Overturning terra nullius: the story of native title

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Mon 29 Apr 2019 - Mon 30 Dec 2019

Supreme Court Library Queensland's new exhibition
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When I knew I was moving to Australia I read two books. One was called "Terra Nullius" by Sven Lindqvist and the other was the "Fatal Shore" by Robert Hughes.

My rationale was simple. I have lived in many countries and my starting point is knowing and understanding the history of my host country. Six years later a small exhibition with some big messages has taken me even further in this quest.

It is called "" and for anyone unfamiliar with this term, it is a Latin term meaning 'land which doesn't belong to anyone' or so Captain Cook thought.

And that is the starting point of the exhibition.

When Captain Cook arrived in Australia, archival material suggests that he was instructed to negotiate with the indigenous tribes and find a way forward which would be fair to both parties. This sadly did not happen. The land was considered to be terra nullius and before too long the British crown had laid claim to the people and the land. Native title was a very different social construct from individual western style land ownership and at that time, it was not recognised as a rightful claim to the land.

With Captain Cook's declaration of sovereignty in 1770, all inhabitants of Australia became subject to the law of England and the native title rights of First Nation peoples to occupy, use and enjoy traditional lands were ignored.

Australia as we well know inherited the Westminster system of government albeit with some important differences to the UK, as Australia has a Constitution and is a federal system, akin to the American system. What some people perhaps amusingly refer to as Washminster! A bit of both.

Law is made by Parliament but the importance of Common law is that it is not static and can be changed not just by Parliamentarians but also by important judgments and this exhibition is a testament to two of them.

Indigenous groups were not only dispossessed of their land, but they were also unable to lay any claim or proper legal foundation to their rights as they could not prove continual usage. This was a sorry and sad state of affairs for them, their children and all their forefathers. Until the case of Mabo vs Queensland (No. 2) [1992] HCA 23. This case, which was brought by five Torres Strait islanders including Eddie Mabo, challenged the premise of terra nullius and the fiction on which indigenous people had been deprived of land rights. The High Court of Australia recognised the Meriam people's uninterrupted rights to land and overturned the doctrine of terra nullius and the judgment delivered in that case recognised the injustice that had been perpetrated on the indigenous people all those years ago. By overturning terra nullius, it gave credence to the concept both legally and morally of native title and this became law in the so called Native Title Act of 1993.

The result has been far-reaching for all First Nation peoples who could finally lay claim to their land. A further case Wik Peoples v Queensland [1996] HCA 40 also came along to claim native title on pastoral land and it was decided that the two sets of rights could co-exist.

Why is this important to us? Because it corrects an injustice that was made many years ago, where terra nullius was the reason given to deny native title. Now, these communal rights and customs over the land are acknowledged.

A judgment delivered this February has extended the rights of First Nation peoples over water. It has established the rights of indigenous groups to claim successfully over water and fisheries rights in Northern Territory and beyond.

The exhibition was put together by a dedicated team at the Supreme Court Library Queensland, with the help and support of a working group of indigenous academics and lawyers who gave valuable insight into the cases and their significance.

There is a great timeline with memorable photos, some of which are iconic, of the changes brought about by these cases.



There are persons who have a place and say in these matters, who at the press of a button, give their point of view. There is an interactive quiz. Posters explain the matter in simple and straightforward language, so everyone can take something away from this whether it be Year 11 and 12 students, school parties or families familiarising themselves with the wonderful Supreme Court building and its free exhibitions. This is a very special one and it will be on from now until the end of the year.

The exhibition is now open in Sir Harry Gibbs Legal Heritage Centre, ground floor, QEII Courts of Law.

Open weekdays, 8.30am to 4.30pm—entry is free.

Free tours available for community and education groups—

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!date 29/04/2019 -- 30/12/2019
%wnbrisbane