A CRACKER-JACK OPINION – NO SWEAT

The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstance, not that this prevented Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove.

Not until the High Court gave its Mabo judgement in 1992 was there a legal recognition that Aborigines owned and possessed their traditional lands’. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004 

ACTUAL OCCUPATION: ‘EXISTING IN FACT’ – OXFORD ENGLISH DICTIONARY

1771 – England: In  July 1771 Lieutenant James Cook RN returned to England from the Endeavour voyage and reported New Holland was inhabited.

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition’. James Cook, Endeavour Journal

According to international law ‘only if uninhabited could one country take possession of another country, claim ownership for itself and share it out among its own people’.

‘During the period 1763-1793 the character of the Second British Empire was being formed…the empire of commerce in the Indian and Pacific Oceans’. Vincent T. Harlow, The Founding of the Second British Empire 1763-1793, Vol.2 Longmans, 1964

Lawyers sought to establish legal grounds that would allow Britain take ‘effective occupation’ from those in ‘actual possession’ of New Holland.

They burned midnight oil studying and interpreting the tortuous twists and turns of English law, as laid down in ‘Commentaries’, the writings of Sir William Blackstone England’s leading jurist.

But it was James Cook’s poetic ‘Earth and Sea’ musings, when allied to Swiss born Anglophile Eremich Vattel’s Law of Nations, that provided Britain with NO SWEAT as ‘moral and legal justification’ for wresting New Holland from its peoples.

NEW HOLLAND – PRIME MINISTER WILLIAM PITT AND AMERICAN INDEPENDENCE

‘Britain’s decision in 1786 to occupy New South Wales was partly to compensate for the loss of the American colonies to which unwanted convicts (some 50,000 before the Declaration of Independence in 1776) had been sent and partly to protect Britain’s control of the sea route to Asia via the Southern Oceans’. Professor Martyn, Oxford Companion to British History, 1997

Vattel’s Law of Nations, a treatise held to be ‘full of inconsistencies and contradictions’, was translated into English in 1760 and published anonymously. The Law of Nations had had a profound effect on many of America’s revolutionary pamphleteers including Thomas Jefferson, James Otis and cousins Samuel and John Adams.

‘Study of the pamphlets confirmed my old-fashioned view that the America Revolution was above all else an ideological, constitutional, political struggle’. Bernard Bailyn, Forward, Origins of the American Revolution, Belknap Press, Harvard University Press, 1967

James Otis, a brilliant somewhat erratic Boston lawyer and prolific pamphleteer, is credited with coining the catch-cry of America’s Patriot Revolutionaries; ‘no taxation without representation’.

The call for independence centred on opposition to a plethora of taxes imposed by Britain on her American colonists post the Seven Years’ Was (1756-1763). They included tax of tea, Stamp and Navigation Acts plus a miscellany of nit-picking taxes known as the [Charles] Townshend Acts.

America’s colonists were not as one. Loyalists supported Britain and the monarchy, while Patriots sought independence from Britain.

‘The New York loyalist Peter Van Schaack reached his decision to oppose Independence on the basis of a close and sympathetic reading of Locke. Vattel, Montesquieu, Grotius, Beccaria and Pufendorf’. Bailyn. op.cit. 

Patriots and Loyalists sang from the same hymn sheets, citing the same luminaries.

‘In pamphlet after pamphlet the American writers cited…Vattel on the laws of nature and nations and on the principals of civil government’. Bailyn. ibid.

In April 1775 at Lexington the war of words became a war of brothers. In 1783, after eight (8) years of conflict via the Treaty of Paris and against all odds, Britain lost her ‘mighty empire’ to America’s Patriots.

VATTEL – WILLIAM PITT AND NEW HOLLAND

‘Great Britain under the premiership of the younger Pitt (1783-1806)…asserted rights were conferred by effective occupation’. J.A. Williamson, Cook and the Opening of the Pacific, Cambridge University Press, 1946

England’s lawyers were well aware of Vattel’s Law of Nations so, when Britain moved to establish her ’empire of commerce in the Indian and Pacific Oceans’, Vattel was their go-to man.

EFFECTIVE OCCUPATION: ‘ANSWERING ITS PURPOSE’

‘The territory which a Nation inhabits, whether the Nation moved into it as a body, or whether the families scattered over the territory came together to form a civil society, forms a national settlement, to which the Nation, has a private and exclusive right. Every nation which governs itself, under whatever form. and which does not depend on any other Nation has a private and exclusive right’. Eremich Vatel, Law of Nations, Anon, 1760

1788 – Sydney Cove: Captain John Hunter RN, commander of HMS Sirius, flagship of the ‘First Fleet, described Sydney’s Eora Peoples in terms that met Vattel’s criteria of ‘private and exclusive right’.

‘We had reason to believe, that the natives associate in tribes of many families together…you may often visit the place where the tribe resides, without finding the whole society there…but in the case of any dispute with a neighbouring tribe, they can be soon assembled’. Captain John Hunter, First Fleet Journal, 1793, Bibliobazaar reprint, 2009

CULTIVATED V UNCULTIVATED AND ‘ EFFECTIVE OCCUPATION’

Vattel proved wriggle room – no sweat. He held ‘distinction’ could be made between ‘cultivated and uncultivated lands’.

‘…international law recognised an obligation for people to cultivate the land they used. So, in the case of wandering tribes, so he [Vattel] contended, their failure to cultivate the lands they used meant that they had never taken real and lawful possession of these’. Alex Castles, An Australian Legal History, Law Book Company, 1982. 

Britain recognised New Holland was occupied but deemed its peoples ‘wandering tribes’. As such they had no claim to ‘real and lawful possession’. Therefore for Britain New Holland, ‘a highway to Asia’, was up for grabs.

WANDERING TRIBES

‘The main characteristics of wandering tribes throbbed with disapproval’. Henry Mayhew, London Labour and London Poor, 1851, Cited in The Unknown Mayhew, Eileen Yeo and E.P. Thompson, Schocken Books, New York

Mayhew’s insight reveals the mindset that made Vattel’s ‘wandering tribes’ hypothesis such an agreeable fit for Prime Minister William Pitt and his ‘secretive inner cabinet’ the three (3) powerful politicians Lord Hawkesbury, Lord Mulgrave and Henry Dundas.

England’s ‘wandering tribes‘ were her multitude of paupers, criminals and n’r-do-wells, despised and shunned by the elite; ‘for their lax ideas of property…general improvidence…repugnance to continuous labour…disregard of female honour…love of cruelty…pugnacity…utter want of religion’. Mayhew. op.cit

Australia’s First Nations’ Peoples were not ‘wandering tribes’. Their movements were dictated by seasonal change. Governed by strict protocols they lived vigorous, healthy lives. Punishment for violation of clan strictures, such as non-observance of exacting laws of avoidance, taboo and trespass, preserved a rich family, cultural and spiritual life.

CULTIVATE: ‘TO DEVELOP (FACULTY, MANNER, HABIT) IN ONESELF OR OTHERS BY PRACTICE OR TRAINING’.

Aboriginal cultivation was dynamic. Based on the faculty of acute observation, inherited knowledge, training and regular habits tied to seasonal change.

‘Lieutenant Ball, who had remarked, as well as myself, that every part of the country, though the most inaccessible and rocky, appeared as if, at certain time of the year, it had been all on fire’. Dr John White, Chief Medical Officer, First Fleet Journal, 1794, reprinted Angus and Robertson, 1961

Fire was the essential ingredient. ‘A carefully calibrated system [fire] kept some areas open while others grew dark and dense’. Judicious use of fire engineered regeneration, guaranteed repetition and allowed predictable outcomes.

‘The English were the most explicit of all the European colonizers in seeing themselves as ‘planters’. It provided a moral and legal justification for what might otherwise be regarded as the problematic act of dispossessing native peoples of their lands’. David Day, Conquest, A New History of the Modern World, Harper Collins, 2004

By contrast ‘planter’ cultivation, tied to river systems, was static. Fencing, grazing, cropping, harvesting and storage were all labor intensive and inherently confrontational as every facet demanded protection.  In a ‘land of drought and flooding rain’ crops and animals would always be prey to the vagaries of weather making outcomes highly unpredictable.

‘The Earth and Sea of its accord furnished them with all the things necessary for life’. James Cook

‘The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstances ….A similar recognition of prior or continuing sovereignty has yet to occur’. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004

See: Cape York to South Cape – Your Land is My land

Tags: , , , , ,

Comments are closed.