Why New Zealand Has a Treaty and Australia Doesn’t

If you have read the Uluru Statement from the Heart, or listened to iterations of the ubiquitous Acknowledgment of Country, or watched an episode of QandA discussing reconciliation, you’ve probably heard or asked yourself the question, ‘Why did Australia never sign a national treaty with the Aboriginal population’? Especially when New Zealand, discovered by the same explorer and answering to the same colonial overseers in London, signed a treaty with a large minority of their own Maori population. So, why not Australia ?

The comparison between Australia and New Zealand is pertinent and the subject of the historian Bain Attwood’s new book Empire and the Making of Native Title (Cambridge University Press, 2020). What follows are ten reasons why Australia never formed a national treaty with the Aboriginals in light of Professor Attwood’s research.

1. Aboriginal People Were Divided
   

The Crown could not form a national treaty with Aboriginal people because they were divided by language, geography and identity. Historian Geoffrey Blainey writes in Triumph of the Nomads: History of Ancient Australia,

…[T]he continent eventually had more than 300 languages, and the number would be much larger if sharp differences of dialect were included. Tasmania alone had five distinct languages. Even the two facing shores of Sydney Harbour were, in languages, far apart… the language spoken on the site of the present opera house was not spoken on the facing shore. An aboriginal paddling his canoe across to the north shore had to speak not merely a different dialect but a different language.[1]

Not only that, but the evidence for lethal fighting is overwhelming. Comparisons between Europe and ancient Australia reveal that the death rate through warfare in Northern Arnhem Land was nearly six times higher than United States in WWII. In fact, according to Blainey, the only countries that ever had a higher rate of death due to lethal conflict were the Soviet Union and Germany under Stalin and Hitler.[2] One convict who witnessed these massacres first-hand, was William Buckley. He recorded over fourteen conflicts over 32 years while living with just one tribe, the Wallarranga, on the shores of what is now Port Phillip Bay. The most common causes of violence were disputes over women and payback killings following naturally caused deaths.[3]

Tribes like the Goonyandi people were evicted from their traditional lands in today’s Western Australia by their neighbours, the Walmadjari. Significantly, there has never been a treaty signed between these two nations. Blainey argues that the loss of territory between First Nations peoples would have been a frequent event.[4]

If Aboriginal people shared no common language and were often in a state of inter-tribal conflict, then it would have been impossible for the Crown to form a national treaty with the more than 250 tribal groups at the time of settlement.

2. Australia Was Sparsely Populated

Sometimes the most obvious facts are the ones least noticed. It is often forgotten the way distance shaped the way the British Crown justified colonisation.[5] In 1785, Joseph Banks testified before a House of Commons committee investigating sites for a convict colony. Banks, considered at the time the leading authority on ‘New Holland’, claimed the British could easily and justifiably possess Australia because the Aboriginal people were so lightly populated.

Q: ‘Is the coast in general or the particular part you have mentioned (Botany Bay) much inhabited?

A: There are very few inhabitants.

Q: Are they of a peaceable or hostile disposition?

A: Though they seemed inclined to hostilities they did not appear at all to be feared, We never saw more than 30 or 40 together.’[6]

‘The Natives do not appear to be numerous’, commented James Cook, ‘neither do they seem to live in large bodies but dispersed in small parties along by the water side.’[7] As the first legal officer of NSW, David Collins asserted that the British Crown did not make claim to the entire continent, rather it ‘possessed’ small pockets of settlements along the coast.[8]

Although it is very difficult to calculate, the best scholarly research into the Aboriginal population prior to European settlement puts it around 300,000.[9] That is precisely 0.039 people per square kilometre, or 482 people covering the entire area of Sydney. In other words, the population of First Nations people in 1788 was so small it could fit comfortably into the Australian city of Newcastle today.

Britain colonised small pockets of the Australian coast and did not form a treaty with the Aboriginal people because they were so far apart both in reality and perception.

3. Aborigines had no written language to grasp and sign a treaty
   

In New Zealand, decades of European contact with Christian missionaries meant the Maori language had been published since 1815. Significantly, 25 years later, the Treaty of Waitangi was signed in the Maori language.[10] In comparison, Aboriginal people had no language that was either written down or common between tribes. This made the establishment of a treaty impossible.

The renowned anthropologist A. P Elkin makes the important point that a tribe’s language cannot be separated from its world view. The Aboriginal language writes Elkin,

[is] marked by precision, brevity of expression, an emphasis on concreteness and an endeavour to express in one word, or in as few as possible, a complete picture of the situation or desire; this is done by the inflexions of the word or words used. They are also related to the culture and cannot be understood or satisfactorily mastered without a knowledge of tribal thought, belief and custom….[11]

…Their languages belong to their own cultural world, and the words, phrases and methods of expression derive their meaning from it.[12]

Decades of missionary contact with the Maori population shaped both their language and culture leading to the formation of a treaty. Australia was untouched by comparison. Both an understanding of native title and a written language that could exchange cultural knowledge were prerequisites for a treaty. Neither was present in early-colonial Aboriginal society.

4. There Was No Preceding European Contact

One of the biggest differences between Australia and other countries that formed treaties with native populations and Australia, is the limited European contact preceding colonisation. The American historian Stuart Banner in Possessing the Pacific asked what would have happened were Australia slowly settled by a small groups ranging from traders to missionaries and sealers, rather than a large military group arriving at a single stroke.[13] The reason why the question is so important, is because it is more or less what happened in other countries that formed treaties such as Fiji, North America, Tonga and New Zealand.

In these circumstances, individuals assumed the role of mediators and often formed alliances with groups, particularly on the basis of bi-racial sexual relationships. Through the benefit of prolonged contact, Aboriginal people would have become more accustomed to European social and political structures.[14]

These smaller transactions would have created opportunities to form treaties with the Aboriginal population on a tribe-by-tribe (nation-by-nation) basis. ‘To put this another way,’ states Attwood,

the kind of triangular relationship between settlers, natives and government that typified other settler colonies, and which played a crucial role in the making of native title in those places, was absent in New South Wales.[15]

5. There Was No European Competition

 Few factors accelerate the forming of a treaty more than competition, particularly from another foreign power. ‘One might… conclude’ argues Attwood,

that if more than one European power had wished to plant a colony in more or less the same place in New Holland, the competition between these imperial powers would have increased the need for the British to negotiate with the Aboriginal people for access to resources such as land.

If, for example, the French had preceded the British and treated with Aboriginal people, the British would probably have decided that they needed to do the same.[16]

Significantly, this is precisely what occurred in New Zealand. After receiving a letter from a French envoy in 1835 which expressed their intention to declare the independence of Hokianga in the north of New Zealand, British Resident James Busbyb, at the request of the Colonial Office, formed an alliance with 34 Maori Chiefs dubbed the ‘Declaration of the Independence of New Zealand’ at Waitangi.[17]

Contrary to popular belief, the government never signed a national treaty with the entire Maori population. Instead, it was for a limited number of people on the northern island. Regardless, it was French competition that accelerated the formation of a treaty, which did not occur in Australia.

6. Britain Faced Little Resistance

It is important to consider how the Crown understood possession at the time. The government believed that military strength which could sustain a colony justified their settlement. Without military dominance, or at least the perception of it, the government would have likely signed a treaty with the Aboriginal people. In the same House of Commons inquiry referenced earlier, Banks was asked about Aboriginal military strength:

Q: Do you think that 500 men being out on shore there would meet with that obstruction from the natives which might prevent their settling there?

A: Certainly not-from the experience I have had of the natives of another part of the same coast I am inclined to believe they would speedily abandon the country to the newcomers.

Q:Were the natives armed and in what manner?

A: They were armed with spears headed with fish bones but none of them we saw in Botany Bay appeared at all formidable. [18]

Nine months after settling, the Home Office relayed the message that they were facing such little resistance because of the superiority of British arms.[19] British military strength meant the government ‘saw little if any need to pay attention to the sovereignty let alone rights in land, of the native people’ argues Attwood, ‘and so it did not.’

7. New Zealand Colonists Had Already Claimed Land

The colonial office not only competed with foreign empires for sovereignty, but also their own people. Unlike Australia, the New Zealand Colonisation Association had already purchased large areas of land in the southern region prior to the government forming a treaty with Maoris. As a result, the government set up the Land Claim’s Commission which reviewed every transaction prior to 1840.[20] In the following decades, the company and the government had a bitter public dispute about who had the right to acquire land from the Maori. As a result, the Colonial Office embraced the Treaty more than it had ever done before.[21]

In other words, the Treaty of Waitangi became important because both sides found it useful to accuse the other of improperly acquiring land from the Maori population.  By contrast, Australia did not have to negotiate or compete with settlers who had already privately negotiated with the natives. Therefore, it did not require to make or place importance on a treaty that was the result of a political dispute.

8. Aboriginals Did Not Own ‘Property’

‘There can be no doubt’ writes Attwood, ‘that some colonists believed that Aboriginal people had been the original possessors of the land and that consequently they had a moral duty to ensure that the natives were recompensed.’[22]

So why did they not form a treaty if they saw them as the original owners? Put simply, Aboriginals did not have a concept of land ownership, let alone of treaties. Indeed, it would be more accurate to say that, seen through Aboriginal eyes, the land owned them.[23]

Secondly, Aboriginal people were seen to have a natural right to their land but did not have any rights of property in it. In other words, they were protected as occupants but not negotiated with as land holders. For example, the Letters Patent (a legal instruction from the monarch) sent from the Colonial Office to the Colonisation Commission of South Australia, wrote that any Aborigines enjoying and occupying SA territory but declined to sell it must be secured and afforded proper legal redress to trespass and depredation.[24]

Yet, it should go without saying, the letters patent was ‘offered in the belief that the Aboriginal people did not occupy, enjoy or possess the land in a manner that gave them title, and so they would never be found to have any rights of property in land.’[25] It was this lack of Aboriginal property rights which meant the Australian government didn’t need to negotiate a treaty, even though it recognised their position as natural occupants.

9. Aboriginals Were ‘Hunter-Gatherers’, Not Farmers

‘While many aboriginals spent every month of their life in their traditional territory’ writes Geoffrey Blainey, ‘others might spend most of their life in alien territory’[26] It would have been impossible to sign a treaty with a people who lived across areas they did not even call home.

As the Australian anthropologist Peter Sutton proved in his most recent book, Farmers or Hunter-gatherers? The Dark Emu debate, Aborigines also sourced their food and exercised their labour in a very different way to Europeans.[27] Whereas European’s farmed their own crops and cattle by working the land, Aboriginal people gathered and hunted food which they believed was maintained through spiritual practices i.e. ‘increase ceremonies’. As Attwood acutely points out,

Phillip’s administration never perceived any need to negotiate for access to land. This can be attributed to several factors. The colony merely comprised a small garrison settlement and so had little need for land beyond the beachhead it occupied … its administrators believed that the Aboriginal people’s principal source of food lay in the waters of Botany Bay and Port Jackson rather than on the surrounding land.[28]

The fact that Aboriginals were not farmers (despite what Bruce Pascoe would have you believe) nullified the need to negotiate a treaty in certain areas based on the different forms of gathering of food and occupation of land.

10. Aboriginals Had No Concept of a Treaty

One of the biggest barriers between Philip and his first contact with Aboriginals was the inability to exchange goods. More precisely, there was no concept in the Aboriginal worldview that associated the ownership of land with a formal treaty of exchange. As Attwood points out, it was extremely difficult for Philip to exchange anything with local tribes, let alone land.

In the beginning, Phillip’s party found it difficult to forge a relationship with the Aboriginal people. Indeed, several months after the British had landed, Phillip reported that the local people repeatedly avoided them. In due course, a good deal of cross-cultural exchange did in fact occur… But this did not radically alter Phillip and his senior officers’ perceptions of the Aboriginal people because they were unable to grasp the various dimensions of that exchange.[29]

The lack of relationship negated the necessity and more importantly the ability to form a treaty. It is anachronistic to argue that Aboriginal people knew what a British treaty was, let alone having the relationship to sign one.

The dubious case for a treaty

All of the above factors are reasons why Australia did not form a national treaty. This was not preordained or based on abstract legal doctrines. Rather, it was historically contingent to the circumstances the colony found itself in, and unravelled over time, based on the political nature of colonisation and the relationship they had with the Indigenous population.

Whether it is historians or activists who ignore the complexities of our history without considering the proper context the British found themselves in after 1788, Australians should be cautious about calls to form a national treaty. For instance, with whom would we sign the treaty? Not only are many Aboriginal people today of mixed race, but Aboriginal people themselves represent hundreds of different “nations”.

As I hope  this article has demonstrated, it would have been neither right nor wrong to sign a treaty in 1788. The government at the time lacked the need and ability to form one. Australia already has over 800 regional treaties with indigenous groups. As Peter Sutton points out, these land grants have made no difference to social outcomes.

A national treaty cannot change the crimes of the past and the disadvantages of the present. Forming one would not unite us but divide us.

[1] Geoffrey Blainey, Triumph of the Nomads: History of Ancient Australia. London: Palgrave Macmillan Limited, 1976, p. 31.

[2] See Geoffrey Blainey chapter Duel and Battle in The Story of Australia’s People: The Rise and fall of Ancient Australia. Vol. 1, Penguin Group Australia, 2015.

[3] William Buckley, and Tim Flannery. The Life and Adventures of William Buckley. Text Publishing, 2002.

[4] Blainey, Duel and Battle in The Story of Australia’s People.

[5] See Geoffrey Blainey, The tyranny of distance: how distance shaped Australia’s history. 1966

[6] Examination of Joseph Banks, Minutes of Committee of House of Commons Respecting a Plan for Transporting Felons to the Island of Lemain on the River Gambia, 10 May 1785, TNA, HO 7/1; Quoted from Attwood, Empire, pp. 28-9.

[7] J. C. Beaglehole, The Journals of Captain James Cook on his Voyages of Discovery, vol. 1, Cambridge University Press/Hakluyt Society, Cambridge, 1955, pp. 312; Quoted from Attwood, Empire, pp. 27.

[8] David Collins, An Account of the English Colony in New South Wales, T. Cadell, London, 1798, vol. 1, p. 8; Frost, ‘New South Wales’, pp. 521-22; Quoted from Attwood, Empire, pp. 20.

[9] A. R. Radcliffe-Brown, ‘Former Numbers and Distribution of the Australian Aborigines’, Commonwealth Official Year Book, 1930, no. 23, pp. 687-96.

[10] Attwood, Empire, pp. 142-8.

[11] A. P. Elkin, (Adolphus Peter). The Australian Aborigines: How to Understand Them. 4th ed. Sydney: Angus and Robertson, 1964, p. 26.

[12] Elkin, The Australian Aborigines, p. 29.

[13] Stuart banner, Possessing the Pacific: Land, Settlers and Indigenous People from Australia to Alaska, Harvard University Press, Cambridge, MA, 2007, p. 26; Quoted from Attwood, Empire, pp. 37.

[14] Attwood, Empire, pp. 37.

[15] Attwood, Empire, pp. 39.

[16] Attwood, Empire, pp. 38.

[17] Thierry to Busby, 14 September 1835, National Archives of the United Kingdom, Colonial Office, New Zealand Company Records 209/2; Busby to McLeay, 10 October 1835; The Declaration of Independence, 28 October 1835, TNA, CO 209/2; Quoted from Attwood, Empire, pp. 114-5.

[18] Examination of Joseph Banks, 10 May 1785; Quoted from Attwood, Empire, pp. 28-9.

[19] Attwood, Empire, pp. 36.

[20] Attwood, Empire, pp. 197-8.

[21] Attwood, Empire, pp. 338.

[22] Attwood, Empire, pp. 40.

[23] See preface to Elkin, A. P. (Adolphus Peter). Aboriginal Men of High Degree. 2nd ed. St. Lucia, Q: University of Queensland Press, 1977.

[24] Draft of Letters Patent, TNA, Colonial Office Correspondence South Australia 13/3; Quoted from Attwood, Empire, pp. 83.

[25] Attwood, Empire, pp. 86.

[26] Geoffrey Blainey, Triumph of the Nomads, p. 29.

[27] Sutton, Peter, and Keryn Walshe. Farmers or Hunter-Gatherers? The Dark Emu Debate. Melbourne: Melbourne University Publishing, 2021; Contra Bruce Pascoe, Dark Emu (Magabala, 2018). See Peter Sutton, Farmers or Hunter-gatherers? (Melbourne University Press, 2021).

[28] Attwood, Empire, pp. 36.

[29] Attwood, Empire, pp. 36; See, Phillip to Sydney, 9 July 1788, HRA, series 1, vol. 1, p. 49; Phillip to Secretary Stephens, 10 July 1788, HRA, series 1, vol. 1, p. 62; Phillip to Sydney, 28 September 1788, HRA, series 1, vol. 1, p. 76.