The judgment sits in a 500-year tradition of the negative use of natural law arguments to defend indigenous rights. Rather than overturning the "doctrine of terra nullius", the judgment was keeping alive a tradition of using the tools of natural law and, in this instance, terra nullius, to argue against dispossession. By arguing that Australia had not been terra nullius at the time of colonial occupation the judges were acknowledging the natural law argument that Aboriginal property rights existed and continued to exist where a relationship to the land was maintained. This continuing relationship between Aboriginal people and land means that the history of colonial occupation is not simply a fait accompli, as historian John Hirst has recently argued, but a part of the present. Mabo is not good history, but it is clearly continuous with a Western judicial tradition that attempted to rescue liberty (or in this case liberal democracy) from the threat posed by the dispossession of colonised peoples.
This is what makes the attack on the Mabo judgment by several commentators on the Right particularly misguided. Out of an ignorance of the complex history of Western political thought, these opinion writers are in effect attacking the liberal tradition that they valorise.
[Tags: henryreynolds | terranullius | MichaelConnor | australia | history | historywars]