in one of the law courses that i'm doing (Jurisprudence - basically the philosophy of law) we're talking about Aboriginal land ownership in Australia and discussing what should and could be done about it.
it's a similar story to the Native Americans in North America - they were there first with their own culture and practises and laws and then white settlers came from europe, claimed it as their own and then imposed their own laws. they didn't conquer the land, because there was no recognised monarchy or nationwide government to over-throw, unlike in India for instance, rather they just thought "no-one owns this land, these coloured savages don't count, i'll have that" and settled down.
there were various reasons for why they thought the aborigines* didn't legally
own the land and i'll give a brief list here:
- the aborigines didn't work the land, they didn't cultivate it, and at the time the western legal theory was that for you to claim land as your own you had to improve the land in some way (eg. farm it, build an immovable house on it, build a road in it). this is sometimes referred to as the utilitarian argument (whether's that technically accurate, i don't know, but the term has been used). the aborigines rather just picked the fruit that grew naturally and hunted the animals which roamed free (they didn't plant their own crops or farm their own animals).
- the aborigines didn't reserve the same rights as westerners did with their ownership - western ownership gives you the right to exclude people from the land but aborigines didn't have that right.
- according to western law, ownership can only be held by individuals, but the land that the aborigines used was owned by the whole tribe/clan/band (even though companies can own property in western law, legally a company is seen as an indivudual "legal person" - a kind of legal fiction to get round this problem).
so that's why the westerners took the land as their own, since according to the legal thinking of their time no-one owned it, so they didn't have to fight anyone for it or buy it off anyone, they could just take it.
eventually (relatively recently) people began to change their minds and think that something should be given back to the aboriginal tribes who were dispossessed. North America seems to have done it best by introducing legislation (a public law approach) reserving particular areas of land to be governed by particular native american tribes, although this has its downsides too: some people think more should be done, both in the areas of land and in the legal relationship the tribes have with the land, for example there is a case of a Native American whose tribe was granted stewardship over a particular part of land, but one of the conditions was that they could never sell it on (which is accurate according to what the tribe's original title would have been) - except this poor soul was the last person left in his tribe and he didn't want to live there any more, he wanted to sell up and move on, just as anyone else in the country could sell their house, move to a different area and use the money to buy a new house, but he couldn't do it, and the courts upheld the legislation (as is their duty).
in Australia they've adopted a private law approach - individual Aborigine* clans bring civil actions against the state in court to get their territory back. some have been more successful than others but the court is unwilling to grant ownership of the land to the clans.
the courts analysed the situation as one of international private law - if there is a cross-jurisdiction scenario where, for example, a german court has to enforce french law for some reason, they have to try and enforce the nearest equivalent that their own jurisdiction has to offer - so they got "expert" anthropologists in to work with "expert" lawyers to try and figure out how Aboriginal law could be translated into Autralian law ...
first they identified "clans" and "bands" - clans were groups of people who predominantly stayed together and kept an eye on a specific area of land while bands were just temporary hunting parties, so they decided the clans had to best claim to the land.
next they tried to determine what a clan was. you could be born or married into a clan, so initially it looks sort of like a family, but you could also leave a clan or join one without any family ties (there are even records of white people being active members of Aboriginal clans, even as elders) so this didn't hold water. they then decided they could identify it as a sort of company, but there was no evidence of any kind of directors or hierarchy, rather people just worked together and if a dispute arised they would work it out themselves in consultation with the clan elders - so this posed another problem for the courts.
there was a case involving a guy called Mabo in which the court granted a clan
use of a stretch of land, but not
ownership, and it seems this is all that the courts can do since subsequent cases seeking actual ownership have failed. people who are critical of the Mabo outcome say that the Aborigines should use the land as they always have done without any kind of interference from the Aussie government (since they still
own the land and have ultimate control over it) and applaud the efforts of subsequent cases seeking ownership - they say that although they failed, they failed for the right reasons.
another serious problem encountered was that the anthopologists working with the lawyers often used the same words in a different meaning (eg. they'd say "ownership" where what they legally meant was "possession" - there's a fundmental difference between the two legal terms) and generally things would be lost in translation between the aborigines and the anthropoligists, and then more things would be lost in translation between the anthropologists and the lawyers. also my tutor said that the anthropologists went with their own prejudices, but i thought that was really dumb since these were experts, surely they would have been trained to have an open mind**? the issues in this paragraph piss me off to no end - surely the anthropologists would have had an open mind, and surely the expert lawyers would have expected the anthropologists to use legal terms loosly ... i know i would, for sure.
the public law approach (ie. legislation) seems to be the best way, but i hope you appreciate that it's a much more complicated task than most people imagine and it's not going to be possible to give everyone exactly what they want. the thing with the outcome of Mabo that i can't be bothered with is that the tribe can virtually do exactly what they have always wanted to do since time immemorial, so why do they care that they don't technically
own it according to a foreign legal system?
* aborigine with small
a refers to general natives of whatever country we're talking about in context, Aborigine with a capital, on the other hand, refers specifically to Australian Aborigines.
** one of the preconceived ideas that they had when they went across was that they should speak to the clan chief - but clans didn't have an individual chief - so when no-one could point to him they picked the biggest male and assumed his was the chief. in fact he was probably the lead hunter or warrior, or possibly just a big guy, when in fact the aborigines treated the land as a spiritual thing, and the spiritual leaders were often women, so when they start speaking to this guy about land and asking him leading questions like "do you own this land?" and "are you the chief?" or "do you have the power to keep others out of your land?" then he's going to want to sound like he's powerful and knowledgable cos he likes the attention (or so our tutor imagined) - so what the anthropologists got out of him was completely unreliable anyway. one of the things that i read which i think may have been obtained in this way was the idea that the clan
did have the power to exclude others from their land but this was never once enforced ... in other words they didn't have the power to keep the land for themselves ...