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Adelaide land crime shows why we need a treaty


Coming to Terms: Aboriginal Title in South AustraliaLife can only be understood backwards, but it must be lived forwards. –Soren Kierkegaard

In the mid-19th century my great-grandfather Thomas Bartlett settled in South Australia around Murray Bridge. Here he established a successful quarry along the banks of the river and supplied stone for many of Adelaide's most elegant buildings including the current railway station cum casino. He also harvested and sold large quantities of timber, all of which made him quite a wealthy man.

Of course with possession comes dispossession and I sometimes reflect on how his success also led to dispossession among the local Murray Bridge Indigenous people, namely the Ngarrindjeri.

Recently attention has been focused on the legal documents that underpinned the establishment of the Province of South Australia in 1836, and how the state's founding impacted the original inhabitants. These documents appear to prove the land was acquired illegally.

Chief among these is the Letters Patent signed by King William IV in 1836 that made white settlement conditional on the following principle:

That nothing in those Letters Patent 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.

The legal implications of such a document turn the establishment of South Australia into a testing ground for Indigenous rights Australia-wide. So far the tone of this discussion has been very muted.

Sean Berg, who practises Intellectual Property Law in South Australia, has shone light on other documents that raise new possibilities for rethinking Indigenous land rights in this country.

These include Colonial Office correspondence, reports of colonisation commissioners and other documents which Berg maintains point to the same thing: 'that the transfer of land from Aboriginal groups should be a consensual act', but never was. No treaties or bargains were ever established and the new colonists paid nothing for the land they acquired.

Ngarrindjeri elder Tom Trevorrow says the legal implications of these documents is a 'burning issue' for his people. They 'have not been effective in protecting our rights to occupy and enjoy our lands and waters'. There appears to be little appetite to follow through the practical implications. For both state and federal governments, it seems, the issue is simply too hard, so they look the other way.

In 2006, the then South Australian Minister for Aboriginal Affairs and Reconciliation, Jay Weatherill (now the state's premier), referring to the Letters Patent, proclaimed that 'the failure to meet the promise contained in the documents establishing this settlement' has 'been the cause of much loss and suffering for Aboriginal people'.

Fine words, but have they been advanced in the last five years? A recent letter to the new premier requesting dialogue as a first step, is still awaiting a response.

These potentially incendiary issues have been aired in a book edited by Berg, Coming to Terms: Aboriginal Title in South Australia.

One of its contributors, Megan Davis, director of the Indigenous Law Centre, suggests a bill of rights or a treaty 'would be an appropriate mechanism for redressing that failure' and 'would create a sense of inclusion and belonging which is more substantive than the maintenance of the fiction that parliament can be trusted to protect the rights of Aboriginal and Torres Strait Islander people'.

Surely it is time Australian governments were grown up enough to consider a modern treaty or formal agreement to support relations between the state and Indigenous peoples. For too long Indigenous peoples have remained subject to the government of the day.

For example, the Aboriginal and Torres Strait Islander Commission Act 1989 was passed by a federal Labor government and then subsequently abolished by a federal Coalition government in 2005 without any consultation with Indigenous communities. Such actions perpetuate the unsavoury flavour of dispossession which typified our colonisation.

No matter how extensive or generous any government program to tackle Indigenous inequality, it will mean little unless Indigenous people are first treated as a sovereign nation with independent rights.

John BartlettJohn Bartlett teaches professional writing at Deakin University, Geelong. His fiction and non-fiction has been widely published. His first novel Towards a Distant Sea was published in 2005. He is currently finishing his second novel, Estuary, partly set in the Coorong.  

Topic tags: John Bartlett, aboriginal land rights, adelaide, native title



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Existing comments

The question remains for how long we can go into the past trying to undo bad deeds. I am not sure how the occupiers of land could proof that they were the legal owners of the land. It is possible that the land occupied was also taken away from a weaker society??

Beat Odermatt | 18 January 2012  

I don't think Aussies are grown enough to deal with the disgusting past, too many examples like this they wish would just disappear, I dream of the day the dominate culture grows to the point we may one day face the facts, then we can call our selves an adult nation, still have a long way to go

S(r)ambo | 18 January 2012  

Beat, what does 'legal' mean. Before white settlement, all habitable parts of Australia were inhabited. The leading inhabitants of any particular part could prove their ownership by their knowledge of the Dreamings and their ability to sing the songs. What right have invaders with a different legal system to move in and take over and use their own legal system to justify it?

Gavan | 18 January 2012  

It is important that descendants from Australian settler families (like mine) recast their family history from the Aboriginal point of view as John does here. I see this as an important role for family historians. John, having made an explicit link between your advantage and Aboriginal disadvantage, where do you go from there?

Pat | 18 January 2012  

In my view our ultimate objective should be a new Australian constitution in the form of a treaty between Australia and the indigenous inhabitants. This must be a long term objective because there is no body able to speak, negotiate, agree on behalf of indigenous people and such a body will only evolve in time - probably a good deal of time. In the meantime it is important that we rethink and redefine our history, as Henry Reynolds has been doing for years, as Kate Grenville did in a recent novel, as Bill Gamage did in a recent non-fiction book about indigenous land management practices and as John has done here.

Jim Jones | 19 January 2012  

Pat, this is a really good question and very challenging which I think Jim has partly answered. For me the essence of success relates closely to self-determination. I lived in the Philippines for 9 years and some success was achieved with people in poverty when they could make their own decisions (and mistakes) and not have decisions made for them by people in power. In Australia a treaty negotiated on equal footing is an essential step in self-determination as is a representative body of indigenous people who can determine their own priorities. For too long people in power have told indigenous people what is appropriate for them. I think it's time we ate humble pie and allowed indigenous people to decide without our interference. It's a dark history we've built this nation on but it's not too late to make up for some of the past crimes.

john bartlett | 19 January 2012  

Thanks John. So long as there is no Treaty with the heirs and successors of Australia's First Peoples, the British annexation of the land and all consequences thereof lack legal validity. That is, without a Treaty, the Australian nation has no sovereignty.

David Arthur | 20 January 2012  

To fully and frankly acknowledge our past including the less savoury aspects is both a healing action for those agrieved by our actions but equally healing for those who perpetrated the dispossession or other misdeed. Both parties stand to gain in sense of worth and stature as whole human beings.

graham patison | 23 January 2012  

I am a Torres Strait Islander and a proud Australian who believes in finding ways to provide justice for all, especially for the most vulnerable groups in our society who are Indigenous Australians. Beat's comments doesn't help in this regard!

Peter Sabatino | 23 January 2012  

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