When and how did Britain claim Sovereignty over Australia?

What is extraordinary about the British claim of Sovereignty over the eastern half of New Holland and Van Diemen's Land is the extent of the area it covered. Even for a Radical Title, which is a term used for how European Powers could claim precedence over certain lands, to negotiate Rentals, Purchases or Treaties ahead of other European Powers, this claim went far wider than the lands ostensibly "discovered" by Cook.

On top of this, this Radical Title was then coupled with the decision to give the British Crown full beneficial ownership, that is, to assume that the Crown was the sole owner of everyone one and everything within the Radical Title.

Neither of these decisions went through the British Parliament, nor, it seems, gained Royal authorisation at the time.

Britain's sovereignty over the lands now known as Australia is based on the lands being a Terra Nullius.

But such a radical decision was way outside Britain's own laws and international agreements of the time.

In 1992, the High Court determined that the lands had been "settled" as if the Doctrine of Terra Nullius had been applied. I dare say the Justices involved were privy to all the historical evidence that led up to the way that these lands being invaded from 1788 onwards, but their arguments published with their decision in 1992 read like a lot of legal mumbo jumbo. The High Court published nothing about the events and decisions which gave rise to the Radical Title/British Sovereignty claim.

In part, this was because such events occurred outside the jurisdiction of Australia's Court system.

The framing of the High Court decision left the First Nations' Peoples having to justify their claims, rather than there be any challenge to the status of the Settler State.

That the final official Instructions to Captain Arthur Phillip in 1787 appear to have been lost does arouse suspicion, (Ref; so the best available information comes from the unsigned (draft) Instructions to Phillip of April 1787 reportedly written by Lord Sydney.

In the UK, the political and public pressure arising from previous attempts at a new prison colony, prior to the proposed Governor, Arthur Phillip, leaving England, shaped his Instructions such that his mission was to create a perception back in England that "Botany Bay" was to be a peaceful settlement which met with little resistance from the "nomadic hunter gatherer" Natives, whether that was true or not.

What was initially planned to be a penal colony somewhere, initially on an island in the present day Gambian River, then a prison colony in present day Namibia, then became a small area on the "Coast of New South Wales", where prisoners were to be sent. But before the First Fleet had left England, the plan changed to become a plan for the biggest land grab in history. The repercussions of this means that the "settlement" now known as Australia is built on the denial of the humanity of, and requires the ongoing denigration of, the culture, law, competency and humanity of the First Nations' Peoples.

It also required ongoing myth making about the Settler State, much of which still persists to this day.

"Australia was discovered in 1770 by Captain Cook" … as if Cook discovered some unknown land.

"Australia was Peacefully settled" … as if the Frontier Wars didn't happen.

"Aboriginal People were primitive peoples isolated from the rest of the world" denying the trade with Makassans, VoC and China which preceded Cook sailing by

Timeline of Events
1763 Royal Proclamation ordering British Subjects outside the 13 colonies to return until after the Crown has made treaties with the Tribes westward.
1770 Cook maps the east coast of New Holland
1773 Hawkesworth's version of Cook's Voyage published which says Cook claimed the east coast of New Holland for Britain.
1775 Cook completes 2nd Voyage and discovers that he supposedly claimed the east coast of New Holland for his King. The 13 American Colonies stop accepting convicts from Britain.
1776 The UK Parliament legislates a bill to hold "transportees" in Hulks on the Thames.
1779 Joseph Banks gives testimony to a Parliamentary Committee recommending Botany Bay as a place to send "Transportees". Idea rejected
1783 Treaty of Paris between Britain, America, France, the Dutch Republic and Spain.
1784 King George the 3rd proclaims a return to Transportation.
1785 Beauchamp Committee set up, Bradley sent off to purchase an island on the Gambian River as the destination for Transportees, an option rejected before his return
Das Voltas (Namibia) survey sent out also before Bradley returns
1786 Das Voltas destination rejected. Botany Bay decided on the very next day.
1787 King George the 3rd announces Botany Bay to be an isolated prison. When the First Fleet leaves in May, the eastern half of New Holland gets called British Territory, with the Crown the sole owner, along with Norfolk Island, mapped by Cook on his 2nd Voyage, for growing and harvesting flax

16 years after Cook mapped the east coast, Britain claimed sole ownership of half the continent

The whole First Fleet operation was put under the Home Office, which in 1785 wasmainly concerned with law and order, theOperation of the secret service within the UK, Protecting the public, Safeguarding the rights and liberties of individuals andColonial matters.

Lord Sydney, who was Home Secretary, and Even Nepean, the under- secretary would have known the legalities involved with the settlement of new lands.

Free, Prior and Informed Consent of the Natives was required, unless those lands were unoccupied, or else occupied by primitive nomadic peoples. But the "primitive peoples" aspect of Terra Nullius had been more or less annulled by the 1763 Royal Proclamation, yet it is what was used in apparent desperation.

Even though LieutenantCook supposedly claimed the whole east coast of New Holland in 1770, that was about a coast, waters and uninhabited islands adjacent to the coast, not about the actual lands of New Holland, which is why no western boundary was associated with that Possession claim.

So what would have happened when the First Fleet arrived, if they "discovered" villages, crop growing and other indications of what the British regarded as more advanced societies?

The Botany Bay Decision

In May 1785, although Banks and Matra had recommended Botany Bay as a place to establish a Prison Colony, this was rejected by the Beauchamp Committee in favour of Das Voltas, (Namibia).

An island on the Gambian River had already met with political and public protests before Britain's envoy had returned from successfully negotiated a purchase from five different chiefs. This option, which MP Edmond Bourke said would be like a death sentence had been declined before the Envoy got back, so a different party was sent out to investigate Namibia as a place to set up a prison. But 12 months later, Namibia was also found to be unsuitable. The very next day after the survey team got back from Namibia, in August 1786, it was agreed that the Coast of New South Wales was where convicts were to be sent, and that Arthur Phillip would head the mission. It's as if Arthur Phillip was already chosen by Lord Sydney regardless of the destination

On 24 October David Collins accepted a commission to be deputy judge advocate of this new prison colony and likewise, by Admiralty warrant, of the marine detachment being sent to Botany Bay.

The orders of 5th December, the 'King's Constitution appointing Andrew Miller, gentleman, Commissary of Stores and Provisions at the intended settlement in New South Wales' signed by Prime Minister William Pitt

By January 1787, King George the 3rd, when opening parliament said:

My Lords, and Gentlemen,
A Plan has been formed, by My Direction, for transporting a Number of Convicts, in order to remove
the Inconvenience which arose from the crowded State of the Gaols in different Parts of the Kingdom; and
you will, I doubt not, take such farther Measures as may be necessary for this purpose.

The earliest mention in Parliamentary Papers of the destination as NSW is on Feb 16th 1787, although PM Pitt had commissioned the Commissary of Stores and Provisions a few weeks prior to this.

And whereas his majesty by two several orders in council bearing date respectively on the sixth day of December one thousand seven hundred and eighty six hath judged fit by and with the advice of his privy council to declare and appoint the place to which certain offenders named in two lists to the said several orders in council annexed should be transported for the time or terms in their several sentences mentioned to be the Eastern coast of New South Wales or some one or other of the islands adjacent.

In the April 2 Letters Patent giving authority for establishing a Court

Offenders should be transported for the time or terms in their several Sentences mentioned to be the Eastern Coast of New South Wales or some one or other of the Islands adjacent

Ref: Founding Docs (pdf)

In his memoirs published 10 years later, Judge Advocate David Collins writes about the early settlement at Port Jackson

As soon as the hurry and tumult necessarily attending the disembarkation had a little subsided, the governor caused his Majesty's commission, appointing him to be his captain-general and governor in chief in and over the territory of New South Wales and its dependencies, to be publicly read, together with the letters patent for establishing the courts of civil and criminal judicature in the territory, the extent of which, until this publication of it, was but little known even among ourselves. It was now found to extend from Cape York (the extremity of the coast to the northward) in the latitude of 20 degrees 37 minutes South, to the South Cape (the southern extremity of the coast) in the latitude of 43 degrees 39 minutes South; and inland to the westward as far as 135 degrees of East longitude, comprehending all the islands adjacent in the Pacific Ocean, within the latitudes of the above-mentioned capes.

Judge Advocate Collins thought the British claim, and his jurisdictional authority was just to a coast, as per his Commission from April 2nd, which correlates with the purported Possession Island claim of Cook, whereas Instructions to Phillip, drafted three weeks later, on April 25th 1787, appointed Phillip the Governor over half a continent. With no legal training, they were just following orders Sir.

It is a strange situation.

There does not appear to be any Parliamentary Legislation about the extent of "Our Territory called New South Wales", as per the Instructions to Phillip. His Official Instructions are said to be lost, so there's only the unsigned draft Instructions to go by. These unsigned "draft" Instructions may be all there is.

This massive leap from a claim of possession of a coast, to a claim of ownership of half a continent, which first appears in Instructions to Arthur Phillip, April 1787 is where the Terra Nullius idea comes in.

Phillip is to be Governor over the whole eastern half of New Holland and Van Diemen's Land, and the only law applicable on these lands is to be Crown Law (The Common Law of England and Wales.

Even if Cook's Proclamation on Possession Island is true, it was only to a coast, waters and adjacent (uninhabited islands) from Point Hicks (Victoria) to the tip of Cape York. But the Radical Title presumed by Britain covered a far greater stretch of coast and also a vast area inland.

That Governor Phillip was commissioned as Governor over half the continent including Van Diemen's Land, and not given any authority to Treaty with any "Natives", but rather, to start granting out their lands to convicts after they had done their time, indicates that the Crown had already assumed sole ownership of the lands, prior to the First Fleet arriving at Botany Bay.

The Doctrine of Discovery concept of Radical Title over lands usually requires a settlement having been established soon after "discovery" yet Instructions to Phillip April 1787 appoint him as Governor of "Our Territory called New South Wales" and specify the extent of such "British" (sic) territory. At the time Phillip's Instructions were written, this could not have been British Territory, even if they had intended to make treaties with the Natives on arrival, not until such treaties were made.
Thus, Phillip's Instructions are not even based on Radical Title and have no basis in law.

But Britain went further. They claimed full Sovereignty and total beneficial ownership.

This big jump from a decision to begin a prison colony on the Coast of New South Wales (or earlier, to Botany Bay) could have been sorted with a negotiated arrangement with the locals, (New Hollanders) when the First Fleet arrived, but for reasons unknown, a short time prior to the First Fleet's departure, in the (draft) Instructions to Phillip, April 1787, he is to be Lieutenant Governor over half a continent.

In effect, Phillip's Instructions are not just an expansive claim of Radical Title, but more so, without any provision for Treaty Making, the Instructions are a claim of absolute Sovereignty by Britain, which means that the Doctrine of Terra Nullius had already been applied before the First Fleet had left England
This is not something that Australian Courts have elaborated on.

As to what led to this Terra Nullius of half a continent decision, one can only speculate. Was it just that Britain saw a chance and grabbed it with total disregard to their own laws and international agreements? It has been argued that although the Dutch were first discoverers to some parts of northern Australia claimed by Britain, the Dutch had not acted on their claim. This is untrue, since via the Dutch East India Company, there was ongoing trade with the people of Arnhem Land and the Gulf of Carpentaria, so the only difference was that the Radical Title held by the Dutch respected the property and cultural rights of the New Hollanders.

Even James Cook, in his much amended Journal has it written that on 22nd August 1770, the same day as the "Possession Island Proclamation" was said to have occurred,

... there for may land no more upon this Western Eastern coast of New Holland and on the Western side I can make no new discovery the honour of which belongs to the Dutch Navigators and as such they may lay claim to it as their property ...

[The crossed out parts suggest to me that Cook's Journal was still being amended on or after 1787, to better fit with the Instructions to Phillip.]

A few months prior to his Instructions being drawn up, Arthur Phillip had requested from Under-secretary Evan Nepean, a way to punish badly behaving convicts that was worse than death. His suggestion was that such prisoners could be confined somewhere then shipped and dumped in New Zealand, to be eaten by cannibals. Since this fear of being eaten by savages was what made the Gambian River proposal so politically and publicly unpalatable, such a threat hanging over the heads of convicts would have meant that Botany Bay would have been no better an option than the island on the Gambian River.

Refs: 1 Journal of the House of Lords. Vol XXXVII 1783 to 1787. pp 578-579. 2 CO 201/2 f 142-143. 3
HRNSW. Vol 1. part 2, pp.67-69.Cited page 18, 19 here

Soon after his commission as Governor of New South Wales, Arthur Phillip wrote to Evan Nepean for clarification of several points for the success in keeping the convicts in order. As the convicts were already under threat of death if they should commit a felony of murder or sodomy in New South Wales he wanted to be able to retain a threat that was even worse than death as punishment, and that was to "confine the criminal till an opportunity offered of delivering him as a prisoner to the natives of New Zealand, and let them eat him."

( Phillip's Suggestions. HRNSW vol. I part II p 53. )

It was probably Lord Sydney or someone else at the Home Office who came up with a different way to control the behaviour of the Convicts, and that was to grant out 30 acres, 20 more if married, to male convicts of good behaviour after they had done their time. This is in the (draft) Instructions to Phillip, April 1787.

Historians often describe this as a very enlightened attitude, and attribute it to Governor Phillip. Phillip did not write his own Instructions, nor were they enlightened at all. It required the Crown to grant out lands it presumed to already own, completely denying the Property Rights of the First Nations' Peoples by applying the Doctrine of Terra Nullius. Because such "generosity" by the Crown required an ever expanding amount of land to be pilfered, much more than what an isolated prison colony would require, it seems that what was at first intended to be just a prison colony on the coast of New South Wales became the theft of half a continent, converted to Crown Land by the stroke of a pen, making the British Crown the sole owner, and Crown Law the only law seen to apply.

Soon after Governor Phillip arrived at Sydney Cove, on the 7th of February 1788, he made no big proclamation about claiming the lands for Britain, since according to his Instructions, the lands already were British Territory. Phillip writes of drinking to the King's health and to the success of the settlement.

Although Australian Courts have suggested that it was Governor Bourke in 1835, when cancelling Batman's Treaty, who caused the first instance of the Doctrine of Terra Nullius to be officially applied, this was the first time someone within the jurisdiction of the "Australian"Courts had applied Terra Nullius in a legal sense.

It had been happening since 1788, but the original decision to act as if the Doctrine of Terra Nullius be applied was made outside the ambit of Australia's Court system, having been decided in England in 1787.

Noteworthy too, that by June 1788, a few months after arriving, Governor Phillip decided that he'd better commission Judge Advocate Collins an additional title as Secretary to the Governor (or to the Colony as preferred by Collins), whereas Collins' initial jurisdiction when appointed in England 2ND April 1787, was to be Judge Advocate to a prison colony on the Coast of New South Wales only.

Like Arthur Phillip, they were both semi-retired after fighting for Britain against the 13 colonies, Phillip a Navy Officer, and Collins an officer in the Marines, neither with any legal training, and both had been on half pay since Britain was no longer said to be at war, well not until accepting these commissions.

Where are we now?

The High Court says that the matter of the unceded Sovereignty of the First Nations cannot be determined within any Australian Court. Likewise, the High Court also says that "British Sovereignty" is not something that can be questioned by any domestic Australian Court and it's easy to see why. Not only would it usurp the legal authority of the Court itself, Britain's claim of Sovereignty concerns matters that didn't occur within Australia, so are outside of the jurisdiction of Australia's Courts. Although it's apparent that Britain's claim of Sovereignty has no basis in law, the status quo remains.

In 1986, when the Mabo (and others) versus Queensland Case was still in the lower Queensland Courts, the Australia Acts were legislated to prevent appeals from State Supreme Courts being appealed to the UK Privy Council. The Australia Acts required the passing of legislation in each State and Territory Parliament, the UK Parliament and then the Commonwealth of Australia Parliament. Queen Elizabeth the 2nd made a special trip to Canberra to give Royal Assent personally to the Australian Parliament's legislation.

It seems that the 1986 Australia Acts were an attempt to "hermetically seal" Australia's Courts and Constitution by Her Majesty, with the unanimous support of all of her Australian Parliaments and the UK Parliament, hoping to create a legal stalemate by locking in the Mabo Case within Australian Courts.
Following the Mabo Decision in 1992, then Prime Minister Keating rounded up seven "Aboriginal leaders" (sic) each of whom was likely to personally benefit from what he had planned, which was to legislate Native Title 1993, which was to apply only to lands that the Crown hadn't already found a use for.

Ironic indeed that Native Title was legislated in 1993, it only applied to what European eyes considered to be "wastelands and desert".

Meanwhile, the unceded Sovereignty of the First Nations goes unacknowledged, and the Settler State, by right of the Crown, continues to claim ownership of the resources and the Allodial Title to all of the lands by right of the Crown.

Somewhat perversely, it is the Crown which grants out Native Title.

Since 2007, there's been an ongoing push by the Governments to specifically include Aboriginal and Torres Strait Islanders inside Her Majesty's Constitution, just to tie up that one loose thread.

The Constitution of the Commonwealth of Australia is basically the set of Rules by which six illegally settled British Colonies federated, and it spells out which Government, State or Federal, is responsible for the differing areas of governance.

Why do Governments so want to put Aboriginal and Torres Strait Islanders inside such a document?

Letters in the London Papers, English Autumn 1786

Gentleman's Magazine, Historical Chronicle, 1786, vol. 56 / part 2, London 1786, p.903.

A plan is said to be formed, and how actually carrying into execution, for settling a new colony at Botany Bay in New Holland, at which place Lieutenant Cook, in his survey of the eastern coast of that continent in 1770, made some stay to repair his ships and to refresh his men. As the ostensible design of the projectors is to prepare a settlement for the reception of felons, no place, in the opinion of many, can be more improper for that purpose than Botany Bay, to which it is impossible they can be transported, when they arrive, without a miracle. The Eastern Coast of New Holland is perhaps the most barren, least inhabited, and worst cultivated country in the southern hemisphere, and Botany Bay is at too great a distance from any European settlement to receive either succour or friendly assistance … If this report is true, the expense will be equal to that of an expedition to the South Sea against an enemy; and if it is to be continued with every freight of felons, it will annihilate the surplus that is intended for augmenting the fund appropriated for the payment of the national debt-it is certainly a most extravagant scheme, and probably will be reconsidered.

Morning Herald, 23 September 1786

Mr. Editor, The transportation of felons to Botany Bay, seems the most extraordinary of all the extraordinary measures adopted by the present immaculate administration. The climate is said to be good, but the inhabitants inhospitable. Those, therefore, who are the pests of Society in this country, are to be favored with a settlement in a much more delightful region than that from which they are removed; and the natives because they are justly and naturally jealous of such invasion, must be destroyed by the armed force which is sent out with the convicts, to support the occupancy of lands not their own. I should have thought that a slight regard to the common rights of mankind might have prevailed in the breasts of the ministers who consulted upon this plan; and that they would have revolted at the idea of so much human blood being spilled in such unjustifiable acquisitions.

Daily Universal Register, 14 October 1786

It is supposed that a gibbet (hanging frame) will be the first exotic the poor natives of Botany Bay will see planted among them; and it is probable the first fruit it bears will be from the hopeful blossoms that are sent from this country to give examples of mortality to the new [sic] Hollanders!

These letters are taken from this article by Alan Atkinson.

Even Cook's Chart of the Southern Hemisphere, 1775, calls the continent New Holland, with New South Wales, whether it was Cook's idea to name it that or not, only referring to the eastern coast.

This naming of NSW is similar to "The Landt of Pieter Nyets" on the south coast, Dirk Hatog's Landt, on the west coast, and Arnhem's Landt along the north coast.

But it didn't matter what the English Public thought or what James Cook may have written, the only decisions that seemed to matter were made by an exclusive men's club who met in an elaborate and grandiose hall where they performed ritualised processes to legislate some seemingly innocuous decisions.

Indeed, to "legally" steal half a continent only required a decision to appoint a Judge Advocate, appoint someone else to organise supplies for a fleet of ships, and legislation to set up a Court.

Presumably, the other decisions involved were considered too contentious to be debated in Parliament. All those other "minor" details seem to have been looked after by the Home Office.

No wonder the Queen made a special trip to Canberra in 1986.

Research by Graeme Taylor