ABSTRACT
In 1992 the High Court of Australia ruled in Mabo vs. State of Queensland (2) that ‘native title’ rights to land survived the British settlement of Australia. This is rightfully seen as a landmark case in Australian history. It not only brought Australian jurisprudence on these questions more into line with that of Canada, the United States and New Zealand (as well as contributing to the development of that jurisprudence), but also had a profound impact on public debate in Australia. In his lead decision, Chief Justice Brennan (as he then was), along with Justices Deane and Gaudron, emphasised the importance of rejecting the notion of terra nullius as a starting point for reconciling the common law with the fact of prior indigenous dominium. 1 Strictly speaking, however, the Court did not reject the concept in international law, since it did not question the sovereignty of Australia in any fundamental way. In fact, it accepted that Australia was a territory acquired by settlement at common law. 2 What it did do — and it was indeed tremendously important — was recognise, as courts in Canada, New Zealand and the United States had done, 3 that native title was in fact part of the common law.
