The myth of sovereignty
Australia: land of founding fictions
Welcome to my new Friday series of posts/newsletters!
In this post and subsequent posts I’m going to walk you through two books. The first is by historian Henry Reynolds, who has for most of his career done ground-breaking work in Australian Aboriginal history and colonialism. It’s Truth-telling: History, Sovereignty and the Uluru Statement, which is a work primarily designed to bring his own work to bear on the contemporary political questions our nation (Australia, that is) face concerning the Uluru Statement. In particular, Reynolds addresses the Uluru Statement’s contentious claim that Indigenous Sovereignty was never extinguished; and he aims to engage in truth-telling about colonial history. The second book I’ll be tackling here is One Blood, an almost 1400 page book that details 200 years of ‘encounter’ between Christianity and Aboriginal peoples in Australia. I’ll be breaking the book down and working through it in roughly 100-page chunks.
Reynolds and the sovereignty of Australia
When, exactly, did Australia come under the sovereignty of the British Crown? And how did this supposedly take place? Arguably, and I think Reynolds provides enough evidence, this is a historical and legal fiction, that is no more true for the fact that it’s a long-standing lie.
The conventional view is that in August 1770, when Captain Cook’s Endeavour lands at Possession Island, and he claimed possession of the whole eastern coast, this was the decisive moment.
This view has several problems. Firstly, the understanding of ‘discovery’ operative in the 18th century is that discovery did not provide a claim to ownership except where there was no prior ownership (e.g. Hugo Grotius). Secondly, it had to be accompanied by actual possession - but Cook did not take possession of anything. Thirdly, discovery was held to be a claim in relation to European rivals, not Indigenous peoples, as seen in the ruling by US Chief Justice John Marshall’s ruling in Worcester v Georgia 1832. Finally, Cook did nothing to fulfil his own secret instructions:
You are also with the consent of the Natives to take Possession of Convenient Situations in the name of the King of Great Britain; or, if you find the Country uninhabited take Possession for His Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors.
He didn’t seek consent, take possession of any convenient situations; and if he simply disregarded the inhabitants he had encountered, this would have been a contradiction of both his duties, contemporary morality, and international law.
Was it, then, the arrival of the First Fleet?
First Governor Arthur Phillip has two royal commissions, neither of which make any mention about getting the consent of the natives, which in similar situations of the time both immediately prior and after was typical. Why not? Reynolds points to the writings, private and public, of Joseph Banks and James Matra, companions of Cook, who argued that Australia was scarcely populated, the interior was probably deserted, and the natives would just ‘cede’ the land. The view was that there wasn’t really anybody who could grant concessions to the colonists.
The claim to sovereignty over half the continent was truly astounding then. Territorial claims to colonies generally related only to occupied toerritory, but in the case of the colony of NSW it claimed huge swathes of land it had never seen. And yet, the reality of early colonial history was that they met a considerable number of Aboriginal people and the fiction of terra nullius could not be maintained. It was maintained in law repeatedly - Reynolds provides citations through to the British Privy Council in Cooper v Stuart 1889, which affirmed that in 1778 "Australia had consisted of a ‘tract of territory practically unoccupied without settled inhabitants’." It was not until Coe v Commonwealth (1975) that an Australian court was so bold as to call it “a convenient falsehood to justify the taking of aborigines’ land”.
Grounds for Sovereignty
The key claims that theoretically undergird the claim to sovereignty were that:
the interior was uninhabited
that coastal Aboriginal people:
had no permanent ties to territory
would abandon land to Europeans
were too primitive to have political organisation
All these proved false. From John Hunter’s writings in 1790 onwards, it is clear that the colonists realised that Aboriginal people generally had fixed residences, that they applied law to those in their territory, that the interior was inhabitated and didn’t rely upon the coast for food, and that the Aboriginal people had no intention to simply abandon their land to Europeans.
Indeed, both William Darling, and George Augustus Robinson, who spent time with Aboriginal peoples, attest that they understood their violence against the European settles to be “political violence” in defence of territory and nation.
The view, then, that Aboriginal persons were subjects of the Crown was always similarly troubled. From the earliest days, under Phillip, violence against Aboriginal peoples was not simply deployed judicially, but s Phillip said to “infuse an universal terror”; this continued under Philip Gidley King, and Lachlan Macquarie. Strategic violence to induce terror is state-sponsored terrorism.
Things did change from 1820, but perhaps not how you expect. Officials, both in Britain and in the colonies, begin to refer to the conflicts as “war”, and the hostiles as “subjects of any accredited State” (Lord Bathurst). In effect, this was recognition of Aboriginal peoples as enemy states, nations outside British sovereignty, and to be treated as such.
We stole both sovereignty and land
The idea that upon claiming possession of (the territories of) NSW and South Australia, the whole land became the property of the Crown is
Another legal fiction
“Theft on a truly heroic scale” (Reynolds, p.46)
A violation of 18th century legal principles and practice.
Reynolds cites a range of legal historians and jurists from the 1970s who all uphold the idea of terra nullius as the basis for acquisition of territory. The general belief, persistent in the popular conscious, is that (i) this could happen because the Aboriginal peoples as the time were scattered and lacked requisite political organisation, and (ii) that it’s a lamentable thing but that’s just how things were done back then. This is a double misconception.
Firstly, international law at the time held that taking control of a land, i.e. a transfer of sovereignty, did not transfer property rights. Thus Emmerich de Vattel, a widely known international lawyer, in 1758: “The conqueror takes possession of the property of the State and leaves that of individuals untouched”. Similarly Chief Justice John Marshall in 1833.
Nor did Aboriginal people ‘fail’ to possess their lands. British common law did not require an owner to do any particular work on land to maintain possession on it. You didn’t need to plant crops. And international law held that, in the absence of prior claims to ownership, you just needed to possess it, and have a will to maintain ownership. Which the Aboriginal people certainly did by fighting for their land.
Despite this, and despite the growing calls in Britain from the 1830s onwards and the directed of the Colonial Office to respect Aboriginal property rights, little changed out here in the colonies - settler expansion continued, accompanied by frontier violence, and Aboriginal peoples were dispossessed and killed in horrific numbers. And yet even by 1856, when the colonies became self-governing, “at least half the continent was still in the possession of the First Nations.” (Reynolds, p.61).
