Month: June 2020

Mabo and the real Terra Nullius myth

~ Jessica Savage ~ 4 Comments

When we talk about the “myth of terra nullius“, this is normally understood to mean that in the past, Australia was erroneously claimed to be a terra nullius upon discovery by the British. And this myth was the basis of settlement of the colonies. The error of terra nullius was rectified by the High Court overturning it in 1993.

But this is a myth in itself.

The Crown never explicitly claimed Australia was a terra nullius. There was also no declaration of war to legitimise Crown conquest and there is no treaty. The Crown, with it’s honorable nature, would never illegally invade, genocide and dispossess other nations to claim sovereignty over their territory, right? So by deduction, the only way the Crown’s claim can be legitimate is if the Australian territory was a terra nullius upon discovery.

It’s a retrospective inference of convenience, not an explicit claim. It’s often claimed that terra nullius derived from the Bourke proclamation, and that it was overturned in the 1993 Mabo ruling. I am going to break down the history here and show that is a distortion of the truth.

Timeline of terra nullius

Here is a timeline of events that I think were important in the development of the terra nullius myth.

In 1823, in a landmark case in the United States, Johnson v. M’Intosh held that private citizens could not purchase lands directly from Native American tribes. This ruling drew from the right of preemption from the Discovery Doctrines. The right of preemption means that when a European claims ‘discovery’ over a land in the right of their Crown, that Crown gains a preemptive right; or in other words – an exclusive right, to treaty or purchase in that discovered land. It does not grant automatic sovereignty. All it does is remind other European powers of their agreement to stay away from each others ‘discovered’ territory. This rule was to benefit to European discoverers, it meant that they would not waste expense fighting with each other, and could concentrate on dominating non-Europeans and conquering new lands. more info on Johnson v. M’Intosh here

26 August 1835 was the date of the Bourke proclamation. This implemented some of the findings of Johnson v. M’Intosh in the laws of the Colony of New South Wales. It affirmed the Crown’s right of preemption. It invalidated the Batman treaty, just as Johnson’s attempt to purchase land directly from the Piankeshaw Indians was found invalid.

The Bourke proclamation applied to New South Wales – which did not have the same boundary as today. At the time, New South Wales extended north to Cape York, west to 129 degrees (current WA border), and included part of New Zealand’s north island. It did not include Van Diemens land (Tasmania), Western Australia or the Torres Strait Islands.

I think the northern islands and Western Australia were not under a similar Proclamation because the British knew well they had a shady claim over these Dutch-discovered territories from the Anglo-Dutch Treaty of 1824, and therefore had no right to make such a proclamation. Van Diemens Land was probably excluded because the colony was already progressing very well in completely wiping out the Aboriginal people.

Also note that Mer (Murray Island) where Koiki Mabo is from, was also never part of New South Wales and therefore never under this New South Wales proclamation. Mer was annexed by the Colony of Queensland in 1879.

The Bourke Proclamation established the Crown’s right of preemption, but that is not the story we hear today. We are told that it implemented terra nulius.

The Proclamation of Governor Bourke implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown taking possession of it. Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown.

Source: http://www.migrationheritage.nsw.gov.au/exhibition/objectsthroughtime/bourketerra/index.html

The Bourke Proclamation does not say that there are no Aboriginal people, or that Australia was a no-man’s-land. On the contrary; the proclamation would not make any sense if it were truly a no-man’s-land, as there would be no people that settlers could buy land from and therefore no need for such a declaration. Here is part of the actual proclamation (emphasis added for skim-reading);

Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, I, the Governor, in virtue and in exercise of the power and authority in me vested, do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, as aforesaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission; that is to say, extending from the Northern Cape, or extremity of the Coast called Cape York, in the latitude of ten degrees thirty seven minutes South, to the Southern extremity of the said Territory of New South Wales, or Wilson’s Promontory, in the latitude of thirty nine degrees twelve minutes South, and embracing all the Country inland to the Westward, as far as the one hundred and twenty ninth degree of east longitude, reckoning from the meridian of Greenwich, including all the Islands adjacent, in the Pacific Ocean within the latitude aforesaid, and including also Norfolk Island, is void and of no effect against the rights of the Crown; and that all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.

The Bourke proclamation also applied to part of the north island of Aotearoa which was then part of the Colony of New South Wales. Waitangi is located in this area of proclamation. So – how could the Crown treaty with natives at Waitangi, if Waitangi was declared a terra nullius in the Bourke proclamation? Clearly, the Bourke proclamation did not claim terra nullius.

Moving on from the Bourke proclamation of 1834.

In October 1835, northern Maori declared independence with the help of James Busby. I think James Busby was acting for the Crown, and this declaration of independence was the first step in getting Maori governance formalised in order to facilitate a treaty. The British were worried about the French being first in making a treaty with the Maori. They were probably also worried about the Johnson v. M’Intosh precedent, as Pakeha were already buying (and stealing) land off Maori.

1838: In New South Wales, the office of the Protector of Aborigines was established pursuant to a recommendation contained in the Report of the Parliamentary Select Committee on Aboriginal Tribes, (British settlements.) of the House of Commons. The office of Chief Protector of Aborigines was established in some states, and in Queensland the title was Protector of Aboriginals.

10 June 1838 The Myall Creek massacre. What followed is was what I think was a show-trial to demonstrate to the outside world that the colony of New South Wales were doing their part ‘protecting’ the natives. But in reality, there were literally hundreds of other massacres going unpunished, and in some cases led by colonial officials.

15 June 1839 A new Letters Patent was issued to expand the territory of New South Wales to include the whole north and south islands of New Zealand. Before that, New South Wales was only part of the North Island (cut by a line the latitude of Wilsons Promontory).

6 February 1840 Treaty of Waitangi was signed. Part of the treaty was that the Crown agreed to “protect” the Maori. The idea is, that Maori get protection from the French invading them, and the British Crown gets exclusive settlement on their land. This gives an idea as to why the Aboriginal Natives back on continental New South Wales also need “protection”. Protection is supposed to be a benefit gained in exchange for surrendering land. This explains why the Myall Creek show-trial was necessary, it added a (fake) stamp of legitimacy to the Crown’s land acquisition in continental New South Wales.

Putting these events all together, what happened is that the Crown took the land and paid for it with “protection” services, rather than negotiating a treaty. And “protection” was redefined as hunting us down and institutionalising us. It is absolutely criminal.

The overturning of terra nullius

The so-called ‘overturning of terra nullius’ in 1993’s Mabo 2 case never really happened.

Firstly: Mer (Murray Island) was never subject to the Bourke proclamation. If the Bourke proclamation really implemented terra nullius, it is not relevant to the Mabo case.

Secondly: Even if terra nullius were claimed – it would be a Crown claim in International law. Only the Crown can overturn it’s own claim. Only an international court could rule that claim to be invalid. The High Court of Australia doesn’t even have the jurisdiction to question the Crown’s acquisition of sovereignty. So it is ridiculous to claim that it can overturn a Crown claim made in International law.

So if Mabo 2 didn’t “overturn terra nullius”, what did it do?

What Mabo 2 did was overturn the Crown’s right of preemption. The Commonwealth governments are now acting rogue, like Johnson or Batman, doing their own land ‘purchases’ (Indigenous Land Use Agreements). (* edit – since I wrote this post I have dug deeper and found the relevance of Pratt-Yorke) More recently, they are starting to justify unilateral extinguishment of Native Title. The recent Timber Creek compensation case set a precedent that makes it profitable for States to extinguish Native Title if they find a third-party to offload at the right price. Queensland recently extinguished Native Title for Adani. There is now no way within the colonial system to say ‘no’ to having your land taken. The way things are going, all Native Title will eventually be extinguished.

The States are also now preparing to start “treaties” recognising (usurping) sovereignty, just like they recognised land title.

The overturning of the Crown’s right of preemption paved the way for Australia to treaty directly with First Nations. It’s an essential step towards usurping both Aboriginal land and sovereignty. The only way out now is to assert sovereignty and work outside of the Australian system and to look internationally.

Image by S. Hermann & F. Richter from Pixabay

1999 Referendum: Why

~ Jessica Savage ~ 2 Comments

The 1999 referendum question looked a lot different to the 1967 referendum, however both referendums had an overlapping goal, to fix the “aboriginal problem”. The overlooked, ‘missing piece’ that links the two referendums is changes to UN decolonisation rules that happened in 1970.

The attempt at integration of “Aborigines” in the 1960’s; under the UN rules at the time, would have been successful if original peoples did not contest it, and they integrated into mainstream Australian life. I suppose Australia thought that would eventually happen and all would be ok.

But the UN Decolonisation rules changed in 1970 with the passing of General Assembly Resolution 2625 – the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. This resolution put a spanner in the works for settler-colonial states.

This change in the rules was needed because of the problematic way decolonisation was happening in southern Africa. In 1965, the British colony of Southern Rhodesia declared a Unilateral Declaration of Independence to become Rhodesia. But it was the white settler-minority who voted for independence – they excluded the indigenous Africans, creating what the UN called an “illegal racist minority regime”. Rhodesia was heavily sanctioned by the UN because of this. South Africa was also a foreign-white-minority ruled apartheid state at this time.

Keep this historical context in mind. Resolution 2625 passed in 1970 had a section entitled The principle of equal rights and self-determination of peoples. This included rules to make sure a settler-colonial occupation cannot simply declare independence over a territory without the indigenous population on-board.

Here is a part of this section of the resolution;

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

A/RES/2625/XXV

This section is a thorn for settler-colonial states, and something they have made a staggeringly huge effort to work around. It is no accident that there is a section of text very similar to this in the UNDRIP. If you compare the texts side-by-side it becomes clear what is going on. In the hands of settler-colonial government agents – UNDRIP is a tool used to re-frame this external right to self-determination for colonised peoples into an internal right of self-determination for indigenous peoples. I believe the entire international “indigenous rights” movement is an exercise to aid settler-colonial states, not indigenous peoples. Please consider NOT using UNDRIP as a tool to advocate for your rights, because your international political status must be addressed before any discussion of domestic ethnic minority rights.

What this section in resolution 2625 effectively means is two things;

  1. The Aboriginal and Torres Strait Islander Peoples retain a status separate and distinct, retaining the right to self-determination (including option of independence) until they themselves exercise it. This means that it is a risky move for Australia to declare independence without bringing the original peoples along, because the original peoples could later declare independence separately, thus contesting the declared independent Australia. I think this is why Canada ‘patriated’ their constitution in 1982, and the reason for the Australia Acts 1986; bizarre gymnastics – because declaring independence is risky, so they do the closest they can.
  2. For settler states to become independent they must be possessed of a government representing the whole people, and thus including the peoples with the special status. It also means that a settler-state is vulnerable if it does not possess such an inclusive government. In Australia, the peoples of the land are not represented in the constitution; neither is there a treaty agreeing that the Australian government represents them. Other settler-colonial states with treaties may or may not meet this criteria, it would depend on detail in the treaties. This is why the 1967 crossing out of “except for the aboriginal race in any State” doesn’t fix the problem anymore under the 1970 rules. The Australian government still does not represent the original peoples.

The 1999 referendum and peripheral activities were an attempt to do the following;

  • Recognise symbolically that the Australian government represents the whole people – (so needs to include Aboriginal and Torres Strait Islander Peoples).
  • Build the requisite aboriginal decision making institution (ATSIC) that can exercise the right to self-determination and choose independence as part of Australia.
  • Re-enacting the constitution (into a home-grown/autochthonous one, and not a colonial one) and becoming a republic.

From the Australian point-of-view, these things solve the “aboriginal problem” in an external sovereignty sense. These points still need to be addressed to this day; and are all addressed in the Uluru Statement reform package to the benefit of the coloniser.

The catalyst for reform

The First International Decade for the Eradication of Colonialism (1990 – 2000) was likely the catalyst for the 1999 referendum. The UN decided they were going to make a burst of effort progressing the 30-year-old Declaration on the Granting of Independence to Colonial Countries and Peoples. You can imagine that settler-colonial countries would feel eyeballs on them, as they are colonies with unfinished business.

The land rights movement and grassroots activism also contributed a lot to keeping the pressure on.

The decade coincided with the life of the Council for Aboriginal Reconciliation and the formation and dismantling of ATSIC. If you keep Australia’s international goals in mind, you can see a lot of things that happened domestically in the 90’s were directly related to these goals. This will be covered in a future post I will write – “1999 Referendum – How”.

Title image by Gerd Altmann from Pixabay