ABSTRACT

For the first 200 years of European settlement in Australia, governments and the courts refused to acknowledge Aboriginal traditional rights over lands. During that time, Australia had harboured two ‘societies’ that were separated by barriers of inequity and injustice, one with human and citizen rights and the other with none. Pastor Bill Hollingworth, in his address to the Council of Aboriginal Reconciliation, said: ‘Our moral and legal rights have been neglected.’2 It is not surprising then that Professor Garth Nettheim considered the High Court judgment in Mabo ‘to be one of the most fundamental ever to have been considered by the High Court – fundamental at least in the sense of going to the very foundation of the Australian nation’3 or that, as a consequence of that judgment, ‘[t]he legal and political position of Aboriginal and Torres Strait Islander people in relation to the non-Aboriginal Society must now be significantly different in a variety of ways’.4