The impact of Kudnarto's life within South Australia is still ongoing regarding the legal echoes. Unresolved issues remain which directly effect the Kudnarto's descendants and by implication, the population of South Australia in general.

The main issues revolve around:

the forceable alienation of land from the Kaurna people by the invading settlers;
the by the settlers gift of land to Kudnarto which was to be held in trust on her behalf; and,
the promise given by the settlers of perpetual entitlement to this land for Kudnarto and her descendants.

Each has its own distinct series of complications.

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Terra Nullius

After the passage of the Native Title Act of 1993 in the Federal Parliament [1] national attention was directed towards redressing the land loss grievance of the Aboriginal and Torres Strait Islander peoples within Australia. The Native Title Act, 1993 finally gave the Aboriginal and Torres Strait Islander peoples a legal avenue to lay claims upon unalienated crown land to which they could demonstrate in law an enduring connection. After the process of demonstration and determination of a claim, a new class of ownership to land was created - known as Native Title. This was not absolute title to the land in question but an access to carry out functions upon that land which their ancestors had done since the memory of the specific people. Thus a dual usage of land arose. The economic exploitation of land through government lease coexisted with the Native Title. Thus mining, pastoral activities and Native Title could exist simultaneously upon the same piece of Crown Land.

The legal regime altered in this manner to recognise in common law that which has always existed in the nature of the holding of the land in both common and statute law. The Native Title Act, 1993 addressed the historical problem arising from the concept of terra nullius which prevailed as the legal fiction in Australian law as it related to property. It aimed to regulate through statute the process of claims that potentially occured through the landmark judgement in Mabo and Others v. Queensland (No. 2) [2] the case which seriously questioned the basis of terra nullius and ultimately overturned its very foundations as it related to the notion of land in Australia.

This use of terra nullius extended those concepts firmly established by International Law which recognised conquest, cession and occupation of territory that was terra nullius as the three legitimate methods of taking foreign territory. [3] If the British undertook occupation of Australia under the aegis of the first two methods they would be obliged to recognise the Aboriginal people and their native land title. This occurs because of the distinct legal separation between the sovereign's right to ownership of the territory and the rights of the resident population to the ownership of the land. The first is a matter of International Law while the latter is a matter of local municipal law and common law. [4] International Law stated that conquest or cession did not disturb native land title. [5] Common Law concurred with this principle by confirming that ownership could not be acquired by occupying land that was already occupied by another. [6] This sentiment was voiced by Blackstone when he said: "Occupancy is the thing by which the title was in fact originally gained; every man seizing such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by anyone else." [7] As can be seen, it was essential that the existence of the Aboriginal people be ignored by the British to ensure legality to the seizing of Australia's land without any consultation or compensation.

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Land Conflict

The problems resulting from this conflict of land use was always a subject for discourse at all levels of society. After the journey of Eyre to Western Australia, he felt a great compassion towards the dispossessed indigenous people. With great sensitivity, addressed this issue at great length in his work Journals of Expeditions of Discovery into Central Australia and Overland From Adelaide to King George�s Sound in the Years 1840-1, Volume 2. At no stage did he utilise the pretence of terra nullius as a basis for his discussion. However, his words were out of step with the times and thus not heeded. The British had their own ideas about their obligations to the Aboriginal people.

A Select Committee on Aborigines reported in 1837 to the House of Commons that the state of Australian Aborigines was "barbarous" and "so entirely destitute ... of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded". [8] This point of view found a similar echo in South Australia when Governor Grey, through Act Number 8, 7^o & 8^o Victoria (Assented 12 August 1844) stated in the Preamble that '... the Aboriginal inhabitants of this Province, who are barbarous and uncivilised people, are destitute of the knowledge of God and of any fixed belief in religion, or in a future state of rewards and punishments.' [9]

The epitome of this fiction found articulation through Lord Sumner when he spoke for the Privy Council by saying: "The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them." [10]

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Subtext

It is against this backdrop of racism that the land claims attaching to Kudnarto�s story find their context. It is Mabo that has stripped away this racist rhetoric as being spurious in terms of law and social philosophy. Now the wallpaper of racism has been stripped from the Australian community, the case of Kudnarto can be examined in the context of Common Law and Equity.

Throughout this book, the underlying theme was the clear existence of an Aboriginal people known as the Kaurna who occupied the land around the Adelaide plains. In addition, the crown set aside land specifically for the Aboriginal people to enjoy. Furthermore, Kudnarto was granted a licence to occupy land on trust for herself until her death. This discussion will rely upon the available documents generated by the various government officials at the time. The correspondence that relates to this matter has been reproduced in full at Appendix 2.

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Licence

The licence is very explicit on the point of gift. It states that the Governor

"... do hereby Grant full licence for the said Mary Adams for who during the term of her natural life to occupy, use and enjoy Section No. 346." [11]

The licence to occupy this land is explicit in its terms. Thus, under any interpretation, it would cease at the death of Kudnarto.

Under common law, if a tenant holds agricultural land and improves that land, the value of the improvements becomes a property right of the tenant. Upon the removal of the tenant from the land, those improvements should receive full and fair compensation. The Adams family had built a hut, some minor fencing and cleared land for cropping. At the time the government re-took the land from Adams, no compensation was given to him. No consideration was made to grant any equitable compensation for the work he performed although there was some discussion about compensation should Adams seek to claim it. Charles Bonney states:

Should it appear that improvements have been made on the section to any considerable extent, it might be a question whether in equity, the value of these improvements should not be allowed considering the uncertain tenure on which the land was held - In law In think the tenant could claim a right to hold the land until all growing crops are taken off - compensation for improvements might be awarded in the same manner as under pasturage leases. [12]

While the analysis is very clinical, there is no succour offered to Adams by the government for the reversion of the land to the government. This justified his comments that all the work he undertook would be for nothing if his wife died. [13]

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Promises

If this was the only promise, then that would be the end to the matter. However, the government of the day made further promises to Kudnarto in relation to land tenure licences. The licence right was transferable to her children. Alfred Mundy, the Colonial Secretary stated that:

This license ... will be renewable on the death of the woman in favour of her lawful offspring according to their existing circumstances, & on such terms and conditions as may then be found proper. [14]

This promise was repeated later. Finniss wrote to Adams on 14 August 1849 restating Adams� position should Kudnarto pre-decease him. Finniss said:

... the understanding that there might be a renewal in favour of her children in case of her death. [15]

After the death of Kudnarto, on 26 May 1855, Moorhouse wrote to the Colonial Secretary about the intended promise to pass the land on to the children. He states:

The Government placed a section of land in Trust (document enclosed) for Mrs Adams & it was understood that in case of death, it should be given to her children. [16]

This promise was acknowledged by the Colonial Secretary. In the discussions of the various officials, it was finally decided that the promise to restore the land to Kudnarto�s children upon them reaching their majority. There is no mention of removing this right from the children. It was to be an unencumbered gift. Moorhouse�s words are unequivocal on this matter. Finniss confirms this when wrote a note to Richardson on 7 June 55 stating:

When the children are of age a similar licence to occupy with that granted to the mother will be made out in their favour. [17]

Following this Richardson, the Acting Colonial Secretary wrote to Adams on 7 June 1855 reiterating the promises for the children. Again, the granting of the licence was only conditional upon them reaching the age of majority. This was because the government was going to pay for the upkeep of the children until they reached that age. Richardson explains this when he says:

The maintenance of the children in the Training Institution is contributed to by the Govt., and when they are of age a licence to occupy the Section will be issued to them similar to that formerly made out in favour of their mother. [18]

In essence, this is a legally enforceable promise made by the government. It was land specifically set aside for the use of Aboriginal people for farming activities. Aboriginality was the sole criterion for claim. It was implied that only Aboriginals who were considered to be of age under British laws were able to make a claim upon this land. However, there were no other conditions for a claim. Thus Kudnarto was fully qualified under these conditions for the licence to settle upon the selected lot.

Furthermore, Kudnarto�s children were also accorded this right as a consequence of her right. There only qualification was to be her natural born children and to reach the age of majority as defined by British law. No other qualifications were attached to the regranting of the licence. When both Tim and Tom reached the age of 21, each was individually entitled to a licence.

The terms and conditions were sufficiently vague as to imply that each son in their own right was entitled to a licence without reference to the other son. Since there were no specific conditions stated for the size of land to be granted, they were eligible to land in their own right to the size of that granted to their mother. There is no mention of any specific lot by the government. Consequently a promise must be fulfilled in the same mane that the land was given to their mother. The lot licensed to Kudnarto was 80 acres in size of prime farming land. Each child was entitled to a similar gift.

Although the government further complicated matters when they leased out the land and then finally sold it off, at no stage was this right to land ever revoked. A right is a chose in action which may be transferred from one person to another provided the conditions of the chose in action were followed. The lack of revocation ensured that the right to a licence could readily be transferred to another child so long as that child was a natural child of Tim or Tom. Since there has been no extinction of this right, theoretically, each natural descendant of Kudnarto is eligible for a licence to land for farming purposes. Only a monetary compensation is capable of extinguishing this right if no land is available to fulfil the terms and conditions of the promise.

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The Facts

These issues fall outside the parameters of the Native Land Titles Act of 1993 and thus no reference can be made to this law. The reason lies with the nature of the land grant. The licence to settle the land was made upon unalienated crown land. However, as the land became alienated, the indigenous claims against the land also extinguished under common law principles. These entitlement are not dependant upon claims upon unalienated land but promises which created an obligation against the government which was claimable by the sons of Kudnarto. It is the obligation that is the key to this issue. Addressing that obligation is the resolution required to satisfy outstanding grievances towards this family.

Kudnarto�s marriage was significant in that it opened a new vista on relations between the two races. Her death, unfortunately, was the clarion call of failure. In both marriage and death, Kudnarto's very presence forced the governments of the day to respond to the issues raised by her life and contact with the European society.

In the first instance, when she married Thomas Adams on 27 January 1848, the government was compelled by force of logic to grant her land (sic) that was set aside for the benefit of the Aboriginal people. Following her marriage, two other mixed marriages occurred. Each couple subsequently became the beneficiary of a land grant. The first was George Murray and his wife who received Section No. 3055 at Skillogolee Creek. Following this was George Solomon and his wife who received Selection No. 1512 at Rapid Bay.

Upon Kudnarto's death on 11 February 1855, the land she was granted and promised to her children was resumed by the government and never to be returned despite assurances to the contrary. Her children Tom and Tim were consigned to the care of Arch Deacon Hale at Poonindie.

The same situation happened in the two other cases. When George Murray and his wife abandoned Section No. 3055 at Skillogolee Creek because of settler pressure and hatred, they had their grant confiscated. Once the land went back to the government, no further applications were tendered by George Murray.

At Rapid Bay, when the wife of George Solomon known as Rathoola died on 28 August 1858, their Selection No. 1512 went back to the government, never to be returned. As to the fate of Rathoola's children, George, John William and Emanuel, they suffered along with Kudnarto's children by being consigned to Poonindie. In George Solomon's case, their consignment was to remove any embarrassments of his past and allow him to marry a white women Catherine Burke on 21 January 1859 at the Willunga Catholic Church.

The knowledge of George Solomon�s previous marriage to Rathoola was suppressed in terms of records and thus unless there is a specialised examination, very few available public records have this information. The key genealogical research book published by the SA Genealogy and Heraldry Society in 1986 and edited by J. Stratton, called Biographical Index of South Australians 1836 - 1885, is silent about Rathoola. Such an omission lends weight to the embarrassment caused to George Solomon about this marriage to Rathoola.

Each descendant from these three families is entitled to make similar claims upon the South Australian government. This arises from the fact that the terms and conditions were similar in each licence. Every family descendent is thus able to claim an allotment equivalent to that first given to the eligible parent.

Until these claims are satisfied in one manner or another, the blot of compulsory seizure of Kaurna land will remain strong within the community. The justice of the claim is very evident. Land was taken off the Kaurna people. Following this expropriation, some land was returned to three families under licence. Then, without good reason, the government refused to honour its commitments to these three families. Now that a new openness has occurred in Aboriginal/settler relations, it is time to redress the evils perpetrated in the past. It is only when the past secrets are exposed and discussed that a positive resolution to this conflict can take a further step.

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Footnotes

1. An Act about native title in relation to land or waters, and for related purposes; or, Native Title Act 1993, No. 110 of 1993, assented to on 24 December 1993. Return to text

2. Mabo and Others v. Queensland (No. 2) (1992) 175 C.L.R. 1, (1992) 107 A.L.R. 1. Return to text

3. Evatt, E., (1968) The Acquisition of Territory in Australia and New Zealand, Grotian Society Papers, p. 16. Return to text

4. Le Case de Tanistry (1608) Davis 28, at p. 60. [80 ER 516] at p. 541. Return to text

5. Blankard v. Galdy, (1693) 90 E.R. 1089; and, Campbell v. Hall, (1774) 98 E.R., at pp. 895 - 896. Return to text

6. Sammut v. Strickland, (1938) A.C. 678, at p. 701. Return to text

7. Blackstone, Commentaries, Book II, Chapter 1, p. 8. Return to text

8. Lindley, (1926), The Acquisition and Government of Backward Territory in International Law, p. 41. Return to text

9. Preamble, Act Number 8, 7^o & 8^o Victoria (Assented 12 August 1844). Return to text

10. In re. Southern Rhodesia (1919) A.C. 211, at pp. 233 - 234. Return to text

11. Licence dated 24 May 1848, GRG 24/4, A (1855) 1633. Return to text

12. Memo dated 6 June 1855, GRG 24/4, A (1855) 1633. Return to text

13. 3 September 1848, GRG 24/6, A (1855) 1633. But if Aney Thing happened To My wife Acordng To your Letter gorvement could clame it Agen And propes Me get Nothing of it ... Return to text

14. Letter dated 26 May 1848, GRG 24/4, A (1855) 1633. Return to text

15. Letter dated 14 August 1849, GRG 24/4, Q (1849) 1108, p. 426. Return to text

16. Letter dated 26 May 1855, GRG 24/4, A (1855) 1633. Return to text

17. File note dated 7 June 1855, GRG 24/4, A (1855) 1633. Return to text

18. Letter dated 7 June 1855, GRG 24/4, A (1855) 1633. Return to text