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RARE SOOKS Ua. -- The University of Sydney Copyright in relation to this thesis'" Under the Copyright Act 1968 (several provision of which are referred to below), this thesis must be used only under the normal conditions of scholarly fair dealing for the purposes of research. criticism or review. In particular no results or conclusions should be extracted from it. nor should it be copied or closely paraphrased in whole or in part without the written consent of the author. Proper written acknowledgement should be made for any assistance obtained from this thesis. Under Section 35(2) of the Copyright Act 1968 'the author of a literary, dramatic. musical or artistic work is the owner of any copyright subsisting in the work'. By virtue of Section 32( I) copyright 'subsists in an original literary, dramatic, musical or artistic work that is unpublished' and of which the author was an Australian citizen.an Australian protected person or a person resident in Australia. The Act. by Section 36( I) provides: 'Subject to this Act, the copyright in a literary. dramatic, musical or artistic work is infringed by a person who,not being the owner of the copyright and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of. any act comprised in the copyright'. Section 31 (I )(a)(i) provides that copyright includes the exclusive right to 'reproduce the work in a material form'.Thus,copyright is infringed by a person who, not being the owner of the copyright, reproduces or authorises the reproduction of a work, or of more than a reasonable part of the work, in a material form, unless the reproduction is a 'fair dealing' with the work 'for the purpose of research or study' as further defined In Sections 40 and 41 of the Act. Section 51 (2) provides that 'Where a manuscript. or a copy, of a thesis or other similar literary work that has not been published is kept in a library of a university or other similar institution or in an archives. the copyright in the thesis or other work is not infringed by the making of a copy of the thesis or other work by or on behalf of the officer in charge of the library or archives if the copy is supplied to a person who satisfies an authorized officer of the library or archives that he requires the copy for the purpose of research or study'. ·'Thesis' includes 'treatise', dissertation' and other similar productions. The University of Sydney Copyright in relation to this thesis* Under the Copyright Act 1968 (several provision of which are referred to below). this thesis must be used only under the normal conditions of scholarly fair dealing for the purposes of research, criticism or review. In particular no results or conclusions should be extracted from it, nor should it be copied or closely paraphrased in whole or in part Without the written consent of the author: Proper written acknowledgement should be made for any assistance obtained from this thesis. Under Section 35(2) of the Copyright Act 1968 'the author of a literary, dramatic, musical or artistic work ;s the Owner of any COpyright subsisting in the work'. By virtue of Section 32( I) Copyright 'subsists in an original literary, dramatic, musical or artistic work that is unpublished' and of which the author Was an Australian citizen, an Australian protected person or a person resident in Australia. The Act, by Section 36( I) provides: 'Subject to this Act, the copyright in a literary, dramatic, mUsical or artistic work is infringed by a person who, not being the OWner of the Copyright and Without the licence of the OWner of the COpyright, does in Australia, or authorises the doing in Australia of, any act comprised in the Copyright'. Section 31 (I )(a)(i) provides that copyright includes the eXclusive right to 'reproduce the work in a material form'.Thus, Copyright is infringed by a person Who, not being the OWner of the Copyright, reproduces or authorises the reprodUCtion of a work, or of more than a reasonable parr of the work, in a material form, unless the reproduction is a 'fair dealing' With the work 'for the purpose of research or stUdy' as further defined in Sections 40 and 4 I of the Act. Section 51 (2) prOvides that 'Where a manuscript. or a copy, of a theSis or Other Similar literary work that has not been published is kept in a library of a university or other Similar institution Or in an archives, the Copyright in the thesis or other work is not infringed by the making of a copy of the thesis or other work by or on behalf of the officer in charge of the library or archives jf the copy is supplied to a person who satisfies an authorized officer of the library or archives that he requires the copy for the purpose of research or stUdy'. *'Thesis' includes 'treatise', dissertation' and other Similar productions. LAWSCAPE PARADIGM AND PLACE IN AUSTRALIAN PROPERTY LAw NICOLE GRAHAM A thesis submitted for the degree of Doctor of Philosophy of the F acuIty of Law, University of Sydney, on 7'"' March, 2003· ii Contents Acknowledgments v Abstract vi 1. INTRODUCTION: PARADIGM, PLACE, PROPERTY 1. DIRECTION: PARADIGM AND PLACE The Paradigm of Placelessness The Castle: concepts of property in Australian law and culture 2. LocATION: LITERATURE REvIEw AND MEiHODOLOGY Behavioural Sciences Geosciences Literary Studies and Art Theory Australian Cultural Studies Legal Theory and Jurisprudence Property Theory Environmental Science and Environmental Philosophy 3. MAP: 0Uri.INE OF DISSERTATION 2. THE PARADIGM OF MODERN PROPERTY LAW 35 1. iNIRODuCTION: THE SEPARATION OF PEoPLE AND PLACE 2. THE ETYMOLOGY OF PRoPERlY 3. NATURE / CULTURE Masters and Possessors of Nature The Eyes of the Manufacturing Period Cultivativa: The Nexus and Nascence of Nature/Culture A Common Origin, Abstract and Sacred 4. i'ERSONS / THiNGS Land as Puwer Land as Capital Land as Other Nature as Law and the Antilogy of Natural Rights 5. ORDERING PLACE: ENCLOSURE MRking Culture MRking Nature: LAndscape Property maJres Landscape Anti-Enclosure Disrourse Romanticism Resisfllnce in the Poetry of John Clare 6. CONCLUSION jjj 3. A COLONISING PARADIGM 96 1. /N1RoDUCTION: BEARERS OF AN ANCIENT PAST? 2 DEFINING AUSIRALIAN PROPERTY LAw AS LocAL The debate and the terms of definition Attorney-General v Brown AndrewBuck Brernlan Edgeworlh Va/erie Kerruish 3. DEFINING AUSIRALIAN PRoPERTY LAw AS ALIEN The Discourse of Terra Nullius The Idea of Cultural Progress The Idea of Waste Imprcroement Theory and the Cultioation of Australia Land Grants Convicts, Uzbour and the idea of property The alienability of property and the commercial value of land Sovereignty and Exclusion Squatling and Pastoralism 4. DEFINING AUSIRALIAN PROPERTY LAw AS MALADAPfED Recreating a Gentleman's Park Starvation Land Degrndation 5. CONO-USION 4. DEPHYSICALlSING PROPERTY IN THEORY 164 1. iNIRODUCTION 2. PERsoN - PERsoN PROPERTY Positive Property: Ieremy Bentham Utilitarian Property: 1.5. MiU Property Rights: W",ky Hohfrld Political Property: Kenne/h Vandeuelde and CB Macpherson 3. 1HING -1HING PROPERTY Consuming Property: Hannoh Arendt ProperIy-as-FeIish: KaTI Mar:t Property as Symbolic Exchange: lean Baudril/ard Critiquing the Person/Thing Paradigm: Alain POllage Instituting Hlusion: Kevin Gray 4. CONO-USION iv 5. DEPHYSICAlISING PROPERTY IN PRACTICE 198 1. INTRODUCTION 2. DIlPHYSICALISING PROPERlY IN LEGAL PRACTICE Victoria Park Rocing Yanner v Eaton Environmenflll Law and Private Property 3. DEPHYSICALISING PROPERlY IN CULTIJRALPRACTICE 'Battling the Umd' - The National farmers' federation Adaptive farming - Bob Purois Custodians - Paddy Rile 4, DEPHYSICALISING PROPERlY IN PEDAGOGIC PRACTICE B/ack-letter Pedagogy (i) Ral Properly Law is a Hard Subject (ii) Real Property is not about things (iii) The function of Native Title in the Course Critictd !.egol Education (i) The Problem with Property Law (ii) Haw Legol Education can change Property Law (iii) The function of Native Title in the Critictd Property Law Course Place in the Pedagogy of Properly Law (i) An Anthropocentric focus on Dephysictzlised Property (ii) The Death of Umd Law - teaching the meaninglessness of real property (iii) What Properly Courses da not teach about native title 5. CONCLUSION 6, CONCLUSION: PLACING PROPERTY 249 Appendix 1 256 Appendix 2 261 Appendix 3 263 Bibliography 265 v Acknowledgments These brief acknowledgments of the contributions of a number of people and institutions fit one page, but these contributions have made all the other pages possible. I was a recipient of an Australian Postgraduate Award, a Cooke, Cooke, Coughlan and Littlejohn Scholarship and a Ross Waite Parsons Award at various times during the research and writing of this dissertation. I have benefited enormously from three semesters of seminars for postgraduate research students convened by Professors Terry Carney and Hilary Astor at the Faculty of Law, University of Sydney. I would also like to acknowledge (then) Dean Jeremy Webber and (then) Associate Dean Isabel Karpin for their demonstrated commitment to postgraduate research in the Faculty. The Faculty's annual postgraduate conference and the postgraduate research room have encouraged and facilitated intellectual work and provided a solid sense of community. I would like to acknowledge the important support and friendship of my fellow postgraduates: Kirsten Anker, !an Benjarnin, Katherine Biber, Lici Inge and Kevin Tuffin, without whom the process would have been less interesting and far lonelier. Professor Desmond Manderson has been an enthusiastic supervisor whose rich knowledge of legal theory and philosophy, unfailingly detailed feedback, and personal engagement with the project have proved invaluable. I am very grateful for the substantial time and attention Des has dedicated to this thesis. Or Kathy Bowrey and Or Valerie Kerruish, first inspired, and have since sustained, my interest in property law.