Murder at Myall Creek

by Mark Tedeschi

  Since 1829, the colony had been divided into those areas over which colonial administration applied and those outside. The dividing line was known as the ‘limits of location’. It was bounded by the Manning River to the north, the Lachlan River to the west and the Moruya River to the south. In 1829 Governor Darling divided the area of settlement into nineteen counties. Within these established counties, which constituted the area of the colony over which the law prevailed, all ownership of land derived from Crown grants in the name of the Governor. These were recognised by the issuing of official title deeds, which meant that ownership of the land could be transferred.

  The system of Crown grants as the sole source of ownership of land was seriously challenged in 1835 when John Batman – grazier, entrepreneur, and explorer from the island settlement of Van Diemen’s Land (Tasmania) – crossed the Bass Strait to explore the area of Port Phillip Bay on the south-eastern tip of the Australian mainland, more than 500 miles distant from Sydney. When Batman discovered the current site of central Melbourne on the Yarra Yarra River, he noted in his diary that ‘this will be the place for a village’ and promptly named it ‘Batmania’. He attempted to take advantage of the absence of government presence outside the limits of location by engaging in a treaty with the Wurundjeri leaders of the Kulin nation. Under the treaty, Batman agreed to give them 40 blankets, 30 axes, 100 knives, 50 scissors, 30 mirrors, 200 handkerchiefs, 100 pounds of flour and 6 shirts as an annual payment for 600 000 acres of their land. Governor Bourke could not allow this unbridled assertion of private interest to go unchallenged, as it would create a precedent for land ownership that bypassed Crown grants. With the support of the Colonial Office in London, he issued a Proclamation on 10 October 1835 that declared:

  Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, I, the Governor, in virtue and in exercise of the power and authority in me vested, do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, as aforesaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission … is void and of no effect against the rights of the Crown; and that all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.

  The Proclamation established the principle of ‘terra nullius’ in Australia – an assertion that the land belonged to nobody prior to the British Crown taking possession of it, and hence any treaty with the Indigenous population was null and void. This effectively negated Batman’s treaty and compelled white settlers who were pushing into remote areas beyond the limits of location, including those in northern New South Wales, to negotiate with the Crown for land ownership rather than with the Indigenous owners. Any Europeans who occupied land without a Crown grant were incapable of passing title to it and at risk of being classified as trespassers – hence they became known as ‘squatters’. The doctrine of terra nullius was to prevail throughout Australia until the 1992 High Court decision of Mabo v State of Queensland (No 2).

  The division of New South Wales into nineteen counties was also used for other administrative purposes, including police and courts administration. Outside the nineteen counties, however, no courts operated, no police patrolled, and no Crown grants of land were issued, so that ownership derived from mere possession, force of arms, and an unspoken convention among the squatters in a district. After 1836, a degree of legitimacy was given to the squatters when a law was passed partially validating their holdings on payment of £10 for a squatter’s licence.

  It was primarily in these remote areas, outside the limits of location and beyond the reach of the law, where the most atrocious murders of Aborigines occurred. Their occupation of the land was forcibly terminated by those whose claim of right depended solely on the superiority of their arms and their willingness to engage in brutal suppression. Many of the landholders ruthlessly dispossessed Aboriginal tribes and disposed of their surviving remnants by driving them from their traditional hunting grounds, polluting or poisoning their waterholes, or just plain murdering them. White colonists had a euphemism for the sustained, systematic pursuit and murder of rural Aborigines: ‘the big bushwhack’.2 Much of the work of dispossession, dispersal and disposal was done by hired hands and assigned convicts working for distant landholders living in Sydney or the larger country towns, who may not have visited their holdings for months or years at a time. The lowly rural workers and their convict charges thus became the instruments of genocidal pillage of land and clearing of the native bush on behalf of wealthy, absent landowners.

  Both free men and convicts were generally armed with firearms when they moved around in remote bush areas between pastoral properties, because of the perceived threat of attack from the Aboriginal inhabitants. It was a common complaint by landlords and their assigned or hired station hands that a group of Aborigines had ‘rushed’ their cattle or sheep, or had caused ‘depredations’3 to their stock or property. The Indigenous people, having had their traditional hunting grounds expropriated or disturbed, attempted to preserve their source of food and ceremonial grounds by dispersing the invading colonists and their livestock.

  As the colony had only just managed to avoid starvation in the first decade after arrival in 1788, any activity that increased the security of the food supply was rigorously pursued and tacitly supported by the various Governors that were posted to Sydney by the Colonial Office in London. In 1815 the first road over the ‘Blue Mountains’ to the west of Sydney was built and it was only in 1836 that the Great North Road was completed by convict labour, linking Sydney with Newcastle and the fertile Hunter River Valley. Further north, there were only scant, rough tracks leading to the lush grazing grounds around the Big River, requiring a journey of many weeks. With scarce and stretched police and military resources, the Governor and his administrators were unable to exercise any viable restraints on the squatters, and so these illegal graziers were tacitly given a free hand to do whatever they wished, unimpeded by the law or any agent of the Governor. Most inhabitants viewed the squatters as pioneers in whose hands the future viability and prosperity of the colony depended. It was soon realised that these remote, new areas were ideal for the grazing of sheep, and the wool trade soon became the financial backbone of the colony.

  At the same time, a powerful humanitarian movement had arisen in Britain, and this culminated in the abolition of slavery in 1833. Philanthropic organisations were established in both Britain and the colonies, dedicated to advancing the welfare of the Indigenous inhabitants of the Empire. In London, a Select Committee of the House of Commons on Aborigines in the British Settlements concluded that:

  The invasion of Aboriginal lands by Europeans has intentionally or unintentionally led to the destruction of Aboriginal society, even genocide … Too often their territory has been usurped; their property seized; their numbers diminished; their character debased; the spread of civilisation impeded … It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil; a plain and sacred right however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country.4

  The report was particularly damning with regard to the plight of the Australian Aborigines:

  In the forma
tion of these [penal] settlements, it does not appear that the territorial rights of the natives were considered, and very little care has since been taken to protect them from the violence or the contamination of the dregs of our countrymen.

  The solutions suggested by the Committee in its 1837 report were:

  • the reservation of lands so that Aborigines could continue as huntsmen until tilling the soil ceased to be ‘distasteful’ to them

  • education of their children

  • increased expenditure for missionaries and for ‘Aboriginal Protectors’

  • and, if necessary, the prosecution of the whites responsible for massacres.

  In January 1838, Lord Glenelg, the British Secretary of State for the Colonies, sent the report to the New South Wales Governor, Sir George Gipps. The report recommended that Protectors of Aborigines should be appointed as soon as possible; they would be required to learn the Aboriginal languages and watch over their rights, guard against encroachment on their property and protect them from acts of cruelty, oppression and injustice. The first Protector of Aborigines was George Augustus Robinson, who was appointed Chief Protector at Port Phillip (Melbourne) in 1839. His claim to the position was that he had single-handedly rounded up what was thought to be the approximately 300 remaining Aborigines in Van Diemen’s Land (Tasmania) and relocated them to Flinders Island. He succeeded in doing this with the assistance of Truganini, a female Tasmanian Aborigine. However, once removed from their traditional lands, the indigenous community quickly deteriorated and Truganini was the last original member of her tribe to die there.

  Closer to Sydney, in 1826 Reverend Lancelot Threlkeld, a missionary of the London Missionary Society, established a mission house for Aborigines at Bahtahbah (Belmont) on the eastern side of Lake Macquarie. Threlkeld learnt the local Aboriginal language and began the task of translating the Bible, thinking that ‘the word of the Lord would travel [Aboriginal] Australia’ by this means. The Society abandoned him in 1828 due to the exorbitant cost of maintaining the mission, and he moved, courtesy of a government grant, to a large reserve on the western side of Lake Macquarie at present-day Toronto. Threlkeld played a significant role in relations between the whites and the blacks because he was one of the few who learnt to speak an indigenous language. He provided spiritual comfort and translation services for Aborigines who were defendants in the white courts, so that they had a chance to understand the proceedings and the evidence led against them. A typical example is the following from 1835:

  In August last, I was again subpoenaed to the Supreme Court in consequence of an outrage having been committed by the Aborigines in the vicinity of Williams River; when another Black named Charley was found guilty of murder, which he did not deny, even when arraigned, but pleaded in justification the custom of his nation, justifying himself on the ground that a talisman, named ‘Mura-mai’, was taken from him by the Englishman, who, with others were keeping a Black Woman amongst them, was pulled to pieces by him, and shown to the Black Woman, which, according to their superstitious notions, subject all the parties to the punishment of death; and further, that he was deputed with others, by his tribe, to enforce the penalty, which he too faithfully performed. It was deemed necessary, for the tranquillity of those disturbed Districts, that Charley should be executed at a place called Dungog.5

  By 1838, the mission house at Lake Macquarie had closed because most of the Aborigines from that area had disappeared. According to Threlkeld:

  All the lake blacks are now employed at Newcastle where there is plenty of work for them, fishing, shooting, boating and carrying wood and water.

  The reality was that most had died or been displaced and were leading miserable lives in Sydney and Newcastle.

  Successive British governments were acutely aware of the sad plight of the Indigenous people of New South Wales, and Colonial Office Secretaries issued instruction after instruction directing the Governor to exercise restraints on the illegal activities of pastoral landholders in disrupting and dispersing the Aboriginal inhabitants. In the bush, however, the edicts of London and the good intentions of the Governor in Sydney were often disregarded.

  * * *

  By 1838, most of the stations beyond the nineteen counties in the north-west of New South Wales were still semi-cleared bush and, apart from occasional stockyards, there were few fences to keep cattle secured, so losses were frequent. The area was severely affected by a devastating drought that had begun the year before, and the colony was in the grip of an economic recession. There had been clashes with local tribes for years involving occasional attacks on whites and massive retaliatory raids – big bushwhacks – to punish them. During times of drought, when there was increased pressure for survival on the whites and the blacks, violence by both sides became more prevalent.

  At that time and in those districts where the agents of law and government were distant, it was common for marauding gangs of white stockmen to slaughter any Aboriginal people they came across in the bush in retaliation for attacks on the colonists’ stock or property, or even the occasional murder of a white. According to Police Magistrate Edward Denny Day, who was the closest magistrate to the Big River at his faraway base in Invermein,6 around mid-1838 a war of ‘extirpation’7 was waged all along the river whereby Aborigines in the district were repeatedly pursued by parties of mounted and armed stockmen. Day claimed that a great number of them had been killed at various locations. Dispossessed remnants of clans, often desperate for food and seeking refuge from roaming gangs of vengeful, armed, mounted whites, would sometimes descend on stations seeking sanctuary and miserly rations in return for manual work cutting bark or gathering wood.

  Early in 1838, a contingent of twenty-three mounted police and an Aboriginal interpreter under the leadership of Major James Nunn was ordered by acting Governor Colonel Kenneth Snodgrass8 to proceed to the Liverpool Plains district, where several white colonists had been murdered late the previous year. The expedition led to the massacre of between 200 and 300 Aborigines in retaliation for the deaths of the few whites. The worst of the murders was on Foundation Day9 in 1838 – the fiftieth anniversary of the founding of the colony. On the day when almost everyone in Sydney was enjoying the colony’s first public holiday, and people crowded the foreshore of Sydney Harbour to see a regatta, Major Nunn and his mounted troops in the north of the colony drove a large group of the Gamilaroi into a swamp and picked them off one by one with gunfire. Because Nunn was a veteran of the Napoleonic campaigns, the swamp was later named ‘Waterloo Creek’. By the time Major Nunn returned to Sydney and presented his report of the incident, the newly arrived Governor, Sir George Gipps, had replaced Snodgrass in February 1838. Gipps had a completely different approach to the Aborigines, and he had been given firm instructions in London to respect the rights of the Indigenous people of the colony and to treat them as British subjects. Gipps was horrified by Nunn’s report and determined that a repetition would not occur.

  * * *

  Myall Creek Station was a medium-sized station on the banks of a tributary of the Big River10 about 350 miles from Sydney. The local indigenous people called the area ‘Bingara’.11 The ‘owner’ was Henry Dangar. By 1838, Dangar was already one of the wealthier property owners in New South Wales and an aggressive squatter on two stations in the Big River district: Myall Creek Station and Pond’s Creek Run.

  The term ‘station’ was a misnomer for the Myall Creek Station, because the only structures on the property consisted of three makeshift wooden huts in a large cleared area within sight of some waterholes of the Myall Creek and some basic cattle yards about half a mile to the west. The three huts had been built to house Dangar’s employees and their stores. The men were:

  • William Hobbs, a twenty-six-year-old free settler from Somerset, who was Henry Dangar’s superintendent at both Myall Creek and Pond’s Creek. He had been in the colony since 1825.

  • Charles Kilmeister, a convict stockman, aged twenty-three from Bristol, who had
been assigned to Dangar. Under the name Charles Kilminister, in 1832 at the age of seventeen he had been sentenced to transportation for life for ‘stealing in a dwelling house’ as a member of a gang of three. Prior to his trial he had been a rope maker.

  • George Anderson, aged twenty-four from Middlesex, the hut keeper, who had been transported for life in 1833 at the age of nineteen for robbing his master, and assigned to Henry Dangar. Prior to transportation, he had worked as a ‘lath renderer’ (someone who worked in the building trade as a plasterer’s assistant, applying the first layer of plaster to laths, which were strips of wood used mostly for interior walls and ceilings). Early in 1838, Henry Dangar had him flogged with a hundred lashes for leaving his post. He was then sent to Myall Creek Station as the hut keeper, a lower position than a stockman.

  • Andrew Burrowes, a twenty-five-year-old stockman from County Sligo in Ireland, who in 1835 at the age of twenty-two had been transported for life for highway robbery. He had previously been a groom and indoor servant.