This is the text of a talk I gave in early 2008. It gives the whole picture as I understood it at that time. I had been repeatedly asking Shetland's archivist when Shetland became part of Scotland.
In September 2007 he gave a lecture in which he proposed that 1472 was the date. He has since changed his mind and now says that 1469 was the date.
This is a complicated story, the details of which have been buried by successive monarchs and their administrations, but at every turn they have left evidence of their dirty deeds.
The following talk was my response.
Who Owns Shetland?
My name is Stuart Hill. Almost since I arrived here in Shetland six years ago I've been fascinated with Shetland's constitutional position and the history surrounding it. The more I looked at it, the more things didn't add up to what is generally accepted – that Shetland is part of Scotland.
I'm not about to sift through the history that many are familiar with, trying to find a different interpretation, a different slant. I'll be speaking more about the legal implications of what happened and using some fresh documentation to throw an entirely different light. Shetland's archivist, in his recent lecture said words to the effect that he was not really interested in the legal issues. I am, and I will be following more the spirit of the SIC's motto: Med løgum skal land byggja - 'With laws the land will be built.'
Ignoring the legal aspects is all very well, but it cannot help when looking for a solution.
Much of what I'm saying applies equally well to Orkney, but there are important differences and this talk is with particular reference to Shetland. I will show why, from both legal and historical perspectives, the date of 1472 proposed by our archivist cannot possibly be the date on which Shetland became part of Scotland and why there can actually have been no date on which that momentous event ever happened.
I will also be showing on what a shaky foundation the Crown bases its claim to the sea and seabed around Shetland – and indeed its claim to Shetland as part of Scotland, or even the UK. I will explain why the actions of previous monarchs have placed the Crown in the difficult position it now finds itself. I will be pointing out why it is so important to the Crown to foster the belief that Shetland is part of Scotland – so important that it finds it necessary to ignore the law and so important that Shetland's true history must be suppressed.
And finally I will outline the future implications of what I have put together.
I'll be looking at various dates in Shetland's history and considering the questions 'Was ownership transferred?' at each point.
I must point out that I am not a legal expert, but I have had the benefit of advice on the subject by some pretty heavyweight legal people – and the documents speak for themselves. I think you will find that what I am presenting is quite logical, and if even if a little tortuous, a clear picture will emerge.
I am making the assumption that in order for Shetland to be incorporated into the realm, it would first be necessary for the Crown to acquire ownership. In relation to what is happening today, it is certainly the issue of ownership that is the most important.
The clarification of a date on which the Crown acquired ownership of Shetland and when it became part of Scotland is a pretty important issue to both Shetland and the UK. Today, in pure money terms, assumption of the fact that it happened is what gives the Crown Estates the right to take money from the salmon farmers, Shetland Islands Council and anyone wanting to use the seabed. It's what gives the government the legitimacy to license the oil companies to extract over £4 billion worth of oil from around Shetland's shores every year. It's what ties us to the raft of EU directives that we have to cope with. While it also gives Shetland access to the diminishing EU grants and support, it's what ties our hands in deciding what we want to do with our money.
First, I would like to pose some questions. If there was a date on which Shetland became part of Scotland – if it actually happened - do you not think it would be easy to find? Would there not be a piece of paper, say an Act of Parliament that spells it out? If it actually happened, would it be necessary for our archivist, in his recent talk, to 'propose' a date as a 'contribution to the debate'?
There would be no debate!
Some people have proposed that the Crown acquired ownership in a gradual manner. In the sort of question we are discussing gradual change is like getting a little bit pregnant – either you are or you aren't. There has to be a defining document or act – and a date - when it happened. Most of the text books – and our museum, point to 1469 as the defining date – after all that's when Shetland was handed over to Scotland. Our archivist has broken with that tradition in proposing, in a talk in September 2007, a date of 1472. In doing so, he has blown the debate wide open. (In TV and radio interviews in August 2008, he returned to a date of 1469, showing uncertainty at the very least). It is vital to Shetland that this issue is settled.
So, starting with some basics: From a legal perspective there are three letters that are crucial to the understanding of Shetland's legal position: C C T.
These stand for the legally accepted means by which a territory can be acquired. They stand for Conquest, by force of arms – Cession, by treaty, or mutual agreement and what's called Terrae Nullius, when there are no inhabitants and no legal system. Terrae Nullius obviously does not apply in Shetland, so that just leaves us with Conquest and Cession.
One of the effects of a change of jurisdiction is that the laws of the territory making the acquisition usually come into force. Once Norway ceded the Hebrides to Scotland, Scots law, not Norwegian was used - this is a strong indicator as to whether a transfer of power has taken place, although it is not an absolute test.
Many historians will agree that the Vikings came and conquered Shetland around the ninth century, so this provides a starting point. This is our first C – Conquest. We need to look no further back than that for a legal starting point.
The next interesting date is 1266 – the date of the Treaty of Perth. By this treaty Norway sold The Sudreys (The Hebrides) and the Isle of Man to Scotland for 4000 marks and an annual payment of 100 marks – The Annual of Norway. This was a mutually acceptable agreement and we have an example of a second C – Cession.
There was a change of ownership, the Hebrides became part of Scotland and there is no doubt about the date on which it happened.
But it's not quite that simple. Why is the Isle of Man not part of Scotland now? It is a Crown Dependency with its own parliament and a great deal of autonomy. I will show that Shetland has more right to that status than the Isle of Man.
Although not directly to do with Shetland, The treaty of Perth also confirmed Norwegian sovereignty over Orkney and Shetland and had other important consequences here.
At first the Scots paid The Annual of Norway, but by the 14th century they were in arrears and the resulting friction culminated in the 1468/69 pawning. The French King Charles VII had mediated in the dispute and the issue was settled by an agreement that the Scots King James III would marry Princess Margaret of Denmark, King Christian's daughter. At this time, Norway was owned by Denmark, but King Christian signed the agreement as King of Norway.
The dowry to be provided by King Christian was 60,000 florins. Unable to come up with the money, he impignorated, or pawned 'the king's lands' in Orkney to King James in 1468 as security for 50,000 florins, leaving 10,000 to be paid in cash. He was apparently able to come up with only 2,000 because, in 1469 when he was due to hand over the remainder, he pawned 'the king's lands' in Shetland for 8,000. Immediately afterwards he wrote to the people of Shetland instructing them to pay their scat to the Scottish king until he or his successors redeemed the islands.
What James was interested in was the income he could get from the islands in rents from the king's lands and scat from the greater population.
So, at this point, the situation is that James III is holding the 'the king's lands' in the islands in trust as security against payment of the dowry. There has been no Conquest or Cession. Ownership of the king's lands has not been transferred. Ownership of the greater part of Shetland still remained with other land owners and could not be part of the pawned lands because it did not belong to King Christian.
Shetland is not part of Scotland.
Our archivist has proposed 1472 as the date when Shetland became part of Scotland. At first sight it would seem to be a reasonable argument – James III, by his Act of Annexation appears to make what is a claim of ownership. However, it was not in James' power to do this as he well knew. Only three years before he had agreed with King Christian to hold the king's lands in the islands in trust until the Danish king could come up with the money to take them back. Without the agreement of both parties this contract could not be changed. The 1472 Act of Annexation was just the first of a number of unlawful attempts by the Crown to justify an indefensible position.
There has been no transfer of ownership. Shetland is still not part of Scotland.
To put it in simple terms: If you got a letter from your building society saying 'even if you come up with all the money to pay off your mortgage, we're keeping your house' – would you think that was acceptable? Can the building society in that way remove you right of redemption? Obviously not, but in effect, that's what James III was attempting to say with the 1472 Act.
The Act makes Shetland a hot potato for succeeding monarchs.
That even James did not think that the Act of Annexation was valid is made very plain by his letter fourteen years later to King Christian's son, John - a letter discovered by our archivist. John has apparently heard rumours that James was about to remove the inhabitants of the islands and replace them with Scots, which would make the job of imposing Scots law much easier (he would then effectively have a Terra Nullius situation – no inhabitants - and could possibly make a quasi-legal claim). Whether James actually intended this ethnic cleansing or not, his remarks to John are very interesting. He goes to great lengths to placate John, assures him that no inhabitants have been removed and there is no intention to change the laws or language of Norway.
This is what James says in the letter:
'Last summer Rothesay Herald brought John's letters to James, from which he understood that John was moved [to learn] that subjects of the isles of Orkney and Shetland were to be taken from their birthplace and James's subjects brought over to inhabit those islands and be governed by Scots language and laws, which had caused no little indignation among John's councillors.'
James goes on:
'In truth he has removed no inhabitant of those islands from his native place nor has he changed the language or laws of Norway. Pacts still in force were concluded and sealed between John's father (King Christian) and James, He will have these looked at and will take care that their terms are observed on his part..........'
If James thought that by the 1472 Act of Annexation he had secured ownership of the islands, why did he not just tell John to go away – it would be none of his business. Why were the language and laws of Norway being preserved? Why would he need to justify his actions to John? - Because he knew he didn't own the islands and he was still bound by the pawning agreement.
So, even at 1486, the king acknowledges that Shetland is not his – it is not part of Scotland.
If our archivist says that 1472 is the date when we became part of Scotland, we can be pretty sure this date is the strongest contender. The king's letter makes it clear this was not the case, so I could stop here, having proved that it didn't happen in 1472 – or in 1469 for that matter, but there is a lot more supporting evidence for my contention that it never happened at all.
First of all, the question of sovereignty. Sovereignty as understood by James III (and most Scottish and English trained lawyers and academics to this day) was quite different to King Christian's concept of the term. To James, as well as being the right by which he ruled his people, it meant ultimate ownership of the whole realm. Anything, or any part of the realm that was not claimed was automatically the property of the king and any land owned was owned under a charter from the king. This is the essence of the English and Scottish feudal system, everybody who owns land owns it under a feudal charter granted by the king. Of course, before he can grant a charter, the king must first own the land in question, either personally or as a result of his feudal superiority.
Christian, on the other hand, understood sovereignty simply as the right by which he administered his country and people – the right by which he was Head of State. There was no concept of overall ownership – everybody owned their land under God. This is the principle difference between the udal and feudal systems and what makes them diametrically opposed.
I may be wrong, but it seems to me that feudal sovereignty arises out of conquest and udal sovereignty arises out of representation. The feudal sovereign is lord over the people – reference is made to 'subjects' and 'vassals', whereas the udal sovereign is their representative and ultimately their servant.
The sovereignty Christian transferred could not possibly include ultimate ownership in the feudal sense. He could not transfer something he did not have.
By asking the people to give their scat to the Scottish king, Christian was temporarily transferring his administrative sovereignty until he or his successors could come up with the money to redeem the islands, at which time that sovereignty would automatically revert to Norway/Denmark. Sovereignty was not being relinquished. The pawning had no time limit and, while sovereignty was being temporarily transferred, that sovereignty did not included ownership. Ownership was not being given to, or being acquired by the Scottish Crown.
There was No transfer of ownership. Shetland was not part of Scotland.
On the question of sovereignty, T.B.Smith, who acted as counsel in The St Ninians Isle Treasure case made the point in his analysis after the case: "In International Law and Constitutional Law it is cer-tainly not assumed that the property prerogative rights even of an annexing State (as contrasted with prerogative rights essential for government) extend to acquired territory without statutory or other sanction—which was certainly lacking in Shetland"
Put more simply, although the sovereign is head of state, that does not give automatic property rights without proper legislation – which never happened in Shetland.
In later times, in Cape Town, Ceylon and Quebec for instance, although there was an acceptance of the British Crown as head of state, any idea of feudal ownership was rejected. The distinction was clearly understood.
The courts have never upheld the fiction that The Crown is the feudal superior in Shetland. The idea that the royal prerogative enables the Crown to presume ownership must be considered as essentially a feudal concept and not applicable in Shetland. The only aspect of sovereignty that could apply here is that of Head of State, which confers no property rights.
Understanding these distinctions of sovereignty has caused problems for Shetland up until the recent past, as I shall be explaining shortly.
The question must be asked 'If the sovereignty now exercised by the Crown is no more than that transferred by King Christian, how can the Crown do any more than hold the 'the king's lands' of the islands in trust? Alternatively, if the Crown exercises rights over and above those required for administration, how did they acquire them? In order to charge rents and to exploit resources, the Crown must have ownership. The onus is on the Crown to provide the proof that it has such ownership. I will show that it's never had any ownership rights whatsoever.
1469 - 1669
During the two hundred years after the pawning the Danes made a number of attempts to pay the mortgage and redeem the islands, but the Scots always managed to avoid the issue. However, at no time did they try to assert that the Danish claims were not valid. They knew they were in the wrong, but were determined to bluff it out. If, at any point during that period, Shetland had become part of Scotland, they would have wasted no time in saying so.
There had been no change of ownership. Shetland had not become part of Scotland.
During this period the islands were passed back and forth between the Crown and, as Balfour put it, 'various needy and rapacious courtiers'. The Crown would grant a 'tack' to whomever it pleased, for the recipient to be the beneficiary of whatever income could be extracted from the islands and would then take them back if the grantee fell out of favour. Fourteen times granted out and five times taken back, according to Balfour - each time suffering worse depredations as laws were changed, weights and measures altered and the language suppressed.
All of this indicates that the islands were still a hot potato - the Crown wasn't sure how to handle them because they couldn't be legitimately incorporated into the realm. Contrast this with the Hebrides, where there had been a proper transfer of power.
A number of events during this period point to the fact that Shetland was not part of Scotland:
- In 1567, Parliament confirmed that the islands should be subject to their own laws. Although there was an attempt to reverse this decision in 1611, that was an order by the Privy Council, which could not over-rule Parliament.
- A number of court cases were referred to Bergen during the period.
- As late as 1667, the Treaty of Breda confirmed that the pawning was still valid in full force and that therefore ownership had not passed to the British Crown.
So, by 1667, there had still been no change of ownership and Shetland was not part of Scotland.
The 1669 Act of Annexation is a document of great importance to Shetland, but I have found only one reference to it in all of the historical texts I have studied. Without it 1707 would become a strong contender for the date when Shetland became part of Scotland and the UK, with the Act of Union.
In the Act, Charles II declared that the actions of previous kings since 1540 in granting the islands out had been 'contrary to the laws and acts of Parliament of this Kingdom'
Regarding the inhabitants of the islands, he declares 'That without interposing any other Lord or Superior betwixt his Majesty and them, they should have an immediate dependence upon his Majesty and his officers'. Although the term had yet to be formally used, it is difficult not to see this as the creation of a Crown Dependency – as happened later in the Isle of Man.
Regarding future acts of dissolution of the realm, he says: 'And further it is Declared That if any general act of Dissolution of his Majesty's property shall be made at any time hereafter; The said Earldom & Lordship and others above mentioned & annexed Shall not be understood to fall or be comprehended under the same'.
Taking out the excess legal verbiage makes this easier to read: 'if any act of Dissolution of his Majesty's property shall be made at any time hereafter; The Earldom & Lordship Shall not fall under the same'.
With the Union of England and Scotland firmly on the cards at this time, and with Oliver Cromwell's Commonwealth just behind him, it seems that Charles II intended to keep the islands separate under his own care.
Reinforcing this point, he goes on: 'And if the said Earldom and Lordship or any part thereof shall be annalied or disponed, or any right of the same shall be granted otherways than is appointed and ordained in manner above mentioned His Majesty with consent forsaid Doth Statute and Declare That all dispositions investments and other rights of the said Earldom & Lordship, or any part thereof which shall be granted contrary to this present Act with all acts of dissolution and Ratification & other acts of Parliamt concerning the same shall be from the beginning & in all time coming void and null and of no effect'
Again, taking out the excess for ease of understanding: That all dispositions and other rights of the Earldom & Lordship, which shall be granted contrary to this Act [and] all acts of dissolution and other acts of Parliamt concerning the same shall be void and null and of no effect'
With the consent of Parliament, Charles was taking the exclusive rights to the islands back to the Crown for all time coming.
Whether these conditions were taken into account in the later disponements up to 1697 is open to question, but apart from the fact that he describes the islands as his property – which, as the Treaty of Breda had just reminded him, he was no more entitled to do than any of his predecessors, the 1669 Act of Annexation restores the situation as it was in 1469. The islands are under the direct personal control of the king, to the exclusion of Parliament, a situation set 'for all time coming' and that even if Parliament shall legislate otherwise, such legislation will be null and void with regard to the islands. This reinforces the supposition that Charles intended to keep the islands separate to himself – as indeed was his only real option.
Once again – no change of ownership. Shetland was not part of Scotland.
With all future legislation concerning the status of the islands being declared null and void, and with ownership still not having been acquired by the Crown, it is difficult to see how, only 38 years later, a final disponement to the Earl of Morton can have been legal, and the following 1707 Act of Union can have applied here, the terms of the 1669 Act specifically excluding Shetland from such events. What makes it even less tenable is that the specific terms of this disponement – that the Earl of Morton was hard up – are the very terms in the 1669 Act that would render it null and void.
More difficult is how to explain the change from being effectively a Crown Dependency to becoming a mere county of Scotland – no legislation having been enacted to make that happen. In fact, because the Crown did not have ownership of Shetland, it did not have the authority to incorporate it into the UK.
Shetland is still not part of Scotland – or even the UK.
The situation is much easier to understand when you realise what a difficult position the Crown was in. The terms of the pawning had never been complied with and, only two years before, having been recognised as still being in force, meant that ownership had never been transferred and the islands could never be legitimately incorporated into the realm. The Scottish and British Crowns had been successful in fending off attempts by the Danes to get the islands back, but only by subterfuge. The best they could now do was to sweep it under the carpet and pretend that after all this time there was some kind of legitimacy to the situation.
Shetland is not part of Scotland - or the UK.
Before 1965, there was no doubt that udal law took precedence over feudal. Udal law had been introduced into Shetland around 900 AD and had survived for over 1,000 years. It enjoyed a far better pedigree than Scottish law. There is plenty of evidence for this, but the following three statements illustrate it:
n 1839: in Spence v Earl of Zetland Lord Jeffrey says: "there is not the slightest appearance of its ever having been held that the overlord of these islands of Shetland had been the original proprietor of all the lands they contain. There is no feudal supremacy, and there is not a shadow or trace of an original property in the lord or sovereign"
In 1903: in Smith v. Lerwick Harbour Trustees Lord Kinnear: "I do not think it possible to doubt that the land law of Shetland is allodial and not feudal ... it is certain that in that system the fundamental doctrine of the feudal system as to the right of property has no place."
Lord Johnson, in the 1907 case Lord Advocate v. Balfour said 'nothing has occurred since 1468 which amounts to a general acceptance in Orkney (or Shetland, of course) of the Scots feudal system'
The above pronouncements were all made by a Bench of judges – in other words there was more than one, and all of them concurred with the statements.
Two cases were to turn this accepted situation on its head but with flawed verdicts, as accepted by many lawyers. In both cases the distinction between the administrative and feudal ownership aspects of sovereignty were blurred. The first was:
The St. Ninians Isle Treasure Case
The doctrine of Treasure Trove gives the Crown ownership of buried treasure in English and Scottish law. It's an essentially feudal concept, but was used to decide the St. Ninian's Isle Treasure case. In spite of over 1,000 years of evidence to the contrary, the single judge on the case decided it was time to bring Shetland in line with Scotland. On appeal, the court dodged the need to even consider the udal law implications by deciding the case in terms of Scottish feudal law – law that was not applicable in Shetland. Although the renowned udal law expert, Professor Roberstad had made himself available to testify, his evidence was not allowed.
The 1991 verdict in the Salmon Farmers case is the one on which the Crown Estates base their whole authority in Shetland. Prior to that they had asserted in Scotland that their right to the seabed was a feudal right of property. It would be difficult for them to maintain that argument here, so they resorted to claiming it as an aspect of sovereignty and part of the Royal Prerogative.
At the time it was not easy to counter this argument because the Royal Prerogative was not actually defined until April 2004. As nobody really knew exactly what it was, it was a handy weapon to wheel out as required to justify any particular Crown position without fear of opposition. However, since only those parts of the Royal prerogative concerning jurisdiction, and not those concerning ownership, apply here, the Crown Estate base their claim on a flawed verdict. After the case it was remarked by one commentator that they must have heaved a sigh of relief. Many lawyers would have welcomed an appeal to the House of Lords, but it seems the legal profession closed ranks at this point and no QC could be found to take on the case.
The two crucial cases in Shetland's recent history have both been decided by using feudal concepts involving the Crown's ultimate ownership, that are not applicable here. It seems to have escaped the lawyers concerned that they stood little chance of success when the Crown was ruling for itself.
I have made a particular study of the seabed question because it is of such relevance to Shetland.
To illuminate the Crown's claim to the seabed it is necessary to understand how it makes that claim in English law.
In Stuart times and after, writers such as Digges, Selden and Hale proposed that the monarch owned the seas and seabed around England. It is quite clear that the Crown's claim to the foreshore, sea and sea bed arises as a consequence of its feudal superiority in the land.
The king first of all owns the land as feudal superior. Because he owns the land, he can claim the foreshore. Because he owns the land and the foreshore, he can claim the sea bed. The sequence is: Land > Foreshore > Sea bed.
Today, the territorial seas extend to a breadth of twelve miles from the coast. Beyond that, the UK claims sovereign rights over the continental shelf to a distance of two hundred miles, or to the median line between it and another state.
Without the land, there can be no claim to the foreshore or seabed.
This is most vividly illustrated in the case of Rockall. When the Crown wanted to claim the two hundred-mile limit around Rockall, presumably in case there was oil there, there was no question of doing so without claiming the rock. Although the rock itself was worthless, ownership of it gave the right to the surrounding sea and sea bed. It would be unthinkable to consider claiming a piece of seabed without the land to go with it. The rock is only 65ft high and yet control of it gives control over an enormous piece of seabed.
This is an example of Terra Nullius. The rock was obviously devoid of inhabitants and therefore open to a lawful claim.
What I've described sounds pretty logical and yet there is actually nothing solid about it. Here is an insight into the tenuous nature of the Crown's claim to the sea bed, even under English law:
The 1866 Crown Lands Act (which I will refer to in a minute) received the Royal assent in August 1866. Four months later, in December of that year, the Permanent Under Secretary of State at the Board of Trade drew up a memorandum, at the end of which he wrote, in reference to the sea bed:
'There can be little doubt that we shall have, sooner or later to bring in a Bill or Bills for the following purposes:
To ascertain, or give facilities for ascertaining, the Crown's title.
This will be a delicate matter and must be postponed for some time.'
So, even after the Act was in force the Crown's title had not been ascertained and yet this Act was the means by which it could grant leases and licenses for works on the sea bed! This would be plain fraud if perpetrated by anyone else. And this is in English law – how much less certain is that claim in Shetland?
This is just another illustration of the difficulty of the Crown's situation in Shetland, and the lengths to which it will go to get its way.
At the time of the pawning, there can be no doubt that the seas between Shetland and Norway were Norwegian, under the control of the Danes. There is nothing to say that Scotland had even the vestige of a claim. It was universally accepted that if a state owned the opposite shores, the sea between also belonged to it.
As is illustrated by Rockall, the Crown cannot claim an area of seabed without the associated land. In 1469 there was no prior occupation or other right, so where does the Crown's claim to the seas around Shetland come from – unless Shetland is part of Scotland? It thus becomes very clear why it is vital, from the Crown's point of view, for this fiction to be upheld.
In Shetland the Crown makes no claim to ultimate ownership of the land.
It makes no claim to the foreshore.
And yet suddenly it owns the seabed
How did that happen?
The absence of written udal titles to the seabed does not mean that no rights exist – any more than the absence of a udal title on land does. That udal rights existed in the sea is illustrated by the fact that every udal landowner owns the foreshore adjoining his property. It is also generally accepted that individual udal rights extend beyond the low water mark to a point variously defined, but generally approximating to a depth of 2 metres.
In Orkney it required a billet from the Ting to fish the North Shoal. Fishing rights around offshore rocks and skerries were rotated in the local community in both Shetland and Orkney. There was no distinction between land and sea as far as hunting and fishing rights were concerned. Both were divided into infield and outfield. The outer limit of community ownership was the Marrebeke – where the seabed suddenly dropped off, in other words the edge of the continental shelf. These community and individual rights in the foreshore and surrounding sea have never been taken away from the islands.
In other words, there were established rights in the sea, but they belonged to the people of Shetland, not the Crown.
The Crown Estates
The Crown Lands Act of 1866 was the first of the Crown Lands Acts to make specific mention of the bed of the sea. In a report prior to the Act is the following:
'By the common law the shores and bed of the sea and of all tidal navigable rivers below ordinary high-water mark are vested in the Crown
The right of the Crown is of a two-fold character.
First:—A right of property in the soil ........
Secondly:—A right of jurisdiction ......'
This confirms exactly what I was saying about sovereignty just now. Although the second is applicable in Shetland, the first cannot possibly apply as we've seen.
The Act of 1866 was, for the first time, transferring the rights of the Crown in the sea bed and foreshore from the Commissioner of Woods to the Board of Trade. Later legislation made the transfer to the Crown Estates Commissioners, but this Act sets out what was being transferred in the first place.
In Section 25 it states: 'Nothing in this Act contained shall extend or increase or be construed to extend or increase the Powers or Authorities, Rights or Privileges, of the Crown over the Foreshore, or any Part thereof, but as between the Crown and all other Persons such Powers and Rights shall continue as the same existed before the passing of this Act.'
It is thus clear that the Crown does not own any of the seabed around Shetland. In order for the Crown Estates to have any authority in Shetland, they must be able to point to some legislation that shows they owned the seabed around Shetland before 1866. The Courts, up until 1965 have confirmed this is not the case. Alternatively there must be later legislation to appropriate the seabed around Shetland, which must proceed from the assumption that Shetland is part of the UK. There has been no such legislation. Consequently, and also because the Crown owns no foreshore in Shetland, the 1866 Act can only have applied to England, Scotland and Wales, not to Shetland.
Section 7 states: From and immediately after the Thirty-first Day of December One thousand eight hundred and sixty-six all such Parts and Rights and Interests as then belong to Her Majesty in right of the Crown of and in the Shore and Bed of the Sea, and of every Channel, Creek, Bay, Estuary, and of every navigable River of the United Kingdom, as far up the same as the Tide flows (and which are here-in-after for Brevity called the Foreshore), .........'
In the whole of English law, the foreshore and sea bed are inextricably linked. In the relevant legislation and documentation reference is constantly made to 'the shore and bed of the sea' and other similar terms. No distinction is drawn between them. You cannot have one without the other – they are one and the same. Exactly the same is the case in udal law. If pushed, the Crown would have difficulty proving any right to the territorial seas out to twelve miles around Shetland – simply because it doesn't own the foreshore. In England it does not make a claim to the seabed without owning the foreshore – neither can it here.
The Crown Estates behaviour in Shetland reflects its tenuous position, but it has been emboldened by the dodgy verdict in the Salmon Farmers' case and has since been taking a stronger line. The SIC has a number of leases with the Crown Estate. They were kind enough to send me a list. You will notice that no lease is older than 1975. Does that mean that nothing was built on the seabed before 1975? What about all the piers and docks in Lerwick? What about the land reclamation at the Green Head? There must be a lot more I don't know about.
Although the following occurred in Orkney, the same would have applied in Shetland under the same circumstances. An oil company had negotiated a fee with the Crown Estates to lay a pipeline across the foreshore. When the udal proprietor realised his rights were being infringed, he protested and the Crown Estates were forced to hand over the fee to him. Another case of the Crown dispensing rights it did not possess.
Also in Orkney, a cockle fisherman was convicted partly on evidence from The Crown Estates that they owned the foreshore, even though it was clearly a udal title. When I challenged them on this they were unable to give me an answer, but the man lost his business and now has a criminal record. Again, the same could have happened in Shetland.
The truth is, they know they are on a sticky wicket. If they had a valid claim before 1975, why have they not pressed it? I asked the Crown Estates for details of their foreshore holdings in Shetland. They wrote back saying they have no such register. What landowner does not have a record of their properties? I also asked them for the date of their first transaction in Shetland, but they were unable to find that either.
I made the point that many of the berths in Shetland marinas are inside the line of lowest astronomical tide, the line by which udal title is defined. These berths would be outside their remit and could not legitimately be charged. They replied that a survey would be made to make sure they were not charging inappropriately, but I have heard nothing since. I do know they charge fees at Cunningsburgh, even though the whole of the marina is above the low water mark. This photo was taken in April 2004. You can see the breakwaters, the dredged channel – and the old low water mark before it was dredged. This was taken in March, 2005, when the marina was finished. Again, you can see the low water mark and all of the work is on the foreshore.
The Crown Estate charges for moorings elsewhere in the UK – why not here?
When I enquired they said that in Scotland they deal with moorings associations and that if any group of moorings owners in Shetland wanted to form an association, they would be pleased to deal with them. I replied that I had wracked my brains, but could think of no reason why any group of boat owners would wish to get together to pay their fees.
In short, they are chancers. They will try any pretext to extort money and the whole of their claim here is built on sand.
Going back to the 1866 Act, which transferred Crown property to the Board of Trade, later the Crown Estates, the Crown made a smart move by holding back the mineral rights.
These Crown rights were taken care of in the 1964 Continental Shelf Act, when the government appropriated the seabed around the whole of the UK outside territorial waters. This was done despite the fact that until 1965 the courts had denied any property rights of the Crown in Shetland and the Crown had no prior claim to that seabed. The Crown either didn't know or didn't care that they had no legal basis on which to proceed.
It would seem to be credible to argue that, if Shetland is not part of Scotland it could make a similar claim that would be stronger than the UK's over those parts of the continental shelf to the west, north and east of Shetland.
With regard to licences for the oil companies, neither the Crown nor the government can grant what it doesn't own. This would be fraudulent conversion – so it is vital for them to maintain the fiction at any cost.
In the action, Kelsey v. Baker, heard before Heath J. in late 1803, in a note endorsed on one of the documents in the case, he said:
If the King possessed it exclusively, he could grant it exclusively.
If he has it as a Trustee, he could not grant it.
I have shown that ownership never passed to the Crown and that they only hold the islands in trust. Any licensing agreements between the British government and the oil companies rest on a very unsound footing indeed.
The onus rests on the Crown to prove their ownership. As McNeil observes: "The Crown must prove its present title just like anyone else."
Of course, with over £5 billion worth of oil annually passing through Sullom Voe alone, there are pretty strong reasons for the Crown to hang on to it.
Who does own Shetland?
I've spent a good deal of time proving that the Crown has never acquired ownership of Shetland or the surrounding seas and sea-bed, but where does ownership lie?
Going back to the pawning, King Christian did not have overall ownership under the udal law system because every landowner owned his land absolutely. Where individual rights ended, community rights took over. Ultimate ownership remained with the people - and still does. This is the real scary bit for the Crown – the bit we can never be allowed to know. The Crown cannot get ownership rights without taking them from the people of Shetland. They are safe in their deception as long as we don't know.
Ownership has never been taken away - the people of Shetland own it themselves. The facts have been hidden and obscured with such concepts as 'feudalisation' and an assumption that feudal law could supersede the original udal law. Udal law has survived and still takes precedence in many land transactions. Feudalisation is described as a gradual process, but it is one that is impossible to justify. A feudal charter, which is the basis of all feudal landholdings, can only be granted by the sovereign. Before he can grant it, he must own the land in question. This has never been the case in Shetland, so no so-called 'feudalisation' can legitimately have taken place here.
Correspondence with the Queen
I thought the best place to get information about this whole subject is from the top, so I wrote to the Queen. Reminding her of the pawning and pointing out the provisions of the 1669 Act of Annexation, I asked Her Majesty for the return of Shetland's sea bed, return of the fisheries and, since Shetland had voted not to remain in the EEC in 1975, for removal from the EU.
Her Majesty's reply, via her correspondence secretary, was that, as a constitutional Sovereign, she could not get involved and had instructed my letter to be passed to Lord Falconer of Thoroton QC, the Secretary of State for Constitutional Affairs.
I replied that, because of the provisions of the 1669 Act, this was not a matter for parliament, but between Her Majesty and her subjects in Shetland.
Her correspondence secretary wrote back, saying that, the Queen, as a constitutional Sovereign, could not get involved and had instructed my letter to be passed to the First Minister in Edinburgh.
I got a reply back from the Scottish Executive, saying a reply would be sent as soon as possible. No reply so far.
Not having heard back from Lord Falconer of Thoroton, I wrote again to the Queen, asking if I should expect a reply from him.
Once again the familiar: the Queen, as a constitutional Sovereign, could not get involved, but this time had instructed my letter to be passed to the Secretary for Justice and the Lord Chancellor. I don't know if these are one and the same nowadays, but I wait with bated breath for a reply from him or them.
Meanwhile, not having had a reply from any of the august gentlemen to whom my letters had been referred, I wrote again to the Queen on 20th. September, requesting that, if she did not want to deal with the matter herself, would she please pass my letter to a personal representative who was not part of either parliament or the government, since it could not properly concern either. I await a reply on that.
The correspondence is interesting, not because of any result, but because it illustrates that even at the highest level there is confusion about what to do with Shetland. Even the Queen does not know who to refer my correspondence to, and none of the people to whom she has referred my correspondence seems willing to reply.
If I can just crystallise the situation: What the Crown (or the government acting on its behalf) is after is the income available from Shetland. Today, that income is principally the oil revenues, plus the Crown Estates income. The difficulty they face is that, because of the pawning, they have never acquired the ownership rights that would enable them to legitimately license the oil companies, or to charge rents for the seabed. As I've shown, they have gone to great lengths to present a veil of legitimacy, but have left a trail of dirty deals and deception behind them. Any deals involving ownership are fraudulent if ownership cannot be proved. It is unfortunate for the oil companies that they are sitting on a bum deal.
It's too late to do anything
I get this a lot: 'after all this time there's nothing we can do', which is but another way of saying time cures all. A couple of documents I've come across and a very recent court case show otherwise.
It took until 1860 for the legal systems of the Channel Islands to be recognised by a Royal Commission on the basis of a no longer existing document of 1215, The Constitutions of King John.
A 1981 land dispute in the Isle of Man successfully relied on 1405 documents.
These cases were relying on much older documentation and in neither of them was there anything like the wealth of evidence that supports the Shetland case. The elapsed time in both instances was greater than in Shetland's case.
After a long-running battle with the UK government, the Chagos islanders finally won their case in the House of Lords in October 2007. The case involved the government evicting them from their homeland in order to rent Diego Garcia to the Americans for use as an airbase. The principles clarified during this case are very relevant to Shetland since they involve the illegal use of the royal prerogative.
Are we Norwegian?
You might think that from all I've said, the only option is our returning to Norway. Not a bit – although it might be a distant option. If there is to be any change in Shetland's status – and that can only happen if the people of Shetland want it – it would, in my view be as a strong and vibrant community making whatever arrangements it wanted with other states. The options range from doing nothing and gradually lose our identity, through being a Crown Dependency, to full independence - or anything in between. Just as all the other previous colonies of the British Empire now control their own destinies, so could Shetland. The important thing for people to understand is that the present position is without foundation and is only kept in place because we allow it. It's a house of cards and Shetland holds all the cards.
Five Tests of Shetland public opinion in recent times have shown:
- 1975: Shetland and the Hebrides were the only places to vote not to continue as members of the EEC
- 1992: A Shetland Times poll showed 62% would like more autonomy.
- 2003: A leaflet circulated with the Shetland Times drew over 1,000 responses asking for more autonomy.
- 2004: A SOUL petition revealed over 1,000 wanted more autonomy.
- 2006: A Tory poll found 77% wanted more autonomy.
There is an appetite for change, but it has been ignored.
If Shetland is not part of Scotland, and I think I have shown that it never happened, the implications, for Shetland, for the UK and beyond, are profound.
- The UK's use of Shetland's fisheries as a bargaining chip to enter the EEC would have been invalid. We would still have control of our fisheries.
- Shetland's clear wish not to be involved with the EEC would have been respected.
- The UK government would not have been able to claim Shetland's continental shelf.
- The oil would rightfully belong to Shetland – think about that!
- Shetland would have been unaffected by foot and mouth regulations. The outbreak in S. England, but France not closed, nor Ireland, or even N. Irleland – part of the UK.
- We would not be swamped by EU regulations and directives.
All of this has been imposed on Shetland out of either ignorance or plain fraud. If Shetland had more autonomy, all the things that Sandy Cluness stated that Shetland needed, when he was elected to office in 2003 would be possible.
At the time of his election, he is reported in the Shetland Post as saying:
"I hope to see a more successful Shetland with an economy that's moving forwards while maintaining the very high standard of services that we have,"
"Essentially I believe that Shetland has the potential to be a much bigger community. But I think a degree of autonomy is essential to achieve that."
What he's after is what's known as the Wallace Amendment to the original Scotland Act, which would give us control over this list of services: passenger and road transport; sea and air transport; police; fire services; water and sewage; functions of SEPA; coast protection; inshore fisheries; powers held by the Crown Estate; liquor licensing; Historic Scotland functions; tourism; land use; planning; further education; careers advice; sport and arts. He's particularly keen on the idea of local control of our fisheries, which he sees as the main plank in building a strong local economy. I would heartily endorse these aims. Let's go down them one by one. The first item, passenger and road transport – Zetrans was a good move, but none of the others has been achieved. You have to ask – was he using the right strategy?
The article goes on:
What's more, he wants a campaign for and a referendum on local autonomy for the isles, going so far as to raise our own taxes to pay for our own government. What happened to the referendum? And our own taxes? As for our own government......
"We need to persuade the Scottish Executive to allow us to proceed along these lines, but first the Shetland people have to show that they want to do this. If they are content to just be a local government area of Scotland, then that's it."
Fine words, but progress has been made on only one. Any idea of a referendum has come to nothing. 'Persuading' the Scottish Executive doesn't work. We don't need to persuade anyone - they have to persuade us. How could the Scottish Executive allow one 'county' such control over its own affairs? To fit in with the existing scenario, Shetland has to be kept under control, not allowed more freedom.
With more autonomy, Shetland could have its own offshore financial and banking sector, stamps and currency. There would be no need for income tax, council tax or VAT – or tax of any kind. We could register ships and do all the things that an offshore jurisdiction can do.
It is only our acquiescence in the status quo that enables it to continue. If we wish, we can just shut our eyes, take no notice and things will gradually get worse as we are dragged into the mire. If we start asking questions and pressing for answers, things can change. And they can change to whatever degree the people of Shetland wish. Before that can happen we have to be prepared to think the unthinkable –
- Is it possible that Shetland never became part of Scotland? I think I've shown conclusively that it never happened.
- Is the present fiction just one big illusion for the benefit of the UK?
- If that is so, do we wish to continue being a part of it?
- If we do, it should be with our eyes open, knowing the full facts.
- Just as Scotland is having a National Conversation to decide its future, we should be having a 'Shetland Conversation' to decide ours – before somebody decides it for us.
Which is exactly what Alex Salmond is doing. At the SNP party conference in October 2007 he said: ".....this morning the price of Brent crude is 86 dollars and heading for three figures. Revenues from Scotland's resources are flooding into the Chancellor's coffers........." What he really meant was revenues from Shetland's resources, and yet Shetland is not even being consulted.
As part of the Shetland Conversation, the active participation of the museum and archives in the presentation and promotion of Shetland's true history is vital. It is simply not acceptable for the museum to display information saying 'Shetland becomes part of Scotland' and 'Shetland was given to Scotland' when those statements are either plain wrong, or open to question. It is not acceptable for our archivist to propose 1472 as the date when Shetland became part of Scotland, when he has in his possession documents that prove otherwise. The museum and archives are the public custodians of Shetland's history. Rather than making it open to Shetlanders, their actions point towards their being a mere mouthpiece to promote an official line. Is this acceptable? I don't think so. Let's show some pride of place, as Visit Shetland (soon to be Visit Scotland) would have it.
Whereas most places celebrate their history, Shetland, with one of the most fascinating stories in the world, finds hers buried and suppressed because it is so embarrassing to those who benefit in such large amount from our not knowing. There are strong vested interests, both here, and outside, who would rather we didn't know our history. It's not even taught in our schools as it used to be – well we wouldn't want the kids putting two and two together, would we? They might start asking awkward questions.
It may be that the only way to resolve Shetland's position is through the courts. However, the Crown has shown itself to be unconcerned with questions of law that do not suit its purposes and Shetland could have little faith in the UK legal system. We need to realise that only our acquiescence enables the present situation to remain in place. If a majority of the people were to demand change, there's little the government could do to stop it.
Shetland was recently voted by National Geographic Magazine as the world's third most desirable island to visit. To many Shetlanders it's just home, but sometimes we don't realise what a special place it is. It has a special character and a very special and unique history that has been hidden and buried – a history that should be brought into the open, celebrated and used to our advantage.
I've covered a lot of ground in this talk, much of it in unfamiliar territory. There is a lot more supporting evidence, but I hope that with what I've shown you I have been able to present a reasonably clear picture and have opened your eyes a little, showing that Shetland's situation is not what it seems on the surface.
The real question is: 'What do we want to do about it?' If we want to see some change, we have to be prepared to take some action.
Two simple actions could be taken:
- The SIC could withhold rents until the Crown Estates can come up with a satisfactory title.
- The Amenity Trust could demand the return of the St. Ninians Isle Treasure – forget about being polite, it's our right – let Edinburgh have the copies.
I have written to Jan Riise, the SIC's legal advisor, asking for his legal opinion of this argument, but he is not prepared to comment. I have written to all the councillors asking them to give his opinion so they can make a decision about whether they should continue paying rent to the Crown Estates, or whether it is a fraudulent transaction in which they should have no involvement. Depending on their reaction I will progress things accordingly. One way or another, the SIC has to take some kind of action and that action will be strongly affected by public feeling. If they have the guts to stop paying, it starts an unstoppable train of events that will lead to the unravelling of this whole situation, to Shetland's benefit. The people of Shetland can apply pressure by making sure the question is answered – 'When did the Crown acquire ownership of Shetland?'. An answer to that question will open a chink in the Crown's armour – armour that only exists as long as we don't question it.
Ownership has never been transferred. Shetland is not part of Scotland, or the UK.
Shetland belongs to Shetland!
Since I wrote this material my attitude has hardened as I follow the inescapable logic. If I am right, the current administration is actually illegal and, in continuing to pay the Crown Estates rentals, in allowing the UK government to continue licensing oil companies to extract oil, in following EU directives that are prejudicial to Shetland and in other ways, is conspiring in illegal acts.
With regard to the oil, I'm not suggesting that Shetland should take the whole of the oil revenue – even if it is entitled to it. If that money came first to a Shetland Bank, remained there for a short while earning interest and was then passed on to the UK Treasury minus any UK and EU grants and subsidies, all parties would be better off because the money would not be passed back and forth. Shetland would of course stop paying taxes (income tax, VAT, corporation tax, etc., etc.) to the UK.