The year 1835 was a watershed for British colonists and their relationships with Australian First Nations as settlers moved into Victoria and South Australia. While earlier colonies in New South Wales and Tasmania were sparked by colonial entrepreneurs, the newer colonies coincided with the rise of the Evangelical movement in London, fresh from success in outlawing slavery in the British Empire in 1833. The rule of law became an important tool in colonising lands and “civilising” Indigenous peoples, a topic explored in Hannah Robert’s book about the birth of the two new colonies Paved With Good Intentions.
The area around Melbourne and Geelong was colonised by a group of Tasmanian settlers who called themselves the Port Phillip Association. John Batman sailed from Hobart to assess the pastoral potential and stake a claim by forming a lease-type agreement with Aboriginal people, which although not a treaty document, was later known as Batman’s Treaty. Meanwhile the South Australian colonists began negotiating with the Colonial Office while still in London. This group wanted to put the “systematic colonisation” theories of Edward Gibbon Wakefield into practice. While Victoria and South Australia were radically different approaches to colonisation they both operated within the legal framework of property rights. They also both used humanitarian arguments to convince officials of their claims as well as Aboriginal rights to a degree – at least until they conflicted with their property rights, which took precedence.
New South Wales Governor Richard Bourke was hostile to Batman’s Treaty and sought advice from Chief Justice Francis Forbes. Forbes regarded all lands outside the limits of settlement as “crown lands”. This meant Batman and the PPA were legal intruders, as were the Kulin People who lived there. The PPA argued sovereignty did not constrain land rights and the treaty vested them with title of the land via “enfeoffment”, an arcane British feudal transfer system used in 1683 by William Penn in his “purchase” of Pennsylvania (the name Batman’s Treaty mirrored Penn’s treaty with the Indians). The PPA sought legal opinion in London which found dominion was qualified because Aboriginal People could not be alienated from their own lands. But the Colonial Office supported Bourke’s proclamation declaring treaties as “void against the rights of the crown”.
After this failure, the PPA preferred to emphasise its second argument. This was that the Treaty was a humanitarian conciliatory gesture and they deserved the “special favour” of land grants for pacifying and civilising the Aborigines, reducing Aboriginal rights to welfare matters. The Colonial Office claimed Aborigines were under the “protection” of the crown but they knew selling land was a profitable business for the colonies. When Bourke nullified the treaty he agreed the crown would take over the payments to Aboriginal people as specified in the treaty document, to maintain peaceful relations. He also allowed the “permissive occupancy” by the Squatters, which he said, “a government cannot wholly interdict”.
Aboriginal rights did not become an issue in South Australia until late in preparations. The colonisers had the South Australia Act passed through parliament in 1834 which remains the only time colonisation was approved through parliament than through the crown. The Act made no mention of Indigenous Peoples and defined the entire colony as “waste and unoccupied lands”. In 1835 the Colonial Office put pressure on Colonisation Commissioners to consider Aboriginal rights. Commissioners formed a “Society for the Protection of the Aborigines of South Australia” framing Aboriginal rights as a philanthropic rather than legal problem. The Colonial Office threatened to delay the scheme unless they could assure against “any Act of Injustice” and not intrude on Aboriginal-owned lands. This jeopardised the plan which relied on selling land to raise funds for emigration. Settlers resorted to linguistic contortions to redefine Aboriginal occupancy without mentioning the word “property”. A compromise allowed Aboriginal rights which might include property, but only within the colony, not within their lands. A proviso was added to the 1836 Letters Patent to that effect but it was still at odds with the 1834 Act which barred reserving lands.
Apart from creating legal uncertainty, the proviso carried little weight. Commissioners used the economic philosophy of John Locke to determine if the Aboriginal people held land. Locke constructed a western view of property in Two Treatises of Government (1690): “I ask whether in the wild woods and uncultivated waste of America left to nature, without any improvement, tillage or husbandry, a thousand acres will yield the needy and wretched inhabitants as many consequences of life as ten acres of equally fertile land in Devonshire where they are well cultivated?” Aboriginal property looked nothing like Devonshire property and by such sophistry Australian colonists proclaimed the need to protect Aborigines while taking their land.
They were helped by a new discourse distinguishing people on “race”. The lower on the scale people were judged as, the less attention needed to be paid to their land rights. South Australian colonial administrator Robert Torrens said Aboriginal people had “not arrived at the stage of social improvement in which a proprietary right to the soil exists.” Protector William Thomas claimed their only possessions were “what they carried in the bag”. The theory was used to justify a lack of treaties. As historian Patrick Wolfe noted, the intent was genocidal. Aboriginal bodies and souls could be saved, but their way of life, culture, laws and land use would have to die out.
South Australian commissioners were supposed to recognise when Aboriginal people held the land “in occupation or enjoyment” but allowed settlers to determine individual cases. Torrens was typical in believing Aborigines had no land rights. But replacement of rights with compassion didn’t work out. Aboriginal rights would be respected but only if they did not kill the sheep that accompanied the new settlers. Subsistence would be replaced by rations but these were poor as PPA’s John Helder Wedge reasoned, “damaged rice or anything of the kind that can be got the cheapest will answer the purpose”.
That purpose was how to access valuable land without paying owners. Wedge’s and Torrens’ answer was a partial and unequal assimilation. If compensation was to be paid at all it was to the whites in gratitude for spreading the gifts of Western civilisation. Aboriginal people were no longer a matter for the law but for humanitarian groups. The new colonies created Commissioners for Crown Lands as a separate arm of bureaucracy charged with selling Aboriginal lands to white people, with profit to the crown. Aboriginal resistance to these measures reminded the British of their sleight of hand. But that only turned humanitarians against the blacks, arguing a lack of “moral principle” justified a more violent settler response.
Melbourne and Adelaide quickly became established settler cities with ambitions of self-government. As Hannah Robert wrote, a key part of their claim to be taken seriously is their foundation stories. Early histories of Victoria and South Australia presented colonisers as heroes, instrumental in the eventual creation of a white nation in 1901. Aboriginal people weren’t asked their opinion. They were not in the story at all, and written out of the new constitution. Robert said colonisers used law and economic theory to exclude Aboriginal rights while using humanitarian language to enclose and contain them. It started a fashion which still lasts – intensive over-governance of Indigenous people in their supposed interests.
Woolly Days 