Podcast Launch: Thinking Sovereignty

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This year I will concentrate on reaching out to new audiences with a podcast. My podcast has been created, and is available on Spotify, and should be listed in Google podcasts in a few days time.

I will keep working on this blog as a log of me discovering new information. The podcast is mostly for getting out to mob very important findings that I have already blogged about.

I also plan to post podcasts as audio-videos on my youtube channel. This is mainly because I like listening to talks on youtube and I know others like to.

You can listen to the first, and so far only podcast episode here;

The episode above will compliment an online presentation I will make for Invasion Day, which will be up on Youtube on that date. There will also be a podcast version of the presentation posted

Fiduciary duty and First Discovery

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The courts decided they have jurisdiction over Aboriginal people because Cook discovered Australia under First Discovery. This is clear when analysing the details of landmark cases in early criminal case law – summarised in the image below (this is a photoshopped adaptation of Davey’s proclamation of the same era);

Under First Discovery principles, the discovering Crown has a duty (fiduciary duty) to protect the rights and interests of the people of the discovered land. This duty was used by the courts as a hook to pass laws regarding Aboriginal people.

The duty only applies to areas of First Discovery, hence why in Bonjon – a case in Port Phillip which is outside of Cook’s First Discovery claim – the court did not decide on jurisdiction, shrugged their shoulders and handed Bonjon over to the “protector”.

Most of “Australia” was acquired by the British through a “settlement” (as in a legal settlement/agreement) with the Dutch. The settlement was concluded with respect to native inhabitants (article 14 in the treaty) in 1830, hence why the courts walked away from R v Murrell, which was before this date.

First Discovery does not apply over most of Australia. It only applies in pacific flowing water catchments (and historically appeared to apply to the Murray Darling basin). There is no Crown fiduciary duty over most of Australia.

This was confirmed in the Hindmarsh Island case where the courts decided they can pass discriminatory laws against our interests.

This means that unlike other peoples under settler colonial subjugation who have had fiduciary duty recognised and had at minimum lip service paid to it – we have not. Crown conversely has no right of preemption. This means we can treaty with literally any nation in the world. We owe the Crown nothing.

Privy Council never said Australia was ‘settled’

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As I pointed out in a previous post, the Privy Council advice in 1889 did not make a decision on how sovereignty was acquired. All they said was that the land was “without settled inhabitants or settled law” for the purposes of figuring out how English law can be smoothly applied in the territory.

Today I realised I am not the only one who has noticed this. Judge Jacobs picked up on this 5 April 1979 (Coe v Commonwealth 24 ALR 118),


“I go now to the third part of the proposed statement of claim. This is in parallel with the second part. Whereas the second part is based upon the assumption that New South Wales was a settled colony of the Crown, the third part is based upon the allegation that the colony was conquered territory. I do not think that paragraphs in this alternative form ought to be struck out. The view has generally been taken that the Australian colonies were settled colonies; but, although that view was expressed in Cooper v Stuart (1889) 14 App Cas 286 and in Randwick Municipal Council v Routledge (1959) 102 CLR 54, there is no actual decision of this court or of the Privy Council to that effect. The plaintiff should be entitled to rely on the alternative arguments when it comes to be determined whether the aboriginal inhabitants of Australia had and have any rights in land.”

Judge Jacobs, dissenting opinion

The majority opinion says this;

For the purpose of deciding whether the common law was introduced into a newly acquired territory, a distinction was drawn between a colony acquired by conquest or cession, in which there was an established system of law of European type, and a colony acquired by settlement in a territory which, by European standards. had no civilized inhabitants or settled law. Australia has always been regarded as belonging to the latter class: see Cooper v Stuart (1889) 14 App Cas 286 at 291

This confirms what I wrote in my other post. Without settled inhabitants or settled law (the wording in the Privy Council advice) means without law from Dutch settlers. It does not mean without established law. It does not mean sovereignty was acquired on the basis that the territory was considered a terra nullius.

“Australia was settled” – this is another made-up doctrine, like terra nullius was. It has never been confirmed with any authority.

Timelines: acquisition of territory from the 1824 treaty

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I made these timelines for the video. Please watch the video for commentary.

I am posting these timeline images in full resolution in case anyone wants to use them in their own research, copyright free.

Timeline 1788 arrival of First Fleet until British claimed Western Australia. The territorial acquisition timeline.

Timeline 1824-1825 detail showing the way the Anglo-Dutch Treaty of 1824 prompted a flurry of activity in the colony of New South Wales

Something else I didn’t mention in the video – but the appointment of Governor Darling was done in an interesting way – time-wise.

Notice that Governor Brisbane was recalled very shortly after repealing martial law at the end of 1824. Yet it took almost a year before he was actually replaced. The Crown waited for the treaty closure/settlement date on 1 March 1825 to pass before the letters patent for Darling’s commission were issued.

Governor Darling had two separate commissions. On the way from London he stopped at Van Diemen’s Land to .proclaim it a separate colony. Darling lands in Van Diemen’s Land AFTER Governor Brisbane has left Port Jackson. Darling then proceeds to Port Jackson to start his governing up to the 129E mark.

Looking at how this played out in timing with the treaty and with Furneaux’s secret discovery of the Bass Strait, I wonder if Van Diemen’s Land was ever properly part of New South Wales to begin with.

Acquisition of sovereignty by settlement

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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.

New Video: Frontier – The Doctrines of Discovery in Australia

~ Jessica Savage ~ 3 Comments

The Doctrines of Discovery in Australia is a video series I am slowly working on.

The goal of this video series is to go through the process of colonisation in Australia, chronologically from the start to the present, and to examine what happened in context of the Doctrines of Discovery. The Doctrines of Discovery being understood to be a protocol between European Crowns. Elements of the doctrines are still being ‘imported’ into domestic law in current times, even though the doctrine is supposed to be dead 60 years ago.

I think that in Australia, there is a oversimplification on how the doctrines of discovery functioned and how they were applied in the colonisation of Australia.

It is either “Captain Cook is a hero and discovered Australia” or “the evil British invaded the First Australian nations”. But it is a lot more complicated than this. If you ask an Australian “when did Australia become an independent nation” you may get five different answers. The reason is because there are multiple layers of the colonisation process going on. Going through chronologically and examining colonisation in context of Doctrines of Discovery and of International law unpacks the layers one by one.

This video is part 2. It is about the period from the First Fleet to about 1830. During this time, the land underwent a territorial change from being Dutch to being British. A bloodless frontier line moved across the land. This is important background because it means the British did not acquire sovereignty in a uniform way across the whole land.

This has very important implications that I will draw on later in the series. The pattern of territorial acquisition has affected every high-profile major High Court case on Aboriginal issues – from Mabo, Kartinyeri, Wik. These cases are all hand-picked – the way the British acquired sovereignty over the lands in question will lead to a specific outcome. What is special about Mer Island, Hindmarsh Island and Cape York? Why did the Myall Creek massacre lead to a criminal trial but not other massacres? It’s all to do with how they were claimed and colonised in a technical, territorial sense in the first place.

Was Van Diemen’s Land ceded?

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I already made a post about the Anglo Dutch Treaty of 1824.

I recently read the treaty again and noticed this;


Article XIV

All the inhabitants of the territories hereby ceded shall enjoy for a period of 6 years from the date of the ratification of the present Treaty, the liberty of disposing, as they please, of their property, and of transporting themselves, with out let or hindrance, to any country to which they may wish to remove.

https://en.wikisource.org/wiki/Anglo-Dutch_Treaty_of_1824

FYI the ratifications were on 30 April 1824 for Britain and 2 June 1824 for the Dutch, with instruments exchanged on 8 June.

So the Anglo-Dutch Treaty of 1824 says that inhabitants of ceded lands have 6 years to remove themselves.

Well it was 6 years and 5 months after the treaty – that the Black Line started!

Black Line, October–November 1830
The Black Line consisted of 2,200 men: about 550 soldiers—a little over half of the entire garrison in Van Diemen’s Land—as well as 738 convict servants and 912 free settlers or civilians. Arthur, who maintained overall control, placed Major Sholto Douglas of the 63rd Regiment in command of the forces. Separated into three divisions and aided by Aboriginal guides, they formed a staggered front more than 300 km long that began pushing south and east across the Settled Districts from 7 October with the intention of forming a pincer movement to trap members of four of the nine Aboriginal nations in front of the line and drive them across the Forestier Peninsula to East Bay Neck and into the Tasman Peninsula, which Arthur had designated as an Aboriginal Reserve

https://en.wikipedia.org/wiki/Black_War#Black_Line,_October–November_1830


I’ve been doing some mapping trying to see the progression of the Dutch/British territorial frontier. From what I can tell, the Forestier Peninsula and Tasman Peninsula are still not British territory at this time. If you look at where the British settlements and military posts are and how they were placed, and look at where Tasman claimed possession – this corner of Van Diemen’s Land is still Dutch. (I’m doing a video soon on this frontier line, and more detail will be in there)

I figured this frontier line out before I actually noticed that George Arthur had designated it as an Aboriginal reserve! I was shocked (and validated) when I read that!

No, it’s not an “Aboriginal reserve” – it is Dutch territory that was claimed by Abel Tasman. Aborigines are being treated as if they are Dutch subjects, and being pushed onto that land. Once they are all in that area, they are removed out completely.

The Bass and Flinders expeditions 1797- 1799

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In 1797 – so about 10 years after the First Fleet – Bass and Flinders made a series of shorter expeditions from Port Jackson. This post I’m going to write about what I think was the overall strategy behind these expeditions.

Bass 1797-1798

The first of these short expeditions was by Bass. In 1797-1798 he followed the coast line southwards from Port Jackson almost all the way to current-day Melbourne.

The world was historically divided by European colonisers into two hemispheres. The Treaty of Saragossa runs through the New Holland continent, and Alexander Darlymple’s writings show the British had their eyes on parts of New Holland that lay in the western hemisphere.

The Treaty of Saragossa is where the border that separates two hemispheres is described. There are two descriptions of the line given in the treaty text. One description gives a number of leagues west of the Maluku Islands. Another description says it runs through the Islands of the Sails – and these are today called the Mariana Islands where Guam is.

What I think Bass was doing on this expedition was surveying to find the southern-most point of the New Holland mainland that is still in the western Hemisphere. Bass turned his boat around when he reached the same longitude of Guam, and headed back to Port Jackson.

Flinders 1798

In 1798, Flinders also went on an expedition in the Bass Strait and around the Furneaux Islands.

I think this expedition was to answer some questions raised by Tobias Furneaux’s voyage. Tobias Furneaux was the captain of the Adventure – the second ship on Cook’s second voyage. This voyage by Flinders seems to retrace parts of the path that I hypothesised (pink line in the chart) Furneaux to have taken.

Flinders+Bass 1798-1799

Flinders and Bass then together went on a longer voyage where they circumnavigated Van Diemen’s land. They charted some sections in a lot of detail, up in the Derwant River (near Hobart) and the Tamar River (leads to Launceston).

These specific sections of survey have been chosen to scout out places for future settlements that will help quarter up Van Deimens land into chunks, to shrink Dutch territory and displace Tasman’s first discovery.

1799 Flinders “Queensland” expedition.

Flinders was off again – this time for less than a month where he visited two areas in particular on what is now the Queensland coast (although at the time Queensland didn’t exist). Here is a rough map of the entire voyage – in just over a month. Note how much other coast was just skipped-over, and the voyage made a bee-line to two areas.

The first area was Moreton Bay – where Brisbane is today. The fruit/milk icons shows the places he stopped.

Moreton Bay.

The white line is the exact halfway latitude between Cape York – the northernmost point of Australia and South Cape – the southernmost point of Tasmania. Flinders even went inland and climbed up some of the Glasshouse Mountains. He named Redcliffe as some cliffs near the current-day bridge, but today the whole peninsular is called Redcliffe. This area ended up becoming a penal colony which was later relocated up the Brisbane River to the current Brisbane CBD.

The second area was Hervey’s Bay – today called Hervey Bay – on the west side of Fraser Island. The white line on this chart marks exactly half way between the latitude of Cape York and Wilsons Promontory. Wilsons Prom was surveyed by Bass (1797 voyage) to be the southern-most point of New Holland that lay in the western hemisphere of the world.

The reason to survey these areas of Moreton Bay and Hervey’s Bay is to find strategic places just in case of a conflict with the Dutch. For example – by placing a settlement in Moreton Bay makes a northern boundary marker in case the territory is halved along a north-south Dutch-British line. If Van Diemen’s Land is lost to the Dutch, a settlement near Hervey’s Bay would serve the same purpose.

The Uluru Statement Explained

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The two parts of the Uluru Statement are;

  1. A Seventh state for “First Nations”
  2. The Declaration of Recognition (Independence)

1. Seventh state for “First Nations”

Remember Michael Mansell’s idea for a seventh state?

Well, it’s not much different to what the Uluru Statement asks for.

What is a state anyway?

To answer this – lets go back to the federation of Australia in 1901.

The word Federation – comes from Latin “foederatus” roughly meaning “treaty”.

In 1901, 6 British colonies of the Australasia region concluded a treaty with each other – the Federation of Australia. The federation treaty is about sharing powers over the land. It is a written treaty. The powers are divided up and written in the constitution of each of the parties to the treaty. For example – the Queensland Constitution lists the powers that Queensland has. The Australian Constitution act lists the powers that the federal government has.

The ongoing problem with the arrangement is that all of the colonies still act in the right of a foreign crown. It doesn’t matter how complicated their government is – or how they shift the deck chairs on the ship – it doesn’t change the fact that they act in the right of the Crown of England, and that Crown does not have the right to speak for country.

How can this ‘problem’ be fixed?

Aboriginal and Torres Strait Islander peoples have the right to speak for country. If their right to speak for country (their Voice) is also enshrined into the federation, then the federation will inherit the power to speak for country.

For this to happen, firstly the Aboriginal and Torres Strait Islander people need to form a new state. To do this – they need to have their own constitutional convention to write their own constitution. This has already happened during the 2017 First Nations Constitutional Convention at Yulara. The next step is for the new First Nations state to become a party to the already existing treaty of federation.

Voice, Treaty, Truth. The Treaty is the federation. And it’s already negotiated, and has been in effect since 1901. First Nations can join in though a legitimate international process in accordance with Vienna Convention on the Law of Treaties called “Accession”.

But most people wrongly think that a state must have it’s own land-base. But that is not true. There is such thing as non-territorial federalism. This already exists elsewhere in the world – for example French and Dutch speaking communities in Belgium have their own states, and the Saami people in Scandinavia also have their own state. But these states have no land, they are just representation of ethnic groups.

States don’t have to have any land at all.

Because most people don’t know this, they don’t recognise that the Voice is a state.

The Voice will have no land and barely any power. It will be reduced to a token mouthpiece to give the Australian federation the right to speak for country.

2. Declaration of Recognition/Independence

The second major part of the Uluru Statement is the Declaration of Recognition. This is in the Referendum Council Final Report, and it is an idea that came out of the think-tank Uphold and Recognise.

You may have never heard of it because it has flown under the radar in the Uluru Statement campaign. But it is in the Referendum Council Final Report as a key recommendation. It was in the media before the Yulara Convention and was promoted by Noel Pearson. But since Yulara it is very rarely discussed in the media. It is part of the Uluru Statement because it is in the Referendum Council Final Report.

In 1986, Australia passed the Australia Acts. The Australia Acts made Australia administratively independent. This means that the Crown can’t interfere in the administration of Australia.
But the Crown is still the ultimate source of authority for the Australian governments. The Crown is like a robot automatically approving anything the Australian people wish for, but the approval stamp is still needed for everything they do.

You can tell this because when representatives are sworn into parliament – they swear allegiance to the Crown – not to the Australian people. When someone is prosecuted of a crime, they are prosecuted by Crown prosecutors. It’s not like in America where it’s like “The people of the State of California vs. blah”. In Australia it’s in the right of the Crown “R. vs. blah”. A automatic, robo-Crown sits right at the top and ultimately signs off on everything.

The biggest problem for the colony is not that it is embarrassing to have a foreign, robo-Crown head-of-state – but that it means Australia has not decolonised. Aboriginal and Torres Strait Islander peoples are still under “alien subjugation, domination and exploitation”, and therefore they have the right under international law (A/RES/1514(XV)) to become independent in their own right if they so choose. If Aboriginal people figure out how to leverage these international laws on decolonisation – the colony will be under a lot of pressure.

To make sure Aboriginal and Torres Strait Islander people do not exercise their rights as colonised peoples and overthrow or otherwise upset the Australian status-quo, the Uluru Statement reform package includes the Declaration of Recognition to pre-empt Aboriginal people’s right to decolonise on their own terms.

The Declaration of Recognition is an international declaration on behalf of three groups of people; First Nations people, White-Australia/colonial Australians, and later migrant Australians. The declaration asserts authority of those people over the land. As First Nations people are included – the declaration will be a legitimate form of decolonisation.
It will give the three waves of people together as one unit – the source of authority to speak for country. This authority can replace the foreign crown, and make Australia fully independent and able to stand in it’s own power. It paves the way for a truly democratic society without the robo-Crown middleman – but throws Aboriginal and Torres Strait Islander peoples under the bus while doing to.