13 - Settlement and Dispossession

Summary

This chapter explores the legal history of dispossession in the nineteenth century. It argues, first, that the failure to sign a treaty with Aboriginal and Torres Strait Islander peoples for land in Australia was a significant act of dispossession. While there was no declaration that Australia was ‘terra nullius’ in 1788, the failure to treat has been wielded since to dispossess Aboriginal and Torres Strait Islander people of land rights and sovereignty. The chapter then explores dispossession through the legal history of expansion – the mixture of legality and lawlessness that fed the pastoral boom in Australia after 1824. With the advent of self-government, Australian legislation facilitating the breaking up of some pastoral leases into fee simple farms from 1861 effected a more complete dispossession by closing Country to Indigenous Australians. These varied processes of dispossession by tenure were fed by acts and omissions of jurisdiction. For many decades, Aboriginal people were not protected by settler law because their legal status was unclear. The designation of Aboriginal and Torres Strait Islander people as subjects of the British crown after 1836 resulted in an uneven mix of hyper-policing and under-policing.