"Nice country, we'll take it!" (Image via Wikipedia)

In a modern legal context, the transferring of the sovereignty of Australia from the Indigenous people seems even more criminal, writes Peter Kemp.

HENRY REYNOLDS posted an interesting article on The Conversation website on 27 August 2018. Under British law, private property was sacrosanct, could not be taken without the consent of the subject. So, we might ask, were the First Nations people “subjects of the Crown” when Captain Phillip arrived here in 1788 and proclaimed Australia the property of the Crown under King George III?

But first a fictional story.

Imagine an island off the coast of Australia, the size of Tasmania, outside territorial waters hidden away by some freak of nature up until now. The Australian navy discovers it, the officers go ashore and notice some inhabitants, not unlike Australia’s First Nations people. They report back to Canberra and, under the Morrison Government, a fleet is prepared to colonise this island and proclaim it for Australia. Tony Abbott and Barnaby Joyce, at a loose end in the House of Representatives, are granted pairs and are selected to be the Government officials or “envoys” leading this fleet. When they land they name it Barnabott; a Federal territory of Australia and, by proclamation, it is declared pretty empty land, resisting Barnaby’s idea of Tooheys Nullius. The Fleet has 500 prisoners from the overcrowded prisons of NSW, they are set to work clearing the land and building the first town — but there are problems.

The First Nations people of Barnabott, armed with spears, resist this intrusion and the naval forces are engaged to shoot them whenever attempting to spear a convict, calling it self-defence. With grudging approval, Tony Abbott finally agrees with the plan to put RU-486 in the waterholes to stifle the birth rates of the First Nations people and, after a while, there are only a few surviving up in the mountains.  

What would international law say about all that today? Every crime in the book. A Nuremberg-defined invasive war of aggression, genocide, crimes against humanity, destruction of civilian infrastructure, torture. In short breaches of jus cogens, compelling law, adopted by most states.

It can’t escape notice that this is close to what the white British invaders, my collective ancestors and some of yours, did to First Nations people in Australia right from the beginning. (Although slightly mitigating for me, my great great grandfather was the Military Governor at Port Macquarie penal settlement, never flogged prisoners and, to my knowledge, never killed an Indigenous person.)

Back to the sovereignty issue, but first a point of law extrapolating on the common law of the sovereign in 17th Century Britain, not taking property without the consent of the subject. There is no such thing today as larceny of abandoned goods. By analogy, the very acknowledgement of the existence of First Nations people here lends itself to the notion that, while the British Crown could not correctly argue the land was empty (but they did), a more generous interpretation is they considered the land to be “abandoned” to them, therefore it was not a “larceny”. But that still doesn’t help; the prosecution line from case law that can negate the principle is, what efforts did you make to find the legitimate owner?

Reynolds is correct. There is no clear explanation in Australian legal theory to show how sovereignty passed from the First Nations to the British Crown. The High Court in Mabo did not resolve this issue, it merely accepted the status quo of colonial occupation, found that terra nullius was a fiction and found that there were some rights of title to land excepting where those rights had been extinguished.

It is argued that sovereignty was never transferred lawfully. Certainly, it was not transferred by cession, as we would appear to be the only nation in the West that never negotiated a treaty with the First Nations People of the country of occupation — unlike Canada, the USA and New Zealand, which spring readily to mind. Was there a conquest? Think about that this way. I suggest that question be framed in retrospect, in terms of “Did the First Nations people acquiesce to conquest and transfer of their sovereignty in the occupation of Australia?”

We know in the early days that many First Nations people hid out in the bush, in country that they knew like the backs of their hands, avoiding the colonisers, having learnt quickly of their propensity for violence. Was this then a guerilla war at that time? Ask this question: If there is one traditional Aboriginal person now who has been hiding in country since birth, unregistered for birth, who refuses to acknowledge colonisation, then could the sovereignty of the Indigenous people of Australia still reside in that person and be activated?

Notwithstanding that First Nations people today have citizenship of the nation and are in receipt of the benefits of citizenship less the “benefits” of dispossession, discrimination, institutional racism, recipients of overt personal racism and intergenerational trauma — collectively, the First Nations people in 1788 almost certainly didn’t acquiesce. Did they acquiesce later and is that relative or determinative?

More on this in a later article.

In the meantime, what is painfully obvious is that, without a treaty, this all remains a vexing, unresolved question. It is posited that one of the reasons for that is that this nation has been engaged in Left/Right culture wars since 1996, a lot of which is about race and history, which makes it hardly conducive for a resolution. We can never be at peace with ourselves, and our Indigenous brothers and sisters until we resolve it.

First Nations people of Australia have continuously lived on this continent for around 65,000 years. That is unique.  

We need a treaty now.

Peter Kemp is a solicitor living and practising in the New England area of NSW, predominately in criminal matters but also in care and protection.

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