De jure regimes are constantly bombarded by de facto jurisdictions, especially when claiming actions for the recovery of land. This involves everything above the land, beneath the land, and around the land. This is accepted, endorsed and known in de jure language as a Latin common law doctrine: cuius est solum, eius usque ad coelum et ad inferos, in short, the ad coelum doctrine. This is the primary claim for property holders. This is one of the legal, lawful and legitimate defences available to the property holder/property possessor who was first in point of time as steward and custodian of the land.
Hundreds of courts of law have issued judgments in favour of Indigenous Communities, but enforcing these judgments is in another galaxy of justice requiring a different mode of astral transportation.
This doctrine has been made wholesome, and given the effect of law, in reference to the Holy Bible’s Old Testament reference in Leviticus 25:23 where the Creator God claims ownership of all land and water as created by a Grand Designer. Most Christian nations should know this for a reliable truth bomb read together with Psalm 24:1.
The sad, bad, and mad part of this truth is that nations claiming to serve the Lord Jesus Christ continue to violate, breach, break and insult God’s Laws because of greed and not need. Come Sundays, millions of churches around the world hold worship sessions whose popularity depends on the “prosperity Gospel”. I have labelled these Christian nations as Took Took Tribes – they simply took, took and continue to take as if theft is legal, lawful and legitimate in the name of democracy. Or is it demoncrazy?
Nowhere on God’s Earth was this more rampant and relevant than in North America where “manifest destiny” was God-ordained for the explorer-conqueror-settler to take and take from Native Americans until dispossession became a hackneyed phrase. Treaties, covenants, declarations and subsequent legislation were concentrated on the doctrine of taking and taking ad infinitum. Police power as expended by Sitting Bull stopped the likes of George Armstrong Custer for a spell until the strong arm of military superiority came to lead.
In certain continents, the forced taking of slaves became easier than stealing land. The South Sea Company was established and formed as a British joint-stock company in January 1711, created as a public-private partnership to consolidate and reduce the cost of the national debt. To generate income, in 1713 the company was granted a monopoly to supply African slaves to the islands in the “South Seas” and South America.
Imagine if African and Native American captains of industry with a mighty navy and military force invaded, conquered, settled in Europe, and took European slaves at will. Wouldn’t this have been recorded as manifest destiny as a God-ordained duty and obligation to a superior race?
Property holders are those denizens (not citizens who came thousands of years later) who occupied the land for thousands of years, hence referred to as the de facto holders of property. Upon the arrival of the European explorer-conqueror-settler, de jure regimes undertook outright larceny and outrageous theft by conceptualising and creating laws to own the land. The concept of land titles was the first effective weapon the explorer-settler used to claim possession and ownership.
In his book ‘Possession of Land’, by Mark Wonnacott, a property lawyer at Maitland Chambers, Lincoln’s Inn, London, begins by dropping a huge truth bomb in the Preface: “But English law has never produced a proper theory of possession.” But it is English law that is practised, used and exploited all over the world. Therefore it makes good sense and is safe to believe that English law can be rubbished as it has never conceptualised a proper theory of possession. Why bother with de jure loss of definition? He continues strafing the reader in the Introduction with this truth bomb: “It has been said, rightly, that there is no law of ownership of land in England and Wales, only a law of possession.” That statement needs no interpretation.
If these truth bombs have not detonated, then it is safe to say that they are time bombs waiting for the right moment to explode in the faces of those who steal land using legislation and other forms of chicanery to fool all people including themselves if there is a conscience to rub into.
Now we look at the common law Latin doctrine referred as usucapio constituta est ut aliquis litium finis esset, meaning: usucapion (ownership due to lengthened possession) was constituted so that there will be an end to lawsuits. This means that usucapion is res judicata (settled law), and no lawsuits should be initiated to challenge usucapion. The chap who says the sun rises in the east and sets in the west is not as right as the chap who says the sun appears in the east and disappears in the west.
American law professors and jurists, especially Oliver Wendell Holmes, in the Common Law (ed. M. Howe, Boston, Little Brown & Co., 1963), p. 163 said: “Possession is a conception which is only less important than contract, and this is true, for ‘throughout the history of English land law the operative concept has been possession rather than ownership.” This has been endorsed and accepted by K. Gray and S. Gray in ‘The Idea of Property,’ in Land Law Themes and Perspectives (ed. S. Bright and J. Dewar, Oxford, Oxford University Press, 1998), p.21.
The existing law, or the lack thereof, favours Indigenous Communities who will need to showcase and advance their claims as an event of justice delayed and denied.
Possession and ownership of inground minerals and metals
The points raised in the Introduction must leave the reader with absolutely no doubts, uncertainty or reservations concerning the possession, and therefore, ultimate ownership of inground assets by the person(s) who can claim a better right because of prior possession. “To gain possession, then, a man must have a certain physical relationship to the object and to the rest of the world, and must have a certain intent, said Oliver Wendell Holmes, a US Supreme Court Justice (1902-1932). Holmes believed that intent was to exclude all others from that relationship (p.174, The Common Law).
The findings and rationale of Justice Holmes concerning land possession should leave the reader in a state of contentment that there is no complexity or confusion but certainty and consistency in the law of possession as enjoyed by the Indigenous Communities of the world. The law is settled. De jure has made it easy for de facto to take control.
Theft and larceny
Governments enjoying de jure standing in North America, South America, Africa, Europe, Asia, Australia and the South Pacific have totally ignored the findings of sane scholars and dependable jurists concerning land in totality with its inground and above ground assets and reserves.
These governments have issued mining, quarrying and extraction licenses to private corporations and reaped and roped in billions, if not trillions of USD/Euros with zero outlays or to Indigenous Communities simply because de jure enjoys police power. These licences were issued without consultations with de facto Indigenous Communities who were the original custodians and stewards of God’s creation.
What options, then, are available to Indigenous Communities to assert their rights?
1. 1. Going to a court of law for “justice,” whatever that means;
2. 2. Going to international forums to show off oratorical skills, after which nothing materialises except for media coverage;
3. 3. Organising civil disobedience in an effort to shutdown labour which is sure to shut down the engine of the economy;
4. 4. Establishing police power;
5. 5. Starting a bloodless coup or revolution;
1. 1. Create worth and value for their inground assets by creating legal tender backed by the very inground assets they own and possess;
2. 2. Assure and convince central banks that this legal tender defines money as medium of exchange, store of value, unit of account, method of payment and means of settlement;
3. 3. If cryptocurrency backed by no known commodity can make it and gain traction in commerce, why not legal tender backed by inground assets;
4. 4. Structure a practical system of acceptance of this legal tender in commerce using available contacts and friendly relationships in de jure regimes that believe in genuine justice for the Indigenous Communities. There is plenty for everyone in both de jure and de facto jurisdictions. Greed should not come into the equation.
The views expressed here are those of the writer and do not necessarily represent the views of New Sarawak Tribune.