Consent and conquest: the legal foundation of British sovereignty in Australia

For generations, Australians were taught that Britain “settled” an unoccupied land. Many First Nations people reject that description entirely, calling 1788 an invasion. The dispute is not merely semantic. It turns on a legal question that was contested even in the eighteenth and nineteenth centuries: by what right did Britain claim sovereignty over an inhabited continent?

Under the prevailing principles of European customary international law – often described at the time as the “law of nations” – territory could be acquired in only a few recognised ways: conquest, formal cession by treaty, or occupation of land that was genuinely uninhabited (terra nullius – land belonging to no one). Where organised societies already lived upon the land, consent or treaty was the norm.

Australia presents an anomaly. There was no treaty. There was no formal declaration of conquest. Yet sovereignty was asserted.

The roots of that assertion lead back to 1770 and the voyage of James Cook – a mission remembered for exploration and astronomical observation, but guided by instructions whose legal implications are far less commonly examined.

Let’s start there.

Cook’s Instructions and Their Breach

In 1770, under the prevailing principles of European customary international law (often referred to in broader terms as the “law of nations” at the time), acquiring sovereignty over inhabited lands typically required either conquest, formal cession via treaty, or occupation of truly uninhabited territory (terra nullius, meaning “land belonging to no one”). Treaties or consent from local inhabitants were the established norm when lands were already occupied by organised societies.

Cook’s secret instructions from the British Admiralty (opened after his primary astronomical mission) explicitly directed him to take possession of “convenient situations” in any newly discovered lands “with the Consent of the Natives”, or – if the country was found uninhabited – to claim it for the King by marking it as first discoverer and possessor. Additional guidance, such as hints from the Earl of Morton, emphasised that Indigenous peoples were the “natural, and in the strictest sense of the word, the legal possessors” of their regions, and that no European nation had the right to occupy or settle there without their voluntary consent.

Cook charted and claimed the eastern coast of what Europeans called New Holland (now Australia), but he did so without obtaining any consent from the Indigenous peoples he encountered. He observed signs of habitation – people, fires, canoes, and other evidence – yet proceeded to claim the land in the name of King George III on 22 August 1770, without negotiation or agreement.

This action arguably contravened his own instructions and the legal norms of the era regarding inhabited territories. The British later treated the continent as effectively terra nullius – despite clear evidence of long-standing Indigenous occupation and systems of land use – allowing settlement in 1788 without treaties, unlike the approach taken in many other parts of the empire (such as North America or New Zealand).

Indigenous Australians’ insistence that 1788 marked an invasion rather than peaceful settlement therefore rests on solid historical and legal grounds: the failure to secure consent where it was required, and the disregard for the rights of existing inhabitants under the international law standards of the time.

This perspective doesn’t erase the complexity of history, but it does highlight why the word “invasion” resonates so powerfully for many First Nations people today.

Cook’s journals suggest he regarded the inhabitants as occupying a very low rung of human society – a view that likely shaped his decision not to pursue consent.

Cook operated within an intellectual framework that ranked societies according to European measures of “improvement,” agriculture, and property. Within that framework, Aboriginal societies were often perceived as lacking political organisation sufficient to warrant treaty-making.

This attitude was shaped by deeply entrenched European preconceptions of Aboriginal people. Before 1770, the image of the “Aborigine” in European minds – particularly among the English – had already been firmly established as that of a primitive savage. The first Englishman to document encounters with them, William Dampier, described the people he met on the western coast in the late 17th century as “the miserablest people in the world,” portraying them as brutish, lacking in tools, agriculture, or any redeeming features, and scarcely distinguishable from animals.

Cook arrived with these preconceptions reinforced. He showed little surprise or interest in the Indigenous inhabitants he observed; instead, he largely accepted Dampier’s earlier reports. Influenced by Enlightenment ideas, including Rousseau’s concept of the “noble savage” – untouched by civilisation’s corruptions – Cook and his contemporaries held a contradictory yet dehumanising view: Indigenous peoples were either romanticised as pure but inferior or dismissed as irredeemably primitive.

Cook and the naturalist Joseph Banks helped entrench this dismissive view in British accounts of the continent. In his journal and later in his 1779 evidence to a parliamentary committee considering Botany Bay as a penal settlement, Banks portrayed Aboriginal people as lacking agriculture, permanent dwellings, and visible systems of governance. He frequently contrasted their way of life with European notions of “civilisation,” reinforcing Enlightenment hierarchies that ranked societies according to supposed stages of development – with Aboriginal Australians placed at the lowest rung.

Terra Nullius as Legal Fiction

Cook did not obtain consent from the Indigenous inhabitants of the eastern coast. Nevertheless, British authorities later proceeded on the assumption that sovereignty had been validly acquired. Rather than treating the absence of consent as a legal obstacle, imperial policy evolved toward characterising the continent as territory unoccupied in a juridical sense.

This characterisation rested not on an absence of people, but on European assessments of social and political organisation. Because Aboriginal societies did not cultivate land according to European agricultural models, erect permanent stone dwellings, or form recognisable centralised states, they were deemed insufficiently “civilised” to constitute sovereign polities in the European sense. On that basis, occupation was treated as lawful without treaty or conquest.

The reasoning was circular. European legal standards defined sovereignty in European terms; societies that did not mirror those forms were deemed incapable of possessing it. The result was not the discovery of terra nullius, but its construction.

Contemporary observations undermine the premise. Cook recorded signs of habitation along the coast – people, fires, dwellings, fisheries, and active resistance. After clashes at Botany Bay (Kamay), he noted that “all they seem’d to want was us to be gone,” a remark that speaks plainly to Indigenous attachment to territory and opposition to intrusion.

By 1788, this juridical framework allowed British settlement to proceed without treaty, negotiation, or formal declaration of conquest. Aboriginal peoples were not recognised as foreign nations, nor acknowledged as domestic sovereigns. Instead, they were treated as inhabitants of a territory over which the Crown had already assumed radical title.

The doctrine would endure for more than two centuries, until the High Court in Mabo v Queensland (No 2) rejected the fiction that Australia had been land belonging to no one at the time of British acquisition. The Court did not rewrite history, but it did acknowledge that the legal foundation long relied upon was unsustainable.

R v Bonjon and the Question of Jurisdiction

The second key event jumps forward to 1841 and the landmark case R v Bonjon, heard in the Supreme Court of New South Wales (Port Phillip District) before Justice John Walpole Willis on 16 September 1841 in Melbourne.

This trial provides powerful legal and historical ammunition for the argument that Australia was invaded, not peacefully settled. Bonjon (also spelled Bon-jon), a Wathaurong (Wadora) man, was charged with murdering Yammowing (or Yamerween/Yammerwing), a member of the Colijon people, by shooting him with a carbine near Geelong around 14 July 1841.

The proceedings were complex and focused not primarily on guilt or innocence, but on a preliminary question: Did the colonial court even have jurisdiction to try an Aboriginal person for an offence committed against another Aboriginal person (inter se – between themselves)?

Defence counsel Redmond Barry (later Sir Redmond Barry, famous for other colonial roles) mounted a vigorous argument against jurisdiction. He contended that:

• British sovereignty in New South Wales arose through occupation (settlement of supposedly “empty” land), not conquest or cession via treaty.
• Occupation granted the Crown title to the soil, but not automatic sovereignty over Indigenous inhabitants as subjects.
• Without a treaty, compact, or clear demonstration of consent to come under British law, Aboriginal people remained independent, governed by their own laws and customs.
• English law could legitimately punish Aboriginal attacks on British settlers (or vice versa), as that involved protecting colonial interests.
• But for acts inter se, no statute declared Aboriginal people British subjects; no reciprocity existed to bind them to British criminal law.
• Aboriginal societies were self-governing communities with established modes of punishment, including for serious offences like murder.
• Imposing the full weight of English law on them was impossible and unjust; it could not be enforced “by terror” without their assent.

Crown Prosecutor James Croke countered that:

• A “civilised” nation could lawfully occupy territory inhabited by “uncivilised” peoples, provided sufficient land remained for their subsistence.
• Upon such occupation, English common law automatically applied across the territory (including the Port Phillip District).
• All persons within the boundaries owed local allegiance to the Crown and were bound by its laws – even in conflicts among themselves.
• They enjoyed the protection of the law and thus had to obey it.
• Aboriginal people retained no original rights to the territory but only an “easement” (a limited right of use) over the soil.
• Bonjon was therefore as amenable to English law as any British subject.

A pivotal part of Barry’s argument referenced early encounters to challenge the peaceful nature of British arrival. He cited descriptions suggesting Indigenous people had thrown down their spears upon seeing the strangers had “no hostile intention,” implying voluntary submission or acquiescence.

However, this portrayal was likely selective or misleading. Contemporary accounts of Cook’s 1770 landing at Botany Bay (Kamay) show that local Dharawal/Gweagal warriors initially resisted with spears and stones to drive the intruders away. Shots were fired by Cook’s party (wounding at least one man), after which some spears were dropped or abandoned – not as peaceful greeting, but as a response to superior firepower and aggression. The act of laying down weapons in the face of armed force can be interpreted as signalling defeat or forced capitulation, rather than willing consent.

This reframing strengthens the invasion narrative: the British were the initial aggressors from the outset.

The Crown’s Admission of Original Aggression

Even more damning is a statement from the British Government itself, just two years before the Bonjon case (in instructions or dispatches around 1839–1840, often linked to colonial policy on protection of Indigenous peoples):

“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.”

This frank admission from imperial authorities acknowledges that British actions initiated the conflict and dispossession.

Limited ethnographic and historical evidence consistently points to aggressive behaviour by the British from the first contacts – well before 1788’s so-called “settlement.” Indigenous peoples repeatedly signalled they wanted the newcomers gone. Through persistent aggression, resistance, and superior force, the British stayed and expanded.

If consent was required and not obtained, if sovereignty was asserted without treaty, and if even colonial jurists doubted jurisdiction – then the language of “settlement” becomes difficult to sustain.

Justice Willis, while expressing strong doubts about jurisdiction and hinting that Aboriginal people were “distinct, though dependent tribes governed among themselves by their own rude laws and customs,” ultimately reserved final decision. The case did not proceed to full trial on the merits; Bonjon was later dealt with outside formal proceedings (handed to protectors, though he met a tragic end in a payback killing). The doubts raised in Bonjon were soon sidelined in favour of cases like R v Murrell (1836), which affirmed jurisdiction over Aboriginal people under British law.

Yet the Bonjon proceedings stand as a rare colonial-era recognition that Indigenous sovereignty and legal systems existed – and that British claims rested on shaky, unconsented foundations. This reinforces why many First Nations people describe 1788 as the beginning of an invasion: one marked by force, legal fiction, and denial of Indigenous rights from the very first encounters.

Settlement or Invasion?

The historical record does not reveal a continent peacefully ceded, nor a treaty negotiated, nor consent freely given. Cook’s own instructions required it. Colonial jurists later questioned jurisdiction in its absence. Imperial authorities themselves acknowledged that “the original aggression was our own.”

Whether one ultimately prefers the term “invasion” or “settlement,” it is difficult to maintain that British sovereignty was founded upon agreement. The legal and historical foundations of 1788 remain far more contested – and far less settled – than the traditional narrative suggests.

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