The Mabo decision - preserving the distinction between 'settled' and 'conquered or ceded' territories

Secher, Ulla (2005) The Mabo decision - preserving the distinction between 'settled' and 'conquered or ceded' territories. University of Queensland Law Journal, 24 (1). pp. 35-71.

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Abstract

In Mabo and Others v State of Queensland (No.2), Brennan J concluded that the preferable rule, namely, that a ‘mere change in sovereignty does not extinguish native title to land,’ ‘equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land.’ As a result of this conclusion, some commentators have assumed that the High Court has rendered the distinction between settled and conquered or ceded territories otiose. Consequently, it has been argued that, at common law, recognition of Aboriginal land rights entails recognition of other aspects of Aboriginal customary law. Crucially, however, this argument overlooks the High Court’s rationale for the conclusion in Mabo. Indeed, this article explains that the decision in Mabo in fact highlights the distinction between settled territories and conquered or ceded territories; the analogy which Brennan J refers to being expressly limited to one particular aspect of the rights of the inhabitants of a conquered colony: their rights and interests in land. Thus, although Aboriginal customary law can be a valid source of legal rights if it satisfies a number of requirements, recognition of Aboriginal customary laws, beyond those relating to land, cannot be based upon the Mabo rationale. Indeed, the recent Queensland Court of Appeal decision in Jones v Public Trustee of Queensland and Another highlights this dichotomy: the Court observing that the appellant’s Aboriginal customary law submission ‘appears to be based on a misconception of what was decided by the High Court in [Mabo].’ The Court did not however, go further and identify the rationale underlying the High Court’s recognition of native title: thus, the purpose of this article. It will be seen that, although the Mabo High Court accepted that Australia was a settled territory, the new element introduced by the Court was the recognition of a new class of settled colony at common law: a settled, yet legally inhabited, colony. Consequently, the High Court was free to prescribe (and indeed had to prescribe because there was no law on point) a doctrine relating to the law that applied in the colony. It will be seen that this modified doctrine of reception included the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore (a merged version of the continuity and recognition doctrines).

Item ID: 914
Item Type: Article (Refereed Research - C1)
Keywords: Aboriginal customary law, native title, settled, conquered, ceded territories
Additional Information:

This article has been included as a discrete catalogued item in the Hague Academy of International Law Peace Palace Library and in the libraries of the National Native Title Tribunal and the Australian Institute of Aboriginal and Torres Starit Islander Studies

ISSN: 0083-4041
Date Deposited: 26 Oct 2006
FoR Codes: 18 LAW AND LEGAL STUDIES > 1899 Other Law and Legal Studies > 189999 Law and Legal Studies not elsewhere classified @ 100%
SEO Codes: 97 EXPANDING KNOWLEDGE @ 100%
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