groups were not recognised as being sovereign states;
traditional Aboriginal laws were not recognised, and
Aboriginal claims to ownership of their traditional lands were
disregarded. It is important to understand the legal basis of
white settlement in Australia since it has affected the whole
subsequent history of land rights in this country.

Some advocates for Aboriginal land rights base their
argument for these rights on the fact that the Aborigines were
the prior owners of Australia and still, in a moral sense, remain
the real owners, despite being unjustly dispossessed of their
lands by white settlers. This view, it goes without saying, has
never been accepted by any Australian government. The
standard legal justification for the first English settlers
annexing Australian land has been that, in effect, the various
groups of Aborigines did not 'own' the land in any real sense,
so that Australia could be seen as being an 'unoccupied
country' (terra nullius, to use the technical legal term). In this
view, the English colonists effectively settled Australia for
the first time and so had, according to international law, a
legal right to introduce the English system of law and to
annexe the land in the same way as the colonists of a desert
island might do.

Thus, according to this theory, the law of England (including
English property law) became the law of the Australian colony
on 26 January 1788, the day when Governor Phillip raised
the British flag at Sydney Cove. And a consequence of this
was that the Aboriginal people became subject to English
law and could not appeal, then or subsequently, to their own
law to justify their claims to ownership of their lands.

The 'settled colony' (colonisation of, as it were, unoccupied
country by settlement) principle may be contrasted with the
principle of colonisation by conquest or cession. If Australia
had in 1788 been a country with a large number of indigenous
inhabitants living in stable geographical groupings under a
recognisable system of law which gave them title to own the
land, in a sense akin to the English system of land tenure,
and if England had then conquered Australia by force of arms
and established English law and annexed the land, then one
could recognise the possibility of compensation to the original
inhabitants. Or again, if the English settlers had recognised
that they were dealing with people who had sovereignty over
and a legal title to their land, they could then have negotiated
with them to cede their land by treaty. This was in effect what
happened in New Zealand, where the Maori peoples ceded
their land under treaty to the British colonists.

-12-