Tag Archives: Land Rights

W.E.H Stanner’s ‘The Yirrkala Land Case: A Dress Rehearsal’: Common Law, Terra Nullius and the Gove Land Rights Case

Born in 1905, William Stanner was an anthropologist who spent his career critiquing what he called “the great Australian silence” around Aboriginal culture and land rights. He’s worth reading as one of the first white people who saw the British presence in Australia as invasive rather than civilizing, and this anthology includes most of his major essays.

Of particular interest is ‘The Yirrkala Land Case: A Dress Rehearsal’, Stanner’s 1970 essay on the Yolngu people’s attempt to prevent the Federal Government leasing their land to the Nabalco mining company. Better known as the Gove Land Rights Case, it’s gone down in history as the first major land rights case in Australia, setting up precedent for Mabo.

Stanner was advising the Yolngu as they attempted to negotiate the British legal system. Notably he was writing before Justice Blackburn found against them, and the essay is oddly hopeful. Beyond its impact on the Yolngu and Aboriginal land rights, the case says a lot about our legal system, and how it treats power and land use.

Traditionally, when the British invaded a country there were protocols around the absorption of pre-invasion property ownership into their law. Colin Bourke and Helen Cox cover this in their essay ‘Two Laws: One Land”:

The European legal view at the time [in the 1800s] was that the Crown had absolute title to all land. Under the doctrine colonising powers such as England could apply their own law to a land which they peacefully occupied, if the land was uninhabited, or was occupied by a people without settled laws or customs. In conquered or ceded (surrendered) countries the pre-existing laws of that country were applied until they were displaced or altered by the new sovereign.

In other words, if the British arrived in a place with no existing system of law, they could do whatever they wanted. But if a system of law already existed, they had to undertake a formal process of absorbing it into their systems, via something like a treaty. If they didn’t, it became possible for the invaded population to reclaim their land through British common law precedents around property ownership.

This (sort of) happened in the Cape Colony in 1835, with the Xhosa having their land returned by the colonial minister, Lord Glenelg, after he deemed its invasion illegitimate.

Why didn’t this principle apply to Yolngu land, given northern Australia wasn’t occupied by the Crown until the 1850s? Well, it (sort of) did.

When South Australia was set up in 1836, the Letters Patent (the legal documents founding the colony) reflected the Cape Colony experience and included a clause recognising Aboriginal land rights. When South Australia took over administration of the Northern Territory, this clause was part of the deal.

Stanner recalls this fact coming up in the Gove case, which “caused Justice Blackburn to look sharply over his glasses.” The reason the Letters Patent didn’t ultimately protect pre-British land rights appears to have been because no one got around to telling the Pre-British owners about it.

This was the case made by the Plaintiffs, led by Edward Woodward QC. As Stanner writes:

There was a presumption at common law that the native rights continued. This presumption could only be extinguished by legislation or similar action of a formal kind. No such extinguishment had taken place.

As Woodward argued, just because the Yolngu had never expressly claimed their common law right to their land, that didn’t mean it didn’t exist. There was, after all, no evidence they’d ceded ownership; no treaty, no receipt of sale, no transfer of deeds, or any of the other things you’d expect in a transfer of land.

There’s a corresponding question as to why the Yolngu hadn’t asserted their ownership prior to the Nabalco case in 1970. But why would they? Stanner recalls one of them asking him, incredulously, “does [the] Government really think we do not own the land?” They’d been there long before the British, and their own legal systems simply assumed their sovereignty.

Eventually, it was these formalities that led to Blackburn deciding against the Yolngu. There was nothing clearly stating who owned the land, or at least not in terms recognisable to British law. Given the lack of documentation, it was assumed (as per common law) that the Crown ultimately owned the Gove Peninsula and could lease it to whomever they wanted.

However, Blackburn did recognise the presence of a non-British system of laws, finding that:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws and not of men’, it is shown in the evidence before me.

Asides from its relevance to Aboriginal Australia, the Gove case points at two things fundamental in how we govern land.

Firstly, the extreme ambiguity of it. As Stanner points out, the Nabalco case was unusual in that it was the first serious review of the legality of the Crown’s ownership of Australia. Two hundred years after British colonisation, it still wasn’t clear who actually ‘owned’ places like the Gove Peninsula.

Secondly, this ambiguity sided with power with and precedent. As Stanner concludes, Australia’s occupation had become a (sort of) legal habit. In the absence of any formal treaties or deeds, Crown ownership was assumed. As Stanner writes of the Crown’s Defence:

For good or ill we did not conquer Australia. We occupied it. The native system was displaced. ‘And that’, the Crown said in a memorable phrase, ‘was that.’

Of course, that wasn’t that. At a purely legal level, Mabo extended upon this judgement to recognise pre-British ownership, albeit with limited results.

I’m still getting my head around why that judgement didn’t do for Australia’s innumerable pre-British nations what it did for the Xhosa, given the Gove case tends to validate the same common law principles. But, as Stanner concludes:

It is bad lack for the Aborigines that their problems arise so acutely just as the mineral boom is reaching the phase of mania. […] The draconian quality of the attempt to snuff out all talk of Aboriginal interests in land is related to this excited background…

That was written in 1970 yet remains alarmingly current.

Incidentally, there’s a good article on Gove, common law and land rights here and there’s a quick overview of the case itself on Wikipedia here.