Mr Interlocutor what do you say to the question of Native Title?
A hunter-gather follows water and hunts game, surface prospects for ochre and stones and picks and gathers seeds, fruit, herbs, bark and wood. He does not settle, herd, cultivate, mine, get and mill timber or hew stone.
Toynbee divided the world into nomads and sedentary cultivators. Examples of terminating nomadic wandering across occupied territory are Hadrian’s Wall, erected to keep out northern nomadic tribes on the western most frontiers of the Roman Empire; another is the erection of the Great Wall of China to keep out western nomads. Of course, any State can pass a statute or a sovereign can make a declaration prohibiting nomadic incursions.
The hunter-gather roams and grazes an area with himself as the locus of the territory. His concept of country maybe said to be similar to or the same as the territory ranged over by an individual animal for its survival. Moreover, he does not occupy, only transits the area having no manner of enforcement other than by his direct challenge to the trespasser, if he be aware of the trespasser. Moreover, he is obliged to share his country on a communal or tribal basis. He only interacts with the country under his hand, an immediate or transient presence over country. His usages and concepts are so far removed from the common law of English property law that the two cannot be reconciled. When Cook claimed Australia for the King, of course the King became the paramount ruler and absolute owner of all land in Australia but as a matter of common sense, the natives were allowed to roam and graze in as much as the bower bird was allowed to keep his bower and the cockatoo could keep his gum tree but only at the pleasure of his Majesty. The right to hunt and gather over land, even if it was acknowledged and allowed by the Colonial Secretary can only have been a licence or permission, a trespass that would not attract civil or criminal prohibitions or sanctions. It may have attracted de facto prohibitions and sanctions from the immediate white occupier who held it subject only to the Crown but they did that at their peril. It conferred no title on the native under the common law of property law. If an interest or right in or over the land was acknowledged or permitted by the Colonial Secretary based on native custom and practise and perhaps, feelings of charity so the native might feed or sustain himself, where did it stand at law? While the Colonial Secretary ruled or governed the colonies, then he could enforce it ex officio. Furthermore, it could be legislated for by the Parliament at Westminster but it never was not even at the passing of the Commonwealth of Australia Constitution Act 1900 (Imp).
Pause for a moment and contemplate the meeting between Captain Cook and the rude native. Cook observed: we could not discover that they had any head or chief, or form of Government, neither have they any usefull or necessary Utentials except it be a Bagg or Basket to gather their Muscels into: in a Word they are perhaps as miserable a set of People as are this day upon Earth. So when we compare and contrast Cook or indeed, the meanest, miserable convict and an aborigine, we may ask: what could an aborigine contribute to the governance and economy of Sydney Town? The settlers took so much of the English common law as was applicable to their circumstances in the colony. The local aboriginal law was not written down and their oral tradition was not as strong as the Brahmin oral tradition of the Rig Veda. When occupation for the purposes of a penal colony gave way to a policy of white settlement controlled and regulated by the Crown or its agents, then the aboriginal system, whatever it may have been, was superseded, repealed and abandoned. The policy of white settlement was an express intention to extinguish the then structure of the native society of the country. The settlement of white Australia could not have progressed if the white settlers had adopted local aboriginal law that is obvious; Australia was created ex nihilo. The two groups continued to exist and interact. As time went by, aborigines adopted aspects of Australian technology and the substances of satisfaction or abuse. They came to be a subclass of Australian society subject to the English law of the land. As land began to be the foundation of wealth, grants were made to settlers without any regard to aboriginal laws, customs or practices; indeed, they were made in the name of Queen as paramount landholder not in the name of Bennelong or some other native. The grant and conveyance of land to white settlers was fatal to the aboriginal concept of country. English land law was the conduit for a settler to acquire land. Slowly the colony began to set up its own machinery of government: legislature, executive and judiciary. Grants of land were made; nothing was appended to those grants by way of easement or reservation that aborigines had a right of freedom to roam. No doubt the Christian colonialists continued their psalm singing in regards the white man’s burden but it was never given the force of law, only a moral sop.
The next step that occurred was that the Colony on obtaining elected government began to legislate regarding the welfare and the control and regulation of blacks and mixed bloods. These statutes were very restrictive of movement in their application. These Acts were described as the most draconian, restrictive and repressive legislation that has ever been made to control a subject group yet this same criticism is ignored when arguing that aborigines retained their tribal custom and practice to roam and graze. This is the hypocrisy of the argument. The Arcadian fantasy to roam at large had long been exhausted, repealed and withdrawn. Settlement and control, both going forward hand in hand can be said to have broken, repealed or prevented the blacks from ever in the future continuing to roam and graze as they may have done in the dim dark ages both in mind and body. Moreover, the very people who cry the loudest when it comes to aboriginal rights and freedoms destroyed the once proud pristine native by demolishing his dreamtime and inserting in its place the ravings of a cantankerous and recalcitrant Jew called Jesus.
The passing of the Commonwealth of Australia Constitution Act 1900 (Imp) by the Westminster Parliament can be said to have created the sovereign States and the Commonwealth; on the coming into being of these legal entities, then native title or the right of existing nomads to roam and hunt would surely be extinguished. Yet we have a High Court seventy years after the event seeking to create a legal right or interest in and over land from a legal fiction called the common law. If the Parliament of Westminster did not chose to recognise, protect or preserve aboriginal rights and interests in the newly created Commonwealth of Australia or the several States then their rights and interests were lost, repealed or became defunct. The 1967 referendum only gave the Commonwealth power to legislate in respect of aborigines not territorial or land rights; not erect a shrine steeped in the stench of fakery, drawing obsequious reverence, garlanded with outrageous baubles of largess resplendent with rich tapestries of velvet rights and satin entitlements. It is significant that ss 106 and 107 of the Constitution continued the state constitutions and powers of the state Parliaments as at the establishment of the Commonwealth. At the time the Constitution was framed, the legislative powers of the former colonies were considered to be fundamentally territorial. It is still true to say that s 107 clearly refers to the power of the parliament of the state with respect to that state as a geographical portion of the entire Commonwealth. The Commonwealth has no power to legislate in respect of the common law land law of the states nor to impose a veil of innate land title over the territorial jurisdiction of the states post facto the Australia Constitution Act 1900 nor has the High Court jurisdiction or power to make ex professo declarations as to what rights attach to land in Australia. In fact, the High Court has the cart before the horse, aborigines were never seised of the land and thus never enjoyed the rights attached to the land but the High Court has argued the land is attached to the aborigines which is an absurdity because the dominant estate is held by the Crown.
All this woolly and wobbly argument by the High Court may or may not be right regards the situation pre-federation but on federation, the government of the UK gave up its rights and duties to administer and govern Australia and invested and transferred to the Commonwealth and the several States all the territorial lands pertaining to the Commonwealth and the States. If one was to look into The Indian Independence Act 1947, one would find that the UK Parliament readily accepted geography, language, race, ethnicity, religion, etc as markers on which legislation might be based thus discriminating for or against peoples, groups and tribes. The Act acknowledged religious incompatibility and established the principle of partition of India; the princely states would assume independent status and be preserved, effectively ignoring universal suffrage and self determination. The UK Parliament did not preserve, recognise or acknowledge aborigines in the Australia Constitution Act 1900 so they and their rights ceased to exist. They became extinct at law.
Then after the High Court brought about this legal absurdity of Native Title, this bucolic fantasy of the noble savage roaming the atavistic foothills of terra Australis, the Federal Government introduces laws which restrict non aboriginal citizens from debating, questioning or expressing a personal view regarding the merits of these entitlements granted by the Australian community to the aboriginal community because it is offensive in the subjective view of an individual aborigine. The gift of citizenship is their recognition; they need no further endowments. What more can your country do for you than give you equality, fraternity and liberty.
Therefore, the Cook Exchange is not an ideology but a phenomenon. Its effect was to transform Australia into a version of England so that the settlers might live more comfortably. The Abophiles have assiduously asserted that they have found dishonourable motives and hidden genocidal blueprints in the detritus of history. They have become obsessed with conspiracy theories behind every event in the calendar of settlement; writing and advocating a contrived and revisionist history of the aborigine. Regrettably this approach to Australian history has persuaded governments and the High Court of Australia to create the legal concept of native title simply because it is alleged that the contemporary values of the Australian people demanded it.
Mr Interlocutor, there is much merit in your discourse but who will arbitrate who has the power and the wisdom when the vested interest arrayed against it will be formidable. An extract from: Deception Bay by Paul Dillon ASIN: B0186GYV9A, Kindle Edition, Amazon.