2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. The decision was framed against British Imperial law, Australia’s prior designation as a ‘settled’ colony, and the 200 years of European settlement. The decision occurred in the context of a reassessment of the position of Aboriginal and Torres Strait Islander peoples within Australian society, increased momentum towards recognition of indigenous rights in common law countries and developing human rights standards in international law.
2.14 Over time in Australia, there has been significant change in attitudes towards the acknowledgement of the laws and customs of Aboriginal and Torres Strait Islander peoples. In 1986, the ALRC Report on the Recognition of Aboriginal Customary Laws noted:
Indeed, so far as the recognition of Aboriginal culture and traditions is concerned it is possible to discern something of a cyclical process, with periods of tolerance, ‘protection’ or even qualified approval interspersed with periods of rejection when attempts were made to eradicate traditional ways and to ‘assimilate’ Aborigines, in the sense of absorbing them and denying them any separate identity.
2.15 The 1986 Report did not make recommendations for the recognition of Indigenous peoples’ rights to land and waters. However, it was influential in terms of its reassessment of Aboriginal laws and customs. The Report also noted:
British settlers who came into contact with the Australian Aborigines came into contact with a people having their own well-developed structures, traditions and laws … In particular, it can be said that mechanisms for the maintenance of order and resolution of disputes, that is, a system of law, existed within Aboriginal groups.
British Imperial law and the doctrine of continuity
2.16 The framework of native title law, based on ‘recognition’ and ‘continuity’ of laws and customs, has its origins in earlier legal rules about what occurred upon the acquisition of a colony. According to Mabo [No 2] the rights and interests that constitute native title have their origins in those rights and interests acknowledged under traditional laws and customs which pre-existed British sovereignty. Native title, though recognised by the common law, is not an institution of the common law.
2.17 The principle that pre-existing rights can be recognised under a new sovereign therefore pre-dates the decision in Mabo [No 2]. It was not uncommon in the British Empire for sovereignty to be acquired over territories with existing populations, laws and property rights. The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. In part, the rules depended on the distinction between settled and conquered (ceded) colonies. There are parallel concepts in international law. The original common law rules did not consider the indigenous inhabitants of British possessions, but were subsequently adapted to that purpose.
2.18 In colonies acquired by conquest or cession, local laws remained intact, unless found to be repugnant to the common law (malum in se). At the time of the acquisition of New South Wales, the rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. A rider against repugnant laws remained. The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).
2.19 In a ‘settled’ or ‘desert and uninhabited’ colony, the laws of England, if not inconsistent with local circumstances, were imported on acquisition of sovereignty. The doctrine of continuity was thought not to pertain to settled colonies: logically, if there were no local laws then there were no rights of property to respect. The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (‘Milirrpum’) and Mabo [No 2].
2.20 While much modern discourse assumes that New South Wales was terra nullius and a settled colony, it is not clear to what extent the British Colonial Office averted specifically to the status of the colony, or determined it was ‘desert and uninhabited’. The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. Earlier, in 1847, Attorney-General v Brown had held that upon settlement, title to the waste lands of the colony vested in the Crown.
2.21 While early decisions did refer to the distinction between settled and conquered colonies, judges were aware that the distinction pertained to colonists, not to the indigenous inhabitants. Early colonial case law in Australia did not consider indigenous interests in land. Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied.
2.22 In 1836 in R v Murrell, Burton J held that
although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.
2.23 In effect, Burton J applied principles similar to the ‘enlarged theory of terra nullius’, applied by Brennan J in Mabo [No 2]. Aboriginal people were understood factually to have been present at sovereignty in Australia, but their social systems and governance were not recognised by British law—it was, in this sense only, ‘desert and uninhabited’. By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. Thereafter, only common law would apply to govern Indigenous peoples within Australia.
2.24 The ALRC’s 1986 report Recognition of Aboriginal Customary Laws noted ‘this [ie one unitary system of law], and other governmental policies applied since 1788 at the national, state and local levels, have had a drastic impact on Aboriginal customs and culture’. The recognition of indigenous claims to land did not receive judicial consideration until 1971.
2.25 From this overview, it is apparent that the legal question of whether the pre-existing rights of Australia’s Indigenous peoples ‘continued’, and could be recognised, was closely connected to the status of traditional laws and customs. In turn, this issue hinged on the designation of the colony. The focus on traditional laws and customs requiring recognition has continued in the connection requirements under the Native Title Act.
The first land claim case: Milirrpum v Nabalco
2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). The Yolngu people, in response to bauxite mining on their traditional lands, sought a declaration in the Supreme Court of the Northern Territory that they were entitled to the occupation and enjoyment of their land without interference. Blackburn J held as a matter of fact, that the Yolngu had a
subtle and elaborate system of social rules and customs which was 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 person whim or influence. If ever a system could be called ‘a government of law, and not of men’, it is that shown in the evidence before me.
2.27 Blackburn J determined, however, that communal native title was not part of the common law of Australia, as the Court felt bound by Cooper v Stuart.
2.28 Further, while finding that there was, as a matter of fact, a system of laws, the Court found the claimants had not shown, on the balance of probability, that their ancestors had the same links to land as the current holders. Some commentators have pointed to a ‘converging emphasis on laws and customs’ in the pre-Mabo period. In case law construing the Native Title Act, a similar factual inquiry is framed as to whether ‘connection’ is established, based on whether acknowledgement of traditional laws and customs has been substantially uninterrupted since pre-sovereignty.
2.29 In Milirrpum, Blackburn J also found that ‘there is so little resemblance between property, as our law … understands that term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests’. The clan failed to show a significant economic relationship with the land. A ‘spiritual relationship’ was ‘well proved’, but this relationship was found to be more in the nature of an obligation than of ‘ownership’.
2.30 The legal character of native title rights and interests and the relationship between Aboriginal people and Torres Strait Islanders and their traditional lands and waters has continued to reverberate through native title case law. Questions of the character of the connection to land and waters were canvassed in detail in Western Australia v Ward,and elements have been revisited in Brown v Western Australia.
2.31 The exact nature of the connection between native title claimants and the land and waters claimed has continued to be a source of varied jurisprudential characterisation in a native title determination. In turn, whether native title is a sui generis right has been widely canvassed in native title case law.
2.32 In Mabo [No 2], for example, Deane and Gaudron JJ stated that ‘the preferable approach is … to recognize the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique’, whereas Brennan J stated that ‘there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures’.
Statutory land rights
2.33 From the 1970s, attention was directed to securing land rights through legislation. Following Milirrpum, Woodward J was appointed to inquire into the possibility of Aboriginal land rights in the Northern Territory. Woodward’s report gave rise to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which established a claims process, predicated upon traditional ownership. The Act was significant as the first extensive land rights scheme in Australia. The influence of Milirrpum was apparent in the approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence.
2.34 Some states established statutory land rights schemes. Nevertheless, there was resistance to a possible national land rights scheme. Efforts towards a treaty proved inconclusive. Concurrently, the Meriam peoples’ claim in Mabo [No 2] was making its way through the courts in its 10-year litigation journey.
The recognition and continuity doctrines revisited
2.35 By the time of the Meriam Island peoples’ claim for customary rights, a number of clear threads were emerging around the revision of the manner of the recognition of the pre-existing rights of Indigenous peoples. The modern native title doctrine is based in common law jurisprudence, as well as a body of English customary law. Broadly speaking, it comprised judicial recognition of Indigenous peoples’ rights—as a form of communal ‘title’—that survived annexation of a colony.  Scholarship had confirmed that, in a settled colony, contemporary aboriginal rights were legally cognisable through the principle of continuity without the requirement of an act of recognition by the Crown.
2.36 Concurrently, a re-examination of Indigenous peoples’ affairs was gathering momentum within Australia during the late 1970s and 1980s. Pivotal among these developments was the reassessment of the place of Aboriginal laws and customs. The 1986 ALRC Report did not consider customary land rights in any detail but it was influential for later jurisprudence, including Mabo [No 2] in providing a ‘recognition model’ for traditional laws and customs.
Mabo v Queensland [No 2] (1992) 175 CLR 1.
‘Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports’: Ibid 42 (Brennan J).
See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3.
Young, above n 7, 231.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 32.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 53.
For why common law rather than international law applied, see Ulla Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, 2014) 96. The concept of terra nullius referred to land that is uninhabited for legal purposes ie ‘un-owned’ in a legal sense. With respect to Australia, it is the common law rules which govern.
PG McHugh, ‘The Common Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past’ (1998) 61 Saskatchewan Law Review 393, 402.
The original rule distinguished Christian rulers, where the laws were to remain in force until altered by the British Crown, but in a country ruled by an ‘infidel’ all laws were abrogated immediately: Calvin’s Case (’the Post-Nati’) (1608) 7 Co Rep 1a, 17b [77 ER 377, 398].
Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047].
Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. 161.
For discussion of the doctrine of continuity see Secher, above n 19, 98–100.
For more recent cases, see Mabo v Queensland [No 2] (1992) 175 CLR 1; Ngati Apa v Attorney-General  3 NZLR 643; Paki v Attorney-General  NZSC 118.
Milirrpum v Nabalco (1971) 17 FLR 141.
Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Harvard University Press, 2010).
The Colonial Office believed Aboriginal Australians were not numerous. Governor Phillip’s instructions were to ‘conciliate’ with the natives, but otherwise made no provision for them. Ford, above n 27, ch 2.
Cooper v Stuart (1889) 14 App Cas 286, 291. The Privy Council, in obiter, noted New South Wales was, as ‘a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions’.
Attorney-General v Brown (1847) 1 Legge 312. For a discussion of the concept of ‘waste lands’, see Mabo v Queensland [No 2] (1992) 175 CLR 1, 26–28 (Brennan J).
Bruce Kercher, ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) 3 Australian Indigenous Law Reporter 410.
R v Jack Congo Murrell (1836) 1 Legge 72.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) .
See Ch 5.
Milirrpum v Nabalco (1971) 17 FLR 141.
See generally John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’ (1972) 5 Federal Law Review 85.
Milirrpum v Nabalco (1971) 17 FLR 141, 267.
Milirrpum v Nabalco (1971) 17 FLR 141.
See, eg, Young, above n 7, 231.
See Ch 6 and 7.
Milirrpum v Nabalco (1971) 17 FLR 141, 273.
For Blackburn J, the relationship did not display the ‘substance’ of property: the right to use or enjoy; the right to exclude others and the right to alienate: Ibid, 272.
Western Australia v Ward (2002) 213 CLR 1. See Ch 7.
Western Australia v Brown (2014) 306 ALR 168.
See further Ch 5.
Commonwealth v Yarmirr (2001) 208 CLR 1. See further Ch 8.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 89 (Deane and Gaudron JJ).
Ibid 49 (Brennan J).
Young, above n 7, 15.
AE Woodward, Aboriginal Land Rights Commission: Second Report, April 1974 (AGP, 1975).
Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 523, 531.
For an examination of why no treaty with Indigenous peoples developed in Australia see Sean Brennan, Brenda Gunn and George Williams, ‘Sovereignty and Its Relevance to Treaty-Making between Indigenous Peoples and Australian Governments’ (2004) 26 Sydney Law Review 307, 344.
Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15.
Secher, above n 19, 21.
For discussion of New Zealand, see PG McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press), 85.
Kent McNeil, Common Law Aboriginal Title (Clarendon Press, 1989); cited by Brennan J in Mabo v Queensland [No 2] (1992) 175 CLR 1, 39.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86.
Young, above n 7, 231.