See map below of Native Title as of July 2021.

If you can’t read the legend – dark green is exclusive, light green non-exclusive. Brown is not existant. Orange is extinguished. The remainder means never determined.

Note a few things…

• No Native Title in Tasmania or larger islands in the south.
• No Native Title in the original 19 counties
• Western Australia is densely covered
  

If you find a map that includes ILUAs in Western Australia, you will see Western Australia has insane coverage. It is like Western Australia is trying to get every little bit of land covered by Native Title or ILUA. A state known for not being kind to Aboriginal people. Does anyone wonder – why?

This may be related to what I wrote about recently on the Anglo-Dutch treaty of 1824.

I’m not 100% sure how the laws of war operate, but I hypothesise that Western Australia is the only part of New Holland that was not properly conquered from the Dutch.

I missed something when researching the post on the Treaty of 1824. I assumed that Governor Brisbane’s martial law declaration only ever applied up to 135E. I had this map showing the initial martial law declaration in red…

That map is correct at the time the martial law declaration was made. The declaration said “all country the westward of Mount York”. It did not give a west boundary, so it would apply to extent of the colony. And then, I assumed that it was the commissioning of Governor Darling as Governor Brisbane’s successor that extended the border to include Fort Dundas in 1825 – after martial law was repealed.

But I missed something. The border was extended before that time. It happened during the voyage that the fort was initially established. Here is a paragraph from the militaria wiki page on James Bremer:

On 18 September 1823, Bremer was appointed commander of HMS Tamar. In February 1824, he was sent to Melville Island, Australia, to establish a colony. It was intended as a military settlement to secure British trade in the region. It was hoped that a market would open to British merchants in the Malay Archipelago. In June 1824, Bremer arrived in Sydney where he spent a month collecting troops and stores. On 24 August 1824, he left Port Jackson, Sydney, on board the Tamar, accompanied by the Countess of Harcourt and the Lady Nelson. The ships transported Royal Marines and forty-four convicts guarded by the 3rd Regiment. After sailing through the Torres Strait, he arrived in Port Essington on 20 September. The north coast of Australia from 129° to 135° longitude was declared British territory. Bremer rejected Port Essington as a settlement due to its lack of fresh drinking water. On 26 September, the party landed at King Cove in Melville Island to build a settlement, which was named Fort Dundas on 21 October. However, the site was unhealthy, expensive to maintain, and did not develop into an advantageous commercial trading post. In November 1828, orders were given to abandon the post.

Possession was during the period of martial law. By declaring possession on the mainland to 129E, Bremer had effectively extended the earlier proclamation of martial law made by Governor Brisbane. This extended martial law right up to the current Western Australia border.

Recalling – the Anglo-Dutch 1824 treaty applied to “islands south of the straits of Singapore”. Bremer has done the possession declaration at Port Essington on the mainland. Then he set up a military fort on the island. This is strategic – it is not to do with lack of fresh drinking water at Port Essington (A 24 house settlement with hospital was set up there later in 1838 – so he mustn’t have tried hard looking).

That’s why Western Australia is special. It was initially a Dutch possession, yet unlike everywhere else in “Australia” – the British never declared martial law. So the British never properly conquered the Dutch in that portion of New Holland. It’s territory is in international legal limbo. Which would explain why Western Australia – today – is so aggressively persuing territorial agreements (ILUA’s) and Native Title claims. Every agreement puts that area out of legal limbo.

When you consider this, and consider the parts of Australia where Native Title doesn’t even exist – it becomes clear. Native Title is neo-colonialism. It’s purpose is to secure colonial interests.

Image by Stux-12364 from Pixabay

As a general principle of the European discovery doctrines, the right of pre-emption is held by the discovering Crown.

The right of pre-emption under the discovery doctrines means the discovering Crown reserves an exclusive right against other European powers to conduct business on that discovered territory. In other words, the discoverer has ‘dibs’. That includes ‘dibs’ on purchasing land from the natives, doing a treaty with the natives, declaring war on the natives, or settlement with acquisition of sovereignty if the territory is a true terra nullius.

The right of preemption has a corresponding fiduciary duty. A fiduciary duty, in general terms; is a duty to respect and protect the interests of a party who is in a position of vulnerability and in your care. The holder of the right of preemption does not have a blanket license to take all. An everyday example – if you are looking after an old lady – you don’t steal all her money out of her purse, even though you have full access to it. In Canada this duty is called the ‘honor of the Crown’. In Australia it remains unacknowledged. In Isabel Coe vs Commonwealth (1993) an attempt was made to get it recognised.

This fiduciary duty is a large reason why colonisers bothered with treaties, as the political settlement (treaty) formalises this duty of protection and care, and affirms the corresponding pre-emptive right (example: see the Treaty of Waitangi article 2). The pre-emptive right is what colonisers want to secure, as it means they won’t have trouble from their European competitors.

In British North America before US independence – the right of preemption to the east of the proclamation line of 1763 was vested jointly in the colonial governors and the British Crown. The right of preemption to the west of the proclamation line was declared exclusively for the British Crown, making any British territory west of the line a massive ‘Indian reserve’. This meant that British North American governors could only grant land on the east of this line.

The settlers in British North America got angry because there wasn’t enough free/cheap land being handed out (amongst other grievances). They had a revolution over it.

In the Johnson vs M’cIntosh case in the newly independent United States, a precedent was set that the doctrine of discovery right of preemption can be inherited by a successor settler-state. One of the many effects of the court decision was that it effectively transferred the right of preemption from the British Crown to the US federal government.

Not long after Johnson vs M’cIntosh, the British Crown asserted the exclusive right of preemption for New South Wales (Bourke Proclamation). Not even colonial governors from this point – could purchase land from Aboriginal people.

Recent evidence has been found showing that Johnson vs M’cIntosh was a collusive lawsuit – which means it wasn’t a genuine fight between two parties but was set up to manipulate the courts and change the law to favour land speculators. Even the judge of the case (Marshall) had land holdings and profited from his own judgement. In Australia – Batman (the trigger for the Bourke Proclamation) had legal assistance directly from London.

You gotta wonder – was the Batman “treaty” itself a collusive action by London? There was a bit of a problem with the initial ‘discovery’ claim of the “Eastern coast of New Holland”. When Cook allegedly raised the flag on Possession Island, he (or his ghost-writers in London) explicitly acknowledged Dutch discovery claim over New Holland. The Bourke Proclamation fixed this up somewhat by affirming pre-emption (against the Dutch crown) up to the western border (135 degrees E) of New South Wales. The land that Batman tried to purchase was further west than any other settlement at the time. If it was colonial collusion, then it makes sense to make a jump westward, as it has an added benefit of shifting the consumated/settled British claim westward.

The British Crown did treaty with some natives of New South Wales – in what became New Zealand. Unlike on the “Australia/New Holland” continent, in New Zealand the French had sent settlers. The French had provisionally purchased land on the south island and sent a fleet of settlers who arrived on the south island just a few months after the Treaty of Waitangi. If the French had also sent settlers to New Holland, the British no doubt would have scrambled to Treaty with Aboriginal people as they did in New Zealand.

But with no serious competition, the British Crown then sat back and did next to nothing while the governors in continental New South Wales handed out stolen land titles. The Crown failed it’s fiduciary duty as holders and asserters of the right of preemption. It did not ensure that agreements were secured to obtain title from natives before land parcels were being handed out in the Crown’s own name.

But after the Bourke Proclamation, the British Crown did issue some “protection” acts, and conducted a show-trial and hanging the perpetrators in the Myall Creek massacre (whilst ignoring many other massacres, some committed by official “protectors” themselves). These actions show at least a superficial demonstration of upholding a fiduciary duty. But for the most part – a blind eye to atrocity was taken by the Crown, possibly because they wanted to keep settlers satiated with free land out of fear they lose Australia completely like they lost the United States.

Australia after World War 2, started acting as a separate international actor from the British crown, at least administratively. But the right of preemption was still held with the British crown. This is because of the way the Bourke Proclamation retained exclusive rights in the Crown and in the Crown only. It was not shared with the Governors of the Australian colonies – as was the case east of the proclamation line of 1763 in British North America.

Also after World War 2, colonialism was condemned in UN General Assembly Resolution 1514. Continuing to hold people under colonial subjugation is now an international crime. This is regardless of whether or not the initial acts of colonial invasion were considered legal or not at the time.

The only way for colonialism in Australia to end under the UN decolonisation standards (short of full Aboriginal independence) is by an agreement with Aboriginal people. Australia needs – at minimum – an agreement of ‘consent of the governed’ with Aboriginal people.

But (as of c.1990) Australia, as a now separate international actor to the British crown, is prevented under it’s own laws for making agreements with Aboriginal people, because the preemption prerogative from the Bourke Proclamation still belongs to the British crown.

A way had to be found to transfer that prerogative from the British crown to the “Australian crown” – the local, autochthonous sovereign. The new Australian Crown has been forming itself very gradually over the decades. The new Australian crown became administratively separate from the British Crown in the Australia Acts (1986). The Australia Acts are almost a true treaty between the two crowns. Look at the way they were signed, the Queen signed the British version, then personally flew over to sign the Australian version of the Australia Acts.

Mabo 2 was the solution to transfer the right of preemption. From a insular domestic perspective, Mabo overturned ‘terra nullius’. But from an international law perspective – it overturned the British crown’s right of preemption. It transferred the right of preemption to the successor settler-state – at least when concerning land titles.

In the Mabo case specifics; Queensland annexed Mer before federation in an Act of State in their own Parliament’s right – not in the right of the British Parliament. This is a crucial point, as it made the case similar to Johnson vs M’Intosh in dealing with a successor-state to a European colonising power. If it were any other parcel of land in Australia – it would not have worked. Furthermore – everywhere west of the “Eastern coast of New Holland” has a sketchy British discovery claim which could destroy the argument. Mer/Murray Island was a cherry-picked case. Small as the island is, it is the largest piece of land that could work.

The domestic High Court reasoning in Mabo 2 did not directly draw on the right of preemption. But instead, they imported a derivative of that right of preemption – international Aboriginal Title law (which already existed in other settler-colonial states). Aboriginal title law itself, is based on the fiduciary duty that comes part and parcel with the right of preemption. Native title/Aboriginal title was the trojan horse to import it’s parent concept (the right of pre-emption).

If you read Mabo 2, and compare it with the Johnson v M’Intosh judgement – you will see much of the origins and philosophy behind the concept of Aboriginal Title and it’s Australian version of ‘Native Title’. It is rooted in the Doctrines of Discovery.

Here’s a couple of excerpts from Johnson v M’Intosh (more found here);

These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of nature, by the extent of men’s wants, and their capacity of using it to supply them. It is a violation of the rights of others to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle the North American Indians could have acquired no proprietary interest in the vast tracts of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. 

Indian land rights are whatever is left over after white man has taken what he wants. And Indian Title is not alienable, not even to other Indians. North American Indians have no proprietary interest. Look familiar? This is the foundation of Native Title!

The Uluru Statement describes the “First Nations” as being possessors of the land. Be very careful of this term.

The Indians were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and . . . Discovery gave exclusive title to those who made it.

Yup. The denial of sovereignty to boot. And beware that possession is not ownership, and it’s not sovereignty. It’s tokenism.

Mabo 2 introduced a ‘limited possessor’ concept of land rights. There has been no subsequent equivalent of Worcester v. Georgia in Australia, so unlike in the USA where tribal sovereignty is recognised – we are left hanging in limbo with no recognition of sovereignty and no formalised relationship with the coloniser.

However, as much as they try to limit our land rights to “traditional” rights, I would argue we do have a real proprietary interest – as pre-occupation we asserted the right (and this was reciprocated by neighboring nations) to exclude other persons from our land. That is the basis of land ownership, even under white mans’ philosophy. The first thing a white man does when he buys his land is put up a “no trespassing” sign. He demonstrates his ownership when he puts the sign up – there is no need to first wait for him to build structures or work the soil. We had the same thing – continental wide. I don’t know that much about my ancestral lands, but I know what our “no trespassing” signs look like. If we had this single traditional right recognised – there is your veto to any land-based activity. Miners can’t mine if their staff are not allowed to enter your property. We exercised this power of veto before colonisation.

It’s amazing that Australia – so recently in 1992 – began importing into domestic law such backward concepts that are based on the Doctrines of Discovery. This is more than 30 years after the UN declared the end of Colonialism. It’s also amazing is how they managed to sell Mabo 2 as some kind of win for Aboriginal rights. Much like the Uluru Statement is being sold now.

So what’s up with the corresponding fiduciary duty post-Mabo2? I’m supposing that “Close the Gap” is a demonstration of that, in the same way the Myall Creek show trial was. “Close the Gap” has been as effective in increasing wellbeing about as well as the Myall Creek Massacre worked to deter massacres. Is that any surprise?

It’s a really bad look when a trustee is getting filthy rich off the beneficiary who is living in misery, especially with a widening “gap”. Britney Spears’ current situation comes to mind. We are Britney, and the colony are her parasitic family.

Mabo 2 occurred in 1992 to overturn the British Crown’s right of preemption in preparation for the 1999 referendum. This was supposed to be part of the final ‘agreement’ with Aboriginal people which was needed to achieve decolonisation through a reconciliation instrument.