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Was Australia invaded or settled?

Was Australia invaded or settled?

This article was first drafted this time last year in response to a passionate debate around Australia Day on whether Australia was settled by the English, or invaded.

The view has long been held, hardly without question, that the English indeed settled in Australia in 1788. Many Indigenous Australians beg to differ; often quite vociferously around this time of year. Fueled by emotion rather than evidence, they insist it was an invasion.

They may be right.

From a legal perspective there are a couple of arguments in their favour, the first of which takes us back to 1770 and everybody’s favourite explorer, James Cook. Our history books tell us of Cook’s every adventure. But not of his intentions.

We begin …

In 1770 under Customary Law and Maritime Law it was illegal to usurp, occupy or repopulate lands of First Nations and treaties with these peoples were hence the legal norm and . . .

Lieutenant (later Captain) James Cook had instructions to negotiate with the Natives and gain their consent to occupy land. From April to August 1770, without the consent of the Indigenous Peoples or consultation Captain James Cook landed at a number of sites on the eastern coast of Australia claiming it for the British Crown. On the 22 August 1770 on Possession Island off Cape York, Cook took possession of the whole east coast in right of his Majesty King George the Third (cited from The Other Side of the Coin by Tony Kamps).

But a treaty or any negotiation was, in Cook’s opinion, not a privilege to be afforded to ‘savages’ and he subsequently breached his instructions.

Before 1770, the construct of the Aborigine saw them positioned in the landscape as a savage: a subsequent depiction that evolved in the minds of European imagination. The English, especially, considered themselves well credentialed. As the first Englishman to encounter Aborigines, William Dampier instilled in other Englishmen’s minds the preconceptions about these people when he wrote that they were “the miserablest people in the world.” And the image of the Aborigine was to leave no impression of excitement or significance on Cook, merely accepting the Aborigines as Dampier had earlier reported. Cook had brought with him images of indigenous peoples as noble savages, largely the antithesis of Europeans. Cook was probably also influenced by the writings of Rousseau, whose saw native peoples as unadulterated by the evils of civilisation.

Cook and Joseph Banks themselves were to add “naked and treacherous: a collection of cowardly, unfriendly and vindictive savages belonging to the lowest order in creation.”

Whilst it is acknowledged that Cook had acted improperly towards the Indigenous occupants it eventually mattered not to his peers. By declaring the continent “no man’s land” (the doctrine of which was later to be referred to as terra nullius) the English found a legal lie to take custody of it.

Because the observable Aborigines did not grow crops and because Cook assumed there were no fishable rivers inland, he erroneously concluded that the land’s interior was empty. Banks, meanwhile, thought that the Aborigines would run away and abandon their rights to land. A totally stupid assumption, especially given that after an encounter with local people in Botany Bay Cook wrote that “all they seem’d to want was us to be gone.”

Regardless of Cook’s failure to negotiate a treaty or gain consent to occupy this new land, it became apparent shortly after the arrival of the First Fleet in 1788 that Aboriginal people were treated little more than impediments standing briefly in the way of inevitable white progress. The failings of Cook and the contravention of the aforementioned Customary Law and Maritime Law were conveniently ignored.

The second event takes us forward to 1841 and the case R. v. Bonjon in the Supreme Court of New South Wales before Willis J., 16 September 1841, Melbourne from where I’ll add further to the claim that the continent certainly was invaded. The following three paragraphs are a summary of the proceedings. Bear with me. They are complex.

Bonjon, a Wadora man, was charged with the shooting murder of Yammowing, of the Colijon people, at Geelong. The proceedings before Judge Willis began with evidence as to the capacity of the defendant to plead the jurisdiction of the court, and to plead guilty or not guilty.The court then heard argument on the question of whether it had jurisdiction to hear a charge of murder by one Aborigine of another.

Arguing against the court’s jurisdiction, Mr Redmond Barry, for Bonjon, said that there is nothing in the establishment of British sovereignty in this country which authorises the court to submit the Aboriginal natives to punishment for acts of aggression committed inter se. New South Wales was occupied by the British, he argued, rather than conquered or ceded. Occupation gave the Crown a right to the soil, but not to any authority over the Indigenous inhabitants as subjects, unless there be some treaty, compact or other demonstration of their desire to come under English law. This does not interfere with the right of the sovereign to punish Aborigines who attack the persons or property of British settlers, or the reverse. No statute states that Aborigines are British subjects, and there is no treaty or compact showing their submission to British authority; their assent was necessary. Nor is there any reciprocity between them and the Crown to render them amenable to the criminal law. It is impossible to apply the whole of that law to them. Aborigines have their own modes of punishment, under their own regulations. Their regulations, like those of all societies, extend to murder. The Aborigines live in self-governing communities. English law, then, was not the only law in the colony, and it could not be imposed on them by terror.

Mr Croke, the Crown Prosecutor, replied that it is lawful for a civilised country to occupy the territory of uncivilised persons, so long as they leave them sufficient land to enable them to acquire subsistence. As a consequence of such settlement, the common law of England was transferred to the Port Phillip District of New South Wales. All persons within that area owe a local allegiance to the Queen, and are bound by English law even for conflicts inter se. They are protected by the law, and bound to obey it. Sufficient land having been left for them, they have no original rights to the territory of Port Phillip, but merely an easement over the soil. Bonjon is as much amenable to English law as a British subject.

The argument from Mr Barry that New South Wales was occupied, not conquered, was founded on this claim upon by the defense:

On the shore appeared a body of savages, armed with spears, which, however, they threw down as soon as they found the strangers had no hostile intention.

This may have been a lie (in order to save his client), as what has been conveniently ignored is the fact that the spears were thrown down after shots were fired by the English. The local Aborigines, in throwing down their spears, were actually signalling defeat. Technically, this means that the land was invaded. The English were the aggressors as was confessed by the British Government not two years prior to this case, voicing the sentiments that:

You cannot overrate the solicitude of Her Majesty’s Government on the subject of the aborigines of New Holland. It is impossible to overrate the conditions and prospects of that unfortunate race without the deepest of commiserations. I am well aware of the many difficulties which oppose themselves to the effectual protection of these people, and especially those which must originate from the exasperation of the settlers, on account of aggression on their property, which are not less irritating because they are nothing else than the natural results of the pernicious examples set to the aborigines, and of the many wrongs of which they have been the victims. Still it is impossible that the Government should forget that the original aggression was our own. (My bold).

The small amount ethnographic evidence I have uncovered suggests that from Day 1 there was aggressive behaviour from the English (even before their so-called settlement of Australia). This country was not peacefully settled as the school books tell us. The first Australians wanted the first British visitors gone. Through aggression from the outset they got to stay.

They were, by the looks of it, invaders.

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34 comments

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  1. Catching up

    Yes, our ancestors invaded. They were never invited.

  2. Catching up

    Funny, one can accept climate change when nature puts carbon into the atmosphere with volcanoes, but cannot accept that when man does it, burning fossil fuels.

  3. Barry Tucker

    Here’s an interesting side issue. It’s said that one of the pressures to settle new lands was overcrowding of prisons and prison hulks. Of course, Lieutenant Cook had discovered the fabled Great Southern Land and the race was on to settle it before the French or anyone else got there. What is not widely known or considered is that five years (from memory) before the First Fleet sailed there was a catastrophic volcanic eruption in Iceland. What followed was a virtual nuclear winter that affected much of Europe, killing thousands of people, livestock and ruining crops and water supplies. I often wonder what effect that event might have had on the thinking of British authorities.

  4. Miglo

    Thanks Barry. I wasn’t aware of that. I do love the domino effect on history, or the cause and effect principle.

  5. Ricky (Tory Torcher)

    Unquestionably Invaded. My rudimentary understanding of the complexities of Aboriginal culture leads me to believe there was a complex ancient cultural structure historically before us white fella’s invaded their land. If it was a friendly settlement why all the massacre’s, genocide and abominations carried out by the settlers?

  6. Mark

    If the signing of treaties was the legal norm for dealing with first nation peoples, I would think that would have been impossible considering the inhabitants of Australia at the time of Cook’s arrival had no written language; unlike almost every other civilisation in human history. Perhaps that might have been why treaties were not signed? There could have been any number of verbal agreements, but without a written record, it is impossible to tell.

    Whatever the rights or wrongs, it cannot be ignored that the civilization brought to Australia has provided enormous material benefits that a primitive stone age culture did not have. If left completely alone, isolated from the rest of the world, given the rate of evolution over 40,000 years – compared to that of human civilisations elsewhere; which built the great pyramids, magnificent detailed accurate works of visual art, pottery & sculpture, developed written languages, & enormous libraries of knowledge & recorded history, astronomy, discovered how to forge metal tools… and so much more – it may well have taken this culture another 40,000 years to even reach the bronze age, or to develop a written language. We always hear of the negatives, but never the slightest acknowledgement or appreciation of the great benefits that have been shared.

  7. Catching up

    Mark, are you saying, these are the only people who did not have written word. You ignore their ability to hand down much with drawing and story telling. They had their message sticks, I believe.

    I am sure there

    The reason they had no treaties, I believe, is because it was declared that they did not exist.

    The land was declared to be empty.

    Even in the Constitution, they were lumped in with cattle domestic animals.

  8. Alex Schlotzer

    They sure were invaded and thank you for producing this piece. There are some valuable points worth noting. It might be time for the history books to be edited.

  9. Ricky (Tory Torcher)

    I think the fact that the Indigenous were until relatively recently were classified as Fauna says it all.

  10. Barry Tucker

    Mark, while it’s true the original inhabitants did not build pyramids or develop what we recognise as a written language, they did develop a system of laws, one of the essential building blocks for any culture, and a knowledge of natural medicines and cures.

    I think we have to respect the Aboriginal people for surviving in this harsh land for 40,000 years without the benefit of the scientific and other discoveries of the rest of the world, many of which have been used for destructive purposes.

    They developed trade routes, a deep understanding of the natural world and a Dreamtime to explain the past, their origins and their spirituality. They developed in a different way, a less materialistic way and, importantly, in a sustainable way — something the developed world is only now beginning to appreciate and develop itself.

  11. Christopher

    The residual of the invasion is this current society under the illegitimate sovereignty of a British crown. To restore a correct balance, the sovereignty of this place and its society must be restored to the original people, who are sovereign. The society would not suffer as it does to a foreign power in that only the Governors role and Executive Council would be legally occupied by appropriately local sovereignty.

  12. Di

    Migs: ‘They were, by the looks of it, invaders’…u are soooo correct…..but @ mark who wrote ‘Whatever the rights or wrongs, it cannot be ignored that the civilization brought to Australia has provided enormous material benefits that a primitive stone age culture did not have. If left completely alone, isolated from the rest of the world, given the rate of evolution over 40,000 years – compared to that of human civilisations elsewhere; which built the great pyramids, magnificent detailed accurate works of visual art, pottery & sculpture, developed written languages, & enormous libraries of knowledge & recorded history, astronomy, discovered how to forge metal tools… and so much more – it may well have taken this culture another 40,000 years to even reach the bronze age, or to develop a written language. We always hear of the negatives, but never the slightest acknowledgement or appreciation of the great benefits that have been shared’… well Mark…mate, i am not sure where u have based your proof on this idiotic comment, but i bloody hope u dont have kids, they all develop at different stages…who the f*#k are u to say what would have happened if the British hadn’t turned up and started shooting these ancient inhabitants to death BY THE THOUSANDS!! You are an imbecile!!!!

  13. Crash Skeptic

    Strong words, Di. With respect, most anthropologists would flat-out disagree with you, and project a scenario quite similar to Mark’s.

    And it’s got nothing to do with race – and everything to do with:
    – soil fertility,
    – precipitation,
    – the presence of river valleys,
    – the ability of the landscape to support an evolution from hunter/gather to agriculture with *only* stone-age technology.
    – and technology transfer based on proximity to neighbouring civilisation.

    The reality is Mark’s comment – which included the qualifier “if left completely alone, isolated from the rest of the world” – is pretty much right on the money.

    If there was essentially no significant technology development between 750AD and 1750AD, then the onus is really on you to explain why it was about to magically kickstart without any stimuli from other cultures…

    Perhaps don’t be so quick to label people “imbeciles who should not have children”, eh!

  14. as if im telling you my name

    thanks for making my humanities essay for me, saved me a lot of time

  15. Ian

    MABO proved Terra nullius was a lie and the High Court of Australia agreed.

  16. Anonymous

    Di, while you may disagree with Marks argument, that is by no means a valid argument for you disputing his intelligence. While you clearly have a strong opinion that does not mean you need to resort to petty insults. Feel free to rebut the arguments of others but do not treat them as a Influence on those people personally. Calm Down.

  17. Shannon

    Could it have been invaded and settled?

  18. Fed up

    Yes, but never invited.

  19. Maddi

    ur weerd

  20. me

    Stop trying to justify the invasion. They stole and they killed thousands of aborigines, regardless if they even survived the next 100yrs

  21. Michael Taylor

    If you read the article you’ll see that I wasn’t justifying it at all.

  22. Stephen Tardrew

    Now look here fellas we will just just walk off our land with a nod; a wink and a clap of our hands and succeed to your wonderfully superior weapons and culture.

    It’s just part of our bodies, minds, dreaming, kinship, spirit, soul and mythology but don’t you worry about that. All those thousands of years of stewardship don’t matter a shit.

    We will just lie down and die while you take the best land; then the not so good land; then the marginal land and leave us a bit of desert and a small number of reserves which you will control.

    Your generosity is so overwhelming that to show our gratitude you can have our kids as well.

    Ban our language and rituals: make us work as drovers for nothing on our own land and piss us off when things are tough.

    Sorry about the winging and complaining we are such a burden.

    I apologize with all my heart to my indigenous brothers and sisters for the way you have been and are still being treated.

    To even suggest that we did not invade this country is an abomination. I am so ashamed of the attitude of many Australians that it leaves me in tears.

    The suffering that these, our people, endured and still endure is a blight upon our society.

    Recently I read of historians quibbling over the number and severity of massacres as if that could alleviate our guilt and of course it was a conservative historical perspective.

    They were invaded, their land was stolen and they were murdered,enslaved, poisoned and riddled with European diseases.

    We should never ever forget the truth.

    “Lest We Forget” their sacrifice.

  23. Mitch

    The Dalai Lama said the way to resolving any dispute is for both sides to sit down and talk, good idea. We call each other stupid names and refuse to acknowledge any wrongdoing from either side. Racism is the real problem now and it comes from both sides. I lived and worked in remote communities for many years, some aboriginals are racist as are some white Australians. The number of white Australian racists is thankfully diminishing, does not mean we are all happy with the direction we are going though. As a race the aboriginals pretty much hate us, sad but in so many instances true. Every government for decades now has been trying to address the race problem in Australia, the real impediment is stupidity, from both sides. We have seen dodgy practices from both sides here and it revolves around money every time. The ownership issue is a real worry for all, can we just get along, we have been tricked culturally so many times as was Margaret Meade, stop the arguing and get to the peace table, too many young aboriginal kids in jail, too many wasted lives. Oral history is the passing of stories, not all white people are bad so it could be time to include good news stories into that oral history, this way people unite over time and learn to get along based on people not colour. we love this country all of us and want to see it and us prosper, cant we just do it, or is that a naive notion

  24. Daz

    It is time to stop sugar coating British History and show it for what it was, they bend rules and laws to suite their needs and to write history in a way they attempts to give them some sort of moral high ground by which they can then criticize others such as Germany & Japan for doing what can be argued as the same thing, remembering it was actually England who were the ones taking over the world. Australia was invaded and occupied against the will of the people who had lived here for over 40,000 years and this must be seen as a crime, it is as simple as that. For those saying Australia itself is much better for it, well that is arguable by which eyes that comment is seen. With landscape torn up, many species of animals gone and threatened while introducing pests that have caused so much damage to the environment, it can be argued the original landowners were far better Ecologists for sustainment of their lifestyle than our current lifestyle. ,

  25. Cad

    The people of the Yamna culture spread from the Crimean region across much of Northern Europe eventually reaching the shores of England by 1000 BCE. These people became known as the Celts. From China to England evidence of Celtic culture has been found.

    In 55 BCE came the Romans condensing the Celtic tribes into Wales, Ireland and Scotland. On the Romes departure the void was filled by Germanic tribes originally from Denmark region… the Angles, Saxons and Jutes. Around 800 CE The Vikings arrived… 1000 CE the the Normans…

    Eventually all these peoples… Celts, Picts, Gaels, Scots, Welsh, Cornish, Irish, Angles, Saxons, Jutes, Scandinavians, Normans… became the English, Irish, Welsh and Scots… united to work as one people… the British. Forming the largest and most powerful empire the world had ever seen.

    People have been shifting around the world from the dawn of time… forming new tribes, new countries, new states… The difference is once the aborigines reached Australia they were cut off and isolated for over 40,000 years. The harshness of the environment and lack of competition resulted in the Australian Aborigine surviving but not thriving. Trapped in a 40,000 year old bubble.

    When the British arrived that 40,000 year old bubble was burst. The Australian Aborigine did not reassemble anything like what they had seen before. No established institutions, structure of government or leaders they could negotiate with.

    Under the international law of the day the British could only take possession of land in three ways:-
    1) Terra Nullius, Uninhabited by civilized people.
    2) Treaty, Permission to take possession of the land granted by the indigenous people in return for compensation.
    3) Conquest, defeat the indigenous in a war.

    Under the common law of the day Terra Nullius was not only convenient but an accurate application of the laws of that time. The famous Mabo ruling only dealt with a specific tribes ability to prove that they had occupied that land prior to arrival of the British with some form of civility and therefore should be compensated as per the above in a treaty. It did not overturn the Terra Nullius claim Australia wide.

    The Australian Aborigine’s are not one people but a vast number of different peoples. The British took possession of Australia under all three legal means, Terra Nullius where it applied, Treaty where it was possible (such as Batman treaty for Melbourne) and Conquest where it applied (Frontier wars).

    Argument’s about Australia being colonized, settled or invaded come down to semantics. Its D) All of the Above. The Aborigines had a rude induction into the modern world. They felt the pain countless other peoples have felt throughout history. Slowly they are being swallowed up into the new nation that has been built around them.

  26. Voice of reason

    I personally don’t believe the Aboriginals were the first people, and that they are quite possibly interlopers themselves . Studies in the 60’s into the origin of the Bradshaw paintings revealed that no elders at that time could tell what they were about, or who painted them. They did however state that they were from before the dreamtime. Sounds to me like there was someone here before them.

  27. jimhaz

    I have no problems agreeing it was an invasion. Trouble is I don’t know what it means legally and more importantly for the expectations of aboriginal people above the recognition contained in Mabo.

    It is impossible for me to feel guilt in relation to anything that has occurred prior to my adult life. I feel zero guilt that Australia was invaded or for anything that occurred.

    The fact is that if the past had not been exactly what it was, not one person now in Australia, including any aboriginal person, would exist.

    I sprang from just one sperm amongst billions who died, and mum had two million eggs. Same for my father fathers, mums mum etc. Without the invasion, without everything happening practically exactly as it did, other events would have occurred and other sperm would have won the race across every one of our genetic chains.

    How could I feel guilty that I exist, or feel contentment in the impossibility that if I did not exist some unknown other would?

    As aboriginals were not a nation, and would not have become a nation without deep external intrusion, they were always going defenceless against invasion by other some group with adequate levels of technology. Maybe initially slave traders. As far as I am aware all countries until recent times have been utterly ruthless to native peoples or their neighbours, when taking ownership of another land. Things could easily have been worse. Even if by some fluke this did not occur, I see no reason why an aboriginal life is worth more than any other. That would be blunt racism.

    I see our obligation as one of compassion for suffering due to the difficulty many aboriginals have in this western world, the same as for others in hopeless generational situations within Australia, but not of one of it being owed by aboriginal heritage. Mabo has the direct chain of domestic ownership making claims finite and is what any person with a generational history in that location could thus justifiably expect.

  28. OPPOSE THE MAJOUR PARTIES

    It would not necessarily produce a good outcome for indigineous people if it were ever decided that Australia was indeed invaded. the conventions of war etc would have entitled the victors to the spoils, including the land, of those they defeated. a better outcome would be that australia was settled in which case the indigineous people would have been entitled to the protections of the english common law and would have had the status of British or Crown subjects. this would have included the protections afforded by the Magna Carta and the prohibition against the Crown compulsorially acquiring the property of its subjects unless just terms (a fair price) are paid. I believe this is the case. That is, the indigeneous people became British subjects upon settlement but were not afforded the protections they were entitled too. the illegality lies foremost in the failure of the Crown to afford its indigeneous subjects the protections they were entitled to and to pay the just terms english common law mandated. The just terms have still not been paid and are long over due. The applicable legal doctrine is that wherever an englishman goes the common law goes too. hence, when Cook took possession the common law applied and the indigeneous people became entitled to the protections of the common law as British subjects including laws protecting property rights. there has been no law in england that persons are to be deprived of their rights on the basis of race or economic status. the opinions of the condition of the indigeneous people were irrelevant. The indigeneous australians were entitled to their property and rights…and are awaiting enforcement and protection of those rights by the Australian Crown. Mabo is a nonsensical legal doctrine that wrongly assumes that the crown had the right to extinguish title in land by granting that land to another. that has not been english (or Australia) law since the Magna Carta in 1215. the crown cannot compulsorily acquire the property of its subjects unless on just terms. the high court failed to consider the just terms laws in marbo. how convenient it did so for the state and for those who now reap the benefits of indigenous land. marbo is a spineless compromise by a court that serves the interest of a capitalist state and that has merely provided a further justification and legal process by which indigenous people can have their rights to
    property expunged.

  29. OPPOSE THE MAJOUR PARTIES

    as the requirement for just terms has never been satisfied, the appropriation and grant of aboriginal land to others by the Crown was invalid and unlawful. hence, australian settlement proceeded unlawfully and was effected by unlawful means.

  30. Peter

    This argument is purely a spurious twisting of the meaning of words. Under its terms the English government were indeed invaders. What it ignores, however, is intent, a crucial element if we are to talk about legality of the settlement. Hughes, I believe, covers this intent quite well in his Magnus Opus on the subject “Fatal Shore”. In it he argues, correctly I believe, that the British settled Terra Australis, or Neue Holland, as a Penal Colony. This was the intent of the original settlement. Whether that intent changed over time, or indeed, whether the intent varied from colony to colony over time, is another matter entirely. There is no doubt in my mind, that at some stage, and in some areas of the continent at least, that there was indeed an intent to battle with, and thereby, disposses the aborigines in that immediate area, ie, there existed a warlike intent amongst some in power. This was clearly the case in Van Diemen’s Land with the pursuit to eradicate the aborigines there and to steal their land for settlers who had found favour with the then Governor. The same can possibly be said of Queensland, the Northern Territory and Western Australia, and equally as unlikely in the more populous Southern States. No doubt, though, in my mind, that many aborigines were, and possibly still are, at war with the settlers. Under such circumstances, it is only natural for the settlers to defend themselves. OK, perhaps my ancestors shouldn’t have been here in the first place, but some at least had little say. That the aborigines were, and perhaps still are, intolerant of these new settlers is not really a reasonable stance to take, given the enormity of the continent, and the sparcity of its settlement at the time the European colony was established. For these reasons I can only demise that it was a one sided war from the start, given the overwhelming military superiority of the settlers, though there is no doubt that considering the attitude of the original inhabitants to the arrival of newcomers, that there were many private wars unjustly waged against the original occupants.

  31. OPPOSE THE MAJOUR PARTIES

    the settlement as a prison colony is largely irelevant. what is significant is Cook’s taking possession earlier. in taking pissession the indigineous people became subjects of the crown and entitled to the protections of british law, including the prohition against the crown acquiring the property of subjects unless on just terms, which the indigenous people have never had. Native title is s fiction as much as terra nullius is/was and was a concoction of the High Court to largely preserve tbe status quo and invented by ignoring the just terms requirement. Native Title is really just a limited defence to trespass.

  32. David Bruce

    They came with firearms and certainly used them.The land they settled was sacred ground for the indigenous tribes.
    The white race will destroy the air we breathe on this planet according to the Hopi Indians, just as the previous three worlds were destroyed by fire, ice and flood. https://www.bibliotecapleyades.net/esp_orionzone_6a.htm (Of course the Hopi predictions and four worlds are fake history, just like the Protocols)

  33. Zac

    Australia wasn’t invaded! it was settled fairly!

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