This paper will endeavour to show that to preserve a social good we have a moral obligation to the future.

We have an obligation to ensure the heritage of our ways and demonstrations of being are part of a continuum. The past is as unreachable. Nothing we do, could, or might do will correct the past. It remains fixed, and it also remains only so long as we imagine it. The future is either happening all the time, or will never actually arrive in our consciousness dependent on individual philosophical conceptions. We live in a constant now. We are intellectually aware of the possibility of, and are reminded of the future as we see our children grow. As a natural consequence we plan. The preservation and transmission of mere things is fraught. Things wear or decay. Social perceptions of value or goodness inherent in things change. We should strive to nurture and transmit intergenerationally, or trans-generationally, what remains as valuable, as good. Heritage. The idea of heritage does not exclude the idea of things, but is more a focus on a sense of self and the realisation and acceptance that selfhood is a shifting concept. Whatever its content, a sense of self includes a sense of relationship and of place. This paper will endeavour to show the significance of place as a locus of generational perceptions of self and of continuity. Both of these ideas are regarded as good.

Suppose that my property, some form of stuff, was stolen. If the thief were apprehended, the law would ensure that, after due process, my property would be returned and the crime punished. But, as Waldron points out, the loss continues.
1

There was a

period during which I did not have the use of my asset. Returning my property does not address the problems I faced while I did not have it. Sentencing the thief does not affect me other than perhaps by salving some sense of justice procedurally served. But suppose that during my period of loss I had great need of the property. Suppose it to have been my car which I had needed as the only practical transport to visit a parent. Then suppose that parent had died without seeing me that one last time. What possible redress could I ever hope for? The immediate response might be that I could have taken public transport, or a taxi, or organised a friend or relative to collect me. Certainly, in some Posnerian, 2 Coasean
3

or Pareto 4 structured world, ceteris paribus this could have been arranged. Generally life

is not so carefully and strategically arranged that all things are, or could possibly be, equal in unpredictably changed circumstances. I will sense this unrequited loss for ever. There will never be that time and those circumstances again. Now imagine the sense of loss that might be felt if, instead of an irreplaceable, unrepeatable moment in time, my whole way of being is taken from me. Suddenly, all that I have ever understood of the ways of myself, my family, and my relationship to the ways of nature and the cosmos are taken away by beings who, in every way except their capacity to change the world, appear to be like me. They walk, they talk, they have families and children that they love, yet they do not understand. The interaction between these beings, these new people and their time, affects
1

2 3 4

Waldron J, Superseding Historic Injustice, (1992) 103 Ethics 4, at 14, in Materials: Aspects of Law and Justice 2: 2003 (Sydney Australia: Sydney University Press, 2003), at 68. [Henceforth, Materials]. Posner R, Economic Analysis of Law (Boston USA: Little, Brown and Co Inc, 4th, 1992). Coase R H, The Problem of Social Cost (1960) 111 Journal of Law and Economics, 2. Pareto Vilfredo, Manual of Political Economy [1909] (London England: Macmillan, 1972). 2

all future generations. It does not affect the past. Interestingly, though we cannot know when discussing future generations whether we talk of three, or many thousands, it would be seen by them as the past. Care must be exercised when discussing the past to distinguish between the past of now, and the now as past. Historians sometimes fail in this regard, viewing the past as having had the same sorts of ideas and motivations as they themselves aspire to. Only the future can be time bound. Records kept, whether by memory or some textual form, bind the future to reliably recall only that information. To revisit the past and to ascribe to it interpretations of the events is not reliable, merely an act of interpretation. Reliability may be granted according to the reputation of the interpretive manner and undertaker, but it remains relative only.

When the first Europeans arrived in Australia their aspirations and hopes were far different from those by whom they were followed. Many, lacking the advantage of a knowledge of longitude merely bumped into the western coast, never to be heard from until historical research revealed them. In 1606, Willem Jantz, supercargo on the Duyfken, led an expedition in search of gold. His achievement was to return to Batavia, whence he had come, with a report of the inhabitants and geography of the west coast of what is now Cape York. 5 His bleak findings did not inspire more than one expedition to follow him. 6

Though long known, the disparate evidence of this has recently been brought together by James Henderson. Henderson James, Sent Forth a Dove: The Discovery of the Duyfken (Nedlands Australia: Uni of Western Australia Press, 1999). Carstenz, 1623. All maps that survive are secondary or further removed, but the Nassau and Staaten rivers,which flow into the Gulf of Carpentaria still bear the names given them at that time. 3

This information has a direct bearing on the present in that the keeper of the stories of the past of the Wik-Gnathaan people told it to me from his perspective in 1986.
7

His country

lies on the northern bank of what is now the Kirke river, where Jansz came ashore for 9 days. That river is the border between the lands of the Wik and Thayorre peoples, who had a form of title in the now dominant common law manner given to them in 1996. 8 They had never thought of title as being lost to them at any time, though they were treated by all of the newcomers with whom they had contact as occupiers of Crown land. Little

consideration, if any, was given to whether they understood that the lands upon which they walked were now Crown land. This was the position assumed by the newcomers, who had re-appeared in that area from the 1870s onward. By the late twentieth century a more full realisation that the dominant social group had dispossessed them of their heritage prompted an attempt at using the control mechanism of the dominant group, the common law, to redress this situation. There was a realisation that they could not unwrite the recorded events that constituted dispossession; that was time past and beyond reach, other than by a process of recall. That recall did not give back what was lost but reinforced the sense of loss. Having no control over the past other than to recall it, and being pragmatic, they wished to resolve issues of the future.

The details of the actions of these visitors, the numbers involved and the actions they took, though not exactly alike, compare favourably with the written records, despite being held in traditional, non literate manner, for 360 years. It is to be expected that there would be culturally dfistinct appreciations. The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors (1996) 141 ALR 129, 187 CLR 1. 4

Despite the records of Jantz, Carstenz and those of the western coast, from 1778
9

to 1992 10 the sustaining belief of those who assumed dominion was that the whole island

that became Australia was void of sufficient signs of human order. So unapparent was the order and regularity that a claim that the lands were as terra nullius was virtually unchallenged.11 The belief that the many and varied peoples that roamed were, for all official purposes, without legal personality, was little disturbed by the facts. There were curious legal interpretations, or misrepresentations, of the reality. In the important case of Cooper v Stuart, 12 Lord Watson LC, referred to the absence of settled inhabitants [and] settled law in establishing the validity of English settlement. 13 He went on to declare that their Lordships had not been, referred to any Act or Ordinance relating to the reception of law, relying instead on the silent operation of constitutional principles. 14 Taken literally, and this was an important decision of the superior court, there were therefore, no people, so no laws. Neither was there recognition of the First Charter of Justice,
15

nor, for

example, the New South Wales Act [1823],16 the Australian Courts Act [1828],17 or even the Colonial Laws Validity Act [1865].18

10

11

12 13 14 15 16 17 18

Date of discovery of Australia by Lt Cook as he then was, and his report that it was effectively terra nullius was 1770, however, the date of 1788 for the initial dispossession is preferred, representing the actual settlement, and therefore the reception of British law. Mabo and Ors v Queensland (No. 2) (1992) 175 CLR 1 (3 June 1992). [Henceforth, Mabo ] URL: <http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/175clr1.html> . Castles A C, An Australian Legal History (Sydney Australia: Law Book Co Ltd, 1982), at 20. From the time of Cooks journey up the eastern coast in 1770 the entire continent was treated by Britain as territorium nullius under International Law . . . . [as] suggested by Vattel, the Aborigines were treated as peoples who lacked effective possession of the lands over which they roamed. Blackstone was of a similar opinion to Vattel. Cooper v Stuart (1889) 14 App Cas 286. Id, at 291, per Ld Watson LC, obiter. Id, at 292, 293, per Lord Watson LC, obiter. New South Wales Act (Imp), 27 Geo III, cap 2, and Letters Patent. New South Wales Act (Imp), 4 Geo IV, cap 96. Australian Courts Act (Imp), 9 Geo IV, cap 83. Colonial Laws Validity Act (Imp), 28 & 29 Vict, cap 63. 5

To add another layer of anomaly, the original Commission of Gov Phillip had required that he, open an intercourse with the natives and to conciliate their affections. 19

Between 1889 and 1967, various States enactments alternately recognised or invalidated the legal standing, citizenship or enfranchised status of Aboriginal people. An enactment of the Queensland government stands as possibly the most duplicitous. The Aboriginals Protection Act of 1897, 20 remains certainly the most notorious. The linking of the control of what was then considered the most pervasive and dangerous narcotic to the protection of Aboriginal people ensured that no parliamentarian could reject the Bill without being seen to approve of opium use. This was the act that established the Protector of Aboriginals and the reserves, missions, settlements or communities of, and ostensibly for, Aboriginal people. This was done without regard to their sense of place,
21

which in a

sense was entirely logical since occupation was predicated on them not actually being there. Then in 1967 a referendum ensured that, throughout Australia, Aboriginal people were constitutionally as equal as any other Australian citizen. actually the case. 22 Unfortunately this was not

19 20 21

22

Castles, op cit at n 11 above, at 23. Aboriginals Protection and Restrictions of the Sale of Opium Act 1897 (Qld). For example, the site for the community of Porumpuraaw, on the west coast of Cape York was carefully chosen to be midway between the traditional areas of two intensely rivalrous groups with the result that it is on the burial ground of one of them, and unacceptable to both. Yarrabah, near Cairns was where women clearly guilty of miscegany were placed with their children by the well meaning church group that organised the community. The people living more or less traditionally at Mapoon were compulsorily moved to New Mapoon in the territory of another group when their land was discovered to be a rich mineral resource. Between these two locations lies Aurukun, home of the Wik and Thayorre peoples mentioned at nn 5, 6, 7, 8, above. Categorising the treatment of groups qua groups is contentious, but it is generally accepted that while true in theory there are many instances, both documented and apocryphal, where the treatment of Aboriginal people was not to the standard of the treatment of other groups. 6

Within the hegemony of the British Commonwealth of Nations, failure to recognise even the legislated equality of persons, was apparent. Failure to recognise the morality of this position is to be expected when considered with the reality of the treatment of indigenous people throughout the British colonised world. Logically, the dominators would not consider those dominated to be equal or deserving of equal treatment since this contradicts the essential characteristic of domination. The preciseness of the claims of the original landholders was also a challenge to law since it demanded a recognition of an uncompensated wrong, a wrong that cannot be compensated since the past cannot, for all the reasons given above, be relived or reordered.

Claims by indigenous peoples newly made aware of the processes of appeals to law or to justice, is not unique to Australia. Delgamuukw v British Columbia,
23

In the Canadian appelate case of

which purported to examine competing ideologies

and interpretations of what individual membership of the Canadian polity might be, it was held that the appeal,
raises a set of interrelated and novel questions which revolve around a single issue -- the nature and scope of the constitutional protection afforded by s.35(1) to common law aboriginal title. 24

Initially the case was a claim by a consortium of First Nations leaders, each acting as the representative of their own special ways of being, and which were distinct from those of the other claimants, to a total of 58000 square kilometres of Canada. Their claim was . . . for ownership of the territory and jurisdiction over it. possible to imagine that they were not entitled as claimed. The individuated claims that were made were not addressed by the initial single
23 25

In their own terms, it was not

24 25

Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010, [Hereafter Delgamuukw ]. URL: < http://www.canlii.org/ca/cas/scc/1997/1997scc105.html >. Id, at p 1. Id, at p 2. 7

trial judge. Unilaterally, they were replaced by an assumption that the claims were to an encompassing form of aboriginal title, and judgment given on that basis. The decision substituted its perception of the cliams of the claimants for what had actually been claimed. The judgment granted recognition of a limited degree of entitlement to the use of unoccupied or vacant crown land, subject to the general law of British Columbia.
26

This

decision was then upheld by the Court of Appeal. The aims and aspirations of the original owners and occupiers were taken from them and a weaker version of what was assumed by the justice system to be their aspiration substituted. It was thought in some way that the First Nations people of whatever group, or whichever personality, had no rights other than those granted to them by post-arrival legislation; a Kafkaesque situation. By that

reasoning, the only questions they could bring to law were those for which there was already an answer. For Rawls, this would be a perfect example of a failure to be just, or to achieve justice, since he assumes that, as participants in social life , the parties,
[h]ave roughly similar needs and interests, or needs and interests in various ways complementary, so that mutually advantageous cooperation between them is possible [but they] take no interest in one anothers interests. 27

Lawyers and judges play a significant part in the inception, nurture, guardianship and projection of meaningful human rights as these are imagined to be and taken to law, or to justice. For Rawls, a practical rather than theoretical arena for the realisation of human rights is within the state, the arena of law.

26 27

Ibid. Rawls J, A Theory of Justice (Cambridge USA: The Belknap Press of Harvard University Press, 1971), at p 127. 8

The most general of choices which persons might make together . . . a constitution and a legislature to enact laws.
28

Within the disparate forms the state takes there is the

possibility of discussion and debate of the form of human rights justice, morality and good in the overlapping arenas that lurk between the law, jurisprudence and politics. The forms and varieties include, but are not limited to, the state welfare model, the common law model, and on through to the model recently exemplified in Pol Pots regime, where human rights ceased to exist.

The case of Delgamuukw, like that of Mabo, took the plea of the original people and interpreted it in the ways of the alien, a substantial move in the direction of depriving them of their human rights as that is manifested in having their pleas recognised. Delgamuukw was an opportunity to grasp the nettle of disparate groups and individuals seeking unqualified recognition of their way of being. That was their initial claim. The trial judge ducked. Whether by plain error of fact, and error of law, as proposed by the Supreme Court, or whether by conscious effort, though so subtle as to have escaped the notice of the claimants legal advisors, the precise reason for the rephrasing of the pleas in more traditional legal form, cannot be known to any other than Mc Eachern CJ. 29 It has yet to be disclosed. The simplest reason is often the most appropriate, though this is subject to exactly the qualifications on reliability of imputation outlined above. Central to the training in the common law necessary, but not sufficient, to become a judge, there is a training in the idea of stare decisis. The personal opinion is trained out of judges in order that a legal opinion be brought to bear on the matter. 30 They must absolutely not hide behind a veil of ignorance, no matter how thin or worn.
28 29 30

Id, at p 13. Delgamuukw v British Columbia, Trial Judge, BCCA CA013770 [1991] 3 W W R 97. This raises the question of where, if not in the person of the judge, the legal opinion might be, but this aspect cannot be pursued here. 9

When the law is to be applied to facts in the process of judgment, they must at all times be cognisant of the guidance of precedent. All cases are examined and found to satisfy, or to fail, the requirements previously held to be the standard. It is not necessary to find a decomposing snail to establish a lack of appropriate duty of care.
31

The only legitimated

advances of the law are those shielded by the legitimated practice of nuanced increment, 32 for fear of the taint of blatant judicial activism.

The Canadian Supreme Court found itself completely aware of the errors of fact and of law by the trial judge, and that this had been noted by the Appeal court. At no stage did it find itself able to remedy the situation. It was able to find that McEachern J had

been correct in recognising the right to aboriginal title existed wherever the Crowns radical title was otherwise unburdened. In the manner suggested by Mabo, the Canadian

aboriginal title was held to be a sui generis right to exclusive occupation and use of the land. The proofs required to enable the right to be exercised were a continuing integration of the land and the claimants to it. Also, it was required that there be a manifest, continued, though not necessarily unbroken occupation in traditional manner. As a title it was an inalienable burden on the Crowns radical title, one, which was not restricted to traditional uses.

As with Mabo, this logical burden of proof carried with it the reflexive idea that, since the form of title could not be granted other than by an exercise of sovereignty it could not be held to arise until sovereignty was exercised. That is, the title arose coincidental with, and not before, the assertion of sovereignty, even though the occupation had been recognised as existing since time immemorial. That is, the
31 32

MAlister (or Donoghue) v Stevenson [1932] AC 562. I believe this phrase should be attributed to Kirby J, but cannot trace it. It is not my own. 10

common law recognised some legitimacy in the basis for their claim to title, but was not able to grant the relief they sought. Their plea was not granted but conciliated to the degree capable by that common law; that is, substituted with a common law form of title. Aboriginal rights however, were recognised as having existed continuously since long before the assertion of sovereignty. The time of recognition, in a curious intellectual contortion, was therefore taken to be prior to the assertion of sovereignty, and first contact served as a sufficient indicator. The Chief Justice noted that the basic purpose of s.35(1) was, as he had previously found. It was to be, he had, stated in Van der Peet ... the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. 33 Significantly, he also stated that, the common law rules of evidence should be adapted to take into account the sui generis nature of aboriginal rights, pragmatically, [l]et us face it, we are all here to stay.
35 34

because,

However, from the claimants

point of view the recognition of aboriginal rights remains empty if what they said they wanted the court to decide was ignored or perverted into what the court imagined it thought they wanted.

The many, many joint claimants, each named in schedule 1 of the judgment, each with a personality, each with a distinct form of representation of their connection with the claimed lands, had been erased from the Canadian polity.

33

34 35

Delgamuukw, above at n 23, per Lamer CJ, at para 186, citing R v Van der Peet, [1996] 2 S.C.R. 507. URL: < http://www.canlii.org/ca/cas/scc/1996/1996scc72.html >. Id, at para 3. Id, at para 186. 11

The lower courts had transformed them into a single representative personality; that of Delgamuukw, a personality and plea capable of recognition. All of the resounding phrases of recognition and protection of rights were uttered as if all of these individuals were as one, which was the abnegation of a significant number of persons, all otherwise present and claiming recognition. They who were not Delgamuukw became Delgamuukw. But worse than this, the claims that they sought to have recognised were unilaterally voided, and substituted by words with which the court believed it was delivering justice. The whole point of this group approaching the law was to have their individuality recognised, and protected by that law which claimed that it could so do.
36

From a jurisprudential point of

view, it matters little which theory of justice is to be strived for if the basic concept of ones identity is not free of usurpation by the justice system. By the abnegation of the

personalities of so many people, though the court had granted a native title to Delgamuukw on behalf of all the claimants, they were in fact not served by justice. Each had sought that a personal connection to the lands of their past and future be recognised. Worse than the failure to recognise each claim as distinct and personal was the unremarked destruction of the individuals and their individuated links to past and future.

Though the intellectual appreciation of future generations may challenge as, according to Parfit 37 there is no such thing, the common appreciation of the moral duty to the future does not rely on an actual and existing child as representation. The idea of heritability, and the linked idea of children to enable the inheritance are fundamental beliefs. The thought experiment that had my father not met my mother I would not exist is, for me, the reification of an I, irrelevant. Me appreciates this tangible, sensible me, understood by me to be that I. If either parent
36 37

Constitution Act 1982 (Canada), at s 35(1). Parfit D, Reasons and Persons (Oxford England: Oxford at the Clarendon Press, 1984). 12

had not met, or had met another, the varying circumstances may have generated no children, one, or many. No child means no self. All other arrangements generate one or more self appreciating I, each of whom appreciates, and is appreciated by others, as an I. The disembodied persons in Delgamuukw, relied on there being some state intellectually appreciable as a future. It was to this innominate impersonal future they addressed their pleas. Because it cannot be proven, conclusively, that there will be a tomorrow does not immediately mean that there will not be one, except in the realms of the thought experiments that are the stuff of philosophy, and then only perhaps.

The law is a somewhat different arena that relies on the concept of future to give purpose to justice. Without a future that arrives every moment, there is not only no purpose in arriving at judgment, there is nothing. While intellectually stimulating, the philosophical position of there being only now is not a concern for the law or for justice. The fundamental concept of a moment following this one permits of all human activity, without which there can be no pleasure; or pain. There is a finite gap, occupying neuro time, between the stimulus and the sensation. It gives us the human capacity to

acknowledge the possibility of consequence, and of anticipation; of harm and of wrong; and of rights.

The case brought by Koiko (Eddie) Mabo was predicated on there being a future. The judicial system shares with him the concept of future, the time in which it will deliver judgments and give effect to them. The future would enable the idea of giving his land to his sons in the manner he had already promised to come to a ralisation.

13

The promises made linked the possible futures to the actual past, during which the practices of heritability had been formed. That was what drove him. He could not accept, when he was told, that his land, which came to him without the benefit of the common law, was not his by that common law. His future and that of his sons, based in the past and realised by the congruence of cognitive and normative expectations, 38 had been stripped from him and replaced by the strictures of the common law. He had no land. For him and his, this meant he had no future. It, along with all of his conceptions of self and of family, and consequent responsibility had been taken from him by the law. The law to which he now brought his plea.

Prior to the lodgement of the initial claim by him and others, 39 determination of which was commenced on 30 May 1982, and strongly contested by the State of Queensland, the legal position of the common law had been summed by Blackburn J, in what has become known as the Gove Land Rights case. 40 He had there stated that,
The evidence shows a subtle and elaborate system highly . . . adapted to the country in which the people led their lives . . . which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If . . . ever a system could be called a government of laws, and . . . not of men, it is that shown in the evidence before me.

However, as the issue before him was a matter of law and not mere fact,
[w]hether or not the Australian aboriginals living in any . . . part of New South Wales had in 1788 a system of law which . . . was beyond the powers of the settlers at that time to . . . perceive or comprehend, it is beyond the power of this . . . Court to decide otherwise than that New South Wales came . . . into the category of a settled or occupied colony. 41

38

39

40

41

For an elaboration of this idea see Luhmann N, Societys Law [trans K A Ziegert] (Sydney Australia: Sydney University Press, 2000). Celuia Salee, Sam Passi, Fr Dave Passi and James Rice, Mabo v Queensland (1986) 60 ALJR 255, 64 ALR 1. Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141. [Hereafter, Milirrpum]. Id, at 267, per Blackburn J. 14

Faced with a contradiction between the authority of the Privy Council and the evidence, his Honour held that Aboriginal relationship to land could not be recognised by common law as it did not conform to English legal notion of property, as that notion was delimited by precedent.

The law, as construed by Blackburn J, was not capable of answering the question put to it because, like the questions in Delgamuukw, the law could only answer questions that were capable of being subsumed within questions which it had previously answered. Questions therefore had to be put in such a way, or they had to be rephrased in such a way, that they were legally comprehensible. Actions such as these, where words used by those approaching the law are incomprehensible to a court and have to be manipulated, squeezed, changed into a legally comprehensible form, do not enhance the popular image of legal proceedings. Ideally, when looking into the pool of wisdom, like Narcissus, the law should take care to see beyond its own reflection. At some instant between 1971 and 1992 this must have happened. The point at which the nuanced

increment was brought within the law remains obscure, but permitted the enhanced view shown in this judgment

What was decided in Mabo was that any lack was not laws capacity but the capacity of the question to test its limits. As it had ever been, all previous questions asked of the law had been in some manner lacking. In this instance however, the nature of the question asked was so probing and subtle as to enable a discovery, a more complete apprehension of the law.

15

It was revealed that at all times,

the Crown's title [was] merely a radical title - no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law. 42

No previous decision had been in default of wisdom or vision, because no previous decision had demanded of the law the answer to this very particular question. Was radical title a complete description of the form of title arrogated to the Crown on settlement? The answer was, in all of the circumstances of Koiko (Eddie) Mabo, as himself, and as a representative of the Meriam people, with special regard to the lands claimed on Mer, no. The new decision left the common law untrammelled, and more encompassing. For how long the idea had been lurking, unrecognised, that the radical title to land nurtured within it, unrealised, a separate and distinct beneficial title was not asked, and therefore not required to be answered.

The answer in respect of the other two islands that comprise the Mer group was reserved due to the question being significantly different.
43

The plaintiffs Passi and Rice

claim rights and interests dependent on the native title of the Meriam people, not as interests dependent upon Crown grants. They sought not a declaration that there was a form of native title, but whether, if such scheme existed, their claimed rights had survived. 44
In the absence of any party seeking to challenge their respective claims under the laws and customs of the Meriam people, the action is not constituted in a way that permits the granting of declaratory relief with respect to claims based on those laws and customs

His honour continued,

42 43

44

Mabo, above at n 10, per Brennan J, at para 56. It was held that to answer with regard to the lands claimed on Waier and Dauan Is was not practicable [Brennan J, at para 94, with Mason CJ, and McHugh J agreeing], or inappropriate [Deane and Gaudron JJ at para 76] to answer the question. Toohey J did not mention the topic, and Dawson J rejected this claim with the principal claims. Id, per Brennan J at para 94. 16

[E]ven had the findings of fact been sufficient to satisfy the Court of the plaintiffs' respective interests. Declaratory relief must therefore be restricted to the native communal title of the Meriam people. The plaintiffs have the necessary interest to support an action for declarations relating to that title. 45

Effectively that meant that they were not asking an appropriate question. They should reflect, seek advice if appropriate, and approach at another time with a reformulated question. This question was resolved only on 14 June 2001, nine years later. In the Federal Court, Black CJ answered that on these islands, and by the operation of native title now subsumed within the common law, their interests subsisted. Their claim to their land was sufficient. 46 There was, and always had been, both a radical title and a beneficial title. The law was sufficient to support the existence of a form of native title, and by that title their claims were good. Their title was good as claimed. In that sense, they were afforded a more thick justice than that evident in Mabo or Delgamuukw, since there was no substitution, by the law, of their claim for what it was thought that they wanted. There was no need. The question asked of the law had permitted the law to respond. Justice was therefore seen by the common law to have been served.

This rehearsal of the processes involved in contriving a meeting of the common law and the expectations of it are not new. The question of a whether native form of land holding and title existed was difficult to answer because of the many years, and many cases, that had patently not been asking the perfect question; the appropriate question.

45 46

Ibid. Passi on behalf of the Meriam People v Qld [2001] FCA 697 (14 June 2001) URL : < http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/697.html > . 17

However, careful examination showed that, at the beginning of the seventeenth century,

47

the common law recognised and accepted that the traditional heritability of land in Ireland be adequate by native title, and that lands had been held time out of mind according to the Brehon, or native law of Tanist.
48

In this instance however, once again the particular

native form of title did not survive the planting of the common law consequent on the conquest of Ireland. But an idea remained.
At that stage in its development, the common law was too rigid to admit recognition of a native title based on other laws or customs, but that rigidity has been relaxed The general principle that the common law will recognize a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title. 49

Prior even to this case, the common law had been asked about the rights of natives to claim title to their land. That question had resulted in the establishment of the formal date of legal memory. After the conquest of England, in a manner somewhat similar to that shown in Australia and Canada nine hundred years later, the natives continued their customs of transfer among themselves what land they imagined they retained. Soon, so many were the claims to land taken to law, which was owned by the invaders, that it was deemed a solution was necessary to stem the increase in contested titles. By native custom and law it had been valid for witnesses, upon oath, to declare a claimant seized if the memory of man run not to the contrary. However, the first Statute of Westminster,
50

put

an end to this. September 3, 1189, the death of Henry II and the consequent accession of Richard I, was established as the date of legal memory. 51 Henceforth any claim of right not supported by the new idea of writing would be defeated by any deed. The customary native practices were proscribed by the conqueror, and excised from the common law.

47 48 49 50 51

Case of Tanistry, [1608] Davies Reports 28, 80 ER 516. F H N (sic), The Case of Tanistry, (1950) IX(1) Northern Ireland Legal Qly 215 221. Mabo, above at n 10, per Brennan J at para 66. Statute of Westminster (1275) 3 Edw I, cap 1. Nash M L, (1989) 139 New Law Journal (Dec 22) 6347, at 1764, 1765. 18

Recognition of native practices was granted in 1971,

52

but full cognisance followed by

consequential grant of validity was not given. As had been the case in Delgamuukw, in 1992, effect was granted within the broad constraints of the common law, the law of the dominant.

The date of legal memory is more than of antiquarian interest. If ever there were evidence of the need for lawyers to mediate the gap between the law and community it is here. Who but a lawyer could conceive of the law in twenty first century Australia needing to note a thirteenth century law of Edward I, more than seven hundred years, and half a world away. There is still a need to refer to this date in Australian cases. 53 There are only two cases on the equivalent English database. 54 This follows, since the law is more vital and more actively challenged by circumstances in Australia with regard to lands and tenure. Australia is just beginning its romance with concepts of relationship to place and to land, that have not previously approached the law for recognition.

What is also shown is that at no time in those seven hundred years has there been any attempt to change the past. This is practical evidence of the wisdom of the law. The past is unchangeable and unrectifiable.

52 53

54

Milirrpum, above at n 40. Cth of Australia v Yarmirr [1999] FCA 1668 (3 Dec 1999). Native title to seas. Pfeiffer Pty Ltd v Rogerson C14/1999 (2 Dec 1999) HCA. Constitutional law, s118. Dietrich v The Queen (1992) 177 CLR 292 FC (13 Nov 1992). Criminal law. Golding v Tanner [1991] SASC 3013 (18 September 1991). Real property. The Recognition Of Aboriginal Customary Laws. Reconciliation and Social Justice Library. Gandangara v Minister - Crown Lands Act [1996] NSWLEC 223 (5 Sept 1996). land rights. All at URL: < http://www.austlii.edu.au/cgi-bin/sinocgi.cgi? > . Loder v Gaden [1999] EWCA 3420 (28th July, 1999) Right of way. R v Oxfordshire C Ccil [1999] UKHL 28 (24th June, 1999). Rights to commons. At < http://www.bailii.org/cgi-bin/sinocgi.cgi? > . 19

No form of justice can ever hope to arrive at that situation noted above, where ceteris paribus, a scheme of justice reliant on restitution, retribution, distribution or redistribution can hope to make things as they were. How can it be imagined that that there could be any reasonable form of control over the events that flow from that past to this present. No legislator in the twelfth century, making laws for all time, could have imagined how the landholding system would be challenged in the future, but arrangements could be made to ensure the future would be able to rely upon the past by committing the ideas of the present becoming past to writing.

That was the situation then, and there is still no realistic prospect of controlling the future. Some therefore do not feel that taxation, levy or other forms of imposts now, but intended for future use and benefit, are reasonable. are, he states,
[i]nstitutions that provide for education and culture . . . and keeps positions and offices open to all [which would be] in jeopardy when inequalities of wealth exceed a certain limit. 56 . . . .
55

Rawls argues that there are. There

He continues that,
[T]axes and enactments in the distribution branch prevent this limit being exceeded . . . . resources must be released to the government so that it can provide for the public goods and make transfer payments necessary to satisfy the difference principle. 57

It seems only reasonable that the present should care for the wellbeing of posterity. That is what Delagamuukw, Mabo and Passi had sought to do through the recapture and linkage with what sustained them; their heritage. They had not been granted precisely that. Their heritage was not returned to them as that was no more possible than had the return of the opportunity of visiting my parent been to me. They had the purely intellectual, but nevertheless sustaining linkage, of a proprietary
55 56 57

Intriguingly, this is despite the oft repeated promise of a future secured by investment now. Rawls, op cit at n 27 above, at 278. Ibid. 20

entitlement to their lands and places of significance returned to them.

For society at large, there is an increasing danger of the loss of heritage through population pressure on resources. Without taxation or some similar ordered redistribution of wealth there is a danger of too rapid a depletion of scarce resources. One particularly scarce resource is our individual sense of heritage; our sense of belonging to a familial group. Each family has an individuated group of memories, aims and ambitions. There is therefore an intrusion of the political. Where the limits of these concepts lie, is a matter of political judgment guided by theory, good sense, and plain hunch . . . [o]n this sort of question the theory of justice has nothing to say.
58

However, it follows rationally, that

those caught by legislation that enables them to pay now for that which benefits others, such as aged care, are in fact preparing the way for themselves. They are buying facilities with income or resources at todays prices that, if the past is any guide, would cost them more in the future.

Previous generations have imagined the distribution of lands as somehow without limit. All have reasoned their jurisprudential justifications and their schemes of distribution of land neglecting an idea that is now central to current thinking. Land is finite in both space and time, and what there is now must be cared for, not simply as land has in the past, 59 but with a view to an unending future of increasing population densities coupled to finite resources. Aspects of ecological threat are immediate concerns. In this regard, these are the good old days, and there must be current concern inter-generationally, between us and our children,
58 59

Ibid. Concepts of waste of land or its resources have pervaded the common law for many centuries. Some would be surprised by the extent and range of laws of a strictly conservational intent dating from Tudor times. 21

but also trans-generationally, involving us and our childrens children. Our concerns must have in view the generations yet to be conceived, as Delagamuukw, Mabo and Passi had in view when they sought to recapture the sites of their heritage.

What decisions are made now bind the future to our vision of it. With regard to the natural world which we inhabit with others life forms, Rawls would seem to want to leave his options unaddressed in any substantial way. He is ambivalent.
(N)o account is given of right conduct in regard to animals and the rest of nature. . . [no] capacity for a sense of justice is necessary in order to be owed the duties of justice [but] it does seem that we are not required to give strict justice anyway to creatures lacking this capacity. But it does not follow that there are no requirements at all in regard to them, nor in our relations with the natural order. 60

As McEachern J had avoided the principal issue in Delgamuukw, Rawls does not venture into an exploration of larger, more contentious issues. This is perhaps because he cannot contrive an original position for life forms that do not freely communicate with the principal focus of justice theories; - us.

We communicate with our children, and they with us. By Rawls overarching standard, therefore, it follows that there should be a place for a theory inter-generational justice that concerns their regard for us as there is for our regard for them. Contractarian theory requires that people are only bound by understandings that they approve of. How then are young children to be regarded, when, as a generalisation, they have to be taught what is regarded as a normative set of behaviours? Clearly the very young cannot be held to this undertaking. As we age our capacity for rational behaviours, and to an extent our normative behaviours, alters. Our relationship to our family alters as we cease to be principally parents and become, more generally,
60

Rawls, op cit at n 27 above, at 512. The arena of the natural world and our role and place in it has become more intensely contested and relevant since his initial publication. 22

grandparents. It becomes more the task of our children to care for us as we once cared for them.

Populations are increasing. As a consequence of improving cultural practices in medical knowledge, personal care and prudential ways of being, we are trending toward a greater percentage of our population being in need of resources directed to the maintenance and care of the aged. In other words, our responsibilities are now, but our obligations are, as they have ever been, to the future. We palliate the demands of the future by deciding now how our resources shall be taken up. We leave our chattels and our personal property to the future with conditions on distribution or advantage. We call this the testamentary process. But of our future demands on the natural resources shared in common we are silent. What we believe and take to be ours is as precious to us as any of the physical, emotional and intellectual components of the self that were sought to be regained by the litigants above. In a well-ordered society a sense of justice belongs to a persons good, and so tendencies to instability are kept in check if not eliminated.
61

The stabilisation of

expectations by keeping them in check is not simply an intellectual project of Rawls. 62 It is central to ideas of continuity of family and heritage. Locke proposed that ownership of property was a trust, established by the demands of equity constructively, even if not committed by some testamentary provision, which we entered into with, and on behalf of, our children. Concepts of testamentary freedom have ensured that we are able to give this some legal effect. To some extent we are able to apportion approval or otherwise of the loyalty or care expressed by our children for their heritage by such testamentary freedom. Embarrassment is removed as a social cost to us by being dead at the realisation of these sorts of provisions,
61 62

Id, at 513. This idea is central to the project of Luhmann also. See above at n 38. 23

so even here we are able to provide for ourselves a good. There is the added advantage of removing from our children the burden of apportionment of mere things. That must also count in some measure as a good to be preserved.

Our best efforts should be directed toward a just future. This is not to ignore the past or to make some declaration that, that was then and this is now, in an attempt to avoid or negate the consequences of the action, inaction or capacities of our ancestors. We are the ancestors. Koiko Mabo was well aware of this, which is why he strove so hard to recapture his heritage. His land was not his heritage, it was a signifier and the realisation of it. It was heritage that he sought to make available to the future as a solemn trust for the generations to come in their striving for a sense of self and a sense of place. The rest is mere stuff.

24