Australian ‘settlement’ wasn’t just wrong, it was illegal

Australian “settlement” wasn’t just morally wrong, it was illegal under 18th century European laws.

When I was at school, we had an Indigenous section of our history lessons every year from Kindergarten. Each year we were taught the same thing, on repeat.

Even though I’d already begun to realise something was off, it wasn’t until I started a law degree at university that I realised just about everything I’d been taught was wrong, or at least grossly oversimplified.

The very first subject of my ultimately doomed law career was on the history of Australian law — and the giant big fat legal lie that allowed Australia to be “settled” in the first place.

Even back in 1770 Britain, there were laws around what you could and couldn’t do when taking over new land — you know, so there wasn’t complete mayhem, misery and cruelty. In theory.

According to the international law of Europe in the late 18th century, for land that was occupied, you either worked out a treaty that involved paying for pieces of land instead of stealing them, or you fought ugly wars to see who won.

If you, the invading country, won, then you “conquered”. That’s obviously also not good, but at least then you still legally had to respect the rights of the Indigenous people who lived there moving forward.

The third option? If a land was unoccupied, then you could claim it for your own.

Despite endless evidence of occupation (including a document given to Captain Cook before he even got here that stated “No European Nation has the right to occupy any part of their country … without their voluntary consent”), this is the option the Brits took.

By inventing the Terra Nullius myth — that I was taught as truth in school — around what would become known as Australia, “settlers” found a legal loophole by simply … looking the other way and playing very, very dumb.

January 26 is not a day for celebration – that’s why news.com.au is campaigning to change the date of Australia Day, so we can celebrate the best country in the world, without leaving anyone behind.

The Aboriginal flag flying on the Sydney Harbour Bridge during NAIDOC week. Picture: Damian Shaw

Map showing number of different Indigenous language groups in Australia. Picture: Australian History.org

It’s as ridiculous as looking the other way while you pick up a chocolate bar from your co-workers desk and thinking that made it yours — because even though they’re sitting right there, you couldn’t see them at the very moment you took the chocolate and therefore you can claim you had no idea that it belonged to someone and took it for your own.

What’s more, you get upset when that co-worker tells you that was not an OK thing to do.

If you’ve never read Bruce Pascoe’s book Dark Emu, then please do it, immediately. In fact, that’s how you should be spending your Australia Day. It’s even an audiobook now.

Despite the backlash that’s inevitable when white people are faced with the despicable parts of our own history, the book was extremely non judgmental — it simply presents clear evidence and asks fair questions.

That evidence was page after page of physical artefacts and journals (that you can individually research on their own by the way, you don’t even have to take Pascoe’s word for it) proving not only that the “nomad” story of Indigenous people that I’d been taught was hugely wrong, but that white explorers saw this contradictory evidence time after time. They even noted it down in their travel diaries, but with the next sentence would wilfully decide it must have been some other explorer passing through who randomly decided to build a village and complex irrigation systems, for some reason.

Perth, Australia – March 19, 2015: Man with the Aboriginal flag draped around his shoulders during a protest.

The question is, why? Call me a cynic, but the very blaring answer seems to come back to the legal need for Australia to be unoccupied if “settlers” wanted to make it a new home.

When you can’t keep convincing people to just look the other way while you take the chocolate, at least you can invent a story of those people having no set dwelling.

For the British it literally came down to no fence, no ownership, no problem taking it for yourself.

I happened to read Dark Emu at the same time as doing this law subject, and the overwhelming evidence is that not only was “settlement” morally wrong (duh), it was literally against the law. Laws I presume were set around their own sense of morality at the time.

This is all before we even begin to address the atrocities white “settlers” continued to impose onto Indigenous people in this country after they moved over.

And some of us are still wondering why we shouldn’t be celebrating on the day this all started? It’s time to wake up.

Originally published as Australian ‘settlement’ wasn’t just wrong, it was illegal