How Did Native Title Enter Into the Common Law?

The recognition of native title in Australia in Mabo (No 2) occurred after other common-law countries such as United States, New Zealand, and Canada had acknowledged indigenous land rights under the common law, by treaty and in the case of Canada by the Constitution. The different ways in which the law relating to indigenous land rights has developed in other common-law countries means that we do not too readily assume that the decisions from those countries are relevant to the developing Australian law of native title. As recently as 1971, in the Gove Land Rights Case, a judge in the Supreme Court of the Northern Territory held at the common law could not recognise indigenous property rights derived from traditional law and custom. In reaching his conclusion, the judge adopted Blackstone’s theory of colonisation, the title to the land in a territory vested in the Crown if the territory was uninhabited at the time British sovereignty was assumed. Such land was terra nullius. The Crown acquired absolute beneficial ownership of the land because there was no one other. In time, however the doctrine was enlarged to encompass land that was in fact inhabited, if the inhabitants social organisation laws were not practically enforce or that they were so ‘uncivilised’ that the English law could not deign to recognise them. When the British settled such land, the laws of England applied in the same way as if the land will uninhabited. Under these principles, English law treated Australia as a land where no one lived.

In the Mabo (No 2) case referred to above, the High Court held that the common law of Australia did recognise native title. This conclusion require the court to explore the link between the assertion of sovereignty and the operation of the feudal doctrines of tenures and estates. The court held that, on acquiring sovereignty, the Crown land acquired the radical title to the land. This title can power the Crown to deal with the land, but did not confer full beneficial ownership to the exclusion of native title rights and interests. In the course of reaching this conclusion, the majority rejected the extended doctrine that the land was uninhabited so far as it might have been thought to apply to Australian conditions. This was the method by which native title into the common law in Australia. It was arguably the most important case in the history of the High Court of Australia.