The famous Australian case of Mabo
v Queensland
(1992) ALR 1 (HCA) (which I will refer to as "Mabo")
involves indigenous rights and morality -- and my point in this short
article is that it also involves the notion of estoppel.
Indigenous
I have written elsewhere that there is
no such thing as "indigenous rights", in the sense that we
can never know that a particular group, race or nation are (historically
speaking) actually "indigenous" in relation to a certain territory
-- i.e. they may well themselves have replaced, or merged with, previous
populations, on arrival as settlers or conquerors. Indeed, they may
even have achieved their present apparently "indigenous" status
as the result of genocide. What, in that case, would their moral claim
to the land be ?
In any case, Mabo does not crucially involve the question
of anyone being literally "indigenous", since the parties
agreed that the islanders concerned had not always been present on the
islands. The key judgement of Justice Brennan does use the term indigenous,
but it is clear that he means it to refer merely to whatever people
were living on the islands in question at the time that Europeans arrived.
Terra Nullius
The United Kingdom gained sovereignty over Australia
(including the islands concerned), and the State and Federal governments
of independent Australia have inherited that sovereignty. The issue
in Mabo was what had happened to group and individual rights
over land as a result of this change in sovereignty.
Literally speaking, terra nullius refers to land that is empty
of human habitation, and such land has naturally been seen as available
for human settlement (absent some international agreement to the contrary).
However, the Western colonising powers developed the Extended Terra
Nullius doctrine, according to which a territory which was populated
by people who were deemed sufficiently economically and/or politically
underdeveloped might also be considered terra nullius. This
classification then meant that such a territory might be taken over
as if it was uninhabited, and its land owned by individual settlers
and groups of settlers. Under the other main methods of acquiring sovereignty,
conquest and cession, the colonial power would normally be obliged to
respect the property rights of the previous inhabitants.
Morality
Justice Brennan ruled in favour of the Islanders on legal, human rights
grounds, but he approached this case largely from a moral standpoint
-- which makes him a judicial activist. He states, on page 41 of the
judgement:
"It must be acknowledged that, to state the common law in this
way involves the overruling of cases which have held the contrary.
To maintain the authority of those cases would destroy the equality
of all Australian citizens before the law."
(We should note here, in passing, that, in fact,
there is a close connection between human rights, morality and religion:
this website is largely composed of attempts to force the human rights
establishment of so-called "liberal democracies" to grasp
the necessity of granting to men the same "equality before the
law" that Justice Brennan saw himself as according to the islanders.
The fact that this is so difficult is due to the fact that human rights
proponents have in fact learned a closed set of allowable rights --
which includes women's rights but not men's rights -- and their subjective
attachment to their moral sense of "human rights" includes
the protection of "intrinsically innocent" women against "intrinsically
evil" men as an important component.)
Justice Brennan engaged in some damage-limitation, explaining that,
revolutionary as his judgement undoubtedly was, in terms of Australian
law, it did not undermine what he called (on page 32):
"the skeleton which gives our land law its shape and consistency."
The Feudal Land-Tenure System and Estoppel
As Justice Brennan goes on to point out, the land-tenure system in
Anglo-Saxon countries is derived from feudal origins. In 1066, as is
well-known, the Norman Frenchman, William the Conqueror, crossed the
English Channel and conquered much of Britain. What is less well-known,
outside legal circles, is that he (in effect) declared Britain (which
was already inhabited, of course) to be Terra Nullius, and
took personal possession of the whole territory, delegating a limited
form of ownership to his knights (including one of my ancestors), who
could then delegate a no less limited form of ownership to their subordinates.
This created a feudal chain, and dispossessed the previous Anglo-Saxon
and Celtic owners, who the invaders no doubt considered somewhat primitive.
The term of art (i.e. technical legal term) Estoppel comes
-- appropriately enough -- from the Norman French word "estouper"
(= "to stop up"). According to the Oxford Dictionary of Law
(fifth edition, 2002), it means:
"A rule of evidence or a rule of law that prevents a person
from denying the truth of a statement he has made or from denying
facts that he has alleged to exist. The denial must have been acted
upon (probably to his disadvantage) by the person who wishes to take
advantage of the estoppel or his position must have been altered as
a result."
The paradox in Mabo is that the very
feudal land-tenure system whose skeletal principles Justice Brennan
was so keen not to disturb -- while abolishing the Extended Terra
Nullius doctrine with respect to Australia -- was itself founded
on the basis of that same Extended Terra Nullius doctrine!
It seems to me that Justice Brennan was estopped from denying
the validity of the Extended Terra Nullius doctrine, for the
reason that his denial amounted to a denial of the historical and legal
basis of the whole Australian legal system and also for the reason that
generations of settlers had acted, and a huge proportion of the economy
of Australia was based upon the assumption that that doctrine was valid.
Justice Brennan points out that that doctrine was based partly on ignorance
about non-European traditions of land-tenure, and no doubt he is correct
about this. It is also true that it is a purely subjective matter what
level of economic, political and/or technological development should
be characterised as "primitive", and that it is far from obvious
that being "primitive" (like being unborn) should give a person
fewer rights than anyone else. However, the World is not a fair place,
as both men and unborn children know -- or would know if (in one case)
they weren't brainwashed and (in the other case) they were allowed to
live to adulthood!
