Coming to Terms, Aboriginal Title in South Australia

Coming to Terms

Aboriginal Title in South Australia.
Edited by Shaun Berg

The Province of South Australia was created on 15 August 1834 and established by Letters Patent on 19 February 1836. The Colonial Office in London insisted that the Colony could proceed if the land was fairly acquired from the Aborigines and transactions supervised by a government appointed protector. It was the Protector's duty to see that they were faithfully executed and to 'call upon the Executive Government of the Colony to protect the Aborigines in the undisturbed enjoyment of the lands over which they may possess proprietary rights, and of which they are not disposed to make a voluntary transfer'.

To make sure this would happen, the following words were included in the Letters Patent by King William IV on 19 February 1836.

'Provided always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives'.

Both Governor Hindmarsh and Resident Commissioner Fisher received instructions on how to acquire land from the Aborigines. The Colonization Commissioners for South Australia were also aware of these instructions. Fisher was instructed to make sure that no land which the natives may possess was offered for sale without their specific approval.

Last, but certainly not least, Governor Hindmarsh told the first settlers on 28 December 1836 that he would give the same protection to the native population as to the rest of His Majesty's subjects and was determined to punish all acts of violence or injustice practiced or attempted against the Aborigines.

Tragically all the good intentions came to nought. At the beginning of 1836 Aboriginal people owned all the land in South Australia, as they had done for countless thousands of years. By the end of 1836 they owned none of it. In Coming to Terms the authors examine the intervening event, that is, the establishment of South Australia, which is supposed to have completely and absolutely overwhelmed legal recognition of Aboriginal title to land.

Shaun Berg, who practises law in the Supreme Court of South Australia and the High Court of Australia, spent many years exploring English and South Australian archives and other sources to find the answers as to why the original settlement of South Australia went so horribly wrong for the Aborigines - the real and original land owners.

South Australian settlers stole the land forcefully and illegally from its traditional owners without any treaty, payment or compensation. According to Havemann, Professor of Law, sheer greed utterly displaced Aboriginal people from their land. By doing this the settlers, with government approval, also destroyed much of their livelihood and culture.

The book examines whether land in South Australia was acquired by the consensual act assumed in the Letters Patent and other founding documents which underpin the creation of the Province of South Australia. In its opening chapter Berg examines the many documents and statements made by King William IV and the parliaments, governors and commissioners both here and in England during the time of the creation and early settlement of South Australia, which were intended to support the protection of rights to Aboriginal people in their lands.

All other chapters, written by eight respected figures of law and human rights, consider the implications of the failure to comply with the founding documents and examine the solutions available today to rectify them. Their meticulous review of these documents renders the presumed basis for land title in South Australia extremely fragile.

Some 175 years later, in December 2006, the South Australian Minister for Aboriginal Affairs declared that the failure to meet the promise contained in the documents establishing South Australia had been the cause of much loss and suffering for Aboriginal people and South Australians must recommit themselves to the promise made to them.

Coming to Terms discusses not only a re-assessment of our understanding of the legal mechanisms of dispossession, even after the Mabo judgement, but also actions governments must take to overcome the injustice. The chapters by the various contributors are extensively footnoted and its appendix, of more than 300 pages, contains the original documents under discussion. This makes for quick and easy access of material very few readers will have seen before.

Review by Nic Klaassen

The book, edited by Shaun Berg, with a Foreword by Geoffrey Robertson QC
@ $39.95 is available from
Wakefield Press

Telephone 08 8362 8800

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