Fun Facts: 77 How Much Of Australia'S Land Is Habitable?

This time around, we shall cover How Much Land Is Inhabited In Australia. Obviously, there is a great deal of information on Australia Location on the Internet. The fast rise of social media facilitates our ability to acquire knowledge.

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77 Fun Facts How Much Land Is Inhabited In Australia | Why Is 95% Of Australia Empty

• Rangelands extend across low rainfall and variable climates, including arid, semi-arid, and north of the Tropic of Capricorn, some seasonally high rainfall areas. They include a diverse group of relatively undisturbed ecosystems such as tropical savannas, woodlands, shrublands and grasslands. From an ecological perspective, 53 of Australia’s 85 bioregions include rangeland ecosystems and 12 are located entirely within the Rangelands. Together, they cover a huge diversity of habitats and ecological communities. - Source: Internet
• It does not appear that these poor creatures have any fixed Habitation; sometimes sleeping in a Cavern of Rock, which they make as warm as a Oven by lighting a Fire in the middle of it, they will take up their abode here, for one Night perhaps, then in another the next Night. At other times (and we believe mostly in Summer) they take up their lodgings for a Day or two in a Miserable Wigwam, which they made from Bark of a Tree. There are dispersed about the woods near the water, 2, 3, 4 together; some Oyster, Cockle and Muscle (sic) Shells lie about the Entrance of them, but not in any Quantity to indicate they make these huts their constant Habitation. We met with some that seemed entirely deserted indeed it seems pretty evident that their Habitation, whether Caverns or Wigwams, are common to all, and Alternatively inhabited by different Tribes. - Source: Internet
• Australia is the driest inhabited continent in the world; 70% of it is either arid or semi arid land. The arid zone is defined as areas which receive an average rainfall of 250mm or less. The semi arid zone is defined as areas which receive an average rainfall between 250-350mm. - Source: Internet
• In this way, Brennan J reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonisation of a settled, yet inhabited, colony. Whereas the common law pre-Mabo distinguished between the doctrine prescribing the general law that applied upon settlement and the doctrine prescribing the effect of Crown acquisition of territory on aboriginal land rights (as the two doctrines were justified on antithetical grounds), the Australian common law post-Mabo includes a singular doctrine. In prescribing the law that applies upon settlement, this singular doctrine (a modified doctrine of reception) includes the test for determining whether pre-existing land rights survive a change in sovereignty. - Source: Internet
• Blackburn J concluded, on the basis of his examination of what had happened in the laws of the various places where English law had been applied, that the doctrine of communal native title has no place in a settled colony except under express statutory provision.[70] Thus, Blackburn J applied the ‘recognition doctrine’, as opposed to the ‘doctrine of continuity’. Pre-Mabo, since Australia’s classification as a settled colony was justified on the ground that it was ‘legally uninhabited’ pursuant to the ‘desert and uncultivated’ doctrine, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule. In this context, the authorities supported either the doctrine of continuity or the recognition doctrine.[71] - Source: Internet
• Common law recognition of native title in Australia is, therefore, only possible because the Mabo High Court retrospectively clarified the doctrine of reception as it applied to Australia.[168] The crucial point is that by proceeding within a framework of general principles of municipal law, the Mabo High Court rejected the legal doctrine classifying inhabited land as uninhabited in its application to questions of property at common law, but not in its application to the establishment of English sovereignty in international law. Thus, although the indigenous inhabitants and their occupancy of land are no longer retrospectively ignored when considering title to land in the settled yet inhabited colony of Australia, the Crown’s acquisition of sovereignty over Australia is still regarded as dependent upon the occupation of territory that was terra nullius. The Crown’s sovereignty over the territory is, however, no longer equated with Crown ownership of the lands therein. - Source: Internet
• At this juncture, it is significant to note that De Vattel’s reference to the international law concept of terra nullius, first published in 1758, was expressed in language reminiscent of Blackstone’s elucidation of the ‘desert and uncultivated’ doctrine: it was made in the context of examining ‘[h]ow a nation appropriates to itself a desert country’; the term ‘terra nullius’ was not mentioned, De Vattel simply referred to ‘a nation find[ing] a country uninhabited, and without an owner’.[39] However, just as the categories of land that were terra nullius under international law were expanded to embrace certain inhabited land, ‘desert and uncultivated’ land under the common law was expanded to include land that was inhabited. Indeed, the extended meaning of ‘desert and uncultivated’ was the result of the common law’s acceptance of the international law doctrine of terra nullius.[40] Consequently, judicial classification of inhabited land as ‘desert and uncultivated’ was justified on the basis of similar criteria justifying the expanded version of the doctrine of terra nullius.[41] - Source: Internet
• Indeed, the High Court in Mabo emphasised this distinction. By accepting that Australia was not, in fact, terra nullius in 1788, yet legally uninhabited for the purpose of acquisition of sovereignty, the Mabo High Court acknowledged that sovereignty was acquired over Australia under the enlarged doctrine of terra nullius. Despite this conclusion, however, the majority of the High Court expressly disapproved of the application of the concept of terra nullius to an inhabited country and recognised that the notion that inhabited land may be classed as terra nullius no longer commanded general support in international law.[93] Although the Court questioned the classification of Australia as an empty uninhabited land in the extended legal sense at the international level, the Court’s unanimous view was that the acquisition of sovereignty cannot be challenged by municipal courts.[94] The High Court did, however, have jurisdiction to determine the consequences of an acquisition of sovereignty; to determine the body of law that applied in the newly acquired territory of Australia. - Source: Internet
• Since the European invasion of Australia in 1788, the Aboriginal people have been oppressed into a world unnatural to their existence, a way of life that had continued for thousands of years. First came the influx of the strangers who carried with them diseases, which decimated the immediate population of the Sydney tribes. It is estimated that over 750,000 Aboriginal people inhabited the island continent in 1788. The colonists were led to believe that the land was terra nullius (‘no one’s land’), despite what Lt James Cook saw in 1770 during his voyage up the east coast of Australia. - Source: Internet
• The crucial point is that, as the counterbalance to rejecting the common law ‘desert and uncultivated’ doctrine for the purpose of determining the law on colonisation, Brennan J had to ‘resort to some new and different rule, better adapted to the actual state of things.’[149] Brennan J developed a theory for the law that applied upon settlement of an inhabited territory that was consistent with Australia’s history and did not fracture a skeletal principle of the Australian legal system:[150] upon acquisition of sovereignty, the Crown acquired a radical, rather than a beneficial, title to all land because pre-existing land rights continued until replaced by the new sovereign (by virtue of the doctrine of continuity pro tempore).[151] Importantly, this theory did not disturb the validity of titles granted by the Crown.[152] - Source: Internet
• Pre-Mabo, the land law of the previous inhabitants was not recognised or applied in a settled colony because the classification of such a colony as settled was justified on the ground that it was ‘legally uninhabited’ and thus there was no such previous law that could be applied. The enforceability of pre-existing property rights, therefore, depended on some different rule that, because it contradicted the ‘legally uninhabited’ rule, was necessarily a distinct and independent rule. Pre-Mabo, the authorities supported either the doctrine of continuity or recognition in this context. By combining aspects of the continuity and recognition doctrines, the doctrine of continuity pro tempore effectively reconciled these two formerly distinct doctrines and replaced them with a singular doctrine. Moreover, by incorporating the doctrine of continuity pro tempore, the modified doctrine of reception effectively replaced the three formerly distinct common law doctrines of reception, continuity and recognition. - Source: Internet
• The arrival of Lt James Cook in 1770 marked the beginning of the end for this ancient way of life. Cook’s voyage of exploration had sailed under instructions to take possession of the Southern Continent if it was uninhabited, or with the consent of the natives if it was occupied. Either way, it was to be taken. Upon his arrival, Lt Cook declared the land he called New South Wales to be the property of Britain’s King George III, and ignored the inconvenient fact that the land was already well populated. His failure to even attempt to gain the consent of the natives began the legal fiction that Australia was waste and unoccupied (terra nullius: learn more). - Source: Internet
• It would not be an exaggeration to claim that the Island continent was owned by over 400 different nations at the time of this claim by Cook. When the first fleet arrived in Sydney Cove it is said that Captain Philip was astounded with the theory of Cook’s terra nullius, saying “Sailing up into Sydney cove we could see natives lining the shore shaking spears and yelling.” - Source: Internet
• Before the decision in Mabo, Milirrpum,[68] a decision by Justice Blackburn, a single judge of the Supreme Court of the Northern Territory, was the only reported Australian decision dealing directly with the merits of an Aboriginal claim to particular traditional tribal land. For the first time in Australian legal history, it was argued that ‘at common law, communal occupation of land by the aboriginal inhabitants of a territory acquired by the Crown is recognised as a legally enforceable right.’[69] - Source: Internet
• It has been seen that the concept of terra nullius (as opposed to the doctrine) has two limbs: the international law limb, which applies to questions of sovereignty, and the common law limb, which applies to questions of property. Thus, while the doctrine of terra nullius is only relevant at international law in deciding whether a state has acquired sovereignty by purported occupation, it is broadly analogous to the common law ‘desert and uncultivated’ doctrine, pursuant to which colonial acquisition by settlement dictated that the common law of England became the law of the colony in so far as it was applicable to colonial conditions.[161] Land that can be lawfully acquired by settlement at common law (‘desert and uncultivated’ land) is, therefore, the equivalent of territory that is regarded as terra nullius in either its narrow or extended senses at international law. The crucial point, however, is that while both limbs of the concept of terra nullius classify inhabited land as uninhabited land for legal purposes, they serve different functions: a dichotomy highlighted by the High Court’s decision in Mabo. - Source: Internet
• All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. [24] - Source: Internet
• It was seen in Part I that the distinction between a territory acquired by occupation/settlement, a territory acquired through treaty, and a territory acquired as a result of conquest was significant not only for the purpose of legitimising English rule in international law, but also for its consequences in English law. While the doctrine of terra nullius is only relevant for the purpose of justifying the acquisition of territory by occupation at international law,[91] the doctrine is broadly analogous to the common law concept of colonial acquisition by ‘settlement’ of a ‘desert and uncultivated’ country pursuant to which the common law of England, including the feudal doctrine of tenure, became the law of the colony in so far as it was applicable to colonial conditions.[92] Thus, although both these principles of international and domestic law classify inhabited land as uninhabited land for legal purposes, they have different spheres of operation. Accordingly, only the concept, as distinct from the doctrine, of terra nullius applies both to questions of sovereignty at international law and to questions of property at common law. - Source: Internet
• European civilisation devastated, in what amounts to the blink of an eye, an incomparable and ancient people. Because the vast majority of clans living in the Sydney Basin were killed as a result of the 1788 invasion, the stories of the land have been lost forever. Much of what we do know about the northern Sydney clans must be gleaned from their archaeological remains. Middens, shelters, engravings and art remnants of indigenous life are prolific throughout the region, but no one remains to reveal their particular meanings or ancient significance. There are no first hand witness accounts giving the Aboriginal perspective to what was happening. - Source: Internet
• [8] The phrase is Blackstone’s: W Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (1765) (A Facsimile of the First Edition of 1765-1769, 1979) vol 1, 104; (15th ed, 1982) 107 and is discussed in Mabo, 34-37 (Brennan J) and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 427. Note, however, that Blackstone also uses the phrase ‘desert uninhabited’ interchangeably with the phrase ‘desert and uncultivated’: W Blackstone, Commentaries on the Laws of England: Of the Rights of Things (1766) (A Facsimile of the First Edition of 1765-1769, 1979) vol 2, 7. In Mabo, Brennan J prefers the phrase ‘desert uninhabited’: at 34, 35, 36, 48, 58. See also U Secher, A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (unpublished Doctoral Thesis, UNSW, 2003), Chapter 1, 37-39. - Source: Internet
• [34] According to Blackstone, this distinction was based upon the law of nature, or at least upon that of nations: Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104. See also Blankard v Galdy [1795] EngR 570; (1693) Holt KB 341 (91 ER 356); Lyons (Mayor of) v East India Co. [1836] EngR 1155; (1836) 1 Moo PC 175, 272-273 [1836] EngR 1155; (12 ER 782, 818); Cooper v Stuart (1889) 14 App Cas; The Lauderdale Peerage (1885) 10 App Cas 692, 744-745; Kielley v. Carson [1842] EngR 593; (1842) 4 Moo PC 63, 84-85 [1842] EngR 593; (13 ER 225, 233). - Source: Internet
• We have seen that the doctrine of continuity can be traced to Brian Slattery’s pioneering work,[130] and that both Slattery and Lester conclude, by quite different reasoning,[131] that aboriginal rights in a settlement are capable of being enforced against the Crown, without any prior requirement of executive or legislative recognition. In Mabo, however, Brennan J’s conclusion that, in an inhabited settled colony, the new sovereign retained powers by virtue of which it could extinguish local property rights meant that aspects of the recognition theory were also accommodated within this new doctrine.[132] - Source: Internet
• [52] 9 Geo IV c 83, s 24. Section 24 of the Act provided that all laws and statutes in force in England at the date of the enactment of the legislation should be applied in the courts of New South Wales and Van Diemen’s Land so far as they were applicable. See also State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 625, 634. - Source: Internet
• [A]ll affirm the principle, fundamental to the English law of real property, that the Crown is the source of title to all land; that no subject can own land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown. On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown. [82] - Source: Internet
• Although a number of commentators have suggested that the English system of land tenure was never appropriate or adequate to describe the legal nature of landholding in Australia,[54] the first expression of feudalism by the courts of the Australian colonies[55] made it clear that there was no question that the feudal principle was applicable to Australia.[56] Accordingly, the maxim that all land is held, either mediately or immediately, of the Crown applied in Australia, as did the legal fiction justifying this feudal theory. The two-fold fiction that all lands in the realm were once in the hands of the King and that all titles were originally derived from royal grants was, therefore, as fundamental to the application of the common law doctrine of tenure in Australia as it was in England. - Source: Internet
• Accordingly, the classification of territory as ‘desert and uncultivated’ has been a basis for attributing absolute beneficial ownership of all land in Australia in the Crown. In this respect, therefore, the ‘occupation of’ and the ‘settlement of’ an inhabited territory were equated with the ‘occupation of’ and the ‘settlement of’ an uninhabited territory for the purpose of legitimising the acquisition of sovereignty in international law and in ascertaining the law of the territory on colonisation at common law respectively.[46] Thus, the confusion of sovereignty and ownership, political power and property rights, is responsible not only for the extension of the terra nullius doctrine, but also for the fiction of original Crown ownership of all land – the fundamental tenet of the feudal doctrine of tenure.[47] Moreover, since it was the principle nulle terre sans seigneur[48] that ensured an unusually perfect feudal structure, it is this principle, rather than the doctrine of terra nullius, that has been overturned as a result of the Mabo decision: recognition of native title is recognition of land that is not held of any superior. - Source: Internet
• It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole? … [I]n establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth … belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature, in confining the Indians within narrower limits. [26] - Source: Internet
• The new element introduced by the High Court was the recognition of a new class of settled colony at common law.[164] By ascribing to Australia the status of a colony acquired by settlement, though not previously uninhabited, the Court rejected the concept of terra nullius, rather than the doctrine of terra nullius,[165] in its application to questions of property at common law. Thus, although sovereignty over Australia had been acquired under the enlarged doctrine of terra nullius at international law, the common law ‘desert and uncultivated’ doctrine, which had equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation, was rejected. 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. - Source: Internet
• [47] See text accompanying n 57 above. Indeed, such confusion raises interesting questions about the very foundation of such an extension. Although the matter cannot be pursued here, if, to use the words of Brennan J in Mabo (at 52), the ‘fallacy of equating sovereignty and beneficial ownership of land’ gave rise to the enlarged doctrine of terra nullius, this may, post-Mabo, provide a basis for allowing the appropriate Court to reconsider and retrospectively reject the doctrine. - Source: Internet
• The doctrine of terra nullius is a well-established principle of international law; it is not a principle of the common law.[7] Nevertheless, it will be seen that the doctrine has a common law counterpart in the ‘desert and uncultivated’ doctrine.[8] Although both doctrines classified inhabited land as uninhabited land, crucially, the two doctrines did so for different purposes: the doctrine of terra nullius served the purpose of legitimising the acquisition of sovereignty in international law and the ‘desert and uncultivated’ doctrine served the purpose of ascertaining the law which is to govern a territory on colonisation at common law.[9] - Source: Internet
• Accordingly, the High Court’s decision in Mabo not only preserves the distinction between settled territories on the one hand and conquered or ceded territories on the other, it also clarifies the law that applies in territories which have been settled in circumstances like Australia. The only similarity between a settlement analogous to Australia and a territory acquired by conquest, therefore, is that rights in land predating sovereignty continued until altered. Brennan J’s analogy between ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’ is, therefore, an accurate statement of the legal consequences of Mabo. The rationale underlying the Mabo decision is, however, crucial: it means that arguments for similar recognition of Aboriginal customary laws beyond those relating to land cannot be based upon the Mabo principle.[158] - Source: Internet
• Since the new doctrine prescribing the system of law that applies upon settlement of an inhabited territory (a modified doctrine of reception) includes a merged version of the continuity and recognition doctrines (continuity pro tempore), it effectively replaces the three formerly distinct doctrines of reception, continuity and recognition. ‘Legal history, authority and principle’,[156] therefore, combined to develop a theory for the recognition of pre-existing property rights following the Crown’s acquisition of sovereignty over Australia: an inhabited settled territory.[157] - Source: Internet
• Nevertheless, pre-Mabo, the basis upon which the common law of England was received as the law of the colony of New South Wales was that Australia was settled.[49] This classification should have meant that English law applied in New South Wales on settlement of the colony.[50] The colony’s character as a penal settlement, however, raised doubts as to the extent to which English law applied in the colony.[51] These doubts were settled in 1828 when the British Parliament passed the Australian Courts Act.[52] Thus, so much of the English land law of 1828 as was applicable to the colonial conditions of New South Wales, and ultimately all the Australian colonies,[53] became the basis of Australian land law. - Source: Internet
• Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes of peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements concluded with local rulers. [27] - Source: Internet
• According to Brennan J’s analysis, the effect of a change in sovereignty in the context of the inhabited settled colony of Australia was that, like other settled territories, the common law of England applied as far as applicable; but unlike other settlements, English common law principles relating to land did not immediately apply. In particular, rather than acquiring absolute beneficial ownership of ‘every square inch of land,’[129] the Crown acquired only a radical title to all land. Crucially, this was because, like the legal position in a conquered territory, local land law continued until replaced by the new sovereign. In this way, Brennan J incorporated elements of the continuity theory within his new rule for prescribing the law that applied upon settlement of Australia. - Source: Internet
• Common law recognition of native title is therefore, the legal outcome of the application of a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore. The new, modified, doctrine of reception is itself, however, the direct result of the finding that, although Australia was settled, it was inhabited for legal purposes at common law. The application of the new doctrine of reception to Australia meant that, like other settled territories, the common law of England applied as far as applicable;[166] but unlike other settlements, English common law principles relating to land did not immediately apply. Instead, because local land law continued to apply until replaced, the Crown acquired a radical, rather than beneficial, title to all land. - Source: Internet
• Blackburn J, however, applied the recognition doctrine and concluded that native title has no place in a settled colony except under express statutory provision. Blackburn J also observed that the same conclusion must be drawn from earlier Australian cases dealing with the issue of the Crown’s original title to land.[81] This was because such decisions: - Source: Internet
• Accordingly, the theory advanced to support the application of English law to colonial New South Wales was that because the indigenous inhabitants were regarded as ‘barbarous or unsettled and without a settled law,’[107] the law of England, including the common law, became the law of the colony as though it was an uninhabited colony.[108] The result was that ‘the settlement of an inhabited territory [was] equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation ’.[109] - Source: Internet
• ‘[w]hilst … the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.’[137] - Source: Internet
• [37] Case 15 - Anonymous ((1772) 2 Peer William’s Reports 75; [1722] EngR 1; 24 ER 646. See also Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104-105; Roberts-Wray, above n 22, 541-542. This was, however, subject to the qualification that where English settlers formed their own separate community, English law governed that community: Advocate General of Bengal v Ranee Surnomoye Dossee [1863] EngR 761; (1863) 15 ER 811, 824. - Source: Internet
• In this context, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law,[153] six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate. As the postulate of the Australian doctrine of tenure, radical title enables the common law regime governing the doctrine of tenure to apply ‘to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.’[154] Thus, the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: although the ‘postulate of the doctrine of tenure’ limb of radical title continues to assure the Crown of its paramount lordship over tenures created by Crown grant, it does so in new, limited circumstances. Title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant: the principle ‘nulle terra sans seignour’ is otiose. - Source: Internet
• • LLB (Hons [1]) (JCU), PhD (UNSW); Barrister of the Supreme Court of Queensland; Senior Lecturer in Law, James Cook University. This article is derived from Chapters 1, 2 and 3 of the author’s PhD thesis: A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (UNSW, 2003, under contract for publication as a monograph by Routledge International). The author would like to thank Ms Rachel Bradshaw for her valuable work as research assistant for this paper. - Source: Internet
• “… they were so ignorant they thought there was only one race on the earth and that was the white race. So when Captain Cook first came, when Lieutenant James Cook first set foot on Wangal land over at Kundul which is now called Kurnell, he said oh lets put a flag up somewhere, because these people are illiterate, they’ve got no fences. They didn’t understand that we didn’t need fences … that we stayed here for six to eight weeks, then moved somewhere else where there was plenty of tucker and bush medicine and we kept moving and then come back in twelve months’ time when the food was all refreshed …”1 - Source: Internet
• The dry tropical rangelands of northern Australia are characterised by vast tracts of eucalypt savanna and native grasslands, small areas of cleared land and scattered settlements, and the rivers and wetlands that sustain ecosystems. The area covers almost a quarter of continental Australia, and stretches in a broad sweep from the westernmost edges of the wet tropics of far North Queensland to the west coast in the vicinity of Broome. Around the world these ecosystems are more commonly known as tropical savanna, a term that is also used to describe the rangelands landscape of monsoonal northern Australia. - Source: Internet
• In Mabo, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement. The Mabo High Court did not, however, reject the doctrine of terra nullius[162] in any sense of denying Australian sovereignty which remains non-justiciable.[163] Nor did the Court’s decision have the effect of re-classifying Australia as ‘conquered’ or ‘ceded’ rather than ‘settled’. Indeed, the High Court accepted that Australia was a settled territory. - Source: Internet
• By combining aspects of the continuity and recognition doctrines, Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled these two formerly distinct doctrines[133] and replaced them with a singular doctrine: ‘continuity pro tempore’.[134] Indeed, Brennan J’s reconciliatory approach bears a striking resemblance to that adopted by the Privy Council in Adeyinka Oyekan v Musendiku Adele,[135] a case involving the cession of land to the British Crown in the former colony of Lagos. In that case, Lord Denning, delivering the judgment of the Judicial Committee of the Privy Council, expounded two propositions. The first was that in inquiring what rights are recognised after a change in sovereignty there is one guiding principle, namely that ‘[t]he courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.’[136] The second proposition was that - Source: Internet
• [32] Sir Harry Gibbs, former Chief Justice of the High Court of Australia, has observed that the ‘expression ‘terra nullius’ seems to have been unknown to the common law. I have found no trace of it in legal dictionaries ranging from Cowel’s Interpreter (1701 ed) to Stroud’s Judicial Dictionary (1986 ed). It is not mentioned in Tarring’s Law Relating to the Colonies (1913 ed) which in its day was regarded as authoritative’: Foreword in Stephenson and Ratnapala (eds), Mabo: A Judicial Revolution - The Aboriginal Land Rights Decision and Its Impact on Australian Law, above n 12, xiv. See also Re Thomas Steven Phillips Ex parte Aboriginal Development Commission (1987) FCA 128, [9]-[11] (Neaves J). The Commonwealth Government also acknowledged this in its written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989, stating that ‘[t]erra nullius is a concept of public international law; it would be inappropriate to use it in the context of domestic land claims’: cited by G Simpson ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 210, n 109.. - Source: Internet
• For thousands of years prior to the arrival of Europeans, northern Sydney was occupied by different Aboriginal clans. Living primarily along the foreshores of the harbour, they fished and hunted in the waters and hinterlands of the area, and harvested food from the surrounding bush. Self-sufficient and harmonious, they had no need to travel far from their lands, since the resources about them were so abundant, and trade with other tribal groups was well established. Moving throughout their country in accordance with the seasons, people only needed to spend about 4-5 hours per day working to ensure their survival. With such a large amount of leisure time available, they developed a rich and complex ritual life – language, customs, spirituality and the law – the heart of which was connection to the land. - Source: Internet
• The common law concept of acquiring territory by ‘settlement’ is, therefore, analogous to the international law mode of acquiring territory by ‘occupation’; land that can be lawfully acquired by settlement at common law is the equivalent of territory that is regarded as terra nullius in either its narrow or extended senses at international law. Accordingly, the concept of terra nullius (as opposed to the doctrine) has two limbs: it applies to questions of sovereignty (at international law) and to questions of property (at common law). The doctrine of terra nullius is, however, only relevant at international law in deciding whether a state has acquired sovereignty by purported occupation; it is not relevant at common law in determining the law which is to govern the new possession.[42] - Source: Internet
• South Australia is the southern, central state of mainland Australia, and the 4th largest (total land area is 983,482 km2) of its 8 states and territories. Covering 12.7% of Australia, SA is similar in size to Egypt, Bolivia, Tanzania and the Canadian state of Ontario, or the combined areas of France and Germany. - Source: Internet
• [38] Blackstone, Commentaries on the Laws of England, vol 1, above n 8, 104. See also Mabo, [35] per Brennan J and n 8. As early as 1693, the Court of King’s Bench in Blankard v Galdy (1693) Holt KB 341, 342 [1795] EngR 570; (91 ER 356, 357) observed that: ‘In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there; so it seemed to be agreed’. - Source: Internet
• We found the natives tolerably numerous as we advanced up the river, and even at the harbour’s mouth we had reason to conclude the country more populous than Mr Cook thought it. For on the Supply’s arrival in the [Botany] bay on the 18th of the month they assembled on the beach of the south shore to the number of not less than forty persons, shouting and making many uncouth signs and gestures. This appearance whetted curiosity to its utmost, but as prudence forbade a few people to venture wantonly among so great a number, and a party of only six men was observed on the north shore, the governor immediately proceeded to land on that side in order to take possession of this new territory and bring about an intercourse between its new and old masters. - Source: Internet
• [80] K McNeil, above n 36, 162 ff. McNeil agrees with Slattery that whatever the constitutional status of a colony, pre-existing private property rights continue as a result of the doctrine of continuity. Although McNeil agrees with Lester’s conclusion that the Crown could not, in its executive capacity and simply by virtue of acquiring sovereignty over a settlement, acquire title to land then occupied by indigenous people under their own customary systems of law (McNeil at 4) he disagrees with Lester’s view that in conquered and ceded territories land rights must have been recognised legislatively or executively to be enforceable against the Crown (see McNeil, Chapter 6). - Source: Internet
• South Australia shares a border with all of Australia’s mainland states and the Northern Territory (Figure 2). To the north it is bordered by the Northern Territory, to the east by Queensland, New South Wales and Victoria, to the west by Western Australia and to the south by the Great Australian Bight and Southern Ocean. In total, our land borders stretches 3,185 km. Within our total land area of 983,482 km2, islands make up some 4,672 km². Our coastal waters1 cover 60,032 km² along 3,816 km of mainland coast and 1,251 km of island coastline. - Source: Internet
• [89] For a discussion of the recognition doctrine see text accompanying n 72. This situation was remedied, to some extent, in the Northern Territory by the enactment of the first Commonwealth land rights legislation in 1976: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Equivalent measures were subsequently adopted in a number of other Australian: see B Hocking, above n 13, 180, nn 25 and 27; 183, n 40; G Nettheim, ‘Native Title and Statutory Title’ in Stephenson (ed), Mabo: The Native Title Legislation - A Legislative Response to the High Court’s Decision, above n 12; M A Stephenson, ‘Statutory Schemes of Native Title and Aboriginal Land in Queensland: The Relationship of the Queensland Aboriginal Land Act 1991 with the Commonwealth Native title Act 1993 and the Native Title (Queensland) Act 1993 (1995) 2 James Cook University Law Review 109. - Source: Internet
• [22] W Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (1765) (A Facsimile of the First Edition of 1765-1769, 1979) vol 1, 104-105; E de Vattel, The Law of Nations (Trans, original publication, 1982) Ch 18 [trans of: Le droit des gens]; K Roberts-Wray, Commonwealth and Colonial Law (1966) 99. A colony may be acquired by any one of these means or by a combination of two of them: at 99. For example, annexation of ceded colonies or conquered colonies: at 104-105, 107. - Source: Internet
• For Blackburn J, therefore, the plaintiffs could not succeed because they could neither point to any grant from the Crown as the basis of the title which they claimed (as required by the received feudal doctrine of tenure) nor show that there was a doctrine in their favour (the doctrine of continuity) which in Australia co-existed in some manner with the dominium of the Crown.[83] The crucial point is that, since the classification of Australia as a settled colony was justified on the ground that it was ‘legally uninhabited’, the enforceability of pre-existing rights under either the recognition or continuity doctrine, contradicted the ‘legally uninhabited’ rule. Consequently, the common law, in determining the law which was to govern a new possession, had two limbs, one general and one specific. The general limb consisted of a doctrine prescribing the law (whether English or local) that applied in the newly acquired territory (in the case of settlements, the doctrine of reception). The specific limb consisted of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine). - Source: Internet
• In reaching this conclusion, Brennan J equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land.’[127] It will be seen that this comparison has two significant implications. First, it reinforces Brennan J’s view that, in an inhabited settled colony, elements of both the continuity and recognition doctrines determine the legal status of pre-existing property rights after a change in sovereignty.[128] Secondly, it limits the practical consequences of Brennan J’s reasoning to rights to land. - Source: Internet
• South Australia is part of the oldest, most isolated and geologically stable continent in the world. Australia is also the smallest, flattest continent, but largest island, in the world. Additionally, it is both the driest inhabited continent and vegetated land mass. - Source: Internet
• Although the manner in which a sovereign acquires a new territory is a matter of international law, the system of law applicable in a newly acquired territory is determined by the common law.[19] The international law of the eighteenth century[20] recognised four[21] ways of acquiring sovereignty over a new territory: by conquest, cession, occupation or annexation.[22] The British acquisition of sovereignty over the colony of New South Wales was regarded as dependent upon the occupation of territory that was terra nullius.[23] Initially, the doctrine of terra nullius was applied to the acquisition of new territory which was uninhabited. Emmerich de Vattel, one of the most influential writers on the law of nations in the eighteenth century, argued that as a principle of natural law: - Source: Internet
• About 81% of Australia is broadly defined as rangelands. This part of the country is known to most Australians as the Outback. The rangelands are home to many of Australia’s Indigenous people and are culturally important for most Australians. - Source: Internet
• The article is divided into two parts: Part I examines the international law doctrine of terra nullius and the common law ‘desert and uncultivated’ doctrine in their application to Australia pre-Mabo. It explains that, as a result of the application of these principles of international and domestic law concerning the formation of new colonies, the feudal doctrine of tenure was received as part of the law of the Australian colonies and ‘unequivocally informed the articulation of Australian land law’.[16] Moreover, since the reception of English law into the settled colony of Australia was justified on the ground that it was ‘legally uninhabited’, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule. Although the authorities supported either the doctrine of continuity or the recognition doctrine in this context, only under the doctrine of continuity were pre-existing rights enforced without the need for express statutory provision.[17] Pre-Mabo, therefore, it was the combination of the universal acceptance of the feudal doctrine of tenure and the application of the recognition doctrine in Australia that precluded any recognition of non-feudal rights in land, such as native title. - Source: Internet
• [24] De Vattel, above n 22, Chapter 18, [207] headed: ‘How a nation appropriates to itself a desert country’. In this context, ‘uninhabited territory’ means ‘uninhabited territory that is also not under the control of any sovereign’: M F Lindley, The Acquisition and Government of Backward Territory at International Law: being a Treatise on the Law and Practice relating to Colonial Expansion (1926) 10. See also Ritter, above n 7, 7. - Source: Internet
• [7] Mabo and Others v State of Queensland (No.2) (1992) 175 CLR 1, 32-34; [33]-[34] (Brennan J). See also R H Bartlett, The Mabo Decision (1993) ix; D Ritter, ‘The ‘Rejection of Terra Nullius’ in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18(3) Sydney Law Review 5, 8. - Source: Internet
• [25] De Vattel, above n 22, Chapter 18, [208]. See also Ritter, above n 7, 7. Although opinions differed about exactly what types of inhabited land could be treated as terra nullius, ‘all the expanded definitions … shared the common feature of explicit ethnocentricity’: Ritter, above n 7, 8. - Source: Internet
• It is clear that under the common law doctrine of reception, the laws of a conquered or ceded territory remain in force unless and until they are altered by the conquering nation.[159] Accordingly, in a conquered or ceded territory, the doctrine of reception preserves all legal rights, not just property rights, of the inhabitants of the territory unless and until such rights are superseded by English law.[160] Thus, on the hypothetical assumption that Australia was conquered, Aboriginal laws and customs including, but not necessarily limited to, laws and customs relating to land, would remain in force until altered. In Mabo, however, the High Court accepted that Australia was a settled territory. The essence of the Court’s decision lies in changing the law relating to land that applies in a colony acquired by settlement where the colony was not previously uninhabited. - Source: Internet
• Rejection of the conventional approach undermined the two-fold feudal fiction of original Crown ownership of all land and original Crown grant, which is fundamental to the English doctrine of tenure, and facilitated the High Court’s redefinition of the doctrine of tenure, which would otherwise have applied as universally as it does in England.[167] Thus, the doctrine of tenure has a limited role in Australian land law: title to land is no longer exclusively derived from Crown grant. The High Court’s finding that Australia was inhabited for legal purposes at common law has, therefore, resulted in the adjustment of ‘established’ legal doctrines to accommodate pre-existing aboriginal property rights. - Source: Internet
• This interpretation of the recognition limb laid the foundation for Brennan J’s (and thus the majority’s) unique conclusion on the scope of the sovereign’s power to unilaterally extinguish pre-existing rights in Australia: in contradistinction to the generally accepted position in other common law jurisdictions which recognise pre-existing rights to land,[143] the sovereign has a power to extinguish native title by inconsistent executive grant per se (without the need for legislative authority to extinguish).[144] Thus, although the Crown has power to unilaterally extinguish pre-existing rights in conquered, ceded and inhabited settled colonies, this power is more ample in the case of an inhabited settled colony. The Crown’s power to acquire land in a conquered or ceded territory after it has accepted the territory into its dominions requires either confiscatory legislation or an agreement to purchase.[145] In an inhabited settled colony, however, the Crown has power to extinguish antecedent rights and interests in land[146] in the absence of legislation, without consent[147] and without compensation.[148] - Source: Internet
• [t]he view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of municipal law that territory (though inhabited) could be treated as ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). …The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization. - Source: Internet
• The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called ‘settled colonies’. Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. [44] - Source: Internet
• Indeed, the High Court redefined the English doctrine of tenure, or, more accurately, defined the Australian doctrine of tenure, to accommodate the recognition of pre-existing property rights (not derived from Crown grant) via the continuity pro tempore doctrine. Thus, as a result of the Australian version of the doctrine of tenure, with radical title as its postulate, and the ‘continuity’ element of the doctrine of continuity pro tempore, common law recognition of rights in land created outside the doctrine of tenure was possible.[155] - Source: Internet
• Since the enlarged doctrine of terra nullius had ceased to command acceptance under international law, the Mabo High Court found that its broadly analogous application in the common law of property (the ‘desert and uncultivated’ doctrine) was brought into question.[95] Crucially, in contradistinction to their conclusion on the issue of acquisition of sovereignty, the majority refused to follow the ‘orthodox’ approach which equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of a territory on colonisation. Thus, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement.[96] It has been seen, however, that, pre-Mabo, the common law determining the law which was to govern a new possession had two limbs: a general limb consisting of a doctrine prescribing the law (whether English or local) that applied in the newly-acquired territory (in the case of settlements, the doctrine of reception); and a specific limb consisting of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine).[97] It will be seen that, in rejecting the ‘desert and uncultivated’ doctrine, the Mabo High Court effectively reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonization and replaced them with a singular doctrine: a modified doctrine of reception. - Source: Internet
• According to pre-Mabo orthodoxy, therefore, if an inhabited territory was terra nullius for the purpose of acquisition of sovereignty, it was assumed that there could be no sufficiently organised system of native law and tenure to admit of recognition by the common law. In such circumstances, since the indigenous inhabitants and their occupancy of land were ignored when considering title to land in the settled colony, the Crown’s sovereignty over the territory was equated with Crown ownership of the lands therein because there was ‘no other proprietor of such lands’.[45] - Source: Internet
• The Rangelands are also economically important. Annual revenue generated through mining (in excess of $12 billion), tourism (greater than $2 billion) and pastoralism and agriculture combined ($2.4 billion in 2001) contribute significantly to Australia’s economy. - Source: Internet
• Although contemporary law accepted that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies, Brennan J considered that the theory advanced to support the introduction of the common law could be abandoned. Because the present understanding and appreciation of the facts[110] ‘do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England,’[111] Brennan J found that there was no warrant for contemporary law to continue to apply English legal propositions which were the product of that theory.[112] - Source: Internet
• Indeed, it will be seen in Part II, that common law recognition of native title is only possible in the post-Mabo Australian real property law context because the Mabo High Court rejected the common law concept of ‘desert and uncultivated’[90] territory for the purpose of determining the law which was to govern Australia on colonisation. In this way, the High Court identified Australia as a new class of settled colony at common law: a settled yet inhabited colony. Crucially, since there was no rule relating to the law that applied to a settled territory which was not uninhabited, the High Court had to prescribe a doctrine relating to the law to be applied in such a colony. - Source: Internet
• [59] The King v Steel (1834) 1 Legge 65, 68-69 (Forbes CJ); Hatfield v Alford (1846) 1 Legge 330, 336 (Stephen CJ); 345 (Dickinson J); Attorney-General v Brown (1847) 1 Legge 312, 316 (Stephen CJ delivering the judgment of the Court); Doe d Wilson v Terry (1849) 1 Legge 505, 508-509 (Stephen CJ); Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 428 (Barton CJ); Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71 (approving Stephen CJ’s treatment of the matter in Brown). The implications of the Mabo decision for both of these sources of the Crown’s title are examined by the author in her doctoral thesis, above n 8, Chapter 4. Occupancy as the basis of the Crown’s title to land is specifically dealt with in Chapter 7. - Source: Internet
• The Court’s rejection of the conventional approach endorsing the ‘desert and uncultivated’ doctrine was, substantially, on three grounds. In addition to the fact that its analogue in international law no longer commanded general support,[98] the factual premise underpinning the colonial reception of the common law of England was not only false,[99] but also manifestly unjust.[100] As Brennan J’s reasons were adopted by Mason CJ and McHugh J, his leading judgment represents a fundamental restatement of the common law as it applies in Australia.[101] - Source: Internet

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