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All legal systems of previously colonised countries have grappled with the idea of land rights for the original peoples of those countries and the claims of settlers or conquerors. Australia was an unusual case. It wasn't exactly conquered. Nor did the Indigenous peoples cede the land to the English settlers.
The only remaining option under international law at the time was for Australia to have been "discovered". But this meant ignoring the thousands of people who had "discovered" it tens of thousands of years earlier. Australia was declared "terra nullius" - land belonging to no one.
The consequence was that the British Crown acquired sovereignty and any native land rights were extinguished.
The fiction of terra nullius became more and more repugnant and eventually the High Court of Australia found a way through, in the case of Mabo v Queensland (No 2) in 1992. The Crown (now the Australian states) had legal title but Indigenous people who could show continuous occupation might have "beneficial" title, unless it had actually been extinguished.
In this extended episode we hear from Professor Kate Galloway, an expert in land law with long experience of native title matters, about the case of Eddie Mabo, one of the most important cases in Australian legal history.

For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au