Earl Grey - An Historical Teaser
Were pastoralists' and Aborigines' interests beyond reconciliation? Historians of nineteenth century Australian land settlement note that the few 'reserves' declared in the first half of the nineteenth century were neither sites of Aborigines' moral and intellectual 'uplift' nor sources of their food. If Aborigines were to benefit from land, the colonial authorities suggested in the late 1840s, perhaps it should be by their continuing use of the areas which had been turned over to pasturing sheep and other grazing animals. At the same time, the authorities wished to bring order to the rapid and rather chaotic taking up of land by squatters. To regulate the pastoral frontier, the authorities needed to devise some kind of permission to graze which would allow them to reconsider land use at a later date, while not inhibiting grazing in the short term. Accordingly, the pastoral lease was devised - an attempt to balance the pastoral interest (security of tenure) against the 'public interest'.
How much the colonial authorities conceived Aborigines' interests to be among that wider 'public interest' in these lands is a matter of debate and interpretation among historians. However, there is no doubt that some squatters' violent antagonism towards Aborigines were of concern to land administration officials. Some historians have therefore argued that pastoral leases issued from 1852 gave rights of pasturage which fell short of rights of possession. That is, it is arguable that pastoral leases were not intended to empower lessees to exclude Aborigines from their land.
Historians who make this argument cite Earl Grey's dispatch to New South Wales Governor Fitzroy on 11 February 1848, in which he urged that it was 'incumbent on Government to prevent ['the Aboriginal Tribes'] from being altogether excluded from the land under pastoral occupation. I think it essential that it should be generally understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such land as they may require within the large limits thus assigned to them, but that leases are not intended to deprive the natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner in which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated or fenced in for that purpose.'
When setting out the standard terms of pastoral leases, the officials charged with implementing Grey's dispatch also wished the leases to make clear that members of the public other than the pastoralists could explore for mineral deposits on lands under pastoral lease. To cover all possible competing land uses which governments might conceivably approve, the New South Wales Governor, in April 1850, proclaimed (after Queen Victoria's consent) that pastoral leases could include any conditions and limitations on the pastoralists' rights which a government considered to be in the public's interest. Though the wording of this 'Order in Council' did not explicitly recognise Aboriginal rights in land under pastoral lease, such recognition has recently been inferred by some historians and by some High Court judges in the Wik judgment of December 1996. The grounds for this inference are (a) that there were, in official correspondence, many expressions of concern for Aborigines whose lands would fall under pastoral leasehold, (b) that in subsequent New South Wales and Queensland pastoral leases, a condition was inserted allowing Aborigines 'free access' and the right to hunt and gather food, (c) that the Colonial Office made its intentions to safeguard Aboriginal interests clearer when setting up land legislation in Western Australia in 1850 and in South Australia in 1850 and 1851, and (d) that when the British Parliament granted self-government to the colony of New South Wales in 1855, the New South Wales Constitution Act provided (S.2) that subsequent New South Wales land laws would honour any previous 'contract', 'promise' or 'engagement' in respect of land hitherto sold or granted.
Those judges, lawyers and historians who have studied the development of colonial land policies in the period 1840-60 have not come to a consensus about the above interpretation of the intentions towards Aborigines of those officials, in London and Sydney, who evolved the pastoral lease. However, three of the four judges in the majority in the 1996 Wik Judgement saw Earl Grey's 11 February 1848 dispatch as weighty evidence that, in the Australian colonies' regulation of pastoralists' tenure, Aboriginal land rights were acknowledged and that their 'native title' was not fully extinguished by pastoralists' authorised use of land.
Keywords: Grey, Earl, High Court of Australia, land ownership, New South Wales, pastoral industry, pastoral lease, pastoralism, Queen Victoria, Queensland, South Australia, Western Australia, Wik, 1848
Sources: Reynolds H and Dalziel, J 1996, 'Aborigines and pastoral leases - Imperial and Colonial policy 1846-55', University of New South Wales Law Journal 19(2) 315-377; Goodall H 1996, 'Invasion to embassy: Land in Aboriginal politics in New South Wales, 1770-1972', Allen and Unwin, pp 44-56; Fulcher, J 'Sui Generis History: the use of history in Wik' in Hiley G (ed) 1997, 'The Wik Case: issue and implications', Butterworths, pp 51-6; Brennan, F 1998, 'The Wik debate: its impact on Aborigines, pastoralists and miners', University of New South Wales Press, pp 43-8.
Author: Rowse, Tim and Graham, Trevor