Hunters Hill, Sydney’s Lothlorien
For Sydneysiders who grew up west of Chatswood, Hunters Hill took on an almost mythical quality. It is the seventh richest suburb in Australia. In the 80s, us (alleged) westie kids saw it as an untouchable land of Disney castles.
When school sport afforded you a passport to cross the invisible checkpoint at the gates of the uber exclusive St Joseph’s College on Ryde Road, you got to see Hunters Hill close up for yourself. Mookoolobah, the meeting of the two rivers. You’re suddenly on a footie or cricket pitch literally on Sydney Harbour when you woke up in, say, Ermo.
Although trained geographers may know better, Hunters Hill seems to form the border of where the Parramatta River could more appropriately be called Sydney Harbour. When Cate Blanchett moved in in 2017 it literally became Lothlorien.
The Boronia Park Nature Reserve sits entirely within the municipality of Hunters Hill.
An excellent history of 1800s Boronia Park, it’s verified First Nations archeological sites and its modern day flora and fauna can be found on the Hunters Hill Trust website.
We’ll consider the parcel of land discussed in this article now suitably identified.
With the year barely a day old, the Australian tabloid press realised that they hadn’t punched down on First Nations people hard enough yet this year. The Telegraph reported that Boronia Park was subject a 150 sqm Land Rights claim by the Metropolitan Local Aboriginal Land Council. The land claimed is not sporting fields or any other parcel in current use. It is foreshore land from the high and low watermarks up to any developed land.
It is land currently not in use save for the public easements in force for walking trails. It is land that currently cannot be sold and developed. Sky and the Daily Mail then tried to out pearl-clutch each-other but you won’t find hyperklinks for their bile here. It’s the usual race-baiting hogwash, to paraphrase “first these ‘professional aboriginal elites’ go after Balmoral Beach and now they want a slice of Hunters Hill.”
Boronia Park sits on Wallumedegal/Wallumettagal Country. The Wallumai (snapper) clan. Northside Parra River, Westside Lane Cove River.
Good Root of Title to this Country traces back to 1792 with the first Crown Grants. This is all in the ambit of the Field of Mars Grant. So named for the Marines who got slices of it. For Boronia Park specifically, you’re looking at 1795-ish. This is the First Country where ownerships vested in a person (ie a colonist) who actually had possession of the land. Title to land casts aside the uncertainty of ‘who owns conquered land at any given time?’ To physically possess something is not the same as being the legal owner of something. Granting of title to land completes the conveyance as it were. The issuing of a fresh title because the Sovereign and his agents can just do that. These conveyances occurred in the absence of consent from the true owners. That’s theft. This is what the term Stolen Land ultimately means as a legal beast.
26 January
With the mainstream media amplifying opposition leader Peter Dutton’s annual 26 January racist dog-whistling adventures, they are signalling to the worst of us to unleash viciousness on the weakest and most disenfranchised among us, the First Australians. It’s a play orchestrated by Dutton’s American (Trumpian) advisors. This Jan 26 is shaping up to be like the post-Cronulla Race Riots Big Day Out 2006 where fools, drunk on the glory-horn of Valhalla were making people kiss the Australian Flag. Sadly, October 14 2023 has unleashed a whole other, more vicious and in-your-face racist goon. The so-called 61%er who thinks the events of last year’s referendum provide carte blanche to say the quiet part out loud, but with more aggression this time and to openly rejoice in dispossession and conquest and not feel any moral compulsion to want to reconcile. Ever.
Indulge me to propose why this uniquely preserved slice of land should be handed back, Torrens Title and all, to those who stand in the shoes of the Wallumedegal.
Whatever Ministers of the Crown and courts may ultimately do is not for me to speculate. But you imagine the locals will have a say, right? That deference to ‘public opinion’ in decision making will be the known opinions and views of the locals. It’s just how Australia works. Organised locals with moolah can move mountains on any given slice of land.
Voice Referendum results for Hunters Hill booths below.
The Metro Aboriginal Land Council claim provides an opportunity for that (rounding up) 60% 0f Hunters Hill locals who voted Yes to get to grips with the eventual goal of reconciliation – not just being here for the view. The views of those within walking distance of the park are going to be canvassed, no doubt. By having an appreciation for the mutual historical importance of this land for both indigenous and non-indigenous Aussies, may those residents bring a better informed conscience to the debate than what we’ve seen thus far.
60% of Woolwich Pub locals are in the privileged position of being able to, by way of their conduct in dealing with lawmakers, create a physical space for truth telling and healing to happen. Assured by the limitations of the Local Environment Plan and the maintenance of walking paths, this is the perfect opportunity to engage in practical truth telling by making a gesture of good faith which indicates an intent to finalise a meaningful settlement.
Over a latté, will many of those locals vibe with the idea of Crown Land being transferred to the land council on the basis of the Minister going, “here’s a slice of land, make it a place where we can all experience the story of what went wrong between our two peoples” ? Hope is the thing with feathers. Best lattes and best everything in Hunters Hill to be found at Dachsund Coffee btw. Come sit, stay.
Most of the federation era homes on the lots adjoining Boronia Park were built with bricks from brick-pits on Wallumedegal Country. The land literally sheltered the descendants of the original colonisers. My maternal grandparents included, they bought into Eastwood in the 60s. The deep red clay soils of two-rivers made excellent bricks in the post-war era too.
Incidentally, during the 80’s, these clay soils resulted in mud ball fights in parklands adjoining the brickpit. These larks resulted in broken jaws, concussions and a highly pissed off local mother’s club. The clay made one heck of a solid BMX jump too. The wide canals running through the suburb to aid drainage from the brickpit which made The ‘Woo look like Manchester through June and July, back when we had winters. In seeking to persuade Hunters Hill locals to hear me out, need to casually mention status of someone who once received the Northern District Times in hard copy. Now all the old Cumberland Papers direct you to the Telegraph Online. Please read David Marr’s searing analysis in Killing for Country of the tabloids (as they were during the 1800s) and beyond. It’s the default mode of the colony to not want to look too closely at the actual moral underpinnings of colonisation.
Modern media narratives which insinuate the Hunters Hill claim is ‘land grab’ by the ‘two-dimensional wealthy-angry aboriginal elite’ serve the descendants of the Squattocracy just as the media of the 1800s served the interests of the actual squatters by directing colonial citizenry to look the other way as we grabbed all the land and cemented title behind the curtain of populist politician Robert Torrens Jr’s concept of a central register of land ownership which he nicked from the efficient Germans. See Sarah Keenan’s analysis of smoke, mirrors, curtains and time machines as it pertains to the gold standard right in land that everyone wants, Torrens Title. A bunch of big 19th Century ideas trialled in Australia under cover of the legal fiction of terra nullius. That and the material fact of violent dispossession.
Over the other side of the ditch, the Brits then wielded the common law like a sword by way of the Privy Council hearing appeals from the New Zealand Court of Appeal, especially the Assets Case of 1905. The big diff between Australia and Aotearoa is the fact of occupancy and ownership of land by tangata whenua (Māori, literally people of the land) was never disputed by the Crown. In Aotearoa, post- 1840Treaty, title to land had to change hands by way of meaningful consideration and by way of valid conveyance. The Crown used the coming down of the Torrens Curtain as the legal fiction by which common law courts, and the barest semblance of them, were used to steal Māori Land.
Federally, Boronia Park is in North Sydney (est 103,000), held by independent, Kylie Tink. State wise, Hunters Hill is in the electorate of Lane Cove which is held by the Minister for Alan Jones and has been since forever.
From the Boronia Park Public School booth, is it possible to extrapolate a willingness hear out the Metro Land Council regarding their plans for 150,000 sqm claimed under section 36 of the Aboriginal Land Rights Act 1983 (NSW)? Maybe. The lands claimed appear to meet the requirements of subsection 1.
A Fatal Shore, sandy soil and seizing the high ground
In 1788 the closest arable land to the Port Jackson colony was that on the north side of the harbour or what is now the Hunters Hill, Ryde and Parramatta local government areas. The only reason we know the clan name of the pre-1789 occupants is because Bennelong told Phillip that the Wallumai clan were the people who possessed and lived on the lands between these clearly defined geographical borders. It’s as clear an expression as you’ll ever get that a people has a connection with specific lands and waters as identified by geographical barriers that any upright-walking mammal can figure out. It took until 1992 for our High Court to rule that the European Mind can grasp the idea of a rock fence.
The Wallumedegal occupied their lands and waters since time immemorial. That is the reckoning by which our common law gauges occupancy that stretches back tens of thousands of years.
The sandy coastal soils of the inner harbour are rubbish so by 1789, with the colony bordering on starving, Phillip ordered boats up the river in the hunt for soil that wasn’t sandy and shit. They pulled ashore when their boats started kissing the bottom of river in what is now Putney/Kissing Point.
The present day agents of the Crown are responsible for all these plaques. That’s what local government actually means, to be an agent of the Crown. These plaques are policy frozen in time. It pays to record receipts and document the moral justification when arguing for the ‘handing back’ of a particular parcel of land. If the Libs-Nats Death Embrace win the next election then expect history to be re-written all over again. Local Councils will come and go and the historical-cultural sites they approve of will change as the political pendulum swings. Always keep receipts.
The connection between the Wallumai clan and these lands and waters has never been disputed. The very white Australia of 1948 clearly concurred with this connection to land when Ryde Council erected the following confusing plaque in the coolly named Settler’s Park at Kissing Point. The term ‘bigoted race’ has been misspelled and was intended as ‘bigotted’, meaning “strong connection with the land, a place they would always return to.” The spelling error was pointed out in the Sydney Morning Herald in 1948 but Ryde Council is yet to correct it or instal an explanatory plaque despite repeated promises over the years to do so.
From reading that plaque, you’d think some temporary co-existence allegedly occurred between the colonists and Wallumai mob. Factor in that the garrison erected at what is now Parramatta in 1790 meant that Kissing Point was a convenient mid-way spot between the colony and its first military outpost. Granting titles to people to permanently occupy the river flats and the high ground along the river route made perfect food security (and military) sense.
With the latter coming of the telegraph, one of the first things the Crown did was build a signal station on the highest hill on Wallumattagal/Darug Country, Brush Farm in what is now Eastwood. Rule No.1 Take the high ground. Ironically, the refugees displaced by both the taking of Burramattagal lands to erect the earthworks garrison fled east to what is now Meadowbank. Erecting military outposts is what Royal Marines do. That and absolutely destroying Plymouth whenever they’re home on leave. Who knew.
The Wallumedegal were amongst the first clan groups around what is now Sydney Harbour (and its river estuary) to be hit with smallpox in 1789. Survivors fled anywhere but mostly west and merged with Darug mob (mostly the same language group). There were not many survivors, Bennelong estimates half of those who came into contact with colonial germs or tainted colonial goods, died. To date, it is rare to pin down a historical trace of any agent of the Crown providing a clear position on what actually happened to the Wallumedegal. If you’re acknowledging elders past, is grounds you the land by having some knowledge of them, the land and what on earth happened when ownership changed hands. Guns germs and steel. We studiously avoid the anxiety-causing language of extermination.
What is Crown Land anyway?
The Crown’s beneficial title to the ‘wastelands’.
The doctrine of Tenure and Estates (ie our notions of land ownership) has its roots in Roman Law, from as far back as 2000 years ago. When Rome fell, the Eurohair Dynasty of the Merovingians & Carolingians carried the doctrines through the 400s-800s Thereafter the doctrines survived through ‘Holy Romans’ with the Norman French who conquered Blighty in 1066.
Under the doctrine, Mum and Dad do not ‘own’ the house. King Charles III grants them the right to occupy his land for a slice of time. Amongst other notions taught in law schools is the European concept of the ‘wastelands’. Anywhere not possessed or occupied by anyone (or just harsh land unclaimed by anyone as it was useless for agriculture and hunting) is called the wastelands. When William The Conqueror took charge of England in 1066 this “Crown’s beneficial title to the wastelands” became the common law justification for the fact that the Crown now owns everything in its newly conquered territory and only the Crown can grant the right to others to occupy and possess land. Feudalism is a long story for another time. Suffice to say that this concept of the Crown owning all land not actually occupied by any subjects was imported into the Australian mainland and adjacent islands with the coming of the common law in 1788. These days we just call it Crown Land.
Whenever you come across obscure legal latin terms and you wonder why on earth that this latin mumbo jumbo means anything in 2024 a long, long way away from both Rome and London, this is why. The very script and font this article is written in has its origins in the Roman Empire. The heraldry of lions which adorns the NSW flag and English heraldry also stems from these Frankish-German Eurohair Dynasties. All roads lead back to Rome when it comes to the Western Legal Tradition.
Terra Nullius and important sounding legal latin
Governor Arthur Phillip’s 1788 re-confirmation of Captain James Cook’s 1770 claim of a ‘discovered land’ is the act by which the British Crown assumed sovereignty over the Australian mainland and adjacent islands. Legal latin terms for unoccupied land do not come into our history just yet.
This is as good as the explanations get for justifying British Sovereignty over these lands and waters through to 1835 when Governor Bourke issued the Declaration of Terra Nullius. Bourke did this as means of warning sporty colonists who tried to acquire title to land by bartering modern tools and blankets with natives. Bourke needed to send the message that the Crown was the only entity capable of granting titles to land (freehold, leasehold) and any other rights in land in the colony. Colonists should not seek to treat (ie enter treaties) with the natives. See Bain Attwood’s recounting of how Batman’s Treaty in what is now Port Phillip Bay in Naarm caused the colonial office and the Crown to go “bugger, we need to do something about this and must affirm the Crown’s Sovereignty.” Ironically, this week, the Victorians Libs pulled out of treaty discussions.
That is what the declaration of Terra Nullius did. It wasn’t Cook. It wasn’t Phillip. Terra Nullius is just the story we told ourselves until 1992.
As it stands now, King Charles III owns Boronia Park. This is what sovereignty essentially means, the sovereign owns the land. Under the mystique of a constitutional monarchy, the recent-ish publication of Kerr’s letters to our former Queen provide a sound exploration on notions of the sovereign being the vessel that acts in accordance with directions from their governments formed by their people on the basis of the will of the people via democratically sound processes. In a wishy-washy sense, “we the people” can be sovereign but in reality our sovereign is an inbred Prussian living in Great Britain.
By way of tenure, the Crown grants an exclusive right for a person to occupy land for particular slices of time called an estate. This is commonly reduced to the concept of Freehold Title. Believe it or not during English Feudalism there was a thing called Copyhold Title, so called because serfs had to have their names copied onto the local rolls in order to evidence their right to not be killed on sight as trespassers on the Lord’s Estate.
In the case of a Fee Simple estate, so long as the Crown holds sovereignty of the land, it can be sold, bought, or disposed of in a will or may be resumed by the Crown in various circumstances. By way of intestacy mainly but also by compulsory acquisition of government, ie The Castle. Don’t start a law degree without watching it.
Although the last season of Netflix’s The Crown was pretty weird, it gives a good layman’s explainer of how the powers of sovereignty are exercised by a monarch who takes advice from their governments. Ergo, Hunters Hill Council is one of His Majesty’s governments. They exercise rights of ownership on behalf of the actual owner, Chuck Windsor-Mountbatten Saxe-Coburg & Gotha. They are not the ultimately decision-maker in the land claim, that’s a matter for the NSW Government.
Everything that is Crown Land now is just land that Charles III is yet to grant to anyone. The Minister of the Crown is the decision maker for all rights claimed under relevant act for the Boronia Park claim. The decision comes down to this: should Charles III continue to own this land as the Sovereign or should the Minister of the Crown exercise their powers under section 36 to instead cause title to be granted to the body exercising the rights of the pre-colonial occupants of this land?
Paul Scully as the relevant minister should approve the transfer. The existing Great North Walk can only be enhanced by the Metro Land Council having title to the land claimed, subject to agreed public easements where all Australians can walk on the first country settled/colonised-stolen. Wallumai lands and waters contributed heavily to the Port Jackson Colony not starving. What if January 26 could be reframed as an Aussie Thanksgiving instead of the Beer Hall Putsch it risks becoming under the far-right slide we’re seeing in other parts of the world?
Instead of the poisonous Trumpian weaponry of ‘professional aboriginal elites’ narratives and his ‘rallying-to-defend-the-symbols-of-our-whiteness’, why can’t the opposition leader grasp the growing and obvious sense of solemnity around 26 January as being a day where any logical sensible person, when appraised of the briefest factual history of prior occupancy, chooses not to celebrate?
Hunters Hill locals with concerns that the land may be re-zoned in future to allow it to be sold off for a housing development need to visit the site for themselves. The portioned claimed does not involved anything that is currently ‘in use’ in a property law sense by anyone other than those exercising the public rights of way over Crown Lands via the walking trails and open spaces.
It’s a profound and beautiful place.
The rocky outcroppings, the shell middens, and the overall experience of walking on Country where you can see, smell and feel the where the oldest living cultures on earth once stood and sit, on an isolated piece of nature reserve where we now squat is a profound one. These lands and waters could be a place of healing in 2024 for a dumbfounded and unreconciled nation.
Why not let indigenous Australia educate non-indigenous Australia on the significance of this parcel of land to our national history? Prior occupancy is the original fact of the matter. A fact’s a fact, it belongs to them, let’s give it back. If it feels like we’ve been thinking that since 1987 it’s because we have been. The claim is a no-brainer in most pub tests. It needs to pass the Woolwich Pier Hotel Test.
How about supporting the return of some of the first, if not the first country stolen? This unique parcel of land needs the love and attention of enterprises owned by mob, run by mob, providing revenue and funding for mob on land owned by mob? Yes.
What an amazing opportunity for truth telling because the physical evidence of prior occupancy is right in front of you. A calming place for truth telling because of the saltwater tang in the air mixing with ironbark and terpene-rich eucalypts.
Our National Anxiety Problem
Post Mabo 1992, John Howard watered down what Native Title could have been and blatantly lied about this new right in land as being a risk to the family home. This anxiety still permeates the Anglo-Australian psyche, the fear that if First Nations Australians are given any rights to land, anywhere, it will cause nanna to lose her house to Cliffy Lyons smoking a dart. For some, the thought of freehold title being granted to indigenous people, smack in the middle of wealthy suburban Sydney is bonkers. It’s easier to dismiss than to do a deep-think on why wealth and land ownership are intrinsically entwined in a costs of living crisis.
Blackstonian Anxiety, is the property law term coined by creative writer turned property law goddess Carol Rose. For the lazy Googlers, William Blackstone (B:1723) was probably the first legal academic ever. For a cultural reference point, Blackstone’s Commentaries on the Laws of England was what Atticus Finch used to teach Calpurnia to read in To Kill a Mockingbird.
Think of it as being the anxiety which arises when you have a long think about why you, as a result of the conduct of your ancestors, have rights to your particular patch of land but that someone else, invariably a previous occupant, does not. Rose writing in the Yale Law Review says:
Granting that property in general entails some set of exclusive dominions, why does Ann have exclusive dominion over X? Why does Bart not have X instead? That is the focus of the anxiety – not so much that the world of property is divided into exclusive rights, as that rights come to be distributed in one way rather than another. What justifies any particular distribution of rights? And, most importantly, do current claimants really have any solid foundation for the things they claim?
That was the question that Blackstone raised, but it seemed to make the gentlemanly author very uncomfortable indeed. Such close questioning of entitlements, he remarked, would only be “useless and even troublesome in common life.” Better, he said, that “the mass of mankind… obey the laws when made, without scrutinizing too nicely into the reasons of making them.”
John Howard poisoned at-least three generations of Australians with this brand of anxiety. He poisoned Australia against the very idea of reconciling because he himself was certainly not sorry. To apologise is to look closely and reflect on history. To hand back land is to admit by your conduct that historically, you are the wrongdoer.
This breed of anxiety has swamped our better, more innate instincts about right and wrong, and the obviousness that stability in life stems from the security of holding the best possible property right to land obtainable under our weird-arse Chuck Owns Everything But Doesn’t Live E’re system of title to land.
Where freehold title is obtainable, it is a basic human instinct of the descendants of the dispossessed to seek out that best possible title to their cultural ancestors’ lands and waters. Maybe that’s just the Ngāpuhi gene talking but it seems pretty simple. The claim is not to be guffawed at just because it’s Hunters Hill.
We are all drawn by feelings we can’t quite grasp to the lands that nourished our respective ancestors. It is a perfectly logical course of action for the Metro Land Council to lodge a claim for a parcel of land of significant historical interest. If the suggestion continues to be mocked/laughed/hounded out of the mainstream conversation, then we truly are a stunted nation of Blackstone’s Anxiety sufferers.
The Castle has played a central role in how Australians view themselves as funny, loveable underdogs. At-least that’s the BS we’ve fed to the world. It also frames what 99% of non-lawyers know about the actual practice of law. The reason the film continues to resonate is mostly because it is hilarious. But could there perhaps also be a subconscious element maintaining its timelessness? The film perfectly articulates the angst of dispossession by the Crown, or by someone with the lawful right to use extreme physical force against you if required to facilitate your yielding up possession of your land? Politicians need to pork barrel a commuter carpark somewhere so it could at any time, technically be your house that gets flattened if you live near a train line.
For the purposes of tanking the Voice Referendum, all the No Campaign had to do was spread lies and make enough people freak out about non-sensical risks to the quarter-acre block posed by the mythical ‘aboriginal elites’ being granted a say in matters that effect them. It’s not hard to get half of Australia to freak out about the prospect of the government nicking their house. It was but one factor amongst many lies. They lie and they lie and they lie and they lie and they lie and they lie and they lie and they lie and they lie and they lie and they lie…and they lie.
All the better if an indigenous face does some of the lying because it will soothe white Australian anxiety over knowingly doing the wrong thing and voting No. Which, has unfortunately left us with a 12% swing to achieve to bring this wounded land back into balance, for utu.
For those Hunters Hill locals who voted Yes, please keep doing the right thing and notify the agents of the Crown of your support of this claim.
Wallumedegal Country.
Nga Mihi.
Mat Henderson 