January is here and the invasion versus settlement debate is back making news headlines. The Prime Minister wants to keep Australia Day as it is while the Greens are calling for the date to be changed. We’ve all heard the generic talking points. Team ‘Invasion Day’ says 26 January is offensive to some Australians. Team ‘Australia Day’ says 26 January is a day for all Australians regardless. Yet there is a fundamental point which goes to the heart of this debate that literally no one, to date, seems to have picked up on. Hence, this article.
Native title can only exist if Australia was settled, not invaded. Why? Because international law recognises all territories acquired through invasion and annexation by force, prior to World War II, as lawful conquests. This ‘Right of Conquest’ doctrine was first conceived by the International Law Commission of the United Nations and later adopted as UN General Assembly Resolution 3314. Provided that all citizens of a lawfully conquered territory are granted equal rights by the local law, international law doesn’t consider the descendants of the conqueror and the conquered as two separate peoples. This in turn invalidates any claims to separate land rights under the same jurisdiction. As one of the 193 member states of the United Nations, Australia is not exempt from this doctrine.