In northern Australia, pastoralists’ jurisdiction over Aboriginal people reflects the corresponding feudal rights to land and power. The feudal legal system is based on multiple layers of land possession beneath the ultimate title of the Crown. Each landholder is entitled to exercise power over their land and dispossessed workers. Consequently, feudal law does not centre power in one authority. When Australia was colonised, Britain introduced feudal land tenure throughout Australia. However, it was only in the pastoral north that feudal relations accompanied these laws. This is because landholders had an interest in exercising their right to power over ‘landless’ Aboriginal workers. This section will consider the role of Australian feudal land laws in dispossessing Aboriginal people, and dividing power between the state on behalf of the Crown and the pastoralist.

The feudal property principle, known as the ‘Doctrine of Tenures and Estates’, served colonial objectives of land expropriation and control. The Doctrine of Tenures provides for a ‘single devolving chain of title’ by ensuring that ‘no land in which the Crown has granted an interest is ever without a legal owner’.^[9] The Doctrine of Estates articulates the interests of those who hold land from the Crown to grant their estate to a lessee.^[10] The Doctrine of Estates and Tenures, therefore, allows coexisting interests in one piece of land at the same time. In northern Australia feudal laws materialised due to pastoralists’ need for Aboriginal labour. Not only did they have to answer to the ‘Crown’ by fulfilling lease requirements on their land,^[11] but they also had to accommodate Aboriginal land interests in order to guarantee their labour. Throughout the rest of Australia, feudal tenure tended towards a nominal form of Crown control.

Feudal law was a powerful vehicle for Australian land conquest, as it justified Crown control and legitimised Aboriginal dispossession. Feudal tenure, as the source of Australian property statute and case law, meant the Crown could parcel out huge tracts of land to productive and loyal tenants while retaining ownership. This stratified system of land law was routinely implemented in other English, French and Spanish settlements, via a land lease system, to allow the Crown ultimate control.^[12]

The High Court in Mabo v Queensland ^[13] confirmed the feudal origins of Australia’s land law. The majority claimed that the Crown acquired ultimate title, known as ‘radical title’, of all Australian land upon colonisation. Each substantive judgment made some reference to this feudal essence of land law as expressed in the Doctrine of Tenures and Estates. Despite recognising native title, these judgments upheld the feudal basis of Australian land law. In his majority judgment, Justice Brennan reiterated that the tenurial principle that ‘all lands are holden mediately or immediately of the Crown, flows from the adoption of the feudal system’.^[14] He posited that because colonial lands were the patrimony of the coloniser nation, the origins of Australia’s land tenure were found in the traditional belief that after the Norman Conquest in 1066, ‘the King either owned beneficially and granted, or otherwise became Paramount Lord of, all land in the Kingdom’.^[15]

The Australia Courts Act 1828 (Imp.) was the statutory instrument for the formal implementation of feudal laws. It traced all Australian land possession to Crown grants.^[16] Common law precedent affirmed feudal tenure in Attorney-General v Brown. This 1847 NSW Supreme Court decision overruled a challenge to the Crown’s sovereign title over tenures. Chief Justice Stephen explicitly stated that since settlement the ‘waste lands’ of the colony were in the ‘Sovereign’s possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown’.^[17] He referred to the British constitutional principle that the sovereign is the legal ‘universal occupant’.^[18]

To sustain the imposition of feudal tenure laws in Australian common law, the corresponding fiction of terra nullius — land belonging to no one — was invoked to show there was no pre-existing property title to universal Crown title. International law upheld that states could acquire foreign land legally, and apply their laws automatically, where land was terra nullius.^[19] This doctrine was manufactured to include territories inhabited by ‘backward peoples’, due to the purported benefits of Christianity and European civilisation, and Vattel and Blackstone’s eighteenth-century notion that land uncultivated could be claimed by occupation, as it would lead to land ‘improvement’.^[20] Their position drew on the modern justification of private property rights advanced by seventeenth century philosopher John Locke. This holds that common lands brought into production would ‘first begin a title of property’.^[21] This was confirmed in the Privy Council’s judgment Re Southern Rhodesia. ^[22] In Attorney-General v Brown, Chief Justice Stephen rejected that there were Aboriginal proprietors at the time of settlement, as all of the country was considered ‘waste land’.^[23] The assertion of feudal land tenure in Australia, therefore, was predicated on the Crown’s abnegation of existing Aboriginal land arrangements.

The interests of the landholder and the state are held together by a common endeavour to enforce the position of the ‘landless’. Proprietors enforce this directly, and brutally, with the backing of the state. In this respect their direct dispensation of power reflects their direct interest in the land. By contrast, the Crown’s interest in land is nominal and their exercise of power is remote. Therefore the dissemination of Crown title means the Crown’s powers are reduced to a ‘seigneurial means of expression’,^[24] and become the ‘weakest link’ in the feudal chain.^[25] In northern Australia, the Crown as supreme landlord had ultimate title to land but actual possession was in the hands of the pastoralists.^[26] The pastoralists used their possession initially to dispossess Aboriginal people of their land, to quell their resistance and then to exploit and control Aboriginal workers. For this reason, Queensland colonial commentator Walter Tyrwhitt stated, pastoralists were the ‘natural aristocracy’ in the social hierarchy due to their land claims.^[27]