Did James Cook actually and legitimately claim the entire Great Southern Land? The prevailing narrative — the colonial narrative — holds that he did. And if it were not true? And if people at the time did not believe it to be true? What then does “sovereignty”mean in the context of the state called Australia? This is the subject of Henry Reynolds’ latest — and arguably most important — work. It was written in response to the Uluru Statement, but also continues a theme he has returned to again and again over five decades. At the core of the statement is this key phrase “sovereignty never ceded, never extinguished and which co-exists with that of the Crown.” Reynolds sets out to show the truth of this assertion.
I will not dwell too much on dry legal discussion concerning the international legal framework surrounding sovereignty, because it arises mainly in the context of the division of the globe into regions of exclusive plunder by the imperialist powers of Europe — a “gentlemen’s agreement” among conquerers, and little else. Except for one crucial detail. The prevailing doctrine was that a conquering power could only claim territory over which it had effective control (including any rivers that fed that territory), but that this limited control did not apply to the seizure of land or property owned by any original inhabitants. The laws of the period were not a licence to plunder the population. Not that this prevented any of the imperialist powers from organised piracy!
The birth of the terra nullius myth. When Cook made his assertion of possession by the British Crown, there was no effective control of any part of the continent. He wasn’t even on the mainland, but on an island in the Coral Sea. But, as Reynolds shows, it was he, and the botanist Joseph Banks, who began the lie that Australia was “sparsely populated.” And so “Terra Nullius,” the legal doctrine that empty land could be claimed came into play. But they both lied. A recent documentary series, Looky Looky, Here Comes Cooky, featured an interview with a Torres Strait Islander, who recounts that his ancestors were warned of the European’s approach by signal fires. Indeed Cook’s progress along the entire east coast was accompanied by such signals. It’s impossible to conclude that neither he nor Banks was unaware of this. First Nations peoples are absolutely correct to assert that genocide began with that act and that lie. And as soon as the First Fleet colonisers landed at Sydney Cove, the lie became more obvious. Expedition leader Arthur Phillip reported the occupation to the Colonial Office in London.
Resistance and genocide. The invaders quickly realised that they weren’t particularly welcome, and their ignorance of local traditions and culture very soon led to conflict, as local clan groups asserted their sovereignty. The genocide began, and was fiercely resisted, right across the continent.
Reynolds’ work divides the conquest of the continent into two periods. The first being the direct rule of the various settlements from London; the second that of the self-governing colonies and their successor state governments. This does two things. It shows that, despite the assertion of possession over the entire continent, the British were in effective control over only a tiny part of it. This legacy can be seen today in the concentration of populations around the coasts. Throughout the first period, the sovereignty of most First Nations across this vast continent remained unaffected. The book also debunks the assertion that the mass killings and dispossessions were exclusively the fault of the Colonial Office in Britain.
When the colonies were formed in 1856, there was still no effective control of much of the territory outside the major settlements. It was through the intensification of mass killings and dispossession that control was extended. All this was done by local authorities and settlers — by that time people largely born here. Even at Federation in 1901, the new Commonwealth government was not in effective control of vast tracts of land, upon which no coloniser had even set foot. This situation continued for several decades. The last recognised massacre by government agents occurred at Coniston Station in 1928. The last frontier conflicts happened in 1932 or 1933. Hardly the distant past, as the prevailing colonial narrative asserts. And of, course, First Nations people were not counted as citizens until after the 1967 referendum.
Who owns the land? The “gentlemen’s agreement” included the understanding that possession of territory did not mean the seizure of inhabitants’ land or property. That was a concept that partly underpinned the Mabo judgement of 1992, which found that Native Title had not been extinguished by the Crown’s “possession” of the continent. It is not sovereignty under Australian law. Indeed the court ducked the issue, as had previous tribunals. That situation remains. What the court did, to the detriment of Indigenous sovereignty, was to allow the government to “extinguish” traditional title. The question is, by what right? The court ducked that, too. Because the justices knew full well about the “gentlemen’s agreement.”
As Reynolds notes, the Crown’s possession did not even amount to “effective control” until the middle of the twentieth century in large areas. Given this, it’s very clear that the ownership of many groups across the continent was unaffected for long periods after the arrival of the British in Sydney. The exception to this occurred when colonisation was carried out by conquest—the Australian Wars. This conquest was usually carried out by groups of settlers, but also by government agents like the police. Yet Mabo held that even when the conquest (my term, not the High Court’s) was successful, ownership remained everywhere that First Nations remained on their traditional country.
For First Nations, of course, ownership and occupation of their country is their sovereignty. Reynolds, backed by volumes of evidence, indeed shows that the key assertion of the Uluru Statement is much stronger in terms of international custom and practice — and law — than the mainstream narrative allows. Correspondingly, the Commonwealth’s sovereignty is weakened.
The treaty question. None of this removes the fact of conquest or will reverse the annexation. What it does do is make the case for a treaty (or treaties) with First Nations, because the British allowed a process of unlawful seizure of lands that was inherited and accelerated by local authorities, and continues today. Whether a treaty is possible under Australian capitalism is doubtful, partly because it involves a recognition that much of the country’s industry is based on dispossession or outright slavery, partly because any reparations will necessarily be larger than the capitalists could be made to pay.
Still, it is an important demand, simply because justice for Indigenous peoples demands it.
Many reviews have held that this is a book that every Australian must read. I agree. Too much of Australian colonial history is based on outright lies or burial of the truth. Militant First Nations activists often say: “Australia is a crime scene.” In the context of the colonial annexation, that is the truth.