October 11.
Artwork by Glenn Loughrey
Colonisation versus ‘continuation of rights’
“One of the troubles of a colonising nation is the decent disposal of the native inhabitants of the country, of which the latter have been dispossessed.”
Acknowledgment: North Queensland Register 11 October, 1893. Cited by Noel Loos, Invasion and Resistance, p.160.
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Two months after expressing his foreboding to his departmental officers [Secretary of State Earl] Grey signed a dispatch to Governor Fitzroy which contained the Colonial Office's considered response to the question of Aboriginal rights and pastoral leases. It addressed the concerns raised by [George] Robinson and [Assistant Protector E.S.] Parker but it also encompassed the practical questions injected into policy making by Herman Merivale about the nature of Australian geography. Thus Grey referred to the requests for the creation of reserves in every large district and observed that while such a scheme was appropriate elsewhere in the world, Australia's soil and fertility demanded a different answer. The dryness of the continent and the need to use large areas of land for grazing called for a peculiarly local solution. In fact:
...the very difficulty of thus locating the Aboriginal tribes absolutely apart from the settlers renders it more incumbent on Government to prevent them 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 to which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated or fenced in for that purpose. [1]
Grey concluded that the rights of possession conferred on a lessee by a lease for pastoral purposes did not include a right to exclude Aboriginal people. The pastoralists' 'exclusive rights to pasturage' co-existed with Aboriginal rights to live on, travel over and obtain their subsistence from leased lands, although Grey accepted that in the case of land cultivated and enclosed 'for the purpose', a lessee would have unqualified rights of possession.
The rights of the lessee and Aboriginal people were 'mutual rights' – a distinct understanding of the extent of their mutual rights is one step at least towards the maintenance of order and mutual forbearance between the parties. If...the limitation...is not...fully recognized in the Colony...it is advisable that you should enforce it by some public declaration or...by passing a declaratory Enactment. [2]
In the following year [1849] Grey returned to the question and in a dispatch to Governor Fitzroy he again explained the relationship which should exist between Aborigines and pastoral lease holders. There could be little doubt, he explained,
that the intention of Government was, as I pointed out in my Dispatch of 11 February last, to give only exclusive right of pasturage in the runs, not the exclusive occupation of the land, as against the Natives using it for ordinary purposes. [3]
By the end of 1850 the Imperial government had determined that all pastoral leases issued in the Australian colonies should contain a clause, or reservation, 'conveying to the Natives the continuance of rights'. [4] In the Wik judgement of 1996 the High Court determined that those rights still survive and have not been extinguished by the issuing of a pastoral lease.
Grey to Fitzroy, 11 Feb. 1848, HRA, 1, vol.26, p.226. 2. Ibid.
Grey to Fitzroy, 6 Aug. 1849, dispatches to Governor, ML, MSS. A1308.
Memos by Mr Elliot on dispatch Fitzroy to Grey, 11 Oct. 1848, CO 201/400.
Acknowledgment: Henry Reynolds, This Whispering in Our Hearts, pp. 58-60, 257 n.27, n.28, n.29, n.30