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The Australian High Court's Use of the Western Sahara Case in Mabo

Published online by Cambridge University Press:  17 January 2008

Shirley Scott
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Extract

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1 Crucial to the reasoning in the leading judgment of the landmark 1992 Mabo case,2 by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not been terra nullius at the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council in Cooper v. Stuart.3 In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4 This had given rise to the assumption, confirmed by Milurrpum v. Nabalco Ltd (the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5 The leading judgment in Mabo went on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6 Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 4 , October 1996 , pp. 923 - 927
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. Key cases include Horta v. Commonwealth (1994) 123 A.L.R. 1 and Minister for Immigration and Ethnic Affairs v. Teoh (1995) 128 A.L.R. 353. For discussion see, inter alia, Alston, P. and Chiam, M. (Eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995)Google Scholar; Fitzgerald, B. F., “Harta v. Commonwealth: The Validity of the Timor Gap Treaty and its Domestic Implementation” (1995) 44 I.C.L.Q. 643CrossRefGoogle Scholar; and Kirby, M., “In Defence of Mabo” (1993) 65 Australian Quarterly 67.CrossRefGoogle Scholar

2. Mabo and Others v. State of Queensland (1992) 107 A.L.R. 1Google Scholar. For discussion see Lumb, R. D., “Native Title to Land in Australia: Recent High Court Decisions” (1993) 42 I.C.L.Q. 84.Google Scholar

3. Cooper v. Stuart (1889) 14 App. Cas. 286.

4. Idem, p.292.

5. Milurrpum v. Nabalco Ltd (1971) 17 F.L.R. 141. 244–245.Google Scholar

6. Mabo, supra n.2, at p.24.

7. Idem, p.26.

8. Idem, p.28.

9. Idem, pp.27–28.

10. Western Sahara, advisory opinion, I.C.J. Rep. 1975, 12, 14.Google Scholar

11. Mabo, supra n.2, at p.28.

12. Idem, p.27.

13. Dawson J was the sole dissenting judge.

14. Much of this has focused on the nature of the rights recognised in the judgment, and thus whether the decision is truly revolutionary or no more than mildly reformist. See, inter alia, Hocking, B., “Aboriginal Law Does Now Run in Australia: Reflections on the Mabo Case: from Cooper v. Stuart through Milurrpum to Mabo” (1993) 15 Sydney L.Rev. 187Google Scholar; Manwaring, M., “A Small Step Or a Giant Leap? The Implications of Australia's First Judicial Recognition of Indigenous Land Rights: 107 ALR (1992) (Austl.)” (1993) 34 Harv. I.L.J. 177Google Scholar; and McGinley, Gerald P., “Indigenous Peoples' Rights: Mabo and Others v. State of Queen sland—The Australian High Court Addresses 200 Years of Oppression” (1993) 21 Denver J.Int.L. and Policy 311.Google Scholar

15. In particular. Justice Michael Kirby. See Kirby, M., “The Role of International Stan dards in Australian Courts”, in Alston and Chiam, op. cit. supra n.1, at p.83.Google Scholar

16. “Foreword” to Stephenson, M. A. and Ratnapala, S. (Eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993), p.xiv.Google Scholar

17. Cooper, supra n.3, at p.292.CrossRefGoogle Scholar

18. Coe v. Commonwealth of Australia and Another (1979) 24 A.L.R. 118.Google Scholar

19. Idem, p.122.

20. See discussion of terra nullius in H, David. Ott, Public International Law in the Modern World, (1987) p.105Google Scholar and Scott, S. V., “Terra Nullius and the Mabo Judgment of the Australian High Court: A Case Study of the Operation of Legalist Reasoning as a Mechanism of Politi cal-Legal Change” (1996) Australian J. of Politics and History (forthcoming).Google Scholar

21. For a brief introduction to six modes of territorial acquisition—occupation, accretion, prescription, voluntary cession, treaties of peace and forced cession or conquest—see Glahn, G. von, Law among Nations. An Introduction to Public International Law (5th edn, 1986), pp.311–349.Google Scholar

22. See O'connell, D. P., International Law (1970), p.407.Google Scholar

23. Hunter, I., “Native Title: Acts of State and the Rule of Law” (1993) 65 Australian Quarterly 97, 102.CrossRefGoogle Scholar

24. Wallace, R. M. M., International Law (1986), p.81.Google Scholar

25. Western Sahara, supra n.10, at pp.38–39.Google Scholar

26. Mabo, supra n.2, at pp.27–28.Google Scholar

27. Western Sahara, supra n.10, at p.39.Google Scholar

28. Ibid.

29. Two “treaties” were in fact signed between John Batman and the Aborigines at Port Phillip in 1835 but British authorities failed to recognise them:Castles, A. C., An Australian Legal History (1982), pp.28–31.Google Scholar

30. Reynolds, H., The Law of the Land (2nd edn, 1992), pp.185–186.Google Scholar

31. Idem (1st edn, 1987), pp.12 and 27–29.

32. Idem., p.174.

33. Toohey J made explicit reference to the work of Reynolds: Mabo, supra n.2, at p. 141Google Scholar. See also Tiggelen, J. van, “Grim Lessons from History”, The Bulletin, 23 11. 1993, pp.24–25.Google Scholar

34. Cf. Simpson, G., “Mabo, International Law, Terra Nullius and the Stories of Settle ment: An Unresolved Jurisprudence” (1993) 19 Melbourne U.L.Rev. 195.Google Scholar