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Hello there. Thanks for your work on this article, which has improved it in a number of respects. However, I have restored the references to the doctrine of terra nullius. There is no doubt that the court rejected the doctrine as applicable to NSW at the time of British settlement. Please see the Mabo Case per Brennan (Mason and McHugh agreeing) at pars. 41, 42, 46 and 63; and per Deane and Gaudron at pars. 55 and 56. (That is, a majority of 5 explicitly rejected terra nullius.) See also Brennan's summary of the case here https://staging.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_canada.htm. Happy to discuss. Aemilius Adolphin (talk) 23:42, 2 December 2022 (UTC)Reply[reply]

I think there needs to be a paragraph or something on Terra Nullius, because I think the justices use the term in different ways. Deane and Gaudron JJ use it as meaning "unoccupied or uninhabited for the purposes of the law" (at 103), but doesn't describe it as a larger legal doctrine. Brennan J rejects the "enlarged notion of terra nullius" rejecting Indigenous land rights based on the idea that Indigenous peoples are "too low on the social scale". Then there's its use as a principle in international law (not domestic law).

The text book I've been using to try and update the page says "Mabo (No 2) was hailed by the media as the rejection of the concept of terra nullius , and certainly Brennan J and Deane and Gaudron JJ 26 suggested such a conclusion ... In the result, the High Court rejected neither the concept of terra nullius nor the conclusion that Australia was a territory acquired by settlement rather than conquest. The court took aim at a ‘concept of straw’ that lacked relevance and substance in the context of native title. The real question before the court, and the question the court decided, was whether or not native title was part of the common law of a settled territory such as Australia. Every other relevant jurisdiction held that it was, and the High Court determined that Australia was no different. Whether or not a region was terra nullius or ‘settled’ was never considered to be a bar to native title in Australia or elsewhere." (Native Title in Australia, Richard Bartlett, pp 25-26, ISBN 0409350923)

My understanding from this is that the court didn't reject the idea of terra nullius as a international doctrine, but terra nullius as a defence that Indigenous peoples had no pre-existing land rights domestically. The fact that the head note doesn't mention something like 'the doctrine of terra nullius does not apply to Australia', also seems to suggests that this wasn't 'rejected' by the court.

I am not an expert however and this is just my understanding from one textbook, so possible I am misunderstanding. Safes007 (talk) 14:47, 3 December 2022 (UTC)Reply[reply]

Thanks for that. I agree that we need a sentence or two on what terra nullius is, and I also agree that there is a lot of media and public confusion about the meaning of the term. However, I think the point Barlett is making is that the HCA didn't reject the concept of terra nullius per se, but rejected the idea that Australia was terra nullius at the time of British settlement. The problem is, as Bartlett points out, that Brennan, Deane and Gaudron do explicitly say in their judgments that the concept of terra nullius is to be rejected. And Brennan in his later speech in Canada reiterates that Mabo 2 rejected the concept of terra nullius. What the heck do they mean by this? After all, terra nullius still exists as a concept of international law, and the HCA can't simply abolish it. Another problem is that the concept of terra nullius seems to have evolved several meanings:

1) Terra nullius in international law. (A territory not under the sovereignty of a state.)

2) The extended concept of terra nullius. (A territory inhabited by indigenous peoples who don't have a system of laws and property recognised by colonising powers).

3) The English common law doctrine of "desert and uncultivated lands" which may be peacefully settled by the British.

I might have a think about it and see if I can come up with a form of words which we can put into all the articles which mention terra nullius. If you have the time I wil run the words past you and see what you think. Aemilius Adolphin (talk) 02:38, 4 December 2022 (UTC)Reply[reply]

This seems to cover some of the confusion of the meaning of terra nullius, while also making a larger argument about the social context of the decision http://classic.austlii.edu.au/au/journals/SydLawRw/1996/1.html. There are some other sources I'll be able to access in the next week too in the library, so I'll try to synthesise those. If you turn on your ability to receive messages from other users, I can send you the full page from Bartlett about terra nullius too if you think that would be helpful. Safes007 (talk) 07:10, 4 December 2022 (UTC)Reply[reply]

Thanks to the link to the Ritter article, which I haven't previously read, but which I've seen referenced in other articles. I think it does clarify the different meanings of terra nullius, but I don't think his foucauldian analysis helps in understanding the background for the Mabo decision. I found this Stuart Banner article more useful: https://www.jstor.org/stable/30042845. Yes, please send the page from Bartlett. I have enable emails from my wikipedia account. Thanks. Aemilius Adolphin (talk) 02:48, 5 December 2022 (UTC)Reply[reply]

I found it difficult to draft some concise words which captured the different approaches to terra nullius expressed in the Mabo 2 judgments. I have tried to keep it general to avoid bogging the article down in unnecessary detail. Any suggested additions or changes would be welcome. I suggest this be added as a sub-heading under the judgment heading.

"Various members of the court discussed the international law doctrine of terra nullius (no one's land), meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation^[1][2]. The court also discussed the analogous common law doctrine that "desert and uncultivated land", which includes land "without settled inhabitants or settled law", can be acquired by Britain by settlement, and that the laws of England are transmitted at settlement.^[3] A majority of the court rejected the notion that the doctrine of terra nullius precluded the common law recognition of traditional Indigenous rights and interests in land at the time of the British settlement of New South Wales.^[4]" Aemilius Adolphin (talk) 08:51, 7 December 2022 (UTC)Reply[reply]

Sounds good, you should add that. I haven't had time to look up more sources, so if I find anything else I'll mention it on the talk page or just add it directly. Safes007 (talk) 09:10, 7 December 2022 (UTC)Reply[reply]

On 14 October 2023, In the news was updated with an item that involved the article 2023 Australian Indigenous Voice referendum, which you updated. If you know of another recently created or updated article suitable for inclusion in ITN, please suggest it on the candidates page. Stephen 22:01, 14 October 2023 (UTC)Reply[reply]

Howdy. Seeing as you've changed the infobox at Australian Government (a change I'm not disputing), will you be making the same changes to the infoboxes in the government pages of the Australian states? Get'em all consistent. GoodDay (talk) 00:36, 27 November 2023 (UTC)Reply[reply]

I plan to, but any assistance would be appreciated. Safes007 (talk) 00:39, 27 November 2023 (UTC)Reply[reply]

I think I'll let you handle it. At the moment I'm considering doing the same changes at Government of Canada & the ten provincial government pages. I'm seeking a consensus for it at WP:CANADA, as I would like to see the UK, AUS, CAN & NZ brought into consistency. GoodDay (talk) 00:45, 27 November 2023 (UTC)Reply[reply]

All good. Safes007 (talk) 00:54, 27 November 2023 (UTC)Reply[reply]

Took me awhile, but I completed adopting the "government executive" format, at the Australian state government pages. Also adopted the format to the infobox at the Canadian government page & the infoboxes at the Canadian provincial government pages. GoodDay (talk) 23:13, 17 January 2024 (UTC)Reply[reply]

Looks good. Safes007 (talk) 00:17, 18 January 2024 (UTC)Reply[reply]

I had to undo the changes, three editors have objected on the basis I've did them wrong. One of the objectors, doesn't seem willing to talk about it. GoodDay (talk) 01:36, 19 January 2024 (UTC)Reply[reply]

Which pages? Safes007 (talk) 01:38, 19 January 2024 (UTC)Reply[reply]

1) Victoria State Government

2) Government of South Australia

3) Tasmanian Government

4) Queensland Government

5) Government of Western Australia

6) Government of New South Wales.

GoodDay (talk) 01:55, 19 January 2024 (UTC)Reply[reply]

Thanks, I see your notification as well Safes007 (talk) 02:02, 19 January 2024 (UTC)Reply[reply]

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Hello

I cut some of your added material because it reads as if you are advocating one side of a dispute by giving far too much weight to one side and using non-neutral language (eg Connor "argues" but Mason "explains"). A greater concern is the significance you place on this particular exchange given that there were hundreds of articles about the decision and terra nullius by eminent scholars in legal, political and historical journals. If you are interested in expanding this I would suggest a separate section on Controversy. If you are interested in the debate over Terra Nullius in Australia perhaps a separate article would be required to do it justice. Happy to discuss. Aemilius Adolphin (talk) 00:58, 4 December 2023 (UTC)Reply[reply]

I placed greater significance on this article as it is Justice Mason himself explaining what the focus and reasoning of the judgment is, which I think is quite significant as I can't think of other High Court judges explaining the court's reasoning after a final judgment. I also thought it was a good idea to provide detail because the article is paywalled and inaccessible otherwise. Also, I wouldn't characterise terra nullius as a minor point as I think the popular understanding of Mabo puts terra nullius at the centre of the decision (e.g. AIATSIS explainer, ABC explainer and Conversation explainer) and because of all of the misinformation that arose in the Voice debate and in the past that suggested native title would cause people to lose their homes. That misunderstanding I think is easier to get to if you think Mabo is about the overturning of broad conceptions of sovereignty or some fundamental assumption that the British made rather than merely being about the recognition of pre-colonial land interests where they had not yet been interferred with.

Would you be happy if I added the section back and changed some of the language (e.g. explained vs argued) to be more neutral and/or edited it to be shorter? At the end of the day I don't really mind the changes you made, but would like to add a bit more back. Safes007 (talk) 08:29, 4 December 2023 (UTC)Reply[reply]

Just to clarify and to express myself more clearly, I agree that the minor debate with a random author saying the decision is wrong isn't that important. The thing I think is relevant is what Mason said to explain the judgment; I just mentioned the book to put his remarks in context. Safes007 (talk) 01:13, 5 December 2023 (UTC)Reply[reply]

I see your point. On relection, it might be better then to cut the sentence: "Responding to these criticisms, Mason explained that the crux of the decision was the recognition of property rights under common law and that terra nullius, sovereignty and international law were not the main focus of the court." And instead start with: 'Responding to these criticisms, Mason stated, "what the British thought about its international law grounds for establishing sovereignty over Australia, for annexing Australia, is beside the point" with the decision actually concerned with answering the question, "does the common law (as applied in the Australian colonies) exclude altogether the rights of the indigenous people so that forever the rights they formerly had are excluded?"'

That is the crux of the matter. Aemilius Adolphin (talk) 22:10, 5 December 2023 (UTC)Reply[reply]

Sounds good. Safes007 (talk) 00:46, 6 December 2023 (UTC)Reply[reply]

I'm enjoying your contributions. I like the way you picked up on the State Governors describing themselves as local heads of state. It used to be just Queensland claiming the monarch was the state's head of state but for some reason South Australia changed its position a few months back.

I think a lot of people are wedded to the literal translation of terra nullius as nobody's land, and imagining it as meaning there was nobody there. A simplistic but popular view but as Cook and every other explorer described the local residents it doesn't stack up.

I'm not sure why Infosheet 20 was linked to the archived version. It seems to be live. --Pete (talk) 20:26, 15 January 2024 (UTC)Reply[reply]

See RFC

Let's keep in mind, what the governor-general & the state governors may think they are? doesn't make them so. They may consider themselves "Kermit the Frog", bu that doesn't make them "Kermit the Frog". GoodDay (talk) 21:09, 15 January 2024 (UTC)Reply[reply]

Ah. Good to see that my pet wikistalker is still active. I'm interested in facts, not opinions, on this matter. Wikipedia is not yet in the position of being able to decide the identity of a nation's head of state, but I know Jimbo is working on this.

The best that can be said, lacking any definitive legal definition, is that opinion is divided. Over the past century or so Australia has steadily moved away from the monarchy toward indigenous power structures as various conventions, instructions, laws (and interpretations) have changed, mostly without any change in the actual words of the Constitution. Read that document and you would be forgiven for thinking that the late Queen still runs the show.

But, as you never quote anything beyond the Constitution and your own interpretation, GD, it's hard to see you as providing much value to the ongoing public conversation. Personally I see it as something significant that various vice-regal websites refer to anybody other than the monarch as HoS. That wasn't there ten years ago. --Pete (talk) 23:17, 16 January 2024 (UTC)Reply[reply]

Please, do behave yourself. GoodDay (talk) 02:36, 17 January 2024 (UTC)Reply[reply]

I think this discussion should be on the article talk page (if anywhere) rather than on my talk page. Safes007 (talk) 02:41, 17 January 2024 (UTC)Reply[reply]

Just want to make sure you're not being mislead, Safes007. But, which article talk page would you suggest? GoodDay (talk) 02:44, 17 January 2024 (UTC)Reply[reply]

Also, let's remember there was an RFC concerning the state governors (in 2021), with the result being 'the monarch' is head of state, not the governors. GoodDay (talk) 21:13, 15 January 2024 (UTC)Reply[reply]

@TheSandDoctor: was the RFC closer. GoodDay (talk) 21:33, 15 January 2024 (UTC)Reply[reply]

Hello there

A have a problem with your rewrite of the recent edit about Terra Nullius by another editor. You wrote:

No consideration was given by the British to the rights of Indigenous inhabitants to the land and no treaty was ever signed.^[1][2]

The problem is that the British did consider the land rights of Indigenous people, for example in the charter of the South Australia company. True, there is no explicit reference to Aboriginal lands rights in the instructions to Phillip, but the land rights issue is something which was considered over 200 years, not just in 1788. Also, the statement that no treaty was signed with Indigenous peoples implies that one ought to have been signed or at least that this was the norm. These are all hotly debated issues, but the likelihood is that the local Aboriginal tribes would not have understood what a treaty was and that no one in these tribes had the authority to sign a treaty anyway. (See Flood (2019)). My view is that the issue is too complex to be given one sentence in a general article about Australia. If we are to include a sentence, it doesn't really belong in the section about the establishment of the colony. It could belong in the section about colonial expansion or somewhere about current political issues. Aemilius Adolphin (talk) 12:51, 26 January 2024 (UTC)Reply[reply]

I think something needs to be in the sentence about the establishment of the colony as it was the first interaction between Indigenous and British people.

Otherwise, the points you make are valid and I'll try and think of better way of phrasing it. Safes007 (talk) 00:23, 27 January 2024 (UTC)Reply[reply]

Thanks for that, but I have some further concerns/suggestions.

Treaties and Aboriginal legal rights

It is still unclear whether we are only talking about the period 1788-1808 (the period this section covers) or the entire colonial period. Also, the wording isn't accurate because the British did enter into formal agreements with some Aboriginal tribes and leaders (although they didn't sign any treaty) and they did have regard to possible legal rights they might have. Right up to 1837 there was a debate as to whether the Aboriginal tribes were British subjects and subject to English law. In a general article like this it is also important to make the wording as concise as possible without sacrificing accuracy. On reflection, I agree that it was significant that no treaties were signed, but the reasons for this are best left to the main articles on Australian history. So if we want to mention treaties and formal agreements and legal rights, I suggest we write:

"The British did not sign treaties with the Aboriginal peoples and did not recognise native title to their land until 1992.^[3][4]"

I also suggest we change "The colonists also brought diseases such as smallpox, contributing to a huge Indigenous population decline for 150 years^[5]" to "The colonists also brought new diseases which was the main cause of a large fall in the Aboriginal population over 150 years.^[6]" There is a debate about whether the colonists caused the smallpox epidemic or whether it originated with Makassar fishermen or the French. There's no doubt they brought diseases such as influenza, tuberculosis and syphilis though.

So I suggest we write: "The British did not sign treaties with the Aboriginal peoples and did not recognise native title to land until 1992.^[3][4] The colonists also brought new diseases which was the main cause of a large fall in the Aboriginal population over 150 years.^[6]" I also suggest we put this as the first sentence in the section on Colonial Expansion, because it is more relevant to the discussion of the expansion of European settlement throughout Australia.

Mabo and Indigenous sovereignty

Current

The [Mabo] judgment did not make any findings on sovereignty, finding that the topic was non-justiciable, however campaigns for the recognition of Australian Indigenous sovereignty continue to the present day.^[7]

Suggested change:

Delete. The cited source is an opinion piece by one Indigenous lawyer/activist. It does not mention Mabo and in any case the Mabo judgement and the campaign for Indigenous sovereignty are independent of each other. This reads like a political statement shoehorned into a general article about Australia. True, some Indigenous activists advocate Indigenous sovereignty but many others do not and it isn't clear why one current political campaign should be highlighted in the history section of the article. If we want to add a statement about historically significant Indigenous political campaigns I would have thought that land rights, reconciliation, a truth telling commission and some sort of voice to state and federal parliaments have had a higher profile than Indigenous sovereignty.

Republic referendum

Suggest we return to the previous wording which is accurate and more concise. I understand that you wish to emphasise that it was a particular proposal that was rejected and that there was a preceding debate about various models, but this is a summary article and the nuances are best explained in the main article on the 1999 referendum. Specifically, "failed to pass" are weasel words and it is always a specific proposal that is either accepted or rejected in a referendum. Aemilius Adolphin (talk) 22:59, 28 January 2024 (UTC)Reply[reply]

All those changes sound reasonable and an improvement. The only one I'm not sure about is the republic suggestion, as I still dislike the comparison with the Australia Act. How about: "In 1999, 55% of voters rejected abolishing the monarchy and becoming a republic in a constitutional referendum." I'm not married to this specific phrasing though, just as long as it doesn't appear that the referendum was the natural conclusion of the Aus acts. Safes007 (talk) 01:08, 29 January 2024 (UTC)Reply[reply]

I'm happy with that wording. Would you mind making the changes? Just so I don't inadvertently break the three revert rule. Aemilius Adolphin (talk) 02:01, 29 January 2024 (UTC)Reply[reply]

I have made these changes now. I changed some of the wording in parts, but just change it if you have issues. Safes007 (talk) 01:22, 30 January 2024 (UTC)Reply[reply]

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DanCherek (talk) 20:10, 26 January 2024 (UTC)Reply[reply]