Law Assignment Help Online Review analysis: Case study of law in context – James cook & British Australian Colonialism
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Write a case study on law and Australian Colonialism??
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Introduction
In the year 1770 Captain James Cook who landed in the Botany Bay which was the home to Eora people was the 1st acquisition by a British national. He claimed the possession of the East Coast of Australia for Britain which was under the name of doctrine of ‘terra nullius.’ This marked the beginning of the acquisition of the country and spread quite rapidly in the next century. It has been analysed that in the early 18th Century there were three ways through which the British could take the possession of another country. Those three ways were: (Austlii 1998)
- In case a country was inhabited or even had scarce population the British army claimed and settled in that country. This way they claimed the ownership of the land easily.
- In case the country had a larger settlement with many people residing the British asked for permission from the indigenous people for using some part of their land. Here Britain purchased land for their own use and not stole the land of the indigenous people.
- In a situation where a country was inhabited the British took over the country through invasion and conquest by defeating that country in war. But after winning the war British people respected the rights of the indigenous people.
In case of Australia Britain did not follow any of the above policies, however since the country already had people residing they could have taken the possession by settling in the country. But Captain Cook on his arrival could not take the possession by settling in the country. Although this was the scenario the British government always acted as if the country was uninhabited. Therefore in place of admitting that the colony was invading the land which belonged to the Aboriginal people, British acted as if they were attempting to settle in an empty land. This term has been referred to as terra nullius.
Australian Colonialism: Conquest and not settlement
Europeans and in particular the Britain government had colonized the world. The act was spurred by the cultural arrogance and greed due to which they governments tried to charge across the land and sea to establish its foot on every habitable land across the world. This was the entire approach the British followed during the 18th century. There are several complex historic trends which led to this colonialism rather than a single theme responsible for it. The concept of terra nullius which was predominant in the possession of Australia was developed to rationalize the colonial expansion. With the presumption that Australian people constituted of Aboriginal and colonial alike who had struggled over 230 years.
To simplify the term we can define it as a land which belongs to no one. The 18th century hardly had a landmass which was inhabited for the British government to capture. New South Wales was among the 1st regions where the British adopted the pragmatics of terra nullius. During the time Captain Cook had his eyes on Australia the European states were already struggling to subdue the native inhabitants in America for more than 300 years.
From the experience in the American continent the British had developed a legal framework which encouraged and accepted colonization. History suggests that Captain Cook wasn’t the person who discovered Australia as the country was habited for tens of thousands of years. Also he was not the 1st European to discover the Australian country, however with different strategies which reflect conquest as the means through which the British claimed the continent for themselves. The three initial strategies which the colony adopted to move to a newer territory include the following:
- The British government persuaded the indigenous inhabitants to submit themselves over the British government
- The British government purchased land from the inhabitants for settling in the region
- They claimed unilateral possession of the territory merely on the basis of first discovery and effective occupation.
However, when we look back in history none of the above three seems to be the strategies for the British colonization in Australia. As per the reports of Captain Cook the government turned a blind to the rights of the Aborigines as it mentioned that these settlements lived only on shellfish and dint cultivate the land of erect any permanent habitations. This described the territory to be in a pure state of nature which explained that not even an inch of cultivated land was there in the entire country. After sending the first fleet of convicts to the Botany Bay in 1787 the British were fully aware of the indigenous population. As a part of the typical display of European cultural and racial arrogance the Aborigines were not seen to be the adequate proprietors of Australian lands although they had inhabited the land for over 40,000 years. With this consideration in mind and describing them as simply primitive and happy occupants the British settlement took on a full scale invasion in the country with the convicts in the forefront. With the adherence to myth of terra nullius this meant the Australians were fighting against the opponents who dint even exist. The inhabitants also were deprived of the rights to protest against the foreign invasion in the territory where they had been living for centuries (Alrcn.d).
This step by the British government is a part of the conquest to acquire the Australian territory which is pretty evident from the acts they did. Even though the British settlement had traced the presence of cultivation and the ownership of land traditions the hostile colony did not acknowledge the same. The government issued the aboriginal forfeiture of land and took it for granted. This in turn retarded the drive for subduing the entire continent immediately. This was indeed a dominant motive for establishing its foot and forms a new Australian colony in the early nineteenth century. This justifies the lack of regard which the British had for the people they supplanted.
The New South Wales was full of convicts but it was only due to the free settlers that the colony was provided the impetus in its expansion. This continued to be the policy both in the coastlines and inland regions. The British believed that the indigenous people were inferior to the white settlers which later on became the reason for admitting that Australian Aborigines should have been granted the equal civil rights. Terra nullius was now seen as a reasonable policy which was used to foster the property rights of the people who deserved while denying them any type of property. This support for the myth spread all over by the year 1838 where the white settlers were favoured from all corners. This myth became central to the white Australian people. It was used as a basis of dictating the property ownership while influencing the structures of fundamental Australian institutions which included the government. The myth endured and grew to serve the different needs of the expanding white population. Terra nullius was surely the basis for providing the rationalization for the British invasion in Australia.
This myth aided for bringing the land fully under their control and hence legitimized their claim for effective proprietorship which was made by the physical occupation of the land. And finally with series of developments the invaders settled by a policy of peaceful acquisition through conquest and not settlement. This completed their goal of colonizing the where the white Australians started to view the continent as their home rather than Great Britain. The speed at which the white settlers were rationalizing their way in the Aboriginal land was backed by a powerful force of the state. As per the British Law officers it was stated that the part of New South Wales which was under their rule was not possessed through conquest or cession but it was possessed as it was not inhabited and desert. But the true fact was that the land was inhabited by the Aborigines. The fallacy of terra nullius worked well for the colony till the nineteenth century (NFSA n.d.).
The year 1837 had a select committee for the Aborigines in Britain who acknowledged the settlements the injustice which they being indigenous settlements had suffered. The committee concluded that native inhabitants of any land had an inconvertible right to have the ownership of their soil. It further stated the British entered the borders of the country uninvited and acted as if they were the lords of the soil. The British had also punished the natives as aggressors in case they resisted having the right to live free and own their country.
Although these were reported and were clear evidence to what had been happening this report fell into the deaf ears and saw no tangible improvements to the situation. The myth of Terra nullius prevailed and tightened its grip among the white Australian consciousness. It was only a decade later that a judge ordered the following in connection to the reports by the committee:
The circumstances of newly discovered and unpeopled territories, claimed by and vested in the Crown, on behalf of all its subjects, are so widely different from those of a populated and long-settled country…that a moment’s reflection would present them to the mind even of a stranger. The lands in new territories are unoccupied and waste, until granted by the Crown to some individual, willing to reclaim them from the state of nature. (Reynolds 68)
In simpler language the above meant that since the Aboriginal substance did not require the enclosure of the land the British had the right to take control of the lands and could continue to do so in future as well. This claim further accepted the territories in question as true to terra nullius which denied the presence of occupants, which was far from reality. This myth endured and was prevalent both legally and practically in the country. It further facilitated the moves by the white settlers and approach to indigenous issues. It meant to say that there were no Aborigines who had been living in the country before the invasion took place. This allowed the invaders to rationalize their behaviours to be settlement and not acquisition by conquest. A well-planned and mutual step by the government and the law authorities quite easily made the conquest look as if it was settlement which the British used to enter the Australian territory (Australia n.d.).
This law of terra nullius was finally freed by the year 1992 as a legal doctrine. All the anti-aboriginal sentiments restrained from the idea from time to time but the way in which the Australian people both the aboriginal and whites together chose to address the injustice prevalent for centuries abandoned the myth of terra nullius altogether (Australian History n.d).
Conclusion
The series of events and actions by the British over the 200 years depicts that the entire acquisition which was termed as settlement by the British invaders was a conquest supported by different bodies within the state which concealed the facts and reality on the ground. The abolition of the Terra nullius myth is the perfect example of the policies being a dominant establishment rather than settling in a territory which was not inhabited. So the history has in store to define this acquisition as a conquest or cession which was used by the British colony to establish its base in the Australia continent. This very well proves the assertion that the British Crown acquired sovereignty of Australia by conquest not settlement.
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