The ratio of the case is very narrow. However given the previous record of the High Court in gradually extending areas of Commonwealth power (sometimes doing a sudden about turn, as in Cole v Whitfield (1988:360)) many of the critics who paint an exaggerated picture of the implications of the decision cannot be entirely faulted. The dicta can be seen as a springboard.
It is a reason for amazement that without any argument on the subject of original inhabitants (other than the Murray Islanders) the High Court chose to make comments and lay down principles. This is the source of the problem. It is basic to natural justice, commonsense and the legal system that Courts should not provide statements of law without argument of counsel. The dicta of the Court lend themselves to the exaggerations which have taken place. The High Court must bear the primary responsibility for the doubt that has been generated.