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DISINTERESTED TRUTH: LEGITIMATION OF THE
DOCTRINE OF TENURE POST- MABO
SAMANTHA HEPBURN∗
[This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post- Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post- Mabo tenure lacks both legal and social legitimacy and the ‘disinterested’ perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model, based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.]
C O N T E N T S
I Introduction................................................................................................................. 2 II Australian Feudal Tenure............................................................................................ 3 III Legitimacy under British Imperial Constitutional Law.............................................. 5 A A ‘Practically Uninhabited’ Land: Terra Nullius and Enlarged Terra Nullius as a Self-Serving Myth .................................................................... 11 B The Legal Implications of the Rejection of Enlarged Terra Nullius ............ 15 C Radical Title and Tenure .............................................................................. 18 D Beyond Fiction: Australian Land Law Post- Mabo ....................................... 23 1 Towards an Expansive Common Law ............................................. 23 2 Conflict and Variance: The Extinguishment Tests........................... 25 IV An Allodial Land Model .......................................................................................... 30 V Conclusion ................................................................................................................ 37
We saw and remembered in our own favour and we persuaded ourselves along the way. Pitiless objectivity, especially about ourselves, was always a doomed social strategy. We’re descended from the indignant, passionate tellers of half truths who in order to convince others, simultaneously convinced themselves. Over generations success had winnowed us out, and with success came our de- fect, carved deep in the genes like ruts in a cart track — when it didn’t suit us we couldn’t agree on what was in front of us. … Disinterested truth.^1
∗ (^) BA, LLB (Monash), LLM (Melb); Senior Lecturer, Faculty of Business and Law, Deakin University. (^1) Ian McEwan, Enduring Love (1997) 180–1.
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I I N T R O D U C T I O N The aim of this article is to critically examine the enduring legitimacy of the feudal doctrine of tenure within the Australian land law framework. 2 From its initial adoption by a colonial legal system to its contemporary status as an institutionalised foundation of Australian land law, the validity of the tenure regime has been supported by contentious and unevaluated legal and political presumptions. There was no clear constitutional basis supporting the application of an inherited feudal tenure regime to colonial Australia. Its presence was more a product of political expediency and the directives underlying Imperial expan- sion than legitimate legal assumption. Feudal tenure may well have been the ‘birthright’ of all Englishmen and a familiar property discourse for the settlers, but its application to colonial Australia lacked any specific legal or social rationalisation. Feudal tenure was not adopted within Australia because the settlers craved the security and structure of English common law, nor because of its relevance to the social and geographical conditions of the colony. The primary motivation for the adoption of tenure within Australia was control. A system whereby the Crown assumed absolute ownership over all land and determined the manner and form of all land grants overcame the difficulties associated with the acquisition of an inhabited territory. If the system assumed that the Crown held absolute ownership and that all ownership emanated from the Crown, the problem of pre-existing ownership was effectively eradicated. The conception of the Australian tenure system was quiet, with a conspicuous absence of discussion and evaluation. Feudal tenure, with all of its ancient incidents as well as some new ‘enhancements’, was adopted by colonial courts without question and, disturbingly, without contextual evaluation. This system has endured to the present day, remarkably unscathed by the gradual emergence of unique forms of statutory land interests and, eventually, indigenous native title — even though the development of such interests is completely foreign to the feudal perspective. The decision of the High Court in Mabo to reject the fictionalised presumption of Australia as an uninhabited territory marked a critical turning point in the Australian identity. For the first time since settlement, the Court revealed a preparedness to confront the reality of indigenous existence and question the legitimacy of Australian land law. The Court paused, momentously, to assess the historical axis of assumed fiction and half-truths, with the aim of accepting the reality of indigenous proprietary title. Unfortunately, instead of utilising this opportunity to rectify an inherently flawed and illegitimate system, the Court chose to sustain it and reinvent the fiction. New devices were employed to achieve this objective. Almost immediately, the Crown was characterised as holding a ‘radical’ rather than an ‘absolute’ title,
(^2) See Samantha Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49 for a discussion of the different manifestations of tenure that have existed within Australia and their relevance after Mabo v Queensland [No 2] (1992) 175 CLR 1 (‘ Mabo ’). For a general discussion of the range of estates, see W J V Windeyer, Lectures on Legal History (2 nd^ ed, 1957) 44–7; A W B Simpson, A History of the Land Law (2 nd^ ed, 1986) 6–7.
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tenure system. In the words of Isaacs J in Williams v Attorney-General (NSW) , ‘[i]t has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show a title. When Colonies were acquired this feudal principle extended to the lands oversea [sic].’^7 The patent absence of a feudal history and any established exchange infra- structure made this inheritance awkward and ungainly. It was not even clear that this peculiarly English and feudal doctrine could be employed legitimately and effectively outside its historical context.^8 To exacerbate matters, it was extremely difficult to regulate effectively the vast Australian landscape within the parame- ters of an ancient and inflexible feudal doctrine designed to accommodate a smaller, established system.^9 Inevitably, colonial administrators were forced to introduce specific statutory grants capable of accommodating detailed provisions for the regulation and management of large areas of harsh uncultivated land.^10 Indeed, one of the primary characteristics of the Australian tenure system was the proliferation of diverse forms of statutory tenures.^11 In this respect, it is arguable that feudal tenure only ever had an illusory pres- ence within Australia — colonial jurists incessantly endorsed the feudal rhetoric whilst colonial legislators simultaneously issued specific, workable land grants.^12 This highlights the essential paradox of Australian feudal tenure: independent statutory grants with a distinctly allodial character were issued within a feudal framework that was unequipped to accept them. The disparity
(^7) (1913) 16 CLR 404, 439. These views were approved in New South Wales v Commonwealth (1975) 135 CLR 337, 438–9 (Stephen J). See also Kent McNeil, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?’ (1990) 16 Monash University Law Review 91, 99–100. (^8) This was alluded to by Brennan J in Mabo (1992) 175 CLR 1, 47 when his Honour noted that ‘universality of tenure is a rule depending on English history and … is not reasonably applicable to the Australian colonies.’ (^9) See Lee Godden, ‘ Wik : Feudalism, Capitalism and the State. A Revision of Land Law in Australia?’ (1997) 5 Australian Property Law Journal 168, 178 who notes that ‘[f]eudal property concepts, while providing a convenient fiction for the establishment of the Crown’s title to land, were limited as “regulatory template” for state allocation of … land use in the colonial era and beyond’. (^10) Ibid 179. For a discussion on the emergence of statutory land grants within an evolving capitalist framework, see also C B Macpherson, ‘Capitalism and the Changing Concept of Property’ in Eugene Kamenka and R S Neale (eds), Feudalism, Capitalism and Beyond (1975) 104. (^11) See B A Helmore (ed), The Law of Real Property in New South Wales (4 th (^) ed, 1930) 474 where the discussion of statutory grants refers to the ‘bewildering multiplicity of tenures’. This quote is referred to in T P Fry, Freehold and Leasehold Tenancies of Queensland Land (1946) 29 where the author further suggests that ‘the complexity and multiplicity of the law of Crown tenures beggars comparison’. See also Gummow J in Wik v Queensland (1996) 187 CLR 1, 174– (‘ Wik ’) where his Honour discusses the emergence of legislative activities creating tenures which were ‘unknown to the common law’. (^12) See Fry, ‘Land Tenures in Australian Law’, above n 6, 159: ‘the constitutional supremacy of Australian Parliaments and the Crown over all Australian lands, as much as the feudal doctrines of the Common Law, is the origin of most of the incidents attached to Australian land tenures.’ See also Nehal Bhuta, ‘ Mabo , Wik and the Art of Paradigm Management’ (1998) 22 Melbourne University Law Review 24, 26: ‘while the practical legal consequences of feudal doctrine were negligible in Australia, “[t]he received idea of feudalism, essentially from Blackstone and by this time highly abstracted, unequivocally informed the articulation of Australian land law”’, citing Michael Stuckey, ‘Feudalism and Australian Land Law: “A Shadowy, Ghostlike Survival”?’ (1994) 13 University of Tasmania Law Review 102, 107.
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between fact and fiction and the dislocation of Australian land law from its inherited feudal discourse became apparent.
III L E G I T I M A C Y U N D E R B R I T I S H I M P E R I A L C O N S T I T U T I O N A L L AW In order to examine the legitimacy of Australian feudal tenure and any im- pediments to its abolition, the rules relating to the acquisition of territory require examination. The international constitutional principles justifying the application of English common law to a new territory were well documented by the English common law. The Privy Council’s 1722 memorandum from an anonymous case provides an excellent outline of Imperial constitutional law concerning settle- ment, conquest and cession:
if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England … Where the King of England conquers a country … he may impose upon [the conquered people] what laws he pleases. But, … [u]ntil such laws given by the conquering prince, the laws and customs of the conquered country shall hold place …^13 To summarise, there are three different rules: the settlement rule, the conquest rule and the cession rule. Under the settlement rule, the discovery and occupation of an uninhabited territory entitles the settlers to assume control of that territory and impose existing English common law and legislation relevant to the particu- lar local circumstances. 14 By contrast, the conquest rule provides that after land has been conquered, existing local law will continue to regulate the inhabitants where such law is intelligible to the British — unless the laws are contrary to British concepts of justice and morality or are altered by the Crown.^15 Where land is acquired by cession, the rule is the same as where the land has been conquered, with the exception that the local laws are to be subject to the terms of the treaty of cession. The fundamental difference between the settlement rule and the conquest/cession rules is known as the ‘continuity principle’, under which local, intelligible laws would ‘continue’ in conquered or ceded territories. The rationale underlying the settlement rule is one of necessity: where land is uninhabited and there is no pre-existing law available to the settlers, it is only natural that the legal system of their birth country be imposed. It is a system with
(^13) Anonymous (1722) 2 P Wms 75, 75–6; 24 ER 646, 646 (emphasis in original). For a general discussion of the scope and application of this memorandum, see Mark Walters, ‘British Impe- rial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia ’ (1992) 17 Queens Law Journal 350, 359–63. (^14) Cooper v Stuart (1889) 14 App Cas 286, 291 (Lord Watson): the law of England must (subject to well-established exceptions) become from the outset the law of the Colony, and be administered by its tribunals. In so far as it is reasonably applicable to the circumstances of the Colony, the law of England must prevail, until it is abrogated or modified, either by ordinance or statute. See also Mabo (1992) 175 CLR 1, 35–8 (Brennan J). (^15) Calvin’s Case (1608) 7 Co Rep 1a, 17b; 77 ER 377, 398.
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ples not only because the physical reality of a battle or treaty did not actually exist, but also because of their distaste for the continuity of law principle: colonial courts and Imperial authorities were disinclined to allow customary Aboriginal law to have any continued application to British settlers.^25 This reluctance was founded upon a range of factors primarily associated with fear, ignorance, and racial or cultural intolerance. Counsel in R v Murrell argued that:
This country was not originally desert, or peopled from the mother country … Neither can it be called a conquered country, as Great Britain was never at war with the natives, nor a ceded country either; it, in fact, comes within neither of these, but was a country having a population which had manners and customs of their own, and we have come to reside among them; therefore in point of strictness and analogy to our law, we are bound to obey their laws, not they to obey ours. 26
Whilst the Australian Law Reform Commission considered the possibility of reclassifying Australia as a ‘conquered’ land, this proposal was never formally adopted.^27 It is also clearly established that the settlement rule need only carry as much English law as is relevant to the circumstances of the society in which it is applied.^28 The idea that the settlement principle requires the absolute assumption of an unmodified English common law cannot apply to an inhabited territory.^29 The flexibility of the settlement principle was noted by Kent McNeil, who suggests that the principle was intended to be adaptable and to sanction different forms of occupation within different communities.^30 If colonial law-makers had attempted such an adaptation, it would have al- lowed for the application of English common law to all areas except those where it was not relevant — namely, Aboriginal communities evincing a de facto autonomy. Furthermore, it may also have resulted in the rejection of English feudal tenure on the grounds of irrelevance.^31
(^25) For a general discussion of the colonial attitudes in this regard, see David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) ch 1. Neal notes that colonial law-makers ‘had trouble deciding whether the Aborigines should be treated as subjects of the Crown or foreign enemies who could be hunted down in reprisal raids and shot’: at 17. (^26) (1836) 1 Legge 72, 72. (^27) See Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws , Report No 31 (1986) vol 1, ch 5. (^28) See McNeil, Common Law Aboriginal Title , above n 23, 180–1. (^29) See generally Blankard v Galdy (1693) 2 Salk 411; 91 ER 356; Cooper v Stuart (1889) 14 App Cas 286, 291–2 (Lord Watson). This is also outlined in the writings of William Blackstone, Commentaries on the Laws of England (1 st^ ed, 1765) vol 1, 105 who notes that in countries ‘that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient [sic] laws of the country remain, unless such as are against the law of God, as in the case of an infidel country’. See also Walters, above n 13, 366–72. (^30) See McNeil, Common Law Aboriginal Title , above n 23, 115–16 where McNeil notes that ‘the diverse nature of the vast colonial empire which Britain acquired’ meant that ‘adjustments had to be made to accommodate local conditions … in settled territories containing indigenous popula- tions the importation of English law by the settler community did not necessarily abrogate pre-existing customary law.’ (^31) Ibid 116.
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A further significant issue associated with the application of the settlement principle to Australia lies in its manner of interpretation. Historically, the settlement principle is amenable to two divergent interpretations: ‘simple’ settlement and ‘complex’ settlement.^32 The basic premise of the simple interpre- tation is that both English settlers and indigenous inhabitants are subjected to one law. Where a colony was uninhabited or lacked a polity intelligible to British society, the laws of England, as relevant to their conditions, applied. Where the colony was inhabited, and the legal system and polity were intelligible, the local laws in existence at the time of acquisition would continue unless it was contrary to the British conception of justice and fairness or the Crown had expressly altered it.^33 The complex interpretation has its origins in the opinion of Master Stephen in Freeman v Fairlie ,^34 a case involving succession and property laws in Calcutta. In an interesting conclusion, after reviewing a range of Royal Charters and parliamentary statutes applicable to Calcutta, Master Stephen announced: ‘I find, in none of them, any express introduction of English law, but on the contrary, they seem all to have proceeded on the assumption that English law was already in force’. 35 Master Stephen concluded that the application of British law in Calcutta could be justified by utilising the settlement rule and treating the land as effectively uninhabited. Once settlement was justified, the continuity principle could then be applied to validate the perpetuation of any pre-existing indigenous legal system. This ‘complex’ interpretation was effectively a combined application of the settlement and the continuity principles.^36 The spirit of the complex interpreta- tion was endorsed by the Privy Council in Amodu Tijani where Viscount Haldane stated that, in accordance with British policy and law,
[t]he general words of the cession are construed as having related primarily to sovereign rights only. … Where the cession passed any proprietary rights they
(^32) The simple and complex annexation rules are outlined by Walters, above n 13, 366–85. (^33) The simple settlement and conquest/cession interpretation is derived from the comments of Lord Mansfield in Campbell v Hall (1774) Lofft 655, 741; 98 ER 848, 895: the law and legislation of every dominion equally affects all persons and property within the limits thereof, and is the true rule for the decision of all questions which arise there: whoever purchases, sues or lives there, puts himself under the laws of the place, and in the situation of its inhabitants. (^34) (1823) 1 Moo Ind App 305; 18 ER 117. (^35) Ibid 321; 126. (^36) The complex interpretation of Imperial constitutional law also finds judicial support in early American decisions: Johnson v M’Intosh , 21 US (8 Wheat) 543, 574 (1823) (‘ Johnson ’) where Marshall CJ stated that the original inhabitants were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original funda- mental principle that discovery gave exclusive title to those who made it. See also Worcester v Georgia , 31 US (6 Peters) 515 (1832); and the New Zealand decisions R v Symonds (1847) NZPCC 387; Hineiti Rirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1.
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Nevertheless, it was very clear to all members of the High Court that, in order to develop and recognise indigenous land title, a re-examination of the discrimina- tory and archaic foundations of Australian land law was imperative.^44 The first rationalisation involved the rejection of what the Court described in Mabo as the doctrine of ‘enlarged terra nullius’. It was this principle, the Court argued, which presumed that land should be regarded as uninhabited where it was occupied by indigenous inhabitants who were intrinsically barbarous and therefore legally irrelevant.^45 This principle, more a reflection of social attitude than of any articulated legal doctrine, was not uncommon amongst Imperial expansionists as there were very few uninhabited territories available to Euro- pean colonists: most desirable lands already had indigenous occupants. The strong desire to claim unfettered Imperial sovereignty and settle such lands undoubtedly encouraged the use of inventive legal concepts. Hence, British law applied to Australian colonies because the colonists regarded the land as uninhabited and proceeded with complete disregard to indigenous existence.^46 Such blatant social and institutional racism is particularly striking in Western societies: in a culture where equality of rights is the official norm, gross inequal- ity of treatment must somehow be justified. Whilst Western liberalism claims that ‘all men are created equal’, systemic inequality can only be justified upon the grounds that the victims of discrimination are not fully human:
What makes Western racism so autonomous and conspicuous in world history has been that it developed in a context that presumed human equality of some kind … and there are groups of people within the society who are so despised or disparaged that the upholders of the norms feel compelled to make them ex- ceptions to the promise or realization of equality, they can be denied the pros-
digenous property rights are acceptable only to the extent that they conform (or can be made to conform) to the ‘skeleton’. See also Stewart Motha, ‘ Mabo : Encountering the Epistemic Limit of the Recognition of Difference’ (1998) 7 Griffith Law Review 79, 80 where the author notes that Mabo was ‘not a cessation of colonialism or a postcolonial moment. It is a continuation of colonial rule whereby the original inhabitants are forced to accept the invader’s law and its translation of their relation- ship to the land’ (emphasis in original). (^44) In the words of Brennan J in Mabo (1992) 175 CLR 1, 45: It was only by fastening on the notion that a settled colony was terra nullius that it was possi- ble to predicate of the Crown the acquisition of ownership of land in a colony already occu- pied by indigenous inhabitants. … If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. (^45) See the discussion on terra nullius by Sir Harry Gibbs, ‘Foreword’ in M Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) xiii, xiv. (^46) See especially Gerry Simpson, ‘ Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ (1993) 19 Melbourne University Law Review 195, 200: ‘The accepted and prevailing version of Australian history in 1889 could not deny the existence of the Aboriginal peoples entirely, but could easily accommodate a construction of them as unsettled, primitive and without law.’ See also Michael Asch and Patrick Macklem, ‘Aboriginal Rights and Canadian Sovereignty: An Essay on R v Sparrow ’ (1991) 29 Alberta Law Review 498, 511 who suggest that territorial sovereignty under the settlement principle was justified, not because the land was vacant, but rather, because the settlers assumed themselves to hold a better claim than the original inhabitants on the basis of a presumed superiority ‘of Chris- tianity over heathen religions, of agriculture over hunting and gathering, of western cultural institutions such as private property over non-western notions, and, of course, of one skin colour over another’.
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pect of equal status only if they allegedly possess some extraordinary defi- ciency that makes them less than fully human. 47 The rejection of enlarged terra nullius by the High Court in Mabo represented a significant reassessment of settlement assumptions. Nevertheless, the weakness of the decision lay in the failure of the High Court to go further and examine the enduring legitimacy of a system founded upon an unexamined application of the settlement principle to an inhabited territory. From a contemporary perspective, this application was illegitimate and was therefore unable to support the direct application of a feudal doctrine of tenure.^48 The conviction of a presumed mandate has, particularly post- Mabo , become an insufficient foundation for tenure now that Aboriginal identity has both a physical and a legal reality.^49
A A ‘Practically Uninhabited’ Land: Terra Nullius and Enlarged Terra Nullius as a Self-Serving Myth The connection between tenure and terra nullius and the effect that its rejection has had upon the enduring legitimacy of tenure is significant and requires further explanation. According to William Blackstone, uninhabited lands referred to lands which were ‘desart [sic] and uncultivated’.^50 These lands had no previous legal system or land tenure. The exact meaning of ‘desart [sic] and uncultivated’ remains unclear — although it is very likely that the reference to desart and uncultivated lands means that for territorial sovereignty to be assumed, the land must be proven to be both unoccupied and uninhabited; that is, terra nullius in an absolute sense. 51 In a literal sense, terra nullius means that the land is physically vacant and uninhabited; in a legal sense, terra nullius implies a vacant status — land which is either physically or legally regarded as vacant.^52 The legal concept of terra nullius is derived from the early Roman principle known as occupatio , which conferred automatic title upon the discoverer of property which was res nul- lius — that is, property which belonged to nobody. 53
(^47) George Fredrickson, Racism: A Short History (2002) 11–12. (^48) See David Ritter, ‘The “Rejection of Terra Nullius” in Mabo : A Critical Analysis’ (1996) 18 Sydney Law Review 5, 6: ‘Traditional Aboriginal society was no longer seen as having been mendicant and without laws, and Aboriginal people were no longer seen as backward or inferior. The result was … a crisis of legitimacy for the rule of law in Australia.’ (^49) This is clearly outlined by Gerry Simpson, above n 46, 200 where he notes that the Aboriginal inhabitants were regarded as ‘physically present but legally irrelevant’. (^50) Blackstone, above n 29, vol 1, 104. (^51) Henry Reynolds, The Law of the Land (2 nd^ ed, 1987) 33– 4. (^52) The diversity of the meaning of terra nullius was acknowledged in 1975 by the International Court of Justice in Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. However, the Court concluded that terra nullius was not applicable to a land inhabited by socially and politically organised occupants. The Court was asked to determine whether Western Sahara was, at the time of its colonisation by Spain, a territory that belonged to no-one. It responded that Western Sahara was not, because the information given to the Court indicated that it ‘was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them’: at 39. (^53) See E de Vattel, The Law of Nations or the Principles of Natural Law, Applied to the Conduct and to the Affairs of Nations and Sovereigns (Charles Fenwick trans, first published 1758, 1916 ed) 84 [trans of: Le Droit des Gens, ou Principes de la Loi Naturelle, Appliqués à la Conduite
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rights. His Honour specifically noted that ‘the attribution of a colony to a particular class is a matter of law, which becomes settled and is not to be questioned upon a reconsideration of the historical facts.’^58 Milirrpum has been critically condemned and the need for a comprehensive judicial overhaul of the doctrinal foundations of English settlement has become increasingly apparent.^59 Ninety years after Cooper v Stuart , the High Court in Coe v Commonwealth concluded that the settlement rule applies where the land is terra nullius because the territory ‘by European standards, had no civilized inhabitants or settled law.’ 60 Murphy J, in dissent, challenged the validity of the ‘settlement’ of Australia, noting that:
there is a wealth of historical material to support the claim that the aboriginal people had occupied Australia for many thousands of years; that although they were nomadic, the various tribal groups were attached to defined areas of land over which they passed and stayed from time to time in an established pattern; that they had a complex social and political organization; that their laws were settled and of great antiquity …^61 Interestingly, the judgments in Coe v Commonwealth failed to justify the terra nullius principle, with Gibbs J preferring to reiterate the orthodox presumption that Australia was settled because it ‘has always been regarded’ as such. 62 These decisions highlight the inherent artificiality of a system which piled fiction upon fiction:^63 feudal tenure was created from a mandate without legal or social foundation, a mandate arising from a ‘series of elisions and slippages that came to characterize Australian judicial pronouncements on acquisition and to provide the tools for a series of artificial and purely formal reconciliations of law, politics and history.’ 64 Colonial law-makers did not bother justifying the settlement of Australia under terra nullius because, from their perspective, indigenous inhabitants were so barbaric and inhuman that they did not deserve legal recognition. By describing Australia as ‘practically uninhabited’, the courts developed a self-serving myth, reinforced by the construction and rejection of the terra nullius concept in Mabo.
(^58) (1971) 17 FLR 141, 202–3. (^59) See Richard Bartlett, Native Title in Australia (2000) 14 where the judgment of Blackburn J is described as ‘singularly flawed’. See also Gerry Simpson, above n 46, 201 who notes that whilst Blackburn J in Milirrpum found that no doctrine of communal native title existed at English or Australian common law, ‘[i]n Mabo , the Judges, using the same series of authorities as Black- burn J, came to the opposite conclusion.’ (^60) (1979) 24 ALR 118, 129 (Gibbs J), 138 (Aickin J agreeing). (^61) Ibid 138. (^62) Ibid 129. See also Ritter, above n 48, 19 where he notes that the use of terra nullius was ignored by Gibbs and Aickin JJ in Coe v Commonwealth and Jacobs J ‘construed it as a matter related to the “law of nations”, that was not for consideration by a municipal court.’ (^63) See the comments of Kirby J in Fejo v Northern Territory (1998) 195 CLR 96, 152 (‘ Fejo ’). (^64) Gerry Simpson, above n 46, 200. In this regard, the comments of John Borrows, ‘Sovereignty’s Alchemy: An Analysis of Delgamuukw v British Columbia ’ (1999) 37 Osgoode Hall Law Jour- nal 537, 568 are appropriate: ‘Words, as bare assertions, are pulled out of the air to justify a basic tenet of colonialism: the settlement of foreign populations to support the expansion of non- Indigenous societies.’
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This had an indirect impact upon the validity of the tenure system. Feudal tenure was an efficient system within an uninhabited territory because it pre- sumed the absence of any other form of proprietary identity.^65 However, the proprietary landscape of a ‘practically uninhabited’ land was completely differ- ent — the existence of indigenous inhabitants meant that it was not possible to suggest that all land ownership emanated from the Crown. Instead of adapting and significantly revising feudal tenure to accommodate this difference, colonial law-makers assumed that the issue could be overcome by simply ignoring the reality of indigenous existence. This approach took the doctrine beyond its binary perspectives, imbuing it with an explicit ethnocentricity.^66
In seeking the conquest of the earth, the Western colonizing nations of Europe and the derivative settler-colonized states produced by their colonial expansion have been sustained by a central idea: the West’s religion, civilization, and knowledge are superior to the religions, civilizations, and knowledge of non-Western peoples. This superiority, in turn, is the redemptive source of the West’s presumed mandate to impose its vision of truth on non-Western peo- ples.^67 It was not until Mabo that the High Court was prepared to accept that feudal tenure existed because of a blatant and socially unacceptable discrimination against indigenous inhabitants.^68 However, instead of acknowledging the social reality of such discrimination, the High Court channelled it into a legal device — enlarged terra nullius — which became ‘a genteel way to sweep the great injustice under the carpet, to salve the consciences of pioneers and their descendants by denying that there had ever been a conflict or that the Aborigines had possessed land.’ 69 It also perpetuated a framework for internal colonialism. As noted by David Ritter:
‘Discourse of terra nullius ’ describes both the ‘legal framework for the legal legitimacy of the invasion’, and ‘the development and functioning of the inter- nal colonialism which has characterised the Australian political economy ever since.’ 70
(^65) For a discussion of the nature of English feudal tenure, see Bennett, above n 4, 130. (^66) This term is used by McNeil, ‘A Question of Title’, above n 7, 92. (^67) Robert Williams Jr, The American Indian in Western Legal Thought: The Discourses of Conquest (1990) 6. (^68) Brennan J in Mabo (1992) 175 CLR 1, 39 cited Re Southern Rhodesia [1919] AC 211, 233 as authority for the application of the enlarged terra nullius principle, referring to the comments of the Privy Council that the indigenous inhabitants were regarded as ‘so low in the scale of social organization’ that they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. The difficulty with the decision in Re Southern Rhodesia is that it actually dealt with the conquest principle and not the settlement principle. This inaccurate refer- ence to Re Southern Rhodesia was identified by Bartlett, Native Title in Australia , above n 59, 24–5; Ritter, above n 48, 23. (^69) Bruce Kercher, An Unruly Child: A History of Law in Australia (1995) 20. (^70) Ritter, above n 48, 12–13 (citations omitted). See also Bartlett, Native Title in Australia , above n 59, 25 where he notes: ‘It is suggested that the rhetoric with respect to the rejection of terra nullius and the erroneous reasoning of Brennan J with respect to Re Southern Rhodesia opened the High Court to public attack on the ground of “making law” and inventing the con- cept of native title.’
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cally rationalised the continued presence of tenure on the basis of consistency, stability and a desire to perpetuate the English system of private ownership.^76 The eventual rejection of terra nullius did not alter the perception that tenure was a legitimately inherited doctrine. A significant issue for the ongoing legality of the doctrine of tenure in Austra- lia is whether the rejection of enlarged terra nullius has removed the basic prerequisites for a tenurial system. There are two possible responses to this. The first argues that the rejection of enlarged terra nullius effectively invalidates the settlement of Australia. Consequently, the inheritance of English common law and the application of feudal tenure lack constitutional validation. In light of this, fictionalised doctrines such as feudal tenure, which are incapable of responding to the contemporary needs of a bicultural land system, should be abolished. The second response argues that the rejection of enlarged terra nullius may have invalidated the settlement of Australia. However, the application of English common law is justifiable under what is best described as the ‘acceptable continuance’ rationale. According to this principle, any inherited law which has become, through the effluxion of time, what the High Court has described as ‘skeletal’ cannot be disturbed. In accordance with this argument, it is literally too late to abolish feudal tenure. 77 The acceptable continuance rationale was expressly endorsed by the Court in Mabo. Brennan J argued that land tenures granted in Australia under the ‘ac- cepted land law cannot be disturbed’ in the following passage:
It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind, and the titles acquired under the accepted land law cannot be disturbed. 78 Although the Court revealed a willingness to depart from English precedent, particularly where it seriously offended contemporary values, Brennan J felt that any such departure could not be justified where it would ‘fracture the skeleton of principle’.^79 Deane and Gaudron JJ came to similar conclusions, stating that: If the slate were clean, there would be something to be said for the view that the English system of land law was not, in 1788, appropriate for application to the circumstances of a British penal colony. It has, however, long been accepted (^76) See especially Mabo (1992) 175 CLR 1, 47 (Brennan J). Brendan Edgeworth argues that the retention of the doctrine of tenure was founded upon ‘the political and ideological functions played by this doctrinal mythology’: see Brendan Edgeworth, ‘Tenure, Allodialism and Indige- nous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland ’ (1994) 23 Anglo-American Law Review 397, 427. (^77) This rationale was outlined by Brennan J in Mabo (1992) 175 CLR 1, 47. See also Bhuta, above n 12, 36 who notes that ‘[m]odern legal doctrine, with its tendency towards reification, had “forgotten” the social realities that gave rise to feudal land law while retaining in abstracto its concepts and terms as the theoretical justification for the force of law’ (citations omitted). (^78) Mabo (1992) 175 CLR 1, 47 (emphasis added). (^79) Ibid 29.
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as incontrovertible that the provisions of the common law which became appli- cable upon the establishment by settlement of the Colony of New South Wales included that general system of land law.^80
The acceptable continuance rationale was reiterated by Brennan J in Wik , where his Honour concluded that ‘[i]t is too late now to develop a new theory of land law that would throw the whole structure of land titles based on Crown grants into confusion.’ 81 There is, however, an inherent circularity associated with the acceptable con- tinuance rationale. How can it be too late to overturn British land law principles when Mabo was the first case to actually investigate their ‘presumptive’ validity? Furthermore, the acceptable continuance rationale assumes that the adoption of the tenure regime was legitimate in the first place — this is, of course, dependent upon the assumption that the settlement of Australian territory was valid. However, this elaborate construction collapses with the removal of terra nullius discourse. Finally, and perhaps most significantly, the acceptable continuance rationale is based on the fundamental premise that legitimacy is increased with the effluxion of time. This is a weak and unsubstantiated argument. British law does not become ‘more legitimate’ with the passing of time. In fact, quite the contrary has been the case with the doctrine of tenure — a fiction which has become increas- ingly irrelevant and marginalised with the evolution of an array of unique statutory tenures and, post- Mabo , the emergence of a distinct, bicultural land identity.^82 Ultimately, the removal of enlarged terra nullius, a fable existing as a conse- quence of the constructive ingenuity of the High Court, highlights the illegiti- macy of settlement and the inherited common law. Working from this position, there is no legal impediment to the abolition of the doctrine of tenure. Feudal tenure should not endure just because it is all that Australia has ever known. This assumption is particularly flawed when we consider that racism and discrimina- tion are the elementary reasons why we have only ever known British law.^83 Ultimately, the Australian legal system is dynamic, in need of continual legitima- tion; the idea that it is ‘far too late in the day’ for change or that the basic laws
(^80) Ibid 81 (citations omitted). See also the judgment of Brennan J, who quotes Sir Frederick Pollock and Frederic William Maitland, History of English Law before the Time of Edward I (2 nd ed, 1959) vol 1, 236, arguing that ‘the notion of universal tenure “perhaps was possible only in a conquered country”’: at 46; Edward Jenks, A History of the Australasian Colonies: From Their Foundation to the Year 1911 (3 rd^ ed, 1912) 59. (^81) (1996) 187 CLR 1, 93. (^82) As noted by Jenks, above n 80, 59 in discussing the relevance of the feudal doctrine of tenure, ‘[i]t may seem almost incredible that a question of such magnitude should be settled by the revival of a purely technical and antiquarian fiction.’ See also Godden, above n 9, 166 for a discussion of whether the conceptual framework of the common law ‘continues to have rele- vance to the very different social, economic, cultural and physical environment that distin- guished, and continues to distinguish, Australia from feudal England.’ (^83) For a discussion on the racist assumptions underpinning the common law, see Valerie Kerruish, Jurisprudence as Ideology (1991) 15 who describes the dispossession of indigenous inhabitants from the land and the application of English law as an ‘act of ideological genocide.’ See also Dianne Otto, ‘A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia’ (1995) 21 Syracuse Journal of International Law and Commerce 65, 77: ‘The colonial creation story, mirrored by the legal system, was one grounded in racism and elitism.’
2005] Disinterested Truth 19
Nevertheless, it was held that native inhabitants and their heirs could hold title without any grant or confirmation by the conqueror.^90 It was clear that the only customary title which the common law would support was that perceived to be consistent with basic common law tenets.^91 In Mabo , Brennan J concluded that it was time to develop an exception to the strict consistency requirements outlined in the Case of Tanistry , so that customary native title could be enforced even where it was inconsistent with common law assumptions.^92 The enforcement of such customary title was possible with the acceptance of a radical Crown title. Radical title was, in the words of the Privy Council in Amodu Tijani , a title which was ‘throughout qualified by the usufructuary rights of communities’.^93 However, the Privy Council made it very clear that ‘much caution’ had to be taken in rendering indigenous ‘title conceptually in terms which are appropriate only to systems which have grown up under English law.’^94 Viscount Haldane described the title of the indigenous occupants in a ceded territory as presumptive: it is a title based upon the assumption that the Crown has accepted the indigenous occupants as subjects and the indigenous occupants, in turn, have agreed to be bound by the new rule of law.^95 In this way, the title of indigenous occupants was communal and usufructuary in character but could ‘not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from … the mere analogy of English jurisprudence.’ 96 It is important, however, to distinguish the form of title adopted within Amodu Tijani from the circumstances confronted by the Court in Mabo. The acceptance of a ‘presumptive’ title within a ‘ceded’ territory differs dramatically from a customary title endorsed within an allegedly ‘settled’ territory. Australian native title is not actually or presumptively a derivation of the Crown. The estrange- ment of indigenous inhabitants upon the annexation of Australian colonies makes it difficult to suggest an implied ‘reciprocal agreement’ between the Crown and indigenous occupants. Further, upon the settlement of Australia, it was initially assumed that the Crown automatically became the absolute owner of all land.^97 Australian native title is not, therefore, a presumptive title issued by the Crown but rather an encumbrance which burdens the ownership status of the Crown. Australian radical title is the postulate for native title, but the proprietary identity of native title is not dependent upon it. For example, native title was recognised
(^90) Ibid 122. See especially Shaunnagh Dorsett, ‘“Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry ’ (2002) 26 Melbourne University Law Review 32. Brennan J refers to the Case of Tanistry and Witrong and Blany (1674) 3 Keb 401; 84 ER 789 in Mabo (1992) 175 CLR 1, 49. (^91) Case of Tanistry (1608) Dav 28; 80 ER 516; Davies translation 94–9. (^92) Mabo (1992) 175 CLR 1, 49: ‘there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures.’ (^93) [1921] 2 AC 399, 404 (Viscount Haldane). (^94) Ibid 402–3. (^95) Ibid 407. (^96) Ibid 403. (^97) See especially McNeil, Common Law Aboriginal Title , above n 23, 175–7 who considers the ‘recognition doctrine’ in respect of settled territory which ‘seems to involve a presumption that all property would vest in the Crown upon acquisition of a territory. … the recognition doctrine postulates a state of affairs which, if taken seriously, would be potentially chaotic’: at 177.
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in land below the low-water mark in Commonwealth v Yarmirr , even though the Crown held no radical title in it.^98 Australian native title is not a creature of the common law; it is both culturally and conceptually extraneous to the feudal framework. Hence, the radical title accepted by the Australian High Court is quite different to that endorsed by the Privy Council in Amodu Tijani. Australian radical title endows the Crown with absolute ownership subject to a native title encum- brance, which may be extinguished in circumstances where the Crown has issued an inconsistent land grant. By contrast, the Privy Council version of radical title presumed that the Crown actually issued land title to indigenous occupants so that the Crown retained absolute ownership in the same way that it retained ownership over other forms of estate. Hence, when Viscount Haldane in Amodu Tijani described the radical title as ‘a pure legal estate, to which beneficial rights may or may not be attached’,^99 his Lordship merely described the title of the Crown where a valid land tenure has been issued. Australian radical title can, where native title is effectively established, have the effect of significantly reducing the ownership status of the Crown. Whilst this ‘deterioration’ is vital for the recognition of native title, it is fundamentally inconsistent with traditional feudal tenure principles. Brennan J argues in Mabo that ‘the fallacy of equating sovereignty and beneficial ownership’ resulted in the extinguishment of native title following the acquisition of sovereignty.^100 However, his Honour overlooks the fact that this ‘fallacy’ was the cornerstone of the inherited feudal regime. Australian radical title may well be ‘no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law’, but it is directly inconsistent with the tenets of a land system based upon absolute sovereignty. 101 English feudal tenure was predicated on the assumption that the Crown was the paramount lord over all conquered land. This title therefore gave the Crown the power to issue land tenures.^102 As outlined by Blackstone, absolute Crown ownership was an essential postulate
(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 immedi- ately been derived as a gift from him …’ 103
(^98) (2001) 208 CLR 1, 50–2 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). This point was raised by Melissa Perry and Stephen Lloyd, Australian Native Title Law (2003) 12. (^99) [1921] 2 AC 399, 403. (^100) Mabo (1992) 175 CLR 1, 51. (^101) Ibid 54 (Brennan J). (^102) See Pollock and Maitland, above n 80, vol 1, 773, who note that ‘the King had dominium directum, the subject dominium utile’. The authors were cited in the judgment of Brennan J in Mabo (1992) 175 CLR 1, 46. Universal ownership was a convenient and fundamental fiction. (^103) Blackstone, above n 29, vol 2, 51. See also Hepburn, above n 2, 75–81 where the post- Mabo doctrine of tenure is described as ‘radical tenure’.
