How did Britain acquire legal ownership of the Australian continent? Public land in Australia is to this day "Crown land"

"Black armband" historian Henry Reynolds is once again trying to make Australians guilty about their past.  His contention below is that the British "stole" the land from the Aborigines.  That is a popular view on the Left and among Aborigines themselves. In support of that view Reynolds sees the present ownership of Australia as being legally defective.  It seems to be his view that a transfer of ownership of the land from Aborigines to the settlers can only legitimately be done by means of a treaty between the two parties.

But that is nonsense on stilts.  Throughout history, changes in ownership of territory have come about through armed conquest -- and Australia was no different.  There was in fact little organized resistance from the Aborigines and the white men had guns.  The British by and large took what land they wanted and shot anybody who attacked them.  That does not sit well with the modern-day Left but it is what has happened throughout history.  

It even happened at the hands of Leftists not so long ago.  The seizure of Cuba by American "Progressives" such as Theodore Roosevelt did not happen as a result of a treaty with the Cubans.  It occurred as a result of a succesful war on the Spanish defenders of Cuba. And the concept of the Spanish conquistadores gaining ownership of Western hemisphere territory via a treaty with the natives is a huge laugh.  

And Reynolds has clearly not taken account of the "Trail of Tears" in his account of American expansion -- which was done at the behest of Andrew Jackson, founder of the Democratic party.  Jackson's policies have been criticized both at the time and susbsequently but his territorial dispositions remain pretty much as he left them

And if we were to unwind past conquests, the result would be absurd.  We would have to send the English back to where they came from in the South Baltic 1500 years ago and give Britannia back to the Welsh, Cornish and other Celtic groups who were there first.

Reynolds tries to strengthen his case by an emotional appeal.  He speaks of the "horrors" that the British settlers inflicted on the Aborigines.  And that is his schtick.  He has been trying for years to make what was a generally peaceful settlement into a sort of holocaust.  

But Keith Windschuttle has gone back to the early documents and shown that Reynolds exaggerates to an epic extent.  But Reynolds is not letting go of his claims.  He evidently NEEDS them to be true.  And being now aged 80, his deceptions are  his life's work.  In his angry Leftist way, he hates his own society and wants to hurt it.  He is an old fool. The acquisition of sovereignty over Australia by the British crown is a done deed and going back in history to question it on shallow legal grounds is simply anachronistic

Throughout the 18th century the American colonial governments negotiated treaties with Native Americans, and this practice was carried on by the American republic after independence from Britain. In Canada, treaty-making continued until the early 20th century and has resumed in recent years. The underlying assumption was that indigenous peoples were landowners and also held a form of sovereignty.

The British decision to depart from this path in the settlement of New South Wales had disastrous consequences for the Australians, and predetermined much of the violence that characterised the outward spread of settlement for more than a century. The British imperial government carries a heavy burden of responsibility for the horrors that unfolded.

It may have been the result of the mistake of making fundamental and portentous decisions before the First Fleet had even set sail. But ignorance does not lighten the burden of responsibility. Clearly no convicts were ever excused by claiming their theft had all been a mistake and that they thought the stolen property in question belonged to no one.

More troubling is that it took Australian courts until the 1992 Mabo decision to provide some limited remediation, but not reparation, for one of the greatest land grabs in modern history.

The incurable flaw

There were people at the time who were troubled by the way the annexation had taken place. When Governor King was preparing to hand power over to his chosen successor William Bligh he provided him with notes to help with his orientation including the observation about the Aborigines and that he had “ever considered them the real proprietors of the soil.”

At much the same time in Britain the great political philosopher Jeremy Bentham wrote a pamphlet criticising the legal arrangements that had been made for the settlement of New South Wales. Among many points he made was the observation that there had been no negotiation with the Aborigines and no treaty had been signed with them. This created problems which would be enduring. “The flaw”, he declared, would be “an incurable one.”

Similar concerns about the conduct of the settlers, the fate of the Aboriginal people and the linked problems of property and sovereignty continued to be expressed across the generations by men and women who responded to the “whispering in their hearts” (a whispering first raised by Sydney barrister Richard Windeyer in 1842). They are part of the most enduring political debate in our history. They are still with us as Bentham predicted more than 200 years ago.

The problem is that there is no clear explanation in Australian legal theory to show how sovereignty passed from the first nations to the British crown. On this matter international law has been clear since the 18th century. Sovereignty can be lost and acquired either by conquest or by cession, that is, by the negotiation of a treaty. This was clearly understood by Bentham.

So what can be done? Ideally we should have a decision from the High Court. They could revisit the Mabo judgement and consider the question of sovereignty as Eddie Mabo himself wanted it settled. The case would be simpler than one which considered the actions of the British Imperial government. Murray Island was annexed by the Queensland colonial administration in 1879.

And if the High Court argues that it is unable to decide on such a question, the way forward may be an appeal to the International Court of Justice for an opinion on the matter. That would clear the way for treaty making in Australia itself which would finally provide a cure for Bentham’s flaw.


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