Renovating the Orthodox Theory of Australian Territorial Sovereignty

Mabo v Queensland [No 2] opened for re-examination the fundamental principles underpinning the colonial foundations of Australia, stating the native title of Indigenous peoples could survive the assertions of territorial sovereignty by Great Britain. Finding their territories were ‘sovereign’-less because they were ‘backward peoples’, an original, plenipotent sovereignty swept across the 3,000,000 square kilometres of ‘New South Wales’ on 7 February 1788, and across the balance of continental Australia in 1824 and 1829. This orthodox theory of sovereignty was unchallenged until Members of the Yorta Yorta Aboriginal Community v Victoria in 2002, where the High Court stressed the traditional laws and customs sourcing these native titles must be housed in pre-existing yet vital normative systems which likewise survived the assertions of sovereignty. Each native title determination thus acknowledges an Indigenous society whose laws and customs are sourced outside of the formal constitutional framework. The orthodox theory needs renovating in order to achieve a legally congruent and historically coherent framework.