Constructing Law, Space, and their Subjects:
Landscape, Topography and Culture

Because different cultures attribute different significance to space and the relationship of humans to it, how they organize and control that space mentally and intellectually will vary. This means that the meaning of space and the objects of its governance will often be contested. This is important for understanding what happened in British colonial, and Australian and Canadian legal history.

The European government bureaucrat or settler would view land in terms of its potential for dividing up or exploitation according to a comprehensive, and often unyielding plan, emphasizing individual use and power of exclusion. The process of "mapping" the meaning of space and its organization for use would reflect this reality, as would the legal regimes developed and applied to facilitate the process of division. The vehicle for impressing this vision of space and its use and governance on the landscape was published maps produced by cartographers and surveyors. By contrast, Aboriginal peoples considered their relationship with the space they inhabited and its use in terms of a timeless process of the land and water and their resources being spiritually connected with and sustaining humankind. Earth and water and their product needed to be respected, and their bounty shared by the communities which depended on them. This did not mean an absence of what we would call "property rights" but rights and claims were imbedded in the consciousness of communities and their social organization, and emphasized corporate use, allocation and sharing. The "system" was embodied in oral tradition - in the myths, stories, paintings and songs of the people in question.

Consider and reflect upon the following.

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The idea of an ownership of land which included the power of exclusion was not only held by government bureaucrats. The prevailing sentiment amongst European settlers was that they wanted land over which they held dominion, with set boundaries, and to which they had clear legal title. These attitudes were strongly held, and reflected both their memory of what was familiar to the places from which they came, and at the same time their marginal rights in or outright dispossession from land in their homeland.

Consider the following passage from David Malouf's powerful novel Remembering Babylon (New York: Pantheon Books, 1993), pp. 9-10, on the mentality of a remote settler community in Queensland faced with the arrival among them of a strange white man, Jem, who acted like an Aborgine:

The country he had broken out of was all unknown to them. Even in full sunlight it was impenetrably dark.

To the north, beginning with the last fenced paddock, lay swamp country, bird-haunted marshes; then, where the great spine of the Dividing Range rose in ridges and shoals of mist, rainforest broken by sluggish streams.

The land to the south was also unknown. Settlement up here proceeded in frog-leaps from one little coastal place to the next. Between lay tracts of country that no white man had ever entered. It was disturbing, that: to have unknown country behind you as well as in front. When the hissing of the lamp died out the hut sank into silence. A child's murmuring out of sleep might keep it human for a moment, or a rustling of straw; but what you were left with when the last sleeper settled was the illimitable night, where it lay close over the land. You lay listening to the crash of animals through its underbrush, the crack, like a snapped bone, of a ringbarked tree out in a paddock, then its muffled fall; or some other unidentifiable sound, louder, further off, that was an event in the land's history, no part of yours. The sense then of being submerged, of being hidden away in the depths of the country, but also lost, was very strong.

In all of their lives till they came here, they had never ventured, most of them, out of sight or earshot of a village steeple that, as they stooped to carry stooks and lean them one against the other, was always there when they looked up, breaking the horizon beyond the crest of a rise or across open fields.

Out here the very ground under their feet was strange. It had never been ploughed. You had to learn all over again how to deal with weather: drenching downpours when in moments all the topsoil you had exposed went liquid and all the dry little creek-beds in the vicinity ran wild; cyclones that could wrench whole trees up by their roots and send a shed too lightly anchored sailing clear through the air with all its corrugated iron sheets collapsing inward and slicing and singing in the wind. And all around, before and behind, worse than weather and the deepest night, natives, tribes of wandering myalls who, in their traipsing this way and that all over the map, were forever encroaching on boundaries that could be insisted on by daylight (a good shotgun saw to that) but in the dark hours, when you no longer stood there as a living marker with all the glow of the white man's authority about you, reverted to being a creek-bed or ridge of granite like any other, and gave no indication that six hundred miles away, in the Lands Office in Brisbane, this bit of country had a name set against it on a numbered document, and a line drawn that was empowered with all the authority of the Law.

Most unnerving of all was the knowledge that, just three years back, the very patch of earth you were standing on had itself been on the other side of things, part of the unknown, and might still, for all your coming and going over it, and the sweat you had poured into its acre or two of ploughed earth, have the last of mystery upon it, in jungle brakes between paddocks and ferny places out of the sun. Good reason, that, for stripping it, as soon as you could manage, of every vestige of the native; for ringbarking and clearing and reducing it to what would make it, at last, just a bit like home.

An evocative historical treatment of this phenomenon of settler pressure for individual onwnership or control of land may be found in Don Watson, Caledonia Australis: Scottish Highlanders on the Frontier of Australia (Sydney: Vintage Books, 1997). Watson shows how Scottish Highlanders thrown off their clan (communal) lands in the wake of the 1745 Jacobite rebellion and also later in the cause of agricultural improvement, had no compunction about moving in, ejecting and appropriating the ancestral lands of the Kurnai, the aboriginal inhabitants of Gippsland, in what is now the state of Victoria, in the 1850s.

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The implications of European hunger for individual dominion over land in order to exploit it is illustrated in Sally Morgan's painting My Grandmother's Country (1989, synthetic polymer on canvas 183 x 122.5).