C. L. Ogleby
A discussion of the High Court decision regarding customary land tenure in Australia.
As the ships of the First Fleet anchored in Sydney Cove on the 7th February 1788, and the British flag was raised on the shore above the convicts and their masters to the echoes of a rifle salute and toasts of port, the foundations for a new Colony were being laid on British soil. Terra Australis had been claimed in both sovereignty and ownership by the British Crown as terra nullius - literally a 'land belonging to nobody'. Although somewhere between one half and one million people inhabited the island (Mulvaney 1989, but estimates vary), their culture, customs and custodianship of the land was denied. Over the last 200 years the concept of terra nullius has been used to justify the dispossession of the original inhabitants of this country. It has also been responsible for framing attitudes towards the Aboriginal people and still forms the basis to all land law in Australia.
On the 3rd June 1992 Justice Brennan, in considering the rights of the indigenous peoples of the Murray Islands, proclaimed in the High Court of Australia that "the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands". This decision overturns the concept of terra nullius. The Aboriginal people of the Murray Islands are entitled to be acknowledged as the original owners of the territory in question. With that decision the foundation upon which the Law as practised by Surveyors was severely shaken; now part of Australia at least is recognised as having been inhabited by Aboriginal peoples who have rights above all others to those lands in law.
This paper will discuss the Mabo decision and cover some of the background behind the settlement of Australia. It will also review the actions of the British Crown in other colonies around the time of settlement of New South Wales. It is not intended to be a thorough examination of the history of land law, but provides sufficient background so that readers can recognise the environment (both legal and social) in which events occurred. The paper then examines the implications of the High Court decision and discusses ways that this may have an impact on surveyors.
The terms used in this paper to describe the Aboriginal inhabitants are quoted directly from the referenced source. The use of the term native is done in the context of the quotations. At all other times the expression "Aboriginal people" is used as this describes exactly the position and status of these people as "original inhabitants". The term also includes people of the Torres Strait Islands as the original inhabitants of these lands.
Where Aboriginal perspectives are offered these are again from referenced sources. The author neither claims to, nor aspires to, speak on behalf of the Aboriginal people of Australia.
To my way of thinking, I have never been able to conceive that there was justice and equity on the part of Europeans in seizing, in the name of the Governments, a land seen for the first time, when it is inhabited by men who not always have deserved the title of savages or cannibals which have been given them, whilst they were but children of nature and just as little as civilised as are actually your Scotch Highlanders or our peasants in Brittany, who, if they do not eat their fellow men are nevertheless just as objectionable. From this it appears to me that it would be infinitely more glorious for your nation, as for mine, to mould for society the inhabitants of the respective countries over whom they have rights, instead of wishing to occupy themselves in improving those who are so far removed by immediately seizing the soil which they own and has given them birth. (Baudin to King, 23 Dec. 1802, HRNSW, Vol IV, P830-quoted in Ingelton 1986).
James Cook, navigator, cartographer, astronomer and discoverer sailed from Britain to Tahiti in 1770 to observe the transit of Venus. After this event he sailed westwards and discovered New Zealand, circumnavigating both islands and taking counsel with the Maori people. He then continued to sail westwards to the coast of Terra Australis. His party sailed northwards along the coast of what was to become Australia charting and mapping, finally departing these shores and returning to England. Before doing so Cook landed on a small island, raised the British colours and claimed the east coast of Terra Australis in the name of His Majesty the King of England. He did not merely claim sovereignty, he claimed possession.
The basis for this 'possession' is known as terra nullius , the land was seen as not belonging to anybody - despite the obvious presence of people along the shores and rivers. This legal notion has been used over the last 200 years to justify this action, which has led to the dispossession of the original inhabitants of this continent but also to the establishment of modern Australia.
By claiming the land and colonising the country, the laws of England came over time to be the laws of Australia, especially the law of the land. The basis of this is that the supreme ownership of the land rests with the Crown - all of the lands in the newly established colony were the property of the British Crown. No landed interests or rights of the Aboriginal inhabitants existed. The representative of the Crown in the Colony, in this case the Governor, could apportion this land at his discretion, inscribing new lines on maps illustrated only with creeks and coasts, creating boundaries, borders and frontiers. This is still the basis of all land law in Australia, no title exists except where land has been granted by the crown, usually after survey.
On the 3rd June 1993 the High Court of Australia, the body charged with the responsibility of determining the common law of the country, delivered a dramatic decision with far reaching consequences. In a case being heard by the Court, Mabo v. The State of Queensland (1992) a majority of the Bench decided that a form of 'native title' existed in the Murray Islands (just off the northern tip of the east coast of the continent) at the time of settlement. This decision in effect overturns the notion of terra nullius; after 200 years of resistance the Aboriginal and Torres Strait Islander people are acknowledged as having rights to the land they have traditionally occupied.
This year, 1993, is the International Year of Indigenous Peoples, an appropriate time perhaps for surveyors to consider issues broader than say the science and techniques of mapping and measurement of land. This paper will discuss the decision of the High Court, or the Mabo decision as it has become known, with a particular emphasis on the possible implications for the profession of surveying. This is a somewhat limited path to follow as the ramifications of the Mabo decision have the potential to change Australian society as a whole.
In order to understand the reasons for the Court's decisions some background to the settlement of Australia will be provided, along with an explanation of the notion of terra nullius. The Court's decision will also be discussed, as will some of the reactions to date. The paper will finish by providing a possible response to the decision by the surveying profession.
When Lieutenant James Cook sailed from Plymouth in August 1768 to observe the transit of Venus in the Pacific, his secret sailing orders stated that, after having done this, he was also to:
proceed to the southward in order to make discovery of the Continent above mentioned (...a Continent of Land of great extent...) Until you arrive in the Latitude of 40º, unless you sooner fall in with it. (Beaglehole, 1955, p.cclxxxii.)
The existence of the legendary, mystical, great south land was going to be established once and for all. He was also instructed to:
observe the Genius, Temper and Disposition and Number of the Natives, if there be any, and endeavour by all proper means to cultivate a Friendship and Alliance with them, making them presents of such Trifles as they may Value, inviting them to Traffick and Showing them every kind of Civility and Regard; taking Care however not to suffer yourself to be surprised by them, but to always be on your guard against any Accident. (op.cit.p.cclxxxiii).
The next paragraph of Cook's secret instructions from the Commissioners for Executing the Office of Lord High Admiral of Great Britain is the one most relevant to this paper. It contains phrases and words that have been the subject of debate off and on over the last two hundred years. The paragraph reads:
You are also with the Consent of the natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain; or, if you find the Country uninhabited take possession for His Majesty by setting up proper marks and inscriptions, as first discoverers and possessors. (ibid).
In Cook's travels up the east coast of this continent he saw numerous Aboriginal peoples, their camp fires and their smoke. He tried to meet with them on occasion, but his efforts and those of his men were generally repelled. He and his officers fired shots at the Aboriginal people, and pursued them from the beaches into the nearby hinterlands on occasion. Some Aboriginal people had been on Cook's ship 'The Endeavour' and he, along with his officers and a Chief from Tahiti who joined the expedition (Tupaia), had attempted to communicate with them in English and Tahitian. (In fact, had any of Cook's party been able to talk with the Aboriginal people events may have unfolded very differently).
In his journal entries Cook continued to note the presence of people along the coast, and finally supplied an often quoted description of the inhabitants once he had finished exploring and was making his way to Batavia:
From what I have said of the Natives of New Holland they may appear to be to some to be the most wretched people upon Earth, but in reality they are far more happier than we Europeans; being wholly unacquainted not only with the superfluous but the necessary Conveniences so much sought after in Europe, they are happy in not knowing the use of them. They live in a Tranquillity which is not disturbed by Inequality of Condition: The Earth and sea of their own accord furnishes them with all things necessary for life, they covet not Magnificant Houses, Household-stuff &c, they live in a warm and fine Climate and enjoy a very wholesome Air, so that they have little need of Clothing and this they seem to be fully sencible of, for many to whome we gave Cloth &c to, left it carelessly upon the Sea beach and in the woods as a thing they had no manner of use for. In short they seem'd to set no Value upon any thing we gave them, nor would they ever part with anything of their own for any one article we could offer them; this in my opinion argues that they think themselves provided with all the necessarys of Life and that they have no superfluities. (Beaglehole 1955, p395-399).
One could wonder then why then Cook stood on the crest of the hill on Possession Island and
...now once more hoisted English coulers and in the name of His Majesty King George the Third took possession of the whole Eastern Coast from the above Latitude (38º South) down to this place by the name of New South Wales, together with all the Bays, Harbours, Rivers and Islands situated upon the said coast...(op.cit.p387, emphasis added).
Cook's decision to claim possession of this portion of Terra Australis for Britain is the underlying catalyst for the subsequent settlement and development of Australia. Why he claimed possession of the land history does not tell us. Clearly it was in literal breach of his orders as the land was not uninhabited. However, there is possession and then there is possession, an issue which will be addressed later both from the point of view of an indigenous inhabitant and as a colonising nation. So after Cook returned to Britain the administration knew of the existence of a large piece of land a long way away which had no immediate use as a source of wealth, but one which they could call their own.
Following the loss of the American territories, and faced with chronic overcrowding of penal facilities in England, pressure was increasing in Britain to establish a penal colony in these newly discovered lands in New South Wales (Clark, 1962. p60-61). Joseph Banks, who was with Cook on his voyage of discovery, appeared before the Beauchamp Committee on Transportation in 1785 and was enthusiastic about the selection of New South Wales. He was so enthusiastic that he was prone to distort the situation by underestimating the number of Aboriginal people, and referring to them as nomadic and lacking political or social organisation (Renwick 1991, p24). He stated that it would not be possible to buy land from them as they had shown no interest in what Cook and his officers had to offer (ibid). Other sites in Africa, Canada and the West Indies were considered for the establishment of a penal colony, (Clark, 1962, p61), however, the likelihood of having to purchase land at these locations probably swung the decision in favour of New South Wales (Renwick 1991, p24). Cook is much maligned for his apparent role in the dispossession of the Aboriginal people (for example see Wright 1991) but it was Banks who was far more instrumental in the selection of New South Wales as the site for the penal colony (Reynolds, 1987, p53-54). Whatever the reasons, the newly discovered land was chosen as the site for a penal colony, and eight shiploads of officers and convicts along with three stores ships left from Portsmouth for the great southern land.
On the 26th January 1788 Governor Arthur Phillip's fleet anchored in Sydney Cove, once again raised the British flag on (now) New South Wales soil, and commenced the occupation of what was seen to be British land. The commission given to Phillip on the 12th October 1786 stated the limits of the territory to "extend from Cape York in latitude 10º37' to the southern extremity of the said territory in the latitude of 43º39' south, and all the country inland to the westward as far as the one hundred and thirty fifth degree of longitude, including all the islands adjacent in the Pacific Ocean" (Clark 1962, p78-79). His instructions issued on the 25th April 1787 (which again delimited the same boundary of the territory as his commission) required that he cultivate the land, directed him to colonise Norfolk Island, and directed him to open an intercourse with the natives, to conciliate their affections, punish those who destroyed the natives or interrupted their several occupations and report what manner of intercourse with them could be turned to the advantage of the colony (Clark 1962, p80).
Possession Island, the location from where Cook claimed the territory of New South Wales, is at approximate longitude 142º25'E so at best he claimed from almost the tip of Cape York in Queensland eastwards and southwards terminating at Point Hicks in Victoria, his first landfall on the continent. Cook states that, on deciding to take his leave of the eastern coast of New-Holland in Torres Strait that, "on the western side I can make no new discovery the honour of which belongs to the Dutch navigators." (Beaglehole, 1955, p387). He did not claim it for the King of England, acknowledging the Dutch interests if not ownership. The Commission given to Phillip claimed up to the 135ºE meridian, putting the boundary of the British territory (now) near the western side of the Gulf of Carpentaria (somewhere near the Crocodile Islands) in the north and just west of Port Lincoln in the south. It also now included Van Dieman's Land in Latitude. How this increase in territory came to pass is now unknown. However, it is of interest that the entire continent was at this stage not specified. There had been numerous sightings of the west coast since the early 1600s, primarily by the Dutch (of which Cook was familiar), but at this stage it appeared that nobody had an interest in the 'barren fly-infested land' (Clark, 1962, p26). British settlements elsewhere around the coast were to follow later, 1803 for Port Phillip and Hobart, 1829 on the Swan River in the west and 1838 at Port Essington in the north. The Swan River and Port Essington settlements stamped the extremes of the continent with the seal of British imperialism.
In a case being heard in the High Court of Australia in 1913 however Justice Isaacs stated that when Arthur Phillip received his commission in 1786 "the whole lands of Australia were already in Law the property of the King of England". (Williams vs AGNSW, p439). Commenting on this Sir Kenneth Roberts-Wray states:
This with respect is startling and indeed incredible. The first settlement was founded in 1788, but even if it had been in 1786, could a foothold in a small area on the east side of a sub-continent 2 000 miles wide be sufficient in English law (as it certainly would not be in International law) to confer not only sovereignty but also title to the soil throughout the hinterland of nearly 3 million square miles? (Roberts-Wray, 1966, p631).
This case as stated by Isaacs was wrong, the entire continent was not the property of the King of England in 1786, particularly as Phillip's instructions clearly stated a boundary to the territory. The opinion proffered by Isaacs (ibid) does, however, illustrate the attitudes and uncertainties that have always surrounded the issue of land and Aboriginal people in Australia.
The law of Australia is now a mixture of different legal entities. When Australia was first settled as a penal colony by Phillip, the law imposed was marital law where the Governor had wide and autocratic powers. Then in 1823 The Australian Courts Act (Geo.IV.C.83) was passed providing for the whole law of England as it existed to be applied in the colony New South Wales. Since the federation of Australia in 1901, laws passed by the Federal Government as well as those passed by individual States also apply, along with some International Law.
Diagram 5: Map showing the extent of the territory claimed by Cook, and that included in Phillip's orders.
English law with respect to land is claimed to date back to the Norman conquest of Britain in 1066 when William defeated King Harold at the Battle of Hastings (for example McNeil, 1989; Brown, 1980), although systems of tenure of one sort or another have existed in Britain since the time of Roman occupation. It seems that a form of fuedalism was in use before the Conquests, but it was by no means absolute (McNeil, 1989). The Normans imposed their feudalism universally, so that as common law developed it was accepted that all lands in the hands of subjects are ultimately held of the Crown. It is often argued that following the Norman conquest William I suceeded to all rights over the land held by the Anglo-Saxon kings as well as acquiring other land by conquest and forfeit. The land was then granted by William I to those whom he chose, often those who 'possessed' the land originally. Applied in a general sense to colonial law, this meant that once a territory was claimed by a representative of the British Crown the ownership of all of the land was then vested in the Crown.
There is much legal debate over the validity of even this generally accepted foundation of British land law (see McNeil for example) but it is important when studying the issue of land in Australia. The Eighteenth century chronicler of British law William Blackstone, in his Commentaries on the Laws of England in 1765-9 (published before New South Wales was settled, and reprinted many times since) states:
It became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, 'that the king is the universal lord and original proprietor of all the lands in his Kingdom, and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived 'as a gift from him, to be held upon feodal services.' For this being the real case in pure original, proper fueds, other nations who adopted this system were obliged to act upon the sae supposition, as a substruction and foundation of their new polity, though the fact was indeed otherwise. (Blackstone, 1830. vol II, pp50-51, cited by Brennan, 1992).
It is recognised (In Colonial law at least, Roberts-Wray, 1966, pp98-112) that colonies could be claimed by:
In the case of the lands of New South Wales, the formal justification for the Colony was one of 'settlement' (Reynolds, 1987.p37, Roberts-Wray p99). There were generally accepted conditions imposed on the concept of settlement, for example one could hardly claim a territory settled by somebody else as one's own, especially if the original inhabitants didn't agree with the idea. That would be seen as conquest, which carried a separate set of generally accepted conditions.
More particularly, colonisation by settlement generally only applied to the claiming of 'sovereignty', not to the outright claim of title to settled lands and dispossession of the previous inhabitants. This was a common thread running through all international law in the 18th and 19th Centuries, the acquisition of colonial territory did not mean the acquisition of title to settled lands (see later).
Australia was, and still is, one of the rare exceptions.
The expression terra nullius, literally translates as 'land belonging to nobody'. It comes from the Latin terra for earth or land, and nullius being no one or nobody. The expression is used however in two contexts and can be seen to have two meanings:
At times it is difficult to determine where the distinction between the two interpretations lies.
The first construction is that a land could be seen to be terra nullius where there was no established political system or no existing code of law. Claiming sovereignty over such a territory was a wholesome Christian thing to do - it brought the indigenous people under the civilising wing of British paternalism (at least in the case of Australia). This was a common method of colonising countries, practised by
most powerful European countries, who were engaged in expanding their empires, as mentioned previously.
The second interpretation is a little more difficult to discern. It hinges on the definition of words like 'tenure' and 'ownership' and 'possession'. Like many legal concepts, the validity or otherwise of the expression depends on the interpretation placed on the constituent words. The debate over the claim that the territory of New South Wales was uninhabited is not new. It has been smouldering for about the last two hundred years, fuelled by differing interpretations of 'possession'.
It is worth mentioning that for many in Europe around the time of the settlement of Australia the right to claim land seen as 'waste' or 'uninhabited' was established by Biblical authority:
And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth (Genesis 1:28, The Bible, King James Version. On Line Bible and Concordance V5.0, Woodside Bible Fellowship, 1991).
This passage is quoted because it is largely responsible for the attitudes prevailing in Christian Europe in the 17th and 18th Centuries. And it was these attitudes that fuelled the zeal with which colonising nations expanded their influence in the lesser 'civilised' and predominantly non-Christian worlds (Clark, 1962, pp21-56). Armed with divine authority to have dominion over every other living thing that moves on the Earth, there was a holy cause in taming 'savages' and bringing them Christian enlightment (not to mention obtaining the more material rewards of gold and spices).
In Two Treatises of Government published in 1713, John Locke states in a chapter on property that:
Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. (Locke, 1713 quoted in Reynolds, 1987, p25).
Where there had been no improvement on nature, 'man' had not acted according to the Genesis directive and subdued the earth, creating 'property' in the process. Where the evidence of 'use' such as agriculture, buildings, monuments and temples was missing, it was assumed that the peoples did not have a concept of landed property, and therefore could not be seen as possessors. In this situation, even though it was contrary to international legal opinion of the time, the territory of New South Wales could be seen to be not 'possessed' by the Aboriginal people - thereby terra nullius. There were, however, other accepted interpretations of the key word 'possession'.
Eighteenth century jurists like Von Savigny, Wolff and de Vattel discussed possession at great lengths in the context of internation law (Reynolds 1987). As mentioned before, this discussion was undertaken to give some legal justification for the claims of Europeans to lands in the newly discovered worlds. Von Savigny stated that:
in order to acquire possession it is only necessary to be present on the land, without the performance of any other act thereon (von Savigny quoted in Reynolds, 1987).
He also stated that where the use of land is intermittent the omission to visit the land is not evidence of intention to give up possession. Christian Wolff in his Law of Nations also argued that intermittent use of the land did not give justification for dispossession. He stated that:
Ownership is not lost by non-user. And if separate families wander through uncultivated places, they intend a use of the places only in alternation, a thing which is readily evident, if only you turn your attention to the reason which impels them to wander through uncultivated places. (Wolff, quoted in Reynolds 1987, p16).
These arguments would seem to disallow the British claims to land in the Colony of New South Wales based on the doctrine of terra nullius, at least in the minds of those formulating international law before the time of the settlement of Australia. The Aboriginal people could be seen to be in 'possession' of the land over which they roamed, collected food, hunted and nurtured. It is this interpretation that the High Court of Australia has pursued in its investigations.
While this paper will deal primarily with the legal aspects of the dispossession of the Aboriginal peoples of Australia, an alternative view to the entity called 'land' is appropriate. Western* eyes view land as the ultimate form of real property, a chattel to be bought, sold, used and abused as the owner wishes. The very concept of land being real property (as opposed to personal property) is reflected in the naming of the various Acts that regulate dealings and registration of land.
(*although this term is in itself ethnocentric ('the countries of Europe and the Americas not under communist rule', which by default would include other non-communist countries like Australia), in most countries that fit this description the ownership of land by the individual is permitted and registered in a cadastre. It is in this context that the term is used.)
There are of course other views on the epistemology of land. These can be offensive to devout mono-theists, as they are generally more animistic and totemic - empowering the land with a spiritualism. However 'land' is the central issue addressed by the Mabo decision, and is seen by many others to be the issue fundamental to reconciling differences between Aboriginal and non-Aboriginal people.
The idea of a 'Dreamtime' is not new to Australians of many ethnic backgrounds. Where it has been part of the education syllabus it was taught that it was the time of Aboriginal mythology - when fairy tales about animals and people were developed. The 'Dreaming' is very real to Aboriginal people, and very much a part of their being. To paraphrase a concept of the Dreamtime: it was a period of ancient time when the formless land was given shape and when people, animals and the law were created. The ancestral beings that performed this creation came from the land, and having completed their activities then often returned to the land. Their activities created features on the landscape, created rules, laws and customs, together with the people and other forms of life. The movement of these beings over the land created spiritual centres for both people and animals, so that land and the creatures on it are part of one interconnected whole. For Aboriginal people the land is central and essential to their very being. They do not own the land, more likely the land owns them. They are connected to it, they are responsible for the law that respects it, and for ensuring that the land is in a fit physical and spiritual condition to be handed down to future generations. It is not a source of material wealth but of spiritual consolation.
This is a stark contrast to the European understanding of land as a chattel. An object to be owned outright by an individual who has power to do almost as they wish to the land without consideration of other creatures who may depend on it, or of those who may follow. This may not always be the case, and in the more environmentally aware 1990s care for the land is certainly an issue, but fundamental to the cadastre in Australia is the ability to buy and sell land much the same as one would a car.
If it is possible to accept this alternative definition of land, even if one cannot agree with it, then the importance of the land to the spiritual, cultural and physical well being of the Aboriginal people becomes clearer.
It is worth looking briefly at some of the other British colonies where indigenous title to land is recognised. The bibliography contains references to published material that details arrangements entered into in other territories and readers who are interested can discover more by consulting some of those cited.
One of the best known treaties entered into by the British Crown is that of the Treaty of Waitangi in New Zealand. It is relevant for many reasons, one being that Cook extensively mapped the coast of New Zealand (also known officially today as Aotearoa) on the same journey that he claimed New South Wales for the Crown. He did not claim New Zealand. One can only presume that the 'settled' presence of the Maori people and the fact that his companion Tupaia could communicate with them established their existence as a 'civilised' people. New Zealand was spared the ignominy of penal beginnings, most probably because of the ferocious nature of the inhabitants.
The early history of New Zealand is linked with that of Australia. It was visited by traders and missionaries from Australia before there was an official British presence. The first mission was established in the Bay of Islands in 1814 but until the late 1830s the official British policy was "a reluctance to intervene formally" (Orange, 1987, p8). The number of private forays to New Zealand to purchase land finally prompted the British to take some action, resulting in a proclamation from Gipps in Australia that stopped further land purchases from the Maori in January 1840. This was quickly followed by a decision to establish a colony to protect the interests of the Maori and to give the British Crown a pre-emptive right to purchase land. On the 6th February 1840 a bi-lingual treaty was signed by some 40 Rangatira (most easily defined as 'chiefs' but perhaps better understood as a people's representative) at Waitangi, and by most (although certainly not all) Rangatira in New Zealand within the following six months or so. This treaty offered complete Government over the land by the Crown and agreed to "protect the chief, the sub-tribes and all the people of New Zealand in the unqualified exercise of the chieftainship over their lands, villages and all their treasures" (Durie, in Renwick 1991, p166-8). It is interesting to note that in the House of Commons debate in 1845 the atrocities committed in Australia were mentioned as being one of the 'chief causes of the national reassertion of the old and righteous principle in the case of New Zealand" (Sir William Martin, quoted by Sorenson in Renwick 1991).
There would be many Maori who would claim that the treaty was a failure, mostly because of the delinquency of predominantly Pakeha (white) Governments. There are also many Pakeha that argue that it is a farce as well. There are arguments over whether the Maori version or the English version is the most authoritative (although these days international law would give precedent to the indigenous language version) and naturally on interpretations of the particular words used. That debate will not be entered into here. The Treaty of Waitangi is mentioned to illustrate the acknowledgement of the rights of the Maori by the British Crown.
In America, Britain recognised indigenous title to land, although many of the settlers had other ideas, including the notion of 'wasteland' as being 'unsubdued' and therefore available by the Genesis directive for the taking (Brown, in Renwick, 1991, p37). The British made 64 treaties with Indian tribes between 1607 and 1699, and a further 111 between 1700 and 1775 (op.cit.p39) - all before the settlement of New South Wales. The Royal Proclamation made in 1763, following the defeat of the French when the British laid claim to the territory that the French had previously claimed, states that any land not having been ceded or sold by the Indians is reserved for them, and that the British Crown had a pre-emptive right to purchase such land from the Indians. Unfortunately many of these treaties were eventually ignored and the success or otherwise of the covenants is open to debate.
There are many other instances of protection of existing tenure in colonised territories (for example see Renwick 1991, McNeil 1989, and Section 35 of the Canadian Constitution), however, it is very difficult to find another instance of the strict application of the concept of terra nullius that occurred in Australia.
The decision of the High Court in the case Eddie Mabo and Ors vs. The State of Queensland could be seen to be one of the most significant findings ever by this Court.
The case was appealed to the High Court of Australia by the plaintiffs following defeat of the claim in the Supreme Court of Queensland (Mabo v. Queensland, 1988, Commonwealth Law Reports (CLR), 166). In its simplest form it was a claim by the Meriam people for title to the Murray Island group in the Torres Strait, at about 100S Latitude and 1440E Longitude.
The islands were annexed by Queensland in 1878, before that they were not part of the dominions of Britain at all. They were annexed (a legitimate way of obtaining territory under International law) in order to give command over Torres Strait, to control the fishing industry in Torres Strait, to protect shipping and shipwrecked crews and to protect the native inhabitants of the islands.
The case was heard by Mason, C.J and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh J.J. The solicitors for the plaintiffs were Corser and Corser and the Solicitor for the Defendant was K.H. O'Shea, Crown Solicitor for the State of Queensland.
The plaintiffs sought declarations that the Meriam people are entitled to the Murray (Mer) Islands:
the Murray Islands are not and have never been 'Crown Lands' within the meaning of the Lands Act 1962 (Qld) (as amended) and prior Crown legislation and that the state of Queensland is not entitled to extinguish the title of the Meriam people.
The court did a very detailed study of both the concept of 'native title' and the Common Law of Australia. Brennan J. states in the Court's Reasons for Judgement (now Mabo v. Queensland (1992), A.L.J.R. 408) that the High Court is the body charged with declaring the common law of Australia. However, in doing this the Court:
....is not free to adopt rules that accord with contemporary notions of judgement and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency...Although our law is the prisoner of its history, it is now not bound by decisions of courts in the hierarachy of an Empire then concerned with the development of its colonies. (Brennan, 1992, p16)
There have been several previous court cases in Australia where the doctrine of terra nullius was re-affirmed: the case referred to previously (Williams v. Attorney General, NSW) but more importantly Milirripum and Ors. V. Nabulco Pty Ltd and the Commonwealth of Australia (1971,17 FLR 141), also known as the Gove Land Rights Case. In this Blackburn J. found that the 1889 Privy Council decision which stated that, in 1788, Australia was 'practically unoccupied' was still legally binding and claimed that this prevented him from finding on behalf of the plaintiffs. This was the first time that the issues relating to the colonisation of the continent had been investigated fully in an Australian Court. This case did cause a reaction, namely the Woodward Royal Commission, resulting eventually in the Aboriginal Land Rights (Northern Territory) Act 1976 being proclaimed. Brennan J. then goes on to say:
The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. (op.cit.).
This statement is almost wholly overlooked by various commentators in both the media and politics. He also states:
The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination.... According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. (Ibid.p15.)
And question the law the High Court did indeed. What follows in the Court's Reasons for Judgement is a detailed analysis of the law with respect to the settlement of the colony. Many of the references cited in the bibliography accompanying this paper were consulted, along with the standard early references on British law such as Blackstone (17th Edition, 1830) and 'international law' such as Vattel (1797). The precedent cases in Australia were reviewed, and other cases in territories settled by the British dealing with 'native title' were also consulted.
The order resulting from the case is as follows:
In lieu of answering the questions reserved for the consideration of the Full Court,
Although constrained geographically to the Murray Islands (in this decision), 'native' title has been recognised as existing at the time of colonization and as not having been extinguished by the settlement of Australia.
In coming to this conclusion, a majority of the High Court held that the common law of Australia recognises a form of native title in accordance with the laws and customs of the indigenous people where those people:
In order to establish a common law native title, the Court has indicated that it will be necessary for claimants to be able to establish the existence of a 'clan', that this clan has observed the laws and customs of that land and that the clan has maintained its traditional connection to the land. Native title will be extinguished where the traditional title holders lose their association with land, and where the land has granted freehold title.
In summary, the decision:
The decision of the High Court has now become well known and it has become a veritable Pandora's Box.
Reaction to this decision has of course been both extremely favourable and apocalyptic, but rarely considered and unbiased. The more radical commentators (both Aboriginal and non-Aboriginal) have of course made their feelings felt and distorted the Court's findings to support their own causes. For the first few months after the decision it was relatively easy to keep up with discussion and comment in the media, but now many news and feature articles as well as speeches and interviews from both informed and uninformed commentators appear daily (in June 1993 at least). On television news it is more than likely to be the lead item. Needless to say, the most popular forum for the expression of views was (and still is) the news media.
Some of the initial comment was to be expected. For example, Mr Hugh Morgan of Western Mining Corporation made the remark that the decision gave substance to the ambitions of the communists for a separate Aboriginal state and plunged Australian property law into chaos (quoted by Deanie Carbon in the Australian, October 17th 1992). The Prime Minister Mr Paul Keating then suggested under parliamentary privilege that Mr Morgan's remarks had been ignorant and bigoted. The mining industry (which would most likely be the most affected by this decision) then moved to distance itself a little from Mr Morgan's remarks. It is true that not all of the mining industry holds these views. The Australian Mining Industry Council had some years previously funded the fieldwork of anthropologist Steven Davis to collect information on ownership and boundaries of traditional lands (Davis and Prescott, 1992), so it would seem as if some sectors of the industry were acknowledging 'ownership' prior to the Court's decision.
Other people saw this decision as giving Aboriginal people the "privilege of scavenging through the law courts for real estate in remote parts of Australia that the whites have never wanted" (lawyer Mr Bruce Miles quoted in an article by Bruce Loudon, Herald-Sun, Monday November 16, p29). In the same article Melbourne barrister Dr. Colin Howard predicts financial ruin of the country as a result of the expected court cases. He says: "the invention, for that is what it is, of native land title is not just the introduction of a new legal concept. It is a fundamental change to the law of property that cannot be reconciled with title to land as previously developed by the common law over nearly a millennium". Dr Howard was the Hearn Professor of Law at the University of Melbourne for 26 years, and is quoted as one of the foremost authorities on constitutional law. (He appears to have overlooked that many countries around the world, both ex-British colonies and not, recognise 'native' title as being valid in law. It is not an invention by the High Court of Australia, for example see McNeil 1989).
The reaction of the Commonwealth Government was to announce a process of consultation with State and Territory Governments, industry and key Aboriginal and Torres Strait Islander people. The consultations were to be directed by a committee of ministers chaired by the Prime Minister. Consultations were held with regional Land Councils, mining energy and pastoral industry representatives, State and Territory Governments, the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Council for Aboriginal Reconcilitation. The results of these consultations was published in June 1993 (ibid), some of which will be addressed later.
One of the questions left unanswered by the decision of the Court is the matter of compensation. Although the Court held that the extinguishment of native title by the Crown did not give rise to a claim for compensation, this was subject to the operation of the Racial Discrimination Act 1975 (RDA). This act states that it is unlawful for a person to do any act that would impair the enjoyment of any human right or freedom based on the distinction of race. Whether land granted since 1975 denied the holders of native the full rights and freedoms associated with that land, and as such was then a breach of the RDA, is yet to be tested. It may well be that the holders of native title in this land would be legally entitled to compensation.
Compensation can take many different forms and if this path is chosen there are different ways this can be implemented. For example, during 1992 an agreement was reached in New Zealand to settle all Maorie fishing claims by giving the Maori people $150 million (NZD) towards the joint purchase of the Sealord Products fishing fleet. Commercial fishing rights are protected under the Treaty of Waitangi. It is hoped that this arrangement would fulfil the Crown's obligations and would be the end of all commercial fishing claims to the Waitangi Tribunal by Maori people. The total value of this settlement along with estimated royalties and previous claims totals around $0.5 billion (NZD). It should be mentioned that not all Maori representatives are in agreement with this, nor all non-Maori either.
Another possible course of action could be the establishment of a Treaty with the Aboriginal people of Australia. The suggestion of a treaty originated at a meeting of the National Aboriginal Congress in the mid 1970s, and was then resurrected during the Bi-Centenary of Australia by the then Prime Minister R.J.L. Hawke (O'Shane, in Renwick, 1991. p149). This proposal may continue independently of the consequences of the Mabo decision, as many Aboriginal and non-Aboriginal people see this as a positive move (for example the song 'Treaty' by Northern Territory band Yothu Yindi on the award winning recording 'Tribal Voice'). However, not all Aboriginal people see a treaty as necessarily being the full answer. For example, Pat O'Shane states in Renwick that: "One of the reasons that I do not support a treaty movement is because I believe it deflects our collective attention from the basic demands for social justice in the spheres of the law, housing, health, education and land rights....The dispossession which began on 26 January 1788 has, of course, had profound and ongoing effects, manifested most obviously among those who have been completely dispossessed: those who have over generations been wrested from their lands, then had their families dispersed into welfare and penal institutions, had their language (and hence other cultural expressions) destroyed, and who for the most part have been urbanised" (op.cit. p147). O'Shane's comments probably best describe the fundamental role that land has in underpinning Aboriginal culture health and pride.
While discussing the potential responses to and outcomes of the decision, it is worth considering two international covenants to which Australia is either a signatory or to which at least agrees in principle. These are the International Covenant on Civil and Political Rights (ICCPR), and the Draft Universal Declaration on the Rights of Indigenous Peoples (UDRIP) by the UN Working Group on Indigenous Populations.
Australia is a member of the UN Commission on Human Rights and has acceded to the First Optional Protocol of the ICCPR (Charlesworth, 1991). Article 1 of the ICCPR states in parts 1 and 2:
Article 27 of the ICCPR also states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
The UDRIP reiterates some of the same points made in the First Optional Protocol and also states in Part III:
Under contemporary international law Australia has an obligation to act on the decision regarding native title.
One may wonder what this all has to do with surveyors or, for that matter, what this article is doing in a journal devoted to the science of surveying. The High Court decision is, however, significant to surveyors not just because they are citizens of Australia, but also because of all professions they are those most closely involved with the processes of delineating land ownership and tenure. Surveyors may have a self image of being those that merely draw the lines that define the boundaries, but this is done from within the comfort and protection of laws that empower surveyors to make these decisions and define the processes that must be undertaken. These laws have now been found to be based on a falsity. (It should be repeated that the decision has not made those laws invalid, the High Court was quite specific about this matter.) Also, a group of people can now own land to which there is no (current) certificate of title, the endorsement of which up until now was almost proof conclusive of ownership.
The profession in Australia, highlighted by the Institution of Surveyors Australia but not limited to that organisation, can respond in one of three ways; it can be inactive, reactive or pro-active.
Surveyors, and their more adventurous folk-hero forebears the 'Explorers', have been instrumental in the exploration and mapping of Australia, embellishing the blank paper of the continental map with rivers, tracks, mountains and borders. They have been the individuals responsible for extending the boundaries of territorial knowledge and also responsible for formulating and implementing the Governments' land policies. They have inscribed lines on maps and sand, subdividing the vast continent into parcels of land with often arbitrary borders, for the Governments to sell. They have used the knowledge and skills of the Aboriginal people they encountered (like Eyre, Babbage, Bland, Burke and Wills for example), or who accompanied them on their journeys like Mitchell, Sturt, Flinders, Baralliler and Leichardt to name a few (Reynolds, 1990). They have recorded their languages and customs, drawn and painted them (HRV 1982), praised them, and shot them as vermin. Along with miners, missionaries and agriculturalists, they probably had more contact with the Aboriginal people during the first hundred years of settlement than most others in the Colonies that made up Australia. Historically at least, surveyors were very much a part of this nation's pact with the Aboriginal people.
As a result the relationship between surveyors and Aboriginal people throughout history sketches across the entire spectrum of human experience - from compassion and empathy to aggression and ignorance. Little of these relationships have unfortunately been recorded. Major Thomas Mitchell (explorer-surveyor) wrote of Yuranigh, an Aboriginal 'guide, companion, councillor and friend':
His intelligence and his judgement rendered him so necessary to me, that he was ever at my elbow, whether on foot or horseback. Confidence in him was never misplaced. He well knew the character of all the white men of the party. Nothing escaped his penetrating eye and quick ear. His brief but oracular sentences were found to be sage, though uttered by one deemed to be a savage; and his affections and kindness towards the little native dicky seemed quite paternal. (Quoted in Foster 1985, p408).
This same intelligent man, however, could also show another face, as he and his party slaughtered a group of Aboriginal people on the 27th May 1836 on the Murray River near Mt. Dispersion. This massacre is well known, as Mitchell was called to account for his actions (Foster 1986, p180), and the incident probably delayed the awarding of his knighthood (Andrews, 1986, p80). This event is probably an indication of the enigma that was Mitchell, as much as an indication of the dilemma that faced the exploring surveyor - where the Aboriginal people conformed and were useful, they were friends - where they defended their territories they were potential enemies.
The Historical Records of Victoria (HRV) Volume 5 documents the problems and achievements of the early surveyors in Victoria from 1836-1839, and it contains many references to the 'natives' in the Port Phillip District. The instructions to surveyors performing surveys for the Crown were generally along the lines of "You will report also the disposition of the Aboriginal natives should you meet with them in considerable tribes on the road, and you are to use every precaution for the protection of your party without provoking the blacks to acts of hostility" (HRV, p151). A letter from Robert Hoddle to SA Perry (Deputy Surveyor General of NSW) dated 18th August 1838 states:
I may here state that from the recent hostility displayed by the Aboriginal natives of this part of the colony towards many settlers, it is necessary as a measure of self preservation that each man attached to a surveying party should be supplied with a weapon of defence. (HRV, p270).
In an earlier letter to James White of the Australian Company in 1837 Hoddle also states:
I am obliged to go armed here. The shepherds carry a firelock. The blacks are not to be trusted. I do not allow any of them about my tents. If they come after dark, they must expect some leadin pills. I think I must have been crazy to have brought my single barrel gun in lieu of a double one. (HRV, p93).
An understandable concern, given the circumstances Aboriginal people continually resisted the invasion of their territory. In the official correspondence at least, Hoddle never questioned his role or that of his workers in surveying lands occupied and defended by other people.
In Knights and Theodolites, Frederick Marshall Johnston documents his family's role in the survey and mapping of Western Australia. A rare historical literary work from a surveyor. He quotes from the diaries kept by his great grandfather M.W. Clifton, other family members and the minutes of the Western Australian Company. In his book there are numerous references to Aboriginal people, ranging from the derogatory through condescending and paternalistic to the praiseworthy. This evolution of feeling follows the evolution of his family through four generations dating from 1841 to 1912. The later observations are similar to those of an anthropologist, recording customs and rites with an observant but not judgemental eye.
In The Aborigines of Victoria Brough-Smyth (1878) presented a two volume record of the languages, place names, customs and territories of the indigenous people of the colony of Victoria. In Volume 2 there is a chapter of collected papers from the Surveyor General of the Colony (pp192-216) where mainly place names collected by many surveyors in the course of their duties are presented. More importantly is Appendix A (pp221-284)where Phillip Chauncy J.P. and District Surveyor of Ballarat presents Notes and Anecdotes of the Aborigines of Australia. He prefaces this by giving some explanation as to his qualifications for the task, and goes on to say "...and as a consequence we had to learn to speak to the natives to a great extent in their own language, and thus had frequent opportunities for observing their social position and habit". There would in all likelihood be many other meetings between surveyors and Aboriginal people recorded in field-books and diaries of the first surveyors.
These are by no means the complete experiences but go some way to presenting a background.
Many contemporary surveyors have relations, both professional and social, with Aboriginal people. That is, no doubt, at the level of the individual. At the level of the 'profession' however it is difficult to determine an overall position (if indeed this is necessary).
A perusal of all of the volumes of the Australian Surveyor found very few articles that could be related to 'aboriginal land'. One was a copy of the address given to the 20th Australian Survey Congress in Darwin by J.P.M. Long, the then Deputy Secretary of the Department of Aboriginal Affairs (Long, 1977). Another was a paper on the marking of a land grant boundary using ortho-photomaps instead of ground survey by G.K. Lindsay (Lindsay, 1983). Following the article of Long there was no correspondence in the Australian Surveyor on the issue of land rights, no comment on whether this was just or a corruption of the long established practice of English law. This could be for many reasons, not the least being that surveyors see themselves now as the servants of the law rather than as active contributors to the process.
Returning now to the three courses of response to the Mabo decision, what if anything should surveyors (or the profession) do? In the first case, it is simply to do nothing. State Governments will perhaps pass legislation to either over-ride the judgement of the High Court (which in June 1993 is a distinct possibility in Western Australia and Victoria), or to formalize procedures for transfer of title, or to determine compensation. Surveyors could simply wait by the letterbox or fax machine for contracts to survey these lands to arrive.
A reactive response would most likely be similar, wait for the process of negotiation, legislation and confrontation to produce a result. Then present the services and abilities of the profession as the solution to the land titling problem.
The pro-active response, however, offers potential for the profession as a whole to be involved in creating a more just, equitable society in Australia.
The Government's discussion paper states that there is an immediate priority to provide an efficient process for knowing where native title exists, recognising native land title quickly and determining the validity or otherwise of native title claims. The Government is committed to upholding the decision of the High Court and establishing a procedure to facilitate future land claims. There are some legal questions that will need to be resolved concerning land granted after the Racial Discrimination Act 1975 but that will be put to one side here.
A system of tribunals is proposed, but whatever the system it must provide for:
The tribunal system (either National or regional) could be established independently, or it could exist within established land and environment courts of land claim tribunals. The discussion paper then goes on to describe some of the functions of the tribunal systems including;
3.7.2 A mechanism for recording actual native title interests in particular land (a title register) should be established. This would be a public record of agreed and determined native title interests....(op.cit.,p33)
Any land management process must provide clear details of who owns which land, give fair treatment of title holder's rights and be efficient in the dealings in land, much like the current Torrens system offers.
There is now, however, an urgent need to recognise native title and deal with it at least as favourable as other forms of title. To do this there are two basic options;
It is likely that neither of these exist independently. To make the second option realistically achievable it would probably be necessary to amend legislation, particularly those dealing with the survey of boundaries.
In the case of the second option, that is the conversion of native title into statutory title, it is easy to see where this could impact on the profession. If no changes were made to existing legislation then full and complete surveys of the boundaries of the lands being claimed would be necessary in most States of Australia. In Victoria, the wording of the legislation is general enough that alternative survey techniques may be adopted in order to define Crown boundaries, providing that acceptable standards of accuracy can be proven. This creates the opportunity for modern positioning and mapping techniques like the use of the Global Positioning System (GPS) and digital photogrammetry to be used to determine the dimensions of land parcels. These techniques would be even more applicable in the larger states where great tracts of land may need to be surveyed quickly and economically in order to have a Crown grant issued. One problem remains however, and that is the meaning of the word 'boundary'.
Boundaries between Aboriginal territories are not often defined by lines (spatially) or description (non-spatially). They are often indicated by topographic, hydrographic or vegetative features (spatial) and song, dance, ceremony, story, language, body markings or painting (non spatial), (Davis and Prescott 1992). These attributes are at variance with current legislative concepts of boundaries contained in the various land acts. Indeed using the existing procedures it would be difficult to incorporate many of these in the present cadastre. Rather than forcing conformation to existing methods of delimiting borders it may well be an opportunity to change the system and no other profession has the breadth of experience with land and maritime boundaries as surveyors.
Surveyors should grasp the opportunity presented by acknowledgement of the existence of native title in Australia. The opportunity goes beyond the simple measurement of boundaries, regardless of the techniques now available. There will need to be extensive liaison with the Aboriginal people as to the limits of their territories. Surveyors should become part of that consultation process now. There will need to be amendments to legislation to incorporate new concepts of title into the cadastre, using a system that is accessible, non-adversarial, informal and expeditious. Surveyors must take a pro-active role in the process. It is not science fiction to imagine surveyors determining the perimeter of traditional lands in consultation with traditional owners, using a print of a rectified SPOT satellite image or a digital orthophotomap as a starting point and kinematic GPS where higher precision of definition is required. This technology properly employed gives the surveyor on the ground the ability to define the spatial location of a territorial limit as it is determined by consensus by the land owner themselves, on site. With the proper legislative support and an understanding of the differences between the cultures, surveyors can be an essential part of the determination and registration of native title and as such play an active role in the reconciliation of the Aboriginal people and the creation of a more just society within Australia.
The Mabo decision should be seen by all Australians as an opportunity rather than the threat so commonly portrayed. The arbiters of common law have acknowledged what has been continually asserted for 200 years by settlers, scholars, anthropologists and Aboriginal and Torres Strait Islander people - Australia was not a land belonging to nobody.
The decision highlights the importance of land in both Aboriginal and non-Aboriginal society within Australia, land as a physical, cultural and spiritual entity. The decision is an important watershed for the nation which, properly managed and implemented, has the potential to create a lasting improvement in relations between all Australians.
Much of this paper was written in 1992 a little after the High Court decision. In revising the original draft for publication it was found that many of the issues discussed under the headings regarding 'reactions' and 'implications' were already occurring, and as such were no longer necessary in the final version. By the time this version gets to press, in all likelihood many of the issues remaining will also have been addressed. In any case, hopefully a heightened awareness of the Court's decision and the impact of this on Australian society will remain.
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First Published in, The Australain Surveyor, September 1993 Vol. 38, No 3. pp. 171 - 189