December 2020 – January 2021

Arts & Letters

Dividing the Tasman: ‘Empire and the Making of Native Title’

By Alan Atkinson

Historian Bain Attwood examines the different approaches to sovereignty in the New Zealand and Australian settlements

New Zealand has always had something to teach Australia. When the question of Australian federation began to be seriously debated in the early 1890s, New Zealanders joined in. That made perfect sense. So far, the federation project was both oceanic and continental. The heartland of the federation movement was the south-east mainland’s riverine country, but its possible boundaries reached from Western Australia to Fiji.

In some early plans New Zealand fitted easily, but New Zealanders soon noticed a problem with their own involvement. It was not just nascent national feeling: while in retrospect that issue seems overwhelming, it was, in fact, not so at the time. There were other reasons for them to feel uneasy, including that New Zealanders were disappointed by the lack of interest the mainlanders seemed to show in problems of government – in how to rule well.

At the first big meeting, in 1890 in Melbourne, one of the trans-Tasman delegates argued that federation should be a vehicle for bottom-up governmental reform. They should be talking more, he said, about popular rights, especially voting rights. From this great change we must all “walk forth as free men”. Given the way things were moving in New Zealand, with votes for women imminent, he might have meant not just free men but free women. Another New Zealander talked about the “social upheaval” going on around them. They should be paying more attention to that. Altogether, the New Zealanders seem to have wanted a better focus on government and social justice.

Native administration, so called, was a big part of that. The New Zealanders thought that the mainlanders did a poor job of attending to Indigenous peoples compared with the way they managed. If New Zealanders should end up in the federation, one of them said, they would never put this area of government into the hands of mainlanders. Mainlanders cared and knew nothing about native administration. They had always dealt with their Indigenous peoples, the same man said, “in a much more summary manner than we have ventured to deal with ours”.

Bain Attwood’s new book, Empire and the Making of Native Title: Sovereignty, Property and Indigenous People, casts a good deal of light on the origins of this “summary manner”, relative to New Zealand’s approach. These passing remarks made in Melbourne 130 years ago take on a new significance as a result of Attwood’s painstaking scholarship, or rather, because of the way he sets it all out. He says nothing about Australian federation. From beginning to end he is very careful not to stray beyond his chosen period, 1770 to 1850, though sometimes what he says seems to cry out for long-term comparison. He’s thorough at one level but minimalist at the other, which might be what gives the book its power.

Of course, the New Zealanders’ record with “native administration” was not as wonderful as some liked to think. All the same, even up to the present, on the spectrum from “summary” to “sedulous” Australia and New Zealand have certainly been differently placed. Only compare the so-called Māori electorates, introduced for the New Zealand parliament in 1867 (though controversial ever since) with the Australian government’s treatment of the proposal for “a First Nations Voice”, in the 2017 Uluru Statement from the Heart. What better word than “summary”?

“The Crown” has a constant presence in Attwood’s book because from the British point of view, harking back to feudal practice, the Crown was the source of all, or almost all, landed title. The Uluru statement asks for substantial recognition of the “ancient sovereignty” of Indigenous peoples, but it’s been difficult to imagine how such sovereignty coexists with the sovereignty of the Crown. As writers Giselle Byrnes and David Ritter have pointed out, native title, at least as it relates to land, is not “allodial”: in law it is not representative of any sovereignty apart from the Crown.

This is the position taken by the National Native Title Tribunal in Australia. In New Zealand, as I understand it, the Waitangi Tribunal has been far more ambitious, morally and intellectually. Between 2009 and 2013, for instance, there was a real possibility that the Waitangi Tribunal would allow Māori an interest in the 700 megahertz band of radio spectrum, on the grounds that it was taonga: a “treasure” among ancient assets, relating to the nation as a whole, to which Māori have a fundamental claim. Allodial title or not, this looks like “ancient sovereignty”.

Māori claimants lost in that case, but the point remains. In Australia no tribunal exists for such claims. There is no chance of anything other than summary dismissal. “Native title” means land, and such title is attached to parties capable of selling or otherwise disposing of it. Also, the recognition of such title has opened the way for its piecemeal extinguishment. Attwood explains how this was a large part of the reason for recognition in the first place, during the British settlement of New Zealand.

The impact of Attwood’s book comes from the way he makes one story and one argument from the evidence of Australia and New Zealand. He spends his first three chapters on the Australian mainland. First, James Cook’s statement of possession by the British Crown in 1770 and the original settlement from 1788. Then there’s the capitalist effort of 1835 to 1836 to take up land at Port Phillip, without government approval and legitimised instead by treaty with the Indigenous inhabitants. That failed because the rights of the Crown, even in that remote spot, were supposed to be absolute. Then there’s South Australia, 1834 to 1837, where there was a mix of private initiative and government back-up.

The rest of the book, six chapters, is about New Zealand, and mainly the northern part of the North Island. The interplay of Crown and private initiative east and west of the Tasman drives the story at ground level. At the same time there’s a parallel narrative – the to and fro among authority figures in London, on the other side of the world. Attwood gives a wonderful account of ideas becoming steadily more challenging and complex under pressure, until something like exhaustion sets in. The climax is a three-day debate in the House of Commons in June 1844, when members were forced to confront some, at least, of the moral and legal implications of empire.

The previous generation of British MPs had experienced much the same with the impeachment trial of Warren Hastings for the oppression and greed of the East India Company on the subcontinent in the late 18th century. In between there had been the debates on the abolition of the slave trade and of slavery itself. A new degree of worldwide power created new opportunities for greed, but also new complications for conscience and for notions of collective responsibility. Attwood keeps to the narrower question of native title, but even that is tangled enough, with greed generally running ahead of everything else.

So Australia and New Zealand fall into a single story, and from that story, as Attwood tells it, comes a large truth. Rights, including land rights, were defined by the to and fro of power, and that power had several sources. There was military force and there was money. However, there was also opinion backed by numbers, rhetoric, intellect and/or personality. Attwood’s Empire and the Making of Native Title shows how all these various forms of power were interwoven through six decades.

The indigenous peoples were not powerless. They were generally prepared to fight, and they also had a hold, sometimes at least, on public opinion in England. Māori were better placed than the Indigenous Australians because they were better known. What was understood about them made a larger appeal to the imagination, including the moral imagination, of the English.

Happily, too, Māori also appealed to the entrepreneurial imagination of the British. They seemed prepared to sell their land. With a certain amount of wishful thinking they could be treated like, say, landowners in France, who might sell to anyone, French, English or otherwise, prepared to pay.

Such considerations are crucial to Attwood’s account, but in the end what matters most is timing: the order of events and the accidental coincidence of various forms of power. In New Zealand, when private capital first arrived from abroad, during the 1820s and ’30s, the British government held back, keen to avoid direct responsibility. As a result, the Māori right to sell was affirmed by the fact that they had already sold by the time the government sought to interfere.

On the Australian mainland, when invasion began in 1788, the British government acted on its own. In its first dealings with the Indigenous people it had the field to itself. It also came armed and with the belief that it could make its way with ease. From the 1820s, certainly, settlement began to run beyond military protection, but by that time the governing principles were set. The failed treaty-making effort at Port Phillip, from 1835 to 1836, proved that native title was only theoretical. So began the history of the summary manner.

Attwood is careful to draw a line between himself and Henry Reynolds, who set the parameters for a generation of work in this area, beginning in 1981 with his book The Other Side of the Frontier. Everyone writing since then has been caught up somehow in Reynolds’ original challenge – in the need to look from the other side.

However, Attwood certainly turns a new corner. It’s the way he thinks about time and timing. Reynolds writes like a lawyer. He looks for continuities, for precedents, for ideas that make their way intact from the past to the present. His writing brought to life a history of legal principle quite different from that which had hitherto existed, and in which the Indigenous peoples and their invaders could be equally represented. For Attwood everything is contingency. On his pages, moral judgement is minimal. Instead, he finds everywhere, as he puts it, “a complex mix of principle and expediency”. Ideals carry real weight but, as he says, for indigenous peoples the law is a resource, one of many, not a script or determinant.

This book describes a number of more or less conscientious men – some much less conscientious than others – seeking to control invasion, with the hope of settling new principles in a situation that was highly fluid. To begin with their ways were perfectly summary, but eventually the contest of interest and ideas, and the larger tangle of power, forced them to take more care. In method, if nothing else, it all chimes with what we might realistically hope for in the present: a capacity to make room for other voices and to adjust accordingly.

Alan Atkinson

Alan Atkinson is an Australian historian and the author of The Europeans in Australia.

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