The Tradition of Treaty-Making in Australian History

Although it has been commonly thought that in Australia, in contrast to almost all other colonial societies, treaties were spurned and never considered as a serious option in negotiating with indigenous peoples, this chapter shows that, in early colonial Australia, treaties were considered as a serious legal instrument to address the rights of Aboriginal peoples. British authorities had justified their taking of Australia by emphasising the extent of waste lands. Since these waste lands were in need of a taker, the British authorities argued that they could legitimately and legally take them and they consequently based their title on their occupation of the continent. Dispossession amplified British anxieties over the ethics of colonisation. Individuals in Britain and in Australia acknowledged indigenous ownership of the land and they forcefully argued that the rule of law should lead British expansion. Concluding treaties with indigenous peoples was central to the rule of law. These individuals managed to influence public affairs, most notably during the settlement of South Australia where provisions were made to reserve some land for indigenous peoples. Debates held in the 1830s and 1840s about the opportunity to conclude treaties with indigenous peoples did not result in any agreements being formally concluded with Aboriginal peoples. And the only treaty which we know about—the Batman treaty—was a fraudulent document. Although interest in treaties waned by the end of the 1840s, the re-emergence of the idea of treaty in the 1970s shows that the silence which had prevailed earlier did not solve the question of Aboriginal consent to the taking of their land. The treaty debate that has taken place in Australia since then must therefore be placed in the context of a tradition of thinking about treaties that extends back to the early years of the colony of New South Wales