1992

HCA

Mabo v Queensland (2) High Court of Astralia 175 CLR 1

Issues concerning the continuing existence of native title and associated rights to land in Australia. No acts of cession or conquest had occurred on the particular island (Murray island) in dispute as they had been annexed by the application of common law and statute by the state of Queensland in the federation of Australia. The court decided 6/1 the native title did continue to exist in these circumstances [This decision established that Murray Islanders' and other natives' title to land had not been extinguished by European settlement in the 18th century]

Brennan: IL recognised conquest, cession and occupation of territory that was res nullius as three effective ways of acquiring sovereignty… discovery confirmed by occupation provided that indigenous inhabitants were not organised in a society that was united permanently for political action, there was applied the theory of terra nullius…the theory of terra nullius has been critically examined by the ICJ in AO Western Sahara…whatever the justification advanced in earlier days for refusing to recognise the rights and interest in lands (to occupy their traditional lands) of the indigenous inhabitants of settled colonies, an unjust and discriminatory theory doctrine of this kind can no longer be accepted