Reynolds, Henry --- "Mabo and Pastoral Leases" [1992] AboriginalLawB 51; (1992) 1(59) Aboriginal Law Bulletin 10

• Mabo And Pastoral Leases

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Mabo and Pastoral Leases

by Henry Reynolds

In the Mabo judgment the High Court recognized native title. The judges who supported the majority decision looked back and determined that there was a common law tradition which had operated during the 18th and 19th Centuries in other parts of the British Empire and more especially in North America and New Zealand. Australia had strayed from that central Imperial tradition early in its history and colonial courts and governments had adopted an alternative view based on the concept of terra nullius. With the Mabo judgment terra nullius was overthrown and Australian jurisprudence swung belatedly back into the mainstream of legal opinion.

The moral and legal problems with terra nullius, apparent to the High Court bench in 1992, were equally apparent to the Colonial Office officials between 1836 and 1855. They too were aware of the competing concept of native title and sought to weave it into policy crafted for the Australian colonies. Given the Mabo judgment we must take far more seriously the development of that policy. We can now see that it was far from being an aberration and in fact foreshadowed the current and likely future course of Australian jurisprudence and may still have important practical consequence a century and a half later.

Leading English lawyers of the 1830's were fully aware of native title and believed that it applied with equal force in Australia as in the other colonies of settlement.[1] The most authoritative opinions were those commissioned by the Port Phillip Association following the rejection of Batman's Treaty by both the New South Wales Government and the Colonial Office. Four distinguished jurists - Pemberton, Burge, Follet and Lushington - all supported the fundamental principles of the native title tradition. European governments, they agreed, had gained sovereignty over territory in the new world as a result of discovery and settlement. What they had acquired was the "sovereignty of the soil, even whilst it continued in the possession of the aborigines"[2] - who retained their rights based on prior occupation until the Crown asserted its exclusive right of pre-emption. The opinion of Burge, Pemberton and Follet was studied in the Colonial Office in June 1837 by the Secretary of State, Lord Glenelg, and by the Under-Secretary, James Stephen, and was accepted as an authoritative assessment of the law as it then stood. Governor Gipps was apparently given a copy of the opinion prior to his departure for New South Wales and referred to it when introducing legislation in the Legislative Council in 1840. The twin principles of the Aboriginal right of possession and the Crown's exclusive right of pre-emption were 'fully admitted' and were indeed 'received as political axioms'.[3]

Colonial Office policy was informed by these ideas for the twenty years between 1836 and 1855. The Letters Patent establishing South Australia recognized Aboriginal land rights and Lord Glenelg told the South Australian Colonization Commissioners that they were to purchase tribal land in advance of settlement.[4]

In New South Wales, policy took a different path. From the 1840's, the Imperial Government determined that the Aborigines should be compensated for the loss of land by the establishment of reserves in all settled districts and by receiving a fixed 15% of all revenue from land sales. In fact, in 1848, Grey said that such expenditure 'should constitute the very first charge upon the Land Revenue.' But of even greater consequence for the future was the policy developed between 1848 and 1850 to entrench Aboriginal rights of use and occupation on all land leased for pastoral purposes.[5]

Land policy was in turmoil during the 1840's. The squatters had occupied a vast area of Eastern Australia but their prospects were threatened by drought and depression. The Imperial Government was determined to assert its right to control all Crown Land and prevent the emergence of claims based on prescription. Governors Bourke and Gipps concluded that it was better to regulate that which could not be circumscribed. Waste Land Acts of 1842 and 1846 had angered the squatters and their allies and in 1847 the Colonial Office gave way before vociferous agitation. In a famous Order-in-Council of March that year, the squatters were given what they wanted - long leases and the right of pre-emption. Little attention was given to Aboriginal interests in the fierce debates about law and tenure.

But that was to change in 1847 when a report from G.A. Robinson, Chief Protector of Aborigines at Port Phillip, reached the Colonial Office. 'The claim of Aborigines, he wrote,

'... to a reasonable share in the soil of their fatherland has not, I regret to say, been recognized, in any of the discussions which for so great a length of time, have agitated the public mind on the question of the rights of the Squatters, to the occupancy of the lands of the Crown ... the duty devolves on me to bring this Claim under the notice of Her Majesty's Government for a reasonable share in the soil of their fatherland."[6]

One of the Colonial Officials who read the report stressed the importance of the subject matter, underlining in pencil and placing asterisks in the margin beside the twice repeated phrase about Aboriginal claims to 'a reasonable share in the soil of their fatherland'.. The intra-office memos were equally revealing. Herman Merivale noted that Governor Fitzroy's attention 'must be drawn' to the question. "It would, of course [he wrote] be most unjust that the Natives should be extruded in the manner described ... from the soil of which till recently, they were the sole occupants."[7 ]Secretary of State Earl Grey commented that the Governor "must be instructed to take care that they are not driven off all that country which is divided into grazing [stations] and let under the recent regulations."[8 ]Grey considered the matter one of the greatest importance. In a brief memo he explained why Aboriginal rights must be affirmed. It was a matter of life and death. Action must be taken "with a view to their preservation from being exterminated."[9]

The resulting dispatch, sent to Sydney in February 1848, outlined a well-developed proposal which sought to meet the situation outlined in Robinson's report. Grey referred to the suggested creation of large reserves by way of compensation for the impairment of native title. He argued that whereas such a scheme was appropriate elsewhere in the world the nature of Australian geography and settlement patterns demanded a different answer. The dryness of the continent and the need for extensive grazing rights called for a peculiarly Australian solution. In fact,

'... the very difficulty of thus locating the Aboriginal Tribes absolutely apart from the Settlers renders it more incumbent on Government to prevent them from being altogether excluded from the land under pastoral occupation. I think it essential that it should be generally understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such land as they may require within the large limits thus assigned to them; but that leases are not intended to deprive the natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil."[10]

The Colonial Office had been forced to examine some of the same issues which exercised the mind of the High Court in the Mabo case. They considered whether pastoral occupation was 'wholly or partially inconsistent with a continuing right to enjoy native title' and concluded that it certainly was not. They were adamant that pastoral leases did not confer 'a right of exclusive possession.' The pastoralists' exclusive right of pasturage co-existed with the Aboriginal right of use and occupancy. They were ‘mutual rights.’[11 ]One was not superior to the other. On the other hand, the Colonial Office accepted that when the land was enclosed and cultivated the usage was inconsistent with a continuing Aboriginal interest although whether that interest revived if the land went out of cultivation is not clear.

Earl Grey was even more emphatic on these points in another intra-office memo written in March 1849 when he noted that it had to be assumed that the Imperial Government "did not intend ... to exclude the natives"[12 ]from land held under lease. What is more he believed that the Australian Waste Land Act had provided the government 'no power'[13 ]to extinguish customary rights.

What then was to be done to protect the Aboriginal interest? Colonial Office officials were dear about what they wanted to achieve - 'the reservation in leases of Pastoral Land of the rights of the Natives.' It was not a case of creating new rights but the recognition of existing ones, the shaping of an instrument to ensure the 'continuance of their rights.'[14 ]They clearly interpreted a reservation in the precise legal sense of retaining or holding back some right, power or privilege. Equally, when they wrote of 'rights' they referred, not to moral, but to 'legal' rights. And the term 'right' was employed over and over again in the official correspondence of the time.

How was the matter finally resolved? The New South Wales Law Officers, on receiving the initial instruction to provide for a 'continuance' of Aboriginal rights, argued that the matter could not be pursued without additional authority provided by an Order-in-Council. The Colonial Office accepted the advice and referred the correspondence on to the Colonial Land and Emigration Office. The officials there were acutely aware of the political sensitivities so soon after the colonial agitation of 1844-46 and suggested a form of words which disguised the specific purpose of the Order-in-Council, which eventually was signed by the Queen on 18 July 1849 to 'have the force and effect of law' in all the Australian colonies. It read in part

"And where as it is expedient that all such pastoral leases should contain such conditions, clauses of forfeiture, exceptions, and reservations, as may be necessary for securing the peaceable and effectual occupation of the land comprised in such leases, and for preventing the abuses and inconveniences incident there to..."[15]

The failure of the Order-in-Council to be more specific about Aboriginal rights has misled later commentators. It was indeed an issue which concerned the Colonial Office's Australian specialist Gordon Gairdner. In a minute to Earl Grey on the draft Order-in-Council received from the Land -and Emigration Commission he scrawled: "The entire extent of the access of the natives must surely be defined."[16 ]With an eye to the politics of the situation Grey replied that the Order would 'be sufficient' as long as it was accompanied by an 'explanatory dispatch'.[17 ]So the true meaning of the measure was to be found less in the Order-in-Council, which was a public document published in the New South Wales Government Gazette, and more in the dispatch, which was only for official eyes. In that correspondence, Grey re-emphasised the substance of his original dispatch of 11 February 1848 and re-iterated that there could be "little doubt that the intention of the Government was ... to give only the exclusive right of pasturage in runs, not the exclusive occupation of the land, as against the natives using it for ordinary purposes."[18 ]To underline his commitment to the issue, the Secretary of State told the Governor that if necessary he was to use discretionary powers under the Act to force squatters who had received leases prior to the publication of the Order-in-Council to accept the new conditions if they were "disposed to insist on an unreasonable construction of their right of occupation."[19]

Colonial Office policy and intentions were expressed much more clearly in correspondence with the West Australian Government in 1850. Dispatches from the colony were received in May enclosing three detailed alternative schemes for regulating the occupation of waste land. None of the schemes mentioned the Aborigines, an omission immediately noticed by Earl Grey. While reading the dispatch he minuted: 'one point I think has been overlooked: He explained:

"If I am not mistaken a question arose in New South Wales as to the right of lease-holders to exclude the natives from their runs and it was found necessary to give

some additional instructions upon the point. It is material that this will be attended to in the present case."[20]

At Grey's insistence, an extra sentence was added to the draft despatch which was then returned to him for approval. The sentence read:

"You will observe that it is expressly provided by the [accompanying] Order-in-Council that no pastoral lease shall exclude natives from seeking their subsistence on the run in their accustomed manner."[21 ]

The Order-in-Council embodied the official direction in Chapter V, clause 7, which read:

"Nothing contained in any pastoral lease shall prevent Aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence there from in their accustomed manner."[22]

The clause was duly incorporated in the colonial pastoral regulations and gazetted in 17 December 1850. It was made quite clear to Governor Fitzgerald that he was to enforce the regulations, Grey noting that other clauses in the Order-in-Council gave him the "fullest power to insert in all leases such conditions and clauses of forfeiture as may be necessary for the protection of the public interests in these or any other respect"[23]

The reaction of Earl Grey to the Western Australian plans for the pastoral occupation of the sprawling frontier territories provides us with the clearest possible picture of Imperial policy as interpreted at the highest level. We can trace with certainty the evolution of that policy from the ministerial minute scribbled on a despatch in May to the gazettal of the regulations in Perth at the end of the year[24 ]We could not wish for a more complete endorsement of the policy of protecting Aboriginal occupancy rights on all land leased for pastoral purposes anywhere in the Australian colonies. Grey had underlined the practical consequences of this policy early in 1850 in a dispatch to New South Wales responding to further reports of frontier violence. While expressing his grave concern about the blood-shed he firmly pointed out to Fitzroy,

"... that the practice of driving the natives from the cattle runs is illegal and that they have every right to the protection of the law from such aggression."[25]

After considerable delay, the New South Wales Government proclaimed in March 1851 that all leases over Crown Lands beyond the settled districts would embody the terms, conditions, reservations and provisions outlined in the two Orders-in-Council of March 1847 and July 1849. The South Australian Government had been kept informed of developments in the other colonies. The Governor was sent a copy of Grey's dispatch to New South Wales of February 1848, which had for the first time enunciated the policy of defending the Aboriginal interest on all pastoral lands and he was told that the proposals should be applied in South Australia. An Order-in-Council of June 1850 brought the colony under the sway of the 1846 Waste Land Act and its attendant orders and regulations. From that time on, local pastoral leases contained a provision reserving:

“... for and on account of the present Aboriginal Inhabitants of the Province and their descendants ... full and free rights of ingress egress and regress into upon and over the said Waste Lands of the Crown ... and in and to the Springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals - in such manner as they would have been entitled to if this demise had not been made.”[26]

The future of the Imperial Waste Land Act of 1846 and its attendant Orders-in-Council was called into question by the rapid movement of the Australian colonies towards self-government between 1850 and 1856. Its final status was determined by a further piece of Imperial legislation - The Imperial Repeal of Colonial Waste Lands Act (18 & 19 VIC C,56) of 1855 which transferred to the colonies the power to control all Crown Land. It was an important transfer of power. But the colonies only acquired a qualified right to dispose of land. They were henceforth able to repeal, alter or amend any Order-in-Council issued under the authority of the 1846 Act provided that they did nothing which would prevent the “preservation and fulfilment of contracts, promises and engagements made by or on behalf of Her Majesty with respect to land.”[27]

The contracts referred to were clearly the leases held by pastoralists. But what of promises and engagements? Did they include the Aboriginal right - so recently recognized - to use and occupy all pastoral lands in the colonies? The assumption must be that they did. In their dealings with the soon to be self-governing colonies, the Colonial Office officials sought to ensure that all interests recognized by the Crown prior to self-government would be respected by the new administrators. They felt the honour of the Crown was involved whether it related to pensions provided for individuals or the rights of large groups of colonists. Where the 'faith of the Crowd had been pledged it should not be 'in any way broken.'[28 ]Given the attitude of British politicians and officials over the previous twenty years, it is highly unlikely that they would not seek to protect Aboriginal interests from future expropriation. They believed that in their dealings with the Aborigines the honour of the nation was at stake. The alternative assumption must be that on the eve of colonial self-government the Colonial Office legislated to protect the interests of the pastoral leaseholders, but either forgot to similarly protect customary land rights or deliberately abandoned the Aborigines to their fate which, as we have seen, they assumed would probably mean their extermination. Either proposition seems highly implausible.

The motives of Australian squatters were quite different to those of Colonial Office officials but they also helped to protect Aboriginal interests, albeit inadvertently. They were determined to ensure that all their rights and interests would be preserved under the new colonial governments and especially everything they had gained from the Waste Land Act of 1846. The squatter-dominated Select Committee on the Constitution in New South Wales argued that any future legislation should not 'affect any previous contracts' nor any vested right which had arisen under the 1846 legislation "nor any vested right or interest which [had] accrued under any Order-in-Council issued by Her Majesty in Council."[29 ]In casting their protective net so widely, the squatter-politicians took on board the Aboriginal rights of use and occupancy. The two sorts of rights could not be distinguished. What was under consideration were, after all, similar rights, over the same land under a single piece of legislation. To defend one was to defend the other.

It seems certain, then, that the British Repeal of Colonial Waste Lands Act of 1855 protected Aboriginal land rights. Being an Imperial statute with specific reference to the Australian colonies it had paramount force throughout the country and as a result of the Colonial Laws Validity Act (28 &29 VIC C.63) of 1867 could not be circumvented, amended or repealed until the passage of the Australia Act 1986 (Cth). The Australian colonies/states had therefore only a conditional right to grant leases over Crown Land - conditional on them also protecting the Aboriginal right to use the land in their accustomed manner. It is for this reason that reservations providing for Aboriginal use and occupancy have survived in one form or another in South Australia, the Northern Territory and Western Australia.

At first sight Queensland appears to be different. Modern leases make no mention of Aboriginal rights although colonial ones certainly did so. At some point in the 20th Century the Aboriginal interest must have been excised. Did the Queensland Government have the power to do so or did it act illegally? The Imperial legislation of 1855 applied to Queensland - indirectly by implication, directly by provisions in s.5 of the Letters Patent of 1859 and in s.30 of the Queensland Constitution Act (31 VIC C38) of 1867. The Imperial Act had paramount force in Queensland until 1986 and its power was enforced by s.2 of the Colonial Laws Validity Act. So the question remains - did the Queensland Government ever have the power to remove the Aboriginal interest from pastoral leases in the state or were such actions repugnant to overriding Imperial legislation?

Between 1836 and 1855 the British Government recognized native title. The evidence for this is overwhelming. Grappling with the unique nature of Australian settlement they devised a means to protect the Aboriginal interest on pastoral land - a reservation to ensure the 'continuance of their rights.' Justice demanded no less; the Aborigines deserved 'a reasonable share in the soil of their fatherland.' Such a right was of great practical importance as well. It was one way in which the distant Imperial authorities could preserve them 'from being exterminated.' The Aboriginal interest was embodied in several Orders-in-Council and in 1855 was protected by Imperial legislation which continued to operate with paramount force in Australia until 1986. The Aboriginal interest on all pastoral land held under lease is far older and far more potent than has commonly been realized. It has to be treated very seriously in the negotiations and litigation which will follow in the wake of the Mabo decision.

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[1]These issues are discussed in my book The Law of the Land, 2nd edition, Penguin, Ringwood, 1992.

[2] Ibid, p.130.

[3] .Ibid, p.132.

[4] Ibid, pp.100-112

[5] Ibid,pp.138-148.

[6] Colonial Office, CO 201/382

[7 ]Ibid.

[8 ]Ibid.

[9] Ibid.

[10] Historical Records of Australia,1, 26, p226.

[11 ]Ibid.

[12 ]See communication despatch of Fitzroy to Grey, 11 October 1848, CO 201/400.

[13 ]Ibid.

[14 ]Ibid.

[15] Sydney Gazette, 29 April 1850. pp. 685-6.

[16 ]Memo on letter of Colonial Land and Emigration Office, 17 April 1849, co 201/422.

[17 ]Ibid.

[18 ]Grey to Fitzroy, 6 August 1849, Dispatches to the Governor, Mitchell Library, Ms. A 1308.

[19] Ibid.

[20] See Fitzgerald to Grey, 24 July 1849, CO 18/51; Grey to Fitzgerald, 22 May 1850, 00397/9.

[21 ]Ibid.

[22] Ibid.

[23] Ibid.

[24 ]Ibid.

[25] Grey to Fitzroy, 10 February 1850, CO 202/58.

[26] Quoted by Blackburn, J. in Millirpum v Nabalco (1971)17 FLR 141 at 260.

[27] Section 4 of the imperial Repeal of Colonial Waste Lands Act (18 & 19 VIC c.56) of 1855.

[28 ]See memo on Fitzroy to Parkington, 22 February 1853, CO 201/464.

[29 ]Report of Select Committee enclosed in Fitzroy to Newcastle, 17 November 1853, CO 201/401.