From Ignorance to Understanding: Facing the Truth of Colonisation (Part 3)

20 Comments

1. One has to ask, how do you make a treaty with “hundreds of nations” with “different languages and laws”?

2. Alternatively, one has to ask, how does one nation make a treaty with itself ?

3. That’s a good question, jonangel. Way back in 1770 it was not known there were more than one nation. But let’s go back to 1770 and take a look:

   In 1770 under Customary Law and Maritime Law it was illegal to usurp, occupy or repopulate lands of First Nations and treaties with these peoples were hence the legal norm and …

   Lieutenant (later Captain) James Cook had instructions to negotiate with the Natives and gain their consent to occupy land. From April to August 1770, without the consent of the Indigenous Peoples or consultation Captain James Cook landed at a number of sites on the eastern coast of Australia claiming it for the British Crown. On the 22 August 1770 on Possession Island off Cape York, Cook took possession of the whole east coast in right of his Majesty King George the Third (cited from The Other Side of the Coin by Tony Kamps).

   But a treaty or any negotiation was, in Cook’s opinion, not a privilege to be afforded to ‘savages’ and he subsequently breached his instructions.

4. Interestingly, the term Terra Nullius was never recorded as having been used by James Cook and doesn’t appear in his journals.
   The Proclamation of NSW Governor Richard Bourke in 1835 first implemented the legal principle of terra nullius in Australian law as the basis for British settlement. This was 47 years after the arrival of the First Fleet.
   It is also significant that Cook only claimed the East Coast of New Holland for the British Crown, noting in his journal “[we] therefor may land no more upon this Western Eastern coast of New Holland and on the Western side I can make no new discovery the honour of which belongs to the Dutch Navigators and as such they may lay claim to it as their property….”

   These comments, made at Cape York (possession Island) illustrate the mind-set of the day when the major powers (British, Dutch, French, Portuguese, Spanish etc,) were out to grab colonies in every corner of the new world, as they saw it.

5. Michael and Terry, I thank you both for extending my knowledge of Australia’s “colonisation”, “invasion” or “discovery”, call it what you will.
   I think I’ll stick with my fall back position, being Australians are all migrants or of the offspring of migrants, some just got here sooner than others.

6. A useful mythology, jonangel; you can absolve yourself from any complicity in the ongoing harm being done to Aboriginal people.

7. “Mythology” it isn’t, fact is what it is. If you live in this country and you believe in this country, you are an Australian. All this crap regarding, British Australians, Italian Australians or Jewish Australians, is just some form of political segregation.

8. Jonangel, I appreciate that you’ve engaged further in the discussion and that Michael, Terry and leefe have taken the time to add detail and context. That’s what good dialogue should look like.

   On your point that “Australians are all migrants, some just got here sooner than others”: I understand why that feels like a neat fallback, but it’s also a view that flattens some important realities.

   First Peoples are not migrants. Their presence here stretches back 60,000+ years. Migration suggests coming from somewhere else. Aboriginal and Torres Strait Islander peoples originated here. Their languages, laws, and cultures are rooted in this continent in a way that is fundamentally different to settler migration.

   Sovereignty was never ceded. Unlike in many other parts of the world, no treaty was signed and no consent was sought. To describe everyone as migrants risks sidestepping the legal and moral questions about whose authority was denied and why.

   The “mythology” point. As leefe noted, calling Indigenous claims or truth-telling a “myth” lets those of us who’ve benefitted from colonisation off the hook. But as Michael and Terry have shown, the historical record is clear: dispossession was deliberate, structured, and backed by law. The effects continue today.

   That doesn’t mean we can’t all belong to this country as Australians. But belonging and responsibility aren’t the same thing. To move forward, I think we need to hold both truths at once: that First Nations peoples have deep, unbroken sovereignty here, and that those who came later also now call this place home. Reconciliation is about building a way for both to be recognised — honestly, not by erasing one in favour of the other.

9. Thank you for your comment, but one of us is misinformed! Based on all I have read there was no human on this land prior to the migrants now referred to as “First nations people”.
   Please point me to any facts that prove me wrong.

10. jonangel, Aboriginal people in the Kimberley region beg to differ. When asked about the story behind ancient rock art they replied that it was created by people that predated their arrival.

    It might explain why there were two “types” of Aborigines, according to the archaeological record: the “robust” type, and the “gracile” type. The graciles resemble Asian people.

    Trust me. I know about this stuff. I am by qualifications an Aboriginal archaeologist and an historian.

11. Michael, you may well be right, I was not here at the dawn of time, I can only go on the information available. But every thing I have read tells me the forefathers of those referred to as “First Nations people” migrated here.
    Please, if you can, point me to some verifiable source for your comment.

12. Thank you both for engaging — these discussions matter.

    Michael is right to point out that Kimberley oral histories and archaeology suggest deep complexity: ancient rock art sometimes attributed to earlier peoples, skeletal variation (“robust” and “gracile”), and the Denisovan DNA still carried today by Aboriginal and Torres Strait Islander peoples. Together, these point to interactions and deep time horizons stretching back 65,000 years at minimum, and possibly much further (sites like Moyjil hint at 100,000+ years).

    It’s also worth noting that “Aboriginal” means the original inhabitants. Of course, all humans ultimately trace back to earlier migrations, but in Australia’s context “Aboriginal” is not about first-ever-humans on Earth — it’s about the First Peoples of this continent. They remain the world’s oldest continuous culture, and science is still catching up to the depth of what oral histories have safeguarded for tens of thousands of years.

13. Thanks all for the discussion. But let’s not lose sight of what this article is really about — it’s in the headline. The point here isn’t to relitigate timelines or semantics, but to confront the ongoing impacts of colonisation and the way Aboriginal people have been criminalised and dispossessed.

    The evidence is clear, from research, historical records, and above all Aboriginal voices themselves: colonisation has never been good for Aboriginal peoples. Truth-telling is about facing that reality honestly, so we can build something better going forward.

14. re jonangel’s contributions, that well-worn observation that you can lead a horse to water but you can’t make it drink seems apt. Even Michael Taylor – the singular contributor on this website who can attest to a deep and enduring relationship with indigenous issues – apparently warrants dismissal from jonangel, who preferences his ‘tiny crack through the door’ perspective.

    [Scratches head, ruminates on the obdurate stupidity of the human species]

15. I have told you before that ‘terra nullius’ was not a lie nor a legal fiction. The term simply means nobody’s land signifying that the land belonged to nobody. It does not mean the land was empty, though there were more people living in London at the time of the First Fleet than there was in the entire continent of Australia. Land ownership is an essentially absurd, artificial concept that was invented out of sheer necessity when humans started to build permanent settlements in order to regulate and prevent conflict over who and where people were entitled to live, build their homes and plant their crops.

    The artists in Bank’s scientific expedition recorded portraits of native people and there are accounts from explorers of encounters and of the scarcity of native peoples from the earliest written historical records of Australia, which alas only go back centuries with European records and not very much earlier with Asian records. The rest is all the silence of pre-history.

    So there was never any attempt to deny that there were people living in Australia. Those who lived here simply had no artificial, not to mention arrogant, concept of land ownership. There were doubtless places to which some people were forbidden to go for whatever social reasons, but nobody had to ask of any other individual if they had permission to enter their land. There were no boundaries to signify ‘this is my land’, no one charged people rent for camping on their land, no one sold their land or bought up other properties to live off the proceeds of those estates. Nobody built walls and fences to keep people off their land. The land belonged to nobody. It was terra nullius. It had always been there before there was anyone conceited enough to pretend it belonged to them, that they had an exclusive right to it that no-one else had.

    When I pointed this out before it was conceded that the native people of Australia did not consider themselves as owners of the land but as custodians of the land. Though why the land needed them to look after it when it had taken care of itself for millions of years before humans even existed is a question traditional non-owners of the land appear to be unwilling to ask themselves. Terra nullius wasn’t a lie, but the term Traditional Owners is indeed a lie that disrespects all the evidence of the true history and nature of ancient peoples whose way of life is being forgotten and replaced with the modern mythology of real estate ownership.

16. Thank you, Canguro. I appreciate that.

17. B Sullivan
    What you say is factual and is illustrative of the early developments in our (British) system of common law and explains why societies such as those on Tahiti and New Zealand were treated differently by the British and in the latter case, a treaty was effected by the settlers/colonists.
    The High Court Mabo case corrected the Terra Nullius designation for Australia but, and this has always intrigued me, the evidence against terra Nullius was drawn from the Torres Strait Islands not the mainland of Australia.
    Cook had only claimed the East Coast of ‘New Holland’ [he named it New South Wales] from 38 deg. parallel South (around Port Philip Bay) up to Possession Island (off the West Coast of Cape York) so he didn’t lay claim to the Torres Strait Islands which only became part of Australia (Queensland) sometime later in 1879 by an act of the Imperial parliament, when the British Colony of Queensland officially annexed them, although the Torres Strait Islander people, never consented to this takeover and there was no treaty or agreement with the Islanders.

    Prior to that the Torres Strait Islands were loosely linked to Britain who took over Papua by first proclaiming a protectorate in 1884, and then formally annexing the territory in 1888, which was known as British New Guinea*. The territory was later transferred to the Commonwealth of Australia and became the Territory of Papua in 1906.

    *German New Guinea was the northeastern part of the island of New Guinea, which was a German colony from 1884 until World War I, when it was taken over by Australia. Dutch New Guinea was the western half of the island, which was controlled by the Netherlands as part of the Dutch East Indies and acquired by Indonesia in 1963 and remains under Indonesian colonial control.

    Interesting discussion !

18. “… nobody had to ask of any other individual if they had permission to enter their land.”

    Not true.

19. “Sovereignty was never ceded.” Lachlan, this reminds me of one very intriguing court case: R. v. Bonjon in the Supreme Court of New South Wales before Willis J., 16 September 1841. The following is a summary of the proceedings:

    Bonjon, a Wadora man, was charged with the shooting murder of Yammowing, of the Colijon people, at Geelong. The proceedings before Judge Willis began with evidence as to the capacity of the defendant to plead the jurisdiction of the court, and to plead guilty or not guilty. The court then heard argument on the question of whether it had jurisdiction to hear a charge of murder by one Aborigine of another.

    Arguing against the court’s jurisdiction, Mr Redmond Barry, for Bonjon, said that there is nothing in the establishment of British sovereignty in this country which authorises the court to submit the Aboriginal natives to punishment for acts of aggression committed inter se. New South Wales was occupied by the British, he argued, rather than conquered or ceded. Occupation gave the Crown a right to the soil, but not to any authority over the Indigenous inhabitants as subjects, unless there be some treaty, compact or other demonstration of their desire to come under English law. This does not interfere with the right of the sovereign to punish Aborigines who attack the persons or property of British settlers, or the reverse. No statute states that Aborigines are British subjects, and there is no treaty or compact showing their submission to British authority; their assent was necessary. Nor is there any reciprocity between them and the Crown to render them amenable to the criminal law. It is impossible to apply the whole of that law to them. Aborigines have their own modes of punishment, under their own regulations. Their regulations, like those of all societies, extend to murder. The Aborigines live in self-governing communities. English law, then, was not the only law in the colony, and it could not be imposed on them by terror.

    Mr Croke, the Crown Prosecutor, replied that it is lawful for a civilised country to occupy the territory of uncivilised persons, so long as they leave them sufficient land to enable them to acquire subsistence. As a consequence of such settlement, the common law of England was transferred to the Port Phillip District of New South Wales. All persons within that area owe a local allegiance to the Queen, and are bound by English law even for conflicts inter se. They are protected by the law, and bound to obey it. Sufficient land having been left for them, they have no original rights to the territory of Port Phillip, but merely an easement over the soil. Bonjon is as much amenable to English law as a British subject.

    The argument from Mr Barry that New South Wales was occupied, not conquered, was founded on this claim upon by the defence:

    On the shore appeared a body of savages, armed with spears, which, however, they threw down as soon as they found the strangers had no hostile intention.

    This may have been a lie (in order to save his client), as what has been conveniently ignored is the fact that the spears were thrown down after shots were fired by the English. The local Aborigines, in throwing down their spears, were actually signalling defeat. Technically, this means that the land was invaded. The English were the aggressors as was confessed by the British Government not two years prior to this case, voicing the sentiments that:

    You cannot overrate the solicitude of Her Majesty’s Government on the subject of the aborigines of New Holland. It is impossible to overrate the conditions and prospects of that unfortunate race without the deepest of commiserations. I am well aware of the many difficulties which oppose themselves to the effectual protection of these people, and especially those which must originate from the exasperation of the settlers, on account of aggression on their property, which are not less irritating because they are nothing else than the natural results of the pernicious examples set to the aborigines, and of the many wrongs of which they have been the victims. Still it is impossible that the Government should forget that the original aggression was our own.

20. Thank you all for your contributions — these are important conversations. A few clarifications might help our wider readers:

    🔹 On “terra nullius”: The High Court in Mabo (1992) found that the idea Australia was “land belonging to no one” was a legal fiction. Aboriginal and Torres Strait Islander peoples had complex systems of law, land tenure, and custodianship that were ignored by colonisers. Saying “nobody owned the land” erases this truth.

    🔹 On sovereignty: As Michael notes, sovereignty was never ceded. The R v Bonjon case (1841) even questioned whether British courts had jurisdiction over Aboriginal people at all without a treaty. The fact that no treaty was ever signed speaks volumes.

    🔹 On Torres Strait and Papua: Terry is right — annexations happened late, without consent, and highlight that colonial authority was imposed, not agreed.

    🔹 On colonisation itself: The British Crown admitted as early as the 1830s that “the original aggression was our own.” Colonisation was invasion, dispossession, and criminalisation — and its impacts are ongoing.

    Our article is ultimately about those lived impacts. It’s useful to dive into law and history, but we shouldn’t lose sight of the central truth: colonisation has never been a “good thing” for Aboriginal peoples, and truth-telling today means acknowledging that without distortion.