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By Christine Fletcher

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Terra nullius means that nobody has title to the land. This concept was not unique to this country, Australia, as it is now known. It applied in England on the common land, or community land, where there were many peasant cultivators. They did not own the land in the eyes of the Crown but, from the point of view of native title, they had a customary right to be there. Members of the original establishment who sat in parliament passed Enclosure Acts which resulted in a form of confiscation of that common land.

The imperial government eventually came to appreciate the truth about that assertion and, between 1848 and 1855, developed a policy which allowed Aborigines to maintain their right to occupy and take their living from the land held under pastoral leases which were not to extinguish native title. That was an implicit contract: when is that contract between the imperial government and the Aborigines going to be honoured by existing governments? Will native title be preserved and protected on the vast areas held under pastoral lease as the colonial office intended?

Australians must never forget that Australia was Aboriginal land and still is Aboriginal land. A treaty is the appropriate mechanism for such negotiations. Naturally, such a treaty must contain the basic principles for discussions and conclusion within the framework of the Mabo High Court decision -now and in the future. On 3 June 1992, the High Court made the great leap forward in recognising that Australia and the Torres Strait Islands were not empty terra nullius before the British invasion of 1788.

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