The impact of settlement on the indigenous inhabitants

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The Australian legal system has dispossessed and failed to protect the rights of the indigenous people. The British failed to recognise Aboriginal culture as a valid system and from this failure followed many others.

This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 115-139.


[1] Dispossession of the aboriginals by the British was not a simple matter of the weak giving way to the strong. It was a matter of international law. In the 17th century, William Blackstone created three categories of possible events when a foreign power entered a land:

  1. Conquest: A forcible invasion of occupied land.
    • Consequence: Pre-existing laws continue until foreign power abrogates them.
  2. Cession: Treaty over occupied land.
    • Consequence: Pre-existing laws continue until foreign power abrogates them.
  3. Settlement: Settlement of land that is (a) 'desert and uninhabited', (b) sparsely populated, or (c) inhabited by 'backward people' who did not cultivate their land.
    • Consequence: Settler's laws automatically take hold.

Upon arrival in Australia, the colonists' perception was that the Indigenous Australians were indeed a 'backward people'. Witnessing the mostly nomadic lifestyle of the Indigenous Australians, they surmised that there could not possibly be a Sovereign power which needed to be conquered. Thus, they held that English law automatically applied. No heed was given to the complex system of customary law that had applied for thousands of years in Indigenous Australian culture. Under the common law, Indigenous Australians had no possession of their land.

Legal theories

[2] Sir William Blackstone advanced a legal theory with regards to the possession of land which became widely accepted:

  • To be an occupier, one had to be present and to manifest a will to possess the land as ones own.
  • Aboriginal people were in a state of 'primeval simplicity'; they did not permanently own land, but only had transient possession at any one time.
  • They also did not cultivate in the sense that the British understand, because they were nomadic hunters.
  • This meant that any time one left the land, any person could thus take it and therefore become permanent owners.

Obviously, this idea of possession of land did not favour the indigenous population in Australian, who did not consider their possession transient at all. However, the conclusion of the European was that ustralia was a terra nullius (uninhabited land, belonging to no one) and therefore it is 'settled'. In fact, the people inhabited and had a traditional ownership of the land:

  • There were defined boundaries and ownership of land through unconventional boundaries for the colonists.
  • The Aborigines had means of managing the land through controlled fire.
  • The people had a spiritual link to the land as well as a physical link to land for both nutrition and safety.

Colonial attitudes

[3] Many settlers thought the aborigines should not be regarded as British subjects.

  • John Batman purported to buy the land for the town of Melbourne from its Aboriginal owners, but the Governor Burke proclaimed such agreement null and void in 1836.
  • In his view, only the crown had a right to make a land grant - the Aboriginals didn't own the land and therefore could not sell it.

On the other hand, the Letters Patent for establishing South Australia provided Aboriginals with the right to occupy and use the lands they possessed. However, the colonists actively undermined the Patent.

  • They ignored it, and later appointed officials who were sympathetic to them, rather than the Aboriginals.

The indigenous people were deprived of many rights throughout Australian history (voting or sitting in juries), and were the target of much oppression. In South Australia, they were governed by the Aborigines Act 1911 (SA) (which placed indigenous people as 'wards of the state' and deprived them of many things, ie alcohol).

  • Exemptions could be obtained which meant the act doesn't apply to a particular individual.

This act, and the exemptions, were discussed in the prolific case Namatjira v Raabe:

  • Facts: an exempted aborigine supplied alcohol to a non-exempted aborigine. He was prosecuted for this and argued that the state can't make aborigines 'wards of the state' in bulk and must do it individually.
  • Held: the state can make aborigines wards in bulk and does not need to give individual notices or investigations. Wards have the right to appeal, at which point an investigation will be made.

Land and life

[4] Australian law had difficulties understanding and recognising the traditional and spiritual connection which the indigenous population had to the land. This was more problematic because the land constituted an integral part of indigenous customary law. These issues were discussed in Milirrpum v Nabalco:

  • The court recognised that the indigenous people have a special/religious relationship with the land. However, they determined that this relationship is not of a proprietary nature.
    • Therefore, they did not have a common law right to their land.
  • The court also recognised the existence of Aboriginal laws, which challenges the second criterion for terra nullius.
    • However, the court was not willing to overturn terra nullius.

Social justice


[5] Indigenous people are the most disadvantaged group in Australia

  • Die twice the rate of non-indigenous people in the Australian population.
  • External cause (accidents, assault and intentional self-harm) account for 17% of indigenous deaths compared with only 6% of non-indigenous deaths.
  • Mortality rates of Indigenous babies are double. This is whilst Australia’s total population has one of the lowest infant mortality rates in the world.
  • Indigenous women were almost twenty times more likely to be imprisoned than were non-indigenous women.

Aboriginals myths disproved:[6]

  1. Aboriginal people are either traditional or non-traditional - in fact, they change between lifestyles etc at different points of their life. The generalisation is false.
  2. Aboriginal people are all the same culture - aboriginal culture varies immensely between tribes and peoples. Over 600 languages, wide diversities.
  3. Urban Aboriginals have the same values as non-aboriginals - Aborigines which have moved into the cities still retain a lot of their tradition and may have completely different value systems to the rest of the urban population.
  4. Aboriginal people don't believe in property or inheritance - the aboriginals do not think of property as a commodity, but they still believe in ownership in a custodian way.
  5. Aboriginal people are defined by blood - a more correct identification would be whether the person identifies as an aborigine.

Social security

[7] Indigenous people are disadvantaged in terms of social security:

  • Completely excluded from social security schemes until 1966.
  • Much higher 'breach' rater (where a person suffers penalties for 'breaching' the rules regarding its benefit). Several factors contribute to this:
    • High illiteracy, meaning indigenous don't always understand the rules and letters.
    • No consultation between Centrelink and indigenous liaison people.
  • Indigenous less likely to lodge appeals.

Aboriginals in custody

[8] Compared to their small numbers, there are a lot of Aboriginals in jails. In Australia, Aboriginals make up about 1.46% of the population, and 14.6% of the population in jails.

  • This is due to a mixture of social and economic pressures combined with 'over' policing.
  • The 'over-representation' of Aboriginals in jails is even worse with women.

The rate of death in custody is about the same as non-aboriginals, but because there are so many aboriginals in prison in the first place, it means a lot are dying in custody.

The stolen generations

[9] The Australian governments used to take Aboriginal children away from their parents. This was done under legislation, as a part of the policy of allowing the Aboriginal race to die out/assimilate. Barbara Cummings comments:[10]

  • The justification for this removal was that the children needed 'protection'...from their mother's culture.
  • The process was done in a way which meant that when those who were removed had children, those were also removed.
  • This ended in 1970s, but there is still more of a chance that Aboriginal people are removed from their parents by child protection agencies than non Aboriginal children.

Attempts to claim compensation for the disastrous results of this removal have been usually unsuccessful.

  • This is because it was government policy to remove the children.
  • Child removal laws were held to be constitutional in Kruger v Commonwealth.[11]
  • The first case to succeed was Trevorrow v State of South Australia.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 118-9
  2. Textbook, pp. 119-121
  3. Textbook, pp. 123-5
  4. Textbook, p. 129
  5. Textbook, pp. 131-2
  6. Prue Vines, 'When Cultures Clash: Aborigines and Inheritance in Australia', in G Miller, Frontiers of Family Law , Ashgate, 2003 in Textbook, pp. 132-4
  7. Textbook, p. 135
  8. Textbook, pp.135-7
  9. Textbook, pp. 137-9
  10. B Cummings, 'Writs and rights in the Stolen Generations (NT) case', 1996 3 (86) Aboriginal Law Bulletin in Textbook, p. 138
  11. (1997) 146 ALR 126
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