The Uluru Statement in Historical Context

Launching Stuart Macintyre and Anna Clark’s The History Wars (2003), Paul Keating described history as ‘our most useful tool and guide’, claiming that ‘knowing our past helps us to divine our future’. Disputes about the scale of frontier violence during Britain’s colonisation of Australia have always been about Australia’s present and future as much as our past. Whether we view colonisation as a process of genocide and expropriation or as largely peaceful has significant symbolic and practical stakes, affecting its commemoration and the necessity of compensation or land rights.

The relationship between past and present is an enduring preoccupation. As Ian Hunter has shown, beginning in the early modern period, scholars began to elaborate particular methodological strictures against the interpretation of the past in present terms. To this end, the seventeenth-century theologian and church historian Gottfried Arnold and eighteenth-century public law jurist Johann Jakob Moser advocated a contextualist historiographic approach that sought to interpret the past on its own terms through a twofold process, both practical and ethical. The practical injunction comprised the collection of an extensive documentary corpus. The ethical component involved suspending any partisan commitments of the historian to read these documents in terms of their historical circumstances, typically religious, legal, or political conflict.

The appropriate comportment for the historian thus entailed the insulation of the subject under study from the historian’s own normative commitments. For Arnold, this pursuit included the production of an ‘impartial history’ of heresy that recounted ecclesiastical history not in terms of alleged timeless doctrinal truths, but as a succession of profane ‘historical human acts’. Failure to undertake such rigorous contextualisation risked distorting the historical record through projecting contemporary positions onto the past.

To project the present onto the past is to commit anachronism, a subject of historiographic controversy no less pressing today than in the seventeenth century. Historians of the so-called Cambridge School, largely associated with Quentin Skinner’s work, are the legatees of early modern ecclesiastical and public law contextualist historians. Though contemporary contextualists typically work in opposition to philosophers and political theorists rather than theologians, as Arnold did, the difference can be hard to spot. Embracing anachronism, Samuel Moyn has derided contextualism as an antiquarian obsession with ‘facts’ that denudes the past of practical use. For Moyn, to make the past ‘useful to the present’ requires integrating facts with theory to provide ‘a vision of human becoming’.

Accusations of anachronism have been a central feature of the History Wars, typically deployed by conservatives to criticise what they view as the application of contemporary values to the colonial past. Thus, John Howard sought to curb Keating’s famous call for ‘[r]ecognition that it was we who did the dispossessing’ by alleging his predecessor had read ‘history backwards, imposing on the past a pattern designed to serve contemporary political needs’. Henry Reynolds has devoted much of his career to challenging the use of this accusation to dismiss advocates of First Nations rights. Now in his eighties, he has authored or edited over fifteen books since the early 1970s on Australia’s colonial and pre-colonial history and its legacies. He is one of Australia’s best-known historians and strongest advocates for the legal rights of First Nations peoples in Australia.

As Reynolds has argued since The Law of the Land (1987), there is a convincing historical basis for First Nations rights in European law. This basis demands their recognition in Australian law today, given its origins in European jurisprudence. Reynolds shares this approach of searching for resources within European law for recognising Indigenous rights with other Australian scholars, including historian Andrew Fitzmaurice. Indeed, we can discern a similar impetus in Bruce Pascoe’s celebrated Dark Emu: his claim that First Nations peoples in Australia practised agriculture grounded on the use of such terms in European settlers’ journals. This approach to the history of colonisation has detractors. Peter Sutton and Keryn Walshe suggest there is ‘terrible irony’ in Pascoe’s adoption of the language of agriculture, given the role of the pastoral industry in the dispossession and murder of First Nations peoples. In the United States, Law Professor and Lumbee Tribe member Robert A. Williams Jr. has highlighted the vulnerability of Indigenous rights when reliant on colonial doctrine.

Written in response to the 2017 Uluru Statement from the Heart, Reynolds’s most recent book, Truth-Telling: History, Sovereignty and the Uluru Statement sustains the preoccupations of his lengthy career. His earliest works sought to recover the history of frontier violence and First Nations resistance, before he pivoted towards legal history in The Law of the Land and subsequent works, particularly Aboriginal Sovereignty (1996). These subjects come together in Truth-Telling, alongside Reynolds’s personal reflections on teaching Australian history and his friendship with Eddie Mabo, which he previously explored in his memoir Why Weren’t We Told? (2008).

The Uluru Statement, released on 26 May 2017 following the First Nations Constitutional Convention, opens with the assertion that ‘Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs’. Drawing on the language of International Court of Justice Vice President Fouad Ammoun in Western Sahara Advisory Opinion (1975), the Statement described this sovereignty as a ‘spiritual notion’ reflecting the ‘ancestral tie’ between First Nations peoples and the land. This sovereignty ‘has never been ceded or extinguished, and co-exists with the sovereignty of the Crown’. On this basis, the Uluru Statement demanded two reforms. First, the establishment of a constitutionally enshrined ‘First Nations Voice’, providing a permanent institutional mechanism for First Nations advocacy to parliament. Second, the creation of a Makarrata Commission to provide processes for agreement-making between First Nations and government, and truth-telling regarding First Nations history.

As Reynolds notes, the reform proposals have attracted more attention than the claims of First Nations sovereignty; an oversight, for the ‘long-term significance’ of the latter are ‘likely to be considerable, presenting a feisty challenge to both Australian jurisprudence and the nation’s perception of its history’. Current and former Prime Ministers Scott Morrison and Malcolm Turnbull both baulked at the proposed First Nations Voice, alleging it constituted a demand for a parliamentary ‘third chamber’. Morrison’s government has since backpedalled, initiating a plan in 2019 for a First Nations advisory board to parliament, though the board’s constitutional entrenchment remains ambiguous. Opposition to the Statement’s assertion of sovereignty has largely been delimited to Quadrant. Former Nationals Senator John Stone claimed the Statement threatened ‘the very sovereignty of the Australian nation’. Reynolds’s longtime opponent Keith Windschuttle approvingly cited former High Court Justice Harry Gibbs’s ruling in Coe v Commonwealth (1979) that ‘an aboriginal nation exercising sovereignty… is quite impossible in law to maintain’.

The Coe judgment roughly denotes the starting point of the contemporary campaign for First Nations sovereignty. Paul Coe claimed declarations of British sovereignty over Australia had violated First Nations peoples’ immemorial ‘exclusive sovereignty’, reflected in their religious, cultural, social and legal systems of property rights. A year later, National Aboriginal Conference Chair Jim Hagan asserted that First Nations peoples comprised a ‘sovereign’ and ‘autonomous nation’ within Australia. Wiradjuri leader Kevin Gilbert demanded a treaty between the ‘sovereign nations’ of First Nations peoples and white Australia that would reflect continued First Nations land ownership. The 1987 Aboriginal Sovereign Position and Legal Entitlement for Negotiating a Treaty demanded a treaty to recognise unextinguished ‘Aboriginal sovereign rights’ vested in the immemorial and unchanged ‘Aboriginal Law’.

In 1988, the Barunga Statement, presented to then Prime Minister Bob Hawke at the Barunga Sport and Cultural Festival, similarly advocated a treaty recognising First Nations peoples’ ‘prior ownership, continued occupation and sovereignty’. The treaty would, inter alia, enable First Nations peoples’ self-determination, permit ‘permanent control and enjoyment’ of ancestral lands, and provide financial compensation for the loss of lands. More recently, Professor of Law and Tanganekald and Meintangk woman Irene Watson has asserted the ‘ongoing sovereignty’ of First Nations peoples, grounded in their ‘complex legal systems’ developed over millennia prior to colonisation. Palawa activist and lawyer Michael Mansell has acknowledged that although First Nations sovereignty has necessarily changed since colonisation, its survival ought to be affirmed through a treaty enabling First Nations peoples in Australia ‘their own ways of living and governing themselves’. The Uluru Statement builds on these earlier assertions.

Though Truth-Telling does not mention this longer history of First Nations assertions of sovereignty, it supports the claim of enduring First Nations sovereignty in Australia. Reynolds’s overarching argument is that First Nations peoples held sovereignty and property rights over Australia before colonisation, and although this was violently wrested from them in a manner inconsistent with European law, this theft was incomplete and demands restitution through treaty-making and commemoration. The Uluru Statement’s emphasis on truth-telling provides the perfect backdrop, as Reynolds presents the monograph as his ‘own individual contribution to our national truth-telling’. Reynolds elaborates his argument in two parts, centring sovereignty and frontier violence, respectively. These parts pursue relatively distinct components of Truth-Telling’s broader argument, though there are occasional overlaps, as in Reynolds’s claim in Part II that First Nations resistance was about ‘sovereignty over a small national territory’.

In Part I, Reynolds surveys legal writings since the seventeenth century to reconstruct how sovereignty ‘was conceptualised, how it related to the control of territory, and what cultural, social and political characteristics were required for it to be recognised’. Treating his findings as principles of international law, he bolsters this argument with reference to British Empire practice and the experience of early colonists to assert that First Nations peoples held sovereignty at the time of the First Fleet’s arrival. The failure to recognise this pre-existing sovereignty was thus ‘illegitimate in international law’. This error remains unresolved, an open wound that has ‘compromised’ the ‘sovereignty of the Australian state’.

Britain made declarations of sovereignty over parts of the Australian continent in 1788, 1824, and 1829. Reynolds focuses on the first of these, made by Arthur Phillip. At the time, British Empire practice held that the Crown could claim territory that was uninhabited or where local consent was forthcoming – restrictions stipulated in Captain Cook’s commissions. But Phillip’s commissions, given to him in 1786, excluded consent. Reynolds posits that this was a mistake resulting from Cook’s expedition having inaccurately reported that Australia was largely uninhabited. Under the belief that there was insufficient population from whom to obtain consent, Australia could be claimed as uninhabited.

Phillip soon realised the error, and settlers increasingly recognised pre-existing First Nations sovereignty. By the early nineteenth century, examples abound of colonial officials describing Australia’s First Nations as autonomous states. This recognition was driven by First Nations peoples affirming ‘their rights as proprietors’ and ‘exercis[ing] sovereignty over their own territory’ through violent territorial defence. But the law failed to respond to this recognition, continuing ‘to follow the trajectory marked out in Britain in 1786’. The result, for Reynolds, is that Australian history has been built on a gap ‘between law and reality’, Australian jurisprudence abandoning the ‘real world’ for ‘injustice’.

The longevity of this decoupling of law and reality is attributable to historiographic errors regarding both. Namely, historians have perpetuated the notion that First Nations peoples lacked property rights and sovereignty at colonisation, enabling Britain to claim them over all of Australia. But, Reynolds argues, these notions would have ‘scandalised’ eighteenth-century legal writers. Addressing property first, Reynolds cites Emer de Vattel to argue that in cases of conquest, an invading power acquired rights to a state’s property, but not that of individuals. Christian Wolff and Friedrich Carl von Savigny both held that tribal societies could hold property regardless of how they used land. Nineteenth-century US courts and British Empire practice in northern America and New Zealand affirmed these views. In short, the dispossession of the personal property of First Nations peoples in Australia violated eighteenth- and nineteenth-century international law.

Turning to sovereignty, Reynolds cites an array of jurists, including Samuel von Pufendorf, Hugo Grotius, and Francisco Vitoria, and debates over sovereignty in Africa and the Atlantic. He argues that international law has historically defined sovereignty as religiously neutral and as comprising: occupation and control of a defined territory; political independence; and self-government. Two conclusions follow. First, as they met these criteria, First Nations peoples held sovereignty of Australia pre-colonisation. Second, as First Nations peoples in the north of Australia continued to live traditional lives even after 1901, the federal government did not have effective control of the entire continent, and its sovereignty was incomplete. The implication is that sovereignty should be approached like land rights, as having been ‘subverted in a piecemeal fashion’, with First Nations peoples retaining sovereignty where they continue to occupy traditional lands.

For Reynolds, while the Mabo judgment constituted a step towards recognising this, he laments the High Court’s decision to stop short of any determinative ruling on sovereignty because it was ‘beyond the reach of domestic or municipal courts’. Though legally sound, this ruling constitutes an ongoing tension between First Nations peoples and Australian law. The past offers an alternative. Reynolds argues that there is a powerful ‘tradition of treaty-making’ within the British Empire, particularly in Canada. Jeremy Bentham and Tasmanian Governor George Arthur both supported treaties in Australia. Through resuscitating this tradition, Reynolds claims, Australia can resolve ‘the vexed problem’ of First Nations sovereignty.

The refusal to make treaties drives Reynolds’s pivot from colonisation’s legality to its human costs in Part II. In ‘turn[ing] their back on the tradition of treaty-making’ and precluding negotiations with First Nations peoples, colonial officials made possible ‘the violence of the frontier’. Though this violence has been a subject of historiographic controversy, no ‘educated colonist’ was unaware of it at the time. Reynolds divides Australia’s settlement into two periods, roughly demarcating the first seventy years and final fifty years between 1788 and Federation. This demarcation reflects the shift of responsibility for colonial affairs from the British metropole to the colonial parliaments and the extension of colonisation into Australia’s north, changes crucial to the commemoration of Australia’s pre-Federation history. The vicious northern expansion was an Australian responsibility, undertaken by men who ‘contributed to the drafting of the Constitution and were major figures in the politics and jurisprudence of the fledgling nation’.

With imperial oversight reduced, any semblance of legal protection for First Nations peoples was discarded, resulting in violence on a scale non-First Nations historians are still coming to understand. The ‘most egregious departure from the rule of law’ was the creation of a Queensland police force consisting almost entirely of First Nations peoples, the role of which ‘was to kill Aboriginal people in sufficient numbers to terrorise them into submission and to prevent them from attacking colonists and their property’. Recent archival research by Robert Ørsted-Jensen and Ray Evans suggests that between 1859 and 1897, this force killed over 40,000 First Nations peoples. Combined with a further 20,000 killed by settlers, they calculate a total death toll between 61,000 and 62,000 over forty years in Queensland alone. Nationally, Evans has proffered a figure as high as 115,000 First Nations deaths. For Reynolds, ‘even if we consider a figure of 100,000, it dramatically changes the nature of the national narrative’, as this toll would equal that of Australians ‘who have died in all our much storied wars overseas’.

This violence demands adequate commemoration. First Nations warriors must, Reynolds argues, be remembered as ‘heroic patriots defending their homelands’ through establishing ‘a new national museum dedicated to the frontier wars and supported with the same level of funding that is received by the War Memorial’. At the same time, we must reconsider the legacies of those responsible for this violence. The debate about Australia Day centres the early years of colonisation, while comparatively little attention is given to the late nineteenth century. John Downer and John Forrest both served as state premiers during the violent frontier expansion in South Australia and Western Australia, and held political office after federation. Samuel Griffith was the Queensland Attorney General during the unprosecuted murders of hundreds of First Nations peoples, his failure to act amounting to ‘crimes against humanity’. He was Australia’s inaugural Chief Justice. Griffith Review and Griffith University both bear his name. For Reynolds, truth-telling regarding this history constitutes ‘the ultimate gesture of respect’, the ‘generations of injustice’ it uncovers driving the ‘urgent national need’ for treaty negotiation in the present.

Throughout Truth-Telling, Reynolds is keen to emphasise the historical basis for his claims. Against those who treat the defence of First Nations legal rights as ‘well-meaning anachronism’, he asserts that ‘no justification can be found in the international law of the period or in currently accepted behaviour of nation states’ for the denial of these rights. Opponents of First Nations legal rights are thus guilty of anachronism, inheritors of historical misconceptions perpetuated in the twentieth century. Reynolds highlights the contextualist credentials of his argument for two reasons. First, it enables him to present his sifting of the past for evidence of First Nations sovereignty and its violent occlusion as a response to the Uluru Statement’s call for truth-telling regarding First Nations history; his argument uncovering a truth demanding restitution.

Second, as Reynolds himself has been consistently criticised for anachronism, his repeated affirmations of the historical grounding of Truth-Telling entail an implicit response to, and rejection of, these attacks. Australian historians critical of The Law of the Land focused on Reynolds’s use of terra nullius to explain the doctrine by which Britain claimed Australia because, as Michael Connor contended, ‘the doctrine of terra nullius didn’t exist in the eighteenth century’. Bain Attwood thus alleged The Law of the Land was a ‘liberal myth narrative’ that attempted to ‘construct a past’. Reynolds defended his usage of terra nullius as the standard practice of using ‘new terms for past events and concepts’, a contention that appears implausible given the monograph’s descriptions of the First Fleet’s ‘assumption’ and ‘mistaken belief’ that Australia was terra nullius. More moderately, Andrew Fitzmaurice conceded that although terra nullius is an anachronism, it derives from ‘res nullius’, which had a central role in eighteenth-century jurisprudence.

Reynolds retains his use of terra nullius in Truth-Telling to describe the doctrine underpinning colonisation, writing of the ‘British decision to treat Australia as a terra nullius’. His broader argument regarding sovereignty in international law, though, most endangers his self-proclaimed contextualism. In attempting to distil a definitive international law maxim from the writings of Pufendorf, Vattel, Wolff, and others, Reynolds’s argument belies fundamental and irreconcilable differences between his sources regarding Indigenous legal rights. Wolff denied the right of Europeans to impose sovereignty on ‘barbarous and uncultivated nations’, critical evidence in support of Reynolds’s thesis. Because of this, Reynolds places particular weight on Wolff’s arguments in Truth-Telling and Aboriginal Sovereignty, describingWolff’s Jus Gentium as the ‘major work of international law in the middle years of the eighteenth century’ in the earlier monograph. But Jus Gentium was not translated into English until the twentieth century. Its reception in Australia during settlement was accordingly minimal.

In contrast, Reynolds accurately claims that Vattel was ‘well known and often quoted in colonial Australia’. But the 1797 English translation of Vattel’s The Law of Nations explicitly stated that ‘wandering tribes’, did not hold ‘true and legal possession’ of the land they lived on, thus entitling Europeans ‘to take possession of it, and settle it with colonies’. Another of Reynolds’s sources, John Locke, was similarly dismissive of Indigenous rights. In describing the ‘relevance’ of Locke’s defence of the inviolability of property rights, Reynolds overlooks Locke’s contention that Native Americans had failed to exercise the ‘Labour’ that ‘gave a Right of Property’.

Moreover, international law’s existence was itself controversial. It did not exist as a system of positive laws accepted internationally and administered by a supra-national judiciary. Instead, Wolff and Vattel could approach colonisation as a legal matter because both held a particular metaphysical perspective that treated positive law as grounded in supposedly timeless and universal precepts from which they could develop positions on states’ rights. For Pufendorf, though, positive law was not a superstructure erected upon a universal metaphysical substratum, but emerged exclusively from sovereign command. In Hunter’s words, there was thus ‘no law or right above the level of the state’. Though Reynolds omits him, Thomas Hobbes similarly claimed that ‘no Court’ bound states, who existed in ‘absolute Liberty’ and ‘Anarchy’. For Pufendorf and Hobbes, colonisation could not be legally ‘illegitimate’, because it occurred outside legal regimes.

From a thoroughly contextualist perspective, the history of sovereignty and international law reflects instability occasioned by discursive diversity. Reynolds’s assertion of a coherent maxim of historical international law against which to assess British colonial practice must be understood as a partisan attempt to arrange the past in line with his particular commitments. Recognising that this history does not provide unanimous support for Reynolds’s claims is not to critique the justice of his project. Like Reynolds, we may support First Nations peoples’ sovereignty and property rights in the present, but we cannot claim that the legitimacy of this position is demanded by the truth of the historical record.

That a contextualist historiography does not offer straightforward answers to the present debate over First Nations legal rights does not mean it is useless. For though the history of sovereignty and international law does not guarantee First Nations rights in the present, nor does it foreclose them, revealing rejections of First Nations sovereignty to be equally partisan. The absence of a coherent and consistent understanding of sovereignty leaves open how we define it in the present. Professor of Law, Cobble Cobble woman, and Referendum Council member Megan Davis has thus argued that because of sovereignty’s ‘shifting and malleable’ definitional status, First Nations peoples should define what they take it to mean. In this debate over the present understanding of sovereignty, history can broaden our perspective, revealing that the present and the possible are not coterminous; the past alive with ideas we may never have considered, or dismissed summarily as implausible.

Reynolds has uncovered a crucial tradition of support for Indigenous rights. It may not be the only tradition, but its existence is enough to dismiss those who argue the Crown’s sovereignty in Australia is unequivocally complete. A broader history of debates over sovereignty reveals it has not always been the centrepiece of politics it is today, leaving open the possibility of alternative avenues towards expanding First Nations rights. For early modern common lawyers, custom was an alternative source of authority to sovereignty. The seventeenth-century judge Matthew Hale claimed the ‘Laws of England’ comprised the lex scripta, legislation enacted by the sovereign, but also the ‘Lex non scripta, the unwritten Law’, entailing ‘those Laws that have obtain’d their Force by immemorial Usage or Custom’.

Noel Pearson has eschewed Reynolds’s preference for the continental jurisprudence of Pufendorf, Wolff, Vattel, and others, instead seeking justifications for First Nations legal rights within the common law, a tradition he has repeatedly praised. On First Nations sovereignty, Pearson has been ambiguous. In 1993, he approvingly cited Ammoun’s ‘spiritual’ sovereignty between Indigenous peoples and land, while querying the propriety and pragmatism of applying European conceptions of sovereignty to First Nations peoples in Australia. The ‘sovereignty strategy’, he warned, risked ‘impeding our case for greater control and ownership of our traditional lands’. Elsewhere, Pearson has described as ‘fantasy’ the idea of a treaty between sovereign First Nations and settler states in Australia. Instead, he has focused on the common law’s recognition of ‘traditional laws and customs’ as the basis of land rights.

Arguments based in this elastic notion of custom have provided the most significant recognitions of First Nations peoples’ rights in Australia. Indeed, in recognising customary native title rights in Mabo, the High Court determined by a mere 4-3 majority that compensation was not owing when the sovereign extinguished such title; only the slimmest majority upholds the ruling that custom does not restrain sovereignty. History cannot resolve First Nations rights in the present. We must instead follow Skinner’s injunction to ‘do our own thinking for ourselves’. But for the enriched perspective it provides this endeavour, history is an indispensable tool.