Much of the strategy behind James Cook’s first voyage was based on the work of Alexander Darlymple. Darlymple catalogued and translated many Spanish documents during the British occupation of Manila, and key information that Darlymple found was exploited during Cook’s voyage.
In the preface of the book is this rather interesting paragraph. Darlymple refers to another book by Charles de Brosses;
M. DE Brosses has, in his table of voyages made a very judicious arrangement under the three heads of MAGELANICA, AUSTRAL-ASIA, and POLYNESIA; by this means we see at once the situation, as well as time of the several discoveries : his translator has only given, in his table of contents, a general list of the voyages, without distinguishing into what quarter they were made; although the different heads have often no affinity. As M. DE Brosses’ table is a very valuable compendium of chronological discoveries to the south, I have taken the liberty to insert it, with the authors he refers to; I have added such voyages as he has omitted, and the authorities which have escaped his research : distinguishing them by an asterisk*. I have inserted another head of partition, Australia, comprehending the discoveries at a distance from America to the eastward.
Charles de Brosses coined the term Polynesia to mean most of the islands in the Pacific. Later that meaning was shrunk to a smaller sub-region in the Pacific. Magelanica was the area around south America. Austral-asia was Australia and New Zealand, lying on the edge of the Spanish lake (the Pacific Ocean).
Darlymple has suggested using the term “Australia” for discoveries “at a distance from America to the eastward”. Darlymple writes about the need to distinguish which quarter of the world new discoveries are in. Quarter meaning the earth split into 4 by the Equator and the Treaty of Tordesillas and Treaty of Saragossa. He must be referring to “the eastward” as in – the far east and south quarter of the world. In other words, west of Guinea and in the southern hemisphere, including the Indian ocean, but not including the Spanish lake/Pacific Ocean. Exactly where New Holland is.
Darlymple has taken Brosses’s concept of Austal-asia, renamed it Australia, and tried to shift it’s meaning to refer to the south and Portuguese east quarter of the world.
In a chart that sets the scene at the start of the book, Darlymple uses the term “New Holland” for what we know as Australia. Darlymple uses the terms “Terra del Espiritu Santos” or “Manicola” to refer to the pacific islands discovered by Quiros.
Darlymple’s chart with “Terra del Esp. Santo or MANICOLA” with Bay of St Phillip and St James marked.
In Darlymple’s literal translations of Quiros’s memorials, he consistently uses the spelling Australia – as in “Australia del Espirito Santo”. I went and found the original memorials that Darlymple has translated.
Another example from another memorial (on page 245 of Darymple’s book, the Sixth memorial), Austrialia is now Australia.
This might not have been Darlymple’s error, as he may have used indirect sources.
But what is interesting about his book is that Darlymple uniformly uses the spelling “Australia”, and not the literal Austrialia or Austral. He was called out by Spanish writers for this.
He has used this spelling as both referring to a specific quarter of the world, and in translations of Quiros’s memorials describing Quiros’s discovered land. Darlymple might not know whether or not Quiros’s land actually lies in that specific quarter of the world. That question is what Cook’s first and second voyages were set out to determine. Cook was sent out instead of Darlymple, but the two voyages were Darlymple’s idea.
Speculative charts by the French (eg. Brosses and Bellin charts below, look at the north Queensland coast) show Quiros’s land as connected to New Holland.
Cook’s first voyage went up the east coast of Australia. He made a very short landfall at Yarrabah near Cairns. The bay in question from the direction Cook approached would have resembled the map of Quiros’s land made by Prado y Tovar. The position of Fitzroy Island in relation to the bay resembles Sakau in relation to Big Bay in Espiritu Santo in Vanuatu. Sakau is on Prado Y Tovar’s chart.
Cook made an excursion here at Yarrabah to look for fresh water in a mangrove swamp. He was probably expecting the large River Jordan as named by Quiros. But it was not, so he moved along.
It was shortly after this brief excursion that Cook allegedly smashed his ship on a reef and went into the Endeavour River at Cooktown. This site does not match Prado Y Tovar’s chart well, but it matches Quiros’s description of the bay with two rivers at latitude 15 degrees. Cook was clever to throw some cannons overboard to “reduce weight”. These cannons are in lieu of leaving inscriptions and markings, they prove he was there. The cannons were later found by an American expedition in the 70’s. Cook got everyone else to play along – no doubt Banks and others writing journals would have been on non-disclosure agreements as condition on being on this secret mission.
Something amusing – when Cook eventually departed the Endeavour River, he wrote;
Saturday, 4th. In the P.M., having pretty moderate weather, I order’d the Coasting Anchor and Cable to be laid without the barr, to be ready to warp out by, that we might not loose the least opportunity that might Offer; for laying in Port spends time to no purpose, consumes our Provisions, of which we are very Short in many Articles, and we have yet a long Passage to make to the East Indies through an unknown and perhaps dangerous Sea; these Circumstances consider’d, make me very Anxious of getting to Sea.
To paraphrase – We have to go because we are running out of supplies. Not – Hurrah! we finally got the ship ready and are leaving at our first opportunity.
Read the proceeding days of journal entries. Nothing happens. It sounds like they are waiting around for no reason. They spent 51 days in the bay and river fixing the ship. Yet just before that, at the reef in just a few days they managed good-enough emergency repairs to sail-on to the river. Two days to do a difficult repair of plugging a hole while at sea, then 51 days being the first Europeans to enjoy a tropical North Queensland holiday.
The overly-lengthy 51 day stay was simply to be there longer than Torres. Torres was in the bay at Espiritu Santo for 50 days. They were waiting around, they were not repairing.
Cook’s tropical holiday in Cooktown, along with Darlymple’s new proposed geographic region both served to conflate Quiros’s Australia with New Holland. This excursion up the east coast of New Holland was predetermined. The idea of renaming New Holland to Australia is older than Flinders – it was set in motion by Darlymple before Cook even left on his first voyage.
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).
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.
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.
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.
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
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.
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.
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.
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?
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.
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.
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 therefor 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 Navigatorsand 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 andtherefore 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 byfrom the Ship
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.
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 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.
As a general principle of the European discovery doctrines, the right of pre-emption is held by the discovering Crown.
The right of pre-emption under the discovery doctrines means the discovering Crown reserves an exclusive right against other European powers to conduct business on that discovered territory. In other words, the discoverer has ‘dibs’. That includes ‘dibs’ on purchasing land from the natives, doing a treaty with the natives, declaring war on the natives, or settlement with acquisition of sovereignty if the territory is a true terra nullius.
The right of preemption has a corresponding fiduciary duty. A fiduciary duty, in general terms; is a duty to respect and protect the interests of a party who is in a position of vulnerability and in your care. The holder of the right of preemption does not have a blanket license to take all. An everyday example – if you are looking after an old lady – you don’t steal all her money out of her purse, even though you have full access to it. In Canada this duty is called the ‘honor of the Crown’. In Australia it remains unacknowledged. In Isabel Coe vs Commonwealth (1993) an attempt was made to get it recognised.
This fiduciary duty is a large reason why colonisers bothered with treaties, as the political settlement (treaty) formalises this duty of protection and care, and affirms the corresponding pre-emptive right (example: see the Treaty of Waitangi article 2). The pre-emptive right is what colonisers want to secure, as it means they won’t have trouble from their European competitors.
In British North America before US independence – the right of preemption to the east of the proclamation line of 1763 was vested jointly in the colonial governors and the British Crown. The right of preemption to the west of the proclamation line was declared exclusively for the British Crown, making any British territory west of the line a massive ‘Indian reserve’. This meant that British North American governors could only grant land on the east of this line.
British North America Proclamation of 1763 line. To buy land in the pink area (Indian reserve) was difficult as one had to travel to London and have friends in high places. Land in the red area could be more easily granted by local governors. Source: Public domain, via Wikimedia Commons
The settlers in British North America got angry because there wasn’t enough free/cheap land being handed out (amongst other grievances). They had a revolution over it.
In the Johnson vs M’cIntosh case in the newly independent United States, a precedent was set that the doctrine of discovery right of preemption can be inherited by a successor settler-state. One of the many effects of the court decision was that it effectively transferred the right of preemption from the British Crown to the US federal government.
Not long after Johnson vs M’cIntosh, the British Crown asserted the exclusive right of preemption for New South Wales (Bourke Proclamation). Not even colonial governors from this point – could purchase land from Aboriginal people.
Recent evidence has been found showing that Johnson vs M’cIntosh was a collusive lawsuit – which means it wasn’t a genuine fight between two parties but was set up to manipulate the courts and change the law to favour land speculators. Even the judge of the case (Marshall) had land holdings and profited from his own judgement. In Australia – Batman (the trigger for the Bourke Proclamation) had legal assistance directly from London.
You gotta wonder – was the Batman “treaty” itself a collusive action by London? There was a bit of a problem with the initial ‘discovery’ claim of the “Eastern coast of New Holland”. When Cook allegedly raised the flag on Possession Island, he (or his ghost-writers in London) explicitly acknowledged Dutch discovery claim over New Holland. The Bourke Proclamation fixed this up somewhat by affirming pre-emption (against the Dutch crown) up to the western border (135 degrees E) of New South Wales. The land that Batman tried to purchase was further west than any other settlement at the time. If it was colonial collusion, then it makes sense to make a jump westward, as it has an added benefit of shifting the consumated/settled British claim westward.
Thevenot’s map (composite of Dutch discoveries). The line down the middle is at longitude 135 E, and became the initial western boundary of the colony of New South Wales as declared by Phillip. It was also used as the western extremity of the Bourke Proclamation. Cook only claimed British discovery of the “East Coast of New Holland”.
The British Crown did treaty with some natives of New South Wales – in what became New Zealand. Unlike on the “Australia/New Holland” continent, in New Zealand the French had sent settlers. The French had provisionally purchased land on the south island and sent a fleet of settlers who arrived on the south island just a few months after the Treaty of Waitangi. If the French had also sent settlers to New Holland, the British no doubt would have scrambled to Treaty with Aboriginal people as they did in New Zealand.
But with no serious competition, the British Crown then sat back and did next to nothing while the governors in continental New South Wales handed out stolen land titles. The Crown failed it’s fiduciary duty as holders and asserters of the right of preemption. It did not ensure that agreements were secured to obtain title from natives before land parcels were being handed out in the Crown’s own name.
But after the Bourke Proclamation, the British Crown did issue some “protection” acts, and conducted a show-trial and hanging the perpetrators in the Myall Creek massacre (whilst ignoring many other massacres, some committed by official “protectors” themselves). These actions show at least a superficial demonstration of upholding a fiduciary duty. But for the most part – a blind eye to atrocity was taken by the Crown, possibly because they wanted to keep settlers satiated with free land out of fear they lose Australia completely like they lost the United States.
Australia after World War 2, started acting as a separate international actor from the British crown, at least administratively. But the right of preemption was still held with the British crown. This is because of the way the Bourke Proclamation retained exclusive rights in the Crown and in the Crown only. It was not shared with the Governors of the Australian colonies – as was the case east of the proclamation line of 1763 in British North America.
Also after World War 2, colonialism was condemned in UN General Assembly Resolution 1514. Continuing to hold people under colonial subjugation is now an international crime. This is regardless of whether or not the initial acts of colonial invasion were considered legal or not at the time.
The only way for colonialism in Australia to end under the UN decolonisation standards (short of full Aboriginal independence) is by an agreement with Aboriginal people. Australia needs – at minimum – an agreement of ‘consent of the governed’ with Aboriginal people.
But (as of c.1990) Australia, as a now separate international actor to the British crown, is prevented under it’s own laws for making agreements with Aboriginal people, because the preemption prerogative from the Bourke Proclamation still belongs to the British crown.
A way had to be found to transfer that prerogative from the British crown to the “Australian crown” – the local, autochthonous sovereign. The new Australian Crown has been forming itself very gradually over the decades. The new Australian crown became administratively separate from the British Crown in the Australia Acts (1986). The Australia Acts are almost a true treaty between the two crowns. Look at the way they were signed, the Queen signed the British version, then personally flew over to sign the Australian version of the Australia Acts.
Mabo 2 was the solution to transfer the right of preemption. From a insular domestic perspective, Mabo overturned ‘terra nullius’. But from an international law perspective – it overturned the British crown’s right of preemption. It transferred the right of preemption to the successor settler-state – at least when concerning land titles.
In the Mabo case specifics; Queensland annexed Mer before federation in an Act of State in their own Parliament’s right – not in the right of the British Parliament. This is a crucial point, as it made the case similar to Johnson vs M’Intosh in dealing with a successor-state to a European colonising power. If it were any other parcel of land in Australia – it would not have worked. Furthermore – everywhere west of the “Eastern coast of New Holland” has a sketchy British discovery claim which could destroy the argument. Mer/Murray Island was a cherry-picked case. Small as the island is, it is the largest piece of land that could work.
The domestic High Court reasoning in Mabo 2 did not directly draw on the right of preemption. But instead, they imported a derivative of that right of preemption – international Aboriginal Title law (which already existed in other settler-colonial states). Aboriginal title law itself, is based on the fiduciary duty that comes part and parcel with the right of preemption. Native title/Aboriginal title was the trojan horse to import it’s parent concept (the right of pre-emption).
If you read Mabo 2, and compare it with the Johnson v M’Intosh judgement – you will see much of the origins and philosophy behind the concept of Aboriginal Title and it’s Australian version of ‘Native Title’. It is rooted in the Doctrines of Discovery.
Here’s a couple of excerpts from Johnson v M’Intosh (more found here);
These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of nature, by the extent of men’s wants, and their capacity of using it to supply them. It is a violation of the rights of others to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle the North American Indians could have acquired no proprietary interest in the vast tracts of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it.
Indian land rights are whatever is left over after white man has taken what he wants. And Indian Title is not alienable, not even to other Indians. North American Indians have no proprietary interest. Look familiar? This is the foundation of Native Title!
The Uluru Statement describes the “First Nations” as being possessors of the land. Be very careful of this term.
The Indians were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and . . . Discovery gave exclusive title to those who made it.
Yup. The denial of sovereignty to boot. And beware that possession is not ownership, and it’s not sovereignty. It’s tokenism.
Mabo 2 introduced a ‘limited possessor’ concept of land rights. There has been no subsequent equivalent of Worcester v. Georgia in Australia, so unlike in the USA where tribal sovereignty is recognised – we are left hanging in limbo with no recognition of sovereignty and no formalised relationship with the coloniser.
However, as much as they try to limit our land rights to “traditional” rights, I would argue we do have a real proprietary interest – as pre-occupation we asserted the right (and this was reciprocated by neighboring nations) to exclude other persons from our land. That is the basis of land ownership, even under white mans’ philosophy. The first thing a white man does when he buys his land is put up a “no trespassing” sign. He demonstrates his ownership when he puts the sign up – there is no need to first wait for him to build structures or work the soil. We had the same thing – continental wide. I don’t know that much about my ancestral lands, but I know what our “no trespassing” signs look like. If we had this single traditional right recognised – there is your veto to any land-based activity. Miners can’t mine if their staff are not allowed to enter your property. We exercised this power of veto before colonisation.
It’s amazing that Australia – so recently in 1992 – began importing into domestic law such backward concepts that are based on the Doctrines of Discovery. This is more than 30 years after the UN declared the end of Colonialism. It’s also amazing is how they managed to sell Mabo 2 as some kind of win for Aboriginal rights. Much like the Uluru Statement is being sold now.
So what’s up with the corresponding fiduciary duty post-Mabo2? I’m supposing that “Close the Gap” is a demonstration of that, in the same way the Myall Creek show trial was. “Close the Gap” has been as effective in increasing wellbeing about as well as the Myall Creek Massacre worked to deter massacres. Is that any surprise?
It’s a really bad look when a trustee is getting filthy rich off the beneficiary who is living in misery, especially with a widening “gap”. Britney Spears’ current situation comes to mind. We are Britney, and the colony are her parasitic family.
Mabo 2 occurred in 1992 to overturn the British Crown’s right of preemption in preparation for the 1999 referendum. This was supposed to be part of the final ‘agreement’ with Aboriginal people which was needed to achieve decolonisation through a reconciliation instrument.
