Image for Australia Day: The Black War could have been avoided if there had been a treaty ...

*Pic: Australia Day, Flickr, Phil Whitehouse ...

First published July 14

The celebration of Australia Day on January 26th continues to spark controversy. This is unsurprising. Commemoration of the arrival of the first fleet was contentious in both 1938 and 1988 when ceremonies were held to mark both the 150th and the 200th birthday of Sydney.

Clearly the foundation of British settlement was an event of great historical importance. The safe arrival of the whole fleet at Botany Bay between the 18th and the 20th of January with only minimal loss of life was a great achievement of British logistics, seamanship and navigation. But the choice of the 26th of January as the day of national celebration raises both troubling and legitimate questions. To begin with the 26th itself was an odd choice.

Two other days in those founding moments would have been more appropriate. Watkin Tench, the most vivid of the chroniclers of Sydney’s infant months, noted that along with the other officers he thought the 20th was the great and important day marking the foundation of an empire. But an even more portentous occasion took place on February 7th when, with all the ships unloaded and everyone ashore, the formal ceremonies were held, the proclamations read and the British, in Tench’s words took ‘ possession of the colony in form’.

So the really contentious matters relate to what exactly was done on the 7th of February. We still live with the consequences although current debates show there is little understanding of the manner in which the British took possession of Eastern Australia and how their actions related to both international and common law as they were understood in the late C18th. These questions require closer and more detailed consideration.

The claim of sovereignty over half of the continent was unsurprising. Cook’s voyage of ‘discovery’ followed up by the settlement eighteen years later provided a solid foundation in European international law although the vast size of the area claimed was manifestly excessive and would have been open to challenge. But what is not understood is that such a claim related to external sovereignty and was projected outwards to competing European powers and not inward to the indigenous people.

In their case both law and practice, well established in North America, set out a number of principles. The Indians were recognized as holding a form of sovereignty which could be usurped in only two ways
— either by conquest or by treaty of which there were already many examples by 1788.

It is important to remember that in Tasmania Governor Arthur came to believe that the tragedy of the Black War could have been avoided if treaties had been negotiated at the beginning of settlement. It was advice he urged upon the Colonial Office and was one of the influences which led to the signing of the Treaty of Waitangi in New Zealand in 1840. 

Sovereignty was one thing. Property was quite another although the two are often conflated. And here too late C18th law was well established. Indigenous people were recognized as the owners and occupiers of their traditional land even though their tenure was of a kind unknown in European jurisprudence. It was known as Indian or native title. It was recognized by the High Court in the Mabo judgement in 1992.

So we are left with the inescapable conclusion that the British claims formulated on February 7th 1788 were contrary to both contemporary law and custom.

There is no clear explanation of why the Imperial government veered so sharply away from its own practice in North America. Two theories have been suggested. One is that when the settlement of Australia was in the planning stage the best advice was that the continent was largely uninhabited. This was the theory promoted by Sir Joseph Banks, great aristocrat, President of the Royal Society and ship-mate of Cook’s on the Endeavour. The other possibility is that the Aborigines were thought to be so primitive that they neither exercised sovereignty nor owned the land, that Australia was indeed a terra-nullius.

British policy in relation to indigenous land was infamous.  The whole of Eastern Australia became the property of the Crown. It was a land grab of heroic proportions; piracy on a continental scale not only contrary to the spirit of international law but also to fundamental principles of the common law.

If there was one central principle infusing British law it was the protection of property. The whole convict system was premised on that principal. But the law also provided powerful protection for the property of the subjects against the inroads of the Crown.

We have then the extraordinary situation that in February 1788 the Aborigines became British subjects but at the same time and by the same instruments were stripped of their rights to their traditional lands.

Much of the violence of the Australian frontiers can be traced directly back to those principles introduced in 1788.

It should, then, come as no surprise that growing numbers of people are seeking to find another occasion on which to celebrate Australia Day.
                     
*Henry Reynolds has published 20 books and over 60 chapters in books and articles in journals (books listed in Google/H.R books and Wikipedia here).  Among his best known books are: The Other Side of the Frontier, The Law of the Land, This Whispering in Our Hearts, Fate of a Free People, Why Weren’t We Told, North of Capricorn, Forgotten War and Drawing the Global Colour Line co-authored with Marilyn Lake. He has written a large number of articles in newspapers and magazines and has been interviewed on radio and television more than 100 times. More details in Wikipedia ...

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