Aboriginal-European Treaty Initiatives in Australian History

Bob Reece

(Murdoch University)

As an historian interested in furthering the process of reconciling white and black Australians to each other’s permanent presence in this land of ours, I want to make some loosely-linked observations from the history of our time together. I hope that these observations can be related usefully to the pursuit of a treaty or agreement which might in turn lay the basis of living together in a relationship of mutual respect and co-operation. The assimilationist era has been over for some time but we have not yet found a modus vivendi to take its place. While I am personally agnostic as to whether a treaty, a negotiated contract or agreement, is feasible, I recognise that it is a project which has to be examined very seriously. The stakes are high and we have to take some risks.

A ‘treaty’, historically speaking, has normally been a document of agreement which followed or grew out of a conflict of some kind, formally rewarding the party which had might on its side. Most treaties, in other words, have been unequal arrangements which formalised the privileged status of one side while to a greater or lesser extent protecting the surviving interests of the weaker party. Treaties with native Americans and the Maori mostly took this form. Furthermore, when they were breached (which they usually were) these was no ready instrument of enforcement. In recent times, however, these treaties have enabled groups of native Americans and Maori to take their cases to court and successfully sue for compensation. Australian history also provides examples of agreements, some initiated by indigenous groups and others by Europeans, but always at a local level and of an unofficial nature.

At the beginning of the 21^st century, indigenous and European Australian interests are still in conflict. Some formula has to be found to enable both groups to come to terms with each other’s permanent presence, to accommodate each other’s interests and to live together peacefully in this continent which has been so richly blessed by nature. History also shows us that there is no one history, no one paradigm or model of racial interaction that we can identify and positively resolve. The central facts are the occupation of the Australian continent by Europeans, the range of more or less similar historical processes involving 600 or more indigenous groups across its far-flung territories, and the diversity of situations that have resulted. The formula for reconcilation must be one that can state some central and common truths, but at the same time take account of diversity

From the historical experience, it is clear that while there were no recognised formal treaties between Europeans and indigenous peoples in Australian history (the nominal legal status of indigenous peoples as British subjects with no separate legal personality of their own making this technically impossible), and while official British policy from 1837 expressly forbade such arrangements as being essentially inimical to indigenous interests, there were nevertheless some significant initiatives in this direction by both sides. Indeed, it can be argued that informal, unwritten treaties were attempted and sometimes struck in the aftermath of frontier conflict. Like most treaties, it has to be said that these were normally attempted and reached in situations which decisively favoured the Europeans, but which still gave the indigenous negotiators some advantage.

In recent times, part of the project of Australian history has been to examine the frontier experience to see whether the European settlement of the continent was really the relatively bloodless process that previous generations of historians told us it was. My own early work on the Myall Creek massacre of 1838 suggested that it was certainly not and subsequent work by many others, notably Henry Reynolds, has meant that it is no longer possible for white Australians to plead ignorance as to how it was that an indigenous population of perhaps a million and half in 1788 was reduced within one hundred years to between 40,000 and 60,000. Nevertheless, it is a mistake to think that the pattern of racial interaction across the continent was uniform in the way that Reynolds’ dispossession-resistance paradigm suggests. The attempt to draw a big picture obscures the small pictures. Putting it another way, the varieties of race relations form a spectrum ranging from the accommodation that characterises Swan River colony (that is, early Western Australia) to the bloody conflict that characterises so much of Queensland history. Regional studies reveal striking differences.

These days we think of assimilation as a policy that was instituted in the late 1930’s a means of absorbing people of part-Aboriginal descent into the European population in the belief that those remaining of the full descent would inevitably ‘disappear’. In fact, the idea of absorption was present from the beginning of European settlement in Governor Arthur Phillip’s idea of ‘attachment’: that by encouraging the indigenous peoples to ‘attach’ themselves to European society, albeit at the lowest level as servants and unskilled workers, they (that is, the indigenous peoples) would take on the forms of the higher civilization and leave behind those of their own. In this was reflected the late 18^th century Enlightenment view of the perfectibility of man, the fundamental equality of the races and the disposition of the less civilized races to emulate the more civilized.

One important but overlooked strand of the assimilation tradition, however, was the effective denial of indigenous heterogeneity and the imposition of a totally artificial unity implicit in the term ‘Aborigines’, initially with a small ‘a’ and then with a capital ‘A’. While such terms as ‘Indians’, ‘natives’, ‘blacks’, ‘black natives’ and ‘aboriginal natives’ were all used during the early days of settlement in eastern Australia, by the 1830’s Aborigines with a capital ‘A’ had become the more or less accepted official designation.

Only rarely in the early literature were the actual self-designated names of indigenous groups ever used. In the Port Jackson or Sydney area, the local Eora people were never referred to as such until recent times. In the Swan River or Perth area, ‘tribal’ divisions were acknowledged by names which were simply taken from whoever appeared to be the most influential figure – thus ‘Yellagonga’s Tribe’ and ‘Saturday’s Tribe’ – or from a particular locality, as with ‘the Murray River tribe’ and ‘the Northern Tribe’. In Eastern Australia, the expectation of dealing with indigenous leaders as representatives of their people even led to the distribution of brass plates to so-called ‘Kings’, but once again the locality rather than the ‘tribal’ grouping was named: thus King Charley of the Five Islands Tribe.

What accounts for this early (and persistent) inability or refusal to establish actual names and distinguish between significantly different groups? Was it the difficulty of appreciating territoriality amongst hunter-gatherers who did not live in village-type communities and who did not seem to belong to any one place but roamed the land like the emu and the kangaroo? Was it the fact that unlike North America, for example, individual groups did not so often distinguish themselves in physically resisting the European presence and thus did not ‘fight’ their way into the history books? Most Australians of my generation through reading comics and watching Westerns at the cinema could rattle off the names of at least half a dozen native American leaders and their tribes but would have been hard pressed to name even one Australian indigenous resistance leader or tribal grouping. Was it the fact that the dispossession, depopulation and officially-pursued dispersal of indigenous groups was so rapid (in some cases taking no more than a generation) that many disappeared virtually without trace? Or was it, as the anthropologist W.E.H. Stanner suggested, simply the basic ‘indifference’ or lack of interest on the part of the Europeans towards the indigenous peoples once any initial difficulties of settlement had been overcome and the latter had accepted their dispossession and their subordinate position in colonial society.

All of these factors were significant but it is instructive look at the reasons why some tribal names have become familiar over the last two decades. The Pitjantjatjara, for example, are now well known in South Australia and Western Australia. At a broader regional level, indigenous use of the terms ‘Koori’, ‘Murray’ and ‘Nyoongar’ have some into common currency. Some of this has been due to the land rights campaign, legal acknowledgement of ’native title’ through the High Court and Federal Parliament and the struggles of different groups to establish native title to their land. In other words, territorial assertiveness through the mechanism of the courts and the press has brought a high profile for groups retaining their ties with land, while more acculturated groups whose originally localised and specific identities have been largely obliterated and lost have found it convenient to include themselves under broad regional designations.

Let us look now at some examples not of treaties but of informal, unwritten agreements between Europeans and the indigenous peoples in the 19^th and early 20^th Centuries. Some of these are hardly documented at all but in other cases the documentation is relatively strong. The first negotiation I have found reference to is that between the Wiradjuri leader, Windradyne, also known as ‘Saturday’, with the New South Wales authorities in late 1824. Three years of bitter conflict in the Bathurst district, which had recently been opened up for pastoral settlement, had seen the killing of numerous European stockmen and hutkeepers by Wiradjuri people (notably, by Windradyne himself) and their wholesale killing in turn by parties of military and armed settlers. So serious was the conflict that Attorney General Saxe Bannister had counselled Governor Sir Thomas Brisbane in 1823 to declare martial law to the west of Mount Victoria in the belief that this was a necessary protection for what would otherwise be the indictable killing of people who were His Majesty’s subjects. A proclamation was also issued for the capture of Windradyne himself. The Governor subsequently told the Colonial Office that the celebrated chief had presented himself at the annual feast provided by the government for the Aborigines at Parramatta in December 1824 and that an agreement had been reached between them. This was not written down but seems to have consisted of an understanding that the Wiradjuri would not kill the settlers’ sheep and cattle on condition that they would be supplied with food by them from time to time.

In Van Diemen’s Land, or Tasmania, a bloody conflict between Europeans and the indegenous peoples was unleashed in the late 1820's when pastoralists taking up the high country between Hobart and Launceston seriously disrupted the indigenous economy. No quarter was given in this undeclared war and official attempts to intervene were futile. Eventually, Arthur commissioned George Augustus Robison to ‘conciliate’ the survivors, gather them together in Hobart and then transfer them to the isolated Bass Strait Islands. As it happened, this was a disastrous initiative, leading to further loss of life and near extinction of the people of the full descent on Flinders Island. However, Henry Reynolds explains the Tasmanians’ readiness to co-operate with Robinson as being due to their perception that he was effectively offering them a ‘treaty’ or agreement. This was subsequently invoked in 1846 by Walter G. Arthur, in his petition to Queen Victoria on behalf of what he called ‘the free Aborigines Inhabitants of Van Diemen’s Land …’ who ‘were not taken prisoners but freely gave up our country to Colonel Arthur then the Governor after defending ourselves’.

It is certainly true that Arthur subsequently regretted not having taken an earlier initiative in treaty-making and very likely that he influenced the views of key members of the Port Phillip Association, a group of Tasmanian settlers who banded together to pursue the pastoral settlement of the Port Phillip Bay area of what is now southern Victoria. The two ‘treaties’ or bills of sale signed by John Batman and the nine elders of the Melbourne and Geelong tribes in August 1835 have been conventionally dismissed by historians as a shabby trick to buy up 600,000 acres of prime land for a modest payment in flour, steel axes and so on. However, Batman’s undertaking to supply them with an annual gift of flour and other items signalled his awareness of a continuing responsibility to provide compensation for loss of resources due to European settlement.

That Batman was a trickster there can be little doubt but the lawyer who drew up the ‘treaties’, G.T. Gellibrand, seems to have been genuinely convinced that formal dealings with the indigenous people of the area would prevent the bloody pattern of conflict that had accompanied pastoral expansion in Tasmania. Governor Arthur, who possibly hoped to extend his territorial dominion to the mainland, was quietly supportive of the initiative.

New South Wales Governor Sir Richard Bourke’s dismissal of Batman’s claims and his assertion that the land concerned was the exclusive possession of the Crown and that indigenous signatories thus had no right to sell what was not theirs was confirmed by the Colonial Office. This put paid to any lingering question of indigenous rights surviving the act of annexation. However, Batman’s, or rather Gellibrand’s, ‘treaties’ constitute the only occasion in Australian history until June 1992 when the property rights of the indigenous population were formally acknowledged. The Port Phillip Association’s initiative may also have prompted Judge Burton of the New South Wales Supreme Court to draft legislation in 1838 designed to conciliate and establish in village-type communities the indigenous peoples of the area within a 200 miles radius of Sydney, known as the Limits of Location. This would presumably have been funded by the 15% levy on the proceeds of Crown Lands sales which the Colonial Office, following the recommendations of a House of Commons Select Committee into the Condition of Aboriginal Peoples, had decreed should be set aside for missionary and educational work.

Finally, in Western Australia there is the evidence from both the colonial government and the indigenous side of a willingness to reach an accommodation. Robert Menly Lyon, an eccentric but humane Scot, proposed to Governor Stirling as early as 1830 that he be allowed to pursue the matter of an agreement with the Swan River people which would forestall the bloodshed which he saw as being otherwise inevitable. When serious conflict did come in October 1834 with what has been called the ‘Battle of Pinjarra’, resulting in the deaths of at least thirty members of the Murray River tribe, Stirling let it be known that he intended it to be seen as a ‘lesson’, not just to the Murray Tribe but to anyone who attacked European property, and that if they sought revenge for their punishment his troopers would ‘destroy every man, woman and child’.

The Murray people soon made it clear through an intermediary, an Upper Swan River man called Migo or Miago, that they were willing to talk terms with the Governor. Miago informed Stirling that they were ‘anxious to seek a concilation’. Their proposal, according to a somewhat ironic account in the Perth Gazette, was

that an emissary .. shall wait upon the Governor, confiding in a pledge of security, and shall receive His Excellency’s sanction for the introduction of his tribe, when the whole will be assembled and will present themselves before him, soliciting his future favour and consideration. For the observance and strict fulfilment of this treaty on the part of the Murray men, we have the guarantee – a pledge by-the-by not much required – of the principals of the Swan tribe that they will resent any infringement of the solemn compact.

Stirling promptly authorised Miago to bring the Murray people to Perth for the meeting but they could only be persuaded to go as far as the military barracks at Mandurah, not wishing to enter the territory of the Swan tribe. For their part, the Swan tribe resented Miago’s diplomacy and did not want any agreement which might weaken their relationship with Stirling, who had just established a rationing depot at Mount Eliza to compensate for their loss of access to native game and other food resources. Consequently, they spread a rumour that the Murray tribe’s real motive in coming to Perth was to avenge Pinjarra. So, as you can see, Nyungar politics were every bit as complicated and cut-throat in 1834 as they are now.

The examples I have given so far are for south-eastern and south-western Australia. What about northern Australia where the indigenous peoples significantly outnumbered Europeans until recent times? In Western Australia, conflicts and massacres, documented and undocumented, accompanied every stage of pastoral expansion to the north until the late 1920’s. However, it is to Queensland from the early 1850’s that we must look for the best (or should I say the worst) evidence of frontier war. Documenting this in his masterly new book, Goodbye Bussamarai, Patrick Collins reconstructs the pastoral settlement of the Maranoa and other rivers of southern Queensland which drastically disrupted the lives of the Mandandanji people and plunged them into two or three years of bloody conflict - both with the pastoralists and with the European-led Native Police who were hired to protect European life and property by ‘dispersing’ any Mandandanji who appeared to be threatening it. In the middle of this terrible carnage it is interesting that on at least one recorded occasion the Mandandanji sued unsuccessfully for a truce (and possibly a negotiated accommodation) with the cattle men and the police.

North of the 26^th parallel the pattern of pastoral expansion continued unrelentingly and with the same results as elsewhere. Here, however, when European workers were expensive and difficult to attract, it was in the vital interests of pastoralists to recruit their former enemies as workers as quickly as possible. It is probably fair to say that on almost every sheep or cattle station in the Australian tropics there was by 1920 some kind of informal agreement between the European ‘Boss’ and the indigenous elders (who had accepted his supremacy after initial conflict by ‘coming in’ to the station) that the tribe would provide the much-needed labour for station work in return for a regular supply of food and tobacco for the workers and their dependants. These agreements remained in place for several generations until 1967 when the amended Federal Pastoral Award obliged pastoralists to pay indigenous workers at the same level as European workers and they responded by moving the former off the stations. How all this unfolded can be seen in Mary Anne Jebb’s new history of the north Kimberley, Blood, Sweat and Welfare.

I have assembled these examples to demonstrate that indigenous groups and European settlers and officials at different times were willing to enter into agreements or accommodations of one kind or another in order to avoid further bloodshed. Inevitably, the bargaining power was with the Europeans and the agreements were unequal. Nevertheless, we can conclude that the impulse to ‘treat’, to talk terms, is clearly evidenced in our history. There is a tradition to build on.

And, if I may conclude on this point, the tradition suggests that if there is to be a ‘treaty’ or (as I would prefer to call it) an agreement, we should (in my view) not be talking about some kind of nationally-based and negotiated document as the desired outcome, but about a series of similar agreements negotiated at a local or regional level in all the various parts of Australia by the relevant black and white communities. While it is true that the idea of a treaty in recent times has been largely the initiative of white Australians and that it has been conceptualised as a national treaty, historical and contemporary realities suggest that it is unlikely to be achieved along national lines. If it is to mean anything at all, a treaty or something like it has to be talked through and agreed at the local level by the people who live there and who will have to live together with the future consequences.