ETLJB 27 July 2009 European domination of Australia was effected through one of the most sustained genocides in the history of the human race. It was made justified by the most antihuman of all ideologies - racism - and ushered through it all by one of the world's greatest religions: Christianity.
The application of the doctrine of terra nullius in Australian constitutional and land law history - and the contemporary hegemony of racism that accompanied the invasion of the tribal lands of the indigenous people (and which continues to manifest in Australian society today) was one of the greatest legal lies ever told by lawyers that contributed to the extinction of nations, cultural destruction, and the centuries of sufferings, loss and grief of the indigenous Australians.
It was the obscurantism of racism that blinded the human intellect and tainted social policies and lead our ancestors to the perpetration of grave and widespread violations of human rights and the nigh extinction of the world's most ancient civilisation - the Australian aborigines - whose culture now lies laregly in ruins; whose lands which were misappropriated by the violent newcomers are now the engine of Australian capitalism and the foundation of the prosperity of the Australian nation.
According to the doctrine of terra nullius, there were no human beings on the Australian continent. Terra nullius obfuscated the terrible truth of the genocides.
Terra nullius provided the foundation of the moral justification for the genocides against the indigenous Australians.
The collapse of indigenous social organisation in Australia was the direct result of the massacres - though accompanied by other both planned and non-intentional deaths through the introduction of diseases previously unknown to the indigenous people and the soaking of indigenous communities with alcohol.
These massacres and abuses were committed in order to appropriate, occupy and exploit the tribal lands through the capitalist undertakings of the establishment of agriculture and animal husbandry and the harvesting of natural resources and to further the undertakings of the military dictatorship in creating a British colony - the establishment of settlements, the construction of roads, communications, prisons and courts. Land was the treasure sought by the Europeans.
And they meant to have it. At any cost; even to drenching the land with the blood of entire nations - of women, children and men. Innocent men, women and children. The emerging Australian state's hand was held through all these terrible traumas by none other than the institutions of Christianity who subsequently participated in the cultural destruction, the slave trade and other human rights abuses including sexual assault, and physical and psychological abuse.
The despicable inflictions of harm by the state and the church against the aboriginal people through the so-called aboriginal protection laws ensured the continued repression of the aborginal nationalism and that there would never be a resurgence of aboriginal culture that might once again challenge the new order of land misappropriation by demanding just recognition of their immemorial ownership of the continent; just compensation for resumed tribal land and compensation for past abuses. The land ownership of the whites would never be challenged.
The Crown began the alienation of tribal lands to the whites; practically giving away the most productive lands on the continent to the newly arrived private entrepreneurs. The system of Crown grants rested on the sovereign powers of the state. These powers are virtually unchallengable - even in the democratic courts. For 200 years, the British, then the Australian Crown, granted huge swathes of the Australian continent to private entities in fee simple.
The fee simple land grant extinguished the underlying native title forever.
In the endless plains of the dry region, the Crown granted less fee simples preferring; perpetual or long-term leases. This latter change of practice unwittingly permitted the survival of many native titles as the courts found that the farmers' leases did not extinguish native title as the fee simple grants had done.
At about the turn of the 20th century, the Australian states, beginning with South Australia, started enacting a statutory system of land title known as the Torrens title system. The central constitutive principle of the Torrens system is that the registered title to a fee simple (or any other registered estate or interest in land) is "absolutely free from all other estates and interests." The language of the law is rarely as unambiguous as this extract from section 42 of the New South Wales Real Property Act 1900.
These legislations were the final death-blow to native title. The process of the invasion, misappropriations and genocides proceeded unabated. The aboriginal nations were crushed.
The aborigines bravely defended their ancestral homes from the invasions. Mass armed confrontations between aborigines and the newcomers as well as a guerilla war of resistance was fought by the indigenous people but ultimately they succumbed to the genocide, abuses and slavery that was imposed on them by the civilised Europeans; within and outside the law. The ultimate weapon of the genocide was the Crown grant in fee simple.
Our illustrious nation's history revealed in the tragedies of the foundations of our land law was finally denounced by the High Court in 1992. In Mabo v Queensland (No. 2) (1992) 175 CLR 1; 107 ALR Deane and Gaudron JJ, spoke of the dispossession of Aboriginals from their land 'as a conflagration of oppression and conflict which was, over the (19th) Century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame' [at CLR 104]; and that it represented 'the darkest aspect of the history of this nation' [at CLR 109].
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