Dorsett, Shaunnagh --- "Since Time Immemorial: A Story of Common Law'" [2002] MelbULawRw 3; (2002) 26(1) Melbourne University Law Review 32

‘Since Time Immemorial’: A Story Of Common Law Jurisdiction, Native Title And The Case Of Tanistry

SHAUNNAGH DORSETT[*]

[In the 10th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the common law. The article provides a description of this relationship, based on an account of common law jurisdiction and the ways in which the common law historically used the concept of jurisdiction in order to supplant other sites of adjudication and authority. The article traces the jurisdictional story of the common law, from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland, to the new settlement of New South Wales, and the first encounters with ‘the natives’. It then examines the decisions in Mabo, Wik and others, and concludes that in ‘recognising’ and constructing the interest of native title, the common law relied on the same techniques which characterised its earlier encounters with the ‘other’ in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at common law that we can explore its possibilities and limitations as a vehicle for justice.]

CONTENTS

[T]he ... Common Law assumes divers Denominations, yet they are but Branches and Parts of it; like as the same Ocean, tho’ it many times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.[1]

I INTRODUCTION

How are we to understand the legal entity of native title? What is the shape of native title doctrine? What is its relationship to the common law? It is only now that 10 years have passed since the decision in Mabo v State of Queensland [No 2],[2] that we are beginning to fully grapple with these questions. This article represents one attempt to provide an answer to such questions. As such, it offers a doctrinal description of the relationship between native title and the common law, through a technical account of common law jurisdiction. In general, I am interested in the way in which the common law asserts jurisdiction in order to supplant other sites of adjudication and authority. In particular, I am interested in the way in which the common law technology of jurisdiction provides one way of understanding the link between native title and the common law.

In part, this article proceeds by way of an historical account. In order to understand the current formulation of the doctrine of native title, it is necessary to examine the principles and techniques of the common law through which it has been constructed. After all, it is important to remember that native title is not really a descriptor of indigenous relationships to country, but a category of white law, and thus it must in part be understood from within the confines of that law. The particular juristic tradition of the common law has been formed over time through an accretion of principles and techniques. At the level of jurisdiction and technique, in particular, I would contend that the common law’s modus operandi is still bound to its origins, and its technique for asserting jurisdiction over another jurisdiction has not fundamentally changed since the 1600s.

Obviously, such questions are not merely of academic interest. In order to understand the potential scope of the doctrine of native title — the kinds of interests and rights that it will accommodate — it is crucial to first understand the legal foundations of the doctrine within the common law. Only then, as Strelein correctly states, can the ‘concept of native title be given greater consideration to ensure that it represents the most appropriate foundation for structuring the relationship between indigenous peoples and the Australian legal system.’[3]

The article will proceed in the following way. Part I briefly provides a definition or explanation of the notion of ‘jurisdiction’. Part II examines the transition of the common law from one of a number of decentralised jurisdictions to the law of the land — founded in the twin concepts of ‘origins from time out of mind’ and ‘artificial reason’. This Part also examines the way in which in the 1600s the common law asserted jurisdiction in order to supplant rival forms of knowledge and to subordinate the local and particular to ‘custom’ — the shape and limits of which were a matter for the common law to determine. Part III considers in some detail the Case of Tanistry.[4] This case forms a linchpin in the story of common law jurisdiction, as it constitutes the link between the early exercises of jurisdiction by the common law in a domestic setting, and the eventual recognition of native title. In that case, the rules on recognition of common law custom in an English domestic setting are transferred to the recognition of custom in the (arguably first) colonial context. Part IV considers the assertion by the common law of jurisdiction in Australia, and notes the move from an initial hesitation to assert jurisdiction over indigenous Australians to a state where the common law has become the acknowledged ‘law of the land’. In contemporary doctrine there is no place for rival sites of jurisdiction, nor do we legally remember a time when this was not so. Part V discusses contemporary cases on native title and demonstrates the way in which the common law technology of jurisdiction over rival legal spaces, forged in the 1600s in both the domestic and Irish context, has been translated to Australia; it thereby provides a technical account of what it might mean to ‘recognise’ native title and the limits of that recognition.[5]

II JURISDICTION

Jurisdiction is, literally, to speak the law. As Rush states, jurisdiction is a site of enunciation:

It refers us first and foremost to the power and authority to speak in the name of law and only subsequently to the fact that the law is stated — and stated to be something or someone.[6]

Jurisdiction can, therefore, be conceptualised as a legal space, or sphere of competence. Thus, to have jurisdiction over a matter is to have the competence to make a determination with respect to that matter. While we most often conceive of courts or other legal institutions as having jurisdiction, the jurisdiction of an institution is commonly determined by the body/bodies of law which it is authorised to administer.[7] Until the 18th century, for example, jurisdiction was predominantly organised by subject-matter or personal status: ecclesiastical courts determined matters relating to church law, manorial courts applied the body of customary law known as manorial law, courts of stannary decided issues relating to tin mining operations, and forestry courts oversaw the body of law known as the law of the forest.

Jurisdiction may also have a territorial aspect. However, as Ford points out, the concept of territorial jurisdiction is a relatively recent phenomenon.[8] The rise of the nation state in the 16th century led, at least in part, to a need for a centralised legal system, a law of the land so to speak. From that time on we find law increasingly linked to territory, although arguably that link between jurisdiction and territory is now being compromised by the re-emergence in the 20th century of specialised bodies in the form of administrative tribunals.

In any situation in which it is necessary to determine the boundaries of a legal space, it is the concept of jurisdiction which is invoked: law/non-law, federal/State, and criminal law/tort law are just a few examples. In defining the boundaries of a substantive concept such as ‘property’, we are also employing jurisdictional concepts. In asking ‘what is the province of property law, to what does property law apply, to what does it speak?’, we are asking a jurisdictional question.

The concept of common law jurisdiction has come full circle: from a procedural question, to a substantive concept, and back to procedure. The common law is founded in procedure: the writ system. If the matter was covered by a writ, the plaintiff could take their matter to a common law court. However, by the 1600s, common law jurisdiction had become a substantive concept: the common law existed as a body of law. The question to be asked was whether the subject-matter of the action fell within the confines of the common law. However, by the late 1800s, common law jurisdiction had again become largely a question of procedure. This was the result of a number of phenomena: the abolition of the causes of action; the reforms which generally culminated in the Judicature Acts,[9] and the emergence of the textbook tradition and bodies of law: property, crime, tort etc. Common law jurisdiction is once again largely seen as a question of which court an action should commence in. Substantive jurisdiction now attaches to bodies of law — for example, property, contract or tort matters.

Jurisdiction is about classification and differentiation. Jurisdiction is the tool used to mark off one body of law from another, or the sphere within which one institution has authority to determine an issue from the sphere of another. Thus, jurisdiction is the mechanism by which boundaries between bodies of law and between institutional competences are maintained. Paradoxically, while jurisdiction is about differentiation, common law jurisdiction in Australia has simultaneously come to be about integrity and uniformity. As will be discussed, the common law has consolidated its jurisdiction by asserting it uniformly and evenly across legal space, in the process leaving no conceptual space or sphere of autonomy for indigenous norms. It is this impulse to uniformity which is so damaging to indigenous claims. Uniformity of jurisdiction ensures certainty, predictability and excludes contingency. In essence, it constrains the threat of legal plurality. The self-referential nature of jurisdiction is a powerful tool. Once common law jurisdiction was established in Australia, it allowed the common law to set the rules and conditions under which indigenous norms would be given a voice.

III COMMON LAW JURISDICTION

A Time Immemorial

As with many other legal orders, the common law originated in local custom. At the beginning of the 1100s, the English legal landscape was pluralistic, fragmented and decentralised. Jurisdiction was largely based on medieval political units, for example the shire, hundred or borough. From the 10th century onwards, each of these jurisdictions was nominally under the supervisory control of the King. The idea of the King’s peace provided a basis for jurisdiction over criminal matters, while moves in the early 11th century to limit recourse to the King’s courts to those who had already sought a remedy in the hundred provided a basis for the assertion of jurisdiction over civil causes.[10] In addition, the King was also a feudal lord and hence was expected to provide justice to tenants. Combined, these did not provide a King’s law as such, but the foundation out of which the common law developed.

Alongside the nascent common law were many alternative, and eventually competing, jurisdictions. The pre-Norman divisions of shire, hundred or borough survived the Norman Conquest and continued to function. Each had separate courts, but commonly overlapping jurisdictions. Courts also arose which administered specific bodies of law: ecclesiastical courts which dealt with matters such as marriage, succession, heresy and any dispute involving a member of the clergy or church property; mercantile courts which oversaw commercial transactions; and manorial courts which oversaw most matters relating to village life. In addition there were the private jurisdictions, for example, courts pertaining to certain industries, such as the stannary courts of the tin industry in Cornwall and Devon, or the private courts of Oxford and Cambridge Universities.

By the 16th century, the English legal landscape had become a morass of overlapping, often competing, jurisdictions and was characterised by an unwieldy common law writ system, obsolete forms of action and numerous complaints about the legal profession. The issue of law reform was considered pressing in the last years of the 1500s and the first decades of the 1600s. Many of the leading legal lights of the day were in favour of reform — not just Coke, but also Finch, Ellesmere, Bacon and Dodderidge, although they differed considerably in their approaches to the issue. The period between 1550–1650 was a crucial one in the history of the common law. The Tudor impulse towards unified, centralist institutions, the later problems of King and Parliament and the squabbles of the ruling classes all provided an opportunity for the common lawyers to consolidate their hold on the central courts.[11] As Murphy states, the emergence and consolidation of the common law ‘owes much ... to its peculiar position in the convulsions of the seventeenth century.’[12]

For some, Sir Edward Coke, Chief Justice of the Court of Common Pleas (1606–13) and author of the famous Institutes[13] and Coke’s Reports,[14] is rather grandiosely credited with ‘remoulding the medieval common law in such a way that it was made fit to bear rule in the modern English state.’[15] Coke attempted to impose a unity and structure on English common law and to translate medieval law to modern. For Coke, the unity of the common law rested on two related bases: its antiquity and continuity, and its artificial reason. Coke was particularly concerned to provide a genealogy for the common law which could be traced to a time before the Norman Conquest. In his Reports he stated:

Time out of mind before the Conquest there had been Sheriffs. ... Likewise by all that time there were trials by the oath of twelve men ... by like time there had been writs of assize and other original writs returnable to the King’s Courts ... [These] manifestly prove that the common law of England had been time out of mind before the Conquest and was not altered by the Conqueror.[16]

A similar view was proposed by Sir John Davies, another noted apologist for the common law of the period. In somewhat flowery language, Davies stated:

Neither the law of the Romans, which are cried up beyond all others for their antiquity, nor yet the laws of the Venetians, however famous in this respect, their Island not being inhabited so early as Britain, neither was Rome at that time built. Nor in short, are the laws of any other kingdom in the world so venerable for their antiquity.[17]

For Coke, the second foundation of the common law was that of artificial reason. What was required, if English law was to exist as a unified system, was a rule of binding precedents. Coke provided one: the idea of perfect reason.[18] Reason, of course, did not refer to the rationality of ordinary citizens, but to ‘artificial reason’, the prerogative of the learned judiciary:

reason is the life of the law, nay the common law itselfe is nothing else but reason; by which is to be understood of an artificiall perfection of reason, gotten by long study ... and not of every man’s naturall reason ... And therefore if all the reason that is dispersed into many severall heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene ... refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme. ... [N]o man out of his own private reason ought to be wiser than the law, which is the perfection of reason.[19]

According to Coke, it is the nature of law to be reasonable, and the test of its reasonableness is its ability to withstand the test of time.[20] The combined effect of Coke’s artificial reasoning and the ancient and continuous nature of the common law was to subordinate other forms of legal knowledge to that of the common law.[21] In concrete terms, this subordination by the common law of rival sources of legal knowledge played itself out in the jurisdictional battles between courts which characterised this period. In fact, under Coke predominantly, the common law courts actively sought to subordinate alternative jurisdictions to the common law. For example, by the early 17th century, ‘[t]he writ of prohibition was being used increasingly ... by the common law judges ... to prohibit proceedings in causes before merchant, ecclesiastical, and equity courts.’[22]

Under Coke, the once fragmented common law became the ‘law of the land’, while other jurisdictions remained localised. As Blomley notes:

Law becomes increasingly ‘territorial’ rather than predominantly local. Local legal knowledge is repositioned as ‘custom’, to be assessed according to unitary principles. Such shifts, moreover, are associated with the beginning of crucial changes in the spaces of social, economic, and political life, entailing a modernist displacement of the locus of social identity.[23]

Of course, Coke’s vision of the history, origins and reach of the common law was somewhat exaggerated. At this time, the common law was still only one of many competing jurisdictions, albeit an important one. Further, even though the common law courts were part of an increasingly centralised administrative system, the effective control of legal institutions at the local level was variable. However, the power of Coke’s vision was largely symbolic. As Goodrich and Hachamovitch point out, Coke and others, such as Davies, were engaged in ‘creating the secular myth of the common law’.[24] The defences of English law by Coke, but also Davies and Fortescue, ‘written between the end of the fifteenth and the middle of the seventeenth centuries ... reflect the symbolism and mythology of an English tradition and vernacular law in whose shadow we still live.’[25] Most importantly, the common law is still often described as owing its validity and continuing force to its origins in ‘time out of mind’; that concept of ‘time immemorial’ remains doctrinally central to parts of the common law, notably to the validity and enforceability of local custom.

B Local Custom

By the 1600s, the unwritten law, or lex non scripta, had been ordered into general custom (the common law) and local or particular custom. Coke distinguished between general customs, in other words those which are part of the common law being current throughout the realm, and particular customs, which are confined to smaller areas. He stated that the common law is ‘current through the whole Commonwealth, and used in every County and City’, while particular customs ‘are confined to shorter Bounds and Limits, and have not such choice of Fields to walk in as general customs have.’[26]

Sir Matthew Hale ordered the lex non scripta slightly differently:

First, The Common Law, as it is taken in its proper and usual Acceptation. Secondly, Those particular Laws applicable to particular subjects, Matters or Courts.[27]

While there clearly existed some divergence of opinion as to the parameters of ‘particular customs’, importantly the common law and particular customs were both clearly understood as having common origins — time out of mind. In the Case of Tanistry, it was stated that

a custom, in the intendment of law, is such a usage as hath obtain’d the force of law, and is in truth a binding law to such particular place, persons, or things as it concerns. ... [B]ut it is jus non scriptum, and made by the people only of such place, where the custom runs. For where the people find any act to be good and beneficial, and apt and agreeable to their nature and disposition, they use and practice it from time to time, and so by frequent iteration and repetition of the act, a custom is formed, and being used time out of mind, it obtains the force of a law ... And that which is expressed by several and continual acts of the same kind, is a custom; and so briefly, custom is a reasonable act, re-iterated, multiplied, and continued by the people time out of mind, And this is the definition of a custom, which hath the virtue and force of a law.[28]

The primary question of common law jurisdiction over local or particular customs was not an issue. Both Coke and Hale confirmed that the determination of local custom was a matter within the province of the common law. According to Coke:

The law temporal consisteth of three parts, viz first on the common law, ... and, 3dly, on customs grounded upon reason, and used time out of mind; and the construction and determination of these do belong to the judges of the realm.[29]

Hale put it somewhat more forcefully:

First, The Common Law does determine what of these Customs are good and reasonable, and what are unreasonable and void. Secondly, The Common Law gives to those Customs, that it adjudges reasonable, the Force and Efficacy of their Obligation. Thirdly, The Common Law determines what is that Continuance of Time that is sufficient to make such a Custom. Fourthly, The Common Law does interpose and authoritatively decide the Exposition, Limits and Extension of such Customs.[30]

Thus, as Hale makes plain, the common law not only appropriates to itself the right to determine which customs are enforceable, but the parameters of those customs, what Hale calls the ‘Exposition, Limits and Extension of such Customs.’ Hence, the common law determines both the circumstances under which it will recognise custom, and the shape that that interest will take within the common law. In other words, the common law determines its own jurisdiction to determine issues relating to custom.

According to Hale, other jurisdictions such as canon or ecclesiastical law, the law merchant and even civil law were only enforceable in England by virtue of their recognition by statute or by the common law as custom. He described the basis of their validity thus:

they have been received and admitted either by the Consent of Parliament, and so are Part of the Statute Laws of the Kingdom, or else by immemorial Usage and Custom in some particular Cases and Courts, and no otherwise; and therefore so far as such Laws are received and allowed of here, so far they obtain and no farther; and the Authority and Force they have here is not founded on, or derived from themselves; for so they bind no more with us than our Laws bind in Rome or Italy. But their Authority is founded merely on their being admitted and received by us, which alone gives ’em their Authoritative Essence, and qualifies, their Obligation.[31]

Similarly, more localised jurisdictions could also be accommodated by way of custom. Thus, the common law became the ‘law of the land’, while custom remained localised, rooted in everyday practices. Importantly, as we are reminded by Hale, it is the common law ‘which ... has a Superintendency over those particular Laws that are admitted in Relation to particular Places or Matters.’[32]

In his Institutes and the Compleat Copyholder, Coke provided a set of evidential rules which could be generically applied at common law in order to evidence local customs. These rules were used in order to determine the ‘Exposition, Limits and Extension of such Customs’. Following Bracton and Littleton, in his Institutes Coke stated that a custom which is recognisable by the common law has two elements: there must be usage from time out of mind, and that usage must be continual and peaceable without lawful interruption.[33] He further added that customs against reason are void.[34] These requirements were further amplified in the Compleat Copyholder, in which Coke adds another five requirements: that the custom be according to common right; that it be on good consideration; that it be compulsory; that it be certain; and that the custom be beneficial to those who allege it.[35] These criteria continued to be applied in diverse factual situations into the 20th century. Examples include the enforcement of liability to repair a sea wall;[36] the right to moor vessels in a navigable tidal estuary of the Thames;[37] or a custom for victuallers to erect booths in the wasteland of a manor during a fair.[38]

Some bodies of law, or jurisdictions, remained separate to the common law, such as civil and ecclesiastical law, with both their own court structures and the possibility of recognition at common law. Many localised jurisdictions or specialist bodies of law, such as lex forestae or the law of the fens, slowly disappeared under the pressure of societal change, leaving behind only those elements which had been accommodated within the framework of the common law. Thus, while lex forestae died away, part of manorial tenure survived, enforced by the common law as the custom of copyhold.[39] Copyhold provides a convenient example of this technique of ‘accommodation’.

Copyhold is described by Gray as ‘a villein tenement new-made’.[40] In medieval England, villeinage was not only a personal status, but also a tenure. This tenure was primarily, but not exclusively, held by unfree men. In other words, in return for the land, the tenant was required to render feudal services. From the view of a common lawyer, villein tenure most resembled an estate at will. As Gray points out, however, from a manorial vantage point, villein tenure appears very different. Gray describes it thus:

A manor is a territory — or, better, lest neat districting seem implied, a congeries of lands — that goes by the traditional name of the manor of such and such; it is an agricultural community in a world of intermingled open fields, shared commons, and labor services on the lord’s demesnes; it is a variegated private jurisdiction. ... [T]he jurisdictional aspect is most important, for the manorial court protects the villein tenant and his rights arise under its law.[41]

Villein tenure became slowly transformed to copyhold during the later 14th and 15th centuries. During this period, it became standard procedure to preserve manorial records in writing, including records of the manorial courts. Thus, grants made in villein tenure were entered into the rolls of the manorial courts. The tenant was given a copy of the roll, hence the term copyhold. Thus, the legal substance of the concept of villein tenure was preserved under the guise of copyhold. Issues relating to copyhold continued to fall within the jurisdiction of the manorial courts. However, by the late 16th century, copyholders could apply to the common law courts for a remedy.[42] This recognition occurred by way of the granting of a remedy of trespass to copyholders against the lord of the manor.[43]

The early decision of Tropnell’s case demonstrates the way in which such an argument could be made.[44] Anne Tropnell and W Twynytho brought an action in trespass against John Kyllyk and others for breaking their close.[45] In turn, the defendants argued that they held the land by copyhold. Specifically, they argued that the plaintiffs had from time beyond memory (‘de temps dont memorie’)[46] demised the customary lands of the manor so long as the tenants rendered the services due and abided by the customs of the manor. The defendants argued that since they had rendered all services and abided by the customs, therefore they held the land by right of copyhold.[47] Hence, in order to defend the action, the defendants were required to establish a right of copyhold arising by virtue of immemorial custom. The Court held the defendants were not trespassers as their land had been demisable in copy since time out of mind.[48]

Thus, jurisdiction was asserted over copyhold by the repositioning of that copyhold as custom arising from use time out of mind, custom being a matter over which the common law had already determined that it had jurisdiction. As Coke stated: ‘Custom is the Life and Soul of Copyhold Estates, and whatsoever shall or can be spoken touching Copyholds, ariseth from this Head.’[49]

In essence, therefore, the idea of accommodation, or recognition, of custom at common law did not directly involve the enforcement of other laws in their own right. The legal validity of copyhold at common law did not flow from its existence as copyhold tenure within manorial law. Rather, the common law was willing, according to its own rules, to recognise the facts and practices which constituted copyhold because those practices had been undertaken since time immemorial and the enforcement of practices undertaken since time immemorial had long been part of the common law.

This repositioning of copyhold as local custom did not, of course, mean that manorial jurisdiction ceased. Copyhold was only one facet of manorial jurisdiction. Nor was there any question as to the internal validity of manorial jurisdiction. Until the 1570s, copyhold continued to be a matter largely within manorial jurisdiction. However, over the next century, litigation increased until copyhold became subsumed within common law jurisdiction. By the mid 1600s, manorial jurisdiction generally was almost gone, and that part of the jurisdiction that the lord of the manor had originally exercised had passed to the Justice of the Peace.

What then was the relationship between the common law and local custom? Custom is often described as a ‘local common law’. In Hammerton v Honey,[50] a case concerning an alleged customary right to use and enjoy a village green ‘as a place of recreation and amusement, for air and exercise, and for the playing of all manner of lawful games’,[51] Jessel MR stated:

A custom, as I understand it, is local common law. ... it is local law because it is the law of a particular place as distinguished from the general common law. Now what is the meaning of local common law? Local common law, like general common law, is the law of the country as it existed before the time of legal memory, which is generally considered the time of Richard I. Therefore, when people allege a custom they allege that which they call a custom as having been the law of the place before the time of legal memory.[52]

Similarly, Sir Matthew Hale described general and particular customs as

[b]ut Branches and Parts of [the common law]; like as the same Ocean, tho’ it many times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.[53]

Local custom is understood as part of the common law, as both derive their validity from the same source: practice since time immemorial.

However, one less obvious facet of the relationship between the common law and local custom is that custom has been relegated to a question of evidence. Its validity within the common law is now derived from its practice since time immemorial. Whether or not there has been usage since time out of mind, or whether that usage has been continual, are questions of fact. The ‘fact’ of local custom is to be judged according to the evidential rules set down by the common law and elaborated by Coke. In many 19th century cases, questions relating to issues such as continual use were still put to juries,[54] and cases even to this day have relied on the evidence of witnesses — often the oldest members of the local community. In Mercer v Denne, for example, a case concerning the right of fishermen ‘to spread their nets to dry on the land of a private owner situat[ed] near the sea’,[55] the courts looked to elderly seafarers of the area in order to evidence the existence and content of the alleged custom.[56] With the centralisation and extension of the common law throughout the realm of England the relationship of some jurisdictions, such as manorial law, to the common law shifted, so as to relegate the laws of other jurisdictions to questions of fact at common law. The common law provided the evidential framework through which local life could be recounted by witnesses and their testimony received as ‘fact’; that fact then determined the content of the common law custom.

IV THE COLONIAL CONTEXT: THE CASE OF TANISTRY

The Case of Tanistry, referred to briefly by Brennan J in Mabo,[57] is perhaps the first case of which we have some report to consider the relationship of the common law to custom in the context of a colonial situation. Before considering the case, some background to the decision is necessary. What follows is a short, and very selective, history of the legal and social background necessary to understand the Case of Tanistry. There are a number of standard works on this period of Irish history which provide a much more detailed picture.[58]

While many have heard of the Case of Tanistry, its content remains relatively unknown, as does the fact that it was preceded by an extra-judicial resolution of the Privy Council. Extra-judicial resolutions (ie those collective decisions made by the English or Irish judiciary in conclave) were used during the first decade of the 16th century in Ireland (and to a lesser extent in England) in order to establish policy guidelines in a variety of constitutionally and politically significant cases. Such decisions were intended to establish precedents which would compel other tribunals to follow their lead in cases involving similar disputes.[59] There is some evidence that jurists of the day considered that such resolutions were binding in subsequent cases. In his Institutes, Coke ranked judicial resolutions second only to statute law in terms of their potential to bind courts.[60] One of the most important applications of extra-judicial resolutions was to the problem of the assimilation of the Irish lordships.

It was generally conceded, not least by Sir John Davies himself, that prior to what is known as the reconquest (or the Tudor conquest) of Ireland, effective British control of Ireland had been limited.[61] Prior to this time, de facto English control ‘penetrated to only a handful of port towns and a fifty mile radius around Dublin,’ an area known as ‘The Pale’.[62] Until the reign of Henry VIII, English policy had been largely directed not towards the integration of the Irish and English, but to the maintenance of a duality between them.[63] Throughout the period of English presence in Ireland, a number of well-known charters and statutes had purported to extend English law to Ireland or to abolish, or forbid the use of, brehon (customary Irish) law.[64] These, however, only purported to extend English law to the English in Ireland. The Statute of Kilkenny in 1366, for example, proscribed in English areas, on pain of treason, the use of Irish surnames, Irish law, and intermarriage with the Irish. As Davies himself recognised,

only the English colonies and some few septs of the Irishry, which were enfranchised by special charters, were admitted to the benefit and protection of the laws of England, and that the Irish generally were held and reputed aliens, or rather enemies, to the Crown of England; insomuch as they were not only disabled to bring any actions, but they were so far out of the protection of the law as it was often adjudged no felony to kill a mere Irishman in the time of peace.[65]

This was reflected in the requirement that Irish ‘living within reach of the royal writ ... purchase charters of denization as a pre-condition to owning land or suing actions in the Dublin courts.’[66] Thus, absent a charter of denization, the action would be dismissed from court by virtue of a peremptory plea of Irishry — in other words, the action was beyond the writ of the common law and hence the jurisdiction of the court. Davies makes it clear that in many parts of Ireland, brehon law remained largely operative after the arrival of the English, a conclusion generally agreed with by modern historians.[67]

The Tudor conquest of Ireland was concluded by the Treaty of Mellifont on 4 April 1603. Despite their military victory, the English government restored much of the former property of the rebels and decorated them with new titles. In return, for example, O’Neill, the Earl of Tyrone, agreed to renounce all ‘claims and title to any land but such as shall be now granted by his Majesties’ letters patent’, and to cooperate in the abolition of all ‘barbarous customs contrary to the laws being the seeds of all incivilitie’.[68] However, before long it became obvious that the Ulster nobility were once again relying on the possession of vast tracts of land in order to enhance their power and authority.

Tanistry was the name given by contemporary English observers to the practice under which Irish succession devolved through the male line (agnatic descendants of a common grandfather) to the most worthy male member of the extended kin group.[69] The result of this was not infrequent strife between rival family factions. The Irish system of individual land tenure was known to the English as gavelkind, so named because it reminded the Norman settlers of a local feudal system in Kent called gavelkind. Under this system, at least as it was understood by Sir John Davies, ultimate proprietorship of land lay in the extended kin group and the allocation of individual allotments of land was temporary and subject to periodic redistribution. Thus, possessory rights were seen as unstable, reliant on the political authority from which they devolved, ultimately deterring the ‘formation of a stable body politic’.[70]

Thus, tanistry and gavelkind were construed by Davies and other English jurists as constituting a system of law which was outside the jurisdiction of royal writ.[71] As such, they lay in the way of assimilation of the autonomous Gaelic lordships by providing a power-base outside of the jurisdiction of the common law. According to Davies,

[o]bstreperous Gaelic dynasts had always used their separate political institutions and landholding patterns, embodied in and legitimized by the domestic system of brehon law, to escape the jurisdiction of the royal writ and to assert independence from English rule.[72]

In order to assert full authority over Ireland, therefore, it was necessary to proscribe Gaelic forms of land tenure. Thus, in 1606, by extra-judicial resolution, the customs of tanistry and gavelkind were, in the words of Sir John Davies, Solicitor-General (later Attorney-General) for Ireland, ‘adjudged to be utterly void in law’, with the result that they were to ‘be shortly avoided and extinguished either by surrender or resumption of all the lands so holden.’[73] The voided Gaelic tenures were then replaced with common law titles, with the result that in some parts of Ireland a large class of freeholders was created.

In 1608, the case known as the Case of Tanistry was referred to the Court of King’s Bench from the Presidency Court of Munster. Although the issue of tanistry had supposedly been dealt with by extra-judicial resolution, this case provided the Crown with an opportunity to confirm the abolition of tanistry by a trial before a jury on the issue. The case involved a complicated set of land transfers, based in turn on a complicated family tree. At its most basic, however, the case revolved around the question of which of two competing titles to a particular piece of land was better: that of the plaintiff, derived from the title of the tanist, or that of the defendant, derived from the title of the heir at common law. The main legal issue in the case was the validity of the ‘custom’ of tanistry. This required the consideration of two interrelated questions: firstly, was the custom of tanistry abolished by the introduction of the common law; and secondly, was the custom of tanistry good at common law? In other words, did it meet the common law requirements by which the validity of customs at common law were generally decided?[74]

In the Case of Tanistry, Sir John Davies, who represented the defendant, contended that the introduction and establishment of the common law of England had abolished tanistry, ‘for this custom of tanistry was the common custom of the land of Ireland before the conquest ... and therefore it must of necessity be abolished by the establishment of another general law in the same point.’[75] Counsel for the plaintiff similarly characterised brehon law as ‘the common law of the Irishry before the conquest’, and conceded that brehon law had been ‘abolished by the establishment of the common law of England’, which had been ‘justly done according to the law of nations, notwithstanding that this was a christian kingdom, as appeared in Calvin’s case’.[76] According to Davies, after the Act of 33 Henry 8, c 1, by which it was enacted that Henry VIII should be King of Ireland, ‘all the meer Irish were from thenceforth accepted and reputed subjects and liege-men to the kings and queens of England, and had the benefit and protection of the law of England, when they would use or demand it’.[77] According to Davies this was followed by a proclamation by James I which

declared and published that he received all the natives of this kingdom into his royal protection, &c by which it was clearly resolved that the common law of England is now established universally through all this kingdom of Ireland, and that all persons and possessions within this kingdom ought to be governed by the rules of this law, and that every subject shall inherit his land in Ireland, by the just and honourable law of England, viz in such manner and by the same law, by which the King inherits the crown of Ireland. And by these degrees the common law was introduced and established in this kingdom.[78]

Although the plaintiff conceded that brehon law, the ‘common law of Ireland’, was ‘abolished by the establishment of the common law of England’, he maintained that despite this, particular customs might stand, just as ‘the custom of Gavelkind in Kent, and other customs in other particular places in England remain’d after the Norman conquest.’[79] These customs could be established by recourse to the usual common law criteria used to determine the validity of customs, as outlined earlier in this article — foremost, their practice since time immemorial.

Not surprisingly, given that the case was reported by Sir John Davies, who acted as counsel for the defendant, the report gives short shrift to the plaintiff’s argument, but deals with those of the defendant at length. Davies argued that

such custom ought to have four inseparable qualities, 1. It ought to have a reasonable commencement. 2. It ought to be certain and not ambiguous. 3. It ought to have an uninterrupted continuance time out of mind. 4. It ought to be submitted to the prerogative of the King, and not exalted above it.[80]

The first three of these mirror the emerging rules in England under which local customs would be considered valid at common law, as outlined by Coke in the Compleat Copyholder and the Institutes. First, Davies maintained, somewhat poetically, that ‘[t]he commencement of a custom (for every custom hath a commencement, altho’ the memory of man doth not extend to it, as the river Nile hath a spring, altho’ geographers cannot find it) ought to be upon reasonable ground and cause.’[81] In essence, this required the custom not to be contrary to the public good ‘which is the scope and general end of all laws’.[82] On this point, Sir John Davies argued that the custom was unreasonable and void ab initio; ‘[f]or it is against the commonwealth, and goeth utterly in destruction of it; for a commonwealth cannot subsist without a certain ownership of land’.[83] Davies argued, inter alia, that

if men have not such an estate in their lands, as their issue or cousins next of blood may inherit, so that they may know certainly for what person they travail and defraud their souls of pleasure, as Solomon saith, they will never improve their land to the best use and profit, nor build houses of any value, nor give civil education to their children; but having respect to their present time only, will be utterly careless of their posterity. And this is the true cause of the barbarism and desolation which was in all the Irish counties, where the custom of Tanistry was in use.[84]

On the question of reasonableness, the plaintiff maintained, somewhat more prosaically, that any ‘custom which giveth the land to the oldest and most worthy man of the blood and surname of the man who died seised, is very reasonable in this kingdom, because he can better manure the land and defend it, than an infant or a woman’.[85]

Secondly, Davies maintained that the custom was not certain on the grounds that every person who has an estate of inheritance has it either in his natural or political capacity, and a tanist clearly has it in neither. The tanist does not have the estate in his natural capacity, because it comes to him by election, rather than as heir. Nor does he have the estate in a political capacity because he is not ‘incorporate by the common law’.[86] In contrast, the plaintiff stressed the words ‘oldest and most worthy’. According to the plaintiff, ‘the oldest’ is certain, and while the ‘most worthy’ seems uncertain, the law ‘which is always certain and infallible in judgment ... will say that the oldest is the most worthy as well in this case as in other cases of this nature’.[87]

Thirdly, a custom must have continued, uninterrupted, since time out of mind. According to Davies, the custom was interrupted and destroyed when the tanist ‘executed an estate tail of it, according to the course of the common law.’[88] Davies specifically analogised land held under tanistry to copyhold ‘which is a parcel of the demesne of the lord, and if the lord executes an estate of it, according to the course of the common law, the custom is gone forever’.[89] The plaintiff replied that as the tenure of tanistry is not like an estate in perpetuity, then at most the tanist can alienate it for life.[90]

Finally, the custom of tanistry was argued to be void as against the King ‘as being prejudicial to his profit and prerogative’.[91] If the lands were not held of the Crown then the ‘king would lose all the benefit of his seignory paramount in this land’, such as wardship and escheat.[92] The plaintiff did not take up this point.

The most important aspect of the above arguments is the shifting of principles used by common law courts in England with respect to the recognition of local customs and laws, such as copyhold, to a colonial situation. The result, as Sir Matthew Hale pointed out, is that once recognised as custom these spaces are under the ‘superintendency’ of the common law. Furthermore, the common law determines the rules under which they were recognised, and the extent to which they are accommodated. The Case of Tanistry represents an attempt to repeat this domestic common law technique of accommodation in a colonial context, whereby one facet of what the English termed ‘brehon law’ could be accommodated within the common law as the custom of tanistry. In this sense, the Case of Tanistry represents a transition. Thus, the common law rules on recognition of local custom were transposed to a larger context, that of the colonial project. While the case may not have succeeded on the facts, both Sir John Davies for the Crown and the defendants, agreed that the matter was to be fought out according to the rules on recognition of custom.

The commentaries of both Coke and Hale, which have been discussed above, suggest that the ‘recognition’ or ‘accommodation’ of custom allows space within the common law for alternative jurisdictions, or in some cases the fragments of alternative jurisdictions: that somehow these jurisdictions retain some inherent validity and enforceability at common law. However, the Case of Tanistry demonstrates that, as with copyhold, the court was not purporting to enforce the law of an alternative jurisdiction, particularly as the case proceeded on the legal assumption that so-called brehon law had been extinguished. Rather, the customs and practices which constituted tanistry could only be enforced at common law as a common law interest if they had been practised since time immemorial. In other words, the source of the ‘custom’ of tanistry could only be the common law itself, not brehon law. The common law had long recognised usages and practices undertaken ‘time out of mind’.

The Case of Tanistry is heralded as the case which abolished the custom of tanistry. However, the judges never actually handed down a verdict. Rather, as is recorded on the final page of the judgment, after the case had been argued several times and had languished before the King’s Bench for three or four years, the parties reached an agreement and divided the land.[93] The so-called abolition of tanistry in fact stems from the earlier judicial resolution of the Irish Privy Council. Of course, for some time after both the judicial resolution and the Case of Tanistry, many Irish continued to pass lands to a tanist. Similarly, although the common law refused to recognise tanistry, it was recognised by the courts of Chancery until the 1840s. It may be obvious to state that simply because the common law had declined to recognise tanistry, that is, to accommodate or find a legal source for it within the framework of the common law, this did not result in the instant demise of the legal space of so-called brehon law. Similarly, the failure of the common law in Australia to recognise indigenous custom, other than native title, does not mean that many indigenous Australians do not continue to live their lives according to their own laws and traditions. Rather, in an echo of the techniques described above, selective elements of indigenous law relating to land, have been repositioned or accommodated within the common law as native title.

V AUSTRALIA: THE INITIAL ASSERTION OF JURISDICTION

In contrast to the multiplicity of jurisdictions which still characterised the structure of English law in 1788, on its importation to New South Wales, the common law became, at least as far as the colonists were concerned, the pre-eminent law of the new colony.[94] Further, it was no longer split between the three central common law courts and other local courts as in England, but in fact achieved a degree of centralisation which was not accomplished in England until the reforms of the late 1800s.

From the beginning, the British government authorities seem to have assumed that New South Wales was acquired by settlement.[95] However, the legal justification for this, the notion of terra nullius, developed more slowly through a series of decisions of the New South Wales Supreme Court between 1829 and 1889, starting with R v Ballard[96] and culminating in the Privy Council decision in Cooper v Stuart.[97] It was far from clear until the 1840s that the common law had jurisdiction over Aboriginal Australians. In a series of early cases, the issue of common law jurisdiction came before the courts. These cases centred on the question of whether ‘the natives’ had a recognisable or established system of law. In absence of that, it could be presumed that the common law had jurisdiction over them. In the earliest known case, Ballard, the Court determined that the common law had no jurisdiction.[98] However, from 1832 onwards, in a series of now well-known decisions, R v Murrell,[99] R v Bonjon,[100] and R v Cobby[101] the courts almost consistently came to the opposite conclusion. By the latter part of the 19th century, the ‘law returned to its comfortable unitary view, that there was and only ever had been one legal system in Australia since 1788, that of England.’[102] Importantly for present purposes, it should be noted that all arguments as to the amenability of indigenous Australians to the common law were couched in the language of jurisdiction. However, by the late 1800s a unitary vision of law had been established. According to case law, earlier stories of legal pluralism and indigenous autonomy have been expunged. The common law not only is the only law of the colony, but always has been. The effect of determining that indigenous Australians had no established system of law was to define Australia as a legally empty territory, ready to be filled by the common law, a view confirmed by the High Court in Mabo. Since the late 1800s, questions as to the competence of the common law to render decisions have disappeared from the legal landscape. Along with this, the language of jurisdiction has been confined to questions regarding the ability of individual courts to render judgment. In other words, we no longer have a substantive theory of common law jurisdiction; rather, jurisdiction is a mere procedural question to be answered prior to determining the matter according to the requisite body of substantive law.

In Mabo, Brennan J acknowledged that the theory which underpinned the application of English law to the colony of New South Wales was that the common law became the law of the colony as the indigenous inhabitants were considered to be barbarous or unsettled.[103] Having determined that ‘the facts’ no longer accorded with that theory, Brennan J decided that there were two possible courses of action: to consider whether the plaintiff Meriam people could be ranked higher in the scale of social organisation than those groups whose laws were at issue in the earlier cases; or to discard the distinction between inhabited colonies that were terra nullius and those which were not.[104] Brennan J chose the latter course of action.

Some of the most powerful rhetoric of the Mabo decision is found in those passages in which Brennan J discarded the notion that indigenous Australians were ‘backward’ or ‘uncivilised’. He characterised, for example, the enlarged theory of terra nullius as ‘an unjust and discriminatory doctrine of that kind [which] can no longer be accepted.’[105] Further, in overruling earlier decisions such as Cooper v Stuart,[106] his Honour held that ‘it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.’[107]

What then was the result of overturning those cases on which the universality of common law jurisdiction in the colonies is based? In the end, little turned doctrinally on the recognition that indigenous Australians were neither ‘low on the scale of civilisation’ nor without recognised laws. Rather than weakening the jurisdictional hold of the common law, Brennan J was at pains to reinforce it. The High Court did not overrule the status of the colony as settled, but rather re-entrenched it. Brennan J reminded us that in a settled colony, the law of England was not merely the personal law of the English colonists — it became the law of the land.[108] It is, of course, vital that the common law is recognised as the law of the land, as it then binds not only the colonists, but the indigenous inhabitants. The result is that the jurisdiction of the common law over indigenous inhabitants is reaffirmed.

The univocal view of the world presented in Mabo was reinforced in the later case of Walker v New South Wales.[109] Walker concerned an application by summons to dismiss a statement of claim by which Walker, a member of the Noonuccal nation, claimed that his actions should be governed by customary Aboriginal criminal law, not Australian law. Mason CJ dismissed any suggestion that customary criminal law survived either English settlement or the introduction of the general provisions of English criminal law by the Australian Courts Act 1828 (Imp) 9 Geo 4, c 83. In a very short judgment, Mason CJ was at pains to reinforce the uniform nature of the criminal legal system. According to his Honour, ‘[i]t is a basic principle that all people should stand equal before the law.’[110] Further, and most tellingly, he stated that ‘English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.’[111]

In Mabo and Walker, therefore, the Court refashions the story of the origins of the common law in Australia. In condemning the discriminatory nature of the ‘absence of law’ theory, however, the Court does not open the way for a new relationship with indigenous normative or legal systems. Rather, it reinstitutionalises the place of the common law as the pre-eminent legal system in Australia and redeclares the right of the common law to determine its own jurisdiction and its relationship with other normative orders or jurisdictions. The univocal status of the common law as established in early cases such as Murrell and Cooper v Stuart remains undisturbed.

Importantly, neither Mabo nor Walker are presented as cases which concern questions of jurisdiction. As noted above, by the time of Mabo and Walker it had been clearly established that, as Rath J stated in R v Wedge:

it seems evident that, as New South Wales, in legal theory, was founded by settlement, there was only one sovereign, namely the King of England, and only one law, namely English law.[112]

Presumably there is no need to (re)present the issues in Mabo as issues of jurisdiction because the competence of the common law to render judgment is taken for granted. To engage with questions of jurisdiction is to raise the spectre of a possible plurality of legal orders.[113]

VI MULTIPLE LEGAL SPACES: NATIVE TITLE AND THE

COMMON LAW

A Alternative Normative Orders

In more recent decisions, however, it has become increasingly difficult for the courts to maintain a vision of the Australian legal system as singular and univocal. Plaintiffs have sought to clarify and extend the decision in Mabo, with the result that the courts have been required to engage increasingly with questions concerning the relationship between the common law and indigenous legal spaces/jurisdictions. While most cases have concerned native title, there have been some attempts to argue for a recognition of customary law more generally. Rather than denying the existence of indigenous norms, the task for the courts has become one of containment: limiting the recognition of indigenous norms to native title and limiting the doctrine of native title itself.

Initial challenges to the univocality of the common law were presented in the context of extinguishment. Following the recognition of native title in Mabo, much of the legal argument in native title cases concerned the rules regarding the extinguishment of native title. According to Brennan J in Mabo, native title is extinguished by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.[114] This most commonly takes the form of the grant of an interest which is inconsistent with the continued existence of native title, for example an estate conferring exclusive possession, such as an estate in fee simple.[115] Following Mabo, however, the parameters of the inconsistency test, as it came to be known, were unclear.[116] Thus, it fell to a series of cases following Mabo for the test to be further defined. The best known of these decisions is undoubtedly Wik Peoples v Queensland.[117]

Broadly put, the central issue in Wik was the effect of the grant of a pastoral lease on native title. In general, it was accepted by the Wik and Thayorre peoples that native title is extinguished by the grant of interests by the Crown which are wholly or partially inconsistent with the continued existence of native title, although the exact parameters of ‘wholly or partially inconsistent’ were unclear, as was the nature of a pastoral lease itself. However, while the Thayorre people, as it was put by Toohey J, ‘accepted the language of extinguishment’,[118] the meaning of extinguishment was questioned.

Does native title simply cease to exist because of a Crown grant of land in the same physical space as is occupied by native title holders? Rather than accepting that native title ceased to exist, the Thayorre people argued that extinguishment really concerned restrictions on the enforceability of their laws and customs. In essence, the Thayorre people argued that extinguishment was no more than a removal of common law recognition of native title. The grant of a Crown-derived interest in land had no effect under traditional laws and customs. Thus, according to the Thayorre, no actual extinguishment, in the sense of ‘ceasing to exist’, occurred on the granting of an interest. Rather, there was simply a failure of the common law to recognise indigenous norms. Toohey J himself stated that

there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished.[119]

The purpose of the Thayorre people’s argument on extinguishment was that as extinguishment at common law only effects a lack of recognition within the common law system, extinguishment did not necessarily carry a connotation of permanency. According to the Thayorre people, while extinguishment is operative within the legal space of the common law, it is ineffectual within that of the native title holders. Thus, once the action at common law which extinguished native title came to an end, there would be no reason why recognition could not be re-accorded to native title. For example, if native title ceases to be recognised (is ‘extinguished’) by the grant of a fee simple estate, then why could recognition not be reafforded to that native title if the estate in fee simple reverted to the Crown? Extinguishment should not be seen as permanent, but as merely suspending native title.

Predictably, the High Court held in Wik that extinguishment connotes a permanent state.[120] Such a finding, however, does not deny the existence of legal spaces other than that of the common law; merely that recognition cannot be reaccorded to native title interests once they are considered, under the rules of the common law, to have been extinguished. This has been recognised in subsequent decisions, including that of the High Court in Fejo, a case which concerned the effect of the grant of a fee simple estate on native title rights. In Fejo, Kirby J stated that

[t]he grant to John Benham in 1882 used the formula appropriate to a fee simple grant. Of its legal nature, that was incompatible with the continuance in respect of the same land of the fragile native title right which the Australian legal system will recognise. Doubtless, the bundle of interests we now call ‘native title’ would continue, for time at least, within the world of Aboriginal custom. It may still do so.[121]

Similarly, in the later Federal Court of Appeal decision in Western Australia v Ward, North J stated that

[t]he use of the word extinguishment is convenient as a shorthand reference. But it is inaccurate in a significant way. While native title is not recognised by the common law in circumstances amounting to extinguishment, and is therefore ineffective under the common law system, native title does not cease to exist as an operative force among Aboriginal people. It does not cease to exist for all purposes, only for the purposes of the common law. The use of the word extinguishment is apt to suggest that native title suffers a greater destruction than is the fact.[122]

In both the above excerpts, the courts clearly recognise that indigenous norms are not dependent on common law recognition or non-recognition for their existence. Notably, however, as was the case in Mabo and Walker, the language of jurisdiction is absent. Nevertheless, it is clear that what is being described are legal spaces/jurisdictions outside the common law (or, more broadly, the Australian legal system). This raises questions as to how the relationship between the systems (common law and the particular indigenous system at issue) is to be conceptualised and managed. Given the continuing reluctance of Australian courts to recognise customary law other than in the form of native title, native title inevitably becomes the contact point between the systems. This is where the systems collide.

There have been various unsuccessful attempts to argue for the recognition of customary law beyond the confines of land law. While a number of cases in the area of criminal law have acknowledged traditional practices in the context of sentencing,[123] no case has actually granted status to customary law other than in the form of native title. The issue of recognition beyond rights to land was most recently discussed by von Doussa J in the Bulun Bulun case.[124] The plaintiff, Bulun Bulun, brought an action for infringement of his copyright in an artistic work known as ‘Magpie Geese and Water Lilies at the Waterhole’.[125] The defendants had printed the design on clothing fabric. At this level, the argument was straightforward. The defendants admitted infringement of Bulun Bulun’s copyright in the artistic work and withdrew the fabric from sale. However, the claim did not just allege ownership by Bulun Bulun. In addition, it was alleged that equitable ownership of the work subsisted in the Ganalbingu people, as they are the traditional Aboriginal owners of Ganalbingu country and, under the laws and customs of the Ganalbingu people, have the right to permit and control the production and reproduction of the artistic work. This claim inevitably raised questions as to the status of such laws and customs. Could Ganalbingu law be enforced within the Australian legal system? Were these rights incidents of native title? Or could these issues be reduced to questions of procedure and evidence?

Von Doussa J characterised the issue at stake thus:

The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. The question, however, is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through recognition of those laws by the common law, or by their capacity to found equitable rights in rem.[126]

Von Doussa J rejected the notion that indigenous customs relating to protection of art and artistic works could be recognised within the Australian legal system, although he acknowledged, similarly to cases involving sentencing for criminal matters, that evidentiary notice could be taken of such customs:

The High Court’s decision in Mabo v State of Queensland (No 2) shows that customary indigenous law has a role to play within the Australian legal system. ... While Mason CJ observed in Walker v New South Wales, that it is not possible to use evidence about indigenous customs and traditions to operate as ‘customary law’ in opposition to or alongside Australian law ... Australian courts cannot treat as irrelevant the rights, interests and obligations of Aboriginal people embodied in customary law.[127]

Thus, at the same time as acknowledging what he calls ‘sui generis system[s] of rights and obligations’, von Doussa J also reaffirms the position of the common law as the pre-eminent jurisdiction and denies that rights and interests can be accorded other than by the Australian legal system.[128] This approach demonstrates the same technique as that by which the common law historically asserted jurisdiction over non-common law jurisdictions. Just as the common law repositioned parts of manorial law as the custom of copyhold, and parts of the brehon law as the custom of tanistry, so the common law has selectively asserted jurisdiction over parts of indigenous normative systems and repositioned them within the common law framework as native title. In describing the nature of native title, Beaumont and von Doussa JJ stated in Ward:

Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are ‘artificially defined’ under the common law because they arise from the acknowledgement and observance of traditional laws and customs under a different legal system. The common law accords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people.[129]

B The Foundation of Native Title at Common Law

Thus, indigenous norms are reinterpreted and repositioned, just as custom has been, and the common law, in Sir Matthew Hale’s words, ‘does interpose and authoritatively decide the Exposition, Limits and Extension of such Customs.’[130] Or, as stated by Kirby J in Wik:

The theory accepted by this Court in Mabo (No 2) was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law of Australia said so.[131]

Further, just as it did with regard to brehon law in the Case of Tanistry, the common law determines the enforceability and validity of native title within common law: it exercises its own jurisdiction in order to set the evidential rules for recognition. At a level of technique, these rules echo those laid down by Coke and Davies in the 1600s. However, in the context of native title the requirements of continuous uninterrupted practices since time immemorial were translated in Mabo to a requirement that there be a continuing, ongoing and uninterrupted connection with the land since the acquisition of sovereignty (or first European contact).[132] Clearly, for the purposes of the common law’s own jurisdiction, there can be no time prior to sovereignty: thus time immemorial is translated in the colonial context to the coming of the common law upon the acquisition of sovereignty.

Further, as was the case with regards to custom at common law, native title becomes determined adjectivally — in other words, evidentially — as do indigenous Australians themselves.[133] Recognition of indigenous relationships with the country in the form of native title becomes a question of ‘appropriate evidence’: oral histories, documents, written histories, etc. Just as with copyhold and tanistry, these ‘facts’ provide the content of the interest within the common law. The scope of native title at common law is dependent on which facts are admissible.

The foundation of the doctrine of native title is clear: indigenous interests in land have ‘become a dimension of the common law’[134] known within the common law as native title, their validity and enforcement deriving from their continuous practice since the coming of the common law. At common law, their validity depends on the common law, and the common law exercises its own jurisdiction to determine the scope and limits of those rights and the criteria for their recognition and continued enforcement within the common law. The common law has always recognised the validity of practices undertaken since ‘time out of mind’.

This does not mean that native title is simply co-extensive with, or the same as, other kinds of common law custom. On the contrary, the contemporary common law rules pertaining to custom and those pertaining to native title are not the same. For example, the rules on extinguishment of custom, and the effect of interruption of use on the continuing validity of that custom, and those on extinguishment of native title, are quite different.[135] However, while they may constitute separate bodies of doctrine, they have similar foundations within the common law, based on practices since time immemorial. They are both the product of the common law technology of jurisdiction: each is the product of the common law’s project of uniformity — although each has developed (and is continuing to develop) in its own unique fashion. At the level of technique, they are both, to paraphrase from Sir Matthew Hale at the beginning of this article, ‘Part of the same Ocean’.[136]

VII CONCLUSION

Just as the Case of Tanistry represents a simultaneous recognition and disavowal of ‘brehon law’, so the doctrine of native title represents a recognition and disavowal of Australian indigenous jurisdictions. In the Case of Tanistry, it was common ground that while brehon law once existed, it had been ‘abolished by the establishment of the common law of England’.[137] While ‘brehon law’ obviously continued to operate, as according to Davies it was the source of the Irish Lord’s power, the decision that it had been ‘abolished’ left only the possibility at common law of the recognition as custom of specific rights with respect to land.

Similarly, Australian judges have been at pains to acknowledge the existence of indigenous normative systems, but to deny their efficacy at common law. While judges such as Kirby and Von Doussa JJ concede that many indigenous Australians continue to live according to their own laws and traditions, the decision that customary law generally cannot be recognised leaves only the possibility at common law of the recognition of specific rights with respect to land. Indigenous laws and traditions are recognised, only to be closed off from enforcement at common law; by the same double movement recognised and disavowed.

By reiterating that native title only exists because ‘the common law of Australia said so’, the courts are able to contain indigenous norms and maintain the univocality of the common law. While the courts accept that indigenous norms exist independently of the common law, they pose no threat. The common law has appropriated to itself the sole right to determine enforceability: in other words, sole jurisdiction.

[*] BA, LLB (Hons) (Tas), LLM (Calg); Senior Lecturer, Faculty of Law, Griffith University. I would like to thank Shaun McVeigh and Lee Godden for our ongoing conversations; of course, all errors are my own. An earlier version of this article was presented at the Brehon Law Project Symposium, held at King’s Inn, Dublin, on 11–14 January 2002.

[1] Sir Matthew Hale, The History of the Common Law of England (first published 1713, Charles Gray ed, 1971) 18.

[2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[3] Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 96.

[4] Case of Tanistry (1608) Dav 28; 80 ER 516. For the English translation, see A Report of the Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland (1762) 78 (‘Davies translation’).

[5] Of necessity, there is much that has been left out of this article. In particular, some of the numerous other attempts to provide a description or analysis of the concept of native title and its relationship to the common law are neither discussed nor critiqued. This article does not build on these other works; rather, it stands alongside them, offering a different, not necessarily mutually exclusive, account. See, eg, Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 128 (‘Fejo’); Noel Pearson, ‘The Concept of Native Title at Common Law’ in Galarrwuy Yunupingu (ed), Our Land Is Our Life: Land Rights — Past, Present and Future (1997) 154; Noel Pearson, ‘Principles of Communal Native Title’ [2000] IndigLawB 44; (2000) 5 Indigenous Law Bulletin 4; Peter Rush, ‘An Altered Jurisdiction: Corporeal Traces of Law’ [1997] GriffLawRw 6; (1997) 6 Griffith Law Review 144; Strelein, above n 3.

[6] Rush, above n 5, 150.

[7] For example, pt 9 of the Supreme Court Act 1995 (Qld) outlines those bodies of law in accordance with which Queensland courts are competent to make a determination.

[8] Richard Ford, ‘Law’s Territory (A History of Jurisdiction)’ (1999) 97 Michigan Law Review 843, 843.

[9] Supreme Court of Judicature Act 1873 (Imp) 36 & 37 Vict c 66; Supreme Court of Judicature Act 1875 (Imp) 38 & 39 Vict c 77.

[10] John Baker, An Introduction to English Legal History (2nd ed, 1979) 11.

[11] W T Murphy, ‘The Oldest Social Science? The Epistemic Properties of the Common Law Tradition’ (1991) 54 Modern Law Review 182, 197; S F C Milsom, Historical Foundations of the Common Law: The Tagore Lectures 1937–38 (2nd ed, 1981) 11.

[12] Murphy, above n 11, 196.

[13] Sir Edward Coke, The First Part of the Institutes of the Lawes of England; Or, A Commentarie upon Littleton, Not the Name of a Lawyer Onely, But of the Law it Selfe (first published 1628, 19th ed, 1832) (‘Institutes I’); Sir Edward Coke, The Second Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient and other Statutes (first published 1642, 1974 ed) (‘Institutes II’).

[14] See below n 16.

[15] Sir William Holdsworth, Some Makers of English Law (1938) 132.

[16] Sir Edward Coke, The Second Part of the Reports of Sir Edward Coke (1826) xi–xii.

[17] Quoted in Peter Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ (1991) 12 Journal of Legal History 246, 259.

[18] See Harbert’s Case [1584] EngR 14; (1584) 3 Co Rep 11b; 76 ER 647.

[19] Coke, Institutes I, above n 13, c 6, s 138 (emphasis in original).

[20] John Lewis, ‘Sir Edward Coke (1552–1633): His Theory of “Artificial Reason” as a Context for Modern Basic Legal Theory’ (1968) 64 Law Quarterly Review 330, 339.

[21] Nicholas Blomley, Law, Space and the Geographies of Power (1994) 73.

[22] Louis Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (1977) 115 (citations omitted).

[23] Blomley, above n 21, 80.

[24] Peter Goodrich and Yifat Hachamovitch, ‘Time out of Mind: An Introduction to the Semiotics of Common Law’ in Peter Fitzpatrick (ed), Dangerous Supplements: Resistance and Renewal in Jurisprudence (1991) 159, 171.

[25] Ibid 161.

[26] Sir Edward Coke, The Compleat Copyholder: Being a Learned Discourse of the Antiquity and Nature of Manors and Copyholds, with all Things thereunto Incident (first published 1630, 1719 ed) s 33 (‘Compleat Copyholder’).

[27] Hale, above n 1, 17 (emphasis in original).

[28] Case of Tanistry (1608) Dav 28, 33; 80 ER 516, 520; Davies translation, above n 4, 87.

[29] J Thomas, Systematic Arrangement of Lord Coke’s First Institute of the Laws of England, bk I (first published 1818, 1986 ed) 8.

[30] Hale, above n 1, 18 (emphasis in original).

[31] Ibid.

[32] Ibid 19–20.

[33] Coke, Institutes I, above n 13, c 6, s 138.

[34] Ibid.

[35] Coke, Compleat Copyholder, above n 26, s 33.

[36] London and North Western Railway v Commissioner of Sewers for Fobbing Levels (1818) 66 LJ QB 127.

[37] A-G v Wright [1897] UKLawRpKQB 108; (1897) 2 QB 318.

[38] Tyson v Smith [1838] EngR 315; (1838) 9 Ad & El 406; 112 ER 286.

[39] Copyhold was made commutable to freehold by the Copyhold Act 1841, 4 & 5 Vict c 35. It was formally abolished on 1 January 1926 by the Law of Property Act 1922, 12 & 13 Geo 5, c 16, s 128.

[40] Charles Gray, Copyhold, Equity, and the Common Law (1963) 5. Much of the following description of copyhold is taken from Gray.

[41] Ibid 6–7.

[42] Notably, the Courts of Chancery were the first to offer a remedy to copyholders. Gray suggests that one of the reasons why the common law courts chose to recognise copyhold was because of the increasing tension or rivalry between courts of the common law and chancery: ibid 68.

[43] Later, the remedy of ejectment was also extended to copyhold.

[44] (1505–06) Keil 76a; 72 ER 237. (The majority of cases published in the Keilway report series were published anonymously, ie without a case name.) This was an early decision on the copyright holder’s status at common law. It remained a virtual anomaly until the mid 16th century.

[45] Ibid 77; 237.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Coke, Compleat Copyholder, above n 26, s 33.

[50] (1876) 24 WR 603, referred to with approval by the Court of Appeal in New Windsor Corporation v Mellor [1975] 1 Ch 380, 387 (Lord Denning MR); 395 (Browne LJ).

[51] Hammerton v Honey (1876) 24 WR 603, 603.

[52] Ibid 603. For similar comments in a more recent case see Egerton v Harding [1974] 3 All ER 689.

[53] Hale, above n 1, 18.

[54] See, eg, A-G v Wright [1897] UKLawRpKQB 108; (1897) 2 QB 318.

[55] [1905] UKLawRpCh 112; [1905] 2 Ch 538, 538.

[56] Ibid 541.

[57] [1992] HCA 23; (1992) 175 CLR 1, 49.

[58] Some of these works include: Jon Crawford, Anglicizing the Government of Ireland: The Irish Privy Council and the Expansion of Tudor Rule, 1556–1578 (1993); Steven Ellis, Tudor Ireland: Crown, Community and the Conflict of Cultures, 1470–1603 (1985); Steven Ellis, Reform and Revival: English Government in Ireland, 1470–1534 (1986); Brendan Bradshaw, The Irish Constitutional Revolution of the Sixteenth Century (1979); Ciaran Brady and Raymond Gillespie (eds), Natives and Newcomers: Essays on the Making of Irish Colonial Society 1534–1641 (1986).

[59] Hans Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (1985) 35.

[60] Sir Edward Coke, Institutes II, above n 13, 618. See also Slade v Morley [1792] EngR 2268; (1602) Yel 21; 80 ER 15. It should be noted, however, that strictly speaking these comments relate to resolutions of the Exchequer Chamber, not the Privy Council.

[61] See Sir John Davies, A Discovery of the True Causes Why Ireland was Never Entirely Subdued and Brought under Obedience of the Crown of England until the Beginning of His Majesty’s Happy Reign (1612) (first published 1612, James Myers ed, 1988) 71–2.

[62] Pawlisch, above n 59, 36–7.

[63] Gerard Hayes-McCoy, ‘The Royal Supremacy and Ecclesiastical Revolution, 1534–47’ in Theodore Moody, Francis Martin and Francis Byrne (eds), A New History of Ireland, Vol III: Early Modern Ireland 1534–1691 (1976) 39, 39.

[64] See, eg, the Statute of Kilkenny 40 Edw III, c 4.

[65] Davies, above n 61, 125–6.

[66] Pawlisch, above n 59, 60. Denization referred to the process whereby a person who was born an alien obtained letters patent in order to make himself an English subject. Such a person could then take lands by purchase or devise, which an alien could not, but was incapable of taking by inheritance. For a discussion of allegiance acquired by denization see Calvin’s Case (1608) 7 Co Rep 1a, 6a–6b; 77 ER 377, 383–4.

[67] See, eg, Crawford, above n 58, 183–4; Bradshaw, above n 58, 14.

[68] Treaty of Mellifont, 4 April 1603, quoted in Pawlisch, above n 59, 65.

[69] For a description of tanistry from the perspective of the Irish through a reading of contemporary sources, see Katharine Simms, From Kings to Warlords: The Changing Political Structure of Gaelic Ireland in the Later Middle Ages (1987) ch IV.

[70] Pawlisch, above n 59, 61.

[71] Ibid 45.

[72] Ibid.

[73] Letter from Sir John Davies to Lord Salisbury, 1606 (British Library Additional Manuscript 4793, fols 45b, 53b–54a) quoted in Pawlisch, above n 59, 46. While there is no extant copy of the resolution by which tanistry was voided, the resolution on gavelkind is reported as The Resolution of the Judges, Touching the Irish Custom of Gavelkind (1608) Dav 49; 80 ER 535; Davies translation, above n 4, 134.

[74] Case of Tanistry (1608) Dav 28; 80 ER 517; Davies translation, above n 4, 80.

[75] Ibid 37; 524; 101 (emphasis in original).

[76] Ibid 30; 518; 84 (emphasis in original) (citations omitted).

[77] Ibid 39; 526; 107 (emphasis in original).

[78] Ibid 40; 527; 108 (emphasis in original).

[79] Ibid 30; 518; 84 (emphasis in original).

[80] Ibid 33; 520; 87.

[81] Ibid 33; 520; 88 (emphasis in original).

[82] Ibid 33; 520; 89.

[83] Ibid 33; 521; 92.

[84] Ibid 34; 521; 92 (emphasis in original).

[85] Ibid 30; 518; 81 (emphasis in original).

[86] Ibid 36; 523–4; 99.

[87] Ibid 30; 518; 82.

[88] Ibid 36; 524; 99.

[89] Ibid.

[90] Ibid 31; 519; 84.

[91] Ibid 36; 524; 100.

[92] Ibid.

[93] Ibid 42; 529; 115.

[94] In fact, even the place of equity in the new colony was uncertain. The First Charter of Justice, which created the Court of Civil Jurisdiction, omitted equity (or chancery) from the explicit list of the civil court’s jurisdiction. It was not until 1814, when the Supreme Court was established, that the civil court of New South Wales was given equitable jurisdiction. Despite this lack of jurisdiction, the Court of Civil Jurisdiction often relied on formal equitable principles: see Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (1996) 10–13.

[95] See Bruce Kercher, An Unruly Child: A History of Law in Australia (1995) 5.

[96] R v Ballard (Unreported, Supreme Court of NSW, Forbes CJ and Dowling J, 13 June 1829) (‘Ballard’). A transcript of the notebook of Dowling J has been provided by Bruce Kercher in ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) 3 Australian Indigenous Law Reporter 410, 412. The notebook is to be found at: State Records NSW, CGS 5869, Proceedings of the Supreme Court of New South Wales, 1828–44; [2/3205 vol 22 p 98]. Page references are to the Australian Indigenous Law Reporter.

[97] [1889] UKLawRpAC 7; (1889) 14 AC 286. There were decisions earlier than 1829 in which the status of indigenous Australians and the jurisdiction of the common law were at issue. At present, however, there is no accessible version of these cases.

[98] (Unreported, Supreme Court of NSW, Forbes CJ and Dowling J, 13 June 1829).

[99] (1836) 1 Legge 72 (‘Murrell’). This decision has recently been republished by Bruce Kercher in ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) 3 Australian Indigenous Law Reporter 410, 414. The earlier reported version was only published in 1896, and relied on newspaper accounts. The more recent version has been reproduced by Kercher from files at: State Records NSW, CGS 13696, Miscellaneous Correspondence relating to Aborigines, 1797–1840; [5/1161 pp 210–16]. All references in this article are to the Australian Indigenous Law Reporter version.

[100] (Unreported, Supreme Court of NSW, Willis J, 16 September 1841), published in (1998) 3 Australian Indigenous Law Reporter 417.

[101] (1883) 4 NSWR 355.

[102] Bruce Kercher, ‘Recognition of Indigenous Legal Autonomy in Nineteenth Century New South Wales’ [1998] IndigLawB 54; (1998) 4(13) Indigenous Law Bulletin 7, 7. Kercher provides a detailed description of all the relevant cases in this article.

[103] Mabo [1992] HCA 23; (1992) 175 CLR 1, 39.

[104] Ibid 40.

[105] Ibid 42.

[106] [1889] UKLawRpAC 7; (1889) 14 AC 286.

[107] Mabo [1992] HCA 23; (1992) 175 CLR 1, 41–2.

[108] Ibid 36.

[109] [1994] HCA 64; (1995) 69 ALJR 111 (‘Walker’).

[110] Ibid 113.

[111] Ibid.

[112] R v Wedge [1976] 1 NSWLR 581, 584.

[113] Note that Mason CJ further emphasised that the only sovereign entity is Australia: Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193, 200.

[114] Mabo [1992] HCA 23; (1992) 175 CLR 1, 64–5.

[115] The High Court confirmed that native title is extinguished by the grant of an estate in fee simple in Fejo [1998] HCA 58; (1998) 195 CLR 96. This can be contrasted with the situation in Canada, where it has been held that the grant of an estate in fee simple does not necessarily exclude indigenous use. The grant will only extinguish indigenous rights if the use to which the land is put is factually inconsistent with the continued existence of the indigenous rights: see Delgamuukw v The Queen (1993) 104 DLR (4th) 470, 532 (Macfarlane JA) (BCCA).

[116] On the issue of inconsistency, see Shaunnagh Dorsett ‘“Clear and Plain Intention”: Extinguishment of Native Title in Australia and Canada Post-Wik’ [1997] GriffLawRw 4; (1997) 6 Griffith Law Review 96.

[117] (1996) 187 CLR 1 (‘Wik’).

[118] Ibid 102.

[119] Ibid.

[120] With the possible exception of Toohey J, whose judgment on this point is open to interpretation: ibid 131. This was confirmed in Fejo [1998] HCA 58; (1998) 195 CLR 96, 127. In 1998, the Native Title Act 1993 (Cth) was amended to include a definition of extinguishment: Native Title Amendment Act 1998 (Cth). According to s 237A: ‘The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.’

[121] [1998] HCA 58; (1998) 195 CLR 96, 151.

[122] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 329 (‘Ward’).

[123] See, eg, Neal v The Queen [1982] HCA 55; (1982) 7 A Crim R 129; R v Miyatatawuy [1996] NTSC 84; (1996) 6 NTLR 44; Munungurr v The Queen (1994) 4 NTLR 63.

[124] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1998) 157 ALR 193 (‘Bulun Bulun’).

[125] Ibid 195.

[126] Ibid 204.

[127] Ibid 197 (citations omitted). As a matter of law, von Doussa J held that no communal rights in artistic works could be founded through recognition of customary laws by the common law. Although he did not use the language of extinguishment, he held that s 8 of the Copyright Act 1968 (Cth) (‘copyright does not subsist otherwise than by virtue of this Act’) precluded recognition at common law: at 205.

[128] Ibid 205.

[129] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 189.

[130] Hale, above n 1, 18.

[131] Wik (1996) 187 CLR 1, 238 (emphasis added).

[132] Mabo [1992] HCA 23; (1992) 175 CLR 1, 70 (Brennan J).

[133] On this point see also Rush, above n 5, 155. Note, however, that while Rush also provides a jurisdictional account of native title, he comes to a quite different conclusion as to the legal foundations of the doctrine of native title.

[134] Mabo [1992] HCA 23; (1992) 175 CLR 1, 176 (Toohey J).

[135] For the rules on custom generally, and on extinguishment of custom in particular, see Halsbury’s Laws of England, vol 12(1) Customs and Usage, ‘Extinguishment of Custom’ [646]–[649].

[136] Hale, above n 1, 18.

[137] Case of Tanistry (1608) Dav 28, 33; 80 ER 516, 518; Davies translation, above n 4, 84 (emphasis in original).