If we go backwards in time from Native Title, we have this chain of happenings…

Native Title -> Mabo 2 -> the Bourke Proclamation -> Johnson v Macintosh -> the Pratt-Yorke Opinion.

These things are all linked.

Very briefly – in Johnson v M’Intosh (USA), the judge dispensed of Pratt-Yorke (perhaps to justify the judges own bias due to his personal land holdings). The decision in Johnson v M’Intosh was the likely catalyst of the Bourke Proclamation. The Bourke Proclamation asserted the Crown’s right of preemption under the J v M interpretation of the Doctrine of Discovery, and like J v M – extended that preemptive right to land purchases in Australia. This became basis of terra nullius and subsequent land dispossession. The Bourke Proclamation was then overturned in Mabo 2.

So as the Bourke Proclamation was based on J v M, Mabo 2 has reverted the situation in Australia all the way back to what J v M overturned – Pratt-Yorke.

Mabo 2 and Mer Island was the perfect test case to do this. If they had chosen any other place, the outcome could have been very different. A few important special things about Mer;

• Mer was never subject to the Bourke Proclamation. This means the court does not have to directly challenge the proclamation. Bourke Proclamation applied as far north as the tip of Cape York, Mer lies further north than Cape York.
• Mer was “discovered” by the British (without too many complications).
  • In the western half of Australia, the British discovery claim could be contested because the Dutch had already mapped and named it ‘New Holland’ before the British showed up. You cannot go into court and make arguments about British discovery, when that right of discovery is not crystal clear.
  • Mer is a island in the Pacific, and is well and truly east of the Moluccas issue and the Treaty of Saragossa line. Issues of territorial contiguity can be avoided with respect to New Holland geographically. If New Holland is an island, it’s subject to the 1824 Anglo-Dutch treaty. That gives the Dutch (or their French post-Napoleonic-war overlords) discovery rights. Even the discovery of mainland Australia is sketchy if you consider it as an island. I suppose that is why the English speaking world calls it a continent – for political reasons. Geographically and biologically, it is a very large island. When I was learning Spanish and travelling in Spanish speaking countries – I found they don’t consider Australia to a be a continent – it is and island in the continent of “Oceania”.
• Mer was annexed by Queensland. Affirming this in the case accepts the validity of an act of state on behalf of Queensland. It puts the state of Queensland in a equivalent position to the United States (as per J v M), a Crown successor. It’s an affirmation of Queensland sovereignty.

I think Mabo 2 and Native Title were deliberately planned and engineered as part of an attempt of the Crown to attain sovereignty – initially insofar as ‘domestic’ British law in concerned.

So, back to Pratt-Yorke. I don’t know a huge amount about this – but what I’ve seen I think it’s very relevant post-Mabo. I’m lifting this from wikipedia for now because I haven’t found another source.

The opinion went on to distinguish lands acquired by conquest from those acquired by treaty or negotiation. In the former case, the Crown would acquire both sovereignty and title; in the latter case, the Crown would acquire sovereignty, but the company would acquire title.

Putting on the colonial thinking-cap. Mabo 2 ruled out conquest. If the court were to claim conquest under the discovery doctrines, the Crown would have absolute beneficial title – but it would make more problems than it solved. Colonialism was supposed to have ended, claims of conquest under discovery are very fragile. Securing negotiations of title between the “company” and the natives is a more secure plan in the long run.

(1.) Mr. West’s opinion on this subject in 1720.
The common law of England, is the common law of the plantations, and all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary, though no statutes, made since those settlements, are in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear.

I’m not sure if I’m reading this right with this old-school language – but antecedent to the settlement of a colony sounds to me like this – the Englishman carrying the law to a colony is conditional on a preceding valid act of settlement. The settlement is supposed to come first, then the law. This is not what happened in Australia.

(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form colonies, and receive your majesty’s protection, by virtue of your royal charters.

This tiny portion of text blows my mind. Especially the parts I have bolded. I don’t even know where to start.

As an analogy – if a bunch of schoolkids go on an excursion to the museum, they still have to follow the school rules. The school has jurisdiction over them even though they are not physically on school grounds. But that doesn’t mean the school rules apply to the museum and every worker and visitor to the museum, just because the schoolkids are there. It doesn’t mean the school rules override the rules of the museum. It doesn’t mean the kids can ignore the museum rules. That is totally logical. But in our case/museum – the kids run rampant, smash and destroy, force us to follow their rules – they think they own the entire museum because they have made themselves comfy.

The Pratt-Yorke opinion is the basis of Native Title. Replace Indian Princes with Traditional Owners and it starts making sense.

Native title – as in the original version of it – grants the king’s subjects land grants. You have to look at Native Title upside-down. Native Title is where traditional owners grant land to the kings subjects, but TO’s reserve some rights for themselves – hunting, fishing, cultural etc. This in turn gives the Crown some degree of sovereignty – at least as far as the British interpretation of things goes.

Of course – that sovereignty is not absolute – it is only over the English settlements and the English subjects. But that part is largely ignored.

Now, the above says acquired by treaty or grants. I think ILUA’s are treaties. It’s an alternative to land grants for the Crown to acquire some form of sovereignty.

ILUA’s are ‘treaties’ – but originally, they were not international in nature. But since some nations such as the Murrawarri Republic have upset things by declaring independence – an international solution is needed.

The Uluru Statement asks for “agreement making” as part of a larger package offer which includes a treaty of federation. Since that offer – agreements (note the ‘A’ in ILUA) may under certain conditions – form part of this package, which give them an international flavour.

See this from Harry Hobbs and George Williams – The Noongar Settlement: Australia’s First Treaty. I’m not alone here in seeing ILUA’s and other agreement as treaties.

So… on to the latest Native Title developments. What I see here – is tidying up loose ends to make ILUA’s compliant with the Vienna Convention on the Law of Treaties. ILUA’s were originally designed as domestic instruments. They need to be upgraded to meet international standards so they can become stealth Instruments of Accession.

Next post – I’m going to go though some of these changes, and compare them with the Vienna Convention on the Law of Treaties and show how the changes make ILUA’s more compliant with this Convention.