Greeting fellow bloggers here in Australia and from across the pond. I thought that in the spirit of National Reconciliation Week here in the land of Oz I’d take us on a little history tour back to the reason why saying Sorry doesn’t really quite cover it. To understand how the situation here in Australia came to such a head over a decade ago regarding land rights or Native Title, if you wish to use the legal terminology, you have to understand a couple of things about the RULES for taking over another land.
Yep you read that right, believe it or not there are actual rules going back to Ancient Rome as to the CORRECT way to increase your empire without having to fight off other possible claimants along with the pesky issues of those who live there in the first place.
It’s a legal way to keep other Empires from poaching on your own poaching and it allows for a more civilized approach to what is essentially invading new lands [after all it’s always best to be polite when invading other countries]. According to these laws [very simplified version] there are three legally recognized ways of laying claim to a new territory.
- Go to war with the inhabitants, defeat them and then absorb them into your own empire with the full protection of your laws.
- Sign a treaty whereby you agree to certain stipulations that give you the rule of the land in exchange for whatever you manged to trick them into agreeing with.
- If a land is empty and not in use nor held under a sovereign dominion you can declare it Terra Nullius an empty land and you can just move right on in without having to do any of the above.
There is also a stipulation that from the moment you reach the shores of any such territory you have a certain number of years to establish a formal base there. If that time runs out the land is then up for grabs again, which is why the first church service held on Australian soil was in French. It seems that the British were cutting things a little fine and arrived with a formal delegation less than 24 hours prior to the French who had set off hoping that they would reach Terra Australis and claim it for themselves.
In the intervening years between Captain Jame Cook’s claim of Australia in the name of the British Empire and the actual occupation by the First Fleet there was a great deal of discussion regarding how best to approach this latest acquisition. Sir Joseph Banks, a member of the Royal Botanical Society, who had sailed with Cook was asked his opinion regarding the best way to approach the current inhabitants.
His opinion was that war was useless as from the little he had observed showed that the tribes of people did not operate under a single or even shared authority and defeating one group did not mean that other territories were then subdued.
The same logic applied to that of treaties which is what they had been considering and in fact it was this approach that was used in New Zealand with the Maori people. [this treaty was actually upheld by the courts, but not without a bitter legal battle, and is known as the Treaty of Waitangi. ]
Part of the reason that Great Britain cut it so fine in solidifying their claim on Australia was the uncertainty of the legality of how they would take possession of the country. In a wonderful example of sophistry they decided that since the current inhabitants did not meet the criteria of ‘using’ the land in a way that was recognizable by their European counterparts AND, wait for it this is the nasty bit, that according to their current scientific understanding regarding evolution[polygenist theories of race], they, while definitely human, were not fully evolved [ie white being the pinnacle of evolution] and could thus be classified under the heading as belonging to the Flora and Fauna of the land. Now I don’t believe for a moment that the majority of those in power actually truly believed that but it did settle things nicely in a legal manner and so the occupation of Australia was begun.
There are numerous recorded instances of free settlers writing to the governor or to the crown asking what they were to do with the people currently living on the property that had been granted to them for development and farming. Also there are records of letters questioning the legitimacy of such grants as it appeared the current inhabitants had not been included or even considered in the equation. Certainly they would have been in the minority but the response to each was the same, a squad of soldiers were sent to these properties to help clear away the native ‘infestations’ so that the land could be put to use without interruption.
The most telling of these however is a letter to the Governor of Brisbane from a British anthropologist who had heard of an indigenous community who lived near the coastline in Queensland and appeared not to be nomadic and in fact had structures for schooling and rudimentary farming. The request was refused and the military sent in to slaughter every single inhabitant and to raise the settlement to the ground. Can you guess why – bet you can. Reasoning behind such an atrocity was simple, the very presence of such a community undermined to a massive degree the concept of Terra Nullius which was already on shaky ground and certainly did not need an anthropological study by a respected academic to prove it.
In 1901 Australia became its own country under its own constitution and this is where the real irony of Terra Nullius hits home. From that day onward the Federal government and the States has the ability to declare Native Title gone and thereby strip any future land claims on behalf of the indigenous population BUT they never did.
It seems odd doesn’t it, it wouldn’t require a change to the Constitution just a declaration of the removal of Native title by the government and yet not one of the states or the Federal government themselves tried to do this. It certainly would have meant that the Mabo vs Queensland Land Rights case would have never made it to court and it certainly would have meant the impossibility of deciding in favor of Eddie Mabo and creating the legal precedent commonly know as the Mabo Decision.
So why not, why risk it? Well here’s the real noggin noodler for you – to declare Native Title lost means that you recognize that Native Title existed in the first place and thereby undermine the entire international legality of the British Occupation of Australia over two centuries ago.
I find it rather symbolic that the purpose of the occupation of Australia was originally to provide the Crown with a place to send its criminals since it was a criminal enterprise in the first place that claimed Australia for the Empire.
It is somehow fitting although I am sure that the people’s of this land were less than amused when they were faced with the Tall Ships, men with guns, priests with disease ridden blankets and all the wonderful illnesses from Europe not seen before by the native inhabitants of this country.
Doesn’t seem like a fair trade does it, animals and plants the likes of which the world had never seen traded for vice and diseases never experienced prior to the occupation of their land. Now it is too late to undo what has been done, to change history and go back to a time before settlement but it is not too late to acknowledge that history, teach that history in our schools and universities and to recognize that regardless of the passage of time there are some things that cannot be swept aside or excused. They can only be addressed with the solemnity it deserves and the respect to the people whose destinies were changed with the advent of the British Empire.
This country has a terrible record in regards to human rights, whether we wish to believe it or not. Australia was about to be sanctioned alongside South Africa for practicing Apartheid until the referendum in 1967 changed that and we are in danger of being sanctioned by other world bodies now for our treatment of Asylum Seekers.
We are a country founded on a lie, used as a prison and then later a new home reached by boat filled with hundreds of desperate people fleeing England and Ireland. People who risked everything for a chance at a better, freer life. What right to we have to withhold an apology from the First Peoples of our land, to take their lands from them yet again and to deny them the right to a sovereignty that they never ceded. Furthermore what right do we have to withhold a helping hand to those who now flee to our shores in the hopes of a better life?