USQ Law Society Law Review
Stuart Jeffery
Winter 2022
AUSTRALIA DAY, NATIVE TITLE , AND THE LEGACY OF TERRA NULLIUS STUART JEFFERY I
INTRODUCTION
In the last few years, opposition to Australia Day has entered mainstream politics, with concern mounting over the appropriateness of celebrating what is increasingly perceived as the invasion of Australia. Invasion Day protesters challenge the narrative of Australia’s colonisation by arguing that Australia was invaded by the British.1 Although there was no formal declaration of war, as was the norm amongst European countries, it has been claimed that the actions of the British constitute a declaration of war. The lack of a declaration of war stems from an inability or refusal to recognise Aboriginal and Torres Strait Islander societies as being civilised, as they were alien to what Europeans were used to. This led to the application of the doctrine of terra nullius, and the erosion of the societies and laws of Australia’s First Nations peoples. The history of this oppression, and the long road to discovery, can be best understood by considering the relationship between the Aboriginal and Torres Strait Islander peoples, their land, and how that was treated by the British and Australians. The treatment of Aboriginal and Torres Strait Islander peoples and their traditional laws and customs can be divided into four overlapping periods. The first of these periods was an era characterised by terra nullius, with British and Australian dominance over a land that was understood to have been an uncivilised wasteland before the arrival of British settlers. The pivotal point in this relationship was the landmark decision of the High Court of Australia in Mabo v Queensland (No 2),2 where Aboriginal land rights, known as native title, was recognised at common law. This heralded a short period of progressivism in the courts and Parliament. However, as the honeymoon phase after Mabo (No 2) subsided, a more reserved stance towards native title was dominant at the turn of the 21st century. Although the fourth and final period has been characterised by cautious optimism, due to the events of the third period, it has seen some successes on the issue of Aboriginal and Torres Strait Islander sovereignty, along with the dialogue about Australia Day. An understanding of this history, and the experiences of Aboriginal and Torres Strait Islander peoples, is necessary if Australia is to resolve the remaining problems and reconcile with the Aboriginal and Torres Strait Islander peoples.
Calla Wahlquist, ‘Thousands march in Invasion Day protests across Australia as dawn service held online, The Guardian (online), 26 January 2022 https://www.theguardian.com/australia-news/2022/jan/26/thousandsmarch-in-invasion-day-protests-across-australia-as-dawn-service-held-online. 1
2
(1992) 175 CLR 1 (‘Mabo (No 2)’).
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