A continent of nations dispossessed
Control, International Law, and Treaties never made
This post continues our series, summarising Henry Reynold’s book Truth-telling: History, Sovereignty and the Uluru Statement. Part one over here.
Chapter 4: Effective Control
In chapter four of his book, Reynolds looks directly at the question of ‘effective control’. That is because part of claims to sovereignty, in colonial contexts, hinged on the land which the colonists actually controlled. And this plays in to how Britain, and the colonial government(s) that succeeded them, dealt with Aboriginal resistance.
In theory, British theory anyway, having proclaimed sovereignty over the eastern half of Australia at the start, and claiming that all land belonged to the Crown, meant there was no need for a treaty. The indigenous inhabitants had nothing to trade for a treaty. And there was no ‘war’, because Britain owned all the land. By the 1850s, as Britain made ready to transfer control to the colonial parliaments, the basis of this (terra nullius), was widely known to be false.
This helps explain the changes in treatment of Aboriginal combatants. In 1825 they were considered as foreign enemies. In 1837 they went back to being supposed to be subjects to the Crown, hence there couldn’t be a ‘war’ against them, and they ought to be afforded the protection of the Law. Despite a few exceptions, violence against Aboriginal persons was rarely investigated, even more rarely prosecuted, and most rarely brought to punishment. It was widespread practice, and often policy, and certainly the prevalent attitude, that killing Aboriginal people was no in way morally equivalent to the killing of whites.
However, Aboriginal resistance continued in widespread forms throughout the 19th century. When Queensland separated from NSW in 1859 they barely had ‘control’ of the south-east. A land-rush ensured though. When the federal government formed in 1901 they were quite concerned about the empty north. Alfred Deakin put white occupation at one-quarter of it. Why does this matter? International law held that rule required possession. Here is the Berlin International Conference of 1885 talking about effective control:
The existence there of sufficient authority to protect life and property; and, so far as an absolute title is concerned, the broad rule is that the possessions of a Power extends as far as, and no further than, its administrative machinery is in efficient exercise.
The government neither had the capacity, nor the will, to protect Aboriginal communities. Effective control did not exist. The conquest, if it were such, was incomplete. And so Aboriginal claims to sovereignty persisted.
Chapter 5: The Law of Nations
Do the claims of First Nations to have a sovereignty never ceded or extinguished, hold weight? Reynolds takes us through a consideration of the history of international law on this subject. He begins with a 1926 study by MF Lindley, The Acquisition and Government of Backward Territory in International law, which identifies three positions of commentators, over whether “backward races” can maintain a claim to sovereignty in the face of “more highly civilized peoples”. For three and a half centuries, the majority held that “lands in the possession of any backward peoples who are politically organized ought not be regarded as if they belonged to no one” (p.78)
Australian jurisprudence has not followed suit.
Reynolds looks at the concept of sovereignty, and what sort of political organisation was generally considered necessary, from 18th and 19th century legal scholars. A state had to have political independence from other nations, and the will (and ability) to exclude others from its territory. This certainly was the case for Aboriginal peoples.
Were they too small? Jurists gave no particular size, provided a group formed a body politic. Did they show ‘habitual obedience’ to recognised authorities, beyond the personal dynamics of a family-network? Yes - by the 1840s anthropological studies were being published that made clear that customary Aboriginal laws were strong, durable, complex, and strict.
Did they have specific territory? Again, yes, from earliest settlement it became apparent that different nations had distinct portions of country, and did not impinge upon others.
All these things were known, but were ignored. The legal history in Australia is pointed in its failures. In 1889 the Privy Council, in hearing a property dispute in relation to Australia, declared the Colony of NSW to have been “peacefully annexed”, as it was “practically unoccupied, without settled inhabitants or settled law”. In 1836 in the case of R v Murrell in the NSW Supreme Court, Justice William Burton dismissed part of Murrell’s defence, on the grounds that Aborigines had no sovereignty, nor land law, nor tenure, and that Britain acquired an original sovereignty here.
This has remained the case in Australian law. But is it sound? International Law seems to be moving in an opposite direction. Reynolds points to a 1974 ruling of the International Court of Justice in relation to ‘Western Sahara’, territory that Spain claimed a right to based on annexation in 1884. “"The fifteen judges gave a unanimous judgment: territories inhabited by people having a social and political organisation were not regarded as terra nullius. Spain either had a title by cession or no title at all.” (Reynolds, p87-88).
Aboriginal litigants have attempted to contest sovereignty in Australian courts, from 1976 onwards. Almost always with the same results - the courts rule that it is not justiciable. Of course not! How could an Australian court rule that sovereignty was invalid, since it would invalidate the very court that ruled it.
Chapter 6: Treaty
The Uluru Statement from the Heart calls for three things: the Voice to Parliament, a Treaty, and Truth-Telling. In this chapter Reynolds survives something of the history of treaties in relation to Australia. Treaties were (almost) never attempted in Australia, despite the fact that treaty-making was widespread practice in the colonial age, and in other lands Britain engaged in treaty making, notable British North America, and New Zealand.
Treaties could have been made, that is part of the tragedy. Difficult historical figure that he is, what George Augustus Robinson did in Tasmania was treaty-making - he had delegated authority, made a negotiated settlement with Tasmanian Aboriginal people, and they certainly understood it to be a treaty. The betrayal of those Aboriginal people is part and parcel of the tragedy of Australia’s history.
Not rising to the level of treaties, but right across the frontier negotiated settlements took place between colonists and Aboriginal nations. It wasn’t truly in colonists’ interests to have perpetual war.
"Treaties could have been made with the First Nations, whose leaders would have fully understood what was at stake and would have been willing to negotiate settlements." (p.99)
The refusal to engage in treaty making led to widespread and needless death, and condemned Aboriginal peoples to continue to be treated with “profound ignorance and cultural contempt”, something that continues to this day.
