How was English law received into Australia?

First Contact between British Settlers and Indigenous Australians

• James Cook's Voyages

  • Made three voyages to the South Pacific (1768-1779).

  • First voyage: Sailed in the Endeavour, searched for the Great Southern Continent.

  • Charted New Zealand’s coast, debunking Abel Tasman’s theory that it was part of the Southern Continent.

  • Reached the Southern Coast of New South Wales on April 20, 1770, landing at Botany Bay.

  • Continued north, charting the Australian coast up to the tip of Queensland.

Secret Instructions from the British Admiralty

• Purpose of the Voyage:

  • Instructions outlined the voyage route, activities, and reporting methods.

  • Actual intentions were kept secret; official papers would be made available upon request.

  • Required to chart coasts, gather information about the indigenous peoples, and build relationships.

  • Was instructed that If he discovered that the country is inhabited, to take possession of the convenient situations in the country in the name of the king of Britain with the consent of the local habitants

Declaration of Possession

• Claim to Territory:

  • On Possession Island (August 22, 1770):

    • Cook declared the eastern coast as British territory in the name of King George III.

    • Recorded his actions in his journal, including the act of hoisting English colors and firing volleys to signify possession.

  • Observations:

    • Noted signs of habitation (many fires seen along the coastline).

    • Faced challenges in acquiring territory with indigenous consent due to fleeting contacts and perceptions of Aboriginal lifestyle.

Misinterpreting Indigenous Use of Land

• Cook's Perspective:

  • Described indigenous populations as nomadic and lacked fixed abodes, viewing their lifestyles as akin to 'wild beasts'.

  • Noted absence of established agriculture, which led to his view of the land as uninhabited.

  • He did not think first Nations people owned the land because they were hunters and gatherers and did not cultivate crops or livestock

• Claims of Ownership:

  • Cook decided to claim the eastern seaboard as uninhabited despite evidence to the contrary.

Indigenous Perspectives and Legal Systems

• Misconceptions in History:

  • Former Chief Justice Anthony Mason highlighted how historical views portrayed Aboriginal peoples incorrectly.

  • Recognition of established relationships between indigenous peoples and their land, contradicting colonial beliefs.

• Legal Frameworks:

  • Intention of British law imposed on already inhabited land; implications of territory acquisition under international law.

Theories of Territory Acquisition

• Methods Under International Law:

  • Three ways to acquire territory:

    • Conquest: Land obtained through force; Indigenous law could remain unchanged unless altered by the crown.

    • Cession: Land formally given through treaty or agreement; Indigenous law remains in force pending alterations.

    • Settlement: Implies no existing legal system; British law fills the perceived legal vacuum.

  • Cook’s actions conceptualized as settlement rather than conquest or cession based on his observations.

Terra Nullius

• Definition and Impact:

  • Latin term meaning “land belonging to no owner”

  • Concept of 'terra nullius' was used to justify British claims over land deemed empty.

  • The British inability to recognise any established indigenous legal system led to the view that the continent was devoid of legal occupancy.

  • Was the alleged moral and legal basis upon which enabled the first governor, Philip, to impose English law without acknowledgment of existing indigenous laws.

Recap of Key Points

• Explored Cook’s voyage and its assumptions regarding indigenous populations.

• Discussed legal implications regarding whether Australia was conquered, ceded, or settled.

• Examined the concept of terra nullius and its significance in the introduction of British law into Australia.