Week 9

Timeline

• The timeline includes key events such as:
  • 1787: Establishment of the Society for the Abolition of the Slave Trade in Great Britain.
  • 1807: Slave Trade Act passed in Great Britain.
  • 1807 (US): The World Act Prohibiting the Importation of Slaves.
  • 1814: Treaty of Vienna
  • 1833: Abolition of Slavery Act.
  • 1837: Queen Victoria
  • 1861: American Civil War.
  • 1872: Kidnapping Act.

Aboriginal Law and Lore

1. Aboriginal law encompasses norms recognized by Europeans as law, extending further to include 'proper practice,' the sacred, and 'the way,' also referred to as Lore.
2. Law was transmitted orally and expressed through stories.
3. The 'old people' or ancestral beings may be 'sleeping' in the landscape or sky and can become totemic animals, which is linked to the concept of The Dreaming.
4. Implications:
   • An Aboriginal people is considered the same substance as the landscape or totem, holding immense significance.
   • Law governs access to, management of landscapes, and treatment of species.
5. Kinship, marriage, and inheritance:
   • Moieties and section systems exist, including generational, patrimoieties, and matrimoieties, which may overlap.
   • Marriage generally occurs within a generational moiety but outside a patrimoiety or matrimoiety.
   • Overlapping moieties create 'sections,' necessitating skin-names.
6. Gendered law and responsibilities:
   • Men's business.
   • Women's business, such as Gummingurru.

International Legal Background

• English law, as it existed in 1828, is applicable in New South Wales according to the Australian Courts Act 1828 (UK).
  1. The sovereignty question revolves around the UK Parliament's authority to legislate for the area termed New South Wales.
  2. The accommodation question considers whether English law recognizes and coexists with the laws of the existing inhabitants.
• According to Hugo de Groot ('Grotius'):
  • 1494: Treaty of Tordesillas granted lands to Spain and Portugal by Papal decree.
  • 1609: Grotius publishes Mare Liberum (The Freedom of the Sea), advocating for a natural law theory of international law, asserting the freedom to trade for all and challenging Portugal's claims in the East Indies.
  • 1625: Grotius publishes De Iure Belli ac Pacis (The Laws of War and Peace).
• Accepted doctrine under international law of the 18th century:
  • If land was not possessed by a rival power, it could be claimed by:
    • Persuading Indigenous people to submit to overlordship.
    • Purchasing the right to settle from the inhabitants.
    • Taking unilateral possession based on first discovery and effective occupation.
  • Frost drew upon the Bible, Grotius, Pufendorf, and John Locke.
  • Standard interpretation of the British claim to Australia (Frost 1981, 1995).
• Views on Indigenous people:
  • Indigenous people were believed to be 'in a state of nature' (drawing on John Locke).
  • British claims relied on the perceived lack of agriculture.
  • Frost's perspective: 'The Aborigines had not enclosed the country to depasture herds and flocks, nor had they wrought an agriculture upon it…'
  • James Cook and Joseph Banks considered 'eastern New Holland was terra nullius'.
• English law on claiming territory:
  • Calvin’s Case (1608) stated legal principles regarding the rights of subjects under the Crown.
  • Royal Commission of 1665: land belonged to Native Americans until ceded or sold.
  • Beauchamp Committee questioned whether districts could be obtained by cession or purchase.
  • Blackstone: 'desert and uncultivated' land gave right of occupancy.
  • Lord Mansfield refuted Coke’s position.
  • Native American law remained in force after conquest until altered by the King.
  • Attorney-General Lord Northey: Charter of Connecticut not intended to dispossess the Native Americans.
• European view in the eighteenth century:
  • Christian Wolf: 'ownership is not lost by non-use'.
  • Emerich de Vattel:
    • Native Americans 'occupy more land than they would need under a system of honest labour'.
    • Newcomers could only settle on land which Native Americans 'have no special need of and are making no present and continuous use of'.
    • Enabled partial claim over hunter-gatherer lands only.
  • Conquest severely limited as a doctrine of acquisition.
  • The British proceeded to New South Wales on the same basis as North America.
  • The Pitt Government wanted Arthur Phillip to report on the number of inhabitants.
• Governor Arthur Phillip:
  • Encountered more people than expected.
  • Observed a lack of support for the British presence.
  • Had not ascertained the population.
  • Had not gained consent nor organized a treaty.
  • Colonial Office preoccupied with war with France.
  • Developed a new legal fiction: 'so sparsely settled as to be practically empty' (Borch).
• R v Murrell [1836] NSWSupC 35:
  • Defense argued New South Wales was not originally desert, not conquered, and not ceded.
  • Burton J stated Aboriginal people were 'not in such a position with regard to strength as to be considered free and independent tribes. They had no sovereignty'.

Myall Creek

• Myall Creek Massacre:
  • Only prosecution for a mass killing of Aboriginal people.
  • Governor Gipps and Attorney-General Plunkett wanted to emphasize that Aboriginal people were British subjects protected by British law.
  • Dangar’s Myall Creek station was located on the Gwydir River, New South Wales.
• Difficulties of prosecution:
  • Distance.
  • Willingness of manager to report.
  • Presence of local police magistrate and collection of evidence.
  • Intimidation of witnesses.
  • Identification of Aboriginal dead.
  • Intimidation of jurors.
• Trials:
  • First trial (15–17 November 1838):
    • Supreme Court: Dowling CJ and 12-man jury.
    • Prosecution centered on skeletal remains of 'Daddy'.
    • Jury: fewer than 20 minutes to find all 'not guilty'.
  • Second trial (27–30 November 1838):
    • Plunkett presented a second indictment for the murder of toddler 'Charley'.
    • Seven men tried.
    • New judge, Burton J.
    • All found guilty.
    • None expressed remorse – no grounds for clemency.
  • 18 December 1838: All seven men hanged.

The Melanesian Labour Trade

• Background:
  • Over 62,000 people from Melanesia were recruited to work on plantations in Queensland from 1863-1904.
  • Other sources of cheap labor (i.e., convicts) were no longer available.
  • Abuses included:
    • Abduction – ‘blackbirding’.
    • The murder of John Patteson, Anglican Bishop of Melanesia, on Nukapu, 1871.
    • Fraudulent enticement.
  • Public debate: was this slave trading?
    • Involved dark-skinned people.
    • Sugar and cotton plantations.
    • American Civil War context.
• Legal background:
  • Slave Trade Acts.
    • Slave trading on high seas = piracy: Slave Trade Act 1824 (UK), s 9.
    • Equipment clause: Slave Trade Act 1839 (UK), s 4.
  • Polynesian Labourers Act 1868 (Qld).
• The Daphne, Second Voyage 1869 traveled to New Hebrides, Loyalty Islands, New Caledonia, Tanna, Banks Islands, Ovalau, Levuka, and Santa Cruz Islands.
• The Seizure of The Daphne:
  • Stephen CJ commented on the Slave Trade Act 1839 (UK), s 4, noting it was intended for vessels engaged in the African slave trade, not those carrying free laborers in the Pacific.
• The Jason (1870-1) involved abductions from Epi and Nguna.
• R v Coath (1871) 2 QSCR 178:
  • Cockle CJ emphasized the importance of upholding the rights of Pacific Islanders to maintain the safety of commerce and the integrity of the law.
• Policing and Legislation:
  • UK Parliament eventually passed laws governing the trade.
  • Pacific Islander Protection Act 1872 (UK) (‘The Kidnapping Act’):
    • Included an equipment clause: s 16(2).
    • Inspectors were to be appointed to recruiting vessels.
    • Royal Navy patrolled the southwest Pacific.
  • The continuing employment of Melanesian labor was a controversial issue before Federation.
  • Planters opposed the looming White Australian Policy.
  • Deportations followed Federation.

Cooper v Stuart

• Cooper v Stuart (1889) 14 App Cas 286:
  • 1823: Governor Sir Thomas Brisbane granted an estate of 567 hectares in Sydney (Waterloo, Alexandria) to William Hutchinson, reserving the right to the Crown to reclaim four hectares for public purposes.
  • The Hutchinson family transferred the estate to the Cooper family.
  • 1882: The New South Wales Government exercised its power to reclaim four hectares to create a public park.
  • Sir Daniel Cooper claimed the reservation was void, being repugnant to the law of England: ‘The rule against perpetuities’.
• Legal Reasoning:
  • Lord Watson distinguished between colonies acquired by conquest or cession (with an established legal system) and those that were practically unoccupied (without settled inhabitants or law).
  • New South Wales belonged to the latter class.
• Cooper v Stuart – an Aboriginal perspective:
  • Example of ‘parcel by parcel’ dispossession, reflecting Victorian attitudes to First Nations.
  • Did not represent the prevailing international law on states’ acquisition of new territories.
  • Although overruled in Mabo v Queensland (No 2) (1992) 175 CLR 1 regarding native title to land and seas, Cooper v Stuart is perpetuated in the Crown's ‘radical’ title, which can extinguish native title.
  • Experience of Indigenous peoples in other parts of the Empire suggests that, even without Cooper v Stuart, the outcome might not have been significantly different. (Eddie Synot and Roshan de Silva Wijeyeratne).