Lavery, Daniel (2019) No decorous veil: the continuing reliance on an enlarged terra nullius notion in Mabo [No 2]. Melbourne University Law Review, 43 (1). pp. 233-268.

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Abstract

The Mabo [No 2] decision in 1992 is heralded as the judicial revolution which swept the enlarged notion of terra nullius from Australian jurisprudence. This notion held that indigenous populations 'too low in the scale of social organization' could not be regarded as 'owners' of land. This landmark decision condemned this notion as being unjust, discriminatory, and ahistorical. The Indigenous peoples of Australia were indeed owners of their lands, possessing a traditional set of rights and interests termed 'native title'. Yet the decision exposed a troubling doctrinal paradox. Upon closer examination, this same enlarged terra nullius notion is stated in Mabo [No 2] to be the basis upon which territorial sovereignty over Australia was asserted - validly and rightfully, it is claimed - by Great Britain. The Indigenous peoples of continental Australia were `backward peoples' because they 'were not organized in a society that was united permanently for political action' and, thus, their territories were deemed terra nullius and sovereign-less. Their territories could therefore be appropriated without reliance on any other legitimate mode of acquisition in international law. The Anglo-Australian constitutional common law, in self-contradiction, holds the enlarged notion of terra nullius to be both abhorrent and the juridical foundation upon which the sovereignty of the modern Australian nation rests. This article critically examines the history and application of the occupation of backward peoples doctrine in Australian jurisprudence, particularly as expressed in Mabo [No 2], and explores the implications for the present-day Australian sovereignty construct. Reliance on this doctrine renders the counterfactual orthodox theory of Anglo-Australian sovereignty extremely fragile and at a tipping point.

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