Civilising – A continuing Australian project?

Tim Rowse, University of Western Sydney

Bruce Buchan Empire of Political Thought, London, Pickering and Chatto, 2008 (272 pp). ISBN 9-78185196-925-8 (hard cover).

Since the High Court of Australia rejected the legal doctrine terra nullius in its judgment in Mabo vs the State of Queensland in 1992, it has been tempting to treat terra nullius as the central and defining concept in the British colonisation of Australia. As David Ritter (1996) pointed out, even if no British authority explicitly enunciated terra nullius while taking possession of the continent, the view that Aborigines had neither property nor government was implicit in the conduct of British authority. In particular, by neglecting to sign treaties with Aborigines and by ruling that Aborigines were individual subjects of the Crown’s undivided jurisdiction (an evolving doctrine of the New South Wales Supreme Court in the 1830s), the British departed from their North American practice of making agreements of various kinds and recognising in various ways collective Indigenous entities. The exceptional character of the British approach to sovereignty in Australia was further underlined when the Crown made a treaty with Maori tribes in 1840. In short, it seems to many historians that Australia was an exception within the story of British colonisation in the extent to which the native presence here was denied, dismissed and, subsequently, degraded. As a doctrinal summation of that distinctly shameful history, terra nullius has come to signify Australian exceptionalism.

Australian exceptionalism has been an enduring and fruitful theme for those who think that justice demands constitutional recognition of the collective identities of Indigenous people. In a book-length comparison of the ways that British liberal constitutionalism has dealt with Indigenous people, Peter Russell has celebrated the Mabo judgment as overcoming the peculiar inertia—among British settler colonial possessions—of Australia’s constitutional development. Australian federalism has always afforded the States a greater say over Indigenous affairs than in Canada and the United States argued Russell (a student of comparative federalism), and so ‘States’ rights’ have long eclipsed Indigenous rights. Australia, Russell wrote, has also been ‘one of the last outposts of legal positivism’: in professional culture and in popular opinion, Australians are only recent and reluctant ‘legal realists’ in their search for accommodation of Indigenous rights within Australia’s common law (2002, 2003). According to some recent commentators on the jurisprudence of ‘native title’, this legal culture may be more persistent than Russell wishes, for judges have restricted the potential of the High Court’s recognition of native title by insisting that native title statute, not the High Court’s doctrinal initiative, be the source of law (Pearson 2009, pp. 100–132; Strelein 2006).

Comparing the ways that Indigenous claims figure within the legal traditions of British settler colonial nations, Australia does seem exceptional—and the judge (so to speak) is still out on whether, in its handling of ‘native title’, Australia has at last caught up with the comparators. However, legal tradition is only one dimension upon which comparison can be attempted: what about social policies? For example, consider policies of child removal. Canada (with treaties) is more like Australia (without treaties) than it is like New Zealand (with treaty). So, does the absence or presence of treaties in a nation’s constitutional tradition make much difference to the social policies pursued in these nations? It would appear not. Paul McHugh (2004) juxtaposes Australian, New Zealand, Canadian and United States legal histories, but without making ‘Australian exceptionalism’ a focus. Rather, he argues that across all these Anglophone colonies, and notwithstanding fluctuating concessions to a ‘tribal’ authority in statute and common law, a doctrine of unified territorial sovereignty emerged in the early 19th century. Eclipsing previously co-existent Indigenous sovereignties, this assertion of settler sovereignty was legitimised by self-imposed mandate of ‘guardianship’ that humanitarians promoted. This comparative account of a shared theory of colonial rule makes better sense of common features of the aims and methods of these nations’ policies for the social and economic ‘uplift’ of native peoples. The shared ideology of colonial ‘guardianship’ is thus an alternative analytical focus to the differentiating comparison in which legal doctrine is the central question.

‘States’ rights’ have long eclipsed Indigenous rights in the Australian federation.

In the conversation that is comparative historical inquiry, those who emphasise differences (choosing a dimension upon which distinctions are persuasively made) will always be answered by those who see commonalities (highlighting dimensions upon which likeness is evident). In Empire of Political Thought, Bruce Buchan doubts that terra nullius was central to Australian policies and that it was the basis of Australia’s exceptionalism. However, he does not point to the commonalities of government practice that overlay distinctions of legal tradition, such as the relentless use of treaty, purchase and theft to get control of land (for which, see Weaver (2003)). Nor does he dwell on the resemblances among the different nations’ institutions for rehabilitating remnant populations (for which, see Armitage (1995)). His eye is not very much on practices of government, but on the ways that political thought enabled British colonists in North America and Australia make sense of their relationship with Indigenous peoples. Most of Buchan’s pages are not about events in the Australian colonies but about seminal British thinkers (Locke, Hume, Ferguson and many others) and the North American colonies that occasioned their reflections on human difference. The Britons who colonised Australia, Buchan argues, applied the conceptual pair ‘civilisation’/’savagery’ that they had used in North America. However, responding to a different geo-politics and to different kinds of ‘natives’, they applied this notion differently. Buchan’s book thus shifts the terrain of comparison to European political thought—in which he is well read—and finds Australia to be both like and unlike North America. (He has little to say about New Zealand.)

Buchan’s first chapter sets out what some 16th to 18th century Europeans thought ‘civility’ meant: ‘a learned quality consisting in the unspectacular virtues necessary for social, urban or city life: politeness, non-violence, respect or law, probity and thrift, self-discipline, good comportment, appropriate dress and speech’ (p. 21). Moral corruption, barbarism and savagery—amply present in much of humanity—were its antitheses and threats. Civility was in a mutually sustaining relationship with civil government, a framework that secured with law the right of property and that rested on consent and ‘opinion’. The forms of government found among North American Indian ‘nations’ or in Bengal were recognisable, in this conceptual scheme, as inferior, less developed polities, lacking both private property and the self-disciplines needed for civil relations among autonomous individuals. In this perspective, it was defensible and good to subject such polities to the authority of governments that were truly civil. Central to Britons’ self-perception as ‘civilised’, by the 18th century, was their view that commerce brought out the best in people: the empire of liberty was also the empire of trade. This was evident not only as a general proposition in theory but also from practical experience in the New World. In the Great Lakes region of North America—where trade bound Indians in alliance against first France and then the United States—the British learned the value of diplomacy by commerce. Buchan thus highlights the principles and practice of Captain James Cook’s trading with people of Tahiti and Maori in the 1770s. However, there was no such ‘traffick’ between Cook and the Aborigines when he got to the east coast of New Holland, and nor did Cook obtain ‘consent’ from Aborigines before taking possession of the eastern portion of the continent in 1770. The stimulus of the British sense of Aborigines’ difference was thus not only their difference from Britons but also their difference from natives of other lands.

Bruce Buchan doubts that terra nullius was central to Australian policies.

How then was ‘civilization’/’savagery’ a relevant concept in the colonisation of Australia from 1788? ‘The Indigenous inhabitants of Australia were almost uniformly portrayed by the colonists as “savages” whose status in the new colony was at best uncertain’ (p. 56)—‘too uncivilised for a treaty to be made’ (p. 57). Crediting Arthur Phillip with sincere intentions to ‘conciliate the affections’ of the natives, Buchan argues that he found the Aborigines ‘difficult subjects’, not to be solicited into a contractual relationship with the sovereign as the North American chieftains had been. Aborigines were not: people you could trade with, polities you could be at war with, potential allies (of an imperial rival) whom prudence obliged you to court. When Aborigines were violent, did it manifest norms by which they judged the colonists, and could one infer from such actions their capacity for government? Buchan presents Aborigines’ violence, in the first sixty years of British settlements in Australia, as not only a challenge to order but also, at times, as an intellectual puzzle: were the British in a war with Aborigines? And was Aboriginal violence inter se within British jurisdiction? ‘By the early 1840s … the legal status of Australia’s Indigenous inhabitants was still prey to much confusion’ (p. 96). Not understanding British law, they made poor subjects of the Crown; and it was difficult to protect them—as was the due of any subject of the Crown—from unruly settlers. But if they were subjects of their own customary polity, British authority had yet to deal with them properly, as it had in signing a treaty with Maori chiefs in 1840 about land and governmental responsibility (Ford 2010). The concept that best relieved this confusion, suggests Buchan, was ‘savagery’: Aborigines were people without any law.

Under the emerging doctrine of colonial guardianship, applying that designation entailed an obligation to change Aborigines, to fit them for membership of society, at the level of the labouring classes. British theories about ‘the poor’ were thought to be apt to the Aboriginal case. However, pioneer reformers of the Aboriginal way of life (starting with Governor Macquarie in 1816) found them intractable, not interested in conversion to Christianity and a settled existence. At the same time, they were evidently vulnerable to contact with colonists, as their numbers seemed to be falling rapidly. Reformers of colonial authority in the 1830s began to outline an apparatus of ‘protection’, aligned with an emerging notion of colonisation as ‘trusteeship’. There were parallels to this ideology in Canada and the United States. However, Australian initiatives quickly soured into pessimism about ‘the failure of the Indigenous people to submit to civil or political arrangements’ (p. 117). As liberal political thought developed in the 19th century, it postulated the characteristics of those who were suited to liberal rule, and in liberal ethnography Aborigines were outstanding examples of people unsuited.

British theories about ‘the poor’ were thought to be apt to the Aboriginal case.

At this point in Buchan’s story, he acknowledges that the central idea ‘civilization’/’savagery’ was losing coherence as it acquired new significance. As he explains, the formation of settler-colonial liberalism in Australia included the reception of racial theories of human difference that challenged historical or ‘stadial’ theories. While ‘stadial’ theory had assumed all humans to be on the same developmental path, with some peoples more advanced than others, racial thought postulated that some peoples were inherently unable to develop. The apparently refractory quality of Aborigines helped to make racial thought more plausible, and the two paradigms co-existed in the absence of a clear scientific criterion or practical necessity for making a decisive choice between them. If we add to this mix persisting ideas about ‘the poor’ and ‘pauperism’ that have been a recurring feature of Australian (and other settler colonial) discourse about the Indigenous, then the intellectual landscape was of unresolved complexity by the end of the 19th century. This creates problems for an historiography of colonial policy that postulates social theory to be crucial to the explanation of public policy. It is not clear to me how Buchan sees public policy as issuing from this medley of ideas, in which to characterise Aborigines as ‘primitive’ could invoke both a stadial and a racial paradigm of difference, while sitting comfortably alongside a moralised notion of material poverty.

I have elsewhere argued that it is difficult to trace the ‘protectionist’ institutions of the era c.1870–1940—missions, settlements, residential homes for removed juveniles—and the associated legislated regulatory powers back to legislators’ and officials’ common adherence to a coherent theory of human differences (Rowse 2009). The series of ‘protective’ and controlling statutes passed by Australian governments between 1869 and 1940 were multiply motivated and justified: as smoothing the pillow of a dying race; as saving a vulnerable people from extinction; as protecting employees from unscrupulous bosses; as giving children a chance to escape a hopeless background; as necessary for the health of the non-Indigenous population; as staging the interbreeding of blacks with whites; as preventing the interbreeding of any races; as constituting a useful pool of labour. The proliferation and persistence (until the assimilation reforms initiated in the 1940s and 1950s) of these legal and institutional regimes owes much to Australians’ confidence in what governments can do to discipline problematic populations; it owes little, as far as I can tell after reading Buchan and other historians, to an internally coherent discourse about Aborigines. As an approach to the history of colonial state formation, the history of the human sciences (including political thought) has limitations that historians of ideas (for understandable reasons) have been slow to recognise. When Buchan gives us an account of the ethnological ideas of Alfred Howitt and W.E. Roth, he can point to very little of these ideas’ realisation in the particular policies and institutional designs with which these two men were associated, as officials, in Victoria and Queensland respectively.

The official rhetoric was often patronising and the instruments coercive.

In common with those who seek to show the persistence of the principle of terra nullius in Australian governments’ laws, policies and administration since 1788, Buchan pursues, as far as he can, the protean presence of the ‘civilization’/’savagery’ binary in Australian policies in the present. Thus, his brief final chapter is about echoes of ‘civilization’/’savagery’ in native title law and in the Northern Territory ‘Emergency Intervention’. Before examining what he says about those topics, let us briefly review what his narrative has to leap over to get to the present day. His story of the centrality of ‘civilization’/’savagery’ had begun to run into trouble, as I think he acknowledges, once he got to the fourth quarter of the 19th century, when there seems to be no clear, singular intellectual basis for governments and churches to attempt systematically (and often tyrannically) to ‘protect’ and to promote the viability (as they conceived it) of the Indigenous population that they were finding so problematic. It is a pity, then, that he did not press on into the 20th century, when racial thought was eventually challenged by a reformulated, stadial deployment of ‘civilisation’/’savagery’. In the florescence of articulate Aboriginal policy reform ideas in the 1930s their explicit preference for a stadial account of their own history over what they saw as predominant racial pessimism and exclusion showed the resilience of the ‘civilisation’/’savagery’ idea, its availability to progressive Aboriginal use. Buchan could then have followed that episode by examining the assimilation policy era (roughly 1950–75) which arguably reinstated the civilising project in official thinking, in its most optimistic projection: ‘assimilation’ envisaged the end of colonial trusteeship as Aborigines became qualified for citizenship. That is, having been tempted by the disappointments of the period 1825–50 to conceive of ‘savagery’ as Aborigines’ irremediable fate as a race, Australians—under the stimulus of Aborigines’ and some anthropologists’ optimism—rediscovered hope about ‘civilising’. Although the official rhetoric was often patronising and the instruments coercive, the achievements in legislation and policy were substantial, and public policy eventually, by the early 1970s, proved to be open to a more pluralist understanding of the possible forms of ‘civilisation’. For example, the terms in which one can be ‘propertied’ in Australian law have been expanded by acceptance of the principle of customary ‘land rights’ encoded as communal, inalienable tenure.

As Buchan shows, however, there remains in Australia an undercurrent of doubt about whether Aborigines can be the self-disciplined and self-governing subjects to which the term ‘civilisation’ has long referred. In their measured levels of psycho-social pathology, poverty and detachment from the market and human capital formation, some find confirmation that Indigenous Australians’ difference is stubborn ‘savagery’ (though no-one would now use that term) requiring the renewed and firmer guidance of ‘civilisation’ (Tony Abbott’s ‘new paternalism’), while ruling out ‘even a partial recognition of Indigenous sovereignty’ in some kind of political settlement (p. 143). The Howard and Rudd Governments’ policies in Northern Territory ‘reimpose the old “trajectory of civilization”, by which Indigenous people are represented as needing to conform more closely to Western notions of property ownership, orderliness and good government’ (p. 146). What remains unclear, however, is how appealing to Indigenous Australians themselves these representations have become. Indigenous Australians are publicly divided in their assessments of the Northern Territory intervention and (I infer) of the significance of winning recognition for Indigenous sovereignty—a principle that Buchan evokes dearly but not substantively in his book’s passionate closing pages.

REFERENCES

Armitage, A. 1995, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand, UBC Press, Vancouver.

Ford, L. 2010, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836, Harvard University Press, Cambridge, Mass.

McHugh, P. 2004, Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self-determination, Oxford University Press.

Pearson, N. 2009, Up From the Mission: Selected Writings, Black Inc., Melbourne.

Ritter, D. 1996, ‘The “rejection of terra nullius” in Mabo: A critical analysis’, Sydney Law Review, vol. 18, no. 3, pp. 5–33.

Rowse, T. 2009, ‘The uselessness of “race thinking” to settler Australians’, in Frontier, Race, Nation: Henry Reynolds and Australian History, (eds) B. Attwood & T. Griffiths, Australian Scholarly Publishing, pp. 220–247.

Russell, P.H. 2002, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, University of Toronto Press, Toronto.

Russell, P.H. 2003, ‘Colonization of Indigenous peoples: The movement towards new relationships’, in Parties Long Estranged, (eds) M. Macmillan & F. Mackenzie, UBC Press, Vancouver.

Strelein, L.2006, Compromised Jurisprudence: Native Title Cases Since Mabo, Aboriginal Studies Press, Canberra.

Weaver, J. 2003, The Great Land Rush and the Making of the Modern World, 1650–1900, McGill-Queens University Press, Montreal and Kingston.

Professor Tim Rowse is Professorial Fellow with the Centre for Citizenship and Public Policy. Since the early 1980s, his research has focused on the relationships between Indigenous and other Australians, in Central Australia (where he lived from 1989 to 1996) and in the national political sphere. In the 1990s, this and other interests led him to write two books about the life and works of Dr H.C.Coombs.

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