The conventional story is straightforward enough. It was like this: the Aboriginal people and Torres Strait Islanders became British subjects when the Crown progressively asserted sovereignty over the Australian continent in 1788, 1824, 1829 and 1879. However, the new Australian Commonwealth defined citizenship in such a way as to exclude indigenous Australians as well as non-European residents. This situation was remedied by a series of measures culminating in the constitutional referendum of 1967. Aboriginal people and Torres Strait Islanders are now citizens on an equal footing with everyone else. But underpinning this story are the assumptions about sovereignty, about nations and states and about the course of Australian history. In this chapter I will discuss these assumptions, all of which need rigorous examination.

As we have seen (in Chapter 11) until the Mabo judgment of 1992 Australian law rested upon the doctrine of terra nullius which depicted Aboriginal Australia as a place without people or settled law, to use the words of the Privy Council's Lord Watson in Cooper v. Stuart in 1889. Australia was a legal desert without land tenure, politics or sovereignty. The British Crown became the first sovereign and the first proprietor. From the moment of annexation there was ‘only one sovereign, namely the King of England, and only one law, namely English law’.

The High Court modified the story in the Mabo judgment over-turning terra nullius as it related to property but reserved it in respect of sovereignty.