17-07-2025
Spiritual sovereignties and questions of equity: How churches should respond to the Yoorrook Justice Commission - ABC Religion & Ethics
The idea that Aboriginal peoples possessed certain rights was well established in legal theories of the eighteenth and nineteenth centuries, but these theories had little to with actual practice in the colonial histories of New South Wales and Victoria.
The humanitarian concepts of Indigenous rights still allowed for the British Crown to assert imperial sovereignty in any part of the world not previously 'discovered' and claimed by a Christian prince. The Colonial Office in London could argue in 1839 that the English version of this Christian doctrine of discovery was more humane than its American counterpart, where theft of Indigenous lands was said to be covered by a 'decorous veil of law'.
In light of the recent reports issued by the Yoorrook Justice Commission, it is clear that the legal history of Victoria not only failed to live up to any humanitarian ideals, but that the churches, in particular, now owe reparations for profiting from sales of Aboriginal lands.
When the Aboriginal protectorate system was introduced by imperial authorities in 1837, it was designed to minimise the harms of colonisation while at the same time allowing the assumed benefits of civilisation and Christianity to flow into the colonies. The Aboriginal protectors were to defend 'the rights and interests of the Natives' and guard against 'any encroachment on their property, and from acts of Cruelty, of oppression or injustice'. But what did this mean specifically for the churches?
It was resolved that Aboriginal people would not be allowed to sell land, neither to 'private adventurers' — like the notorious John Batman — nor to church leaders promoting public welfare. Under the imperial Sale of Waste Lands Act (1842), one provision provided powers to set aside land for the 'the Use or Benefit of the aboriginal Inhabitants of the Country', and this became the foundation for the establishment of Aboriginal reserves.
Under the very same section of this Act, colonial authorities could reserve 'Sites of Places of public Worship'. On the face of it, the churches and Aboriginal people were given equivalent standing in the eyes of colonial law in the sense that each was due special consideration as a matter of public interest. Retrospectively, one might also acknowledge that the churches and Aboriginal polities each articulated their own notions of spiritual sovereignty.
The violence of settlement
When the barrister John Quick published an overview of settlements in the Port Phillip District in 1883, he divided the history into four distinct periods. He admitted that the initial settlement 'preceded government control in Australia; when land was selected and taken possession of by the first comer on the old principle of Roman Law, quod nullius est occupanti conceditur .' His Latin clause resonates intriguingly with the terminology of terra nullius , but the reference here is to private acquisitions, as in Roman law. Quick was talking about illegal squatting, dignified here with a decorous Latin phrase. He was not actually invoking a doctrine of terra nullius .
According to Quick, during the second phase of settlement, administrators attempted to restrain 'the unlicensed occupation of waste lands, and proceeded to impose upon the occupants payment of a nominal rent, reserved upon a yearly license'. The imperial Sale of Waste Lands Act arrived in 1842, and the control of land was turned over to the separate colony of Victoria when it was created in 1851.
An official review a few years later concluded that the early system of squatting was conducted 'in default of laws' and that landholders received — under the crude licensing system managed by Crown Lands Commissioners — only provisional rights to the areas that they claimed. The sale of Crown land was an entirely different matter from leases.
Thus even in the second phase of settlement as described by Quick (before the invention of leasehold tenure), the licensing system lacked integrity. It was a time of extreme violence. One survey suggests that around eleven per cent of the Indigenous population died in massacres in the Port Philip District between 1836 and 1851, without any of the settler perpetrators being convicted. The Yoorrook Commission notes that research is ongoing, but concludes that 978 Aboriginal people were killed in Victoria between 1830 and 1859.
Clearly, the Aboriginal protectors failed in their obligations to defend Aboriginal people from 'encroachment on their property, and from acts of Cruelty, of oppression or injustice'.
When leases of 'unsettled land' were first created, the lawmakers did not set out to exclude Aboriginal people from a pastoral run. The Australian leasehold tenures were unlike the leases in England which did indeed provide exclusive rights. An imperial theory imagined that these colonial leases could protect Aboriginal access in leasehold areas to 'the trees and water thereon as will enable them to procure the Animals, Birds, Fish and other food on which they subsist.' But in practice, exclusion was the order of the day.
It was only after the 1996 Wik v Queensland judgement that the historic technicalities in colonial law were rediscovered. Subsequently, it has been more explicitly asserted by the courts that pastoral leases did not extinguish native title.
'Wastelands of the Crown'
The peculiarity of the Australian leases may also be related in some ways to the influential view of the philosopher John Locke that only land under the plough could secure exclusive rights. When 'waste land' was enclosed for farming, the added efficiencies were effectively, in Locke's view, a gift to the economy. But the Chair of a Victorian Select Committee in 1859 highlighted a key problem with this theory of efficiency:
The rapid settlement necessary upon the country being occupied by flocks and herds was more unfavorable to the Aborigines than if it had only been gradually taken up for agricultural purposes.
In short, most of the land was not actually taken by the plough, as suggested by Locke's agrarian ideology — it was stolen by the pastoral industry.
Although Locke's approach to property was regularly invoked in the Australian colonies, a broader understanding of his arguments concerning 'the vacant places of America' reveal their striking inconsistency with the development of Australian law. In Lockean dreaming, property in the soil would arise from the plough, not from pastoral runs or from waste lands pre-emptively claimed by the Crown. Locke's Two Treatises of Government provided, in fact, a substantial critique of monarchic power.
Locke contested the readings of Genesis 1, for example, that had found in the biblical text a sanction for the Crown's authority. He located the early chapters of Genesis in the 'state of nature', where resources could be taken from the natural world — in this philosophical imagination — without compromising the interests of others. Contrary to a common assumption about monarchy, legitimate government could only arise from express consent to a social contract. But clearly, such consent was never actually sought from Aboriginal and Torres Strait Islander people at the foundation of the Australian colonies.
Thus, the Australian practice of selling Crown land effectively turned Locke on his head. Disciples of Locke, if they were blessed with consistency, should have been calling for treaties long ago. The very idea of 'wastelands of the Crown' was always a legal fiction, and the assertion of a feudal Crown in the Australian colonies was problematic even according to English law in the eighteenth century.
Treaties as truthful social contracts
It is difficult to see how the current legal conundrums can be remedied without a new federalist approach to constitutional arrangements within which the First Nations can become genuinely self-determining. Treaties are the most promising way to establish truthful social contracts that can embrace different concepts of sovereignty and different cultures of relationship with land and Country.
The outcome of a new treaty process in Victoria needs to move beyond the joint management of national parks — easily conceived under feudal tenure — to provide significant landholdings with the 'full and beneficial ownership'. This would not be a matter of the Crown achieving entirely new standards of justice or of awarding new rights to Aboriginal people on the basis of race. It would be a matter of compensating the descendants of the First Nations who lawfully governed the lands now known as Victoria and who were forcibly dispossessed of their estates.
Implications for the churches
The legal inequities in Victoria are especially evident when the vast landholdings of the churches are considered. These holdings have been acquired by various means, but a foundational source of wealth was, ironically, the State Aid to Religion Abolition Act (1871). Up to this point, the provision of resources by the state had been generous. While this Victorian legislation stemmed the tide of aid to churches, it also addressed the previous grants of land, providing that church 'Denominations may dispose of trust lands granted by the Crown and apply proceeds to denominational purposes'. After 1871, previous grants of church land became, by means of a simple process of registration, the property of ecclesial trusts.
If equity had been the order of the day, Aboriginal reserves would similarly have become the property of First Nation trusts, managed in culturally appropriate ways. Instead, the reserves became the sites of notoriously tyrannical management — often in the hands of Christian administrators — and after the amendment to the Victorian Aboriginal Protection Act in 1886, a weapon for breaking up families. Children of mixed ancestry were deemed white at the stroke of the legislative pen and removed from the missions and reserves. The Aboriginal estate in Victoria was steadily diminished.
The time has now come to turn that tide, and at the very least, restore every acre ever designated for an Aboriginal reserve (or perhaps negotiated equivalences). In the case of the churches, the Yoorrook Commission recommends that every piece of church land acquired 'for little or no consideration' be returned to the Traditional Owners of that land. Any attempt on the part of churches to reduce this to a biblical 'tithe' would be manifestly unjust. Negotiations about historic buildings may well be necessary.
A recent legal development can also be considered in this context. The High Court of Australia has recently handed down a decision of great significance for questions of compensation. The decision in Commonwealth of Australia v Yunupingu (12 March, 2025) relates to a claim lodged by the Gumatj Clan in the Northern Territory, but the outcome raises questions for the entire native title system in Australia. Notably, Mabo v Queensland (1992) excluded a land grant to the London Missionary Society from consideration. But now the past acts of the Commonwealth subject to compensation include the historic grant of a lease in Gumatj country to the Methodist Missionary Society.
This new ruling raises the question why the history of Crown grants of land to churches in Victoria should not also be subject to compensation claims. Quite apart from the niceties of law, however, if the churches are to be faithful to their own constitutive values and theology, they will need to lay aside state-endowed privileges and compensate the Aboriginal and Torres Strait Islander people who have been wronged.
Professor Mark Brett is a non-Indigenous biblical scholar who teaches at the University of Divinity.
Naomi Wolfe is a trawloolway woman who teaches history at the Australian Caltholic University.
They both live and work on unceded Wurundjeri Woi Wurrung Country.
