Arthur Phillip noted that while the Aborigines were in so rude and uncivilized a state as not even to have made an attempt towards clothing themselves, they nevertheless spent time carving stone statues. J. C. Beaglehole, ed., The Journals of Captain Cook on His Voyages of Discovery (Cambridge: Cambridge University Press, 195574), 1:514. In recognising that native title had always existed, the Mabo ruling set a precedent in Australian law, which has now seen numerous Aboriginal and Torres Strait Islander groups regain rights over their traditional lands. A world turning. But the missionaries were hardly alone in opposing terra nullius. As the power struggle between the North and the South reached its peak,the Civil War broke out in 1861. This was 47 years after the arrival of the First Fleet. Australian Museum Collection Acquisition. 1174, ML. William Bentinck, the Duke of Portland, would in a few years be the Prime Minister, but in 1800, while still Home Secretary, he sent instructions to New South Wales concerning an upcoming survey of portions of the Australian coast not yet visited by the British. Bruce Kercher, www.law.mq.edu.au/scnsw (visited 10 June 2002). Under English property law, the Aborigines did not exist. 0000010491 00000 n Lowe could not be prosecuted, his lawyer contended, because Lowe was only punishing Jackey Jackey for a murder Jackey Jackey had committed. When Aborigines ate the corn growing on settler farms, for instance, the settlers understood the cause as their ignorance of our laws relative to the right of property rather than the reverse. The justices spoke of a legacy of "unutterable shame"and that the dispossession of Indigenous people was the darkest aspect of Australia's history. Row, 1841), 36; William Westgarth, A Report on the Condition, Capabilities, and Prospects of the Australian Aborigines (Melbourne: William Clarke, 1846), 15. It is the universal opinion of all who have seen them, he affirmed, that it is impossible to find men and women sunk lower in the scale of human society. Uncle Gordon Syron, Worimi, Birpai Something like this would become law in the 1990s after Mabo. 1842), A1400, 32, ML; Southern Australian, 8 May 1839, 2:5; The Aborigines of New Holland, The Blossom 1 (1828): 4647; Sydney Herald, 5 December 1838, 2:1; Richard Howitt, Impressions of Australia Felix, During Four Years Residence in that Colony (London: Longman, Brown, Green, and Longmans, 1845), 277; Samuel Kittle, A Concise History of the Colony and Natives of New South Wales (Edinburgh: Oliver & Boyd, [1815]), 7. Nonetheless, on 22 August 1770, Cook declared the east coast of the continent a British possession. The establishment of terra nullius was aided by the fact that the earliest British contacts with Australia were large, well-armed expeditions controlled by the imperial government. I like how the words create a rhythm. I am not aware that they have shown any disposition to till the ground, the physician Alexander McShane informed a Parliamentary committee in 1841. We know sadness. We go on, he said, ever, ever, ever on. If the land is indeed their own, he realized, the Colonists of South Australia have no title to their land, for a voluntary surrender of it has never been made. If terra nullius were abandoned, he wondered, and if the Aborigines were to try to reclaim their land, would not the Colonists, as a matter of course, be at once called upon to rise en masse and resist so diabolical an attempt, and would not your newspaper be filled with glowing accounts of the bravery and skill displayed by the Colonists in repelling this atrocious native aggression?[76] The number of landowners in Australia was steadily increasing, and all of themevery single onedepended on terra nullius for the security of their title. [39] Not only were there more on the coast than Cook had stated, but Joseph Bankss speculation that the interior was uninhabited turned out to be utterly wrong. Had Australia not been a penal colony, the first British settlers might have been scattered missionaries and whalers, who would have been less able than the government to seize Aboriginal land by force. In most instances in which a country is taken possession of, and its original inhabitants are removed, enslaved, or exterminated, he noted, in a tone heavy with sarcasm, the party thus violently seizing upon the rights of others is considered the superior and more civilized nation of the two. But that did not mean the British ought to leave Australia. North America had some empty places, but Australia sounded like an empty continent. Some people have observed, Robinson remarked, in reference to the natives occupying their country, what could they do with it? The Mabo decision was a turning point for the recognition of Aboriginal and Torres Strait Islander peoples' rights, because it acknowledged their unique connection with the land. This immense tract of land, he marveled, considerably larger than all of Europe, is thinly inhabited even to admiration. Banks admitted that he had seen only a small part of the coast and none of the interior. It is worn by men in dance and ceremony and is the central symbol on the Torres Strait Islander Flag. The High Court ruled the Meriam people (from the Murray Islands, which the Meriam people call Mer) were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'. ' When Robinson realized that the people under his protection evidenced a tie to their land little different from that experienced by residents of Britain, he was prompted to some pointed criticism of terra nullius. 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Elder Waubin Richard Aken, Traditional Owner of Tuined and appointed Tribal Historian for Kaurareg First Nations people, discusses the HMB Endeavours voyage from his peoples accounts and perspectives. Beginning in the 1820s, these doubts began to ripen into an apparently widespread belief, in both Britain and Australia, that terra nullius was an injustice toward the Aborigines. The earliest formal statements of terra nullius arose in legal contexts that on the surface had little to do with the acquisition of land. 38. The divisiveness and animosity fueled by the movement, along with other factors, led to the Civil War and ultimately the end of slavery in America. Phillips instructions were very different. W. H. Whitmore (Boston: Prince Society, 186874), 1:1516 (emphasis in the original). Theodore C. Williams (Boston: Richard G. Badger, 1905), 2324; Ovid, Metamorphoses, trans. startxref And the Crowns title to the land rested on the legal fiction that the Crown had instantly become the owner of all the continent in 1788. In 1768 the Royal Society hired James Cook to take a ship to the South Pacific to observe the transit of Venus across the sun, the measurement of which, from several parts of the world simultaneously, would help astronomers determine the distance between the sun and the earth.