Type 1: Under the Doctrines of Discovery, the discovering power has a fiduciary duty to the native inhabitants of the discovered land. The interests of the native inhabitants over their territory take precedence over the interests of the European discoverers. This is why treaties were seen as necessary. A treaty usually involves an exchange, for example – beads and trinkets in exchange for land. The handing over and acceptance of the beads and trinkets makes the overall transaction appear to be in the natives’ interests. Another way of looking at this is that the European discoverer has a duty to PROTECT the pre-existing interests that the natives have over native lands.

Type 2: Under a English monarchy system, the crown has a duty to protect their subjects from foreign attacks. This is a wider part of defending the territory from foreign attack. This is a type of PROTECTION – it is based on a relationship between crown, territory and subject. This relationship has conditions of Crown allegiance for the subjects, and duties to subjects for the Crown under the Magna Carta.

In Australia, a Frankenstein monster version of these two forms of protection has formed.

There was no treaty with the natives. Instead the territory was acquired by the British through treaties and transactions with third parties – including with the Dutch in 1824, and a treaty of federation between the colonies themselves. The natives became subjects of British law by being inhabitants in British Crown territory – territory which was acquired by the British by fraudulent means. The natives are not “British Subjects” in the usual sense of the meaning – those having a relationship and allegiance to the British Crown (which comes with certain privileges).

But the natives have become “British Subjects” in the sense of being “subjects” of British law – subjects in the same way that a lighthouse in England is subject to British law. This is clear when reading the reasoning in the court case R v Lowe. The court decided to treat the murdered Aboriginal man as if he were a British Subject for the purposes of the case. The reason was not for protection of life of an Aboriginal man as a British Subject with a relationship of allegiance to the Crown – but because the incident happened on British dominion/soil. R v Lowe was the start of Aboriginal people being like lighthouses, or Flora and Fauna – objects subject to British law.

R v Lowe was a hook, a foot-in-the-door that was gradually extended upon using other court cases.

The notion of protection has two different meanings, and it has always been ambiguous which of these two meanings is the basis of Aboriginal protection policies from the state. This explains why protection often paradoxically involves destruction – with official government Protectors running massacres. For outward appearances, to the international observer watching in terms of the Doctrines of Discovery – protection means protecting native’s interests in their land, and at least pretending to put those interests ahead of the discovering power’s interests. But domestically in Australia – protection had the second meaning which spelt destruction of Aboriginal people who interfered with the British Crown’s allegiant subjects (squatters) enjoyment of their rights under the Crown’s law.

The Australian Constitution Act is partly written for outward appearances, and partly for internal administration. The exclusion of people of the aboriginal race (small ‘a’ in aboriginal because it was an adjective in the original text) in the races power was to look like it was for the protection of the interests of the natives. This is protection of native people’s interests who are colonised under Discovery doctrines. This should have been a reasoning put forward in the Hindmarsh Island case – the basis that federal legislative power should only be used to make laws for the benefit of native people due to the fiduciary duty of a colonising power. There are US court cases that could have been used to justify this position, and US court cases have been used in other Australian cases. But much weaker reasons were used because the Hindmarsh Island case was a collusive case for further extension of colonial power.

Aboriginal people’s own free enjoyment of their interests in their land played second fiddle to the interests of white British land owners – and this still is the case today. Native title consists of whatever is left over after squatters have what they want.

Of the two kinds of Protection – it is the first type that needs to be re-emphasised. The native people’s territorial interests take precedence and require protection over the territorial interests of the occupying colonial state. This is more recently emphasised in UN General Assembly resolutions 1514 and 2625. It is our right as peoples under colonial subjugation on our own lands to territorial integrity, and our right to freely determine our political status.

The colony on the other-hand would rather emphasis the second type of protection (as allegiant Crown subjects) as it implies we are simply a minority, with no right to make laws over our own land, or to have homeland/s of our own.