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.
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.
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.
