July 23.
Artwork by Glenn Loughrey
Denial of possession and Discrimination
The denial that the Aborigines were ever in possession of their own land.
The truly amazing achievement of Australian jurisprudence was to deny that the Aborigines were ever in possession of their own land, robbing them of the great legal strength of that position, and of compensation which should have been paid following resumption by the Crown. South Australia's second governor, George Gawler, put his finger on the fundamental issue in 1840 when he observed that 'if the claims of the natives are not void before all, they are preliminary to all. They cannot occupy a middle station'. [1] The official view has always been that Aboriginal claims were always void before all. The intellectual and moral gymnastics required to sustain that position have been quite extraordinary. Before the settlers arrived in Australia there was some reason to suppose that the continent was to some extent uninhabited and that the Europeans would actually be the first inhabitants. But that idea was known to be erroneous within a few years of arrival of the First Fleet and certainly by 1800. Despite all the evidence to the contrary the law continued to insist that Australia was uninhabited, that no-one was in possession. Various jurists described the country as being 'waste and unoccupied' 'desert and uninhabited', 'unpeopled'.
This assessment was given even greater status by the Privy Council in a case in 1889 when it determined that at the time of settlement Australia was 'practically unoccupied without settled inhabitants'. [2] What was even more extraordinary than this judgment by an English law lord who knew little about Australia or the Aborigines was that it was binding on Australian courts as late as the 1970s and even now (1987) its status is not finally determined.
South Australian Gazette, 23 July 1840
Cooper v. Stuart, 1889.
Acknowledgment: Henry Reynolds, The Law of the Land, Penguin Books, Ringwood, 1992, pp.2-3, 203 n.4, n.5.
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Instances of discrimination
…racialist stratification was negatively evident in the European agencies that accommodated the needs of the European but not those of the Aborigines. Thus the local authorities apparently did not conceive that their brief included Aborigines with regard to such matters as sanitation and public health, unless Aborigines became objectionable to the white colonists. [1] Benevolent Societies made no attempt to encompass Aboriginal poverty. [2] Indeed, the rarity with which a European social agency dealt with Aborigines emphasised the normal unconcern. A young ‘gin’ who had been accidentally burnt to death was buried by a Catholic priest. [3] An Aboriginal girl from Grafton was goaled in Townsville as a vagrant. [4] An Aboriginal was misreported to be arrested on ‘Cobb’s Coach’ which caused a northern newspaper to remark: ‘We thought it strange at the time that an Aboriginal should be allowed to ride on a coach “same as whitefellow”’. [5] A drowned Aboriginal was the subject of a magisterial inquiry, which itself was a rare occurrence, and buried in the Bowen cemetery at a cost of £4 to the government. A journalist claimed he should have been buried in a hole in the sand to obviate such extravagance. [6] Before the successful establishment of North Queensland missions, a Christian who conceived of the Aboriginal as fully worthy of Christianity was a rarity. [7]
P.D.T., 5 January 1895, ‘Bowen Municipal Council’. Council business was regularly reported in the newspapers.
See C.C., 7 March 1893. A Benevolent society had been established for seven months and its meetings reported in the newspapers. there is no indication that the members considered Aborigines within the sphere of their benevolence.
H.A., 10 July 1885.
Chief Sec., New South Wales, to Col. Sec., Queensland, 18 October 1884, Q.S.A. COL/A404, 7433 of 1884
P.D.T., 15 February 1879.
P.D.T., 23 July 1887. This Aboriginal was regarded as a villain by the locals. The point, however, is that no one would have begrudged even the worst white criminal a formal burial.
P.D.T., 8 March 1879, for an account of [Bishop Stanton’s] ministry to the Aborigines in North Queensland.
Acknowledgment: Noel Loos, Invasion and Resistance, pp.170, 288-289 n.27, n.28, n.29, n. 30, n.31, n.32, n.33.