Custodians of Land – land reform in Australia and Scotland

The writer of this blog is an adviser to the Scottish Land Reform Review Group. This  collection of personal observations should not be taken as indicative of any views of that Group or the direction it might take. 

plaque


The photograph that opens this blog is one I took in Sydney’s Botanic Gardens, which sits in the shadow of the iconic Sydney Harbour Bridge and Opera House. I took this snap in July 2013 on a visit to Australia. If any of you cannot quite make out the text (apologies for the picture quality), the gist of it is that the relevant authorities at the park felt moved to publicly acknowledge the role of the First Peoples of Australia and their stewardship of the land. There is also a Bennelong precinct around the area, named after a historical Aboriginal figure. My fieldwork did not extend to a study of the precise ownership situation of the land where the plaque is sited, but despite the gesture evident in the plaque and in certain place-names I suspect it is not actually owned or managed by those traditional custodians. That being the case, there are a number of moves in contemporary Australia to recognise the standing of the Aboriginal and Torres Strait Islander communities, some of which have the force of the law behind them.

This being my first trip to Australia, I have nothing to compare my own perceptions to. From some of the exhibitions I visited and some of my holiday readings, not to mention the NAIDOC events that were taking place (which I might have caught had I been a little more organised), I have gleaned that there is an increasing awareness, and perhaps even a celebration, of indigenous culture, accompanied by a certain element of community empowerment measures. As a slight aside, the reason for my being in Australia was to attend a conference in Brisbane on clinical legal education (Storified here). That conference, shrouded in an air of social justice as it was, made a fitting and particular effort to recognise the indigenous custodians of the land. The conference began with a traditional “Welcome to Country” and the Dean of Griffith University’s School of Law acknowledged the role of the senior law men and law women of Aboriginal society, describing that role as the world’s longest continuing thread of jurisprudence that still exists. The conference team also organised an Aboriginal dance group, the Nunukul Yuggera Dancers, to precede the final conference dinner. The MC of those dancers introduced each dance by explaining the background to it, during which introductions he noted that the attachment of indigenous Australians to the land can be best described thus: you do not own the land, the land owns you.

Aboriginal dancers

Are there any analogies in these recent developments for other land law reform movements around the world? Can other jurisdictions learn from this? Before addressing those questions in detail, some law and a little history is in order. (The answer to both questions is, of course, “yes”, but I trust readers will forgive me for setting the scene before engaging in some further analysis.)

Terra Nullius – Nobody’s Land

Res nullius is a Latin maxim which should be known to anyone who has studied a little bit of property law, whether in a civil law system (evident in continental Europe), the common law world (beginning with England but then transplanted and scattered across the British Empire) and indeed in mixed legal systems (like Scotland and South Africa, where Roman law and the common law met and formed something of a mixture). Roughly, the maxim translates as a “thing belonging to no-one”. In Scotland, the most commonly quoted example of an ownerless thing is a wild animal. Anyone taking possession of such an unowned thing (by hunting or otherwise capturing it) becomes its owner, although that person may need to be careful to comply with local laws lest he be forced to forfeit the captured animal to another (perhaps the landowner). An unowned, wild animal can be “occupied”.

In most legal systems of the civil, common or mixed tradition, animals are treated as moveable property. (For any non-Scottish readers, note Scots lawyers prefer “moveable” to “movable”.) What about immoveable property, which in Latin can be described as terra nullius (“land belonging to no-one)? It is very rare to stumble across unowned land in a developed legal system. Even if someone sought to abandon land it would not normally revert to unowned status, with any abandoned land apparently falling to the state (on which, a recent Scots case on the abandonment of mining operations may be in point).

Whilst it is not normal to stumble across unowned land in a developed legal system, would you credit that a few European (legal) settlers managed to do that when they went colonising back in the day? They struck terra nullius in the New World (a Eurocentric term if ever there was one), in places like Australia, where a fleet set anchor in Botany Bay in January 1788 after Cook’s first trip to eastern Australia in 1770. The land was free for occupation, in the proprietorial sense of the term.

The slight problem with this narrative is that there were people already there. In the colonial narrative of the time, Aboriginal and Torres Strait Islander communities did not feature much as landowners. To some, they were swept aside in a manner that should be characterised as nothing less than a land war. Away from that land war classification, others might point to the fact that the land was traded with those early settlers. This seems outwardly fair, but when you recall that one of the parties to that trade probably subscribed to the philosophy espoused above that you do not own the land, it owns you, the idea that the trade was intended to set up some sort of perpetual freehold in favour of European settlers appears unlikely. A further point is how nonsensical some of the trades likely were – my Lonely Planet Australia book tells the story of John Batman acquiring 2400 square kilometres of land in what is now Victoria from the Kulin Nation in exchange for some flour, tools and clothing. Such activities combined so that by hook, crook and poisoned waterhole, the land came to be predominantly held by the Gubbas, as I understand (some of) the indigenous Australians refer to the eighteenth century boat people.

The legislative and judicial response in Australia

Despite that lengthy scene-set, this is not a history blog. Fast forward to the 21st century and you can see a more sympathetic treatment of indigenous rights and culture. Of course, there is much that could be written about the problems that the indigenous 2% of Australia’s population face still, whether by way of apparently different treatment by the police for that group as compared to the majority Caucasian population, or the ongoing intervention in the Northern Territory. In no way meaning to underplay such issues, I am going to bodyswerve them and focus on the land.

I will begin my chronology of the response with the two bark petitions sent to the Australian House of Representatives in August 1963 by the Yolngu people of Yirrkala, an event explained on the NAIDOC website. That website describes the petitions as “the first traditional documents recognised by the Commonwealth Parliament” which “helped to shape the nation’s acknowledgment of Aboriginal people and their land rights”. Moving forward to the 70s, the Aboriginal Land Rights (Northern Territory) Act 1976 (“the ALRA”) gave the first (location specific) legislative move towards Australian land reform, the same year as another targeted (but non-land reform) measure was passed in the shape of the (now replaced) Aboriginal Councils and Associations Act 1976. (Another aside: I visited an exhibition paying tribute to one example of such an association, Gadigal Information Service, which has played a key role for Sydney’s indigenous population by way of its community radio station. All of this might be characterised within a broad community empowerment movement.) The ALRA has, it seems, made a bit of a dent to distribution patterns, with one online source from 2007 noting some 45% of land in the Northern Territory is now under Aboriginal ownership or control, albeit that that may not have led to lasting economic benefit in all circumstances. With the notable exception of Western Australia (currently home to the Noongar Country native title claim), similar legislation now exists in the other Australian regions.

Next in the chronology comes the historic Mabo v Queensland (No 2) ((1992) 175 CLR 1) case. Much has been written about the case and I will not add a lot here, other than to note the decision in Mabo was a radical judicial recognition of a native title to land. The harsh application of terra nullius was mitigated. This was followed by the legislative framework to put the Mabo decision into practice, the Native Title Act 1993 (“the NTA”).

That legislation is, to use the technical term, big. I am not going to digest it here, in part to save space but mostly because I do not feel confident or competent enough to do so. What I can note is it has teeth. Indigenous interests cannot be ignored when, for example, mining leases or exploration permits are granted (see section 28 and section 29 of the NTA). There is a National Native Title Tribunal which seems to function well (but consider the front page of issue 317 of the National Indigenous Times, 26 June 2013, which reported on the need for “tougher conflict rules” for Native Title staff, on the basis of perceived links with corporations). As an example of the rules in action, the framework allowed the Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) to make a native title claim on land between Cape Byron and Broken Head, leading to a symbolic “lighthouse” agreement between the New South Wales state government and the Arakwal people for joint management of the Arakwal National Park. In an excellent exhibition, in the old accommodation at Cape Byron Lighthouse, there is an acknowledgement of the invigorating effect the original agreement and subsequent agreements have had on the indigenous population.

To counter-balance, a quick search on the internet indicates that “Indigenous Land Use Agreements” might not have a 100% fanbase amongst the First Peoples of Australia, with some discouraging involvement with them. In relation to government-issued mining licences, one Western Australian news outlet has critiqued a “loophole” in the NTA which favours mining companies over indigenous groups, leaving the latter in a difficult position when the former does not agree to a negotiated settlement. To quote WA Today, “Should they fail to reach an agreement, the ultimate ruler – the Native Title Tribunal – is almost certain to favour the miners. It has done so in all but one of 25 cases, and lawyers say the circumstances in that situation were so unusual it could not be considered a precedent.

Those reservations notwithstanding, it seems agreements between indigenous groups and others have a part to play in the land reform mix. To land reform activists in any jurisdiction, this must sound intriguing.

Lessons for Scotland?

Where to begin? There are many points of interest, yet equally there is limited scope to lift something from Australia and apply it in Scotland straight away. I offer these succinct thoughts.

Certain analogies with history might be drawn. The initial ALRA might be thought of as a location specific response for the Northern Territory, much like increased rights for crofters and re-settlement in congested districts was a location specific response in the Highlands and Islands. Since these measures were enacted, in both instances the land reform bug spread across a country. Perhaps that is an argument that internal lessons in land policy can be as important as external lessons in land policy, but that is something of a muse on my part. (It might just be borne out by the fact that the first Scots reforms, which took place in the Gàidhealtachd, tracked the Irish experience, which was then also part of the UK.)

Fast forward to the present, and the National Native Title Tribunal in Australia might find a certain analogy with the already existing Scottish Land Court, or it might be seen as something Community Land Scotland could look to when advocating a new Land Agency. Could something like Indigenous Land Use Agreements encourage what has already been happening informally (by way of so-called community benefit agreements) be put on a statutory basis, perhaps with a tribunal administering the process?

Other analogies might be inappropriate. Does Scotland have an indigenous population worthy of the special measures that now cloak indigenous Australians? Although some might regard this as controversial, the settled view seems to be no, except perhaps for the gypsy traveller community. Whilst some might argue Gaels can be characterised as indigenous to parts of Scotland, the intermingling of the population across the UK as a whole seems to make a Mabo type decision just a tad improbable, plus existing Scots (legislative) reforms have not exactly been made along ethnic lines and it would be tricky to do so now. Residency and community criteria have something of a track record and it may be that this will continue to be the case. I shall now leave that hot potato well alone. As for other analogies, I will leave them for the reader to draw.

Lessons for language?

As one final (non-legal) thought, the regular use of the word “custodian” in Australia reminded me of something I read back in Scotland in the context of our contemporary debate. That resource was the response of Scottish Land & Estates to the Land Reform Review Group’s Call for Evidence. The word features in the foreword, as a description of the role of the members of Scottish Land & Estates as landowners. Later in that document (in Appendix 6), the “George Street Research” into “Public Attitudes towards Estates in Scotland” noted that the term “custodian” might have “connotations of pretentiousness and ‘aloofness'”, but the term can be found again in Appendix 7. That appendix is the pro forma response for Scottish Land & Estates to gather information, which states, “Our members are responsible custodians of rural land…”.

Is there anything to draw from this? As a point of fact and law, it is of course correct that Scots landowners are custodians, in the sense that it is they who must comply with (e.g.) the Habitats and the Birds directives. As a point of interest, I wonder how many people would equiparate the traditional position of Scottish landowners and the traditional position of Aboriginal Australians as custodians.

Conclusion?

For those of you expecting a conclusion, I am afraid I have none. This blog has served as an exercise in organising my own thoughts and an attempt to draw together the Australian regime into a (fairly) understandable form. As noted above, there may be some lessons for Scotland or further afield, but it has to be recalled that land reform will always be a creature of circumstance and the circumstances of two jurisdictions will never quite be the same. That does not mean comparative law has no role to play, but it does mean comparative scholars need to be careful with what they draw from abroad.

Lastly, can [indigenous] Australia learn anything from this blog? I would be delighted if some lessons could be drawn, but I suspect this whole post has been framed around me learning from Australia. With that in mind, if any Australian readers see anything that seems wrong or that they disagree with, do please let me know.

White Australia, Black History

This blog was updated on 30 July, to include one more photo and a link to the “Mining giants accused of bullying indigenous groups” story. A second update on 1 August inserted the name of the dancing group, the Nunukul Yuggera Dancers.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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2 Responses to Custodians of Land – land reform in Australia and Scotland

  1. Pingback: IJCLE Conference 2013 – Sharing Across Models of Experiential Clinical Legal Education | basedrones

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