The 26th of January Controversy

[nomadpete]

1 hour ago, Jerry_Atrick said:

I agree the first fleet probably didn't think they were displacing anyone.. However, the High Court of Aus, begs to differ that Cook (and I guess the first fleet) took sufficent steps to ascertain whether they were or not..

My opinion is that the courts are making judgements based upon present culture and modern attitudes.

 

I consider that in the accepted culture of nomadic tribes worldwide, the tribes generally do not have any concept of land 'ownership' that translates to modern concepts of property. So early settlers would not have been able to negotiate a practical agreement anyway.  Rather, in their culture they are owned by the land, or simply part of the land. At best, the tribes consider themselves to be transient custodians of the cultural totems. Modern westminister law fails to deal with concepts like that.

 

And to use modern law to make judgements is (in my opinion) an admission that the invaders (if you want to call us that) have won, and the modern Australians are totally ruling the continent.

 

The question remains, would any attempt to negotiate a settlement agreement with the nearby indigenous have resulted in a useful nationwide binding document (which would have impacted 176 different tribal language groups)?

 

I argue it was not possible.

Not back then, and still highly unlikely today. We couldn't  even get the remaining groups to agree about a common voice in modern government.

[nomadpete]

 The simplest answer is to cancel the 26th Jan public holiday. It really is not worth all the divisive argument. As a nation, Australia probably has way too many public holidays anyway. And many, including 26th Jan, are not needed.

[willedoo]

I see on the news this morning that Melbourne now has a statue of Captain Cook's feet.

 

[red750]

I see from Facebook that native Americans are protesting at being dispossessed from their tribal lands.

[willedoo]

Captain Cook will be challenging to fix. I don't know much about bronze casting but I'd assume the statue is hollow. If that's the case maybe they could glue the feet and base back on, turn it upside down and core fill it with some steel reinforced material. I think the lime in concrete would not be too good with bronze, so some type of resin perhaps. With a steel reinforced core, it would be harder for the vandals to saw it off again.

[onetrack]

In the greater scheme of things, the vandalisation and protests have to be considered as being from a tiny, permanently angry minority, who seek and gain notoriety and publicity for their angry acts - and who are not representative of the majority of Australians.

 

They should be viewed as the common criminals they are, the same as the angry anti-vaxxers attacking chemists because they sell vaccines. They're small-time thugs intent on holding society to ransom, so their personal grievances can be compensated for on an outrageous scale - along the lines of Brittany Higgins massive (reportedly $2.4M) payout, (all based on legal manipulation and "covering our a*****). 

 

We had a similar "Aboriginal activist" here in W.A. - a constantly angry, abusive and objectionable individual named Robert Bropho, who objected to anything any white person proposed that even remotely affected W.A. Aboriginals, constantly making outrageous claims, and calling for boycotts, massive compensation claims, and indulging in a multitude of stunts for publicity.

 

The bottom line is Robert Bropho was eventually found to be little more than a permanently angry common criminal, and an abusive paedophile, and he spent many years in jail, and ended up dying in jail. Even when being sentenced for just a small portion of the crimes he committed, he still claimed, Trump-like, that he was being persecuted, and that he was the Australian equivalent of Ghandi or Martin Luther King.

 

Edited January 25 by onetrack

[Litespeed]

It is irrelevant to say Cook didn't really invade.

 

 

 He did under instructions from the queen take possession but was meant to get agreement and make treaty which he did not .

 

they used force whenever necessary or not and killed any who challenged them.

 

don't forget they even paid bountys to kill the locals.

 

the colony was to replace America which was also invaded under friendly auspices.

 

was Tasmania invaded? They purposely tried to kill every last native on the island.

that is total genocide.

 

the argument of Terra nullis was bullshit and they knew at the time.

[willedoo]

19 minutes ago, Litespeed said:

It is irrelevant to say Cook didn't really invade.

 

 

 He did under instructions from the queen take possession but was meant to get agreement and make treaty which he did not .

It was the Queen's grandfather, King George 3rd. at the time (the mad one). Queen Victoria was born forty nine years after Cook's landings.

[Jerry_Atrick]

5 hours ago, nomadpete said:

My opinion is that the courts are making judgements based upon present culture and modern attitudes.

That's an opinion... On what basis, though? Have you read the court reports or even the judgement itself? I think it is fair to say the press is less than unbiased in its treatment of news.

 

 

5 hours ago, nomadpete said:

I consider that in the accepted culture of nomadic tribes worldwide, the tribes generally do not have any concept of land 'ownership' that translates to modern concepts of property. So early settlers would not have been able to negotiate a practical agreement anyway.  Rather, in their culture they are owned by the land, or simply part of the land. At best, the tribes consider themselves to be transient custodians of the cultural totems. Modern westminister law fails to deal with concepts like that.

That is probably grounded in our education system which portrayed Aboriginals as purely nomadic; however, anthropoligical evidence (also tendered in the court) begs to differ with your considered opinion. Look up Dr Memmott of QUT, and a few others. This is peer reviewed stuff.. .And there are others, too. No offence, but I will take peer reviewed academic research over a considered opinion.

 

5 hours ago, nomadpete said:

And to use modern law to make judgements is (in my opinion) an admission that the invaders (if you want to call us that) have won, and the modern Australians are totally ruling the continent

Again, I suggest you read at least the judgements... The court heard the facts and applied them to the law at the time.. There was no modern law in determining terra nullius was defective. The modern law was the introduction of the Australian common law doctrine of native title, to avoid a very practical consequence that would have flowed from the application of the law at the time to the facts.

 

5 hours ago, nomadpete said:

The question remains, would any attempt to negotiate a settlement agreement with the nearby indigenous have resulted in a useful nationwide binding document (which would have impacted 176 different tribal language groups)?

 

I argue it was not possible.

It was well over 250, but, yes.. it would have been a monumental task and as you suggest, virtually impossible. However, that could have been resolved at the time.. Taking the argument that they couldn't see how settlefd the land was, how could they know if it was impossible to negotiate a treaty until they started trying? In that case, they could have tdetermined the next legally applicable thing/s to do. But simply declaring terra nullius before they could have even known it was impossible is the issue.

 

Also, the Australian High court is a legal instirution that is separate from the government. It acts independently and in accordance with the law. There have been very few appeals against its decisions in the appeals hench against the decisions in the original bench, which indicates many parties accept the decision as reaonable. It is free from government bias, unlike our education system, which is usually the first place that ferments the myth of Aboriginals being entirely nodmadic (or did when I was a kid). The High Court has made contraversial decisions (the Mabo cases included) that go against the well of public opinion, so I would also say they are somewhat fearless or courageous in the execution of their duties and obligations. Yeah, they get it wrong - they are human after all., And yes, I have read the judgement and part of the court reports as part of a course I was doing a few years ago. And, yes, it was an eye opener for me, too.

 

 

[Jerry_Atrick]

55 minutes ago, Litespeed said:

the argument of Terra nullis was bullshit and they knew at the time.

I am not suer of the rest of the facts, but this is what was founded by the High Court..

[pmccarthy]

Terra Nullius was never used or quoted at the time.,\ It is a modern retrospective interpretation.

[Litespeed]

As an aside , the idea of non agricultural society and of no permanent settlements as an excuse for Terra Nullis was also debunked.

 

Certain tribes had stone and other buildings for permanent settlements. Additionally the oldest permanent  agriculture and fish farming systems in the world. 

 

To say they did not farm is a outright lie, it just didn't look like English farming . Many of the battles were over native crops been stolen to feed the invaders.

[Litespeed]

2 minutes ago, pmccarthy said:

Terra Nullius was never used or quoted at the time.,\ It is a modern retrospective interpretation.

No,  it was the term they used at the time, it's not a modern concept at all but a legal nonsense to justify taking possession of the continent from the natives.

[Jerry_Atrick]

14 minutes ago, pmccarthy said:

Terra Nullius was never used or quoted at the time.,\ It is a modern retrospective interpretation.

 

The first formal/officialdeclaration of terra nullius in Australia was in 1835 by Governor Bourke to formally proclaim the colony of NSW: https://www.migrationheritage.nsw.gov.au/exhibition/objectsthroughtime/bourketerra/index.html. Can't formally proclaim the doctrine until formally colonising. So, it was pletny of time to determine if there were settlements, or if the land was aleady ocupied or not. That should cover that myth that they didn't know.

 

There is plenty of evidence it was established prior to the formal declaration. The legal concet dates back to the 18th century: https://www.ruleoflaw.org.au/education/australian-colonies/terra-nullius/

 

Or course, you can accept these as intentional whitewashing of the facts if you so desire.

Edited January 25 by Jerry_Atrick

[old man emu]

Recently the government was unable to do something that simply involved adding a few words to a document because one collective  objected to the wording. How can any government make a treaty with over 250 (a guess) independent groups, each of which would be likely have its individual demands?

[Jerry_Atrick]

I don't disagree with this.. but like all things legal, one goes through a process to come to a conclusion. It may have been a formal change to the law (or reading into common law) at the time that where no treaty can be entered into through irreconcilabile difference, <insert whatever> will apply.. Regardless of the impossibility, it was against the law, and even if deemed impossible by the settlers, they did  not have the legal authority to unilaterally act to their desire.

 

But was it so impossible? We are coming from the perspective that one treaty for the whole land mass, but given each mob had their own defined borders, it would be comiung up with 250 separate treaties for each individual land area. It may have taken a lot of time to negotiate across the 250+ "states", but one could have got there in the end. It was 57 years between 1778 and 1835... surely in that time or a couple of years longer, but again, surely it would not take only one negotiating party on behalf of the monarch to arrange them, either?

 

Highly impractical, I am sure... But I guess this is why individual states can have spearate treaties (I think SA has one, and Vic is re-embarking on having one).

Edited January 25 by Jerry_Atrick

[old man emu]

1 minute ago, Jerry_Atrick said:

It was 57 years between 1778 and 1835... surely in that time or a couple of years longer,

However, not each and every Aboriginal linguistic/territorial group had even been contacted by 1835. But even if all had been, would consensus have been achieved amongst them?

[Jerry_Atrick]

That's my point.. do you need consensus between them? They lived within their defined boundaries, and you could have a separate treaty for each mob/tribe for their part of the land.

 

In reality, NSW would have only needed a treaty for the mobs/tribes that covered the land of NSW. I have no idea how many that is, but lets say, 30. 30 separate treaties in 57 years seems doable.

[old man emu]

1 minute ago, Jerry_Atrick said:

In reality,

In 2024, it's a reality, given what our culture holds to be correct, but that is pretty much the opposite of that the cultural belief was, even up to the 1960s.

[Jerry_Atrick]

It is nothing to do with what our culture holds to be correct. The law was that you had to have a treaty with the locals of an occupied land in conquest. In reality, there were many occupied lands, like there were in Europe.. If a country decided to invalude and conquested Euroe, there would have to be a spearate treaty with each of the countries in Europe at the time - there would probably not have been consensus across Europe. There is nothing cultural about having a separate treaty with each of the Aboriginal "states" in Australia. It requires the removal of an assumption you only can have one treaty for the whole of Australia.

 

What our culture does hold (or did) was more or less, the rule of law. Or are you saying that wasn't important in those days?

Edited January 25 by Jerry_Atrick

[old man emu]

Just now, Jerry_Atrick said:

Or are you saying that wasn't important in those days?

Buggered if I know. All I know is that I can't undo what was done before I existed. That's why, in creating this thread, I proposed that the celebration of all occupants of this continent becoming one Nation should be celebrated on the anniversary of the day it occurred.  I'm all for the various ethnic groups occupying this continent acknowledging those anniversaries or events applicable to their ethnicity. So tomorrow on 26th January, let's join with those who came here from India, and celebrate India Republic Day.

[spacesailor]

WHAT

Will we do !. perhaps sending ALL those " first fleeter " descendants back to the UK .

 

IT'S not like the " pope's " invasion of Ireland. We're the resident royalty had their collective throats  cut .

NO international Court has ordered those English to get out .

spacesailor

 

 

[nomadpete]

I'm all for the courts holding those bureaucrats of the day to account for such transgressions as declaring terra nullius.

 

However I do not think it is ethical to penalise modern inhabitants for the past events. And that is what appears to be the thrust of the angry individuals making a fuss over a particular date.

[willedoo]

7 hours ago, nomadpete said:

I consider that in the accepted culture of nomadic tribes worldwide, the tribes generally do not have any concept of land 'ownership' that translates to modern concepts of property.

They were only nomadic within the boundaries of their own land. There were very strict rules about trespassing on another tribe's land without permission. The only difference between them and us is that they had group title over their own tribal land and they had geographical features for boundaries instead of survey pegs.

[nomadpete]

1 minute ago, willedoo said:

They were only nomadic within the boundaries of their own land. There were very strict rules about trespassing on another tribe's land without permission. The only difference between them and us is that they had group title over their own tribal land and they had geographical features for boundaries instead of survey pegs.

So how does that fit with the much discussed songlines which helped tribes navigate from one end of the continent to the other? Or has that story transitioned from amazing navigating skills, into yet another myth?