Why didn’t Britain write a Treaty?
[Information is derived from What a Capital Idea – Australia 1770-1901 by Christopher Reynolds]
When considering establishing a military base and civil society in New South Wales, the British, as the most developed and advance nation on earth, had previously purchased land, paid stipends to rulers – as it did in India, or signed treaties – as it had done in the Americas.
Yet, treaties with indigenous people for the possession of land was rare. British and European countries, on behalf of their private commercial companies, assumed land across the world under the international law of terra nullius (see other article on this topic). The acquisition of land across North America by the Spanish, French and British by 1778 is a case in point. Indeed, treaties were used primarily between the British and European countries to end wars, such as the Treaty of Paris in 1763 and again in 1783, or used as economic and trade agreements such as the Jay Treaty between Britain and the United States in 1795.
In the New South Wales case, the British could have sent hundreds of warships to Australia to conquer and invade the nation, slaughtering the inhabitants, if it felt it was necessary, and then signed a peace treaty. But what military could they have fought? What cities sacked? What king could have surrendered? What authority could have signed a treaty?
There was no vast British army storming the beaches of Port Jackson for there was no invasion. Quite the contrary: Arthur Phillip started friendships with Aborigines from the day he arrived in Botany Bay on January 18, 1788. From January 22 to 24, 1788, he sat on the beach at Sydney Cove for two days eating and talking with local Aborigines. Aborigines were living in the little colony within two years and Arthur Phillip was made an Aboriginal elder and given the name Wolawaree. [see What a Capital Idea – Australia 1770-1901]
In reviewing the purpose of treaties in North America by the United States Government with native people, they were often agreements for trade, commitments to offer protection to natives and prevent or end wars between native Americans, or, ‘peace treaties’ between tribes or to end conflicts with settlers. There were also treaties for the ceding of land to pay off trade debts or the ceding of land as land purchases. Where people in America, or Australia, were given native title to land, this did not, however, allow permission to develop, lease or sell the titled land.
The New Zealand Treaty of Waitangi of 1840 was initiated by the New South Wales Governor, George Gipps –who had authority over New Zealand, to stop the warring, slaughter, and cannibalism among the native tribes – especially the eating of babies. The Treaty gave the chiefs control over their lands but brought the tribes together as ‘one people’. The Treaty acknowledged British Crown dominion and authority over all of New Zealand and brought New Zealand into the British Empire. In recent times, the New Zealand Government has paid money as treaty settlements for land taken by the government. Because New Zealand doesn’t have one document as its Constitution enacted on the basis of a public referendum, then the Treaty of Waitangi has merit, otherwise the creation of an independent democratic state would have rendered a British treaty of 1840 with tribal chiefs null and void.
In planning the settlement in New South Wales, on Saturday, August 19, 1786, Prime Minister William Pitt, 1st Earl of Chatham, had called a meeting for 10.00 am at his home. In attendance were Thomas Townshend –1st Viscount Sydney, and the Secretary for War and the Colonies; Henry Dundas, 1st Viscount Melville; William Grenville, 1st Baron Grenville and cousin to Prime Minister Pitt; Henry Phipps, 1st Earl of Mulgrave and First Lord of the Admiralty; and Charles Jenkin, Lord Hawkesbury, 1st Earl of Liverpool.
In the meeting, the men discussed the nature of a new society in New South Wales and in turning their attention to the inhabitants of the place, recognised, from numerous reports, that the people were ‘the most primitive people on earth’, as William Dampier had described them. There was no unified people with a king or ruler but a land of dispersed war faring tribes speaking many different languages. There would be no need for an ‘invasion’ as there was no army to fight, and there could be no treaty as the people had no concept of ‘value’ or the ‘value’ of land and, thus, there was no opportunity to construct a contract. There was no Aboriginal nation of sovereign identity over the land mass.
With these considerations, and in the context of an Enlightened era and a Christian revival across Britain, the meeting of Pitt’s inner circle made resolutions:
First, that there should be no slavery in the colony: it would be forbidden to make slaves of the Aborigines or traffic in human cargo or conduct forced labour of the Aborigines, or anybody else.
Second, the governor was to care for the Aborigine people.
Third, the New South Wales Colony would create an egalitarian society where the transportees were to be treated as equal British subject receiving the same rations as the marines, could initiate legal proceedings against offending persons, live in their own homes, bring complaints to the governor for mistreatment, and could own land and businesses.
Fourth, to recognise all Aboriginal people as equal to all other persons whereby they, like the transportees, would be recognised as British subjects – equal under the law for protection, civil and legal rights, services and opportunities. To emphasis the point, King George said in the Letters Patent that the Aborigines were to be under His ‘protection’. These considerations and resolutions offered to Aboriginal people were far more than a treaty could ever offer.
The Colony of New South Wales was a social experiment: there can be no doubt of that. Many transportees, and Aborigines, appreciated the opportunities they were given. In recent times, it is the notion of being paid for land in the old treaty process that interests those currently seeking treaties in Australia. Their problem, however, is that these claimants do not possess, or have ever possessed, land and a right to negotiate a treaty. The claim to be descendants of people who lived on the Australian continent centuries ago and therefore have a right to a treaty is ‘dreaming’. The fabrication is a claim to sovereignty derived from the animist/ pantheist religion of a Stone Age society of the full blooded tribal Aborigines of centuries past whereby they believed they were ‘one’ with ‘nature’. Custom and lore came from spiritual beings, or ancestors, who emerged in the ancient ‘dream time’ from a dormant state into living activity. Aboriginal spirituality proposed that ‘god’ is in the universe, the world and all life. Feeling that one is in sync with creation and the universe, is antithetical to a claim to possessing some of that creation, i.e., land. Indeed, there is nothing in this religion that suggests people own land, or that people had a claim to sovereignty over land or a country.
Sovereignty is defined as the authority and the ability to rule over a country, state or land mass. On February 7, 1788, on the shores of Sydney Cove, Port Jackson, the British read a declaration and assumed sovereignty over the land of the Australian continent they called New South Wales. The declaration was made according to international law and the principle of terra nullius – no one ruled the land [see article on terra nullius], owned the land [by sitting on it, title or conquest] or worked the land. In the 1992, the High Court of Australia in consideration of the Mabo v Queensland case for a ‘native title’ claim by Torres Straits people to a particular portion of land, the Court did not question or challenge the prerogative right of the Crown to express its sovereignty over its land or challenge the Crown’s right to sovereignty over Australia and its claim of terra nullius in taking possession. The issue was, and remains, beyond question.
An interesting case regarding who owns Australia is found in the story of John Batman. In 1835, John Batman arrived in Port Phillip, New South Wales. He tried to buy 600,000 acres (2,400 square kilometres – as big as urban Melbourne or London today) of land from Aboriginal people of the Kulin tribe. For the Aborigines the problems with the offer were that they didn’t understand the concept of ‘owning’ or ‘selling’ land – how could they sell what they didn’t ‘own’. What would they do with this thing called ‘money’? Who’s going to sign the contract? And how many spear lengths were in 2,400 square kilometres? It was something akin to a campfire joke: ‘Did you hear the one about the white man who wanted to buy 5 million spear-lengths of land’?
So, it became a matter of who was conning who. In the end, the Aborigines drove a hard bargain. In accepting Batman’s offer, they said he could use the land as he wished in exchange for a few things he just happened to have laying around his tent: 40 pairs of blankets, 42 tomahawks, 130 knives, 62 pairs of scissors, 40 looking glasses, 250 handkerchiefs, 18 shirts, 4 flannel jackets, 4 suits of clothes and 150 lb. of flour. Both parties were very pleased with the deal. A few months further on, it appeared that the Aborigines had got the better end of the bargain when Governor Bourke said Batman couldn’t buy the land and no one but the Crown could sell land. The Aborigines, however, were not returning the 18 shirts off Batman’s back and the 250 hankies.
Governor Richard Bourke made an official government proclamation on August 26, 1835: a copy of which was sent to Secretary for the Office of War and the Colonies. The Proclamation reiterated the principle of terra nullius and that the British Crown was sovereign over the land of Australia. Aboriginal people, or anybody else, could not sell or buy land other than through distribution by the Crown.
Yet, the notion of treaty lingers on. The record of Regional Dialogues which resulted in the Uluru Statement, reveals that the idea of forming a “7th state … of defined territory” was taken up (p.3). On several occasions the need to have separate treaties with the States was discussed [South Australia and Victoria had already formed treaties and Queensland was on the way with a notion of collecting tax payer funds to feed a treaty]. The national referendum in 2023 quashed any notion of a national treaty or of an oversight committee to review all Federal legislation. Still, it appears that the notion of treaty lingers on because of its potential financial benefits. – a case of wanting to keep eating the cake at ever increasing mouthfuls.
If a treaty and recognition of a separate ‘political state’ was to be established, one askes, what would it look like? It is an interesting hypothetical to consider.
Hypothetical
If a head of a ‘Free State’, or a governing body for a cohort called the First Nations People (FNP), could be identified, a treaty could be drawn up between the citizens of Australia and the FNP. As the Australian representatives seated opposite the FNP, the fundamentals for a treated would be made clear. A treaty between the people of Australia and the FNP would not be a peace treaty to end a war. It would not be a trade treaty. It would be a treaty to create an independent free state. However, as the FNP had nothing to exchange in a treaty contract, it would be an act of benevolence to grant a right for an independent society to secede from the Federation of Australia. This, of course, would have to emerge out of a national referendum for such an Act of Parliament to be created.
What a FNP Free State might look like is a matter of imagination. Independence might begin with cleaning the slate: all $39.5 billion per year in payments for benefits to First Nations People would cease; all 3,000 organisations serving Indigenous people dissolved; all access to social, medical, police, legal, electricity, public works, banking, educational and communication services would cease. All Australian passports to FNP identified people would be cancelled; and all ‘native title’ claims rescinded.
The Australian citizens could, again as an act of benevolence, grant the right to the FNP to locate on land, say, in the Northern Territory, and to function as an independent country with its own government, title and rights to develop their own economic, political, military, social, judicial, welfare, policing, education, health, transportation, public works, public service and communications systems. It could then institute a diplomatic office and issue its own passports and visas for entry from other countries, such as Australia or New Guinea. The Free State could build a wall and establish several border crossing depots to check passports and visas. They could even have a representative sit in the backbench of the UN. Of course, the First Nations People would be unprotected against aggressors, say, like the Chinese, who could attack and invade the First Nations State at any time, or make Belt and Road trade agreements to take over the economy.
To help the FNP Free State establish itself, Australia could grant it, say, 1% of Australia’s GNP for the next 30 years – which would be pretty good for a cohort of some 300,000 people. As 70% of all married ‘Indigenous’ people are married to non-indigenous spouses, many potential Free State people would chose not to relinquish their Australian citizenship. All people wanting to take out First Nations citizenship would be relocated to live in the Free State.
Democratic Australia
The hypothetical, is, however, just that. Discussing Britain’s option to write a treaty or consider historical and religious claims to land and sites matters little after 1901. There is no legal standing to claim historical legal, political, religious or social rights, or to claim ancestor derived sovereignty, after 1901 when Australia became a sovereign democratic country. Australia matured in this vein over the next 100 years to become a fully independent sovereign democratic nation: there is one system of government, one flag and one nation. In our democratic nation with universal suffrage, the people are equal and cast one vote in elections for representatives to government. We the People own the governments of the nation. We the People of Australia own the country and the land. The Constitution of Australia makes no provisions for a divided nation. Any idealistic notion of Britain signing a treaty was extinguished when We the People of Australia became a nation. It should be mentioned that Aboriginal people voted along with all other British subjects in the colonial referendums for federation in 1898-1899.
[See What a Capital Idea – Australia 1770-1901 for more detail]
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