Two High Court justices, however, had suggested that, in the absence of any decision which was binding on the Court, it could be argued that the lands were acquired by conquest.
No treaties have been signed between Aboriginal people and the Crown, in contrast to what has occured in other British colonies, such as New Zealand. In its 1992 decision in Mabo v QLD (No 2), the High Court rejected the doctrine that Australia was 'terra nullius', but held that Australia was a settled colony in which the common law recognised native title to land.
Before 1992, the generally accepted legal position was that, at the moment when the Crown acquired sovereignty over land in Australia, that land became the property of the Crown. Early New South Wales cases decided that there was no difference between the Crown's political sovereignty and the Crown's title to the soil, with power to make grants of land at the Crown's discretion. In Mabo v QLD (No 2), however, the High Court held that, on acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in part but did not become the universal and absolute beneficial owner of it, except in the case of those lands (if any) in relation to which no pre-existing native title interest existed.
Indigenous people subject to introduced law.
It was established fairly early in the colonial history of New South Wales that the laws introduced by the British colonists applied to Aboriginals as fully as to the non-Aboriginal colonists, although Aboriginals were not accorded full legal rights as citizens (such as the right to vote) until more recently. .
Although the indigenous inhabitants became subjects of the Crown when the British Crown acquired sovereignty over the particular part of Australia which they occupied, their native title to land survived the Crown's acquisition of the sovereignty and radical title, subject to extinguishment by a valid exercise of the sovereign power.
