The view has long been held, hardly without question, that the English settled in Australia in 1788.  Many Indigenous Australians beg to differ.  Of late, vociferously.  They insist it was an invasion.

They may be right.

From a legal perspective there are a couple of arguments in their favour, the first of which takes us back to 1770 and James Cook.

A 19th century engraving showing Australian

Image via Wikipedia

In 1770 under Customary Law and Maritime Law it was illegal to usurp, occupy or repopulate lands of First Nations and treaties with these peoples were hence the legal norm and . . .

Lieutenant (later Captain) James Cook had instructions to negotiate with the Natives and gain their consent to occupy land.  From April to August 1770, without the consent of the Indigenous Peoples or consultation Captain James Cook landed at a number of sites on the eastern coast of Australia claiming it for the British Crown.  On the 22 August 1770 on Possession Island off Cape York, Cook took possession of the whole east coast in right of his Majesty King George the Third (cited from The Other Side of the Coin by Tony Kamps).

But a treaty or any negotiation was, in Cook’s opinion, not a privilege to be afforded to ‘savages’ and he subsequently breached his instructions.  Before 1770, the construct of the Aborigine saw them positioned in the landscape as a savage: a subsequent depiction that evolved in the minds of European imagination. The English, especially, considered themselves well credentialed. As the first Englishman to encounter Aborigines, William Dampier instilled in other Englishmen’s minds the preconceptions about these people when he wrote that they were “the miserablest people in the world.” And the image of the Aborigine was to leave no impression of excitement or significance on Cook, merely accepting the Aborigines as Dampier had earlier reported. Cook had brought with him images of indigenous peoples as noble savages, largely the antithesis of Europeans. Cook was probably also influenced by the writings of Rousseau, whose saw native peoples as unadulterated by the evils of civilisation.

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