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The Doctrine of Discovery in Australia and the United States

The Doctrine of Discovery in Australia and the United States. Professor Robert J. Miller Lewis & Clark Law School Portland, Oregon, U.S.A. Johnson v. McIntosh, 21 U.S. 543 (1823). Country settled on Discovery & Conquest Discovery limited tribal land rights

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The Doctrine of Discovery in Australia and the United States

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  1. The Doctrine of Discovery in Australia and the United States Professor Robert J. Miller Lewis & Clark Law School Portland, Oregon, U.S.A.

  2. Johnson v. McIntosh, 21 U.S. 543 (1823). • Country settled on Discovery & Conquest • Discovery limited tribal land rights • Discovery limited tribal sovereign rights

  3. From Ambrose & Axtell, L&C Voyage of Discovery (1998) Louisiana Purchase - 1803

  4. Elements of Discovery • 1. First discovery • 2. Actual occupancy • 3. Preemption/European title. 4. Native title • 5. Sovereign and commercial rights • 6. Contiguity • 7. Terra nullius • 8. Conquest 9. Christianity 10. Civilization

  5. Australia & Discovery • “Civilization did not begin in Australia until the last quarter of the eighteenth century.” Clark, A History of Australia (1962) (repeated in Cathcart’s revision 1993). • “Aboriginal sovereignty over Australia has been denied in practice and in law.” Nettheim, 2 L. & Anthro 380 (1987) • “plaintiff’s . . . claim of continuing sovereignty in the aboriginal people . . . is inconsistent with the accepted legal foundations of Australia deriving from British occupation and settlement . . . .” Coe, (1978) 18 A.L.R. 592, aff’d (1979) 24 A.L.R. 118.

  6. Mabo v. Queensland [No. 2] (1992) 107 A.L.R. 1, 175 CLR 1. • “The preferable rule . . . is that a mere change in sovereignty does not extinguish native title to land.” 107 A.L.R. at 41. • The Court rejected the principle of terra nullius. Id. at 20-22. • “The lands of this continent were not terra nullius or ‘practically unoccupied’ in 1788.” Id. at 82-83.

  7. Sovereign Subjects (Aileen Moreton-Robinson ed. 2007) Falk & Martin quote J Brennan in Mabo “recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.” Terra nullius replaced by acquisition of sovereignty & Australia by “Act of State” and is non-justiciable Gary Foley – British law 1788, 3 ways coloniser acquired sovereignty over new territories – conquest & pay; Indigenous populations cede their sovereignty & get paid; terra nullius & no payment Mabo allowed dispossession without compensation

  8. Australian historian David Day Claiming a Continent (2001) Three layers to the claim of Euro-Australians to proprietorship of the continent Legal claim asserted by discovery (planting a flag) or conquest Claim of effective proprietorship – physical occupation and dispossession of orig. inhabitants Claim of moral proprietorship (harder to define) but arises over time as supplanting society develops links to landscape and new homeland

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