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A Genealogy of Native Title

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A Genealogy of Native Title THINKING JURISDICTIONALLY: A GENEALOGY OF NATIVE TITLE SHAUNNAGH DORSETT A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy © Shaunnagh Dorsett 2005 Abstract In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ‘native title’ had survived the acquisition of sovereignty over the Australian continent and is ‘recognised’ by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ‘recognition’. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ‘law of the land’. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ‘custom’. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation. Acknowledgements Foremost, I would like to thank my supervisors, Professor Garth Nettheim and Associate Professor Brendan Edgeworth. I am sure that without their guidance and experience the thesis process would have been far more arduous and the result the poorer. I have benefited enormously from their insight and critique. They have also both been personally very supportive throughout the process. I would also like to thank several of my colleagues and friends, without whom I would never have reached the end. As always, Lee Godden, for her encouragement and for sharing a mutual love of ‘unpacking’ concepts. Grania Sheehan, for her friendship, support, walks and coffees. And of course Shaun McVeigh, without whose willingness to act as a ‘sounding board’ and constant encouragement to think more critically and clearly this work would be much the lesser. Further, he has taught me much about the importance of ‘entrance’ and ‘exit’ points! Many other friends have been there throughout. I am sure they know who they are. I must, however, particularly thank the ‘PhD Support Group’ for dinners and encouragement in a particularly difficult period. Thanks are also due to the School of Law at Griffith University and the Faculty of Law at Victoria University of Wellington, both of whom gave me time and space in the last year in which to write. Without that space I would still be writing. To my parents, Jean and Robert Edmond, as usual their love and support has been unstinting. And to George, thank you for everything. Table of Contents Page Numbers ABSTRACT CERTIFICATE OF ORIGINALITY Acknowledgements............................................................................................................i Table of Contents..............................................................................................................ii 1. FRAMEWORK.................................................................................................1 The Problem ................................................................................................1 Jurisdiction.................................................................................................11 a. The Concept of Jurisdiction ..............................................................11 b. Territorial Jurisdiction ......................................................................18 c. Other Modalities of Jurisdiction: Status and Activity.......................27 Method.......................................................................................................32 Outline of Thesis .......................................................................................41 Note on Publication ...................................................................................46 2. THE JURISDICTION OF THE COMMON LAW ........................................47 Introduction ...............................................................................................47 The Jurisdictional Landscape of the Early Modern Period .......................52 a. The Origins of the Common Law .....................................................52 b. Non-common Law Jurisdictions.......................................................58 The Law of the Land .................................................................................68 a. The Common Law ‘Time out of Mind’ ............................................68 b. The Law of the Realm.......................................................................75 c. Rival Jurisdictions.............................................................................82 Conclusion .................................................................................................92 3. COMMON LAW JURISDICTION IN THE NEW WORLD .......................95 Introduction ...............................................................................................95 The Realm and the Dominions ................................................................105 a. The Royal Demesne outside the Realm ..........................................105 b. Calvin’s Case..................................................................................110 The English Common Law Courts and the New World: The Settled/Conquered Divide ................................................................114 a. The Distinction between Settled and Conquered Colonies.............117 b. Conquered Colonies and the Principle of Continuity .....................126 Maintaining Proper Jurisdiction ..............................................................133 a. Transitory Actions...........................................................................134 b. Justice in the King’s Dominions.....................................................141 Conclusion ...............................................................................................145 4. COMMON LAW JURISDICTION DENIED ..........................................................149 Introduction .............................................................................................149 Early Colonial Jurisprudence...................................................................155 a. R v. Ballard: Common Law Jurisdiction Denied............................158 b. R. v. Murrell, Re We-war: Common Law Jurisdiction Asserted ....165 c. The ‘Anomaly’ of R. v. Bonjon......................................................174 d. Continuing Uncertainty: R. v. Peter, R v. Jemmy ...........................181 Civilisation as a Jurisdictional Marker ....................................................188 Conclusion ...............................................................................................193 5. COMMON LAW JURISDICTION CONFIRMED .....................................197 Introduction .............................................................................................197 A Univocal Law: Mabo (No. 2) and after................................................201 Normative Systems and Jurisdictions......................................................218 a. Challenging Univocality: Intersecting laws....................................218 b. Yorta Yorta......................................................................................229 Sovereignty, Territory, Jurisdiction.........................................................238 a. Australia ..........................................................................................238 b. Colonial Examples..........................................................................245 Conclusion ...............................................................................................253 6. MAPPING TERRITORY .............................................................................257 Introduction .............................................................................................257 The Graticulation of Space ......................................................................261 Mapping Territory ...................................................................................266 a. Dividing the Globe..........................................................................267
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