678 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
other side of an unbridgeable gulf. The evidence shows a subtle and elaborate
system highly adapted to the country in which the people led their
lives, which provided a stable order of society and was remarkably free
from the vagaries of personal whim or influence. If ever a system could
be called “a government of laws, and not of men”, it is that shown in the
evidence before me.
….
I hold that I must recognize the system revealed by the evidence as a system
of law.55
Despite this, Blackburn J. made other evidentiary findings against the
plaintiffs’ laws, including that the plaintiffs’ claims were “not in the nature
of proprietary interests”, because their laws did not comprehend property
in the same way as his.56 He also felt bound by his understanding of English
common law, finding that it did not include a rule requiring the recognition
of “communal native title”; rather, “all titles, rights, and interests whatever
in land which existed … after the foundation of a settled colony in subjects
of the Crown were the direct consequence of some grant from the Crown”.57
This reasoning equates sovereignty over a territory with property rights
within a territory, a conflation—and, some would argue, an error—that surfaces
in some of the Australian and Canadian jurisprudence. In Mabo, however,
the High Court distinguished between sovereignty and property
rights, leaving British sovereignty untouched, but reordering property
rights within the common law. The Mabo court refused to follow “formidable”
previous case law,58 and Justice Brennan made space for Aboriginal
title “above” the Crown’s radical title (yet still recognized that ultimate title
as a result of Crown sovereignty):
… it is not a corollary of the Crown’s acquisition of a radical title to land
in an occupied territory that the Crown acquired absolute beneficial ownership
of that land to the exclusion of the indigenous inhabitants. If the
land were desert and uninhabited, truly a terra nullius, the Crown would
take an absolute beneficial title (an allodial title) to the land … : there
would be no other proprietor. But if the land were occupied by the indigenous
inhabitants and their rights and interests in the land are recognized
by the common law, the radical title which is acquired with the acquisition
of sovereignty cannot itself be taken to confer an absolute beneficial
title to the occupied land. Nor is it necessary to the structure of our legal
system to refuse recognition to the rights and interests in land of the
indigenous inhabitants. The doctrine of tenure applies to every Crown
grant of an interest in land, but not to rights and interests which do not
owe their existence to a Crown grant.
….
Once it is accepted that indigenous inhabitants in occupation of a territory
when sovereignty is acquired by the Crown are capable of enjoying
- whether in community, as a group or as individuals - proprietary inter-