UNSW Law Journal 23(1) 63
The success of the critique of legal positivism has been such that there is in current legal thought a widespread adherence to the idea that normativity - with norms understood as "morals", "ethics" or "principles" - is central to law, and that moral integrity in the legal field is closely tied to a critical attitude towards the past. (4) Legal positivism and the framing of judgments in terms of precedent or "good law" leans towards being equated, then, with a hide-bound inability to adjust to the changed nature of the current moral community. Precedent, wrote Sir Anthony Mason, "brings in its train...a mode of argumentation which...is preoccupied with past decisions and dicta, and an inability to respond to the need for change". (5)
Both the sympathetic supporters (6) and the hostile critics (7) generally view the Mabo judgments (8) in this light. In the sympathetic version, particular judicial decisions and past legal doctrines are seen as embodying principles regarding the nature of civilization and racial equality which "we" no longer adhere to, confronting the High Court with a choice between an (amoral) adherence to existing legal authority, and a (moral) overturning of that authority in conformity to current values. As Brennan J put it:
Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. (9)
Deane and Gaudron JJ spoke in a similar vein of the law's role in acknowledging and retreating from "past injustices". (10) Kathy Laster affirms that the case is an example of "a judicial response to changing values", a set of judgments where "the judges of the High Court noted attitudinal changes in the community towards Aboriginal people and, despite precedent, six of them were prepared to overrule decisions which they felt belonged to a bygone age". (11) The political storm which then broke out over the decision concerned whether it was appropriate for the High Court to be taking this step in renovating the common law, or whether such a task should properly be left to Parliament. (12)
The particular aspect of the supposed conflict between legal authority and "contemporary values" which has been most visibly at issue in the debate over the Mabo judgment is the so-called "doctrine of terra nullius" - the consideration of a territory as "practically unoccupied" if occupied by indigenous peoples who do not cultivate the land. It is the rejection or overruling of this "doctrine" which is generally said to constitute the High Court's judicial activism and its concession to "contemporary values", to underlie the legal recognition of native title, (13) and to restore the legitimacy of Australian law in relation to its indigenous subjects.
I would like to address two issues raised by the framing of the character of the decision in this way. First, as Richard Bartlett has explained, "Terra nullius is not a concept of the common law, and it had never been referred to in any case prior to Mabo as justifying a denial of native title". (14) With Henry Reynolds (15) as the leading exception, very little of the scholarly discussion of native title or Aboriginal land rights prior to Mabo found it necessary either to raise or to address the concept of terra nullius. (16) What, then, was being "overturned", and what was the point of doing so? Second, both Dawson J's dissenting judgment and the earlier judgment of Blackburn J in Milirrpum v Nabalco (17) were no less normatively based than the majority in Mabo, and no more concerned to base their legitimacy on the authority of the common law. In the Mabo judgments, we see not a choice between a particular normativity and a strict legal formalism which is somehow non-normative, but rather a choice between different articulations of norms and law, varying combinations of different interpretations of common law authorities and diverging moral orientations. The problem raised by the foregrounding of the moral dimensions of the Mabo judgments entrepreneurship is, as Tim Rowse has remarked, that
To reason in moral terms about the nation's very foundations in law, about the 'traditional' and adapted 'moralities' of indigenous peoples and about the sympathies of contemporary Australians, is to engage with matters that are no so much imponderable as endlessly ponderable, because they are not amenable either to final pronouncement or to definite arbitration by reference to 'the facts'. (18)
Rather than settle too comfortably into either the self-congratulatory normative certitude or the outraged political condemnation of the so-called "rejection of terra nullius", then, I will suggest that perhaps the moral tale of the slaying of terra nullius has been a story told a little too well. The overall aim will be to work towards a more careful and modest reading of the legal, political and ethical significance of the Mabo judgments, a particularly important example of judicial venturing into the normative realm, and a form of essentially ethico-political activity I shall refer to as the High Court's "moral entrepreneurship". (19)
What was the legal precedent facing the High Court when it considered Mabo? Strictly speaking, only one case: Milirrpum v Nabalco Pty Ltd, presided over by Blackburn J of the Supreme Court of the Northern Territory. A proper understanding of the Mabo judgments, especially what they are meant to have "overturned", in fact depends on a familiarity with Mabo's "prehistory" in the form of the Milirrpum case, a prehistory which has been obscured by the triumphalism of the leading Mabo judgments as well as the subsequent debate, both of which tend to gloss over some of the central features of Blackburn J's reasoning in order to preserve the consistency of the idea of a "doctrine of terra nullius". The questions at issue in that case were: 1) did Australian common law include recognition of a doctrine of "communal native title"? and 2) did the plaintiffs have a proprietary interest in the land in question?
Blackburn J identified a number of hurdles which needed to be cleared before both these questions could be answered in the affirmative. His Honour's first reason for rejecting the plaintiff's claim was one of fact, that the plaintiffs had not established that their links to the relevant land were the same as their predecessors' in 1788. Second, he found that as a matter of law, regardless of what new interpretations of the facts might conclude, New South Wales had to be regarded as a settled or occupied territory, rather than conquered or ceded. (21) Third, he found that Australian courts binding on his own had identified the Crown as "the owner in demesne of all the land of New South Wales immediately the settlement was established". (22) Fourth, he found that there was no doctrine of communal title in English law as it applied to settled colonies. Fifth, he found that the plaintiffs could not demonstrate an interest in land that could be recognized in Australian law as "proprietary".
Blackburn J did not use the concept terra nullius at all; if it could be said to play an implicit role in the judgment, it was in his finding that New South Wales was to be regarded as a settled or occupied territory, rather than as a conquered or ceded one. What then followed from this rule was that "in principle from the moment of the foundation of a settled colony English law, so far as it was applicable, applied in the whole of the colony". (23) There was, then, no question of the recognition or incorporation of indigenous sources of law. However, what was decisive for the direction of Blackburn J's argument specifically in relation to native title was not this conclusion, but the next one, his answer to the question "whether English law, as applied to a settled colony, included or now includes a rule that communal native title where proved to exist must be recognized". (24)
A crucial element of His Honour's reasoning in answering this question was his third finding, that his Court was bound by the construction of the High Court, in Williams v Attorney-General for New South Wales (25) and Council of the Municipality of Randwick v Rutledge and Ors, (26) of any unalienated Crown lands as "waste lands", and of the Crown as possessor of the beneficial as well as the radical title to such lands. (27) This led inexorably to his fourth conclusion, that there was no doctrine of communal native title in either English or Australian common law, and that "wherever the principles for which Mr Woodward contended have to any extent been put into practice, that has been done by statute or by executive policy". (28)
It is also worth noting Blackburn J's final finding concerning the nature of the plaintiffs' interest in land, since it qualifies his conclusion that the colony was in law to be considered as "settled". His Honour responded to defence counsel's assertion that the plaintiffs' had no recognizable system of law at all, let alone a proprietary interest in land, by saying that he did not find himself "much impressed by this line of argument". His Honour declared:
....I am very clearly of the opinion, upon the evidence, that the social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever s system could be called "a government of laws, and not of men", it is that shown in the evidence before me. (29)
The differences between the Australian Aboriginal system of law and English law were, then, "differences of degree". (30) His Honour did go on to declare those differences significant, that the plaintiffs' interest in land were "not in the nature of proprietary interests", (31) but this was not because he regarded them as so low in the scale of social organization that they could not possibly display such an interest. It was more that His Honour chose to define property in exclusionary and individualistic terms, and, as Nancy Williams points out, that his decision "affirmed the principles underlying the rights of the citizen isolate as individual economic man, principles basic to assumptions of Australian law in 1970". (32)
Most importantly, of all the five elements of Blackburn J's reasoning, the second concerning the colony as a "settled or occupied" territory, rather than a "conquered or ceded" one, should be seen as the least significant in settling His Honour's construction of native title. As we shall see, it was an interpretation with which the Mabo judgments would in fact agree. Whether indigenous law survived was not at issue, and 'native title' is not a concept in Aboriginal law; (33) 'settled' or 'conquered', terra nullius or not, the question to which Blackburn J was turning his mind was whether English and Australian common law recognised native title in either settled or conquered territories, and the answer would be the same in both cases. This means that it makes no difference whether or not the colony was regarded as terra nullius in the restricted sense of a settled rather than conquered or ceded colony. (34) In other words, Blackburn J could also have "overturned the doctrine of terra nullius", but his position on other points of law would have led him to the same conclusion. Far more decisive - and this is the real departure of the Mabo judgments, as we shall see - is the entirely different question of whether the common law of England and Australia equates the radical title acquired by the Crown on assuming sovereignty with absolute beneficial title.
In handing down a judgment which accorded with Lord Denning's, but for different reasons, Lord Diplock once exclaimed "After all, that is the beauty of the common law; it is a maze and not a motorway." (35) The Mabo judgments display two quite different conceptual and rhetorical routes through the maze of the common law towards settling the question of native title, one operating with a "restricted" conception of terra nullius (Australia as a settled colony), and the other with an "expanded" notion of Terra nullius (Australia as settled and practically unoccupied).
Brennan J identifies a central basis of the notion that the Crown acquired absolute beneficial title on assuming sovereignty as being the idea that "there is no other proprietor", by arguing that this idea in turn depended on the expanded conception of Terra Nullius:
It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other....the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land. (36)
Similarly, Deane and Gaudron JJ propose that "inevitably",
...one is compelled to acknowledge the role played, in the dispossession and oppression of the Aboriginals, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgments of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands. (37)
These formulations are thus organised around the expanded conception of Terra Nullius, not its restricted version, as well as the question of whether the Crown's radical title is to be equated with beneficial ownership.
Brennan J, for example, states that the existing authorities lead him to the conclusion that it is "preferable" in relation to title to land, to equate the inhabitants of settled colonies with those of conquered territories, (38) rendering the restricted concept of terra nullius immaterial. His Honour also pointed out that "the dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists", (39) which means that the common law was actually immaterial to the dispossession of Australian Aborigines, and there was no "legal foundation" to it at all. As David Ritter explains, "the colonists required no legal doctrine to explain why Aboriginal people's land rights were not to be recognized under law because no doctrine was required for what was axiomatic". (40)
Ian Hunter suggests that this renders the Mabo judgment a particularly weak form of recognizing Indigenous rights, being only given real force by legislation. (41) However, in reality this is simply an observation on the way the common law and the Courts always relate to government and "acts of state", certainly in relation to the entire history of colonisation and the inexorable dispossession of indigenous inhabitants. Indeed, prior to Mabo, Les Hiatt remarked on the tendency to overlook the fact that Mabo was followed by the Woodward Royal Commission and the Aboriginal Land Rights (NT) Act 1976, which provided a statutory establishment of Aboriginal land ownership arguably firmer than the kind of common law recognition in Mabo. "With hindsight," wrote Hiatt, "we could reasonably say that the Gove Case was a legal battle that the Aborigines of the Northern Territory had to lose in order to win the war". (42) In any case, the concern here is a different one, with the problems associated with the peculiarly normative way in which majority judgments in Mabo framed that relationship between law and government.
Deane and Gaudron JJ also paint a scenario in which the rights associated with common law native title had always been binding on the Crown, but that for all practical purposes "there is an element of the absurd about the suggestion that it would have even occurred to the native inhabitants of a new British Colony that they should bring proceedings in a British courts against the British Crown to vindicate their rights under a common law of which they would be likely to know nothing". (43) Their Honours also point out the major - indeed, fatal - flaws in the Australian cases which support the "two propositions": they consisted of "little more than bare assertion", they were not concerned with Aboriginal title to land, and the relevant comments are all dicta. (44) We are also asked to accept the notion that it is the very poverty of their reasoning which establishes the "formidable" authority of these four cases, since it "tends to emphasise the fact that the propositions were regarded as either obvious or well settled". (45)
Richard Bartlett has correctly identified these comments as overstating the significance of the dicta of the Australian cases, as well as pointing out that the "authority" which the three Justices presented themselves as sparring with was largely illusory. (46) Justice Toohey observed that the plaintiffs accepted that the territory in question had been settled rather than conquered or ceded, but this did not mean that their land should be treated simply as vacant land, and this problem simply fails to be adequately addressed by the relevant Australian cases. (47) Indeed, as Toohey J states, the common law position is that "previous interests in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them," which means that "the onus rests with those claiming that traditional title does not exist". (48) Justice Toohey also points out that the line of authority which led Blackburn J to his conclusions is countered by another which ought to be regarded as more persuasive, the "doctrine of continuity" expressed in the Privy Council African cases, which presumes the continuance of existing property rights upon colonization. (49) For Toohey J, making indigenous inhabitants trespassers on their own land was not simply contrary to current moral principles; it was "at odds with the basic values of the common law," as it has always operated. (50)
The majority in Mabo agreed with Blackburn J that Australia is in law to be regarded as a "settled" colony, so that English common law "subject to appropriate adjustment, automatically became the domestic law of the colony", and that there was no possibility of any recognition of indigenous law, thus leaving the restricted conception of terra nullius entirely intact. (51) The two interconnected questions at the real heart of the Mabo judgments were whether it is correct, in law, to say: (1) that no matter how a colony is classified - settled, conquered or ceded - the English feudal doctrine of tenure should be interpreted in such a way that the Crown's radical title is to be equated with absolute beneficial title to all land in the Colony, as apparently indicated by the dicta concerning "waste lands" in Attorney-General v Brown, Randwick Corp v Rutledge, and NSW v Commonwealth (52)? and (2) as Blackburn J had, that native title had only been recognized in common law jurisdictions in legislation or executive policy? The majority of the High Court Justices answered both questions in the negative, for reasons of law, not responsiveness to community values or a different approach to a supposed doctrine of terra nullius.
On the first question, the majority decided that the feudal doctrine of tenure is, and always has been, entirely compatible with survival of native title. "What the Crown acquired," wrote Brennan J, "was a radical title to land a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land." Where the Crown's political power to disregard native title had not actually been exercised, "there is no reason to deny the law's protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown's acquisition of sovereignty". (53) The only real barrier to recognition of such residual indigenous rights in land was the assumption in Attorney-General v Brown that "all lands of the Colony were relevantly unoccupied at the time of its establishment," (54) but this is a question of fact, not law, which any concrete evidence of indigenous occupation settles. To presume non-occupancy - populus nullus as Barbara Hocking terms it (55) - is simply factually incorrect and an embarrassment to Australian law in terms of reason and logic, quite apart from its moral dimensions. (56)
In relation to the second question, only Dawson J's dissenting judgment followed Blackburn J's interpretation to argue that native interests in land have to be explicitly recognized by a new sovereign if they are not to be regarded as having been extinguished on the acquisition of sovereignty. The majority felt themselves well persuaded by the "many precedents in the Privy Council, African, Canadian, USA, New Zealand, New Guinea, the Solomon Islands and other cases in the long line of authority bearing on this point.....all holding that the Crown's radical title is subject to (burdened, reduced, or qualified by) the prior interests." (57) Justice Hall's position in Calder v Attorney-General of British Columbia was treated as representing the correct interpretation of the common law, namely that "the aboriginal Indian title does not depend on treaty, executive order or legislative enactment," and that Blackburn J's construction of the North American authorities was "wholly wrong". (58)
The difference between Millirpum and Mabo was not, then, that Blackburn J accepted a supposed "doctrine of terra nullius" and the majority in Mabo did not. There is no dispute between the two judgments about the treatment of Australia as a "settled" colony and whether English common law became domestic law on the acquisition of sovereignty, nor did Blackburn J regard the Australian Aborigines as being so "low on the scale of social organisation" that their physical presence should be legally ignored. Where they did differ was in their construction of the relevant legal authorities; Blackburn J held that they indicated that beneficial title was acquired by the Crown along with radical title, and that native title had only been recognised in statutory executive action. The majority in Mabo, in contrast, found that the authorities, including the Privy Council and the Australian High Court itself, overwhelmingly compelled one to the opposite conclusions on both these questions.
Jeremy Webber has suggested that the recognition of native title in Mabo is the result of a particular type of moral enquiry, and that its jurisprudence is a "jurisprudence of regret" (59). The retention of terra nullius in Australia had become increasingly anomalous, "an archaic leftover profoundly out of step with the contemporary direction of Australian law". (60) Faced with the ongoing presence of a particular legacy in the law, they "had either to perpetuate or renounce it". (61) Referring to McNeil's work, (62) Webber argues that "treating Mabo as though it were simply a rectification of a mistaken interpretation of the common law of indigenous title begs the essential question: why should Australia follow that law? It has not done so for 200 years". (63)
The difficulty with this interpretation is that there was no real legacy of law concerning either terra nullius or native title to be followed at all. As Ritter notes:
...while the Australian colonies were indeed judicially classified as "desert and uncultivated", and Aboriginal people were apparently treated as having no common law right to their traditional lands, there was no judicial decision that created a nexus between the former legal proposition and the latter historical fact. That is, no early Australian or English case ever stated that because Australia was "terra nullius" or "desert and uncultivated", Aboriginal people possessed no common law right to their tribal lands. (64)
There were four cases with dicta about the nature of Crown title to land, (65) a certain line of authority from the Indian Privy Council cases suggesting, weakly and arguably, that native title only exists under statutory provision, and only one Australian decision, Milirrpum, by a relatively junior court, directly concerned with the question. It is problematic to speak of Australia following a particular interpretation of the common law of indigenous title before 1971, because Milirrpum was the first and only time the question had come before an Australian court.
As James Crawford remarked in 1989, the doctrine of communal native title had been "treated 'on the ground' as inapplicable, and there were for 150 years no judicial decisions to confirm or set against that calculated ignorance." (66) Milirrpum was never appealed, although there was the Woodward Royal Commission and the legislative efforts to correct Milirrpum's outcome, (67) the effectiveness of which there is a tendency to underestimate, and Mabo was the first opportunity the Australian High Court has had to turn its mind to the question. The essential weakness of the supposed "legacy" being overturned in Mabo is apparent in the judgment of Toohey J, who finds it unnecessary to "overturn" Terra Nullius at all, because he correctly sees no reason to dignify the mere presumption of the absence of indigenous occupation with the designation of a legal "doctrine" requiring "overturning". (68)
Although there is clearly "regret" running through the judgments of Brennan, Deane and Gaudron JJ, then, I would suggest that it actually plays only a relatively minor role in their jurisprudence. The reception of Blackburn J's construction of native title prior to Mabo, both in scholarly discussions (69) and in related decisions in other jurisdictions, (70) has been almost universally critical of the judgment without any reference to terra nullius, for the simple reason that it was jurisprudentially irrelevant, to native title at least. If the practitioners of Australian colonialism have been able to grin smugly at us across the two centuries prior to 1971, it is not because they have made such astute use of law in dispossessing the Aborigines; it is precisely because they have managed to evade law, to keep questions of indigenous interests in land out of law's reach, and wholly within the realms of politics and administrative governance.
Reynolds has been influential in introducing the concept as a conceptual touchstone for understanding the history of Aboriginal dispossession, but until Mabo, the role of substance played by terra nullius in Australian law has been in relation to questions of sovereignty, and this is an issue the High Court has much less accommodating views on. (71) This is why Garth Nettheim describes the judgment as "no 'judicial revolution', but a careful and scholarly application of established common law principles and methods", (72) and why Bartlett sees the decision as determined by "the overwhelming dictates of the jurisprudence in every other part of the common law world," as well as considering that in presenting themselves as "making law" in Mabo, Brennan, Deane and Gaudron JJ "overstated the extent to which the court was engaged in such a role". (73)
A central problem with the idea of the law being responsive to "the contemporary values of the Australian people" is that such values have no objective, absolute existence, and it is unclear how High Court Justices might present their understanding of community values as having any persuasive authority. Values, norms and moral principles are inherently contested in advanced industrial societies, especially those which we can characterise as liberal democracies, and law as we understand it today only emerges in those social contexts where it is not possible to rely on shared values to reproduce social order, integration and cohesion. There are, it is true, constant appeals made to "community values", but such appeals are rhetorical strategies to generate support for a particular position within a moral debate, attempts to construct a particular moral community, rather than descriptions of a value consensus which actually exists. (74) For a Court to assert that it is responding to "the contemporary values of the Australian people", it is in fact choosing to play an active role in the construction of those values in a particular image, acting as a moral entrepreneur, rather than simply reflecting something that exists independently of itself.
This is not the place to discuss the virtues and difficulties of such moral entrepreneurship in any detail, but it is clear that both the decision to undertake it and the way in which it is undertaken have little to do with a choice between legal formalism or a responsiveness to surrounding community values, for the simple reason that precedent and legal authority can be worked with in a multiplicity of ways. The difference between Mabo and Milirrpum lay not in the differing attitudes to legal precedent, but in the ways in which it was utilised, and Brennan, Deane and Gaudron JJ were no less concerned to buttress their arguments with legal authority than was Blackburn J. Precedent is often, and certainly was in this particular case, not unified, and there were a number of "lines of authority" to be drawn on, allowing for a significant degree of discretion as to how those differing lines of authority would be related to each other. The law's appeal either to authority and precedent, or to "the contemporary values of the Australian people" is best understood, then, as no more, and also no less, than different rhetorical strategies for its legitimation in relation to other forms of discursive power. (75) As such, the "rejection of terra nullius" is arguably more about Australian history and moral community than Australian jurisprudence. It also had the rather perverse effect, in the subsequent public debate around the decision, of diverting our attention from the fact that there were actually strong reasons of law to recognize native title, and made the High Court far more vulnerable to the criticism of "excessive judicial activism" than the substance of the case itself demanded. The effect of Brennan, Deane and Gaudron JJ's foray into moral entrepreneurship was the almost entire disappearance from public view of the fact that both Milirrpum and Dawson J's dissenting judgment were indefensible in a very straightforward legal and logical sense, quite apart from one's moral position regarding the "unutterable shame" of Australia's past treatment of its indigenous population. It also provided an almost endless supply of rhetorical hostages and an easy ideological target for those commentators eager for an opportunity to flay the Hasluckian vision of monocultural assimilation back to life. If we agree that the achievement of something recognizable as "justice" by both indigenous and non-indigenous Australians is clearly a desirable objective, and if that can be achieved modestly with sound judicial analysis, it remains an open question whether the Justices of the High Court improve their service of this aspiration by choosing, additionally, to foreground their ventures into the realms of historiography and moral entrepreneurship. This does not mean that jurisprudential normativity disappears, that there is such a thing as 'pure' law stripped of normative concerns, but merely that there are times when it achieve its aims more effectively by working less ostentatiously.
We can end with a contrast: Chief Justice Warren's opinion in Brown v Board of Education, (76) one of the best-known judgments of the century. Sanford Levinson observes how bland the opinion is, how unilluminating it is about the history of race relations in America, and he asks why Warren CJ passed over the chance "to educate the public about the ravages of racial segregation or to arouse a truly righteous anger against the oppression that had characterized, at that time, well over three centuries of American history?" (77) The answer, says Levinson, was provided by Warren CJ himself, who wrote that opinions should be "short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory," (78) an orientation which could be attributed to Warren's sensitivity to "not getting everyone's back up when embarking on important political campaigns." Levinson also refers to Barrett Prettyman outlining how the opinion "took the sting off the decision, it wasn't accusatory, and it didn't pretend that the Fourteenth Amendment was more helpful than the history suggested". (79) These characteristics might usefully serve as a model for a counter-factual, less morally entrepreneurial position on Mabo, which Toohey J's judgment comes closest to, one which "took the sting off the decision, wasn't accusatory, and didn't pretend that terra nullius was more significant than the history suggested."
Bibliography
Anderson, B, Imagined Communities (London: Verso, 1991)
Bartlett, RH, The Mabo Decision (Sydney: Butterworths, 1993)
Bartlett, RH, "Aboriginal land claims at common law" (1983) 15
UWALR 293
Beattie, K, Terra nullius and the colonisation of Australia (unpublished
BA Honours Dissertation, Dept of Government, University of Sydney, 1998)
Blackshield, A and Williams, G, Australian Constitutional Law and Theory
2nd edition (Sydney: Federation Press, 1998)
Booker, K, Glass, A, and Watt, R, Federal Constitutional Law 2nd
ed (Sydney: Butterworths, 1998)
Brennan, F, One Land, One Nation: Mabo - Towards 2001 (Brisbane:
University of Queensland Press, 1995
Cooray, LJM, "The High Court in Mabo: legalist or l'égotiste"
in M Goot and T Rowse (eds) Make a Better Offer: the Politics of Mabo
(Sydney: Pluto, 1994) 82-96
Cover, RM,"Violence and the word" (1986) 95 Yale Law Journal
1601-29
Cowlishaw, G, "Did the earth move for you? The anti-Mabo debate"
(1995) 6(1/2) The Australian Journal of Anthropology 43-63
Crawford, J, "The appropriation of terra nullius" (1989) 59 (3)
Oceania 226-9.
Dalton, HL, "Storytelling on its own terms" in P Brooks and P
Gewirtz (eds) Law's Stories: Narrative and Rhetoric in the Law (New
Haven: Yale University Press, 1996) 57-59
Delgado, R, "Norms and normal science: toward a critique of normativity
in legal thought" (1991) 139 UPennLR 933-962
Ewald, F, "Norms, discipline, and the law" (1990) 30 Representations
138-61
Frost, A, "New South Wales as terra nullius: the British denial of
Aboriginal land rights" (1981) 19 Historical Studies 513-23
Gibbs, Sir H, "Foreword" in MA Stephenson and S Ratnapala (eds)
Mabo: A Judicial Revolution (Brisbane: University of Queensland Press,
1993) xiii-xiv
Gumbert, M, Neither Justice nor Reason: A Legal and Anthropological Analysis
of Aboriginal Land Rights (St Lucia: University of Queensland Press,
1984)
Hiatt, LR, "The appropriation of terra nullius" (1989) 59 (3)
Oceania 222-6
Hocking, B, "Aboriginal law does now run in Australia" (1993)
15 SydLR 187-205
Hookey, J, "The Gove Land Rights case: a judicial dispensation for
the taking of Aboriginal lands in Australia?' (1972) 5 FLR 85
Hookey, J, "Settlement and sovereignty" in Peter Hanks & Bryan
Keon-Cohen (eds) Aborigines and the Law (Sydney: George Allen &
Unwin, 1984) 1-18
Hunter, I, "Native title: Acts of state and the rule of law" in
M Goot and T Rowse (eds) Make a Better Offer: the Politics of Mabo
(Sydney: Pluto, 1994) 97-109
Ivison, D, "Decolonizing the rule of law: Mabo's case and postcolonial
constitutionalism" (1997) 17(2) Oxford Legal Studies 253-79
Kirby, M, "In defence of Mabo" in M Goot and T Rowse (eds) Make
a Better Offer: the Politics of Mabo (Sydney: Pluto, 1994) 67-81
Laster, K, Law as Culture (Sydney: Federation Press, 1997)
Leval, PN, "Judicial opinions as literature" in P Brooks and P
Gewirtz (eds) Law's Stories: Narrative and Rhetoric in the Law (New
Haven: Yale University Press, 1996) 206-10
Levinson, S, "The rhetoric of the judicial opinion" in P Brooks
and P Gewirtz (eds) Law's Stories: Narrative and Rhetoric in the Law
(New Haven: Yale University Press, 1996) 187-205
Mason, Sir A, "The use and abuse of precedent" in Laster, K, Law
as Culture (Sydney: Federation Press, 1997)
McNeil, K, "A question of title: has the common law been misapplied
to dispossess the Aboriginals?" (1990) 16(1) Monash ULR 91
Nettheim, G, "Justice or handouts? Aborigines, law and policy"
(1986) 58(1) Australian Quarterly 60-74
Nettheim, G, "Judicial revolution or cautious correction? Mabo v Queensland"
(1993) 16(1) UNSWLJ 1
Patton P, "After Mabo" (1994) 27(4) Southern Review 511-19
Patton, P, "Sovereignty, law, and difference in Australia: after the
Mabo case" (1996) 21(2) Alternatives 149-70
Posner, RA, The Problematics of Moral and Legal Theory (Cambridge,
Mass.: Harvard University Press, 1999)
Postema, GJ, "On the moral presence of our past' (1991) 36 (4) McGill
LJ 1153
Reynolds, H, The Law of the Land (Melbourne: Penguin, 1987)
Reynolds, H, "Native title and pastoral leases" (1996) 3(85) Aboriginal
Law Bulletin 14-15
Reynolds, H, Aboriginal Sovereignty (Sydney: Allen & Unwin, 1996)
Ritter, D, "The 'rejection of terra nullius' in Mabo: A critical analysis"
(1996) 18(1) SydLR 5-34
Rose, N and Valverde, M, "Governed by law?" (1998) 7(4) Social
& Legal Studies 541-551
Rowse, T, After Mabo: Interpreting Indigenous Traditions (Melbourne:
Melbourne University Press, 1993)
Sarat, A and Kearns, TR, 'Introduction' in Sarat, A and Kearns, T (eds)
Law's Violence (Ann Arbor: University of Michigan Press, 1992) 1-21
Schlag, P, "Normative and nowhere to go" (1990) 43 Stanford
LR 167-91
Schlag, P, "Values" (1994) 6 Yale JL&H 219-32
Sharp, N, No Ordinary Judgment: Mabo, the Murray Islanders' Land Case
(Canberra: Aboriginal Studies Press, 1996)
Simpson, G, "Mabo, international law, terra nullius and the stories
of settlement: an unresolved jurisprudence" (1993) 19 MULR 195
Webber, J, "The jurisprudence of regret: the search for standards of
justice in Mabo" (1995) 17(5) SydLR 5-28
Williams, NM, The Yolngu and their Land: A System of Land Tenure and
the fight for its Recognition (Canberra: Australian Institute of Aboriginal
Studies, 1986)
Woodward, AE, Three Wigs and Five Hats (Darwin: Northern Territory
Library Service, 1990)
Wootten, H, "Mabo and the lawyers" (1995) 6(1/2) The Australian
Journal of Anthropology 116-3
Cases
Attorney-General v Brown (1847) 1 Legge 312
Cooper v Stuart (1889) 14 App Cas 286
Williams v Attorney-General for New South Wales (1913) 16 CLR 404
Re Southern Rhodesia [1919] AC 233
Amodu Tijani v Secretary of Southern Nigeria 1[1921] 2 AC 399
Oyekan and Others v Adele [1957] 2 All ER 785
Council of the Municipality of Randwick v Rutledge and Ors (1959)
102 CLR 54
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Calder v Attorney-General of British Columbia (1973) 34 DLR (3d)
145 (SC)
Mabo and others v Queensland (No. 2) [1991-1992] 175 CLR 1
Coe v Commonwealth of Australia (1979) 24 ALR 118; (1993) 118 ALR
193
Walker v State of New South Wales (1994) 182 CLR 45
1. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum)
2. Mabo and others v Queensland (No. 2) [1991-1992] 175 CLR 1 (Mabo)
3. HL Dalton, "Storytelling on its own terms" in P Brooks and P Gewirtz (eds) Law's Stories (New Haven: Yale University Press, 1996) 57 at 57
4. This meaning of "norm" is to be distinguished from its usage in Michel Foucault's work; there, as François Ewald suggests, "the norm is a measurement and a means of producing a common standard," a point of reference or standard by which social diversity is coordinated: F Ewald, "Norms, discipline, and the law" (1990) 30 Representations 138-61. See also the discussion in N Rose and M Valverde, "Governed by law?" (1998) 7(4) Social & Legal Studies 541-551. There is clearly a relationship between the two, but here we are concerned with different questions.
5. Sir A Mason, "The use and abuse of precedent" in K Laster, Law as Culture (Sydney: Federation Press, 1997) at 145. This uncoupling of moral community from tradition is, of course, a rather striking and novel phenomenon. It has been more common throughout human history and across human cultures to approach "looking forward" with caution, to see tradition precisely as embodying basic human values, demanding considerable allegiance - indeed, this has been one of the central arguments for the virtues of the doctrine of stare decisis: GJ Postema, "On the moral presence of our past' (1991) 36 (4) McGill LJ 1153
6. N Sharp, No Ordinary Judgment: Mabo, the Murray Islanders' Land Case (Canberra: Aboriginal Studies Press, 1996); J Webber, "The jurisprudence of regret: the search for standards of justice in Mabo" (1995) 17(5) SydLR 5-28
7. LJM Cooray, "The High Court in Mabo: legalist or l'égotiste" in M Goot and T Rowse (eds) Make a Better Offer (Sydney: Pluto, 1994) 82-96, to name only one; overviews can also be found in Cowlishaw, G, "Did the earth move for you? The anti-Mabo debate" (1995) 6(1/2) The Australian Journal of Anthropology 43-63 and Wootten, H, "Mabo and the lawyers" (1995) 6(1/2) The Australian Journal of Anthropology 116-33
11. K Laster, Law as Culture (Sydney: Federation Press, 1997) at 154, emphasis added
12. For an overview, see F Brennan, One Land, One Nation: Mabo - Towards 2001 (Brisbane: University of Queensland Press, 1995 at 20-37
13. M Kirby, "In defence of Mabo" in M Goot and T Rowse (eds) Make a Better Offer (Sydney: Pluto, 1994) 67 at 67; D Ivison, "Decolonizing the rule of law: Mabo's case and postcolonial constitutionalism" (1997) 17(2) Oxford Legal Studies 253 at 256; H Reynolds, "Native title and pastoral leases" (1996) 3(85) Aboriginal Law Bulletin 14 at 14
14. RH Bartlett, The Mabo Decision (Sydney: Butterworths, 1993) at ix
15. H Reynolds, The Law of the Land (Melbourne: Penguin, 1987). The earliest reference to the concept in relation to Aboriginal interests in land that I have been able to find so far is Alan Frost in "New South Wales as terra nullius: the British denial of Aboriginal land rights" (1981) 19 Historical Studies 513-23, the first discussion of the concept in relation to sovereignty is in E Scott, "Taking possession of Australia: the doctrine of 'terra nullius' (No Man's Land)" (1940) 26 JRAHS 1-19; I am indebted to Kate Beattie's Terra nullius and the colonisation of Australia (unpublished BA Honours Dissertation, Dept of Government, University of Sydney, 1998) for drawing my attention to this reference).
16. RH Bartlett, "Aboriginal land claims at common law" (1983) 15 UWALR 293; J Hookey, "The Gove Land Rights case: a judicial dispensation for the taking of Aboriginal lands in Australia?' (1972) 5 FLR 85; K McNeil, "A question of title: has the common law been misapplied to disposses the Aboriginals?" (1990) 16(1) Monash ULR 91; NM Williams, The Yolngu and their Land (Canberra: Australian Institute of Aboriginal Studies, 1986); see also Sir H Gibbs, "Foreword" in MA Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution (Brisbane: University of Queensland Press, 1993) xiii-xiv
18. T Rowse, After Mabo: Interpreting Indigenous Traditions (Melbourne: Melbourne University Press, 1993) at 1; see also Paul Patton's discussion of the "values" question in "After Mabo" (1994) 27(4) Southern Review 511. For a further exploration of this problem in relation to academics and law, see RA Posner, The Problematics of Moral and Legal Theory (Cambridge, Mass.: Harvard University Press, 1999)
19. The term originates in the sociology of deviance, particularly Howard Becker's Outsiders (New York: Free Press, 1963)
24. Milirrpum Note 1 at 244, emphasis in original
27. Milirrpum Note 1 at 246-7. Woodward's submission that these constructions were based on questions of fact - was the territory occupied or not? - and thus not binding, fell on deaf ears: Blackburn J simply reasserted that "the categorization of New South Wales as a colony acquired by settlement or peaceful occupation, as being inhabited only by uncivilized people, is a matter of law" (at 249). This, of course, overlooked the fact that a territory regarded as "settled" or "practically unoccupied" for the purposes of sovereignty can nonetheless be simultaneously regarded as either occupied or not for the purposes of title to land, and that this is a question of fact, not law. C.f. McNeil, Note 16 at 102-3, and B Hocking, "Aboriginal law does now run in Australia" (1993) 15 SydLR 187 at 195
28. Milirrpum Note 1 at 262; see also at 244
33. This means that students of Australian constitutional law are being led a little astray when they are told that "the Mabo case overturned the old view that British law applied without any account being taken of the existing indigenous law, including the indigenous land law" - K Booker, A Glass, and R Watt, Federal Constitutional Law 2nd ed (Sydney: Butterworths, 1998) at 10. A similarly rather oversimplified formulation appears in A Blackshield and G Williams, Australian Constitutional Law and Theory 2nd edition (Sydney: Federation Press, 1998), where it is said that the judgment "recognised that the indigenous population had a pre-existing system of law, which....would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action" (at 178). The problem is that the High Court, in Mabo and elsewhere, resolutely refuses to recognize the force of indigenous law over English or Australian law, so that whether native title is recognised in English and Australian law is a matter internal to that body of law. One would also have to distinguish between the High Court's position in relation to title to property, and its attitude to other legal concerns, especially questions of criminal law; see, for example, Mason CJ's position in Walker v State of New South Wales (1994) 182 CLR 45
34. Garth Nettheim noted in "Justice or handouts? Aborigines, law and policy" (1986) 58(1) Australian Quarterly 60 at 61 that "even if he [Blackburn J] had accepted the conquered colony theory, the result in the Gove case would have been the same." James Crawford notes in his review of Reynolds' Law of the Land, the major source of much of the terra nullius talk, that "...there is a tendency here to conflate the classification of Australia as settled or conquered with the existence or recognition of communal native title, which are essentially distinct issues" ("The appropriation of terra nullius" (1989) 59 (3) Oceania 226 at 227; again, Beattie, Note 15, directed me to this reference). McNeil also comments in "A question of title: has the common law been misapplied to dispossess the Aboriginals?" (1990) 16(1) Monash ULR 91 at 92 that if Aboriginal land rights existed, "they should have continued regardless of whether Australia was conquered or settled."
35. Morris v CW Martin & Sons Ltd [1966] 1 QB 716 at 730
36. Mabo Note 2 at 45, emphasis added
37. Mabo Note 2 at 108-9, emphasis added
40. D Ritter, "The 'rejection of terra nullius' in Mabo: A critical analysis" (1996) 18(1) SydLR 5 at 6. For a related discussion of the role of terra nullius in imperial and colonial policy and administration, as opposed to law, see Beattie, Note 15, a critique of the whole argument, found especially in Reynolds' work, but echoed in the Mabo majority, concerning the central significance of terra nullius in Aboriginal dispossession.
41. I Hunter, "Native title: Acts of state and the rule of law" in M Goot and T Rowse (eds) Make a Better Offer: the Politics of Mabo (Sydney: Pluto, 1994) 97 at 107
42. LR Hiatt, "The appropriation of terra nullius" (1989) 59 (3) Oceania 222 at 226
47. Attorney-General v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cas 286; Council of the Municipality of Randwick v Rutledge and Ors (1959) 102 CLR 54 Williams v Attorney-General for New South Wales (1913) 16 CLR 404
49. Amodu Tijani v Secretary of Southern Nigeria 1[1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER 785
51. Mabo Note 2 at78-81, per Deane and Gaudron JJ
52. (1975) 135 CLR 337 "Sea and Submerged Lands Act Case"
54. Mabo Note 2 at 102, per Deane and Gaudron JJ
56. It is actually an interesting counter-factual to pose: if a case concerning indigenous title had been brought before the NSW Supreme Court in 1947, if Stephens CJ, Dickinson and Therry JJ had been asked whether they thought that all the "waste" lands of the colony were genuinely unoccupied, and what they thought of the evidence of indigenous habitation, would they have declared that those lands were truly "unoccupied"?
58. (1973) 34 DLR (3d) 145 (SC) at 218
67. Aboriginal Land Rights (NT) Act 1976 (Cth); Woodward later wrote: "I took the view that the finding of close identification between particular groups of people and particular land was sufficient to mount a claim for recognition of Aboriginal title at a political level. I had no confidence that the High Court, as it was then constituted, would produce any better result for the Aboriginal people than had already been achieved. Indeed, I was afraid that doubts might be cast on Blackburn J's findings about Aboriginal law. I therefore advised against an appeal" - AE Woodward, Three Wigs and Five Hats (Darwin: Northern Territory Library Service, 1990) at 6
68. Webber Note 6 at 17 finds fault with Toohey J's judgment for precisely this reason, because "although it provides a solid discussion of the common law of indigenous title, it declines to suggest why, at this late date, Australia should adopt that law. Given the long history of denial, a judge should offer some justification, at least implicitly, for rejecting the old position and embracing the new. It is insufficient to state the common law as though it has always been thus, for in Australia that was manifestly not the case." Clearly my own position is exactly the reverse of this; it is unclear why the fact that Milirrpum was simply bad law should not be reason enough for rejecting its construction of native title and turning to another.
69. McNeil Note 16; Bartlett Note 16; Hookey Note 16
70. For example, Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC)
71. See Coe v Commonwealth of Australia (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty (Sydney: Allen & Unwin, 1996) at 1-15; J Hookey, "Settlement and sovereignty" in Peter Hanks & Bryan Keon-Cohen (eds) Aborigines and the Law (Sydney: George Allen & Unwin, 1984) 1-18; P Patton, "Sovereignty, law, and difference in Australia: after the Mabo case" (1996) 21(2) Alternatives 149-70; Ivison Note 13
72. G Nettheim, "Judicial revolution or cautious correction? Mabo v Queensland" (1993) 16(1) UNSWLJ 1at 16
74. Versions of this argument which have surfaced in legal theory more broadly include R Delgado, "Norms and normal science: toward a critique of normativity in legal thought" (1991) 139 UPennLR 933-962; Posner Note 18; P Schlag, "Normative and nowhere to go" (1990) 43 Stanford LR 167-91; P Schlag, "Values" (1994) 6 Yale JL&H 219-32.A leading example in another arena is B Anderson's Imagined Communities (London: Verso, 1991).
75. Ritter Note 39 at 6-7, 30, 32; Ritter argues further that this particular rhetorical move was somehow "necessary" to restore the High Court's broader moral legitimacy, but without making it clear where the compulsion behind this supposed "necessity" actually comes from.
77. S Levinson, "The rhetoric of the judicial opinion" in P Brooks and P Gewirtz (eds) Law's Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996) 187 at 197-8