A Legal Justification for a Treaty between Australia and Its Indigenous Peoples

Previously, Blackstonian notions of dominion and control had dominated legal thinking about how to make claims to property. The Crown in right of the State of Queensland had difficulty establishing to the satisfaction of their Honours a legal relationship or right to the property it claimed it had vested in a crocodile under the Fauna Act. That relationship to property in the crocodile was said to ground the Crown’s right to prosecute an indigenous man who took that crocodile in accordance with his traditional laws and customs. The Court held that the Crown could not establish that legal relationship sufficient to overturn the man’s honest claim of right to take the crocodile by exercising his native title right to hunt the crocodile.

Likewise, the history of land law in Australia is one of difficulty in establishing exactly how the Crown in right of the States establishes a legal relationship to land such that it exercises lawfully its right to grant, demise or dispose of land. The Mabo judgment has done much to put those claims onto a more secure foundation, but as one author has put it, the ‘radical title fiction’ has simply replaced the ‘feudal fiction.’¹

And of course, Mabo could say nothing about the acquisition of sovereignty over Australia’s land mass and territorial seas. It was not a question justiciable in a court deriving its power from the Commonwealth Constitution, whose authority derives from that very sovereignty.²

So claims of a legal relationship to land by the States remain compromised. After the Uluru Statement of the Heart, the Commonwealth’s recognition of Aboriginal sovereignty is also now under the spotlight. This paper seeks briefly to survey some of the voluminous literature on these related topics. It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. This paper seeks to articulate that justification for a general legal readership.

It is divided into two parts: the first part examines the difficulties of the natural law arguments in Mabo to deal with the sovereignty and land management issues that will not go away, and explores the origin and role of terra nullius in creating those difficulties. The second part sets out the legal argument for a compact/Makkerata or recognition of prior sovereignty in Indigenous Australians, based both on part 1 and the New Zealand precedent.

Several propositions derived from the literature can be baldly stated, and then examined more closely.

1. Terra Nullius (‘land without an owner’) has its origins in Roman natural law, as does territorium nullius (‘country with no internationally recognised sovereign’).
2. Initially the concept was used to justify indigenous rights to land, because as early as the 16^th century, land inhabited by indigenous peoples was not considered ‘desert and uninhabited’ for the purposes of international sovereigns’ acquisition of
3. In the scramble for Africa in the late 19^th century, the 16^th century formulation was turned on its head using a property framework: land could nevertheless be considered terra nullius if it was inhabited by indigenous people who were “so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society’ (In re Southern Rhodesia (1919) AC 211 at 233-234).

Andrew Fitzmaurice has very usefully explained the origins of terra nullius in the Roman law idea of the first taker. That which is captured by the first taker becomes his or her property. If applied to territory inhabited by indigenous peoples, the original law of nations provided that ‘’goods which belong to no owner [that is, no sovereign] pass to the occupier.’”³ On this view, a mainly Continental European one, dispossession of first nation peoples was wrong. The English, citing Locke, inverted it:

those who mixed their labour with the soil and with things available in nature were entitled to a first claim to property rights in those things, a sort of first taker as first fashioner.⁴

These two results from the different understandings of terra nullius fought for supremacy in the 19^th century. Eventually the scramble for Africa in the late 19^th century saw the English formulation temporarily win out.⁵ But by 1975, in international law, the anti-dispossession view of terra nullius was re-established: “‘Occupation’ being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid ‘occupation’ that the territory should be terra nullius – a territory belonging to no-one – at the time of the act alleged to constitute ‘occupation.’” Those “territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius”.⁶ Thus we can state proposition 6.

4. The justification by European powers for the acquisition of African territories using a concept of terra nullius turned on its head lost momentum at least by the time of the Advisory Opinion of the International Court of Justice in 1975 on the Western Sahara ((1975) ICJR at 39). It was clear that land could only be settled if there were no indigenous inhabitants at all. At this point, Paul Coe began to prepare his statement of claim for Coe v Commonwealth, which argued that terra nullius had grounded British justifications for the acquisition of the absolute beneficial ownership of the land by the Crown. But, as we have seen from proposition 3, this was never the case as terra nullius was never mentioned in the 19^th century British historical records about Australia. And it was not mentioned in the case law either

As Connor has pointed out, it was the Advisory Opinion on Western Sahara in 1975 which led directly to the idea of terra nullius taking hold of the historical and legal imagination in Australia. Paul Coe’s statement of claim in Coe v the Commonwealth used the concept expressly, and it was taken up by historians such as Reynolds and others.⁷ Thus it is now necessary to put proposition 4:

5. Terra nullius was not used by the British Crown to justify the acquisition of territory in Australia.

There is no reference to terra nullius being the basis for settlement in 19^th century historical sources relating to the settlement of Australia. The second part of this essay will address the basis as it appears in the archive.

At law, commencing with Attorney-General v Brown⁸ and then by assertion in subsequent cases (see proposition 7), occupancy of the Crown by settlement of British subjects in the new colony of New South Wales grounded absolute beneficial ownership. To use the Roman law concepts here, the occupancy of the Aboriginal people was not considered sufficient to make them first taker and thus property owner of the land in the new colony. The Crown’s title, through settlement (or to put it another way, through the occupancy of British settlers) gave them the status of first taker in the eyes of the Supreme Court of NSW: “…in a newly-discovered country, settled by British subjects, the occupancy of the Crown is no fiction… Here is a property, depending for its support on no feudal notions or principle.”

But this case must not be wrenched from its historical context. In Attorney-General v Brown, a landowner tried to take coal from his granted land where a reservation clause in the grant provided for Crown ownership of the coal. The case took the form of a Crown information against the defendant landholder Brown for intruding into the coal seams and trespassing on the Crown’s rights to the coal in the soil. Brown’s intrusion was a direct attack on the Crown’s albeit fictional feudal right as ultimate holder of the title to the waste lands. The attack went further: “The defendant’s counsel maintained that there was a material difference between dominion, or the right of sovereignty over the soil and country, which were unquestionably in the Crown, and the possession or the title to the possession in or of that soils, with power to grant the same at her discretion, which title be broadly denied.”⁹

In Cooper v Stuart,¹⁰ a landholder sought to prevent the Crown from resuming 10 acres reserved in the original grant in 1823 of the Waterloo estate for a public park. In passing their Lordships referred to NSW as “a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.” In this sense the comment was more akin to obiter than a ratio. The case was about the reception of English law into the new colony and only en passant does it address the issue of indigenous rights to land. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. Where the indigenous people were in “actual occupation”, however, was a question to which the facts on the ground did not readily admit an answer.

But, we shall see in part 2, these cases were all to attack or defend the Crown’s prerogative against settlers “pushing the envelope” to narrow that prerogative so as to enlarge individual rights in a colony far from the centre of British metropolitical power. They did not mention indigenous rights at all, except to appear to argue, interesting in hindsight, that such Aboriginal rights were allodial in nature.¹¹ This legal statement can only be reconciled to the historical record using the propositions discussed in part 2.

Each of the cases (Attorney-General v Brown, Cooper v Stuart) in the 19th century were designed to guard the Crown against the unwarranted overreach of powerful and wealthy colonists intent on challenging the skeleton of principle underpinning English land law and the exercise of the Crown’s prerogative through Governors in granting land before any representative assembly was established. Attorney-General v Brown must, as we shall see, be viewed in light of the battle Governor Gipps ultimately lost in exercise of the Crown’s prerogative to protect the lands beyond the limits of location from the unlawful encroachment by squatters. The Crown in London gave up the fight to stop leases being given to those who had simply spread out beyond the limits of location, and passed the 1846 waste lands legislation providing for leases of Crown land. This was not because necessarily indigenous rights were ignored. They were simply not relevant to the parties to the proceedings in the two cases. But nevertheless Cooper v Stuart mandates the statement of proposition 6 because in 1971 Justice Blackburn still considered himself bound by it:

6. The key Australian decision from the Privy Council in Cooper v Stuart ((1889) 14 App Cas at

291) was heavily influenced by this reversal of argument previously used to protect indigenous rights in the face of colonial acquisition of territory. Importantly, Cooper v Stuart, through the doctrine of stare decisis, prevented Justice Blackburn in Milirrpum v Nabalco ((1971) 17 FLR 141 at 242) from recognising indigenous rights to land in the Northern Territory.

And proposition 7 can be stated because it demonstrates just how flimsy the legal basis established in Cooper v Stuart was to justify the denial of indigenous rights to land.

7. In Mabo no 2, their Honours Deane and Gaudron JJ critically examined the Australian cases which underpinned the original legal claim of the British Crown to absolute beneficial ownership of land in Australia. These were Attorney General v Brown, Williams v Attorney General (NSW),¹² Randwick Corporation v Rutledge¹³ and Cooper v Stuart (at 102 of Mabo no 2). The first thing that strikes you about all of these cases, as it struck their Honours, is that they are all based ultimately on “little more than bare assertion” (at 103-104 Mabo no 2).

So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. Brennan J’s decision recognised the indigenous right to occupancy of the land, sovereignty over which was acquired by the British Crown.¹⁴ The occupancy of the Aboriginal people, in the absence of any claim to sovereignty, gave them ownership as first taker. At least that is what the law now says.

The problem is how to explain how that ownership appeared to be ignored when the law was based on mere assertion and could hardly ground a reasonable justification for Crown absolute beneficial ownership of land, and when that common law was promulgated in the context of battles over the extent of the Crown prerogative in the new colony of NSW without reference to indigenous interests. Part 2 will address this question, and explain how the assertion of the law was contextualised as part of the colonial project to ignore indigenous claims to ownership as first taker. It will examine these further three propositions:

8. To justify the acquisition of land in Australia, the British combined the common law notion of settlement (from Blackstone), an argument of indigenous rights to land where the indigenous people were in ‘actual occupation’, and a scale of civilisation framework borrowed from both the Lockean idea of property rights being generated from labour mixing with the soil and the Scottish moral philosophers four stages of civilisation (Hunter-gatherers, Agriculture, Mercantilism and Industrialisation). Despite the Treaty of Waitangi, this idea of actual occupation coupled with the labour theory of property was applied not just by British settlers but by the Crown in New Zealand as well as Australia (where no treaties were made by the Crown).
9. As a result, neither conquest, cession by treaty nor settlement establishes an uncontestable relationship to property of each State and Territory in the land those jurisdictions encompass.
10. A political compact or settlement which addresses past wrongs, establishes a proper basis for the acquisition of land by the Crown, and settles the compensation which is required to seal that compact between the States, the Territories and the Commonwealth on the one hand. and the indigenous peoples of Australia on the other should now be actively debated by Australian society at large, not just by academics and elites. Only then can the Crown in each of its capacities in Australia establish a legal relationship between its claims to sovereignty and rights in the land. On this view, Mabo is only a step on the path to the establishment of that legal relationship. Without it, Australia cannot claim to be a post-colonial landscape.

¹ Ulla Secher “The doctrine of tenure in Australia post-Mabo: Replacing the ‘feudal fiction’ with the mere radical title fiction – Part 2 (2006) 13 Australian Property Law Journal 140

² Coe v Commonwealth (1979) 53 ALJR 403; Mabo v State of Queensland (no 2) (1992) 175 CLR 1 at 31

³ A Fitzmaurice “The Genealogy of Terra Nullius” (2007) 129 Australian Historical Studies at 7 quoting Francesco de Vitoria

⁴ Ibid, 8

⁵ In re Southern Rhodesia, [1919] AC at 232

⁶ Advisory Opinion on Western Sahara, [1975] ICJR at 39

⁷ M Connor, The Invention of Terra Nullius: historical and legal fictions on the foundations of Australia Sydney: Maclaey Press 2005. This is a very interesting and well researched book marred by its sometimes hectoring tone and enthusiastic embracement of the revisionist side of the History Wars; Coe v Commonwealth (1979) 53 ALJR 403; (1993) 118 ALJR 110; H Reynolds The Law of the Land 2^nd ed Melbourne: Penguin Books 1992. See also footnote 2 in Fitzmaurice, “The Genealogy…”

⁸ (1847) 1 Legge 312 at 316

⁹ At 316

¹⁰ (1889) 14 App Cas 286 at 291; (1886) NSWR 1; Evening News, Sydney, Monday 17 August 1885 at 5; Darling Downs Gazette Saturday 6 April 1889; The Daily Northern Argus Rockhampton Monday 28 January 1889

¹¹ Attorney-General v Brown at 324

¹² (1913) 16 CLR 404

¹³ (1959) 102 CLR 54

¹⁴ Exactly what the defendant’s counsel in Attorney-General v Brown had argued, see footnote 9

Part Two

Leading up to 9 July 1840, Governor George Gipps pored over papers relating to the law of recognition of indigenous rights to land. He examined Chief Justice Marshall’s famous American judgments on the subject, Storey’s Commentaries on the Constitution of the United States, Kent’s Commentaries on American Law and various Colonial Office documents relating to an attempt by William Wentworth to purchase land from Maori people directly and without the involvement of the Crown.¹ The 9 July proceedings centred on the Claims to Grants of Land in New Zealand Bill, which was designed to render null and void Wentworth and others’ purported purchase of Maori land.

His Excellency’s conclusions were clear:

 

1. European colonists could not acquire land from indigenous peoples, only the Crown could effect that;
2. Discovery gave title to the Crown, subject only to the fact that the indigenous inhabitants “were admitted to possess a present right of occupancy, or use in the soil, which was subordinate to the ultimate dominion of the discoverer.” As Chief Justice Marshall had noted, “ [i]t has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty [with Great Britain after independence was won], subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government…”
3. As Kent’s Commentaries pronounced, “[t]he peculiar character and habits of the Indian nations, rendered them incapable of sustaining any other relation with the whites than that of dependence and pupillage. There was no other way of dealing with them, than that of keeping them separate, subordinate and dependent, with a guardian care thrown around them for their protection.” The original Indian nations, despite being acknowledged by the discoverers as the proprietors of the soil, had no power of alienation except to the governing power of the discoverers.

 

It is not difficult to see how Henry Reynolds could assert that native title was recognised by the Crown in the 1840s, through the provision of reserves, the insertion of reservation clauses in pastoral leases to recognise practically the right of occupancy on ‘runs’, and provision in clause 20 of the Waste Lands Act 1842 (Imp.) of 10% of the land fund being devoted to Aboriginal welfare. The right of occupancy asserted by Gipps’s examination of legal commentaries looks like native title as we understand it from Mabo, and the title in the Discoverer looks like radical title.

But there is anachronism in this. As Hannah Robert has shown, the story is more complex and the central problem is how occupancy as a concept played out. Both in the Select Committee Report on New Zealand in 1844² and in the South Australian Letters Patent, the word “actual” qualified the indigenous right to “occupation:”³

Provided Always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives.

The South Australian Colonization Commissioners followed this up with instructions to the Protector of Aborigines, narrowing “the legal meaning of Aboriginal rights in land” to “cover only lands used for cultivation, fixed residence or ‘funereal purposes.’”⁴ Land “not actually occupied” by Aboriginal people was beneficially owned by the Crown.

Of course, deciding where nomadic peoples “actually occupied” the land was a nonsense, but it grounded the colonial project in Australia and New Zealand. It is this founding phrase that justified the creation of reserves, the reservation clauses being placed in pastoral leases and the establishment of a fund for Aboriginal welfare from sales of “waste lands”. It was applied in the Australian colonies and in New Zealand, regardless of the existence of treaties (be it Batman or Waitangi).

There was no recognition of common law native title: only a recognition of a right of occupancy fatally qualified in the southern hemisphere colonies by the word ‘actual.’ The effect was of course to force an ‘actual’ occupancy by the policy mechanisms just described, thus wresting Aboriginal people from their spiritual connection to country. This is summed up by proposition 8:

 

8. To justify the acquisition of land in Australia, the British combined the common law notion of settlement (from Blackstone), an argument of indigenous rights to land where the indigenous people were in ‘actual occupation’, and a scale of civilisation framework borrowed from both the Lockean idea of property rights being generated from labour mixing with the soil and the Scottish moral philosophers four stages of civilisation arising out of political economy (Hunter- gatherers, Agriculture, Mercantilism and Industrialisation). Despite the Treaty of Waitangi, this idea of actual occupation coupled with the labour theory of property was applied not just by British settlers but by the Crown in New Zealand as well as Australia (where no treaties were made by the Crown).

 

In Canada and America, the domestic dependent nation status of indigenous peoples produced perhaps no less injustice than in the south. The difference of course has been that where there were treaties a modern clawing-back has taken place to re-establish the honour of the Crown in Canada, America and New Zealand. The lack of treaties in Australia is one more obstacle to such a reestablishment in Australia.

The consequence of the settlement doctrine producing a justification of Crown full ownership of most of the land in Australia in this way is, as Mick Dodson has pointed out, that the “sovereign pillars of the Australian state are arguably, at the very least, a little legally shaky.”⁵ Neither conquest, cession nor settlement provides a proper legal basis for the establishment of the Crown’s legal relationship to property in land. Even Blackstone himself remarked that the “American plantations” were “obtained in the last century [that is, the 17^th century] either by right of conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties.”⁶ Blackstone was not sure of the legality of what occurred, but with an unwarranted delicacy declined to examine the issue of indigenous rights further.

9. As a result, neither conquest, cession by treaty nor settlement establish an uncontestable legal relationship to property of each State and Territory in the land those jurisdictions encompass.

There has been some excellent work published in the last few years on developing a treaty with Australian indigenous people.⁷ I have little to add to them suffice to say that there is little obstacle to effecting a treaty from a precedent standpoint, as New Zealand and Canada have shown from the 1980s.⁸ The latest of this work from Professor Megan Davis has demonstrated how grass roots indigenous people across the country want an indigenous body to advise the Commonwealth

Parliament, and want to work more slowly towards a national treaty.⁹ Nevertheless, Victoria and South Australia have started consultation towards provincial treaties.¹⁰ Proposition 10 is the consequence:

10. A political compact or settlement which addresses past wrongs, establishes a proper basis for the acquisition of land by the Crown, and settles the compensation which is required to seal that compact between the States, the Territories and the Commonwealth on the one hand and the indigenous peoples of Australia on the other should now be actively debated by Australian society at large, not just by academics and elites. Only then can the Crown in each of its capacities in Australia establish a legal relationship between its claims to sovereignty and rights in the

On this view, Mabo is only a step on the path to the establishment of that legal relationship. Without it, Australia cannot claim to be a post-colonial landscape.

 

Jonathan Fulcher

Partner  |   Resources and Energy

T +61 7 3024 0414 M 0418 106 227

E j.fulcher@hopgoodganim.com.au

Level 8, Waterfront Place, 1 Eagle Street, Brisbane Qld 4000

www.hopgoodganim.com.au

Jonathan is a Partner and the Head of the leading Resources and Energy practice. Jonathan applies his extensive projects, resources, native title and cultural heritage experience to mining, oil and gas transactions, renewable energy, infrastructure developments, joint venture arrangements, and asset and share sales and acquisitions across Australia and internationally. He is skilled in the art of negotiation, mediation and the resolution of disputes in relation to resources and energy projects.

Jonathan is regarded as one of Australia’s leading native title and cultural heritage lawyers and has been recognised by Chambers Asia Pacific every year since 2007 in addition to several other legal publications. Most recently, was included in The Best Lawyers™ in Australia 2021 for Corporate Law; Mining Law; Native Title Law; Oil & Gas Law.

 

¹ Votes and Proceedings of the NSW Legislative Council, no 13, 9 July 1840

² See Select Committee on the State of the Colony of New Zealand Report (1844) reproduced in “Accounts and Papers [of the] House of Commons”, 1844 (9) vol XIII, Irish University Press series of British Parliamentary Papers, Colonies: New Zealand pp 5ff; see J Fulcher, “The Wik judgment, pastoral leases and Colonial Office Policy and intention in NSW in the 1840s” Australian Journal of Legal History, vol 4, no 1 1998, 33-56 at 41.

<https://search.informit.com.au/documentSummary;dn=990606554;res=IELAPA> ISSN: 1323-1391. [cited 23 Jul

18]

³ Letters Patent for South Australia 19 February 1836

⁴ H. Robert, Paved with Good Intentions: Terra Nullius, Aboriginal Land Rights and Settler-Colonial Law , ACT: Halstead Press 2016 at 50.

⁵ Quoted in S. Brennan, L. Behrendt, L. Strelein and G. Williams, Treaty, Leichhardt, NSW: Federation Press 2005 at 72.

⁶ Cited in Mabo no 2 at 34-35. Milirrpum v Nabalco at 202

⁷ Examples include S. Breanna et al, Treaty; M Mansell Treaty and Statehood: Aboriginal Self-Determination, Leichhardt, NSW: Federation Press 2016

⁸ “The case that recognised the Treaty of Waitangi principles was the Lands Case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641). The Waitangi Tribunal was set up by the government in 1975 by the Treaty of Waitangi Act 1975. Its authority to deal with claims was backdated from 1975 to 1840 in 1985 (Treaty of Waitangi Amendment Act 1985 (NZ) s 3). The Tribunal gives recommendations to the Crown, and often these recommendations are not binding (they have capacity to make binding recommendations in relation to Crown Forest Licence, or land subject to a memorial, but it is not often used. Treaty of Waitangi (State Enterprises) Act 1988 (NZ); Treaty of Waitangi Act 1975 (NZ), ss 8A-8HJ). The Tribunal cannot conduct negotiations. The Treaty of Waitangi (State Enterprises) Act 1988 (NZ) amended the Treaty of Waitangi Act and gave power to the Tribunal to recommend that the Crown conduct negotiations to provide redress to the Maori as a result of suffering caused (see sections 5(1)(a) and 6(3) of the Treaty of Waitangi Act). Each of the settlement is incorporated into an Act for each Maori group and includes the Crown Apology.” H Watson, unpublished paper 2018. Canada inserted section 35 into its Constitution in the 1980s, thus embedding indigenous rights into the foundational structure of the nation.

 

⁹ http://www.law.unsw.edu.au/news/2017/06/symbolic-constitutional-recognition-table-after-uluru-talks- indigenous-leaders-say ; see also M. Davis, ‘Political Timetables Trump Workable Timetables: Indigenous Constitutional Recognition and the Temptation of Symbolism over Substance” in S Young, J. Nielsen, J. Patrick (ed) Constitutional Recognition of Australia’s First Peoples Theories and Comparative Perspectives, Leichhardt, NSW: Federation Press 2016; speech at University of Queensland, 20 April 2018.

¹⁰ The Advancing the Treaty Process with Aboriginal Victorians Bill 2018 https://www.vic.gov.au/aboriginalvictoria/treaty.html; South Australia’s new Government has just halted talks on a treaty The Guardian Australia 30 April 2018 https://www.theguardian.com/australia- news/2018/apr/30/south-australia-halts-indigenous-treaty-talks-as-premier-says-he-has-other-priorities