Before Cook and After Cook: Land Rights and Legal Histories in Australia
| Published date | 01 December 1993 |
| DOI | 10.1177/096466399300200407 |
| Date | 01 December 1993 |
| Author | Rosemary Hunter |
| Subject Matter | Articles |
BEFORE COOK
AND
AFTER
COOK: LAND RIGHTS AND
LEGAL HISTORIES IN
AUSTRALIA
ROSEMARY HUNTER
University of Melbourne, Australia
HE
TITLE of this article, ’Before Cook and After Cook’, refers to an
t ironic dating system devised by Aboriginal Australians. Captain Cook
was
the British ’discoverer’ of Australia, in 1770. Before Cook (BC)
denotes the millennia when Aboriginal nations flourished undisturbed on the
Australian continent. After Cook (AC) is the last disastrous 200-odd years, a tiny
speck on the face of the continent’s long history, but a period in which white
invaders almost managed to destroy the identity of the indigenous owners. This
article focuses on a central area of struggle between Aborigines and invaders: the &dquo;
telling of competing stories about law and the land. In particular, it examines
recent attempts by the white legal system to accommodate Aboriginal versions of
their own history.
.
,
ABORIGINAL STORIES
In the beginning, spirit ancestors roamed the land. In their journeys they formed
and marked out the earth and the sky and established the Law, teaching it to the
people and mapping it onto the country. The ancestors fought with each other,
and struggled with other forces. They became transformed, into rocks, land
forms, animals and birds, the stars. This was the end of the Dreaming.’
SOCIAL &
LEGAL STUDIES (SAGE, London, Newbury Park and New Delhi),
Vol. 2
487
(1993), 487 506
488
After the Dreaming, generations of people lived on the earth and observed the
Law. There were over 200 Aboriginal nations across the Australian continent -
Pintupi, Arrernte, Gurindji, Pitjantjatjara, Kurnai, Kamilaroi, Yorta Yorta,
Wurrundjeri, Kulin, Yolngu, Jawoyn, Walpirri, Tiwi, to name a few. Aboriginal
societies were marked by extraordinarily complex kinship systems and a rich
ritual life. Much ritual activity was devoted to the care of the country and other
aspects of the natural world. Law permeated every part of life and every activity.
It was conceived of holistically, not in terms of the dichotomies (public/private,
sacred/secular, criminal/civil) or categories (torts, contracts, family, property) by
which Western law is characterized.
Links with ancestors and the Law were renewed and reinforced by the
re-enactment and re-telling of Dreaming stories. Significant stories were held by
custodians, passed down from generation to generation. The truth of these
stories was known by the authority of the speaker and their location in a known
place. ’The place of the history establish[ed] its authority because place and its
meaning [were] continuous’ (Healy, 1990: 515). Narratives also provided a
means of situating new experiences within the moral economy.
A number of Aboriginal groups represent the white invasion of their land
through Captain Cook stories. Captain Cook stories exist in many places where
the historical Captain Cook did not go. Percy Mumbulla from Ulladulla on the
south coast of New South Wales (where Captain Cook passed but did not land)
tells of visitors coming ashore and giving gifts: clothing and hard biscuits. Then,
as the visitors are pulling away to return to their ship, wild Aborigines come
running from the scrub, tearing off the clothes and throwing the gifts back
(Healy, 1990: 514-15). This story is set in a temporal past rather than in
Dreaming time because Cook is not making Law. Rather, he is outside the Law, a
disruption to normal social life. That is also why he comes from the sea. ’By
definition a disruption cannot come from the land, because all the relationships
of the universe are guaranteed in the land and through the Law. The land is the
source of all order’ (Healy,1990: 515-16). Cook’s exchange is not a valid cultural
exchange, and that is why his gifts are rejected.
By contrast, Paddy Wainburranga’s story from central Arnhem Land (in the
northernmost part of the Northern Territory) tells of a Captain Cook who
operated within ’the Good Law’. This Captain Cook came to live at Sydney
Harbour and introduced ’white man’s things’ such as axes and steel knives. He
worked hard, minded his own business and resisted temptations. Eventually,
however, he returned to his own land and was killed there by his own people.
Then these new Captain Cooks - the sons of Captain Cook - came and started
killing everyone and tried to take over the whole country (Healy, 1990: 519-20).
In this story, the first Captain Cook does exist in Dreaming time. It is his sons
who transgress the Law - signalled first in their killing of their father - and whose
Fall brings historical death and destruction.
In another story, told by Hobbles Danaiyairi of the Yarralin people (Victoria
River District of the Northern Territory), a historical Captain Cook himself
begins with a shooting spree:
489
When him been start, that Captain Cook, still thinking about to get more land.
From London and Big England, that’s his country ... And when that Captain
Cook been come through down to Sydney Harbour ... And lotta people, lotta
women,
lotta children, they’re owning that city ... And he don’t askem, that man.
Too frightened ... he don’t say, ’good day’. No. He say to him, ask him, ’This your
country ?’ ’Yeah this my country’
And he
...
puttem out those people, takem out
them guns, and bullocks, and man. Captain Cook been shooting ... all the
people ... That means Captain Cook getting ready for the country, going to try to
take it away.... (Healy, 1990: 51(r17)
After repeating this performance all around the coast, Cook returns to ’start to
building Sydney Harbour, that means he get all the books from London, Big
England.’ The books contain Cook’s corrupt, temporal law. This law takes its
place alongside the guns as an instrument of domination. It is a corrupt law
because it permits the taking of land and the killing or exploitation of its owners:
Anybody sick, anybody sick in the guts or in the head, Captain Cook orders:
Don’t give him medicine. When they getting crook, old people, you killem first.
When they on the job, that’s right, you can have them on the job. But don’t payem
him. Let him work for free ... (Healy, 1990: 517)
And Cook’s law, unlike Aboriginal Law established in the Dreaming, can be
manipulated by men to suit their own purposes. As the narrator of the story
points out: ’My Law only one. Your law keep changing’.
Thus the white invasion involves not just a physical clash over land but a clash
of laws. The dispossession and genocide of the indigenous owners is achieved by
force but justified by legal doctrine - doctrine developed specifically by
European jurists to facilitate colonialism.
THE ENGLISH LEGAL STORY
In the beginning was Captain Cook, dispatched in 1769 to observe the transit of
Venus from Tahiti and, incidentally, to try to find the great south land. He
carried with him secret instructions from the Admiralty, advising him to take
possession of any new territories he discovered, in the name of the King. But if
those territories were inhabited, he was to take possession only ’with the consent
of the natives’ (Additional Instructions for Lieutenant James Cook, 30 July 1768,
in Bennett and Castles, 1979: 253~). Cook did ’discover’ the great south land.
His journal of the voyage shows that he did encounter natives, and that he did
take possession for the British Crown; but not with the natives’ consent - in fact
without any reference to them at all (Lieutenant Cook’s Official Log, 22 August
1770, in Clark, 1950: 256).
,
The international law of the eighteenth century, devised among the colonial
powers of Europe, permitted acquisition of new territory by conquest, cession or
occupation. Occupation could only take place on land that was terra nullius -
490
belonging to no-one. The international law was reflected in the English common
law of colonial expansion, expounded in Sir William Blackstone’s Commen-
taries. According to Blackstone, where territory was acquired by conquest or
cession, the existing law of that territory remained in force until it was abrogated
or
altered by royal decree. Settled colonies, on the other hand, were colonies that
were found to be ’desart and uncultivated’, before they were peopled from the
mother country. In a settled colony, English law was imported with the settlers,
to fill the legal vacuum that would otherwise exist. So much of the common and
statute law of England existing at the date of settlement, as was appropriate and
adapted to the conditions of the new colony, was received in that colony
(Blackstone, 1783: Bk. I, ch. 4, 106-8).2
The concept of terra nullius is conveniently ambiguous. It can mean either land
belonging to no-one, or land belonging to no-one. This ambiguity allowed the
European colonial powers to apply the doctrines relating to terra nullius to
territories that actually were inhabited, so long as there was no perceived
proprietary relationship between the inhabitants and the land. Land ownership
was
deemed to be absent where ’the indigenous inhabitants were not organised in
a society that was united permanently for political action’,3 or where they failed
to cultivate the land (Vattel, 1834: Bk. 1, Chap. VII). Having defined the land as
belonging to no-one, the double operation of the doctrine of terra nullius then
allowed colonizing powers to define indigenous owners as no-one. ’You might
have been there physically’, they declared, ’but you weren’t sufficiently
civilized/organized/agricultural to count.’
It was under this theory that New South Wales and the colonies subsequently
...
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