🚀 go-pugleaf

"Erik A. Mattila" wrote:
> 
> Wade Wofford wrote:
> > Seppo Renfors <Renfors@not.ollis.com.au> wrote in message news:<3DF724FF.A28B165@not.ollis.com.au>...
> 
> Hi Wade,
> 
> Whew! I gotta hand it to you...I thought Seppo's argument was so full of
> holes I didn't know where to begin.  

You are arguing against a much higher authority than me, you know.
That of the full bench of the High Court of Australia - and a 10 year
deliberation, study and argument on the subject. It includes raking
through all ancient cases with a fine tooth comb, from around the
world, mainly the "British" world that is.

> But surprisingly, I found a few
> minor points where I disagree with you...more "interesting" than
> "challenging," however.  I'll skip a lot to get to the point(s). I would
> like to comment on a few of Seppo's points also.
> 
> > Dear Seppo Renfors,
> 
> [Seppo]
> >>The government can do whatever it likes with that land, as it owns the
> >>land. No other person actually OWNS any land. The Government, at its
> >>pleasure, can allow other people, corporations and entities to occupy
> >>a piece of land -conditionally. The government may lease it, allow
> >>mining on it or sell a freehold title to it -subject to rates and
> >>taxes etc. All these other titles sit on top of that radical title -
> >>at the pleasure of the Government.
> 
> Just to get the terminology right, what you are talking about
> originally, in Roman land tenure, is called "dominium directum" - "the
> ultimate right to the soil." In Rome, the dominium directum was in the
> Emporer.  Today this 'ultimate right' is translated into "eminent
> domain." I don't think it's correct to claim that no person can actually
> own land because of this, simply because that is all land ownership as
> we know it intended. In other words, you are saying that the meaning of
> "to own land" is something other than what it actually is under any
> system of property in land.

That stuff may be interesting, but irrelevant. 

"Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz.
First, Those Statutes which were made before Time of Memory; and,
Secondly, Those Statutes which were made within or since Time of
Memory; wherein observe, That according to a juridical Account and
legal Signification, Time within Memory is the Time of Limitation in a
Writ of Right; which by the Statute of Westminster 1. cap. 38. was
settled, and reduced to the Beginning of the Reign of King Richard I
or Ex prima Coronatione Regis Richardi Primi, who began his Reign the
6th of July 1189, and was crown'd the 3d of September following: So
that whatsoever was before that Time, is before Time of Memory; and
what is since that Time, is, in a legal Sense, said to be within or
since the Time of Memory." 

"And therefore it is, that those Statutes or Acts of Parliament that
were made before the Beginning of the Reign of King Richard I and have
not since been repealed or altered, either by contrary Usage, or by
subsequent Acts of Parliament, are now accounted Part of the Lex non
Scripta, being as it were incorporated thereinto, and become a Part of
the Common Law; and in Truth, such Statutes are not now pleadable as
Acts of Parliament, (because what is before Time of Memory is supposed
without a Beginning, or at least such a Beginning as the Law takes
Notice of) but they obtain their Strength by meer immemorial Usage or
Custom" - (Matthew Hale 1713)

That is to say, common laws (Lex non Scripta) is as it has evolved
over the years and follows precedents made. So you see that Roman laws
are irrelevant.


> [Seppo]
> >>Where Native Title comes in, is that when the Government acquired the
> >>Radical Title to the land, it sits under all other existing titles -
> >>and that includes that of Native Title. Which in turn means all titles
> >>remain alive - at the pleasure of the Government, including that of
> >>Native Title.
> >
> [Wade]
> > A more honest way of phrasing this is that ALL titles, and ALL rights,
> > exist at the mercy of the government.  Brute force can subsitute for
> > actual legality, all too easily in many cases.
> 
> This is where I respectfully disagree with you, Wade.  I actually did
> some research on this...I had spent so much time in courts on Indian
> land claims issues that I began to notice that Indians were saying one
> thing and the courts saying another, when it came down to stating the
> case of ownership.  The two arguments simply weren't lining-up, and I
> wanted to know why.
> 
[snip long argument]

> I have yet to find one example that resembles Roman tenure in
> precolumbian America.  Even in elaborate and regulated systems such as
> the Calpuyec in Tenochitlan, the basic value of each member's
> inalienable right to the soil is upheld - even slaves were provided
> their ejidos.  It is for this reason that I disagree with your statment
> that "ALL titles, and ALL rights, exist at the mercy of the government."
>   By definition, an "inalienable right" would not be so constrained.

Generally speaking, Wade is right.
> 
> [Seppo]
> >>Native title, is really a shit of a title, because it can't be sold.
> >>Therefor it can't be used as collateral either so economic development
> >>becomes a problem.
> 
> "Native title" is a complete fiction.  

Well, that would concur with most every redneck's and racist's view I
know of. However it is a reality, it exists under British Law.

> In the Americas, for example, you
> can find just about every land holding scheme you can imagine, except,
> as I have mentioned above, a scheme resembling the Roman system.  In
> some of these systems, land can in fact be bought and sold, gambled
> away, inherited and so on.  I think you're only talking about "native
> title" as it exists in the minds of a colonial regime- such as was
> manifest in the U.S. Indian Allotment act, which defined Indians as
> "non-compus mentis" and therefore not qualified to be awared Fee Simple
>   title until the U.S. Attorney General found the individual to be
> mentally competent to appreciate the meaning of private property (which
> actually isn't private at all).

I'm not well versed in US laws in this area. Therefor I have no
inclination to debate it. I know it is considerably different from
that of Canada and the British laws have nowhere near the 'stick'
there as it has in Canada and Australia.
 
> [Seppo]
> >>It is for this reason the continuous unbroken
> >>contact with the land is necessary - so the right people get the
> >>Native Title. It is the only proof of the land belonging to a people.
> 
> Nonsense, Seppo.  I've mentioned the Yuroks earlier in this post, and
> they have a very rigorous private property system, where individuals own
> land, not villages or tribes.  The Indian Land Claims commission
> determined numerous claims based on ancestral occupation when a group
> was no longer on that land.  There are numerous ways to determine this
> other than continuous contact.  The famous Mixtec "lienzas" is a case in
> point - maps copied on linen from precolumbian sources that stood-up in
> a colonial court of law in Oaxaca to 'prove' aboriginal title.

PRE Columbian MAPS? That's it - now you've done it. They don't exist
you know :-)

You have missed the essential point I put in my original post. Indian
Law is NOT CANADIAN Law. Therefor it doesn't apply. The Canadian Law -
including that of the Common Law does. It is on these Laws you have to
argue a case - nothing else. Individual ownership may well have
existed. Such did exist on Murray Island (Aus) as well. However it
didn't survive, other than as a Native Title. However such Native Laws
are evidence of a prior ownership of a land - that's all.

[not interested in the USA - I don't know enough about it to discus
it]
 
> >>If people were forced off a land, at gun point, be it by troopers or
> >>settlers is now history. You cannot right a wrong, but committing
> >>another wrong. You cannot turn around and now dispossess another lot
> >>of people of their land either.
> 
> Sorry, kid, that's not the way the law works.  

It does.

> You've already
> acknowledged that the government can build a railroad track through your
> living room if it wants to, dispossesing you and your neighbors from
> your property.  Why the double standard?  A successful Indian claim
> would be no more dramatic than a new highway expansion project in terms
> of dispossession.

You appear to labour under the misconception that Native Title somehow
removes the radical title from the Government. It does not.

You have failed to comprehend the "Radical Title" issue and the
mechanism of the extinguishment of Native Title. I recommend you
re-read my previous post.



-- 

SIR -Philosopher Unauthorised
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