Aborigines in 1788 were too primitive to negotiate a treaty and therefore all land in Australia became Crown land by proclamation and occupation, according to the managing director of Western Mining, Hugh Morgan.
Mr Morgan said yesterday that the High Court’s decision giving indigenous title in the Mabo case earlier this year had over-turned settled, established and widely understood law on property.
Mr Morgan said the question of land law had to be looked at from the perspective of international law at the time.
Unlike New Zealand or North America (where there were treaties), Australia was “”terra nullius” (blank territory). It did not mean it was uninhabited.
“”It could also mean that if the inhabitants of a newly discovered country were at such a primitive state of development that no treaty with them was possible, then terra nullius also applied,” he said. “”The Aborigines of 1770 were, as Cook and Banks discovered, sparse in number, had few or no clothes, and built only the most primitive of shelters.
“”The Aborigines had no agriculture nor did they graze animals. Their few utensils, weapons and ornaments were crude. They had no written language, no sense of time or history, no common spoken language, and no political institutions which went beyond the life and boundaries of their many clans. They were unable to mount anything but local and sporadic resistance to British settlement.
“”These are unfashionable things to say these days.”
It did not mean anything in moral terms. “”A person born into 18th century British culture could turn out to be a dreadful criminal. A person born into, say, the Aranda tribe, in Central Australia at the same time could be a person of very high moral stature,” he said.
However, it did mean that Australia was terra nullius. The overthrowing of that doctrine by the High Court had put the whole legal framework of property rights into jeopardy.
“”The law of property is now in a state of disarray,” he said. “”Every piece of eminent, costly legal advice has a different view.
“”Given the contradictions built into the Mabo decision, every new judgment will create new problems. We would call this chain-letter law.”
SUBS: LEAVE IN PRESENT TENSE The Mabo decision has recognised indigenous title to land on proof of continuous occupation and gave the Murray Islands in Torres Strait to the indigenous people. The case rejected compensation for past Crown annexation and alienation of the land. Opinion has divided whether state mining law defeats indigenous title over mining rights or whether compensation would be payable for future annexation.
Mr Morgan was giving the Sixith Joe and Enid Lyons Lecture at the Australian National Universtiy. Joe Lyons, a Tasmanian, was a member of the Scullin Labor Government which he left in 1931 forming the United Australia Party which won government later that year. He was Prime Minister till his death in 1939. Dame Enid was a Minister in the Menzies and subsequent Governments.
Mr Morgan said the Mabo case combined with the Race Discrimination Act had made state governments “”powerless to bring back some sort of order and predictability into the law of property in land”.
A High Court decision in 1988 had ruled invalid a Queensland Act that attempted to vest the land title in the Murray Islands in the Crown, saying it was contrary to the Race Relations Act. This had led to a second case which had resulted in this year’s decision. A coalition government should repeal, or substantially amend, the Act.
Discussion of the issue was difficult because people were quick to raise the accusation of racism. Some had used it for political advantage and “”found easy comfort in using the word racist”.
Mr Morgan cited a 1931 copy of the Worker’s Weekly calling for the handing over of large tracts of fertile land so they could set up one or more independent republics.
“”A separate sovereign state for the Aborigines, carved out of Australia, has been a settled and constant ambition for the communists, and Bolshevik left generally in Australia for over 50 years,” he said.