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Lecture notes Property I
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Land and Sovereignty
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W4 – LAND, PROPERTY AND SOVEREIGNTY:MABO V QUEENSLAND (NO2)
Introduction
An Australian case from the highest court. But is about English
property law because Australia was a British colony at the time. It is
also because of how it is also about native rights as much as it is
about land law, and the judges talked about feudal titles in the
decisions. British Empire laws applied in most of the world too so
this will be an issue.
Indigenous means native, I.e. native to a land. They are islanders
and aboriginal people.
Australia was split into nations, so each nation had their own
political and social cultures. This indigenous Australia has existed for
40-60k years when the Brits arrived in 1770. Prior to James’ Cook
arriving, Australia was largely desert but was prosperous and it has
lived sustainably.
Terra Nullius
‘Empty land’ – Brits claimed it was empty land.
‘Land belonging to no one’
‘Land in the state of nature’,
‘Desert and uninhabited’.
James Cook’s journal (30 April 1770): ‘all they seem’d to want was
for us to be gone’.
The acquisition of Australia happens during the British War of
Independence in 1775.
First Fleet 1788: the artwork looks like a military expedition. No
treaty was signed with aboriginal people and the colonisation just
happened. The Brits thought of the Australian people at the time as
non human.
Modes of acquisition of territory:
o Conquest – A legitimate way of acquisition; to have a war and
take over the land and get sovereignty over it.
o Cession – The land is ceded (given up by original owners) and
agreement is made to give it to the other party.
o Settlement – Taking over land when no people exist on it so
you make a settlement on it. This is how Australia was
colonised… even when people existed on it… no one claimed
it was terra nullius land but we can decipher that the
colonisers took the land in a settlement manner because Cook
did not sign a treaty.
, Stephen CJ, Supreme Court of New South Wales, Attorney-General
v Brown 1847
“The territory of New South Wales, and eventually the whole of the
vast island of which it forms a part, have been taken possession of
by British subjects in the name of the Sovereign. They belong,
therefore, to the British Crown.”
I.e. British Crown has sovereignty AND property over the Australian
lands. Case dismissed.1
“the waste lands of the Crown” means “all the waste and
unoccupied lands of the colony; for, at any rate, there is no other
proprietor of such lands”.
Lord Watson, Privy Council, Cooper v Stuart, 1889
“The extent to which English law is introduced into a British Colony, and
the manner of its introduction, must necessarily vary according to
circumstances. There is a great difference between the case of a
Colony acquired by conquest or cession, in which there is an
established system of law, and that of 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. The Colony of New South Wales
belongs to the latter class.”
It is basically saying the inhabitants were not settled. There was no
established law so the land belongs to the British. The annex was peaceful
so no violence… VERY HISTORICALLY INACCURATE, IT WAS EXTREMELY
VIOLENT. RACIAL INFERIORITY AND TERRA NULLIUS IS RAISED IN THIS
PASSAGE,
Lord Kingsdown, Privy Council, Advocate-General of Bengal v Ranee
Surnomove Dossee, 1863
“Where Englishmen establish themselves in an uninhabited or barbarous
country, they carry with them not only the laws, but the sovereignty of
their own State”.
I.e. expanded notion of terra nullius.
Lord Summer, Privy Council, In Re Southern Rhodesia, 1919
“Some tribes are so low in the scale of social organization that
their usages and conceptions of rights and duties are not to be
reconciled with the institutions or the legal ideas of civilized
society. Such a gulf cannot be bridged. It would be idle to impute to such
people some shadow of the rights known to our law and then to transmute
it into the substance of transferable rights of property as we know them.”
Zimbabwe title case.
1930 enslaved aboriginal men despite the banning of the slave trade.
Racial inferiority is the reason why it was done. The court enforced this
too.
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