Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
" when Governor Phillip received his first Commission from King George III. on 12th October 1786, the whole of the lands of Australia were already in law the property of the King of England."
With respect to Isaacs J., that proposition is wholly unsupported. Roberts-Wray comments (73) that the proposition is "startling and, indeed, incredible". We need not be concerned with the date on which sovereignty over the Australian colonies was acquired by the Crown but e are concerned with the proposition that on, and by reason of, the acquisition of sovereignty, the Crown acquired all colonial land as a royal demesne.
There is a distinction between the Crown's title to a colony and the Crown's ownership of land in the colony, as Roberts-Wray points out (74):
" If a country is part of Her Majesty's dominions, the sovereignty vested in her is of two kinds. The first is the power of government. The second is title to the country ...
This ownership of the country is radically different from ownership of the land: the former can belong only to a sovereign, the latter to anyone. Title to land is not, per se , relevant to the constitutional status of a country; land may have become vested in the Queen, equally in a Protectorate or in a Colony, by conveyance or under statute ...
The distinction between these two conceptions has, however, become blurred by the doctrine that the acquisition of sovereignty over a Colony, whether by settlement, cession or conquest, or even of jurisdiction in territory which remains outside the British dominions, imports Crown rights in, or in relation to, the land itself."
Similarly, Sir John Salmond distinguished the acquisition of territory from the Crown's acquisition of property (75):
" The first conception pertains to the domain of public law, the second to that of private law. Territory is the subject-matter of the right of sovereignty of imperium while property is the subject-matter of the right of ownership or dominium. These tow rights may or may not co-exist in the Crown in respect of the same area. Land may be held by the Crown as territory but not as property, or as property but not as territory, or in both rights at the same time. As property, though not as territory, land may be held by one state within the dominions of another."
Professor O'Connell in his work International Law (76) points to the distinction between acquisition of territory by act of State and the abolition of acquired rights:
" This doctrine [of act of State], which was affirmed in several cases arising out of the acquisition of territory in Africa and India, has been misinterpreted to the effect that the substantive rights themselves have not survived the change."
The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. The distinction between the Crown's title to territory and the Crown's ownership of land within a territory is made as well by the common law as by international law. A.W.B. Simpson (77) distinguishes the land law rule in England that all land is held of the Crown from the notion that all land is owned by the Crown. Speaking of the mediaeval conception of materialism, he comments (78):
" This attitude of mind also encouraged the rejection of any theory which would say that the lord `owned' the land, and that the rights of tenants in the land were iura in re aliena. Such a theory would have led inevitably to saying that the King, who was ultimately lord of all land, was the `owner' of all land.
The lawyers never adopted the premise that the King owned all the land; such a dogma is of very modern appearance. it was sufficient for them to note that the King was lord, ultimately, of all the tenants in the realm, and that as lord he had many rights common to other lords (e.g. rights to escheats) and some peculiar to his position as supreme lord (e.g. rights to forfeitures)."
The general rule of the common law was that ownership could not be acquired by occupying land that was already occupied by another. As Blackstone pointed out (79):
" Occupancy is the thing by which the title was in fact originally gained; every man seizing such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. " (Emphasis added.)
It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown that acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion the sovereignty carried ownership in its wake must be rejected too. Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.
A basic doctrine of the land law is the doctrine of tenure, to which Stephen C.J. referred in Attorney-General v. Brown, and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency. it is derived from feudal origins.