… there is a fundamental point which goes to the heart of this debate that literally no one, to date, seems to have picked up on …
Native title can only exist if Australia was settled, not invaded.
– Excerpt from an opinion piece written by Sherry Sufi, chairman of the WA Liberal Party policy committee, published by Fairfax Media, January 20, 2018
Every January, the debate about the date of Australia’s national day intensifies.
The current date of Australia Day – January 26 – marks the anniversary of the 1788 arrival of Europeans in Australia. To some Australians, this date is known as Invasion Day, or Survival Day.
The Australian Greens party has renewed its campaign to change the date of Australia Day. Greens leader Richard di Natale has lent his voice to the argument that January 26 marks “the beginning of an invasion”.
In an opinion piece, WA Liberal Party policy committee chairman Sherry Sufi said Di Natale was “attempting to undermine native title by implying that Australia was invaded and conquered”.
Sufi argued that “native title can only exist if Australia was settled, not invaded”.
Let’s look at the law.
Checking the source
When asked for sources and comment to support his statement, Sherry Sufi provided this response:
Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are not statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own.
As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order. Land conquests through war of aggression were only criminalised after World War II.
This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil.
It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the Kellogg-Briand Pact (1928) are deemed lawful conquests.
So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.
Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.
You can read Sufi’s full response and references cited here.
Sherry Sufi’s claim that “native title can only exist if Australia was settled, not invaded” is incorrect.
Native title is the legal recognition of Aboriginal and Torres Strait Islander peoples’ property rights to Australian land that existed when the English took possession of the territory in 1788. Native title was recognised by the Australian High Court in the 1992 Mabo case.
Had Australia originally been deemed to be conquered – or “invaded” – rather than settled, native title would indeed have existed.
Under English law, if Aboriginal and Torres Strait Islander peoples were conquered, they would have retained their interests in land – or native title – under their own laws, until those laws were overturned by the English.
Responding to Sufi’s argument
As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited in his full response to The Conversation are correct.
However, Sufi’s response contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect.
As Sufi has cited from the 1992 Mabo decision, “the acquisition of property [native title] is chiefly the province of the common law”. Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered.
This is the missing link in his original argument, and why the claim is incorrect.
In his article, Sufi justified his claim, in part, on the grounds that “international law recognises all territories acquired through invasion and annexation by force, prior to World War II, as lawful conquests”.
Whether or not that statement in itself is accurate is a matter for an international law expert to determine.
Because even if this is now the status of international law, it concerns the basis of sovereignty in modern times. To the extent that the means of acquiring sovereignty is relevant to native title law, it is sovereignty in 1788 that is relevant.
The High Court of Australia in the 1992 Mabo decision found that an Australian court does not have the power to challenge the basis on which the English claimed sovereignty in 1788.
The status of Australian land law, including native title, is a different matter: it is determined under domestic law, not international law. Australian courts do have the power to alter domestic law, which is what the Court did in Mabo.
So Sufi’s statement about international law, whether correct or incorrect in itself, is not relevant to native title in Australia. The justification does not stand.
Let’s look at the relevant law.
Conquest or settlement?
To assess Sufi’s primary claim, we need to look at what happened when Europeans arrived in Australia in 1788, and at the 1992 Mabo case heard in the Australian High Court, which formed the basis of native title in Australia.
The Mabo case decision is the primary source document for this FactCheck.
In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory.
There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were:
- conquest – the acquisition of a territory by force,
- cession – an existing state transfers sovereignty over its territory to another state, or
- occupation – taking possession of a territory not under the control of an existing sovereign.
In his article, Sufi talks about the consequences of “invasion”. The international law described in Mabo refers to “conquest” rather than invasion. So that’s the term I’ll use in this FactCheck.
Fact or legal fiction?
Of those pathways to becoming sovereign over Australia, the English considered themselves to be ‘occupiers’.
The concept of ‘occupation’ relies on the land being ‘terra nullius’ – or belonging to no one. In its literal sense, this means there were no prior inhabitants in the territory.
Of course, that was not the case in Australia – Aboriginal and Torres Strait Islander peoples had been living in the country for at least 65,000 years before the First Fleet arrived.
But the arriving Europeans took the approach that Australia’s Indigenous peoples were “too low in the scale of social organisation to be acknowledged as possessing rights and interests in land”, and were deemed not to have laws, or to be sovereign over Australia.
This allowed for the application of what Justice Brennan described as an “enlarged notion of terra nullius”, and for the English to deem that they had occupied the land.
It’s important to note that in this case, terra nullius, and therefore occupation, is a ‘legal fiction’: an assertion of a state of affairs deemed by the law to be valid, even though it may not be factual.
Who owns the land?
Having established sovereignty, England needed to determine what law applied in the new colony – and in particular, what law applied to the ownership of land.
This was a question for English law, rather than international law.
Under English law, in territories that were conquered or ceded, the existing laws of the original inhabitants would continue to apply until they were overturned by the English.
Therefore, if Australia had been deemed to be conquered, or “invaded”, the existing laws of Aboriginal and Torres Strait Islander peoples, including laws about land ownership, would have continued to apply until the English repealed them.
However, for territory that had been occupied or settled – as was declared to be the case in Australia – English law would be imported, including English land law. Under that law, the Crown owned all land.
The Mabo decision
These concepts were challenged in the Mabo case in the Australian High Court in 1992.
In the Mabo decision, Justice Brennan stated that the concept of terra nullius ignored the reality of the existing inhabitants of the territory.
The Mabo decision found that the legal fiction that Australia was uninhabited could no longer stand. It acknowledged that Aboriginal and Torres Strait Islander peoples did have a recognised system of laws.
The Mabo decision did not change the international law position that Australia had been occupied. What the Court did do was create a new English law category for working out what law applied: the territory was settled, but inhabited.
Based on this new category, sovereignty and land ownership were separated. The Crown was no longer automatically the owner of all the land.
Instead, the original occupants of Australia – the Aboriginal and Torres Strait Islander peoples – remained the owners until the Crown extinguished their interests, or they were otherwise lost. This is native title.
So, what does that all mean for Sufi’s claim?
Sufi said “native title can only exist if Australia was settled, not invaded”.
In 1788 Australia was, under English law, deemed to be settled. In 1992, the Australian High Court deemed Australia to have been settled, but inhabited. Because of that decision, native title as we know it today does exist. Land law stopped being English land law, and became Australian land law.
Had Australia been deemed to be conquered (or “invaded”), the interests in the land – the native title – would also have existed. Aboriginal and Torres Strait Islander peoples would have continued to own the land until the Crown extinguished those interests.
Either way, whether Australia was deemed to be “invaded” or settled, Australian land law would recognise Indigenous interests in land – that is, it would recognise native title. – Kate Galloway
The verdict is clearly correct.
It is not the case that “native title can only exist if Australia was settled, not invaded”.
As this FactCheck points out, it is to the contrary. It has long been a rule of English law that in a colony acquired by conquest the former laws continue to apply until altered by the conqueror, and rights to land continue until they are extinguished.
Some elements of the Mabo decision have been contested by scholars. This is not one of them. It is very clear that native title could exist if Australia were characterised as conquered. – Leon Terrill
The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. Read more here.
Have you seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at email@example.com. Please include the statement you would like us to check, the date it was made, and a link if possible.
Kate Galloway, Associate Professor of Law