It's approaching three decades since Australia's HighCourt recognised the continuation of Aboriginal andTorres Strait Islander people's rights of ownershipand free enjoyment of their ancestral lands. Priorto 1992, land laws enacted by the British parliamentand subsequent Australian legislatures were groundedin the presumption that the British Crown acquiredsovereignty over the continent of Australia and itscoastal islands by occupation (or settlement) ofterra nullius (landwithout existing owners). This is not to say thatBritish and Australian governments ignored theexistence of Aboriginal and Torres Strait Islanderpeoples. On the contrary, they acknowledged thelongevity of Indigenous occupation, but they heldthat Aboriginal and Torres Strait Islander peoplesdid not have forms of social organisation thatenabled the recognition of legal title to land.

By the 1970s, the doctrine of terra nullius stood at odds with whatsome non-Indigenous Australians now recognised asthe richness and complexity of Indigenous life ways,social institutions and connections to land. Thischange of outlook is reflected in the actions ofJustice Blackburn, in the aftermath of his ruling inthe 1971 Gove land rights case, the first litigationon native title in Australia. Legally, Blackburn hadno option in this case but to dismiss a claim by theYolngu people that they had retained rights to landon the Gove Peninsula in Arnhem Land. But heregarded the continuing blanket denial of landrights as morally unacceptable. Blackburn prepared afive-page paper for federal government ministers andbureaucrats in which he argued that, in his personalopinion, it was desirable that ‘a system ofaboriginal title’ be established, ‘integrated withinthe framework of Australian law, and providingmachinery for its own practical application anddevelopment’ (qtd. in Brennan 2015, 139).Blackburn's solution was jurisprudentiallyconservative. He sought the reform of existing landtenure laws so as to enable Australia's federal andstate governments to issue leases of areas of Crownland to Indigenous representative organisations. Hedid not believe that communities should be grantedfreehold title to their ancestral country. Even so,Blackburn's call to action was reflective of growingconcern in mainstream Australia that IndigenousAustralians gain rights of ownership and enjoymentof their ancestral lands.