‘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

Cape York, Possession Island:  On 22 August 1770 Lieutenant James Cook RN, in Australia’s far north at Possession Island in the name of King George III of England, Ireland, Scotland and Wales, claimed ‘discovery’ of the entire eastern coast of New Holland from ‘Cape York in the most northern extremity…to South Cape’.

‘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

England –  July 1771: When Lieutenant James Cook RN returned home from the Endeavour voyage (1786-1771) he reported New Holland was inhabited.

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’.

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

European law required if inhabited territory was to be invaded and conquered – – ‘effective[ly] occupied’ – by a foreign power, permission to use the land had to be sought. The rights of the conquered peoples were to be respected and treaty entered into.


Britain sought grounds to take ‘effective occupation’ of New Holland by stealth. Swiss born Emerich Vattel provided wriggle room. He argued only if land was ‘cultivated’ could New Holland’s First Peoples claim ‘real [estate]’ rights to their land.

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

According to American historian Professor Bernard Bailyn’s Origins of the American Revolution Patriot and Loyalist pamphleteers; both ‘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 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 designated territories were extensive. Strictly defined boundaries gave each clan group a fair go at the resources of their allocation.

‘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

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

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.


New Holland – 1788:  No permission sought – no consent given – no rights respected –  no treaty entered into.

‘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.

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’. David Day, Conquest, A New History of the Modern World, Harper Collins, 2004


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