The Story of Making a Nation

Having an INFORMED discussion NOT a Political strategy.

Contents

 

Issues

 
 

The first thing that should become abundantly clear to anybody who reads the Split Decision of the High Court on Mabo is the fact that there is absolutely no consideration of the pivotal point about historic land title - which is the 'lawful' authority under which such title was claimed/acquired.

It took me some time to find why this was so, and then I found it, tucked surreptitiously away in Brennan @33. Right under the heading "The acquisition of sovereignty"

According to the High Court decision, citing from the Seas and Submerged Lands Case in 1975,  "The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state."

Okay that’s cool! - It is what you would expect from a dictatorial monarchical system, telling the judiciary to FO when it comes to challenging the Crowns authority or decisions to take action outside the sovereign territory of the nation.

But apparently only on 'land acquisitions' - other internation act are no so quarantined . - See the Tampa!

But this is not helpful to us, the citizens of Australia, in trying to determine from where England drew its authority to act in the way it did in 1770.

The High Court becomes a little bit more informative, Brennan @32, in the last para - Viz “…. the manner in which a sovereign state might acquire new territory is a matter for international law….”

Now that’s helpful and makes eminently good sense - to me anyrate.

Things to do ‘legally’, for stuff external to a sovereign territory, would have to be governed by ‘laws’ that apply to those territories and the High Court has just told us that this authority is international law.

Then thankfully the High Court tells us also, Brennan @33, that according to

E. Evatt, in the publication "The Acquisition of Territory in Australia and New Zealand" in (1968) -International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty.

No other way is presently relevant.”

That’s great, were on the right track now, this will be a piece of cake from here, just grab a copy of the international law that was in existence in 1770 when Lieutenant James Cook took possession of a great swathe of the the East Coast of New Holland for King George 3rd of England and we can start from there to see the structure of the title for the land acquired in New Holland and held by Crown of England.

So!

Here is a copy of Magna Carta. Relevant only to the history of England and of curiosity value only to 52 (of the total 195 sovereign nations) that are living under an adopted and retained to varying degrees, version of the English model of government.

Now European nation under the authority of this international law  seized lands in both North and South America, almost all of Africa, some of Asia, Australia and New Zealand and a swag of smaller islands - as colonies.

Now rather than list the sovereign nations that were conquered or occupied under this international law, it’s much more concise and useful to just list the ones that were not.

Japan; Thailand; Bhutan; Iran; Nepal; Tonga; China; Ethiopia; Korea;

9 out of the 195 listed sovereign nations of the planet were not affected by this international law, which means 186 nations were.

The United Kingdom alone controlled more than 36million square kilometres (mk2) or 24% of 149mk2 land surface of the planets, containing an estimated 50% of the then 1000 million global populations

But there is none!  No document that is! - No international law document - that can be discovered.

So if we have a copy of the Magna Carta, (1215) why don’t we have a copy of the international law referred to by the High Court (for 1770) and which affected eminently more people than Magna Carta ever did?

Well we just don’t - Get over it, seems to be the answer.

But here is where the shamble get worse. Not only is there no document but actually there was no ‘international law’.  Only the ‘idea’ which lives in the mind of some people, mostly lawyers.

So in 1770 when Lieutenant James Cook took possession of the East Coast of New Holland for King George 3rd despite what it is stated by the High Court of Australia’s decision on ‘Mabo’(Brennan @33), there was no ‘international law’ in existence-Fullstop.

In fact there is still no ‘international law’ today, (2017), in terms of what constitutes the entity we call “law” as recognised and developed by the societies of this planet since the time of the Babylonians.

Law’ is not only a concept, it is an entity with shape and form and like every entity it has characteristics by which it can be recognised and known BUT if it lacks those characteristics “…it ain’t what it says it is

If it doesn’t ‘waddle’ like a duck, it doesn’t ‘quack’ like a duck, it may be a Penguin, but it ain’t a duck.

And please don’t take my word for it, who am I but a lowly citizen of this country, not trained by the legal profession, instead take the words of one who is:

"Since there is:

  • no supreme sovereign in international law, for in the eyes of the law all states are equal; and

  • there is no legislative body with authority to enact treaties; and

  • no compulsory judicial tribunal with power to issue a judgment in absentia and before which states are obliged to appear; and

  • lacking any international police force or other enforcing body,

it is often claimed that international law lacks the characteristics of a legal system and cannot be regarded as law."

Curiously I see that Brennan @36 abandons the term international law in favour of sovereignty recognized by the European family of nations under the enlarged notion of terra nullius,” thereby downgrading the term 'law' to now just a 'notion' and confirmation that correctly, it was just was a family affair not international law?                            

Of course you can do and say whatever you like.

You can make up fairy tales and you can pretend the past can be changed. In practice the law does all these things, in spite of the prodestations of the most eminent scientist and philosophers.

For example physicists, using all the rigour of science say there is 'absolutely no possibility of ever going backwards in time travel or to intervene in an event which has passed' - but of course that doesn’t stop the alchemist of law from changing rocks into gold.

Since ‘law’ seems unwilling or unable to utilise the facility of science to review its own practices how about we do that for it.

Let’s look at the crucial components that would make up an entity called “law”

Firstly, all law must have a source of authority for its creation, whether it be:

  • some God;

  • a nebulous thing called the ‘law of nature' – (cited by Blackstone in the HC’s Mabo decision Brennan @35); or

  • a much more relevant, practical and scientific thing like ‘consensus from participants

Secondly it must resile in a concrete entity capable of delivery of the required outcomes. [Implementation and management (including enforcement)]

Thirdly, and contingent upon the existence of the first two criteria, is that the function and operation of the system must, not just seen to be, but in fact overseen by, an independent umpire - devoid of bias and self-interest.

Then the test of how relevant; robust and competent any particular “law” is, can be judged by the degree to which it delivers on these criteria.

As to international law in 1770, it appears that perhaps for the first criterion it’s source of authority may have been say the ‘God’ -Jesus Christ? or was he just 1/3 of God? - (Never did get to understand how that was worked out!)

It may have even been Moses’s ‘Yahweh’? Or maybe even a duality? I doubt if it was Muhammad’s ‘Allah’ or any of the 38 gods of the Babylonians or the 91 gods of the Mayans and so on.

Maybe it could have been the “law of nature”?

That would looks like a bit of a starter. So where do I find a copy of this “laws of nature” and when I find it, I take it that the “laws of nature” will not simply be a euphemism for the “laws of (my special brand of) gods”.

Perhaps given the fact it was 1770 and Europe had just gone through the Renaissance (the Age of Enlightenment) perhaps it was the consensus of the participants, option?

No, No, not just the participants who are going to apply the law but the participants to whom the law was to be applied - you know, the rest of the planet.

But of course we will never know because we don’t have the documents that would cites it’s source of authority.

Suppose just for the sake of fantasy we agree that the source could have validly been any one of these these authorities, let’s now turn to the second and co-dependent criterion - the august body charged with the implementation and management of the law.

I seriously doubt that it was a body created by the Peace of Westphalia agreement in 1648. That agreement only involved a handful of European nations and no august body was created to be the administrator.

No, not the League of Nations, with its measly 42 members – plus it was still a 150 years away.

No, not the United Nations with its little more impressive 77 members (of the existing 195 sovereign nations)  - plus it was a further 25 years on.

So who was it, this legislative body with authority to enact treaties,”?

What! there wasn't and isn’t any?

And what of the third criterion who is the “independent umpire”?

Again! there isn’t any either?

By the terms used in modern Australian law the adjudication criterion was - “self assessable”.

So what are we to conclude of international law in 1770 - Well exactly the same as now! – It was, - if you want the job done do it yourself. - The biggest DIY so far in history since the Romans.

So the fact are - In 1770 there were obviously a number of European countries which had got together, negotiated and perhaps even come to some formal agreements, (although no actual documentation of this can be located) about how they would carve up the rest of planet, without resorting to conflict between themselves, over act of acquisition by group members.

Even now (2017) for supposedly binding International Agreements, entities who are not part of the process of drafting or making the agreement or have not opted in to become a part of the International community responsible for it’s drafting, are not bound by such agreements.

Even those countries who have opted in to the agreements are not bound by them. See Australia’s treatment of legitimate refugees contrary to the international convention on the subject to which they are a party. Also see again the Tampa.

And get this - if any of the parties breaks these binding agreement there is no lawful International body or mechanism to adjudicate and no body or system with capicity to implement punitive or enforcement action.

Hang on your wrong there buster, I hear you shout. What about the International Court of Justice? (ICJ)

Well there is of course such an entity  but it is not a law court as we understand them to be. It is a blend between a mediation organisation designed to try and assist nations to settle disputes without going to war, by recommendation and a name and shame organization.

Their predecessor the Permanent Court of International Justice (PCIJ) was in existence before Germany went to war in 1939 and was in existence all the time the Germans were murdering millions of people for their religious belief and as best as I can find from research, never served on the German Nation  during that time a summons requiring their attendance at court and no decision was ever made in their absentia.

All the muscle and power that three major and two minor economic, industrial and military powers could bring to bear, struggled for 5 years, to bring to an end Germany's Territory acquisition ambitions and humans charnage.

The IJC has no better a history.

When the United States of America got an adverse finding in 1986 overs its covert war against Nicaragua the United States picked up it's bat and went home, agreeing only to turn up if it felt inclined to do so.

And what could the International Court of Justice do at that stage?

The United States was then unarguably the largest military power in the world. The ICJ had to rely upon the United Nations to enforce its rulings and the major powers of the planet all have a veto in the United nation.

So nobody was going to force these powers to do anything they didn’t want to.

Nothing about the ICJ is equivalent to the law courts within national soveringerty, as we know and understand them to be.

Even with the development of the United Nations with it's Security Council there is no single authority or facility for this organisation to take enforcement action. Such a course of action is left up entirely to the volition of its individual members, acting either in a block or singly by themselves under the Might is Right principal.

And this is the current situation in 2017 some 250 years after the annexation of a portion of New Holland to England under the guise of “International Law”.

I’m not even a lawyer but I’m pretty certain that the material in the High Court decision on Mabo, as it relates to International Law, is ‘hearsay’ evidence.

But all of this is purely academic because I’m reasonably certain that the High Court of Australia is still bound by a morphed version of the English law that provides that municipal courts have no authority to make a determination on acts of the Crown in relation to the acquisition of territory external to the existing sovereign area.

In plain English the High Court can not look at the way the land mass of Australia and of more relevance, the subject matter before the court, in relation to Murray Island, was 'acquired' by England in the first instance and Queensland in the Second

Murray Island

PSEUDO LAW

Sovereign nations, not having any lawful authority to annex foreign portion of the globe, even had a number of difficulties under the Pseudo Law when it comes to Murray Island

You see Cook, Captain that is, had had enough exploring by the time he got to Possession Island and no way was he going to try and navigate Torres Straight, which had already acquired a reputation for being a treacherous strip of water, particulary after winding his way through the Barrier Reef and almost becoming marooned for life as a consequence.

One can naturally appreciate he had enough of this journey and wanted nothing more that to get back out into deep water. So the portion of new Holland that was excised to the King of England ranged between two flags, one at the bottom of the land mass at what is now Victoria (38 ° South) and  the other at the top of what is now Queensland (10°43'South)

Opps! sorry missed Murray Island! Well acctually all the islands north of Possession Island. Oh Bugger! Never mind lets go home.

The High Court decision goes on to reveal some of them.

Terra Nullius

The derivation and etymology of the term reveals, as everyone in Australia now knows thanks to Mabo, arouse from the Latin language and deriving from Roman law, meaning - ' land belonging to no one

Hardly a very useful term for nations setting out to acquire land on the planet currently populated by about 500 million people.

So with the true facility of what law, if only it was one, has to offer in changing fact to fantasy or if you like a fallacy, a more obliging definition was needed.

But rather than invent a new term viz terra sorta nullius. They (the pseudo law makers) change more iron into gold or more correctly a ‘term’ into a ‘doctrine

The doctrine of Terra Nullius.

The High Court cites, Brennan @33, Worcester v. Georgia, also Chapters III and IV of the publication The Acquisition and Government of Backward Territory in International Law, by Lindley, (1926 ) as a taste of doctrine:-

 

 (1)…the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers provided:

  • the discovery was confirmed by occupation and

  • provided the indigenous inhabitants were not organized in a society that was united permanently for political action

(2)“…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……

(3)“…The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times …. for the acquisition of sovereignty over the territory of "backward peoples…”

(4)“…new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants…”

So terra nullius under the Pseudo Law doctrine now includes land occupied by:

  • barbaric people; or

  • non-Christians; or

  • non-European; or

  • non-civilised people; and or

  • non-cultivated by indigenous inhabitants.

So it seems on the surface, from these tasty morsels, set out in the High Court’s decision, that the authority of the doctrine of terra nullius’ was accessible only to European nations.

So to exercise the doctrine of this pseudo law one needs to be a ‘European nation’ - clearly Queensland in 1879 was and is still not - and as such had no access to this facility - worthless at law as it is.

Next the doctrine of terra nullius contains a number of criterion but on the surface doesn’t indicate whether the criteria are conjunctive or disjunctive.

The worst application for Murray Island would be the disjunctive one so let’s examine the Murray Island case on that basis

barbaric people

It is doubted that the Murray Island people could be classified as ‘barbaric’ given the example set by the ‘European nation’  including England, during the Reformation with their burning people alive, disembowelled them and subjected them to horrendous tortures - one would have to be pretty grotesque to exceed that test of 'barbarism '- So - Not Applicable

non-Christians

The Murray Islanders at the time of annexation (1879) had an active Christian Church which had moved to the island some years earlier. Every possibility exists that at least some members of the community on Murray Island were Christians- So - Not Applicable

non-European

At the time of annexation not all people on the island were non-European. Missionaries and administrative staff were European So - Not Applicable

non-civilised

At the time of annexation (1879) Murray Island people had in place all the hallmarks of civilisation in their social structure. Even individual ownership of land So - Not Applicable

non-cultivated by indigenous inhabitants.

At the time of annexation there was ample evidence of not only the existence of land cultivation undertaken by the indigenous inhabitants but evidence of a long history of suchSo - Not Applicable

So the annexation of the Murray Islands in 1879 by Queensland fails the test under the pseudo international law in existence on two accounts:

  • being exercised by a non-European nation (Queensland) ***; and

  • failing to satisfy the doctrine of terra nullius criteria.

Common Law

So let proceed having cleared up the Pseudo International Law.

Brennan@32

“Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. "

And

“Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.

We should start this section with the recap of where we are at - at present.

(1) There is no such entity as international law but the High Court seems prohibited from considering such a reality. So what are the implications for common law in this situation?

(2) Surely if the existence of a fundamental components necessary to define something as ‘law’ cannot be satisfied by a circumstance then any function of law under that circumstance must surely demise from the lack of oxygen.

But the pretence endures - as cited by the High Court:

Brennan @25

Stephen C.J. in Attorney-General v. Brown - (1847) stated the law to be –

“…..At the moment of its settlement the colonists brought the common law of England with them." - (In the same basket as thier black Pudding?)

Brennan @27

Stephen C.J. in New South Wales v. The Commonwealth (1975)

".. the prerogatives of the Crown were a part of the common law..."

 And cited then

Lord Watson in Liquidators of Maritime Bank of Canada v. Receiver-General (New Brunswick) (1892 )

"…the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain"

But not accepted by Brennan @ 28

“The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination."

So upon these premises, the High Court of Australia determined that it had authority to consider the implications of common law to land use in Australia as a "consequences" of the acquisition of this territory by the King of England.

The History of Land Acquisition

Where we have the benefit of written recorded history, in other places on this planet, you can see the previous behaviour of the human species. The evidence clearly demonstrates the behaviour is exercised not just towards other species on the planet, but our own.

We even now have palaeontologists and archaeologists considering the possibilities that modern humans bred with and then conquered and possibly eliminated other hominids evolving on the planet at the same time as us.

And if you need any further convincing, just study any of the modern species living on this planet and you will see similar characteristics of

  • population expansion; and

  • migration into new geographical territories; and

  • elimination of competition; and

  • depletion of resources.

All well recognised and well documented characteristics of evolution.

At what point of time in our evolution did we determine the 'moral' values upon which human behaviour must be judged and regulated?

The most common answer to this question is that we evolved these along with our development of 'religion'.

Religion being the word to define a set of beliefs about a higher level of authority which passes on to humans a set of codes, by induction or direct communication , and by which humans must live in order to find favour or compliance with that higher authority, either during their lives or after their lives have finished.

It is still cogently argued today that as we make the transition away from this form of 'religious' belief, to a set of values that are colloquially termed 'humanistic' popularised by the term "human rights", that we have taken with us still, the orignal tenants that were conjugated under this prehistoric belief system.

In the absence of this facility the only other option that could be supported by philosophy would be consensus. That is a system where a commonly held values are arrived at by a consensus process. Keeping in mind that consensus requires a negotiated outcome where all parties support the proposition.

Given that this process would be undertaken by humans, please don’t hold your breath waiting for an outcome

Further for people living in 2017 with the benefit of the gigantic explosion of information, we can see the frailties of such a system with so many of the things considered to be a universal fact or truth relentlessly being demolished by advancing information.

All of these factors are issues for the Australian community to consider in grappling with looking to find a solution  to perceived injustices in living - Yesterday and Today.

Warren Bolton