1.6: History of Law in Australia: First Nations People and the Law
Terra Nullius and Its Initial Ramifications
Definition & Legal Fiction
"Terra nullius" = land belonging to no one at time of British arrival.
Employed by colonial authorities to justify the acquisition of sovereignty and land without treaties or compensation.
Consequences for Aboriginal Peoples (The Impact)
Traditional customs, laws, and land relationships not recognised by Australian common law from 1788 to the early 1970\text{s} .
Denial of property rights → social, economic, spiritual dislocation.
Growing Recognition of Customary Law (Late 1960\text{s} – 1970\text{s})
By 1971: Courts start to concede that Aboriginal customary law actually exists, though still offer no enforceable rights.
Aboriginal Land Rights (Northern Territory) Act 1976
Passed by Commonwealth Parliament.
Key features:
Allowed Land Trusts to receive grants if traditional ownership could be proven.
First statutory acknowledgment that Indigenous land ownership could be a legitimate form of ownership under Australian law.
Mabo v Queensland (No. 2) 1992 — A Landmark Turning Point
Facts & Parties
Eddie Mabo + Meriam people vs State of Queensland.
High Court Findings
Australia was not terra nullius at colonisation.
Crown received only radical title (ultimate ownership) — not beneficial possession.
Native title (pre-existing Indigenous rights) can co-exist with radical title where it has not been validly extinguished.
Historical Significance
First judicial recognition of 40\,000+ years of Indigenous habitation.
Demonstrated common law’s capacity to evolve and correct historical injustice.
Opened pathway for a comprehensive statutory regime (next section).
Native Title Act (NTA) 1993
Parliamentary Response to Mabo
Doctrine of parliamentary sovereignty → legislature codifies, clarifies, and limits common-law native title.
Objectives
Define, recognise, and protect native title.
Provide procedures for lodging & determining claims.
Clarify circumstances of extinguishment.
Procedural Architecture
Application → registration → mediation → Federal Court determination.
Recognises communal as well as individual claims.
Wik Peoples v Queensland 1996
Key Holding
Pastoral lease does not automatically grant exclusive possession to lessee.
Therefore, native title may survive under a pastoral lease unless explicitly extinguished.
Political Fallout
Strong backlash by farmers, miners, some states; fears of land insecurity.
Led directly to legislative tightening in 1998.
Native Title Amendment Act 1998 ("10-Point Plan")
Purpose: Restrict, clarify, and, in practice, narrow native title rights.
Key Limitations Introduced
Expanded list of extinguishing events: Crown acts, public works, incidental construction.
Once extinguished, native title cannot be revived.
Raised evidentiary and procedural thresholds (e.g., stricter timelines, notification requirements).
Harder to submit oral/customary evidence.
Yorta Yorta v Victoria 2002 — Illustrating the Barriers
Outcome: Claim unsuccessful.
Court’s Reasoning
"Tide of history" (colonisation, forced assimilation) washed away traditional laws & customs.
Continuous connection must be substantially maintained according to common-law standards, not merely by presence.
Continuous occupation alone ≠ sufficient; must show ongoing customary use.
Implications
Demonstrated onerous burden of proof for claimants.
Highlighted conflict between Western evidentiary rules and Indigenous oral traditions.
Native Title Amendment Act 2009 — Easing the Process
Motivations: Address procedural & substantive hurdles revealed by decisions like Yorta Yorta.
Major Reforms
Relaxed Evidence Rules: Oral testimony exempt from hearsay objections → greater weight to cultural narratives.
Expanded Mediation: Australian Government Solicitor & National Native Title Tribunal empowered; aim = settlement before litigation.
Federal Court Powers: Broader case-management, ability to give directions, refer issues, encourage alternative resolution.
Goal: Reduce cost, delay, and adversarial nature; improve access for Indigenous claimants.
Key Doctrinal Concepts Clarified
Radical Title vs Beneficial Title
Crown holds radical (ultimate) ownership after sovereignty.
Indigenous groups may retain beneficial (use/possession) rights where not extinguished.
Extinguishment
Occurs via valid Crown grants or statutory acts inconsistent with native title.
Once extinguished (especially post-1998 amendments), rights usually cannot be revived.
Burden of Proof
Claimants must show:
Recognition as a traditional society at sovereignty.
Existence of traditional laws & customs.
Continuous observance to present day.
Proof hurdles often include loss of language, forced removal, interrupted land access.
Real-World & Ethical Implications
Property & Economic Security
Native title decisions directly influence mining leases, pastoral operations, public infrastructure.
Social Justice
Recognition aims to remedy historical dispossession; yet procedural barriers may perpetuate inequity.
Legal Profession’s Role
Lawyers must navigate intersection of common law, statute, and Indigenous jurisprudence.
Ethical obligation to respect cultural evidence, promote fair process, and understand historical context.
Links to Broader Legal History & Professional Relevance
Demonstrates evolution from doctrinal rigidity (terra nullius) → adaptive jurisprudence (Mabo) → legislative refinement (multiple NT Acts).
Shows balance of judicial innovation vs parliamentary supremacy.
Illustrates how history, politics, and community sentiment shape legal doctrines.
Future practitioners need to:
Understand precedent trajectories.
Grasp statutory interpretation within historical context.
Acknowledge continuing impacts on Indigenous communities.
The concept of "terra nullius" initially justified British acquisition of land in Australia, denying Aboriginal customary law and property rights until the early 1970 ext{s}. The Aboriginal Land Rights (Northern Territory) Act 1976 was the first statutory recognition of Indigenous land ownership.
A landmark turning point came with Mabo v Queensland (No. 2) (1992), where the High Court rejected the "terra nullius" doctrine, affirming that Australia was not empty land at colonisation. It established that the Crown received radical title, while native title (pre-existing Indigenous rights) could co-exist if not validly extinguished. This was the first judicial recognition of Indigenous habitation lasting over 40,000 years.
In response to Mabo, the Native Title Act (NTA) 1993 was enacted to define, recognise, and protect native title, providing procedures for claims and clarifying extinguishment circumstances. However, the Wik Peoples v Queensland (1996) case complicated matters, ruling that pastoral leases do not automatically extinguish native title, potentially allowing co-existence.
Subsequent amendments, particularly the Native Title Amendment Act 1998 ("10-Point Plan"), significantly restricted native title by expanding extinguishing events and raising evidentiary burdens, making claims harder to prove (e.g., Yorta Yorta v Victoria 2002 which highlighted the "continuous connection" burden).
Later, the Native Title Amendment Act 2009 sought to ease the process by relaxing evidence rules for oral testimony and expanding mediation to reduce legal costs and delays.
Key doctrinal concepts in native title law include:
Radical Title vs. Beneficial Title: Crown holds ultimate ownership, but Indigenous groups may retain use/possession rights.
Extinguishment: Native title can be lost via valid Crown actions inconsistent with its existence, and once extinguished (especially post-1998), it usually cannot be revived.
Burden of Proof: Claimants must demonstrate recognition as a traditional society at sovereignty, existence of traditional laws/customs, and continuous observance to the present day.
Overall, the evolution of native title law reflects a shift from historical injustice towards recognition, albeit with ongoing challenges concerning legal proof and the intersection of Western law with Indigenous traditions.