...Does settlement deliver absolute and complete ownership to the Crown?...
Queensland had argued that, upon its annexation of the Murray Islands in 1879, it became the absolute owner of all land in the Murray Islands and that such ownership precluded the continuation of native title. In other words, it argued that any native title that may have once existed could not and did not survive Queensland's annexation of the islands.
Justice Brennan summarises the issue in the following way:
'Oversimplified, the chief question in this case is whether these transactions [relating to the annexation of the Murray Islands by Queensland] had the effect on 1 August 1879 of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to all land in the Murray Islands... On analysis, the defendant's argument is that, when the territory of a settled colony became part of the Crown's dominions, the law of England so far as applicable to colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown's demesne and no right or interest in any land could thereafter be possessed by any other person unless granted by the Crown.'
(1992) 175 CLR 1 at 25-26.
The proposition that the acquisition of sovereignty through settlement delivered complete ownership of lands within the colony was non-controversial in relation to truly unoccupied territory. In those cases, the land was legitimately 'terra nullius', that is belonging to no-one, and the Crown acquired complete ownership of the land simply because there was no other owner.
However, this same approach came to be taken in colonies, such as Australia, which were occupied by indigenous peoples. As Justice Brennan explains, the rationale for extending the terra nullius doctrine to these inhabited lands was that:
'the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law ...As the indigenous inhabitants of a settled colony were regarded as 'low in the scale of social organisation', they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was no other proprietor of such lands'.'
(1991) 175 CLR 1 at 38-40
Brennan J explains that:
'Perhaps the clearest statement of these propositions is to be found in Attorney-General v Brown when the Supreme Court of NSW rejected a challenge to the Crown's title to and possession of the land in the Colony. Stephen C.J. stated the law to be 'that the waste lands of this colony are, and ever have been, from the time of its first settlement in 1788, in the Crown ... for there is no other proprietor of such lands'
(1992) 175 CLR 1 at-26.
Justice Brennan acknowledges that '[t]his judgement has formidable support' and cites a number of cases in which it has been applied, including the judgment of Justice Dawson in Mabo #1. Another example can be found in the 1971 case of Milirrpum v Nabalco, in which Justice Blackburn felt bound, on the basis that 'New South Wales came into the category of a settled or occupied colony', to hold that 'on the foundation of New South Wales ... every square inch of territory in the colony became the property of the Crown.' [(1971) F.L.R. 141 at 96 and 245].
Nevertheless, in quite powerful terms, Justice Brennan maintains that
'[t]he proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen C.J. arrived in the Attorney-General (NSW) v Brown be right, the interests of indigenous inhabitants in colonial land were extinguished as soon as British subjects settled in a colony... According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claims to be part of the common law to be applied in contemporary Australia must be questioned. This Court must now determine whether, by the common law of this country, the rights and interests of the Meriam people of today are to be determined on the footing that their ancestors lost their traditional rights and interests in the land of the Murray Islands on 1 August 1879.'
(1992) 175 CLR 1 at-28-29.
Here, then, is the logical link between the doctrine of terra nullius and the authorities which hold that the acquisition of sovereignty delivers absolute ownership of the land within the new colony to the Crown:
'it was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too.'
(1992) 175 CLR 1 per Brennan J at p 45.
Justice Brennan delivers a strongly worded rejection of the terra nullius doctrine. Justices Toohey (at 182), Deane and Gaudron (at 109) join with Justice Brennan to explicitly reject the notion that Australia was terra nullius or 'practically unoccupied' in 1788. It followed that the notion was equally inapplicable to the Murray Islands.
Justice Toohey, at 180 was critical of ' the blurring of the distinction between sovereignty and title to land' in regard to settled colonies. At 182, he continues:
'The plaintiffs accept that the islands were settled by Britain rather than conquered or ceded. But it does not follow that the principles of land law relevant to acquisition of vacant land are applicable ... The Crown did not acquire a proprietary title to any territory except that truly uninhabited.'
Similarly, Justice Brennan holds that:
'The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty ... But it is not a corollary of the Crown's acquisition of radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General (NSW) v Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants....[r]ecognition of the radical title of the Crown is quite consistent with recognition of native title to land ... It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty.'
(1992) 175 CLR 1 at 48 and 51.
The majority had rejected Queensland's argument that annexation delivered to the Crown a proprietary interest in all land in the Murray Islands which precluded the existence of native title.
Justice Brennan summarises the issue in the following way:
'Oversimplified, the chief question in this case is whether these transactions [relating to the annexation of the Murray Islands by Queensland] had the effect on 1 August 1879 of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to all land in the Murray Islands... On analysis, the defendant's argument is that, when the territory of a settled colony became part of the Crown's dominions, the law of England so far as applicable to colonial conditions became the law of the colony and, by that law, the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crown's demesne and no right or interest in any land could thereafter be possessed by any other person unless granted by the Crown.'
(1992) 175 CLR 1 at 25-26.
The proposition that the acquisition of sovereignty through settlement delivered complete ownership of lands within the colony was non-controversial in relation to truly unoccupied territory. In those cases, the land was legitimately 'terra nullius', that is belonging to no-one, and the Crown acquired complete ownership of the land simply because there was no other owner.
However, this same approach came to be taken in colonies, such as Australia, which were occupied by indigenous peoples. As Justice Brennan explains, the rationale for extending the terra nullius doctrine to these inhabited lands was that:
'the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law ...As the indigenous inhabitants of a settled colony were regarded as 'low in the scale of social organisation', they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was no other proprietor of such lands'.'
(1991) 175 CLR 1 at 38-40
Brennan J explains that:
'Perhaps the clearest statement of these propositions is to be found in Attorney-General v Brown when the Supreme Court of NSW rejected a challenge to the Crown's title to and possession of the land in the Colony. Stephen C.J. stated the law to be 'that the waste lands of this colony are, and ever have been, from the time of its first settlement in 1788, in the Crown ... for there is no other proprietor of such lands'
(1992) 175 CLR 1 at-26.
Justice Brennan acknowledges that '[t]his judgement has formidable support' and cites a number of cases in which it has been applied, including the judgment of Justice Dawson in Mabo #1. Another example can be found in the 1971 case of Milirrpum v Nabalco, in which Justice Blackburn felt bound, on the basis that 'New South Wales came into the category of a settled or occupied colony', to hold that 'on the foundation of New South Wales ... every square inch of territory in the colony became the property of the Crown.' [(1971) F.L.R. 141 at 96 and 245].
Nevertheless, in quite powerful terms, Justice Brennan maintains that
'[t]he proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen C.J. arrived in the Attorney-General (NSW) v Brown be right, the interests of indigenous inhabitants in colonial land were extinguished as soon as British subjects settled in a colony... According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claims to be part of the common law to be applied in contemporary Australia must be questioned. This Court must now determine whether, by the common law of this country, the rights and interests of the Meriam people of today are to be determined on the footing that their ancestors lost their traditional rights and interests in the land of the Murray Islands on 1 August 1879.'
(1992) 175 CLR 1 at-28-29.
Here, then, is the logical link between the doctrine of terra nullius and the authorities which hold that the acquisition of sovereignty delivers absolute ownership of the land within the new colony to the Crown:
'it was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too.'
(1992) 175 CLR 1 per Brennan J at p 45.
Justice Brennan delivers a strongly worded rejection of the terra nullius doctrine. Justices Toohey (at 182), Deane and Gaudron (at 109) join with Justice Brennan to explicitly reject the notion that Australia was terra nullius or 'practically unoccupied' in 1788. It followed that the notion was equally inapplicable to the Murray Islands.
Justice Toohey, at 180 was critical of ' the blurring of the distinction between sovereignty and title to land' in regard to settled colonies. At 182, he continues:
'The plaintiffs accept that the islands were settled by Britain rather than conquered or ceded. But it does not follow that the principles of land law relevant to acquisition of vacant land are applicable ... The Crown did not acquire a proprietary title to any territory except that truly uninhabited.'
Similarly, Justice Brennan holds that:
'The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty ... But it is not a corollary of the Crown's acquisition of radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General (NSW) v Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants....[r]ecognition of the radical title of the Crown is quite consistent with recognition of native title to land ... It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty.'
(1992) 175 CLR 1 at 48 and 51.
The majority had rejected Queensland's argument that annexation delivered to the Crown a proprietary interest in all land in the Murray Islands which precluded the existence of native title.
Keywords: annexation, Attorney-General (NSW) v Brown, 1847 , Australian Court Case, barbarism, Blackburn, Justice, Brennan, Justice Gerard, crown land, Deane, Sir William, doctrine of tenure, Gaudron, Justice Mary, Mabo judgement, Milirrpum v Nabalco Pty Ltd, 1971 , Murray Island, native title, Queensland, settlements, sovereignty, terra nullius, Toohey, Justice , 1991-1992
Author: Kenna, Jonathan