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Peter Bayne
A. B. Pittock began his comment on the Makarrata[1] with a confession that he now had a sense of disquiet about the concept. I should confess that my involvement as, I hope, an ally of those Aboriginals, who seek to develop the concept is of very recent origin, and that I have much to learn, in this context, about the bitter truths of fighting vested interests and economic power. This is a fight to be fought on many fronts, and certainly the Aboriginals and their allies must guard against leaving any of 'the nitty-gritty gut economic issues' unresolved for the sake of a symbolic Makarrata, or Treaty, or whatever. However, I think too that 'symbolic' changes can be significant - for symbols, including language, are important in relationships of power and oppression.
The language symbol that I am concerned with here is that expressed in the legal principle that the Australian colonies were settled by English colonists (rather than acquired by conquest of the Aboriginals, or by cession from them). This principle is said by some Australian judges to have been established as the basis of the Australian legal system by the Privy Council decision in Cooper v Stuart.[2] It was said there that the colony of New South Wales was settled because at the time of its `peaceful' annexation it 'consisted of a tract of territory practically unoccupied.[3] The Privy Council cited the opinions of Sir William Blackstone expressed in his Commentaries of the Law of England (1765); but Blackstone speaks of a territory which can be acquired by occupation (rather than by conquest or cession) as one which is 'desert and uncultivated' or 'uninhabited' and their Lordships' gloss that this category includes one which is 'practically unoccupied' seems to be an unwarranted extension of Blackstone. In the Gove Land Rights Case (Milirrpum v Nabalco Pty Ltd and the Commonwealth)[4] Blackburn J admitted that Blackstone's words 'desert and uncultivated' had been taken by others 'to include territory in which live uncivilized inhabitants in a primitive state of society',[5] but Blackburn J did not cite any authority for this extension of Blackstone.
The settled colony principle was described by the present Chief Justice of the High Court in the case Coe v Commonwealth as 'fundamental'.[6] In that case, there was an attempt to challenge the principle that the Australian colonies were settled. Three of the five Justices who considered Coe's argument followed Cooper v Stuart; two Justices left the status of that decision open to argument. However, the claim failed primarily because the High Court refused leave to Coe to amend his statement of claim, and the case is not strong authority in support of Cooper v Stuart.
For the Aboriginal and Islander people, this principle has led to the consequences that:
1. they were and are subject to the colonial and now State and Commonwealth courts;
2. their status in law and their capacity has been defined by English common law as modified by Imperial or local statute, (for a recent example, see R v Wedge[7]);and
3. the pre-colonial land ownership systems of the Aboriginals have not been recognised, (see Milirrpum vNabalco Pty Ltd and the Commonwealth[8]).
The Coe litigation is one indication of the strength of the feeling of the Aboriginal and Islander people that the principle that Australia was settled is unjust. They are understandably offended by notions that Australia was 'practically unoccupied', or that their ancestors were 'uncivilised' and living in 'a primitive state of society'. The offence given alienates Aboriginals from the legal system. They may take the view that if the legal system does not recognise their presence in Australia in 1788, (or treats them as uncivilised), then they should not be bound to recognise the authority of the legal system.
The settled colony principle does not stand up well to a purely legal analysis, but a more fundamental objection is that it is a falsification of the historical record. There is ample evidence to suggest that up to the middle of the 1830s in New South Wales, (and later in other colonies), there was a significant body of official and judicial opinion that did not regard the colonies as settled. For some purposes, particularly to justify deadly reprisal raids, the Aboriginals were treated as a people to be conquered. There was even some opinion that a treaty should have been arrived at with the Aboriginals. The evidence concerning the practice of the colonial governments, and of the often murderous activities of the settlers, more than adequately demonstrates the fictional quality of the settled colony principle.
Even when 'official' policy changed in New South Wales in the late 1830s, the change was to a paternalistic policy of 'guardianship' which nevertheless did recognise that the Aboriginal people were entitled to some rights over land and that there were duties owed to them by the colonial administration. These paternalistic policies gave way as settlers pushed further into Aboriginal land. The settled colony principle of the Privy Council in 1889, which placed the legal rights of the Aboriginals at the discretion of the Crown, was both a reflection of the change in attitude that European powers took towards the Aboriginal inhabitants of their colonies, (reflected in the proceedings of ,the Berlin Africa Conference of 1885), and of the change of attitude of the Australian colonial administrations towards the Aboriginals.
The principle meshed well with the attitude that the Aboriginals would disappear, an attitude that developed in the latter half of the nineteenth century and which persisted well into the twentieth. They were denied the franchise to vote until 1963 and the former section 127 of the Constitution, which prescribed that 'aboriginal natives shall not be counted in reckoning the numbers of the people of the Commonwealth or of a State', remained in force until 1967. There is hardly any need to elaborate on such matters in this Bulletin; the point of the argument is that the settled colony principle has been part of an ideology that sees the Aboriginal as at best occupying no position different to any other person in Australia, and at worst as inferior. There are still powerful political forces that deny that Aboriginal and Island pre-colonial settlement of Australia is relevant to current social and economic policies, and this ideology suits their argument.
If this analysis is correct, repudiation of the principle would be a partial repudiation of this ideology, and thus could be a part of the Makanata or Treaty. A repudiation might be largely symbolic in the sense that it would not change any existing legal rights and duties. Such changes need to be fought out issue by issue, with land rights the critical battleground. The effect of a repudiation is of course unpredictable, but it could have some effect and this warrants a symbolic statement so long as such a change is seen only as a part of a Makarrata.
What should be the content of a symbolic statement? At a minimum, it would recognise that:
In our federal system, there are of course many legal difficulties, although the High Court decision in Koowarta v BjelkePetersen[9] may make it a lot easier for a federal government minded to do so to overcome them. The Commonwealth can at least make laws for the application of law in the territories and in relation to federal matters, and a symbolic statement contained in such legislation might be the most appropriate means for repudiation. Amendment to the Constitution might be too much to hope for in the near future, but is obviously the most desirable means.
The argument presented will not I hope be seen as obscure, or worse, as obscurantist. It depends on a more general argument about the significance of language in political competition, which argument cannot be developed here. I am conscious too that the suggested remedy - a symbolic reversal of the settled colony principle - might seem to be rather lame. It is of course no remedy for the almost two hundred years of injustice towards the Aboriginals perpetrated in many instances in the name of the law. Rather, it is put as a small yet significant reform that could be part of a Makarrata.
[Since writing the above I have sighted a paper written by Barbara Hocking in which she argues that as a necessary condition to negotiation concerning a Makarrata, the Australian Parliament should request and consent to the enactment by the United Kingdom Parliament of an Act that would declare that in 1788 (1879 in the case of the Torres Strait Islanders) the Aboriginals and Torres Strait Islanders were the owners of and had rights in land in Australia. The Australian Parliament would then pass legislation to recognize the ownership of the Aboriginal and Torres Strait people prior to 1901. Then, on this basis, a Makanata could operate an instrument of cession of ownership by the Aboriginal and Torres Strait people to the Commonwealth of Australia and contain clauses for the recognition of remaining Aboriginal ownership and for compensation for that lost in the past. Such a procedure deserves careful consideration as a means of effecting a retrospective cession which would of course remove the basis for the settled colony principle.]
[1] A. B. Pittock, ‘The Makarrata - Where are the Radical Demands?’ [1982] AboriginalLB 10; 1(3)pg12
[2] [1889] UKLawRpAC 7; (1889) 14 App. Cas. 286.
[3] Id. 291.
[5] id. 201.
[6] [1979] HCA 68; (1979) 53 ALJR 403, 408.
[9] (1982) 4 Aboriginal Law Bulletin 8.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/46.html