Having an INFORMED discussion-
NOT a Political strategy.

 

The Issues

The first thing that should become abundantly clear to anybody who reads the Split Decision of the High Court on Mabo 2 is the fact that there is absolutely no consideration of the pivotal point about historic land title - which is the 'lawful' authority under which such title was claimed/acquired.

It took me some time to find why this was so, and then I found it, tucked surreptitiously away in Brennan @33. Right under the heading "The acquisition of sovereignty"

According to the High Court decision, citing from the Seas and Submerged Lands Case in 1975,  "The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state."

Okay that’s cool! - It is what you would expect from a dictatorial monarchical system, telling the judiciary to FO when it comes to challenging the Crowns authority or decisions to take action outside the sovereign territory of the nation.

But apparently only on 'land acquisitions' - other international act are no so quarantined . - See the Tampa!

But this is not helpful to us, the citizens of Australia, in trying to determine from where England drew its authority to act in the way it did in 1770.

The High Court becomes a little bit more informative, Brennan @32, in the last para - Viz “…. the manner in which a sovereign state might acquire new territory is a matter for international law….”

Now that’s helpful and makes eminently good sense - to me any rate.

Things to do ‘legally’, for stuff external to a sovereign territory, would have to be governed by ‘laws’ that apply to those territories and the High Court has just told us that this authority is “international law”.

Then thankfully the High Court tells us also, Brennan @33, that according to

“E. Evatt, in the publication "The Acquisition of Territory in Australia and New Zealand" in (1968) - “International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty.

No other way is presently relevant.”

That’s great, were on the right track now, this will be a piece of cake from here, just grab a copy of the international law that was in existence in 1770 when Lieutenant James Cook took possession of a great swathe of the the East Coast of New Holland for King George 3rd of England and we can start from there to see the structure of the title for the land acquired in New Holland and held by the Crown of England.

So!

Here is a copy of Magna Carta. Relevant only to the history of England and of curiosity value only to 52 (of the total 195 sovereign nations) that are living under an adopted and retained to varying degrees, version of the English model of government; and

It took me about 30 minutes to locate a copy.

European nation under the authority of international law  seized lands in both North and South America, almost all of Africa, some of Asia, Australia and New Zealand and a swag of smaller islands - as colonies.

Now rather than list the sovereign nations that were conquered or occupied under this international law, it’s much more concise and useful to just list the ones that were not.

Japan; Thailand; Bhutan; Iran; Nepal; Tonga; China; Ethiopia; Korea;

9 out of the 195 listed sovereign nations of the planet were not affected by this international law, which means 186 nations were.

Given the United Kingdom alone took controlled of more than 36million square kilometers (mk2) or 24% of 149mk2 land surface of the planets, containing an estimated 50% of the then 1000 million global populations - It must be easy to find a copy of the relevant international law document.

But there is none!  No document that is! - No international law document - that can be discovered.

So if we have a copy of the Magna Carta, (1215) relevant to hardly anybody WHY don’t we have a copy of the international law referred to by the High Court (for 1770) ?

Well, there just isn't! A copy that is, - is the universal answer- Move no, next question!

But here is where the shamble get worse. Not only is there no document but actually there was no ‘international law’.  Only the ‘idea’ which lives in the mind of some people, - mostly lawyers.

So in 1770 when Lieutenant James Cook took possession of that swathe of East Coast of New Holland for King George 3rd despite what is stated by the High Court of Australia’s decision on ‘Mabo 2 ’(Brennan @33), there was no ‘international law’ in existence in 1770 - Full Stop.

In fact, there is still no ‘international law’ today, (2019), in terms of what constitutes the entity we call “law” as recognised and developed by the societies of this planet since the time of the Babylonians.

‘Law’ is not only a concept, it is an entity with shape and form and like every entity it has characteristics by which it can be recognised and known. BUT if it lacks those characteristics “…it ain’t what it says it is!”

If it doesn't ‘waddle’ like a duck, it does’t ‘quack’ like a duck, it may be a Penguin, but it ain’t a duck.

And please don’t take my word for it, who am I but a lowly citizen of this country, not trained by the legal profession, instead take the words of one who is:

"Since there is:

  • no supreme sovereign in international law, for in the eyes of the law all states are equal; and

  • there is no legislative body with authority to enact treaties; and

  • no compulsory judicial tribunal with power to issue a judgment in absentia and before which states are obliged to appear; and

  • lacking any international police force or other enforcing body,

it is often claimed that international law lacks the characteristics of a legal system and cannot be regarded as law."

Curiously I see that Brennan @36 abandons the term international law in favour of “ sovereignty recognized by the European family of nations under the enlarged notion of terra nullius,” thereby downgrading the term 'law' to now just a 'notion' and confirmation that correctly, it was just a “family affair” not international law?                            

Of course you can do and say whatever you like.

You can make up fairy tales and you can pretend the past can be changed. In practice the law does all these things, in spite of the predestinations of the most eminent scientist and philosophers.

For example physicists, using all the rigour of science say there is 'absolutely no possibility of ever going backwards in time travel or to intervene in an event which has passed' - but of course that doesn’t stop the alchemist of law from changing rocks into gold.

Since ‘law’ seems unwilling or unable to utilise the facility of science to review its own practices how about we do that for it.

Let’s look at the crucial components that would make up an entity called “law”

Firstly, all law must have a source of authority for its creation, whether it be:

  • some God;

  • a nebulous thing called the ‘law of nature' – (cited by Blackstone in the HC’s Mabo decision Brennan @35); or

  • a much more relevant, practical and scientific thing like ‘consensus from participants’

Secondly it must resile in a concrete entity capable of delivery of the required outcomes. [Implementation and management (including enforcement)]

Thirdly, and contingent upon the existence of the first two criterion, is that the function and operation of the system must, not just seen to be, but in fact overseen by, an independent umpire - devoid of bias and self-interest.

Then the test of how relevant; robust and competent any particular “law” is, can be judged by the degree to which it delivers on these criteria.

As to international law in 1770, it appears that perhaps for the first criterion it’s source of authority may have been say a ‘God’? - or Jesus Christ? (or was he just 1/3 of God? - Never did get my head around how that was worked out?)

It may have even been 'Moses’s Yahweh’? Or maybe even a duality? I doubt if it was 'Muhammad’s Allah’? or any of the 38 gods of the Babylonians or the 91 gods of the Mayans and so on.

Maybe it could have been the “law of nature”?

That would looks like a bit of a starter. So where do I find a copy of this “laws of nature” and when I find it, I take it that the “laws of nature” will not simply be a euphemism for the “laws of (my special brand of) gods”.

Perhaps given the fact it was 1770 and Europe had just gone through the Renaissance (the Age of Enlightenment) perhaps it was the consensus of the participants, option?

No, No, not just the participants who are going to apply the law but the participants to whom the law was to be applied - you know, the rest of the planet.

But of course we will never know because we don’t have the documents that would cites it’s 'source of authority'.

Suppose, just for the sake of fantasy, we agree that the source could have validly been any one of these authorities, let’s now turn to the second and co-dependent criterion - the august body charged with the implementation and management of the law.

I seriously doubt that it was a body created by the Peace of Westphalia agreement in 1648. That agreement only involved a handful of European nations and no august body was created to be the administrator.

No, not the League of Nations, with its measly 42 members – plus it was still a 150 years away.

No, not the United Nations with its little more impressive 77 members (of the existing 195 sovereign nations)  - plus it was a further 25 years on.

So who was it, this “legislative body with authority to enact treaties,”?

What! - There wasn't and isn’t any?

And what of the third criterion who is the “independent umpire”?

Again! There isn’t any either?

By the terms used in modern Australian law the adjudication criterion for international law was (and still is, -see the Paris Accord on climate change agreements) - “self assessable”.

In 1802 the Frenchman François Péron, of the Baudin expedition visited Botany Bay and reports to the French Government:

How can it be conceived that such a monstrous invasion was accomplished, with no complaint in Europe to protest against it? How can it be conceived that Spain, who had previously raised so many objections opposing the occupation of the Malouines (Falkland Islands), meekly allowed a formidable empire to arise to facing her richest possessions, an empire which must either invade or liberate them?"

So what are we to conclude of international law in 1770 - Well exactly the same as now! – It was, - if you want a job done and you have the muscle, - then do it yourself. ( See- USA and Iraq- 2003)

The biggest DIY so far in history since the Romans.

So the fact are - In 1770 there were obviously a number of European countries which had got together, negotiated and perhaps even come to some formal friends agreements, (although no actual documentation of this can be located) about how they would carve up the rest of planet, without resorting to conflict between themselves, over act of acquisition by group members.

Even now (2018) for supposedly binding International Agreements, sovereign entities who are not part of the process of drafting or making an agreement or have not opted in to become a part of the International community, responsible for it’s drafting, are not bound by such agreements.

Even those sovereign countries who have opted in to the agreements are not bound by them. See Australia’s treatment of legitimate refugees contrary to the signed international convention, on the subject to which they are a party. Also see again the Tampa.

And get this - if any of the parties breaks these binding agreement there is no lawful International body or mechanism to adjudicate and no body or system with capacity to implement punitive or enforcement action.

Hang on your wrong there buster, I hear you shout! What about the International Court of Justice? (ICJ)

Well there is of course such an entity  but it is not a law court as we understand them to be. It is a blend between a mediation organisation designed to try and assist nations to settle disputes without going to war, by recommendation and a name and shame game.

Their predecessor the Permanent Court of International Justice (PCIJ) was in existence before Germany went to war in 1939 and was in existence all the time the Germans were murdering millions of people for their religious belief and as best as I can find from research, never served on the German Nation during that time a summons requiring their attendance at court and no decision was ever made in their absentia.

All the muscle and power, that three major and two minor economic, industrial and military powers, could bring to bear, struggled for 5 years, to bring to an end Germany's Territory acquisition ambitions and humans carnage.

The IJC has no better a record.

When the United States of America got an adverse finding in 1986 overs its covert war against Nicaragua the United States picked up it's bat and went home, agreeing only to turn up if it felt inclined to do so.

Try doing that to an Australian 'law court' next time you don't like thier decision!

And what could the IJC do at that stage?

The United States was in 1986 unarguably the largest military power in the world. The ICJ had to rely upon the United Nations to enforce its rulings and the major powers of the planet (USA included ) all have a veto.

So nobody is ever going to force any world super powers to do or to obey, anything they don't want to.

Nothing about the ICJ is equivalent to the law courts within national sovereignties, as we know and understand them to be.

Even with the development of the United Nations with it's Security Council, there is no single authority or facility for this organisation to take enforcement action. Such a course of action is left up entirely to the volition of its individual members, acting either in a block or singly by themselves under the “Might is Right” principal.

And this is the current situation in 2019 some 250 years after the annexation of a portion of New Holland to England under the guise of “International Law”.

I’m not a lawyer but I’m pretty certain that the material in the High Court decision on Mabo, as it relates to International Law, was ‘hearsay’ evidence.

But all of this is purely academic, because I’m reasonably certain that the High Court of Australia was bound by a morphed version of the English law that provides that municipal courts have no authority to make a determination on acts of the Crown in relation to the acquisition of territory external to the existing sovereign area.

In plain English, the High Court could not consider the lawfulness of the way the landmass of Australia and of more relevance, the subject matter before the court, the Murray Island, was 'acquired' by England in the first instance and Queensland in the Second.

It needed to find another solution, this we shall look at later.

Murray Island

The Application of the PSEUDO LAW

Sovereign nations, not having any lawful authority to annex foreign portion of the globe, even had a major problem under the Pseudo Law when it came to Murray Island.

You see Cook, Captain that is, had had enough exploring by the time he got to Possession Island and no way was he going to try and navigate the Torres Straight, which had already acquired a reputation for being a treacherous strip of water, particularly after winding his way through the Barrier Reef and almost becoming marooned for life as a consequence.

One can naturally appreciate he had enough of this journey and wanted nothing more that to get back out into deep water. So the portion of new Holland that was excised to the King of England ranged between two flags, one at the bottom of the land mass at what is now Victoria (38 ° South) and  the other at the top of what is now Queensland (10°43'South)

Opps! sorry missed Murray Island! (Well actually all the islands north of Possession Island). Oh Bugger! Never mind lets go home.

The High Court decision goes on to reveal some of them.

Terra Nullius

The derivation and etymology of the term reveals, as everyone in Australia now knows thanks to Mabo, arouse from the Latin language and deriving from Roman law, meaning - ' land belonging to no one ‘

Hardly a very useful term for nations setting out to acquire land on the planet currently populated by about 500 million people.

So with the true facility of what law, if only it was one, has to offer in changing fantasy to fact or if you like a fallacy, a more obliging definition of Terra Nullius was needed.

But rather than invent a new term viz terra sorta nullius. They (the pseudo law makers) change more iron into gold or more correctly a ‘term’ into a ‘doctrine’

The doctrine of Terra Nullius.

The High Court cites, Brennan @33, Worcester v. Georgia, also Chapters III and IV of the publication “The Acquisition and Government of Backward Territory in International Law”, by Lindley, (1926 ) as a taste of the doctrine:-

 

 (1)…the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers provided:

  • the discovery was confirmed by occupation and

  • provided the indigenous inhabitants were not organized in a society that was united permanently for political action

(2)“…recognized the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest……”

(3)“…The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times …. for the acquisition of sovereignty over the territory of "backward peoples…”

(4)“…new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants…”

So terra nullius under the Pseudo Law doctrine now includes land occupied by:

  • barbaric people; or

  • non-Christians; or

  • non-European; or

  • non-civilised people; and or

  • non-cultivated by indigenous inhabitants.

So it seems on the surface, from these tasty morsels, set out in the High Court’s decision, that the authority of the ‘doctrine of terra nullius’ was accessible only to “European nations”.

So to exercise the doctrine of this pseudo law one needs to be a ‘European nation’. - Clearly Queensland in 1879 was and is still not (A European Nation) - and as such had no access to the facility of this "enlarged notion"- worthless at law as it is.

Next the doctrine of terra nullius contains a number of criterion but on the surface doesn’t indicate whether the criteria are conjunctive or disjunctive.

The worst application for Murray Island would be the disjunctive one so let’s examine the Murray Island case on that basis

barbaric people

It is doubted that the Murray Island people could be classified as ‘barbaric’ given the example set by the ‘European nation’  including England, during the Reformation with their burning people alive, disembowelled them and subjected them to horrendous tortures - one would have to be pretty grotesque to exceed that test of 'barbarism '- So - Not Applicable

non-Christians

The Murray Islanders at the time of annexation (1879) had an active Christian Church which had moved to the island some years earlier. Every possibility exists that at least some members of the community on Murray Island were Christians- So - Not Applicable

non-European

At the time of annexation not all people on the island were non-European. Missionaries and administrative staff were European – So - Not Applicable

non-civilised

At the time of annexation Murray Island people had in place all the hallmarks of civilisation in their social structure. Even individual ownership of land – So - Not Applicable

non-cultivated by indigenous inhabitants.

At the time of annexation there was ample evidence of not only the existence of land cultivation undertaken by the indigenous inhabitants but evidence of a long history of such– So - Not Applicable

So the annexation of the Murray Islands in 1879 by Queensland fails the test under the pseudo international law in existence on two accounts:

  • being exercised by a non-European nation (Queensland) ***; and

  • failing to satisfy the doctrine's test for a terra nullius criteria.

Common Law

The Magic Bullet

So let proceed, having cleared up the Pseudo International Law and Terra Nullius.

Brennan@32 tell us that :

“Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. "

So! That's good, even though the monarch won't let the courts have dominion over IT'S (The Royal IT) territorial acquisition powers and process, how about the courts decide they can handle what happen after that?

So! Brennan@32, goes on to tell us that:

“Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.

Hey, how about this for a plan!

Common Law in England had been applied to land after it has been "newly acquired" by the Crown, so why not say that "British common law" and "international law" when marching hand in hand around the globe, popped in the southern continent to say hello when the first fleet arrived and was invited to stay. - pretty cool huh!

This could be the godsend we were looking for.

But! - What does "international law" and your imaginary friend have in common? - Give up? Neither actually exists.

So lets recap where we are up to - at present.

(1) If there is no such entity as international law and the High Court seems prohibited from considering such a reality, what are the implications for common law accompanying it, in this situation?

Well:

(2) Surely the absence of the fundamental components, ("international law") necessary to create an entiry (common law) cannot be satisfied, then any premise which relys upon it existence, (common law) must demise from the lack of oxygen.

If you pull the stumps out from under a house, I have never seen it sit there by itself!

But the pretence endures - as cited by the High Court:

Brennan @25 'Stephen C.J. in Attorney-General v. Brown - (1847) stated the law to be –

“…..At the moment of its settlement the colonists brought the common law of England with them." - (In the same basket as their Black Pudding no doubt!)

Brennan @27 'Stephen C.J. in New South Wales v. The Commonwealth (1975)

".. the prerogatives of the Crown were a part of the common law..."

 And cited then: - Lord Watson in Liquidators of Maritime Bank of Canada v. Receiver-General (New Brunswick) (1892)

"…the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain"

But challenged by Brennan @ 28 is...

“The 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."

So upon this premises, the High Court of Australia determined that it had authority to consider the implications of common law to land use in Australia as a "consequences" of the acquisition of this territory by the King of England.

So it was under the power of Common Law not the historic misapplication of the concept of Terra Nullius which was the principal force driving behind the courts determination.


Post Script

Interestingly the Bill of Right (BoR) document of the United States of America references the existence of "Common law" for the Republic. Interestingly the Australian Constitution makes no mention of its existence. Why is this so?

America was initially occupied by the British, so according to the High Court of Australia the British 'common law' courtesy of "international law" arrived in that continent at that time of British colonization. As common law was not created by the USA Constitutional arrangements but recognized as in existence, by the BoR, it must have survived the War of Independence of 1875-83.

So maybe like the cane toad, once introduced into a territory, it remain, irrespective of the sovereign power in occupation, but to some degree at the mercy of the current occupiers as to it treatment.


A Closing Observation

The History of Land Acquisition

Where we have the benefit of written recorded history, in other places on this planet, you can see the previous behavior of the human species. The evidence clearly demonstrates the behaviour that was exercised, not just towards other species on the planet, but our own.

We even now have palaeontologists and archaeologists considering the possibilities that modern humans bred with and then conquered and possibly eliminated other hominids evolving on the planet at the same time as us.

And if you need any further convincing, just study any of the modern species living on this planet and you will see similar characteristics of

  • population expansion; and

  • migration into new geographical territories; and

  • elimination of competition; and

  • depletion of resources.

All a well recognised and well documented characteristics of evolution.

At what point of time in our evolution did we determine the 'moral' values upon which human behaviour must be judged and regulated?-

The most common answer to this question is that as we evolved we development the concept of 'religion'.

Religion being the word to define a set of beliefs about a higher level of authority (Criterion 1) which passes on to humans a set of codes, (Criterion 2) by induction or direct communication, and by which humans must live their lives by in order to find favours/rewards (good luck/being happy) or avoid retribution from that higher authority (bad luck/missery/damnation) (Criterion 3) , either for some, -during their lives and others- after their lives have finished.(Criterion 4)

It is still cogently argued today that as we make the transition away from 'historic' form of 'religious' belief, to a set of values that are colloquially termed 'humanistic', popularised by the term "human rights", that we have taken with us still, the original tenants that were conjugated under this prehistoric religious belief system.

In the absence of this facility the only other option that could be supported by philosophy would be consensus. That is a system where a commonly held values are arrived at by a consensus process.

Keeping in mind that consensus requires a negotiated outcome where all parties support the proposition.

Given that this process would be undertaken by humans, please don’t hold your breath waiting for an outcome.

Finally, for people living in 2019 with the benefit of the gigantic explosion of information, we can see the frailties of such a system with so many of the things considered to be a universal fact or truth relentlessly being demolished by advancing scientific based information.

All of these factors are issues for the Australian community to consider in grappling with looking to find a solution to perceived injustices in the lives of humans, BOTH - Yesterday and Today.

See the First Nation phenomena.

Warren Bolton

2019




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[Land upon Possession Island.]

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"Extract Cooks Diary"


Wednesday, 22nd. (August 1770) Gentle breezes at East by South and clear weather. We had not steer'd above 3 or 4 Miles along shore to the westward before we discover'd the land ahead to be Islands detached by several Channels from the main land; ……..At 4 o'Clock we Anchor'd about a Mile and a 1/2 or 2 Miles within the Entrance in 61/2 fathoms, … I landed with a party of men, accompanied by Mr. Banks and Dr. Solander, … Before and after we Anchor'd we saw a Number of People upon this Island… From the appearance of the people we expected they would have opposed our landing; but as we approached the shore they all made off, and left us in peaceable possession of as much of the Island as served our purpose. ….

Having satisfied myself of the great Probability of a passage, thro' which I intend going with the Ship, and therefore may land no more upon this Eastern coast of New Holland, and on the Western side I can make no new discovery, the honour of which belongs to the Dutch Navigators, but the Eastern Coast from the Latitude of 38 degrees South down to this place, [Possesion Island- 10°43'S] I am confident, was never seen or Visited by any European before us; and notwithstanding I had in the Name of his Majesty taken possession of several places upon this Coast,

I now once More hoisted English Colours, and in the Name of His Majesty King George the Third took possession of the whole Eastern coast from the above Latitude (38°00'S) down to this place (10°43'S) by the Name of New Wales, Together with all the Bays, Harbours, Rivers, and Islands, situated upon the said Coast; after which we fired 3 Volleys of small Arms, which were answer'd by the like number from the Ship.

This done, we set out for the Ship.

Lieutenant James Cook - Captain HMS- Endeavour
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Colonial Boundaries Act 1895 (Imp)


I know, I know, you want to say 'but what about the Colonial Boundaries Act 1895 (Imp)?' Well that's was English law not international law, all that it can do is remove the first obstacle of failure, the 'non-European nation problem'; it does nothing to remove the second - 'Failure to satisify the terra nullius conditions".
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High Court
Milirrpum v. Nabalco Pty. Ltd. - 1971


Faced with a contradiction between the authority of the Privy Council and the evidence, (contrary to that authority) his Honour (Judge Blackburn) held that the class to which a colony belonged was a question of law, not of fact .

Hopefully Not International Law
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