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The Dispossession of Aboriginal People

10.3.1 The history of Aboriginal dispossession is central to understanding contemporary Aboriginal and non-Aboriginal relations. Colonial takeover was premised on the assumption that European culture was superior to all others, and that Europeans could define the world in their terms. A colony could be established by persuading the indigenous inhabitants to submit themselves to its overlordship; by purchasing from those inhabitants the right to settle part or parts of it; by unilateral possession, on the basis of first discovery and effective occupation.4

10.3.2 Possession of Australia was declared on the basis of unilateral possession. The land was defined as terra nullius, or wasteland, because Cook and Banks considered there were few 'natives' along the coast. They apparently deduced that there would be fewer or none inland. Their observations were soon proven incorrect. The governors of the first settlements soon found that Aboriginal people lived inland, and had special territories and associations with land on a spiritual and inheritance basis. Nonetheless, they did not amend the terms of British sovereignty.

10.3.3 In the first hundred years there was no consensus about the basis of British sovereignty. In 1971 Justice Blackburn ruled that all rights to the land were extinguished after 1788, and that because native title had not been legislated by the British it was therefore not part of Australian law. The correctness of this ruling in the Gore Case (Milirrpum v. Nabalco) may be tested this year (1991) in the High Court of Australia. Governor King commented in 1807 that he considered Aboriginal people the 'real Proprietors of the Soil', and lively debate over the issue continued from the 1820s to the 1850s.5 The justice of the British takeover was far from clear cut, and what happened in the Australian colonies was in many ways out of step with international trends. Henry Reynolds has vigorously challenged the legal and moral assumptions of European occupation in Frontier (1987) and The Law of the Land (1987).

10.3.4 In the debate about British sovereignty commentators, lawyers and others have relied on the writings of Sir William Blackstone: Commentaries on the Laws of England. There is no doubting the importance of Blackstone's work which played a unique role in the development of what was then the fledgling American legal system. The lectures which constitute the commentaries were delivered from 1765 to 1769 and, accordingly, have no direct relationship to the situation in Australia. Phrases and individual sentences are often quoted from Blackstone, and as a matter of interest and information, I quote the whole of the relevant paragraph:
Besides these adjacent islands [Blackstone had just dealt with the islands of Jersey, Guernsey, etc] our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between the two species of colonies with the respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there enforced. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries that have already laws of their own, the King may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.6
It will be noted that, on the face of it, the passage equates 'desert and uncultivated' with 'uninhabited'.

10.3.5 Captain Cook and Sir Joseph Banks had reported those parts of the coastal strip which they had observed to be 'thinly' populated. The decision to establish the penal colony there was taken on that basis. Instructions to the first governor, part of which I later quote, make it quite clear that it was understood that there was a presently existing population in the area proposed for the penal settlement.

10.3.6 Governor Arthur's experience in Van Dieman's Land (later Tasmania) convinced him of the value of a treaty, as he explained in a letter to the Select Committee on Aborigines which reported to the British House of Commons:
On the first occupation of the colony it was a great oversight that a treaty was not, at that time, made with the natives, and such compensation given to the chiefs as would have deemed a fair equivalent for what they surrendered.

10.3.7 Had this happened, he considered 'that feeling of injustice which I am persuaded they have always entertained, would have no existence'. His advice may have contributed to the signing of the Treaty of Waitangi in New Zealand.7

10.3.8 In the early years of Port Jackson, when Aboriginal people still possessed a land base and their resistance was impeding colonial enterprises, the British attempted to negotiate trade-offs. Although Governors Phillip and later Macquarie attracted large meetings of Aboriginal people who were willing to talk, satisfactory resolutions were not reached; the British were primarily trying to impress them militarily and materially to make them see things their way. At annual meetings, Governor Macquarie imposed a hierarchical and patriarchal seating order, and through conferring rituals he attempted to elevate powerful men as 'chiefs' or 'kings'. British officials did not properly enquire into what suited Aboriginal people, nor what they most valued, and became disillusioned when the Aboriginal people refused to meet their expectations.

10.3.9 The first official instructions regarding 'natives' in the south land were given to Captain James Cook by the Naval commissioners. They told Cook to observe the native's 'disposition' and attempt to cultivate friendship by presenting them with gifts;
You are also with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain...8
or, if the land was uninhabited, to take possession of it by right of discovery. The President of the Royal Society, co-sponsor of Cook's journey, warned that
shedding the blood of these people is a crime of the highest nature. They are the natural, and in the strictest sense of the word, the legal possessors of the several Regions they inhabit. No European nation has a right to occupy any part of their country, or settle among them without their voluntary consent. Conquest over such people can give no just title: because they can never be Aggressors. 9

10.3.10 Some historians have argued that according to contemporary thinking, Cook was justified in describing Australia as unoccupied or terra nullius because the British thought Aboriginal people did not work the land, and therefore lacked property rights. 10 Cook and Banks also thought that Aboriginal people only lived on the coast, but in not venturing inland they were hardly the ones to judge. In their journals, both commented favourably on the indigenous people's life style, in the 'noble savage' tradition, but they also commented frequently on their colour and made derogatory comments about their houses and canoes. They wrote that the country was in 'the pure state of Nature, the Industry of Man has had nothing to do with any part of it', and they likened Aboriginal food gathering to the wandering of 'wild Beasts in search of food' .11

10.3.11 Cook refused to negotiate with Aboriginal people at all. He claimed Australia on the basis of 'first discovery and possession' by such symbolic acts as hoisting a flag in several places along the east coast and, finally, at the place he called Possession Island in Torres Strait.12 The validity of his actions remains debatable, as dramatised by Burnum Burnum in 1988 when he hoisted the Aboriginal flag at Dover and 'took possession' of Great Britain.

10.3.12 The next policy was given in Instructions to the first Governor of New South Wales, Captain Arthur Phillip, in 1787.
You are to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them.13

10.3.13 The Colonial Office thus recognised an Aboriginal presence. It also recognised that convicts could potentially cause bitter conflict, making settlement untenable. Phillip's Instructions follow:
And if any of our subjects shall wantonly destroy them [Aboriginal people], or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence. You will endeavour to procure an account of the numbers inhabiting the neighbourhood of the intended settlement, and to report your opinion to our secretaries of State in what manner our intercourse with the people may be turned to the advantage of the colony.14

10.3.14 This rhetoric appealed to some influential humanitarians such as the Anti-Slavery Society. But it was British authority and law which was to be imposed; no exchanges or mergence of Aboriginal and European laws were envisaged. Phillip followed the instruction to 'use every possible means' to develop relations with Aboriginal people. After initial friendliness on their own territories, Aboriginal people kept a wary distance from the settlement. Phillip consequently resorted to kidnap and prolonged detention. The first captive, Aranaboo, became resigned to his position, and his gentleness and kindness to children was noted, though after a few months in custody he died of smallpox. The next captives were Colebee and Bennelong. Colebee, a powerful man of his group, soon escaped, while Bennelong was held in the governor's custody with chains and handcuffs, with a convict as prison guard.

10.3.15 Instructions regarding 'unnecessary interruption' of Aboriginal occupations were interpreted conditionally, for anything 'advancing' the colony could be classed as necessary. While Aboriginal people were to be made useful for the colony, no consideration was paid to what they had to sacrifice. The attraction of British culture was thought to be universal, while the 'unchivalrous' aspects of Aboriginal gender relations and other customs were exaggerated. While early British rhetoric may have evoked concern for Aboriginal people, the defacto policy was to expropriate their land to establish a viable British settlement. That was the very purpose for being there. Native welfare--women's or men's--was hardly a priority. Additionally, New South Wales was to be a penal settlement: a place of unwilling exile for many, it was a place of punishment.

10.3.16 From first British occupation, the status of Aboriginal people within the colony and empire was ambiguous; were they to be classed as subjects of the Crown? In Phillip's instructions they had been distinguished from 'our subjects'. Although Britain had taken over the land on the basis of 'first discovery and settlement', violent Aboriginal resistance ensued, and settlers assumed a conquest mentality. Phillip's gamekeeper had a reputation as a murderer of Aboriginal people, yet his own murder by Aboriginal people signified a change of direction for the governor. Phillip ordered a party of fifty soldiers to capture twelve natives, put ten to death, and cut off and bring back their heads. 15 The party was unsuccessful. While such group punishment was not in keeping with principles of English law, differential treatment towards Aboriginal people was common.16

10.3.17 In 1797, Governor Hunter declared Aboriginal people a danger and sent out armed parties to 'pacify' them. By 1816 Macquarie had made a martial law-style proclamation. He banned Aboriginal meetings, the carrying of weapons (including those used for hunting), abolished their own system of punishments and reconciliation, and entitled settlers and the military troops to use 'Force of Arms' on armed Aboriginal people or unarmed groups of six or more. Aboriginal people who wanted the protection of the British Government had to guarantee 'peaceful, inoffensive and honest conduct' and obtain a certificate signed by the governor. Unless they carded this certificate they would not be protected from molestation. In exchange, Macquarie promised blocks of fanning land in areas chosen by Aboriginal people, and to provide rations and all the supplies they needed. But the compact was conditional on Aboriginal people relinquishing their 'habits of life', and agreeing to become 'industrious and useful members of a community where they will find protection and Encouragement'. For those who did not want to farm, they could gain land by agreeing to employment by non-Aboriginal people. Another condition introduced by Macquarie was that Aboriginal people had to agree to place their children in a home at Parramatta to be indoctrinated in British culture. 17 The various Aboriginal groups were to meet together and discuss Macquarie's plans for 'a civilising institution', 'as well as for Consulting with them on the best Means of improving their present Condition'. Aboriginal people must have been baffled by the terms upon which they were supposed to regain rights to land they had not agreed to relinquish, and which they probably still viewed as their own.

10.3.18 Violent frontier conflicts continued, and, in 1825, the British Colonial Secretary, Earl Bathurst, advised that aggressions by Aboriginal people should be handled 'in the same manner, as if they proceeded from subjects of any accredited State'. Indeed, Aboriginal people who resisted settlement were frequently killed like 'enemy aliens'.18 After 1836, however, the British Colonial Office instructed that Aboriginal people were subjects of the Queen, within her Allegiance. Only British law was to apply in the colony. Thus, while they were theoretically under the Queen's protection they were not entitled to carry out their own system of laws.19 The British Parliament's Report of the Select Committee on Aborigines recommended a Protector be appointed in each colony who would learn their language, distribute gifts (other than liquor), introduce a simple set of laws, collect statistical information regarding population, act as a magistrate and provide legal representation. The use of native police was not recommended because of the decimation which they allegedly caused in Van Dieman's Land.20

10.3.19 Despite such policies emanating from distant centres of Empire, frontier conflict spread with land settlement. The actual policy on the ground was laissez-faire. Frontier Aboriginal policy, as carried out by settlers and police, was primarily 'pacification' by the use of weapons: a quiet, half-hidden and sporadic war. No colonial government could openly endorse murder; it was illegal. But they could turn a blind eye to what became permissible frontier activities. Native and general police parties were granted the authority to 'quieten' Aboriginal people who resisted non-Aboriginal role.

10.3.20 The ramifications of earlier misinterpretations of Aboriginal population, land fights, use and style of occupation continue today in widely held assumptions and in Australian law. Past Aboriginal negotiations have been largely omitted from our history, with Aboriginal people portrayed as powerless. We still make little effort to understand how Aboriginal people negotiate, let alone attempt to confer with them on their terms. Even where diplomacy occurred, it is dismissed in derogatory fashion. Some pastoralists say Aboriginal people 'gave away' their land in return for flour and sugar, or they 'gave away' their children, although camping on their own land was sometimes conditional on Aboriginal people agreeing to loan their children for labour. Successful adaptations by Aboriginal people to European life styles have been interpreted as confirming the attractions of civilisation, rather than as concerted efforts by Aboriginal people to ensure diplomatic relations.

10.3.21 The Batman-Kulin treaty of 1835 is significant as it was perhaps the only formal treaty negotiated with a group of Australian Aboriginal people. The Kulin were active agents who negotiated and permitted temporary access to their land in exchange for reciprocal rights to European resources. Batman's treaty was declared invalid by Governor Bourke, but this did not demonstrate that Aboriginal people had no rights to land or compensation. The treaty was void because it was carried out by a private citizen rather than the Crown. Nonetheless, as a result of this treaty, relations at Port Phillip were characterised by relative tolerance and goodwill.

10.3.22 George Augustus Robinson was employed to conduct a conciliatory process with Tasmanian Aboriginal people. It seems he negotiated an unwritten treaty in the 1830s which resulted in their move to Flinders Island. Aboriginal people demanded special conditions including the right to pursue their own culture and regular trips back to their traditional land--though these promises were broken. Throughout Australia Aboriginal people attempted to negotiate with various people who first occupied their land, and although mutual compromises were sometimes reached, they had no legal standing.

10.3.23 The Colony of South Australia was established in 1836 at the peak of the humanitarian movement in Britain. By this time it was clearly understood that Banks' opinion that the hinterland of the eastern coastal strip would be uninhabited or virtually so was quite wrong. Furthermore, Stun's voyage down the river, which he named the Murray, into what was to become South Australia had shown that the area was much populated.

10.3.24 The idea of the settlement was privately promoted but the parties secured the passage (August 1834) of an act 'to empower His Majesty to erect South Australia into a British Province..-. '. The preamble defined the area to be colonised and described it as 'waste and unoccupied Lands which are supposed to be fit for the Purposes of Colonisation'. Provision was made for the making of laws and the setting up of a commission to carry the Act into execution. Commissioners were empowered 'to declare all the Lands of the Province... (excepting only Portions which may be reserved for Roads and Footpaths) to be Public Lands open to purchase by British subjects' (the proceeds of sale were to be paid into an emigration fund).

10.3.25 The proposal and the Act were attacked by the humanists and their efforts bore fruit with government. By Letters Patent (19 February 1836), William IV, with the advice of the Privy Council, established the colony and fixed its boundaries, but 'Provided Always that nothing in these our Letters Patent contained shall effect or be construed to affect the rights of any Aboriginal Natives of the said province to the actual occupation or enjoyment in their own Persons or in the persons of their Descendants of any Lands therein actually occupied or enjoyed by such natives '.

10.3.26 By order in Council of 23 February 1836, the Governor and certain named officers were empowered to make laws for the colony (subject to approval in London) but the order cited the terms of the proviso in the Letters Patent just quoted.

10.3.27 It is interesting to note that there is not here a breath of 'terra nullius'. The first colonists having arrived, on 28 December 1836 the Governor announced to his fellow new arrivals the establishment of Government. It was a simple statement, more than half of which reads as follows:
It is also, at this time especially, my duty to aprise the Colonists of my resolution to take every lawful means for extending the same protection to the Native Population as to the rest of His Majesty' s subjects, and of my firm determination to punish with exemplary severity, all acts of violence or injustice which may in any manner be practised or attempted against the natives, who are to be considered as much under the Safeguard of the law as the Colonists themselves and equally entitled to the privileges of British Subjects. I trust, therefore, with confidence to the exercise of moderation and forebearance by all Classes in their intercourse with the Native Inhabitants, and that they will omit no opportunity of assisting me to fulfil His Majesty' s most gracious and benevolent intention towards them, by promoting their advancement in civilisation and ultimately, under the blessing of divine providence, their conversion to the christian faith.

10.3.28 There was considerable activity in the direction of converting the people to Christian religion but not to the protection of their fights to occupation or enjoyment of lands 'now occupied or enjoyed by them'.

10.3.29 The administration, as determined by the Act and the Letters Patent, contained a fatal division. The Governor had certain executive functions and the Council made the laws; but the Colonisation Commissioners sold the land without any reference to the position of Aboriginal occupiers or to the terms of the Letters Patent. The people of the Adelaide Plains and surrounding areas and those of the Murray River were decimated by dispossession, disease, violence and lack of food due to the stocking of the land to the detriment of native wildlife and interference with fishing. The first mission was established at Poonindie, near Port Lincoln, in 1850. More missions and reserves were set up from then on.

10.3.30 The dispossession proceeded more slowly in the more distant parts of the colony, although the spreading out was quite rapid. The European population was small and the records are full of the recognition of the work that was done by Aboriginal workers, not only on the pastoral runs but farming, transport and in many other ways. The pastoral leases that were granted reserved certain rights to Aboriginal people for living and hunting. The pastoralists drove them away from areas that were the most special to the needs of the pastoral industry and particularly from the better watering places. In South Australia, as in other places, Aboriginal people were able to find a place as workers on the pastoral runs and in this way were frequently able to retain contact with their traditional lands and to engage in ceremonial life but difficulties were constantly put in the way of doing so.

10.3.32 The conflict between Aboriginal people and non-Aboriginal people in Australia is not premised only on 'race' but on a colonial past. Racial ideas went hand in hand with British imperialism, and hence its anthropologists, who turned such ideas into a sustaining 'science' which was later applied in both Africa and Australia, have been branded the 'handmaidens' of colonialism. Theories like social Darwinism, popularised in the 1870s, predicted that the extinction of' inferior races' in the wake of 'colonial progress' was inevitable. The disease and ill-health which Australian Aboriginal people faced in the late nineteenth and early twentieth century only reinforced this notion of their inevitable disappearance. Despite the efforts of missionaries like J. B. Gribble in Western Australia and humanitarians in other colonies, the general public was relatively complacent about Aboriginal suffering, and subsequent government policies took on a short-term palliative nature.

Source
Royal Commission in Aboriginal Deaths in Custody
National Report
Volune 2
Chapter 10
Australian government Publishing Service Canberra 1991
Full report available on the web.