Australia Day riddle a result of piracy on a continental scale

Henry Reynolds says events in this nation’s colonial history are at the root of controversy

CELEBRATION of Australia Day on January 26 continues to spark controversy. This is unsurprising. Commemoration of the arrival of the first fleet was contentious in 1938 and 1988 when ceremonies were held to mark the 150th and the 200th birthday of Sydney.

The foundation of British settlement was an event of great historical importance. The safe arrival of the fleet at Botany Bay between January 18 and 20, with minimal loss of life was a great achievement of British logistics, seamanship and navigation.

But the choice of January 26 as the day of national celebration raises troubling and legitimate questions.

To begin with the 26th was an odd choice. Two other days in those founding moments would have been more appropriate.

Watkin Tench, a vivid chronicler of Sydney’s infant months, noted that, along with other officers, he thought the 20th was the day marking the foundation of an empire.

But a more portentous occasion took place on February 7 when, with the ships unloaded and everyone ashore, formal ceremonies were held, proclamations read and the British, in Tench’s words took “possession of the colony in form”.

So the really contentious matters relate to what exactly was done on February 7. We still live with the consequences although current debates show there is little understanding of the manner the British took possession of Eastern Australia and how their acts related to international and common law as understood in the late 18th century. These questions require more detailed consideration.

The claim of sovereignty over half the continent was unsurprising. Cook’s voyage of “discovery” followed up by the settlement 18 years later provided a solid foundation in European international law although the vast size of the area claimed was manifestly excessive and would have been open to challenge.

What is not understood is that such a claim related to external sovereignty and was projected out to competing European powers and not inward to indigenous people.

In their case both law and practice, well established in North America, set out some principles. The Indians were recognised as holding a form of sovereignty which could be usurped in only two ways— by conquest or by treaty of which there were many examples by 1788. In Tasmania, Governor Arthur came to believe the tragedy of the Black War could have been avoided if treaties had been negotiated at the beginning of settlement. It was advice he urged upon the Colonial Office and was one of the influences which led to the 1840 signing of the Treaty of Waitangi in New Zealand.

Sovereignty was one thing, property was another, although the two are often conflated. And here too late 18th century law was well established. Indigenous people were recognised as owners and occupiers of their traditional

land even though their tenure was of a kind unknown in European jurisprudence. It was known as Indian or native title. It was recognised by the High Court in the Mabo judgment in 1992.

So we are left with the inescapable conclusion the British claims formulated on February 7, 1788, were contrary to contemporary law and custom. There is no clear explanation of why the Imperial government veered so sharply from its practice in North America. Two theories have been suggested. One is that when the settlement of Australia was in the planning stage the best advice was that the continent was largely uninhabited. This was the theory promoted by Sir Joseph Banks, great aristocrat, President of the Royal Society and shipmate of Cook’s on the Endeavour. The other possibility is that the Aborigines were thought to be so primitive that they neither exercised sovereignty nor owned the land, that Australia was indeed a terra-nullius.

British policy in relation to indigenous land was infamous.

The whole of Eastern Australia became the property of the Crown. It was a land grab of heroic proportions; piracy on a continental scale, which was contrary to the spirit of international law and fundamental principles of the common law.

If there was one central principle infusing British law, it was protection of property. The whole convict system was premised on that principal.

But the law also provided powerful protection for the property of subjects against the inroads of the Crown.

We have the extraordinary situation that in February 1788 the Aborigines became British subjects but at the same time and by the same instruments were stripped of their rights to their traditional lands.

Much violence on the Australian frontiers can be traced directly back to those principles introduced in 1788.

It should be no surprise growing numbers of people are seeking another occasion to celebrate Australia Day.