Commons and Enclosures:
Commons:
Res communis: communal property available to all.
Res nullius: land as nobodies’ property.
Public Good: non-rivalrous and non-excludable
Public domain resources: ‘the opposite of property’
Original Commons (Saxons):
Prior to the Norman conquest, common land was originally divided into common fields and common waste.
Enclosures:
Locke and others supported the idea of property become exclusionary.
Enclosure Movement:
The enclosure movement marked a shift from land held in common, customary tenancies to private, individual rights that were enshrined in law. During this shift, land became commodified.
‘Property must be made palpable, loosed for the market from its uses and from its social situation, made capable of being hedged and fenced, of being owned quite independently of any grid of custom or mutuality’. [1]
‘Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in freedom of the commons’. [2]
Anti-Enclosure Views [3]:
Some argue that there is now too much private property. Regimes like this can be seen in the redistribution of property in post-Soviet Russia.
There is a movement towards open access to research and education. [4] If more access is granted, more advances can be made. This desirable wider access to knowledge is hindered by having too many owners and property rights.
Native Title in Australia:
History:
Indigenous people have lived on the Australian continent for approximately 50,000 years. Civilisations date back at least 6500 years.
On August 22nd 1770, Captain Cook landed in Australia. Against orders of the Royal Society of London, Cook decided to not make a treaty with the indigenous people but claims the land to be terra nullius (‘belonging to no one’). This essentially meant that the land rights of the indigenous people were ignored.
Over time, the land was proportioned and commodified. This movement excluded natives from certain property rights, specifically related to the land that they lived and worked on.
Mabo Case [5]:
In 1981, Edward Mabo (along with others) takes his claim for native title to the High Court of Australia (Australia's highest court). Although Mabo dies before the judgement is given, the High Court invalidates Captain Cook’s terra nullius claim as a legal doctrine.
Types of Property in Australia:
As native title was not accepted by Captain Cook upon his arrival to Australia, the Crown was presumed to have both radical title and absolute beneficial title in its new colony.
‘That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature... the prerogatives of the Crown were a part of the common law which the settlers brought with them on settlement’. [6]
‘Radical Title’:
Radical title is what the Crown gets as a result of the fiction of feudalism as a remnant of its own sovereignty.
‘Absolute Beneficial Title’:
The absolute beneficial title is what the Crown gets when there is no other actual legal owner of the land.
‘Native Title’:
Mabo shows the acceptance of native title as a legal concept. The pre-existing rights of the indigenous people had survived the colonisation of Australia as the continent was not a ‘desert uninhabited’ when the settlers landed there.
Native Title Act 1993:
Following the Mabo case, the Native Title Act was passed to expand on the rights of native descendants.
Political Response:
Ray Groom (then Liberal Premier of Tasmania) accused Paul Keating (then Australian PM) of rewriting Australian history. He denied that genocide had even occurred in Tasmania.
Tim Fischer (then Federal Leader of the National Party) stated that Aboriginal dispossession had been inevitable and not something to be ashamed of.
John Howard (then Liberal Leader) claimed that giving the Aboriginal people the right to negotiate native title interests was ‘un-Australian’.
Paul Hanson (then Federal MP) believed the fight for land rights was a smoke screen to cover up a more sinister plot by Aboriginal people.
Other Indigenous Property:
Upon landing his ship, Captain Cook was greeted by two men wielding shields and spears. Cook hit a man with his musket, who used his shield in defence and retreated. The shield was dropped and is now on display at the British Museum.
There are calls for the shield (among other objects collected around the same time) to be returned to the native people.
Keenan argues that keeping the shield in the British Museum ‘reproduces the colonial logic of white British cultural experts making decisions for the benefit of indigenous communities…’ and denies ‘colonial reparations of the most basic kind’. [7]
Resources:
References:
[1] E P Thompson, Customs in Common (1976) [2] Hardin [3] M A Heller, 'The Tragedy of the Anticommons - Property in the Transition from Marx to Markets' 111 Harvard Law Review (1998) 621-688 [4] EG: Wikipedia, OpenOffice, Linux etc. [5] Mabo v Queensland (No.2) [1992] HCA 23 [6] New South Wales v The Commonwealth (‘the Seas and Submerged Lands Case’) (12) [1975] HCA 58; (1975) 135 CLR 337 (Stephen J) (quoted by Brennan J in Mabo v Queensland (No.2) [1992] HCA 23) [7] Sarah Keenan, ‘The Gweagal Shield’ (2017) Northern Ireland Legal Quarterly Vol 68 No 3 289
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