ResearchOnline@JCU This file is part of the following reference: Lavery, Daniel (2015) The British acquisition of New Holland: a residuum of allodial sovereignties? PhD thesis, James Cook University. Access to this file is available from: http://researchonline.jcu.edu.au/41249/ The author has certified to JCU that they have made a reasonable effort to gain permission and acknowledge the owner of any third party copyright material included in this document. If you believe that this is not the case, please contact [email protected] and quote http://researchonline.jcu.edu.au/41249/ The British Acquisition of New Holland: a residuum of allodial sovereignties? Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy Daniel Lavery BA LLB (Hons) (UQ) LLM (Ottawa) 23June 2015 College of Business, Law and Governance James Cook University ACKNOWLEDGMENTS I wish to acknowledge the assistance and resources provided by the College of Business, Law and Governance at James Cook University which made this thesis possible. I wish also to thank the staff of the Mabo Library at the James Cook University Townsville campus, staff at the Supreme Court Library in Brisbane and those at Columbia University, New York. Special mention must be made of Whitney Bagnell who kindly permitted me access to all of Chancellor James Kent’s original editions of his Commentaries on American Law in the Special Collections in Law at Columbia, and Bronwyn McBurnie, the Special Collections librarian at JCU, who provided access to an original of Watkin Tench's 1789 A Narrative of the Expedition to Botany Bay with an Account of New South Wales, its Productions, Inhabitants, & to which is subjoined, A List of Civil and Military Establishments at Port Jackson (which was donated to JCU by Sir Russell Drysdale). Translation of a quote in French from James Brown Scott's article in The American Journal of International Law was assisted by Colin Sheehan and Catharine Burke. My thanks goes to staff in the former Law School who answered the many administrative issues which troubled me, Bronwyn Murray, Shirley Jones, Karen McCabe and Marianne Dunkerley. Professor Stephen Graw, Head of School, and Dr Tom Middleton were always willing to assist answer the more difficult issues. I wish to thank my sister, Trisha, who accommodated me when in Townsville, and Queensland Rail who so frequently got me to Townsville and back. My thanks also to Adella Edwards, in patiently meeting my changing demands for the mapping in Figures II-1, II-2 and II-3. The map reproduced in Figure IV-1 is with the kind permission of the National Native Title Tribunal. Figure IV-2 is used with the kind permission of Dr Marc Gumbert. John Mahony provided editorial assistance of a draft thesis in mid-2014. Finally, a debt of gratitude is owed to Paul Havemann and Rosita Henry, my co- supervisors/advisors, during the course of the thesis. Without their assistance and patience this thesis would not have been possible. ii ABSTRACT The Mabo (No 2) decision in 1992 opened for re-examination the fundamental principles underpinning the colonial foundations of Australia. The High Court of Australia, reversing 200 years of legal understanding, recognised that an allodial native title sourced in the laws and customs of Indigenous societies had survived the acquisition of sovereignty by the British over New Holland in the late 18th and early 19th centuries. The High Court stated that the Australian common law could not continue to deny these pre-existing Indigenous proprietary interests based on the application of an enlarged terra nullius notion to the already-inhabited New Holland. It was found by six members of the Court to be ahistorical, discriminatory and unjust. This enlarged terra nullius notion held that Indigenous peoples did not legally occupy their traditional lands, and so their territories were ownerless under the classical mode of Occupation. Incongruously, whilst this engorged terra nullius notion was discarded from Australian real property law, it was maintained as the basis upon which the British, under international law, had claimed sovereignty over New Holland. Under this mode, the British acquired an original, plenipotent and indivisible sovereignty that swept across the three million square kilometres of claimed territory of New South Wales in an instant in 1788, and across the balance of New Holland in 1824 and 1829. The New Holland territories, according to the High Court, were treated as sovereign-less, the Indigenous societies were 'backward', so low on a scale of civilisation that they were not possessed of anything resembling 'sovereignty'. They were 'bare life', human yet less so, and, in the language of Agamden, Homo sacer. Thus, although condemned in both Australian and international law, this ignominious enlarged terra nullius notion survives still in the Imperial constitutional law as the foundation stone of the modern Australian nation state. Doctrinally, this orthodox theory could not easily be presently defended on this basis. Realising the pending interpretative crisis, commentators have argued that rather than positing New Holland as occupied under this egregious terra nullius notion, it should be regarded as a conquered territory. Under the extant international law of that time, Conquest would provide not only an unassailable and defensible title but also certainty as to the consequences of the British acquisition. This argument has found little acceptance in Imperial or Australian law, or generally. The British, on this view, would not be posited as peaceful settlers, but as invaders. Prescription, too, was posited but with little enthusiasm or traction. This doctrinal debate was proving infertile until the Yorta Yorta decision in 2002. There the High Court stressed that the Indigenous laws and customs that house these allodial titles must be 'traditional' to be recognised under the Native Title Act 1993. The Indigenous laws and customs must be traceable and in time to an epoch before the assertions of British sovereignty. Leaning heavily on positivist writings, the iii judgment theorised that the meeting of the Indigenous societies with that of the British was 'an intersection of norms'. Accordingly, the immigrant English law intersected with, and recognised, the manifold normative systems of the Indigenous peoples of New Holland. It is these ancient – yet necessarily presently vital – allodial normative systems, which generate the laws and customs that source these native titles which are now being recognised in the Australian common law. Thus, on this interpretation, each determination of native title in the Australian courts in the post-Mabo (No 2) era acknowledges not merely a native title but an extant Indigenous normative system wherein traditional laws and customs are presently alive. These normative entities survived the British assertions of sovereignty over mainland New Holland in 1788, 1824 and 1829 and survive still. The consequences of these determinations of native title – presently numbered over 200 – are profound for the Australian legal system. These normative societies and their laws are sourced outside of the present formal Australian constitutional framework and therefore represent a source of law running parallel with the Crown in right of Australia and the States and Territories. Each set of traditional law and customs emanate from a grundnorm other than that of the non-allodial Australian legal grundnorm. Herein lies a residuum of allodial sovereignties uncaptured by the fundamental Australian legal framework. This thesis examines the mode of acquisition known as Occupation, that a vacant territory can be discovered and occupied, and thus acquired, from its classical origins to its expressions in the incipient international law, the Imperial law and, latterly, the Australian common law, to examine its provenance, justifications and present legitimacy. The focus becomes the Imperial constitutional law, including opinions and advice from the Colonial Office, and colonial and post-federation Australian cases. The conclusion reached is that the orthodox theory of the acquisition of sovereignty over New Holland is wholly compromised and cannot be sustained in the native title era. Every determination of native title under Australian law formally recognises an Indigenous society whose native title is sourced in its own extant laws and customs, which Law can be traced to the pre-British epoch. Indigenous Law is thus recognised in Australian law as both present in New Holland prior to the assertions of British sovereignty, and importantly, that same 'Law' is still vital and dynamic in contemporary Australia. Ancient, pre-existing normative entities traceable to the New Holland era are thus re-emerging and being recognised as such in the jural landscape of post-native title Australia, and presenting a mosaic of societies. The challenge for Australian jurisprudence is to abandon the orthodox theory which holds that the Indigenous societies of New Holland were so low on the scale of civilisation so as not to possess any 'sovereignty', and to incorporate the quiescent residuum of these Indigenous sovereignties into a 21st century jurisprudential framework. This unmaintainable orthodox legal theory of territorial sovereignty needs be abandoned for a coherent, historically congruent theory. iv PREFACE A caveat needs to be issued at the outset. It must be understood that we are approaching this topic from the perspective of a non-Indigenous lawyer using Anglo-Australian common law legal concepts. Mindful of Chief Dan George's warning that to write from the other's perspective takes an 'especial act of the imagination', this writer cannot, and does not purport to, give the Indigenous perspective. Parts of Chapter V have previously been published as 'A Greater Sense of Tradition: The Implications of the Normative System Principles in Yorta Yorta for Native Title Determination Applications' (2003) 10 (4) E Law – Murdoch University Electronic Journal of Law. Citation follows the Australian Guide to Legal Citation (3rd edition, 2010), and in the citation of non-Australian or cases on appeal the court is identified.