In 1968 anthropologist WEH Stanner wrote of the “great Australian silence” around Aboriginal history. Stanner said the fantastical British claims to be rightful possessors of Australia was based on the notion of the country as “waste and desert” despite 40,000 years of occupation. Only once, said Stanner, did Europeans temporarily abandon these notions and recognise Aboriginal title: that was Batman’s Treaty of 1835 governing lands around Melbourne. The colonial government in Sydney quickly recognised this as a dangerous precedent and killed it. Whatever Batman’s Treaty’s faults – and they were many – the rest of the land was taken without negotiation, without compensation and without apology. Without a Waitangi Treaty, Australian Indigenous people have difficulty advancing claims of title, compensation and sovereignty. Its failure, said Stanner, began a “culture of disremembering” that would last 150 years.
New Zealand-born historian Bain Attwood tells the story of that forgotten treaty in Possession: Batman’s treaty and the matter of history. Batman’s Treaty was two deeds, one for Melbourne, the other for Geelong. Tasmanian adventurer John Batman bought 600,000 acres of Kulin (the confederate tribes of Port Phillip and Westernport Bays) land for the Port Phillip Association, landholders and gentlemen from Hobart and Launceston. Its members included public servant Henry Arthur (nephew of Tasmanian governor George Arthur), soldier Thomas Bannister (brother of NSW Attorney General Saxe Bannister), lawyer John Gellibrand, banker Charles Swanston, surveyor John Helder Wedge, and Batman.
British demand for Australian wool was growing and the group coveted lands across Bass Strait ideal for pastoral use. There was a 100 mile Nineteen Counties limit of location around Sydney enforced by the colonial government but land grabbers (“squatters”) had their eyes on expansion and profit. The Port Phillip Association believed Melbourne was beyond the authority of the NSW Government. The Association didn’t want to be known as squatters and lawyer Gellibrand came up with the peculiar legal form of recognition to recognise Aboriginal title. He and Batman had earlier applied for land in Western Port in 1827 but were refused. This time they challenged NSW authority by entreating Van Diemen’s Land governor George Arthur.
They noted the Henty family had sought permission to take land for whaling at Portland Bay in 1834. Gellibrand and Batman’s letter to Arthur contained two fictions. They stated Thomas Henty had a treaty with Portland Aborigines (he did not) and another party had took possession of Two Fold Bay near Eden by negotiated purchase with Aborigines (they had not). Arthur referred the letter to Solicitor General Alfred Stephen. Stephen’s advice was Portland and Two Fold Bay were in NSW but were not in the settled region. Arthur supported the Association’s contention NSW authority did not extend to Port Phillip.
The British Government were familiar with treaties. They granted numerous territorial charters and grants to proprietary companies in the 17th century in Virginia, Massachusetts, Pennsylvania and Georgia. The most famous treaty was Quaker William Penn’s treaty of 1683 with the Delaware Indians immortalised in a painting by Benjamin West in 1772. West’s painting re-told the story as peaceful colonisation with a mythical meeting under an elm tree at Shackamaxon. Tasmanians drew on that legend to name the Treaty after Batman rather than a place as is more usual. Paintings of Batman, whose face was unknown, drew him in 17th century Quaker dress.
There had been no treaties in Australia – Sydney was taken by force and the Limits of Location were held by a 500-strong army of marines. The imaginary borders of NSW set by Cook and Phillip were altered in 1828 when the Joint Stock Co Colonisation Committee took control of South Australia. In Tasmania natives fought colonisation and in 1829 Batman offered to help reconcile Aborigines and whites. His efforts failed – he was responsible for the massacre of 15 lives. Following the failure of Black Line, Arthur pursued reconciliation which followed the official advice from the Colonial Office in 1830 that colonisation should be done with the “cooperation and consent of indigenous people”.
Around the same time former NSW Attorney-General Saxe Bannister wrote “Humane Policy or Justice for the Aborigines at Cape Colony and NSW”. In 1835 Bannister gave evidence to the House of Commons select committee inquiry on Aboriginal people. He believed in the superiority of British culture but they had a duty to uplift indigenous people and treaties were a means of peacemaking on the frontiers. Brother Tom Bannister was even more enthusiastic and copied passages from Saxe’s book. He regarded Van Diemenlander history as an indelible stain on the character of the British Government. The Port Phillip Association would follow the footsteps of Penn and Christianise the Aboriginal people of Port Phillip.
The Association saw the treaty as a deed of purchase in writing rather than speaking or ritual. Its terms were about possession of property while Aborigines’ idea of land tenure was using the land’s resources for a purpose. The Association’s aims were reflected in the treaty’s archaic language which granted “enfeoff” of country at Port Phillip. Feoffment was an ancient method of feudal conveyances which barred “diseisin” (recovery of land by party wrongfully dispossessed). It was a simpler form of conveyance rather than the more common ‘lease and release’. The ceremony called “livery of seisin” involved handing over a lump of soil as symbol of the property and enforcing the boundary by perambulation – how far a person could walk in a given time. (Native Americans sarcastically called it “ye hurry walk” where whites scrambled to gain as much property as they could). The terms were for a yearly rent or tribute of 100 pairs of blankets, 100 knives, 100 tomahawks, 50 suits of clothing, 50 looking glasses, 50 pairs of scissors and five tons of flour. It was a “fee simple estate” which meant perpetual full-scale succession not a lease.
Batman went to Port Phillip in May 1836 with three whites and seven blacks. They landed at Indented Head on the Bellarine Peninsula and walked to Port Phillip Bay where they supposedly met local chieftains. The Association told Arthur that Batman walked the boundary and gave the soil to the chiefs who understood what he was doing and signed the treaty. Batman attached a map of the land which was mostly a fantasy. The signatures may have been a forgery. Had the Kulins understood what Batman was doing, they would never had accepted it. For them a treaty was a political document between sovereign peoples rather than set of rights for whites. Batman went to Launceston two weeks later with the signed treaty leaving his men to claim the territory. The Port Phillip Association wrote to Secretary of State for the Colonies Spring Rice and told him the country was 100 miles beyond the jurisdiction of NSW although it was within the line from Bass Strait to Carpentaria which defined Australia in June 1835. They said the treaty was “quietly taken possession”. Rice’s Under Secretary Sir George Grey disagreed saying Port Phillip was part of NSW and there could be no other title to the land.
Acting on Grey’s instructions Governor Bourke directed the land go up for public auction. John Helder Wedge started the settlement in August 1835. Later that month another Van Diemen’s Land expedition sponsored by John Pascoe Fawkner landed on the Yarra and moved onto Port Phillip Association land. Wedge was worried both expeditions could be dispossessed. The Association showed Fawkner their treaty and appointed former convict and Aboriginal wanderer William Buckley as superintendent of Aborigines. Buckley was discovered by an astonished Wedge at Indented Head after escaping the first Port Phillip settlement in 1803 and living with the Aborigines for 32 years. Buckley acted as a go-between but couldn’t stop the violence as the settlement quickly grew beyond Melbourne. In September 1835 Bourke told the Association Port Phillip would be opened up for sale but discussed terms for them to keep a small part of the settlement.
Bourke saw the treaty as a threat to authority. British justice had abstained from jurisdiction over Aborigines but in 1823 the defence in R v Lowe argued a white soldier who murdered an Aborigine was not guilty because Aborigines did not have the rights of British subjects and the incident happened outside the limits of location. Chief Justice Francis Forbes rejected both arguments. The 1834 R v Steele case re-asserted the Lowe position with Forbes saying the King owned all unpossessed lands in the kingdom. Forbes was creating foundational history: NSW’s soil was vested in the king on settlement. In 1833 Macdonald v Levy Justice Burton said Aboriginal land was uninhabited because Aborigines were “wandering tribes” who lived without “certain habitation and without laws”. The “savages” lacked government and property rights and their rights to the land was repudiated. This was why Batman’s Treaty was such a threat to the new concept of sovereignty. It raised fundamental questions about the Crown’s jurisdiction and legal possession of the land.
Forbes told Bourke repudiation of the Treaty was a good peg to hang a proclamation defining the limits of colonisation. Bourke declared all treaties with Aborigines void. Treaty holders and Aborigines could be seen as “intruders” on Crown land. This gave Bourke the excuse to extend the limits of location and confirm the newly minted conception of Crown’s sovereignty.
Batman’s Treaty was a critical moment for Aborigines. The Colonial Office didn’t quite endorse Bourke’s approach repudiating Aboriginal right to land. They set the matter of government aside. They used words like “present proprietors” which assumed the Aboriginals wouldn’t be around in the future. Aborigines were confirmed as British subjects.
The Port Phillip Association retreated into history and Batman died in 1839, almost forgotten. His reputation was rescued by schoolteacher James Bonwick who recast him as a bushman colonial hero like Daniel Boone. Bonwick came up with Batman’s phrase “this will be a good place for a village” as the defining foundation moment for Melbourne. Bonwick was an evangelist troubled by British dispossession of Aborigines. However he was more concerned with redeeming British sins than upholding Aboriginal rights. He believed the Aborigines were doomed to pass away. Now Batman is fading once more into history, while the Kulin nations including the Wurundjeri and Boonwurrung people are finding their voice again.