A Sad Day for Australian History : Professor Henry Reynolds - Nominee for The Bruce Pascoe, Best Selective Quoting Award for Distorting History.

In his recently published book, Truth-Telling - History Sovereignty and the Uluru Statement professional historian, Henry Reynolds, provides such a masterly example, in our opinion, of ‘selective quoting’ that we have nominated him for this year’s, The Bruce Pascoe, Best Selective Quoting Award for Distorting History.

Professor Reynolds is nominated for his following contribution to the re-writing of our country’s history.

2021 book by Henry Reynolds

In Chapter 5 (AUSTRALIA AND THE LAW OF NATIONS), of his book Truth-Telling, Professor Reynolds tells us that,

‘In the Uluru Statement the Aboriginal delegates declared that the 'Aboriginal and Torres Strait Islander tribes were the first sovereign nations of the Australian continent' and they ‘possessed it under our own laws and customs'.

More to the point it had 'never been ceded or extinguished and co-exists with the sovereignty of the Crown'.

It was perhaps the most important and potentially contentious aspect of the Statement from the Heart. But can this be true? Or perhaps more to the point is there any support for it in either international or domestic law?

This is not a simple question and there are no easy answers. International law provides more support for the statement than do contemporary interpretations in Australian law. We should begin with MF Lindley's classic 1926 study, The Acquisition and Government of Backward Territory in International Law.

When addressing the question of whether Indigenous people such as the Aboriginal Australians could be considered to have exercised sovereignty 'under the law of nations’, Lindley explained that answers varied widely and changed over time. But the many commentators could be grouped into three, more or less, definite schools. They were:

1 - ‘Those who regard backward races as possessing a title to the sovereignty over the territory they inhabit which is good as against more highly civilized peoples’.

2 - ‘Those who admit such a title in the natives, but only with restrictions or under conditions’.

3 - ‘Those who do not consider that the natives possess rights of such a nature as to be a bar to the assumption of sovereignty over them by more highly civilized people.'

Lindley judged that the collective weight of opinion favoured his first group, writing that,

‘Comparing these three schools of thought, we see that, extending over some three and a half centuries, there has been a persistent preponderance of juristic opinion in favour of the proposition that lands in the possession of any backward peoples who are politically organized ought not be regarded as if they belonged to no one. (Lindley - p 11, 20)- [our emphasis].

There is clearly more support in international law for the Uluru Statement than many Australians likely imagine. The nation's jurisprudence has been dominated by Lindley's third school of thought and overwhelmed by the doctrine of terra nullius. But if we return to the writing of international jurists over 'three and a half centuries', it will be necessary to consider how sovereignty was conceptualised, how it related to the control of territory, and what cultural, social and political characteristics were required for it to be recognised and respected. (ibid., p 89-90). [our emphasis].

So, Reynolds tells his Australian readers that MF Lindley writing in 1926, acknowledges that for ‘over some three and half centuries’ the majority of legal thought was that the ‘lands in possession’ of even ‘backward peoples’ ought not to be regarded as ‘if they belonged to no one’. That is, in the case of Australia’s ‘backward’ Aboriginal peoples, it is fair to say that International Law did not support Australia as being, what Reynolds would call, terra nullius, but instead, Australia was in fact in the legal possession of Aboriginal peoples when the British arrived.

But is this what MF Lindley really wrote? Is the eminent historian, Professor Henry Reynolds, really being true and quoting Lindley accurately?

We at Dark Emu Exposed say no and, in our opinion, we think Henry is guilty of a serious breach of historical accuracy. We find that Henry has very selectively quoted Lindley so as to ‘slant the narrative’ to support the history-revisionist idea that International Law supports Reynolds when he claims that Aboriginal people were in possession of Australia as ‘sovereign’ owners, and that the British illegally ‘stole’ the land without a proper Treaty being agreed upon.

Dark Emu Exposed’s copy of MF Lindley’s ‘classic’ book (mis)-quoted by Henry Reynolds.

Our research shows that Lindley did not say this at all with reference to Britain’s ‘settlement’ or ‘occupation’ of Australia.

High up on one of the shelves of the Dark Emu Exposed library we found a copy of what Henry Reynolds says is, ‘MF Lindley's classic 1926 study’, The Acquisition and Government of Backward Territory in International Law.

So, let’s check Henry’s accuracy in quoting Lindley.

Henry Reynolds published the following part paragraph, selectively quoted from Lindley, but which we now have continued fully in italics, as Lindley actually wrote it. We have also added some bold text as our emphasis.

Reynolds tells us,

‘Comparing these three schools of thought, we see that, extending over some three and a half centuries, there has been a persistent preponderance of juristic opinion in favour of the proposition that lands in the possession of any backward peoples who are politically organized ought not be regarded as if they belonged to no one. But that, and especially in comparatively modern times, a different doctrine has been contended for and has numbered among its exponents some well-known authorities; a doctrine which denies that International Law recognises any rights in primitive peoples to the territory they inhabit, and in its most advanced form, demands that such peoples shall have progressed so far in civilization as to have become recognised as members of the Family of Nations before they can be allowed such rights.

- see the full paragraph on page 20 of Lindley’s book here - [our emphasis].

This final part of the paragraph, which Reynolds completely omits, totally negates Reynolds’ argument.

It says that, despite three and a half centuries of thought supporting Reynolds’ argument that, ‘lands in the possession of any backward peoples…ought not to be regarded as if they belonged to no-one’ [an apparent refuting of the terra nullius argument for Britain’s claim on Australia], a ‘modern’ doctrine supported by ‘some well-known authorities’ is in competition with this view. This more modern view says that, ‘primitive peoples’ are denied any rights to the territory they inhabit if they are insufficiently advanced in terms of civilization, so as to be recognised as members of the Family of Nations. [that is, totally in support of the terra nullius argument for Britain’s claim on Australia].

In other words, Lindley is saying that, the modern accepted view in International Law is that the idea of terra nullius held when considering the land rights for primitive societies like the Australian Aboriginal.

Lindley then further spells this out in detail, and with no ambiguity whatsoever, a few pages later, which Henry Reynolds completely (and conveniently?) fails to mention to his Australian readers.

When speaking of the settlement of Australia (and New Zealand) Lindley writes,

‘Great Britain in Oceania : ‘Turning now to another part of the world, we will inquire how far the definition of territorium nullius…accords with practice in Oceania.

Australia : Australia has usually been considered to have been properly territorium nullius upon its aquisition. Thus in the case of Cooper v. Stuart, an appeal from the Supreme Court of New South Wales which came before the Privy Council in 1889, Lord Watson, delivering the judgment of the Court, said :

There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.

To the same effect, the Select Committee of the House of Commons on 'Aborigines' reported in 1837 that the British Settlements in what was then called New Holland were 'brought, into contact with Aboriginal tribes, forming probably the least-instructed portion of the human race in all the arts of social life. Such, indeed, is the barbarous state of these people, the Report continued, 'and so entirely destitute are they even of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded’.

As the facts presented themselves at the time, there appeared to be no political society to be dealt with; and in such conditions whatever 'rudiments of a regular government' subsequent research may have revealed among the Australian tribes, Occupation was the appropriate method of acquisition.

[Lindley continues and comments on the case of New Zealand, which we include here for the reader’s interest to show the contrast in Britain’s attitude to Maori sovereignty, which was accepted, based on the Maori having a recognisable civil polity.]

New Zealand : In annexing New Zealand, the British Government gave full effect to the sovereignty of the native chiefs and tribes. Their attitude was clearly set out in a dispatch which was written by the Secretary for War and Colonies in August 1839, shortly before the annexation. ‘

‘I have already stated’, runs the dispatch,‘that we acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate, in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims, for herself and for her subjects, every pretension to seize on the islands of New Zealand, or to govern them as part of the dominions of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained.

In consonance with these principles, the rights of the British Crown were acquired by Cession, the treaty by which the North Island was ceded being made with the Maori Chiefs at Waitangi…

- see the full paragraph on pages 40 & 41 of Lindley’s book here [our emphasis]

Professional Historian Professor Henry Reynolds

Conclusion

As just average Australians who love to read about our Australian history, we are deeply disappointed in Henry Reynolds’ mis-leading and selective quoting in his book ‘Truth-Telling’ [sic].

Professor Reynolds holds up ML Lindley as a credible and important source with regard to the International legal aspects of Australia’s sovereignty, the basis of our legal and moral existence.

Reynolds in his book tells us that ,

‘The leading 20th-century authority on the subject [‘possession by ‘discovery], MF Lindley, observed in his authoritative study, The Acquisition and Government of Backward Territory in International Law… (ibid., p17);

‘The consensus arrived at was summarised by MF Lindley in the most relevant 20th-century text.’ (ibid., p82-83); and

‘Lindley explained that…(ibid., p84-85); [our emphasis]

So clearly, Henry Reynolds believes MF Lindley is an authority who we ordinary Australians should respect and whose views we should accept with regard to Australia’s sovereignty.

Hence, it is very, very disappointing for us average Australians to come to the realization that perhaps Professor Henry Reynolds, a professional historian of immense stature in Australia, may be misleading us about what ML Lindley really wrote about the genesis of our sovereignty, which goes to the fundamental and moral right of our existence as Australia.

It is therefore, with a great deal of sadness, that we have to accept Professor Henry Reynolds as a nominee for this year’s, The Bruce Pascoe, Best Selective Quoting Award for Distorting History.

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