‘Discovery gave what was termed an inchoate title which could only be developed further by actual occupation’. Henry Reynolds, Aboriginal Sovereignty, Three Nations, One Australia, Allen and Unwin, 1996

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

‘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’. Reynolds. op.cit.

1771 – July, England: In July 1771 James Cook 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; 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 possession of another country, claim ownership for itself and share it out among its own people’.

When inhabited territory was invaded, conquered and effectively occupied, international law required the victor respect the rights of the conquered peoples. Permission to use the land was to be sought and a treaty entered into.


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 inhabitants claim ‘real [estate]’ rights to their land.

Britain’s law makers were familiar with Vattel’s treastse 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 Bernard Bailyn – 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’.

Britain’s lawyers, with Vattel’s ‘laws of nature’ in mind, 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

‘Wandering tribes’ – words as weapons  – according to Henry Mayhew, a English social commentator, ‘the main characteristics of wandering tribes throbbed with disapproval’.

Australia’s First Peoples were not ‘wandering tribes’. Their allocated territories had wide-ranging, strictly defined boundaries that gave each clan group a ‘fair go’ of the resources of their designated land. They did not seek to dominate a semi-arid land rather they allowed it to shape their lives.

‘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’. Fire engineered regeneration, guaranteed repetition and ensured predictable outcomes.


‘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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