Part Two of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
The end of transportation
That had been the law for a long time. But transportation to North America became impossible after 1776 and the Declaration of Independence. Finding another suitable place, away from England, became urgent for other reasons. The ‘agricultural revolution’ during the eighteenth century was becoming responsible for the transformation of the face of England, more and more enclosure acts being passed by parliament for the benefit of the landed gentry and their wealthy ‘clients’. That and the development of scientific production methods displaced large part of the land workers and small tenant farmers. They and their families were forced to move to the parallel growing of industrial towns which were growing under the impulse of the industrial revolution. Employment was not easy to obtain; many who could not find suitable work had to turn to theft as an alternative to starvation. The British governing classes, “the men who plundered their country in habitual political robbery” – as G. A. Wood would write – possessing large wealth but little education were quick to suggest hanging as a way to deter such behaviour by ‘the lower orders’. (G.A. Wood, ‘Convicts’, Royal Australian Historical Society Journal, 8, 4 (1922).
As a result, long before the First Fleet reached New South Wales the number of capital crimes in the English statute books rose from about fifty to two hundred. Such excess can be measured by the infliction of capital punishment for the frequent cases of picking pockets of good worth more than five shillings, and cutting down trees in an avenue or public garden. (Patrick Colquhoun, A treatise on the police of the metropolis, London 1800 at 437-40) .
The miserable class of the undesirable rapidly extended and required a solution: transportation to New South Wales. By 1868, when the last ‘exile’ was landed in Western Australia, about 162,000 such ‘miserables’ had been transported; some 25,000 of them were women. (A.G.L. Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and other Parts of the British Empire, University Press, Melbourne 1966 at 148).
To recapitulate, the eighteenth century European maritime powers had agreed on certain rules of behaviour, not out of great principles but out of reciprocal interest. According to such early international law any such power could take possession of another land in one of the following ways:
1) If the place was uninhabited, a ‘discovering’ power could claim and settle it. In this case, it could lawfully and recognisably claim ownership of the land.
2) If the place was already inhabited, the power could seek for permission from the Indigenous People to use some of their land. In this case, the arriving power could purchase land for its own use but it could not steal the land of the Indigenous People.
3) If the place was inhabited, the power could take it over by invasion and conquest; in other words, defeat that country in war. However, even after winning a war, the victorious power would be bound to respect the rights of Indigenous People.
This presented a problem for the arriving Englanders. Nevertheless, they decide ‘to muddle through’ and found a ‘solution’. The Englanders just invented a fourth possibility: they would not be invading a land which already belonged to the Indigenous People who had lived from time immemorial in a place recently called ‘New Holland’ – the ancient Sahul; they simply proceeded to declare the place uninhabited.
The industrious Englanders invented the myth for which they would use Latin: terra nullius, a legal concept first developed to rationalise colonial expansion. It soon took on an ideological life of its own, which substantially outlived colonialism. The dons at Oxbridge would eloquently expand on the subject. Future ambitious colonials would accept that self-serving myth and impose it on the Indigenous People for some 222 years until Mabo and others v Queensland (No 2) (1992) was handed down by the High Court of Australia on 3 June 1992.
Profound ignorance, cultural arrogance and ferocious greed combined in denying human qualities to the Indigenous People: they were just part of fauna, wild animals and not much more – a view which carried the support of a privileged, well connected, scientist on board the Endeavour: Sir Joseph Banks, 1st Baronet, G.C.B., P.R.S. (1743- 1820) was a naturalist, botanist and ‘patron’ of the natural sciences.
Banks had already made his name on the 1766 natural history expedition to Newfoundland and Labrador. He was appointed to a joint Royal Navy/Royal Society scientific expedition to the south Pacific Ocean on Cook’s Endeavour (1768–1771), visiting Brazil, Tahiti, and, after six months in New Zealand, Australia; he returned home and to immediate fame. He held the position of President of the Royal Society; elected at the tender age of 23 he held the position for over 41 years. He advised George III on the Royal Botanic Gardens, Kew. Banks advocated the occupation of New South Wales as well as the establishment of Botany Bay as a place for the reception of convicts, and the colonisation of what became Australia.
Englanders have preferred to ignore another scientist: Daniel Carlsson Solander (1733-1782), who was a Swedish naturalist and a disciple of Carl Linnaeus. Solander had travelled on the Endeavour with Banks. He happened to have been the first university educated scientist to set foot on ‘New South Wales’ soil.
The dexterity of the invaders in rationalising away land claims by the Indigenous People was a powerful force in itself, but it rested firmly on codified disenfranchisement executed by the Crown. For good measure, the original occupation of the continent had been based on the foreign, largely incomprehensible legal fiction of terra nullius. English law officers could write in 1819 that: “That part of New South Wales possessed by His Majesty, not having been acquired by conquest or cession was taken possession of by him as desert and uninhabited.” (Quoted in H. Reynolds, Dispossession: Black Australians and White Invaders, Allen & Unwin, Sydney 1989 at 67).
The land, of course, was inhabited. By denying sovereignty to the Indigenous People, however, the invaders could justify – at least to themselves – their claim of terra nullius. That fallacy lasted well into the twentieth century, the High Court still writing in 1979 that Indigenous Peoples “have no legislative, executive, or judicial organs by which sovereignty might be exercised …The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.” (Id. at 95).
The circumstances of newly discovered and ‘uninhabited’ territories, claimed by and vested in the Crown, on behalf of all its subjects, “are so widely different from those of a populated and long-settled country … that a moment’s reflection would present them to the mind even of a stranger. The lands in new territories are unoccupied and waste, until granted by the Crown to some individual, willing to reclaim them from the state of nature.” (Id. at 68).
In other words, since Indigenous sustenance did not require enclosure of land – as did European agriculture – the Englanders were rightly entitled to take control of the lands, and had the right to continue doing so. This claim is particularly bold, though: it presupposes the territories in question as true terra nullius, denying the presence of any occupants. So the myth endured, legally and practically.
On the whole, acceptance of terra nullius profoundly affected the ‘whites’ approach to Indigenous issues: “Aborigines, as it were, did not exist before the invasion and those who survived were owed no rights except those of legal children who would ultimately inherit no more than the rights of other Australians.” (A. McGrath, Contested Ground: Australian Aborigines under the British Crown, Allen & Unwin, Sydney 1995 at 288-289).
Such mystification permitted to the invaders to rationalise their behaviours as “settlement” and allowed the governments – colonial at first, but later state and federal – to turn a blind eye to the people who were not supposed to exist in the first place.
The best that can be said is that the 1788 landing was portrayed as the moment of arrival of a settler/colonial society – surely, the most brutal form of imperialism.
For a ‘redeeming view’ of history
It is believed that the ancestors of Indigenous People of Sahul arrived in what is now called Australia much more than 60,000 years ago – probably as early as 80,000 years ago. They developed a hunter/gatherer lifestyle, established enduring spiritual and artistic traditions and utilised stone technologies. For tens of thousands of years they performed religious practices associated with the Dreamtime. The Dreamtime, or the Dreaming, is a sacred era in which ancestral Totemic Spirit Beings formed The Creation. The Dreaming established the laws and structures of society and the ceremonies performed to ensure continuity of life and land. Recent archaeological finds suggest that a population of 750,000 could have been sustained. People appear to have arrived by sea during a period of glaciation, when Papua New Guinea and Tasmania were joined to the continent: Sahul. The journey still required sea travel however, placing the Indigenous Peoples among the world’s earlier mariners.
The greatest population density developed in the southern and eastern regions, the River Murray valley in particular. Indigenous Peoples lived and utilised resources on the continent sustainably, agreeing to cease hunting and gathering at particular times to give populations and resources the chance to replenish. ‘Firestick farming’ amongst people of the northern regions was used to encourage plant growth which attracted animals. Indigenous Peoples belong to the oldest, most sustainable and most isolated cultures on Earth.
The Dreaming was and remains prominent in Indigenous People’s artistic expressions. Such art is believed to be the oldest continuing tradition of art in the world. Evidence of Indigenous art can be traced back at least 30,000 years and is found throughout Australia.
Despite considerable cultural continuity, life for Indigenous Peoples was not without significant changes. About 10-12,000 years ago modern Tasmania separated from the mainland, and some stone technologies failed to reach the Tasmanian people – such as the hafting of stone tools and the use of the boomerang.
There is evidence that when necessary, the Indigenous Peoples could keep control of their population growth and in times of drought or arid areas were able to maintain reliable water supplies. In south eastern Australia, near present day Lake Condah, semi-permanent villages of beehive shaped shelters of stone developed, near bountiful food supplies. For centuries Macassan trade flourished with the Indigenous Peoples of the present day Australian north coast, particularly with the Yolngu people of northeast Arnhem Land.
When Indigenous Peoples first set eyes on Captain James Cook in 1770 the population consisted of some 250 distinct nations, within each of which there were numerous tribes or clans who spoke one or more of hundreds of languages and dialects. Complex social systems and ‘elaborate and obligatory’ laws and customs differed from nation to nation. Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. When Cook arrived at soon-to-be-called Botany Bay on the east coast of Australia on 29 April 1770 he was carrying instructions from the Admiralty issued in 1768. Those instructions provided, among other things: “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.”
Of his first encounter with local people Cook wrote in his journal that “all they seem’d to want was for us to be gone.” Cook continued to chart the eastern coast to the northern tip of modern Queensland, and raised the British flag at sans dire Possession Island, off present day Cape York Peninsula. He ‘took possession’ of the whole eastern coast of Australia, and named it New South Wales. In October 1786 the British Government appointed Captain Arthur Phillip as first governor of New South Wales, which was designated to be a convict place. By the time Phillip was commissioned to lead the First Fleet, his instructions from king George III had nothing to say about the “consent of the natives.” Phillip’s instructions counselled him to “live in amity and kindness” with the natives, but anticipated the need for measures to limit native “interference.” On 18 January 1788 Phillip arrived at Botany Bay with a fleet of nine ships. Between 26 January and 6 February 1788, 827 convicts – 580 males and 247 females – as well as 211 marines landed at what was to be called Port Jackson. Phillip – clearly the first thief – was ‘authorised’ to grant land to those who would ‘improve it’ – that is to say, to ‘receivers of stolen goods’. The operation was eased by the convenient fiction that the land was terra nullius – which belongs to no-one. It was so to be for 204 years and only through the exertion of force by and on behalf of the British Crown and the views of sycophantic historians.
No-one had sought permission to land, no-one had consented, no-one had ceded.
Sovereignty was not passed from the Indigenous Peoples by any actions of legal significance voluntarily taken by or on behalf of them. ‘The natives’ were found to be quite ‘different’: scantily covered, un-receptive of the Christian religion’s blessings, unable to speak English, unwilling to acknowledge the majesty of a foreign boss called the king – why, ‘barbarians’.
Indigenous Peoples turned out to be quite resistant to the dispossession, and the promise of real estate agency, the lure of banking business and commercial enterprise which in time would develop under the protection for several decades of a military dictatorship. The earliest record of an armed encounter between Indigenous Peoples and the occupiers is dated May 1788. Violence developed and systematised, not yet turning into a programmatic effort of extermination – except for Van Diemen’s Land, modern day Tasmania, where a ‘Black Line’ of death was drawn and, incidentally, failed.
One George Augustus Robinson then proposed to set out unarmed ‘to mediate’ with the remaining tribes-people. With the assistance of a woman named Truganini as guide and translator, Robinson convinced remaining tribesmen to surrender to an isolated new settlement at Flinders Island, where most later died of disease, but above all of loneliness.
People who ‘belong to the land’ – as any Indigenous person would say – would suffer exceptionally from being separated from the native place. As a sublimation of sheer brutality, forced ‘relocation’ would knowingly be the tool for the ‘dispersion’ of Indigenous Peoples. A new form of the English language was about to take foot.
Raids, murders, massacres of Indigenous Peoples continued in different parts of the continent to the 1830s as the land was being taken over by new arrivals and expansion. Prejudice, the natural child of ignorance, survives to the present. The period of armed conflict is rarely mentioned; it is portrayed as a sequel of scaramouches necessary to assert and defend the ‘right of property’.
Serious historians, unpaid for their opinion, often refer to this as the time of ‘the frontier wars’. One of the last known and documented massacres of Indigenous Peoples took place from 14 August to 18 October 1928 near the Coniston cattle station, in what is today the Northern Territory.
The massacre occurred in revenge for the death of a dingo-hunter named Frederick Brooks, killed by ‘natives’ in August 1928 at a place now known as Yukurru. Official records at the time stated that 31 people were killed. The then-owner of Coniston station was a member of the punitive party for the first few days and estimated that at least twice that number were killed between 14 August and 1 September. Serious historians estimate that as many as 110 ‘native’ men, women and children were killed. Some clans: the Anmatyerre, the Kaytetye and the Warlpiri believe that up to 170 died between 14 August and 18 October.
Even before the arrival of the occupiers in local districts, imported diseases often preceded them. A smallpox epidemic was recorded in Sydney in 1789, which wiped out about half ‘the natives’ around Sydney. It then spread well beyond the then limits of the occupied area, including much of south-eastern Australia; it reappeared in 1829-30, killing 40 to 60 per cent of the ‘native’ population.
The impact of the occupation was profoundly disruptive to ‘native’ life and, though the extent of violence is still debated, there was considerable conflict on the frontier. At the same time, some of the occupiers were quite aware they were standing on Indigenous land. Rarely English justice would take its blind off to see. Thus, when in 1838 at least twenty-eight ‘natives’ were massacred at the Myall Creek in New South Wales, not even the occupying authorities could fail to have seven ‘whites’ tried, convicted and hanged by the colonial courts.
‘The natives’ also attacked white intruders; in 1838 fourteen of them were killed at Broken River in Port Phillip District, which was to become Victoria in 1851, by Indigenous People of the Ovens River, almost certainly in revenge for the illicit use of Indigenous women.
In 1845 one of the ‘receivers’ attempted to justify his position by writing: “The question comes to this; which has the better right – the savage, born in a country, which he runs over but can scarcely be said to occupy … or the civilised man, who comes to introduce into this … unproductive country, the industry which supports life.” This is the substance of life in a mercantile society.
Early commentaries often, and conveniently, tended to describe ‘the natives’ as doomed to extinction following the arrival of the English. An ‘inferior black race’ was bound to disappear.
From the 1830s colonial governments established what were going to become the controversial offices of the Protector of Aborigines in an effort to avoid mistreatment of Indigenous Peoples and conduct government policy towards them.
Captain Hutton of Port Phillip District once told Chief Protector of Aborigines George Augustus Robinson that “if a member of a tribe offends, destroy the whole.” That was the practice of the time: there is record that it translated, in places such as Afghanistan for instance, into an English unwritten order ‘to butcher and bolt’.
Queensland’s Colonial Secretary Arthur H. Palmer wrote in 1884 that “the nature of the blacks was so treacherous that they were only guided by fear – in fact it was only possible to rule … the Australian Aboriginal … by brute force.”
Robinson had come upon a word which would work absolute magic to successive generations of occupiers: protection. The use of the word would become a great contributor to the development of ‘Antipodean’ English.
‘Protection’ was really of, by and for the occupiers and would be applied for a long time, up to the present indeed, against ‘the other’, ‘the outsider’, ‘the enemy’ from time to time as conveniently defined.
Continued Friday with: From terra nullius to Mabo
(Previous instalment: Will Sahul’s First Nations Recognise Australia?)
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.