Reynolds, Henry --- "The Law of the Land" [1987] AboriginalLawB 57; (1987) 1(29) Aboriginal Law Bulletin 7

• The Law Of The Land

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The Law of the Land

by Henry Reynolds

In mid-September, the Aboriginal Law Centre, University of NSW, held a Seminar 'Recognising Aboriginal Rights: Yesterday, Today and Tomorrow'. In his address at the Seminar, Henry Reynolds presented a sneak preview of his new book, The Law of the Land. The following article, taken from his address, outlines some of the compelling evidence, and argument in 'The Law of the Land.'

I've just finished a book which Penguin will be publishing in December, which is about the question of Australian history and Aboriginal land rights. In that book I argue that the accepted version of Australian history greatly underestimates the degree to which the British government recognised at least some Aboriginal rights in the land and that this has largely been overlooked in the conventional story of Australian history.

I begin with the discussion of 1835-36 concerning the settlement of South Australia, which was a crucial time, I think, for the issue of Aboriginal rights to land. The story opens on the 2 January 1836, when Colonel Robert Torrens, who was the Chairman of the South Australian Colonizing Commission, and John Hindmarsh, the Governor-Elect of the still-to-befounded colony, were called to the Colonial Office to see the Secretary of State for the Colonies, Lord Glenelg. Torrens saw Glenelg on his own, leaving Hindmarsh outside in a waiting room. When he emerged he told Hindmarsh that 'the only difficulty was that the Secretary of State insisted upon the rights of the Aborigines being properly taken care of but that he [the Colonel] did not see how to get over the difficulty'. Four days after the discussion in the Colonial Off ice, Torrens told a meeting of his Colonizing Commission the bad news. The entry in the Letter Book of the Colonizing Commission read: ‘Lord Glenelg expressed the desire that the Commissioners should prepare a plan for securing the rights of the Aborigines, which plan should include the appointment of a Colonial Officer to be called Protector of the Aborigines, and arrangements for purchasing the lands of the Natives - arrangements for purchasing the lands of the Natives.’ A draft of the plan proposed by the Chairman in compliance with this request was then read and approved by this same meeting. Now that draft plan, which was then submitted to the Colonial Office, was important, and I'll read it to you in part:

The Colonization Commissioner for South Australia shall appoint an officer to be called the Protector of the Aborigines. This officers shall be resident in the province ... etc. etc. The Colonial Commissioner, after having completed the survey of any portion of the public land shall, before declaring the same open to sale, give notice to the Protector of the Aborigines whose duty it will be to ascertain whether the lands thus surveyed or any portion of them are in the occupation or enjoyment of the Natives. If the Protector finds those lands uninhabited or not in the occupation or enjoyment of the Native race the Colonial Commissioner shall declare such lands open to public sale ... Should the Natives occupying or enjoying any lands comprised within the surveys directed by the Colonial Commissioner not surrender their right to such lands by a voluntary sale then in that case it will be the duty of the Protector of the Aborigines to secure to the Natives the full and undisturbed occupation or enjoyment of those lands and afford them legal redress against depredations and trespasses.

This plan was sent to the Colonial Office the following day and the letter was answered on the 11 January 1836. Glenelg acknowledging receipt of a plan 'for the sale of lands in South Australia of which the object is to protect the rights of the Aboriginal inhabitants of that country'. He was of the opinion that by the appointment of one or more Protectors 'armed with the authority suggested in your letter and to be supported by all necessary ministerial agency in the exercise of such authorities, adequate security may be taken for the protection of the rights of the Aborigines'.

From these documents we can assume a number of things about the thinking of the Colonial Office at that time:

(1) The Aborigines had rights. These rights had not been given to them by anyone, because the place hadn't been settled; they could only have come from their pre-existing occupation of the country.

(2) The Aborigines had a form of tenure over their land, which could not only be recognised by the British authorities, but which could only be extinguished by agreement and purchase. That is quite clear in both the comments of the Colonial Office and of the South Australian Commissioners.

(3) The British claim of sovereignty (in that part of South Australia it may have been either 1788 or 1824) had been just that and no more. It had not meant that all the land had ceased to be the Aborigines', that there was at least rights of occupancy and possession to that land. Otherwise why talk about sale, why talk about purchase, why talk about negotiation? And the interesting thing is that nowhere in the discussion at this time, not even from Robert Torrens himself, the Chairman of the Colonizing Commission, is the argument presented that the Aborigines had nothing because they had lost their land as a result of the claim of sovereignty. The argument was altogether different. It was whether their use of land was such that it could be considered as being in actual ownership. The argument wasn't that tenure had disappeared as a result of the claim of sovereignty, which of course is still the traditional legal view.

We must now consider the important next step in the process of negotiation which eventually allowed the Colonizing Commissioners to put their settlers on the ships and sail for South Australia - the issue of the Letters Patent. They included the clause,

That nothing in these Letters Patent contained shall effect or be construed to effect the rights of any aboriginal Natives of the said province to the actual occupation or enjoyment in their persons or in the persons of their descendants of any lands now actually occupied or enjoyed by such Natives.

Now, both the document and that clause in particular were significant in the so-called Gove land rights case of 1971, when it was suggested that they indicated that the British government recognised some right to land. Blackburn, of course, dismissed this saying that the clause in question was not interested to be more than the affirmation of a principle of benevolence inserted in the document in order to bestow on it a suitably dignified status. That was a travesty, and I argue the point in the book. I can't go into the sort of detail that is necessary to indicate why, but it is important to remember that almost exactly the same clause was used four years later in 1840 in the Charter establishing New Zealand. The then Secretary of State for Colonies, Lord John Russell, remarked about that clause in the New Zealand Charter that Her Majesty had 'distinctly established the general principle that the territorial rights of the natives as owners of the soil must be recognised and respected'. Now, generally speaking there has been no doubt that in New Zealand that clause meant what it said. In Australia the argument is that it didn't. It is my conviction that the clause meant what it said in Australia in 1836, just as it meant what it said in New Zealand four years later.

Having looked at what seems to me to be the crucial few months in the nineteenth century debate about land rights, i.e., on the eve of the establishment of South Australia, I think it's necessary to go back before I move forward-to go back and explain why it was that the Colonial Office took this view of Aboriginal land rights in the 1830s. Let's then go back to the beginning of white settlement, back to 1788. The practice of purchasing colonial land from the indigenous people was well established by then. It had been common in America for at least 100-150 years. It was fully accepted that although Crown Charters might make all sorts of claims about the ownership of the land, the reality was that the Indians were in possession, that they had some rights as a result of that possession and that land should be purchased from them.

This principle was also seen in the negotiations about the early settlement of Australia. The instructions given to Cook for instance, on his voyages to the Southern Ocean contained the clause that he could only take possession of uninhabited lands and that elsewhere if he wanted to establish stations on the coast it could only be done with the consent of the Natives. When in 1785 the British government was talking about a settlement on the African coast they discussed this question. In fact the House of Commons Committee on Transportation reported that 'it appeared highly probable that the natives would, without resistance, acquiesce in ceding as much land as necessary for a stipulated rent'. The Committee went further observing that 'all the Portuguese and Dutch possessions of that Coast are being so acquired'.

A few years after the settlement of Australia there was another important discussion of this principle in relation to settlement on the north west coast of America. It arose out of a diplomatic conflict between Spain and England about settlement of Nootka Sound. The British established the principle, and this was put into a Convention of 1790, that the Spanish accept 'that there was a right of the British to establish any settlement as English subjects should form with the consent of the Natives of the country not previously occupied by any of the European nations'. The principle was, then, clear and established in the settlement of North America; it was clear when they were discussing the establishment of a convict colony on the African coast in 1785; it was put into an international Convention, on the insistence of Britain in 1790. Why not in 1788?

The problem is that there is so little written, and that to some extent has allowed people to read into the situation practically what they wanted. But one very crucial meeting took place in May 1785, when Sir Joseph Banks, who had been with Cook and was regarded as the expert about Australia, gave evidence to the House of Commons Committee on Transportation. The Committee asked Banks this question: 'Do you apprehend in case it was resolved to send convicts there any district of the country might be obtained by cession or purchase?' Now, clearly their thinking was that Australia like anywhere else should be settled with that principle in mind. Banks' answer is very interesting. He said: 'There was no probability while we were there in 1770 of obtaining anything either by cession or purchase as there was nothing we could offer that they would take except provisions and those we wanted ourselves.' Banks wasn't saying they don't have any land; he wasn't saying it's wrong in principle; what he asserted was that it might be difficult to execute because there was nothing we could offer them. It wasn't a case of there being nothing they could offer us because they didn't own the land; there was nothing we could offer them. But probably the single most important thing was not what Banks said at this time, but rather his argument, which was accepted by the people who came to Australia in 1788, that Australia was largely uninhabited. He presented the view that as there were few people around the coast, it was almost certain that the interior was empty. It was uninhabited, it was literally a land without owners, a terra nullius. Not because the people there weren't in possession, but because there were no people in most of the country.

But ideas about Aborigines changed rapidly once the settlers arrived in Australia. The first idea to go was that the country was uninhabited. From the time the British arrived in Botany Bay they discovered far more people than they had expected. This can be seen in all the early journals. There were also people in the interior. Phillip was surprised when he say smoke on the Blue Mountains. And in each expedition into the interior there is this sense of surprise. The Europeans wonder how it is they can feed themselves, because they assume that it's only by fishing that people could sustain themselves in Australia. When Phillip first goes into the interior and finds a camp fire he pokes around in it looking for fish bones but fails to find any. By the 1830s there is an understanding that Aborigines are everywhere. There is no uninhabited territory. That's the first, and perhaps most important idea which undergoes significant change. Secondly, there is a growing understanding of the nature of Aboriginal land ownership and tenure. The assumption has been that the early settlers didn't understand about Aboriginal relations to land. They may not have appreciated that as it is today, but they understood a great deal about Aboriginal relationship to the land. Within a few years of 1788 they had come to these conclusions:

(1) The Aborigines lived in relatively small districts with fixed, known and recognised boundaries.

(2) Although the food quest took them in many directions they had 'fixed locations'.

(3) They defended their land against trespassers, and movement across boundaries demanded diplomatic protocol, which the Europeans witnessed and described.

(4) They enjoyed their land. They identified with their districts, and took their names from them.

In other words, the first settlers knew very quickly that the Aborigines were in possession of their land, as that term was understood both in international and domestic law. It was this sort of understanding, I believe, which led Governor King in 1808 to tell his successor, Bligh, that he had 'ever considered the Aboriginals the real proprietors of the soil'. That was the logical conclusion to be drawn from everything the Europeans had learnt in the first twenty years of Australian settlement and that sort of understanding about land ownership developed further.

By 1830 considerable knowledge about Aboriginal society had accumulated. Explorers, settlers, missionaries, all lived with and worked closely with Aboriginal groups, and they left descriptions of their relationship with land. 'In short,' John Dunmore Lang explained to English missionaries, 'every tribe has its own district, the boundaries of which are well known to the natives generally.' Governor George Arthur of Tasmania observed: 'Each tribe claims some portion of the territory, which they consider peculiarly their own.' George Grey, Governor of South Australia, believed that every Black knew the limits of his own land and could point out the various objects which mark his boundary. The Quaker missionary, James Blackhouse wrote: 'Though the mode of holding property different among the Aborigines of Van Diemen's land from that used amongst English people, yet they had their property. Each tribe was limited to its own hunting ground, and into such hunting grounds the island was divided.'

Such views were widespread in the Australian colonies by the 1830s. There were certainly people who argued to the contrary, but informed opinion was quite clear on the matter in both Australia and England. Perhaps the most significant indication of the degree to which this understanding of Aboriginal relationship to the land had reached the centre of Imperial government came in a memo by James Stephen, the most important colonial officer at the time, written to his superior in 1840: 'It is an important and unsuspected fact,' he observed, 'that these tribes had proprietary rights in the soil, that is, in particular sections of it that were clearly defined and well understood before the occupation of their country.' That is a very important memo-a single sentence, one of the most important sentences ever written by Europeans about Aboriginal society.

The understanding that the Aborigines were the prior owners of Australia was extremely important, and that had also become widely accepted by the 1830s. A book written about Port Phillip in 1840, for instance, noted the Aborigines were a people 'whose priority of proprietorship is on all sides acknowledged'. It is quite clear that very few people thought Australia was a terra nullius by 1830. They might have thought that in 1788. By 1830 informed opinion had changed. A selection of contemporary comments will make this clear. 'The settlers had plundered them of their property'; 'invaded the territory of the New Hollanders'; 'taken possession of their native soil'; 'usurped their territory'; 'usurped the rights of others in possessing ourselves of their land'; 'robbed them of their land'; 'taken forcible possession of their rightful properly'; 'despoiled them of their country'; 'deprived them of their land'; 'taken their rights of birth'. Such comments also appear in official documents. The significance of this has, I think, been overlooked. Thus in a despatch, Lord Glenelg said that sovereignty had been assumed 'over the whole of their ancient possessions'. No terra nullius there!

Governor Gawler of South Australia in a despatch to England in 1840 observed that 'from time immemorial they had distinct, defined and absolute rights of proprietary and hereditary possession'.

The historians have been aware of many of these comments but haven't realised the legal implications of what was being said. If it was officially accepted in the 1830s that the Aborigines were the original owners of the soil, how and when did they lose that status? How did it happen? There is absolutely no explanation in law in Australia as to how it could happen. They were British subjects. The English law was more concerned about rights of property than life itself. The common law strenuously defended the rights of property against the Crown. How could the Crown get the property of the Aborigines? And what's more, when could it have happened? That's why those views of the 1830s are so important. They put the onus on the traditional legal view to come up with an explanation of how and why the original possessors of the soil ceased to be the original possessors of the soil.

That question was discussed in 1849 in the case of Attorney-General v. Brown, when the lawyers for the defence put the view that the Crown couldn't prove that it owned the land, and in trying to explain this the Solicitor-General said the settlement of Australia was rather like the invasion of England by William the Conqueror. Now that was an extraordinarily inept attempt by the law officer of the Crown to explain this problem. The traditional Australian legal view rests on the assumption that either Australia was uninhabited in 1788 and the law went on saying that for another 100 years and more, long after everyone knows that's nonsense, or the view is that the Europeans were the first possessors and had the legal strength of that position. Either view seems to me to be deeply flawed, and virtually insupportable in any realistic sense. The traditional legal view, apart from having these enormous problems which have simply been unexplained for 200 years, is that on the instant of settlement every inch of territory became the property of the Crown. What evidence is there that that was the situation? The Act which set up the courts in New South Wales, Phillip's commission and Phillip's instructions only say that Phillip was given the sovereignty in and over New South Wales and the right to grant land. Now that doesn't seem to be to be sufficient to say that all the land became the property of the Crown. Indeed, it may merely have been that the Crown was to use that element of sovereign power, called Eminent Domain, to grant land in small portions around the settlement, leaving the Aborigines in occupation of the rest. There seems to be nothing in the documentation to justify the assumption that the law has always made.

But can we find later comments from legal officers, which suggest that this was the view even in retrospect? Once again, there seems to have been a good deal of confusion. In 1819 the British Crown Law Officers determined that the colony had been annexed as a desert and uninhabited territory. But they referred to 'that part of New South Wales possessed by His Majesty'. Now that may have been a slip of the pen. But if you take it literally, it means that some of New South Wales was in the possession of His Majesty, but some of it wasn't. That would accord with the reality of the situation. The British had sovereignty but they didn't 'own' all the land. The same question arose when the Colonial Office was dealing with the South Australian Colonizing Commissioners, and in both an official letter and an internal memo the issue was addressed-whether the claim of 1788 gave both sovereignty and property. Lord Glenelg writing to the Commissioners explained that he was concerned about the extent of the proposed colony because as planned 'it would extend very far into the interior of New Holland and might embrace in its range numerous tribes of people whose proprietary right to the soil we have not the slightest grounds for disrupting'. Clearly, Lord Glenelg knew that the claim of sovereignty covered the whole of Australia by then. But he didn't assume that that gave the Crown the proprietorship of the land. In the internal memo James Stephen dealt with the problem of fixing the boundaries of South Australia. 'How this can be done,' he commented. 'in a terra incognito I cannot imagine. Or how it can be done at all with any due regard to the rights of the present proprietors of the soil.'

Thus the leading expert on colonial law, the future Under Secretary of the Colonial Office referred to the Aborigines as the 'present proprietors of the soil' in territory where British sovereignty was unquestioned. The traditional legal view can only be sustained by ignoring facts like these. Ultimately it rests on the assumption that Australia was desert and uninhabited. It was a view that couldn't be sustained against objective reality in the 1830s. The surprising thing is that so many people still try to sustain it today.