Tag Archives: Terra Nullius

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.