We’ve Boundless Plains to Share

One of the most common responses during the recent referendum on the Voice was “If not now, when?”  While it sounded like a statement of demand, it  was also the wrong question, which should have been “If now, what?” According to the Australian Bureau of Statistics, about 900,000 Australians claim descent from the pre-1788 occupants of this land. It has been claimed by some Aboriginal academics that perhaps as many as 300,000 are fakes and/or Bruce Pascoe-style opportunists. So let’s say there are about 600,000 with some Aboriginal blood and perhaps (as the ABS does not publish these figures) a maximum of 100,000 full-blood Aborigines.

Much has changed in recent years. Back in the 1940s, government policies had reduced the population of “non-white people” after the booms created by the Gold Rush and establishment of our early industries. Few of the Islander, Chinese and Japanese remained after the White Australia Policy, which never included Aborigines. Most Aboriginal people lived away from the capital cities. So many Australians (about 7,000,000 in 1940) had never met a person of any colour but white except in a Chinese restaurant. That changed in 1942, when American troops began arriving in Australia and, by 1943, their number had risen to about 150,000, most located in Northern Australia but many also in Sydney and Melbourne. The violence and discrimination I and others witnessed in Sydney was between African-Americans and white Americans, while in Brisbane there was that plus white Americans against white Australians. Not having been aware of the discrimination in country towns, that introduction to racial animosities was quite the education for many.

But let us deal with the Australia of today, especially with the drivel dished up as Aboriginal “demands” during the Voice campaign, starting with the purported grass-roots requirement, as set out in the Uluru Statement from the Heart. Drafted by an urban-based committee that included many white people and Aborigines who do not live the traditional life, it demanded recognition of an alternate, parallel Australia   whose composition and methods of selection were never disclosed. This would be followed by “treaty and truth telling” and, eventually and inevitably, compensation.

See also: Judicial Over-Reach in the Mabo Case

The only people living anything like a traditional life are the Aboriginal people in the out-stations.  While urban Australians may be appalled by conditions and conduct, their Aboriginal ancestors would have given much to live like them. Imagine the greatest holiday ever to be had but conducted in a remote location, where you could do as you want all day and night. Now imagine that the fishing and hunting and berry-picking were just for fun, not for survival. Picture being paid to live like that, all the time supported by health services, including the Flying Doctor, and other elements of the social safety net underwritten by your fellow, far-away Australians.

As a alternative you could live in an outback settlement, where you might be provided with a house.You would have access to a proper supermarket, school, welfare and health offices, police etc. You would have a fortnightly cheque dropping into your account. On the restriction side, you may have part of your cheque quarantined from cash so you couldn’t gamble, buy grog and drugs, and so you wouldn’t be “humbugged” out of it by kin. You would have to share the settlement with a number of clans and tribes other than your own, so there might be feuds and violence.

But then, if you don’t mind living near white folks, you could squat in a town camp, where you have the amenities of a settlement and no restrictions on access to town facilities, and all these choices come without any requirement to work or endure restrictions on alcohol consumption. By the way, you exercise all these rights while also being a shareholder in a large unsubdivided and most likely undeveloped tract of restricted-access land held cost-free in collective ownership under Native Title.

As a final option, you might live and work as other Australian do.

How did all this — these lifestyle options, both good and bad — come to pass? Well, in 1768 James Cook landed on the  shore of land he surmised to be the eastern coast of New Holland. To his knowledge nobody had previously claimed the land whose coast he followed north after making landfall, so he did so for England at Possession Island off the tip of Cape York three months later. This was permissible under the prevailing legal doctrines of Blackstone and Vattel.

After the American War of Independence international law began to change and land acquisition by “settlement” superceded discovery. So by the time Captain Phillip arrived in New South Wales on January18, 1788, and proclaimed the settlement on February 7 the law had switched to “land desart of civilized people” which in the eyes of Blackstone and Vattel meant “civilised” in that the land was cultivated. There being no evidence of cultivation the land was settled not stolen. The outcry arising from the 1992 decision in Mabo (No2) case that it overturned “Terra Nullius” is spurious. The term “Terra Nullius” originated in the 20^th century so if you had to give a latin term the proper description might be closer to “Terra Barbaricus.”

What Governor Phillip brought to New South Wales was, according to Blackstone,

If an uninhabited country (and ‘uninhabited’ means uninhabited by civilized people) be discovered and planted by English subjects, all the laws then in being – which are the birth-right of every subject – are immediately there in force.  But this must be understood with many and very great restrictions.  Such colonists carry with them only so much of the English law as is applicable to their situation and the conditions of the infant colony….

It may be ironic that the land laws applied to the world’s largest island were derived from those introduced into a much smaller island by the Norman invasion of 1066.  The laws were designed to govern a feudal state comprised of good arable land, self-sufficient villages and ample water.  In Australia, they were applied to a large hot land with a frail coating of top soil, unfamiliar flora and fauna, and very little fresh water. 

It was little wonder that many of the concepts of land tenure initially imposed on the colony did not work as intended and were later modified. In fact, they evolved into the Torrens Title system of land tenure which, when introduced in South Australia in 1858, was the most sophisticated in the world.

What Torrens didn’t change was the rights in land and rights over land. One of the rights over land which would not have been extinguished arose from the usufructory use of the land by its prior occupants, This right to “the fruits of the land” was non-propriety, which would have created a “profit a prende” over any land granted — that is, a right to take from the land owned by another person part of the natural produce grown on that land or part of the soil, earth or rock comprising the land.

I am assuming that any well informed court, prior to the Mabo (no2) case, would have come to the above conclusion if the inhabitants claimed existing-use rights dating back to the “Dreaming” while acknowledging that they were but the guardians and protectors of land.

Had the High Court decided only the case it actually heard, that would still be the law today.