The High Court and recognition of Native Title: distinguishing between the doctrines of terra nullius and 'desert and uncultivated'

Secher, Ulla (2007) The High Court and recognition of Native Title: distinguishing between the doctrines of terra nullius and 'desert and uncultivated'. University of Western Sydney Law Review, 11. pp. 1-39.

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Abstract

[Extract] In a rare interview "With The Weekend Australian in February 2006,1 Sir Anthony Mason, former Grief Justice of the High Court of Australia, responded to claims by historian, Michael Connor, in his book The Invention of Terra Nullius: Historical and legal fictions on the foundation of Australia, that the doctrine of terra nullius is a new concept, introduced into legal and political debate as recently as the 1970s. Indeed, the essence of Connor's argument lies in the syllogism that the doctrine of terra nullius did not exist in 1788; Captain Cook claimed sovereignty over Australia in 1788; therefore, Captain Cook could not have claimed sovereignty as a result of the doctrine of terra nullius. Moreover, according to Connor, this syllogism provides the basis for challenging the validity of the High Court's decision in Mabo and Others v State of Queensland (No.2) ('Mabo'). In this context, Connor's contention is threefold: first, that the doctrine of terra nullius was 'invented' by historian, Henry Reynolds, in his work The Law of the Land, secondly, that the doctrine of terra 1lullius is, therefore, a modem fiction rather than the legal foundation of Australia's sovereignty; and, thirdly, because the Mabo decision was based upon Reynolds' flawed invention of the doctrine of terra nullius, the Mabo decision was itself flawed. Thus, Connor purports to discredit the doctrine of terra nullius and with it - the decision in Mabo.

Item ID: 16286
Item Type: Article (Refereed Research - C1)
Keywords: native title, terra nullius
ISSN: 1446-9294
Date Deposited: 11 Apr 2011 22:41
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law @ 100%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9404 Justice and the Law > 940406 Legal Processes @ 100%
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