Michael Connor: Says Australia's High Court Blundered in Aboriginal Decision

TASMANIAN academic Michael Connor has called on the High Court to correct what he says are mistakes in its Mabo native title decision that tainted the foundations of Australia. Dr Connor yesterday accused the court of wrongly accepting that Britain settled Australia in the belief that it was an empty land -- or terra nullius. While the historian accepted that Aborigines had gradually been dispossessed, he said the foundation of Australia had not been based on the concept that Aborigines"were invisible"."The High Court has left us swinging (with the idea) that our sovereignty is based on this idea of terra nullius," he said."I'm not a constitutional lawyer, but I think it has got to be fixed." Leading native title lawyer Garth Nettheim, emeritus professor of law at the University of NSW, said that while British colonists did not arrive in Australia"spouting Latin phrases", the foundation of Australia had been accompanied by a mistake. That was"the failure to acknowledge that Aboriginal people had law and rights under that law". But Dr Connor said the Mabo decision had been based on a straw-man argument. Aboriginal native title had been recognised by the court in order to overturn terra nullius."It was creating native title out of nothing, really," he said."Native title had never been recognised ever before in common law. And getting rid of terra nullius allowed them to recognise native title under common law. It didn't exist."If terra nullius is wrong, we have to do something to put our sovereignty on the right track." Dr Connor said that while terra nullius was frequently understood to mean an empty land, it was actually an international legal concept that meant a land without sovereignty. He was speaking before yesterday's launch in Sydney of his book The Invention of Terra Nullius. Professor Nettheim said he was not sure why Dr Connor regarded the Mabo decision as wrong."Mabo proceeded on the broader proposition that British law recognised pre-existing relationships to the land, subject to it being overridden by the introduced law," he said.