Harring, Sid --- "Book Review - Waterloo Creek" [1992] AboriginalLawB 54; (1992) 1(59) Aboriginal Law Bulletin 14

• Book Review – Waterloo Creek

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Book Review –

Waterloo Creek

by Roger Milliss

McPhee Gribble, Ringwood, Vic.,

1992, 1992,965 pp.

Reviewed by Sid Harring

The history of Aboriginal/white contact in the colonial period has been substantially rewritten in the past two decades. Beginning with the work of C.D. Rowley and Henry Reynolds, what now amounts to several dozen works make clear both the magnitude of the white attack on Native people - in terms of its widespread scope and its level of violence - and that Native people with considerable imagination, humanity, and resources made a determined effort to protect and defend their traditional societies.[1]

This history has great meaning in Australian law and culture, as the nation still has not struck a satisfactory accommodation between the two peoples, and historical factors will play a large part in determining that future relationship. The High Court in the recent Mabo decision took a number of pages to specifically reject a legal doctrine of term nullius that had essentially been inferred from Australian history.[2] Because the colonists had occupied Native land without any formal legal process, and the colonial government had simply allocated lands to squatters and settlers without reference to Native title, Australian courts had previously inferred that Aborigines had no land rights.[3] Yet the Court might just as validly have inferred the existence of traditional land rights from the fact of Native resistance to white encroachments. Native people fully acted as though they owned the land, every bit as consistently and aggressively as the colonists.

Waterloo Creek is the best account to date of colonial Native policy in the critical years of the 1830's and 1840's when the current outline of Aboriginal/white relations in Australia were fully established. It is a very good history, written on an epoch scale in the rich and complex detail it requires. While in some ways this scale becomes one of the book's problems - including notes it nuns dose to 1000 pages-it is clear that to accurately account for the complexity of the process must take a lengthy analysis.

Roger Milliss, writes a history of colonial relations with Aborigines by juxtaposing the official and legal reaction to two separate massacres of Natives occurring a few months apart in 1838. Waterloo Creek, the killing of 300 Aborigines on Australia Day, January 26, by a party of mounted police and stockmen under the command of Major J.W. Nunn, was effectively covered up, as were thousands of similar official and quasi-official killings carried out by parties of mounted police all over Australia. The other massacre, better known in Australian legal history, was the Myall Creek killings of June 1838, carried out by a large party of stockmen. A number of these men, convicts and former convicts but not their leaders, were arrested, tried, and hanged for murder. These were the only whites hanged for an organized attack on Aborigines in Australian history.

The context of these events is rife with contradictions, integrally interwoven with some of the most important of colonial policy decisions. The whole question of the legal status of both Aborigines and land was being decided in the late 1830's in a context where anti-slavery reformers had significant influence in British Parliament and had raised important issues about Native rights in Australia, Canada, and other colonies. The Black War in Tasmania and the resulting destruction of the Tasmanian Aborigines had been an embarrassment to the colonial office with the whole matter - purely and simply genocide - generally acknowledged to be the fault of avaricious and unprincipled white settlers. Similar issues had been raised by events in mainland Australia, by the increasing cycle of violence against Aborigines in New South Wales, especially in the Hunter Valley and beyond, and the new settlements in the Port Phillip District, later to become Victoria.

Colonial policy toward Aborigines, their land, and their legal status, was wildly inconsistent, undeveloped, erratic, and opportunistic. Legal historians have applied almost every such label to the formation of Aboriginal policy, including "ambivalent" according to Alex Castles and "largely illusory" for David Neal (but not entirely illusory).[4] Barry Bridges argued more than twenty years ago that little thought was given to specific matters of legal policy, therefore the policy was developed a piece at a time, in response to particular problems or issues.[5]

All of this may be true, but there remains the important task of both better describing and more accurately characterizing the nature of the legal relationship between Aborigines and whites in colonial Australia. Milliss does not do this, for he is not specifically concerned with questions of law or legal history. But he does closely and carefully examine the voluminous body of colonial documents that begin to answer these questions, weaving the information he gathers into a convincing account of why Governor George Gipps went to great lengths to prosecute the Myall Creek murderers, even to the extent of trying them a second time after a jury acquittal on the first murder charge, while, at the same time he was both unwilling, and perhaps (but not clearly) unable to prosecute Major Nunn for murder for his part in the Waterloo Creek massacre.

Milliss' answer, addressing the issues on a number of levels, is convincing, but there is still more work to be done in understanding the relationship between the various elements of the explanation. The initial responsibility for the bloody colonial history of Australia must fall on the colonizer. Great Britain dearly had no grand colonial plan for Australia: it was a convict colony. Similarly, not only was no thought giver to the legal status or human rights of Aborigines but colonial administrators lacked the resources necessary to carry into force even the simple policy of protecting the lives of Native people set down by Governor Phillip. This alone, however, is not satisfactory for it explains the result in the negative: Britain could have done things differently, and the fact that it did not has legal meaning.

Two of Milliss' other explanatory themes are uniquely local and Australian. Other historians have pointed to the rise of local 'squatter' interests as critical in understanding the colonial abandonment of any protection of Aborigines. A powerful local, agriculturally based, political movement not only pushed for home-rule, but also for the opening of land to unrestricted settlement, with a specific policy of the violent displacement of Aborigines through 'dispersal', a euphemistic term for murder, by both mounted police and settler vigilantes. These interests won out - a process Milliss describes very clearly-and this policy was implemented.

Similarly, Australia had been a convict society, but as both Hirst and Neale have pointed out, it was a strange type of convict society.[6] Most of the convicts were substantially free, often hundreds of miles from authority. Convicts everywhere distrust authority and create their own world - sub-culturally even within the prison - but, in Australia, arguably creating a unique culture among convicts, ex-convicts, and free settlers who either sympathized with them, or were economically interdependent. Arguably this culture had an impact even on conservative free settlers who were strongly opposed to the greater recognition of rights for convicts. In any case, not only did Aborigines have no place at all in this cultural world, essentially a world of the uneducated (or minimally educated) English and Irish working class and lower middle class, but they came to be viewed with great fear and hostility because their interests were, in an uncontrolled way, posed against each other on the frontiers of Australian society. Thus, for reasons of both racism and economic self-interest, Aborigines posed a threat to this 'convict' culture that directly led to a deeply ingrained hostility to Native people, that in turn led to a secret, very deliberately concealed, campaign of extermination. Convicts, of course, were completely used to concealing their activities from their governors. For example, although a good portion of the prosecution strategy in the Myall Creek trials was aimed at turning some of the defendants into prosecution witnesses, none of them gave up their comrades, keeping silent to the gallows. Although at least twelve men were involved, no participant of the massacre ever revealed anything about the killings.

So, from the hangings of the Myall Creek murderers, Governor Gipps fell back to a simple cover-up of the Waterloo Creek murders. Major Nunn died in another colonial military adventure in India, probably killing as many Natives as he had killed in Australia. Australia had a "strange birth of colonial democracy" in the analysis of John Hirst, and moved through the nineteenth century with essentially no legal policy toward Aborigines and their land.[7] Milliss' book gives us a start at seeing how these issues were formulated in colonial Australia.

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[1]Rowley, C.D., The Destruction of Aboriginal Society, Penguin Books, 1983; and Reynolds, Henry, The Other Side of the Frontier, Penguin, Sydney, 1983 - are probably the best known of these works.

[2] Eddie Mabo & Ors v Queensland [1992] HCA 23; (1992) 66 ALJR 408.

[3] Milirrpum v Nabalco Ply Ltd and the Commonwealth, (1971) 17 FLR 141.

[4] Castles, Alex. C., An Australian Legal History, Law Book Company, Sydney, 1982, p522. Neat David, The Rule of Law in a Penal Colony, Cambridge University Press, Melbourne, 1993,p.78.

[5] See, for example, Bridges, Barry, 'The Aborigines and the Law: New South Wales, 1788-1855", 4 Teaching History, December 1970, pp.40-70.

[6] Hirst, J.B., Convict Society and Its Enemies, Allen and Unwin, North Sydney, 1983.

[7] Hirst, JB., The Strange Birth of Colonial Democracy, Allen and Unwin, North Sydney, 1988.