South Australian Treaty – A closer examination of the history

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The prospect of the South Australian Government entering treaty negotiations with the aboriginal traditional owners is, on the face of it, a progressive and exciting development. The Minister, however, is opening a Pandora’s box promising the long awaited examination and reconciliation of the fundamental flaws in South Australian founding, essential and inherent to its success, writes Nigel Carney

SA Minister Maher said he expected initial negotiations with the Adnyamathanha Traditional Lands Association, Far West Coast Aboriginal Corporation and Ngarrindjeri Regional Authority to be followed up by “several dozen” agreements.

His statement that agreements could be reached by the end of the year may be slightly over ambitious
considering the gravity of the history and the agreement that must be reached by the government concerning the circumstance leading to the injustice, which great legal minds describe as wilful misappropriation.

The situation of South Australian settlement is unique and bears no useful comparison to the circumstances of treaty negotiation in Victoria and other states. It’s fair to say South Australian founding demonstrated corporate annihilation of human rights via a wicked conspiracy to usurp the surprising goodwill and enlightenment of the British Government.

Minister Maher’s comments may allude to some prior knowledge of this:

“Treaty is an important step towards addressing the wrongs of the past. The fact that so many Aboriginal
people to this day face such significant disadvantage remains the greatest stain on our society.”

The removal of this stain will require considerable navel gazing for all South Australians and acceptance of the true story of founding, not exactly highlighted in the states educational curriculum. This acceptance could then form the basis of mutual respect and honour enabling the nitty gritty details of treaty negotiations to move forward.

Already aboriginal elders are communicating at a level of clarity and understanding which is remarkably generous and compassionate in light of the untold history of the state. Ngarrindjeri elder Major Sumner warns:

“We’re not going to go at this like a bull at a gate …we’re going to look at it, talk about it, see what we want, see what benefits us. It’s not about just grabbing stuff and saying this is ours, otherwise we’d be just as bad as the people who took it from us in the first place. It’s about breaking the welfare cycle, about health, about incorporating culture … you’ve got to have all these cultural things as part of treaty, or it’s like trying to drive a car with one wheel missing.” (The Australian December 14, 2016)

A brief review of the history illustrates how the land was taken from them.

The 1834 Proclamation Act passed in the British parliament to erect the British Province of South Australia, drafted by Daniel Wakefield, brother of Edward Gibbon Wakefield, was in no uncertain terms a disaster waiting to happen. It was passed reluctantly after years of rejection and only with the helping hand of Lord Wellington and his allies. The early law of South Australia was well researched by the most uncelebrated SA historian Ralph Hague:

“By universal consent this Act has been condemned – by some as an obscure and misshapen blunder
by others as ‘a document of masterly ambiguity, if not of deep guile’ and to the pernicious influence of its dubious drafting have been traced many of the troubles which threatened the colony at its outset, while George Fife Angus described it as ‘a dead letter on the statute book, an order of the Imperial Government to make bricks without straw’ .”

A century later the same Act confounded the High Court of Australia, ‘it seems very singular to me’, commented Sir Samuel Griffith, ‘it is unique’, added Sir Josiah Symon.

The stupidity and errors of the first Act creating South Australia makes a fine read, but core to the errors were the inclusion of the words ‘unoccupied wasteland’ and the creation (by order of the British Government) of a Board of South Australian Commissioners charged with the responsibility of managing the proceeds of land sales from private buyers, to enable the passage of assisted emigrants and meet the costs of government. The scheme that would create a ‘convict free’ colony and a clean transplant of the best elements of British Society to the ‘Promised Land’.

Such errors were well known to the recently appointed Secretary (known as the Angel) of the Colonial Office, Lord Glenelg who persisted with requests to amend the flawed legislation without effect with the principle goal of preserving the human rights of the aboriginals, in light of what he had learned of the atrocities committed against the natives by the Mitchell party in New South Wales.

The actions (land sales) which had already transpired following the passing of the Act in 1834 by the Board of Commissioners and the South Australia Company resulted in an intense legal battle ultimately won by the Board of Commissioners. , Lord Glenelg was left with no other avenue except to enshrine the rights of the aboriginals in the Letters Patent 1836, which stated:

‘PROVIDED ALWAYS that nothing in those our Letters Patent contained shall effect 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 Lands therein now actually occupied or enjoyed by such Natives.’

SA Letters Patent - Enlightened law ignored

A successful and noble rear guard action by Lord Glenelg one would have thought, but sadly not.

The plan to colonise South Australia, now under the excellent management of George Fife Angas and the South Australia Company had already pre-sold most of the City of Adelaide and surrounding country sections, meeting the obligations of the regulations under the absurd founding Act.

The onus was now upon the Chair of the SA Board of Commissioners, Sir Robert Torrens to renegotiate these now illegal contracts, pending the agreement of sale to the rightful owners as defined in the Letters Patent. This did not occur and herein exists the greatest blemish and stain of SA founding still not addressed to this day. A conspiracy to deny the indigenous occupiers of the ‘unoccupied wasteland’ the protections granted them by King William IV of England.

Was there confusion or ambiguity in relation to these events? No, the requirements of the Letters Patent were also included in both the first and second instructions to the Board of Commissioners and so we must call to the stand Resident Commissioner (and lawyer) James Hurtle Fisher who had such instructions in hand, prior to embarking to South Australia , but who chose to ignore them.

The first instructions stated:

34. You will see that no lands, which the natives may possess in occupation or enjoyment, be offered for sale until previously ceded by the natives to yourself.

35. You will furnish the protector of the aborigines with evidence of the faithful fulfilment of the bargains or treaties which you may effect with the aborigines for the cession of lands over which they may possess proprietary rights, and of which they are not disposed to make voluntary transfer.’

James Hurtle Fisher-lawyer-ignored instructions1836

There were bloody and horrendous consequences on other fronts related to this peculiar non observance of the Letters Patent which cannot be detailed here but which points to more trauma inflicted upon not just the traditional owners but also European settlers post foundation.

Second Governor of South Australia, Colonel George Gawler, a staunch christian and military man with no civil management experience, executed aboriginals without recourse to trial, in further flagrant defiance of the Letters Patent which bestowed the same rights to justice to the aboriginals as that provided to all British subjects.

The history reveals the underpinning attitudes to tribes often referred to as ‘savages’ going some way to explain why good laws put in place by good people were ignored.

Upon arrival his Excellency Governor Gawler had translated through Dr Cronk the interpreter for Dr Whyatt, the Protector of Aborigines, the following bizarre request read to the aboriginals in the Adelaide Park lands, prior to a generous lunch and spear throwing demonstration:

“ That they were to become good British subjects – give up eating each other – dress in proper clothing, and love all white people.” (James Hawker – Recollections)

Governor George_Gawler- Letter Patent law breaker

Such grim and dark episodes of SA founding are not easy reading but are relevant to the process when assessing the damage and trauma inflicted when one culture makes presumptions of superiority over another, creating loss and suffering.

So the The Minister of Aboriginal Affairs deserves credit for opening discussions that can lead to treaty and uncloak the worst aspects of the states history, setting the stage for aboriginal nations to play a genuine role in the state that is arguably legally theirs when the founding history is examined, understood, and ultimately appreciated.

Maher points to this in his December 2016 statement: “In an Australian first, the Aboriginal Regional Authority Policy formally recognises Aboriginal organisations responsible for representing and advocating for their communities, driving regional priorities and economic growth, and working in partnership with government on key issues.”

In taking these steps the Minister is enabling and empowering the indigenous communities denied justice for an excessively long period of time.

The mind boggles if one is to consider the hypothetical ‘what if’ scenario had the law regulating the founding of  South Australia been abided by. Geoffrey Robertson QC weighs in on the debate in the comprehensive study compiled by Shane Berg, Coming to Terms, now a highly relevant source for the 2017 negotiations. In relation to the Letters Patent he states:

‘For any contemporary reader and indeed for the King and Colonial Office in 1836, this meant what it plainly says: that the South Australia Company and all that settled must acknowledge and respect indigenous land rights.’

South Australia could ponder the profound narration of Michael Moore, in his recent documentary Where to Invade Next, as he considers the German approach to integration of cultural history:

“They treat it (the holocaust) as their original sin, as a permanent mark on their collective German souls, one for which they should always seek redemption and make reparation and never never forget, and they can’t forget.”

Acknowledging the worst stains of South Australian founding history is an extraordinary challenge for any politician. This is inspired leadership and initiative that may lead to great healing and go some way to restoring public faith in governments that rarely take such truly great risks.

Nigel Carney is a SA Historian and Project Manager of Playford Heritage Park, an innovative repurposing of the Leigh Creek Coal Fields in the Northern Flinders Ranges. He can be contacted at Playfordheritagepark@gmail.com

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