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These days I am well and truly retired but I was once a professional valuer-educator. I had the good fortune to work with (and learn from) three of the most knowledgeable people in Australia in the field of land tenure. They were
♦ Mr Edward Lester Septimus (Sep) Hall, a solicitor retained by a large number of municipal and shire councils. His firm Hall & Hall were regarded as the experts in local government.
♦ Dr John Murray, author of the standard text for valuation study and the book Valuation and the National Economy, and
♦ Mr Justice Rae Else-Mitchell, formerly Judge of the NSW Supreme Court, judge of the Land and Valuation Court, Commissioner of Inquiry into Land Tenures and later chairman of the Commonwealth Grants Commission. Among his many publications was the booklet Territorial Conquest – Phillip and Afterwards.
I give this long-winded introduction because I believe it necessary to indicate the concept I am about to introduce is more than just a whim or fancy. The High Court did an excellent job for the Meriam people of the tiny island of Mer (Murray Island), tucked away in the north-east area of the Torres Strait and nearer to New Guinea than Cape York.
To put a time-line onto the legal context, New South Wales was first claimed for the British Crown by James Cook in 1770 and only became a British colony in 1788. The land which is now Queensland was part of the British colony of New South Wales until it separated in 1859. The Islands of the Torres Strait were only annexed by Queensland in 1879. The British colony of Western Australia was settled in 1831 (but did not attain responsible government until 1890) and for the first time that part of the former continent of Sahul known as New Holland was consolidated under the British Crown. The five mainland colonies together with the colony of Tasmania negotiated with each other in the 1890s and finally decided on a Constitution which came into effect on January 1, 1901, creating the Commonwealth of Australia, The Commonwealth, however, was not totally free of British control until March 1986.
There are reputed to have been more than 350 tribes on the mainland of Australia and they differed from the islanders of the Torres Strait in language, lifestyle, beliefs and customs and use of the land. They are also believed to be of different genetic background.
Now to the point. The High Court found that the people of Mer were not nomadic but lived in settled villages, in permanent and semi-permanent houses, had laws of land tenure and cultivated the soil to produce food. They must have assumed that this was the case on Mer in 1879 but not on the mainland in 1770 or 1788 and that went to the root of their decision. They decided that Terra Nullius did not apply to Murray Island even though the term was not in use at that time. Some of the literature suggests that the term and its over-simplified meaning were introduced into the evidence by historian Henry Reynolds.
The case was against the Queensland government and the Commonwealth only involved itself because territorial waters could have become an issue. To my knowledge they offered no evidence and refuted nothing. As it turned out this inadequacy of counsel was to cost the Commonwealth of Australia dearly.
With no evidence offered and relying on their own knowledge and experience, the Justices (in my opinion wrongly) proceeded to discuss the mainland. They rightly used the expression “usufructory” which nobody seems to use or understand in their subsequent discussions of Native Title and the decisions in the Mabo (No2) case. They applied it only to the mainland, not Murray Island. In case you want to explore this central concept here is the Wikipedia definition of “usufruct”.
usufruct [ˈjuːzjʊfrʌkt] NOUN law: the right to enjoy the use and advantages of another’s property short of the destruction or waste of its substance.
ORIGIN, early 17th century: from medieval Latin usufructus, from Latin usus (et) fructus ‘use (and) enjoyment’, from usus ‘a use’ + fructus ‘fruit’.
From that definition you can see it was a legitimate legal concept in both 1770 and in 1788 whereas Terra Nullius was not coined until, as historian Andrew Fitzmaurice claimed, “that territorium nullius was first used in a meeting of the Institut de Droit International in 1888 where the legal principles of the Berlin conference were discussed and that terra nullius was introduced twenty years later during legal disputes over the polar regions.”
It is much to be regretted that nobody has sought to prevent its current use being backdated to the 18th century and applied to the continental area of New Holland. The understanding of that time according to the renowned legal expert Blackstone at Blackstone (1857:125-6):
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 birthright 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.
In the idiom of the 18th century, “civilised” meant they cultivate the land.
Now the High Court did not say the Aboriginal people of the mainland cultivated the land like the Torres Strait islanders did; they said they had a usufructory use of it. Now usufruct, as laid out above, is a right to enjoy and use the fruits of the lan that does not belong to them — the right to hunt and fish and gather. It is a right over land, it is not a right in the land.
Taking some definitions from the NSW Land Titles Registry,
A profit à prendre 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. Like an easement a profit à prendre may be enjoyed as an appurtenance to other land or it may exist in gross. A profit à prendre may exist in perpetuity or for a specified number of years.
So a usufruct right in law is more like a profit a prende than an easement, but neither is title to the land or a form of sovereignty.
The High Court Judges were unanimous in that the Meriam people of Murray Island had a form of native title in their land. They were not unanimous, however, in the application of the Racial Discrimination Act 1975 which they eventually used to extend the same rights to the Aboriginal people of the mainland who followed totally different lifestyles, land use and traditions. It was this part of the judgment that lacked the necessary input by the Commonwealth and led to the subsequent legislation by the Keating government.
Any belief the Justices of the High Court held that this would unite the people and satiate the activists were short-lived and has led us to the current demands which if accepted would divide the nation and enshrine a form of apartheid into our Constitution.
It is to the Commonwealth government’s great discredit in the 30 years since the decision that no effort to educate the population on the above distinctions has been made, with schools and universities to perpetuate inaccurate information to the detriment of our multicultural character and the reputation of the heroes who facilitated our emergence into the comforts of the Industrial Age.
So true, Mr Singer! Thank you for this succinct yet comprehensive explaination of the “Mabo” case and its significance.
In other words terra nullius meaning entirely uninhabited is a modern fiction. At no point did the British not notice Aborigines or consider them as humans. Instead they regarded Australia as a stateless, sovereignless territory and therefore as territory which a sovereign state could claim.
Umm, Paul W, did you mean to say, “At no point did the British not notice Aborigines or not consider them as humans.”? Is there not missing a “not”? The difficulty with this comment posting thingy is that there is no way to edit one’s post, no spell-check, no option of line-spacing, italics, etc.
Excellent, there was never, nor is there now, any justification for the concept of land ownership by aboriginal tribes. Certainly some jealously guarded hunting areas could lead to killing others who tried to ‘move in’, but when the game became light they moved on anway looking for better resources – a problem that might well mean having to fight. This is part of the probem of several tribes claiming the same land.
One of my students many years ago was one of a group from Somalia and a rich family. They had around 70 camels at the time. This implies having 70 camels worth of grazing. It also means doing what it took to hold it. Was this by some form of customary acceptance or the knowledge that people had Kalashnikovs. He did mention that if he met men from another tribe they would kill him. Policing is an in-house function. So Is Somalia a State, a failed State or just an area inhabited by wanderers?
Thanks cbattle I missed a not.
@cbattle1: I miss edits! On YouTube I have to edit as I usually find my comment is ungrammatical, free of coherent sense and not even funny.
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Now to the point. “British colony of Western Australia was settled in 1831 (but did not attain responsible government until 1890)” This unusual use of the word ‘responsible’ made me chuckle.
@John Singer – super excited to see your work published here John.
CONGRATULATIONS (Y)
Could we not just say “To the victor go the spoils”? And yes WA still doesn’t have “Responsible Government” .
This caught my eye …
“The case was against the Queensland government and the Commonwealth only involved itself because territorial waters could have become an issue. To my knowledge they offered no evidence and refuted nothing. As it turned out this inadequacy of counsel was to cost the Commonwealth of Australia dearly.”
As I suggested in my article posted just today (Friday) it concerns me that should a treaty with the Aborigines be seriously proposed – and that certainly appears to be the case – I imagine that there will be no end of “left-leaning” academic Constitutional lawyers ready to advocate on behalf of the so-called “First Nations” but will there be a single academic lawyer to advocate on behalf of the government or the Australian taxpayer – even from within the government’s own bureaucracy? If such behaviour involved support of other “nations” it might be called treason – but here I imagine it will all be Order of Australia material. Funny, that.
Excellent information John Singer.
@Paul W,
Since the British made Aborigines subjects (citizens) within a short time after arrival, we can assume they recognised them as human. I do not recall Wattle or Kangaroos being made British subjects.
The Swan River Colony (WA) was settled in 1829, not 1831, with a military post established at Albany in 1826 to scare off the French.
Thank you for the correction, Mr. Masters.
Since I am the direct descendant of the first British settler in WA, he having arrived on the Amity in 1826, I and my clan claim land rights over our domain. Other claimants are a mixed bag of miscegenated
southland gypsies, international sealing pirates, and the flotsam of the ports, who never have and never will make the land productive. The land belongs to those who invest in it.
rosross “Since the British made Aborigines subjects (citizens) within a short time after arrival, we can assume they recognised them as human. I do not recall Wattle or Kangaroos being made British subjects.”
Exactly!
Good point.
Attitude is everything .
The average education level of Vietnam refugees that came to Australia at the end of the Vietnam war was mid primary school level .
Their children and grand children now participate at a higher level of University training than non Vietnam heritage Australians .
Many are doctors dentists lawyers engineers builders architects nurses paramedics , many others are in the trades or have started small businesses and some of the businesses have grown not to be so small .
Productive Australian citizens contributing to the national wealth and enriching the culture of Australian .
The same can be said by other groups of Immigrants that have come to Australia with very little but the attitude to make a better life for their children than the country they have left behind .
None had an attitude of entitlement such that they would be completely looked after by the state ,
They suffered some racism and those that came out of war zones with all the trauma that brings caused difficulties in drug taking and crime in the first generation but that has seemed to have normalised for most groups that have been here for more than one generation .
Will we ever see an Aboriginal Tiger mother pushing her children to be doctors or engineers .
I doubt that is ever possible especially in the isolated communities where self pity and despair and entitlement reign .
The Aboriginal elite they is predominately not full blood and those with University Educations have mainly arts degrees and Law degrees and usually end up employed by government or institutions funded by government directly or indirectly or by money from mining companies .Have a different attitude of entitlement again .
These are sweeping generalisations and of course there are many individuals that don’t fit the mould but unalterable attitudes are I think what will keep the Aboriginal Industry growing and the Gaps from closing very much for a long time yet.
The resounding rejection of the VOICE should have lead to a rethink about the Aboriginal Industry but in spite of the implications of what a clear majority had said .the Albanese Labor Government seems to be doubling down on their agenda of giving the Aborigine Industry what they want .
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