Material origins

4.2.1 Sovereignty and exclusion

The separation of people from place is described, in property law terms, as exclusive possession. The idea of exclusion is central also to its public law parallel: sovereignty. It is something discussed at length by legal scholar Peter Fitzpatrick in The Mythology of Modern Law (1992). Fitzpatrick argues that modern law defines itself by what it is not, a process he calls negative transcendence (1992: 10). He observes that modern law cannot define itself positively in terms of what it is. Law he argues, defines itself as universal, unified and ordered by setting these qualities against or in opposition to the qualities of law’s other: particular, diverse and disordered (Fitzpatrick 1992: 10). The law thus defines itself by the exclusion of the qualities of otherness. In addition to defining itself by what it is (or is not), modern law also defines itself by what it has. Exclusion is the consequence of possession and acquisition – it is not possible to exclude people from a place that one has not already acquired and of which one is, in legal terms, in possession.

Recalling its etymology, the word ‘property’ originally described the intrinsic relationship between a particular place and the person or people living there such that the two were mutually identified. People and place were ‘fused’ (Hage 1998: 139–140) in a ‘consubstantial state of being’. This sense of property or people–place relation described the mode of subjectivity that uses the verb to be. That is, people are (in) place. This mode of people–place subjectivity was evident in the poetry of John Clare in England (for example) and remains present in the scholarship, poetry, stories and songs of Indigenous Australians (see, for example, Neidjie 1989; Sveiby and Skuthorpe 2006; Watson 2002; Weir 2009) and Native Americans (see, for example, Blaisdell 2000; Swann 1996). This literature indicates a traditional form of property whereby people are connected to place to the extent that they are, in fact, identified by and with place: ‘We are not merely on and in the land, we are of it, and we speak from this place of Creation of land, of law’ (Watson 2002: 268). The modern usage of the word property is, however, atopic and lacks any reference to place. Here, people and place ‘remain distinct’ and separate. This sense of property or people–place relation describes the mode of subjectivity that uses the verb to have. That is, people have place. This mode of people–place subjectivity is evident in the theory and practice of modern property law. According to this form of property, people are regarded in the singular, person, or ‘the subject who has’ and place is regarded as a thing or ‘the object that is had’ (Hage 1998: 174).

William Blackstone wrote in 1765 that the benefit of private property was the ‘free use, enjoyment, and disposal of all his acquisitions, without any control or diminution’ (Blackstone 1966: 134). The right to private property was the right to deprive others of the place and its resources. Thus, the similarity between the modern individual of liberalism and the (feudal and) modern sovereign is that they both claim dominium:

The idea of dominium in private property meant that the private individual was as significant, if not more significant than the public: ‘So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community’ (Blackstone 1966: 135). The exclusion of others was the purpose of private property and also of imperial and national sovereignty.

The colonisation of Australia and the development of its property law indicated the importance of the concepts of sovereignty and exclusion. The Attorney-General of New South Wales successfully argued, in Attorney-General v Brown (1847) 1 Legge 313, that the Crown was entitled to mine and dispose of the coal on the land over which it was both sovereign and proprietor to the exclusion of all others. Against this argument, Windeyer, counsel representing the interests of Brown, the lessee of the land, argued that Brown was entitled to mine and dispose of the coal on the land he leased to the exclusion of all others. Both arguments were based on the idea of exclusive possession and an instrumental view of nature that was characteristic of the philosophies of classical political economy, notably those of Locke and Smith (see Harvey 2000: 121–131). Both arguments were claims to exclude all others from the land’s resources. Attorney-General v Brown was essentially a dispute between private and public sovereigns. Both parties insisted that their right to the property could not be shared, limited or controlled. The idea of property as being, fundamentally, the right to exclude all others was not disputed by either party in this foundational case in modern Australian property law. The case is most often taught and understood in terms of the relevance of the feudal doctrines of tenures and estates (Buck 1994; Edgeworth 1994). What is often overlooked is that although sovereignty and property are distinct concepts at law and although this case collapses that distinction, both concepts hinge on the overarching idea of exclusion. What is often overlooked is that regardless of whether the case was resolved in terms of sovereignty or property the outcome depended on the exclusion and dispossession of particular people from a particular place. The pre-requisite of intra-colonial disputes over property was the dispossession of local Indigenous people from lands that defined both their economy and their cultural identity.

In the years immediately prior to revolution, individuals and syndicates negotiated land purchases from the Indians against British instructions that prohibited the practice. These transactions, if disputed, were usually declared invalid on the basis that the Crown was the only source of proprietary interests in the colony. This rule was the source of one of the earliest leading cases of modern American property law, which, like Australian and Canadian case law, was an intra-colonial dispute over land. In Johnson v McIntosh (1823) 21 US 543 the court declared that the plaintiff’s purchase of land from the Piankeshaw ‘Indians’ was invalid and that the defendant’s interest, derived from state grant, would prevail. The reasoning of the case was based on the idea that property rights could only derive from sovereign grant or a transfer thereof and were ‘not to be unravelled by speculators’ (Weaver 2003: 139). The link between property and sovereignty was exclusion and in particular, the exclusion of traditional forms of property which maintained a connection between people and place. Sovereignty was principally an instrument of dispossession and disconnection of people from place.

4.2.2 Dispossession and progress

The assertion of British sovereignty in Australia and British North America dispossessed and disconnected people from place. Contrary to popular myth, British colonists never believed that the lands to which they travelled were unpopulated, only uncultured. The British asserted sovereignty by whatever means possible and realised, indeed hoped, that this would dispossess Indigenous peoples of their lands or at least of their use and control over the lands. The legitimisation of this process was important to the colonists but difficult – ideology proved vital. The Enlightenment idea of progress became the rationale of colonisation and the measure of civilisation. Progress was measurable in terms of land use and, as in England, land use of Australia and British North America was progressive only where it was intensively productive. ‘Improved’ and productive land use practice was the logical basis of private entitlement to property. The idea of terra nullius was, therefore, never one expressing the absence of Indigenous people from their lands. Terra nullius was ultimately a code for the absence of agricultural use of those lands, particularly intensive agriculture. Without this form of land use, the British saw no basis for property rights to that land: ‘Since resource exploitation figured centrally in all colonial empires, rudimentary recognition of native personal and property rights was universally eroded’ (Weaver 2003: 134).

The ‘belief in the possibilities of improvement’ was so pervasive that ‘in many ways it informed the terms on which Aboriginal–European relations were conducted’ (Gascoigne 2002: 167). Indeed, faith in the idea of improvement supplanted any rational approach to a comparison between the British economy and Aboriginal economies. The British appreciated neither the dependence of their own economy on specific geophysical conditions nor the fact that their economy was younger and untested by comparison to the one it had replaced when the commons were enclosed. Because of this incognisance, the British believed their economy could be transplanted to countries with entirely different geographical conditions and with it, the legal regime that facilitated and protected that economy – private property law. Property law and its person/thing model blinded the colonists to other regulatory models of people–place relations. There was no scope within the model for a thing to be a specific place or for a person to be a specific community whose identity and economy were defined by a specific place:

Indigenous Australian economies and the land laws that facilitated and protected them were very long established and very successful. These laws had, over a long period of time, gradually become adapted to a variety of local geophysical conditions. The aridity of the continent and the variability of rainfall meant that Australian economies could not have endured for as long as they did had they failed to do otherwise. Indigenous Australian economies certainly caused large-scale and long-term modification of the Australian environment and to suggest otherwise is ‘to deny their place in Australia’s ecological history’ (Kohen 1995: 137). Whether these adaptations of economy and law were ‘improvements’ or not, the fact remains that the environmental impact of Indigenous Australian economies had not, over 50,000 years, rendered them at the time of European colonisation anything other than sustainable and successful.

Scientists such as James Kohen (1995) and Jared Diamond indicate that Australian economies could not have relied on the yields of agricultural land use – the risk would have been prohibitive and unnecessary:

Had the English understood or been curious about the economies and laws of the Indigenous peoples of the lands that they sought to colonise, they may have learned the potential problems of introducing their own young and foreign economy and property law. They may have learned that economies are limited by the material conditions of their place of origin. However, the colonists did not perceive the differences between their economy and those of the peoples they colonised as products of geophysical contexts but of cultural contexts. More importantly, the colonists did not perceive differences as differences but as levels in a universal hierarchy. At the time Australia was colonised, the twin ideological forces of Christian theology and Enlightenment philosophy articulated the same vision of the unity of all humankind: ‘Christianity was adamant that all humans were descendants of common ancestors and this belief had survived increasing contact with non-Christian peoples’ (Gascoigne 2002: 148). Enlightenment philosophy similarly advanced the ideology of monogenism, indeed it was the condition of the possibility of progress and civilisation:

Captain Watkin Tench wrote in his account of the journey of the First Fleet to Botany Bay and the first 4 years of settlement that Aborigines were ‘children of the same omniscient paternal care’ and that ‘untaught, unaccommodated man, is the same in Pall Mall, as in the wilderness of New South Wales’ (cited in Gascoigne 2002: 148). The idea that Pall Mall man was biologically the same as Australian wilderness man meant that the differences between the English and Indigenous Australians could not be explained by differences in adaptations to local environmental conditions. Rather, the differences between them could only be explained by degrees of cultural progress.

Because the colonists ‘did not recognise these different but complex and highly functional sets of ways of living together and living with the land, they could claim that Australia was a terra nullius’ (Hodge 1999). Degrees of culture could explain differences between peoples’ economies and laws in terms of points on a scale. At the lowest point was savagery and at the highest point was civilisation. The differential term, culture, could be measured by proximity to nature. Thus ‘savages’ or ‘natural races’ stand in the ‘most intimate relations with Nature’ if not indeed ‘in bondage to Nature’ (Ratzel, cited in Head 2000: 36). Locke had said this in 1689 when he said that the savage was not ‘removed from the common state Nature placed it in’ (cited in Fitzpatrick 1992: 82). If nature were something from which people should be removed, then culture was something to which people should aspire: ‘The conception of “natural races” involves nothing anthropological or physiological, but is purely one of ethnography and civilisation. Natural races are poor in culture’ (Ratzel, cited in Head 2000: 36). The ‘primitive’ embodies nature by contrast to the ‘citizen’ who embodies culture.

The idea that private property was the signifier of civilisation was contemporaneous with the colonisation of lands and peoples in Australia and British North America. Culture could be signified not only by agriculture and private property in England, but also by colonial expansion. The colonist, like the private proprietor, was enlightened and cultured. The assessment of uncultured people was their wont of enlightenment: property and law. In 1840 the Adelaide Chronicle remarked that:

As the author points out, in asserting British sovereignty, claiming Australia a terra nullius and imposing a foreign economy and property law, the English relied on several markers of cultural progress. Land use was one, literacy another. But the things that were regarded as markers of cultural progress were, in fact, indicators of specific geophysical and ecological contexts. None of the ‘marks of civilisation’ was developed independently of geophysical and ecological contexts. Land uses and husbandry derived from Eurasian plants and animals, metallurgical knowledge, guns, steam engines and germs were ‘the end products of 10,000 years of development in Eurasian environments’ (Diamond 2005: 321). Importantly, none of those markers was appropriate for survival in foreign countries:

The problem was that although a different (and non-hierarchical) perspective on differences between indigenous and non-indigenous economies and laws was available, it was the perception of the colonists that mattered because they had a ‘monopoly on evaluation’ (Weaver 2003: 135). The contact between the British and the Indigenous peoples of Australia and British North America was not a dialogue:

In Australia, the Indigenous people’s interests in land were excluded from the development of colonial property law. In British North America, too, ‘the First Nations lay totally outside this dialectic’ even though ‘their property claims (were) seen as collective use-rights to particular territories or natural resources’ (Girard 2005: 122).

4.2.3 Waste and cultivation

Cultural progress was an abstract idea but it was not, apparently, an empty claim. Cultural progress was thought to be demonstrated and measured by relation to the state of nature that surrounded any given society. Cultural progress could be seen. Viewed as a landscape, improved and exploited land evidenced the labour of a society of advanced culture. Unimproved land to the contrary ‘was indicative of sloth and mismanagement’ (Gascoigne 2002: 71) and indicated a ‘backward’ or ‘primitive’ culture: ‘The most repeated justification for occupying frontier lands turned on a single word – waste: the waste of land, the waste of water, the waste of native labour’ (Weaver 2003: 149). Colonists claimed repeatedly over a very long time (arguably to the present day) that the Indigenous peoples were insufficiently industrious because they did not improve (meaning cultivate) the land and left it to waste.