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.
enterprise. Yet European notions of property rights also depend on two quite fundamental, albeit taken-for-granted, technologies: writing and cadastral mapping.
In tribal societies, a number of people may have different claims on the same parcel of land according to the differing uses they make of it or reflecting family relationships, and the authority of such claims depends on local knowl-edge and local memory. With registration of title, however, ‘these complex arrangements often have to be summed up in a single entry in the register that attempts to allocate “ownership” (that is, the total nexus of rights) to one indi-vidual rather than specifying all the claims of kith and kin ... We end up with a list, a table, that places a designated area of land against the name of a single person’.65
While estate maps existed in medieval times (although a written description of the estate was more common), the rediscovery of perspectivism in the 15th century led to the development of the profession of surveying. Perspectivism meant imagining how space would look to a human eye looking at it from the outside.66Prior to this, medieval artists rendered what they saw before their eyes, what it felt like to walk about and experience a place from many different sides.67Methods of measurement were approximate and often peculiar to a local area, or depended on a ‘task-time’ unit.68Nicholas Blomley observes that such approximate measures were not a problem in the Middle Ages, ‘when dis-putes were settled locally, when there was local agreement as to the standard, and when the alienation of the land was unusual’.69 However, a host of changes beginning in the 16th century – land enclosures, transfer of land following confiscation of the monasteries, an increase in speculative investment in land by city merchants – led increasingly to the free alienation of land and the settlement of disputes over boundaries and ownership outside the community. Accurate land surveying was closely connected to a changing idea of property:70
Increasingly, property was no longer a relation between superiors and mesne lords, but a thing, to be rationally measured, commodified, and possessed, both legally and conceptually ...
[T]he feudal conception of real property was of a distinct form, such that land-holding was seen in the context of a complex system of rights and obligations, quasi-military in nature ... Tenure defined one’s ‘place’, both in terms of the great pyramid of feudal society, and in terms of a localised nexus of obligations and duties.
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65 Goody, J, The Logic of Writing and the Organisation of Society, 1986, p 155, Cambridge:
Cambridge University Press.
66 Harvey, D, The Condition of Postmodernity, 1989, p 246, Oxford: Blackwell.
67 Edgerton, S, The Renaissance Rediscovery of Linear Perspective, 1975, New York: Basic Books.
68 Blomley, N, Law Space and the Geographies of Power, 1994, pp 94–95, New York: Guildford Press.
69 Ibid, 95.
70 Ibid, 97, 98–99, citing Tigar, M and Levy, M, Law and the Rise of Capitalism,1977, New York:
Monthly Review Press.
This, of course, is a long way from a modern conception of property: ‘The institution of property in the sense it came to have in bourgeois law posits a person (persona) and a thing (res), joined by the legal norm called property or ownership ... One can no longer speak of a duty to use property or behave towards others in a certain way’ ... We move, essentially, from a conception of property as a place-bound relation between at least two people – a lord and a tenant – to an abstract conception of persona and res; seemingly unmediated by social and spatial context.
Taking the example of India mentioned by Neale in the section ‘Real Estate Versus Property’, above, the system of rights to the produce of land was replaced by absolute proprietary rights of ownership on the British model, and this was largely achieved through Indian Revenue surveys. This holds true for most if not all British colonies: ‘until the surveyor had traversed the land with chain and compass, it could not be converted into private property. A cadastral survey and, from the middle of the 17th century onward, a cadastral survey recorded on a map were the legal means of achieving the status and security of a landed proprietor’.71In the context of a settler society like Australia the sur-vey did two things. First, it imposed ‘a new economic and spatial order on “new territory”, either erasing the precapitalist indigenous settlement or confining it to particular areas’.72Secondly, as indicated, the cadastral map established a settler’s security of title over land granted, purchased or claimed, as against fel-low settlers. Again, this was especially so in Australia where ‘the Torrens system of land registration ... established a precise and pivotal role for cadastral maps in the land registration process as it used property maps rather than writ-ten deeds as the evidence of land title’.73
This system of landholding, dependent on written record and survey as evidence of title, was used to ‘reproduce overseas the English capitalist society based on landlord and wage laborer’.74This was also aided by specific pricing policies and insisting that land be surveyed before it was released onto the mar-ket, aspects essential to EG Wakefield’s vision of land use in Australia:75
Land in small to medium holdings was the crux of Wakefield’s scheme. Land ownership was desirable because it provided a ‘permanent interest’ in the
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71 Kain, R and Baigent, E, The Cadastral Map in the Service of the State: A History of Property Mapping, 1992, pp 328–29, Chicago: University of Chicago Press.
72 Ibid, 329.
73 Ibid, 336.
74 Ibid, 328.
75 Williams, M, ‘More and Smaller is Better: Australian Rural Settlement 1788–1914’ in Powell, JM and Williams, M (eds), Australian Space, Australian Time: Geographical Perspectives, 1975, pp 61, 71, Melbourne: Oxford University Press. See also Goodall, above n 6, ch 2, ‘Land and White Desire’. Wakefield’s influential 1829 ‘Letter from Sydney’ was in fact written in London’s Newgate Prison where he was serving a sentence for abducting an heiress.
Wakefield’s unfamiliarity with Australia meant he failed to see how grazing sheep present-ed a more profitable alternative to intensive agriculture. As a result, his vision went largely unrealised in practice, and post-invasion Australian history was characterised by unpoliced landgrabs, with pastoral leases being one policy response by the Crown anxious to reserve some rights to itself: see Wik(1996) 71 ALJR 173.
country, and promoted traits of independence and self-sufficiency. Squatting showed that land could be acquired too easily and did not therefore employ labour, so Wakefield sought a sufficiently high and realistic price for colonial land that would prevent new colonists from becoming owners too soon, and thus a supply of labour would be ensured. The control of settlement into com-pact areas promoted cohesion, a sense of community, and allowed for that division of labour between employer and employee on which economic progress could be built.