Tag Archives: Terra Nullius

American Pentimento by Patricia Seed


One of the great frustrations of my life is trying to convince people the history of land use planning is a topic of great interest. I’m told I make it sound wilfully boring; that no one wants to hear about Robert Hooke’s regulatory reforms or the origins of the Plumbing Code. By contrast, it’s comparatively easy to talk about current politics, and the more contemporary cycles of planning law, property development, electoral cycles, economic forecasts and social in/justice. These can be discussed using recent terms and ideas that are readily accessible and have the ability to rouse passions based on immediate personal experience. Good examples include Sydney’s lock out laws, Westconnex or the sale of public housing.

The problem with this penchant for the contemporary is that it tends to present us with both a contemporary problem and a contemporary way of thinking about it. Consider this in light of Audre Lorde’s line “the master’s tools will not dismantle the master’s house.” This suggests that if the only context and language you have to critique contemporary land use is the context and language that made the problem, you will struggle to find a viable solution. Instead, you’ll end up producing an opposition, rather than an alternative.

In this respect, I’ve been considering Buckminster Fuller’s belief that “You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.” This is easier said than done if the only frame of reference you have is the existing reality.

Talking about this with Tess Lea a few weeks back, she lent me Patricia Seed’s book American Pentimento, which is a comparison of the legal frameworks involved in British and Spanish conquest of the Americas; exactly what I’m assured is inherently dull.

Mostly what Seed looks at is the different legislative attitudes taken to land use during the early phases of European empire. She draws a distinction; the Spanish generally declared land in the name of the Crown, and tended to leave conquered people where they were on the provision they pay homage to the Crown. They tended to legislate against European squatters or individual land owners as this was seen as disrupting the control of wealth – particularly mineral wealth – by the Crown. Whilst this legitimised through the ideology of a benevolent monarchy, it was basically a way of preventing the mercantile class from seizing too much power. Had the various merchants active in the Americas been able to ‘buy’ or seize land in a way recognised by Spanish law, they would have had a legal way to gain the kind of wealth which made them a threat to the monarchy.

The English had the exact opposite approach, having beheaded Charles I for asserting a very similar line of thought. Their argument was that private property ownership was a good thing because it diffused power, and that this diffused power over land ownership encouraged people to make their land as productive as possible, adding both to their own wealth and the collective wealth of the Empire.

This is still the logic involved in much urban renewal and public housing selloffs today; the logic runs that social housing adds no economically productive value to the public coffers, major development generates jobs and growth, and from that jobs and growth we can build more social houses somewhere else. It’s a logic that only works if you think of things in a sort of credit/debit logic, in which the negative social impacts of dislocation can be offset by using development contributions to build social housing in less economically productive areas – such as outer suburbs.

Which is exactly how the English were thinking of it after the death of Charles I. The value of land was based on its economic productivity, not on moral or historical possession. To accept the latter option was to legitimise monarchical rule, which is what the English were trying to avoid. In American Pentimento, Seed traces the formation of this logic into property law.  She starts with the concept of ‘Wasteland’ – a term adopted shortly after the Norman conquest of Britain in 1066 “signifying uninhabited or relatively under inhabited ground.”  ‘Wasteland’ gave people of a particular class the legal right to fence and farm land that no one else was ostensibly using. It sat in counterpoint to the concept of the ‘Commons,’ which was land for everyone to use. At this point ‘waste’ didn’t mean rubbish. Instead, the term was used to designated land which could be ‘improved’, usually by the fencing of semi-wild animals to make them easier to hunt and domesticate.

Seed tracks the change through a couple of key texts. The first is Sir Thomas More’s Utopia (1516), which drew from Amerigo Vespucci’s (from whom we draw the word ‘America’) writings about his exploration of Brazil. In More’s book his ‘Utopians’ find a country populated by “a people which does not use its soil but keeps it idle and waste.’ In More’s logic, those who seek to use the land have the moral right to take it and, in doing so, make it productive for the public good, thus allowing them to build a utopia.

This connects through to Seed’s second source, Justice William Blackstone’s Commentaries on the Laws of England, a four volume set of writings on English common law. Blackstone is best known as the guy who set up the idea of ‘terra nullius’. There’s an oft site section in the introduction where he writes:

For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.

Or in effect, if an Englishman arrives in a country and can’t see people planting things on it, tilling the soil, or enclosing the fields, English laws apply. This ties into book two of the Commentaries, which is dedicated entirely to the concept of ownership, particularly property ownership:

Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it: for then it becomes, naturally speaking, public juris once more, and is liable to be again appropriated by the next occupant.

Thus, within the Common Law rule books carried by colonial administrators, it was a law universally acknowledged, that land that isn’t being used can be claimed by anyone willing to use it.

As far as I can tell, these legal definitions were used in Britain to legitimise the Enclosure Movement, in which traditional Common land was declared ‘waste’ and could, by Act of Parliament, be fenced off and placed in private ownership. As Seed points out, when British policy and law makers moved into newly conquered territory they took Blackstone’s Commentaries with them as the definitive interpretation of English common law and began following the same logic. She writes:

An eminent legal scholar, William Blackstone, in 1765 transformed the traditional English understanding of waste into a colonial legal fiction that such land was unowned. He called this fiction terra nullius (literally, land of no one, land belonging to no one). However, Blackstone falsely implied that this cultural concept had a latin origin. 

Blackstone actually took a late Roman law regarding hunting animals, which were not viewed as private property, and used it as a ‘source’ to justify the English concept that relative underpopulation justified seizing land. Terra nullius exaggerated the English proclivity to interpret unbounded, non-plowed and sparsely settled areas as ‘waste’ or ‘common’ land by proclaiming that such land belonged to no one. 

She notes the appearance of this sort of logic in things like the South Australian Constitution Act of 1834 and India’s Waste Lands Rule of 1836. You can see the same logic – with the use of the term ‘wasteland’ in Bourke’s Proclamation, which I wrote about here.

And you can also see it in the 1830 formation of the Australian Agricultural Company “for the ‘cultivation and improvement of Waste Lands in the Colony of New South Wales.’

This latter example has its direct antecedents today. When we look at State owned urban development, public private partnerships and major redevelopment of city areas, they operate on exactly the same logic, and gain their moral legitimacy in the same way: that right to ownership is connected to productivity, and that non-productive use legitimises dispossession. It’s a logic that, paradoxically, undermines traditional notions of Common lands by asserting common benefit is generated by private ownership. Ostensibly, we all gain from major development through things like development contributions, brought about by the wealth created by individual investors.

When we consider the negative impact of this kind of ‘value add’ on Aboriginal Australia we begin to see the faults quite quickly, but this isn’t unique to the Australian situation. As Seed points out, it predates the British incursion into Australia, hinging on a legal interpretation that ties value to returns on private investment in land. But, as she also points out, there is still a pentimento evident; a term she borrows from the art world, in which the image of an earlier picture remains beneath what’s currently visible.  Her point, as I read it, isn’t that we can return to those earlier images of a pre-colonial or pre-capital world, but that we can still see, and can still draw from, radically different systems of valuing, and governing, land use – assuming we can see through the layers we’ve painted on top of them.


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.




A Brief History of Terrible Planning Law: The Batman Treaty

Every so often someone will bail me up at the pub and ask why their miniscule little gallery gets weekly visits from every bureaucrat with a badge, yet its possible to get approval to build terrible apartment blocks everywhere/mine national forests/demolish public housing etc etc.

The short answer is that Australian planning and building laws don’t scale much based on risk or size. The process you go through to set up a gallery in an old warehouse is virtually the same as if you were tearing the warehouse down to put in a new apartment complex. This occurs because the systems are structured to produce a series of controls, mostly cost barriers, aimed at managing the activities of the kind of people who can afford to build new buildings.

When applied to less heavily financed activity, those systems are usually insurmountable. For the most part this is posed as a public health issue but if you trudge back through Australia’s planning history, the logic of the system has another origin.

From the very first moment of Australian planning law, our system was geared towards controlling large enterprise and, in doing so, pricing out those interests with less capital.

The key moment of this is Governor Bourke’s 1835 proclamation regarding Melbourne, arguably the single most important document in Australian history as it simultaneously enforces terra nullius and sets out who could legally use the new nation under what conditions.

You can read the whole thing here, but the key parts are:

I, the Governor, in virtue and in exercise of the power and authority in me vested do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, […] is void and of no effect against the rights of the Crown; and that all persons who shall be found in possession of any such Lands […] will be considered as trespassers…

A few months earlier, John Batman had sailed from Tasmania to Port Phillip, where he successfully negotiated a ‘treaty’ with Wurundjeri leaders of the Kulin nation. They granted him two thousand square kilometres of their land in return for an annual payment of knives, jackets, rugs and flour. Today, we tend to view this as trickery on his part. At the same time, the Wurundjeri were aware of the threat they faced and negotiated a treaty which did protect them from being entirely removed from their land, or subjected to active violence.

Regardless, Bourke’s proclamation effectively said the treaty was worthless, and specified Batman would need to apply to the Crown (and pay a licensing fee) for approval to use the land.

Batman’s treaty was a test case. At that point, there was no legal assurance that the Crown’s powers extended beyond the boundaries of New South Wales and Tasmania. Batman arrived in Victoria with the aim of going into an area devoid of British law and seeing what he could get away with.

His ‘treaty’ was intended to prevent the Crown taking action against him by appealing to the sentiments of both Bourke and his boss, Lord Glenelg, who was in charge of British colonies. Both men had seen conflicts with indigenous people internationally, both knew it was morally fraught and economically costly, and were willing to consider less forceful processes.

When Batman arrived in Victoria, it was obvious to Bourke that he had no real capacity to stop him. Batman stood to produce significant economic benefit through exporting wool back to Britain, and sending out the troops to stop him would have been both costly, ineffective and politically disastrous. Accordingly, Batman did two things;

(1)Declared that the Crown owned all of Australia, not just Tasmania and the land around Sydney.

(2)Declared that anyone who wanted to use Australia had to pay the Crown a licensing fee, those who didn’t were using the land illegally, and they would be prosecuted. This included the people who’d lived on said land for centuries.

The end result of this was the biggest and fasted land rush the Empire had ever seen. The Wurundjeri found their treaty with Batman discarded, their land swamped with pastoralists, their food sources wiped out and any request for recompense treated like trespass.

The legal framing here is important. By over riding the treaty, Bourke made Wurundjeri resistance a matter of criminal trespass, rather than a military conflict. Had the treaty survived, the resultant conflict would have been a war rather than a criminal issue, and their prior occupation of the land something that could be upheld under British law.

This is because its impossible to either sign a contract for property, or militarily invade a country, without implicitly recognising a certain element of land rights. In a similar situation, the Xhosa people in the Cape Colonies had re-claimed their land a few years earlier.

Effectively what Bourke realised is that the commercial interests impacting upon the Australian landmass were too large to stop, but could be harnessed to profit the crown and colonise Australia with limited governmental investment.

Thus, instead of sending out the military to invade the Kulin nation, the Wurundjeri were mostly shot, or forced into starvation, by squatters exercising their right to prevent trespassers.

It’s easy to see this as a historical incident within colonisation; a sort of regrettable encounter with a pre-modern Terra Australis. Yet this is still how land is accessed in Australia. Unclaimed or unused land is zoned, usually through a state planning act under powers devolved by the Crown, absorbed within something like a Local Environmental Plan, and the right to use it can be obtained by seeking Development Approval. The costs associated with applying for approval are now spread out more broadly, but they still work to control a particular level of economic activity, whilst pricing others off the land. Bourke’s proclamation is the extreme end of this system, but it isn’t an anomaly.

Cultural Political Economy of Small Cities, edited by Bas van Heur and Anne Lorentzen

I’ve become a big fan of Bas van Heur lately. Asides from heading Cosmopolis, he writes a lot about small and regional cities. He’s got a great chapter on “Small Cities and the Sociospatial Specificity of Economic Development” in a book he’s co-edited with Anne Lorentzen called Cultural Political Economy of Small Cities (2011).

For the most part van Heur looks at the ‘Creative City’ agenda set by people like Richard Florida, Charles Landry and Jan Gehl. The basic assumption behind this agenda is that indicators of a successful city can be taken from major metropoles (London, New York or, in Gehl’s case, Copenhagen) and applied to much smaller cities.

The problem I’ve always had with these people is that their logic invariably runs like this :

(1) Cities with a strong economy have lots of creative people.
(2) Creative people like going to small bars.
(3) Therefore, if your city has small bars it will have a strong economy.

Rhetorically, this approach is popular because it looks at a successful city, hones in on one particular phenomena (i.e; small bars), and then de-contextualises that one thing so as to present it as the cause of economic and demographic success.

That allows policy makers to declare city revival as a matter of one thing, which means they can measure and produce strategy around that one thing, and avoid complexity or ambiguity.

As van Heur points out, this approach rarely works.

He’s quoted at length in a report commissioned by the EU, which you can download here. They label this phenomenon of adopting decontextualised policy frameworks ‘Fast Policy Transfer’, warning:

Fast policy transfer is extremely dangerous because small cities all over the world tend to follow “metropolitan imaginaries” (Van Heur, 2010a) frequently with inappropriate results.

Van Heur proposes that one of the ways to overcome this sort of simplistic approach is to broaden the research frameworks underpinning policy to include measurements of:
1. Place
2. Territoriality
3. Scale
4. Networks

I started applying this logic to Australian cultural and planning policy. And I almost immediately got stuck on ‘place’ and ‘territoriality’.
I ended up wading into Justice Blackburn’s ruling in the 1971 Milirrpum v Nabalco Pty Ltd case, which hinged on the issue of whether the Federal government had the right to sell mining rights on Yolngu land. Blackburn upheld an English common law definition allowing the British to claim ownership over ‘desert and uncultivated lands’. The clincher was a definition that this included ‘uncivilized inhabitants in a primitive state of society’.

The terms ‘uncivilised’ and ‘primitive’ are pretty clearly subject to perception based assessment. They work the same way terms like ‘creativity’ or ‘vibrancy’ do; they have no clear definition and allow policy makers to read in whatever they want. Usually, they’ll look for pre-existing models, so as to reduce the ambiguity and provide clearer pathways.

The ‘creative city’ agenda tends to focus on laneways, small bars and public realm campaigns. The use of European indicators to detect legitimate culture allowed policy makers to ignore a pre-colonial legal framework, systems of land ownership and non-British occupation.
It’s weird, because Governor Phillip and his lieutenant, Judge Advocate David Collins, had already confirmed the existence of these non-British frameworks within the first year of colonisation. It’s like an initial moment of perception was wiped out as the discourse of British law gained strength.
The Mabo ruling ultimately overturned Blackburn’s judgement. I suppose Terra Nullius is the extreme end of things, but what I find interesting about it is the suggestion that Australian policy follows a discursive structure so fundamentally warped it can get things so very wrong for so very long.