Land Justice for Indigenous Australians: How can two systems of land ownership, use and tenure coexist with mutual respect based on parity and justice?

Abstract

Prior to Mabo (No. 2) the legal imaginary of terra nullius enabled the creation of a property system as if the pre-existing land rights and interests of the Aboriginal peoples simply did not exist. Ever since the High Court of Australia’s landmark decision in Mabo v State of Queensland (No. 2) (1992) and the Australian Parliament’s enactment of the Native Title Act 1993 (Cth) there are two legally recognised and distinct systems of land ownership, use and tenure operating in Australia: one older (over 60,000 years), the other much younger (only 230 years). While Mabo (No. 2) dismissed the convenient legal fiction of terra nullius as the basis for establishing Australia’s sovereignty, the decision set the ground rules for the legal recognition of the pre-existing land rights of the Aboriginal peoples of Australia, which the High Court termed native title rights and interests. Every positive determination of native title is therefore, an affirmation of Aboriginal law and custom and their sovereignty that was present prior to 1788. But Mabo (No. 2) gives rise to several ‘troubling disjuncts’, including the High Court’s ambivalence about fracturing the ‘skeletal principles’ of Australia’s sovereignty and the outright denial of Indigenous peoples’ sovereignty, the Crown’s monopoly power to extinguish native title rights and interests, and their inalienability. The Aboriginal peoples of Australia continue to assert they never ceded their sovereignty, their land was stolen from them without their consent, extinguishment is alien to their law and custom. As such, the Settler state’s assertion of ownership and sovereignty over land has no legitimacy under their law and custom. Aboriginal peoples’ persistent desire is that the two systems of law and custom relating to land be accorded an equal and non-discriminatory status. This is not mere historical or symbolic posturing. They want to use their property rights to engage in the economy on their terms and at their choosing. Their position is supported by various international human rights instruments. This PhD thesis explores the possibilities of supplanting the prevailing orthodoxy with a coherent policy and praxis framework for a mutually respectful coexistence between two culturally distinct forms of land ownership, use and tenure based on parity, mutual respect, reciprocity and justice.