Archaeologists and prehistorians have dated the presence of Aboriginal people in Australia back about 50,000 years. It has been estimated that between 300,000 and 750,000 Aboriginal people were living in Australian in 1788. Each group had spiritual and economic links with particular areas of land. These groups had well defined rules which regulated the relationships of people within each group and the ways in which neighbouring groups or strangers interacted. In 1971, Blackburn J decided that certain Aboriginal clans in the Gove Peninsula area of the Northern Territory had a legally recognisably system of law, a 'subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence.a government of laws, and not of men'.
British colonisation and sovereignty.
British claims of sovereignty were made over different parts of Australia between 1788 (or possibly 1770) and 1879. Formal possession, on behalf of the British Crown, of the whole of the eastern part of the continent and Tasmania was taken on 7 February 1788 when Captain Phillip's commission was read. In the legal theory of the formative years, the land known as Terra Australis or Terra Incognito was regarded as 'terra nullius' - a territory belonging to no one. According to that doctrine, the colony was 'desert and uncultivated', a term which includes 'territory in which live uncivilised inhabitants in a primitive state of society'. Courts proceeded on the basis that the colony was 'settled' rather than 'conquered' or 'ceded'. The legal consequence is that all English laws applicable to the colony were immediately in force upon its foundation. By contrast, the laws of a conquered or ceded colony remain in force until altered.
Before 1992 the courts generally accepted that the classification of the colony as 'settled' was a matter of law which was not to be questioned upon a reconsideration of the historical facts, although these facts have been found to be at variance with the legal doctrine that Australia was 'terra nullius'.
