Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
The defendant's submission is founded on propositions that were stated in cases arising from the acquisition of other colonial territory by the Imperial Crown. Although there are differences which might be said to distinguish the Murray Islands and the Meriam people of 1879 from other colonial territories and their indigenous inhabitants when those territories respectively became British colonies, the propositions on which the defendant seeks to rely have been expressed to apply universally to all colonial territories "settled" by British subjects. Assuming that the Murray Islands were acquired as a "settled" colony (for sovereignty was not acquired by the Crown either by conquest or by cession), the validity of the propositions in the defendant's chain of argument cannot be determined by reference to circumstances unique to the Murray Islands from other parts of Australia be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands. As we shall see, such a ground of distinction discriminates on the basis of race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. It will be necessary to consider presently the racial or ethnic basis of the law stated in earlier cases relating to the entitlement of indigenous people to land in settled colonies.
On analysis, the defendant's argument is that, when the territory of a settled colony became part of the Crown's dominions, the law of England so far as applicable to colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown's demesne and no right or interest in l any land in the territory could thereafter be possessed by any other person unless granted by the Crown. Perhaps the clearest statement of these propositions is to be found in Attorney-General v. Brown (6), when the Supreme Court of New South Wales rejected a challenge to the Crown's title to and possession of the land in the Colony. Stephen C. J. stated the law to be -
" that the waste lands of this Colony are, and ever have been, from the time of its first settlement In 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign's possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown".
The reasons for this conclusion were stated (7):
" The territory of New South Wales, and eventually the whole of the vast island of which it forms a part, have been taken possession of by British subjects in the name of the Sovereign. They belong, therefore, to the British Crown. ... The fact of the settlement of New South Wales in that manner, and that it forms a portion of the Queen's Dominions, and is subject to and governed by British laws, may be learned from public colonial records, and from Acts of Parliament. New South Wales is termed in the statute 54 Geo.III, c.15, and in the 59 Geo.III, c.122, His Majesty's Colony ; not the colony of the people, not even the colony of the empire. It was maintained that this supposed property in the Crown was a fiction. Doubtless, in one sense, it was so. The right of the people of England to their property, does not in fact depend on any royal grant. and the principle that all lands are holden mediately or immediately of the Crown flows from the adoption of the feudal system merely ( Co.Lit.1 , and ibid .191, a , Mr Butler's note 6; Bac. Ab. Prerog . B.; Vin. Ab . same title K. A. 19). That principle, however, is universal in the law of England, and we can see no reason why it shall be said not to be equally in operation here. The Sovereign, by that law is (as it is termed) universal occupant . All property is supposed to have been, originally, in him. Though this be generally a fiction, it is one "adopted by the Constitution to answer the ends of government, for the good of the people." ( Bac. Ab. ubi supra , marginal note.) But, in a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction. If, in one sense, this lands be the patrimony of the nation, the Sovereign is the representative, and the executive authority of the nation, the "moral personality" (as Vattel calls him, Law of Nations, book 1, chap. 4),by whom the nation acts, and in whom for such purposes its power resides. Here is a property, depending for its support on no feudal notions or principle. But if the feudal system of tenures be, as we take it to be, part of the universal law of the parent state, on what shall it be said not to be law, in New South Wales? At the moment of its settlement the colonists brought the common law of England with them."
So conceiving the common law, his Honour understood a statutory reference to "the waste lands of the Crown" to mean "all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor of such lands". (8)
This judgement has formidable support. It was described as "notable" by Windeyer J. (9) who followed its doctrine in Randwick Corporation v. Rutledge (10):
" On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. The early Governors had express powers under their commissions to make grants of land. The principles of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning - all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne. The colonial Act, 6 Wm. IV No. 16 (1836), recited in its preamble that the Governors by their commissions under the Great Seal had authority "to grant and dispose of the waste lands" - the purpose of the Act being simply to validate grants which had been made in the names of the Governors instead of the name of the Sovereign. And when in 1847 a bold argument, which then had a political flavour, challenged the right of the Crown, that was to say of the Home Government, to dispose of land in the colony, it was a legal proposition firmly and finally disposed of by Sir Alfred Stephen C.J.: The Attorney-General v. Brown (11)."
The doctrine of exclusive Crown ownership of all land in the Australian colonies was again affirmed by Stephen J. in New South Wales v. The Commonwealth (" the Seas and Submerged Lands Case") (12):
" That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, propriety in nature, such as is described by Dr. Evatt in his unpublished work on the subject ... the prerogatives of the Crown were a part of the common law which the settlers brought with them on settlement ( R. v. Kidman , per Griffith C. J. (13)); `the prerogative of the Queen, when it has not been expressly limited by local law or stature, is as extensive in Her Majesty's colonial possessions as in Great Britain' (per Lord Watson speaking for their Lordships in Liquidators of Maritime Bank of Canada v. Receiver General (New Brunswick) (14)); cited by Isaacs J. in The Commonwealth v. New South Wales (15). On the other hand that ownership may be described as a consequence of the feudal principle which, on first settlement in Australia, was `extended to the lands overseas', so that all colonial land belonged `to the Crown until the Crown chose to grant it' (per Isaacs J. in Williams' Case (16)). In either event the consequence is the same, the lands of Australia became the property of the King of England ( Attorney-General v. Brown (17))."
Dawson J., following this line of authority in Mabo v. Queensland (18), said that "colonial lands which remained unalienated were owned by the British Crown".
The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen C. J. arrived in Attorney-General v. Brown be right, the interests of indigenous inhabitants in colonial land were extinguished so soon as British subjects settled in a colony, though the indigenous inhabitants neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest. According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. This Court must now determine whether, by the common law of this country, the rights and interests of the Meriam people of today are to be determined on the footing that their ancestors lost their traditional rights and interests in the land of the Murray Islands on 1 August 1879.
In discharging its duty to declare the common law of Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is the Australian law. The Privy Council itself held that the common law of this county might legitimately develop independently of English precedent (19). Increasingly since 1968 (20), the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation. Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country (21), it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own (22). The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.
In the present case, the defendant's chain of argument contains several links, each of which must be separately considered although, as we shall see, a common theme or thread runs through them. Some of these links are unchallenged. We start with proposition that the Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879 and that the laws of Queensland (including the common law) became the law of the Murray Islands on that day - or, if it be necessary to rely on the Colonial Boundaries Act 1895, is deemed to have become the law of the Murray Islands on that day. Next, by the common law, the Crown acquired a radical or ultimate title to the Murray Islands. The plaintiffs accept these propositions but challenge the final link in the chain, namely, that the Crown also acquired absolute beneficial ownership of the land in the Murray Islands when the Crown acquired sovereignty over them.
As the passages cited from the judgements in Attorney-General v. Brown and the Seas and Submerged Lands Case show, the proposition that, by the common law, the Sovereign acquired absolute beneficial ownership of all land in the Murray Islands rests on a number of bases. In the first place, it is said that the Crown is absolute owner because "there is no other proprietor". This basis denies that the indigenous inhabitants possessed a proprietary interest. The negative basis is then buttressed by three positive bases to show why it is necessary to attribute absolute beneficial ownership to the Crown. One basis is that, when English law was brought to Australia with and by British colonists, the common law to be applied in the colonies included the feudal doctrine of tenure. Just as the Crown acquired or is deemed to have acquired universal ownership of all land in England, so the Crown became the owner of all the land in the Australian colonies. We may call this the feudal basis. Another basis is that all land in a colony is "the patrimony of a nation" and, on this basis, the Crown acquired ownership of the patrimony on behalf of the nation. A third basis is the prerogative basis mentioned by Stephen J. in the Seas and Submerged Lands Case . In order to determine whether, on any or all of these bases, the Crown acquired beneficial ownership of the land in the Murray Islands when the Crown acquired sovereignty over them, we must first review the legal theories relating to the acquisition of sovereignty and the introduction of the common law.