Resurrection of the History Wars

Cevpq8WW4AARSdmAs you can see from the above image,  the Daily Telegraph revived John Howard’s History Wars the other day. Indeed they even disinterred Howard’s favourite undead RWNJ historian Keith Windschuttle to lend an air of faux integrity to the whole unedifying clickbait exercise:

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Windschuttle’s characterisation of the historical international law position is in a sense accurate but also misleading and deceptive.  Although Justice Brennan’s reasons in Mabo v Queensland (No 2) (1992) 175 CLR 1 are the ones most commonly cited, the decision of Deane and Gaudron JJ succinctly reveals the cynical duplicity inherent in Windschuttle’s statement:

The international law of the eighteenth century consisted essentially of the rules governing the relations and dealings among the nations of Europe. Under it, the three main theoretical methods by which a State could extend its sovereignty to new territory were cession, conquest and settlement. Settlement was initially seen as applicable only to unoccupied territory. The annexation of territory by “settlement” came, however, to be recognized as applying to newly “discovered” territory which was inhabited by native people who were not subject to the jurisdiction of another European State. The “discovery” of such territory was accepted as entitling a State to establish sovereignty over it by “settlement”, notwithstanding that the territory was not unoccupied and that the process of “settlement” involved negotiations with and/or hostilities against the native inhabitants.

In other words, as long as one could dismiss the Indigenous culture as “low on the scale of social organisation” (seldom a problem for the proud European racists of the 18th Century), the concept of “settlement” included invading territory that was not unoccupied and waging war against (and slaughtering) its native inhabitants.  Accordingly, Windschuttle’s assertion about international law isn’t really saying anything at all about whether the British “invaded” Australia and slaughtered many of its original inhabitants.  This article by Kate Galloway contains more detail about the notion of “settlement” and its 18th century interpretation.

Windschuttle’s core historical project has been that of Holocaust Denialism in relation to alleged massacres of Indigenous Australians by white settlers (and police).  He argues that the reports of massacres are wildly exaggerated. John Howard as Prime Minister seized on Windschuttle’s work to launch the political History Wars and denounce “left-leaning” academics and lawyers (and Labor politicians) as the “black armband brigade“.  Windschuttle relies on the fact that official records of white massacres are fairly sparse.  But it would hardly be otherwise given that the official records were largely maintained by colonial police officers who were themselves prominent agents of slaughter.

The overwhelming majority of historians take issue with Windschuttle and his few supporters. Moreover, recent research suggests that the scale of the slaughter may well have been much greater than even the black armband brigade has heretofore claimed.  As this article by Paul Daly outlines:

An instructive starting point: Indigenous warriors who resisted invasion certainly regarded it as war, as did numerous colonial authorities including governors, not least Lachlan Macquarie – a vicious, calculated murderer of his colony’s Indigenous people.

While conservative estimates would put Indigenous deaths at the hands of soldiers, “native police”, militia, explorers, miners and farmers at 30,000, recent credible academic research indicates the figure in Queensland alone was 65,000. Although violence against Aboriginal and Torres Strait Islander people was most extreme in Queensland, a conservative national extrapolation potentially adds another deeply unsettling dimension to Australia’s malevolent recent history.

A “conservative national extrapolation” assuming murders at only around half the apparent rate in Queensland suggests a total body count exceeding 200,000.  Those numbers squarely raise the question of genocide, at least as a historical (though not legal) fact.  Genocide was agitated unsuccessfully in the First Stolen Generations Case (Kruger & Ors v Commonwealth (1997) 190 CLR 1) in the context of an argument that the forced removal of Aboriginal children from their families constituted “cultural genocide”, and in Coe v Commonwealth (1993) 68 ALJR 110 (see brief summary) in relation to the broader concept of genocide including physical genocide.  Both cases illustrate in different ways the insuperable difficulties facing any litigant seeking to prove genocide in a court of law and obtain any sort of legal remedy.  The outcome of those cases doesn’t deny the reality of genocide, but emphasises that the legal system is not a very useful tool for obtaining social justice and redress.  Any modern attempt to re-litigate the genocide question in light of research suggesting deliberate murders totalling over 200,000 would not only face the arguments that proved fatal in Kruger and Coe, but also the problem of proving a coherent genocidal intent.  As my sometime CDU colleague Matthew Storey discusses in a 1998 article focusing on the Stolen Generations situation, genocide in international law will require proof of intent to destroy a racial group, whether in whole or in part.  Even at its highest, the evidence does not prove this.  Neither colonial authorities nor the Commonwealth manifested such an intent per se. They were simply willing to do whatever it took, up to and including wholesale slaughter on an industrial scale, to subdue the “natives” and achieve unchallenged control of Australia’s land mass.

Governor Macquarie’s attitude and contribution are encapsulated in this graphic:

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The thing is, this isn’t merely an entertaining diversion for Mr Murdoch’s minions to use as circulation-boosting clickbait.  The most recent large scale massacre of Aboriginal people was the Coniston Massacre here in the Northern Territory in 1928:

Official records at the time stated that 31 people were killed. The owner of Coniston station, Randall Stafford, was a member of the punitive party for the first few days and estimated that at least twice that number were killed between 14 August and 1 September. Historians estimate that at least 60 and as many as 110 Aboriginal men, women and children were killed. The Warlpiri, Anmatyerre and Kaytetye believe that up to 170 died between 14 August and 18 October.

Large numbers of the children and grandchildren of the Coniston survivors are still alive and coping with the consequences.  Similarly with the sexual abuse of Aboriginal children at places like the Retta Dixon Home and the wider phenomenon of the Stolen Generations (whose reality Windschuttle also denies).  The children and grandchildren of those victims also still live with the consequences: fractured families, violence, alcoholism, chronic unemployment and elevated levels of criminality.

Just as Godwin’s Law supposedly renders Nazi analogies unacceptable in civilised discourse, surely media clickbait beat-ups about whether Australia was invaded and its inhabitants slaughtered should also be regarded as beyond the pale.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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conrad
conrad
5 years ago

I think the idea that most people actually care or even think about legal definitions from hundreds of years ago, or even definitions based on current law, is pretty unlikely when seeing this sort of stuff. It reminds of the crazy stuff the Chinese communist party comes up with for their invasion of Tibet, although they generally appeal to scientific non-sequiturs (they’re genetically Chinese) or historical facts with a similarly poor bases for justifying their actions (they were Han Chinese about 2000 years ago, China owned that bit of land in 1652…)

Florence nee Fed up
Florence nee Fed up
5 years ago

Sorry it was an invasion. The law was wrong.

Florence nee Fed up
Florence nee Fed up
5 years ago

Sorry it was an invasion. The law was wrong. Slavery was legal in many places. Didn’t make it right.

paul frijters
paul frijters
5 years ago

I get a distinct sense of Christian deja vu hearing stories with the message that ‘we were born in sin’. I find it puzzling that any significant group would voluntarily wear that mantle.

paul walter
paul walter
5 years ago

From a Platonic point of view that comes very close to the ideal form, as to racist colonialism. The one point that could be of worth from the opov is that it may be that mores were different two hundred years ago.

Anyway, isn’t history really a catalogue of often quite exotic forms of often pointless brutality involving the species?

ChrisB
5 years ago

And the right is always on about sovereignty, and how wrong it is that, say, the UK may be required to obey EU directives that its own institutions haven’t consented to, or Australia may be bound by a UN directive; yet has no problem with the 18thc equivalent of the EU essentially saying “Our law says you have to let us come over and take all your land and hang you if you object. No, you don’t get a say in this…. Sorry, I don’t make the rules. Wait, no, I do…”

David Walker
David Walker
5 years ago

Quite apart from anything else, Windschuttle’s comment reveals a lack of understanding of the difference between the ordinary use of the word and its meaning in a particular legal context. The difference is important and not that hard to understand. You can accept that under Mabo Australia was a “settled” colony for the purpose of indigenous property rights and still say that the place was invaded.

In Australia, the facts on the ground are a little more complicated and nuanced than the term “invasion” usually implies. 1788 wasn’t the Norman Conquest or the Normandy landing. Nor was 1835, the year of Melbourne’s establishment. But if you want to capture these complex events with a one-word summary – the type in which the Tele usually delights – then “invasion” seems to fit.

In the Victorian context, the best description of what went on is in James Boyce’s terrific book 1835: The Founding of Melbourne and the Conquest of Australia. There were British government figures in the 1830s who really did want Victoria to be established under rules that respected the established indigenous population. They lost or simply gave up the fight to those many inside and outside government who were happy to have the indigenous population overrun by force of arms.

In a 2011 review in The Monthly, the reviewer summarised the establishment of European Victoria as follows:

“Our forebears preached protection of native people and the blessings of Christ while they largely destroyed a people and a way of life. If you ever walk quietly along Robert Hoddle’s wide boulevards or along the banks of the Yarra, tamed to look like an English river, listen carefully. You may hear the weeping of the Kulin – betrayed, dispossessed, but not yet quite forgotten.”

The reviewer was a bloke called Malcolm Turnbull.

john Walker
john Walker(@johnrwalker)
5 years ago
Reply to  David Walker

The Lamb enters the Dreaming, by Robert Kenny. And Forests of Ash( which covers a fair bit of the fate of Victoria’s indigenous people) by Tom Griffiths are also worth a read in this context.

paul frijters
paul frijters
5 years ago

Hi Ken,

I tried to look up the 2014 UQ study by Evans and Jensen you and the Guardian journalist rely on to arrive at such high numbers of casualties. Something bothers me about it: they immediately self-published it as a book with a completely unknown publisher, not a known academic publisher that would have subjected it to peer-review. And whilst initially, top-historians were very positive, the ‘findings’ dont seem to have made it in the official canon of the historians yet.

It is very odd to self-publish this kind of time-intensive research because it is so important to careers to publish well, particularly for relatively junior researchers like these two (neither are full profs). If they really put in the large amount of effort they claim, then surely they would have wanted to publish it with a recognised academic publisher? And surely they would have presented it in many more places than just at their own university (as seems the case)?

So, a simple question: what is the status of this research at the moment? Is it a serious piece of research or not? In economics, you’d normally not touch self-published stuff unless its from senior academics who already have a reputation.

As far as I can make out, they do a lot of extrapolations based on quite limited documented body-count data (ie they seem to presume that the ‘dispersal’ raids of the Native Police without a body-count were as deadly as the ones that did have one). Such extrapolations are ok if done carefully, but you certainly want to see independent researchers validating it.

John walker
5 years ago
Reply to  paul frijters

Paul I had not heard of this research. Did they go through police ,government records etc, and then extrapolate for under reporting?

(Not sure that it matters that much whether it was 5,000 or 100,000 that were shot etc.)

Part of the problem is we do not really know how many were living here prior to about 1780 ( particularly in the SE corner of Australia where most of the first 50 years of settlement took place and where most traces were quickly erased).
Estimates for total national figures over the years have ranged between a few hundred thousand to possibly as many as a million.

Population densities in the SE corner were almost certainly higher than in most of Australia – it is on the whole reasonably fertile and reasonably well watered ( by Australian standards)
Some areas , for example the Murray some parts of the coast and the daisy yam fields of the western districts are known to have had fairly high pop densities , people who were fairly sedentary and who largely quickly ‘ disapeared’.
However am told its very hard to estimate how many died because of very contagious diseases such as smallpox and the flu, reaching them prior to actual contact. Or who subsequently died from lack of good food, despair , grog etc, rather than by gunshot etc.
The memorial at coranderrk lists about 300 people who are known to be buried there, many came from the regions around Melbourne but others are from all over victoria – by then they had ‘nowhere else’ to go to and then, they were chucked out, the land they were on was too attractive…

derrida derider
derrida derider
5 years ago

Gee the Telecrap is a useless paper. Phillip Cook didn’t invade anywhere. That happened after his time.

There is good evidence of a massive population decline in the early 18th Century – almost certainly, as John Walker says, because of inadvertent epidemics of European diseases. Of the decline subsequent to white settlement I reckon no-one can really know how much of it was due to epidemics, how much to dispossession and how much to massacres – the whole debate here is a bit fatuous. Though given how technically difficult deliberate genocide has proved as a policy in the 20th Century, you have to suspect that with 19th Century technology the massacres were not a quantitatively major factor in the decline.

But that there were massacres we do know. And that it was an invasion we also know, whatever twists and turns 18th century lawyers made to define it away.

John walker
5 years ago

Derrida
People coming out of the slums of London, the most cosmopolitan international trading City in the world , must have been effectively walking ‘ germ warfare bombs’ , exposed and relatively resistant to all sorts of diseases. And they arrived in a place , SE australia,that had had no exposure for 40,000 years.

BTW It is thought that those up far north , because of Malay fishermen etc , had more resistance. Have also read that smallpox ( and cats and tobacco)may have already been up there well prior to 1788. Many acounts of first contacts up there do suggest that smoking tobacco was known (and sought after) whereas grog was not known or liked ,at least initially.

derrida derider
derrida derider
5 years ago
Reply to  John walker

Yep – that’s why I said there was a big population decline in the early 18th century – after the first white contact (think Rotterdam via Batavia, not London, slums) but well before the white invasion.

john Walker
5 years ago

DD
As you probably know there is specific genetic evidence that at least some of the dutch stranded on the WA coast lived long enough to have had children with local indigenous people.

However in general it would be enough for a man with a gun to simply deny access to a important food or water source particularly in a hard year, to have pushed many over the edge, no need to shoot, simply starve the children would be enough.

rog
rog
5 years ago

An abstract and ppt of the paper here http://orsted-jensen.weebly.com

john Walker
5 years ago
Reply to  rog

Rog on a ,quick look , it seems to be ‘ extrapolation’ gone a tad mad.
BTW
On a more technical point Snider rifles we’re notorious for their extreme unreliability. ( the likes of the kellys had total distain for them ).
Those guns also date to long after most of the more populous parts of SE Australia were, for better or worse, well and truely , settled.

For most of the first 50 years of occupation the standard weapon was the brown Bess (or similar) slow to load and only accurate to 100 m at best- it is in the years 1788 to about 1850 that most of the best country was taken.

john Walker
5 years ago
Reply to  john Walker

The above is only a rough quick outline, by about 1840 the standard British infantry gun was percussion cap fired and rifles were increasingly common.
However by the time that breach loading rapid fire long range guns became common in Australia, most of the dispossession in the most populous had already happened.
While invasion is accurate enough its also at the same time a bit misleading.

Not that the history culture warriors would care.

paul frijters
paul frijters
5 years ago
Reply to  rog

yes, I had already found it there. The whole paper is on SSRN too.

Some history PhDs clearly like the study though: it was positively cited by two new Melbourne history PhDs (one finished in 2014 and one about to):

Thomas James Rogers & Stephen Bain (2016) Genocide and
frontier violence in Australia, Journal of Genocide Research, 18:1, 83-100, DOI:
10.1080/14623528.2016.1120466

They see genocides in many events in Australia in the last 200 years. The new history wars seem here to stay.

paul frijters
paul frijters
5 years ago
Reply to  Ken Parish

Hi Ken,

yes, its a little mystery all of its own. The website extolling the virtues of the book gives cites from many well-known historians. But those same historians never cited the thing – it has only 3 cites and two of those should count as ‘obscure’ with the only ‘serious one’ the one I mentioned above, an invited piece written by two junior Melbourne PhDs.

Funnily enough, the wikipedia page on this issue mentions a lot of the Evans work, so he or one of his admirers probably sees to that bit.

The higher number indeed goes from an already high 2010 number, in the sense of being higher than anyone else claims.

It’s distinctly fishy.

Btw, there’s another irony I noted when trawling through the material: it would seem the shootings in Queensland mainly involved the Native police that in turn seems to have relied mainly on indigenous peoples to do the actual shooting (though the guy in charge of any reversal invariably seems to have been white). Not their proudest moment either!

john Walker
5 years ago
Reply to  Ken Parish

Wonder why they have done this? Its an open invitation to the ‘ white armband’ mob – after all it is a big dubious extrapolation .

BTW
The arrival of men with guns (my ancestors )must have deterred many indigenous women and children from even approaching many of their best hunting feeding grounds etc .

in short you do not need to ‘ over egg’:

In any war cutting ‘supply lines’ is decisive and it has allways killed far more than direct fire.

john Walker
5 years ago
Reply to  Ken Parish

Paul re the native police
Going of Reynolds ‘ the otherside of the frontier ‘, most of the killing in the north was done by people from southern tribes hired and moved.

After all the typical white plod of the time was out gunned ( the Snider rifle misfired or jammed about thirty percent of the time) and outmaneuvered by even the most inbread white gangs of the time…

rog
rog
5 years ago

Re the use of native police, it’s not reasonable to draw conclusions from the conduct of a few and apply it to the entire population, particularly when race is used as a determinant.

For that matter many white people were against the violence used against aborigines however it appears that they were in the minority.

https://en.m.wikipedia.org/wiki/Australian_native_police#Establishment

rog
rog
5 years ago

Available as a download and titled “The way we civilise : black and white, the native police” dated 1887 from the NLA

David Walker
David Walker
5 years ago