AUSTRALIA
TREATY NOT NEEDED, NOT POSSIBLE
"Had they been a strong race, like the New Zealanders, they would have forced the new occupiers of their country to provide for them; but being weak and ignorant, even for savages, they have been treated with almost utter neglect"[Thos. McCombie - Chairman, Select Committee of the Legislative Council on the Aboriginies 3 February 1859]
A treaty is a binding agreement between two or more states or sovereign powers. A treaty is similar to a contract in that the parties/states to a treaty usually agree to take on certain responsibilities and duties which are legally binding including division of lands, provisions of foods and supplies or funds for lands etc.
Treaties were always arrived at between states to end hostilities or prevent the onset of expected hostilities.
The British colonies never sought a treaty with any Aboriginal grouping and one was never required. Resistance to the effective occupation of the colonies by the Aboriginal peoples was puerile and completely ineffective, without any central co-ordination of peoples/resistance and cowardice in their resolve in conflict.
The Aboriginals had no state or sovereign power which would have been capable of entering an agreement or treaty with the Colonies.
The individual native hordes/clans were not organized into any form of established society and they were incapable of defending the lands they lived on. Most Aboriginals "came in" to live within British settlement. The land was taken over/ceded piece by piece over 50 years and any resistance, if any was dealt with, normally not requiring military intervention. Had the Aboriginals been capable of meaningful resistance, the British may have sought a treaty to divide lands and end hostilities. It will never be known because it never happened.
Had the Elders been capable of representing their people in negotiations, they may have sought and negotiated a treaty. It will never be known because they never happened.
In 1788 Governor Phillip found no locals chiefs or authorities in either Botany Bay or Port Jackson who had the ability to represent the native peoples or anyone to give or deny permission for the First Fleet to drop anchor.
In 1831 Lieutenant- Governor George Arthur considered the idea of a treaty but rejected it, saying "the chiefs have little influence over their tribes" and he did not think "any dependence could be placed in the observance of any treaty, even if they could be induced to enter into it."
Even if the British had entered into a treaty with the Aboriginals, it is clear they would have had no concept of a contract or its meaning and it would have effectively been impossible to effect a contract.
Treaties of this nature are now considered illegal under International Law as they are not treaties of equals. Many treaties that have been entered into are now contested on the basis that the "natives" were not aware of the contents or implications of any agreement. The Aboriginals being one of the most primitive peoples on earth would have been far less capable or in fact incompetent in the notion that they could arrive at a treaty.
The English with any territory they sought to acquire, on a case-by-case basis, considered the view that:
a) after the battle, the natives sign the treaty ceding land to the King or War will continue. So the American Indians having lost wars, signed the treaties;
b) before likely hostilities, the natives sign the treaty ceding sovereignty and lands to the King or the British we will invade or leave the territory to another Imperial power. So the New Zealander Maori signed.
OR where the local inhabitants did not organise or effectively defend their lands at the outset or during the expansion of effective occupation - the land is ceded to the occupier - without the need for a treaty from the people who are incapable of defending the lands and from understanding or entering into a treaty. So the Aborigines never had a treaty.
The British position was simple: they claimed the land and through effective occupation, they became the owners of the land despite any pre-existing habitation or perceived ownership.
Treaties between England and other native peoples in other countries were arrived at due to their particular historical backgrounds and differ significantly to the situation and history in the lands occupied by the primitive natives of Australia.
BATMAN TREATY - NOT A SOVEREIGN TREATY
In 1835 John Batman, a colonial and Australian grazer allegedly entered into a treaty with the Wurundjeri for the purchase of land around Port Phillip. The treaty has been disputed and it is unlikely the Wurundjeri signed the document and unlikely they were even aware of the contents of the document. This document was not a sovereign treaty – it was not an agreement between 2 sovereign nations. Even if it was considered valid, Batman had no power to bind the Crown and the Aboriginals elders present did not have any authority to bind the Wurundjeri since no form of government existed.
GOVERNOR BOURKE PROCLAMATION
Governor Bourke's subsequent proclamation declared the treaty/Batman agreement invalid and reasserted that all the land belonged to the Crown. His declaration did NOT declare the land terra nullis or land belonging to no one. The Land belonged to the Crown.
His proclamation stated and that “all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, …, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony”
There was no native title within the British Empire and any such claim to such title did not exist under English Law.
Indeed it is completely illogical for any Australian or State government to seek a treaty with the Aboriginal people or any subset/language group with respect to land - the land is already part of the nation of Australia. An external State or sovereign power may seek a treaty with Australia but it is inconceivable why Australia would enter into any treaty with any State to cede its own land.
Aboriginal bands are simply not independent nations with whom Australia could treat as our equal and should never be considered as nations within our own borders.
TREATIES OTHER COUNTRIES
Treaties with other natives within the British Empire have been arrived at to prevent hostilities, to end hostilities or to set out arrangements. It comes about as a result of completely different historical circumstances to that encountered in Australia and normally is the result of England entering a treaty with a recognizable polity that is capable/seeking or prepared to create a treaty. 2 examples are set out for comparison :
NEW ZEALAND - TREATY OF WAITANGI
The Treaty of Waitangi was an agreement between Britain and more than 500 Maori chiefs at Waitangi in the Bay of Islands in 1840 - the Maori's spoke a common language
The treaty was written at a time when :
a) the British mercantile company, the New Zealand Company, acting on behalf of large numbers of would-be settlers, was establishing a colony in New Zealand. Relations between Māori and Europeans depended on a good working accord, but violence sometimes flared up. British law did not extend to controlling unruly British subjects in New Zealand, so some European residents asked the British government to intervene to maintain order. ; and
b) some Māori leaders had petitioned the British for protection against French incursions.
Between 1795 and 1830 a steady flow of sealing and then whaling ships visited New Zealand. Trade between Sydney and New Zealand increased as traders sought kauri timber and flax and missionaries purchased large areas of land in the Bay of Islands.
This trade was seen as mutually advantageous, and Māori tribes competed for access to the services of Europeans that had chosen to live on the islands because they brought goods and knowledge. At the same time, Europeans living in New Zealand needed the protection that Māori chiefs could provide. As a result of trade and settlement, Māori society changed drastically up to the 1840s. They changed their society from one of subsistence farming and gathering to cultivating useful trade crops.
With the threat of a French invasion/conquest , in 1831 it prompted thirteen rangatira (major chiefs) from the far north of the country to compose a letter to King William IV asking for Britain to be a "friend and guardian" of New Zealand.
As a result in 1840 the Treaty was signed between Britain and the chiefs of New Zeland.
The key differences to Australia Aboriginies that resulted in a treaty::
a) Maori had chiefs that could represent their subjects;
b) Maori spoke a common language;
c) Maori were considered a violent and aggressive peoples capable of significant resistance and a treaty would make sovereignty possible without war;
d) Maori had demonstrated a desire for English products and knowledge;
e) Maori had expressed a desire for English protection directly to King William IV;
f) New Zealand was being established as a free settlement and Europeans had been in contact with the Maori for 30 years;
g) Maori were considered civilized by comparison to the Australian Aboriginal.
AMERICAN INDIAN TREATIES
BACKGROUND - UNITED STATES
The first permanent British Colony was established at Jamestown in the North America was in 1607.
With the issue of the Declaration of Independence on 4 July 1776, the 13 Colonies in the North America sought independence from Britain.
This would lead to the American Revolutionary War which was won by the United States and allow the US to gain independence from England.
On September 3, 1783, the Treaty of Paris was signed. This was a treaty between Britain and the United States as well as several countries which supported the United States – the terms were exceedingly generous to the United States.
PATH TO TREATIES AND CESSATION OF TREATIES
Native peoples had been driven steadily westward in the decades prior to the war, as colonists pushed westward (often with violent conflict) into new territories. All territories acquired prior to 1778 were acquired without treaty.
Settlers began to realize that making allies rather than adversaries of Native Americans could prove to be a useful strategy, given the indigenous peoples' manpower as well as their prodigious knowledge of the battlegrounds.
The first American Indian treaty was negotiated/settled in 1778 – known as the Treaty of Delaware. Approximately 368 treaties were negotiated between tribes and the United States between 1778 and 1868.
Indian nations ceded millions of acres of lands to the United States where they had little choice.
The making of treaties with Indian tribes ended in 1868. Congress stated unequivocally that “henceforth, no Indian nation or tribe . . . shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty….” Congress agreed to honor the approximately 368 Indian treaties that had been ratified from 1778 to 1868,
EXAMPLE AMERICAN INDIAN TREATY
The Treaty of Greenville, also called Treaty of Fort Greenville, (August 3, 1795), settlement that concluded hostilities between the United States and an Indian Confederation headed by Miami chief Little Turtle by which the Indians ceded most of the future state of Ohio and significant portions of what would become the states of Indiana, Illinois, and Michigan.
As American settlers sought new land in the American Revolution, their advance was opposed by a loose alliance of Indian tribes - the Shawnee and the Delaware, both of whom had been driven west by prior territorial encroachments, joined the Ottawa, Ojibwa, Miami, and Potawatomi in the Northwest Indian Confederation.
In an effort to pacify the region and to stake a conclusive claim to areas that had been ceded by the British under the terms of the Peace of Paris (1783), a series of expeditions by the United States Army was dispatched to the Northwest Territory which were defeated by the Indian Confederation.
The British pledged support to the Indian Confederation against the new United States.
The United States Army sent a significant force against the Indian Confederation and broke the Indian’s line and the Indians fled. There was no support provided by the British.
Beaten in battle and with no prospect of outside assistance, the Indian Confederation agreed to the terms set forth by the Americans.
Both sides agreed to a termination of hostilities and an exchange of prisoners, and Little Turtle, having faced military defeat and with little prospect of future success, authorized a redefinition of the border between the United States and Indian lands.
The key differences to Australia Aboriginies that resulted in a treaty:
a) Indians had Chiefs that could represent their subjects;
b) the Indians had joined together into an effective alliance for the defence of their territories;
d) the Indians were defeated and sought surrender through treaty;
e) the treaty allowed the victor, the United States, to set terms significantly in its own favor;
f) Indians were considered civilized by comparison to the Australian Aboriginal.