Mabo and Love Case Analysis- Based on the highly important cases of Mabo v Queensland and Love v Commonwealth. PDF

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Mabo and Love Case Analysis- Based on the highly important cases of Mabo v Queensland and Love v Commonwealth. Love v Commonwealth; Thoms v Commonwealth is a High Court of Australia case that held that Aboriginal Australians could not be classified as aliens under section 51(xix) of the Australian C...

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Mabo •

It may be assumed that on 1 August 1879 the Meriam people knew nothing of the events in Westminster and in Brisbane that effected the annexation of the Murray Islands and their incorporation into Queensland and that, had the Meriam people been told of the Proclamation made in Brisbane on 21 July 1879, they would not have appreciated its significance.

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The legal consequences of these events are in issue in this case. Oversimplified, the chief question in this case is whether these transactions had the effect on 1 August 1879 of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands.

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the circumstances which might be thought to differentiate the Murray Islands from other parts of Australia CANNOT be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands.

Such a ground of distinction discriminates on the basis of race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown's demesne and no right or interest in any land in the territory could thereafter be possessed by any other person unless granted by the Crown. •

The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination.

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According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live.

Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. •

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.

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Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies.

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It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. Although this Court is free to depart

from English precedent which was earlier followed as stating the common law of this country it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own. •

[29 CONT] The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.

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If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an

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"The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state."

The acquisition of sovereignty This principle…precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown's Dominions. •

The Murray Islands were annexed by an exercise of the prerogative evidenced by the Letters Patent; a mode of acquisition recognized by the common law as a valid means of acquiring sovereignty OVER foreign territory.

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The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts.

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By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.

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International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant

TERRA NULLIUS •

doctrines relating to acquisition of territory that was terra nullius.

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recognized the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest

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Various justifications for the acquisition of sovereignty over the territory of "backward peoples" were advanced.

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Another justification for the application of the theory of terra nullius to inhabited territory… was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants

The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or "settlement", to use the term of the common law). •

As the British acquisition of sovereignty over the Colony of New South Wales was regarded as dependent upon the settlement of territory that was terra nullius consequent on discovery…and as the law of New South Wales is the source of the law applicable to the Murray Islands, we must next examine the basis on which the common law was received as the law of the Colony of New South Wales.

The basis of the theory of universal and absolute Crown ownership •

When the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts.

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When it was sought to apply Lord Watson's assumption in Cooper v. Stuart that the colony of New South Wales was "without settled inhabitants or settled law" to Aboriginal society in the Northern Territory, the assumption proved false…In Milirrpum v. Nabalco Pty. Ltd

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BLACKBURN J …Faced with a contradiction between the authority of the Privy Council and the evidence, his Honour held that the class to which a colony belonged was a question of law, not of fact: "Whether or not the Australian aboriginals living in any part of New South Wales had in 1788 a system of law which was beyond the powers of the settlers at that time to perceive or comprehend, it is beyond the power of this Court to decide otherwise than that New South Wales came into the category of a settled or occupied colony." •

The facts as we know them today do not fit the "absence of law" or "barbarian" theory underpinning the colonial reception of the common law of England.

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That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory.

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It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.

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Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land

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As the indigenous inhabitants of a settled colony were regarded as "low in the scale of social organization", they and their occupancy of colonial land were ignored in considering the title to land in a settled colony.

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The theory that the indigenous inhabitants of a "settled" colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs.

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As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case.

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