Most people would assume ‘settlement’ in the above context means building some towns and moving in. But there is another definition of settlement – as in a legal agreement usually done out of court to end a dispute between some parties.

The Anglo-Dutch Treaty of 1824 was a settlement in this sense – it ended some long-going territorial disputes between the Dutch and the British in the East Indies.

Looking at the actions the British made before and after the time of this treaty, it looks like the British believed that as a result of the treaty, the territory known as New Holland was then fully under British sovereignty. After the treaty, they started setting up proper courts and parliaments, expanded their territorial borders, and ran cases through their courts to test their jurisdiction over Aboriginal people and Aboriginal land in different parts of the land.

Obviously, this interpretation of the treaty having ceded New Holland to the British is sketchy – due to the obvious fact that the Dutch did not have radical title, nor the power to cede radical title of the territory known as New Holland. Only Aboriginal nations have that power.

What happened to our Law?

There’s an oversimplified narrative that British did not recognise Aboriginal law because they are backward and uncivilised. But I think the courts have a different underlying logic to suppress our law. Before the treaty, the courts used their test cases to first tie the concepts of law with land/property (law of the land principle, R v. Ballard 1829). They recognised our law in this 1829 case. The case was held just before the expiry of the 6 year grace period we had under the treaty article XIV to dispose and vacate our ceded lands. Then after the eviction grace period expired in 1830 – they ran some more test cases (eg. R v. Murrell) this time under the shifted paradigm where we don’t own the land due to the treaty ceding our territory. Since the courts previously linked law and land/property – and we lost our land/property in the treaty – our law is no longer the law of the land. The courts said we are fully subject to British law. Later the British made every attempt they could to destroy our law, language, culture etc. It’s not because our law is backward – it’s because it is the true law of the land which must be suppressed.

Read the Privy Council advice below carefully;

“[t]he extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to the circumstances. There is a great deal of difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class. … There was no land law or tenure existing in the Colony at the time of its annexation to the Crown

Privy Council 1889

Note from the first few words – this is about how to import British law into a colony – not about sovereignty claims over territory. Horse before carriage. The sovereignty issue (horse) is already sorted out by the 1824 treaty. This paragraph is about how to import the law into that newly acquired colonial territory (carriage).

The Privy Council have set up a false dichotomy between 1. territory acquired by conquest or cession and 2. territory without settled law. But it is possible to have territory that is ceded or conquered AND ALSO uninhabited and/or without settled law. That is the case here.

When the Privy Council are talking about lack of settled law – it is an observation that the Dutch never bothered to settle their own Dutch laws in New Holland. The Privy Council are not saying it’s a terra nullius! They are saying there’s no settled law* – or no local Dutch law that has been received to the land that the British must first accommodate when they import their own law on top. So by British logic, since the land is scarcely inhabited by settled Dutch people staying there after the peaceful annexation, they can import their British law wholesale without having to worry about treading on Dutch local customs or – most importantly – Dutch land tenure law. That’s how the British got their jurisdiction over land tenure – because they rightly observed the lack of Dutch land tenure laws, outright ignored Aboriginal land tenure laws, then stuck their own obnoxious law on top .

(* normally settled law has another meaning that makes no sense in this context, but this term’s positioning in the original text next to settled inhabitants, and in contrast to the term established law used earlier – makes it clear to me what is meant.)

Makarrata: Sovereignty acquired by settlement

Makarrata is the culmination of our agenda: the coming together after a struggle,

Uluru Statement from the Heart

Settlement: In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins.

https://en.wikipedia.org/wiki/Settlement_(litigation)

Makarrata sure sounds like another word for the legal term – settlement.

The 1824 treaty was also a settlement in this sense, and it is how the British acquired sovereignty over the territory.

Perhaps Makarrata is the culmination of their agenda to right the mistake of the British treating with the Dutch instead of simply treating with us in the first place. Perhaps one purpose of Makarrata is to replace the 1824 treaty as the mechanism that the British/Australia acquire sovereignty over the territory. A retrospective acquisition of sovereignty through settlement.

From that point it goes full circle. Settlement still has that other meaning – people establishing themselves in a new region. If Aboriginal people arrived from somewhere else 60,000 years ago as implied in the Uluru Statement, then they too are settlers. If Aboriginal people are the “First Australians” – then Australia was settled 60,000 years ago and has the oldest continuing governance system in the world. “Young and free” – yeah that’s gotta change… Yes they want to ground themselves in our history, legacy and legitimacy, but it has to fit into their framework – so we have to be settlers too, despite our actual belief systems.