‘NOT PURELY OF LAW’– THE DOCTRINE OF BACKWARD PEOPLES IN

MILIRRPUM

DANIEL LAVERY*

ABSTRACT

The terra nullius doctrine is commonly asserted to be the basis upon which Great
Britain claimed territorial sovereignty over eastern New Holland in 1788 and,
subsequently, the remainder of the Australian continent. However, in Milirrpum v
Nabalco Pty Ltd (1971) 17 FLR 141, in which the only comprehensive account in the
Anglo-Australian jurisprudence to examine this issue prior to the 1992 Mabo (No 2)
decision, it was not terra nullius which was declared to be the foundation but the
Doctrine of Backward Peoples, which posits that a territory inhabited by 'uncivilized
inhabitants in a primitive state of society' can be dispossessed by 'more advanced
peoples'. In this article, the unusual provenance and the ultimate integrity of this
Backward Peoples doctrine is explored, analysed and found to be of doubtful
legitimacy. Despite this, the Milirrpum decision had one remarkable feature, a finding
of fact that the indigenous Yolngu People had a system of law in 1788 which remained
extant and vibrant nearly 200 years after the assertion of British sovereignty. Their
system survived the assertion of British sovereignty and, most problematically, this
finding of fact threw the rarely-exposed constitutional common law foundations of
Australia, including the orthodox theory of British sovereignty over New
Holland/Australia, into stark relief.

I INTRODUCTION
The Gove Peninsula, on the northeastern coast of the Northern Territory of Australia,
is within the vast swathe of New Holland that was claimed by King George III as ‘Our
Territory of New South Wales’ and to which the Commissions issued to 'Captain-
General and Governor in Chief' Arthur Phillip RN were expressed to extend.1 The
Peninsula thus became, theoretically, part of the colony of New South Wales on 7
February 1788.2 However, this mattered not at all to the indigenous Yolngu People who
had resided there for many millenia. It took a century after the assertion of British
sovereignty before any grants of interests in land were made on the Peninsula. Then, in

* BA LLB(Hons) LLM PhD. Thanks to Richard Monypenny, Michael Drew and Jamie Fellows for their
helpful comments on drafts of this article. Please note the author is reporting on and discussing the views
expressed in the judgment and its surrounding jurisprudence, and is neither adopting nor endorsing these
views or doctrines.
1
Captain-General Phillip was first commissioned on 12 October 1786 and again on 2 April 1787. This
‘Territory of New South Wales’ was, in Evatt’s words, ‘an area vast in dimensions when compared to
Captain Cook's modest claim’ in 1770: see Elizabeth Evatt, ‘The Acquisition of Territory in Australia
and New Zealand’ in Charles Henry Alexandrowicz (ed), Studies in the History of Nations (Martinus
Nijhoff, 1970) 16, 27.
2
WG McMinn, A Constitutional History of Australia (Oxford University Press, 1979), 1-3. Popularly,
this is celebrated on 26 January but the present legal consensus is 7 February 1788; see the joint judgment
of Deane and Gaudron JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1, 78. For a more recent
acceptance of this date as appropriate, see Rrumburriya Borroloola Claim Group v Northern Territory
of Australia [2016] FCA 776, (30 June 2016) [43] (Mansfield J).

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 Daniel Lavery

1931 a large tract of the Gove Peninsula was reserved for the ‘use and benefit of the
aboriginal native inhabitants of the Northern Territory’ and named ‘the Arnhem Land
reserve’.3 It was only when Methodist missionaries set up at Yirrkala in north-eastern
Arnhem Land in 1935 – nearly 150 years after the assertion of British sovereignty –
that any Anglo-Australians resided permanently there.
Large deposits of bauxite were located north of Yirrkala and by the early 1960s these
areas were excised from the Arnhem Land reserve, and mineral leases were granted to
permit mining and refining of the bauxite and the necessary infrastructure, including a
township. The Yolngu People had not been consulted and had expressed their
opposition to the increasing development for some years, including presenting to the
Commonwealth Parliament bark petitions in 1963 requesting the cessation of these
activities. 4
Losing the political battle, in December 1968 the Yolngu People commenced an action
in the Supreme Court of the Northern Territory claiming a traditional proprietary
interest in the lands excised from the reserve for the mining operations. The Yolngu
sought relief against the leaseholder, Nabalco Pty Ltd, and the Commonwealth of
Australia. 5 After interlocutory proceedings in which the Commonwealth sought
summary judgment alleging the proceedings showed no cause of action failed, 6 the
matter proceeded to trial before Judge Blackburn in 1970.7
In the following, the arguments of the litigants are outlined, and the territorial
acquisition principles relied upon by Blackburn J in making his decision are
interrogated. It will be shown that his Honour’s reliance on his sources for these ‘not
purely of law’ principles was largely ill-founded and grave errors were made. Finally,
the impact on Anglo-Australian jurisprudence of the court’s one remarkable finding of
fact is examined. The finding that the Yolngu People retained a subtle and elaborate
system of laws and customs nearly 200 years after the assertion of British sovereignty
meant that the landscape of colonial New Holland/Australia could no longer be said to
'law'-less but rather seen to be populated by many such systems of laws cradled in many
hundreds of Indigenous societies like that of the Yolngu. The orthodox theory of British
sovereignty holds that the New Holland/Australian landscape was empty in 1788. Judge
Blackburn’s finding of fact in Milirrpum challenges that emptiness. It had forms in it:
human, jural, and societal. None of these forms is accommodated within the current
orthodox theory of sovereignty.
A The Arguments
The legal issue central to the proceedings was whether the Yolngu had a traditional
proprietary interest in the claimed land which was cognisable to the Anglo-Australian
common law. The Yolngu People alleged that they had been in continuous use and

3
Arnhem Land was ‘discovered’ and its coast mapped by Willem Joosten van Coolsteerdt (aka Colster)
in 1623. The term ‘discovery’ is used throughout this article in its technical sense under the
Occupation/Discovery doctrine in international law, not its ordinary sense of ‘the first to find or to find
out’.
4
The classic text which surveys the Yolngu People is Nancy M Williams, The Yolngu and their Land:
A System of Land Tenure and the Fight for its Recognition (Australian Institute of Aboriginal Studies,
1986).
5
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Milirrpum’).
6
This is reported as Mathaman v Nabalco Pty Ltd [1969] 14 FLR 10.
7
At the time of this judgment, Northern Territory Supreme Court judges were known as Judge: see
http://www.supremecourt.nt.gov.au/about/judges/former/blackburn.htm,
accessed 15 August 2016.

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

occupation of this land ‘time out of mind’. Their counsel, Woodward QC, in his opening
address, asked the court to note ‘the intense spiritual connexion between the aboriginals
and their land’:
They believe that the land was given to them by their spirit ancestors, and that their own
spirits came from the land and will return to it after their death.
Their relationship with their land is therefore timeless and it is inextinguishable. It is far
more real and significant in our submission than the ownership in fee simple, which is
the highest right recognized in our normal system of land tenure. 8
In the proceedings, there was no direct challenge by the Yolngu People to the assertion
of British territorial sovereignty over the relevant lands in 1788. The argument made
on the Yolngu's behalf, in essence, was that ‘sovereignty’ over and the ultimate title to
their traditional lands vested in the British Crown by reason of what Captain-General
Phillip did in pursuance of his Commissions at Port Jackson in early 1788. 9 Hence,
from that moment in time, the common law of England applied to all subjects of the
Imperial Crown, including the forebears of the plaintiff Yolngu, in New South Wales
and
at common law the rights, under native law or custom, of native communities to land
within territory acquired by the Crown, provided that these rights were intelligible and
capable of recognition by the common law, and were rights which persisted, and must be
respected by the Crown itself and by its colonizing subjects, unless and until they were
validly terminated.10
Their argument was one of communal native title, that the English common law in
migrating to New Holland as part of the Imperial constitutional common law carried
with it a doctrine that respected the customary proprietary titles of its indigenous
peoples.
The Commonwealth of Australia resisted the claim arguing that the Yolngu plaintiffs
could not establish as a matter of evidence that they held the same links to the same
land as their ancestors were said to have. And, in any event, it was argued that the
common law which arrived in New Holland in 1788 did not recognise any communal
aboriginal title. In essence, this reduced to an assertion that the Yolngu People were so
low in the scale of social organisation that their conceptions of rights, duties and of title
were not and could not be recognised in Anglo-Australian law. The Commonwealth of
Australia essentially adopted an argument accepted by the Judicial Committee of the
Privy Council in Re Southern Rhodesia in 1919, in which Lord Sumner stated:
The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes
are so low in the scale of social organization that their usages and conceptions of rights
and duties are not to be reconciled with the institutions or the legal ideas of civilized
society. Such a gulf cannot be bridged. It would be idle to impute to such people some

8
Milirrpum, above n 5, Transcript of Proceedings, Darwin, 25 May 1970, 4 (Woodward QC), (during
argument). Original spelling maintained.
9
In light of relevant international legal principles on effective control of territory, ‘there are problems’
with this conclusion according to Justices Deane and Gaudron; see Mabo (No 2) (1992) 175 CLR 1, 78.
Unless indicated otherwise, the term ‘sovereignty’ in used, inter-temporally, to mean the command of a
territory with no allegiance or duty owed to another outside that territory. It also accepted that this
sovereignty has both external and internal aspects; see the locus classicus in Australian law in New
South Wales v Commonwealth (1975) 135 CLR 337, 479-80 (Jacobs J).
10
(1971) 17 FLR 141, 149.

55
 Daniel Lavery

shadow of the rights known to our law and then to transmute it into the substance of
transferable rights of property as we know them.11
Any ‘system’ demonstrated by the Yolngu evidence, the Commonwealth argued, did
not have the necessary characteristics of a system of ‘law’ for an Anglo-Australian court
to recognise it as such. The ‘usages and conceptions of rights and duties’ of the Yolngu,
and their tribal organisation, were so low on ‘the scale of social organization’ as to be
ignored by the ‘institutions and legal ideas of civilized society’. Yes, this argument ran,
the Yolngu were human but were on the other side of an unbridgeable gulf, and thus
they were not rights-bearing humans. Essentially the Commonwealth argument was
that ‘such people’, being the uncivilised Yolngu, could not possess rights of property,
individually or collectively, known to the Anglo-Australian law. There was no ‘change’
of sovereignty to the British Crown because there were no antecedent sovereignties in
New Holland. The colony of New South Wales had neither been conquered nor ceded,
but ‘occupied’ and any native systems there were displaced. ‘And that’, according to
Solicitor-General Robert Ellicott for the Commonwealth of Australia, ‘was that’.12
The Yolngu claims failed in every major respect, save one. After a trial of over 50
days,13 Blackburn J found, as a matter of fact, he could not be satisfied that the Yolngu
plaintiffs had the same links presently to the contested land as those which their
ancestors had in 1788. And, in any event, Judge Blackburn determined the communal
native title claimed by these Indigenous persons was not recognised – and had never
been recognised – in Anglo-Australian law and, therefore, any claimed allodial rights
to, or interests in, land by any Indigenous inhabitants were unenforceable.14 The one
saving for the Yolngu People was the finding of fact by Blackburn J that the Yolngu
People, nearly 200 years after the assertion of British sovereignty, continued still to
possess and maintain an elaborate and vital system of traditional laws and customs
which ordered their society.15

II THE SOVEREIGNTY ISSUE

In the course of this 250 plus page judgment is the most comprehensive discussion in
the Anglo-Australian jurisprudence – to that time – of the basis upon which the British
asserted territorial sovereignty over New Holland/Australia. Although the issue was not
alive in the proceedings, Judge Blackburn was required to determine the basis upon
which territorial sovereignty was purportedly acquired by Great Britain in order to then
determine the circumstances of the arrival of European law on the shores of New
Holland in 1788.

11
[1919] AC 211, 233-34. This opinion of the Board was short-lived as it would appear to have been
repudiated in Amodu Tijani v Secretary for Southern Nigeria [1921] 2 AC 399 (PC).
12
This ‘memorable phrase’, used in the Solicitor-General's final oral submission on the interlocutory
summonses, is quoted in WEH Stanner, White Man Got No Dreaming (Australian National University
Press, 1979), 290.
13
The trial was conducted in Darwin and Canberra in 1970, and the judgment was handed down in Alice
Springs on 27 April 1971.
14
This conclusion was criticised by many commentators: see, for example, John Hookey, 'The Gove
Rights Land Case: A Judicial Dispensation for the Taking of Aboriginal Land in Australia' (1972) 5
Federal Law Review 83, and Bryan Keon-Cohen and Bradford Morse, ‘Indigenous Land Rights in
Canada and Australia’ in Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and the Law: Essays in
Memory of Elizabeth Eggleston (Allen & Unwin, 1984) 74.
15
(1971) 17 FLR 141, 267. This finding will be discussed below.

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

On this antecedent issue, Blackburn J candidly determined that the ‘philosophical’ basis
for the assertion of British territorial sovereignty over colonial New South Wales was
that ‘more advanced peoples’ can dispossess, as necessity demanded, ‘less advanced’
peoples.16 Unusually, the source of this ‘philosophical justification’ was not in the
Anglo-Australian legal discourse but in the jurisprudence of the incipient United States
of America. As the source of a principle centrally relevant to the British acquisition of
an approximate 3.0 million square kilometre portion of New Holland in 1788, the post-
Revolutionary writings of an American jurist is an unusual source.
A ‘Certain wide principles, not purely of law’
There can be little doubt that Judge Blackburn clearly understood the magnitude of the
task before him in addressing the issue of whether the Yolngu People possessed the
interests they claimed in the land, the first such assertion by an Indigenous people in
the Anglo-Australian legal system. At the outset of the judgment he stated:
There are great and difficult moral issues involved in the colonization by a more advanced
people of a country inhabited by a less advanced people. These issues, though they were
rightly dealt with as relevant to the matters before me, were not treated as at the foundation
of the plaintiffs' case. Had they been so treated, the case would have involved an
examination, not merely of some aspects of the dealings of some European people with
some aboriginal races over the last four hundred years (as it did), but of much of the history
of mankind.17
In his Honour’s assessment, therefore, ‘European people’ were the more advanced of
the human races and the ‘aboriginal races’ the ‘less advanced’.18
1 The first principle of acquisition of colonial territory
In addressing the Yolngu argument, Judge Blackburn sets out in his judgment what he
called the Principles applied to the acquisition of colonial territory. His Honour stated
that there are ‘certain wide principles, not purely of law, which must be set out as a
necessary background to a statement of the law applicable to colonial possessions’.19
The first of these ‘wide principles’ bears quotation in full as the balance of the judgment
rests substantially, if not wholly, upon it.
The first is a principle which was a philosophical justification for the colonization of the
territory of the less civilized peoples; that the whole earth was open to the industry and
enterprise of the human race, which had the duty and the right to develop the earth’s
resources; the more advanced peoples were therefore justified in dispossessing, if
necessary, the less advanced. Kent explains this principle shortly (Commentaries on
American Law, vol. III, p. 387): he mentions its earlier expression by Vattel, but as a
philosophical doctrine it no doubt had a longer pedigree. The Puritans of Massachusetts
looked upon it as the application of a command given by God at the Creation: Kent’s
Commentaries, vol. III, p. 388, note (a).20
Thus, the judge’s first principle of territorial acquisition is that ‘less civilised’ peoples
can be dispossessed, if necessary, in the furtherance of the duty and the right to develop
the planet’s resources, by ‘more advanced peoples’. This was a ‘philosophical doctrine’
of doubtless ancient pedigree, his Honour opined, and seemingly driven by a Christian

16
Ibid 200.
17
Ibid 149.
18
Please note the author is neither adopting nor endorsing these ‘not purely of law’ principles.
19
(1971) 17 FLR 141, 200.
20
Ibid (emphasis added).

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 Daniel Lavery

imperative. For the provenance of this ‘philosophical justification’ his Honour turns to
James Kent’s Commentaries on American Law, 21 which in turn is said to rely on the
writings of an early Swiss publicist, Emmerich de Vattel and also calling in aid the
creation beliefs of the early 17th century Puritans of the Massachusetts Bay Colony of
New England. Needless to say, these are unique sources of legal principle for a judge
of first instance in the Anglo-Australian legal system in the early 1970s to place reliance
upon. Yet Blackburn J stated that these three sources evinced both the expression and
the application of his first principle of colonial territorial acquisition.
The central reliance on the work of Chancellor James Kent by Judge Blackburn, given
the veneration in which the Chancellor is held in the jurisprudence of the United States
of America, and the sheer breath of this ‘philosophical doctrine/justification’ attributed
to him deserves investigation, and in focusing on Kent’s Commentaries on American
Law each of the lesser sources will be investigated.
(a) Reliance on Kent’s Commentaries on American Law
The citation of an American jurist, particularly a post-Revolutionary one such as
Chancellor James Kent, was a rare, perhaps then unprecedented, event by an Anglo-
Australian court in 1971 at a time when the apex of the judicial system was
incontrovertibly the London-based Judicial Committee of the Privy Council.
The much-revered Chancellor Kent published six editions of his Commentaries on
American Law during his lifetime.22 Upon his retirement as Chancellor (of Equity) of
New York in 1823, Kent was immediately appointed to a professorship at Columbia
College, now Columbia University, in New York City. Although his repackaged law
lectures were originally intended to be a single volume, the 1st edition of his
Commentaries on American Law, published over the period 1826 to 1830, ran to four
volumes, as did all subsequent editions in his lifetime.23
Blackburn J cites from Volume III of the Kent's Commentaries on American Law but
omits to nominate in his judgment upon which edition he was placing reliance. He does
note that Chancellor Kent was writing between 1826 and 1830.24 This would strongly
indicate that it was the 1st edition of Volume III, published in 1828.25
The year in which Chancellor Kent was writing is of no slight importance. This is
because during the first decades of the 19th century, as Kent was drafting, editing and
publishing his early editions, the then-fledgling United States Supreme Court was
asserting its role in the post-Revolutionary constitutional framework and, in particular,
developing the principles of the jural relationship between the newly-minted United
States of America and the Amer-Indian indigenous peoples within its still-expanding

21
James Kent, Commentaries on American Law (Clayton, 1st ed, Volume III, 1828) ('Kent’s
Commentaries, 1st ed, Volume III').
22
John Theodore Horton, James Kent: A Study in Conservatism 1763–1847 (D. Appleton-Century Co.,
1969), x.
23
Ibid. Chancellor Kent prepared all editions through to the 6th edition, which edition was published
posthumously in early 1848. The 1st edition of Volume III was in 1828, the 2nd in 1832, and successively
in 1836, 1840, 1844 and the 6th - and last under Kent’s personal authorship - in 1848.
24
(1971) 17 FLR 141, 202. This point will be developed fully below.
25
Kent’s Commentaries, 1st ed, Volume III, above n 21. The Special Collections section of the Law
Library of Columbia University in New York holds all six editions of Kent’s Commentaries in the
original. The library staff, in particular Whitney Bagnell, kindly allowed the author access to all these
editions. The pagination referenced by Judge Blackburn is different from the 1828 edition of Volume
III, but this can be explained if he were using a facsimile copy of the original edition, a common
occurrence.

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

boundaries. 26 That law was seminal and was being created in large part by the US
Supreme Court with John Marshall, known fondly in American jurisprudence as ‘the
Great Chief Justice’, leading it.
(i) Lecture L of the 1st edition
In the 1st edition of Volume III, in Part VI, Chancellor Kent discusses the law relating
to real property in the pre-Revolutionary colonies. The opening subject, in Lecture L,
is Of the Foundation of Title to Land. Kent notes the continued adherence to the theory
of feudal tenure, ‘that the king was the original proprietor of all the land in the kingdom,
and the true and only source of title’,27 a mainstay of common law real property.
However, this pure theory was undergoing a fundamental re-working in the incipient
jurisprudence of the United States in the early 19th century because this theory of feudal
tenure sat uncomfortably with the position of the indigenous peoples of North America,
where it was plainly acknowledged that their aboriginal title to their lands – which was
implicitly and immediately recognised in the Imperial constitutional law – was not
sourced in any Old World monarch.
Two US Supreme Court decisions prior to the 1st edition of Commentaries on American
Law, those of Fletcher v Peck28 and Johnson v M’Intosh,29 had made instructive
annexures to the pure feudal tenure theory. Speaking of the respective rights of the
European colonisers and the Amer-Indian peoples, Marshall CJ wrote in Johnson v
M’Intosh:
On the discovery of this immense continent, the great nations of Europe were eager to
appropriate to themselves so much of it as they could respectively acquire. [...] But,
as they were all in pursuit of nearly the same object, it was necessary, in order to avoid
conflicting settlements and consequent war with each other, to establish a principle
which all should acknowledge as the law by which the right of acquisition, which they
all asserted, should be regulated as between themselves. This principle was that
discovery gave title to the government by whose subjects, or by whose authority, it
was made, against all other European governments, which title might be consummated
by possession.
The exclusion of all other Europeans, necessarily gave to the nation making the
discovery the sole right of acquiring the soil from the natives, and establishing
settlements upon it. It was a right with which no Europeans could interfere. 30
In this Lecture L, Chancellor Kent upholds the continued adherence to the theory of
feudal tenure, even with respect to ‘Indian reservation lands’,31 of which the Indians
still retained the occupancy. Kent notes that the validity of a patent (land grant) had not
hitherto been permitted to be challenged on the basis that the Indian right and title had
not been extinguished. 32 Chancellor Kent then explains that the claims of European

26
For example, the purchase by the United States of America of the Louisiana Territory from France in
1803 almost doubled its area.
27
Kent’s Commentaries 1st ed, Volume III, above n 21, 307.
28
10 US (6 Cranch) 87 (1810).
29
21 US (8 Wheat) 543 (1823).
30
Ibid 595. This statement can be contrasted with that of Brennan J in Mabo (No 2) (1992) 175 CLR 1,
32, where this principle is considerably broadened to not merely regulate the European nations inter se
but also to operate to dispossess any inhabiting aboriginal peoples of any sovereignties.
31
The term ‘Indian reservation lands’ is here to be construed broadly as including all lands still occupied
by Amer-Indian Nations at this point in time and not merely to formal reservations of land made to them
under treaty or otherwise.
32
Kent’s Commentaries 1st ed, Volume III, above n 21, 308.

59
 Daniel Lavery

nations to the sovereignty of lands in North America, and to the ‘ultimate dominion’
over the Indian tribes, had been accepted by the American courts. The ‘solidity’ of those
claims, Kent wrote, had been ‘to a qualified extent, explicitly asserted by the courts of
justice in this country’. He then discusses the decision of Johnson v M’Intosh, which
he paraphrases:
The European nations which respectively established colonies in America, assumed the
ultimate dominion to be in themselves, and claimed the right to grant a title to the soil,
subject only to the Indian right of occupancy. The practice of Spain, France, Holland, and
England, proved the very general recognition of this principle. The United States adopted
the same principle, and their exclusive right to extinguish the Indian title by purchase or
conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances
required, has never been judicially questioned. 33
Chancellor Kent then discusses the basis of European sovereignty over the Indians and
their lands, asserting the practicality and justice of this ‘qualified dominion over the
Indian tribes’. Addressing the grander question of the ultimate (or radical) title, he does
justice to the 1823 decision upon which he is commenting by unequivocally asserting:
But while the ultimate right of the American governments to all the lands within their
jurisdictional limits, and the exclusive right of extinguishing the Indian title by possession,
is not to be shaken; it is equally true, that the Indian title by possession is not to be taken
from them, or disturbed, without their free consent, by fair purchase, except it be by force
or consent.34
This 1st edition of Volume III of 1828 then continues on to state:
If the settled doctrine on the subject of Indian rights and title was now open to discussion,
the reasonableness of it might be strongly vindicated on broad principles of policy and
justice, drawn from the right of discovery; from the sounder claim of agricultural settlers
over tribes of hunters; and the loose and frail, if not absurd title of wandering savages to
an immense continent, evidently designed by Providence to be subdued and cultivated, and
to become the residence of civilized nations. 35
The ‘settled doctrine’ to which the chapeau refers is the incipient doctrine of aboriginal
rights that the US Supreme Court, in Johnson v M’Intosh in particular, had endorsed
unanimously. The ‘If’ is explained by the fact that the Court, led by Chief Justice
Marshall, had stated this doctrine to be the law of the United States of America. The
US Supreme Court had rested its enunciated principles on a foundation other than that
which Chancellor Kent believed to be ‘the sounder claim’, the one ‘evidently designed
by Providence’. The ‘absurd title of wandering savages’ of which he wrote had been
upheld as having to be lawfully acquired ‘from the natives’ by the nation's highest court
on two fronts: their sovereignty over their territories must be gained by Conquest or
Cession (whether original or derived) and then their aboriginal (or native) title in the
land must also be lawfully acquired. The doctrinal basis of the ‘Indian rights and title’
was ‘settled’ by the Supreme Court, and was not ‘open to discussion’, but the retired
Chancellor was still asserting an alternative view.36 This discussion in the 1st edition, in
essence, is an ex-cathedra dialogue with the US Supreme Court.

33
Ibid 309.
34
Ibid 311-12.
35
Ibid 312 (emphasis added).
36
It must be said in Chancellor Kent’s defence that much of what the US Supreme Court stated in
Johnson v M’Intosh, although unanimous, was obiter dicta. The Chancellor thus had room to continue
to urge an alternative theory.

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A sense of the temper of this particular discourse, and the influence of Vattel, an early
publicist in the development of the modern Law of Nations, can be gleaned from the
Chancellor’s next passage in which his alternative doctrine is outlined.
Erratic tribes of savage hunters and fishermen, who have no fixed abode, or sense of
property, and are engaged constantly in the chase or in war, have no sound or exclusive
title either to an indefinite extent of country, or to seas and lakes, merely because they are
accustomed, in search of prey, to roam over the one, or to coast the shores of the other.
Vattel had just notions of the value of these aboriginal rights of savages, and of the true
principles of natural law in relation to them. He observed that the cultivation of the soil
was an obligation imposed by nature upon mankind, and that the human race could not
well subsist, or greatly multiply, if rude tribes, which had not advanced from the hunter
state, were entitled to claim and retain all the boundless forests through which they might
wander. If such people will usurp more territory than they can subdue and cultivate, they
have no right to complain, if a nation of cultivators puts in a claim for a part.37
Borrowing from the work of the Scottish loyalist and latter-day Vattelian advocate,
George Chalmers,38 Chancellor Kent writes that the ‘aboriginal savages’ had ‘no fixed
abodes’, no ‘sense of property’ and ‘no sound or exclusive title’ to the territory over
which they merely ‘roam’. Chalmers had written in his Political Annuls:
No conquest was ever attempted over the aboriginal tribes of America: their country was
only considered as waste, because it was uncultivated, and therefore open to the occupancy
and use of other nations. Upon principles which the enlightened communities of the world
deemed wise, and just, and satisfactory, England deemed a great part of America a desert
territory of her Empire, because she first discovered and occupied it.39
This is an expansion of the ancient doctrine of Occupation/Discovery – which applied
only to the acquisition of territorial sovereignty of an uninhabited territory – to
territories occupied by the indigenous peoples of the New World. Such Indigenous
territories were considered ‘waste’, being uncultivated, and therefore sovereign-less
and ownerless, and so open to Occupation by the enlightened European nations. This
purported extension of the doctrine of Occupation has been euphemistically referred to
as the Occupation of Backward Territories40 or, more accurately, the Occupation of
Backward Peoples doctrine. 41 Dr Lindley in his thesis, The Acquisition and Government

37
Kent’s Commentaries 1st ed, Volume III, above n 21, 313.
38
George Chalmers, Political Annals of the present United Colonies from their Settlement to the Peace
of 1763 (Private Publication, 1780). This work, styled Book I, covered the British colonisation in North
America to 1688. It was to have been followed by another volume, intended to cover the remaining
period to 1763, which never appeared. Consequently, Book I pays no attention to the most important
Imperial document of the era in Great Britain's North American territories, King George III's Royal
Proclamation of October 7, 1763.
39
Ibid 28. As we shall see, Chalmers was likewise attempting to massage the British North American
colonies into Sir William Blackstone's nomenclature of 'desert and uncultivated' plantations.
40
MF Lindley, The Acquisition and Government of Backward Territory in International Law (being a
treatise on the law and practice relating to colonial expansion) (Negro Universities Press Reprint (1969),
first published Longmans, Green & Co (1926)). In the oddest of Prefaces, given the title of his thesis,
Lindley confesses that the term ‘backward territory’ is ‘not one known to the International Law’; Preface,
v.
41
Later in time, Brennan J in Mabo (No 2), said of this Occupation of Backward Peoples doctrine: ‘To
these territories the European colonial nations applied the doctrines relating to acquisition of territory
that was terra nullius. They 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’: Mabo (No 2) (1992) 175 CLR 1, 32. Later, at page 36,
Brennan J referred to this particular doctrine as ‘the enlarged notion of terra nullius’.

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 Daniel Lavery

of Backward Territory in International Law, says it is not ‘possible or desirable to give

it an exact definition’:
At the one extreme, it may perhaps be said to be marked by territory which is entirely
uninhabited; and it is clearly includes territory inhabited by natives as low in the scale of
civilization as those of Central Africa. On the other hand, all that can be said as to its upper
limits probably is that it is obviously intended to exclude territory which has reached the
level of what is sometimes known as European or Western civilization. 42
In discussing the ‘territory inhabited by natives’, Dr Lindley paints in broad strokes:
those ‘as low in the scale of civilization as those of Central Africa’ are ‘backward’,
while those who have attained ‘the level of what is sometimes known as European or
Western civilization’ are not.
It needs to be perfectly understood that this purported expansion of the
Occupation/Discovery doctrine to ‘backward peoples’ and ‘rude tribes, which had not
advanced from the hunter state’ as stated by Chancellor Kent is both belated and bested.
The Chancellor’s passage is a passionate rendition of Emmerich de Vattel's ‘just
notions’ in relation to the ‘value’ of the ‘aboriginal rights of savages’, albeit engorged
by Chalmers,43 but was not a statement of any extant principle of post-Revolutionary
American law, or of the pre-Revolutionary Imperial constitutional law or practice, or
of international law or practice. Certainly, the John Marshall-led US Supreme Court
did not accept or adopt the abstracted philosophical arguments of the retired Chancellor
Kent, of a sole Swiss jurist, or of Chalmers’ surfeited rendition of the British North
American experience, into its jurisprudence. To the contrary, it wholly repudiated them.
Far from disregarding the ‘aboriginal rights of savages’, the US Supreme Court had
upheld the ‘loose, frail if not absurd’ aboriginal title of the Indian nations and, indeed,
their independent sovereignties. The American jurisprudence makes no distinction
between ‘backward’ and ‘non-backward’ peoples.
Despite favouring the ‘just notions’ of Vattel over the doctrine of aboriginal rights being
fashioned by the US Supreme Court, Chancellor Kent's scholarship cannot be
impugned. He clearly states the relevant law as declared in Johnson v M’Intosh and
then passionately argues an alternative theoretical basis based principally – but loosely
– on the 17th century writings of the publicist Vattel.
(ii) Lecture LI of the 2nd Edition
Importantly for both Chancellor Kent in the moment and Judge Blackburn a century
and a half later, the US Supreme Court had not yet finished developing the doctrine of
aboriginal rights. Between the publication of the 1st edition of Volume III in 1828 and
its 2nd edition in 1832, the important decisions of Cherokee Nation v Georgia44 and
Worcester v Georgia45 were decided by that court.46

42
Lindley, above n 40, v.
43
It is a hyperbolic version of Emmerich de Vattel's work. Vattel only ever argued that ‘part’ of the vast
territories of the aboriginal peoples of the New World might be acquired and then settled by European
colonists. Moreover, Vattel commended cession/treaty as the appropriate means of acquiring those parts
of the New World territories, not unilateral annexation or conquest.
44
30 US (5 Peters) 1 (1831) This was the first case with an indigenous party in USSC jurisprudence.
45
31 US (6 Peters) 515 (1832).
46
These decisions are known as the second and third tranches of the Cherokee Nation trilogy, the first
being Johnson v. M’Intosh in 1823.

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

For James Kent in retirement, revision was less a task than an inveterate habit.47 In the
2nd edition of Volume III published in 1832, these newer decisions of the Supreme
Court are faithfully rendered in detail, with an additional generous commentary.48
Lecture L of the 1st edition becomes Lecture LI in the 2nd edition and, given the activity
of the Supreme Court, the text of the revised Lecture LI almost doubles in size. 49 Having
discussed the now decade-old Johnson v M’Intosh decision in this 2nd edition,
Chancellor Kent adopts an ominous tone in introducing the latterly decisions.
This is the view of the subject which was taken by the Supreme Court in the elaborate
opinion [of Johnson v M’Intosh] to which I have referred. The same court has since been
repeatedly called upon to discuss and decide great questions concerning Indian rights and
title; and the subject has of late become exceedingly grave and momentous, affecting the
faith and character, if not the tranquillity and safety, of the government of the United
States.50
The Chancellor's language is guarded for it is not to be doubted that the issue was still
politically explosive at the time of his writing. It is evidenced, perhaps apocryphally,
by the famous rejoinder of President Jackson when he learned that the State of Georgia
was defying the ruling of the Supreme Court in Worcester v Georgia in early 1831:
‘John Marshall has made his decision; now let him enforce it’.51
Chancellor Kent chronicles that a majority of the Supreme Court in Cherokee Nation v
Georgia held that the Cherokee Nation was not a foreign state:
But it was admitted that the Cherokees were a state, or distinct political society, capable of
managing its own affairs, and governing itself, and that they had uniformly been treated as
such since the settlement of our country. The numerous treaties made with them by the
United States, recognise them as a people capable of maintaining the relations of peace and
war, and responsible in their political capacity. Their relation to the United States was
nevertheless peculiar. They were domestic dependent nations, and their relation to us
resembled that of a ward to his guardian; and they had an unquestionable right to the lands
they occupied, until that right be extinguished by a voluntary cession to our government. 52
Chancellor Kent discusses the next decision, Worcester v Georgia, in even greater
detail stating that the Supreme Court ‘reviewed the whole ground of controversy,
relative to the character and validity of Indian rights within the territorial dominions of
the United States’.53 With the deftness of an advocate who senses the court deaf to a
particular line of argument, Chancellor Kent now concludes that this decision ‘was not
the promulgation of any new doctrine’ because ‘the several local governments, before
and since our revolution, never regarded the Indian nations within their territorial
domains as subjects, or members of the body politic, and amenable individually to their
jurisdiction’:

47
See Horton, above n 22.
48
James Kent, Commentaries on American Law, Clayton, 2nd ed, Volume III, 1832, 381 (Kent’s
Commentaries, 2nd ed). Subsequent editions during Chancellor Kent’s lifetime hold fast to the format of
this 2nd edition.
49
Lecture L is 13 pages in length, which in Lecture LI in the 2nd edition expands to 24 pages.
50
Kent’s Commentaries, 2nd ed, Volume III, above n 48, 381.
51
Quoted in Felix S Cohen, ‘Original Indian Title’ (1947) 32 Minnesota Law Review 28, 41. Andrew
Jackson, US President from 1829 to 1837, is called the ‘old Indian fighter’ in Joseph C Burke, ‘The
Cherokee Cases: A Study in Law, Politics, and Morality’ (1969) 21 (3) Stanford Law Review 500, 503.
52
Kent’s Commentaries, 2nd ed, Volume III, above n 48, 382.
53
Ibid 383.

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 Daniel Lavery

They treated the Indians within their respective territories as free and independent tribes,
governed by their own laws and usages, under their own chiefs, and competent to act in a
national character, and exercise self-government and while residing within their own
territories, owing no allegiance to the municipal laws of the whites.54
Then, critically for our purposes, his discussion in the 1st edition of Volume III of an
alternative theoretical basis for the territorial acquisitions in North America based on
the Occupation of Backward Peoples notion, is wholly discarded. Chancellor Kent’s
2nd edition of Volume III contains no such passages. The purportedly ‘sounder’ theory
publicised by Vattel, the theory embraced by both George Chalmers and the Chancellor,
is edited from the 2nd edition of Volume III of the Commentaries on American Law by
James Kent himself. The ‘[e]rratic tribes of savage hunters and fishermen’ in the 1st
edition become ‘distinct political societies’ and ‘Indian nations’ in the second.
(iii) ‘Loose opinions’ and ‘latitudinary doctrines’
The US Supreme Court, in what was now a chain of relevant authoritative decisions,
had scotched any such alternative theory proposed by Chalmers and advocated by Kent
beyond continued plausible advocacy. Indeed, in Worcester the US Supreme Court
stated that it was difficult to understand that European nations could have any lawful
or original claims of dominion over the Amer-Indian nations or their territories under
the Doctrine of Occupation/Discovery:
It is difficult to comprehend the proposition that the inhabitants of either quarter of the
globe could have rightful original claims of dominion over the inhabitants of the other,
or over the lands they occupied; or that the discovery of either by the other should give
the discoverer rights in the country discovered which annulled the pre-existing rights of
its ancient possessors.55
Instead, these two later Cherokee Nation cases continued to substantially buttress the
doctrine of aboriginal rights in American jurisprudence and to enunciate the broad
principles by which the incipient and still-acquisitive American nation would
juridically accommodate these indigenous Amer-Indian nations within the territorial
sovereignty of the expanding United States of America.
Chancellor Kent had lost his ex-cathedra debate with the US Supreme Court, and in his
2nd edition, he clearly acknowledges this in his discussion of these newer cases, and
particularly so in this passage.
The original English emigrants came to this country with no slight confidence in the
solidity of such doctrines, and in their right to possess, subdue, and cultivate the American
wilderness, as being, by the law of nature and the gift of Providence, open and common to
the first occupants in the character of cultivators of the earth. The great patent of New-
England, which was the foundation of the subsequent titles and subordinate charters in that
country, and the opinions of grave and learned men, tended to confirm that confidence.
According to Chalmers, the practice of the European world had constituted a law of nations,
which sternly disregarded the possession of the aborigines, because they had not been
admitted to the society of nations. But whatever loose opinions might have been
entertained, or latitudinary doctrines inculcated, in favour of the abstract right to possess
and colonize America, it is certain that in point of fact the colonizers were not satisfied, or
did not deem it expedient, to settle the country without the consent of the aborigines,
procured by fair purchase, under the sanction of the civil authorities.56

54
Ibid 384-5.
55
31 US (6 Peters) 515 (1832), 542-43.
56
Kent’s Commentaries, 2nd ed, Volume III, above n 48, 387-9 (emphasis added).

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

Chancellor Kent explains the earlier justification, notes the ‘solidity’ it once held among
grave and learned men, and then condemns it. What the Chancellor had advocated in
his original Volume III, he now dismisses as ‘loose opinions’ and ‘latitudinary
doctrines’.
So completely does Chancellor Kent adopt the aboriginal rights doctrine stated in the
USSC jurisprudence, as affirmed and developed in the newly-discussed cases in this
2nd edition of Volume III, that, in showing that these Supreme Court decisions disclose
no novel doctrine, he cites the practices of both pre-Revolutionary British and post-
Revolutionary American governments as acknowledging and respecting the inherent
Indian title and provides manifold examples of consensual land acquisition from the
Amer-Indian peoples based on these principles. And as to the earliest of Anglo-
colonies, and of the Great Patent of 1620 given by King James I to the Puritans of the
Massachusetts Bay Colony, Chancellor Kent now states: ‘[t]he pretensions of the patent
of King James were not relied upon, and the prior Indian right to the soil of the country
was generally, if not uniformly, recognized and respected by the New-England
Puritans.’57 Chancellor Kent then continues on to cite British colonial practice in
Massachusetts, Pennsylvania, Maryland, Virginia, Georgia and New Netherlands/York
(when under both Dutch and British rule).
The overwhelming import of the revised Lecture LI of 1832 is the complete
abandonment of the engorged rhetorical version of Vattel's work as rendered by
Chalmers, and as earlier adopted by Kent. The Occupation of Backward Peoples
principles – those identified by Judge Blackburn as ‘not purely of law’ – are wholly
abandoned. Each of the three sources relied upon by his Honour to ground his first
principle of acquisition of colonial territory are jettisoned by Chancellor Kent himself.
No textual support for any ‘philosophical doctrine’ that ‘more advanced peoples were
therefore justified in dispossessing, if necessary, the less advanced’ peoples is to be
found in this 2nd edition of Volume III of Chancellor Kent's Commentaries on American
Law, or in any subsequent editions.
2 A fatal error of legal scholarship
It will be appreciated that Judge Blackburn, in seizing upon his first principle of
territorial acquisition from Chancellor Kent’s 1st edition of Volume III in 1828, has
gravely erred. The 1st edition of Volume III of Kent’s Commentaries on American Law,
no doubt of immense antiquarian interest, did posit a belated and alternative theoretical
basis but it was edited from the very next edition as being wrong in legal principle,
contrary to the doctrine of aboriginal rights the US Supreme Court was relevantly and
presently adopting as law, and historically inconsistent with Great Britain's colonial
practices in North America. The legal scholarship of the Milirrpum judgment on this
fundamental principle is fatally flawed.

B Judge Blackburn's Second Principle of Acquisition

Related to Judge Blackburn’s first principle of acquisition is another, and his Honour
now expressly enters the international law realm. His second principle of territorial
acquisition is:
the doctrine that discovery was a root of title in international law: the sovereign whose
subjects discovered new territory acquired title to such territory by the fact of such

57
Ibid 389.

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discovery. This principle was repeatedly said to be the basis by European sovereigns,
including of course the British Crown, on the American continent […]. 58
Stated as baldly as it is, this statement of principle has no legitimacy in the international
law of the late 18th and early 19th centuries or, indeed, earlier or later in time.
Discovery, ipso facto, did not suffice as a vesting of lawful ‘title’ to territory. If Judge
Blackburn was correct in his stated second principle, the Dutch would have acquired
‘title’ to the vast majority of the land mass of New Holland centuries prior to Captain
Cook’s discovery of an eastern portion in 1770. And, more relevantly, the Netherlands
would have acquired ‘title’ to the lands at issue in the litigation by reason alone of van
Coolsteerdt’s discovery of Arnhem Land in 1623.
The fundamental principle of the law of nations, known principally as Occupation (and
at times Discovery), is that for newly-discovered uninhabited territory, discovery
created a mere inchoate right which, unless the followed by the taking of effective
control of the territory discovered, was soluble. The ancient origins of this mode of
territorial acquisition can be traced to the Roman law of the Eastern Empire, the Corpus
Juris Civilis, codified in the reign of Emperor Justinian I (483-565AD), so lengthy is
its provenance.59 In Australian jurisprudence, this has been styled the doctrine of terra
nullius.60 It is notable that Judge Blackburn does not seek to rely upon this
Occupation/Discovery doctrine as the lawful basis for territorial sovereignty over New
Holland. 61
Simply stated, his Honour is again in substantial error in proposing this second principle
of acquisition as one ever accepted in the international law or practice. That it is
completely contrary to British practice in the Law of Nations of the late 18th century
can be evidenced by what is known as the Nootka Sound Controversy, an incident
almost contemporaneous with the establishment of the British penal enclave in New
Holland in 1788. It centred on a small trading post at Nootka Sound on the western
shore of Vancouver Island, in what is now the Canadian province of British Columbia.
Great Britain expressly rejected the Spanish claim to territorial sovereignty based
merely on discovery arguing strenuously that discovery was insufficient in the Law of
Nations to vest lawful title. 62

58
(1971) 17 FLR 141, 200.
59
RY Jennings, The Acquisition of Territory in International Law (Manchester University Press, 1963),
3. Robert Yewdell Jennings was a Member of the International Court of Justice from 1982 to 1991, and
ICJ President from 1991 to 1994. Also see, FE Smith, International Law (JM Dent & Sons Ltd, 6th ed,
1917), 90-1.
60
The term terra nullius has attracted much trivial points-scoring in Australian historiography but the
underlying concept is undoubtedly an ancient one.
61
Professor Darrell Lumb, one for the foremost constitutional lawyers of his time and in full knowledge
of the Milirrpum decision, wrote: ‘The proposition therefore would seem to be firmly established that in
the international law the British Crown gained a title to Australia by way of discovery followed by
occupation in 1788.’, see RD Lumb, ‘Is Australia an ‘Occupied’ or ‘Conquered’ Country?’ (1984) 11
(December) Queensland Bar News 16, 20. The statement is incorrect on a number of levels. On the
‘discovery’ aspect, Elizabeth Evatt expresses doubt that Captain Cook was ‘authorised’ to claim
possession of the east coast of New Holland because his Secret Instructions were limited to the mythical
continent, Terra Australis Incognita, and to islands not previously discovered by Europeans: Evatt, above
n 1, 25.
62
See William Ray Manning, The Nootka Sound Controversy (Argonaut Press, 1966), 83-85. Manning
asserts that Great Britain came near to a declaration of war in order to resist Spain’s claim.

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

To confirm this position more generally, in his Great Britain and the Law of Nations,
Professor Herbert A. Smith makes this observation of the relevant British colonial
practice:
During the period covered by the present work, it may safely be said that the government
of Great Britain has neither advanced any territorial claims of its own, nor admitted any
opposing claims on the mere fact of discovery unsupported by any acts of effective
occupation and possession. 63
Blackburn J’s second principle is plainly wrong and, moreover, is a wholly improbable
principle of territorial acquisition in international law.

C Judge Blackburn's Third Principle of Acquisition

His Honour’s allied third principle of territorial acquisition speaks to newly-discovered
lands which are inhabited by aboriginal populations. For Blackburn J, a subject of the
discovering sovereign had no power to acquire for themselves any ‘native title’ to land
from aboriginal persons. ‘Another way,’ asserted his Honour, ‘of expressing the same
rule was to say that only the Crown, or the sovereign, had power to extinguish native
title’. 64 The concept of a ‘native title’, that the inhabiting indigenous population had
some form of aboriginal title cognizable to the Crown – and which was subject to
extinguishment – is introduced into the judgment and is now presumed to exist by Judge
Blackburn, although this ‘native title’ is otherwise left undefined.
In elucidating this third principle, Blackburn J is in very large part correct. A right of
pre-emption to the sovereign of any ‘native title’ – which title had been implicitly
recognised and honoured in Imperial constitutional law and practice – had been asserted
by the British since their earliest colonisation of the New World Americas,65 the most
demonstrative vehicle of the relevant principles being the Royal Proclamation of
October 7, 1763 (George III) (Royal Proclamation of 1763).
1 The Royal Proclamation of October 7, 1763
In the wake of the first Treaty of Paris in 1763, which drew a close to the seven-year
French and Indian War, King George III issued the Royal Proclamation of 1763. It
sought to regulate relations with the relevant Amer-Indian peoples in all British
possessions in North America, including the large newly-acquired territories such as
Quebec which had been ceded by France to Great Britain under the terms of cession.
Underpinning the Royal Proclamation were general principles which the British Crown
had adopted in its dealings with indigenous populations in the Americas.66 These

63
HA Smith, Great Britain and the Law of Nations (PS King & Son, Limited, 1935), vol II, 1. The
period to which Professor Smith refers is from the late 1700s to the early-20th century. This is based on
the statements that his study would ‘not be earlier than the period of the French Revolution’: at vol I,
Preface, viii, and be ‘in the past century and a half’: in vol I, Preface, ix.
64
Milirrpum (1971) 17 FLR 141, 201.
65
Professor Slattery explains the role of the Imperial constitutional law (also termed the Colonial Law)
perfectly: ‘Just as the eighteenth century colonial law harboured rules governing such matters as the
constitutional status of colonies, the relative powers of the Imperial Parliament and local assemblies, and
the reception of English law, it also contained rules concerning the status of native peoples living under
the Crown’s protection, and the position of their lands, customary laws, and political institutions.’, see
Brian Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727, 737.
66
Fra Prucha, a leading authority on Amer-Indian history, cites a legal opinion from Thomas Jefferson
in 1792 evincing that in the juridical discourse of the day, the reconciling and refining of the
indigenous and settler rights to land was ongoing: see Francis Paul Prucha, American Indian Policy in
the Formative Years (University of Nebraska, 1970) 140.

67
 Daniel Lavery

principles show that a ‘native’ or ‘aboriginal’ title in the indigenous Americans was
expressly recognised by the British Crown at the very highest level of the Imperial
constitutional law. First and foremost, the Royal Proclamation of 1763 asserted
sovereignty over the nominated colonies in North America, yet the Preamble
acknowledged:
[T]he several Nations or Tribes of Indians with whom We are connected, and who live
under our protection, shall not be molested or disturbed in the Possession of such parts of
Our Dominions and Territories as, not having been ceded to or purchased by Us, are
reserved to them or any of them, as their Hunting Grounds.
The document forbade the Commanders-in-Chief of the colonies of Quebec, and of East
and West Florida and any other British colony in America, to grant warrants of Survey
or to pass patents for any lands ‘not having been ceded to or purchased by Us’. The
Royal Proclamation of 1763 continued:
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving subjects from
making any Purchase or Settlements whatever, or taking Possession of any of the Lands
above reserved, without our especial leave and Licence for the Purpose first obtained.
Moreover, the Royal Proclamation declared the public policy reasons for the principles
it was expressing:
And Whereas Great Frauds and Abuses have been committed in purchasing Lands of the
Indians, to the Great Prejudice of our Interests, and to the Great Dissatisfaction of the said
Indians; In Order, therefore, to prevent such irregularities for the future, and to the end that
the Indians may be convinced of our Justice and determined Resolution to remove all
reasonable Cause of Discontent, We do, with the advice of our Privy Council, strictly
enjoin and require, that no private person do presume to make any Purchase from the said
Indians of any Lands reserved to the said Indians, within those parts of our Colonies where
We have thought proper to allow Settlement; but that, if at any Time any of the said Indians
should be inclined to dispose of the said Lands, the same shall be Purchased only for Us,
in our Name, at some public Meeting or Assembly of the said Indians, to be held for that
Purpose by the Governor or Commander in Chief of our Colony respectively within which
they shall lie; [...].
Of relevance for our purposes is the immediate understanding that a ‘native’ or
‘aboriginal’ title held by the Indigenous Americans was expressly recognised by the
British Crown at the very highest level of the Imperial constitutional law in 1763.
2 Colonial NSW in the Imperial constitutional law?
With this in mind, one of the more curious aspects of the Milirrpum litigation is that if
there was an acceptance in the Imperial constitutional law in 1763 of legal principles
respecting Indigenous sovereignties to territory and of their aboriginal or native titles
to land in North America, how then, at the commencement of British colonisation of
New Holland only a few years later, did the same colonial legal principles escape at
least respecting the ‘native title’ of the Indigenous peoples of New Holland in that same
epoch or, indeed, that of the Yolngu People two centuries later?67
The answer, for Blackburn J, was that the English law received into the colony of New
South Wales in New Holland in 1788 apparently knew no such doctrine of aboriginal

67
The definitive modern work, Sir Kenneth Roberts-Wray's Commonwealth and Colonial Law, stated
that in the Imperial constitutional law the emphasis has been on the ‘individual trees’ to the detriment of
‘the wood’: Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens & Sons, 1966) viii-
ix.

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title because Sir William Blackstone’s Commentaries on the Laws of England did not
say so. According to Judge Blackburn, the relevant principles of Imperial constitutional
law surrounding the application of English law to overseas possessions of the British
Crown were settled ‘beyond doubt’ by 1788. The primary source of this assertion is a
passage from Blackstone’s Commentaries. His Honour’s judgment is quoted in extenso
because it represents the core of his reasoning on this point.
There is a distinction between settled colonies, where the land, desert and uncultivated, is
claimed by right of occupancy, and conquered or ceded colonies. The words ‘desert and
uncultivated’ are Blackstone's own; they have always been taken to include territory in
which live uncivilized inhabitants in a primitive state of society. The difference between
the laws of the two kinds of colonies is that in those of the former kind all the English laws
which are applicable to the colony are immediately in force there upon its foundation. In
those of the latter kind, the colony already having law of its own, that law remains in force
until altered. Blackstone cites several cases, forming a chain of authority which goes back
to Calvin’s Case. The whole doctrine was clear, though its application in any given case
often caused difficulty, particularly the question whether a particular English law applied
in a particular colony. The great case of Campbell v Hall, where the law of a ceded colony
was in question, treats the doctrine as stated by Blackstone as settled beyond doubt, and in
my opinion it was settled beyond doubt in 1788 and is so at this day, for settled colonies. 68
From his earlier rendition of the relevant acquisition principles, Judge Blackburn has
made two bounds of reasoning. The first — an internal leap — is that the ‘occupation’
of a territory is now needed to establish ‘title’ in the discoverer. This can be read as an
obvious correction to his Honour's earlier mis-stated second principle of territorial
acquisition that discovery itself vested title. The other extension of principle,
importantly, relates to the habitation of the newly-discovered territories which are said
now to be ‘desert and uncultivated’, so-called ‘settled colonies’, as no mention had
hitherto been made of such colonies in any earlier discussion in the judgment. For
Blackburn J, these words of Sir William Blackstone’s are said to ‘have always been
taken to include territory in which live uncivilized inhabitants in a primitive state of
society’.
Judge Blackburn’s assertion on Sir William Blackstone’s text is absent any scaffolding
and is not self-evident. The leap from a ‘desert and uncultivated’ territory to a ‘settled
colony’ would seemingly require some legal bridgework. Even the bare terms ‘desert’
and ‘uncultivated’ are unexplained. Yet his Honour does not plumb further into
Blackstone’s text, he provides no citation to buttress his assertion of principle, and he
does not attempt to trace any historical expansion or latter glossators of Blackstone’s
original phrase. The expression, unadorned as it is, is troubling and invites critical
examination.
3 Blackstone's Commentaries on the Laws of England
Sir William Blackstone published his Commentaries on the Laws of England between
1765 and 1769.69 Their publication was a hugely important juncture in English legal
history as this was the first complete historical account of the development of English

68
Milirrpum (1971) 17 FLR 141, 201 (emphasis added) (citations omitted).
69
William Blackstone, Commentaries on the Laws of England (University of Chicago Press 1979,
(Facsimile Edition of the Four Books published by The Claredon Press in the period 1765–69)
(‘Blackstone's Commentaries’). The quaintly named first volume, Book the First, of the Commentaries,
‘Of the Rights of Persons’, was published in November 1765 and Book the Second, ‘Of the Rights of
Things’, the following October: see Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth
Century (Oxford University Press, 2008), 219.

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 Daniel Lavery

law and the first exposition of this body of law as an organised, coherent system of
law.70 Significantly, publication was after the Royal Proclamation of 1763, the principal
Imperial legal statement of that early colonial North American epoch.
The relevant paragraph from Sir William Blackstone’s Book the First of the
Commentaries, on which great weight is placed by Judge Blackburn, opens thus:
Besides these adjacent islands, our more distant plantations in America and elsewhere, are
also in some respect subject to the English laws. Plantations or colonies in distant countries,
are either such where the lands are claimed by right of occupancy only, by finding them
desart and uncultivated, and peopling them from the mother country; or where, when
cultivated, they have been either gained by conquest, or ceded to us by treaties. And both
these rights are founded upon the law of nature, or at least upon that of nations .71
These distant ‘plantations’ of the New World are in Blackstone's nomenclature, ‘desart
and uncultivated’ or ‘already cultivated’. The term ‘desart’, an ancient form of ‘desert’,
is here used not to mean an area of little or no vegetation, but an uninhabited – or if
once inhabited, now deserted — territory.72 Cultivated is synonymous with occupied.
Indeed, these ‘desart and uncultivated’ lands were to be ‘peopled’ from the mother
country. For Blackstone, thus, there were only two classes of colonial plantation, the
uninhabited and the inhabited. 73 In the former, uninhabited lands are claimed by ‘right
of occupancy’, that is under the ancient Occupation doctrine, whilst the latter, being
inhabited, need to be acquired either by Conquest and/or Cession. ‘[B]oth these rights’,
that is, the ‘right of occupancy’ and that of conquest/cession, in Sir William
Blackstone’s opinion, could be founded in the law of nature, or ‘at least’ upon that of
the Law of Nations.
Speaking directly then of Great Britain’s North American colonies, which were
inhabited by aboriginal populations, Blackstone wrote: ‘[o]ur American plantations are
principally of this latter sort [that is, inhabited], being obtained in the last century either
by right of conquest in driving out the natives (with what natural justice I shall not at
present inquire) or by treaties.’74 Again, for any plantation already inhabited, the
acquisition of territory was either by Conquest and/or by Cession. Blackstone’s text
itself detracts from any contention that he was, in any sense, addressing any ‘settled’
territories and no reference is made to any aboriginal populations being ‘uncivilized’ or
‘in a primitive state of society’. In Sir William Blackstone’s Commentaries on the Laws
of England there is neither an intermediate hybrid class of inhabited or ‘settled’ territory
which could be acquired under the Occupation/Discovery doctrine nor any doctrine in
the Blackstonian collation of English law relating to ‘uncivilized inhabitants in a
primitive state of society’.
Book the First of Blackstone’s Commentaries then continues:
For it hath been held that, if an uninhabited country be discovered and planted by English
subjects, all the English laws then in being, which are the birthright of every English

70
David M Walker, The Oxford Companion to Law (Oxford University Press, 1980), 136.
71
Blackstone’s Commentaries, above n 69, Book the First, 104.
72
Continental publicists in the early Law of Nations, such as Grotius and Vattel, likewise used the
spelling ‘desart’ but the usage appears to have fallen into desuetude in the international legal discourse
by the early 1800s.
73
The same conclusion has been drawn previously; see Peter Bayne (ed), The Legal Status of Aborigines,
The Australian People: an encyclopedia of the nation, its people and their origins (Cambridge University
Press, 2001), 115.
74
Blackstone’s Commentaries, above n 69, Book the First, 105 (emphasis added).

70
 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

subject, are immediately there in force (Salk 411, 666). But this must be understood with
very many and very great restrictions. Such colonists carry with them only so much of the
English law as is applicable to the condition of an infant colony; [...].75
It is abundantly clear that Blackstone’s Commentaries is addressing the issue of the
reception of English law into an uninhabited country — as is stated — and not at all
entering into any discussion or offering any conclusions about territories inhabited by
so-called ‘uncivilised’, ‘primitive’ or ‘less advanced’ populations or, again, of any
‘settled colonies’ referred to by Judge Blackburn.
(a) Ground ‘not pre-occupied by other tribes’ in Book the Second
If there be any remaining doubt that the glossating of Blackstone by Judge Blackburn
is specious, then one need only leave Book the First and enter Book the Second of
Blackstone’s Commentaries where Sir William Blackstone does address the acquisition
of territory in international legal principle and practice. Citing first from the King James
Bible, Genesis 13, where the division of territories was necessary to resolve the conflict
for grazing land in the exodus from Egypt — Lot choosing the Plain of Jordan, leaving
Abraham the Land of Canaan — Sir William Blackstone reasoned that this ‘plainly
implied an acknowledged right, in either, to occupy whatever ground he pleased, that
was not pre-occupied by other tribes.’76 Blackstone wrote:
Upon the same principle was founded the right of migration, of sending colonies to
find new habitations when the Mother Country was overcharged with inhabitants;
which was practiced as well by the Phaenicians and Greeks, as [well as] the Germans,
Scythians, and other northern people. 77
Then Sir William Blackstone returns to the parenthesised aside concerning ‘driving out
the natives’ he made in Book the First when discussing the reception of English law in
New World colonies, stating:
And, so long as it was confined to the stocking and cultivation of desart uninhabited
countries, it kept strictly within the limits of the law of nature. But how far the seising
of countries already peopled and driving out and massacring the innocent and
defenceless natives, merely because they differed from the invaders in language, in
religion, in customs, in government or in colour; how far such a conduct was
consonant to nature, to reason, or to Christianity, deserved well to be considered by
those who have rendered their names immortal by thus civilizing mankind. 78
Far from the purported justification claimed by Judge Blackburn, Blackstone states a
deeply humanist view that speaks of ‘the innocent and defenceless natives’ and which
respects their persons, their rights to their property and to their territories.79 The seizing
of countries already peopled by ‘natives’ who differ ‘in language, in religion, in customs
in government or in colour’, was obviously abhorrent to Sir William Blackstone, and
contrary to the law of nature, to reason and to Christianity.
While this textual analysis is abundantly clear, one may recall that Sir William
Blackstone was writing and publishing at a time when the Royal Proclamation of 1763
was freshly proclaimed. To accept the construction asserted by Judge Blackburn is to

75
Ibid 107.
76
Blackstone’s Commentaries, above n 69, Book the Second, 7. Original spelling maintained.
77
Ibid. Original spelling maintained.
78
Ibid. Original spelling maintained.
79
Blackstone was writing these words between November 1765 and October 1766; see Prest, above n
69.

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 Daniel Lavery

also insist that in drafting his Commentaries Blackstone was ignorant of or failed to
respect the principles of the Imperial constitutional law that King George III has just
proclaimed into law in his North American colonies. That is a most unlikely prospect.
And given what Sir William Blackstone writes of the dispossession of native peoples
in the Americas, it is an impossible construction.

D Judge Blackburn Continues

Based on his interpretation of the Commentaries, that Blackstone proclaimed a hybrid
class of territory ‘in which live uncivilized inhabitants in a primitive state of society’
and which was known as a ‘settled colony’, Judge Blackburn then embarks on an
endeavour to determine how one identifies these ‘settled colonies’ and, in particular, to
determine into which category the infant colony of New South Wales might fit. As a
preamble, Blackburn J notes:
One would have thought that the question depended on matters of plain fact; and that had
there been any doubt there would have been an express pronouncement either by the
government at home or by the authorities in the colony, making clear what the basis of law
in the colony was.80
Noting that this pronouncement did not always happen in the administration of some
colonies, and seemingly never in the administration of colonial New South Wales, it
was sometimes thus a matter of debate. Judge Blackburn continues on to now reject Sir
William Blackstone’s statement that ‘Our American plantations’ were acquired
principally by Conquest and/or Cession, and then references and preferences George
Chalmers, as writing ‘more accurately’, that the country of ‘the aboriginal tribes of
America’ was considered ‘waste, because it was uncultivated, and therefore open to the
occupancy and use of other nations’.81 Judge Blackburn opines that ‘Blackstone
perhaps had in mind the island colonies [in the Caribbean] as well as those of the North
American continent’.82
Far from quelling the critical dissonance, his Honour then proceeds to outline an
extraordinary common law methodology, that in determining into which class a
particular colony might fall, legal fiction is to prevail over historical fact and the
attribution of a colony to a class is a question of law which cannot thereafter be
controverted on any reconsideration of the historical facts.83 At this point, his Honour
feels bound by the 1889 Privy Council decision of Cooper v Stuart,84 the only decision
in the Imperial constitutional law which addressed, though only in obiter, the basis upon
which the territorial sovereignty over New South Wales had been asserted by Great
Britain. This decision was an appeal from the Supreme Court of New South Wales,85
the issue being whether the rule against perpetuities applied to a Crown grant of land in
1823. In discussing the reception of English law into British colonies, to ascertain if the
rule had travelled, Lord Watson wrote for the Board:

80
Milirrpum (1971) 17 FLR 141, 202.
81
Chalmers, above n 38, Book I, 28. The passage quoted by his Honour from Chalmers’ Political Annuls
is, as we have established, of dubious historical and legal veracity. A whole chain of decisions of the US
Supreme Court contradicts his historiography, and the engorged-Vattelian jurisprudential theory
Chalmers expresses, as we have noted, was abandoned and reversed by Chancellor Kent in the second
and subsequent editions of his Commentaries on American Law.
82
Millirrpum (1971) 17 FLR 141, 202.
83
Ibid. His Honour asserts that this methodology is suggested by Chancellor James Kent.
84
(1889) 14 App Cas 286 (PC).
85
Cooper v Stuart (1886) NSWLR 7 (Equity Reports).

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 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

The often-quoted observations of Sir William Blackstone (1 Comm 107) appear to

their Lordships to have a direct bearing upon the present case. He says:
It hath been held that, if an uninhabited country be discovered and planted by English
subjects, all the English laws then in being, which are the birthright of every English
subject, are immediately there in force (Salk. 411, 666). But this must be understood
with very many and very great restrictions. Such colonists carry with them only so much
of the English law as is applicable to the condition of an infant colony; such, for
instance, [...].86
‘There is’, stated their Lordships,
a great difference between the case of a Colony acquired by conquest or cession, in which
there is an established system of law, and that of a Colony which consisted of a tract of
territory, practically unoccupied, without settled inhabitants or settled law, at the time when
it was peacefully annexed to the British dominions. The Colony of New South Wales
belongs to the latter class.87
Their Lordships did not pause to explain their extrapolation from the ‘uninhabited
country’ of Blackstone's text to the inhabited but ‘practically unoccupied’ territory of
eastern New Holland which was apparently ‘without settled inhabitants’ and without
‘settled law’. 88 However, for Judge Blackburn J there is no pause for consideration.
As I have already said, it is undoubted law that acquisitions of territory by the Crown fall
into two classes: conquered or ceded territory and settled or occupied territory. […] It is
also in my opinion clear that whether a colony comes into one category or the other is a
matter of law. […] [I]n my opinion there is no doubt that Australia came into the category
of a settled or occupied colony. This established for New South Wales by an authority
which is clear and, as far as this court is concerned, binding: Cooper v Stuart.89
On this jurisprudential survey, Judge Blackburn found that no doctrine of communal
native title has found acceptance in any other settled colony where the English common
law had been transported, other than by express statutory provision for such.90 This
conclusion is clearly inconsistent with the Privy Council decision of Oyekan v Adele.91
However, Blackburn J distinguished this decision on the ground that it related to a
ceded, not settled, colony, and also that he found it ‘impossible to believe’ that their
Lordships were asserting that the compulsory acquisition by the Crown of ‘land from
natives’ vested a common law right in the natives to receive compensation. 92
Consequently, his Honour determined the communal native title of a type claimed by

86
(1889) 14 App Cas 286, 291 (PC).
87
Ibid.
88
Professor Simpson has written that the Cooper v Stuart opinion of Lord Watson represents the
beginning of ‘the series of elisions and slippages that came to characterise Australian judicial
pronouncement on acquisition, and to provide the tools for a series of artificial and purely formal
reconciliations of law, politics and history’., see Gerry Simpson, ‘Mabo, International Law, Terra Nullius
and the Stories of Settlement: An Unresolved Jurisprudence’ (1993) 19 Melbourne University Law
Review 195, 200.
89
Millirrpum (1971) 17 FLR 141, 242.
90
Ibid 244. Hocking came to a diametrically-opposed view at about the same time as Judge Blackburn
expressed his, stating: ‘It has always been the accepted British practice to uphold any pre-existing native
title in newly acquired colonies, that there are Privy Council decisions laying down the nature of the title
so upheld and that there are principles laid down by which the native tenures have been accommodated
within the various legal systems concerned’: See Barbara Hocking, Native Land Rights (LLM Thesis,
Monash University, 1971), 5-6.
91
[1957] 2 All ER 785 (PC).
92
Millirrpum (1971) 17 FLR 141, 233.

73
 Daniel Lavery

the Yolngu plaintiffs was not recognised — and had never been recognised — in the
Anglo-Australian constitutional law.93
Yet another of the curious aspects of the Milirrpum judgment is that if Judge Blackburn
had the uncontradicted Privy Council authority of Cooper v Stuart, most certainly
binding on the Supreme Court of the Northern Territory court, and which spoke directly
to the colony of New South Wales being ‘a tract of territory, practically unoccupied,
without settled inhabitants or settled law’, why did Judge Blackburn go so far afield to
foray inexpertly through the early North American jurisprudence and then rely on the
even-more-doubtful historiography of George Chalmers to seek justifications on
Anglo-Australian issues? Did not this Privy Council decision have tailor-made answers
to the issues? There were, in the opinion of the Board in Cooper v Stuart, ‘no settled
inhabitants’ in New Holland, they were lawless and the 3 000 000 square kilometres of
what was now labelled New South Wales was ‘practically unoccupied’. It rested on the
same foundation of principle: New Holland/Australia was inhabited by humankind but
these persons were not rights-bearing and were incapable of having individual rights of
property or collective rights to territory. The highest judicial tribunal in the British
Empire had stated as much. It was game, set, and match to Nabalco Pty Ltd and the
Commonwealth of Australia in these proceedings.
The reason for the lengthy excursions by his Honour into non-Anglo-Australian law
and history may lie in the circumstance that Judge Blackburn openly questioned of the
notion that these Indigenous peoples had no ‘stable order of society’ upon the assertion
of British sovereignty. He stated: ‘having heard the evidence in this case, I am, to say
the least, suspicious about the truth of the assertions of the early settlers of New South
Wales that the aboriginals had no ordered manner of community life.’94
He then went on to challenge the dictate of their Lordships in Cooper v Stuart that there
was no ‘settled law’ in colonial New South Wales and made a remarkable finding of
fact in favour of the Yolngu People. Blackburn J wrote:
I am very clearly of [the] opinion, upon the evidence, that the social rules and customs of
the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable
gulf. The evidence shows a subtle and elaborate system highly adapted to the country in
which the people led their lives, which provided a stable order of society and was
remarkably free from the vagaries of personal whim or influence. If ever a system could be
called ‘a government of laws, and not of men’, it is that shown in the evidence before me.95
The many weeks of evidence given in the Milirrpum litigation comprised the first
searching examination of the juridical foundations of an Indigenous society in Anglo-
Australian jurisprudence. His Honour, having considered that mass of evidence, found
that the social rules and customs of the Yolngu People provided ‘a stable order of

93
As noted earlier, this conclusion has been roundly condemned as wrong in law by most commentators.
Its comprehensive destruction is Professor McNeil’s straightforward yet brilliant thesis that the
application of ordinary and long-established English common law principles is sufficient to vest a
presumptive estate in fee simple in the indigenous peoples in possession of land in newly-acquired
territories, howsoever the territory was acquired, at the moment of acquisition by the Crown; see Kent
McNeil, Common Law Aboriginal Title (Clarendon Press, 1989). For a defence of the decision by the
counsel for Nabalco Pty Ltd, see LJ Priestley, ‘Communal Native Title and the Common Law: Further
Thoughts on the Gove Land Rights Case’ (1974) 6 Federal Law Review 150.
94
Millirrpum (1971) 17 FLR 141, 266.
95
Ibid 267. Former High Court Justice John Toohey called this statement one of ‘the most powerful
affirmations’ of Indigenous law by someone not Indigenous: see Western Australian Law Reform
Commission, ‘Aboriginal Customary Laws Reference – An Overview’, Reference document (1999) 191.

74
 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

society’, and evinced ‘a subtle and elaborate system’ of law. Blackburn J was
scrutinising Yolngu society in 1970 but he would not accept that these Indigenous
persons did not then possess, on the evidence presented in his court, a body of laws and
customs which was cognisable to the Northern Territory Supreme Court as ‘a system
of law’. ‘In my opinion’, he wrote:
the arguments put to me do not justify the refusal to recognise the system proved by the
plaintiffs in evidence as a system of law. Great as they are, the differences between that
system and our system are, for the purposes in hand, differences of degree. I hold that I
must recognise the system revealed by the evidence as a system of law. 96
Perhaps, even more remarkably, the finding was that on the evidence presented the
Indigenous Yolngu People had a system of law in 1788 and that it had remained extant
and vibrant nearly 200 years after the assertion of British sovereignty over their
traditional territories.

III TROUBLING QUESTIONS

This simple finding of fact posed some troubling questions for the orthodox legal
narrative surrounding the acquisition of territorial sovereignty of New Holland by the
British. That narrative is that following the ‘discovery’ and declaration of ‘possession’
by Captain Cook in August 1770,97 the Commissions of Captain-General Phillip were
read at Port Jackson, a volley of muskets fired,98 and the eastern portion of New Holland
was thus wholly acquired by His Majesty, King George III, as ‘New South Wales’. This
orthodox theory holds that, with this simple ceremony, British ‘sovereignty’
instantaneously swept across 3 000 000 square kilometres of eastern New Holland. This
British ‘sovereignty’ either met no other ‘sovereigns’ or ‘laws’ in its path, or, on
meeting them, extinguished or failed to recognise them. This theory appears as to met
humans in that landscape, but they were not rights-bearing subjects, they were sub-jural
human beings, un-seen and unprotected by the incoming European law. His Majesty,
under this orthodox theory, thus acquired an original and plenipotent sovereignty over
a vast swathe of New Holland.
However with the finding of fact in Milirrpum, the jural landscape of New
Holland/Australia could no longer be said to be ‘law’-less in 1788 but rather to be
populated by many hundreds of such systems of laws. It is estimated that there were
some 500 distinct Indigenous peoples comprising 300 000 persons inhabiting the New
Holland continent about the time of the British assertions of sovereignty in the late 18
and early 19th centuries.99 In these many hundreds of Indigenous societies similar
systems of laws, like that of the Yolngu People, ordered those societies. Far from being
law-less, New Holland was resplendent with law and legal systems.

96
Millirrpum (1971) 17 FLR 141, 268.
97
Distorted, too, is the orthodox popular narrative, which has Cook claiming the whole of the continent
at Botany Bay in April 1770: see, for example, Maria Nugent, Captain Cook was here (Cambridge
University Press, 2009).
98
Tench provides a firsthand account of this occasion. See Watkin Tench, A Narrative of the Expedition
to Botany Bay with an Account of New South Wales, its Productions, Inhabitants, & to which is subjoined,
A List of Civil and Military Establishments at Port Jackson (J Debrett, 1789) 65.
99
Robert Hughes, The Fatal Shore (Collins Harvill, 1987) 9. Some estimates put the Indigenous
population of New Holland as high as 750 000.

75
 Daniel Lavery

Secondly, it is clear that the various assertions of British sovereignty, in eastern, middle
and western New Holland/Australia in 1788, 1824 and 1829 respectively, had no
immediate effect on these Indigenous systems of laws. Those systems survived those
assertions of sovereignty and continued unchanged, some for decades, and some like
that of the Yolngu People remained vital but essentially unchanged for over two
centuries of European presence on Australian soil.
Additionally, and most problematically, the source of these laws are not within any
present Australian constitutional framework, neither that of the Commonwealth nor
those of the States and Territories. These legal systems pre-date any assertion of
sovereignty by Great Britain and certainly pre-date any assumption of a distinctly
Australian sovereignty. These Indigenous systems of law, if they still exist, are sourced
outside of the present formal Australian constitutional framework and therefore
represent a source of law running parallel with the Crown in right of Australia and the
States and Territories. These Indigenous systems are extra-constitutional. For the
Kelsenite theorists, each and every set of these laws could be said to emanate from an
allodial grundnorm other than the Australian legal grundnorm.

IV CONCLUSION
It is somewhat surprising that, despite being a trial decision and the precedential nature
of the proceedings, the Milirrpum decision was not appealed. An appellate review may
have uncovered Judge Blackburn's errors, in particular the dubious legitimacy of the
‘not-purely-of-law’ Occupation of Backward Peoples doctrine that he adopted, one
which purportedly permits a territory inhabited by ‘uncivilized inhabitants in a
primitive state of society’ — so-called ‘backward peoples’ — to be lawfully
dispossessed of their territories and occupied by ‘more advanced peoples’. The Yolngu
People were advised against an appeal because of the fear that an appellate court may
reverse the factual finding that the Yolngu possessed an elaborate system of laws.100 It
is a matter of record that the Yolngu plaintiffs accepted that advice. The Occupation of
Backward Peoples doctrine, a notion of doubtful legitimacy in the international law,
thus gained an enduring and possibly unique stronghold in Anglo-Australian
jurisprudence. On the other hand, the finding that the Yolngu People possessed an
elaborate system of laws — and consequently that many tens, if not hundreds, of
Indigenous peoples in Australia had similar systems of laws — became undeniable in
the Anglo-Australian common law.
It has been said that, with the Mabo (No 2) decision, there was a ‘perceptible shift’ in
the constitutional common law foundations of Australia. 101 If such a shift occurred in
1992, any critical inspection of those same constitutional foundations would have
revealed a most serious fracture in 1971. For the Milirrpum decision accepted — on the
evidence presented to the Supreme Court of the Northern Territory after a lengthy trial

100
Woodward later stated: ‘I had no confidence that the High Court, as it was then constituted, would
produce any better result for the Aboriginal people than had already been achieved. Indeed, I was
afraid that doubts might be cast on Justice Blackburn's findings about Aboriginal law. I therefore
advised against an appeal.’' See AE Woodward, ‘Three Wigs and Five Hats’, (Speech delivered as the
Eric Johnston Lecture, State Reference Library of the Northern Territory, 10 November 1989) 6.
Woodward also believed a political solution was possible. See Edward Woodward, One Brief Interval:
A Memoir (Miegunyah Press, 2005) 106.
101
Wik Peoples v Queensland (1996) 187 CLR 1, 182 (Gummow J).

76
 ‘Not Purely of Law’– The Doctrine of Backward Peoples in Milirrpum

– that a system of law existed in an indigenous society in New Holland in 1788 and that
that system was extant and vibrant and continued to order their society nearly 200 years
later. The scales had fallen from the once-blinded eyes and the jural landscape of
colonial New Holland could now be seen to be populated by many such systems of law
each cradled in the hundreds of Indigenous societies like those of the Yolngu People.
New Holland/Australia was far from law-less, it was replete with many systems of laws
and customs and these systems were not only of great antiquity, they were presently
vital. The New Holland landscape was not empty in 1788, it had forms in it: human,
jural, and societal. Yet none of these forms is accommodated within the current
orthodox theory of sovereignty. In 1971, with the Milirrpum decision, the orthodox
theory — the ‘story’— of Anglo-Australian sovereignty became implausible and in
need of a fundamental re-working.

77
78
 THE AUSTRALIAN ‘SONGLINES’: SOME GLOSSES FOR RECOGNITION

GARY LILIENTHAL AND NEHALUDDIN AHMAD

ABSTRACT
In Australia, successive governments have sought to extinguish ‘native title’, preferring
English feudal socage, but not the Australian Indigenous systems of land title.
Australian governments want courts, constituted overwhelmingly by non-indigenous
lawyers, to decide land disputes as for feudal socage. Therefore, this article suggests a
need to understand this attempted radical reframing of Australian Indigenous titles to
land, through the convenient lens of Goffman’s frame analysis. The research question
is whether Anglo-Australian frame transformation of the Indigenous land titles into
mere religion, song and art, extinguishes land title. The article tries to show that
Australian indigenous land title is communal allodial title, as a bundle of subsisting
rights by operation of Australian Continental Common Law, which therefore cannot be
extinguished by the fraud inherent in frame transformation. Indigenous land title is true
communal allodial title, beset by a fraudulent colonial occupation, suggesting a lack of
internal reason in colonial policy and administration. Successive governments have
tried to frame transform the highly sophisticated and ancient indigenous legal and social
system, including sophisticated celestial mapping and navigation systems, into mere
religious art. This frame transformation is reversible by epideictic rhetoric. The
Indigenous system is transmitted phylogenetically, in which governance government
officials can have no participation. Indigenous land title cannot be extinguished.

I INTRODUCTION
In Australia, successive governments have sought to extinguish what is now called at
law ‘native title’. 1 Australian land title is based on the English common law land title
system of feudal socage, rather than on the ancient subsisting Indigenous Australian
systems of land title. This implies a severe disadvantage to holders of ancient subsisting
land title.
To explain socage, during the Middle Ages the villeins of England slowly changed their
feudal food and labour obligations into an annual money payment, known as a quit-rent,

Dip Counselling, (AIPC), LLB, (Syd), Grad Dip Legal Prac, (College of Law), M Psychoanalytic
Studs, (Deakin), PhD, (Curtin). Professor of Law, School of Law, University of Gondar, Gondar,
Federal Republic of Ethopia.
MA, LLB, LLM (Lucknow), LLM (Strathclyde), LLD (Meerut). Professor, Faculty of Law, Sultan
Sharif Ali Islamic University, Brunei.
1
See especially the Native Title Act 1993 (Cth) s 10 (‘NTA’), which limits recognition and protection
of what it now calls ‘native title’, to be only in accordance with the Act. It appears to extinguish any
subsisting common law land title. The NTA arguably appears to target rhetorically an audience of
Australian government officials, court officials, and elected officials, in that it seeks no broad express
public consent. See also Marcus Tullius Cicero, Rhetorica Ad Herennium (Harry Caplan trans, Harvard
University Press, 2004). This sets out six sources of law: nature; statute; custom; previous judgments;
equity; and, agreement. Custom is defined in it as that which in the absence of any statute is by usage
endowed with the force of statute law, which it defines as law set up by the sanction of the people: at
91, 93.

79
 Gary Lilienthal and Nehaluddin Ahmad

creating a socage tenure. 2 The statute Quia Emptores 1290, 18 Edw 1, c 1

(‘Quia Emptores’),3 the scarcity of labour after the Black Death, and lower values of
land with the rise of trade and industry, increased the process of converting feudal dues
into quit-rents, and by the 16th century quit-rents had become the norm. 4 The one
monetary conversion exception was the swearing of an oath of fealty to the lord,
arguably still now in existence in the form of implied obligations of tenure. 5 Arguably,
none of this is relevant to Australia.
Australian governments want courts, constituted overwhelmingly by non-indigenous
lawyers, 6 to adjudicate the inevitable land disputes as matters of feudal socage. 7 This
argues a very substantive shift in frame, or context, for Australian Indigenous land title, 8
arguably without Indigenous peoples’ fully informed consent. Therefore, this article
suggests a need to understand this attempted reframing of Indigenous titles to land,
through the convenient lens of frame analysis, and to try to uncover something useful
to resolving current disadvantage.
The concept of frame analysis is derived from Erving Goffman’s 1974 work.9 Social
scientists use it to analyse how people understand situations and undertakings. Its
procedures can give the practitioner the ability to re-set perspectives. This article deals
with the apparent reframing of what is essentially ‘the customary laws of Indigenous
Australian peoples’, of the Continent of Australia, into an alternative non-Indigenous
frame of the sacred, artistic, religious, and the so-called ‘Dreaming’. 10 Ronald Berndt
says Australian Indigenous peoples have their own religious traditions of the so-called
dreaming and ritual systems, with an emphasis on the life transitions of adulthood and
death.11 Eliade states: ‘There is a general belief among the Australians that the world,
man, and the various animals and plants were created by certain supernatural beings
who afterwards disappeared, either ascending to the sky or entering the earth’. 12
The Anglo-Australian legal system views the mythical narratives as mere religion and
art. 13 However, these Indigenous narratives may well serve a similar common law

2
Sir Paul Vinogradoff, Villainage in England: Essays in English Mediaeval History (Cambridge
University Press, 1892) 291–292, 306–307.
3
A 1290 statute preventing tenants from alienating lands by subinfeudation.
4
W F Finlason, The History of Law of Tenures of Land in England and Ireland (Stevens & Haynes,
1870) 54; Sir Frederick Pollock, The Land Laws (Macmillan, 1883) 72.
5
Sir Paul Vinogradoff, Villainage in England: Essays in English Mediaeval History (Cambridge
University Press, 1892) 291–292, 306–307.
6
See especially Gary Lilienthal and Nehaluddin Ahmad, ‘Australian Aboriginal Human Rights and
Apprehended Bias: Skirting Magna Carta Protections?’ (2015) 27 Denning Law Journal 146.
7
Sol Bellear, ‘Australia Redefines Hypocrisy and Human Rights in Bid for UN Position’, Huffington
Post, (15 July 2016) < huffingtonpost.com.au/sol-bellear/australia-redefines-hypoc_b_8217768.html>.
8
Peter Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate
Customary Titles’ (1996) 67(1) Oceania 7.
9
Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (Harper and Row,
1974).
10
For which we adopt the term ‘the customary laws of Indigenous Australians’.
11
Ronald Murray Berndt, Australian Aboriginal Religion (E J Brill, 1974) 4–5.
12
Mircea Eliade, Australian Religions: An Introduction (Oxford University Press, 1973) 1.
13
However, the Theogony of Hesiod was transmitted by song, as have been most ancient transmitted
legal and cultural systems worldwide. See Hesiod, Hesiod’s Theogony (Richard S Caldwell trans,
Focus Classic Library, 1987) 4.

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 The Australian ‘Songlines’: Some Glosses for Recognition

purpose, in Indigenous Australia, to that of the English legal and equitable maxims, in
England, namely as containing and transmitting widely accepted customary laws. 14
Kuypers regards frames as commanding rhetorical entities, equivalent in rhetorical
force to an act of state. He describes frames as follows: ‘[Frames] induce us to filter our
perceptions of the world in particular ways, essentially making some aspects of our
multi-dimensional reality more noticeable than other aspects. They operate by making
some information more salient than other information’.15
Reframing the Indigenous customary law into a religion, song, or art simply allows
Anglo-Australian ‘churches’, for example, to deploy their ‘priests’ to reframe the
Indigenous customary laws. They can force the more recent doctrines of Christianity
onto a people whose cultural systems are tens of thousands of years older. Kuypers
notes four categories of framing analysis: (a) frame bridging; (b) frame amplification;
(c) frame extension; and, (d) frame transformation. Argument in this article deploys
frame transformation.16 Frame transformation is an apparently forced process, for use
when the planned frames ‘may not resonate with, and on occasion may even appear
antithetical to, conventional lifestyles or rituals and extant interpretive frames’. 17
When this reframing is indicated, new significations are required to capture new support.
Goffman named this process ‘keying’.
Keying is a systematic transformation across materials, which are already meaningful
according to a schema for interpretation. For keying to take place, those who participate
must be aware that a systematic alteration will create a radical reconstitution. The
keying must have an agreed time span.18
Thus, it suggests ‘activities, events, and biographies that are already meaningful from
the standpoint of some primary framework transposed in terms of another framework’,
such that they now are seen differently. 19 For keying to be successful, to allow frame
transformation to be stable, it must take place by informed conscious consent, or else
the strength of the archaic heritage may reverse the process, 20 as it unravels just the
same as does fraud.
By analogy, in the 1847 case of Franks v Weaver, 21 the court teased out something of
the nature of fraud. The report extracted the case as follows.

14
See especially William Noy, The Grounds and Maxims and also an Analysis of the English Laws
(Riley, 1808) 39–41. This was rejected by imposition of a non-reframed reverse onus on the plaintiffs
in Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141, in which Blackburn J rejected the plaintiffs’ claim
of common law communal native title, because the plaintiffs did not establish that their predecessors
had had the same links as themselves to the relevant areas of land, at the time of the establishment of
New South Wales. See Mabo v Queensland [No 2] (1992) 175 CLR 1, [41] (‘Mabo (No 2)’).
15
Jim A Kuypers, Rhetorical Criticism: Perspectives in Action (Lexington Press, 2009).
16
Jim A Kuypers, ‘Framing Analysis From a Rhetorical Perspective’ in Paul D’Angelo and Jim A
Kuypers (eds), Doing News Framing Analysis (Routledge, 2010) 181.
17
David A Snow et al, ‘Frame Alignment Processes, Micromobilization, and Movement Participation’
(1986) 51 American Sociological Review 464, 473.
18
Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (Northeastern
University Press, 1985) 43.
19
Ibid 45.
20
Ibid 43; See especially Sigmund Freud, ‘Moses and Monotheism’, in James Strachey and Anna
Freud (eds), The Standard Edition of the Complete Psychological Works of Sigmund Freud Volume
XXIII (1937–39) (Hogarth Press, 1939).
21
(1847) 50 ER 596; 10 Beav 297, 297–304 (Lord Langdale MR) (‘Franks v Weaver’).

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 Gary Lilienthal and Nehaluddin Ahmad

The Plaintiff invented and sold a medicine under his own name. The Defendant also made
and sold a similar medicine, and on his labels, he used the Plaintiffs name and certain
certificates given of the efficacy of the Plaintiffs medicine, in such an ingenious manner, as,
prima facie, though not in fact, to appropriate and apply them to his own medicine. Held,
that, although there were other differences in the mode of selling, the proceeding was
wrongful, and the Defendant was restrained by injunction. 22
Lord Langdale MR held that nobody could define what fraud was, because it is so
multiform. Fraud is a form rather than as a state of affairs. He stated that in the present
case it consisted in the crafty23 adaptation of certain words in such a manner, ordinarily
and constantly, as to be calculated to make it appear to persons when he was selling the
product that the thing sold was prepared by the plaintiff.24 Craftiness in words arguably
means knowingly arranging a secondary meaning without prior public informed
consent to the usage. The Defendant’s attempt at a frame transformation without
informed consent, unravels into litigation.
In the 1610 case of Waggoner v Fish, 25 the court held that strangers and foreigners
devised and practised, by sinister and subtle means, ways of defrauding the charters,
liberties, customs, good orders and ordinances of London. The court held that such acts
were criminal fraud.26 Mutatis mutandis, colonial frame transformation performed on
the Australian Continental Common Law, without prior informed consent, would likely
be criminal fraud under the English law itself, and would therefore inevitably unravel.
The two types of frame transformation are: (a) domain-specific transformations, as in
attempts to alter group status; and, (b) global interpretive frame transformation, as in
attempts to change world views by conversions of thought, or complete conquest such
as religious conversion. 27 Both appear to be what the non-Indigenous majority are
trying to do in Australia, by attempts at radical thought conversion of ancient land title-
holders’ status, and purporting to transform the frames of the land titles’ underlying
narratives,28 without the victims’ prior informed consent.
From all this, the question arises as to whether Anglo-Australian frame transformation
of the Indigenous land titles as mere religion and art extinguishes those Indigenous titles.
This article attempts to show that Indigenous land title is characterised as communal
allodial title, as a bundle of subsisting rights by operation of Indigenous customary laws,
which therefore cannot be extinguished by the criminal fraud inherent in frame
transformation without informed consent. The article’s methodology will be to try and
reframe the term ‘native title’ into its true meaning.
The article’s structure incorporates an initial briefing on the nature of allodial land title,
and its failed struggle for emergence in English land law. Then, argument progresses to
a critical analysis of Indigenous underlying titles and proximate titles. After setting this
22
Franks v Weaver (1847) 50 ER 596; 10 Beav 297, 297 (Lord Langdale MR).
23
The word ‘craft’ was explained, in the Rhetorica ad Herennium, as ‘the topic of an argument
considering security. Security is to provide some plan for ensuring the avoidance of a present or
imminent danger, the two subheadings for which are ‘might’ and ‘craft’. Craft is exercised by means of
money, promises, dissimulation, accelerated speed, deception and other similar means. Craft is only
another name for strategy’. See Cicero, above n 1, 171.
24
Franks v Weaver (1847) 50 ER 596; 10 Beav 297, 303.
25
(1610) 2 Br & Gold 284; 123 ER 944.
26
Ibid.
27
Snow et al, above n 17, 43–44.
28
For example, the British attempted to re-frame Indigenous creation mythical narratives into the
pejorative term ‘dreaming’: interview with Rita Metzenrath, Senior Records Officer of the Australian
Institute of Aboriginal and Torres Strait Islander Studies (Canberra, 22 November 2016).

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 The Australian ‘Songlines’: Some Glosses for Recognition

scene, the article looks critically at the songlines as devices marking out a lawful system
of land titles, and finally at how these songlines form chains of connection into an
ancient and subsisting Indigenous Australian customary laws.
The research outcomes will strongly infer that it is most likely that Indigenous land title
is true communal allodial title, arguing a fraudulent colonial occupation, and implying
a lack of internal reason in colonial policy and administration. Colonial officials have
tried to frame transform the highly sophisticated and ancient Indigenous legal and social
system, including sophisticated celestial mapping and navigation systems, into a gallery
of mere religious art. This ancient system is transmitted phylogenetically, to which
governance colonial officials can therefore have no participation. The research shows
that Indigenous land title cannot be extinguished. The research also suggests the frame
transformation can be reversed by effective epideictic rhetoric.

II ALLODIAL TITLE
To illustrate the Common Law mindset on land title, in pre-Norman England, there
were three kinds of estates, allodial, folcland and bocland. 29 The allodial proprietor held
his land of no lord. He swore no oath of homage, as described below. With this, he was
said to be free. However, despite this so-called freedom, he was subjected to the
onorous trinoda necessitas: the duty of building bridges and castles; and, serving as a
soldier to defend the community. Coke described homage as follows:
Homage is the most honourable service, and most humble service of reverence, that a
franktenant may do to his lord. For when the tenant shall make homage to his lord, he shall
be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneele before
him, on both his knees, and hold his hands jointly together between the hands of his lord,
and shall say thus: I become your man from this day forward of life and limbe, and of earthly
worship, and unto you shall be true and faithfull, and beare to you faith for the tenements
that I claim to hold of you, saving the faith that I owe unto our soveraigne lord the king; and
then the lord so sitting shall kisse him. 30
Even before the Norman conquest, either by subinfeudation or by commendation, much
of the country’s land was in feudal tenure, inferring the obligations of homage. The old
universal allodial tenure receded into two classes of tenant. The first class was a few
great magnates too strong for the king to remove. The second was a class of landowners
too weak to cause trouble. 31 These two types of freeholder, also called ‘socmen’,
existed even in Anglo-Saxon times. Their socage meant the paradox of absolute land
ownership along with the trinoda necessitas. However, the Norman kings retained only
the name ‘socage’, altering its substantive meaning to a genus of land ownership always
subject to a lord.32 This Norman discretionary expansion of socage obligations to the
king could only fetter free alienation of land.
Allodium is almost as uncertain of meaning as in its origin. The Century Dictionary
defines it as ‘real estate held in absolute independence, without being subject to any

29
William Stubbs, Select Charters and Other Illustrations of English Constitutional History from the
Earliest Times to the Reign of Edward the First (Clarendon Press, 1905) 7.
30
Eduardo Coke, The First Part of the Institutes of the Laws of England or a Commentary upon
Littleton (J & W Clarke, 1832) 64a.
31
Ibid 13; Augustus Henry Frazer Lefroy, ‘Anglo-Saxon Period of English Law’ (1917) 26(5) Yale
Law Journal 388, 393.
32
R Storry Deans, The Student’s Legal History (Stevens and Sons, 3rd ed, 1913) 5.

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 Gary Lilienthal and Nehaluddin Ahmad

rent, service or acknowledgement to a superior’. 33 Despite the statement so frequently

met in treatises and judicial opinions, that allodial ownership is absolute ownership of
the soil, it is probable that no subject or citizen in any English-speaking country has
ever been permitted to hold his land in ‘absolute independence’.34 Rather, ‘every man
holds his estate ... subject not only to the right of eminent domain, but to the right of
the government to control the use of it by such rules and limitations as the public good
requires’, 35 such as taxes, stamp duty, excise, and similar obligations derived from
tenure. ‘Allodial’ ownership, in the English-speaking realm, appears to retain the
paradox of ownership freed from the more oppressive duties of service and fealty, with
the accompanying liability to distress, owed to some person with superior interests,
such as a superior lord, in the same land. 36 In this milieu, officialdom may not imagine
true allodial title, and therefore its administrative decisions will be coloured so that
allodial title holders do not exist.

III INDIGENOUS UNDERLYING TITLES AND PROXIMATE TITLE

A The Frame Transformation of Terra Nullius
Indigenous land title systems, within the ancient customary laws of mainland Australia,
are dual systems comprising both an underlying and a proximate or relational (rather
than subinfeudated) land title. 37 Contemporary holders of these specific land interests
hold title to those lands in the proximate sense of conformance to the wider-spread
customary laws. Regional customary laws maintain underlying titles, often transmitted
over archaeological periods of time as lore. 38 Sutton effectively posits that this
distinction is not the same as the Australian positive law distinction between radical
title and beneficial ownership. 39 In the High Court of Australia’s Mabo decision, there
is only occasional use of the term ‘underlying’ instead of ‘radical’ title. Its mention is
to apply a reverse onus, apparently without express public consent, and therefore frame
transformation without consent. Thus, Brennan J in Mabo (No 2) stated:
What the Crown acquired was an underlying title to land and a sovereign political power
over land, the sum of which is not tantamount to absolute ownership of land. Until recent
times, the political power to dispose of land in disregard of native title was exercised so as
to expand the underlying title of the Crown to absolute ownership but, where that has not
occurred, there is no reason to deny the law’s protection to the descendants of indigenous
citizens who can establish their entitlement to rights and interests which survived the
Crown’s acquisition of sovereignty.40

33
William Dwight Whitney, Century Dictionary and Cyclopedia (Century Company, 1914).
34
Joseph Story, Commentaries on the Constitution of the United States (Hilliard Gray, 5th ed, 1891)
125, 126; Wallace v Harmstad, 44 Pa 492 (1863).
35
Emory Washburn, A Treatise on the American Law of Real Property (Little Brown, 1876) 65.
36
John Chipman Gray, The Rule Against Perpetuities (Little Brown, 3rd ed, 1915) 17.
37
Proximate means, among other things, ‘1. next, nearest; 2. closely adjacent, very near; ... 4. next in a
chain of relation’: Arthur Delbridge (ed), Macquarie Dictionary (Herron Publications, 2nd ed, 1991)
1419 (definition of ‘proximate’).
38
See especially Gary Lilienthal and Nehaluddin Ahmad, ‘Abridgment and Conferral of Juridical
Personality’ (2015) 28 The Journal Jurisprudence 453.
39
Sutton, above n 8, 11.
40
Mabo (No 2) (1992) 175 CLR 1, 53.

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 The Australian ‘Songlines’: Some Glosses for Recognition

Reay writes of ‘residual rights’ in the lands of an extinct clan by others of the same
semi-moiety in the Northern Territory Borroloola region. 41 These rights facilitate
succession to abandoned lands by other groups. This garners further sustenance from
later research in the same region by Trigger. 42
Williams writes of north-east Arnhem Land. She distinguishes ‘radical title’ to lands
owned by a clan from a public formal grant procedure for establishing interests in small
parcels of land for a non-clan group.43 She observes that no absolute right in perpetuity
is conveyed thereby, because the grant is subject to further ‘renegotiation’, 44 suggesting
subjection to public rules. Keen describes this process, within the same region, as a
grant of rights of ownership of small zones within a larger clan holding. The zones’
root title remains within the clan. 45
Perhaps these instances indicate that there has been a denizen-like layering of
entitlements, 46 which might operate within Indigenous land title, but without any
denizen status limitations. 47
The English idea of a denizen was not that of a citizen because he did not have any
political rights: he could not be a member of parliament or hold any civil or military
office. However, the status of denizen allowed a foreigner to purchase property,
although a denizen could not inherit property. Historically, paying for letters patent was
thus a requirement of foreign land ownership in England. 48
Continuing the Anglo perspective on this, showing no separation of status and public
law rules, an old English statute refers to denizens as follows:
All manners of persons being aliens born using any manner of handicraft, be they denizens
or not denizens, and inhabited within the city of London or suburbs of the same ... or within
two miles compass ... shall be under the search and reformation of the [companies’]
wardens ... with one substantial stranger being a householder of the same craft by the same
wardens to be chosen.49
Thus, British colonial governments have long believed they can freely search denizens,
in the perfect pejorative frame transformation of status, who have what they viewed as
a lower status and more transient and ephemeral level of land tenure. Perhaps the British
41
Borroloola Land Claim, 1977-78. Includes ‘Comments on the Borroloola land claim, submitted to
Mr Justice Toohey’, by Marie Reay [consultant to Aboriginal Land Commissioner]; and Borroloola
land claim, report by Mr Justice Toohey, published 1979.
42
David S Trigger, The Garawa/Mugularrangu (Robinson River) Land Claim (Northern Land Council,
1989) 15.
43
However, it is unlikely that any such thing as a formal grant really exists. See Interview with
Douglas Amar Amarfio (Canberra, 5 November 2016).
44
Nancy M Williams, ‘A Boundary is to Cross: Observations on Yolngu Boundaries and Permission’
in Nancy M Williams and Eugene S Hunn, (eds), Resource Managers: North American and Australian
Hunter-gatherers (Westview Press, 1982) 141.
45
Ian Keen, ‘Yolngu Religious Property’ in Tim Ingold, David Riches and James Woodburn (eds),
Hunters and Gatherers: Property, Power and Ideology (Oxford University Press, 1988).
46
It suggests the subsistence of a system with some elements of that of denizens. See Interview with
Douglas Amar Amarfio (Canberra, 5 November 2016).
47
Sutton, above n 8, 11.
48
William Blackstone, Commentaries on the Laws of England (University of Chicago Press 1979,
(Facsimile Edition of the Four Books published by The Claredon Press in the period 1765–69) book 1
ch X 374 (‘Blackstone’s Commentaries’).
49
Steve Rappaport, Worlds Within Worlds: Structures of Life in Sixteenth-Century London (Cambridge
University Press, 1989) 45; Alexander Luders, The statutes of the realm 1101–1713 printed by
command of his majesty King George the Third; in pursuance of an address of the House of Commons
of Great Britain; from original records and authentic manuscripts (Record Commission, 1810) 208–9.

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 Gary Lilienthal and Nehaluddin Ahmad

colonialists do not distinguish Indigenous people from denizens. Queen Elizabeth II

personally signed the Aborigines Welfare Ordinance 1954 (ACT), 50 providing for
slavery-like systemic disadvantage, now fully repealed by the Aborigines Welfare
Repeal Ordinance 1965 (ACT) s 2 on 11 November 1965, as follows:
For the purposes of section seven of this Ordinance and the last preceding section, a member
of the police force, or a person authorized in writing by the Minister, shall have access at all
reasonable times to an aboriginal at any place in which he is residing or employed and may
make such inspections and inquiries as that member or person thinks fit.51
Underlying title in Indigenous customary laws consists of the constitution of a
particular zone of land, including (a) its physical borders or focal nodes, (b) its internal
structure such as drainage, or its ecology, (c) its demarcation according to specific
cultural identities, such as a particular language, a subsection couple, a focal residential
site, totemic entities, site-related mythical narratives, verses of songlines, objects
separated from public common use, (d) its kind of property, such as being unavailable
for alienation due to its communal character, and (e) proper principles for claims of
right by Indigenous people, such as descent from prior land custodians, conception,
ceremonial incorporation, or prescriptive residence.52
Various groups often differ about the cultural content of an area of land. However, they
tend to agree on a sufficient percentage of the issues, coinciding with the key juristic
principles that determine customary proximate rights in land.53 Underlying title inheres
in living people through birth, succession or incorporation. Proximate title encompasses
rights to make public land claims and, in consequence, to exercise rights, and satisfy
custodial obligations to the land. These rights come through totem. In fact, the land has
custodial obligations over the person.54
In a cognate way, in the English legal doctrine of tenure, the Crown claims an absolute
bundle of rights, called ‘radical title’, emanating from its claim to sovereignty.
Everyone else’s property interests are held by virtue of the Crown’s claim to what it
says is superior title. Thus, ‘in feudal-based legal terms, “tenure” does not refer to the
holding of the land but to the relationship between Paramount Lord and tenant’. 55 In
this theory of held interests, occupation consisting of comings and goings over time,
sometimes being transformed to other forms of holdings, and radical title going on
undisturbed in perpetuity, the crown’s sovereignty claim in Australia is the weakest link
in its radical title argument. This is because it has always been based on an initial claim
of terra nullius, in which the entire existence of the Indigenous peoples of New Holland
was repressed as non-existent. This repression will unravel again and again. 56 Brownlie

50
See Aborigines Welfare Ordinance 1954 (ACT) s 1.
51
Aborigines Welfare Repeal Ordinance 1965 (ACT) s 10(1).
52
Sutton, above n 8, 11.
53
Ian Keen, Knowledge and Secrecy in an Aboriginal Religion (Clarendon Press, 1994).
54
Interview with Douglas Amar Amarfio (Canberra, 5 November 2016).
55
Mabo (No 2) (1992) 175 CLR 1, 53 (Brennan J). Land in Australian law is thus held of someone, not
held absolutely, unless by the Crown.
56
According to Freud, it is the insistent return of the repressed that can explain numerous phenomena
that are normally overlooked: not only our dreams but also what has come to be called ‘Freudian slips’
(what Freud himself called ‘parapraxes’). According to Freud, there is a ‘psychology of errors’; that
slip of the tongue or that slip of the pen, ‘which have been put aside by the other sciences as being too
unimportant’ become for Freud the clues to the secret functioning of the unconscious. Indeed, he likens
his endeavour to ‘a detective engaged in tracing a murder’. Sigmund Freud, ‘Volume XV Introductory
Lectures on Psycho-Analysis (Parts I and II) (1915-1916)’ in James Strachey (ed), New Introductory

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 The Australian ‘Songlines’: Some Glosses for Recognition

illustrates this point, in which he suggests the rhetorical audience is other prospective
invading colonial powers.
Even as to terra nullius, like a volcanic island or territory abandoned by its former
sovereign, a claimant by right as against all others has more to do than planting a flag
or rearing a monument. From the 19th century the most generous settled view has been
that discovery accompanied by symbolic acts give no more than ‘an inchoate title, an
option, as against other states, to consolidate the first steps by proceeding to effective
occupation within a reasonable time.57
This radical forced frame transformation is without Indigenous consent. They are not
its rhetorical audience. Without effective sovereignty based on legality of transfer, the
crown’s radical title must fail in law as mere fraudulent encroachment.
Similarly, underlying Indigenous titles are always present by operation of law, formed
in ancient ornamental epideictic rhetoric. 58 Although existing groups can enjoy
underlying titles in their proximate meaning, extinction of landed groups and out-
migration may leave lands unoccupied for a time. This is cognate to a kind of
community title, where non-Indigenous officials have use the term ‘sacred site’
pejoratively, to refer to certain significant and important things administered by people
of higher degrees of learning, pursuant to their duty to the world. 59 It refers to an
absence of active claims as of right over the land, whether made in absentia or not. 60
Some Indigenous people describe this situation as ‘orphan country’, meaning country
without occupying custodians for the time being, even while people from neighbouring
areas actively look after it, as proxies. 61
The survival of an underlying title over a parcel of land, in Indigenous customary law,
is not vitiated by temporary absence of its proximate title-holders. Claiming to operate
Indigenous land title by virtue of its claim to crown radical title, the NTA purports to
reverse this rule, by requiring evidence of claimants having maintained their system of
traditional law and custom,62 in a frame transformation to Imperial British thinking. 63

Lectures on Psycho-Analysis (The Standard Edition) (Complete Psychological Works of Sigmund

Freud) (W W Norton, 1990) 27.
57
Ian Brownlie, Principles of Public International Law (Clarendon Press, 4th ed, 1990) 146.
58
See especially the argument on epideictic rhetoric constituting a form of control of law in Lilienthal
and Ahmad, above n 38.
59
Interview with Douglas Amar Amarfio (Canberra, 5 November 2016).
60
Sutton, above n 8, 12.
61
Peter Sutton, Country: Aboriginal Boundaries and Land Ownership in Australia (Aboriginal History
Monographs, 1995) 53. While Sutton calls these proxies ‘regents’, it appears there is no such
suggestion of meaning in Indigenous land thought. See Interview with Douglas Amar Amarfio
(Canberra, 5 November 2016).
62
NTA s 223(l).
63
In 1866, in apparently new Imperial policy, Whitehall began what they speciously called a ‘non-
discrimination’ policy in the Crown Colony of Hong Kong. This non-discrimination policy abandoned
the earlier principle policy of having Chinese and British law administration side by side in Hong
Kong. Whitehall thought that this ‘experiment’ of their merely indirect rule, by which Chinese people
governed with their own officers by ancient Chinese law and custom, had broken down. Whitehall
thought it could never work because of the specious aside that there was crime in the community,
without saying what this really meant, and from whose point of view, suggesting frame transformation
in operation. Thus, law and order had to be in firm British hands, with the Chinese officials having no
authority. Whitehall felt that ‘native’ interests, used as a pejorative expression, would be served better
through non-discrimination than by separate administration of Chinese law and custom run by Chinese
officials. However, the policy stated that native law and custom must be respected ‘as far as possible’,
except when the law was inapplicable. See Edwin Scott Haydon, ‘The Choice of Chinese Customary
Law in Hong Kong’ (1962) 11(1) The International and Comparative Law Quarterly 231, 241.

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 Gary Lilienthal and Nehaluddin Ahmad

This suggests continuing operation in Australia of the somewhat suspect international

law doctrine of terra nullius, itself only said to have come from Roman Law. 64
European invaders applied this doctrine to take possession of foreign lands, and declare
sovereignty, whenever they said no person was there for the time being. This sounds
similar to the Spanish ‘Regalian doctrine’, by which any private title to colonial land
has to be traced back to some grant, either express or implied, from the Crown of
Spain.65 It ostensibly had the same effect, as the English feudal legal maxim nulle terre
sans seigneur, meaning there could be no land without a lord, a rule of English common
law deriving from English custom, and therefore arguably of no relevance in
Australia. 66
Active custodianships over vacant Indigenous lands need not necessarily be in place for
the underlying title to subsist, within the Indigenous land rules.67 In Indigenous practice,
this is designated as ‘the law', meaning the revered rules integrating lands with
languages, totems, dreaming tracks and other demarcations in the landscape. These
‘dreaming tracks’ are better described as cultural learning tracks at the level of the
world of continuing creation. 68 This pattern is set permanently, integrated with the
world at the time of its creation. The regional law, rather than any council, is what
generates proximate land entitlements. There is no Crown. Such a cultural system is not
a separate juristic actor, in the same way as the Common Law fictionalises that all land
belongs to the Sovereign.69 Keen suggests this overlay of revered norms is:

64
Terra Nullius appears to have been more a construction than a legal doctrine. Benton and Strauman
argued that while res nullius was firmly rooted in Roman sources of law, terra nullius arose merely by
analogical extension from res nullius. They added that neither concept constituted a doctrine of a legal
vacuum. Thus, it would be misleading to use either term for imperial claims based on vacuum
domicilium (vacancy). Brian Slattery, ‘Paper Empires: The Legal Dimensions of French and English
Ventures in North America’ in John McLaren, A R Buck, Nancy E Wright (eds), Despotic Dominion:
Property Rights in British Settler Societies (University of British Columbia Press, 2005) 51. Armitage
made the connection that from the 1620s to the 1680s in Britain, and then in North America, Australia
and Africa well into the nineteenth century, the argument from vacancy (vacuum domicilium) or
absence of ownership (terra nullius) became a standard foundation for English and, later, British
dispossession of indigenous peoples. David Armitage, The Ideological Origins of the British Empire
(Cambridge University Press, 2000) 97. In this synthesis, res nullius underwent metamorphosis into
terra nullius, only coming into use in the late 19th century, in international law discussions. Lauren
Benton and Benjamin Straumann, ‘Acquiring Empire by Law: From Roman Doctrine to Early Modern
European Practice’, (2010) 28(1) Law and History Review 1, 6. Contra Mark Frank Lindley, The
Acquisition and Government of Backward Territory in International Law (Longmans, 1926).
65
June Prill-Brett, ‘Indigenous Land Rights and Legal Pluralism among Philippine Highlanders’ (1994)
28(3) Law & Society Review 687, 691. In the US Supreme Court case of Carino v Insular Government,
Holmes J stated ‘[E]very presumption is and ought to be against the government in a case like the
present.... [W]hen, as far back as testimony and memory goes, the land has been held by individuals
under a claim of private ownership, it will be presumed to have been held in the way from before the
Spanish conquest, and never to have been public land’: Carino v Insular Government, 212 US 449, 460
(1909) (Holmes J).
66
The legal maxim was ‘there is no land in England without its lord’: nulle terre sans seigneur, G A
Guyot, Institutes Feodales, ou Manuel des Fiefs et Censives, at Droits en Dependans (Saugrain, 1753)
28.
67
Sutton, above n 8, 12.
68
Interview with Douglas Amar Amarfio (Canberra, 5 November 2016).
69
Mabo (No 2) (1992) 175 CLR 1, 9, 27 (Brennan J).

88