State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 10: In a World Without a Sovereign: Native Title Law in Australia
Francesca Dominello 1. INTRODUCTION In Mabo v Queensland (No. 2)1 the High Court of Australia held, by a sixmember majority, that the Meriam people, the recognized indigenous inhabitants of the Murray Islands, were entitled, as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands.2 For the ﬁrst time in Australian law a form of indigenous native title was found not only to exist, but also to have pre-dated and to have survived the acquisition of British sovereignty over the Australian territories. The Court’s formulation was grounded in the common law: the common law recognized that native title did exist; however, the content of native title would arise from the traditions and customs of the indigenous peoples themselves. In order to facilitate the common law recognition of native title, the Court ﬁrst considered it necessary to reject the terra nullius doctrine as forming any part of Australian law.3 The Court found that the terra nullius doctrine had operated to deny any indigenous rights to land through the characterization of Australia at the time of ﬁrst settlement as a land belonging to no one. This legal characterization had found support from a line of judicial pronouncements that had declared the continent to be in eﬀect ‘desert and uncultivated’4 at the time of British settlement. Before Mabo indigenous customary law only had the status of what could be described as a form of non-state law. It had been generally accepted that indigenous peoples...
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