He must have at least, some reasonable assurance that He is not about to sanction any act of injustice towards the Aboriginal natives of that part of the Globe. In drawing the Lines of demarcation for the new province or provinces, the Commissioners therefore, must not proceed any further than those limits within which they can shew, by some sufficient evidence, that the land is unoccupied, and that no earlier and preferable Title exists.19
For men who had never set eyes upon the lands, and who had used Sturt’s account of his Murray River explorations as their real estate guide, these were most difficult things to do. In their efforts to appease the Colonial Office, the Colonisation Commissioners gave a variety of undertakings: they agreed to the appointment of a Protector devoted solely to the welfare of Aboriginal people; they would negotiate land cession treaties where this was required; they would provide any necessary medical and material aid; and they would promote the spread of ‘Christianity’ and ‘civilisation’. As the negotiations continued, the Colonial Office indicated that it wanted the 1834 Foundation Act amended to take their concerns into account, especially those relating to Aboriginal rights to land. It was suggested that perhaps settlement be postponed until these matters were addressed.20 The Chairman of the Colonisation Commission was devastated; he is reported to have said that if the objections of the Colonial Office were not withdrawn ‘the colony was pretty well ended’.21 The Commissioners took the offensive. Chairman Torrens met with Sir George Grey and outlined his view that the requirement to meet all these measures would be ‘fatal’ to the prospects of the colony. Grey softened, agreeing that the colony would go ahead without changes to the Act, which could be amended at a later date. The delays, he argued, had been occasioned by his desire to avert ‘from the Aborigines of that part of New Holland the calamities under which that race of men’ had been ‘overwhelmed’ in the other Australian colonies.22
Grey’s concern about the need to clarify Aboriginal rights within the Foundation Act was well grounded. The 1837 report that emerged from the Select Committee inquiry into the condition of Aboriginal peoples in British settlements considered that the legal status of Aboriginal peoples up until this time had been uncertain and inconsistent.23 This was an apt appraisal. For the first fifty years of Australian settlement, colonial policy toward Aborigines was encapsulated in the instructions issued to Captain Arthur Phillip.24 Governor Phillip was directed:
To endeavour by every means in his power to open an intercourse with the natives, and to conciliate their good-will, requiring all to live in amity and kindness with them; and if any of our subjects should wantonly destroy them or give any unnecessary interruption in the exercise of their several occupations, it will be our will and pleasure to cause such offenders to be brought to punishment, according to the degree of the offence.25
These were sentiments rather than injunctions. Phillip was to ‘endeavour’ to ‘conciliate’ Aboriginal good-will and to protect them from ‘unnecessary’ interference, but nowhere was the precise relationship between Aboriginal people and the State defined in a legal sense. Right of discovery justified British possession of Australia, and the Aborigines were not regarded as a conquered nation with their own rights and laws. As an almost accidental consequence of British occupation, Aborigines were taken to be British subjects. Yet for the first fifty years of Australian settlement, as David Neal puts it, ‘the colonial legal system had trouble deciding whether the Aborigines should be treated as subjects of the Crown or foreign enemies who could be hunted down in reprisal raids and shot’.26
In April 1801, when Aborigines gathered in large numbers near Parramatta, Governor George King ordered that they be driven back from the settlers’ habitations by firing at them. Later that year similar orders were issued to protect wheat crops on the Georges River from Aboriginal incursions.27 Circumstances such as these led Lord Hobart in 1805 to raise the question of the Aborigines’ legal status. The Judge-Advocate of New South Wales, Richard Atkins, pointed out that although Aborigines were technically under the protection of His Majesty’s government, they could hardly be expected to plead in a court of law when they did not understand the proceedings. He considered that to bring Aboriginal people before the criminal courts, whether as criminals or witnesses, ‘would be a mocking of Judicial Proceedings, and a Solecism in Law’.28 Certainly, prior to the 1830s, colonial governors acted on this view that Aboriginal people could not readily be treated as subjects of the Crown. In New South Wales and Van Diemen’s Land, martial law was declared against Aboriginal people on occasions where a strong assertion of state power seemed expedient.29 The periodic declaration of martial law underlined the ambiguity of Aboriginal people’s status as British subjects across Australia’s colonies: this was a status of which they could be conditionally deprived when it was deemed necessary to authorise the use of punitive violence.
On occasions in the course of Australian settlement, even the formality of martial law was dispensed with. Following the deaths of settlers in the Hunter River District of New South Wales, Governor Darling advised landholders that they should take ‘vigorous measures for their own defense’ and indeed the government assisted them in doing so by supplying settlers with muskets from the government store. In 1825 Lord Bathurst wrote approvingly of this approach:
In reference to discussions, which have recently taken place in the colony respecting the manner in which Native Inhabitants are to be treated when making hostile incursions for the purpose of plunder, you will understand it to be your duty, when such disturbances cannot be allayed by less vigorous measures, to oppose force by force, and to repel such Aggressions in the same manner as if they proceeded from subjects of any accredited State.30
In this instance, Aboriginal people committing aggressions against settlers were to be regarded as enemy aliens – subjects of a potentially separate nation state – against whom war could be levied. From the arrival of the First Fleet until the late 1830s, the relationship between Aboriginal people and the State was loosely defined and readily reinterpreted. In essence, Aboriginal people were subjects of the Crown when they acquiesced to its dictates. When they did not, they might be considered as being beyond the ordinary reach of the law.
The Ideal of Protection
The recommendations that emerged from the 1837 report of the Select Committee were an attempt to clarify the legal status of Aboriginal peoples across Britain’s colonies and set a line of policy around the principle of ‘protection’. This had a number of tiers. The idea that Aboriginal people needed to be ‘civilised’ and ‘Christianised’ was central to a plan which imagined that their only future lay in their eventual assimilation into the new colonial order. With this aim in mind, the Select Committee report recommended that Protectors of Aborigines be appointed to supervise the interests and welfare of Aboriginal people. This would include a duty to look to Aboriginal people’s education and provide for their employment. There was also some scope for a limited recognition of Aboriginal customary lifestyle, for so ‘long as agriculture is anathema to them, they should be provided with the means of pursuing the chase without molestation’.31 While it was acknowledged that expecting ‘ignorant hordes of savages’ to observe laws they had no knowledge of ‘would be palpably unjust’, it was nonetheless seen as crucial that Aboriginal people not be placed ‘beyond the pale of the law’. To this end it was conceded that ‘a temporary and provisional code for the regulation of the Aborigines’ might be put in place ‘until advancing knowledge and civilization shall have superseded the necessity of any such special laws’.32
Despite the best intentions of the Select Committee’s recommendations, the task of Protectors would prove to be embedded with the same kind of ambiguities that remained intractable for colonial governments in determining Aboriginal people’s status as British subjects. On the one hand, Protectors were to serve as advocates for Aboriginal peoples, charged with protecting their welfare where that was threatened by the spread of colonial settlement. On the o
ther hand, Protectors would serve as agents of the colonial state, charged with mediating between Aboriginal peoples and settlers in ensuring the secure and peaceable passage of the colonial project. In the absence of any clear policies on Aboriginal rights, this mediating role between competing agendas would often place the Protector in an incongruous and invidious position.
In hindsight, the entire logic of the policy of protection seems perverse: Protectors would serve both to protect Aboriginal people from the effects of colonial settlement, and ensure its progress; imperial authorities who were sanctioning the dispossession of Aboriginal people were simultaneously endeavouring to protect them from its consequences. What was being conceived was a kind of schizophrenic paternalism in which the Crown – through its proxies, the Governor and the Protectors, and its trust in the majesty of the law – held two worlds apart while imagining their assimilation. The Colonial Office’s Under Secretary James Stephen eloquently captured the dilemma when he noted that perhaps the only way of saving the Aborigines from the settlers ‘would consist in teaching them the art of war and supplying them with weapons and ammunitions – an act of suicidal generosity which of course can never be practiced’.33 However flawed the conception of Aboriginal protection might seem in hindsight, the rationale was clear enough at the time: if the rule of law was applied vigorously and impartially, and if ‘mediators’ such as Protectors of Aborigines could be put in place, then the excesses of violence that had characterised earlier Australian settlements might be avoided.
The founders of South Australia understood the mood of the Colonial Office, and attempted to demonstrate that they too had its goals in mind. The First Report of the Colonisation Commissioners in July 1836 concluded with a passage that portrayed their enterprise as one in which the benefits of colonisation to Aboriginal people would flow automatically from benevolent intent. Without the instruction of ‘civilisation’, the Aborigines were depicted as lacking even ‘the instinctive apprehensions of some of the inferior animals’. But by virtue of the settlers coming among them, they
will be lifted up from this degradation; they will be gradually reconciled to labour for the sake of its certain reward; they will be instructed in the several branches of industry, and they will possess in their reserves property increasing in value as the colony expands. Colonization thus extended to South Australia, though it should do nothing for the colonists, and nothing for the mother country, would yet deserve, in its influence upon the Aborigines, Lord Bacon’s character of a ‘blessed work’.34
By the time the first colonists were sailing for South Australia aboard the Buffalo in the middle of 1836, the Colonisation Commissioners had provided the Colonial Office with a set of understandings regarding the treatment of Aboriginal people. They had agreed that a Protector of Aborigines would be appointed. They had agreed to recognise Aboriginal proprietary right to land, where such a right was found to exist, and to negotiate for the sale of that land if necessary. They had undertaken to promote the spread of ‘civilisation and Christianity’. Most importantly, they undertook to extend the protection of the law to Aboriginal people. This last principle was the centre-piece of Governor Hindmarsh’s first Proclamation in the Colony.
Chapter 2
BRITISH SUBJECTS OR ENEMY ALIENS?
On the ground
On 28 December 1836 settlers gathered around a gum tree near the coast to witness a ceremony in which the colony’s first Governor John Hindmarsh formally read the Proclamation establishing His Majesty’s Province of South Australia. The Governor called upon the settlers to conduct themselves with ‘order and quietness’, to ‘respect the laws,’ and through ‘industry and sobriety’ to ‘prove themselves worthy to be the founders of a great and free colony’.1 This brief preamble was followed by a much lengthier directive on their dealings with the Aboriginal population. This was a document that distilled precisely the ideal of protection articulated by the Colonial Office:
It is … my especial duty to apprise the Colonists of my resolution to take every lawful means for extending the same protection to the Native population as to the rest of His Majesty’s subjects, and of my firm determination to punish with exemplary severity all acts of violence or injustice which may in any manner be practised or attempted against the Natives, who are to be considered as much under the safeguard of the law as the Colonists themselves, and equally entitled to the privileges of British subjects. I trust therefore, with confidence, to the exercise of moderation and forbearance by all classes, in their intercourse with the Native Inhabitants, and they will omit no opportunity of assisting me to fulfil His Majesty’s most gracious and benevolent intentions toward them, by promoting their advancement in civilization, and ultimately, under the blessing of Divine Providence their conversion to the Christian faith.2
In subsequent years, 28 December would become an annual holiday celebrating South Australia’s foundation, an event marked and remembered with each passing year for its particular injunction to protect Aboriginal people from violence and injustice through the extension of rights as British subjects.
At the first sitting of South Australia’s new Supreme Court in May 1837, Chief Judge Sir John Jeffcott reiterated the Proclamation’s sentiments. He quoted at length from the first report of the Colonization Commissioners, drawing particular attention to the bloody history of previous colonial enterprises. Stressing the colonists’ obligations toward the Aborigines he stated unequivocally:
They have been declared British Subjects – As such they are entitled to the full protection of British law, and that protection, while I have the honour of filling the situation which His Majesty has been pleased to confer on me, shall be fully and effectually afforded to them. I will go further and say, that any aggression upon the Natives, or any infringement on their rights, shall be visited by greater severity of punishment than would be in similar offences committed upon white men.3
The assumed consequence of Aboriginal people’s declared status as British subjects, of course, was the negation of Aboriginal sovereignty in relation both to land and to law. Aboriginal customary law was rendered null and void on the presumption that whatever laws governed Aboriginal society would be swept away by the ‘superior’ civilisation. Legal pluralism – in which traditional law could continue to function under the umbrella of British law – was a feature of some dominions within Britain’s empire, but was not considered in South Australia. In the past, it had offered Britain an approach to the governance of subject peoples that was considered not only morally just but also politically astute, for to make newly colonised peoples immediately subject to laws of which they had no knowledge would be to risk alienating the people whose sovereignty was being overturned, and invite resistance to the imposition of British rule. Yet South Australia’s establishment coincided with a time when the British government was losing faith in a system of legal pluralism within its colonial possessions.4 Rather, the political mood of liberalism in the aftermath of Britain’s abolition of slavery favoured the principle that for Aboriginal peoples to become assimilated into the empire’s ‘imagined Christian community’, they must be regarded as subjects of (and therefore subject to) the Crown.5 While it has been suggested that an implicit form of legal pluralism pertained in the Australian colonies after the 1830s,6 in South Australia the imposition of British law was conceived in terms of the ‘gift’ of British subjecthood, and a necessary part of the ‘civilising process’.
How was this to be reconciled with the undertaking by South Australia’s Colonisation Commissioners to recognise Aboriginal proprietary title to land and, where necessary, to negotiate for the purchase of that land? The Letters Patent which defined the extent of the new Province contained the rider that nothing
Shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein actually occupied or enjoyed by the Natives.7<
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The Colonisation Commissioners had distinct instructions to the effect that no land was to be disposed of which had not first been voluntarily ceded by its original owners and due compensation paid.8 But when the first settlers arrived in South Australia there was no attempt to establish the nature and extent of Aboriginal proprietary rights, and nor was there a crown-appointed Protector of Aborigines to press the issue. This promised appointment was frustratingly delayed. It had been first offered to George Augustus Robinson, the ‘Conciliator’ who had worked under Governor Arthur in Van Diemen’s Land, and who declined the offer in preference to a similar post in Port Phillip. The office of Protector was then held by a succession of interim officers, appointed locally and compromised in their degree of independence. It was initially held, for only a few months, by George Stevenson, the Governor’s Private Secretary. It was then filled in April 1837 by Captain Walter Bromley, an elderly man with failing health who within three months was invited to resign for reasons of ‘physical and mental imbecility’.9 Next it was taken up by William Wyatt, a colonist who had emigrated as ship surgeon, and who held the post until Dr Matthew Moorhouse, the Crown appointed Protector, arrived in July 1839.10 Moorhouse would serve in that role until 1856, the year self-government was granted to the province.
In his brief time as Protector, Wyatt at least endeavoured to have some reservations of land set aside ‘to the benefit of the aborigines’.11 Yet as he was aware, the very limited terms of his instructions – to protect Aboriginal proprietary rights, but only where that land was employed for cultivation, identified with a fixed residence, or used for funeral purposes – excluded the meaningful possibility of any such protection. He took this problem to Governor Hindmarsh, who advised him to address it to the Resident Commissioner, James Fisher. Oddly, although the position of the Governor incurred specific instructions to honour Aboriginal people’s ‘enjoyment’ of their own lands, the Governor himself did not have the power to pursue this in law. Under the peculiar structure set up under the Foundation Act, the Governor had political authority as the representative of the Crown, while the Resident Commissioner had authority over the sale of land. Wyatt duly appealed to the Resident Commissioner for the reservation of Aboriginal land, only to be told that ‘as the Act of Parliament admitted of no reservation of the kind, my application was useless’.12 Eventually, these obstacles were resolved by an amendment to the Foundation Act in 1838, which included the passage from the Letters Patent recognising Aboriginal proprietary rights, and which moreover vested the powers of the Resident Commissioner in the Governor.13 This meant that Governor Gawler, who replaced Hindmarsh in 1838, did not have the problems of divided authority that had hampered his predecessor. He was furnished with instructions that ‘no land which the natives may possess’ should be offered for sale ‘until previously ceded by the natives to the Commissioners’. The Protector was to provide evidence to substantiate the sale.14
Out of the Silence Page 3