d was available for occupation and acquisition Does that constitute a fresh point of departure in the acquisition of title to land?
In other words, does a modern legal system recognize that the people who inhabited those lands during the period prior to the arrival of the European settlers did not enjoy any kind of security of tenure in respect of that land They had no title that was capable of recognition by law and the European settlers were in a position to move in and to take that land as though it belonged to them by virtue of conquest and acquisition.
In what is perhaps one of the most striking judicial developments in Australia during the last decade, the majority of the High Court held that this was not a permissible construction of law because the aboriginal people did have tenure in respect of their land which was fully recognised by the contemporary legal system. Consequently the Western settlers did not acquire good title in respect of some of those lands. Now this has become a very volatile political problem in Australia at the present time Prime Minister John Keating is struggling to give expression to some of the practical implications of that judgment in the teeth of very vigorous opposition
There has been a great deal of agitation in Australia on these lines Does this mean that the white settlers can be dispossessed from some of their lands? Will there be confusion with regard to title to land as a consequence of the recognition of the rights of aboriginal people? Can the whites be thrown out of their lands in view of the decision that was handed down by the High Court of Australia? Now some of these issues have arisen but the incumbent government of Australia has had the courage and the fortitude to uphold some of the principles embodied in this decision pronounced by the High Court of Australia.
There has been similar developments which are reflected in pronouncements by international tribunals An example is the judgment by Justice Weeramanthry, a Sri Lankan who now sits on the International Court of Justice in Nauru arbitration Nauru is a small Pacific island and the people of that country sought legal redress They claimed compensation from an international tribunal for the massive mismanagement of their resources and the actions of colonial powers in exploiting the natural resources of that country to the detriment of the indigenous population Nauru. It was established that large quantities of phosphate had been removed from Nauru.
The people of the country had been deprived of their natural wealth and it was held that they were entitled to substantial compensation by way of legal redress for the wrongs that had been inflicted upon them. So those developments have occurred both at the national level and at the international level.
Now let us consider some of the rights that are important to indigenous people and the ways in which these have been recognised by contemporary legal systems. It is important to recognise here that values and attitudes vary. We should not assume that our approach is the only possible approach, that nothing else is rational or logical.
About five years ago, I gave a series of lectures in the University of Papua New Guinea in Port Moresby, and in the course of my visit to Papua New Guinea I learnt some very interesting things about the legal system of Papua New Guinea with particular reference to their attitudes to land tenure.
In Papua New Guinea, of course, there is a substantial aboriginal population and they are very sensitive to the rights of indigenous people. The cornerstone of their system of land tenure is collective ownership. Land is not owned by individuals. It belongs to a tribe or to a community and it is not merely a matter of moral obligation but a matter of mandatory and enforceable obligation, that the more vulnerable, the more disadvantaged members of the tribe are entitled to be supported by the more affluent people belonging to that tribe.
There is the concept, there is the notion that land is held in trust. Land is not something that you own absolutely. 