When on February 7, 1788, the British claimed the eastern half of Australia, they left us with two abiding problems. They assumed that the First Nations were not in actual possession of their own homelands and that they had neither laws nor customs which could be given formal recognition.
As a result, they departed from what had been customary practice in North America of respecting what was called Indian title to traditional property and determining that the Indigenous tribes held a form of internal sovereignty, and with whom many treaties were negotiated.
The anomalous situation in NSW was noted by Jeremy Bentham, the leading political philosopher of the time. In 1792, he wrote that there had been no negotiations and that no treaties had been drafted or signed. “The flaw,” Bentham wrote, “is an incurable one.”
It took Australia more than 200 years to begin to remedy this situation. In 1992, the High Court’s Mabo decision recognised native title and overturned one aspect of terra nullius. But the twin problem of the political and legal status of the First Nations remains where it was in 1788.
