FOREWORD TO SHAUN BERG’S LETTERS PATENT

International legal scholars talk of “Grotian moments” in history, referring to times that give birth to a value or a proclaimed principle which is quickly discarded, but in due course re-emerges, freighted with acceptable meaning for a later generation. Similarly, there are events that resonate in a nation’s history – actions, deals or documents – that mean more today than they did at the time, precisely because they express values we have learnt, the hard way, to cherish. Exactly what “meaning” they should be accorded in law may be a matter of debate: Magna Carta’s promise of justice is now entrenched, (although it had no effect at all for 400 years, until it was taken up in Coke’s Declaration of Right). Other prescient or inspirational utterances remain merely aspirational, viewed by courts as historical curiosities from a past that is passed.

Grotian moments are few and far between in the Australian colonial period: amongst them I would number Arthur Philip’s first law against slavery (for a country that at the time only he thought would ever amount to more than an open prison); Governor Macquarie’s refusal to discriminate against emancipists; the shearer’s strike of 1891 (which led to the formation of the ALP and inspired both “Waltzing Matilda” and Henry Lawson’s warning against blood on the wattle). This book is important because it argues into contemporary significance an obscure proclamation by the King of England in 1836, that placed an all-important condition upon the settlement of South Australia:

PROVIDED ALWAYS that nothing in these Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Land therein now actually occupied or enjoyed by such Natives.”

For any contemporary reader, and indeed for the King and the Colonial Office in 1836, this meant what it plainly says: that the South Australian Company and all who settled there, must acknowledge and respect indigenous land rights. Modern judges, however, faced with the possible consequences of that plain meaning, have contrived to interpret the Proviso as “not intended to be more than the affirmation of a principle of benevolence inserted in the Letters Patent in order to bestow upon it a suitably dignified status”.1 The essays in this book demonstrate that this construction cannot stand: the Proviso in fact embodies the position of a government imbued with a muscular humanitarianism that had stopped the trade in slaves and was now determined to end the degradation and destruction of aborigines in British colonies. It is a resolve which should not be brushed aside as the hypocritical window dressing of perfidious Albion – notwithstanding the failure to enforce its terms by curbing the greed of settlers and investors who ignored its injunction against extirpating the tribes in actual occupation and enjoyment of the land of South Australia. So what meaning can the proviso have now, for the “descendants” (to which it specifically refers), of tribes who were dispossessed by a joint stock company?

The architects of the British empire in this period had an overweening sense that God was an Englishman, but that imbued them with a civilising mission and a belief that natives, however primitive, were nonetheless fellow humans, entitled to education, healthcare, religious instruction, and the right to keep their land or be compensated for its loss. The proclamation was influenced by despair at the treatment of indigenous inhabitants in Australia: the Select Committee on Aborigines (British settlements), which reported in 1836, was appalled by the massacres in Van Diemen’s land, which had left not a single aboriginal alive on the mainland. It endorsed the conclusion of Sir Gilbert Murray that “the adoption of any line of conduct, having as its avowed or secret object the extinction of the native race, could not fail but to leave an indelible stain upon the British government”. 2 The “Indelible stain” (which was, a century later, to be described as “genocide”) shocked this committee of MPs to its moral core. The evidence of John Dunmore Lang told them all too truly of the treatment of the natives in Australia thus far:

“Their hunting grounds have been seized by Europeans and the kangaroos have accordingly disappeared from their wonted fields and the opossums from the fallen trees of their ancient forests. But what compensation have they received for their loss of all things that are held valuable by savage man? What equivalent has been afforded them in exchange for their fields and their forests? Why, the very worst features of English civilisation have re-appeared in their territory. They have been transformed into a race of paupers and taught to beg their bread where they formerly earned it. Their native habits of temperance have been succeeded by scenes of beastly intoxication. Their tongues have been taught to frame horrid imprecations in a language which they imperfectly understand. Their bodies have been wasted by strange and incurable diseases. Their impatience of injuries has been tried with the most wanton and brutal aggressions, and in moments of frenzy they have sometimes been stimulated to deeds of indiscriminate and murderous revenge”.3

The Select Committee was determined to uphold what they repeatedly described as “the rights of the natives,” and were in no doubt that these included rights to land. “The land has been taken from them without the assertion of any other title than that of superior force” and it followed that the state had a duty to establish official “Protectors of Aborigines” who should ensure legal aid for them and look after their welfare: “especially they should claim for the maintenance of the aborigines such lands as may be necessary for their support”. The Select Committee had been exercised by the profiteering already rampant over the sale of South Australia:

“Although it be true that the land in our colonies has derived the greater part of its exchangeable value from the capital and the labour employed in the cultivation of it, yet, even in its most rude and wild state, that land is demonstrably worth a very large amount of money. Thus parliament has fixed a minimum price of 12 shillings per acre for the lands of South Australia, at which rate they appear to have been sold in London for the amount of some hundred thousand pounds sterling, before a single European had landed on the spot; yet for this important acquisition the ancient occupiers of the soil have not received so much as a nominal equivalent… It requires no argument to show that we thus owe to the natives a debt, which will be but imperfectly paid by charging the Land Revenue of each of these Provinces with whatever expenditure is necessary for the instruction of the adults, the education of their youth, and the protection of them all”.4

It did not work out this way, of course. The Colonisation Commissioners for South Australia initially planned to provide for aborigines to make “voluntary transfers” of some lands (in return for welfare subsidies) and to remain in “undisturbed enjoyment” of country they declined to cede to the settlers. But no deals were ever done and no treaties or bargains were ever made. Neither governor Hindmarsh nor resident Commissioner Fisher nor Surveyor General William Light ever bothered with tribal transactions. Under pressure from greedy investors, the land was simply stolen: the Proviso to the Letters Patent was ignored. In Adelaide, land initially bought for 12 shillings an acre sold for £2,000 and after 3 years, 300,000 acres had been sold to support fifteen thousand white settlers brought over by the South Australian Company. Not a penny was paid to the aborigines, many of whom died or were reduced to beggary within five years. The King, followed by Queen Victoria, gave no thought to these dispossessed subjects, and Parliament failed to monitor the company of whose initial land sales its Select Committee had been so critical. The preamble to the South Australian Act had declared that the area “consists of waste and unoccupied lands which are supposed to be fit for the purpose of colonisation” and it was readily assumed that this “covered the field” and included land which was occupied by aborigines. Colonel Torrents, with breathtaking ignorance (masking, perhaps, a racist determination that native rights should not stand in the way of profit) declared his belief that aborigines had no such land.

In due course, all the land that could be claimed and sold by the corporation or the crown was designated as “waste” and the protectors of aborigines did not protect aborigines in the way the Select Committee proposed they should, and indeed barely protected them at all. The complex social and cultural relationship between tribes and the lands they had accounted theirs, centuries before the birth of Christ or the fall of Troy, was regarded as irrelevant: the common law position was, at least so far as the colonists were concerned, that “indigenous people as barbarians had no rights”. There is no need to rely on the decision a century and a half later in Mabo to refute this proposition: the Letters Patent show their rights were recognised by the King and the government of the time. The founders of the State of South Australia behave unlawfully in disregarding them. So what can happen now?

To that question most of the essays in this book are directed. Lawyers might argue that the mistaken characterisation of the Proviso to the Letter Patent provides a basis for reconsidering the assumptions of land law, at least in South Australia, or for exacting belated compensation, although Shaun Brennan wisely warns of the dangers of litigation. Others see the proviso as a “missing link” that, having been found, necessitates a treaty, or a new constitutional preamble or specific clauses in a Bill of Rights. At the very least as Lee Godden concludes,

“… if the humanitarian impulse that prompted the inclusion of the Proviso to the Letters Patent is to have any meaning today, it needs to be reconfigured as an important gesture of reconciliation and respect for indigenous peoples’ rights to occupy land and waters and for a more inclusive voice in the Australian nation that acknowledges indigenous sovereignty as a regenerative force. Australian governments might do well to consider the Proviso to the Letters Patent a little more carefully.”

Restorative justice requires some atonement to indigenous Australians. Megan Davis suggests that an Indigenous Bill of Rights, modelled on the UN declaration of the rights of indigenous peoples, should be adopted. This would be one means of addressing what Mick Dodson describes as the “fundamental disrespect” for aborigines in the Constitution and in subsequent legal and political development. But there is a fundamental disrespect among politicians, newspaper editors and conventional thinkers towards any form of protection of legal rights, and it may be better to join the demand for a statutory charter – in the state as well as in the nation – which would show appropriate respect for aboriginal claims and aspirations. There are many suitable models: my own draft Statute of Liberty proposes a preamble by which the Australian people declare that they are:

Humble in acknowledging the first owners and occupiers of this unique continent whose ancestors have walked about on its earth for many thousands of years before British settlement;

sorrowful for the dispossession, discrimination and degradation they have endured and

resolved hereafter to respect their relationship with the land and to atone for past wrongs by future equity;

A special right for indigenous people might read as follows:

Indigenous people have distinct cultural rights and must not be denied the right, with other members of their community:

i) to enjoy their identity and culture;

ii) to maintain and use their language;

iii) to maintain their kinship ties;

iv) to maintain spiritual and material relationships with the land and waters according to their customs of old.5

In 1901 the founding fathers of the commonwealth excluded aborigines from counting in their own country. They were left to the mercy of the states. In 1967 the Australian people voted overwhelmingly to make them part of their own nation, but all that was legally achieved by this referendum was that they were counted in the census and the federal government was given the power to make special laws for them, which would not necessarily be for their benefit. Indigenous rights are given dominance in my preamble and the above mentioned rights could serve as the basis for a treaty. But my own view is that dignity will only be vouchsafed to our half a million aborigines if they are given the right to vote for their own parliamentary representatives – two extra senators, perhaps, who might even come to hold the balance of power. It would be infinitely preferable to have that balance held by men and women of the character and integrity of Noel Pierson, Larissa Behrendt, Marcia Langton or Mick Dodson, rather than by the unimpressive senators who have ended up holding it in recent Australian history – the likes of Brian Harradine or Steve Fielding or the Australian democrats. The advanced nations that have most successfully included their indigenous people – New Zealand and Mauritius, for example – allow them to vote their own representatives into the parliament. It works, but sadly such constitutional change is outside the imagination of most Australian politicians.

Putting these promises in a contempory statute that has legal force, to the extent of requiring all other laws to be interpreted consistently with it, would be a belated beginning in delivering on the promise of the Proviso. Law is not (as the aphorism goes) the prisoner of history, other than in the sense that history can liberate law from the chains of statutory jargon and misapplied precedent and infuse it with a meaning that permits justice to be done, according to hard won values that are imputed or implied. The Proviso reflects a “Grotian moment” in which Australians should take pride: a determination by the political founders of a free state (and Australia was the only state free of convicts) that settlement should from the outset provide fair and equal treatment to all indigenous peoples and to their descendants. The essays in this book rightly demand that governments and courts should make this promise meaningful today.

1 Blackburn J, Milirrpum v Nabalco Pty Ltd (“Gove Land Rights Case”) 1971 17 FLR 141.
2 Report from the Select Committee on Aborigines (British Settlements) House of Commons 26 June 1837, p. 14.
3 John Dunmore Lang. Letter to T.F. Buxton 10 June 1834, set out in Minutes of Evidence before Select Committee op. Cit. P682-4.
4 Op cit, p79.
5 See Geoffrey Robertson, The Statute of Liberty: How Australians can take back their rights (Random House 2009) p.182-3, 207..