From dispossession and displacement to eviction without grounds

Map of the First Nations of NSW
borrowed from the Aboriginal Legal Service

www.alsnswact.org.au/pages/nsw

The secret instructions given to Lieutenant Cook on 30 July 1768 tell us much about the foundation of New South Wales. They gave Cook the order to explore the southern oceans in search of Australia - "to proceed southward in order to make discovery of the Continent" and "to employ yourself diligently in exploring as great an Extent of the coast as you can ..."

 Towards the middle of the document, Cook is instructed:

... to observe the Genius, Temper, Disposition and Number of the Natives, if there be any and endeavour by all proper means to cultivate a Friendship and Alliance with them, making them presents of such Trifles as they may Value inviting them to Traffick, and Shewing them every kind of Civility and Regard; taking Care however not to suffer yourself to be surprized by them, but to be always upon your guard against any Accidents. 

You are also with the Consent of the Natives to take Possession of Convenient Situations in the Country in the Name of the King of Great Britain: Or: if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors. 

The significance of this reference to 'the Natives', and the circumstances in which Cook might take possession of the country should be self-evident. We know Cook and his crew did encounter people of Australia's First Nations, but they took possession of much of the land for England all the same.

Whereas in other examples of English imperial expansion - the United States, Canada and New Zealand - treaties and other arrangements were entered into between the First Nations and the new Colonial arrivals, for better or for worse... - this did not happen in Australia. Quite simply, Cook and his crew did not believe Australia's First Nations occupied or possessed the land such as to claim themselves sovereign under international law.

This law, as articulated by Emer de Vettel in 1758, said:

There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole! We have already observed, in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it and settle it with colonies... We do not, therefore, deviate from the views of nature, in confining the Indians within narrower limits.

... and we can see the employment of such reasoning as the English began to consider the possibilities of a colony in the south. Sir Joseph Banks, the botanist who traveled with Cook on his initial voyage, wrote that the east coast of Australia was "thinly inhabited to the point of admiration". He readily admitted that nothing was known of the inland country, but opined:

... the sea has been universally found to be the chief source of supplies to the Indians ignorant of the arts of cultivation: the wild produce of the land alone seems scarce able to support them at all seasons at least. I do not remember to have read of any inland nation who did not cultivate the ground more or less, even the North Americans who were so versed in hunting sowed their maize. But should a people live inland who supported themselves by cultivation these inhabitants of the sea coast must certainly have learned to imitate them in some degree at least, otherwise their reason must be supposed to hold a rank little superior to that of monkeys. (Sir Joseph Banks journal entry, extracted in The Law of the Land, Henry Reynolds, 1987).

Thus, when Governor Phillip was given his instructions to establish the first British Colony in Australia, they included no provisions for dealing in land with the original inhabitants of the country. The process of dispossession and displacement of Australia's First Nations had begun - Aboriginal people were denied access to colonised land, which often meant they could not visit the rivers and waterways that were their established sources of food.

Note, as well, the casual racism of Banks, which was endemic of the times. Such views underpinned much of the European attitude toward Indigenous peoples of the new world, and these are indeed reflected in de Vettel's written account of the law. That there could be savages who stood in no particular need of land was no mere naive expression of a supply and demand principle; at its heart was the dubious assumption of European superiority.

As well as the dispossession of Australia's First Nations from their land, this assumption of European superiority lead to the erosion of Indigenous culture. The establishment of schools in Parramatta and Black Town, west of Sydney Cove, for the purpose of educating, Christianising and giving vocational training to Aboriginal children, were regarded as a success - although after some time the Parramatta school was closed. In part, this was to save money, but it was also due to the failure of graduates to retain any 'benefit' from their education. On completing their training, the children would return to their families and resume observance of traditional culture and practice.

Photograph by Scott Bird

But as the colony grew, Missionaries continued with attempts to Christianise Indigenous children - and as frontier violence began to spread, the protection and care of Missionaries became harder to turn away from. As the colony pushed outward from Sydney Cove to accommodate ever larger agricultural pursuits, more and more Indigenous people were forced from their country. They tended to move towards the more established urban centres, where food was easier to obtain, or to large 'reserves' run by Missionaries.

Those who tried to remain on country faced open hostilities - it was often said that there was "no more harm in shooting a native than in shooting a wild dog" (see Aboriginal Australians, Richard Broome, 2001). They also faced many European diseases for which they had developed no immunity. Indigenous lives were lost in the tens of thousands - an incredible cost on any account, but all the more devastating for Indigenous systems of customary law and culture based on kinship ties, and the holding and sharing of knowledge through oral traditions.

Perhaps the high water mark of this frontier violence - at least for New South Wales - was the massacre of 28 Indigenous people at Myall Creek in June of 1838. These killings are believed to be payback for the deaths of several colonialists in the region at the time, but most of the Aboriginal people killed were women and children. Eleven colonialists stood trial for these killings, but were acquitted. A later trial saw seven men convicted of murdering one Aboriginal child.

Towards the end of the 19th Century, the large Aboriginal 'reserves' that had been created throughout the colony's expansion came under the management of an Aboriginal Protection Board. For the most part, these reserves were established on the outskirts of townships, in order to keep them apart from the new colonial inhabitants. There were various justifications for this, ranging from the protection of Indigenous people from the 'pernicious effects of contact with the Europeans', to protection of the Europeans from distressing contact with the 'disorderly, poverty ridden and frightening Aborigines in their midst'.

An editorial from The Age newspaper, from January 1888, gives a telling insight into the attitudes of the time, and the ideological considerations behind the appropriation of such reserves:

It seems a law of nature that where two races whose stages of progression differ greatly are brought into contact, the inferior race is doomed to wither and disappear… The process seems to be in accordance with a natural law which, however it may clash with human benevolence, is clearly beneficial to mankind at large by providing for the survival of the fittest. Human progress has all been achieved by the spread of the progressive races and the squeezing out of the inferior ones. It may be doubted whether the Australian aborigine would ever have advanced much beyond the status of the Neolithic races in which we found him, and we need therefore not lament his disappearance. All that can be expected of us is that we shall make his last days as free from misery as we can. (Cited in Colonialism and the Science of Race Difference, Deirdre Howard-Wagner, 2007).

Regardless of the motivation for their constitution, the effect of these reserves for 'Aboriginal protection' is clear: they further diminished the ability of Aboriginal people to move freely across country, and placed incredible restrictions upon them in their day to day lives. Whatever autonomy had remained for Australia's Indigenous people, it was all but gone by the beginning of the 20th Century. Reserves also provided no guarantee of tenure for Indigenous people, with many reserves being seized and sold off or leased in any event, to accommodate growth in agriculture, industry and townships.

By the 1940s government policy had moved from 'protectionism' to 'assimilation'. Minister for Territories during the 1950s, Paul Hasluck, said that "in the course of time, it is expected that all persons of Aboriginal blood or mixed blood in Australia will live like white Australians do..." It was not until the liberal social movements of the 1960s & 1970s that the concept of 'self-determination' took hold, and the means of delivering land rights to Indigenous Australians began to inspire a movement.

Self-determination was not to be mistaken for sovereignty, but could be more accurately expressed as 'self-management' or 'self-sufficiency'. It was not an easy thing for Indigenous communities to embrace. Having now spent a number of generations dispossessed, displaced, and lacking in all autonomy, Indigenous communities simply lacked the capacity to pick themselves up and run things for themselves in any meaningful kind of a way - at least not without some support. And where support was offered, it was usually conditional on adopting policies and procedures that had been developed elsewhere, by non-Indigenous people.

It is in this context that Aboriginal Housing, as we know it in New South Wales today, began to emerge. Aboriginal Corporations were established for the purposes of acquiring significant land, and the passing of the Land Rights Act in 1983 lead to Local Aboriginal Land Councils claiming rights to land such as the old Aboriginal reserves, which they could put to socially beneficial use for their communities. Thus many Aboriginal Corporations and Land Councils became landlords. Because of the age and poor condition of the housing stock they acquired, and the generally low incomes of their members to whom these properties are let, they've struggled to keep themselves on sustainable ground. High maintenance and infrastructure costs, with relatively low rental revenue, have been the norm.

The NSW Government established the Aboriginal Housing Office (AHO) in 1998. On the one hand, the AHO is a means to fill Indigenous housing shortfalls - occurring due to the uneven distribution of land acquired by Indigenous groups, in terms of both value and geography - through specific funding streams within the public housing system. On the other hand, it provides an administrative body, with an Indigenous Board of Directors, to oversee policy development and the regulation of non-government Indigenous housing.

The relationship between these government and non-government Indigenous housing bodies continues to evolve. For the past five years or so, the AHO has sought to ameliorate the cost/revenue dilemma Indigenous landlords face, by offering funds for repairs and maintenance in exchange for 'sustainable' rents. To be eligible, providers must either opt into a system of registration, or hand their properties over for management by a registered provider. But, we're told, a recent internal review of this strategy - and the processes by which it is being implemented - has shown that there are things that could be done better. The AHO is in the process of developing a new strategic plan.

From what we know of the deliberations thus far - which is limited, to say the least - the new strategy won't be dramatically different from the old. We may see a shift of management of Aboriginal Housing properties from government to non-government providers, but the trade-off may well be tighter regulation of the non-government providers. The proposal is that Aboriginal Community Housing Providers will subject themselves to the National Regulatory Scheme for Community Housing, as opposed to the current scheme that was developed and overseen by the AHO.

Given all that we've discussed about Indigenous dispossession and the loss of autonomy, it's hard to get excited about a move from a scheme that's been developed and implemented by Indigenous people to a scheme that's been developed and implemented in the mainstream. But the AHO's scheme has not been without its critics from within the Indigenous housing sector itself. Certainly the Aboriginal Tenants' Advice and Advocacy Services (ATAASs) have raised a number of concerns over a the years.

But in discussing the AHO's change in strategic plan, the ATAASs keep coming back to one major, pressing concern: the fact is, non-government Indigenous tenancy managers have been known to use no-grounds notices of termination. Such notices are an affront to fairness, as they provide no opportunity for tenants to discuss the real reason behind their tenancy being brought to an end.

The AHO's current tenancy manager, FACS Housing, does not use no-grounds notices of termination. A change of management from FACS Housing to non-government Indigenous housing providers could result in a significant reduction in rights for many Indigenous tenants. The AHO would do well to bear this in mind while developing its new strategic plan.