Inconvenient fact: Native title can only exist if Australia was settled, not invaded By Sherry Sufi

     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.

     Yet we do recognise separate land rights because the historic Mabo Decision in 1992 rested on the correct presumption that Australia was settled, not invaded. In their ruling, Justices Brennan, Deane, Gaudron, Toohey, Mason and McHugh acknowledged that native title could have been intentionally extinguished by the use of government powers, but wasn’t. They proceeded to reject the ‘terra nullius’ doctrine without overturning the traditional view that the Australian landmass had in fact been settled. Had Australia actually been invaded, the descendants of its native population would be classified as a conquered people and their land rights would be abolished under UN Resolution 3314.

     Greens leader Richard Di Natale might like to explain to the Australian people why he is attempting to undermine native title by implying that Australia was invaded and conquered. On 26 January 1788, there was no sovereign state on the landmass we today call Australia. The land was sparsely populated with disparate nomadic tribes without a written language and a central government. Captain Arthur Phillip’s arrival with his group of disease-stricken poorly-fed convicts in their new prison colony, on territory claimed for the British Crown seventeen years earlier by explorer James Cook, does not constitute an “invasion”. Far from the brutal instincts of actual invaders like Napoleon or Hitler, early British settlers built a colony that was surprisingly harmonious and committed to justice.

     As the first Governor of New South Wales, Phillip developed a fondness for the native Eora people in his new colony at Port Botany. He befriended native man Woollarawarre Bennelong who became the first native Australian to be escorted to England to meet King George III. The federal seat of Bennelong held by former Prime Minister John Howard for 33 years is named after him. Phillip once forgave a native for stealing his shovel because he understood that in native culture people shared what they had and there was no concept of exclusive personal belongings. Hardly the attitude of an invader. In 1816, Governor Lachlan Macquarie appointed native leaders to act as conduits between settlers and natives. He welcomed the natives who aspired to be part of the new colony. Hardly the attitude of an invader. Violent clashes were the exception, not the norm.

     At Myall Creek in 1838, some 30 natives were killed by 10 settlers and an African in Bingara, New South Wales. The perpetrators were trialled, 7 of the 11 involved were found guilty of murder, and hanged. The rule of law prevailed. Hardly what happens in invaded countries. Whether Australia’s colonisation by the British Empire should be classified as an invasion or settlement is not a question of mere semantics. It’s a question that holds serious legal and political consequences for our country. For most Australians, this debate is as settled as Australia itself on 26 January 1788. American President Abraham Lincoln once said “a house divided against itself cannot stand.”

     Let’s unite to recognise that 26 January is a celebration of a democratic story that would be incomplete without the Mabo Decision. Let’s never again disparage native title by referring to our settlement as an invasion. Happy Australia Day 2018.