Criminalising First Nations People. How is this criminal?

In trying to see matters of property through Indigenous eyes, Edward Curr, an early settler in Tasmania wrote:

“ … it is probable they see no difference between our taking their Kangaroos and taking our flour and sugar. What ideas can such men have of property? And how are they to understand the distinction between an imperfect property as their Kangaroos, and a proper one as our flour etc?… To steal what is of use to them may be consistent with their notions of amity…” (Colonialism: A moral reckoning, Nigel Biggar, 2024 P.141).

That thought was particularly poignant when considering a recent trip to the holiday island of Rottnest, off the coast from Fremantle.

Permanent British settlement of Western Australia was from 2 July 1829, and as soon as 1838 the need for a prison for Aboriginals was recognised and the ideal place for them was at Rottnest. Sixteen kilometres off the coast, far enough to discourage a swim to freedom, yet some did manage to escape. The island operated as a prison until 1931.

One of the most common offences was stealing sheep.

A story was told of an Aboriginal man who was sentenced to two years imprisonment on Rottnest Island for killing a sheep. What the record does not describe is why he killed the sheep, but that record apparently does exist in the oral history of his people, and it was retold while we visited the island. The man was hunting a kangaroo and was about to spear it when a shot rang out and the kangaroo was taken by a pastoralist who had recently settled on the land. Since the prisoner was hunting for food for his people but was denied the right to hunt the kangaroo, he killed a sheep and took it to his camp where he was arrested and charged with the crime of killing the sheep.

The kangaroo belonged to no one, was a wild animal, while the sheep was the property of the pastoralist.

Settlement of The Swan River Colony in 1829 was a commercial venture. A few years earlier in March and into April 1827, Captain James Stirling had travelled up the river from the mouth to the Swan Valley, mapped the area and returned to England to sell plots of land in the newly named colony. The motivations were several; firstly, the landed gentry of England were finding that there were too many children surviving to carve up estates in England and so the opportunity to invest in a new colony, a free colony, half a world away was somehow enticing. Secondly, there were rumours that the French were about to establish a penal colony, possibly at Shark Bay, about 1,000km north of Perth.

The Noongar people of the Swan River region in Western Australia were nomadic people and in March they would have been on their track away from the coast to the escarpment now known as the Darling Range, to spend winter behind the hills in the forest, away from the severity of the winter storms. It was unlikely that Captain Stirling encountered any Indigenous people on his exploration of the river and its surrounds.

The first settlers from England arrived from April 1829 and claimed the lands they had been granted in the agreements they had entered into, and commenced ‘farming’, establishing rudimentary houses and preparing land for agriculture and grazing.

Imagine the surprise when the Noongar people began their spring migration for their summer gatherings. Confronted by the new settlers who had taken their lands without any treaty or agreement, increasing tensions as traditional rights were denied as land was being taken for farming, leading to numerous attacks on settlers, including the attack in 1834 when Private George Budge was ambushed and speared to death near what today is the town of Pinjarra.

A group of twenty-five soldiers armed with muskets and bayonets ambushed the Binjareb Noongar people who were armed with spears. In the battle, one soldier was killed and an estimated 15 to 30 Binjareb men, women and children died. Additionally, an unknown number of bodies were washed downstream.

Exploration to the east, north and south saw land open to agriculture and grazing, and very quickly the issue of stolen and killed sheep and cattle became numerous with many imprisoned for stealing the livestock, and at least four battles, or massacres, the last in 1926. Further disputations occurred, but more in the form of strikes and demands for fair treatment of station workers.

Little consideration was given to where the prisoners came from as they were taken to Rottnest Island, whether it was far in the northern tropics or from the cold south. Prisoners from the Kimberley or Pilbara were not used to the cold, especially the bitter storms of winter, and many died as a result. Nor was consideration given to the different First Nations these men represented, or their cultural values. The intent was to ‘westernise’ them, make them useful contributors to the new order.

It is not known how many Aboriginal people were killed, but the number imprisoned was substantial. The book ‘Far from Home: Aboriginal prisoners of Rottnest Island 1838-1931’ by Neville Green and Susan Aguiar, identifies more than 3,600 Aboriginal prisoners who served time on Rottnest and more than 370 who died there. The figures are ‘guestimates’ since records were at times neglected and burials were in unmarked graves.

Things haven’t changed a lot, yet there have been and there are ongoing attempts to redress the power imbalance, the criminalisation and dispossession of the First Nations people, yet there is an undercurrent of divisiveness, including again from the would be prime minister saying he will not stand near the Aboriginal flag, who question the use of ‘welcome to country’ ceremonies, even an acknowledgement of country. And it is not just the ‘neo-Nazis’ who kick up, too often I hear that it is a bit ‘overdone’, ‘they should get over it’.

Imprisonment rates of First Nations people are disproportionately high and climbing. Domestic violence is too often seen as an Indigenous problem, anti social behaviour, especially from young people is seen again as Aboriginal kids running rampant.

The marginalisation of Australia’s First Nations people is not unique. Throughout the post Colonial, post Imperial world, Indigenous people are marginalised, treated as less than the colonisers, even today, so many generations later.

Much of this has to do with culture erasure, an unwillingness to give any credence to beliefs, whether spiritual or social, the ‘natives’ had. Their tie to the land, no, stronger than that, their being part of the land, having come from it, being sustained by it and returning to it, and even more, being spiritually bound to the land. That culture with Australia’s First Nations people was so entwined, so strong that the sacredness of the land of each nation was intrinsic in the laws that governed inter-tribal, inter-nation relationships.

Freddie Dowling describes it well in ‘No More The Valley Rings With Koorie Laughter’ published by the Wangaratta Historical Society in 2009:

“However, one of the things I was taught was that neighbouring clans never fought fought over land, because their spirits belonged to their own traditional area, and always returned there after death. (I know this to be true.)

“Every person has three spirits: one is their totemic spirit which returns as whatever animal the person’s totem is; another is their tribal spirit which returns as a human ‘spirit form’ to travel throughout their ‘country’; and the other is their burial spirit which remains at the burial site.

This knowledge was the strength of all life within the culture of the people, and it was the basis of their traditions and daily lives, living one with their environment, with respect for each other and all things.” (Page 74)

In Robert Macklin’s ‘Castaway: The extraordinary survival story of Narcisse Pelletier, a young French cabin boy shipwrecked on Cape York in 1858’ there are repeated references to tribal law including that of passing from one clan’s or tribe’s land onto another. The protocols outlined includes lighting a fire so the smoke attracts attention and then negotiating the continuing passage. The punishment for not following that law was a spear to the leg. Other laws and infringements of the castaways are mentioned, including having sex with a promised woman, killing a mature crocodile as opposed to a young one. The punishments were severe, with marks on the body to prove the punishment had been meted and that tribal law was satisfied.

Similar cultures were in each of the states settled, but to try and understand, even to recognise prior ownership was not part of the coloniser’s creed. The sense of entitlement that the land was not being inhabited and farmed in the way Europeans did was seen as there being no ownership, and so the land was available, private property, even established through theft or coercion trumped any sense of cultural ownership. Any attempt at protecting their lands was met with gunfire, poisoned water holes, smallpox infested blankets and arsenic laced flour. And if that didn’t work, massacres.

The lasting legacy is that many First Nations people are detached from their culture, but are not part of the coloniser’s culture, living between cultures, so lacking an understanding of who they are, where they belong. And their pain continues as the truth telling programme commenced under the previous state government in Queensland is stopped, when pressure is put on teaching history that denies the violence of occupation, that the ‘woke’ agenda is eliminated, where the colonisation of this land is seen as a taking of an empty land, terra nullius, a land deemed to be unoccupied, uninhabited, when occupation and habitation were considered only from a European point of view, that of established farms, permanent homes, domesticated animals.

In his book, ‘Colonialism’, sub titled ‘A Moral Reckoning’, Nigel Bigger goes to great lengths to defend British colonialism, especially in its efforts to encourage missionaries and the way children were considered, and taken from unworthy parents to be properly raised, to train and educate Indigenous populations to be productive members of a capitalist economy, to be more like the British… OK, I have put my own spin on that, but at times he seems to defend the indefensible.

One matter he does not cover is that according to Captain Cook the Great South Land was apparently uninhabited, at least where he raised the flag and proclaimed the land to be for the king… on Possession Island, was an uninhabited rock in the Torres Strait. That it was uninhabited was important, because he otherwise would have needed to negotiate with the inhabitants according to international law at the time. People, he admits, were there, at least on the mainland, since he records a number of contacts in his journals. But Possession Island….uninhabited!

The ongoing marginalisation of First Nations people was highlighted with the Anzac Day disruptions to ‘Welcome to Country’ ceremonies, the refusal to stand before the Aboriginal flag, blatant criminalisation with an incarceration rate which is the highest in the world for any First Nations people.

From the first contact as recorded by Captain Cook, the interaction between First Nations people and either explorers or settlers, there has been a looking down at them as, is being ‘sub human’.

Too cruel a term?

To not even try to understand who they were as a people, as various nations, as people with laws and conventions which were, no, not even ignored, since that would acknowledge and understanding that such protocols existed, but just to take the land and expect that it was OK.

The erasure of culture and the expectation that to ‘convert’ them to a ‘Christian’ culture, a superior(?) culture depriving them of their self-definitions has left them in a no-man’s land, between cultures, one disregarded by the colonisers and the other a hypocrisy, bringing a set of laws which include ‘You shall not steal’ and ‘You shall not kill’, yet claiming the land in the name of a far of king and killing those who stood in the way, stealing the traditional foods such as kangaroos and other wildlife, but charging those who took a sheep to replace the stolen kangaroo with theft and imprisoning them in a far of prison to be taught how to become a good subject, a good servant to the colonial overlords.

Not much has changed, has it?

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