‘From time immemorial’ writes Michael Mansell, ‘Aborigines were the undisputed owners and occupiers of the continent of Australia. Whites have become joint occupiers and disputed owners over the last 200 years’.5That history of dispute, of multiple and conflicting meanings and uses of land,6and its implications, has tended to be effaced in favour of a history of real estate in Australia: the transplantation of the feudal system of estates, the controlled subdivision of the country, changes in the form of transmission and recording of ownership, the recognition of new proprietary rights in homes, ideas and so on. This history culminates, according to one reading, in the High Court’s recognition of Native Title in Mabo v Queensland (No 2),7the outcome not of 200 years of disputed ownership but of a triumphant common law inherited from Britain.8
Two things follow if we take Mansell’s comment as a starting point for the study of property in Australia. First, land in Australia is a contested site, at a much more fundamental level than talk of estates and tenure would suggest. Indeed, observes Patrick Wolfe, to think otherwise is to miss the primary structural characteristic of Australia as a settler society. That is, ‘the primary object of Australia’s colonisation was the land’, rather than the surplus value that could be obtained from mixing native labour with it, as was the case, for example, in British India.9Yet even liberal accounts that recognise the injus-tice of the British invasion tend to presume that the imposition of a new legal regime in 1788 meant the immediate or rapid dispossession of Aborigines.
However, as Heather Goodall has argued, ‘the invasion did not see a rapid supplanting of one set of ideas with another. Rather, these differing systems of ideas about land came to operate simultaneously, in ignorance of each other or in open conflict, and sometimes in uneasy tension and fragile co-existence’.10 The nature of joint occupancy at any one time and place has depended upon a
__________________________________________________________________________________________________________________________________________
5 Mansell, M, ‘Australians and Aborigines and the Mabo Decision: Just Who Needs Whom the Most?’ (1993) 15 Sydney Law Review 168.
6 On the competing meanings of land and the pragmatics of the co-existence of those mean-ings – or ‘dual occupancy’ – see Goodall, H, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770 –1972, 1996, chs 1, 2, 5 and passim, Sydney: Allen & Unwin. The view that the peculiar conditions of the Australian colonies in the 1840s gave rise to certain sui generisinterests in land, created under statute, which attempted to recognise certain mutual rights of Aborigines and settlers has been vindicated by the High Court in The Wik Peoples v Queensland & Ors; Thayorre People v Queensland & Ors (1996) 71 ALJR 173.
7 (1992) 175 CLR 1.
8 Bartlett, R, ‘Mabo: Another Triumph for the Common Law’ (1993) 15Sydney Law Review 178.
9 Wolfe, P, ‘Nation and MiscegeNation: Discursive Continuity in the Post-MaboEra’ (1994) 36 Social Analysis 93. However, by the time of labour market shortages in the 1850s, Aborigines began to be seen by settlers as particularly reliable pastoral workers: Goodall, above n 6, ch 5.
10 Goodall, above n 6, 23.
host of contingencies: the time and place of white invasion, the international commodity market, the vagaries of labour supply, ideologies of philanthropy, Colonial Office policy, and so on.11 So land law cannot meaningfully be examined unless we proceed in a cross-cultural way – using ‘cross-cultural’
here as a rather anodyne signifier for a terrifying and complex history of imperial expropriation.
Secondly, if we take seriously the history of land use and occupation in Australia and identify a range of uses and a variety of forms of ownership and transmission, from Cape York to the Western Desert, from the Torres Strait to Arnhem Land,12what becomes of our term ‘property’? Can it accommodate these alternatives, the plurality of human relationships with the land, or is it itself a form of closure, a tool of cultural imperialism, a point suggested by Walter Neale:13
The idea of property in land is not one idea but a great many ideas. It is not about property but about a great many relationships of people to the surface of the earth and to other people. And it is not about parcels of land, but about the ways in which people exploit the earth.
He suggests that a focus on ‘property’ may exclude precisely those questions we should be most interested in. Citing Baden-Powell’s 1891 study of Indian land tenure, he comments:
‘[T]he productive power of the soil’ is ‘the real subject of ownership’ in India, and ‘the possibility of the land bearing a series of concurrent interests, depends on the fact that the several parties only determine how the produce is to be divided, and leave every other question in abeyance’. Obviously, one cannot leave the question of who owns the land ‘in abeyance’ if it is a real question. But, if it is a non-question to the members of that society, then ‘in abeyance’ is the only sensible place to leave the question.14
__________________________________________________________________________________________________________________________________________
11 Ibid, passim.
12 With regard even to the limited area of the Northern Territory and the operation of the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth), Graeme Neate comments ‘No single model of traditional land tenure exists throughout the Northern Territory, yet the same statutory definition is applied to all groups irrespective of how they see their links to their land’: Aboriginal Land Rights Law in the Northern Territory, 1989, Chipendale, NSW:
Alternative Publishing Co-operative. For a brief overview of different anthropological find-ings on forms of ownership, see Hiatt, LR, Arguments About Aborigines: Australia and the Evolution of Social Anthropology, 1996, ch 2, Melbourne: Cambridge University Press.
13 Neale, W, ‘Property in Land as Cultural Imperialism: or, Why Ethnocentric Ideas Won’t Work in India and Africa’ (1985) 19 (4) Journal of Economic Issues951.
14 Ibid, 953.
CURRICULUM SUGGESTION
The ‘What is property?’ question is an old chestnut of undergraduate property courses and tends to degenerate into a list of readings – Locke, Blackstone, Mill, etc – that represents nothing so much as the great onward march of liberal thought,15(with a few hiccups along the way provided by Karl Marx or C B Macpherson).16It turns out, in Stuart Andersen’s words, to be a history with no dates, no details, no politics, no class. To counter this, we can suggest a range of sources that address the ‘what is property?’
question as one of historical conflict and contestation between different groups:
Goodall, H, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770 –1972 (1996).
Land Bilong Islanders, Yarra Bank Films (50-minute documentary, 1990).
Mabo v Queensland (No 2)(1992).
Reynolds, H, The Law of the Land(1987).
Sharp, N, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case (1996).
Powell, JM, Mirrors of the New World: Images and Image-Makers in the Settlement Process(1978).
Thompson, EP, Customs in Common(1993).
In particular, Chapters 1– 3 of Heather Goodall’s Invasion to Embassygive concise, accessible accounts of the social significance of Australian land to various indigenous groups, the new colonial administration, squatters and convicts and the settler working class around the time of the British inva-sion and of the social conflict that flowed from these competing meanings.
Students could be allocated a role as either a member of the government administration, a squatter or a convict, and asked to read the short passages from Chapter 3 that are relevant to their particular social group. In small groups, students representing differing groups could be brought to share their social group’s perspective with other students to give play to the con-test of meanings over land. In particular they could jot down notes that address the following questions:
How would they describe the importance that land holds for them?
__________________________________________________________________________________________________________________________________________
15 Andersen, S, ‘Explaining Land Law’ (1982) 45 Modern Law Review346, 347.
16 Macpherson, CB, ‘Liberal Democracy and Property’ in Macpherson, CB (ed), Property:
Mainstream and Critical Positions, 1978, Toronto: University of Toronto Press.
What meaning would they give to settlement from their perspective?
What meaning would they give to the High Court’s decision in Mabofrom the same perspective?
(The exercise could provide the basis for a longer reflective essay on land and its meanings in Australian history.)
One group we left out of the above role-play is indigenous people, although Chapter 1 of Goodall’s book gives a good introduction to land and its diverse meanings for the original inhabitants of Australia. While we recom-mend that students of property law glean such information, we hesitate to recommend that white students ‘role-play’ at being Aborigines. (As for ask-ing Aboriginal students to ‘role-play’ beask-ing Aborigines, well, then it’s no longer a role-play but asking them to testify as experts, an unfair request:
see our discussion in Chapter One.) Our hesitation springs from a recogni-tion that the non-Aboriginal construcrecogni-tion of Aboriginality is still very much a product of a history that produces, in Ian Anderson’s words, ‘suburban garden kitsch, a three-foot black plaster miniature with a red lap-lap and spear, or perhaps inside the house as a cutesie receptacle for cigarette butts:
a tea-towel image of Aboriginality ... [R]ecognising that such stereotypes have a social history, I do want to argue that it is not possible to revise per-ceptions of Aboriginality without a reorientation of social interactions between Aboriginal and non-Aboriginal Australians’.17
__________________________________________________________________________________________________________________________________________
17 Anderson, I, ‘Black Suffering, White Wash’ (1993) 5 Arena Magazine23.
One way to incorporate the missing voice from the above role-play is to invite a guest speaker from an indigenous community who is happy to talk about Aboriginal struggles for land. Yet even here, Anderson’s perspective sounds a note of caution. Reflecting on engaging in question-and-answer sessions with unfamiliar people, he comments:18
Rather than sharing skills or knowledge, it is not uncommon for Koori participants to have to explain their Aboriginality. Statements such as
‘I don’t understand why you don’t acknowledge your white heritage?’
demand legitimation and self-justification from Koori participants, making them vulnerable to questions such as ‘What do Aborigines really want anyway?’. These questions result from the confrontation of non-Aboriginal people with an Aboriginality which is dissonant with their notions of Aboriginality. The passion which is often evident when non-Aboriginal Australians interrogate Aboriginal people about their identity emerges because the identity of non-Aboriginal Australia is also being questioned. What Koori participants usually want is for non-Aboriginal Australia to acknowledge its Koori heritage.