60. An Issue of Continuing Relevance. One way, it has been argued, in which a degree of recognition of Aboriginal customary laws may be achieved is through the application — or reapplication — of common law rules for the recognition of custom. The argument usually centres on the question whether it is correct to classify Australia as a settled colony, but it can also be put in terms of claims to customary or usufructuary rights or to the recognition of ‘local custom’. On whatever basis, it can be argued that Aboriginal custom has, either generally or in specific contexts such as customary land claims, a legitimate claim to recognition in Australian law.[1] The common law’s approach to the process of settlement, and to the Aboriginal inhabitants of Australia, remains the subject of considerable debate. This has involved, among other things, a re-examination of the methods by which British sovereignty was acquired over Australia, and of the appropriateness of the classification of Australia as a settled colony which was an integral part of that process. Thus, it is said, it is necessary to recognise that Australia as a country was conquered, not settled. To take the view that Australia was settled is, on this view, to continue the ‘convenient fiction’[2] that on settlement it was uninhabited in the sense of having neither civilised inhabitants nor settled laws. In the words of the Minister for Aboriginal Affairs, the Hon Clyde Holding MHR:

We must not dwell on the past, but at the same time we have to be prepared to face up to the past and what has happened in order to apply effective solutions to the future. We have to face the fact that Australia as a country was conquered, not settled. If you take the view that Australia was settled then you see it as a colony which was uninhabited and had no system of law. But in the Gove case, although the plaintiffs were unsuccessful, Mr Justice Blackburn did hold that Aboriginal customary law was recognizably a system of law.[3]

On the other hand the view that Australia was conquered, has been challenged as equally inconsistent with the facts.[4] This Chapter examines the two distinct ways in which the common law might recognise Aboriginal customary laws. These are, first, through the recognition of customary rights or titles, and, secondly, through reclassification of Australia as a conquered colony. These will be dealt with in turn.

[1]See eg B Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (1979) 10 Fed L Rev 161; B Hocking, ‘Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian courts’, in E Olbrei, Black Australians: The Prospects for Change, Students Union, James Cook University, Townsville, 1982, 207; G McIntyre, ‘Aboriginal Land Rights — a Definition at Common Law’, id, 222. See further para 67, 900-4.

[2]Coe v Commonwealth of Australia (1979) 24 ALR 118, 137 (Murphy J).

[3] Australian Law Reform Commission — Australian Institute of Aboriginal Studies Report of a Working Seminar on the Aboriginal Customary Law Reference Sydney, 1983, 2.

[4]See the works cited in para 66.