ABSTRACT

Two things follow if we take Mansell’s comment as a starting point for the study of property in Australia. First, land in Australia is a contested site, at a much more fundamental level than talk of estates and tenure would suggest. Indeed, observes Patrick Wolfe, to think otherwise is to miss the primary structural characteristic of Australia as a settler society. That is, ‘the primary object of Australia’s colonisation was the land’, rather than the surplus value that could be obtained from mixing native labour with it, as was the case, for example, in British India.9 Yet even liberal accounts that recognise the injustice of the British invasion tend to presume that the imposition of a new legal regime in 1788 meant the immediate or rapid dispossession of Aborigines. However, as Heather Goodall has argued, ‘the invasion did not see a rapid supplanting of one set of ideas with another. Rather, these differing systems of ideas about land came to operate simultaneously, in ignorance of each other or in open conflict, and sometimes in uneasy tension and fragile co-existence’.10 The nature of joint occupancy at any one time and place has depended upon a

host of contingencies: the time and place of white invasion, the international commodity market, the vagaries of labour supply, ideologies of philanthropy, Colonial Office policy, and so on.11 So land law cannot meaningfully be examined unless we proceed in a cross-cultural way – using ‘cross-cultural’ here as a rather anodyne signifier for a terrifying and complex history of imperial expropriation.