Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Henry Reynolds
Do pastoral leases extinguish native title? It is one of the most contentious of contemporary questions being fought out within the Federal Government and in the community at large, with State Premiers and powerful pressure groups demanding that extinguishment be effected by legislation before the High Court can bring down a judgment in the Wik case[1].
History is central to the legal argument. Many issues are pertinent-the land policies of the Imperial and Colonial/State Governments, the development of the pastoral industry and resulting land use patterns, the micro-history of particular leases. Judges have been required to read large quantities of historical records and make quick judgments about policies, processes and personalities in areas where authoritative secondary sources are few and far between. Their historiographical performance has been uneven. Perceptive assessment in some places has been balanced by misunderstanding in others. But does bad history produce bad law? It is an intriguing question. To investigate it, attention will be given to the judgments of French J in Re Waanyi People's Native Title Application[2], of Jenkinson, Lee and Hill JJ in the case of North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA[3] in the Federal Court, and of Drummond J in the same court in the case of the Wik Peoples v State of Queensland & Ors[4].
On some important issues there is considerable disagreement. A case in point is the question of whether in the 1830s and 1840s, the Colonial Office recognised that the Aborigines had a form of native title. Hill J declared that at the time, 'the concept of native title was then unknown'[5]. Two months later, his colleague, Drummond J, observed that the New South Wales Governor George Gipps was 'explicit in his recognition of native title', and that in doing so, he was 'expressing an official view that was then widely held'[6].
This disagreement notwithstanding, there is general acceptance that the Imperial Government displayed growing concern about the fate of the Aborigines between 1830 and 1856, and that it focussed on the question of access to land that was rapidly being taken up by pastoralists. More specifically, there is an appreciation that the Colonial Office officials decided that the best way to provide for continued Aboriginal access to their lands was to insert reservations in all pastoral leases by way of an Order in Council, under the aegis of the 1846 Imperial Waste Land Act. So much is now widely accepted. But the critical remaining issue is whether the Imperial policy had any legal purchase after the granting of responsible government to the five eastern colonies in 1855-59, and to Western Australia in 1890.
French and Drummond JJ adopted a sceptical view of Imperial intentions, doubting that, in the case of NSW, there was any continuing protection of Aboriginal interests. Imperial concern, French J asserted, 'extended to a desire that there be inserted in pastoral leases provision protecting rights of access to Aboriginal people'. But it was not 'translated into a legally binding instruction'[7]. Drummond J adopted a similar view, arguing that all the Colonial Office provided was a discretionary power which Governors could use if they wished. As there was no 'binding direction' from London, there could be no continuing oversight[8].
These interpretations are open to attack on several fronts. The most obvious difficulty is that the Colonial Office officials who implemented the policy were convinced they had provided legal and administrative protection to the Aborigines and their native title rights. At the end of 1850 they considered, in intra-office memos, what they had achieved. The Australian expert Gordon Gairdner was adamant that the 'question of securing to the Natives access to the lands leased in the unsettled districts' had 'already been disposed of by the provisions made for that purpose'. His senior, the Permanent Under Secretary, Herman Merivale, concurred. He referred to the task of 'leaving the natives access to tracts of land leased to stock holders' and concluded that 'This is provided for'[9]. So we have an anomalous situation. The officials involved in the matter were certain they had 'provided for' the preservation of native title. Somewhat presumptuously, Federal Court judges have retrospectively declared that they hadn't done so.
Drummond J made a distinction between NSW and Western Australia, concluding that the intention of the Colonial Office was much clearer in the second case[10] than in the first This assessment counts heavily in his judgment of land policy in Queensland and hence of the validity of the claims of both the Wik and Waanyi peoples. Drummond J's distinction would have surprised the Secretary of State for the Colonies, Earl Grey, who believed he was merely applying to Western Australia policy developed initially for NSW, where Aboriginal rights had been 'provided for'. When Grey realised in 1850 that plans submitted by the Western Australian Government for regulating the occupation of land did not contain protection for the Aboriginal interest, he wrote a memo to his bureaucrats observing:
‘... one point I think has been overlooked. If I am not mistaken a question arose in N.S. 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 be attended to in the present case'.[11]
Having gone to considerable trouble to protect native title on land held under pastoral lease in 1850, the critical question is whether the Colonial Office intended that protection to survive the granting of responsible government to the eastern Australian colonies in 1856. Interest focuses on the 1855 Imperial Waste Land Act (18 & 19 Vic C.55), which transferred control of land policy from London to the colonies, while providing for 'the Fulfilment of any Contract, Promise, or Engagements made by or on behalf of Her Majesty with respect to any Lands'.[12]. Did this clause protect native title? Both Drummond J and French J concluded that it didn't. Drummond J determined that:
'the Imperial authorities at no time gave anything in the nature of a commitment that native title interests would be protected on a general and permanent basis ... [no-one] acting on behalf of the Crown gave an undertaking that could be described as a promise or engagement within the ordinary meaning of those words, to preserve native title rights rom extinguishment which was intended to endure permanently'.[13]
Implicit in this assessment are historical judgments which demand careful analysis. Drummond J conceded that the Imperial authorities provided ongoing protection to the lease-holders and other people who had an interest in land stemming from the Imperial Waste Land Act of 1846, even to those who had been given no more that a promise of land. But if the squatters and would-be squatters were to be protected, why would the Colonial Office fail to show similar consideration to the Aborigines? They had, after all, been doing so for the previous 25 years, and had expressed that concern in innumerable despatches and memos. What is more to the point, they appreciated that for the Aborigines, continued access to their land was a matter of life and death. Drummond J's interpretation would suggest that despite the years of concern about the fate of the Aborigines at the hands of the settlers, the Colonial Office decided to abandon them when the colonies gained self-government. However, there is absolutely no evidence that this was ever the intention of the Imperial Government.
In fact Colonial Office officials were assiduous in ensuring that interests arising from Imperial legislation or policy were not diminished by the actions of the successor governments. Earl Grey felt that 'it was above all desirable' that no existing interest 'should be sacrificed, or placed in a less secure position' once the colonies gained responsible government.
The policy of the Colonial Office towards the Empire's Indigenous people was outlined in the Report on the Affairs of the Indians in Canada, written in 1849. It coincided with the development of policy for the protection of native title in Australia, and was published several years after Ontario and Quebec had been granted responsible government. Under the heading 'General Recommendations', the authors of the Report wrote:
The protection of the Aborigines should be considered as a special duty peculiarly belonging and appropriate to the Executive Government, as administered either in this country or by the governors of the respective Colonies. This is not a trust which could conveniently be confided to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office, for the local Legislature, if properly constituted, should partake largely in the interests, and represent the feelings of the settled opinions of the great mass of the people for whom they act. But the settlers in almost every Colony, having either, disputes to adjust with the native Tribes, or claims to urge against them, the Representatives body is virtually a party, and, ought not to be the judge in such controversies; or, if Members of the Colonial Legislature are not chosen by the people, but selected by the Government, there is still a similar objection to their interference with regard to the Aborigines. Possessing an invidious elevation, in which they are supported by no other title than that of the preference of the Crown, they will endeavour to abate the ill-will which follows upon such superiority, by ministering to all popular prejudices which do not directly invade the power and the rights of the government they serve. Whatever may be the Legislative system of any Colony, we therefore advise, that, as far as possible, the Aborigines be withdrawn from its control'.[14]
Having quoted this passage, the Canadian scholar Bruce Clark observed in his recent book Native Liberty, Crown Sovereignty that the essence of the recommendation was that 'the Imperial government should maintain an even hand between the Indians and the colonial governments'[15]. Equally relevant to the discussion is Clark's comment that even self-governing governments 'constituted by the Imperial government' were subordinate governments 'exercising delegated powers'. They were never made 'sovereign governments exercising inherent powers'[16].
These observations are important, because the Imperial Government continued to exercise power over the self-governing colonies. The grant of power over land policy, for instance, was not unconditional either in the eastern colonies in 1856, or in Western Australia in 1890. The most illuminating illustration of Colonial Office attitudes was provided by Secretary of State, Lord Knutsford, in a despatch to Governor Broome of Western Australia in July 1888, on the eve of the grant of responsible government to the colony. They could have applied with equal force to the situation in Eastern Australia in the mid-1850s. The despatch concerned the continuing interest of the Colonial Office in the settlement of the tropical north of the colony, and the well-being of the Aborigines after power had passed from Downing Street to Perth. Knutsford's problem was not whether, but rather how, Imperial supervision should be exercised. He eschewed the strategy of disallowing future laws which, he realised, would cause considerable friction with the local legislature. What he proposed was exactly what had been done 33 years before in respect of the other colonies-to leave the 1855 Imperial Waste Land Act in place, and use it to limit the powers of the colonial executive.
Knutsford explained his decision to the Governor. The power of 'disallowing the laws of a self-governing Colony' was not very effective. He assumed that it would prove to be more distasteful to the colony than 'the retention by the Crown over a certain areas of the power now vested in it by law' of regulating the disposal of the waste lands of the colony. 'With this in view', he explained,
'I propose to leave in force the [1855 Imperial Waste Land Act 18 and 19 Vic. C.55] and to make new regulations under that Act which, after preserving all leases and rights which have been duly granted or created, would vest in the legislature of Western Australia, the sale, letting and other disposal of waste lands of the Crown'.[17]
Australian courts recognised the conditional nature of colonial authority over waste land management after the grant of responsible government. In the 1861 case of Rusden v Weekes in the Supreme Court of NSW, Stephen CJ explained that the colonial parliament 'acquired in respect of leased lands, and lands permissively occupied, powers qualified and restricted only'. The control of waste lands had not been 'transferred to the Legislature absolutely' but was given only 'on conditions which operated as a limitation on its powers'.[18] The High Court came to a similar conclusion in relation to Western Australia in 1907, observing that the power over the disposal of Crown land had been transferred to the local government in 1890, but 'all contracts made by the Crown and all vested rights already accrued' prior to 1890 were expressly saved from interference[19].
The Colonial Office officials clearly believed in 1850 that they had provided legal protection for native title on land held under pastoral leases. They believed that such protection would continue to operate once the colonies gained responsible government. The South Australian reservation preserving native title was not just 'for and on account of the present Aboriginal Inhabitants of the Province', but also for 'their descendants'[20].
Perhaps the most substantial evidence-for the continuing influence of Imperial Government policy was the fact that all colonial governments continued to include relevant reservations in pastoral leases throughout the second half of the 19th century, and in the case of South Australia/ the Northern Territory and Western Australia, up to the present. Why did this happen? It may have been a case of inertia. It is most unlikely that it sprang from a concern for Aboriginal welfare. It seems, in fact, that colonial officials believed that they were, indeed, legally bound by overriding Imperial law to protect the Aboriginal interest, and thereby preserve native title on all lands held under pastoral lease.
If Imperial Government policies are ignored or discounted, the case for the survival of native title is seriously weakened. Wrench pastoral leases from their historical context and they lose their unique characteristics, and can be dealt with by means of general ahistoric legal principles. Once that is done, the principles handed down by the High Court in the Mabo (No. 2)[21] case in relation to two tiny leases on Mer/Murray Island can be applied indiscriminately to sprawling pastoral properties, the tenure of which stems directly back to policy shaped in London in the middle of last century. Bad history makes bad law. In the present case the two conspire to perpetuate historical injustice as well.
[1] The High Court has heard legal argument in the matter between 11 and 14 June 1996. Their Honours' decision still had to be handed down at the time of going m print.
[5] (1995) 132 AIR 565 at 609.
[6] (1996)134 ALR 637 at 17.
[7] (1995) 129 AIR 118 at 151.
[8] (1996)134 ALR 637 at 658.
[9] Memo on despatch from Fitzroy to Grey, 23 March 1850, C0201/427.
[10] (1996) 134 ALR 637 at 660.
[11] Memo on despatch from Fitzgerald to Grey, 24 July 1849, CO 18/51.
[12] Section 2.
[13] (1996) 134 ALR 637 at 662,663.
[14] This was a quotation from the famous House of Commons Report an the Native People of the Empire. See Native Liberty, Crown Sovereignty, B Clark, McGill University Press, Montreal, Canada, 1990, page 68.
[15] Native Liberty, Crown Sovereignty, page 68.
[16] Native Liberty, Crown Sovereignty, page 69.
[17] Correspondence re the Proposed Introduction of Responsible Government in Western Australia, British Parliamentary Papers, 1889, C5743, LV, page 54.
[18] A Selection of Supreme Court Cases, J G Legge (ed), Sydney, Australia, 1896, Vol 2, page 1410.
[19] Moore & Scroope v Western Australia (1907) 5 CLR 327.
[20] Quoted in Milirrpum v Nabalco Pty Ltd & The Commonwealth (1971) 17 FLR 141 at 260.
[21] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/38.html