2003, 248p.
This book was originally published in 1987, and has spawned two further editions- one in 1992, then this one in 2003. Much has happened with native title in the last 20 years and one might think that perhaps a book dealing with land and the law should be scrapped completely with a whole rewrite. However, it seems that this rarely occurs: instead extra chapters and new prefaces are tacked onto the body of the book, which remains fundamentally unchanged. I’m not sure if this is the publisher’s decision or the author’s, or whether the research output rankings for academics affect the decision to update vs rewrite- a combination of all three, I suspect. And, I think, in this case, Reynolds knows that the argument he made in this book in 1987 was actually vindicated by the Mabo case, and lay at the heart of the Wik legislation that followed it. The fact that he made this argument before Mabo would be obscured if he rewrote a whole new book.
His argument goes back to the very first consideration of British settlement, and the question of whether the land was inhabited or not. In effect, he debunks the concept of ‘terra nullius’ that is part of our common understanding of 19th century land law. Sir Jospeh Banks saw small groups of aborigines on his journey of British ‘discovery’ , but reasoned that the inland was uninhabited because if people living inland supported themselves by cultivation then surely the coastal natives would have learned it from them. (p. 38). Certainly the early settlers quickly realized that the land was settled, and the more attentive observers noted that particular families had attachment to particular land, with a carefully regulated system of seeking and granting permission to enter and traverse the territory.
Reynolds focusses on the intellectual and political milieu that swirled around the Colonial Office between about 1820-50, when land policy in Australia was being laid down both for the government-backed settlements in New South Wales and Tasmania, and for the private entrepreneurial schemes in South Australia, Western Australia (Australind) and New Zealand. Buoyed by their success with the abolition (at least on paper) of slavery, the Clapham Sect ‘angels’ turned their attention to Aboriginal concerns right across the empire, particularly through Secretary of State for the Colonies Lord Glenelg and under-secretary James Stephen in London. Reynolds provides the back-story of the lobbying of different Evangelically-influenced interest groups, and the preparedness of the Colonial Office to intervene and delay in arrangements, often sparking conflict and frustration with the entrepreneurs who were impatient to get over into the colonies and start selling land. This was an empire-wide approach.
Reynolds argues that the Colonial Office understood from very early on that the Aborigines had prior possession of the land, and that it had to be formally purchased from them with Aboriginal reservations set aside, as a matter of justice- not benevolence . The Colonial Office was insistent that land could only be purchased by the Crown, not private individuals. The pastoral leases granted from the 1830s onwards did not prevent aborigines moving into the leased territory to hunt and fish as they always had done- hence the importance of Judge Willis’ judgment in the Bolden case.
All of this, of course, was from the Colonial Office perspective ten thousand miles and about five months journey away. Over here, there was always a way to get round undertakings that looked sound on paper but which could be usurped by the power of the gun, distance, half-heartedness and political pressure.
Rather more insidious was the “forgetting” over the following century about the details and intent of the original land legislation, and the substitution of the ‘terra nullius’ approach. It was only when the Judges of the Mabo case returned to this early legislation to trace Australian land law back to its source, that the attitude of the Colonial Office was rediscovered and publicized. The Wik case, too, returned to the original intent of the pastoral lease as a particular type of lease designed for a particular purpose.
In the final chapters of the book, Reynolds examines the Mabo and Wik cases carefully and gives a clear explanation of their significance- I must admit that my understanding of Wik has been muddied by my own politics and I found this section very enlightening and useful. But Reynolds himself is not just historian here: he speaks of his friendship and contact with Eddie Mabo and does not disguise his own politics and leanings.
The book is very clearly written, with rather short sentences. At times I felt that it was almost too simplistic, although once I found myself in some rather more tangled territory, I was grateful that it was so simply expressed- the ideas themselves were difficult enough without having to negotiate dense and complex language. I found his frequent use of rhetorical questions rather wearing, although often the question he posed was exactly the one that I had in my own mind at the time.
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