Evidence tailored to fit an argument

What difference does it make that the natural law tradition (including the 20th century concept of terra nullius) was used both to justify and to oppose colonial dispossession? One of the central questions discussed by historians internationally for the past 30 years is the degree to which Western political institutions, or liberalism, were implicated in the expansion of Europe and the consequent miseries of slavery and the dispossession of countless colonised peoples.

Overwhelming evidence has been produced that demonstrates that central figures in the development of Western understandings of liberty, such as John Locke and John Stuart Mill, were deeply involved in the business of empire and, what is more, used that involvement to develop their understanding of freedom. In consequence, there are many within this debate who regard Western political institutions as irredeemable in the face of the challenges posed by decolonisation.

If, however, we appreciate that there was a Western political tradition that defended the rights of colonised peoples and, moreover, saw the freedom of those peoples as inherently linked to the freedom of the coloniser, it becomes possible to think about reconciling Indigenous rights and Western democracy (which would seem a pragmatic outcome, at the least, given that liberalism does not seem likely to collapse in the near future).

It is in this context that the Mabo judgment must be understood. 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 valourise.