Reconciliation & Treaties
Australians have difficulty with the idea of treaties with Indigenous people. There appears to be little support in our history for such a departure from the customary ways of dealing with Aboriginal and Torres Strait Islander people.
It is a different story in other comparable countries. Settlement in New Zealand began with the negotiation of the Treaty of Waitangi between the British Government and North Island Chiefs. Hundreds of treaties were signed in North AMerica between the British, United States and Canadian governments. settlement of the Canadian prairies between the Great LAkes and the Rockies during the second half of last century was accompanied by a series of treaties. Canada has recently returned to the treaty making process in order to deal with those areas, like British Columbia, where there had been no nineteenth century treaties.
Treaties were negotiated and signed because it was a practical and effective way to deal with important legal questions. In international law there are only two ways in which colonies can be established in land already occupied. It has to be either by conquest or by treaty. Australia has always shied away from any suggestion that the continent was acquired by invasion and conquest and as we have seen treaties are not thought appropriate. But the question then arises, how did Australia become British?
It is a very difficult question. In the past, the problem was resolved by declaring that Australia had been a terra nullius, a legal vacuum, and that the Aboriginal people had neither actually owned the land, nor exercised sovereignty over it. In other words, Australian law only made sense if the assumption was made that the Indigenous people were so primitive that they lacked the attributes of humanity.
In the Mabo case the High Court determined that it was no longer tenable to assume that Aboriginal people were not the owners of the land on which they lived and declared that they had a form of tenure called native title which has survived unless it had been expressly extinguished. But the question of how the British acquired the sovereignty over Australia in the absence of treaty or conquest remains.
The problem has always been there. It was openly discussed in Sydney, Hobart, Perth and Adelaide, during the 1830s and 1840s. The commandant of the military forces in Perth at the foundation of the colony, Major F C Irwin, published a book about his experiences in 1835 in which he declared that all future dealings with the Aboriginal people should be governed by a treaty negotiated between the parties.
The same position was taken by the Governor of Tasmania between 1824 and 1836, Colonel George Arthur. Having lived through the so-called Black War, he advised the authorities in Britain that in any new settlements treaties should be signed at the very start of the settlement. In 1832 he wrote that it was:
A fatal error in the first settlement of Van Diemen's Land that a treaty was not entered into with the natives, of which savages well comprehend the nature...
Three years later he returned to the subject declaring that:
On the first occupation of the colony it was a great oversight that a treaty was not, at that time, made with the natives, and such compensation given to the chiefs as they would have deemed a fair equivalent for what they surrendered.
A treaty between the Australian Government and the Indigenous nations may appear to be a radical idea. But it is scarcely a new one and there are many precedents for the practice in countries overseas.
It is a different story in other comparable countries. Settlement in New Zealand began with the negotiation of the Treaty of Waitangi between the British Government and North Island Chiefs. Hundreds of treaties were signed in North AMerica between the British, United States and Canadian governments. settlement of the Canadian prairies between the Great LAkes and the Rockies during the second half of last century was accompanied by a series of treaties. Canada has recently returned to the treaty making process in order to deal with those areas, like British Columbia, where there had been no nineteenth century treaties.
Treaties were negotiated and signed because it was a practical and effective way to deal with important legal questions. In international law there are only two ways in which colonies can be established in land already occupied. It has to be either by conquest or by treaty. Australia has always shied away from any suggestion that the continent was acquired by invasion and conquest and as we have seen treaties are not thought appropriate. But the question then arises, how did Australia become British?
It is a very difficult question. In the past, the problem was resolved by declaring that Australia had been a terra nullius, a legal vacuum, and that the Aboriginal people had neither actually owned the land, nor exercised sovereignty over it. In other words, Australian law only made sense if the assumption was made that the Indigenous people were so primitive that they lacked the attributes of humanity.
In the Mabo case the High Court determined that it was no longer tenable to assume that Aboriginal people were not the owners of the land on which they lived and declared that they had a form of tenure called native title which has survived unless it had been expressly extinguished. But the question of how the British acquired the sovereignty over Australia in the absence of treaty or conquest remains.
The problem has always been there. It was openly discussed in Sydney, Hobart, Perth and Adelaide, during the 1830s and 1840s. The commandant of the military forces in Perth at the foundation of the colony, Major F C Irwin, published a book about his experiences in 1835 in which he declared that all future dealings with the Aboriginal people should be governed by a treaty negotiated between the parties.
The same position was taken by the Governor of Tasmania between 1824 and 1836, Colonel George Arthur. Having lived through the so-called Black War, he advised the authorities in Britain that in any new settlements treaties should be signed at the very start of the settlement. In 1832 he wrote that it was:
A fatal error in the first settlement of Van Diemen's Land that a treaty was not entered into with the natives, of which savages well comprehend the nature...
Three years later he returned to the subject declaring that:
On the first occupation of the colony it was a great oversight that a treaty was not, at that time, made with the natives, and such compensation given to the chiefs as they would have deemed a fair equivalent for what they surrendered.
A treaty between the Australian Government and the Indigenous nations may appear to be a radical idea. But it is scarcely a new one and there are many precedents for the practice in countries overseas.
Keywords: reconciliation, Reynolds, Henry (Prof.), treaties
Professor Henry Reynolds. Department of History and Politics, James Cook University.
Source: Walking Together, National Documents of Reconciliation, p 5, November 1998.
Author: Nettheim, Garth
Source: Reynolds, Henry
Source: Walking Together, National Documents of Reconciliation, p 5, November 1998.
Author: Nettheim, Garth
Source: Reynolds, Henry