When the British Government took possession of territory on the continent of Australia, it did so confident in its strength of arms and documentation. These were capabilities which the Aborigines lacked. The battle was very uneven and the outcome predictable. The newcomers, believing that they had the superior and stronger culture and resources, were not minded to negotiate a general agreement with the Aborigines over matters of ownership and government of the land and its peoples.
A notable exception to this attitude was the attempt by John Batman to establish a form of treaty with Aborigines in the Port Phillip area, where he wanted to take up grazing lands. The treaty document survives, with its symbols supposed to represent marks of agreement by Aboriginal chiefs. The treaty was a device designed partly to demonstrate peaceful co-existence with the Aboriginal population, but partly also to assert private rights over land not granted by the Crown.
Batman’s treaty with the Aborigines is dated 6 June 1835. On 26 August His Excellency Major-General Sir Richard Bourke, K. C. B., Commanding His Majesty’s Forces, Captain-General and Governor-in-Chief of the Territory of New South Wales and its Dependencies, and Vice-Admiral of the same, &c. &c. &c., issued a Proclamation to make clear that he was having none of John Batman’s stratagems:
Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, I, the Governor, in virtue and in exercise of the power and authority in me vested, do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, as aforesaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission; … is void and of no effect against the rights of the Crown; and that all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.
This was a unilateral assertion of rights which took no account of the Aboriginal view of the matter. The concept of ‘vacant lands of the Crown’ ignored the very existence of Aborigines, let alone their needs and rights. In these respects Governor Bourke’s Proclamation arguably had even less moral authority than Batman’s treaty, particularly if Batman had indeed managed to secure a meaningful expression of good-will and co-operation from the Aborigines with whom he sought to deal.
To what extent might Aborigines of that time be amenable to letting the newcomers use the land over which they had roamed for thousands of years? Robert Dawson, in his Present State of Australia (page 12), offers some interesting evidence, which reflects the psychology of the Aboriginal who guided him from Newcastle to Port Stephens and whom he named Ben. He had promised Ben rewards for his efforts and Ben was delighted with the gifts, so much so that, in uplifted and expansive mood, he offered Dawson a great deal in return:
On the following morning I went on board the schooner, and ordered on shore a tomahawk and a suit of slop clothes, which I had promised to my friend Ben, and in which he was immediately dressed. They consisted of a short blue jacket, a checked shirt, and a pair of dark trowsers. He strutted about in them with an air of good-natured importance, declaring that all the harbour and country adjoining belonged to him. “I tumble down pickaninny here,” he said, meaning that he was born there. “Belonging to me all about, massa; pose you tit down here, I gib it to you.” “Very well,” I said: “I shall sit down here.” “Budgeree,” (very good,) he replied, “I gib it to you;” and we shook hands in ratification of the friendly treaty.
Dawson does not represent this as a legal transaction, as Batman might have. He would have been less than honest to do so, given the naïveté of the Aboriginal inhabitants, ignorant as they necessarily were of European habits of mind and techniques of diplomacy. But he was no doubt encouraged by the level of good-will which had been generated.
However, whether there was good-will or ill-will, the fact remained that the newcomers were not going to relinquish their plans for possession and use of the land, whatever the Aborigines might think; and the Aborigines were not equipped to develop the sort of strategies needed to beat the British at their own game.
Robert Kenny has argued that Batman’s treaty need not be interpreted (as it usually is) as a mere ruse. Batman’s dialogue with the Aborigines raises the question of whether the usurpers of the land could have entered into genuine negotiations with the traditional occupants, as Batman did to an extent, so as to make the outcome fair. What was actually done, Kenny argues (p. 38.10), poses moral problems for all concerned then and now, since we are all ‘inheritors of the consequences.’
State Library of Victoria, Batman’s treaty (including images). National Archives of Australia, Documenting a Democracy, Governor Bourke’s Proclamation 1835 (UK) (including images and transcription). Cf. ‘Government Gazette’, Australian 8/9/1835, p. 3. Robert Dawson, The Present State of Australia, London, 1830, p. 12. Robert Kenny, ‘Tricks or Treats? A Case for Kulin Knowing in Batman’s Treaty’, History Australia 5 (2), 2008, 38.1 to 38.14.