Reserved Seats in Parliament

August 30, 2021 ~ Jessica Savage ~ 1 Comment

Ever since the 80’s or maybe even earlier, there has been discussion about Aboriginal people having “reserved seats” in parliament. In this post I am going to write about what that means.

The Bicameral Westminster system

The parliamentary system in Australia is a bicameral system based on the Westminster system. Bicameral means there are two houses. In the British system, the two houses are called the House of Lords and the House of Commons.

The House of Lords consists of designated seats that represent the “Lords Spiritual” and the “Lords Temporal”. The spiritual lords are bishops of the Church of England. Temporal lords are chosen from the nobility. This is a closed, elite house. The House of Lords meets in a room with red upholstery and is also called the upper house.

The House of Commons is elected by the subjects. Commons because it’s for “commoners”, people from communities; Crown subjects. The House of Commons meets in the room with green upholstery and is also called the lower house.

I point out the red and green upholstery because it’s handy in telling them apart when watching them in action on TV. It’s also something that has been replicated in other countries such as Australia, India and Canada.

Bicameral Australia

In Australia this two chamber system has been replicated, but it works differently. The Senate is the red house equivalent to the House of Lords, and the House of Representatives is the green house equivalent to the House of Commons. The way these houses work is set out in The Commonwealth of Australia Constitution Act aka “the constitution”.

Reserved seats in the Constitution

Each State in Australia has a number of “reserved seats” in both the Senate and in the House of Representatives. The number of seats each state has, and formulas for changing that number was agreed to at the time of federation. Unlike in Britain – where the House of Lords is chosen by membership of special nobility classes – the seats in Australia are all by popular election by people of each State. They are all “reserved seats” because every seat is allocated to a state or territory.

The Uluru Statement is a request for a new federated entity for “First Nations”. This is much like a new state. As a new state is being proposed, there is a chance for this new state to have it’s own “reserved seats” – just like other states already have. That means – Aboriginal-only seats in the Senate and in the House of Representatives. When you hear someone talk about “reserved seats for Aboriginal people” – this is an indicator that federalism of an Aboriginal state is on the cards. “Reserved seats” have been discussed for a while, perhaps since the 80’s.

When a new state is established, it is up to Parliament to determine the extent of representation of the new State;

121 New States may be admitted or established

The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.
Commonwealth of Australia Constitution Act

The newly proposed State can make an offer along the lines of – “we will only join the Commonwealth if we can have x number of seats”. Parliament can then say yes or no. So it’s something that is determined between the parties at the time of admission.

The initial numbers of reserved seats upon a state’s accession to the federation is important, because the initial numbers put a floor on representation as they cannot be easily changed later – see section 128;

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
Commonwealth of Australia Constitution Act, section 128

This is why it is critical that the extent of representation in the Senate and in the House of Representatives for a new state is set clearly up-front. This is not what is happening in the case of the Uluru Statement – as zero “reserved seats” were requested in the Uluru Statement “take-it-or-leave-it” offer. At the end of the day – there will be no reserved seats – because there was no minimum set in the original offer. If Aboriginal people want reserved seats, the Uluru Statement needs to go in the bin, and a new offer that has minimum seat numbers needs to be put in it’s place.

How could reserved seats work?

Firstly a disclaimer – as long as the Uluru Statement sits on the table – to even discuss reserved seats is a waste of time – because reserved seats will not be protected under the current proposal (due to contract law technicalities and the way the offer was made). But if an alternative proposal were to replace the Uluru Statement – here is some food-for-thought.

Authentically mirroring the Westminster system

If the Westminster system were faithfully replicated in Australia, the Senate would be the equivalent of the House of Lords. Like the House of Lords; it would consist of spiritual leaders and hereditary land owners. In Australia, that would mean Law-women, Law-men, and Traditional owners. The whole Senate would be Aboriginal and Torres Strait Islander; and I don’t mean in a racial sense – but persons with a deep connection to lore. I’d imagine that everyone in the Senate would be traditionally initiated, and a good proportion of them would be from specific bloodlines. It may include persons without bloodlines if they have gone through lore and are accepted; this would depend on what the lore itself allows. The Senate would not be popularly elected, but appointed through Aboriginal traditional means. The House of Representatives could remain much the same as it is now to represent settlers. Of course, it will be a cold day in hell before any colonial muppet would suggest such a thing. But this is something that is reasonable and has precedent when you consider at how the traditional Westminster system works. Scratch the Senate – replace it with a Black “House of Lords” that runs under traditional lore.

Alternatively, federalism with reserved seats can be a solution.

Federalism of First Nations as a new state is not the worst idea in the world – it is more devil in the detail of the Uluru Statement itself that is the problem. If First Nations were to become a New State – at bare minimum there should be a similar reckoning of representation in seats as other states. Every Aboriginal person can only vote once, because each person should belong to only one state – eg. if they vote for reserved Aboriginal Senate seats, they cannot also vote for reserved Queensland Federal Senate seats. If the Voice actually happens – double-voting will be it’s downfall. Australians will bitch and moan endlessly about “the aboriginals” voting twice. This is impossible to argue against.

Australians have their set ideas about what a real “state” is – and they will not see First Nations as a true state because of it’s lack of defined territory. Non-territorial federalism is doomed without broad ‘expectation management’ and education about the First Nations state, and this education is not happening. Another reason why “Land back” should have been included. Average Joe understands Michael Mansell’s proposed “seventh state” because it has land, but Average Joe sees the landless “Voice” as a racist third chamber, even though the Voice and the seventh state are basically the same thing.

The main “pro” of reserved seats is that it allows keeping key functional parts of a system that most people are familiar with. Familiarity means certainty and stability.

The main “con” is that creating reserved seats is trying to Macgyver a system that was built on our destruction. Another major con is that it is assimilatory by nature for us to be represented in Parliament at all.

Bigger changes are needed

My own idea is that there needs to be much larger changes if a Macgyver/retrofit approach is to happen. They would at minimum include setting boundaries on government power, because there is little restriction on power as it stands now – they currently walk all over us with impunity.

There needs to be last-resort discretionary veto power held by traditional law holders – whether it be an elders council, or a position similar to the a non-executive Head-of-State role. We should absolutely have some form of veto powers to make up for more than two centuries of illegal occupation. The Crown and the Governors/Governor-General have always held such powers, and having a symbolic head of state with extensive reserve powers is common in many countries. It is hypocritical to deny us veto on one hand, and yet boast in preambular statements (eg. in State constitutions) about respecting the value of our traditional and sacred connection to land and waters. Reserved seats or an advisory-only Voice alone are not enough.

The Invention of Australia (Part 4: Matthew Flinders)

August 22, 2021 ~ Jessica Savage ~ Leave a comment

Flinders is most famous for his circumnavigation of Australia with his cat, but I’m going to break down what I think is the most important things he did in terms of colonial strategy. I think this is interesting because it goes some ways to show how colonial explorers are not randomly meandering about – but are playing a chess game with their competitors.

Flinders did the following;

1798 – charted Bass Strait and charted detailed parts in Van Diemen’s Land/Tasmania
1801 – charted the unknown south coast (Great Australian Bight + more)
In August 1802 discovered and named Port Curtis
Charted the north coast of New South Wales up to a point at approximately Melville Bay and Point Dundas.
Championed the name “Australia” to apply to the geographical land-mass he circumnavigated – on which the political territories of New South Wales and New Holland are situated

There are specific areas explored by Flinders with extra detail. I’m going to break down why these areas were of focus from a strategic point of view.

1. Van Diemen’s Land and Bass Strait

Flinders explored certain areas in the area of Van Diemen’s Land and the Bass Strait in finer detail. These are Port Darlymple (where Georgetown was later established), Fredrick Henry Bay (around Hobart area) and Wilsons Prom (on mainland).

See full high-res chart with interactive tools to zoom-in here: https://search.sl.nsw.gov.au/permalink/f/lg5tom/SLNSW_ALMA21113567270002626

The detailed places lie at similar longitudes, all around 147 E. The map below shows 147 E (pink) in relation to the location of forts/settlements that were made shortly after Flinders’s exploration.

147 E is a candidate longitude for the Treaty of Saragossa demarcation line. This treaty is very old (1529); it was between the Spanish and Portuguese at the start of colonialism. It is a demarcation of the east and west hemispheres of the world. The Dutch became the successors of Portuguese possessions in the East Indies in a treaty* sometime around 1661 at the end of the Dutch-Portuguese war. Upon the treaty, this line became the eastern limit of the Dutch East Indies. Was New Holland part of Dutch East Indies? You could possibly argue that it is. If so, this line would form the western extremity of New Holland. That is why Flinders paid special attention to these areas. He was exploring the “Dutch border”. The British established forts in these borderlands shortly after.

*(I’m still yet to locate the exact treaty as it applies to the East Indies, there were multiple treaties to end this war. This is an important document to track down.)

Flinders also explored Wilson’s Promontory in detail, which also lies near 147 E on the southern extremity of the mainland.

The latitude of Guam (red line on map above) is also a candidate for the Treaty of Saragossa line. Guam is part of the Mariana Islands which was also used as a landmark to reckon the demarcation of the Treaty of Saragossa. Flinders also charted in detail Port Phillip Bay (Melbourne), which is at the same longitude of Guam. The British then put the Sullivan’s bay settlement in Port Phillip Bay on the Guam line, even though it was a very poor site. Here is an example of how settlements are often put in stupid places, because colonisers are going off raw coordinates (or previous discoveries, or old treaties) to strategically out-do other European colonial powers, with secondary regard for practical matters such as availability of fresh water and other essential materials.

One other note is that Flinders has marked Fredericks Henry Bay on his charts. Now – there is a bay that Tasman called Fredericks Henry Bay – but this is not it. I don’t know why Flinders did this – perhaps he made a mistake, or it was to sow confusion as to later discredit Tasman’s landing and Dutch claim. Tasman’s charts are at first glance already confusing, but when you consider Tasman was blown out to sea in a storm mid-charting that confusion is eliminated.

2. The south coast

The south coast was uncharted, even though NSW was already proclaimed up to 135E (half the continent). This was a problem for the British, and the charting of the coast by Flinders helped to forestall competitors claiming it. The French explorer Baudin was hot on Flinders’s heels. Flinders filled in the gap in the map.

Pre-Flinders chart 1787 showing the missing southern coast. Flinders filled in the gap. Source: http://gutenberg.net.au/mapsandcharts-sea.html

3. Moreton Bay, Hervey Bay and Port Curtis

I’ve put a ‘strikethough’ of this section because I’ve got some new ideas and I’ve done some new, more precise calculations on Flinders and his exploration of Moreton Bay and Hervey Bay.

I’ll write something up soon – but briefly – Redcliffe/Pumicestone River/Passage lie half way in latitude between Cape York and South West Cape in Tasmania. Hervey’s Bay/Hervey Bay lies half way in latitude between Cape York and Wilsons Prom.

Take the northern most latitude of the original New South Wales (Cape York) and the southern most latitude (South Cape, Tasmania) and find the half-way point. Draw a theoretical border there for “North Australia” (26 S – about Tin Can Bay, current northern border of South Australia). This latitude is also a symmetric coincidence, as it is close to the latitude of Australia’s western-most point in Shark Bay. The idea is – if the Dutch put up a fight, let them have the north half or the west half – and the British can keep the south or the east. Now search either side of the proposed northern border to find good east-coast ports for a sacrificial northern capital (Port Curtis), and/or for a port to mark the north of British territory in case of a north/south split (Redcliffe). The British were in a process of preparing for potential halving or quartering of the land-mass in a war with the Dutch.

Flinders was scouting for a strategic port and settlement. He started with a 1799 expedition of detailed exploring of Moreton Bay (including naming Redcliffe) to Hervey Bay. On Flinders’s later 1802 expedition – Port Curtis was discovered as a decent place for a harbour. Port Curtis later became the capital of the annulled colony of “North Australia“. This is the same Port Curtis that Cardinal Moran claimed Quirós discovered.

In the end, the idea of “North Australia” was reinvented to become Queensland and was extended slightly southwards to incorporate the already established Moreton Bay settlement as capital. The Moreton Bay settlement initially began at Redcliffe not long after the 1824 Anglo Dutch treaty. The British then waited-out the settlement date of the treaty before moving it up a river to present day Brisbane.

4. Charting the northern coast of “Australia”

Flinders circumnavigated anti-clockwise and more or less stopped charting the north coast purportedly due to ship problems. These problems were found at approximately the 135 E meridian limit of New South Wales, which makes it seem like a cover reason for not stepping too far into New Holland. He did not publicly identify “Melville Bay” as an island, and he named Port Dundas. I don’t think the Dutch knew it was an island either, it looks connected on all of their charts.

A few years after Flinders, in 1817-1818 Philip Parker King identified Melville Bay as being an island, but his work was much less well known than Flinders. The knowledge that Melville Bay/Melville Island is an island played a very important role strategically during British actions after the 1824 Anglo-Dutch Treaty. Gordon Bremer claimed the north coast of Australia to 129 E degrees whilst standing at Port Essington with the knowledge that is on the mainland, he then moved on to Melville Island to set up the Fort Dundas settlement.

5. Giving the name “Australia”

One of the most significant things Flinders did was championing the name “Australia” to apply to the continent of New Holland. The interesting thing about this name is the similarity to the name of Australia del Espiritu Santo. Where did Flinders get the name from? I think Flinders may have been largely inspired by Darlymple’s book “An Historical collection of the several voyages and discoveries in the South Pacific Ocean“. In the book’s introduction, Darlymple set the groundwork by suggesting a new partition of the world “comprehending the discoveries at a distance from America to the eastward” be called Australia. “To the eastward” must mean in the eastern hemisphere (just beyond the ‘Spanish lake’ Pacific Ocean), as Australia is west of America. The name Australia eventually caught on.

Image by Rick Brown from Pixabay

The Invention of Australia (Part 3: Port Curtis and the Cardinal)

August 20, 2021 ~ Jessica Savage ~ 1 Comment

.In 1906, the Roman Catholic Archbishop of Sydney, Cardinal Moran published a book called ‘Discovery of Australia by De Quiros in the Year 1606‘. In this book, Moran puts forward a hypothesis that the bay of Quirós’s New Jerusalem is not Big Bay in Espiritu Santo, but in Port Curtis in Gladstone, Queensland. His main argument relates to the size of the bay as described by Quiros – that Espiritu Santo’s Big Bay is not grand enough.

One of the strongest pieces of evidence to the contrary of Moran’s hypothesis is Prado y Tobar’s map. Port Curtis looks nothing like it.

Moran discounts Prado y Torbar’s map as being vindictive – a result of the fallout with Quiros.

The map of the newly-discovered land, which was drawn by Diego de Prado y Tobar […] unmistakably presents to us the Santo Island. […] [Prado y Tobar] pursued De Quiros with singular venom and undisguised hostility. […]All through De Quiros’s subsequent career we find that this offender pursued him with unceasing enmity. […] That Santo was one of the islands discovered by De Quiros is unquestionable[…]; but when Prado y Tobar forwards the map of Santo as proof that the statements of the captain regarding his discovery of the great Austral Land were without foundation, I cannot but regard it as an additional argument in favour of my contention, that Santo cannot be the grand Austral continent of which De Quiros speaks and of which he claimed to be the discoverer.

Moran’s idea is that Quirós, Torres and Prado y Torbar had visited Espiritu Santo, and then subsequently went to Queensland/Port Curtis where New Jerusalem was established. Prado y Torbar then labelled a map of Espiritu Santo as New Jerusalem in order to discredit Quirós. Moran gives many more arguments to support his view that Port Curtis is the site of New Jerusalem. I won’t go through all of them, but it is not a long book if you would like to read his arguments yourself.

I think it’s fantasy that Quirós landed in Port Curtis. The description of the natives having houses with palm leaved rooves surrounded by fruit trees, pigs, black sand beaches and earthquakes sounds like Vanuatu and not like Gladstone/Port Curtis. The latitude of Gladstone also does not match, but Espiritu Santo in Vanuatu is spot-on. Occam’s Razor = Quirós exaggerated. This idea of Quirós having landed in Queensland was even taught in Catholic schools for some time, and still inhabits corners of the internet.

Moran also writes;

Another common difficulty against the opinion which I have adopted recalls to mind the fact that hitherto every writer on the geography of the South Seas has regarded Santo as the Great Southern Land discovered by De Quiros. It cannot but be presumptuous, it is said, to advance an opinion contrary to such a consensus of expert writers.

Like I wrote in part one, terra australis incognita and Quirós’s discovered land had together become synonymous with the great southern continent in the minds of Europeans. But Espiritu Santo is only a very small landmass on a globe.

Moran has attempted to transplant the legend of Quirós’s great southern land and it’s terra australis incognita label to New Holland. He is not the only one to try.

What would motivate Moran to try to transplant Quirós’s discoveries to Queensland? Perhaps because he is Irish and Catholic. Early on in the New South Wales convict settlement the Church of England was the only church allowed to practice. Many Irish political prisoners were also Catholic and initially forced to go to Anglican services – which would have made them feel even more persecuted. It would be comforting for Catholics to find that Quirós (a Catholic) discovered and claimed possession of “Australia” for the Catholic Church.

Moran’s book in 1906 was proceeded by his writings in The Australian Catholic Record in 1895 covering similar arguments. Keep in mind here also – this hypothesis is coming out around the time of the federation of Australia. Given the different statuses of the colonies – and the colony borders being strategically drawn up seemingly in anticipation of threat from other European challengers, forming an ‘indissoluble federation’ at this time helps bind it all together. By identifying New Holland as Quiros’s terra australis incognita helps erase the words New Holland off the map to replace with a British federation of colonies.

In the 1890’s Queen Victoria was getting very old, and federation may also have been a way to make arrangements less chaotic on her passing which happened only a few weeks after federation. I can’t help but see parallels with the situation today, with the Australian Catholic University playing a central role in the Uluru Statement through it’s support of Uphold and Recognise, and an aging Queen putting the finishing touches on succession plans.

The Invention of Australia (Part 2: A timeline)

August 20, 2021 ~ Jessica Savage ~ Leave a comment

I tried to write a follow-up post to The Invention of Australia (Part 1), but I went down so many different rabbit-holes while writing part 2 that I have decided that I will make this post into a timeline, and then follow up with more posts going into these events in the timeline.

The main point I want to show here is that the British wanted to claim New Holland – which was already claimed by the Dutch. The terra Australis incognita became synonymous with the discoveries of Quirós due to his over-exaggerated and widely published accounts of Austrialia del Espiritu Santo; an island in Vanuatu. The British exploited this by conflating Quirós’s accounts and naming of the island with New Holland, and through the magic of words transformed New Holland into a British-owned “Australia”. “Captain Cook discovered Australia for the British” was the end resulting narrative.

It is good to see how this happened, because this narrative of “Captain Cook discovered Australia for the British” is now being dismantled, and very similar tricks are being used to construct the replacement narrative. The replacement is that Australia was settled 50,000 years ago by the “First Australians” coming across on a land bridge. It is just as warped as the story it replaces – especially from a political perspective as the so-called “First Australians” were never part of the Australian polity.

So here is the timeline, I will edit this as I go to add posts in this series;

1605-1606 Quirós/Torres Voyage (see PART 1)
1642 Abel Tasman’s voyage formally claims possession of Van Diemen’s Land
1762-1764 British occupation of Manila (Philippines) where Torres’ journals are stashed away
- Dalrymple goes through Manila documents, finds Torres’ account of the Torres Strait and Espiritu Santo
1770 Cook’s 1st voyage that “discovered Australia”. (see PART 1 about how he was looking for Quirós’s bay with two rivers.)
1771 Alexander Dalrymple releases book An Historical Collection of Voyages and Discoveries in the South Pacific Ocean revealing to wide audiences the existence of the Torres Strait – just after Cook has exploited that knowledge. Darlymple suggests using the term “Australia” to apply to a quarter of the globe (southern eastern hemisphere)
1773 Tobias Furneaux probably discovers the Bass Strait in a covert mission
c1800 Matthew Flinders suggests using the name “Australia” as a geographical term
1806 Torres’s account published with permission of Dalrymple by James Burney (English) in A Chronological History of Discoveries in the Pacific V2. This book uses the term Australia or Australia del Espiritu Santo to refer to the Vanuatu island, and uses the Great Terra Australis to refer to the New Holland continent.
1814 Flinders publishes his book A voyage to Terra Australis about New Holland
1824 Anglo-Dutch treaty leads to British expansion into New Holland. Moreton Bay settlement established at Redcliffe.
1832 “Western Australia” named
1876 Quirós’s journal published in Spanish (Historia del descubrimiento de las regiones austriales, Zaragoza/Luis de Belmonte Bernandez). This translation calls out earlier English translations of material (eg. Burney) in the footnotes for incorrectly spelling Austrialia as Australia.
1895 Cardinal Moran suggests Port Curtis as being discovered by Quirós
1901 “Australia”, the political entity formed. Queen Victoria dies
1904 Quirós’s journal published in English (Markham/Hakluyt society).

The Invention of Australia (Part 1)

August 13, 2021 ~ Jessica Savage ~ 2 Comments

The year of 1606

1606 was the year of the first sighting by Europeans of what’s today known as Australia. There were three things of interest that happened. They were;

Willem Janszoon (with the VOC Dutch East Indies) sailed a section along the west side of Cape York
Pedro Ferdinand de Quirós (under Spanish flag) discovered an island in Vanuatu
Luís Vaz de Torres (under Spanish flag) sailed through the Torres Strait

This blog post follows the consequences of point #2 – the discovery of an island in Vanuatu. You might be wondering – what does the discovery of an island in Vanuatu have to do with the discovery of Australia? The answer is – a lot!

The Vanuatu Island of Espiritu Santo

Quirós led the first European expedition that sighted the islands around Espiritu Santo in 1606. This is of special interest for me because my great grandmother was from one of those nearby islands. When I lived in Brisbane, I often went to Vanuatu. When I first went to Vanuatu, I was surprised to read in a travel brochure that Espiritu Santo is an abbreviation for “La Australia del Espíritu Santo“. My first thought was – why is there a Spanish-sounding island named after Australia? And why have I never heard of it?

Quirós named La Australia del Espíritu Santo on a 1605-1606 voyage to search for the theoretical southern continent. Luís Vaz de Torres was also on this voyage, but they left the island separately. On this expedition, Quirós founded a settlement in what is today “Big Bay” in Espiritu Santo. He called the settlement New Jerusalem.

Here’s Quirós’s description of the bay, and of it having two rivers;

The front of the bay, which is to the S., is 3 leagues long, and forms a beach. In the middle there is a river which was judged to be the size of the Guadalquivir at Seville. At its mouth the depth is 2 and more fathoms ; so that boats and even frigates could enter. It received the name of the “Jordan.” On its right is seen the Southern Cross in the heavens, which makes the spot noteworthy. To the eastward, at the corner of this bay, there is another moderate-sized river called “Salvador,” into which the boats entered at their pleasure to get water. The waters of both rivers are sweet, pleasant, and fresh. The one is distant from the other a league and a half, consisting of a beach of black gravel, with small heavy stones, excellent for ballast for a ship. Between the said two rivers is the port. The bottom is clean, consisting of black sand, and here a great number of ships would have room up to 40 brazas.
The voyages of Pedro Fernandez de Quiros, 1595 to 1606. Translated and edited by Sir Clements Markham

According to Torres who was on the last ship to leave, their presence only lasted 50 days.

We named it the bay de San Felipe y Santiago, and the land del Espiritu Santo. There we remained fifty days
Early Voyages to Terra Australis, now called Australia, Major, R. H. (Ed.)

It ended because of fighting with the Ni-Vanuatu people and infighting. The infighting was so bad, Quirós upped and left other ships behind in the middle of the night. The downfall of the settlement is a whole story in itself.

The bay of Quiros’ short-lived New Jerusalem settlement. Map by Prado y Tovar who was on the voyage. Prado y Tovar travelled-on with Torres through the Torres Strait. .

Quirós had taken possession of the lands for the Spanish crown. He also took possession for the Most Holy Trinity, the Catholic Church, St. Francis and his Order, John of God and his Order and the Holy Ghost.

The excerpt below is from “The voyages of Pedro Fernandez de Quiros, 1595 to 1606.” It was translated and edited by Sir Clements Markham, and published in 1904 shortly after the federation of Australia The introduction describes it as so – “This work is very rare. There is no copy in the British Museum. There was one in the Library at Lima.”

Possession in the name of His Majesty.
Finally, I take possession of this bay, named the Bay of St. Philip and St. James, and of its port named Santa Cruz, and of the site on which is to be founded the city of New Jerusalem, in latitude 15 10′, and of all the lands which I sighted and am going to sight, and of all this region of the south as far as the Pole, which from this time shall be called Australia del Espiritu Santo, with all its dependencies and belongings ; and this for ever, and so long as right exists, in the name of the King, Don Philip, third of that name King of Spain, and of the eastern and western Indies, my King and natural Lord, whose is the cost and expense of this fleet, and from whose will and power came its mission, with the government, spiritual and temporal, of these lands and people, in whose royal name are displayed there his three banners, and I hereby hoist his royal standard.

Quirós has discovered a this new land at latitude 15 10′ S. He seems to think that the land extends to the south pole.

The “Memorials”

After the failed settlement and returning to Europe, Quirós repeatedly wrote to the King because he wanted funding for further expedition. These letters are called memorials. There were at least 50 of them, but most have been lost. These memorials contain more information about Quiros’s voyages.

There is a bit of argument going on whether Quirós named this island Australia or Austrialia. My own opinion is that Quirós probably didn’t care either way. But as the British usurped the Dutch claim of New Holland partly by appropriating the name “Australia” – this later put an extra political dimension on the argument. I will write more about this in part 2 of this post. An interesting paper was written about this by Rupert Gerritson. Gerritson found and reproduced (below) the original in the Navy archives in Madrid. In the original proclamation – Austrialia has been edited to Australia as you can see in the image below…

This edit itself, when published, translated and transcribed differently – became a source of confusion.

Various texts to do with this 1605-1606 voyage sat in Spanish Naval archives (in Madrid and Manila) for a long time. A small fraction of the memorials that Quirós wrote were translated and published in Europe. As the memorials were originally written to convince the Spanish King to fund an expedition, the value of the discovered land in terms of value and size was inflated. European audiences were influenced by the the over-blown accounts of the lands discovered by Quirós. The legend of the terra australis incognito was conflated with these discoveries of La Australia/Austrialia del Espíritu Santo, and consequently the unknown south land became over-blown. A small, typical Melanesian island became an entire lost world in the minds of European imagination.

The NSW State library recently spent a million bucks on buying what might have been the very first original memorial. It’s currently be part of a “Maps in the Pacific” exhibition. This memorial is believed to be from 1607 – very shortly after Quirós returned. It’s a very rare document, it was not published in Europe but was quoted in some older Spanish texts. I can’t find any transcriptions of it, but the NSW State Library has scans online – so I went through it myself and found something very interesting that I have reproduced below;

atendiendo Señor, qesta mi ofrenda es el primero descubrimento de grandes tierras, que por mandado de V. Magestad las he buscado, y hallado, a cuya felice memoria de V. Magestad, por el apellido de Austria le di por nombre la Austrialia del Espiritu Santo, porque en su mismo dia tomé la posession d ella, y lo que puede sonar un nuevo mundo en los oydos de amigos y enemigos, en los tiempos presentes y venideros
paying attention to my Lord that my offering is the first discovery of great lands, which by order of Your Majesty I have sought them, and found, in whose happy memory of Your Majesty, by the surname of Austria I gave the name of the Austrialia del Espiritu Santo, because on the same day I took possession of her, and what a new world may sound like in the ears of friends and enemies, in the present and future times
My transcription/google translate of Fernandez de Quirós Memorial No. 1, 14 Dec 1607, NSW State Library

In this very early, and possibly the very first memorial, Quirós clearly spells it Austrialia, and gives a reason behind the name as referring to the House/surname of Austria. King Philip IV belongs to the House of Habsburg, known in Spanish as Casa de Austria. If this name Quirós gave in-turn influenced the naming of Australia (explored more in pt 2 of this post), it may be that Australia is indirectly named after Austria.

Iconic opening scene of *Dumb and Dumber* where Lloyd pretends to be lost, then gets Austria and Australia mixed up. A bit like the British discovery of “Australia”?

Some interesting related trivia; in the German language;

Austria is called Österreich which literally means “eastern realm”.
The German slang word Ossi sounds almost like Aussie; it means a person from the former East Germany.

The latin adjective australis on the other-hand, means southern.

The discovery of manuscripts by the British

Whilst translating some Spanish documents captured in the British occupation of Manila in 1762, Dalrymple had found Luis Váez de Torres’ testimony proving a passage south of New Guinea now known as Torres Strait. This discovery led Dalrymple to publish the Historical Collection of the Several Voyages and Discoveries in the South Pacific Ocean in 1770–1771, which aroused widespread interest in his claim of the existence of an unknown continent. Meanwhile, James Cook had been appointed in his place to lead an expedition to the South Pacific which in 1770 discovered the east coast of Australia.
https://en.wikipedia.org/wiki/Alexander_Dalrymple

More than a century after Quirós, Alexander Dalrymple put together many accounts of various voyages, and by the process of elimination found where the unknown south continent may lie. The paths of Abel Tasman’s voyage (which widely circumnavigated New Holland), and of Torres’ passage through the Torres Strait have an intersection point. It leaves behind a defined search area to find the unknown continent.

Darymple was not the only one looking and theorising. This chart below by French hydrographer Jacques Nicolas Bellin is contemporary of the time. It interestingly shows a Terre Du St. Esprit – Découverte en 1606 par Fernand de Quir as lying connected with New Holland at approximately latitude 15 S. The two rivers as described by Quiros – le Jordan and R. S. Sauveur are marked. It does not show the Torres Strait.

CARTE REDUITE DES TERRES AUSTRALES, PAR LE Sr BELLIN, [1753]. Section cropped to show *Terra du St. Espirit* discovered 1606 at approx. latitude 15S.

It’s no secret that Darymple’s work inspired Cook’s voyage. I hypothesise that the charting of the east coast of New Holland was planned from the very start of the voyage. The not-so-secret instructions given to Cook were; that after charting New Zealand he shall to return to England by the most convenient route. This leaves room for the secret secret instructions – ’emergency repairs’, and side-trips snooping around New Holland – which oh-so-conveniently – lies between New Zealand and the closest repair port in Batavia.

Faked problems with the HMS Endeavour?

On Bellin’s theoretical chart above, Terra Du St. Esprit is shown at approximately the location of Cooktown. This matches the latitude of 15 10’S given by Quirós himself.

After successfully avoiding major damage by reefs for more than half of the Queensland coast, Cook’s major run-in with a reef happens the same day of his arrival of latitudes of Quiros’ lands! I quote below the entire day’s entry. His journal indicates he is well aware of being at this latitude.

Monday 11th.
Wind at East-South-East, with which we steer’d along shore North by West at the distance of 3 or 4 Leagues off, having from 14 to 10 and 12 fathoms water. Saw 2 Small Islands in the Offing, which lay in the Latitude of 16 degrees 0 minutes South, and about 6 or 7 Leagues from the Main. At 6 the Northermost land in sight bore North by West 1/2 West, and 2 low, woody Islands, which some took to be rocks above Water, bore North 1/2 West. At this time we shortened Sail, and hauld off shore East-North-East and North-East by East, close upon a Wind. My intention was to stretch off all Night as well to avoid the danger we saw ahead as to see if any Islands lay in the Offing, especially as we now begun to draw near the Latitude of those discover’d by Quiros, which some Geographers, for what reason I know not, have thought proper to Tack to this land. Having the advantage of a fine breeze of wind, and a clear Moon light Night in standing off from 6 until near 9 o Clock, we deepned our Water from 14 to 21 fathoms, when all at once we fell into 12, 10 and 8 fathoms. At this time I had everybody at their Stations to put about and come to an Anchor; but in this I was not so fortunate, for meeting again with Deep Water, I thought there could be no danger in standing on. Before 10 o’Clock we had 20 and 21 fathoms, and Continued in that depth until a few minutes before 11, when we had 17, and before the Man at the Lead could heave another cast, the Ship Struck and stuck fast. Immediately upon this we took in all our Sails, hoisted out the Boats and Sounded round the Ship, and found that we had got upon the South-East Edge of a reef of Coral Rocks, having in some places round the Ship 3 and 4 fathoms Water, and in other places not quite as many feet, and about a Ship’s length from us on the starboard side (the Ship laying with her Head to the North-East) were 8, 10, and 12 fathoms. As soon as the Long boat was out we struck Yards and Topmast, and carried out the Stream Anchor on our Starboard bow, got the Coasting Anchor and Cable into the Boat, and were going to carry it out in the same way; but upon my sounding the 2nd time round the Ship I found the most water a Stern, and therefore had this Anchor carried out upon the Starboard Quarter, and hove upon it a very great Strain; which was to no purpose, the Ship being quite fast, upon which we went to work to lighten her as fast as possible, which seem’d to be the only means we had left to get her off. As we went ashore about the Top of High Water we not only started water, but threw overboard our Guns, Iron and Stone Ballast, Casks, Hoop Staves, Oil Jarrs, decay’d Stores, etc.; many of these last Articles lay in the way at coming at Heavier. All this time the Ship made little or no Water. At 11 a.m., being high Water as we thought, we try’d to heave her off without Success, she not being afloat by a foot or more, notwithstanding by this time we had thrown overboard 40 or 50 Tuns weight. As this was not found sufficient we continued to Lighten her by every method we could think off; as the Tide fell the ship began to make Water as much as two pumps could free: at Noon she lay with 3 or 4 Streakes heel to Starboard; Latitude observed 15 degrees 45 minutes South.
CAPTAIN COOK’S JOURNAL DURING HIS FIRST VOYAGE ROUND THE WORLD MADE IN H.M. BARK “ENDEAVOUR” 1768-71 Edited by Wharton

Cook refers to “some Geographers, for what reason I know not, have thought proper to Tack to this land“ which would presumably include Bellin. Did Cook think there’s a possibility that “some geographers” were correct – that the French knew something the British did not, and that Cook has now arrived at the site of New Jerusalem?

Perhaps English hydrographers advising on the voyage gave advice on where to look, and secretly sent him up the coast of New Holland to check it out. If so, the instructions would be along the lines of – Look for two rivers in a single bay at about 15 degrees south.

Google earth capture showing the area of Cooktown. Oriented west-top to allow comparison with the form of the coast with Prado y Tovar’s drawing of New Jerusalem earlier in this blog.

The Endeavour River – where Cook carried out his repairs, lies at 15 27’S. There are two rivers in the area, which are named the Endeavour River and Annan River. With a bit of creative interpretation – this is a bay with two rivers, and it is at the right latitude. It’s definitely not where Quirós landed – the orientation and shape is wrong for starters – however from all the places on this area of coastline, this place fits the well-worn descriptions of Quirós’s La Austrialia del Espiritu Santo the best.

Cook stayed in the Endeavour River from 14 June 1770 until 4 August 1770. This is 51 days. This is one day more than the 50 days Torres stayed in Big Bay. It seems the entire purpose of this lengthy stay was to camp there longer than the Spanish expedition.

But Cook should not be caught making landfall here. This point of land is arguably part of New Holland and already a Dutch possession. For him to openly make landfall on the mainland and snoop around isn’t wise. It doesn’t fit his excuse of being on a scientific expedition heading for Batavia for repairs. Hitting the reef gave him a good excuse to land there, and buy time to check the place out to see if there is any sign of the abandoned settlement.

Yes, Cook did openly land on other mainland parts of the coast, for example in Botany Bay and Bustard Bay (Town of Seventeen Seventy). But he had a good excuse in those cases because they both lay east of the eastern-most point discovered by Tasman. They are undiscovered. But this area is west of Tasman’s discoveries, and also getting close to the Dutch-charted and named Gulf of Carpentaria, so there is reason to be extra cautious.

Part 2 to follow…

The Third Chamber: Turnbull was right

August 12, 2021 ~ Jessica Savage ~ Leave a comment

Malcolm Turnbull, when receiving the Uluru Statement put out a joint media statement which included the following;

Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national Parliament – the House of Representatives and the Senate.
A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.
It would inevitably become seen as a third chamber of Parliament. The Referendum Council noted the concerns that the proposed body would have insufficient power if its constitutional function was advisory only.

I want to draw your attention to the fact that Turnbull has reiterated concerns that the body would have insufficient power. This is in contrast to the propaganda machine that implies that Turnbull thinks there will be an indigenous-only body that will have too much power including a veto.

To draw attention to another thing Turnbull has said here. He said “It would inevitably become seen as a third chamber of Parliament“. He did not say it will be a third chamber.

This is a glitch in the Matrix. Breaking it down reveals an extremely sophisticated propaganda and misdirection campaign. One that must have been planned before the delegates even arrived at the Yulara convention.

What’s a Third Chamber?

The British Raj in India had a Third Chamber of parliament, which is not common (most British-based systems have only two chambers). The planned decolonisation of Australia is partly using India as a template – Makaratta itself is based on Instruments of Accession. So this reference and comparison to a “Third Chamber” may be very relevant here.

During the British occupation of India the parliamentary system consisted of an upper house, lower house and a Chamber of Princes. The Chamber of Princes was alternatively referred to as the Third Chamber.

Here is India’s Parliament house under construction. It was built to accommodate the Three Chambers in the middle semi-circle buildings.

The Chamber of Princes was to represent the Princely States. The Princely States are pre-colonial kingdoms that were too powerful for the British and earlier colonisers to fully assimilate, so they were accommodated with special political structures. The Chamber of Princes didn’t have any constitutionally enshrined powers, it dealt with internal matters to do with the Princely States and with British-Princely State relations – or in other words – having a say in the making of laws that affect them (sound familiar?). These ‘matters’ eventually whittled down to nothing, as the Raj took over more and more power. As the ‘matters’ were not formally constitutionally protected, there was nothing the Princely States could do against it the erosion of their power in the face of the doctrine of British Supremacy. The Third Chamber does not exist anymore – it became redundant upon decolonisation of India.

Relate this to what Turnbull said… Turnbull reiterated the proposed body would have insufficient power if its constitutional function was advisory only. The lack of constitutional function is precisely what caused the eventual demise of the Chamber of Princes. Turnbull was not saying the Voice will be a Third Chamber. He was warning us that the proposal is a dud because it doesn’t have enough protected power.

In a legally technical contractual sense – he was speaking as Prime Minister on behalf of Australians in reception of the offer, and was “acting in good faith” by warning the proposal is flawed. But the warning was obscure and not widely recognised.

Sophisticated propaganda

A very sophisticated and pre-planned propaganda campaign further obscured Turnbull’s vague warning. The pre-planned campaign was designed to make sure his real warnings were ignored.

This narrative campaign was pre-planned. There’s proof if you look at the narrative chronologically, here’s how it panned out…

The day after the Yulara convention, Barnaby Joyce claims that the Voice will literally be a Third Chamber.
The Voice is a literal Third Chamber narrative is correctly shot down in flames from many sides
Turnbull comes out saying it will look like a Third Chamber. This sounds like the same thing, but it is not.
Turnbull also under fire due to lack of nuance.
Conveniently timed leaks to the media build momentum at strategic times
Turnbull plays part of arrogant mansplainer in staged QandA with Teela Reid
Barnaby Joyce retracts his claims. Joyce doesn’t even remember how he came up with the idea in the first place!!
Turnbull does not retract (because he doesn’t need to, as he has made a different argument that Joyce)
Others take up Turnbull’s argument including Prime Ministers.

Propaganda works best on first impression. The first impression many from the general Australian public had of the Uluru Statement was of Barnaby Joyce’s negative and incorrect comments about the Voice being an actual Third Chamber; as they came out the same time as news of the Yulara convention.

If you understand what the real Third Chamber reference means (India) – and you know that Turnbull gave a legitimate warning dressed as an uninformed mansplain – you should be asking yourself this. How did Barnaby Joyce know to drop a Third Chamber reference THE DAY AFTER THE YULARA DIALOGS! Before any details were even out?

An amazing coincidence – or planned? If planned, then the entire result of the convention must have been pre-planned as well.

Of the hoards of lawyers and law firms who are behind this, they should have immediately recognised the Third Chamber reference. If you were an expert in constitutional law – you would know about the modern Indian Constitution and how it was formed, you would also know about the historical Chamber of Princes as it is part of that story. But the lawyers feign ignorance.

We are being FAILED.

The Lawyers are the Problem.

August 10, 2021 ~ Jessica Savage ~ Leave a comment

This is a response to the blog post on the Indigenous Constitutional Law blog by Sean Brennan titled – “NAIDOC Week 2021: The Wording is Not the Problem“.

In summary, Brennan says there does not need to be any detailed wording for the reforms if a well-defined purpose has been established. And a purpose is clear, that is to give First Nations a guaranteed say in laws made about them. The wording can be deffered until later, this is totally normal constitutional practice.

I don’t mean to pick on this article specifically, but the article is a short’n’sweet summary of this argument that has come up a lot recently. But there is a reason why this argument is flawed.

It is to do with the laws of contract formation and contra proferentem. I have already posted about this in more detail here.

Shortly after the Uluru Statement offer was made – Turnbull claims he received it as a take-it-or-leave-it offer from the Referendum Council. In the true spirit of colonial trickery, we don’t know if this claim is true or not as the Referendum Council has left no record either way. Even if it is true, the Referendum Council no longer exists, so they will never be held accountable for this blunder.

This matters – because if detail is insufficient, and the offer really is take-it-or-leave-it, it is almost guaranteed that we will be screwed over.

Normally when take-it-or-leave-it offers are made they are very detailed. Think of a contract for a car hire for example – they are typically pages and pages of fine print. There’s a good reason for that, because the drafter must cover their own arses by minimising ambiguity in every which-way possible due to contra proferentem.

Contra Proferentem: A Latin term used in contract law referring to the principle that a judge will construe an ambiguous term against the party that imposed the inclusion of the term in the contract during negotiation or drafting.
https://www.law.cornell.edu/wex/contra_proferentem

But the lawyers on the Referendum Council have – at least according to Turnbull, drafted a complete take-it-or-leave-it offer with ambiguity. This is not normal. The concept of constitutional deferral is being used as an attempt to explain this anomaly, because people out there instinctively know something’s not right.

One major ambiguity in the offer is the meaning of “the constitution“. Another ambiguity is the request for a referendum, as it is not certain that a section 128 amendment is being requested.

We have been set up to fail. And once all is done, we won’t even know who is responsible. It’s either Turnbull for falsely claiming it’s take-it-or-leave-it, or it’s the lawyers behind this who will be sitting by a pool somewhere sipping cocktails at our expense.

Yeah it’s true, the wording is not the problem. Laywers who are not acting in our interest purporting to do us a favour are the problem.

Image by marucha from Pixabay

Western Australia is special

August 8, 2021 ~ Jessica Savage ~ Leave a comment

See map below of Native Title as of July 2021.

If you can’t read the legend – dark green is exclusive, light green non-exclusive. Brown is not existant. Orange is extinguished. The remainder means never determined.

Note a few things…

No Native Title in Tasmania or larger islands in the south.
No Native Title in the original 19 counties
Western Australia is densely covered

If you find a map that includes ILUAs in Western Australia, you will see Western Australia has insane coverage. It is like Western Australia is trying to get every little bit of land covered by Native Title or ILUA. A state known for not being kind to Aboriginal people. Does anyone wonder – why?

This may be related to what I wrote about recently on the Anglo-Dutch treaty of 1824.

I’m not 100% sure how the laws of war operate, but I hypothesise that Western Australia is the only part of New Holland that was not properly conquered from the Dutch.

I missed something when researching the post on the Treaty of 1824. I assumed that Governor Brisbane’s martial law declaration only ever applied up to 135E. I had this map showing the initial martial law declaration in red…

Map showing martial law proclamation By Governor Brisbane in 1824. All country west of Mount York (near Blue Mountains) to longitude 135E. 135E is the western border of New South Wales and also the edge of Governor Brisbane’s mandate.

That map is correct at the time the martial law declaration was made. The declaration said “all country the westward of Mount York”. It did not give a west boundary, so it would apply to extent of the colony. And then, I assumed that it was the commissioning of Governor Darling as Governor Brisbane’s successor that extended the border to include Fort Dundas in 1825 – after martial law was repealed.

But I missed something. The border was extended before that time. It happened during the voyage that the fort was initially established. Here is a paragraph from the militaria wiki page on James Bremer:

On 18 September 1823, Bremer was appointed commander of HMS Tamar. In February 1824, he was sent to Melville Island, Australia, to establish a colony. It was intended as a military settlement to secure British trade in the region. It was hoped that a market would open to British merchants in the Malay Archipelago. In June 1824, Bremer arrived in Sydney where he spent a month collecting troops and stores. On 24 August 1824, he left Port Jackson, Sydney, on board the Tamar, accompanied by the Countess of Harcourt and the Lady Nelson. The ships transported Royal Marines and forty-four convicts guarded by the 3rd Regiment. After sailing through the Torres Strait, he arrived in Port Essington on 20 September. The north coast of Australia from 129° to 135° longitude was declared British territory. Bremer rejected Port Essington as a settlement due to its lack of fresh drinking water. On 26 September, the party landed at King Cove in Melville Island to build a settlement, which was named Fort Dundas on 21 October. However, the site was unhealthy, expensive to maintain, and did not develop into an advantageous commercial trading post. In November 1828, orders were given to abandon the post.

Possession was during the period of martial law. By declaring possession on the mainland to 129E, Bremer had effectively extended the earlier proclamation of martial law made by Governor Brisbane. This extended martial law right up to the current Western Australia border.

Recalling – the Anglo-Dutch 1824 treaty applied to “islands south of the straits of Singapore”. Bremer has done the possession declaration at Port Essington on the mainland. Then he set up a military fort on the island. This is strategic – it is not to do with lack of fresh drinking water at Port Essington (A 24 house settlement with hospital was set up there later in 1838 – so he mustn’t have tried hard looking).

That’s why Western Australia is special. It was initially a Dutch possession, yet unlike everywhere else in “Australia” – the British never declared martial law. So the British never properly conquered the Dutch in that portion of New Holland. It’s territory is in international legal limbo. Which would explain why Western Australia – today – is so aggressively persuing territorial agreements (ILUA’s) and Native Title claims. Every agreement puts that area out of legal limbo.

When you consider this, and consider the parts of Australia where Native Title doesn’t even exist – it becomes clear. Native Title is neo-colonialism. It’s purpose is to secure colonial interests.

Image by Stux-12364 from Pixabay

1999 Referendum not legally sound?

August 5, 2021 ~ Jessica Savage ~ Leave a comment

This paragraph that I read in an article by Megan Davis caught my attention…

The story of Uluru Statement from the Heart is an Australian story and an Aboriginal innovation. The starting point is 1999. At the last referendum to be held in Australia in that year, Prime Minister John Howard put to the Australian people a preamble to the constitution that included recognition of Aboriginal and Torres Strait Islander Peoples. This form of recognition was rejected by all of the cultural authority of Australia in its entirety, from land councils to the elected representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC), to the electorate. Yet Howard proceeded with the agreement of a single Aboriginal champion of the reform.
The long road to Uluru
Walking together – truth before justice
MEGAN DAVIS

But from my own recollection of the late 90’s, I remember ATSIC and many “Aboriginal leaders” promoting it and saying we need to be in the preamble. Did I remember wrong?

I dug a little deeper, and found that Megan Davis is correct here. But only if you take a starting point of 1999. I did remember correctly, the preamble was supported by the “Aboriginal leaders” throughout most of the 90’s. But they backflipped during the ‘final approach’, in 1998/1999.

In the early 1990s, the Aboriginal and Torres Strait Islander Commission, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner all supported constitutional recognition of Indigenous Australians.
The preamble and indigenous recognition, Twomey

Megan Davis chose to frame her essay in a way that gives the impression that “Aboriginal leaders” never supported symbolic recognition. But “Aboriginal leaders” did support it – before and even after 1999, up to the more recent “Recognise” era.

ATSIC sent delegates to the February 1998 Constitutional Convention. They even put forward a proposed preamble; Here is what the chairman of ATSIC, Gatjil Djerrkura put forward as a proposed preamble on behalf of ATSIC at the 1998 constitutional convention;

Australians affirm their Constitution as the foundation of their commitment to, and their aspirations for, constitutional government.
Our nation dedicates itself to a reasonable and representative system of government that is inclusive of all its peoples, upholds fundamental human rights, respects and cherishes diversity and ensures full participation in its social, cultural and economic life.
Australia recognises Aboriginal and Torres Strait Islander peoples as its indigenous peoples with continuing rights by virtue of that status.
We seek a united Australia that respects and protects the land and the environment, including the indigenous heritage and the values and cultures of its people, and provides justice and equity for all people.
We the people of Australia give ourselves this Constitution.
Constitutional Convention Transcript of Proceedings

Many Aboriginal delegates at the convention seemed to support in-principle both the preamble and the republic. There was only one Aboriginal delegate who really spoke against it – that was Neville Bonner in his famous “how dare you” speech.

The final communique from the 1998 convention was “achieved with a remarkable spirit of unanimity“. But the preamble was not committed on until later.

In the final moments of the Convention, Prime Minister Howard committed his Government to holding a referendum on the republic but made no commitment on the preamble. In terms of the federal political agenda, the Convention’s final resolution on the preamble was the last word until February 1999, when the preamble suddenly took centre stage.
With Hope In God, The Prime Minister And The Poet: Lessons From The 1999 Referendum On The Preamble
MARK McKENNA, AMELIA SIMPSON AND GEORGE WILLIAMS

Fast forward to early-mid 1999. The proposal now has more meat on the bones. “Aboriginal leaders” are now complaining about the Howard-Murray draft preamble that John Howard has proposed.

There were objections to the Indigenous reference, in particular its failure to go beyond the recognition of prior occupation and include reference to Aboriginal ‘custodianship’. Indigenous leaders roundly criticised the draft. They had not been consulted.
Ibid.

The preamble was later changed again to the final version, which many “Aboriginal leaders” still did not support.

Why did “Aboriginal leaders” backflip after a decade of hard work trying to get recognition in a preamble – because they don’t like the particular wording? It is to tip the baby out with the bathwater. Furthermore, in the 2000’s the usual suspects were back supporting “Recognition”. There was a mere slither of time during 1999 where complaints of Aboriginal leaders about symbolic recognition were amplified.

Must be legally sound

Every proposal since 1999 has the criteria that it “must be legally and technically sound”. Well duh, that goes without saying. Why would they spell this out? Could it be, in fact, because 1999 was – for some reason – not legally and technically sound?

If 1999 were legally unsound – you can bet that any known problems will be addressed before future attempts. So just watching what’s going on might shed light on what the legal problem was. I’m going to explore some possible problems below.

Lack of Mandate

I think Megan Davis’s assertion (about 1999 being widely rejected by Aboriginal people/leadership) hints at one possible reason why 1999 was not legally sound.

As I have written about on this blog previously, these constitutional reforms are all about achieving decolonisation. For decolonisation to happen as per UN resolutions and the C24 committee’s standard – they must be able to demonstrate broad Aboriginal consent, or the consent of “the peoples of the colony”. Otherwise there may be a future situation like what is happening now in West Papua – where the consent is challenged. ATSIC was the vehicle to get this consent for decolonisation. But there were a few problems. A major problem was the poor ATSIC election turn out

(In 1996) 49,500 out of a population of about 400,000 voted, whilst in 1999 voter turnout was 48,000. This means that in its ten years of existence ATSIC has had the active endorsement of, at most, 13% of the national indigenous populace
ATSIC Flaws in the Machine, Gary Foley

Without a great turn-out in the October 1999 elections, ATSIC had no mandate to consent for decolonisation and to sign a reconciliation instrument. Perhaps this is the real reason why the “Aboriginal leaders” backflipped mid-1999 on the preamble. They predicted that they would not be able to build a mandate in time to act of our behalf and to finish the job of signing off on the reconciliation instruments.

Another thing of note: the October 1999 ATSIC elections were the very first that there were no government-appointed commissioners. Conveniently – just in time for making the body for consent 100% Aboriginal-controlled for the November republic referendum!

Definition of Aboriginality

Had there been a healthy turn-out to ATSIC elections, it may still not have been enough. There is another possible problem that affected the legality of ATSIC being able to give consent in 1999. And perhaps the colony was not aware of this problem it during the lead-up, but are aware of it now.

The problem is with the three-part definition of Aboriginality.

Some time around the birth of ATSIC, the colony created a conceptual definition of Aboriginality that encompasses a racial criteria so they can continue using the constitutional races power in section 51(xxvi). The ATSIC act itself was underpinned by this constitutional head of power. The descent requirement is effectively a one-drop racial criteria.

But the colony also requires a political definition, because you cant do a political settlement with a race. More specifically, the colony needs a political settlement with the peoples under colonial subjugation (see my post Self-determination Roadmap for the difference between “colonised” and “indigenous”).

The result of combining concepts of race and polity is the 3-part definition. This concept was tossed around from the early 80’s, and was eventually solidified after some non-Aboriginal people in Tasmania were challenged in court for their eligibility to run as ATSIC candidates.

As a side-note: the point that these ATSIC eligibility cases were tested in Tasmania might be an important factor – because Aboriginal people in Tasmania will probably never meet the up-coming, post-reconciliation strict cultural continuity requirement to be “indigenous”. By testing this case on people who are under colonial subjugation, yet not indigenous – logically separates the two concepts. There is also no Native Title in Tasmania for the same reason, they cannot prove cultural continuity.

But the problem with the 3-part definition – which may mean the 1999 referendum was not legally sound – is this… By unilaterally imposing the one-drop race criteria on us, they are denying us the prerogative to freely decide the make-up of our polity. You cannot treaty with just “some” people, you need to treaty with a polity acting under their own self-determined definition and acting using their own representative structures. It may be that if we had the choice, that we would include people without ancestry in our communities.

Other settler colonial states have tribal registration systems where each tribes have criteria for membership. This is sometimes based on blood quantum. These registration systems are a administrative necessity to uphold the treaties themselves. They are, at least in theory, based on self-determined criteria.

But as Australia has no treaties, and have tried assimilation and breeding us out for so long – they now have this unique problem that they lack a definitive way to determine exactly which political communities or community they need to do treaties with, and also and which persons are members of these communities. And those communities need to be able to fully determine and define who they are – criteria cannot be imposed.

Australia needs to step back, and allow us the free opportunity to determine who we are – as a technical legal necessity.

Finetuning the definition, and backing off policing of Aboriginal identity

That is exactly what is happening right now, a stepping back. See;

The Love High Court Case in which Australia removed the imposed exclusion of non-Australian citizens from being part of the Aboriginal community, and also recognised the Aboriginal community as not being alien.
The way that the AFP dropped Cashman’s complaint challenging Pascoe’s identity, feds stepping back from policing Aboriginal identity.
I remember also hearing that there were non-Aboriginal people voting in the Victorian Aboriginal assembly – if that’s true I would bet that no non-Aboriginal governmental authority will challenge that.
The recent recognition of Torres Strait Islander adoption practices in Queensland, removing a possible blood-line exclusion on adopted individuals and their children – given their cultural relationship with Papua New Guinea.

While these cases all deal with very small numbers of people, it is important that all imposed barriers are removed for the peoples under colonial subjugation to freely determine their own criteria for community membership .

Australia is stepping back from imposing any identity criteria because they are preparing for a treaty.

Other reasons for not being legally sound…

Maybe there are other reasons that 1999 referendum and proposed instruments of reconciliation were not legally sound. I can’t think of any right now.

Why the backflip in 1999?

What I am suggesting is that “Aboriginal leaders” backflipped on symbolic recognition, and John Howard provided them with a face-saving excuse to do so, both because some eagle-eyed lawyer realised in 1998 or 1999 that the reforms were not legally and technically sound. The fatal flaw was set in place way back when ATSIC was first legislated using the races power. You can’t treaty with a race!

They tried to save a decade of work by taking a gamble on separating out the republic question from the preamble question. If the preamble question got through alone, it would have been a step in the right direction. And the preamble was polling better than the republic at one point. If the republic question went through without the preamble, it would have been impossible to implement, as without the preamble there would be no authoritative basis and no autochthony of the new republic. In the end, the republic question did better than the preamble, and officially both failed. It was a complete cock-up.

The meeting between the Queen and Aboriginal leaders at Buckingham Palace makes sense in this context. The meeting was a month before the referendum but just a few days after the ATSIC election. It was probably scheduled long in advance to be a kind-of “State visit” form of diplomatic recognition ahead of signing a reconciliation instrument. The timing makes perfect sense – you want a recent successful ATSIC election to give the leaders a fresh mandate, and it should happen shortly before the referendum. But due to the technical problems, it instead became a meeting about Plan B.

We dodged a bullet in 1999!

Predictions

If I am right about this, I would expect the following;

In the realm of Native Title law, there may be a loosening of rules, or not policing where official Native Title Holders can allow wider family branches (i.e. not having strict apical ancestry, but part of the nation) to have traditional access to their Native Title land or becoming members of PBC’s without the government complaining. Maybe this is already happening, but I have not been following closely enough. I think this will happen because Native Title PBC’s are one type of vehicle which will be used for agreement making. Loosening the rules means the agreements will cover more people in total. The loosening of the rules will be temporary until the constitutional reform is over, after which they will become strict with tribal membership ID cards based on proven apical ancestry.

Another thing I would expect, is a novel solution to a potential problem with the constitutional power to legislate a Voice to Parliament. The races power cannot be used in the same was it was used to underpin ATSIC. Perhaps an external foreign affairs power will be used as well, or used instead of the races power. Or maybe they will not use any Australian constitutional power at all, and it will be somehow underpinned by the Uluru Statement (which asserts constitutional spiritual power) itself. If the Voice is legislated, watch carefully how it happens – because it may break new ground in the way it is passed.

I would also expect a small number of non-Aboriginal people participating in a legislated Voice from the very beginning. Awareness of this will be made in the Aboriginal community to prompt them to complain. Aboriginal leaders will complain, and the government will initially do nothing about it. But by the time the referendum comes (which may actually look like a republic referendum), there will be real Aboriginal-led solutions put in place to weed out fakes from the legislated Voice to a point where the Aboriginal community are satisfied.

Image by Steve Buissinne from Pixabay

The Anglo-Dutch Treaty of 1824

August 1, 2021 ~ Jessica Savage ~ 8 Comments

One event in Australian history that is almost invisible in Australian consciousness – is the Anglo-Dutch Treaty of 1824 and events that happened surrounding this treaty. One reason this treaty is of particular interest to me is because it is a potential source of part of the domestic terra nullius doctrine.

In a recent post about the right of preemption, I wrote;

the British Crown then sat back and did next to nothing while the governors in continental New South Wales handed out stolen land titles

But this treaty, which happened before the Bourke Proclamation (1835), may put another perspective on this.

The British Crown may have not stolen the land titles, but acquired them by conquest of the Dutch colony.

Here is a timeline of some relevant events;

1824
17 March	Anglo-Dutch treaty of 1824/Treaty of London. British agree to not enter into any treaties with rulers in any island south of the strait of Singapore
14 May	George Arthur took up post in Van Diemen’s Land (then a penal colony). Violence increased and Aboriginal people were driven out by the “Black Line” over the next decade.
14 August	Martial law declared by Governor Brisbane west of the Blue Mountains (vs. Wiradjuri. or vs. Dutch?)
24 August	Fort Dundas expedition leaves Port Jackson (Sydney)
21 October	Fort Dundas proclaimed
11 December	Martial law west of Blue Mountains repealed
1825
1 March	Property settlement date of 1824 Anglo-Dutch treaty
16 July	NSW border moved westward from 135E to 129E to fit Fort Dundas (to the current WA border)
3 December	Van Diemen’s land proclaimed a colony

1827	Swan river colony explored, military garrison set up at Albany. January 21, 1827, the whole of Australia was finally claimed as British territory when Major Lockyer formally annexed the western portion of the continent in a ceremony on King George Sound.
1828 November	Martial law declared in Van Diemen’s land (for 3 years). Martial law against Dutch claim?
1829	Swan river colony established.
1829 April	Fort Dundas abandoned

Just a bit of background for context…

When Cook proclaimed possession on Possession Island on 22 August 1770, he explicitly acknowledged the Dutch discovery claim on the remainder of New Holland.

Having satisfied myself of the great Probabillity of a Passage, thro’ which I intend going with the Ship and there^for may land no more upon this ~~Western~~ Eastern coast of New Holland and on the Western side I can make no new discovery the honour of which belongs to the Dutch Navigators ~~and as such they may lay claim to it as their property~~ but the Eastern Coast from the Latitude of 38° South down to this place I am confident was never seen or viseted by any European before _^^{us and} ~~therefore by the same Rule belongs to great Brittan~~ Notwithstand I had in the Name of his Majesty taken posession of several places upon this coast I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took posession of the whole Eastern Coast from the above Latitude down to this place by the Name of New South _^^Wales together with all the Bays, Harbours Rivers and Islands situate upon the ~~same~~ ^said coast after which we fired three Volleys of small Arms which were Answerd by the like number by ^from the Ship
Cook, James, Holograph Journal, Manuscript 1, 22 August 1770, National Library of Australia.

What is meant in Cook’s proclamation by “the whole Eastern Coast”? In the context, it would seem to be parts of New Holland that are not yet discovered by the Dutch.

We have a situation where the British have claimed a slither of undetermined proportion on the east coast, and the British gradually move in on Dutch territory to the point where eventually the whole continent including Tasmania and other adjacent islands is under British administration.

How large was this initial British slither exactly? I think it was probably measured as anywhere east of Dutch discovered lands. That would be east of Abel Tasman’s discoveries in Van Diemen’s land, and east of previously charted parts of New Holland. Tasman planted a flag on the east coast of Tasmania, so that would make this remainder Eastern Coast slither quite small. One interesting thing about Cook’s voyage is that it perfectly charted a section of the coastline that did not appear on Thevenot’s map of Dutch-charted New Holland. Cook’s landings ashore seemed also to be perfectly strategic – landing only on the mainland when he knew he was east of Tasman’s discoveries (with the exception of Trinity bay and Endeavour River which was purportedly for emergency repairs).

As a side note – the main early “proper” settlement in New South Wales was initially neatly snuggled in the 19 Counties (rough location marked in yellow on map above) which also lay perfectly east of Tasman’s discoveries. I measured it with using Google earth overlays. Tasman’s eastern-most longitudinal coordinates of discovery in Van Diemen’s land lines up within 3km of the western limit of the 19 Counties (a point at the junction of Belubula River and Lachlan River). It is as if the British were very conscious of this line, initial settlement limits were deliberately staying out of the Dutch zone.

How did this moving of the boundary between New Holland and New South Wales happen? A big chunk of it happened around the time of the Anglo-Dutch treaty of 1824.

Basics of the Treaty

The 1824 Anglo-Dutch treaty is a foundational document of Singapore, so it is well known there. The treaty was to end long-running hostilities between the Dutch and the British in territories stretching from India to the East Indies.

In this treaty to settle ongoing territorial conflicts, the British got India and Singapore, and the Dutch got the East Indies. The line of division was the Straits of Singapore.

The treaty covered a very large geographical area. You can read the treaty text at this link here. Some articles of interest are quoted below.

His Netherland Majesty cedes to His Britannic Majesty all His establishments on the continent of India; and renounces all privileges and exemptions enjoyed or claimed in virtue of those establishments.
Article VIII

His Netherland Majesty withdraws the objections which have been made to the occupation of the island of Singapore, by the subjects of His Britannic Majesty.
His Britannic Majesty, however, engages, that no British establishment shall be made on the Carimon isles, or on the islands of Battam, Bintang, Lingin, or on any of the other islands south of the straits of Singapore, nor any Treaty concluded by British authority with the chiefs of those islands
Article XII

The British have agreed to withdraw from islands to the south of the straits of Singapore. This aligns with the current Indonesian border in that area of Singapore. Indonesia is the successor state to the Dutch East Indies.

There is no southern limit mentioned in this area of British surrender.

Neither is there a eastern limit, but presumably the eastern limit would lie at one of two points. First – the eastern extremity of the Dutch East Indies. This is approximately the longitude of 141 degrees east, which was the eastern extremity of the Sultanate of Tidore – whom which the Dutch had treaties with. Second – the other natural eastern limit candidate is the line of the Treaty of Saragossa (as the Dutch are successors to the Portuguese, of whom the treaty was the subject of). On the map I have above, the Treaty of Saragossa is marked as running through the Islas de las Velas, or the Mariana Islands/Guam, because that is the most likely location meant in the original treaty. Although there are other ideas of where the Saragossa line lies.

New Holland clearly lies south of the straits of Singapore, and south of the east indies generally. It is strange that New Holland, New Zealand and Van Diemen’s land were not mentioned in this treaty, even though they all places with contested British/Dutch claims. Abel Tasman even planted a flag on Van Diemen’s land.

Is New Holland an island?

If it is – then under this treaty, His Britannic Majesty is not permitted to establish in New Holland nor conduct any treaties with the chiefs of New Holland. This ties in with the puzzle of terra nullius, and may explain why the British Crown did no treaties with Aboriginal nations – because under this Treaty with the Dutch, they are not permitted to.

But if New Holland is not an island but a continent, then it’s not part of the treaty at all. So which is it?

Why do we (the English speaking world) usually say Australia is a continent? Perhaps because it bolsters the British claim against a potential Dutch claim. But Australia is not universally considered a continent. When I was travelling in Panama and learnt Spanish, I found they consider Australia as not being a continente, but a part of Oceania.

The Settlement date clause

The other article of interest in this treaty is this;

All the colonies, possessions, and establishments which are ceded by the preceding Articles, shall be delivered up to the officers of the respective Sovereigns on the 1st of March, 1825. The fortifications shall remain in the state in which they shall be at the period of the notification of this Treaty in India; but no claim shall be made, on either side, for ordnance, or stores of any description, either left or removed by the ceding Power, nor for any arrears of revenue, or any charge of administration whatever.
Article XIII

The settlement date of the treaty was on the 1 March 1825. Whatever colonies and establishments are held at that date are basically set. Theoretically, it means if New Holland is an island, then the British should withdraw all establishments.

But from the time the treaty was signed in March 1824 until the settlement date in March 1825, the British did the exact opposite. They expanded their territory further westward, and in a big way.

On 14 August 1824, Governor Brisbane proclaimed martial law for all territory west of the Mount York , purportedly because of the Bathurst Wars with the Wiradjuri. Mount York is on the western side of the Blue Mountains near Bathurst. Technically, the martial law applies all the way to the NSW western border at 135E (half the continent).

NOW THEREFORE by virtue of the Authority in me vested by HIS MAJESTY’s Royal Commission, I do declare in Order to restore Tranquility, MARTIAL LAW TO BE IN FORCE IN ALL THE COUNTRY WESTWARD OF MOUNT YORK

Map showing martial law proclamation (red – west of Mount York) and showing location of Fort Dundas.

Just 10 days later after Governor Brisbane declared martial law, a ship was sent from Port Jackson to set up Fort Dundas on Melville Island. Melville Island is strategic – it is in the north west hugging the continent, and on the doorstep of the East Indies. Fort Dundas was set up and declared during the period of martial law. The fort was purportedly for trading with the Malay, however there wasn’t any trading.

This martial law was repealed later in December. I think one objective of the martial law proclamation was to get firm control over the official colonial settlement (the Counties) and an extension of the limits in time for the settlement date of the Anglo-Dutch treaty.

The European inhabitants of the fort sat there for 5 years enduring attacks by Tiwi Islanders, tropical storms and lack of food. The only reason the fort made sense was for it to be there was to expand British territorial claim as wide as possible.

The treaty settlement date in 1825 passed without challenge by the Dutch, and a few months later the colony of New South Wales was enlarged westward to 129E the current West Australian border to include Fort Dundas.

Van Diemen’s Land was proclaimed a colony in 1825 after the treaty settlement date. Before this time, it was a penal settlement with forts and prisons. In 1828, martial law was declared in Van Diemen’s land which lasted for 3 years. If this island were covered by the Treaty of 1824 and therefore legally Dutch, then this declaration of martial law could be seen as a declaration of war against the Dutch by the British. The Dutch were never physically present, so Britain won by pen and paper.

Around 1827, the Swan River colony (Perth, free settlement) and King George Sound penal colony (Albany) were being set up. The remainder of New Holland was formally annexed from King George Sound in 1827.

Map showing the limits of New South Wales at 129E (extended from 135E to include Fort Dundas). Map also shows locations of King George Sound penal colony (today Albany) and Swan River colony.

Why didn’t the Dutch contest?

Was there a gentleman’s side-agreement as part of the Anglo-Dutch treaty? It is strange that New Holland, New Zealand and Van Diemen’s land were not part of the treaty. Perhaps they were part of a gentlemen’s agreement – but the British proceeded with caution nevertheless knowing that gentlemen’s agreements are worth the paper they are written on.

Unlike proper British discovered states, the names “Western Australia”, “South Australia”, “Northern Territory” and “Tasmania” are not British names, nor do they allude to British royalty.

“Western Australia” may also has a double-meaning. The world was divided by the Pope into the eastern and western hemispheres by the Treaty of Tordesilla and the Treaty of Saragossa. “Western Australia” is, by this reckoning, as lying south of the Maluku Islands, in the far east of the world. To name it “Western Australia” may be a play to shift it into the western hemisphere of the world, joining it with the Terra Australis.

Something that has always intrigued me – is the heraldic symbols used by Australian states.

Heraldry of the states. Top right to left: New South Wales, Victoria, Queensland. Bottom: South Australia, Western Australia, Tasmania.

This allusion to the British Crown is also mirrored in the heraldry shields of the States. Only the east coast states connect to the British. The other states stand at a distance, using native animals instead.

Tasmania is a little different. It uses a single red lion passant – and it is a mystery why this is used, this website says “exact symbolism of the badge is unknown, other than to indicate historical ties with England.” But to me, it does not look like a English lion, it’s more of a generic royal European lion. This almost seems like a secret tribute to the shared bloodlines of European royalty which include both Dutch and British. The story is that European royal bloodlines all go back to the Tribe of Judah, the Tribe of Kings. The red lion or the red hand is the heraldic symbol of the Tribe of Judah.

Not all States are the same!

The consequence of all of this is that not all Australian states are equal. It may be the case that most of Australia is actually conquered New Holland, not conquered First Nations. First Nations are just collateral damage.

This kind of explains how the British Crown thinks it has sovereignty. It has sovereignty by either prescription, by gentlemen’s agreement, or by conquest of the Dutch. This also explains the lack of treaties, and also explains the British not upholding a fiduciary duty to Aboriginal people, because it is the Dutch crown that holds that duty as discoverer – not the British.

When there is talk about “the Crown”, and “Crown land”, there is an obfuscation. Perhaps most Crown land is land held in a complex three-tiered condominium. The Dutch Crown still holding a discoverer and fiduciary role, the British Crown holding a nominal base land title burdened by First Nations traditional use, and the Australian Crown (states) administering the land.

But this “Crown” condominium would apply differently on the far east coast where the British do hold real discovery rights – as was found in Mabo 2. It may apply differently again in Western Australia, if Australia is a continent and not an island.

Why does this matter?

It is of practical importance to get answers about which Crown did what, and which is responsible for what – especially if anyone wants reparations or accountability. The “Crown” is an entity with many heads – you have to know which one to go after depending on the purpose. And it also depends where you lie geographically, because not all states are the same. Even within a single state, the situation may be different.

I think about various court rulings such as Mabo 2 and Coe vs Commonwealth. Mabo 2 was cherry-picked. In the Coe vs Commonwealth(1993) (which I ironically link here on a Dutch law website!) the cases involved the Wiradjuri Tribe. The Wiradjuri Tribe/Nation boundary spans across “pure British discovered” areas, and areas that are possibly Dutch discovered. That may have an effect on the outcome. This is why this is important to understand, that it is not as simple as “the British discovered Australia”. That lie that many of us learnt in school was a lie on multiple levels.

Thinking Sovereignty