Critical examination of the assertion that the British Crown acquired sovereignty of Australia by conquest not settlement:

Introduction:

The history of the Australian settlement of the British has been colorful to say the least. The British came to the Australian continent in the year 1788 and with that they brought in a lot of issues for the general population of the local people. This settlement of the British though friendly at first soon started to interfere in the functioning of the local area and this laid roots for the foundation of the British colony of Australia[1]

Although the matter looks straight forward when looked at in this way there is a lot of dispute in the matter that has not been addressed even in the many years since the Australian state was formed and they were free from the British rule².

The matter of dispute remains that wither the British acquired Australia as a conquest or as a settlement. The debate is arisen due to the fact that many aborigine communities argue that their rights and their laws were not taken into consideration by the British and this has resulted in the loss of their own customs and laws.  To critically examine this claim first there should be clarity regarding the difference between the two. And this can be cleared by understanding the definitions of the two types of claims.

The two colony types have a lot differences between them. The settled colony where the land is deserted and uncultivated, is claimed by right of occupancy, and conquered or ceded colonies. The major difference between the two colonies remains that there when another nation acquires land in another[2] part of the world where they do not have any kind of previous authority they can acquire two types of land types. One is such where the land is uncultivated and there do not reside there any socialized people who do not have laws of their own. In such a case the British rule would commence and the laws of the British would be applicable as soon as the British colony was founded. IN such a case the local laws would not mean anything to the rule books. Such a kind of colony is characterized under the settlement basis where the new settler’s laws become applicable as soon as they settle down. The second form of colony is the conquest from where the land where the new settlers wish to settle down in is already home of a social group of inhabitants who have laws and regulations of their own. In such a kind of settlement the new settler becomes the conqueror and the laws of the original populace remain in affect unless and until they are changed.The British and the Australian scenario are highly complicated when it comes to the basis of this debate. The initial contact by the British had been for the purpose of asserting their own laws and regulations on the local population. The British wanted that the local population should be under them and that they should follow their own legal laws. This could only have been done if they made sure that the colony came to be known as a settlement and this is proven below. Also by making their colony seem like a settlement the British not only enforced their own laws on the land but destroyed the local laws and regulations that had been put into place by the Aborigines.

The Australian Debate:

The debate about the existence of the colony as a conquest or as a settlement has been a raging topic since the time the Australian state came into existence. The various views have been debated and have been dissected through the ages to enable the current Australian laws to ascertain wither the colony was a conquest or was it a settlement. Few views on the debate can be found below.

According to the Privy Council in the Cooper vs. Stuart case[3] they states that the New South Wales state has been regarded as ‘a tract of territory, practically unoccupied, without settled inhabitants or settled and, at the time when it was peacefully annexed to the British dominions’.

As per the view of Chief Justice Gibbs of Australia, the Australian colonies have to be considered as a part of the British Empire through means of possessions by settlement and not by conquest. He states that the way in which the Australian colonies became a part of the Empire is not important but the fact that they did become a part which is more important. He states that in the past there was a basis on which the laws of a new settlement were decided. And it is for this purpose that there was a distinction brought in by the European law which stated that the new settlements have to be characterized according to the people that resided in those colonies. If the colony already had a populace that had a social custom then the laws of that particular society shall be maintained till the time they are changed. However of the land is home to a populace which is uncivilized and does not have any sort of social custom or the land is free from any populace then the laws of the settlers shall come into place and according to Judge Gibbs Australia has always been considered as a colony where the British settled and did not conquer.

Another Judge however has a separate view of the whole scenario. According to Justice Jacobs neither Cooper v Stuart nor Milirrpum settle the point on this debate. And thus it should be observed that both cases cannot be considered as an apt example of the whole scenario. According to the Justice Although the Privy Council referred in Cooper v Stuart to peaceful annexation, the aborigines did not give up their lands peacefully[4]:  they were killed or removed forcibly from the lands by the British forces or

 The European colonists in what amounted to attempted (and in Tasmania almost complete) genocide. The statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of aborigines’ land.

This point of view on part of the Justice has created a diversified set of view points on this topic of the British rule of Australia as a conquest not settlement and thus this has resulted in the debate which has been going on since the formation of the country.The debate is not restricted only to the judicial members of the Australian Society[5]. The Select Committee of the House of Commons on Aborigines in 1837 stated that the British took the land of the Aborigines away from them by brute force and they did not allow them to govern themselves by their own laws and regulations. The committee also stated that the member of the Aborigines race shall have to be provided with equal status and should not be restricted in any matter whatsoever. The committee also stated that there has to be a consistency with the laws that govern the Australian state and that there should not be any form of discrimination and this can only help to fuel the conquered or settled debate as local laws can only be applicable when there is a settlement previously and the new settlers are conquerors. Thus this is another aspect of the debate which has to be considered.

There have not been just justifiable claims but also some theories which state that Cook, the explorer who first came to Australian shores, was secretly instructed to meet with the local populace but was also instructed to plant along such evidence that makes it such that the British settlers were the first settlers in better part of the country and hence they were a settlement and not conquerors. These claims then would be the basis on which the British could claim that they were settlers and that the rules and laws of the Aborigines cannot be termed as the governing laws of the country. And thus they can use their own laws and systems to create a stronghold on the colony

The last view point on this particular debate is that the basis for this debate is the fact that the Aborigines argue that their customs have not been considered while deciding the laws of the country in which they live[6]. They argue that even the current laws that have been put into place after the Australian state attained independence from the British is not considering the laws that existed before the British settlers came in and forced the local population into submission. And by doing this they also forced the local laws and customs into submission and by making Australia as a settlement they destroyed the laws and customs that the Aborigines put into place before.

These viewpoints help to understand that there are a lot of various opinions regarding this debate. Some of these people state that the laws state that the country was a settlement and thus it should remain as such. Some state that the country was conquered and that the Aborigines community was stolen and coerced out of their lands[7]. This point is as many consider the main focus on which  the current aborigines argue on and the point on which they state that even their community laws should have a say in the law system of the country that they reside in.

The aborigines have been fighting for their right to the law of the country and this is something that is cannot be considered as wrong as legally they have the right to fight as it was the scenario at that time that the British Empire was in its full power and they by using that power made the local populace the victims of the removal of the existence of their laws and their customs and this was something that should not have occurred and this is something that should be corrected by the Australian law body as soon as possible.Conclusion:

The debate has been going on ever since the British came to the Australian shores[8]. They laid seeds for an issue that has been spreading since that time. There appears to be no solution to this debate in the near future. The Aborigines are adamant on the fact that their claims to changes in the laws are more appropriate than many people believe so and this can also be stated as a fact that they were the original settlers in the country and that their laws and regulations have to be given importance over the others. However as Justice Gibbs said that the belief that Australia was a settlement of the British empire[9] and not a conquest is the basis on which the Australian laws and regulations have been formed and changing that basis would mean that the law of the country shall have to created from scratch and this shall be too big a task for the country.

However the claims of the Aborigines community cannot be avoided in today’s world[10]. There has to be some steps taken to provide them with the justice that they have been denied since the time the British came to their shores. Thus keeping this in mind a committee has been formed that shall have to look into this very matter. The committee shall have to look into the various laws of the community that were overlooked since the beginning and which now can be absorbed into the law system of Australia. This committee shall not be trying to give justice to the community on all that has happened over the years but shall try to create such an environment for the community that their laws and regulations too shall have a place in the law system of the country and that they do not have to consider their culture as lost

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