Letters Patent, Native Title and the Crown in South Australia
… Provided always that nothing in those our Letters Patent contained shall effect or be construed to effect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendents of any Land therein now actually occupied or enjoyed by such Natives…
Letters Patent, 18361
While the colonization of South Australia will thus afford the means of protecting the ‘Aborigines’ from personal violence, the locations of the colonists will be conducted on the principle of securing to the natives their proprietary right to the soil, wherever such right may be found to exist.
First Annual Report of the Colonization Commissioners for
South Australia, 18362
The 1834 Colonization Act3 and the subsequent Royal Proclamation contained in the Letters Patent of 1836 are the markers for the formation of the colonial Province of South Australia. Collectively, the documents set out the geographical boundaries of the colony, determine the establishment of the Colonization Commissioners to oversee the founding of the colony and provide for various other economic, social and political directives including the recognition of Indigenous people’s proprietary rights to land. In their First Annual Report, the Colonization Commissioners devote two pages to the ‘treatment of Aborigines’.
Soon after the lodgment of this report, there followed the familiar colonial pattern of seizing Indigenous people’s land and the cultural, social, economic and political marginalisation of Indigenous peoples.4 In South Australia, land appropriation occurred without treaty settlement or compensation, and in this chapter we examine whether land and water were properly acquired from Indigenous persons living upon the land on or about the time of the Act in order to make South Australia a British province. This chapter then looks at current issues relating to continuing settlement and the unresolved issues of Indigenous property rights and Native Title, including approaches to negotiating Indigenous land use agreements (ILUAs) in South Australia. We conclude by outlining the effort of the Ngarrindjeri Nation5 to engage a fairer system for negotiated settlement using current international examples of best practice.
In 1928, Ngarrindjeri man Rueben Walker wrote an account of his life for the South Australian Museum’s ethnologist Norman B. Tindale.6 Walker witnessed the early years of the British invasion of his people’s land. He was raised by his grandparents and saw the pain of loss through the eyes of their generation. In his life history, he took the opportunity to ask a question that generations of Indigenous people in Australia have asked: ‘Is there anything that the white fella got that he didn’t steal?’7 It is a question that is both provocative and provides a direct insight into the issues addressed in this chapter.
Our common sense dictates that when asked whether land acquisition was proper or not, the answer should be: if a person or group owns land, it needs to have acquired the land from another as the result of a consensual act.8 Further, our own sense of fairness demands that the law should intervene if property or rights are acquired other than by a consensual act. This notion is manifest in numerous laws that we all live by on a day-to-day basis. It is a cornerstone of our existence and fosters acquisition of land by fair means. For us to be comfortable with ourselves, we must know that a consensual act presupposed the creation of the Province of South Australia.9
In South Australia, the process of non-Indigenous settlement continues with unresolved issues concerning Native Title and property rights for Indigenous peoples. In 1999, the State government, the Aboriginal Legal Rights Movement (SA), the SA Farmers’ Federation and the South Australian Chamber of Mines and Energy developed a statewide approach to negotiating Indigenous land use agreements.10 ILUAs are being presented to Indigenous nations as a fair and reasonable process for negotiations between the Crown and the Indigenous claimant group as a form of settlement for past grievances. Indigenous nations such as the Ngarrindjeri are considering the implications of negotiation with the State through this statewide process and, in doing so, are paying attention to the complexities of the position of Indigenous peoples within historical national and international contexts. Critically exploring national and international examples in relation to issues of, and processes for, negotiated ‘settlement’ are increasingly important to the Ngarrindjeri leadership in order to establish benchmarks for better practice.
Since 2001, the Ngarrindjeri Nation has independently negotiated agreements with local councils, industry groups and institutions that provide recognition for traditional ownership of lands and waters. These agreements have been termed Kungun Ngarrindjeri Yunnan (KNY)11 agreements. The agreements are based on a principle of recognition. They set the foundations for new relationships and usually contain an apology that recognises the injustices done to the Ngarrindjeri Nation.12 The KNY agreements are in the spirit of the call for treaties between Indigenous and non-Indigenous Australians. As Pat Dodson said in The Wentworth Lecture, 2000:
For Aboriginal Australians the hope has always been for governments to enter into serious dialogue about our position in the nation and for the constitution to recognize us as the first Australians, with our Indigenous rights, obligations and responsibilities respected and recognized. There has never been any agreement about how we might progress this fundamental dilemma. They have been met with obstruction and deferral. The reasons often given have been that the electorate will not support them to do so.13
One of our greatest challenges is to work out individually and collectively how to respond to these issues. This can be doubly challenging for us because we live in a very limited democracy under which there are only two political parties to choose from; it is especially so if there is no discernible difference between their respective views on particular issues. It means that the legislature, the structural limb of our government that is charged with responding to our issues, cannot or will not respond. We are left to our own devices, to work it out ourselves, without leadership, without focus, but with the distraction of the background political noise of different views and different arguments. And so, on one level, both Native Title and the ILUA process are described as efforts aimed at practical reconciliation and reconstruction of a nation through a new relationship. This ‘new’ relationship, though, is being developed under existing infrastructure. It is a product of the colonial infrastructure that is based on a singular sovereign, where the primary focus is upon protecting the construction of singular Crown sovereignty.
In such a complex environment, where Indigenous interests are secondary to State interests, we need to make some aspects of the matter as simple as we can. We need to recognise plainly that some things have occurred that are simply wrong, morally and/or legally, and that responsibility needs to be taken for these wrongs. To this end, we can hope to better understand ourselves, inform our discussion and make better decisions, so that response to wrongs are not reinscriptions of colonial processes.
Surprisingly, to our knowledge, this issue of a wrong has not been considered in any depth by our courts and the limited number of works that deal with the issue tend to be historical rather than legal. These historic texts do not exist for the purpose of determining the relevance of facts to the legal causes of actions. They assist by providing us with a guide to documents and sources that will need to be checked and contextualised for our own purposes.
For example, there appears to be a clear indication in the relevant legal documents existing around and after the creation of the Province of South Australia that consent was required from Indigenous Australians prior to land being acquired. What was the legal basis for the required consent? If consent was not based upon legal protection, was it simply a matter of ‘good politics’ in dealing with existing inhabitants?
Further, to understand the context of the advice and decisions being made at the relevant time, the context of those decisions from a legal perspective must be understood. For example, if the Crown Solicitor provided advice to the Colonial Office that land could only be acquired by consent of the Indigenous people, what was the relevant law that gave force to that advice?
We need to begin exploring the issue from a legal perspective in order to ensure that there is a greater potential for justice to be achieved, or alternatively, if the facts do not bear the issue out, for the matter to be put to rest. Our contribution will be to provide a platform for further investigation, and the basis for a discussion of the topic in the legal and broader community. It is not presupposed in our analysis that we can provide a full explanation of the issues at this time or that we can, without undertaking a thorough analysis of the primary materials, provide more than a directive to further and better understanding of the issues.
Acts, instructions and Letters Patent
The Ngarrindjeri analysis of the complexities of the position of Indigenous peoples within national and international legal frameworks has raised questions about the establishment of South Australia. These questions have been necessary because the relationship between Australian governments and Indigenous people is often fractured as a result of imbalances in power, and the unwillingness of Commonwealth and State governments to address the institutional and constitutional basis of colonial societies. This position enables the protection of their legitimacy in controlling Indigenous peoples and their rights, interests and cultures. Hence, there is always a struggle, which is incapable of resolution other than by Indigenous Australians giving way to the expression of Australian governmental control. This is borne out in the manner and form of the creation of the Province of South Australia and the response by the South Australian government in its dealing with Indigenous Australians.
The Crown was authorised to create the Province of South Australia by Act 4 & 5 William IV, Cap 95, 1834 (South Australia Act 1834 (UK)), which was assented to on 15 August 1834.14 South Australia was the only British colony to be authorised by an Act of Parliament; all other British colonies had been established by Executive action.15
The Preamble of the South Australia Act 1834 declared that the area of southern Australia ‘consists of waste and unoccupied lands which are supposed to be fit for the purposes of colonization’.16 This Act provided for the appointment of three or more commissioners to execute certain parts of the Act.17 The Colonization Commissioners for South Australia18 were ‘empowered to declare all the lands of the said province … to be public lands open to purchase by British subjects’.19
The Province of South Australia was established and its boundaries defined by Letters Patent issued on 19 February 1836, pursuant to the power vested by the South Australia Act 1834. The Letters Patent contained the following proviso:
Provided Always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives.20
The Colonial Office insisted that the colony could only proceed subject to the land being purchased from the Indigenous population and that such transactions were to be supervised by a government-appointed protector.21 In response, the Commissioners prepared a draft plan ‘for securing the rights of the aborigines, and arrangements for purchasing the land of the natives’.22
The Commissioners discussed the treatment of Aboriginal people in their First Annual Report to the Colonial Office.23 They stated:
We propose that the cessions of territory over which the Aborigines may have any proprietary right shall not only be perfectly voluntary upon their part, but shall be considered as involving a stipulation that the Aborigines by whom the ceded lands may have been occupied or enjoyed shall be permanently supplied with subsistence, and with moral and religious instruction.24
They also said that the process for the management of the protection of Indigenous proprietary rights would be such that:
The Colonial Commissioner is required to furnish the Protector of Aborigines appointed by your Lordship with evidence of the faithful fulfillment of the bargains or treaties which he may effect with the Aborigines for the cession of lands which they may have occupied or enjoyed; and it will be the duty of the Protector of Aborigines not only to see that such bargains or treaties are faithfully executed, but also to call upon the Executive Government of the Colony to protect the Aborigines in the undisturbed enjoyment of the lands over which they may possess proprietary rights, and of which they are not disposed to make a voluntary transfer.25
The South Australia Act 1834 was amended by Act 1 & 2 Victoria, Cap 60, 1838 (UK) (1838 Act (UK)), which was assented to on 31 July 1838. The Preamble of the 1838 Act sets out the proviso contained in the Letters Patent in relation to the rights of any Aboriginal natives.
South Australia’s second governor, George Gawler, pushed for a policy of creating reserves for the exclusive use of the Aborigines in every district that came up for sale.26 The Select Committee on South Australia recommended the creation of reserves in South Australia of ‘any lands which it may be found necessary so to reserve and set apart for the occupation and subsistence of such Aboriginal Inhabitants’.27 The following year, 1842, the Waste Lands Act was introduced, which provided that land could be exempt from sale or reserved ‘for the Use or Benefit of the aboriginal Inhabitants of the Country’.28
The Waste Lands Act (Act 5 & 6 Victoria, Cap 36, 1842 (UK), which was assented to on 22 June 1842, established a system of disposing of the ‘Waste Lands of the Crown’29 in the Australian colonies. The Waste Lands Act provided that land could be exempt from sale or reserved ‘for the Use or Benefit of the aboriginal Inhabitants of the Country’.30 The Act authorised and required the governor in each of the colonies to convey and alienate any waste lands of the Crown to the purchaser(s).31
The South Australia Act 1842 (Act 5 & 6 Victoria, Cap 61, 1842 (UK)), which was assented to on 30 July 1842, repealed and replaced the South Australia Act 1834 and the (amended) 1838 Act.32 The South Australia Act 1842 provided for the government structure in South Australia to be the same as other colonies.
The Colonization Commissioners were directed that dealings with Aborigines (sic) should have the following objectives:
… to guard them against personal outrage and violence; to protect them in the undisturbed enjoyment of their proprietary right to the soil, wherever such right may be found to exist; to make it an invariable and cardinal condition in all bargains and treaties made with the natives for the cession of lands possessed by them, in occupation or enjoyment, that permanent subsistence shall be supplied to them from some other source…33
In each of these references there is a presupposition that the land is owned by the Indigenous inhabitants. An examination in relation to the basis of this presupposition is required. It is noted that there has been a view expressed that, because of the inconsistency between the Letters Patent and the South Australia Act 1834, the former referring to Indigenous inhabitants and the latter referring to the land being ‘waste and unoccupied lands’,34 the former has no legal force. Further, we note that the reference to the rights of Indigenous inhabitants in the 1838 Act was included in the Preamble. That said, the Waste Lands Act 1842 and The South Australia Act 1842 refer to the rights of Indigenous inhabitants in a manner consistent with the requirement of consent for the acquisition of land.
There has been some judicial consideration of the Letters Patent and their legal status. However, these cases have been in relation to land rights claims in the Northern Territory. The Northern Territory was not part of the Province of South Australia when it was established. The Letters Patent have been held only to have application to land within the boundaries of the Province of South Australia at the time of establishment.35
In Milirrpum v Nabalco Pty Ltd, Blackburn J considered whether the Letters Patent were a constitutional guarantee of Aboriginal rights. After concluding that the proviso only related to ‘lands therein’, meaning ‘land within the boundary of the Province as defined in the Letters Patent’,36 he went on to state: