Material origins

Chapter 4
Material origins


Since land formed the most valuable natural resource of a colony, the way in which the government permitted the public estate to be acquired and exploited by individuals materially influenced every aspect of economic and social development.

(Burroughs 1967: 1)

Participants in the rush adapted to variations in environment and tried to alter what they found. Some complications and harmful consequences should warn against simplified prescriptions for economic ills which assume that the practices of acquisition and allocation refined during the great land rush offer an ideal model for development throughout the world today.

(Weaver 2003: 6)

4.1 Introduction: alienation and maladaptation

The conceptual origins of modern property law and its theoretical model of persons and things were made real by physically separating people and place through dispossession and diaspora. These material origins of modern property law, with the enclosure of the English commons, made it possible to replace localised and physically responsive land laws with universalised and abstract land laws. This chapter examines the material origins of modern property law beyond England’s shores in what became her colonies. The model of persons and things that characterised modern property law in England was transported across the world through the project of colonisation. Thus, although the development of the property laws of England’s colonies have locally particular histories and functions – these laws remain ultimately and demonstrably alien and maladapted.

In Britain, changes to the landscape, notably the creation of enclosures and hedgerows were associated with improved land use practices and private property laws. The increased landholding and economic power of fewer individuals made possible large-scale commercial agricultural development. The prerequisite and parallel of this change was the dispossession of more than half the original landholders1 and the destruction of the peasant economy (Siemon 1994: 17). In addition to the relocation or removal of entire villages; the enclosure of open fields; the erection of physical boundaries; and public warning notices against trespassing; the law also protected private property by instituting game laws and prohibitions against gleaning and nutting. The social and ecological magnitude of these changes was profound. Those who had depended on common property rights became part of a different workforce – vital to the prosperity of the industrialised market economy. The ‘undeclared civil war between the British landed classes and their underlings’ (Hughes, cited in Flannery 1994: 346) increased conviction rates for new crimes against newly created private properties. Penalties for crimes against property, often transportation to distant penal colonies, provided a vital supply of human labour for the ‘improvement’ of lands beyond England.

Locke’s idea of labour worked against actual labourers by devaluing their former common landholding on the basis that common property was the same thing as uncultivated waste:

God gave the World to Men in Common; but since he gave it to them for their benefit, and the greatest Conveniences of Life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the Industrious and Rational (and Labour was to be his title to it).

(Locke 1988: 291)

Locke’s treatise presented private property as a universal and transcendental good. The cultivation of land signified progress only to the extent that practical improvement was linked to moral and intellectual improvement, which was implicitly an indicator of greater social improvement. The connection Locke drew between civilisation and private property presented private property as an achievement, a mark of a sophisticated society. Locke’s ideology of labour suggested that private property benefited not only the private proprietors but also and more importantly, the nation and the empire.

Hannah Arendt’s critique of Locke (1958) argued that the rise of labour was connected to a changing concept of nature. Nature was not an earthly reality, but a subject of process. The Lockean ideas of private property and labour were contingent on viewing nature not simply as the opposite of culture, but as something to be appropriated and transcended by culture. Other critiques of Locke’s property theory explored the extent to which Locke’s concepts of labour and law were instrumental justifications for colonisation

1 Between 1774 and 1874 more than 50% of original land holders lost all or part of their land through the process of enclosure (Neeson 1993: 242, 280).

and the unlimited accumulation of private wealth. Macpherson argued that Locke’s property theory belonged to what he called the ‘possessive individualism’ of early capitalism (1962). Arneil argued that Locke’s theorisation of private property ‘has specific historical roots in England’s colonisation of the new world’ (1994: 609). Locke’s property theory articulated and advocated both a new economy and the colonisation of foreign lands in the service of that economy. The application of Locke’s theory of property influenced, indeed characterised the ideology and function of the property laws of England’s colonies, variations between them notwithstanding.

The differences between the property laws of England and those of her colonies are clear in terms of doctrinal and socio-political variation. Colonial authorities, including courts, departed in significant ways from English doctrine in recognition of different local socio-political and geographic conditions. Thus, it is possible to view the property laws of British North America and Australia as distinctive, even unique in their historical development (Buck 1994, 1996; Edgeworth 1994; Girard 2005; Ziff 2005). But this view interprets local variations in land use practice and in the legal instruments regulating those variations, as definitive differences. The conclusion of leading comparative legal historians is that the differences between the property laws of England and her colonies, and indeed between the colonies themselves, were sometimes intellectual, other times socio-political but important differences all the same. It is true that one cannot overstate the differences between the socio-political conditions and intellectual debates of England and her colonies in many important ways, for example in regard to primogeniture (Buck 1996), dower (Girard 2005), conditional estates (Girard 2005) and mortgages (Buck 1994; Girard 2005): ‘Legal historians with interests in the evolution of property law in the colonies have begun to recognize the value in locating property law and rights within the broader political, social, economic and intellectual contexts of the societies in which they operated’ (McLaren, Buck and Wright 2005: 2). Yet, if we extend the analysis of the comparative historical development of property law in England’s colonies beyond the socio-political and intellectual contexts of the colonies to include the material conditions of the colonies including climate, rainfall, soil and native fauna and flora, a different conclusion emerges.

The concepts of property and proprietary interests in operation in England’s colonies were, despite colonial peculiarities, ultimately English: ‘English law provided a large repertoire of devices for transferring, subdividing, qualifying and encumbering interests in land’ (Girard 2005: 136) and these, for the most part, remain central to the property regimes of England’s former colonies. The property laws of the colonies were ‘really English transplants’ (Alexander 1997: 43). The law of mortgages and succession may have developed differently in different colonies, but the categories themselves and the values of land and natural resources on which they are founded were English and maintained. The economy and discourse of property in the colonies turned on the same hinges that supported the economy and discourse of property in imperial England. The idea that the land and its resources should be used intensively, even exhaustively, and that entitlement follows such usage is common to the property laws and land use practices of both England and its colonies. Specifically, the idea that land use should take the form of agriculture and pastoralism (in that order) was also common to both England and its colonies (Weaver 2003). These particular forms of land use required and encoded particular instrumentalist values of land. It was true that colonial laws varied according to different material conditions, distinguishing them from their imperial origins to some extent. Yet the underlying philosophy, the nature/culture paradigm, on which these laws were based was the same. Accordingly, this chapter argues that the property laws of the English colonies of Australia and British North America were better described as alien than local.

From the earliest days of their colonisation, there was an incongruity between the English ideology of property and its practicability in different environmental contexts. The climates and geographies of other countries did not always support intensive agriculture and/or pastoralism without substantial and ongoing changes to the landscape and hydroscape to render English land use practices possible and productive. Property law in the colonies was not responsive to its local environment. Rather than adapt an appropriate economy to the ‘new’ or local ecology and then adapt their law to suit, colonial property law was imposed with the old or foreign economy regardless of its propriety. Colonial land law was inappropriate – literally out of place.

Even where local conditions rendered the imposition of an alien regime of property difficult or impossible, such as intensive agriculture in the arid regions of Australia and the USA and in the colder and heavily forested areas of Canada, colonial property law remained essentially alien. Certainly minor changes were effected to surmount these difficulties. For example, the size of land grants in Canada was adjusted downwards to accommodate the physical obstacles to grants of large tracts of land. In Australia, the unlawful use and occupation of large tracts of land by squatters were eventually permitted in recognition of the physical obstacles to agriculture and control over the limits of settlement. However, the changes were designed to allow the logic of the alien property law to prevail, rather than collapse, in the face of the physical obstacles presented by different conditions. Colonial property laws adjusted English property law only as necessary to ensure their perpetuation. The law was not adapted to the land, the land was expected to adapt to the law.

In biological terms, actual or successful adaptation is the ‘alteration in the structure or function of organisms which enables them to survive and multiply in a changed environment’ (Macquarie Dictionary 1992). Thinking within the logic of the nature/culture paradigm it would have seemed unnecessary, if not unthinkable, that the application of English property law to foreign lands required its adaptation to different physical environments because the law was considered cultural. Culture was thought to transcend nature and, therefore, property law would not have been thought to be subject to material conditions and physical constraints.

However, as Kuhn contended, a paradigm can work only on the basis that it remains functional and meaningful. The nature/culture paradigm of modern property law depended on its ability to provide and regulate a viable and meaningful people–place relation. Property law functions ‘so long as the tools a paradigm supplies continue to prove capable of solving the problems it defines’ (Kuhn 1996: 76). The ability of colonial property laws to solve the problems and disputes defined according to the principles of private property have been challenged by disputes of its own creation. In the English colonies, native title claims and environmental obstacles to the outright application of private property ideals indicate the difficulty encountered by the use of English property law in non-English places:

At three disparate places – Upper Canada, New South Wales, and the Cape Colony – and in the satellite colonies of New South Wales, administrators addressed standard predicaments, ones like those encountered in the thirteen colonies and early republic; the presence of first peoples on frontiers; the operations of squatters and their disregard for government rules; the importance of occupation; the accumulation of land by speculators; the costs of mapping and organising the land; and the challenge of extracting revenues from settlers. The particular remedies were the unique outcomes of local politics and natural environments. At the same time, however, the shaping of property rights in roughly standard ways was a global phenomenon.

(Weaver 2003: 116)

The remedies of which Weaver writes were mostly partial and always temporary. The dispossession of Indigenous peoples; the concentration of vast tracts of land in the hands of the few; and subsequent environmental problems attributable to these initial ‘standard predicaments’ remain longstanding concerns of (post)colonial governments. The inability of modern property law to resolve the disputes and problems that it in part created in foreign lands demonstrate its maladaptation to those lands as well as its insistence on adherence to the thoughts and ways of the distant homeland.

Agriculture and the attendant practices of land clearing, tree felling, ring barking and intensive irrigation evidenced the colonists’ perception of the inadequacy of existing resources to accommodate their desires. Furthermore, these practices indicated the colonists’ sense of entitlement to and incognisance of the actual availability of foreign resources for appropriation. Colonial literature about land juxtaposes the ideas of improvement and waste. Theories of improvement and waste were central to the proposal and carriage of important property-related legislation pertaining to sovereignty, land grants, land transfers and pastoral squatting. British sovereignty was asserted on the basis that Indigenous peoples had not improved the land and were therefore undeserving of proprietorship. Land was granted to non-indigenous individuals on the condition that it was improved.

The colonists did not perceive themselves as newcomers or strangers to foreign lands, rather they perceived the lands as new and strange. The process of aligning the known and the strange was therefore an inverted process of adaptation – a process of maladaptation. The failure of colonists to successfully adapt their economy and laws to the lands they colonised was evident in the numerous instances of starvation; the protracted importation of vital supplies from their homelands; extensive degradation of the lands and waterways; and the extinction of native flora and fauna.

4.2 Ordering place: colonisation

The concept of exclusive property in land as a norm to which other practices must be adjusted, was now extending across the whole globe, like a coinage reducing all things to a common measure.

(Thompson 1991: 164)

The long and complex historical development of property law in England was unique to England. It could neither be preserved against the institutionalisation of English capitalism nor applied completely by an imperial government to its colonies. Instead, the regulation of land use and proprietorship in Australia and British North America assumed a specifically and necessarily colonial character. But it is important to recall that the colonies were never intended to be foreign to England and her interests but rather expressed the ‘interplay between the demands of imperial policies and the response of colonial conditions’ (Burroughs 1967: 1). It is precisely the ‘response’ or adaptation of property law to ‘colonial conditions’ that legal scholars and practitioners have argued defines the property laws of Australia, Canada and the USA as local in character.

This chapter contends, however, that local responses are not the same as local origins and that the claim that the property law in the colonies was local can only be made by comparison to English property law. If we go beyond a comparative doctrinal and socio-political analysis of the identity of colonial property laws and extend the scope of our analysis to the material conditions in which they operated, then a different and more comprehensive conclusion emerges. Colonial property laws were not always, technically, the same as English property law. Yet despite the fact that the former have, from the earliest days of colonisation, differed from the latter in significant ways, the ideological foundations of colonial property laws and their material consequences were far from local either politically or materially:

Studies of legislation and case law show local variations in the evolution of property rights. For example, the property rights to water on western American lands – a well-studied area – comprise a complicated tale of local and regional experimentation. However, just as significant for our story as the reporting of particular events is the delineation of underlying cultural values (and) of common technologies.

(Weaver 2003: 94)

Property law was one of the key technologies of colonisation and its values and concepts were indeed common to a variety of English colonies. The concepts of the exclusive possession and alienability of land that form the basis of private property law were exported from England via the umbrella discourse of improvement. The discourse of improvement was atopic – it lacked any reference to locality and place. This absence made possible the blanket enclosure of various English and Welsh commons and the replacement of locally relevant land laws with abstract property laws. As in the country of its origin, the use of the discourse of improvement in the property laws of the British colonies also lacked reference to geographic specificity. This was the primary reason for its failure to sustain itself over time. The discourse of improvement could apply only within the very particular geographic conditions of England including, importantly, fertile soils, the availability of plants and animals suitable (and available) for domestication and a temperate climate. The use of improvement discourse as the basis for land law in different geographic conditions would prove its undoing. By examining the failure of this discourse to adequately prescribe land use and ownership in different geographic conditions, it is possible to recognise the importance of locally developed and responsive land laws not only in cultural (and political) terms but also in ecological terms. Rather than adapt to the particularities and diversities of place, the discourse of improvement articulated a universal and atopic people–place relation. The universalism of the concepts of exclusive possession and alienability that characterise modern property law locate colonial property laws within the twin ideologies of English Enlightenment and empire. It is in this way, in their ideological rather ecological foundation, that the property laws of Australia and British North America can be defined as alien and maladapted.

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.

French linguist, Emile Benveniste distinguished between two modes of subjectivity or verbs of being, verbes d’état: ‘to have’ and ‘to be’. Benveniste uses these two modes, of being and of having, in his analysis of the relationships they describe between people. Extending this distinction to analyse relationships beyond those between people to those between people and place illuminates important differences between traditional and modern forms of property:

To be is, the state of that who is being, the one who is something. To have is the state of the possessor, the one for whom something is. The difference appears thus. Between the two terms it joins to be establishes an intrinsic relation of identity: it is the consubstantial state of being. On the contrary, the two terms joined by to have remain distinct … it is the relation between the possessor and the possessed.

(Benveniste, cited in Hage 1998: 139–140)

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).

The primary characteristic of the public law concept of sovereignty, like its private law counterpart property, is exclusive possession. As foreign lands were annexed, British sovereignty of those lands was constantly assumed and asserted. The land was regarded as always and everywhere Crown land. The assertion of sovereignty and jurisdiction by the British consistently underwrote the development of modern property law (Dorsett 2002; Kerruish 2002). The imposition of modern property law in turn made possible the notions of unlawful occupation of land by squatters and unlawful purchase of land from first peoples. Only the Crown could grant proprietary interests and negotiate, where necessary, with any pre-existing interest holders (Springer 1986):

Colonising governments punctiliously conceded property interests to first peoples on most frontiers, but then monopolised sovereignty. From that ascendant position, they insisted on their exclusive right to purchase from Indigenous peoples.

(Weaver 2003: 140)

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 dominium of Roman law comprised both the legal title and the right of actual beneficial enjoyment. In other words, dominium treated as conceptually inseparable the owner’s right to use, dispose of, and exclude others from, his property.

(Gray 1993: 34)

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 a Canadian case not dissimilar to the Attorney-General v Brown case in New South Wales, an intra-colonial property dispute between the province of Ontario and the newly formed Canadian state also hinged on the concept of sovereignty in regard to natural resources. Unlike the Australian case, however, the Canadian case, St Catherine’s Milling and Lumber Company v R (1888) 14 App Cas 46, was based on the status of ‘Indian’ tenure. Determined ultimately by the Privy Council, the case held that any interests held by the Indigenous peoples were not proprietary (property) but personal and usufructuary ‘dependent on the goodwill of the Sovereign’ (Young 2008: 126). As in Australia, one of the earliest cases in Canadian property law was decided by overt recourse to the ideas of sovereignty and exclusion. In both cases, the dispossession of Indigenous peoples was the condition of putting those ideas into practice yet, also in both cases, the articulation of the process by which that dispossession took place was absent.

The colonisation of North American lands similarly depended on the dispossession of first peoples. Unlike Australia and Canada, the imposition of British Crown sovereignty in America did not last long. The American Revolution ‘disposed of the crown and installed allodial tenure’ (Weaver 2003: 66). Yet the ideas of sovereignty and exclusion remained central to the establishment of modern property law in this jurisdiction too. Historian John Weaver writes that the distinction was abstract and concealed the similarity between the land laws and land use practices of Britain’s colonies, the revolution notwithstanding:

These were symbolic changes affecting few Americans, while practical ideas about land – the doctrine of improvement, squatters’ possession, the marketability of interests, and the quest for a complete but cheap bundle of rights – pervaded frontiers in both the United States and the British empire for a long, long time.

(Weaver 2003: 66)

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).

To the British, the signal of the availability of foreign lands, as wastelands in need of improvement and legitimising the assertion of British sovereignty, was economic. How were the lands used? Terra nullius was part of the narrative of the spread of a benign empire of improved people–place relations. The narrative mythologised conquest and imperialism as improvement and progress: ‘The cause of improvement and that of empire were closely inter-twined’ (Gascoigne 2002: 74). In Australia, the assumption of terra nullius formed ‘part of the mental furniture of the founders of New South Wales’ (Gascoigne 2002: 8). The phrase signified unimproved land that could rightfully belong to no one until, as Locke had said, someone ‘removes it out of the State that Nature hath provided … [and] mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property’ (Locke, cited in Gascoigne 2002: 8).

The following editorial in the Sydney Herald of 1838 well articulates the ideological coupling of cultural progress and agricultural improvement in England’s colonies. It also highlights the link between British sovereignty and private property in Australian law and culture:

This vast land was to them a common – they bestowed no labour upon the land – their ownership, their right, was nothing more than that of the Emu or Kangaroo. They bestowed no labour upon the land and that – and that only – it is which gives a right of property to it. Where, we ask, is the man endowed with even a modicum of reasoning powers, who will assert that this great continent was ever intended by the Creator to remain an unproductive wilderness? … The British people … took possession …; and they had a perfect right to do so, under the Divine authority, by which man was commanded to go forth and people, and till the land. Herein, we find the right to the dominion, which the British Crown, or, more properly speaking the British people, exercise over the continent of New Holland.

(cited in Rowley 1972: 37)

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:

The ethic of improvement – which had been so closely linked with agricultural growth through enclosure and the substitution of individual ownership in place of the common fields – heightened that sense of individualism which stood in such conspicuous contrast to the communal identity of Aboriginal culture.

(Gascoigne 2002: 12)

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:

Rather than depending on a few crops that could fail, they minimised risk by developing an economy based on a great variety of wild foods, not all of which were likely to fail simultaneously. Instead of having fluctuating populations that outran their resources and stared, they maintained smaller populations that enjoyed an abundance of food in good years and sufficiency in bad years.

(Diamond 1997: 309)

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:

Enlightenment thinkers of the late eighteenth century were generally inclined to explain human varieties in terms of evolutionary development. Hence the view that human society went through different phrases, the ultimate goal of which was the development of a society remarkably like that of the theorists of the Enlightenment.

(Gascoigne 2002: 148)

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.

At the centre of the legal discourse of terra nullius was the ideological juxtaposition of nature and culture and the privileging of the latter term. As Kerruish observed of terra nullius, it is certainly ‘ill informed, instrumental and justificatory in its function but also containing European ideas of savagery and civilisation. Such ideas, coming out of a particular culture, prefer their own, misunderstand other cultures, other ways of living in a landscape’ (Kerruish 2002: 281–282).

The English perspective of ‘ways of living in a landscape’ was that agriculture was the logical end point of cultural development. Palaeontologist David Horton described the view thus: ‘[S]ocieties evolve, and eventually they evolve into agricultural societies, and then comes civilisation’ (Horton 2000: 59). Locke went so far as to claim that the entire purpose of law and the state was the protection of property, implicitly as the means to define civilisation: ‘The great and chief end, of Men uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property’ (cited in Fitzpatrick 1992: 84–85). As Fitzpatrick points out, the regime of property was increasingly conflated with law because in the experience of the English, the joint arrival of agriculture and property and their combined articulation of a highly developed cultural order:

requires a complex and more intense regulation than the episodic assertions called for in the nomadic state; what is required is an explicit, permanently sustained ordering that is law. In the result the paradigm of law corresponds to the property relation.

(Fitzpatrick 1992: 84)

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:

The marks of civilisation, and consequent improvement, are everywhere visible, both in town and country – but the natives of the land remain unimproved, unenlightened, and almost as savage as we found them.

(cited in Gascoigne 2002: 162)

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:

Europeans have never learned to survive in Australia or New Guinea without their inherited Eurasian technology. Robert Burke and William Wills were smart enough to write, but not smart enough to survive in Australian desert regions where Aborigines were living.

(Diamond 2005: 321)

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:

The technology of law that colonisers introduced through sovereignty over frontiers exclude the habitat and social practices of first peoples, although those peoples had resolved conflicts and determined relations with respect to territory prior to contacts with Europeans. A one-way flow of concepts meant that when first peoples were approached about ceding property rights, even by scrupulous, sympathetic, and linguistically adept colonial agents, the parties bargained across a cultural abyss.

(Weaver 2003: 140)

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.