CAPE YORK TO SOUTH CAPE – YOUR LAND IS MY LAND

‘Hugh Grotius [1538-1645] remark[ed] that an act of discovery was sufficient to give clear title to sovereignty ‘only when it is accompanied by actual possession’. Cited, Henry Reynolds, Aboriginal Sovereignty, Three Nations, One Australia, Allen and Unwin, Sydney, 1996

1770 – 22 August, Cape York: In the name of King George III of England Lieutenant James Cook RN, without consent of its owners, claimed ‘discovery’ of the entire eastern coast of New Holland from ‘Cape York in the most northern extremity…to South Cape’.

‘Discovery gave what was termed an inchoate title which could only be developed further by actual occupation’Reynolds. op.cit.

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

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition; they covet not magnificent Houses, household stuff etc. They sleep as sound in a small hovel or even in the open as the King in His Pallace on a Bed of down. The Earth and Sea of its accord furnished them with all the things necessary for life’. James Cook, The Endeavour Journal

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

That is when an inhabited territory was invaded, conquered and effectively occupied by a rival power international law required the victor respect the rights of the conquered; permission to use the land was to be sought and treaty entered into.

PERMISSION – RIGHTS – TREATY – NOT ON

Grounds were sought to enable Britain take ‘effective occupation’ of New Holland by stealth. It was Swiss born Emerich Vattel  who provided wriggle room. He argued only if land was ‘cultivated’ could its inhabitants claim ‘real [estate]’ rights to their land.

Britain’s lawyers were familiar with Vattel’s treatise The Law of Nations its ‘contradictions  and inconsistencies’ had been amply demonstrated in the long run-up to the American War of Independence (1775-1783).

According to American historian Professor Bernard Bailyn in Origins of the American Revolution – both Patriot and Loyalist pamphleteers; ‘cited Vattel on the laws of nature and nations and on the principals of civil government’.

When it came to New Holland, with Vattel’s ‘laws of nature’ in mind, Britain’s law-men honed in on James Cook’s poetic musings;Earth and Sea of its own accord furnished them with the things necessary for life’.

‘International law recognized an obligation for people to cultivate the lands 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

Words as weapons; ‘wandering tribes’ according to Henry Mayhew, a prominent English social commentator of that time, ‘the main characteristics of wandering tribes throbbed with disapproval’.

But Australia’s First Peoples were not ‘wandering tribes’ nor did they not seek to dominate a semi-arid land rather they allowed it to shape their lives. Allocated territories were wide-ranging, strictly defined boundaries gave each clan group a ‘fair go’ of the resources of their designated land.

‘In his own district a native is very differently situated; he knows exactly what it produces, the proper time at which the several articles are in season, and the readiest means of procuring them. According to these circumstances he regulates his visits to the different portions of his hunting ground’. George Gray, Journal of Two Expeditions of Discovery 1841, Cited in D.J. Mulvaney, the Prehistory of Australia, 1975

CULTIVATE: ‘To develop (faculty, manner, habit) in oneself or others by practice or training’. Oxford English Dictionary

Aboriginal cultivation was based on inherited knowledge, acute observation and repetition. Fire; ‘a carefully calibrated system kept some areas open while others grew dark and dense’ engineered regeneration, guaranteed repetition and established predictable outcomes.

EPILOGUE – BLIND-SIDED

‘It [failure to cultivate] provided a moral and legal justification for which might otherwise be regarded as the problematic act of dispossession native peoples of their lands.

In fact, it did not matter how native peoples lived in relation to their land, the invaders were determined to have those lands for themselves. The English were the most explicit of all European colonizers in seeing themselves as ‘planters’. David Day, Conquest, A New History of the Modern World, Harper Collins, 2004

See: A Cracker-Jack Opinion – No Sweat

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