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UK Crown owes 20,000 1836 English Pounds plus interest to South Australia's traditional owners Patrick T. Byrt April 10, 2004 - Vesper Tjukoni has publicised how the British Chancellor of the Exchequer issued 20,000 English Pounds worth of "Exchequer Bonds" from 1834 to 1836 to secure the 20,000 English Pounds that the promoters of the Wakefield Scheme were required by the Crown to raise before the South Australia Act 1834 could have any legal effect. There have been Aboriginal court actions in Qld for payments to the descendants of trackers going back to the arrest of Ned Kelly, the actions over the "Nigger Brown" football stand, and for stolen wages, and in WA for the constitutional promise to pay 1% of WA Revenue to Aboriginal people there. South Australia faces a treaty claim. The circumstances surrounding the establishment of South Australia have not been yet litigated. The plan for the settlement of South Australia countenanced by Lord Glenelg, Colonial Secretary of the time, was that there be a treaty for the acquisition of lands by sale and purchase. The Crown actually sold land to, and received payment from, the South Australia Company for land that the Crown had not acquired by treaty, purchase or act of state from the original owners. Justice Toohey of the Australia High Court in the Mabo case (1992) considered that there is an unresolved question of a constructive trust incumbent on the Crown for the traditional owners. With the initial rejection of the De Rose Hill Native Title claim in South Australia, legal action against the UK for this payment would set the record straight for money actually had and received for selling and alienating Aboriginal land away from the possession and title of its traditional owners without compensation or prior purchase. The overturning of the original "extinguishment" decision in the De Rose Hill case has not yet taken the legal probability existence of native title much further (see: http://www.abc.net.au/news/newsitems/s1011357.htm ). In the meanwhile it is clear the next Australian Government of whatever persuasion is likely to abolish ATSIC. Who then would have the authority and capacity to take legal action in London against the Crown to recover the actual money paid for the land that was taken ? ATSIC ? Legal action could be contemplated for commencement in the High Court of Justice in London rather than in Australia (cf. http://www.eniar.org/news/crownsued.html ). The ground that there is a constructive trust in equity incumbent on the British Crown to pay the 20,000 1836 English Pounds raised by the promoters of the Wakefield Scheme to the descendants of the Aboriginal owners whose lands were sold without any consent or compensation to establish South Australia needs consideration. It may appeal to the wider community that Aboriginal people were suing to get money owed to them in justice so they could fund their own services and empower themselves. There have been prior Aboriginal actions against the UK Crown from Canada in relation to the responsibility for treaties. The Indian Association of Alberta unsuccessfully sued the Crown in Britain in the early 1980's in the High Court of Justice in London over existing treaty (www.sicc.sk.ca/saskindian/a82jan03.htm). The Court of Appeal in the UK gave a judgement in 1982 (http://www.sicc.sk.ca/saskindian/a82jan02.htm) in relation to the international sovereignty of Canada prior to the UK law patriating the Canadian Constitution. Patriation took place in 1982 by means of the Canada Act, 1982 (U.K.), Chap. 11; proclaimed in force April 17, 1982 (see: http://www.bloorstreet.com/200block/sconst82.htm). The case revolved around whether the UK Crown could enforce any judgement that the UK Courts may have given. One legal issue that has been seized upon in Australian litigation in Australian courts and not litigated in the initial Canadian court actions was that an "act of state", such as the acquisition of sovereignty, is not justiciable. This doctrine has been applied in Australia to mean that the English acquisition of sovereignty here cannot be litigated. But the questions over the Exchequer bonds are different. They raise the equitable rights of the Aboriginal people to receive the direct benefit of the moneys paid to the Crown to begin South Australia. This is nothing to do with any act of state in the Crown obtaining sovereignty for itself in South Australia. The equitable issue is about the proceeds of selling land the Crown did not own before there was any English sovereignty in the land at all. UK courts could give an enforceable judgment against the UK. This is the case because the land was being sold before 28 December 1836, and the equitable obligation towards Aboriginal people that this "selling" gave rise to, in fact arose prior to the establishment of any English sovereignty under the first Governor Hindmarsh from 28 December 1836. The quantum to be recovered should extend to the capital and all the interest it has attracted, and possibly the difference outstanding from the sale price of 12s an acre. With the proposed mainstreaming of all ATSIC/ATSIS services, a legal action in London against the UK Crown for payment of the outstanding 20,000 1836 Pounds for all the land that has been sold in SA may help Aboriginal descendants today become self-funding for their own issues and take away the power of the Crown over their lives.
Expressions of interest from internationally based lawyers are welcome. Please circulate this request to networks. One issue of interest for which expert help is needed first is to establish a fair estimate for what 12s per acre in 1836 makes the land worth today in comparative Australian $. The wage of a coal miner in Great Britain in 1836 was 16 shillings a week - ie 4/5 of one (1) English Pound. This is about forty-two pounds per year. What does a coal miner get today? Maybe ~25,000 pounds per year. Coal miners got some 832 shillings for a year's work in 1836. On this rough estimate a shilling is worth about thirty (30) pounds. A fair exchange rate may give a coal miner a max. $A65k per year today, which is $1250 per week. If 1250/16 is 78. Then maybe an 1836 shilling is worth ~$A78 today. According to www.exchange rate.com a more exact rate of exchange for today is: 1.00 GBP Pound Sterling = 2.443836 AUD Australian Dollar (based on 1.00 AUD Australian Dollar = 0.409193 GBP Pound Sterling ). The shillings of the day were the: William IV 1836 Shilling - VF Ref: CTF-16 . In specie these are worth $614.297 AUD & $458.424 USD per shilling today - based on the value of the actual coin, ie for a collector. There appears to be at least one such coin in the mud somewhere in one of the lower lakes in the Ngarrindjeri Nation (see the Ngarrindjeri Kurangk at: australia-change.tripod.com/page/index.html ). The question is to find out now how much Ngarrindjeri land has been alienated by the Crown into fee simple from 1836. Expressions of interest to be sent to: nlpa@bigpond.com . For those who want to know what an 1836 shilling was: 1833-1836 Although bank notes had been issued during the Napoleonic Wars, they did not become legal tender until 1833. At this time a bank note was a promissory note that could be exchanged for the equivalent amount in gold coins. Freed from the need to carry the weight of gold corresponding to the value, bank notes could and did carry much higher face values than gold coins.
© Patrick T. Byrt for The Bigger Picture
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