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Where is Australia's Treaty of Waitangi?

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Australia has never had an equivalent of New Zealand's founding document, the Treaty of Waitangi, says Brad Webb. Here, aboriginal dispossession equated to British sovereignty.

NEW ZEALAND'S founding document, the Treaty of Waitangi signed in 1840, formalised an agreement between Maori and the Pakeha (Europeans) with regards to land sovereignty. The Treaty’s Preamble guaranteed protection of Maori by establishing a government to maintain peace and order. Prior to the signing, the issue of land transactions had caused the British Government increasing concern, culminating in 1838 with an extraordinary inquiry by the House of Lords. The Treaty was formalised to prevent privateers and in particular, the New Zealand Company, from purchasing large tracks of land. Prior to the Treaty’s ratification, the Company was actively pursuing a policy of systematic colonisation.

The promoters of the Company, led by E.G. Wakefield, believed in emigration as a cure for Britain's social problems. Those involved in the Company had already established a successful colony in South Australia (1834) and now formed comprehensive plans to create British settlements in New Zealand. In late 1839, several hundred Company settlers, with no official approval, set out for New Zealand.

To avoid potential confusion, and ultimately confrontation, a key feature of the Treaty of Waitangi was the imposition of Crown pre-emption (the exclusive right of land purchase), making it clear that private settlers could not buy land directly from Maori. A preponderance of private land sales had resulted in conflict, a number of them bloody. Maori saw land transactions not as a permanent separation but as similar to use-rights, as part of a mutual association between themselves and those who lived among them. To circumvent future conflict, the signing of the Treaty meant Maori could sell land only to the Crown.

As the Treaty of Waitangi was created in both English and Maori, the ambiguity of translation meant a number of words and meanings were difficult to articulate. To highlight key differences the Treaty presented, the English version of the Preamble spoke of protecting Maori interests from impinging British settlement; providing British settlement; and maintaining peace and order by establishing government. Maori text indicated the Crown’s main promise was to provide a government while securing tribal chiefdom and Maori land ownership. Yet, while there was considerable variety in the wording, both parties did agree on the sentiment of the agreement. Today, the Courts and the Waitangi Tribunal tend to refer to the ‘principles’ of the Treaty rather than to the Treaty text. It is these Treaty of Waitangi concepts of ‘partnership’ and ‘active protection’ that remain active in the lives of many New Zealanders.

The Founding of Australia. By Capt. Arthur Phillip R.N. Sydney Cove, Jan. 26th 1788 (by Algernon Talmage, 1937)


Unfortunately in Australia there has never been anything as comparable to New Zealand’s Treaty of Waitangi. From the outset of settlement in 1788, when Arthur Phillip, the first Governor of New South Wales, raised the Union Jack on the shores of Sydney Cove and took possession of the land on behalf of the British Crown, he declared ‘terra nullius’ – that no one owned the land.
‘According to British law, the Aborigines were nomads and therefore had no right to the land which they had always occupied. Nomadic habits offended British proprieties – unless, of course, these same habits were found in British colonial adventurers. One of the reputable textbooks on international law at the time, Vattel’s Law of Nations, summed up the legal fiction of the day concerning the Aborigines: ‘Their removing their habitations through these immense regions cannot be taken for a true legal title. Their removing of their habitations cannot be taken for a true and legal possession.’

(Exterminate with Pride. p.52)

Perhaps the greatest discourtesy place upon the Aborigine was the apparent lack of organised resistance to British settlement. White history showed an obverse lack of respect towards the indigenous population. A blame largely based on a perceived deficiency in the fighting qualities of the Aboriginal. This obscure slant convinced many Migloos (whitefellas) that defending land was not a high priority for the Koori population. Unlike the cultivated tribal existence of New Zealand’s Maori, living in a concentrated area the size of Victoria, Aborigines were spread across the vast expanse of land that made up Australia.

While this isolation may have help shield Aboriginal tribes from British contact for a number of years, it also prolonged the suffering experienced by many of the indigenous population. It was this distance, and the ability of settlers to force the original inhabitants off the land by death, disease, or deception, which kept the Aboriginal ‘issue’ away from colonial society. Early writers and historians were keen to highlight that Aboriginal life, in context to nineteenth century Australia, was of little or no consequence.

In the early 1850s, R.J. Flanagan, in an article written for a Sydney newspaper said:
“Incapable of creating any considerable mischief, they have never, by war or by their opposition to the progress of the white man, forced themselves on the attention of either government or philanthropists of Europe.”

What hope did the Aboriginal population have in even gaining respect let alone the chance of being offered a treaty?

In 1999, Henry Reynolds, in his book ‘Why weren’t we told?’ wrote that J.A. La Nauze, the Professor of History at the Australian National University, in 1959 delivered a speech to his colleagues on the writing of national history of the last thirty years. He noted during those years a lack of interest in Aborigines and highlighted the fact by stating, ‘unlike the Maori, the American Indian or the South American Bantu, the Australian aboriginal is noticed in our history only in a melancholy anthropological footnote’. Reynolds made the comment that the Professor found nothing wrong with this appraisal, nor felt the need to change the status quo.
‘Recognition has been accorded particularly to armed resistance to superior force, designed to defend and assert the rights of subordinate groups. In the Australian context the judgement generally reached was that Aboriginal people had not effectively ‘resisted’ the coming of the British as they had not organised themselves for warfare: the notion that this country was “settled’ rather than ‘invaded’ was thus widespread.’

(The Oxford Companion to Australian History p.11)

With the implementation of the Constitution in 1901, Australia had its greatest opportunity to finally acknowledge its indigenous people. Yet like the previous century, which was devoid of anything resembling a treaty, there was no Aboriginal recognition as government and officials took the view that the Koori population was a dying race. During the drafting of the Constitution, an editorial welcoming the demise of the Aborigine appeared in The Bulletin ‘There is no valid reason why the nigger should not be wiped out by – let us say – natural decay.’ Australia may have been a liberal democracy but it was also racist. Social Darwinism had thwarted the Aborigine.

Colonial Secretary during the Treaty of Waitangi, Lord Normanby


Perhaps the greatest disparity in dealings between the Crown and their Aboriginal and Maori subjects can be summed up by the following statement in 1839, by The Colonial Secretary, Lord Normanby, with regard to dealings with Maori land issues:
‘All dealings with the Aborigines for their Lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of Her Majesty's Sovereignty in the Islands. Nor is this all. They must not be permitted to enter into any Contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any Territory the retention of which by them would be essential, or highly conducive, to their own comfort, safety or subsistence. The acquisition of Land by the Crown for the future Settlement of British Subjects must be confined to such Districts as the Natives can alienate without distress or serious inconvenience to themselves.’

While these instructions formed the basis for the development of the Treaty of Waitangi, similar instructions issued by Normanby’s Australian counterparts failed to eventuate into anything resembling a fair and equitable treaty for Australian Aborigines. Since the establishment of white settlement in Australia soldiers and settlers had interacted with the local population. In what would later be acknowledged as an onerous precedent Governor Phillip, who was responsible for laying the foundations for the new colony, failed to avert the violence that took place during the initial Aboriginal-European discourse.

The unfolding encounter would be marked by shared incredulity, confusion and the devastation of much of Aboriginal society. There would be no acknowledgement of British conquest of the indigenous people. No act of surrender. No treaty to govern the association. In short, Aboriginal dispossession equated to British sovereignty.

Bibliography:

  • John Ross Chronicle of Australia Penguin Books, Melbourne 2000

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