Partly, then, the idea that Aboriginal links to land have little or no economic element – are an ‘economic dead-end’ – has served as a justification for land rights. That is, giving land to ‘traditional’ Aborigines so that they may preserve their spiritual links with it in no way unfairly advantages them economically over settler Australians because there is little or no economic or material advan-tage in it.50To the extent that Aborigines step outside of the ‘traditional’, they cease to be authentic and hence become less deserving of land rights. In this way, says Wolfe, the burden of history is shifted from the fact of expropriation to the character of the expropriated.51
Seen in this light, Mabo holds little promise: it is primarily about the legiti-mation of the existing system of landholding and title, and at the same time as it recognises Native Title it explicitly provides a formula for its extinguishment.
Wolfe observes of the Native Title Act 1993 that there is ‘nothing to suggest that the territorial beneficiaries of Mabo will not be so narrowly defined that, rather than removing terra nullius, the legislation will come to be seen as its fulfilment, as marking the point where terra nulliushad completed its historic task’.52 Rather than challenging the dominant system, it further limits and inhibits the flow of relationships between indigenous people and their land.
HISTORY, RUPTURE AND
was inappropriate to describe the legal nature of landholding in all Australian jurisdictions from the earliest days of settlement’.54
This is a point recognised by the judges in Mabo. Indeed, the glory of Mabo as a teaching tool is not solely its definition of Native Title as a discrete new interest that might affect public land, but that the judges set out to rethink the whole structure of Australian property law from the ground up. As such it can be used by the teacher not just to teach Native Title but as an introduction to the doctrine of estates, possessory title, and can also be revisited in a discussion of caveats.55With regard to the story told in Mabo about the doctrine of estates, Brendan Edgeworth argues that it presents a fundamental challenge (or ‘rup-ture’ in Nonie Sharp’s words) to the cultural basis of Australian property doctrine. The ruling in Mabo:56
... means that Australian land embraces a form of proprietary pluralism: rights over Australian land are determined by a multiplicity of legal orders of which the common law is but one. Moreover, this is strikingly at odds with English land law which has, with one minor exception [some lands held allodially in the Shetland and Orkney Islands], theoretically been a unitary system and as such has never, or at least not since shortly after the Norman Conquest, recognised such ‘non-feudal’ interests.
LEARNING ACTIVITY
Edgeworth’s article is an important contribution to unravelling some of the cultural politics behind Australian land law, yet he makes his case, as the preceding quote shows, in particularly bold terms. Here are some questions students can consider when assessing Edgeworth’s arguments:
Is the result of Mabo really to reduce the common law to merely one amongst a multiplicity of legal orders?
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54 Edgeworth, B, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review397, 398.
55 See, for example, Babie, P, ‘James Smith Indian Band v Saskatchewan (Master of Titles): Is Native Title Capable of Supporting a Torrens Caveat?’ (1995) 20 Melbourne University Law Review588. The case also provides a useful focal point for the discussion of judicial prece-dent in a first-year introduction to legal process: see Bird, G, The Process of Law in Australia:
Intercultural Perspectives, 2nd edn, 1993, ch 5, Sydney: Butterworths; Ingleby, R and Johnstone, R, ‘Judicial Decision-making’ in Hunter, R, Ingleby, R and Johnstone, R (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law, 1995, Sydney:
Allen & Unwin.
56 Edgeworth, above n 54, 418.
In what way could the common law be said to remain dominant as a result of Mabo?
Does the common law in fact provide the indispensable condition for other legal orders to operate?
Brennan J recognised that the assumption that the feudal doctrine of tenure applies to English colonies ‘did not have to be made’, but, making an argument from inertia, he added that ‘it is far too late in the day to contemplate an allodial or other system of land ownership’ (at 46). This final backdown by Brennan J highlights an issue central to any discussion of cross-cultural issues in Australian law. That is, says Edgeworth:57
Australian courts [have seen] themselves overwhelmingly as the bearers of a tradition forged elsewhere. In this way, Australian jurists defined their legal subjectivity and nationality as essentially English. The legal community – the interpretive community – they imagined themselves part of was a national one to be sure, but on an imperial and ancient rather than a local and recent scale ... In the legal context, a partial independence dating from the beginning of this century was joined in unequal partnership to a corpus of law formed in England over many centuries. In this way the tradition of the English common law exerted massive normative pressure on its present Australian descendant.
The desire to maintain the crimson thread of kinship with the old country surfaces again, in property law, in the history of the Torrens system. As Robinson has pointed out, the Torrens system was substantially influenced by
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57 Ibid, 424. The idea that Australian law and English law are coterminous was imprinted on the very design of the Law Library at Melbourne University in our undergraduate days, a fact pointed out by our colleague Murray Raff. The main hall held Australian and English reports, yet right next to the shelves of English reports was a sign saying ‘Overseas reports’
with an arrow pointing the other way into an anteroom containing other British Commonwealth and United States reports.
Berlin lawyer Dr Ulrich Hübbe and was modelled on the Hanseatic system then in place in Hamburg. Yet ‘Hübbe has received little recognition for the part he played’, and the contribution of European civil law models was effaced by Torrens’ own claims that the Merchant Shipping Act of 1854 provided the model, with an 1857 English report cited as a further influence.58Hübbe’s rela-tive anonymity is typical of a wider trend. Rod Home has written on the notable contributions of German intellectuals more generally to Australian life, and on the persistent non-recognition of that contribution following the groundswell of anti-German feeling in the wake of world wars.59
These attempts to claim a pristine, unambiguous genealogy for Australia’s common law system repress a fundamental anxiety about minority identities and cultural presence in Australian social institutions.60Teachers and students need to be aware, as Edward Said argues:61
... of how oddly hybrid historical and cultural experiences are, of how they partake of many contradictory experiences and domains, cross-national boundaries, defy the police action of simple dogma and loud patriotism. Far from being unitary or monolithic or autonomous things, cultures actually assume more ‘foreign’ elements, alterities, differences, than they consciously exclude.
Any attempt to shore up a monocultural Australia is itself problematic, given immigrant experience is formative of ‘Australian-ness’ and Australian culture has itself been built on the back of Aboriginal land, labour and knowledge, and relies still on ‘a silent, invisible, multicultural’ labouring class.62
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58 Robinson, S, Transfer of Land in Victoria, 1978, ch 1, Sydney: Law Book Company.
59 Home, R, Science as a German Export to 19th century Australia (1995) Sir Robert Menzies Centre for Australian Studies (University of London) Working Papers in Australian Studies No 104.
60 McCarthy, C, ‘Multicultural Policy Discourses on Racial Inequality in American Education’
in Ng, R, Staton, P and Scane, J, Anti-Racism, Feminism, and Critical Approaches to Education, 1995, pp 21, 37, Westport, Ct: Bergin & Garvey. The physical form of Australian cities – dominated by single, detached dwellings – also represents a cross-cultural encounter, being predicated on the reception and translation of the ‘bungalow’ which was introduced into the West from India at the end of the 1860s: King, A, ‘Excavating the Multicultural Suburb:
Hidden Histories of the Bungalow’ in Silverstone, R (ed), Visions of Suburbia, 1997, p 55, London: Routledge. King opens with a quote from Stuart Hall on ‘English identity’ which neatly sums up our point here: ‘What does anybody in the world know about an English person except that they can’t get through the day without a cup of tea? Where does it come from? Ceylon – Sri Lanka, India. There is no English history without that other history.’
61 Said, E, Culture and Imperialism, 1993, p 15, London: Chatto & Windus.
62 Jamrozik, A, Boland, C, Urquhart, R, Social Change and Cultural Transformation in Australia, 1995, p 127, Melbourne: Cambridge University Press.
CURRICULUM SUGGESTION
The foregoing, we hope, gives some points of reference for teachers wanting to extend their property course beyond traditional categories to examine critically the socio-legal dimensions of land regulation in Australia. We have tried to suggest as central:
● the diversity of relationships to place and hence the diversity of possible forms of ownership of land;
● that the appropriation of indigenous land is the basis of Australian settler society, while the meanings ascribed to that land have been contested for over 200 years;
● the fragile co-existence of different cultural groups and the complexity of cross-cultural encounters both ‘on the ground’ and in the courts.
While Mabo remains the central case and is likely to be taught in all Australian property law courses, there is a wealth of materials available that can inform a deeper and more critical evaluation of land regulation in Australian history and we have referred to some of these where appropriate.
Role-plays and small group discussions, case studies of specific forms of ownership, close readings of cross-cultural exchanges and reflective essays are all possible activities we have suggested which can help students recog-nise the diversity of voices and competing ideas relating to property in land.