Why Australia has no Aboriginal Treaties - Part 1
Why Didn’t Aboriginal People Negotiate Treaties with Europeans?
Mr Pascoe, in his book Dark Emu has a sub-chapter entitled, ‘Government’ (2018 reprint, p 183-189), where he claims Aboriginal people,
‘did construct a system of pan-continental government’, where, ‘decision-making processes involved in the creation of Aboriginal and Torres Strait Island government…[resembled]“democracy”’, and ‘Elders became the equivalent of senior clergy, judges and politicians’…[who] ‘could influence particular areas of policy’.
If Aboriginal Society had such an apparent sophisticated form of democratic government and Elder leadership, and was a settled farming society, why didn’t the British, either Captain Cook in 1770, or Governor Phillip in 1778 strike a Treaty with the local Aboriginal natives?
The British regularly made treaties with native peoples all over the world, wherever the British colonised or traded, including with the Maori of New Zealand and the North American Indians (see Treaty list below). These Treaties were a natural requirement of International Law at the time.
So why not in New South Wales?
And indeed, why didn’t any other foreign powers, who landed their explorers on the shores of New Holland from the early 1600’s, ever make a treaty with any of the Australian Aboriginal tribes? Some of these explorers had explicit instructions to do so.
For example, Abel Tasman received instructions for his 1642 expedition to the Pacific that read:
Detail from portrait of Abel Tasman by Jacob Gerritsz. Cuyp, c. 1637
Aboriginal Activists lament the lack of Aboriginal Sovereignty, and that a Treaty was not negotiated by their ancestors.
‘All the mainland and islands which [you] shall discover, visit and land on, you must take in possession for the High and Mighty Lords States General as Sovereign…which in uninhabited lands, or which have no lord can be secured by the setting up of a stone as a memorial or planting of our princes flag, for true possession, since such lands rightly belong to the finder and taker.
But in populated lands, or which have undoubtedly lords, the consent of the people or king shall be necessary in the taking of occupation possession, which is to be fittingly achieved by amiable influence with the presenting of a small tree planted in a little earth, the joint setting up of a stone, or the placing of the prince flag in memory of their voluntary submission, or subjection…’ - [our emphasis]
- Kenny, J., Before the First Fleet, Europeans in Australia 1606-1777, Kangaroo Press, 1995, p36.
Modern-day, Aboriginal Political Activist thinking is still along the lines proclaimed by the defunct Aboriginal Treaty ‘88 Movement, which loudly proclaimed that,
“We, the Aboriginal People, restate that we are the Sovereign Owners of Australia. There have been no Treaties with us and we have never ceded our Sovereignty” - AIATSIS Treaty 88 website and quoted from an article in the Journal Australian Historical Studies Volume 23, 1988 - Issue 91 - excerpt here
So, if the original European explorers were instructed to make Treaties and take possession of new lands with the consent of the natives, and Britain expressly did so in many countries, why didn’t the Aborigines rise to the occasion and assert their Sovereignty when they met the Europeans for the first time?
Modern-day Aboriginal Activists claim they had Sovereignty and have never ceded it. So why were they never (Footnote 1) able to negotiate a Treaty with any of the official European explorers that arrived here to take possession?
The reasons were that, at the time of First Contacts (between 1606 and 1788), Aboriginal people understandably had no notion of the International legal concept of Sovereignty. Also their Aboriginal societies did not display any of the characteristics of what the International community then understood to be a, ‘nation with civil sovereignty’. The Aboriginal tribes were not a settled agricultural society that cultivated the soil, nor did they have a recognisable political system with a ‘lord’, or chiefs, with whom one could negotiate a Treaty, nor did they express a desire for, or fight for, a Treaty. It has nothing to with it being their ‘fault’, given that for 50,000 years, or more, they existed quite well without being a ‘nation with civil sovereignty’. It only became a problem for them by the 17th and 18th centuries, by which time the world had moved on and a ‘national civil sovereignty’ was a pre-requisite for a society to be able to maintain its independence in the emerging, modern world.
But don’t just take our word for it. Look at how the Maori of New Zealand were able to sign The Treaty of Waitangi, as New Zealand’s founding document on 6 February 1840. The Treaty, in Māori and English, was made between the British Crown and about 540 Māori rangatira (chiefs).
Why couldn’t the Aboriginal tribes of Australia negotiate such a Treaty with the British Crown?
Maybe it was because Australian Aboriginal society and its leadership was just not advanced enough, which seems be the opinion of the Maori chief, Te Pahi, when he arrived in Sydney in November 1805.
Tippahee a New Zealand chief, engraved by W Archibald from an original drawing by G P Harris, London 1827
Te Pahi, of the Rangihoua on New Zealand’s northern Bay of Islands, was feted by Sydney society and greatly impressed Governor King, who noted that,
‘As I was anxious that no kindness should be wanting to impress him with a full sense of the hospitality I wished to make him sensible of, he with his eldest son…lived with me and eat [sic] at the table, whilst a very good room was allotted for his lodgings and that of his sons…To say that he was nearly civilised falls far short of his character as every action and observation shows an uncommon attention to the rules of decency and propriety in his every action…’
‘Of the natives of this country [that is, the Australian Aborigines] he had the most contemptible opinion, which…he…did not fail to manifest by discovering the utmost abhorrence at their going naked, and their want of ingenuity or inclination to procure food and make themselves comfortable, on which subject Te Pahi on every occasion reproached them severely’.
‘Their battles he treated as the most trifling mode of warfare, and was astonished that when they had their adversary down they did not kill him, which it seems is a custom among the New Zealanders and is carried to the most unrelenting pitch; indeed, no race of men could be treated with more marked contempt than the natives of this country by our visitors, who, it must be confessed, were infinitely their superiors in every respect.’
- Tim Flannery, The Explorers Text Publishing, 1998, p99ff
All the Europeans who arrived in New Holland were looking for trading and colonising opportunities and were quite willing to negoitaiate Treaties with the Aboriginal people. But it takes two sides to make a successful trade, or agreement, and unfortunately for modern Aboriginal Political Activists, their ancestors were wanting in this regard.
It is naive to expect that a nomadic, stone-age, hunter gather society, with no formal, political government, or even easily recognisable chiefs or leaders, would have been able to negotiate any ‘Treaty’ with foreign strangers, let alone a fair one that dealt with the complexities of the International Law of Sovereignty and Possession.
The Kaiadilt As a Proxy for Aboriginal Society at First Contact
To get some idea of what First Contact may have been like between the early explorers and Aboriginal people, we have located photographs and a report on a tribe of coastal island Aborigines, the Kaiadilt from Bentinck Island, which is part of the South Wellesley group in the Gulf of Carpentaria in Queensland.
Although this Aboriginal tribe were one of the most isolated of Australia’s Aboriginal peoples, there are several documented cases where European explorers landed on the islands and endevoured to make contact with the Kaiadilt.
Therefore, they are an excellent proxy for the Aboriginal tribes typically met by the early European explorers to northern Australia between the years of say, 1606 to 1788. European explorers, who wanted to take possession of desirable parts of New Holland for trade and colonial settlement, would have been expected to have signed treaties with Aboriginal people, such as these Kaiadilt. It was up to the Kaiadilt then to express their agency and rise to the challenge to claim their Sovereignty and negotiate Treaties if they so desired.
Only they didn’t, much to the disappointment of modern, Aboriginal Political Activists and, as they say, the rest is history.
Kaidilt men on the edge of the reef; in the background one is holding up a mass of debris under which he would conceal himself, standing up to his neck in the water on the outermost edges of the reef, should danger arise.
Kaidilt people moving from a temporary camp during their first voluntary encounter with a European, at Baltae, in 1927.
A group of timorous Bentinck Islanders as seen by W. Roth in 1901. The central Kaiadilt man is holding a tjilanganda or mariwu (crude biface stone implement) in his hand.
The 1927 interaction with the Kaiadilt.
Members of the Roth Expedition interact with the Kaiadilt in 1901
A deserted Bentinck Island cold season camp showing shell water vessels and break-wind, with pile of yams in foreground, ca 1927, before direct European contact.
The Kaiadilt are an indigenous Australian people of the South Wellesley group in the Gulf of Carpentaria, Queensland, Australia.
They are nomadic, hunter gatherers and fishers based on Bentinck Island, but they also made fishing and hunting forays to the nearby Sweers and Allen Islands. They only used very simple stone tools, of a predominately biface palaeolithic tradition, which did not survive elsewhere on the mainland into modern times.
They apparently were very successful in exploiting their resources to maximum efficancy given that they are recorded as having,
‘the highest population density of all known Australian tribes, at 1.7 persons per square mile’. [Tindale, N., 1974]
So, although they were brilliant and highly successful hunter gatherers and fishermen, who had survived for millennia, their society never developed the skills and material resources required to deal with the European visitors, and their International Law of Sovereignty, on an equal basis.
The internationally accepted concepts of political governance, land ownership, possession and sovereignty were totally alien concepts to them.
They were known to be excessively timid and difficult to approach and there are no records of their ever offering to negotiate a Treaty with foreigners.
If we take the Kaiadilt as representative of Aboriginal tribes in general, then the British had no option but to take possession of New South Wales by way of ‘possession’ and ‘settlement’, rather than by ‘treaty’, as was the International Law at that time.
No Treaty with any of the Aboriginal tribes was possible because no Aboriginal people rose to the occasion to negotiate a Treaty.
These photographs of the Kaiadilt were taken on two visits to Bentinck island - one in 1901 by Dr Walter Roth, Protector of the Queensland Aborigines; the other in 1927 by MR R.H.Wilson a Mission Superintendent.
A more contemporary report on the Kaiadilt appeared in the Melbourne newspaper, the Argus on 27th January 1945. This article only further confirms that the Kaiadilt were in no position to negotiate any Treaty with foreigners who may have landed on their shores.
Location of Bentinck Island, part of the South Wellesley Islands.
Bentinck Island in the Gulf of Carpentaria with the Australian mainland in the background.
Other Visitors to Bentinck island and Their Interaction with the Kaiadilt
1623 - Jan Carstenz
The supposedly earliest observations made in the vicinity of Bentinck Island were by Jan Carstensz, commander of the ship Pera in 1623, who sailed along the Cape York coast of the Gulf of Carpentaria as far south as Staaten River. (Tindale, N. 1962, p261).
He explored the Gulf of Carpentaria from Weipa to Normanton for a month, and wrote,
[The natives] ‘…are utterly unacquainted with gold, silver, tin, iron, lead, and copper, nor do they know anything about nutmegs, cloves and pepper…[and] from all of which together with the rest of our observations it may be safely concluded that they are poor and abject wretches, caring mainly for bits of iron and stings of beads’.
- Kenny, J., Before the First Fleet, Europeans in Australia 1606-1777, Kangaroo Press, 1995, p33.
Aru Islanders
Aru Islands lie between northern New Holland and New Guinea.
Today we might ask ourselves why, shortly after leaving the Gulf of Carpentaria with no Aboriginal Treaties, was Jan Carstensz able to land on the Aru Islands, located between Arnheim land and western New Guinea and strike a Treaty with the Aru Islanders?
Carstensz wrote,
‘[We] anchored opposite the native village of Woodgier on the second of the northernmost islands of the Aroe [Aru] group, where they received a friendly welcome.
The same day concluded with the Aroe chiefs a TREATY under which they accepted Dutch protection. A high column was erected bearing the inscription :
In the year 1623…there came here to Aroe …Commander Jan Carstensz…on behalf of His Excellency the Prince of Orange…; and we have…taken possession of the island for the above mentioned Highnesses. Likewise the Chiefs and People have placed themselves under the protection and rule of the aforesaid Lords and saluted the Princely flag’.
- [our emphasis] (ibid., p36-37)
So, why was Carstensz in 1623 able to conclude a TREATY with the Aroe [Aru] chiefs on islands only a relatively short distance from New Holland, but not with the Aboriginal people in New Holland?
We would suggest the reason was that the Aru Islanders had adopted the,
‘package’ which is known as the Island Southeast Asian Neolithic, and is associated with the appearance of pottery, a fully agricultural economy, and domestic animals such as the pig, the dog and the chicken…’ - Reference here page 12
Contrary to what Mr Pascoe wants us to believe, Australian Aboriginal people had not adopted the ‘package’ but were still ‘stone-age’, nomadic, hunter gatherers. They were brilliantly successful survivalists for tens of thousands of years on this most inhospitable of continents, but they lacked the skills and ‘mental tool-kit’ to be able to deal with the new European arrivals who were wanting to take possession of the land in New Holland by Treaty under the auspices of the International Law at the time.
Unfortunately (or maybe fortunately given the positive life outcomes that the majority of Aboriginal Australians enjoy?) Aboriginal people at that time did not (or could not) rise to the occasion and assert their claim to Sovereignty in a way that was understandable and acceptable to the European arrivals, and met with the requirements of International Law at that time.
So, in the absence of any proposals by the Aborigines, International Law held sway and New Holland was legally claimed on the basis of ‘possession’ and ‘settlement’ and became New South Wales and the rest, as they say, is history.
Matthew Flinders
Bungaree was used as an interpreter on Flinder’s voyage to Bentinck and Horse-shoe Islands, and so presumably could assist in any negotiations with the Kaiadilt.
MATTHEW FLINDER’S MEETING WITH THE KAIADILT - No Attempt by the Kaidilt to Negotiate a Treaty
Describing some islands in the Gulf of Carpentaria on Friday 19th November 1802, Matthew Flinder’s writes;
‘This land proved to be an island of ten or eleven miles long, and I have given it the name of Bentinck, in honour of the Right Hon. LORD WILLIAM BENTINCK; of whose obliging attention, when governor of Madras, I shall hereafter have to speak in praise.
To the north-west of Bentinck's Island, several small isles came in sight… this was named Allen's Isle, after the practical miner of the expedition. In the morning we steered towards Allen's Isle, with the whale boat ahead;… I went on shore with the botanical gentlemen, in order to take bearings, and explore further up the opening.…
I [then] went eastward to a smaller island two miles off, where several Indians were perceived. The water was too shallow for the boat to get near them; but we landed at a little distance, and walked after three men who were dragging six small rafts toward the extreme northern rocks, where three other natives were sitting.
These men not choosing to abandon their rafts, an interview was unavoidable, and they came on shore with their spears to wait our approach. One of us advanced towards them, unarmed; and signs being made to lay down their spears, which were understood to mean that they should sit down, they complied; and by degrees, a friendly intercourse was established.
They accepted some red worsted caps and fillets, as also a hatchet and an adze, the use of which being explained, was immediately comprehended. In return, they gave us two very rude spears, and a womerah, or throwing stick, of nearly the same form as those used by the natives of Port Jackson.
The rafts consisted of several straight branches of mangrove,…but the raft, with his weight alone, must swim very deep; and indeed I should scarcely have supposed it could float a man at all. Upon one of the rafts was a short net, which, from the size of the meshes, was probably intended to catch turtle; upon another was a young shark; and these, with their paddles and spears, seemed to constitute the whole of their earthly riches.
Two of the three men were advanced in years,…After being five minutes with them, the old men proposed to go to our boat; and this being agreed to, we proceeded together, hand in hand. But they stopped half way, and retreating a little, the eldest made a short harangue which concluded with the word jahree! pronounced with emphasis: they then returned to the rafts, and dragged them towards their three companions who were sitting on the furthest rocks. These I judged to be women, and that the proposal of the men to go to our boat was a feint to get us further from them; it did not seem, however, that the women were so much afraid of us, as the men appeared to be on their account; for although we walked back, past the rafts, much nearer than before, they remained very quietly picking oysters. It was not my desire to annoy these poor people; and therefore, leaving them to their own way, we took an opposite direction to examine the island.
[On] Horse-shoe Island…[W]e did not find any huts; but the dried grass spread round two or three neighbouring fire places, marked the last residence of the Indians.Indians were repeatedly seen upon both Bentinck's and Sweers' Islands; but they always avoided us, and sometimes disappeared in a manner which seemed extraordinary. It is probable that they hid themselves in caves dug in the ground; for we discovered in one instance a large hole, containing two apartments (so to call them), in each of which a man might lie down. Fire places under the shade of the trees, with dried grass spread around, were often met with; and these I apprehend to be their fine-weather, and the caves their foul-weather residences.
The fern or some similar root, appears to form a part of their subsistence; for there were some places in the sand and in the dry swamps, where the ground had been so dug up with pointed sticks that it resembled the work of a herd of swine. Whether these people reside constantly upon the islands, or come over at certain seasons from the main, was uncertain; canoes, they seemed to have none, but to make their voyages upon rafts similar to those seen at Horse-shoe Island, and of which some were found on the shore in other places.
I had been taught by the Dutch accounts to expect that the inhabitants of Carpentaria were ferocious, and armed with bows and arrows as well as spears. I found them to be timid; and so desirous to avoid intercourse with strangers, that it was by surprise alone that our sole interview, that at Horse-shoe Island, was brought about; and certainly there was then nothing ferocious in their conduct.
On Sweers' Island, seven human skulls and many bones were found lying together, near three extinguished fires; and a square piece of timber, seven feet long, which was of teak wood, and according to the judgment of the carpenter had been a quarter-deck carling of a ship, was thrown up on the western beach. On Bentinck's Island I saw the stumps of at least twenty trees, which had been felled with an axe, or some sharp instrument of iron; and not far from the same place were scattered the broken remains of an earthen jar. Putting these circumstances together, it seemed probable that some ship from the East Indies had been wrecked here, two or three years back--that part of the crew had been killed by the Indians--and that the others had gone away, perhaps to the main land, upon rafts constructed after the manner of the natives. This could be no more than conjecture; but it seemed to be so supported by the facts, that I felt anxious to trace the route of the unfortunate people, and to relieve them from the distress and danger to which they must be exposed. - A Voyage to Terra Australis Vol 2 by Matthew Flinders
Presumably the Kaiadilt and their hunter gatherer society was not that different to the other Aboriginal tribes along New Holland’s coastlines. Flinder’s description of his interaction with the Kaiadilt illustrates the inherent difficulty with the lack of agency shown by the Aboriginal people in asserting any form of Sovereignty over their land, or a willingness, or otherwise, of negotiating a Treaty.
And it was not just the British who observed this inability of the Aboriginal people to negotiate within the framework of International Law at the time. The Dutch and French also operated under the principle that European powers could take possession and gain Sovereignty of a land either by, conquest (war) ceding (treaty with locals inhabitants) or possession if the local inhabitants were unable to negotiate a treaty and/or there was no exist ‘civil Sovereignty’.
All the European explorers who landed on the Australian continent and proclaimed ‘possession’ did so on the basis that they were not approached by any Aboriginal chiefs, lords or people with whom to negotiate a Treaty. The land was uncultivated and inhabited by nomadic people who did not live in settled villages and towns and no Sovereign, either local, or European, was present. Any natives that were encountered appeared as nomadic hunter gatherers, who used a stone-age tool-kit, and lived on whatever nature provided.
Numerous records to this effect are found, such as :
1606 - Jan Janz, ‘the discover of Australia in 1606’ was quoted in the instructions to Abel Tasman in 1644,
‘It being ascertained that vast regions [of New Holland] were for the greater part uncultivated, and certain parts inhabited by savage, cruel, black barbarians who slew some of our sailors…’ (Kenny, J., Before the First Fleet, Europeans in Australia 1606-1777, Kangaroo Press, 1995, p32)
1642 - Abel Tasman landed at Tasman Bay in Van Diemens Land and took possession of the land. No Tasmanian Aborigines came forth to negotiate a Treaty or assert their Sovereignty.
Brad M. Potts and James B. Reid, TASMANIA’S EUCALYPTS: THEIR PLACE IN SCIENCE, Papers and Proceedings of the Royal Society of Tasmania, Volume 137, 2003
Brad M. Potts and James B. Reid, TASMANIA’S EUCALYPTS: THEIR PLACE IN SCIENCE, Papers and Proceedings of the Royal Society of Tasmania, Volume 137, 2003
‘All the mainland and islands which [you] shall discover, visit and land on, you must take in possession for the High and Mighty Lords States General as Sovereign…which in uninhabited lands, or which have no lord can be secured by the setting up of a stone as a memorial or planting of our princes flag, for true possession, since such lands rightly belong to the finder and taker.
But in populated lands, or which have undoubtedly lords, the consent of the people or king shall be necessary in the taking of occupation possession, which is to be fittingly achieved by amiable influence with the presenting of a small tree planted in a little earth, the joint setting up of a stone, or the placing of the prince flag in memory of their voluntary submission, or subjection…’ - [our emphasis]
- Instructions to Abel Tasman for his 1642 expedition to the Pacific - Kenny, J., Before the First Fleet, Europeans in Australia 1606-1777, Kangaroo Press, 1995, p36.
Kenny, J., Before the First Fleet, Europeans in Australia 1606-1777, Kangaroo Press, 1995, p37.
British Treaties with Native Peoples
The British negotiated many Treaties with native peoples around the world because those native peoples were settled, agricultural societies with some form of recognisable, political civil sovereignty containing lords or chiefs. In addition, those native societies willing entered into Treaties, with or without any previous conflict. For an abridged list of British (and British derived eg: USA ) Treaties see here
In Part 2 of ‘Why Didn’t Aboriginal People Negotiate Treaties with Europeans?’ we will look at other reasons based on some of the work of Peter Sutton from the University of Adelaide who has written,
‘For most Aboriginal people of a classical cast of thought there was no publically ordained conception of territory as something that could be annexed, by force or without force. It was a sacred endowment and not a secular achievement. Country was, by and large, inalienable Mere occuptaton by others could not, in their eyes, lead to their own dispossession’
- Peter Sutton, Stories about feeling, Dutch-Australian contact in Cape York Peninsula, 1606-1756, in Strangers on the Shore, P. Veth, et al Ed. National Musuem of Australia Publication, 2008, p54.
Footnote 1 - Batman’s Treaty
Batman's treaty with the aborigines at Merri Creek, 6th June 1835, John Wesley Burtt, picture collection, State Library of Victoria, Accession Number H92.196
The 'Batman Land Deed', between John Batman and Aboriginal 'chiefs' of the Kulin Nation, Port Phillip area, 1835, Museum Australia, Accession Number MS6832
John Batman’s Treaty in 1835 with the Wurundjeri near present day Melbourne, was allegedly one of the few attempts to negotiate a Treaty between the settlers and an Aboriginal tribe. Ultimately the Treaty was not accepted as being legal by the Crown and,if modern-day members of the Kulin/Wurundjeri are to be believed, by them also. See here and here
References
Tindale, N.,- 1962 : Geographical Knowledge and some Population Changes of the Kaiadilt People of Bentinck Island, Queensland, Records of the South Australian Museum, VOL. XIV No 2. July 27th 1962
