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Part 1 · Territory and sovereignty

How a sovereign state acquires territory, what the common law did with that in Australia, and why native title sits where it does. The whole topic turns on keeping two questions apart: Crown sovereignty itself, which the courts will not touch, and its consequences under municipal law, which they will.

Ideas and cases at a glance

Authority	In a line
Mabo v Queensland (No 2) (1992)	Acquisition of territory is an act of state; enlarged terra nullius rejected for the common law; radical title and surviving native title
Western Sahara Advisory Opinion (1975)	Territories inhabited by peoples with social and political organisation were not terra nullius
Coe v Commonwealth	An Aboriginal nation exercising sovereignty is "quite impossible in law to maintain": the challenge is non-justiciable
Milirrpum	Yolngu law described as "a government of laws, and not of men": the factual premise of terra nullius was always false
Yorta Yorta	No parallel law-making system recognised: the door to Indigenous sovereignty "nailed ... even more emphatically shut" (Brennan and Davis)
Walker v NSW	Recognition of Indigenous law is quarantined to property, not criminal law
Brennan and Davis; Yoorrook Justice Commission; Klabbers	The critique: settled-colony doctrine intact, sovereignty never ceded, and international law's colonial history

Two questions, kept apart

Start with the move that organises everything else in this topic. The acquisition of territory by a sovereign state is an act of state which, in Brennan J's words in Mabo, "cannot be challenged, controlled or interfered with by the courts of that state". So Crown sovereignty itself is non-justiciable in a municipal court. The consequences of that sovereignty under domestic law are a different question, and they are justiciable. Native title lives in the second question. Every problem in this topic begins by deciding which of the two questions it is actually asking.

RULE. arrowThe acquisition of territory by a sovereign state is an act of state that cannot be challenged, controlled or interfered with by the courts of that state (Mabo, Brennan J). Sovereignty is non-justiciable; its consequences under municipal law are not.

RULE. compassCharacterise first: is the problem attacking Crown sovereignty itself, or a consequence of it such as native title? The first is closed (Coe); the second is open (Mabo). The mark-earning analysis cannot start until this orientation is made.

Trap. Mabo did not touch sovereignty. It rejected enlarged terra nullius for the purposes of the common law of property. A direct challenge to Crown sovereignty stays non-justiciable: in Coe the claim that an Aboriginal nation exercises sovereignty was held "quite impossible in law to maintain". Decide carefully which question a problem raises before you cite anything.

How international law said territory was acquired

International law recognised three modes of acquiring territory: conquest, cession, and occupation of territory that was terra nullius, land belonging to no one. Australia was treated as none of the first two. It was classified as "settled", and the classification worked only through an enlarged notion of terra nullius that extended to inhabited land whose people were deemed "too low in the scale of social organization" to count, in the language of In re Southern Rhodesia quoted in Mabo.

RULE. keyringThree modes of acquisition, each a separate key: conquest, cession, and occupation of terra nullius. Australia's settlement classification turned on the third key fitting, which required the enlarged doctrine that inhabited land could still be terra nullius.

The factual premise was always false, and the law knew it before Mabo said so. In Milirrpum, Yolngu law was described as "a government of laws, and not of men", yet the enlarged doctrine held. And international law had already repudiated it: the International Court of Justice in the Western Sahara Advisory Opinion (1975) held that territories inhabited by peoples with social and political organisation were not terra nullius, and that sovereignty over them was acquired by agreement, not occupation.

RULE. arrowTerritories inhabited by peoples with social and political organisation were not terra nullius; sovereignty over them was acquired by agreement, not occupation (Western Sahara Advisory Opinion, discussed in Mabo).

Trap. Two legal systems, one answer? International law (Western Sahara) and the common law (Mabo) both repudiate enlarged terra nullius, but they did so at different times and for different purposes. The marks are in tracing the interaction, not in collapsing the two systems into a single holding.

What Mabo did

The correction

Brennan J put the correction in terms of justice: "The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius". So the enlarged doctrine fell, for the purposes of the common law of property.

The limit

But the correction had a stated limit. The Court is "not free to adopt rules ... if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency". The skeleton of principle is the reason the judgment is shaped the way it is: it explains why Mabo rewrote property law and left sovereignty alone.

RULE. scalesThe skeleton of principle is a weighing rule: the correction of injustice in the common law goes only as far as it can without fracturing the law's shape and internal consistency (Mabo, Brennan J). State both pans, the injustice and the skeleton, whenever you explain the result.

The result

The result follows from the limit. Crown sovereignty was left undisturbed. On acquiring sovereignty the Crown took only radical title, a title consistent with the survival of pre-existing rights, rather than automatic full ownership of every parcel. And native title survived the acquisition of sovereignty and is recognised by the common law unless it has been validly extinguished.

RULE. twistNative title survived the Crown's acquisition of sovereignty and is recognised by the common law, unless it has been validly extinguished (Mabo). The twist is the unless: always ask whether a valid extinguishment has occurred before concluding the title stands.

The critique

The critics press on exactly the line the skeleton of principle drew. Brennan and Davis observe that the Constitution "makes no reference" to First Peoples, that Cooper v Stuart's "practically unoccupied" account of Australia "airbrushed away the harsh facts of dispossession", and that Mabo itself "left intact the doctrine that Australia was a 'settled' colony". The later cases narrowed the recognition further. Yorta Yorta, in their phrase, "nailed the door even more emphatically shut" by refusing to recognise a parallel law-making system, and Walker v NSW quarantined the recognition of Indigenous law to property, keeping it out of criminal law. They also record that it is "a widely held view amongst Aboriginal people ... that their societies never validly ceded sovereignty".

Two further voices sharpen the essay. The Yoorrook Justice Commission in Victoria has made formal truth-telling findings: sovereignty was never ceded, and genocide and dispossession occurred in Victoria, findings that lay foundations for the Statewide Treaty. And Klabbers reminds you that international law "has been closely connected with imperialism and colonialism": the doctrines of territory and sovereignty in this topic served acquisition by European powers. On the other side of the ledger, pluralist and shared-sovereignty conceptions are gaining traction, and Milirrpum's description of Yolngu law shows the factual premise of terra nullius was false from the start. The materials for a genuine argument, in both directions, are all here.

The essay that earns the marks

Attack plan. Four steps, in this order. 1. Identify which question the problem raises: sovereignty itself is non-justiciable, a consequence such as native title is justiciable. 2. Trace the terra nullius story through the three modes of acquisition, the enlarged doctrine, Western Sahara and Mabo. 3. State the result precisely: sovereignty undisturbed, radical title, native title unless validly extinguished. 4. Engage the critique and take a position, using Brennan and Davis, Yoorrook and Klabbers, and saying what would have to change for the recognition to go further.

RULE. staircaseCharacterisation before history, history before result, result before critique. An answer that opens with the injustice of terra nullius before separating the two questions has started halfway up the stairs and usually falls.

Trap. Moral force is not legal analysis. The injustice in this topic is real and the cases say so, but an essay earns its marks by showing exactly where the law placed its limit and why, then arguing about that limit. Separate the legal question from the moral one, then bring them back together deliberately.

Worked example

"Mabo rejected terra nullius but changed nothing about sovereignty." Discuss.

A Pass answer says. In Mabo the High Court rejected terra nullius and recognised native title, but Brennan J said the acquisition of territory is an act of state that courts cannot question, so Crown sovereignty remained. The statement is therefore mostly true. This is accurate, but it never explains why the line fell where it did, the skeleton of principle is missing, and the critique is absent, so the discussion cannot go anywhere.

An H1 answer says. The statement is true as doctrine and contestable as description. As doctrine: sovereignty is an act of state and non-justiciable (Mabo, Brennan J; Coe), so the rejection of enlarged terra nullius operated only within the common law of property, producing radical title and native title unless validly extinguished. The answer then explains the why: the skeleton of principle confined the correction of injustice to what the law's internal consistency could bear. As description, "changed nothing" undersells and oversells at once. It undersells because recognising that organised peoples were never terra nullius (Western Sahara; Milirrpum) destroys the justification for the settlement classification even while the classification stands, a point Brennan and Davis press. It oversells because Yorta Yorta and Walker confined the recognition further. The answer closes with a position on whether the common law could ever deliver more, or whether, as Yoorrook's findings and the treaty process suggest, the next move is political rather than judicial.

Critical pitfalls and counter-arguments

Thinking Mabo touched sovereignty. It rejected enlarged terra nullius for the common law of property. The challenge to sovereignty itself remains non-justiciable (Coe).
Merging the two legal systems. Western Sahara is international law in 1975; Mabo is the common law in 1992. Same repudiation, different systems, different purposes. Trace the interaction rather than citing them as one holding.
Forgetting the skeleton of principle. Without the limit, the result in Mabo looks arbitrary. With it, the shape of the judgment is explicable and criticisable, which is what the essay needs.
Overstating the recognition. Yorta Yorta refused a parallel law-making system and Walker kept Indigenous law out of the criminal sphere. Recognition is real but quarantined to property.
Dismissing the critique as politics. Yoorrook's findings and Brennan and Davis are on the reading list because they are arguments about what the law is and could be. Engage them on the merits.

Take it to the practice bank

This topic is examined as an essay, and it does not yet have a dedicated drill set of its own. The Principles of Public Law practice bank drills the adjacent topics in the subject, where the sovereignty and justiciability moves made here keep returning, each problem with a realistic Pass answer, an H1 model answer and the examiner's comments.

Practice prompts

Write the two-question paragraph from memory: sovereignty non-justiciable, consequences justiciable, with the Brennan J quote and Coe each deployed once and accurately.
Trace the terra nullius story in no more than 150 words: three modes, the enlarged doctrine and its "scale of social organization" language, Western Sahara, then Mabo. Precision at speed is the skill.
Draft the critique paragraph you would write against your own best defence of Mabo: settled colony intact, Yorta Yorta and Walker narrowing, sovereignty never ceded (Yoorrook). Then answer it without overclaiming for the common law.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.