‘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 – Cape York, Possession Island:  Lieutenant James Cook RN, without consent in the name of King George III of England, on 22nd August 1770  on Possession Island in the far north of an island continent then known in Europe as New Hollandand now Australia, claimed ‘discovery’ of the entire eastern coast from ‘Cape York in the most northern extremity…to South Cape’ 

1771 – England, July: ‘Discovery’ Cook on his return to England from the Endeavour voyage (1786-1771) 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’. Lieutenant James Cook, The Endeavour Journal

Eighteenth century European 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’.

If inhabited territory was invaded and conquered the rights of the conquered peoples were to be respected, permission to use the land had to be sought and a treaty entered into.


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

So Britain sought grounds to take ‘effective occupation’ of New Holland by stealth. Swiss born Emerich Vattel provided the wriggle room. Britain’s lawyers were familiar with Vattel’s treatise The Law of Nations.

The ‘contradictions  and inconsistencies’ inherent in his work had been amply demonstrated during the long run-up to America’s War of  Independence (1775-1783).

According to American historian Professor Bernard Bailyn’s 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’.

Vattel argued only if land was ‘cultivated’ could New Holland’s First Peoples claim ‘real [estate]’ rights to their land.

So when it came to New Holland, With Vattel’s ‘laws of nature’ in mind Britain’s law-men,  honed in on Captain James Cook’s poetic  musings; ‘the 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

Wandering tribes’ words as weapons; according to Henry Mayhew, a prominent English social commentator of that time, ‘the main characteristics of wandering tribes throbbed with disapproval’. See: A Cracker-Jack Opinion – No Sweat

Australia’s First Peoples were not ‘wandering tribes’.  Their strictly designated territories were extensive, sufficient to cover the change of seasons. These defined boundaries gave each clan group a fair go at its various resources.

‘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 D.J. Mulvaney, The Prehistory of Australia, 1975

Aboriginal cultivation was based on inherited knowledge, acute observation and practice. They did not seek to dominate a semi-arid land rather allowing it to shape their lives.

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

Science – fire; ‘a carefully calibrated system kept some areas open while others grew dark and dense’ engineered regeneration, guaranteed repetition and delivered predictable outcomes.


‘It [failure to cultivate] provided a moral and legal justification for which might otherwise be regarded as the problematic act of dispossessing 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

New Holland – 1788:  ‘The invaders were determined to have those lands for themselves’. No consent was sought, no permission given – no rights respected –  no treaty entered into. See: A Cracker Jack Opinion – No Sweat





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