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TERRA nullius is no legal fiction, but the now famous doctrine played only a minor role in the High Court's decision in the 1992 Mabo case, former chief justice Anthony Mason said yesterday.
In a rare interview for such a senior legal figure, Sir Anthony set aside the normal judicial reluctance to discuss the court's decisions in a stinging response to historian Michael Connor's recent attack on the doctrine of terra nullius.
Speaking at length about the Mabo case, in which the High Court rejected by a 6-1 ruling the argument that the indigenous people of Australia had no possessory interests in their traditional lands, Sir Anthony said the decision was based primarily on common law rather than international law.
In his book The Invention of Terra Nullius, Mr Connor argues that...