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Indigenous Rights, Morality, Estoppel & Mabo v Queensland

© Peter Zohrab 2005

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The famous Australian case of Mabo v Queensland (1992) ALR 1 (HCA) (which I will refer to as "Mabo") involves indigenous rights and morality -- and my point in this short article is that it also involves the notion of estoppel.

 

Indigenous

I have written elsewhere that there is no such thing as "indigenous rights", in the sense that we can never know that a particular group, race or nation are (historically speaking) actually "indigenous" in relation to a certain territory -- i.e. they may well themselves have replaced, or merged with, previous populations, on arrival as settlers or conquerors. Indeed, they may even have achieved their present apparently "indigenous" status as the result of genocide. What, in that case, would their moral claim to the land be ?

In any case, Mabo does not crucially involve the question of anyone being literally "indigenous", since the parties agreed that the islanders concerned had not always been present on the islands. The key judgement of Justice Brennan does use the term indigenous, but it is clear that he means it to refer merely to whatever people were living on the islands in question at the time that Europeans arrived.

 

Terra Nullius

The United Kingdom gained sovereignty over Australia (including the islands concerned), and the State and Federal governments of independent Australia have inherited that sovereignty. The issue in Mabo was what had happened to group and individual rights over land as a result of this change in sovereignty.

Literally speaking, terra nullius refers to land that is empty of human habitation, and such land has naturally been seen as available for human settlement (absent some international agreement to the contrary). However, the Western colonising powers developed the Extended Terra Nullius doctrine, according to which a territory which was populated by people who were deemed sufficiently economically and/or politically underdeveloped might also be considered terra nullius. This classification then meant that such a territory might be taken over as if it was uninhabited, and its land owned by individual settlers and groups of settlers. Under the other main methods of acquiring sovereignty, conquest and cession, the colonial power would normally be obliged to respect the property rights of the previous inhabitants.

 

Morality

Justice Brennan ruled in favour of the Islanders on legal, human rights grounds, but he approached this case largely from a moral standpoint -- which makes him a judicial activist. He states, on page 41 of the judgement:

"It must be acknowledged that, to state the common law in this way involves the overruling of cases which have held the contrary. To maintain the authority of those cases would destroy the equality of all Australian citizens before the law."

(We should note here, in passing, that, in fact, there is a close connection between human rights, morality and religion: this website is largely composed of attempts to force the human rights establishment of so-called "liberal democracies" to grasp the necessity of granting to men the same "equality before the law" that Justice Brennan saw himself as according to the islanders. The fact that this is so difficult is due to the fact that human rights proponents have in fact learned a closed set of allowable rights -- which includes women's rights but not men's rights -- and their subjective attachment to their moral sense of "human rights" includes the protection of "intrinsically innocent" women against "intrinsically evil" men as an important component.)

Justice Brennan engaged in some damage-limitation, explaining that, revolutionary as his judgement undoubtedly was, in terms of Australian law, it did not undermine what he called (on page 32):

"the skeleton which gives our land law its shape and consistency."

 

The Feudal Land-Tenure System and Estoppel

As Justice Brennan goes on to point out, the land-tenure system in Anglo-Saxon countries is derived from feudal origins. In 1066, as is well-known, the Norman Frenchman, William the Conqueror, crossed the English Channel and conquered much of Britain. What is less well-known, outside legal circles, is that he (in effect) declared Britain (which was already inhabited, of course) to be Terra Nullius, and took personal possession of the whole territory, delegating a limited form of ownership to his knights (including one of my ancestors), who could then delegate a no less limited form of ownership to their subordinates. This created a feudal chain, and dispossessed the previous Anglo-Saxon and Celtic owners, who the invaders no doubt considered somewhat primitive.

The term of art (i.e. technical legal term) Estoppel comes -- appropriately enough -- from the Norman French word "estouper" (= "to stop up"). According to the Oxford Dictionary of Law (fifth edition, 2002), it means:

"A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist. The denial must have been acted upon (probably to his disadvantage) by the person who wishes to take advantage of the estoppel or his position must have been altered as a result."

The paradox in Mabo is that the very feudal land-tenure system whose skeletal principles Justice Brennan was so keen not to disturb -- while abolishing the Extended Terra Nullius doctrine with respect to Australia -- was itself founded on the basis of that same Extended Terra Nullius doctrine!

It seems to me that Justice Brennan was estopped from denying the validity of the Extended Terra Nullius doctrine, for the reason that his denial amounted to a denial of the historical and legal basis of the whole Australian legal system and also for the reason that generations of settlers had acted, and a huge proportion of the economy of Australia was based upon the assumption that that doctrine was valid.

Justice Brennan points out that that doctrine was based partly on ignorance about non-European traditions of land-tenure, and no doubt he is correct about this. It is also true that it is a purely subjective matter what level of economic, political and/or technological development should be characterised as "primitive", and that it is far from obvious that being "primitive" (like being unborn) should give a person fewer rights than anyone else. However, the World is not a fair place, as both men and unborn children know -- or would know if (in one case) they weren't brainwashed and (in the other case) they were allowed to live to adulthood!

 

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