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ABC News
17-07-2025
- Politics
- ABC News
Spiritual sovereignties and questions of equity: How churches should respond to the Yoorrook Justice Commission - ABC Religion & Ethics
The idea that Aboriginal peoples possessed certain rights was well established in legal theories of the eighteenth and nineteenth centuries, but these theories had little to with actual practice in the colonial histories of New South Wales and Victoria. The humanitarian concepts of Indigenous rights still allowed for the British Crown to assert imperial sovereignty in any part of the world not previously 'discovered' and claimed by a Christian prince. The Colonial Office in London could argue in 1839 that the English version of this Christian doctrine of discovery was more humane than its American counterpart, where theft of Indigenous lands was said to be covered by a 'decorous veil of law'. In light of the recent reports issued by the Yoorrook Justice Commission, it is clear that the legal history of Victoria not only failed to live up to any humanitarian ideals, but that the churches, in particular, now owe reparations for profiting from sales of Aboriginal lands. When the Aboriginal protectorate system was introduced by imperial authorities in 1837, it was designed to minimise the harms of colonisation while at the same time allowing the assumed benefits of civilisation and Christianity to flow into the colonies. The Aboriginal protectors were to defend 'the rights and interests of the Natives' and guard against 'any encroachment on their property, and from acts of Cruelty, of oppression or injustice'. But what did this mean specifically for the churches? It was resolved that Aboriginal people would not be allowed to sell land, neither to 'private adventurers' — like the notorious John Batman — nor to church leaders promoting public welfare. Under the imperial Sale of Waste Lands Act (1842), one provision provided powers to set aside land for the 'the Use or Benefit of the aboriginal Inhabitants of the Country', and this became the foundation for the establishment of Aboriginal reserves. Under the very same section of this Act, colonial authorities could reserve 'Sites of Places of public Worship'. On the face of it, the churches and Aboriginal people were given equivalent standing in the eyes of colonial law in the sense that each was due special consideration as a matter of public interest. Retrospectively, one might also acknowledge that the churches and Aboriginal polities each articulated their own notions of spiritual sovereignty. The violence of settlement When the barrister John Quick published an overview of settlements in the Port Phillip District in 1883, he divided the history into four distinct periods. He admitted that the initial settlement 'preceded government control in Australia; when land was selected and taken possession of by the first comer on the old principle of Roman Law, quod nullius est occupanti conceditur .' His Latin clause resonates intriguingly with the terminology of terra nullius , but the reference here is to private acquisitions, as in Roman law. Quick was talking about illegal squatting, dignified here with a decorous Latin phrase. He was not actually invoking a doctrine of terra nullius . According to Quick, during the second phase of settlement, administrators attempted to restrain 'the unlicensed occupation of waste lands, and proceeded to impose upon the occupants payment of a nominal rent, reserved upon a yearly license'. The imperial Sale of Waste Lands Act arrived in 1842, and the control of land was turned over to the separate colony of Victoria when it was created in 1851. An official review a few years later concluded that the early system of squatting was conducted 'in default of laws' and that landholders received — under the crude licensing system managed by Crown Lands Commissioners — only provisional rights to the areas that they claimed. The sale of Crown land was an entirely different matter from leases. Thus even in the second phase of settlement as described by Quick (before the invention of leasehold tenure), the licensing system lacked integrity. It was a time of extreme violence. One survey suggests that around eleven per cent of the Indigenous population died in massacres in the Port Philip District between 1836 and 1851, without any of the settler perpetrators being convicted. The Yoorrook Commission notes that research is ongoing, but concludes that 978 Aboriginal people were killed in Victoria between 1830 and 1859. Clearly, the Aboriginal protectors failed in their obligations to defend Aboriginal people from 'encroachment on their property, and from acts of Cruelty, of oppression or injustice'. When leases of 'unsettled land' were first created, the lawmakers did not set out to exclude Aboriginal people from a pastoral run. The Australian leasehold tenures were unlike the leases in England which did indeed provide exclusive rights. An imperial theory imagined that these colonial leases could protect Aboriginal access in leasehold areas to 'the trees and water thereon as will enable them to procure the Animals, Birds, Fish and other food on which they subsist.' But in practice, exclusion was the order of the day. It was only after the 1996 Wik v Queensland judgement that the historic technicalities in colonial law were rediscovered. Subsequently, it has been more explicitly asserted by the courts that pastoral leases did not extinguish native title. 'Wastelands of the Crown' The peculiarity of the Australian leases may also be related in some ways to the influential view of the philosopher John Locke that only land under the plough could secure exclusive rights. When 'waste land' was enclosed for farming, the added efficiencies were effectively, in Locke's view, a gift to the economy. But the Chair of a Victorian Select Committee in 1859 highlighted a key problem with this theory of efficiency: The rapid settlement necessary upon the country being occupied by flocks and herds was more unfavorable to the Aborigines than if it had only been gradually taken up for agricultural purposes. In short, most of the land was not actually taken by the plough, as suggested by Locke's agrarian ideology — it was stolen by the pastoral industry. Although Locke's approach to property was regularly invoked in the Australian colonies, a broader understanding of his arguments concerning 'the vacant places of America' reveal their striking inconsistency with the development of Australian law. In Lockean dreaming, property in the soil would arise from the plough, not from pastoral runs or from waste lands pre-emptively claimed by the Crown. Locke's Two Treatises of Government provided, in fact, a substantial critique of monarchic power. Locke contested the readings of Genesis 1, for example, that had found in the biblical text a sanction for the Crown's authority. He located the early chapters of Genesis in the 'state of nature', where resources could be taken from the natural world — in this philosophical imagination — without compromising the interests of others. Contrary to a common assumption about monarchy, legitimate government could only arise from express consent to a social contract. But clearly, such consent was never actually sought from Aboriginal and Torres Strait Islander people at the foundation of the Australian colonies. Thus, the Australian practice of selling Crown land effectively turned Locke on his head. Disciples of Locke, if they were blessed with consistency, should have been calling for treaties long ago. The very idea of 'wastelands of the Crown' was always a legal fiction, and the assertion of a feudal Crown in the Australian colonies was problematic even according to English law in the eighteenth century. Treaties as truthful social contracts It is difficult to see how the current legal conundrums can be remedied without a new federalist approach to constitutional arrangements within which the First Nations can become genuinely self-determining. Treaties are the most promising way to establish truthful social contracts that can embrace different concepts of sovereignty and different cultures of relationship with land and Country. The outcome of a new treaty process in Victoria needs to move beyond the joint management of national parks — easily conceived under feudal tenure — to provide significant landholdings with the 'full and beneficial ownership'. This would not be a matter of the Crown achieving entirely new standards of justice or of awarding new rights to Aboriginal people on the basis of race. It would be a matter of compensating the descendants of the First Nations who lawfully governed the lands now known as Victoria and who were forcibly dispossessed of their estates. Implications for the churches The legal inequities in Victoria are especially evident when the vast landholdings of the churches are considered. These holdings have been acquired by various means, but a foundational source of wealth was, ironically, the State Aid to Religion Abolition Act (1871). Up to this point, the provision of resources by the state had been generous. While this Victorian legislation stemmed the tide of aid to churches, it also addressed the previous grants of land, providing that church 'Denominations may dispose of trust lands granted by the Crown and apply proceeds to denominational purposes'. After 1871, previous grants of church land became, by means of a simple process of registration, the property of ecclesial trusts. If equity had been the order of the day, Aboriginal reserves would similarly have become the property of First Nation trusts, managed in culturally appropriate ways. Instead, the reserves became the sites of notoriously tyrannical management — often in the hands of Christian administrators — and after the amendment to the Victorian Aboriginal Protection Act in 1886, a weapon for breaking up families. Children of mixed ancestry were deemed white at the stroke of the legislative pen and removed from the missions and reserves. The Aboriginal estate in Victoria was steadily diminished. The time has now come to turn that tide, and at the very least, restore every acre ever designated for an Aboriginal reserve (or perhaps negotiated equivalences). In the case of the churches, the Yoorrook Commission recommends that every piece of church land acquired 'for little or no consideration' be returned to the Traditional Owners of that land. Any attempt on the part of churches to reduce this to a biblical 'tithe' would be manifestly unjust. Negotiations about historic buildings may well be necessary. A recent legal development can also be considered in this context. The High Court of Australia has recently handed down a decision of great significance for questions of compensation. The decision in Commonwealth of Australia v Yunupingu (12 March, 2025) relates to a claim lodged by the Gumatj Clan in the Northern Territory, but the outcome raises questions for the entire native title system in Australia. Notably, Mabo v Queensland (1992) excluded a land grant to the London Missionary Society from consideration. But now the past acts of the Commonwealth subject to compensation include the historic grant of a lease in Gumatj country to the Methodist Missionary Society. This new ruling raises the question why the history of Crown grants of land to churches in Victoria should not also be subject to compensation claims. Quite apart from the niceties of law, however, if the churches are to be faithful to their own constitutive values and theology, they will need to lay aside state-endowed privileges and compensate the Aboriginal and Torres Strait Islander people who have been wronged. Professor Mark Brett is a non-Indigenous biblical scholar who teaches at the University of Divinity. Naomi Wolfe is a trawloolway woman who teaches history at the Australian Caltholic University. They both live and work on unceded Wurundjeri Woi Wurrung Country.
Spectator
16-07-2025
- Politics
- Spectator
The crimes of Cecil Rhodes were every bit as sinister as those of the Nazis
This is a brave and learned book. I would recommend it to anyone interested in the history of Africa; who has taken sides in the recent quarrel about 'Rhodes Must Fall', in Oxford or other parts of the world; or who wants to entrench themselves in contrary positions in our apparent 'culture wars'. It is the biography of a vicar's son, born in Bishop's Stortford, Hertfordshire in 1853, who went as a teenager to Africa to join his elder brother who'd bought a plot of land in Natal. One day, walking past a stream by the side of a field, he noticed some pebbles gleaming especially brightly. They were diamonds. By the time Cecil Rhodes enrolled as an undergraduate at Oriel College, Oxford, aged 20, he had an annual income of £23,000 – the equivalent of about £1.5 million today. Money is power, and the diamond and gold mines of South Africa made Rhodes and his pals prodigiously rich. Today's billionaires, such as Elon Musk, may make half-hearted attempts to involve themselves in government, but compared with Rhodes they are lightweights. Here was a man whose fantastic wealth and power mania awoke greed in others – among them Alfred Beit and Natty Rothschild – and who eventually encouraged the Liberal imperialists and Colonial Office in London to embrace the dream of taking over an entire continent. We are still living with the consequences. I know that some Spectator readers think it amusing to see Rhodes as a bit of a hero – or at least scorn those who protested outside the building on the High Street in Oxford adorned by his statue. He was certainly one of the greatest benefactors the university ever had. In his will endowing the Rhodes scholarships he specified that 'no student shall be disqualified for election on account of his race or religion'. William Kelleher Storey explains that, although these are the words, Rhodes probably meant by 'race' simply American, British or German (he set aside three scholarships for Germans) and that he did not necessarily envisage giving money to Africans to study at Oxford. He was entirely deaf to Gladstone's words at the beginning of the First Boer War: 'Remember the rights of the savage, as we call him.' Rhodes was unapologetically racist. Oxford was where his imperialist aspirations flowered. He heard John Ruskin lecture and it made him want England to 'found colonies as fast and as far as she is able'. Reading William Winwood Reade's The Martyrdom of Man when an undergraduate was crucial. Rhodes kept a copy beside him till his death. 'That book – which asserted the superiority of Europeans to Asians and Africans as a matter of scientific fact derived from the evolutionists – has made me what I am,' he wrote. Europeans, he sincerely believed, had the most highly developed intellects: 'Let me ask those who admit the development of all civilised people from a savage state… how it is that Europeans have advanced, while others have remained in a savage state.' The 'Hindoos' and Chinese were cited as being obvious examples. The Colonialist is primarily a work of history, which places Rhodes's actions and achievements in the story of Africa. It is not really a personal book, and I wanted much more about the man himself. For example, he and Leander Starr Jameson (of the celebrated raid) probably had some kind of relationship, but because Storey can find no evidence for Rhodes's homosexuality he does not reflect on it. Rhodes's desire to connect the whole of Africa from the Cape to Cairo and to make it all British is described in meticulous detail. And it was to this cause that he devoted his time and money – from his first discovery of diamonds in his brother's streams to his last days, when he was richer than almost anyone else in the British Empire. By then he was the director of several gold and mining companies and in a position to bribe tribal elders, kings and chieftains with arms and cash to allow him to create a whole new country: Rhodesia. Women play almost no part, and you can't help feeling that the whole story is essentially gay (though I still can't explain why this is so obvious on every page). Open-pit mining for diamonds was catastrophically dangerous, as well as being hideously hard work. But when African labourers fell to their deaths in landslides they were deemed stupid for not understanding the warnings bellowed at them in a language they did not speak. The book astutely reminds us that neither Rhodes nor his American mining engineer and sidekick Gardner Fred Williams had any idea of what life was like in the mines from which they made their millions. Workers would be strip-searched before returning home in case they had stolen a single gemstone, or kept totally naked in corrals for four or five days and then subjected to enemas. Rhodes pressed on from what is now South Africa to take possession of the territories of modern Zambia and Zimbabwe which for decades bore his name – north and south Rhodesia. And it was he who egged on Jameson to launch his raid on the Transvaal in 1895. The attempt to topple Paul Kruger, the Boer leader, was responsible for the Second Boer War, in which Lord Kitchener behaved with unforgettable brutality towards the Boers, exposing them to scorching heat in concentration camps – that British invention – and killing thousands of civilians. Storey's difficulty is that of any historian of European or American background approaching this subject. The Colonial Office and Queen Victoria were initially doubtful about the Rudd Concession of 1888, whereby King Lobengula of Matabeleland supposedly agreed to concede Bulawayo to the British in exchange for guns and money. But even if they doubted the legitimacy of these arrangements, and were prepared to prosecute Jameson for his undoubtedly illegal raid, the British government and their monarch were in the end willing to fight a war to defend the principle which ruled the piratical Rhodes's life. This was that Africa should not be in the hands of the Dutch, the Portuguese or the Germans – and certainly not the Africans. The continent was far better off being administered by British boys who had been to boarding schools and read Rider Haggard. Rhodes's influence, based on gold and diamonds, turned the morally nuanced British nation and Empire, which like most institutions was a mixture of good and evil, into a brigand state. And so the British persuaded themselves that they were entitled to own and plunder Africa, and that such greedy dishonesty was a sign of their moral superiority to the inhabitants. This insanity can largely be attributed to the propensity of suddenly acquired wealth to drive the possessor mad. Rudyard Kipling was a great writer, but his enthusiasm for Rhodes's vision for Africa was deluded. This cannot be a matter of opinion, like taking sides when dis-cussing Charles I vs Oliver Cromwell in the English Civil War. Those who scream with rage against Rhodes and his legacy are simply right and those who try to defend him and what he did are simply wrong. Being a wishy-washy white man of a certain age, I want to add, of course, that this is not a reason why Rhodes Must Fall – if by that is meant not just removing his effigies but seeking to erase his memory. We need to know the history – which is so punctiliously told in this book. It has never been related before in such detail, or with such impartiality, or awareness of the rage which the very name of Rhodes inspires in African hearts. I am glad I'm not a Fellow of Oriel, or Warden of Rhodes House in Oxford, having to work out what to say to the Rhodes Must Fall contingent. Much of Oriel's wealth and the very existence of Rhodes House derive from crimes every bit as sinister as those perpetrated by the Third Reich.
