised under the law of Queensland or Australia.[24]

For present purposes, however, the second obiter reason for denying the Aboriginal customary law submission was crucial. McPherson JA observed that:

It may, in any event, be added that it appears to be based on a misconception of what was decided by the High Court in [Mabo] … What [Mabo] decided was … that the act of state of acquiring territorial sovereignty or ‘radical title’ does not, without more, itself extinguish Aboriginal or native rights or title in or to land and waters, which, on the contrary, continue to be recognised by the common law until effectively extinguished. ... The right or duty of [the appellant] to represent his people or some of them is not shown to be related to customary Aboriginal rights in land or title to waters either at all or in any way that is recognised by the common law in Australia.[25]

Although McPherson JA clearly acknowledged that the Mabo High Court’s recognition of native title was expressly limited to one particular aspect of the Aboriginal customary rights, their rights and interests in land and waters, his Honour did not examine the rationale for this conclusion. This rationale is, however, crucial and explains why the non-land rights of aboriginal inhabitants in a settled colony remain different from the non-land rights of the inhabitants of conquered colonies. Indeed, although there have been a number of post-Mabo decisions refusing to extend recognition of Aboriginal law, on the basis of the Mabo principle, beyond rights and interests in land,[26] there is also judicial support for such an extension, such as the decision of Gillies SM in Goodsell v Yunupingu.[27]

In this case, Mr Yunupingu, a Yolngu elder and former Australian of the Year, was found not guilty of assault, damage to property, and theft arising out of an incident in which a non-Aboriginal photographer had, without permission, taken photographs of Mr Yunupingu’s extended family in breach of Yolngu law.[28] The not guilty verdict was based, inter alia,[29] on the finding that since Mr Yunupingu’s actions were sanctioned by Yolngu law, they were ‘done, made or caused in the exercise of a right recognised at law’ and therefore authorised under s 26(1)(a) of the Criminal Code Act 1997 (NT).[30] For present purposes, the crucial part of Gillies SM explanation of the reason for recognising the rights of Mr Yunupingu to enforce Yolngu law on Yolngu land was expressed in the following terms:

1. The source of the enforceability of native title … is and is only ‘as an applicable law or statute provides’. … Kirby J in Wik Peoples v Queensland

2. Native title can be described as ‘the possession, occupation, use and enjoyment of land by native people who have, for want of a better expression, a connection with the land’; that is, a spiritual or religious relationship to the land.

3. The use of land includes the enforcement of laws on that native land applicable to and accepted by the natives on that land who have a connection with that land; that is, those people who are part of the land.[31]

Although Gillies SM was clearly referring to the concept of native title recognised by the common law of Australia, immediately following these observations, he stated that Mr Yunupingu’s entitlement to act under Yolngu law on the subject land was recognised by, and enforceable under, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[32] That is, since the beneficial purpose of this Act is to enable Aboriginal people to pursue traditional lives on Aboriginal land, it implicitly means, inter alia, the observance and enforcement of traditional laws on that land.[33] This is crucial: since Gillies SM concluded that Yolngu rights are enforceable under the Act, it was not necessary to determine whether those rights were also recognised as native title rights at common law.

Nevertheless, in line with the earlier reasoning of Gillies SM, many commentators have argued that, at common law, the High Court’s recognition of Aboriginal land rights in Mabo entails recognition of other aspects of customary law.[34] As the Queensland Court of Appeal has emphasised in Jones v Public Trustee of Queensland, however, this argument is based upon a ‘misconception of what was decided by the High Court in [Mabo]’.[35] Although it is clear that the Mabo decision only equates the land rights of Aboriginal inhabitants of a settled colony with the land rights of the inhabitants of a conquered colony, what is the rationale underlying this conclusion? It will be seen that in order to reach this conclusion, it was necessary for the High Court to clarify two interrelated aspects of the Australian common law: the applicability of the English doctrine of tenure, and the effect of the classification of Australia as settled, although not previously uninhabited.[36] Indeed, it will be seen that, as a result of the Mabo High Court’s restatement of the common law, there is a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory (a modified doctrine of reception).

III. The Australian Doctrine of Tenure (Radical Title as the Postulate of the Doctrine of Tenure)

A. Mabo: The Decision

Since the plaintiffs in Mabo did not deny the Crown’s sovereignty over the Murray Islands nor the Crown’s radical title to the land, the principal question in Mabo was whether the annexation of the Murray Islands to the colony of Queensland in 1879 vested ‘absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands’ in the Crown.[37] The defendant claimed that several common law doctrines, which supported exclusive Crown ownership of all land in the Australian colonies, were inconsistent with the recognition of native title; the most important basis for ownership asserted being the doctrine of tenure.[38] It was argued that because the doctrine of tenure was the basis of all legal title to land in Australia, the ultimate owner of all land in Australia was the Crown. Accordingly, anyone holding land in Australia was holding land of the Crown.[39] Since the plaintiffs’ native title did not derive from any Crown grant, its recognition was inconsistent with the common law.[40]

Although the Court was unanimous in confirming that the doctrine of tenure is an essential principle of land law in Australia,[41] the majority rejected the argument that recognition of native title was inconsistent with the Crown’s radical title and the doctrine of tenure. On analysis, it will be seen that in reaching this decision the majority judges defined the Australian doctrine of tenure and, consequently, retrospectively modified the doctrine of tenure as understood by English law.

The six majority justices agreed that the Australian doctrine of tenure is fundamentally different from its English counterpart. Nevertheless, the judgments reveal two distinct approaches vis-a-vis the circumstances in which the Australian doctrine operates. Four justices, Brennan J, with whom Mason CJ and McHugh J agreed, and Toohey J, attributed a narrow sphere of operation to the Australian doctrine of tenure, while two justices, Deane and Gaudron JJ, suggested a broader application. Consequently, it will be seen that Brennan and Toohey JJ’s version of the Australian doctrine of tenure represents a more radical departure from the English doctrine of tenure than Deane and Gaudron JJ’s version. Furthermore, notwithstanding the similar approaches adopted by Brennan and Toohey JJ, there is an important difference between their judgments: while Brennan J’s conclusion on the role of the doctrine of tenure in Australia is express, Toohey J’s is implied.

As Brennan J’s reasons were adopted by Mason CJ and McHugh J, his leading judgment represents a fundamental restatement of the doctrine of tenure as it applies in Australia. Noting that the land law of England is based on the doctrine of tenure[42] and that the fiction of royal grants underlies this English doctrine,[43] Brennan J accepted that the doctrine of tenure is a basic doctrine of Australian land law[44] and that Crown grants are the foundation of that doctrine.[45] Consequently, Brennan J considered it ‘an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure’.[46] Accordingly, the ‘Crown was treated as having the radical [ultimate or final] title to all the land in the territory over which the Crown acquired sovereignty’.[47] This radical title, adapted from feudal theory, had two limbs: it was both ‘a postulate of the doctrine of tenure and a concomitant of sovereignty’.[48] Brennan J reasoned that as a postulate of the doctrine of tenure, the notion of radical title ‘enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown’.[49] As a concomitant of sovereignty, the notion of radical title enabled the Crown ‘to become absolute beneficial owner of unalienated land required for the Crown’s purposes’.[50]

According to Brennan J, therefore, the two limbs of the Crown’s radical title simply enabled the English doctrine of tenure to be applied, and the Crown’s plenary title to be acquired, in colonial Australia. Consequently, Brennan J emphasised that ‘it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants’.[51] By drawing a distinction between the title to land that the Crown acquires upon acquisition of sovereignty and the rights to the use and benefit of that land, which might be vested in some person or entity other than the Crown, Brennan J concluded that ‘[t]he doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.[52]

In this way, Brennan J articulated the limited role of the doctrine of tenure in Australian land law. Only when the Crown exercises its power to grant an estate in land is such land brought within the regime governed by the doctrine of tenure.[53] This is critical and represents the essential point of divergence between the Australian and English versions of the doctrine of tenure. Under the Australian doctrine of tenure, the two-fold feudal fiction of original Crown ownership of all land and original Crown grant no longer applies.[54] The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership has been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’.[55] On the basis of his examination of the doctrine of tenure as it applies in Australia, therefore, Brennan J found nothing to compel the conclusion that the Crown acquired more than radical title upon acquisition of sovereignty.[56] Recognition of radical title was consistent with the recognition of native title to land:

[F]or the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).[57]

Thus, rather than holding that ‘the dispossession of the indigenous inhabitants of Australia’ was worked by ‘a transfer of beneficial ownership when sovereignty was acquired by the Crown’,[58] Brennan J reasoned that this dispossession was achieved ‘by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists’.[59] Brennan J concluded that it was only the fallacy of equating sovereignty with beneficial ownership of land that had given rise to the notion that native title was extinguished by the acquisition of sovereignty;[60] the ‘notion that feudal principle dictates that the land in a settled colony be taken to be a royal demesne upon the Crown’s acquisition of sovereignty is mistaken’.[61]

The other majority judges in Mabo were also able to redefine the English doctrine of tenure as a result of their treatments of the origin and meaning of the concept of radical title. Indeed, like Brennan J, Justice Toohey thought that the distinction between sovereignty and title to land was crucial when considering the consequences of the annexation of the Murray Islands.[62] Noting that the position of the Crown as the holder of radical title had always been accepted and was not in issue, Toohey J stressed that what was in issue was the consequences that flowed from radical title.[63] He considered that the blurring of ‘the distinction between sovereignty and title to … land’[64] obscured the fact that the acquisition of sovereignty did not necessarily involve acquisition of title.[65] Toohey J explained that the distinction between sovereignty and title was blurred in English law because the Crown’s sovereignty over England derived from the feudal notion that the King owned the land of that country.[66] It was the legal fiction ‘that all land was, at one time, in the possession of the King who had granted some of it to subjects in return for services’[67] that produced the theory of tenures.[68] However, Toohey J also observed that ‘fictions in law are only acknowledged “for some special purpose”’.[69] Thus, because the effect of the fiction of past possession was to secure the ‘paramount lordship or radical title of the Crown which [was] necessary for the operation of [the doctrine of tenure]’,[70] the fiction should be given no wider application than is necessary for the doctrine to operate.[71]

For Toohey J, therefore, there was no foundation for concluding that by annexation the Crown acquired a proprietary title or freehold possession of occupied land in Australia. It acquired a radical title only.[72] Since the acquisition of sovereignty was effected, at common law, by the Crown’s acquisition of radical title, Toohey J observed that no more was required, and, with respect to occupied land, no more was possible.[73] Accordingly, the Crown did not acquire a proprietary title to any territory that was in fact inhabited. As a result of Toohey J’s recognition of interests in land that do not owe their existence to a Crown grant, therefore, so far as the doctrine of tenure is concerned, the fiction of original Crown ownership required no more than to enable the Crown to become paramount lord of all who hold a tenure granted by the Crown. On this approach, although the fiction that land was originally owned by the Crown still operates in Australia, it does so in a limited way: it applies only to land that has, in fact, been granted or alienated by the Crown;[74] it does not apply to land that remains unalienated by the Crown. Although Toohey J’s conclusion is not as explicit as Brennan J’s, the result is the same: the Australian doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests that do not owe their existence to a Crown grant.[75]

Significantly, both Brennan and Toohey JJ’s analysis of ‘radical title’ as a postulate of the Australian doctrine of tenure has the consequence that native title is sourced outside the doctrine of tenure. Although recognition of native title is a result of the Australian common law doctrine of tenure, which applied upon settlement of Australia, native title is neither a ‘common law tenure’[76] nor an institution of the common law. Rather, native title exists independently of the doctrine of tenure: indeed, its existence is possible only because of the limited role of the doctrine of tenure in Australia.[77] Although Deane and Gaudron JJ also viewed the recognition of native title as a consequence of the received doctrine of tenure, which is different from the English version, their conception of the Australian doctrine of tenure, while narrower than the English doctrine, is nevertheless broader than Brennan and Toohey JJ’s.

Like the other members of the majority, Deane and Gaudron JJ, recognised that the ‘basic tenet’ of English common law principles relating to real property is that all land was owned by the Crown.[78] Noting that by 1788 the practical effect of the doctrine of tenure was confined to the Crown’s ownership of escheat and forfeiture rights, their Honours nevertheless emphasised that ‘the underlying thesis of the English law of real property remained that the radical title to (or ultimate ownership of) all land was in the Crown and that the maximum interest which a subject could have in the land was ownership not of the land itself but of an estate in fee in it’.[79] They did not, however, consider that the existence of radical title in the Crown precluded the ‘preservation and protection, by domestic law of the new Colony, of any traditional native interests in land [existing] under native law or custom at the time the Colony was established’.[80]

For Deane and Gaudron JJ, the consequence of radical title to all land in Australia vesting in the Crown was that:

[I]f there were lands ... to which no pre-existing native interest existed, the radical title of the Crown carried with it a full and unfettered proprietary estate. Put differently, the radical title and the legal and beneficial estate were undivided and vested in the Crown. ... On the other hand, if there were lands ... in relation to which there was some pre-existing native interest, the effect ... would not be to preclude the vesting of radical title in the Crown. It would be to reduce, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent which was necessary to recognize and protect the pre-existing native interest.[81]

Although Deane and Gaudron JJ adopt the view that, upon settlement, radical title confers rights of beneficial ownership except to the extent of native title, their Honours’ acknowledge, in conformity with the other members of the majority, that there is a distinction between radical title and beneficial title and that the practical effect of the vesting of radical title in the Crown ‘was merely to enable the English system of private ownership of estates held of the Crown to be observed in the Colony.’[82]

Deane and Gaudron JJ’s departure from the reasoning of the other majority justices begins with their explanation of the rationale underlying the Australian doctrine of tenure. Rather than focusing on the distinction between sovereignty and title to land as Brennan and Toohey JJ did, they emphasised a strong common law assumption that the act of State establishing a new colony did not extinguish the pre-existing native interests in lands in the colony, but that such interests were preserved and protected by the domestic law of the colony after its establishment.[83] The effect of this assumption was not ‘to preclude the vesting of radical title in the Crown’,[84] but was to ‘reduce, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent which was necessary to recognize and protect the pre-existing native interest.’[85]

Thus, rather than concluding that the Australian doctrine of tenure does not apply to rights and interests in land that do not owe their existence to a Crown grant, as Brennan and Toohey JJ do, Deane and Gaudron JJ suggest that the doctrine of tenure applies, prima facie, to all land in Australia, but yields to a specific common law assumption vis-a-vis native title. According to this analysis, native title appears to be no more than another exception to the doctrine of tenure as understood in English law. However, since the justices do not refer to any deemed grant in favour of native title holders in these circumstances, it appears that native title is analogous to the allodial title exception to the doctrine of tenure – a true exception rather than a circumstance giving rise to a deemed grant.[86]

A significant implication of such an interpretation is that native title is sourced within the common law and is thus a creature of the common law rather than merely being recognised by it. Indeed, Deane and Gaudron JJ use the term ‘common law native title’ to designate respected and protected pre-existing native interests.[87] Nevertheless, like the other majority justices, Deane and Gaudron JJ distinguish between the radical title to and the beneficial ownership of land in circumstances where the relevant assumption applies. Consequently, they too redefine the doctrine of tenure that was received as part of the law of the Australian colonies upon settlement. Deane and Gaudron JJ’s redefinition is not, however, as narrow as Brennan and Toohey JJ’s redefinition.[88]

B. Summary

Each substantive judgment in Mabo deals with the question of the effect of annexation upon the feudal basis of land law differently. Nevertheless, all the majority judges viewed the recognition of native title as a consequence of the Australian doctrine of tenure that was received as part of the law of the Australian colonies upon settlement. Mason CJ and McHugh J agreed with Brennan J that the operation of the Australian doctrine of tenure was limited to land that had been granted by the Crown. The tenor of Toohey J’s judgment appears to support Brennan J’s approach.[89] While Deane and Gaudron JJ appear to suggest that the doctrine of tenure applies universally in Australia,[90] they conclude that the Australian doctrine of tenure is subject to a common law assumption in favour of native title holders.

Essentially, therefore, all the majority justices agreed that the doctrine of tenure, which applied upon settlement of Australia, is different from its English feudal counterpart: the Australian doctrine of tenure does not apply automatically to all land.[91] The main point of divergence between the majority justices relates to the extent to which this Australian doctrine of tenure applies to land which has not been granted by the Crown. Nevertheless, all the majority justices were able to redefine the doctrine of tenure because they drew a distinction between the title to land, which the Crown acquires upon acquisition of sovereignty, and the rights to the use and benefit of that land, which might be vested in some person or entity other than the Crown.[92] As a result, the orthodox assumption that sovereignty conferred on the Crown not only radical title to, but also absolute beneficial ownership of, all land was rejected: the majority held that the Crown acquired only a radical title to all land.[93]

The separation of radical title to, and beneficial ownership of, land thus allows the doctrine of tenure, whether based on a narrow or a broad interpretation, to apply to land in Australia without precluding the existence of interests in or over land, such as native title, that do not owe their existence to a Crown grant. Thus, the Crown’s radical title, as a postulate of the doctrine of tenure, simply enabled the English doctrine of tenure to be applied in colonial Australia. Significantly, however, four members of the majority agree that the modified doctrine of tenure, and its subsequent recognition of land title, applies only to land that has been granted or alienated by the Crown.[94] This conclusion represents a fundamental departure from the English doctrine of tenure: the two-fold feudal fiction underlying the English doctrine of tenure no longer applies in the Australian context; instead, the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’[95] applies.

Thus, the first historic aspect of the decision in Mabo lies in the over-ruling[96] of previous decisions that had held that, as a consequence of its acquisition of sovereignty, the Crown acquired the absolute beneficial ownership of all land in Australia and that no rights or interests in any land could thereafter be possessed by any other person unless granted by the Crown. This development provided the basis for the High Court’s redefinition of the English doctrine of tenure, or the definition of the Australian doctrine of tenure. Nevertheless, all the judgments indicate the enduring importance of the historical foundations of law. In particular, the possibilities suggested by the idea of feudalism, namely radical title enabling the Crown to become Paramount Lord of all who hold a tenure granted by the Crown, demonstrates that the High Court’s approach to legal development in the context of Australian real property law is based upon an appreciation of the influences that have moulded it. Indeed, the applicability of the redefined doctrine of tenure and its supporting postulate, radical title, was only possible because the High Court rejected the common law concept of ‘desert and uncultivated’[97] territory for the purpose of the common law doctrine of reception.

IV. The Doctrine of Reception Revisited

A. The Constitutional Status of Australia: An Inhabited Settled Colony[98]

Although the manner in which a sovereign acquires a new territory is a matter of international law,[99] the system of law applicable in a newly-acquired territory is determined by the common law.[100] Thus, the doctrine of terra nullius is relevant at international law in deciding whether a state has acquired sovereignty by purported occupation,[101] but it is not relevant at common law in determining the law that is to govern the new possession.[102] The doctrine of terra nullius is, however, broadly analogous to the common law concept of colonial acquisition by ‘settlement’ of a ‘desert and uncultivated’[103] country pursuant to which the common law of England became the law of the colony in so far as it was applicable to colonial conditions.[104] Indeed, just as the categories of land that were terra nullius under international law were expanded to embrace certain inhabited land,[105] ‘desert and uncultivated’ land under the common law was expanded to include land that was inhabited. Consequently, the ‘desert and uncultivated’ doctrine classified inhabited land as uninhabited for the purpose of the doctrine of reception.

Until Mabo, therefore, when sovereignty of a territory was acquired under the enlarged notion of terra nullius for the purpose of international law, that territory was treated as ‘desert and uncultivated’ country for the purpose of the common law because there was an absence of ‘settled inhabitants’ and ‘settled law.’[106] According to pre-Mabo orthodoxy, if an inhabited territory was terra nullius for the purpose of acquisition of sovereignty, it was assumed that there could be no sufficiently organised system of native law and tenure to admit of recognition by the common law. In such circumstances, since the indigenous inhabitants and their occupancy of land were ignored when considering title to land in the settled colony, the Crown’s sovereignty over the territory was equated with Crown ownership of the lands therein because there was ‘no other proprietor of such lands’.[107] Accordingly, the classification of territory as ‘desert and uncultivated’ has been a basis for attributing absolute beneficial ownership of all land in Australia to the Crown. In this respect, therefore, the ‘occupation of’ and the ‘settlement of’ an inhabited territory were equated with the ‘occupation of’ and the ‘settlement of’ an uninhabited territory for the purpose of legitimising the acquisition of sovereignty in international law and in ascertaining the law of the territory on colonisation at common law respectively.[108]

In Mabo, it was conceded by all parties and accepted by the Court that the Crown had acquired sovereignty of Australia by occupancy under international law. Furthermore, all members of the High Court concluded that, at common law, irrespective of the original presence of the Aboriginal inhabitants, Australia was a territory acquired by settlement.[109] Accordingly, the question before the court was whether or not native title was part of the common law of a settled territory.[110] However, notwithstanding that the classification of inhabited territory as uninhabited for legal purposes served different functions in international law and at common law, in rejecting the proposition that the common law of a settled colony did not recognise native title, one of the most contentious aspects of the High Court’s decision has been its treatment of the international law doctrine of terra nullius.[111]

Accepting that Australia was not, in fact, terra nullius in 1788, yet legally unoccupied for the purpose of acquisition of sovereignty, the High Court equated occupation of an inhabited territory with occupation of an uninhabited territory. Sovereignty was, therefore, acquired under the enlarged doctrine of terra nullius. Despite this conclusion, however, the majority of the High Court expressly disapproved of applying the concept of terra nullius to an inhabited country, and recognised that the notion that inhabited land may be classed as terra nullius no longer commanded general support in international law.[112] Although the Court challenged the classification of Australia as a territory acquired by occupation and, therefore, the legal foundation for the Crown’s assertion of sovereignty, the Court’s unanimous view that the acquisition of sovereignty is not justicable before municipal courts,[113] precluded any review of this classification.[114] Municipal courts have, however, jurisdiction to determine the consequences of an acquisition of sovereignty: thus, it was open to the High Court to determine the body of law that applied in the newly acquired territory of Australia.

Since the enlarged doctrine of terra nullius had ceased to command acceptance under international law,[115] the Court found that its broadly analogous application in the common law of property was brought into question. In contradistinction to their conclusion on the issue of acquisition of sovereignty, the majority refused to follow the ‘orthodox’ approach that equated the settlement of an inhabited territory with the settlement of an uninhabited territory in ascertaining the law of a territory on colonisation. They rejected this approach, substantially, on three grounds. In addition to the fact that its analogue in international law no longer commanded general support,[116] the factual premise underpinning the colonial reception of the common law of England was not only false,[117] but also manifestly unjust.[118]

Accordingly, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement. Pre-Mabo, however, the common law determining the law that was to govern a new possession had two limbs, one general and one specific. The general limb consisted of a doctrine prescribing the law (whether English or local) that applied in the newly-acquired territory (in the case of settlements, the doctrine of reception). The specific limb consisted of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine). Although the English common law, as it was understood in Australia pre-Mabo, appeared certain with respect to determining whether a colony was deemed to be settled, conquered, or ceded, and whether English law was automatically introduced or local laws retained,[119] the common law with respect to the effect of Crown acquisition of territory on pre-existing rights to land was not so clear.

B. The Doctrine of Continuity Pro-Tempore: The Continuity and Recognition Doctrines Revisited[120]

According to Brian Slattery’s pioneering work, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories,[121] notwithstanding the constitutional status of a colony (whether conquered, ceded, or settled), pre-existing private property rights continue by virtue of the ‘doctrine of continuity’[122] and cannot normally be unilaterally terminated by the sovereign without recourse to Parliament.[123] In contradistinction, Geoffrey S Lester identified two theories in his thesis The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument.[124] The first, which he also refers to as the doctrine of continuity, is narrower than the theory suggested by Slattery.[125] It applies only where the constitutional situation is one of settlement. For Lester, however, the concept of settlement properly applies to uninhabited or inhabited land, and in the latter case, the existing rights of the aboriginal inhabitants not only continue, but also cannot be terminated by the sovereign without the consent of the owners of those rights.[126] The second theory identified by Lester, the recognition theory, applies where the constitutional situation is one of conquest or cession and, in such a case, enforceability of the rights of aboriginal inhabitants depends exclusively on what has or has not been recognised by the Sovereign.[127] Importantly, however, both Slattery and Lester conclude, by quite different reasoning,[128] that aboriginal rights in a settlement are capable of being enforced against the Crown, without any prior requirement of executive or legislative recognition.

This conclusion is also shared by Kent McNeil. McNeil argues that the doctrine of continuity as articulated by Slattery is historically correct and that the recognition doctrine arose from the ‘unfortunate misinterpretation of a few isolated decisions’.[129] McNeil agrees with Slattery that whatever the constitutional status of a colony, pre-existing private property rights continue as a result of the doctrine of continuity. Although McNeil agrees with Lester’s conclusion that the Crown could not, in its executive capacity and simply by virtue of acquiring sovereignty over a settlement, acquire title to land then occupied by indigenous people under their own customary systems of law,[130] he disagrees with Lester’s view that in conquered and ceded territories land rights must have been recognised legislatively or executively to be enforceable against the Crown.[131] It will be seen that in Mabo, Deane, Gaudron and Toohey JJ applied the doctrine of continuity as articulated by Slattery and adopted by McNeil, whereas Brennan J’s reasoning, which was adopted by Mason CJ and McHugh J, involved elements of both the doctrine of continuity and the recognition doctrine.[132]

Deane and Gaudron JJ interpreted statements in the authorities that support a general proposition to the effect that interests in property that existed under the previous law or custom of a new British colony availed nothing unless recognised by the Crown, as merely acknowledging that the act of State establishing a colony is itself outside the domestic law of the colony and beyond the reach of the domestic courts.[133] The act of State doctrine does not, however, preclude proceedings in the domestic courts in which, rather than seeking to challenge the validity of the act of State establishing the colony, ‘it is sought to vindicate domestic rights arising under the common law consequent upon that act of State’.[134] Accordingly, it was open to domestic courts to consider the question whether the act of State of a particular colony had the effect of negativing the strong assumption of the common law that pre-existing native interests in land in the colony were respected and protected.[135]

Their Honours relied on the Privy Council decision in Oyekan v Adele,[136] which held that the assumption that pre-existing rights are recognised and protected under the law of a British Colony is a ‘guiding principle’. Although noting that this case concerned a colony established by cession, their Honours stated that the ‘guiding principle’ was clearly capable of general application to British Colonies in which indigenous inhabitants had rights in relation to land under the pre-existing native law or custom, and that it should be accepted as a correct general statement of the common law for two reasons.[137] First, because it accords with fundamental notions of justice[138] and, second, because it is supported by convincing authority, including the New Zealand case of R v Symonds,[139] recent Canadian decisions,[140] and the majority of the Australian High Court in Administration of the Territory of Papua New Guinea v Daera Guba.[141]

Toohey J also held that the doctrine of continuity is more persuasive than the recognition doctrine and should, therefore, be followed.[142] His Honour relied, however, on Lord Sumner’s statement of principle in the Privy Council decision of Re Southern Rhodesia[143] in the context of conquests, and the Privy Council’s subsequent confirmation of this principle in Amodu Tijani v Southern Nigeria Secretary,[144] without limiting it to colonies acquired by conquest.[145] Toohey J also considered that the recognition doctrine was at odds with basic values of the common law.[146]

Accepting the continuity doctrine as the correct approach, Deane, Gaudron and Toohey JJ all concluded, in accordance with the reasoning in R v Symonds,[147] that the Crown was not lawfully entitled to effect unilateral extinguishment of native title against the wishes of the native occupants.[148]

Although aspects of Brennan J’s approach conform with the approach adopted by the other majority justices, it will be seen that there is a crucial point of divergence between them. Like the other majority justices, Brennan J approached the recognition of native title on the basis of the doctrine of continuity.[149] Relying essentially on the same authorities as Toohey J,[150] Brennan J concluded that the preferable rule, supported by the authorities, is that a mere change in sovereignty does not extinguish native title to land.[151] Indeed, this conclusion is consistent with the Court’s finding, which undermined the two-fold feudal fiction accompanying the English doctrine of tenure, that the Crown acquired a radical, rather than beneficial, title to all land upon acquisition of sovereignty. Thus, preservation of native title is an incident of radical title as a postulate of the Australian doctrine of tenure.

In contradistinction to the other majority justices, however, Brennan J’s approach to extinguishment of native title involves elements from the recognition doctrine. In this context, Brennan J agrees with Lester’s conclusion that:

[T]he Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated. [152]

Like the recognition doctrine, therefore, Brennan J’s approach to extinguishment is based upon the sovereignty of the Crown. Accordingly, extinguishment of native title is an incident of the Crown’s radical title as a concomitant of sovereignty. The Crown (through the exercise of its sovereign powers) can extinguish native title by its own unilateral act, whether or not the native title holders have consented.[153] On Brennan J’s analysis, therefore, antecedent rights and interests in land survived the acquisition of sovereignty[154] and in the absence of express confiscation or subsequent expropriatory legislation, it was to be presumed that the new sovereign had respected the pre-existing rights and interests in the land.[155]

Brennan J’s reasoning is crucial. What Brennan J was doing was developing a new Australian common law rule for the recognition of native title.[156] The effect of Crown acquisition of territory on aboriginal rights to land was, however, only one aspect of the broader common law basis for determining the system of law that was to govern a new territory. The other more general aspect was the doctrine that prescribed the general law that applied in the newly acquired territory (in the case of settlements, the doctrine of reception). In this context, there were three different approaches taken by the six judges: one by Brennan J, one by Deane and Gaudron JJ, and one by Toohey J.

Significantly, it will be seen that the respective approaches of Brennan J and Deane and Gaudron JJ correspond with the approaches adopted by these judges when redefining the doctrine of tenure. Since Brennan J’s definition of the Australian doctrine of tenure departs significantly from its English counterpart, so too does his treatment of the doctrine of reception. In light of Deane and Gaudron JJ’s more conservative conception of the Australian doctrine of tenure, their treatment of the doctrine of reception accords more with the received view. Although Toohey J’s judgment, like Brennan J’s, appears to depart from the conventional view of the doctrine of reception, Toohey J’s treatment of this doctrine is equivocal. While he examined the effect of the law that applied in Australia upon settlement, he failed to explain why, in light of the doctrine of reception, this particular law applied. This equivocality is perhaps the source of his implicit agreement with Brennan J on the redefinition of the doctrine of tenure on the one hand, and his agreement with Deane and Gaudron JJ on the effect of Crown acquisition of territory on aboriginal rights to land on the other.

For Deane and Gaudron JJ, the fact that New South Wales was validly established as a ‘settled colony’, meant that so much of the common law of England as was ‘reasonably applicable to the circumstances of the colony’[157] was introduced. Although suggesting that ‘[i]f the slate were clean, there would be something to be said for the view that the English system of land law was not, in 1788, appropriate for application to the circumstances of a British penal colony’,[158] their Honours accepted as ‘incontrovertible’ that the common law applicable upon the establishment of the colony of New South Wales included that general system of land law.[159]

Nevertheless, the principle that only so much of the common law was introduced as was ‘reasonably applicable to the circumstances of the Colony,’[160] ‘left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law’.[161] Deane and Gaudron JJ suggested that if Crown officers had been aware of the numbers of Aboriginal inhabitants on the Australian continent and the sophistication of their laws and customs, they would not have considered the territory unoccupied.[162] Furthermore, their Honours distinguished the line of Australian cases[163] that supported one or both of the broad propositions that New South Wales had been unoccupied for practical purposes and that the unqualified legal and beneficial ownership of all land in the colony vested in the Crown, as obiter.[164] Accordingly, their Honours concluded that the application of settled principle to the current understanding of the facts compelled the result 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 ... to particular areas of land’.[165]

Thus, although applying the received view of the doctrine of reception, the new element introduced by Deane and Gaudron JJ was the express adjustment of the applicable common law to include a strong assumption that native title interests were respected and protected by the domestic law of the colony after its establishment. In this way, the common law acknowledged that Australia, while settled, was not legally uninhabited. For Deane and Gaudron JJ, therefore, the colonial law determining that a colony was settled and that English law was automatically introduced (the doctrine of reception) included the doctrine of continuity. Although Brennan and Toohey JJ also reconcile the two limbs of the common law determining the system of law applicable upon colonisation, their reasoning is fundamentally different.[166]

According to Justice Toohey, although the Murray Islands were ‘settled’[167] by Britain for the purposes of acquisition of sovereignty, ‘it [did] not follow that [common law] principles of land law relevant to the acquisition of vacant land [were] applicable’.[168] His Honour emphasised that the ‘idea that land which is in regular occupation’ should be regarded as terra nullius is unacceptable in law as well as fact.[169] Applying current information regarding Aboriginal people to show that the land was in fact occupied on settlement, his Honour observed that upon acquisition of sovereignty, indigenous inhabitants became British subjects and, in the case of a settled colony like Australia, their interests were to be protected by the immediate operation of the common law. Toohey J explained that because the real question was whether the rights of the Meriam people to the Islands survived acquisition of sovereignty, common law dicta acknowledging that land vested in the Crown was irrelevant, because it was not made in the context of the question of Aboriginal entitlement to land.

It is clear that Toohey J considered the received view of the doctrine of reception as inapplicable to the Australian situation.[170] Rather than English law applying as though the territory was uninhabited, the doctrine of continuity applied automatically to protect native rights to land. Although Toohey J states the result of a different rule for prescribing the law that applied upon settlement of Australia, he fails to explicate this alternative rule – an explication comprehensively proffered by Brennan J.

Brennan J observed that the common law had 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’.[171] His Honour found, however, that the acquisition of territory by way of the enlarged doctrine of terra nullius raised difficulties in determining what law was to be applied when inhabited territories were acquired by occupation (or ‘settlement’, to use the term of the common law).[172] Brennan J thus transposed the concept of terra nullius into the Australian common law by suggesting that the operation of the international law principles governing acquisition of territory had created an anomaly for the domestic law. Although the enlarged doctrine of terra nullius allowed Australia to be acquired by occupation, even though it was inhabited, Brennan J noted that Blackstone[173] was unable to expound any rule by which the common law of England became the law of a territory that was not uninhabited when the Crown acquired sovereignty over the territory by occupation.[174] Consequently, the common law had to prescribe a doctrine relating to the law to be applied in such colonies. Pre-Mabo,

The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of municipal law that territory (though inhabited) could be treated as ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists).[175]

Thus, the theory advanced to support the application of English law to colonial New South Wales was that because the indigenous inhabitants were regarded as ‘barbarous or unsettled and without a settled law’, the law of England, including the common law, became the law of the colony as though it was an uninhabited colony.[176] The result was that ‘the settlement of an inhabited territory [was] equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonization’.[177]

Although contemporary law accepted that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies, Brennan J considered that the theory advanced to support the introduction of the common law could be abandoned. Because the present understanding and appreciation of the facts[178] ‘do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England’,[179] Brennan J found that there was no warrant for contemporary law to continue to apply English legal propositions that were the product of that theory.[180]

Brennan J also considered that the theory advanced to justify depriving indigenous inhabitants of a proprietary interest in the land, was unacceptable as it was ‘unjust’[181] and ‘depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs’.[182] His Honour strongly criticised the discriminatory doctrine formulated by the Privy Council in Re Southern Rhodesia[183] that had been applied to the detriment of the plaintiffs in Milirrpum v Nabalco Pty Ltd.[184] In classifying systems of native law for the purpose of determining whether rights under it are to be recognised at common law, the Privy Council implied the existence of a natural hierarchy of societies, some being ‘so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of a civilized society’.[185] Accordingly, if the inhabitants of a colony had no meaningful or recognisable system of land tenure, the colony was considered ‘desert uninhabited’ territory for legal purposes.[186] For Brennan J, the Court was faced with two options: ‘the Court could either apply the existing authorities and proceed to inquire whether the Meriam people [were] higher “in the scale of social organisation”[187] than the Australian Aborigines whose claims were “utterly disregarded” by the existing authorities or the Court [could] overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those that were not’.[188]

Observing that the notion that inhabited land may be classified as terra nullius no longer commands general support in international law,[189] Brennan J chose the latter option. Since Australia was in fact inhabited at the time of colonisation, it could not, at common law, be considered uninhabited for legal purposes. Consequently, the conventional doctrine of reception could not apply to the colony. Effectively, therefore, Brennan J (and thus the majority) identified Australia as a new class of settled colony at common law: one over which sovereignty had been acquired via occupation of territory that was terra nullius; yet one acquired, at common law, by settlement of territory that was not legally uninhabited.[190] Consequently, Brennan J had to prescribe a new doctrine relating to the law that applied in the colony. This allowed him to find, retrospectively, that the common law that applies in inhabited settled colonies presumptively recognises native title rights to land.[191] In finding that prior native rights in land were presumed to be recognised, his Honour followed Blackstone[192] and regarded occupation as the natural law basis of ownership rather than the attainment of any particular degree of civilisation.[193]

In reaching this conclusion, Brennan J equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’.[194] This comparison has two significant implications. Firstly, it reinforces Brennan J’s view that, in an inhabited settled colony, elements of both the continuity and recognition doctrines determine the legal status of pre-existing property rights after a change in sovereignty.[195] Secondly, it limits the practical consequences of Brennan J’s reasoning with respect to rights to land.

According to Brennan J’s analysis, the effect of a change in sovereignty in the context of the inhabited settled colony of Australia, was not that English land law immediately applied (as would have been the case in a settled uninhabited territory), but that the local land law continued until replaced by the new sovereign (like the legal position in a conquered territory). In this way, Brennan J incorporated elements of the continuity theory within his new rule for prescribing the law that applied upon settlement of Australia. The conclusion that in an inhabited settled colony the new sovereign retained powers by virtue of which it could extinguish local property rights meant, however, that aspects of the recognition theory were also accommodated within this new doctrine.[196]

By combining aspects of the continuity and recognition doctrines, Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled these two formerly distinct doctrines[197] and replaced them with a singular doctrine: ‘continuity pro tempore’.[198] This singular doctrine is an incident of both limbs of radical title. Indeed, Brennan J’s reconciliatory approach bears a striking resemblance to the one adopted by the Privy Council in Oyekan v Adele[199] — a case involving the cession of land to the British Crown in the former colony of Lagos. In that case, Lord Denning, delivering the judgment of the Judicial Committee of the Privy Council, expounded two propositions. The first was that in inquiring what rights are recognised after a change in sovereignty there is one guiding principle, namely that ‘[t]he courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected’.[200] The second proposition was that ‘[w]hilst...the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it; and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law’.[201]

Thus, for both Brennan J and the Privy Council the test for determining whether pre-existing interests survive a change in sovereignty has two limbs: the continuity limb and the recognition limb. According to the continuity limb, there is a presumption that pre-existing rights survive a change in sovereignty. According to the recognition limb, however, the sovereign has power to unilaterally extinguish these surviving pre-existing rights. Consequently, in both inhabited settled and ceded territories (and, a fortiori, conquered territories) there is a rebuttable presumption of fact that the antecedent rights of the inhabitants survive a change of sovereignty.[202] Thus, the continuity limb is a general guiding principle that applies irrespective of the colonial classification of a colony. Consequently, it is only in the context of the recognition limb that the constitutional status of a particular colony is relevant. The scope of the sovereign’s power of unilateral extinguishment varies, therefore, according to whether a colony is classified as inhabited settled, ceded, or conquered.[203]

A critical aspect of Brennan J’s treatment of the recognition limb is his agreement with Lester that the Recognition Doctrine addresses the question of the Crown’s prerogative power rather than the Crown’s proprietary rights.[204] Thus, it is through the election to exercise, or to refrain from exercising, the Crown’s prerogative power that antecedent rights may be respected or abrogated.[205] Contrary to Lester, however, rather than focusing on what amounts to recognition, Brennan J focuses on what amounts to extinguishment.[206] As a result, Brennan J’s approach affords no basis for a general presumption for recognition by the new sovereign of pre-existing rights. Rather, recognition is a relative concept. Recognition is not concerned with extinguishment at the time when sovereignty is assumed. Nevertheless, it is only possible to draw an inference of recognition of pre-existing rights to land in circumstances where the Crown has not validly extinguished those rights. Only when the Crown has, at any given point in time, refrained from exercising its power to extinguish pre-existing rights are the rights recognised and thus enforceable. Accordingly, although the new sovereign allows native occupation and use of the land to continue undisturbed, this does not prevent the sovereign from subsequently exercising its power to abrogate those rights.

This interpretation of the recognition limb laid the foundation for Brennan J’s (and thus the majority’s) unique conclusion on the scope of the sovereign’s power to unilaterally extinguish pre-existing rights in Australia: in contradistinction to the generally accepted position in other common law jurisdictions that recognise pre-existing rights to land,[207] the sovereign has a power to extinguish native title by inconsistent executive grant per se (without the need for legislative authority to extinguish).[208] Thus, although the Crown has power to unilaterally extinguish pre-existing rights in conquered, ceded, and inhabited settled colonies, this power is greater in the case of an inhabited settled colony. The Crown’s power to acquire land in a conquered or ceded territory after it has accepted the territory into its dominions requires either confiscatory legislation or an agreement to purchase.[209] In an inhabited settled colony, however, the Crown has power to extinguish antecedent rights and interests in land[210] in the absence of legislation, without consent[211] and without compensation.[212]

V. Conclusion

The High Court’s decision in Mabo not only preserves the distinction between settled territories on the one hand and conquered or ceded territories on the other, but it also clarifies the law that applies in territories that have been settled in circumstances like Australia. The only similarity between a settlement analogous to Australia and a territory acquired by conquest, therefore, is that rights in land predating sovereignty continued until altered. Brennan J’s analogy between ‘the indigenous inhabitants of a settled colony [and] the inhabitants of a conquered colony in respect of their rights and interests in land’,[213] is therefore, an accurate statement of the legal consequences of Mabo. The rationale underlying the Mabo decision is, however, crucial: it means that arguments for similar recognition of Aboriginal customary laws beyond those relating to land cannot be based upon the Mabo principle.[214]

This is because, in Australia, recognition of native title at common law is the legal outcome of the application of a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore. It has been seen that in order to achieve this result at common law, it was necessary for the High Court to clarify two interrelated aspects of the Australian common law: the applicability of the English doctrine of tenure, and the effect of the classification of Australia as settled, although not previously uninhabited.[215]

Although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law, six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate. As the postulate of the Australian doctrine of tenure, radical title enables the common law regime governing the doctrine of tenure to apply ‘to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.[216] Thus, the doctrine of tenure has a limited role in Australian land law. Only when the Crown exercises its power to grant an estate in land is such land brought within the tenurial regime.

This is crucial and represents the essential point of divergence between the Australian and English versions of the doctrine of tenure. Contrary to the position in England, under the Australian doctrine of tenure the two-fold feudal fiction of original Crown ownership of all land and original Crown grant no longer applies.[217] The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership is no longer of universal application, having been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’.[218]

The crucial point is that the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: although the ‘postulate of the doctrine of tenure’[219] limb of radical title continues to assure the Crown of its paramount lordship over tenures created by Crown grant, it does so in new, limited circumstances. Title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant.

The applicability of the Australian doctrine of tenure was, however, only possible because the High Court clarified the doctrine of reception as it applied to Australia.[220] In this context, the High Court rejected the common law classification of inhabited land as ‘desert and uncultivated’, or ‘legally uninhabited’, for the purpose of determining the system of law applicable upon settlement. The High Court did not, however, re-classify Australia as ‘conquered’ or ‘ceded’ rather than ‘settled’. That is, by proceeding within a framework of general principles of municipal law, the Court rejected the legal doctrine classifying inhabited land as uninhabited in its application to questions of property at common law, but not in its application to the establishment of English sovereignty in international law.[221] Nevertheless (and this is the crucial point), although the High Court accepted that Australia was a settled territory, six justices changed the law that applies to a colony acquired by settlement where the colony was not previously uninhabited.

At common law pre-Mabo, the necessary result of categorising a colony as settled (whether uninhabited in fact or ‘legally uninhabited’) was that English law, including the feudal doctrine of tenure, applied ipso jure throughout the colony. However, by categorising Australia as a new type of colony, a settled yet inhabited colony, the Mabo High Court was free to prescribe (and indeed had to prescribe because there was no law on point) a doctrine relating to the law that applied in the colony. Pre-Mabo, the common law determining the law that was to govern a new possession distinguished between the doctrine prescribing the general law that applied upon settlement (the doctrine of reception) and the doctrine prescribing the effect of Crown acquisition of territory on aboriginal land rights (the authorities supporting either the doctrine of continuity or the recognition doctrine).[222] Crucially, the Australian common law post-Mabo embraces a singular doctrine. In prescribing the law that applies upon settlement, this singular doctrine (a modified doctrine of reception) includes the test for determining whether pre-existing land rights survive a change in sovereignty.[223] Furthermore, the test for determining whether pre-existing land rights survive a change in sovereignty is a merged version of the continuity and recognition doctrines: the doctrine of continuity pro tempore.[224] Although there is a presumption, under the doctrine of continuity pro tempore, that pre-existing property rights continue after a change in sovereignty, the sovereign has power unilaterally to extinguish these surviving pre-existing rights. Accordingly, the presumption of continuity is for the time being only; recognition is a relative concept. Only when the Crown has, at any given point in time, refrained from exercising its power to extinguish pre-existing rights are the rights recognised and thus enforceable.

The new doctrine of reception is the direct result of the finding that, although Australia was settled, it was inhabited for legal purposes at common law. Pre-Mabo, the law of the previous inhabitants was not recognised or applied in an inhabited settled colony because the classification of such a colony as settled was justified on the ground that it was legally uninhabited, and thus there was no such previous law that could be applied. The enforceability of any pre-existing rights, therefore, depended on some other rule. This rule, which became known as the doctrine of continuity, contradicted the ‘legally uninhabited’ rule and, consequently, was a necessarily distinct and independent rule.

By combining aspects of the continuity and recognition doctrines, the doctrine of continuity pro tempore effectively reconciled these two formerly distinct doctrines and replaced them with a singular doctrine. Moreover, by incorporating the doctrine of continuity pro tempore, the modified doctrine of reception effectively replaced the three formerly distinct doctrines of reception, continuity, and recognition. Thus, the effect of a change in sovereignty in the context of the inhabited settled colony of Australia, was not that English land law immediately applied (as would have been the case in a settled uninhabited territory), but that the local land law continued until replaced by the new sovereign (like the legal position in a conquered territory).[225]

Therefore, where the constitutional situation is one of ‘settlement of inhabited territory’, the doctrine of continuity pro tempore applies automatically to the new colony because it is part of the colonial law determining the law that is to govern the new possession. Although the doctrine of continuity pro tempore also applies where the constitutional situation is one of cession or conquest, in such cases the doctrine applies to all legal rights, not merely property rights.[226] In inhabited settled territories, however, the continuity pro tempore doctrine applies only to land rights; other legal rights are immediately subjected to English law (as per the conventional doctrine of reception). Thus, like other settled territories, the common law of England applied as far as applicable; but unlike other settlements, the legal structure governing English land law did not apply. This is crucial: it allowed the High Court to declare that, since the doctrine of tenure with radical title as its postulate, rather than the feudal doctrine of tenure, applied in Australia, the Australian common law recognised rights in land that are not derived from the doctrine of tenure. That is, the retrospective effect of the colonisation of Australia and reception of English law was to limit the application of the doctrine of tenure, and its subsequent recognition of title, to ‘every Crown grant of an interest in land’. Accordingly, the rationale underlying the Mabo decision cannot support the recognition of non-land rights of Aboriginal inhabitants in a settled colony.


[*] LLB (Hons) (JCU), PhD (UNSW); Barrister (Qld); Lecturer in Law, James Cook University. This article is derived from parts of Chapters [1], 2 and 3 of the author’s PhD thesis: A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: An Inhabited Settled Colony (University of NSW, 2003). The author would like to thank the anonymous referees for their helpful comments and suggestions.

[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[2] Ibid 57 (Brennan J) (emphasis added). See also ibid 54-57, 82, 183; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 422.

[3] See, eg, KE Mulqueeny, ‘Folk-Law or Folklore: When a Law is Not a Law. Or is it?’ in MA Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 165, 170.

[4] See, eg, Andrew Lokan, ‘From Recognition to Reconciliation: The Functions of Aboriginal Rights Law’ [1999] MelbULawRw 3; (1999) 23 Melbourne University Law Review 65, 92-93; RD Lumb, ‘The Mabo Case – Public Law Aspects’ in MA Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 1, 21-22; Mulqueeny, above, n 4, 165, 166; Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993-94) 19 Melbourne University Law Review 195, 208-209 (from an international law perspective).

[5] See Mason v Tritton (1994) 34 NSWLR 572, 584 (Kirby P).

[6] [2004] QCA 269.

[7] Ibid [14].

[8] Mabo [1992] HCA 23; (1992) 175 CLR 1, 34-35 (Brennan J), (Mason CJ and McHugh J concurring). See also Secher, below n 10, ch 1, text accompanying n 194.

[9] Mabo [1992] HCA 23; (1992) 175 CLR 1, 34-36 (Brennan J).

[10] See text accompanying n 99 below. See also Ulla Secher, A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: An Inhabited Settled Colony (D Phil Thesis, University of NSW, 2003), 153, 180.

[11] Originally known as the Director of Native Affairs and appointed under the Aboriginals Preservation and Protection Acts 1939-1946. Under a later Act of 1965, this public officer became known as the Director of Aboriginal and Island Affairs: see Jones v Public Trustee of Queensland [2004] QCA 269 [1].

[12] Section 52(2).

[13] Rule 643(1). See also r 75(1).

[14] Jones v Public Trustee of Queensland [2004] QCA 269 [5].

[15] McPherson, Williams and Jerrard JJA.

[16] See Jones v Public Trustee of Queensland [2004] QCA 269 [11].

[17] Ibid. Although the intestacy beneficiaries had, on 23 June 2003, entered into a deed with the appellant by which they agreed to assign to the appellant a ‘one sixth share…of the estate, right, title, benefit and interest to which each of the beneficiaries is or may be entitled in and to the real and personal estate of the deceased in intestacy together with all income arising there [from] from the date of death’ at [6], the Court expressly stated that this deed ‘[did] not purport to confer on [the appellant] an enduring power to act for them, nor anything in the nature of a power of attorney coupled with an interest that would or might be irrevocable’: at [11]. Thus, ‘[e]ven if [the intestacy beneficiaries] had previously agreed to being represented by [the appellant], they [were] not bound by that decision and [were] free to revoke their consent or instructions to him’: at [11].

[18] See Jones v Public Trustee of Queensland [2004] QCA 269 [12].

[19] That is, the Court observed that since s 211 of the NTA is expressed to apply only to native title rights and interests ‘in relation to land or waters’ and s 223(1) of the NTA defines ‘native title’ and ‘native title rights and interests’ as ‘communal, group or individual rights and interests of Aboriginal peoples…in relation to land or waters’, the appellant’s submission failed because ‘[t]here is nothing…to link with land or water the traditional right or duty asserted by [the appellant] of representing members of the Dalungdalee people, or that constitutes a “connection” with any land or water’: Jones v Public Trustee of Queensland [2004] QCA 269 [16].In the context of considering whether any of the relevant provisions of the Succession Act 1981 (Qld) were invalidated by the RDA, the Court noted that: ‘In the application of its provisions to a distribution on intestacy, Part 3 of the Succession Act makes no distinction between peoples of any race or origin. Its provisions apply equally to all people including Aborigines. If there are in fact traditional rights to inherit property special to Aboriginal people which Part 3 of the Succession Act restricts or with which it interferes, those traditional rights have not been established in this case, and s 10(1) of the [RDA] is therefore not shown to be attracted to them’: Jones v Public Trustee of Queensland [2004] QCA 269 [19]; see also [17], [18], [20].

[20] See Jones v Public Trustee of Queensland [2004] QCA 269 [13].

[21] (1994) 34 NSWLR 572, 584.

[22] See Jones v Public Trustee of Queensland [2004] QCA 269 [13].

[23] Ibid.

[24] Ibid.

[25] Ibid [14].

[26] For example, in Walker v New South Wales (1994) 182 CLR 45, Sir Anthony Mason, the former Chief Justice of the High Court who had been part of the effective majority in Mabo, rejected (at 49) a claim that Aboriginal law could be brought into account in any substantive way in determining the application of European-based criminal law to Aborigines. For a decision which did not concern a criminal prosecution, but in which the remarks of Mason CJ were applied, see Turrbal People v Queensland [2002] FCA 1082 (Spender J).

[27] (1999) 4 Australian Indigenous Law Reporter 29 (Darwin Magistrates Court). For further discussion, see Steven Gray, ‘An Honest Claim of Right’ (1998) 23 Alternative Law Journal 97; Steven Gray, ‘One Country, Many Laws: Towards Recognition of Aboriginal Customary Law in the Northern Territory of Australia’ (1999) LAWASIA Journal 65.

[28] That is, the traditional laws of north-east Arnhem Land.

[29] The other finding on which the not guilty verdict was based was that, since Mr Yunupingu acted under an honest belief that Yolngu law had been recognised as native title by the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) and the common law, he could rely on an ‘honest claim of right’ under s 30(2) of the Criminal Code Act 1997 (NT). Although this section provides a defence regarding acts ‘done with respect to property’ such as criminal damage to a camera, the assault, being for the purpose of seizing property, was also ‘done with respect to property’ and thus came within the section.

[30] Goodsell v Yunupingu (1999) 4 Australian Indigenous Law Reporter 29, 35.

[31] Ibid 37 (emphasis added).

[32] Ibid.

[33] Ibid.

[34] See in n 4 references above. Cf Canadian Aboriginal rights law, where aboriginal customary law in the areas of marriage and adoption has been given limited recognition in areas left unregulated by statute (Connolly v Woolrich (1867) 17 RJQ 75) and where statutes of general application could be interpreted as not applying to Aboriginal people (Re Noah Estate [1961] 35 WWR 577; Re Katie’s Adoption Petition [1962] 38 WWR 100). Moreover, since the constitutional entrenchment of aboriginal and treaty rights in s 35 of the Canadian Constitution Act 1982, common law rights coming within the term ‘aboriginal rights’ prevail over inconsistent legislation, subject to a test of justification developed in R v Sparrow [1990] 1 SCR 1075, R v Gladstone [1996] 2 SCR 723, and Delgamuukw v British Columbia [1997] 3 SCR 1010. The concept of Aboriginal rights has thus been given enormous impetus for growth.

[35] Jones v Public Trustee of Queensland [2004] QCA 269 [14].

[36] See Secher, above n 10, generally chs 1 and 3.

[37] Mabo [1992] HCA 23; (1992) 175 CLR 1, 25 (Brennan J). Brennan J summarised the defendant’s argument (at 26) to be that ‘when the territory of a settled colony became part of the Crown’s dominions, the law of England so far as applicable to [the] colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory ... and no right or interest in any land in the territory could thereafter be possessed by any other person unless granted by the Crown’.

[38] Mabo [1992] HCA 23; (1992) 175 CLR 1, 31-32 (Brennan J); see also 59-60 (Deane and Gaudron JJ). The three other bases for ownership asserted by the defendant were: the expanded doctrine of terra nullius pursuant to which absolute beneficial ownership flowed automatically from sovereignty because there was ‘no other proprietor’ (discussed by the author in her doctoral thesis: Secher above n 10, ch 4); the patrimony of the nation basis; and the royal prerogative basis. The Court examined and rejected all three.

[39] See Secher, above n 10, ch 1, section headed ‘The Norman Conquest: Establishment of Feudal Tenure’, 22ff.

[40] This position was supported by the decision in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, which is discussed by the author: Secher, above n 10, ch 1, 42ff.

[41] Mabo [1992] HCA 23; (1992) 175 CLR 1, 45-52 (Brennan J); 80, 81, 102-104 (Deane and Gaudron); 180 (Toohey J); 122-123 (Dawson J).

[42] Mabo [1992] HCA 23; (1992) 175 CLR 1, 46.

[43] Ibid 47. The development of the fiction of original Crown grant (and fiction of original Crown ownership) is examined by the author: Secher, above n 10, 22-26.

[44] Mabo [1992] HCA 23; (1992) 175 CLR 1, 45. Brennan J’s consideration of ‘[t]he feudal basis of the proposition of absolute Crown ownership’ was prefaced with the following caution (at 45): ‘A basic doctrine of the land law is the doctrine of tenure ... and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency.’ See also Commonwealth v Yarmirr (2001) 208 CLR 1, 90-1 where McHugh J observed that the doctrine of tenure ‘is the basis of the land law of England and Australia’.

[45] Mabo [1992] HCA 23; (1992) 175 CLR 1, 47.

[46] Ibid 47-48.

[47] Ibid 48.

[48] Ibid.

[49] Ibid (emphasis added).

[50] Ibid (emphasis added).

[51] Ibid.

[52] Ibid 48-49.

[53] See also Wik Peoples v Queensland (1996) 187 CLR 1, 91 (Brennan CJ; Dawson and McHugh JJ concurring) (‘Wik’); Secher, above n 10, ch 3, text accompanying n 91, 129.

[54] The two-fold fiction accompanying the English (feudal) doctrine of tenure is discussed by the author: Secher, above n 10, ch 1, esp 24-33.

[55] Secher, above n 10, 123.

[56] Mabo [1992] HCA 23; (1992) 175 CLR 1, 45-52, esp 48. Brennan J also thought that the ‘English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant’: at 49. He relied on the Case of Tanistry (1608) Dav Ir 28; 80 ER 516 and Witrong v Blany [1685] EngR 962; (1674) 3 Keb 401; 84 ER 789, as precedent for this view.

[57] Mabo [1992] HCA 23; (1992) 175 CLR 1, 50.

[58] Ibid 58.

[59] Ibid (Brennan J). See also 103-109 (Deane and Gaudron JJ). See also Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 433-434 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ): ‘since the establishment of the Colony [of Western Australia] native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title.’

[60] On the legal implications of confusing sovereignty and ownership, see also Secher, above n 10, 25, 37. Accordingly, Brennan J concluded that the native title of the indigenous inhabitants was to be treated as a burden on the radical title that the Crown acquired.

[61] Mabo [1992] HCA 23; (1992) 175 CLR 1, 52. See also Brennan J’s observations at 45: ‘It was only by fastening on to the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by [the] indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too.’ It will be seen, in Part IV, below: ‘The Doctrine of Reception Revisited’, that the High Court has redefined the constitutional status of Australia.

[62] His Honour observed that the distinction between sovereignty and title to land is that ‘“[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”’: Mabo [1992] HCA 23; (1992) 175 CLR 1, 180, citing Kent McNeil, Common Law Aboriginal Title (1989), 108.

[63] Mabo [1992] HCA 23; (1992) 175 CLR 1, 180.

[64] Ibid.

[65] Ibid.

[66] Ibid.

[67] Ibid 212.

[68] Ibid.

[69] Ibid, citing Needler v Bishop of Winchester (1614) Hob 220, 222; [1792] EngR 498; 80 ER 367, 369; Mostyn v Fabrigas [1774] EngR 104; (1774) 1 Cowp 161, 177; [1774] EngR 104; 98 ER 1021, 1030; Anon, Considerations on the Law of Forfeitures for High Treason (4th ed, 1775), 64-65: cited by McNeil, above n 62, 84.

[70] Mabo [1992] HCA 23; (1992) 175 CLR 1, 212.

[71] Ibid.

[72] Ibid 182, 211.

[73] Ibid 182.

[74] Ibid 48 (Brennan J).

[75] Ibid 48-49 (Brennan J). Thus, Toohey J observed (at 182) that ‘[i]mmediately on acquisition [of sovereignty] indigenous inhabitants became British subjects whose interests were to be protected in the case of a settled colony by the immediate operation of the [modified] common law.’ Toohey J did in fact adopt Brennan J’s reasoning relating to both the postulate of doctrine of tenure and concomitant of sovereignty limbs of radical title in Wik (1996) 187 CLR 1, 127.

Although Toohey J’s conclusion on the Australian doctrine of tenure was sufficient to dispose of the defendant’s arguments (at 211), Toohey J nevertheless considered what the legal position would be if the English (and thus feudal) doctrine of tenure applied; that is, if the Crown was deemed to have acquired full beneficial ownership rather than a mere radical title upon acquisition of sovereignty. He indicated that if the fictitious possession of all land by the Crown was to be applied, it may be that it could not operate without also according fictitious lost grants to the present possessors. This would protect people in possession of land where no grant had been made, as the grant would be deemed in law to have been made (at 212). Indeed, in this context, Toohey J adopted Kent McNeil’s ‘common law Aboriginal title’ theory (see above n 66). Nevertheless, since this theory is inconsistent with the judgments of the other members of the majority in Mabo, it does not represent the law (Bredan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review 397, 422. Edgeworth has also pointed out that Toohey J’s conclusion that dealings between the Crown and Aborigines give rise to a fiduciary duty on the part of the Crown is ‘at odds with the English concept of tenure: the Crown as Lord Paramount in England has absolute title to the land untrammelled by general fiduciary duties to a group or groups of subjects’: ibid 421-422). Furthermore, the author has shown, in her doctoral thesis, that, as a result of Mabo, McNeil’s theory (which perpetuates the use of the two-fold feudal fiction) is no longer sustainable in the context of Australian land law (see Secher, above n 10, 172-174).

[76] Indeed, Brennan J (at 61) expressly stated that native title is not a ‘common law tenure’. See also Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 126-128 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Brennan J: ‘Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.’

[77] The Australian doctrine of tenure and native title are not, however, mutually exclusive because of the concept of co-existence: see Secher, above n 10, 176.

[78] Mabo [1992] HCA 23; (1992) 175 CLR 1, 80.

[79] Ibid.

[80] Ibid 81.

[81] Ibid 86-87 (citations omitted).

[82] Ibid 81.

[83] Ibid 82.

[84] Ibid 86.

[85] Ibid 86-87. Their Honours also noted (at 102-104) that the four Australian cases that supported the proposition that the legal and beneficial ownership of all land in the colony had vested in the Crown did not involve the question of Aboriginal entitlement to land. Thus, although the Justices conceded that the authority that these cases lent to the proposition was formidable, they dismissed the relevant comments as obiter dicta: at 104.

[86] See Secher, above n 10, 26-27, 32.

[87] For example, see Mabo [1992] HCA 23; (1992) 175 CLR 1, 86. Furthermore, they conclude (at 87) that the recognition and protection of a pre-existing native title interest ‘of a kind unknown to the English law’ requires ‘either a transformation of the interest into a kind known to the common law or a modification of the common law to accommodate the new kind of interest’.

[88] Although Deane and Gaudron JJ’s modified doctrine of tenure does not go as far as Brennan and Toohey JJ’s, their approach is not as restrictive as that of the dissenting judgment of Dawson J, which reflects a different understanding of the effect of annexation at common law. His Honour agreed (at 162) with the majority judges that the acquisition of radical title (‘though not actual possession of’ all the land) by the Crown was a necessary consequence of the exertion of sovereignty, and that this result stemmed from the system of law that the Crown brought with it: at 122. Dawson J’s departure from the majority, however, begins with his universal application of the doctrine of tenure. His Honour observed that according to the common law that the Crown brought with it, land was not the subject of absolute ownership other than by the Crown. Although noting that this notion is of ‘historical rather than practical interest’ for most purposes, Dawson J considered it fundamental in any consideration of the acquisition of territory: at 122. His Honour was therefore compelled to conclude that ‘upon annexation of the Murray Islands the Crown became the absolute owner of the land and such rights as others might have in it must be derived from the Crown and amount to something less than absolute ownership’: at 122. For Dawson J, therefore, annexation brought with it a radical title that amounted to an absolute title. And, since any interest in land must derive from the Crown, any pre-existing native title would require some act of executive or legislative recognition by the Crown to continue. As a result of his Honour’s examination of North American, African, and New Zealand authorities, Dawson J found that, as a matter of general legal principle, the native inhabitants of those places held title only of the Crown.

[89] Toohey J’s consideration of whether the doctrine of tenure created a tenurial relationship between the Crown and the indigenous occupiers was merely obiter.

[90] And, thus, prima facie appear to agree with Dawson J, see above n 88.

[91] Although there have been a number of important High Court decisions on native title since Mabo, the correctness of the decision in Mabo and the fundamental principle which it establishes, namely that, contrary to the previous understanding of the law, native title survived the Crown’s acquisition of sovereignty in Australia, has not been challenged. Similarly, it has not been contested that the Crown, as Sovereign, had the power, in accordance with law, to deal with land in every part of Australia and, to the extent that it did so in a way that was inconsistent with native title, native title was extinguished. It is also clear that the majority of Brennan J’s reasoning in Mabo has been accepted by the High Court as the fundamental statement of the recognition and extinguishment of native title by the Australian common law: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 422-423, 439, 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), 492, 493-495 (Dawson J); Wik (1996) 187 CLR 1, 84-85 (Brennan CJ) (with whom McHugh and Dawson JJ agreed: 167 and 100 respectively), 135 (Gaudron J), 175-176 (Gummow J), 213-214, 250 (Kirby J). Toohey J noted (at 129) that ‘[w]hile nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable starting point because it explores the relationship between the common law and the “law” which evidences native title rights.’; See also Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 126-131 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 150-152 (Kirby J); Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, [35] (Gleeson CJ, Gaudron, Kirby and Hayne JJ), [60], [72] (Gummow J); Commonwealth v Yarmirr [2001] HCA 56, [46], [48] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), [117], [161]; [178] (McHugh J), [293] (Kirby J), [324] (Callinan J); Western Australia v Ward (2002) 213 CLR 1; Wilson v Anderson (2002) 213 CLR 401, and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, 468 (Gleeson CJ, Gummow and Hayne JJ), 487 (Callinan J). Moreover, members of the currently constituted High Court have expressed views on the ‘increasingly questioned fiction of tenure,’: Wik (1996) 187 CLR 1, 177-184 (Gummow J), 205-207 (Toohey J), 243, 244 (Kirby J); Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 152-153 (Kirby J); Commonwealth v Yarmirr (2001-2002) 208 CLR 1, 101-102 (McHugh J). See also Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 358 (where North J suggests that the doctrine of tenure should continue to be modified);Wik (1996) 187 CLR 1, 186 (Gummow J), 128 (Toohey J, expressly approving of Brennan J’s statement of principle in Mabo [1992] HCA 23; (1992) 175 CLR 1, 50); Commonwealth v Yarmirr (2001-2002) 208 CLR 1, 51, 59, 60 (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 90-91, 101-102 (McHugh J) and the ‘extent of the reception of English land law’ (Wik (1996) 187 CLR 1, 182 (Gummow J)) which support the Mabo Court’s redefined doctrine of tenure and modified doctrine of reception. Moreover, the majority of the High Court’s decision in Wik questions the applicability of the Australian doctrine of tenure notwithstanding the grant of an interest in land by the Crown, at least in the case of the grant of a pastoral lease. That is, although the fiction of original Crown ownership is brought into play, to ensure the Crown its rights as paramount lord, whenever the Crown exercises its sovereign power to grant an interest in land, it is clear that this fiction does not confer a beneficial reversionary title on the Crown. The Wik High Court rejected the beneficial reversion expectant argument specifically in the context of the statutory grant of an interest not given its content by the common law: for an examination of the legal implications in this context, see Secher, above n 10, ch 4.

[92] Thus, the majority distinguished between Crown title to colonies and Crown ownership of land.

[93] For almost 150 years Australian courts had held that on acquisition of sovereignty over the Australian colonies, the Crown acquired absolute beneficial ownership of ‘every square inch’ of land: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 245 (Blackburn J). His Honour was referring to A-G v Brown (1847) 1 Legge 312; 2 SCR (NSW) App 30; Williams v A-G (NSW) [1913] HCA 33; (1913) 16 CLR 404, and Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54. In none of these cases except Milirrpum, however, did the issue of the Crown’s title arise in a context not involving claims by Aboriginal people.

[94] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48 (Brennan J). For a discussion of the meaning and application of the modified doctrine of tenure, see Secher, above n 10, 4-23, 60-64.

[95] Secher, above n 10, 123.

[96]Mabo [1992] HCA 23; (1992) 175 CLR 1, 58 (Brennan J).

[97] Blackstone uses this term: William Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (A Facsimile of the First Edition, The University of Chicago Press, Chicago, 1979), vol I, 104; (15th ed, Reprint, Professional Books Limited, Oxon, England, 1982), 107. After citing the relevant passage from Blackstone, Brennan J adopts the phrase ‘desert uninhabited’: Mabo [1992] HCA 23; (1992) 175 CLR 1, 35.

[98] This section is adapted from Part II of the author’s article: Ulla Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of “Continuity Pro-Tempore”’ [2004] UNSWLawJl 38; (2004) 27 University of New South Wales Law Journal 703.

[99] The international law of the eighteenth century recognised four ways of acquiring sovereignty over a new territory: by conquest, cession, occupation, or annexation: Blackstone, above n 97, vol I, 104-105; Emmerich de Vattel, The Law of Nations (1982 ed) ch 18 [trans of: Le droit des gens]; Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens and Sons, London, 1966), 99ff. A colony may be acquired by any one of these means or by a combination of two of them: ibid 99. For example, annexation of ceded colonies or conquered colonies: ibid 104-105, 107. Cf Nii Lante Wallace-Bruce, ‘Two Hundred Years On: A Re-examination of the Acquisition of Australia’ (1989) 19 Georgia Journal of International & Comparative Law 87, 89 and the authorities referred to therein, who states that there are five main modes of acquiring territory under international law: cession, occupation, prescription, accretion, and conquest.

[100] See Secher, above n 10, ch 1, section headed ‘The Reception of Land Law into the Australian Colonies’, esp 35-39.

[101] The Commonwealth Government acknowledged this in its written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989, stating that ‘[t]erra nullius is a concept of public international law; [i]t would be inappropriate to use it in the context of domestic land claims’: cited by Gerry Simpson ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993-94) 19 Melbourne University Law Review 195, 210.

[102] Sir Harry Gibbs, former Chief Justice of the High Court of Australia, has observed that the ‘expression “terra nullius” seems to have been unknown to the common law. I have found no trace of it in legal dictionaries ranging from Cowel’s Interpreter (1701 ed.) to Stroud’s Judicial Dictionary (1986 ed.). It is not mentioned in Tarring’s Law Relating to the Colonies (1913 ed.) which in its day was regarded as authorative’: Foreward in MA Stepenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) xiv.

[103] The phrase is Blackstone’s: Blackstone, above n 97, 104 and is discussed in Mabo [1992] HCA 23; (1992) 175 CLR 1, 34-37 (Brennan J) and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 427. Note, however, that in Mabo, Brennan J actually uses the phrase ‘desert uninhabited’: at 34. See also Secher, above n 10, 37-39.

[104] Mabo [1992] HCA 23; (1992) 175 CLR 1, 35 (Brennan J); Blackstone, above n 97, (1st ed), vol I, 104-105; (15th ed) 107; accord Forbes v Cochrane [1824] EngR 93; (1824) 2 B & C 448, 463; [1824] EngR 93; 107 ER 450, 456. English law would become the law of a territory outside England either upon first settlement by English colonists of a ‘desert and uncultivated’ country, or by the exercise of the Sovereign’s legislative power over a conquered or ceded territory.

[105] David Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Sydney Law Review 5, 7. Although opinions differed about exactly what types of inhabited land could be treated as terra nullius, ‘all the expanded definitions ... shared the common feature of explicit ethnocentricity’: ibid 8. Emmerich de Vattel, one of the most influential writers on the law of nations, argued that as a principle of natural law, wandering tribes could only be treated as owning property when they appropriated certain portions of earth to render them fertile and to derive sustenance from them. It followed that no country could lay claim to more of the land than it could use: The Law of Nations, above n 103, ch 18. See also JM Bennett and Alex C Castles, A Sourcebook of Australian Legal History (1979) 250-252; Heather McRae, Garth Nettheim and Laura Beacroft, Aboriginal Legal Issues (1991) 76-78. Vattel’s ideas reflected the ideas of men, such as John Locke, on the justification for private ownership of property in the sphere of international law: see John Locke, The Second Treatise of Civil Government (edited with an introduction by JW Gough) (1946). Reynolds argues that although Vattel’s writings offered a justification for colonising part of the continent, they did not justify the expropriation of the whole continent: Henry Reynolds, The Law of the Land (1987) 18.

[106] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291 (Lord Watson).

[107]A-G v Brown (1847) 1 Legge 312, 319 (Stephen CJ); also cited in Mabo [1992] HCA 23; (1992) 175 CLR 1, 40 (Brennan J).

[108] ‘Occupation’ and ‘settlement’ are used interchangeably in respect of both the common law and the international law doctrines relating to the classification of inhabited land as uninhabited. However, and notwithstanding that the term ‘settlement’ has often been preferred by Australian judges and writers when referring to the international law method of acquisition known as ‘occupation’ (see, eg, Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 129 (Gibbs J)), as the common law term is ‘settlement’ (see Mabo [1992] HCA 23; (1992) 175 CLR 1, 33 (Brennan J), Mason CJ and McHugh J concurring), ‘occupation’ will be employed to refer to the international law doctrine.

[109] Mabo [1992] HCA 23; (1992) 175 CLR 1, 37-38, 57 (Brennan J), 79-80 (Deane and Gaudron JJ), 182 (Toohey J), 138-139 (Dawson J). Terra Nullius was not mentioned in any of the Plaintiffs’ submissions, and was not referred to at all during the four days of substantive argument before the High Court of Australia: Transcript of Proceedings, Mabo (High Court of Australia, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh JJ, 28-31 May 1991).

[110] Counsel for the Plaintiffs made it clear that their submissions were not directed towards arguing that Australia had not been ‘settled’: Transcript of Proceedings, Mabo (High Court of Australia, 28-31 May 1991) 146. Counsel merely argued that, irrespective of the mode of acquisition of a colony, native interests in land were preserved as a burden upon the title of the Crown: ibid 3.

[111] See, for example: DM Austin, ‘Mabo: Sorting the Fact from Fiction’ (1993) 7(4) Commercial Law Quarterly 13, 15; Mark Brabazon, ‘Mabo, The Constitution and the Republic’ (1994) 11 Australian Bar Review 229, 232 et seq; Frank Brennan, ‘Implications for Aborigines and Islanders’ in MA Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 26; Peter Butt, ‘Native Land Rights in Australia: The Mabo Case’ (1995) The Conveyancer and Property Lawyer 33, 34-35; JRS Forbes, ‘Mabo and the Miners-Ad Infinitum?’ in MA Stephenson (ed), Mabo: The Native Title Legislation: A Legislative Response to the High Court’s Decision (1995) 51; Mark Gregory, ‘Rewriting History 1: Mabo v Queensland: The Decision’ (1992) 17 Alternative Law Journal 157; Barbara Hocking, ‘Aboriginal Law Does Now Run in Australia’ [1993] SydLawRw 15; (1993) 15 Sydney Law Review 187, 188-189; Gerald P McGinley, ‘Indigenous Peoples’ Rights: Mabo and Others v State of Queensland - The Australian High Court Addresses 200 Years of Oppression’ (1992-93) 2 Denver Journal of International Law and Policy 311, 318 et seq; Gary D Meyers and John Mugumbwa, ‘The Mabo Decision: Australian Aboriginal Land Rights in Transition’ (1993) 23 Environmental Law 1203, 1213; Kamal Puri, ‘Mabo – A Legal Revolution?’ in Mabo: A Critical Review: Proceedings of the University of Queensland TC Bernie School of Law Annual Symposium, Hilton International Hotel, Brisbane, Friday, 6 November 1992 (University of Queensland, Brisbane, 1992), 19; Henry Reynolds, The Law of the Land (1992) 186, 195-196; Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 205 et seq; cf: Richard H Bartlett, ‘The Mabo Decision’ (1993) Australian Property Law Journal 236, 241; Sir Harry Gibbs, ‘Foreward’ in MA Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) xiv; Garth Nettheim, ‘Native Title and International Law’ in MA Stephenson (ed), Mabo: The Native Title Legislation: A Legislative Response to the High Court’s Decision (1995) 37; Pamela O’Connor, ‘Aboriginal Land Rights at Common Law: Mabo v Queensland[1992] MonashULawRw 13; (1992) 18 Monash University Law Review 251, 255; David Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Sydney Law Review 5.

[112] Four of the majority judges expressly relied upon the critical examination of the theory of terra nullius by the International Court of Justice in its Advisory Opinion on Western Sahara [1975] ICJ 12 to reject the doctrine of terra nullius as a basis for the colonial acquisition of inhabited territories: at 40-41(Brennan J) (with whom Mason CJ and McHugh J concurred), 141-142 (Toohey J). It was not until 1975 that an international tribunal raised doubts about the question whether land occupied by indigenous people could be considered terra nullius: Advisory Opinion on Western Sahara [1975] ICJ 12. Although the separate opinion of Vice President Ammoun considered that the concept of terra nullius had been employed at all periods to justify conquest and colonisation and as such stood condemned (at 86), the majority thought that territory was not terra nullius if it were occupied by people having ‘social and political organisation’: at 39. The majority view appears to indicate that territory inhabited by people not having such organisation is terra nullius. Further, the High Court failed to note that the International Court of Justice actually applied the inter-temporal rule: ‘The question was whether the territory in question was terra nullius according to the international practice of 1884, the date of Spain’s colonisation....The relevant date was 1884, not 1974 (when the dispute arose) or 1975 (when the Court wrote its Opinion)’: Robin L Sharwood, ‘Aboriginal Land Rights: Further Reflections’ (1995) 93 Victorian Bar News 41, 45-46. See also DJ Harris, Cases and Materials on International Law (3rd ed, 1983) 165-167; Wallace-Bruce, above n 99, 87, 88. For the definition of the inter-temporal rule: see Secher, above n 10, n 106.

[113] This principle was stated by Gibbs J in New South Wales v Commonwealth (The Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337, 388 in the following terms: ‘The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.’ It 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 [d]ominions’: Mabo [1992] HCA 23; (1992) 175 CLR 1, 31 (Brennan J). See also Post Office v Estuary Radio Ltd [1968] 2 QB 740, 753 (Diplock LJ); Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 11 (Gibbs J), 21 (Mason J).

[114] The Court’s approach in relation to this aspect of the case also accords with inter-temporal law. The inter-temporal rule is an established rule of international law and provides that where ‘the rights of parties to a dispute derive from legally significant acts ... very long ago ... the situation in question must be appraised ... in the light of the rules of international law as they existed at the time, and not as they exist today’: Harris, above n 112, 165-167.

[115] Mabo [1992] HCA 23; (1992) 175 CLR 1, 41 (Brennan J).

[116] Ibid 40-41 (Brennan J) (relying on the International Court of Justice Advisory Opinion on Western Sahara [1975] ICJ 12, 39), 182 (Toohey J).

[117] Mabo [1992] HCA 23; (1992) 175 CLR 1, 17-18, 21-22 (Brennan J), 99-100 (Deane and Gaudron JJ), 182 (Toohey J).

[118] Ibid 42 (Brennan J), 109 (Deane and Gaudron JJ).

[119] See Secher, above n 10, 35-39.

[120] This section is adapted from Part III of the author’s article: Secher, above n 94. This article also examines the distinction between the scope of the Crown’s prerogative powers in inhabited settled colonies on the one hand, and in conquered or ceded colonies on the other: see ibid pt IV, 724-733.

[121] Brian Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories (D Phil Thesis, University of Saskatchewan Native Law Centre, 1979).

[122] Ibid 50-59. In the absence of a seizure of privately held lands by an act of state during the course of an acquisition of territorial sovereignty by the Crown, or subsequent confiscation by legislation, there is a presumption that private property rights continue after a change in sovereignty. Slattery rejects the distinction between settled and conquered colonies: Brian Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727, 738. He treats the ‘doctrine of aboriginal rights’ as a colonial law (or imperial constitutional law) doctrine, which, like other doctrines of colonial law, applied automatically to a new colony when the colony was acquired. Thus, in the same way that colonial law determined whether a colony was deemed to be settled or conquered, it also supplied the presumptive legal structure governing the position of native peoples: ibid 737. In this way, the doctrine of aboriginal rights was ‘part of a body of fundamental constitutional law that was logically prior to the introduction of English common law and governed its application in the colony’: ibid 737-738. In this way, Slattery amalgamates the two theories. He also refers to the history of English settlement together with the practice of importing English law into the English factories in India to explain why English law applied in the Canadian communities. His theory is ultimately based upon Canadian history and constitutes a legal description of what occurred politically: ibid 732.

[123] Slattery, above n 121, 146-153, 156-157; Slattery, above n 122, 748. In a conquered or ceded colony the Crown retains prerogative legislative powers by which it could extinguish such property rights before a representative assembly was summoned (Campbell v Hall [1774] EngR 5; (1774) Lofft 655, 742; [1790] EngR 1905; 98 ER 848, 896) or before English law was introduced: see authorities cited by Kent McNeil, above n 66, 164, n 14 and n 15.

[124] Geoffrey S Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (D Juris Thesis, York University, 1981). Lester’s thesis was cited by Brennan J in Mabo [1992] HCA 23; (1992) 175 CLR 1, 39. It is summarised by David W Elliott, ‘Aboriginal Title’ in Bradford W Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1991) 100, 110-111.

[125] Lester supports this theory as being the more correct approach.

[126] Lester, above n 124, 1412-1445. Lester derives this theory from cases from Ireland and Wales and from the decision in R v Symonds (1847) NZPCC 387 (NZSC) as supported by some comments of the Privy Council in Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561, 579.

[127] Lester, above n 124, 75-81. Slattery refers to this approach as the ‘doctrine of radical discontinuity’: Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Title (1983) 8-9.

[128] See summary of Lester’s arguments in Elliott, above n 124; and summary of Slattery’s argument in Slattery, above n 127.

[129] McNeil, above n 62, 162ff.

[130] Ibid 4.

[131] See generally, McNeil, above n 62, ch 6.

[132] For a different interpretation of the approaches of the majority judges on the effect of Crown acquisition of territory on aboriginal rights to land, see: Bradley Selway QC, ‘The Role of Policy in the Development of Native Title’ (2000) 28 Federal Law Review 403, 414-416.

[133] Mabo [1992] HCA 23; (1992) 175 CLR 1, 81.

[134] Ibid 82.

[135] Ibid 95.

[136] [1957] 1 WLR 876, 933.

[137] Mabo [1992] HCA 23; (1992) 175 CLR 1, 82.

[138] Ibid 82-83.

[139] [1847] NZPCC 387.

[140] Calder v A-G (British Columbia) [1973] SCR 313, 322-323, 328, 380-393; Guerin v The Queen [1984] 2 SCR 335, 376-378.

[141] (1973) 130 CLR 353, 397, where Barwick CJ, with whom McTiernan and Menzies JJ concurred, accepted that the assumption that traditional native interests were preserved and protected under the law of a settled territory applied to the settled territory of British Papua. For a discussion of this case, see Secher, above n 10, 113-114.

[142] Mabo [1992] HCA 23; (1992) 175 CLR 1, 183.

[143] [1919] AC 211, see Mabo [1992] HCA 23; (1992) 175 CLR 1, 183.

[144] [1921] 2 AC 399 (PC).

[145] Mabo [1992] HCA 23; (1992) 175 CLR 1, 184.

[146] Ibid.

[147] [1847] NZPCC 387, 391-392.

[148] Mabo [1992] HCA 23; (1992) 175 CLR 1, 90-92 (Deane and Gaudron JJ): the Crown’s prerogative to acquire native title required the consent of the owners of those rights. Toohey J went further and suggested that there was a fiduciary duty upon the Crown: at 199-205.

[149] Mabo [1992] HCA 23; (1992) 175 CLR 1, 54-57. Brennan J observed (at 55) that Lord Dunedin’s view, in Vajesingji Joravarsingji v Secretary of State for India [1924] UKPC 51; (1924) LR 51 Ind App 357, that rights and interests in land possessed by the inhabitants of a territory when the Crown acquires sovereignty are lost unless the Crown acts to acknowledge those rights, is not in accord with the weight of authority.

[150] Brennan J referred (at 55-56) to Lord Sumner in Re Southern Rhodesia [1919] AC 211, 233; Case of Tanistry (1608) Dav Ir 28; 80 ER 516; and Witrong v Blany (1674) 3 Keb 401, 402; [1685] EngR 962; 84 ER 789, 789. In particular, (at 56) he interpreted Viscount Haldane’s statement in Amodu Tijani [1921] 2 AC 399, 407, in the context of a cession, as construing the terms of a cession in the light of the general principle by which private property rights survive a change in sovereignty by whatever means.

[151] Mabo [1992] HCA 23; (1992) 175 CLR 1, 57.

[152] Lester, above n 124, 959. See also 881, where Lester states that the ‘Recognition Doctrine addresses the question of the enforceability against the Crown’. Although Lester concludes that the recognition doctrine does not apply to inhabited settled colonies, this is because he applies the received view of the doctrine of reception to such colonies: 961. Accordingly, there was no prerogative power unilaterally to abrogate the property rights of the Crown’s subjects. Cf Brennan J’s analysis: see Secher, above n 10, 165-167.

[153] Mabo [1992] HCA 23; (1992) 175 CLR 1, 63. Cf Selway QC, above n 136, 415. Although this approach might appear to suggest that the concept of ‘radical title’ is superfluous, it must be remembered that radical title has two limbs: not only is it a concomitant of sovereignty, but also it is the postulate of the doctrine of tenure. Thus, as ‘a concomitant of sovereignty’, radical title confers power on the Crown to grant land in every part of Australia, including land subject to interests not deriving from Crown grant, so that the doctrine of tenure may apply to that land. Contrary to the received view, however, the Crown’s undoubted power of alienation is divorced from the assumption that the Crown holds all lands absolutely. In this way, radical title enables the Crown (to use Brennan J’s words at 48) ‘to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes.’ Although the concomitant of sovereignty limb of radical title facilitates the Crown’s acquisition of property rights, the author has shown in her doctoral thesis that such acquisition is not automatic; the Crown must have (in Brennan J’s words at 50) ‘exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory’: see Secher, above n 10, ch 4 and 7.

[154] Mabo [1992] HCA 23; (1992) 175 CLR 1, 54-57, esp 57. His Honour noted (at 54) that there was a formidable body of authority, mostly cases relating to Indian colonies created by cession, to support the defendant’s submission that ‘the rights and interests in land possessed by the inhabitants of a territory when the Crown acquires sovereignty are lost unless the Crown acts to acknowledge those rights’. However, his Honour held (at 55) that this view, expressed in Lord Dunedin’s oft-cited passage in Vajesingji Joravarsingji (1924) LR 51 Ind App 229, 360, did not ‘accord with the weight of authority’. Instead, Brennan J relied (at 57) on a line of authority that rejected ‘the proposition that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer’, namely Re Southern Rhodesia [1919] AC 211; Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399; Oyekan v Adele [1957] 2 All ER 785; Sobhuza II v Miller [1926] AC 518; Calder v A-G (British Columbia) [1973] SCR 313). According to Brennan J (at 57) the authorities supported the rule that ‘a mere change in sovereignty does not extinguish native title’. Further, it is to be presumed that in the absence of express confiscation or subsequent expropriatory legislation, the new sovereign had respected the pre-existing rights and interests in land: at 55-56, citing Re Southern Rhodesia [1919] AC 211, 233 and Oyekan v Adele [1957] 2 All ER 785, 787-788.

[155] Mabo [1992] HCA 23; (1992) 175 CLR 1, 55-56, citing Re Southern Rhodesia [1919] AC 211, 233 and Oyekan v Adele [1957] 2 All ER 785, 787-788.

[156] A new rule which differs from the rules in other jurisdictions: see Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 130 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), and see [103] (Kirby J). See also Wik (1996) 187 CLR 1, 182-184, 214; Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 402 n 174; Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316, 344-346.

[157] Mabo [1992] HCA 23; (1992) 175 CLR 1, 79, citing Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291.

[158] Mabo [1992] HCA 23; (1992) 175 CLR 1, 81.

[159] Ibid, citing Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283, 299-300; Williams v A-G (NSW) [1913] HCA 33; (1913) 16 CLR 404.

[160] Mabo [1992] HCA 23; (1992) 175 CLR 1, 79, citing Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291.

[161] Mabo [1992] HCA 23; (1992) 175 CLR 1, 79.

[162] Ibid 99-100.

[163] Ibid 102-103. In particular, Deane and Gaudron JJ considered (at 103) that one of these cases, Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291, had subsequently been seen as ‘authoritatively establishing that the territory of New South Wales had, in 1788, been terra nullius not in the sense of unclaimed by any other European power, but in the sense of unoccupied or uninhabited for the purposes of the law’.

[164] Mabo [1992] HCA 23; (1992) 175 CLR 1, 101-104.

[165] Ibid 100.

[166] It is suggested that it is because Deane and Gaudron JJ’s analysis preserves the distinction between the doctrine of reception and the doctrine of continuity, that their Honours’ conception of radical title (unlike Brennan and Toohey JJ’s) confers beneficial ownership to land, not subject to native title (as was the view under the conventional doctrine of reception).

[167] Or ‘occupied’, to use the term of international law.

[168] Mabo [1992] HCA 23; (1992) 175 CLR 1, 182.

[169] Ibid. His Honour also considered that the proposition that land that is not in regular occupation is terra nullius required greater scrutiny: there may be good reason why the occupation is irregular. He did, however, confirm that the doctrine of terra nullius had no application to the present case.

[170] And thus accords with Brennan J’s approach.

[171] Mabo [1992] HCA 23; (1992) 175 CLR 1, 32. This was because the manner in which a sovereign acquires new territory is a matter of international law, and, by the common law, the law in force in a newly-acquired territory depends upon the manner of its acquisition by the Crown.

[172] Mabo [1992] HCA 23; (1992) 175 CLR 1, 33.

[173] Blackstone, above n 97, 107.

[174] Mabo [1992] HCA 23; (1992) 175 CLR 1, 33-34.

[175] Ibid 36.

[176] Ibid 38.

[177] Ibid 37. Moreover, because the indigenous inhabitants of a settled colony and their occupancy of colonial land were ignored in considering the title to land, the ‘Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein’: at 40.

[178] His Honour’s conclusion was supported by evidence demonstrating the existence of a complex and settled relationship of rights and obligations between the indigenous people and their land: the findings of Moynihan J are summarised at 17-18, 21-22, 24. See also Blackburn J’s findings on the evidence presented in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267: ‘The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.’ Thus, faced with a contradiction between the authority of the Privy Council in Cooper v Stuart and the evidence, Blackburn J concluded that the class to which a colony belonged was a question of law, not of fact: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 244, see also Mabo [1992] HCA 23; (1992) 175 CLR 1, 39 (Brennan J).

[179] Mabo [1992] HCA 23; (1992) 175 CLR 1, 39.

[180] Ibid 38, 39.

[181] Ibid 42.

[182] Ibid 40. See also 42.

[183] [1919] AC 211.

[184] (1971) 17 FLR 141.

[185] [1919] AC 211, 233-234.

[186] This theory suggested a possible ground of distinction in the case of settled territories, and led to detailed analysis of the legal and social systems of the plaintiffs in Milirrpum v Nabalco Pty Ltd (1971)17 FLR 141 and in Mabo. If accepted, this distinction could conceivably have seen a distinction drawn between the rights of the Meriam people and other Aboriginal and Islander people on the basis that some were more ‘civilised’ than others. Brennan J clearly repudiated the Re Southern Rhodesia doctrine to the extent that it dismissed a priori the claims of native inhabitants of settled colonies: see Mabo at 40 et seq.

[187] With respect, this was the theory advanced to justify the extension of the doctrine of terra nullius to the acquisition of inhabited territories by occupation under international law, and not to determine what system of law would be applied and what proprietary rights would be recognised in settled colonies: see Re Southern Rhodesia [1919] AC 211, 233-234.

[188] Mabo [1992] HCA 23; (1992) 175 CLR 1, 40. His Honour’s reference to terra nullius merely acknowledged that when sovereignty of a territory was acquired under the enlarged doctrine of terra nullius, it followed that, for the purposes of the common law, such territory was treated as ‘desert and uninhabited’ although it was inhabited: at 36.

[189] Relying on the International Court of Justice Advisory Opinion on Western Sahara [1975] ICJ 12, 39, 85-86.

[190] A division of ceded territories into two classes, those acquired by an act of cession from some sovereign power and those ceded by the general consent of the inhabitants, was suggested by the respondent in Sammut v Strickland [1938] AC 678, 699-701. The Privy Council, however, rejected this contention as they interpreted it to mean that British possessions acquired by voluntary cession would, in effect, be British settlements: at 700. Observing that ‘until the present case no one seems to have distinguished or divided cessions to the Crown in the way suggested’, they nevertheless noted that cases of voluntary cession are rare and urged that the case had been neglected by textbook writers and had not been noticed by the Legislature: at 700-701.

[191] It will be seen that this finding reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonisation: see text immediately following n 118 above. See also, Secher, above n 10, 163-165.

[192] Blackstone above n 97, vol II, 8.

[193] Mabo [1992] HCA 23; (1992) 175 CLR 1, 45. His Honour observed that ‘[i]t was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too.’

[194] Mabo [1992] HCA 23; (1992) 175 CLR 1, 57. Cf n 190. Thus recognition of pre-existing rights was limited to rights in land. See also Secher, above n 10, ch 9, esp 510-513.

[195] Although it will be seen that the land rights of inhabitants of a settled colony are more vulnerable than those in a conquered colony, before a conquered colony becomes accepted into the Crown’s dominion, the act of state doctrine allows the Crown, at the time of conquest, to seize and thus acquire title to both land and chattels: see McNeil, above n 62, 161-180, esp 162-163 and authorities cited at 162 n 10.

[196] In this context, Brennan J’s approach accords with Lester’s conclusion that ‘the Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated’: Lester, above n 124, 959. Cf Lester’s conclusion that the recognition doctrine does not apply to inhabited settled colonies. Lester reached this conclusion because he applied the received view of the doctrine of reception to such colonies: ibid 961. Accordingly, there was no prerogative power to unilaterally abrogate the property rights of the Crown’s subjects.

[197] The term continuity pro tempore (indicating that continuity is for the time being only) is suggested as a useful alternative for the new assimilated doctrine: Cf McNeil, above n 62, 175-176. This approach questions McNeil’s conclusion that rather than trying to reconcile the two doctrines, the doctrine of continuity is the correct approach regardless of the constitutional status of a colony. Consequently, McNeil’s express disagreement with Lester’s view that in conquered (and ceded) territories land rights must have been recognised legislatively or executively to be enforceable against the Crown is also questioned. Note that Brennan J’s approach to the doctrines of continuity and recognition may also require a reconsideration of the legal dimensions of the recognition doctrine as articulated by McNeil, particularly in light of McNeil’s conclusion that because the ‘[recognition doctrine] treats the Crown as presumptively seizing all private property upon acquisition of a territory,’ (citations omitted) ‘[the recognition doctrine] is difficult to reconcile with the British colonial law rule that local laws remain in force in a conquest or cession until altered or replaced, for local laws involving property would be of little use to the inhabitants if everything had passed to the Crown’: at 176. See also Lester, above n 124, 959.

[198] Indicating the presumption of continuity is only ‘for the time being’; that continuity is a rebuttable presumption of fact. See above n 197.

[199] [1957] 2 All ER 785.

[200] [1957] 2 All ER 785, 788.

[201] Ibid.

[202] Cf Lester, above n 124, 933.

[203] Although Lester agrees with this proposition, his conclusion on the scope of the sovereign’s power in a settled colony is in stark contrast to that of Brennan J, see Lester, above n 124, 961-962, 933.

[204] See text accompanying above n 152.

[205] Lester, above n 124, 959.

[206] Lester argues that pursuant to the recognition doctrine ‘the only legally enforceable rights which the inhabitants have as against their new sovereign are those, and only those, which that sovereign, by agreement, express or implied, or by a course of conduct, has elected to confer on them’: Lester, above n 124, 959.

[207] Although noting that other common law countries have recognised that there can be grants of interests in land that are inconsistent with the continued existence of native title, the High Court dismissed such cases as providing direct assistance on the ground that they may have been affected by the existence of treaty or other like obligations: see authorities cited in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 130 n 170. Note that these authorities do not, however, relate to extinguishment by executive grant per se.

[208] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68-69 (Brennan J). Although Deane and Gaudron JJ also indicated that native title might be extinguished by inconsistent Crown grant irrespective of any legislative intention to extinguish, they held, in accordance with the doctrine of continuity, that although native title would be subordinated to the Crown grant, it would constitute a wrongful act and be actionable: Mabo [1992] HCA 23; (1992) 175 CLR 1, 88-90, 94, 110. See also Toohey J at 192-197, but note that Toohey J concluded that since the plaintiffs claimed no relief in respect of the two leases granted on the Murray Islands, the question whether the leases were effective to extinguish any traditional title (as he called native title) must remain unanswered: at 197. See also Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373, 422, 439; Wik (1996) 187 CLR 1, 90-92 (Brennan CJ), 124-125 (Toohey J), 176 (Gummow J), 250 (Kirby J). Cf Nullagine Investments Pty Ltd v Western Australia Club Inc [1993] HCA 45; (1993) 177 CLR 635, 656. A clear and plain legislative intention to extinguish is not required provided that the act of the executive reveals a clear and plain intention to extinguish: Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 126-131 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 145-152 (Kirby J). See also Wik (1996) 187 CLR 1, 185-186 (Gummow J); and Western Australia v Ward (2002) 213 CLR 1, 89-90 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Cf Western Australia v Ward (2002) 213 CLR 1, 264, 266 (Callinan J); and Wilson v Anderson (2002) 213 CLR 401, 477-478 (Callinan J). For details relating to the legal position in other jurisdictions see Richard H Bartlett, The Mabo Decision: Commentary and Text (1993) xi-xii; Richard H Bartlett, Native Title in Australia (2000) ch 14 (United States law); Morse, above n 124, 111-120 (Canadian Law); Kent McNeil, ‘Extinguishment of Native Title: The High Court and American Law’ (1997) 2 Australian Indigenous Law Reporter 365, 369; Selway QC, above n 132, 424-429.

[209] The Crown does, however, have power at the time of conquest to seize, and thus acquire title to, both lands and chattels (see authorities referred to by McNeil, above n 62, 162 n 10). Such seizure would be an act of state and thus outside the jurisdiction of the courts. Cf Lester, above n 124, 933.

[210] Cf the position with respect to rights held under customary law: see generally, Secher, above n 10, ch 9.

[211] The High Court accepted Brennan J’s approach to extinguishment by inconsistent grant in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (citing Mabo [1992] HCA 23; (1992) 175 CLR 1, 64). Although the majority of the High Court in Wik (1996) 187 CLR 1, comprising Toohey, Gaudron Gummow and Kirby JJ, held that an inconsistent Crown grant of a pastoral lease can only unilaterally extinguish native title if there is a clear and plain legislative intention for such a result (at 126, 130, 155, 166, 168, 171, 185-186, 203, 242-243, 247), in Wik the fundamental issue did not concern the extinguishment of native title by grant of fee simple or of a leasehold interest as known to the common law. Rather, it concerned the impact upon native title of statute and of sui generis interests created thereunder: Wik (1996) 187 CLR 1, 176 (Gummow J). See also obiter comments relating to the executive generally: Wik (1996) 187 CLR 1, 84-85 (Brennan CJ) (with whom McHugh and Dawson JJ agreed: 167 and 100 respectively), 135 (Gaudron J), 175-176 (Gummow J) and 213-214 (Kirby J). Toohey J noted that ‘[w]hile nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable starting point because it explores the relationship between the common law and the “law” which evidences native title rights’:ibid, 129. A differently constituted High Court in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 unanimously held that a clear and plain legislative intention to extinguish is not required, provided that the act of the executive reveals a clear and plain intention to extinguish: ibid, 126-131 (Gleeson CJ, Gaudron, McHigh, Gummow, Hayne and Callinan JJ), 145-152 (Kirby J).

[212] Mabo [1992] HCA 23; (1992) 175 CLR 1, 15-16 (Brennan J). Since Dawson J also did not think that the extinguishment of native title required the payment of compensation, a majority of four judges were in support of that proposition. Cf Lester, above n 124, 946, 961-962. In Mabo, Deane, Gaudron and Toohey JJ dissented on the question of compensation: at 111, 112, 203. In Wik (1996) 187 CLR 1, the majority of a differently constituted High Court accepted the ruling of the court in Mabo that native title could be unilaterally extinguished without compensation. The United States Supreme Court has held that there is no presumption that compensation is payable upon the extinguishment of native title: Johnson v McIntosh (1823) 21 US 343; Tee-Hit-Ton v United States [1955] USSC 24; (1955) 348 US 272, 279. Canadian and New Zealand authorities are based on the early decision of Marshall CJ in Johnson v McIntosh (1823) 21 US 343, and thus have accepted the same principles of denying compensation. For the position in Canada, see Calder v A-G of British Columbia [1973] SCR 313; Simon v The Queen [1985] 2 SCR 387, [25]-[29], [35]-[39]; New Zealand: see R v Symonds (1847) NZPCC 387; Te Runanga o Muriwhenua Inc v A-G [1990] NZCA 7; (1990) 2 NZLR 641 (CA). There is, of course, no need for compensation in the context of legislative extinguishment because being derived from British constitutional law, the legislative power of extinguishment in theory contains no protection against interference with rights by the British Parliaments. Accordingly, provided a legislative body has the requisite constitutional authority, it can confiscate property by legislative act and vest it in the Crown without compensation if the intention to deny compensation is unequivocally expressed: see Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181, 182-183 and authorities cited in 182 n 12 and 183 n 13.

[213] Mabo [1992] HCA 23; (1992) 175 CLR 1, 57 (Brennan J) (emphasis added).

[214] See above n 34.

[215] See above Parts III and IV. See also Secher, above n 10, generally chs 1 and 3.

[216] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48-49 (Brennan J) and text accompanying above n 53. See also Secher, above n 10, 122, 135.

[217] See text accompanying above n 44ff. The two-fold fiction accompanying the English (feudal) doctrine of tenure is discussed by the author: Secher, above n 10, ch 1, esp 22-26. The post-Mabo position is considered by Secher, above n 10, 122-124, 135-137.

[218] Secher, above n 10, 123. See text accompanying above n 54. See also Secher, above n 10, 120-136.

[219] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48.

[220] See above Part IV. For the pre-Mabo and post-Mabo legal position in this context see also, Secher, above n 10, 33-40 and 137-159 respectively.

[221] See above Part IV, section A, text accompanying n 99ff. See also Secher, above n 10, 137-142.

[222] See above text accompanying n 120. See also Secher, above n 10, 141-142.

[223] See also, Secher, above n 10, text accompanying n 221.

[224] See above n 197 and text accompanying n 198. See also Secher, above n 10, 155, 163, 164, 181 and text accompanying n 188.

[225] See above text accompanying n 196. See also Secher, above n 10, 154, 164, 180.

[226] See above text accompanying n 203. See also Secher, above n 10, ch 3, text accompanying n 222.


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