Cultivo microbiológico.

became known as the trail o f tears. See generally, Anthony Wallace, The Long, Bitter Trail: Andrew Jackson and the Indians, Hill & Wang, New York, 1993.

76 (1836) 1 Legge Rep 72. Compare Burton J in MacDonald v Levy (1833) 1 Legge 39, at p. 45, where it was argued that, with regard to laws, the colony was not conquered.

The paramount concern in Murrell was for order within the colony, and, in fact, the courts did not generally concern themselves with matters amongst Indigenous people outside the limits of the colony, or with matters concerning the commission of a crime against an Indigenous person by a colonist.77 In hindsight however, the actions of the colonists and the colonial administration were vindicated by the perpetuation

of a 'terra nullius mentality’.78 Henry Reynolds observed that:

Despite coming under the protection of the common law, over 20,000 Aborigines were killed in the course of Australian settlement . . . and neither lawyers nor judges appear to have done much to bring the killing to an end.79

The courts gave Indigenous peoples no protection against the acts of the colonists. The reciprocity of responsibility and protection under the law was corrupted.

Regardless of any natural law rights to retain even private rights or possession, in Australia prescriptions for peaceful settlement would not be observed in practice as the battles for land were already being fought and lost at the hands of the colonists.80 The settlers and squatters were aware of the claims of Indigenous peoples to particular tracts of lands but they had the intellectual affirmation of superiority and the sanction of the state, later reinforced by the law. What should not surprise, given the arguments put thus far about the willingness of the law to legitimate exercise of power by the state, is the judicial characterisation of the Indigenous peoples, as without land tenure system or ownership, divested of all pre-existing rights upon the assertion of sovereignty by the Crown.

77 See for example, public debate over the trial o f Wi War in Western Australia in January 1842, discussed in Reynolds, Sovereignty, op. cit., pp. 64-8.

78 Frank Brennan, ‘The Indigenous people’, in Paul Finn (ed.), Essays on Law and Government, vol. 1: Principles and Values, Law Book Co, North Ryde, 1995, p. 32.

79 Henry Reynolds, The Law o f The Land, 2nd edn, Penguin, Ringwood, 1992, pp. 1-2.

80 Hookey, op. cit., p. 6. See generally, Henry Reynolds, Frontier, Allen & Unwin, Sydney, 1987;

The Other Side o f the Frontier, Penguin, Ringwood, 1982; and Reynolds, The Law o f the Land, ibid.

In natural law, Vattel, op. cit., p. 141, affirmed the rights o f the Indigenous peoples to retain so much o f their land as was necessary for their survival under cultivation. Any more than this and Vattel cautioned:

Whoever agrees that robbery is a crime, and that it is not lawful to take away the property o f another, will admit without further proof that no Nation has a right to drive another from the territory which it inhabits in order itself to there.

The development o f the settlement thesis

The protection of the private rights of Indigenous people that had been alluded to in the early decisions was not pursued by the judiciary.81 Indeed, the denial of any continuing rights has been a distinguishing feature of Australian law until recently. The Australian legal system can be credited with an ignominious originality:

the distinctive and unenviable contribution of Australian jurisprudence to the history of relations between Europeans and the Indigenous people of the non-European world . . . was not to provide justification for conquest or cession of land or assumption of sovereignty - others had done that before Australia was settled - but to deny the right, even the fact, of possession to people who had lived on their land for 40 000 years.82

The colonial courts sought to draw a distinction between the Indigenous peoples in the Americas and those of New South Wales. The basis of the distinction was a test of social organisation as the threshold for the recognition of Indigenous peoples’ sovereignty and rights as well as laws.

There are a number of ‘justifications’ for non-recognition that have been used by the

courts to deny Indigenous law. For example, in MacDonald v Levy, Burton J denied

that Indigenous peoples had laws at all. Instead the inhabitants of the colony were described as ‘the wandering tribes of its natives, living without certain habitation and without laws . . .’83 The ‘scale of organisation’ test, as we have seen, had become a useful tool for denying Indigenous peoples’ sovereignty in international law. This particular interpretation of the test allowed the courts to ignore the fact of a self- governing and sovereign people with their own laws. In effect, the absence of an Indigenous legal system became an irrebuttable presumption.

Alternatively, it was thought that whether or not a system of laws had operated in the newly acquired lands prior to the introduction of the common law, any such system ‘gave way’ upon the assertion of sovereignty by the Crown. The justification for this

81 See discussion o f R v Bon Jon (SCNSW, Willis J, Port Phillip Gazette, 18 September 1841) above. 82 Reynolds, The Law o f the Land, op. cit., pp. 3-4.

83 (1833) 1 Legge 39, at p. 45. The same reasoning led the Privy Council to conclude that ‘there was no land law’ existing in the colony at the time o f colonisation: Cooper v Stuart (1889) 14 App Cas 286, at p. 292.

view was that the Crown had acquired sovereignty over the territory making the Sovereign the sole source of laws. The introduction of the common law therefore

extinguished the laws of the Indigenous people. Surprisingly, this view has

persisted. In 1976 Rath J, of the New South Wales Supreme Court, stated that ‘[ujpon Settlement there was, in the colony, only one sovereign, the King of England, and only one law, namely the English law’.84 On this view, the denial of Indigenous peoples’ rights under their own law and the imposition of the law of the coloniser were a corollary of the assumption of sovereignty. As a result, Indigenous peoples possessed only those rights recognised by the Crown.

The most pervasive justification has been based upon assumptions of superiority of the English law over any other system of law. While the courts recognised that a system of laws operated, it was held to be inferior to, and not cognisable to, the

common law. This approach differs slightly from that taken by Burton J in

MacDonald v Levy,83 In that case there was a presumption that the Indigenous inhabitants had no law at all. Here, while the Courts accepted that some system of laws operated, Indigenous society was assumed to be so inferior that the British law became the universal standard.

The Judicial Committee of the Privy Council gave credence to this view in Cooper v

Stuart an appeal from the Supreme Court of New South Wales.86 The Court distinguished New South Wales as ‘a colony which consisted of a tract of territory

practically unoccupied, without settled inhabitants or settled law’.87 Without

representation from the Indigenous peoples of New South Wales and without the benefit of any evidence, the Privy Council concluded that ‘[tjhere was no land law or

84 R v Wedge (1976) 1 NSWLR 581. Rath J followed the decision in R v Jack Congo Murrell (1836)