Property Law

Property Law

Introduction

Active citizenship in a liberal democracy may require an understanding of and mediation between cultural and legal difference. This week examines the role of disputes over land and land laws in the Australian colonies and the Commonwealth of Australia. Conflicts between indigenous peoples, pastoralists, farmers, miners and governments will be considered, as well as those between indigenous law and State, Commonwealth and international law. The topic focuses upon the different rights and the responsibilities for the land, with an emphasis upon competing conceptions of land, law and property rights. One of your tasks will be to analyze current debates over land and the impact of the High Court judgments in Mabo and Wik. These decisions were central in recognizing 'native title' to land in Australia and effectively changed the country's system of property law. Much of the recent debates over these issues involve controversy over the role of history, both in revising the accepted 'facts' of Australian history, and in the use of such revised history in the judgments of the High Court. In examining these issues you will consider further the doctrine of the separation of powers that governs the power relationship between the Commonwealth Parliament, the Government and the High Court.

Historical Background

The core of Aboriginal philosophy is their spiritual and material relationship to land. Land was and is central to Aboriginal way of life, their culture and their resource base. W.E.H. Stanner has described the difficulties that the English language confronts in trying to convey the meanings that Aboriginal people give to land:

No English words are good enough to give a sense of the links between an aboriginal group and its homeland. Our word 'home', warm and suggestive though it be, does not match the aboriginal word that may mean 'camp', 'hearth', 'everlasting home', 'totem place', 'life-source', 'spirit centre' and much else all in one. Our word 'land' is too sparse and meager. We can scarcely use it except with economic overtones unless we happen to be poets.

The Aborigines conceived of forces emanating from the land that bore and produced life of all kinds. Such powers were concentrated at especially significant sites such as wells, rocks-holes, waterholes, creeks, and trees.

The spiritual knowledge surrounding these places, the ritual techniques, the legends, the songs and interpretations that accompany them, were the property of individual members [male and female] of clans. Both men and women had the duty and privilege to use their inherited knowledge to tend these sites and the surrounding land. The land provided the matrix of existence and meaning for organic life, plants, animals, and people alike. The fulfillment of religious duties bestowed the right on those individuals in charge, and on the clan as a whole, to consider this piece of land theirs. Together these lands constituted the clan's estate. To be denied access to clan or tribal territories and sacred areas was to be deprived of vital natural, material and spiritual resources. Even today, where Aborigines have not visited their homelands for decades they ...