March 28.
Artwork by Glenn Loughrey
Need for a Treaty
“Rendered powerless without the protection of a treaty...”
Although details are sketchy, it is known that [Lieutenant-Colonel William] Paterson later mounted a series of punitive expeditions against the Indigenous people from the Yorktown base. [1] Not that this was surprising; before redeployment to Van Diemen's Land Paterson had organised reprisals against the Aboriginal people of the Hawkesbury River district in New South Wales. [2] By early 1805 then, the British had firmly established themselves in both northern and southern Van Diemen's Land, well aware that the island was anything but uninhabited, a territorial acquisition largely motivated by European rivalry. As [Frenchman Nicholas] Baudin had earlier pointed out, the legality of the acquisition was highly questionable. Under existing international law there were only three ways that new colonies could be created: through conquest, cession by treaty or purchase, or occupation of an uninhabited land. [3] It was under the pretext of occupation that Van Diemen's Land became a British possession. [4]
The Aboriginal people were not cultivating the soil, and were deemed to be unsettled without any form of government. While the French might express indignation against this unlawful occupation, they were militarily too weak to oppose it. So, too, were the Indigenous inhabitants, who suddenly became subjects of a distant English Crown and therefore answerable to English law. At the same time they were denied the rights normally bestowed upon a subject people. The wholesale acquisition of Van Diemen's Land by Britain also meant that any attempt on the part of Aborigines to protect hunting grounds and resist the dispossession of their territories could only be seen in the eyes of English law as a criminal activity. Rendered powerless without the protection of a treaty genuine rights, the interests of the Aborigines were simply cast aside. [5]
...Claiming that the land was uninhabited or inhabited by an unsettled people became difficult to reconcile with the reality faced by British settlers on the frontier, who were later engaged in a conflict with people resisting dispossession – a struggle that stiffened into all-out war from 1826. The anomalous position that confronted Lieutenant-Governor George Arthur from 1824 was also recognised by Lord Bathurst, Britain's Secretary of State for Colonies, whose instructions to Sir Ralph Darling (soon to take up the post of governor in Sydney) and by extension Arthur in Van Diemen's Land, was that if hostile incursions by the Aboriginal people could not be prevented it would be necessary to oppose them by force just as if they were subjects of an accredited state. [6]
Ryan, The Aboriginal Tasmanians, p.77.
J. Connor, The Australian Frontier Wars 1788-1838, (Sydney: University of New South Wales Press, 2005), p.38.
A. Frost, 'New South Wales as Terra Nullius: The British Denial of Aboriginal Rights', Historical Studies, Vol. 19, No. 77 (October 1981), p.514.
E. Scott, ‘Taking Possession of Australia – The Doctrine of "Terra Nullius" (No-Man's Land)’, Journal of the Royal Australian Historical Society, Vol. 26, Pt.1 (1940), p. 13.
H. Reynolds, Aboriginal Sovereignity: Reflections on race, state and nation, (Sydney, Allen & Unwin, 1996), pp. 98-9.
Earl Bathurst to Governor Darling, 14 July 1825, HRA, Ser. 1, Vol. 12, p.21; H. Reynolds, Fate of a Free People: a radical re-examination of the Tasmanian wars (Melbourne: Penguin, 1995), p.92.
Acknowledgment: Murray Johnson & Ian McFarlane, Van Diemen's Land – An Aboriginal History, UNSW Press, Sydney, 2015, pp. 83-4, 397, n.70, n.71, n.72, n.73, n.74, n.75.