by Henry Reynolds
© all rights reserved
In their judgment on the Mabo case the Justices of the High Court told a new story about Australian history. To understand the significance of this retelling we need to recall the old story and its concomitant doctrine of terra nullius. It followed from this that Australia had been, prior to 1788, a legal desert. The Crown, therefore, became the first proprietor and possessor of the land as well as the first sovereign. The title to Australia was, consequentially, the original title rather than a derivative one. Annexation was effected by occupation rather than by conquest or cession. So much for the old story. What then about the new, post-Mabo one?
Six of the seven High Court judges in Mabo v Queensland decided that when Britain claimed Australia the Crown gained what is known as the radical title over the territory but did not become the beneficial owner of the land, which remained in the possession of the indigenous people and, in theory at least, their title was protected by the common law. The Court held that the Crown extinguished native title in a piecemeal fashion over many years as the wave of settlement washed over the continent, but native title had survived on the Murray Islands because the Queensland government had done nothing between 1879 and 1992 to extinguish it. The Court applied the principles in question to Australia as a whole with the clear implication that native title may have survived in other parts of the country. Therefore, terra nullius was rejected in relation to property, but the old story was retained when it came to the question of sovereignty. In fact, the Court confirmed received doctrine on sovereignty, putting the matter beyond the reach of review in domestic Australian courts.
Critical questions remain: Why should property and sovereignty be treated so differently and can such inconsistency be maintained? Can the retreat from injustice be halted halfway along the track? Why did the High Court defend the old story about sovereignty?
There appears to have been a number of reasons and a mixture of legal and political considerations. At the forefront was “the Act of State doctrine” which upholds the proposition that questions relating to the extension of sovereignty touching on the prerogative powers of the Crown and cannot be questioned in the courts. By this doctrine the annexation of the Murray Island group to Queensland was “an act of State by which the Crown in right of the Colony of Queensland exerted sovereignty over the islands.” In his judgment Justice Brennan explained that the law was such that it precluded any contest between the executive and judicial branches of government as to whether a territory was within the domain of the Crown. Such issues, he observed, were “not justiceable in the municipal courts”.
Brennen’s interpretation was in accord with established legal doctrine. But there was more to the question than that. A second reason for the Court’s interpretation appears to be the view that any questioning of the settled colony doctrine would seriously “fracture the skeleton of principle which gives the body of our law its shape and internal consistency”. Justice Brennen explained:
The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed.
In Mabo v Queensland the Court determined that law in relation to Aboriginal land rights must be brought into line with contemporary standards of justice and that it was possible to do so without undermining the legal system. If the two objectives had been incompatible, then justice would have given way to stability. Justice Brennan further argued that:
However recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.
Any shift of interpretation on the question of sovereignty would, in the view of the Court, lead to unacceptable damage to the legal system.
The wider implications of the Act of State doctrine have rarely been considered by Australian courts. But if it is to remain a key structural component of the Australian law the underlying and unspoken ideas and assumptions must be set our for critical appraisal. As it is a brace of questions still await answers:
Did the Aboriginal tribes exercise a form of sovereignty, however rudimentary, before annexation? If so, could it have been recognised by European international law of the eighteenth century and early nineteenth century? If Australia was not a legal desert how was Aboriginal sovereignty lost and when? Has remnant sovereignty survived? A society or community was thought to be sovereign if it was independent of outside control. So, did the Aboriginal tribes measure up to that definition and how did the colonists judge the question?
Within a few years of the arrival of the First Fleet the Europeans were aware of the existence of distinctive tribes with their own dialects, names and territories. This perception had been absorbed by the local courts by 1836 when Justice Burton of the New South Wales Supreme Court concluded that prior to settlement the Aborigines were “entitled to be regarded as a free and independent people”. 1 But when it came to other required attributes of sovereignty, Burton determined that they had not attained “to such a position in point of numbers and civilisations…as to be entitled to be recognised as so many sovereign states governed by laws of their own”. 2 It was a key judgment in the history of Australian jurisprudence. The question remains whether it was a good judgment in law.
At the time European jurists drew a clear distinction between civil society and “unsettled hordes of wandering savages”. 3 To distinguish one from the other, Jeremy Bentham claimed that the difference between the two lay “in the habit of obedience”, 4 while William Blackstone concluded that a society required some authority “whose commands and decisions” all members were bound to obey otherwise it would “still remain as in a state of nature”. 5 What made all the difference between civil and uncivil society was the existence of a system of law which was normally obeyed and which punished transgressors.
Yet Aboriginal society met these conditions. Even more to the point, this was understood in colonial society as early as the 1840s, when a series of books by explorers and missionaries emphasised the strictness and pervasiveness of traditional law. The problem appeared to be that there was too much law rather then too little. “Through customs’ irresistible sway'”, Edward Eyre wrote, “has been forged the chain that binds in iron fetters, a people who might otherwise be said to be without government or restraint”. 6
Could it be that the tribes were too small to exercise sovereignty? This is a question with no clear answer, although on balance international jurists of the eighteenth century and early nineteenth century were of the opinion that as long as a community had become a civil society, the size of the community did not matter. The German legal philosopher, Christian Wolff, observed: “It is not the number of men coming together into a state that makes a nation, but the bond by which the individuals are united”. 7 His contemporary Emerich de Vattel concurred albeit more colourfully: “A dwarf is as much a man as a giant, a small Republic no less a sovereign state than the most powerful kingdom”. 8 In the early nineteenth century, the English jurist John Austin considered the question of whether indigenous societies in North America and Australia exercised a form of sovereignty. He was dubious about the question but conceded that if they were politically organised and had a system of law they would have to be considered as a “congeries of independent political communities, however small”.9
All the evidence suggest that Aboriginal societies performed the fundamental roles of government, which in his classic 1902 study, Jurisprudence, Salmond defined as war and the administration of justice–defence against external enemies and the “maintenance of peaceable and orderly relations within the community itself”. This was, Salmond thought, the “irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which performs them not”.10
It is the case that by the time that Salmond was writing, international law was turning decisively against the interests of tribal and indigenous people, but the basic question remains: If the High Court can determine that Aborigines and Torres Strait Islanders had a form of land tenure before annexation which flowed through into the era of colonisation, how did it exist without some accompanying form of sovereignty? The existence of land tenure implies a form of sovereignty. Writing in the middle of the eighteenth century Wolff argues exactly that point, explaining that a nation “which inhabits a territory has not only ownership but also sovereignty over the lands and things which are in it”.11
If sovereignty was exercised before the arrival of the British how then was it lost, and when? The answers provided by Australian jurists are quite unsatisfactory, implying that if there was any Aboriginal sovereignty at all, it was extinguished at the moment of annexation. The unreality of this is obvious, underscoring the chasm between the competing stories of the law and history. Historically, British control over the Australian continent expanded slowly and it was many years before even half the land mass was effectively administered and so Aboriginal communities remained outside British Australia until the twentieth century.
Another difficulty arises because the accepted interpretations depends upon an assumption that Australia became British by occupation, or settlement, rather than by conquest or cession. The whole idea of annexation by occupation is surrounded by uncertainty. Conquest and treaty-making are easy enough to understand; battles are fought and documents signed at specific moments in time. How can we determine what constitutes occupation? When can we say that it is achieved or what measures are to be used to determine its effectiveness?
These ponderables circle back to the issues of property, native title and the Mabo judgment. The Court determined native title was extinguished in a slow and piecemeal fashion over the years. Surely then the same must be true of sovereignty. If native title has survived in parts of Australia might these not also be some element of vestigial sovereignty residing in Aboriginal communities which have kept alive their traditional customs and law? To draw such a conclusion need not threaten the skeletal structure of the Australian legal system as some fear. However, it would undoubtedly recast the relations between the indigenous people and the State, which underpins contemporary attempts to achieve autonomy and self-determination in such places as Torres Strait, Cape York, Arnhem Land, the Kimberley and the Central Desert. Were the High Court to recognise an inherent right to self-government, a profound injustice would be purged from the system. That was very apparent to the Canadian legal scholar, Patrick Macklem, on a recent visit to Australia. He observed that:
In Mabo, Brennan J. offers a passionate and persuasive critique of the injustice of the principles that the Crown became the absolute beneficial owner of all land at the moment of the assertion of Crown sovereignty. In his view “[j]udged by any civilised standard, such a law is unjust”. Equally unjust, however, and for the same reasons as those offered by Brennan J., is the principle that the Crown acquires sovereignty over territory inhabited by an indigenous population by the mere act of settlement. The principle that the “discovery” of lands inhabited by an indigenous population vests sovereignty in the “discovering” nation is based on the proposition that indigenous people are insufficiently civilised or Christian to merit being viewed as competing sovereign powers. Fortified by the illusion of superiority, European powers claimed that the act of settlement in itself divests indigenous people of any and all sovereign authority over their land and their people. Indigenous people became subject to the sovereign authority of the settling nation, despite the fact that they had ruled themselves (and presumably newcomers to their worlds) according to their own laws for centuries.Just as it is unjust to deny the validity of Aboriginal rights with respect to land based on the fallacy of European superiority, it is also unjust to deny the validity of Aboriginal rights of governance on the same fallacy. Aboriginal rights of governance ought to be recognised as surviving the assertion of Crown sovereignty according to the same principle of justice governing the survival of Aboriginal rights with respect to land.
The Mabo judgment was a major landmark in the decolonising of Australian law and society. It was, nevertheless, only a beginning to the process of redressing the legal injustice to Australia’s indigenous people. Now the time has come to move on to tackle the question of Aboriginal sovereignty.
Henry Reynolds is acknowledged as the outstanding scholar in Aboriginal-European relations in Australia. He is currently Australian Research Council Senior Fellow at James Cook University and is the author of many books including the ground-breaking The Law of the Land (1987). His next book will be released by Allen & Unwin in July 1996.
Notes and References