Tag Archives: Native Title

Social Commentator

Review of “Mabo Revisited”

The work excels in its rigorous examination of the High Court’s decision-making process, questioning the constitutional legitimacy of extending native title rights to mainland Aboriginals. This scrutiny adds an original and provocative viewpoint to the ongoing discourse about the judicial interpretation of indigenous land rights in Australia. Additionally, the book’s thorough historical context helps frame the Mabo decision within a broader socio-political narrative, offering critical insights into often-overlooked judicial dynamics.

The core argument centres on the proposition that the High Court delivered an advisory opinion rather than a binding judgment, thereby overstepping constitutional limits.

The intersecting domains of constitutional law and indigenous rights form the robust foundation of this book. However, the discourse presented here also touches on ethical considerations, specifically concerning the judiciary’s role in advocating social justice versus adhering to procedural restraints. The narrative implicitly invites debate about the evolving role of judicial bodies in shaping societal norms, a matter of keen interest in broader legal and ethical contexts.

Summary Assessment

“Mabo Revisited” advances an intellectually stimulating conversation about the constitutional ramifications of landmark legal decisions in Australia. While its core thesis challenges prevailing judicial norms, its broader implications call for a re-evaluation of judicial activism and its societal impacts. This work is a compelling read for those interested in constitutional law, judicial processes, and indigenous land rights, contributing to an ongoing examination of how law adapts to societal needs.

In closing, while the arguments presented are indeed contentious, they provoke necessary discourse on the judiciary’s role in modern governance. Such discussions may ultimately lead to a more nuanced understanding of the balance between judicial intervention and restraint.

Mabo Revisited High Court Shenanigans, Paperback, Perfect Bound, A5, 129 pages, ISBN: 9780994638182. Available online as a Ebook from Amazon Kindle @ US$6.50 or a paperback from Ebay Australia @ $19.99.

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MABO No. 2 – 1992.

Chapter 5 ― High Court of Australia

The Constitution of Australia is based broadly on the principle of ‘responsible government’ and the separation of powers doctrine, where the powers of the Constitution are shared or divided amongst the Parliament, the Executive and the Judiciary. The High Court of Australia is the principal or premier court of Australia and determines, among other things, issues of constitutional law and the laws of Australia.

In re Judiciary and Navigation Acts, the High Court held that the High Court cannot give advisory opinions.[1] It has no power or jurisdiction to determine abstract questions of law without the right or duty of any body or person being involved. The High Court’s constitutional function, which is judicial, is to give relief inter partes or ex parte and must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law.[2]

In North Ganalanja Aboriginal Corporation and Anor for and on Behalf of the Waanyi People v The State of Queensland and Ors, the question of advisory opinions by the High Court came up for determination.[3]

McHugh J. in considering the granting of special leave on the pastoral issue, said:

39. Obviously, the Court could not grant special leave to decide the pastoral lease point if it concluded that special leave to appeal should be granted on the procedural issue on the ground that the Tribunal erred in refusing the application of the Waanyi People. Upon granting leave and allowing the appeal on the s 63 procedural issue, the only order that the Court could make was the one that it did make. That is to say, that the judgment of the Federal Court be set aside, that the appeal to that Court be allowed and the Registrar be directed to accept the application of the Waanyi People. If the Court had also granted special leave and purported to give an opinion on the extinguishment issue, it would have given an opinion which it had no constitutional jurisdiction to give. The opinion of the Court would have been an advisory opinion. It would have been giving an opinion on a matter that did not arise because, ex hypothesi, the order of the Court on the procedural issue would direct the Tribunal to accept the application. The Constitution gives this Court no jurisdiction to give advisory opinions in either its original or its appellate jurisdiction.

Kirby J. held on the question of the limits of advisory opinions:

42. I cannot agree for a moment with the proposition that the determination by the Court of the “pastoral lease question” would have amounted to the impermissible provision of an advisory opinion, forbidden by the Constitution and the Court’s past authority. Nobody suggested during argument that it would be so. In my opinion this is because, manifestly, it would not.

43. The current rather narrow state of authority on the Court’s original jurisdiction to provide advisory opinions may one day require reconsideration as the Court adapts its process to a modern understanding of its constitutional and judicial functions. Since In re Judiciary and Navigation Acts was decided in 1921 there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions. For example, the scope of the availability of the beneficial remedy of a declaration, to deal with an apprehended threat of invasion of rights, has expanded greatly, overcoming in the process some of the same resistance as lay behind the refusal to provide advisory opinions. The judicial function is not frozen in time. This Court should remain alert to developments in judicial procedures which further, in proper ways, the defence of the rule of law. So far as is compatible with the judicial function, courts should endeavour to be constructive and useful to parties in dispute. If courts do not adopt this attitude, those parties will look to other means, rely on their power or be left unrequited by their expensive visits to the courts.

Of course, the “pastoral lease question” was settled by Wik Peoples v Queensland (“Pastoral Leases case”).[4]

The plaintiffs litigated Mabo No. 2 by alleging that since time immemorial their ancestors, and, thus, they, had owned and had rights in particular areas of land on the Murray Islands, the surrounding sea and seabed and reefs in accordance with their laws, customs, traditions and practices and that the annexation of the islands by Queensland in 1879 was subject to the rights of their predecessors in title. They sought various declarations to that effect. Importantly, the plaintiffs sought declarations in respect of particular plots of land or with respect to the seabed, seas and fringing reefs allegedly owned by those individuals and their family groups—ultimately 36 blocks were claimed by Eddie Mabo, one by Dave Passi and four by James Rice.[5] Moynihan J observed that during the course of the hearing the pleadings (statement of claim, defences and replies) evolved through a number of editions. A final version was handed up to the High Court on 31 May 1991 with a further addition on 3 June 1991.[6]

Set out below are the statements by each Justice of the issue or matter before the court for determination:

Mason C.J. and McHugh J. made no specific comment.

Brennan J. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.

Deane and Gaudron JJ. The issues raised by this case directly concern the entitlement, under the law of Queensland, of the Meriam people to their homelands in the Murray Islands.

Toohey J. 2. The plaintiffs claim that they or the Meriam people are, and have been since prior to annexation by the British Crown, entitled to the Islands: (a) as owners (b) as possessors (c) as occupiers or (d) as persons entitled to use and enjoy the Islands. The declarations now sought give primacy to the rights of the Meriam people rather than to those of the individual plaintiffs.

Dawson J: 3. The plaintiffs are Murray Islanders and members of the Meriam people. Each of them claims rights in specified parcels of land on the Murray Islands. The basis of their claims is, alternatively:

(a) their holding the land under traditional native title;

(b) their possessing usufructuary rights over the land; or

(c) their owning the land by way of customary title.

The observant reader will note that the Justices stated the issue before the court differently. Brennan, Deane and Gaudron JJ. stated the issue in the broadest of terms. Toohey J. stated that the issue had moved from the rights of the individual plaintiffs to the Meriam people. While Dawson J. stated the issue as pleaded by the plaintiffs.

The exercise of judicial power by the court is in the making of its orders, not the giving of its reasons.[7] On first reading the judgments of the Justices, one is struck by the polemical argument relating to mainland Aboriginals. Only after reading Dawson J’s judgment, which is straight up and down, does the reader realise that his reasons fit his decision like a glove, which was to refuse the declarations sought by the plaintiffs. The same cannot be said of Brennan, Deane, Gaudron and Toohey JJJJ. (Gang of Four).[8]

How were Mainland Aboriginals joined?

Brennan J.: 24. Nor can the circumstances which might be thought to differentiate the Murray Islands from other parts of Australia be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands. As we shall see, such a ground of distinction discriminates on the basis of race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. It will be necessary to consider presently the racial or ethnic basis of the law stated in earlier cases relating to the entitlement of indigenous people to land in settled colonies.

Deane and Gaudron JJ.: 1. …Those issues must, however, be addressed in the wider context of the common law of Australia. Their resolution requires a consideration of some fundamental questions relating to the rights, past and present, of Australian Aborigines in relation to lands on which they traditionally lived or live.

Toohey J.: 11. Before proceeding further, one more point should be noted. While this case concerns the Meriam people, the legal issues fall to be determined according to fundamental principles of common law and colonial constitutional law applicable throughout Australia. The Meriam people are in culturally significant ways different from the Aboriginal peoples of Australia, who in turn differ from each other. But, as will be seen, no basic distinction need be made, for the purposes of determining what interests exist in ancestral lands of indigenous peoples of Australia, between the Meriam people and those who occupied and occupy the Australian mainland. The relevant principles are the same.

The Gang of Four joined mainland Aboriginals without a factual basis, without reference to legal rules, or procedural grounds and, most definitely, without notice to interested parties.

In a discussion on the Mabo No. 2 decision, the following question was asked:

Do you think it was necessarily good law to extend the Mabo decision to the other parts of Australia when, in fact, it is not absolutely necessary to do so in order to find that the Meriam people had native title?

The learned professor replied,

Yes. That aspect of the decision has been subject to some criticism. My view on that is that it was essential for the High Court to make some statement of principle.[9]

Then he was asked a further question:

Granting what you have said about the need for the Court to consider the generality of the application of the Mabo decision to the mainland of Australia, would you care to express a view as to whether it was justified in pursuing that line in the absence of any representation from either Aboriginals or non‑Aboriginals from the mainland of Australia? It appears to me that the Court made that decision and that application in the total absence of any representation from persons greatly affected.

To which the learned professor replied,

In the Mabo decision, the High Court did not purport to decide any particular claim of native title in respect of any land other than the Murray Islands. What it did was declare certain principles; and that is a time‑honoured function of the courts in our constitutional system. It is a function that the English courts have been performing for at least four centuries, probably longer, and it is a function which our courts have been performing ever since European occupation of this country and the inheritance of English law.[10]

The replies by the learned professor confirmed (a) that the High Court had purported to make rulings on law relating to mainland Aboriginals and (b) that the High Court had the constitutional power to make declarations on certain principals of law when it felt the need. In Air Canada v Secretary of State for Trade, Lord Wilberforce observed: “[T]he task of the court is to do, and be seen to be doing, justice between the parties … There is no higher or additional duty to ascertain some independent truth.”[11]

My view of what the Gang of Four (Brennan, Deane, Gaudron and Toohey) did was to purport to give an advisory opinion on the issue of native title on mainland Australia. They had fallen victim to the Big Picture syndrome. Although the professor was wrong in saying the High Court has constitutional jurisdiction to give advisory opinions, he supports my analysis of what Brennan, Deane, Gaudron and Toohey (Gang of Four) were doing, which was unconstitutional.

I now turn to Mason C.J. and McHugh J. who said, 4. The formal order to be made by the Court accords with the declaration proposed by Brennan J. but is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in par.2 of the formal order.

The above statement by Mason C.J., in my view, confirms and reinforces my analysis of the judgments of Brennan, Deane, Gaudron and Toohey (Gang of Four) that they contained advisory opinions on the law relating to the settlement of mainland Australia and, therefore, should be dismissed as unconstitutional.

There is an important issue arising from this and that is, some might argue or suggest that, although the ratio decidendi of Mabo is very narrow, the judicial reasoning by the Gang of Four, in particular Brennan J., might be treated as obiter dicta and nevertheless remain authoritative regarding mainland Aboriginal land rights. If that part of the judgment which constitutes the advisory opinion is unconstitutional, then the reasoning can have no authoritative value. The historical narrative adopted by the Gang of Four is a tawdry example of the doxa of the Black Armband school in which an overlord is said to oppress the underdog with trickery, treachery and dishonesty dressed up as solemn principles of law, like discovery coupled with terra nullius and social Darwinism. The narrative is hearsay, not sworn testimony tested in a court of law according to the principles of due process and natural justice, where each party is represented by his chosen advocate.[12]

On the other hand, some commentators have viewed the inclusion of mainland Aboriginals in the judgments as a gross example of judicial overreaching. Judicial overreaching often equates with judicial law making. In common law jurisdictions, the theory is that the function of the court is to make declaratory judgments, reaffirming pre-existing customs or case law. However, an often-quoted criticism of the common law is that it is judge made law. On occasion, critics have gone a step further and labelled some judgments as clear examples of the judiciary legislative function.

This idea of the High Court in Mabo No. 2 overstepping the boundaries of the declaratory theory of strict and complete legalism is a wonderful cover or red herring. It is a fertile area of constant controversy amongst academics, who make a living from the debate. I refer the reader to Michael Kirby’s article The Politics of Mabo for a discussion on how the High Court was simply updating the common law of Australia to reflect modern concepts of social justice.[13] From Kirby’s judgment in North Ganalanja Aboriginal Corporation and Anor for and on Behalf of the Waanyi People v The State of Queensland and Ors above, the reader can deduce that Kirby is gung-ho when it comes to moving away from the strict theory of judicial restraint to the new policy of judicial creativity. Mabo No. 2 is a wonderful illustration of the political power and the lack of accountability of the High Court, which is often concealed from the public.

Quis custodiet ipsos custodes? (Who will guard the guardians?) That section or part of the judgments of Brennan, Deane, Gaudron and Toohey (Gang of Four) relating to mainland Aboriginals might be labelled a Noble Lie – certainly, the narrative outlined by the Gang of Four relating to the treatment of mainland Aboriginals is. The overwhelming failure of full blood Aboriginals to thrive and prosper under white settlement has confounded many Australians from the first day Arthur Phillip stepped ashore. The reaction or empathy to this collapse of tribal society has ranged across a wide spectrum to the extreme view that their situation is one of national tragedy reflecting very badly on the national ethos. That position is taken by those suffering from the delusion of historical revisionism which includes most minorities whether indigenous, ethnic, sexual, political, religious etc. and, of course, leftwing groups whether political, academic, feminists, environmentalists, journalists, social, etc.

Intervention by Attorneys-General.[14]

The Australian Law Reform Commission recommended that s 78A of the Judiciary Act be amended to provide for intervention by the Attorney-General of the Commonwealth and the Attorney-General of each State and Territory as follows:

The section should be amended to confer on each Attorney-General a right to intervene in non-constitutional matters that raise an important question affecting the public interest in the jurisdiction represented by that Attorney-General. The court should be given a power to direct whether the right of intervention shall be exercised by the presentation of written submissions, oral argument, or both.[15]

Although the ALRC made no mention of Mabo No. 2, but given the uproar the decision caused, perhaps, the recommendation seems reasonable.

Mabo Revisited Paperback, Perfect Bound, A5, 129 pages, ISBN: 9780994638182, Price: $19.99, available from Ebay Australia or Amazon Kindle @ US$6.50.

[1] [1921] HCA 20; 29 CLR 257.

[2] See Final Report of the Constitutional Commission 1988, PP no. 229 of 1988, Vol. 1, pp 414-417.

[3] [1996] HCA 2; (1996) 185 CLR 595 8 February 1996.

[4] [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996).

[5] White, The Honourable Margaret AO — “Mabo v State of Queensland (No 2): a personal recollection, (QSC)” [2016] QldJSchol 31. See pp 71-72 above.

[6] See appendix 20 & 21, A Mabo Memoir: Islan Kustom to Native Title, B Keon-Cohen 2013, Zemic Press p 506.

[7] Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45, 64 (Barwick CJ and Kitto J).

[8] The Gang of Four was a Maoist political faction who came to prominence during the Chinese Cultural Revolution (1966–1976) for their excesses in the Cultural Revolution. The same might be said of Brennan, Deane, Gaudron and Toohey.

[9] Crommelin ″Mabo: The Decision and the Debate″ Papers on Parliament No. 22, February 1994.

[10] Crommelin ″Mabo: The Decision and the Debate″ Papers on Parliament No. 22, February 1994.

[11] [1983] 2 AC 394 at 438.

[12] By the end of this book, I will have demonstrated that the Gang of Four were committed converts to Henry Reynolds’ history of Australia and willing implemented his dogma disregarding constitutional safeguards and the judicial safeguards of due process.

[13] Michael Kirby, Source: The Australian Quarterly, Summer, 1993, Vol. 65, No. 4, The Politics of Mabo (Summer, 1993), pp. 66-81

[14] Re: S78B, Mabo & Ors v Queensland & Anor (B12/1982) (“Mabo Case”) – Volume 8 – Transcript Before Mason CJ [1991] HCASCF 19 (20 March 1991) pp 9-11. Peter Connolly CBE, QC, observed: “While not a mystery, it has not been apparent to most of us that the Commonwealth was at first a defendant, managed to extract itself from that position, and become an intervener, and ultimately made no submission to the court. In other words, the Commonwealth instead of defending the interests of Australians generally ran dead. There can be no doubt that it thereby accepted a share of responsibility for the outcome.” Weekend Australian, September 11-12, 1993, p 24.

[15] ALRC 92 The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, 31 July 2001, Recommendation 14-1.

Mabo Revisited High Court Shenanigans, Paperback, Perfect Bound, A5, 129 pages, ISBN: 9780994638182, Price: $19.99, available from the InHouse Bookstore by Phone 07 3208 7576, and by Email publishing@inhouseprint.com.au or Ebay Australia.

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MABO REVISITED

This book is a penetrating and enlightening analysis of the High Court, Mabo No. 2 decision. It is the only scholarly work written about colonial settler/Aboriginal contact with an honest and forthright approach to the source material. The creation of a hereditary native title over land within mainland Australia will, in time, become an unreasonable burden and a substantial interference with the land use of the dominate landholder.

The earlier reviews were flawed because the vast majority of commentators have been ill-informed intellectuals or one-dimensional ideologues trying to toe the Indigenous Industry’s code of political correctness. The Black Armband school has allowed political partisanship to override honest research and sound conclusions. They approach the historiography of Australian Colonial Settler Studies with a fixed ideological axiom of resistance to invasion. Their articles and publications encourage unity of thought in support of this axiom by stressing and interpreting the historical sources and material in a tendentious and selective manner.

An ill-disciplined and prodigal Indigenous industry of tax-funded agitators, propagandists, and cultural cringing white Jackey Jackeys has, for fifty years, levelled a continuous barrage of slanders and base calumnies against the settlement of Australia by white pioneers and explorers, ignoring the first-world standard of living now enjoyed. Australian taxpayer’s funds are bleeding out because of political cowardice in the face of the haemorrhage.

Mabo Revisited, Paperback, Perfect Bound, A5, 129 pages, ISBN: 9780994638182, Price: $19.99, is available on Ebay Australia and Amazon Books as a eBook.

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MABO REVISITED

In the High Court of Australia, on 20 May 1982, Torres Strait Islanders Eddie Mabo, Dave Passi and James Rice sought declarations of ownership of land on Murray Islands based on their laws, customs, and traditions, notwithstanding, the annexation of the islands by Queensland in 1879.

This is a ground-breaking book exposing the unconstitutional acts of certain judges of the High Court in their deliberations and judgments in Mabo No. 2 v Queensland on 3 June 1992.

The Constitution of Australia gives the High Court no jurisdiction to give advisory opinions in either its original or its appellate jurisdiction (In re Judiciary and Navigation Acts, 29 CLR 257). The judgments of the Gang of Four on the alleged land rights of mainland Aboriginals were undoubtedly an unconstitutional proceeding.

The Gang of Four misled the Australian Parliament, resulting in the Native Title Act, No. 110, 1993 (Australia), being based on bad law.

Their unlawful and unconstitutional actions were: (1) in joining mainland Aboriginals, their actions were arbitrary and an abuse of discretion, and without the observance of the procedure required by law; (2) exceeding their constitutional and judicial function by delivering an advisory opinion; and (3) compounding their conduct by excluding the Australian people from the proceedings.

Mabo Revisited, Paperback, Perfect Bound, A5, 129 pages, ISBN: 9780994638182, Price: $19.99, is available on Ebay Australia and Amazon Books as a eBook.

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The Murder of John Francis Dowling and the Massacre of 300 Aborigines.

Chapter Two ― Academic Treatment

Writing in 1888, Charles F Maxwell observed that Vincent Dowling:

Although exposed to frequent attacks from the blacks, he escaped without hurt, but not without some close shaves, as on one occasion he had a spear driven through his hat; and on another a boomerang thrown by a wild man cut open the ribs of the mare he was riding. Yet he did not retaliate, and not until 1865, when his brother John was murdered by the blacks, did he ever shed a drop of blackfellow’s blood.

It is regrettable that Mr Maxwell, who no doubt was an honourable gentleman, should be responsible for putting bad thoughts and mis-information into the minds of the digital knights-errant of today, who tilt at the windmills of Australian colonial history with the deluded belief they are righting the wrongs of yesteryear. The above statement by Maxwell is wrong and without foundation of any kind. I quote from Vincent James Dowling’s diary:

22 June 1863. While off my horse examining fresh black tracks to ascertain their age while stooping was rather surprised at getting a spear through my hat from the opposite side of the creek carried off and pinned it to the ground, no time for reflection before I was saluted with four boomerangs, none of which took effect but the last which struck the saddle and horse, tearing off flap of the saddle cut it almost like a knife. Picked up the boomerangs 3 and spear with my hat on the top of it cantered out of shot. I had a narrow escape four inches lower and the spear a fine barbed one would have pierced my left temple. I shall always wear long American hats. The Blacks must have taken me to be long headed which I am not by the bye and thus my hat saved me. Must never leave camp without arms again. After recovering from my surprise went out back and up the creek a little struck in and found good water holes. Returned down the creek keeping away from the banks. I stopped for an hour 3 miles up from where I struck the creek, fed my horse, bridle in hand, too close to the darkies. Rounded up three blacks on returning home and found the name of the creek to be the Coocara. Had some difficulty in stopping these gentlemen. They would not stop until I touched up one with the point of my spear. … Got back to camp at Sundown and found old Tom all right, poor fellow. I am glad I escaped for his sake, he would have been in a terrific fix. I need not say how thankful I feel to Providence for my escape. Death is often closer to us than we think.
29 June … Drove on down the creek (Cutha Paroo) met an old blackfellow and his gin in about 7 miles, they invited me to spend the evening with them. I accepted their invitation, they made me a fire and picked some grass for my bed, were exceedingly attentive and polite, on the whole spent rather an agreeable evening. How little satisfies one, if one could only believe in it. Ingenuas dedicisse fidelibus notes et cet. [I think Vincent means: The note of love is gentle and ardent; that of anger, loud and turbulent.]
30 June. Started my hostess Kitty, I find is her name, for the horses at daybreak. She brought them up and acknowledged her reward in the shape of half a fig of tobacco. Ascertained in the course of conversations these are Cooinoo last night (and) that there is a spring near Birrewarra right bank and that there are several between the Paroo and Cutha Paroo. Bid adieu to my hosts very early having given them a pressing invitation to visit the sheep station on the Irara which they have excepted (sic).

In late December 1922, EO Hobkirk handed to William Gall, Under Secretary in the Home Secretary’s Department, Brisbane two manuscripts seeking to sell them for 10/-. Gall described Hobkirk to the anonymous buyer as “an old identity of South West of Queensland.” The relevant manuscript is called, The Murder of Mr John Dowling. Locality, Bulloo River Queensland and is a hand-written document of approximately 1700 words in length written in 1922 about an event that “happened in 1865, 57 years ago.” The full article may be seen at Appendix F. The structure of the document is in the form of a narrative commencing with a statement of principle that Aborigines prefer death before disloyalty. They never betray their own tribesmen. Hobkirk then describes the lead up to the disappearance of John Dowling, the search for him, the finding of his remains and then the investigation of his death culminating in the massacre of the Bulloo Aborigines because of their dumb insolence towards a white man seeking answers to a white man’s problem which effectively proves the point that Aborigines do not give up their tribesmen to white authority. During the course of the telling, Hobkirk confesses to being a party to the killing of the Aborigines but only under the orders of a superior and that he did not actually kill any Aborigines. Being an eye witness to the slaughter of the Aborigines for their principle of steadfastness and staunchness, he effectively kills two birds with the one stone. He proves his observation that loyalty to one’s tribe is paramount to Aborigines and he has also witnessed a leading squatter, a pillar of society, a Magistrate, dirty his hands with criminal acts thus portraying his rank hypocrisy. The second part of the story is how Hobkirk solved the murder of John Dowling, captured the culprit Pimpilly and turned him reluctantly over to Vincent Dowling’s overseer and was never heard of again. The story ends with Hobkirk not receiving any acknowledgment or reward for services rendered to Vincent Dowling. The question is, firstly, is this document a valid historical source and if so, what weight should be given to the version of events set out in the document?
Also attached to the above Gall note was a second hand-written manuscript titled, Impersonating an Aboriginal. This is a story of Hobkirk in 1867, disguising himself as an Aborigine and joining-in a corrobboree:

We blackened with charcoal a thin, white singlet and a pair of underpants and then painted the front of the singlet with red and white stripes. The blacks paint their skin with red and white ochre, also a pair of black stockings, which we had managed to get possession of; my headgear consisted of a wig, made of horsehair, decorated with emu and white cockatoo parrot feathers. This completed the makeup.

This article appeared in the Queenslander of 12 May 1923. The article about the murder of John Dowling did not appear in the press but formed a small part of an article called Aboriginal Characteristics published by the Daily Mail of 6 January 1923 as follows:

Another strange characteristic is that natives seldom will betray their own race. Mr John Dowling was cruelly murdered by his pet black boy in the Bulloo River district when camped, out together, but this was not proved until many months after. Although the whole, or many of the tribe knew all about it, they would not betray the murderer, so in consequence, sacrificed their own lives.

Might an inference be drawn from the fact that since the above articles were written for publication in the popular press and as a consequence were never held out by either the publishers or the author as statements of fact as one might find in affidavits or other document of that nature or in scholarly works of history or science, that the articles were written only for the purposes of leisure, entertainment and recreation?
The next version is given by J St. Pierie who in 1969 complied Some Information on the History of South West Qld:

Vincent Dowling was killed by the natives while mustering stock in sandhill country on what is now Wongatta Station and was buried near the old Thargomindah crossing near Thargomindah homestead. As a reprisal, troopers who found the tribe camped on the eastern side of the river about thirty miles downstream (near the present Thyangra homestead), chased them towards the hills shooting them down as they ran. Until ten or twelve years ago it was not unusual to come across aboriginal skulls in that area. Reports are that the whole tribe of nearly 300 was wiped out. In 1911 there was an old aborigine at Norely who claimed to be the sole survivor of the massacre. A piccaninny at the time, his mother had hidden him under bark in a hole in the floor of the gunyah. The troopers had burnt the camp, including the gunyahs, over his head, but he stayed there and crawled out later. (Information from Mr G Gooch who went to Norley as a book-keeper in 1911). Date of the massacre is uncertain but it was probably 1872 or earlier as in 1872 Frederick W Armytage bought Thargomindah and Norely stations paying £170,000 for the former and £110,000 for the latter.

Now this version is even more outrages than Hobkirk’s. It does not even refer to John Dowling but Vincent, who died peacefully in his bed at Rylstone, NSW in 1903 but let us be generous and say it’s a typographical error, and instead of ‘Vincent’ it should read ‘John’. It still makes no sense. When you compare and contrast Hobkirk and Gooch/ St. Pierie with each other and the 1865 press reportages, the inconsistency and disparity are beyond question and reconciliation. Moreover, the 1865 press reports completely destroy the credibility of the Hobkirk and the Gooch/St. Pierie versions making them unreliable and discredited sources.

Incident 1865 Version 1922 Hobkirk 1969 J St. Pierie
Deceased John Dowling John Dowling Vincent Dowling
Departure Point Caiwarroo Paroo Thouringowa Bulloo N/A
Guide Waddy Galo Pimpilly N/A
Reason for travel Cutting a road Exploration Mustering
Destination Mount Murchison Menindee N/A
Duration of travel Four full days Not clear/not stated N/A
Search party Podmore & Hall Sams & stockman N/A
Duration of search Travelled 30 or 40 miles from Paroo 2 days 60 miles from Cheshunt Bulloo N/A
Place of Death Paroo River Queensland Bulloo River Queensland Wongatta Station
Date of Death 13 June 1865 Not clear/not stated 1872
Environment Waterless track of country, lost Good country couldn’t locate water Sandhill country
Manner of death Single blow to head, crushing skull Blow to head, struggle then several blows to skull Not stated
Reason for death unknown To avoid further beatings Not stated
Crime scene Camp site undisturbed Camp site looted Not stated
Perpetrator unknown Pimpilly Tribe of Blacks
Horses Not found Nearby mudfat plenty of water good feed Not stated

Perhaps the first post-November eleven 1975 crusader to deal with John Dowling’s death was Bobbie Hardy in his book Lament of the Barkindji:

When John Dowling’s body was found some weeks after his murder on the Paroo in 1865, nothing in the camp has been touched, neither rations, blankets, saddles, pistols nor the dead man’s clothing. The assailant was thought to be a Wadikali tribesman, far from his home on the Bulloo, who was helping Dowling survey a track from Mount Murchison to the Paroo. Why he felt impelled to crash his waddy down on his skull was a mystery, but not one that Dowling’s friends deemed worthy of much pondering. The fundamental fact was that another white man had been killed by “the niggers”, and it behoved his compatriots to take their revenge.

For this event, Hardy cited the Sydney Mail, 2 September 1865. Hardy’s treatment of the facts seems fair but his comments are emotive and inflammatory. There is no proof that any white man took revenge against the Wadiklai tribe or any other tribe over John Dowling’s death.
The next to deal with the matter was Hazel McKellar, in Matyu-mundu where she recounts the Gooch/St. Pierie version:

As with other groups, the Kullilla suffered at the hands of the whitefella’s rifle. The most notable massacre occurred around 1872. Vincent Dowling, the owner of Thargomindah station, was killed, according to white history, by aborigines while mustering stock in sandhill country. As a reprisal, troopers found the tribe camped on the eastern side of the river, chased them towards the hills, shooting them down as they ran. It was reported that nearly 300 people were killed in this incident. Some whites say these people belonged to the “Bitharra” tribe but Peter Hood, a Kullilla descendant, is certain they were his people. He says the site of this massacre was further south towards Bulloo Downs.

However, she does not acknowledge Gooch/St. Pierie as the source; there are no citations. McKellar does not attempt a critical analysis of the source material. She makes no comment about the identity of the deceased. Is it Vincent Dowling or John Dowling, or just another white man? Suggesting, it may be irrelevant since it is white history. She says the white history is wrong as to the tribe massacred, as it was the Kullilla and not the Bitharra and the nominated site of the massacre was further south of Bulloo Downs on the authority of Peter Hood, a Kullilla descendant. Again, no citations or authorities are given for these categorial statements of fact. This perhaps suggests that white history is irrelevant but where it corroborates a tribal story (oral history) then it derives some historical value to koori culture but apart from that it is meaningless white man’s business. The issue for McKellar is that Kullilla tribes’ people were killed without excuse or justification on the Bulloo River south of Bulloo Downs by troopers in 1872 and not by the Dowling family or their agents or servants. Where books in the McKellar genre sit in the world of scholarly research, I cannot say, but I imagine there is a place for them in the social justice library.
Perhaps the next attempt at dealing with the John Francis Dowling incident is by Jonathon Richards who completed a Doctor of Philosophy thesis called, A Question of Necessity: The Native Police in Queensland, Griffith University, March 2005. I quote from Richards’s thesis:

One credible account of a killing perpetrated by squatters and their employees, is found in the reminiscences of Edward Hobkirk, an employee at Dowling’s Station on the Bulloo River.107 According to Hobkirk, grazier John (‘Jack’) Dowling was killed in 1864 by his ‘pet blackboy’ and Dowling’s brother wrote to the nearest Native Police (probably Bungil Creek near Roma) about the murder. Hobkirk said Dowling was told to ‘take what measures he thought best to revenge the murder,’ so ‘all the men in the neighbourhood’ were assembled and ‘armed with revolvers and rifles’ before the local Aboriginal people were mustered.108 Hobkirk admitted he helped bury the bodies that Dowling and others shot at several camps.
107 EO Hobkirk, Original Reminiscences of South West Queensland, NLA, MS 3460, Vol 2. It is unclear when Hobkirk actually wrote this account, but the other records in the file cover the period from 1870 to 1923. Hobkirk gave his manuscript to William Gall at the Home Secretary’s Office in 1922.
108 Hobkirk, Original Reminiscences. The Dowling brothers were the nephews of Sir James Dowling, A New South Wales judge, and related to other leading squatter families. See a family tree of the Dowling family in David Denholm, The Colonial Australians (Melbourne: Penguin, 1979), 177, and a list of their relatives (including James Morisset) in Anthony Dowling (editor), Reminiscences of a Colonial Judge: James Sheen Dowling (Sydney: The Federation Press, 1996), 202. John Dowling’s death was confirmed in the Brisbane Courier (4 June 1864), and the repercussions are mentioned in Bobbie Hardy, Lament for the Barkindji: the vanished tribes of the Darling River region (Adelaide: Rigby, 1976), 116.
109 One source says Vincent Dowling ‘subsequently became a terror to the black’ Charles F Maxwell, Australian men of Mark 1788 – 1888 1 (Sydney: Charles F Maxwell, no date), 385.

Richards relies entirely on Hobkirk for his description of the John Dowling incident. He describes Hobkirk as a credible witness. Richards says “Hobkirk says John D was killed in 1864” and that Hobkirk was “an employee at Dowling’s Station on the Bulloo River”. Hobkirk in fact says 1865 and clearly states, “… Mr Sams of Cheshunt cattle station, where I was employed.” Richards further quotes Hobkirk, “helped bury the bodies;” Hobkirk in fact said, “I helped first to burn the bodies and then to bury them.” These errors and omissions are critical and reflect a lack of attention to detail when accuracy is critically required. Where do the examiners of this work stand? In footnote 108, Richards says “John Dowling’s death was confirmed in the Brisbane Courier (4 June 1864).” This statement is blatantly wrong. If Richards had searched the Queensland Register of Deaths, he would have found that John Dowling died on 13 June 1865 on the Paroo River, Queensland. Moreover, if he had checked Bobbie Hardy’s footnote at page 116 of Hardy’s above book, Richards would have been referred to an article at page 2 of the Sydney Mail of 2 September 1865 which, if Richards doctoral thesis is to be treated seriously as a work of scholarship, he would have then found a version totally different to Hobkirk’s drivel. In other words, he would have been duty bound to explore and bring to light what the newspapers of the day had to say. This he failed to do; again, where do the examiners of this work stand? There is no scholarly analysis of the incident just the familiar vapid, insular mould of university historians of the leftist genre who, when they’re on a good thing, stick to it; don’t muddy the water with clarity and honesty or a contrary source that may destroy the leftist plot.
The next text to deal with the death of John Dowling is One Hour More Daylight by Mark Copland, Jonathan Richards and Andrew Walker first published in 2006 but republished in 2010 at page 78:

A chilling account of the killing of Aboriginal people in the far southwest can be found in the reminiscences of E. O. Hobkirk, a man described as “an old identity of South Western Queensland.” In 1861 Vincent Dowling ‘took up’ stations on the Paroo River; an attack in 1863 was supposed to have been averted by his ‘long American hat’, which deflected a spear.228 In 1865 his brother John Dowling, manager of ‘Thouringowa’ station on the Bulloo River, was reported as having been killed by his ‘pet black boy’. Vincent Dowling gathered the white men in the neighbourhood and started on a search for the alleged culprit ‘Pimpilly’. Hobkirk described Dowling’s revenge:
Mr V Dowling, who could talk the blacks’ lingo pretty well asked several of them ‘who killed white fellah? Brother belonging to me’. They one and all answered ‘they knew nothing about the murder’. He also enquired ‘where Pimpilly?’ this they also confessed that they knew nothing whatever about him. Mr Dowling then said, ‘If you do not tell me, I will shoot the lot of yous’. Still they all remained silent. Mr Dowling and the others then set to work and put an end to many of them, not touching the ‘Gins’ and young fry. This I know is true as I helped first to burn the bodies and then to bury them. A most unpleasant undertaking! But as I was only a ‘Jackaroo’ on ‘Cheshunt’ station at the time, I had to do what I was told.229
A similar massacre took place on a neighbouring station later on the same day. Eventually Pimpilly was captured and killed. He had killed Dowling after receiving a vicious beating for not providing his master and horse with water.230
228 Australian Dictionary of Biography (1972), Vol. 4, p. 99.
229 Queensland historical manuscripts – Vol 2 ‘Original Reminiscences of South West Queensland’ by E.O. Hobkirk, NLA, MS 3460.
230 ibid.

The authors introduce their scholarly work as follows, “This book represents a condensation of over two years of systematic research of manuscripts, newspapers and government documents. It is based on a selection from a wide range of archival records, … However, this is the most comprehensive effort to date in drawing together historical material relating to dispossession in the region.” Not satisfied with that overdrawn statement, these learned gentlemen go on to make this breathtaking gasconade, “One Hour More Daylight provides far too much evidence to sustain an argument that there has been a ‘fabrication of aboriginal history’.”
The first aspect of this publication to note is that Jonathan Richards is one of the three authors. Turning to the above quote of Hobkirk’s, Copland et al use the word ‘Gins’ the manuscript says ‘lubras’. It is an error; perhaps, it was a typographical error? There is no analysis of the source material or the incident. It appears in their book as a recital might be found in a deed, pleadings, lineage, or a Norse saga. The authors seem to treat it as folklore, thus beyond scrutiny even when it may be a false or unsubstantiated belief by Hobkirk. They say they made a systemic search of newspapers but do not refer to the numerous reportages of the incident that appeared in the newspapers of Queensland, New South Wales and Victoria. Does this raise for the querist the suggestion that one, they did not search the relevant newspapers or two, that they did but repressed the information as it was inconsistent with the leftist genre of writing anti-settler history or three, was it to protect Jonathan Richards’ thesis or four, they were incompetent as researchers?
In 2008, the University of Queensland Press published a book called The Secret War by Jonathon Richards which appears to be based on his above thesis of 2005. The book was reprinted in 2017. The relevant section is quoted as follows:

One credible account of a killing perpetrated by squatters and their employees, is found in the reminiscences of Edward Hobkirk, an employee at Dowling’s Station on the Bulloo River. It is unclear when Hobkirk actually wrote this account, but the other records in the file cover the period from 1870 to 1923 and he gave his manuscript to William Gall at the Home Secretary’s Office in 1922.47 According to Hobkirk, grazier Vincent Dowling’s reported in writing to the nearest Native Police (probably Bungil Creek near Roma) after his brother John (‘Jack’) Dowling was killed in 1864 by his ‘pet blackboy’. Hobkirk said Dowling was told to ‘take what measures he thought best to revenge the murder,’ so ‘all the men in the neighbourhood’ were assembled and ‘armed with revolvers and rifles’ before the local Aboriginal tribe was mustered at gunpoint. Hobkirk admitted he helped bury the bodies that Dowling and others shot at several camps. One source says Vincent Dowling ‘subsequently became a terror to the blacks’.48
47 E.O. Hobkirk, Original Reminiscences of South West Queensland, National Library of Australia, Manuscript MS 3460, Volume 2.
48 Charles F Maxwell, Australian men of Mark 1788 – 1888 1 (Sydney: Charles F Maxwell, no date), 385.

When you compare and contrast his thesis with the above quote from 2017 reprint, you will find that he has rearranged the text slightly. However, he still maintains that John Dowling was killed in 1864 and Hobkirk was an employee of Vincent Dowling notwithstanding, the contradictory statements made by Richards in his 2006 collaborative work on One Hour More Daylight. Authors who collaborate are jointly and severally liable for the integrity of their published work. So, the blatant errors of the thesis and the lack of critical analysis of the source material are transferred into Richards’ published work, The Secret War. So much for authentic, accurate, and honest scholarship and tight professional editorial control alleged by university publishing houses. Richards is primarily writing about the Queensland Native Police and you only need to note this bold statement, ‘… the infamous force created to kill Aboriginal and Torres Strait people in Queensland’. So, a simplistic take on why Richards would include John Dowling’s death is that if the Native Police cannot do the job, then the squatter can make application for a licence to kill and he will be authorised as Vincent Dowling was, to carry out the extermination policy. The sheer preposterousness of the statement is beyond belief and not a shred of evidence is offered to prove that the Queensland Government ever authorised and directed Vincent Dowling to kill Bulloo River Blacks or that the Native Police were a state-run extralegal organisation killing Aborigines. Aborigines were killed and so were settlers and police in the many collisions that occurred on the Queensland frontier. What I said about Richards’s thesis applies equally to his published work by University of Queensland Press.
Raymond Evans in 2010, contributing to Passionate histories: myth, memory and Indigenous Australia at Part One: massacres, with, 1. The country has another past: Queensland and the History Wars also draws upon the Titus Oates of Australian history, EO Hobkirk, who should be called Hobkirk the Liar, with the old familiar refrain:

In 1865, for instance, EO Hobkirk, ‘an old identity of South Western Queensland’ was present at a mass killing of Aborigines on the Bulloo River after an Aboriginal worker, described as a ‘pet black boy’, murdered John Dowling, the manager of Thouringowa Station. His brother, Vincent gathered a white posse to secure the culprit, but when local Aborigines would not provide information – to quote Hobkirk: Mr. Dowling then said, ‘if you do not tell me I will shoot the lot of yous’. Still they remained silent. Mr. Dowling and the others then set to work and put an end to many of them, not touching the ‘gins’ and young fry. This I know to be true as I helped first to burn the bodies and then to bury them. A most unpleasant undertaking! But as I was only a ‘Jackaroo’ on ‘Cheshunt’ station at the time, I had to do what I was told.43 Vincent Dowling had earlier been a pioneering cattleman on the Upper Darling River in 1859. His head stockman, John Edward Kelly later provided graphic descriptions of atrocities visited by white settlers on the local Aboriginal peoples. ‘We feel perfectly certain that we have not exaggerated one single statement we have made’, Kelly concluded his account: ‘We have seen the bones’.44
43 Copland et al 2006: 77–78; Richards 2008: 67.
44 The Stockwhip, 22 April 1876; Maryborough Chronicle, 9 May 1876; Evans, R 2009: 10.

Evans trots out the same old hackneyed source uncritically. Hobkirk is an inappropriate source. No attempt is made to address the other material that is available. He adopts a studious ardour to avoid any material that might question or threaten the leftist view that a white man massacred Aborigines. What is of interest though, is Evans’ novel attempt to bolster Hobkirk’s credibility by the juxtaposition of a totally irrelevant quote from Vincent Dowling’s head stockman, JE Kelly. It is a variation of the guilt by association technique. Kelly says he had heard reports of atrocities against Aborigines and then gives a general description of these activities. I fail to see the relevance of Kelly’s statement, since John Dowling was killed in 1865 long after the period Kelly is describing and he further says that whilst he was in the area working for Vincent Dowling no atrocities were committed by Dowling or his staff. However, if a quote has to be given perhaps the following might be fair and adequate:

We are speaking (says the writer) of the year 1859. The blacks on the Darling had been most barbarously murdered by our early predecessors, hunted like kangaroos or wild dogs, wherever they were known to exist. … driving him home, and there “stretching” and flogging him as already described. This was about the extent of the punishment inflicted upon the blacks when we first took up our abode on the Darling — that is by the sheep-men. … Although we never saw a black shot or “stretched” — for the simple reason that no man living dare do such a thing in our presence — still we feel perfectly certain that we have not exaggerated one single statement that we have made. We have seen ”the bones;”

The next attempt at dealing with the murder of John Dowling may be found in Timothy Bottoms’ book Conspiracy of Silence published in 2013. His portrayal of the incident is as follows:

In 1864, Jones, Sullivan and Molesworth Greene established Bulloo Downs Station (c. 113 kilometres south-west of the future Thargomindah, and 20 kilometres north of the NSW border). The following year, the owner of Fort Bourke Station on the Darling River, Captain John (Jack) Dowling, formed Ardock Station and not long afterwards, his brother, Vincent James Dowling, took up Thargomindah Station.13 Later in 1865, while managing his brother’s station, John Dowling was out on the run mustering, and was beaten to death with a waddy while sleeping beside his campfire. His ‘tame black boy’, ‘Pimpilly’, had sought revenge for a beating he received from Dowling for not promptly bringing water to his ‘master’ and his horse when so ordered. A Kooma descendant, Hazel McKellar, recalled: ’As a reprisal … [they] found the tribe camped on the eastern side of the river, chased them towards the hills [Grey Range], shooting them down as they ran.’14 This occurred at Thouringowa Waterhole on the Bulloo River (rough halfway, south-west, between Thargomindah and Bulloo Downs). EO Hobkirk was in Vincent Dowling’s white posse that went in search of the alleged perpetrator. He described how they had corralled a camp of Kullilli, and Dowling had demanded to know who had killed his brother, but the Kullilli confessed that they knew nothing about the murder, to which Dowling responded:
‘If you do not tell me, I will shoot the lot of yous’. Still they all remained silent. Mr Dowling and the others then set to work and put an end to many of them not touching the lubras and young fry. This I know is true as I helped first to burn the bodies and then to bury them. A most unpleasant undertaking! but as I was only a ‘Jackaroo’ on Cheshunt station at the time, I had to do what I was told. Later in the day the party went to another camp of blacks, about 20 miles down the river and there again shot about the same number.15
Dowling continued to terrorise the Aboriginal population to avenge his brother’s murder, while employing Aboriginal labour.16 The bookkeeper at Norley Station (c.30 kilometres north of Thargomindah) recalled that in 1911, there was an old Aboriginal there who: … claimed to be the sole survivor of the massacre. A piccaninny at the time, his mother had hidden him under bark in a hole in the floor of the gunyah. The troopers had burnt the camp there and crawled out later.17
It was reported later that nearly 300 people were killed in this incident. Although the numbers may well have been an exaggeration, it was nevertheless a sizeable killing spree.
13 J St Pierie, ’18. Some Information on the History of South West Qld,’ in Warrego and South West Queensland Historical Society Collection of Papers, Cunnamulla and District, Vol.1, 1969, p.2 (of paper).
14 H McKellar, Matya-mundu: a history of the Aboriginal people of South West Queensland, Cunnamulla Australian Native Welfare Association, 1984, p.57.
15 E O Hobkirk, Queensland historical manuscripts―Vol.2 ‘Original Reminiscences of South West Queensland’, NLA MS3460, (1922) pp. 3-4. Cheshunt Station is located 20 kilometres south-west of Taro, or c.100 kilometres west of Dalby.
16 Hobkirk, NLA MS3460. Hobkirk noted: ‘We found it hard to prevent the few that were employed on the station from … [running away into the ranges] … as they were so scared at what had taken place that we had to lock them up in the Hut―that was used as a store[,] for a short time.’ p.4.
17 G Cooch (bookkeeper at Norley in 1911) cited by St Pierie, History of South West Queensland,’ in Warrego and South West Queensland Historical Society Collection of Papers, Cunnamulla and District, Vol.1, 1969, p.3 (of paper).

Timothy Bottoms holds a degree of Doctor of Philosophy and is a professional historian. As an historian his first step should have been to consult the Australian Dictionary of Biography (ADB) and he would have found an entry for Vincent James Dowling which would have alerted him to the inaccuracy of the St. Pierie’s version because it would have shown that John Dowling was not the owner of Fort Bourke. His failure to acknowledge the ADB, which is a touchstone for any researcher venturing into Australian history, is bordering on professional incompetence or negligence, if not that, then at least it is not a fair and honest investigation. The above extract from Bottoms’ book is a melange of two sources (St. Pierie and Hobkirk) cherry-picked to invent a credible historical event that never occurred. It contains errors and omissions woven in a way to breath a fictional dimension to a past event such as John Dowling’s murder. The first and by far the greatest omission is the failure to identify the press reports of 1865 of John Dowling’s death and to make an appraisal of them. The second is his failure to critically assess the source material he finally acted on. For instance, the Gooch/St. Pierie version, was first written down by J St. Pierie in 1969 who got it from Gooch, a bookkeeper, who only arrived at Norely station, which is near Thargomindah, in 1911, 46 years after the event. Gooch was not an eyewitness. He can only have acquired his version by hearsay, local gossip. Gooch said Vincent Dowling was killed while mustering. Hobkirk said John Dowling was killed while exploring a route to the Darling. Gooch had no qualifications other than bookkeeping skills and appears to have been a collector of tall stories and squatting yarns of doubtful authenticity. Bottoms then adds some pepper and salt by saying that: “A Kooma descendant, Hazel McKellar, recalled: ’As a reprisal … [they] found the tribe …’.’’ Hazel McKellar was not an eye witness. The use of the word ‘recalled’ suggests she brought (a fact, event, or situation) back into her mind; remember it. She wrote a book that quoted Gooch/St. Pierie and failed to give any citation for the quote. Her work can only be viewed as a very poor secondary source of doubtful veracity and honesty. Bottoms further distorts the sources by adding, “Dowling continued to terrorise the Aboriginal population to avenge his brother’s murder, while employing Aboriginal labour.” Hobkirk was an employee of the Messrs Sams on the Cheshunt station. He did not work for Vincent Dowling and therefore, would not know what labour problems Vincent had, if indeed he had any. Furthermore, Bottoms says, “Cheshunt Station is located 20 kilometres south-west of Taro, or c.100 kilometres west of Dalby”. There is no town called Taro; it is Tara Qld 4421. Circa 100 kilometres west of Dalby would equate with the town of Moonie. This makes Bottoms’ version even more absurd. The only integrity that Hobkirk’s version has and it is very little, is that Cheshunt Station was a neighbouring station to VJ Dowling’s Thuringowa Station, not approximately 700 kilometres from Thargomindah as Moonie is. That appears to be the total historical treatment of the murder of John Dowling and the aftermath by professional historians.
I just want to end this chapter with a quick overview of the above analysis of the academic treatment of John Francis Dowling’s murder by one or more Aborigines. As I opined in the Preface to this book, some will see it as just another brick hurled in the History Wars squabble; I do not. The point I am trying to make is that the writing of history is simply a matter of honesty and accuracy on the part of the historian who is further duty bound to discover and bring to notice any and all sources of knowledge relating to the historical event under study. Furthermore, the information or evidence must be initially assessed as to its worthiness or probity by an agreed set of rules for evaluating its admissibility. These sorts of ground rules should be above concepts of conformity to prevailing political or fashionable standards. I have always thought that was the case. But it seems that history somehow or other ends up being the plaything of newly emerging groups in society who seem to demand the right to tell their story in their own way. Well may they say, we have that right and who would deny them their campfire songs and stories. However, a society or a nation is not just a bunch of social media jerks, who have emerged from the chrysalis of social justice, flimflamming on their cell phones. Standards of academic excellence must be preserved and maintained even in the face of the social justice warrior. If you want to write a history from the point of view of a political or social belief then say so.

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Social Commentator

What is an aborigine!

The grand debate about Aboriginality/First Nation-as any junior debating team will tell you, define your facts first. The Drittes Reich had precise rules as to who might be classified Jewish. Dr Verwoerd had equally strict rules as to who might be classified coloured. In Australia, we adopt the approach that if you feel you’re aboriginal then you are, even if you have a pedigree as perfect as Prince Charles. So the first question for definition is who actually is an aboriginal? The second question is should the taxpayer continue to make welfare payments and cultural grants to aboriginals solely on the basis of their aboriginality? If aboriginality was determined by location, only 24% of those who call themselves indigenous would have an entitlement because on 2006 figures, that is how many live in remote Australia.The High Court abolished the legal principal terra nullius as it applied to Native Title but as it so inelegantly has been put: ‘banging sticks together and leaping about’ seems to sum up aboriginal culture. Perhaps he meant to say that the Australia we know today was created ex nihilo. Out of the $376 billion budget cake we will spend $131 billion on welfare. So the question is how long does the taxpayer fund welfare, will it run to infinity?

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Social Commentator

Native Title a fraud-No Treaty!

Mr Interlocutor what do you say to the question of Native Title?

A hunter-gather follows water and hunts game, surface prospects for ochre and stones and picks and gathers seeds, fruit, herbs, bark and wood. He does not settle, herd, cultivate, mine, get and mill timber or hew stone.

Toynbee divided the world into nomads and sedentary cultivators. Examples of terminating nomadic wandering across occupied territory are Hadrian’s Wall, erected to keep out northern nomadic tribes on the western most frontiers of the Roman Empire; another is the erection of the Great Wall of China to keep out western nomads. Of course, any State can pass a statute or a sovereign can make a declaration prohibiting nomadic incursions.

The hunter-gather roams and grazes an area with himself as the locus of the territory. His concept of country maybe said to be similar to or the same as the territory ranged over by an individual animal for its survival. Moreover, he does not occupy, only transits the area having no manner of enforcement other than by his direct challenge to the trespasser, if he be aware of the trespasser. Moreover, he is obliged to share his country on a communal or tribal basis. He only interacts with the country under his hand, an immediate or transient presence over country. His usages and concepts are so far removed from the common law of English property law that the two cannot be reconciled. When Cook claimed Australia for the King, of course the King became the paramount ruler and absolute owner of all land in Australia but as a matter of common sense, the natives were allowed to roam and graze in as much as the bower bird was allowed to keep his bower and the cockatoo could keep his gum tree but only at the pleasure of his Majesty. The right to hunt and gather over land, even if it was acknowledged and allowed by the Colonial Secretary can only have been a licence or permission, a trespass that would not attract civil or criminal prohibitions or sanctions. It may have attracted de facto prohibitions and sanctions from the immediate white occupier who held it subject only to the Crown but they did that at their peril. It conferred no title on the native under the common law of property law. If an interest or right in or over the land was acknowledged or permitted by the Colonial Secretary based on native custom and practise and perhaps, feelings of charity so the native might feed or sustain himself, where did it stand at law? While the Colonial Secretary ruled or governed the colonies, then he could enforce it ex officio. Furthermore, it could be legislated for by the Parliament at Westminster but it never was not even at the passing of the Commonwealth of Australia Constitution Act 1900 (Imp).

Pause for a moment and contemplate the meeting between Captain Cook and the rude native. Cook observed: we could not discover that they had any head or chief, or form of Government, neither have they any usefull or necessary Utentials except it be a Bagg or Basket to gather their Muscels into: in a Word they are perhaps as miserable a set of People as are this day upon Earth. So when we compare and contrast Cook or indeed, the meanest, miserable convict and an aborigine, we may ask: what could an aborigine contribute to the governance and economy of Sydney Town? The settlers took so much of the English common law as was applicable to their circumstances in the colony. The local aboriginal law was not written down and their oral tradition was not as strong as the Brahmin oral tradition of the Rig Veda. When occupation for the purposes of a penal colony gave way to a policy of white settlement controlled and regulated by the Crown or its agents, then the aboriginal system, whatever it may have been, was superseded, repealed and abandoned. The policy of white settlement was an express intention to extinguish the then structure of the native society of the country. The settlement of white Australia could not have progressed if the white settlers had adopted local aboriginal law that is obvious; Australia was created ex nihilo. The two groups continued to exist and interact. As time went by, aborigines adopted aspects of Australian technology and the substances of satisfaction or abuse. They came to be a subclass of Australian society subject to the English law of the land. As land began to be the foundation of wealth, grants were made to settlers without any regard to aboriginal laws, customs or practices; indeed, they were made in the name of Queen as paramount landholder not in the name of Bennelong or some other native. The grant and conveyance of land to white settlers was fatal to the aboriginal concept of country. English land law was the conduit for a settler to acquire land. Slowly the colony began to set up its own machinery of government: legislature, executive and judiciary. Grants of land were made; nothing was appended to those grants by way of easement or reservation that aborigines had a right of freedom to roam. No doubt the Christian colonialists continued their psalm singing in regards the white man’s burden but it was never given the force of law, only a moral sop.

The next step that occurred was that the Colony on obtaining elected government began to legislate regarding the welfare and the control and regulation of blacks and mixed bloods. These statutes were very restrictive of movement in their application. These Acts were described as the most draconian, restrictive and repressive legislation that has ever been made to control a subject group yet this same criticism is ignored when arguing that aborigines retained their tribal custom and practice to roam and graze. This is the hypocrisy of the argument. The Arcadian fantasy to roam at large had long been exhausted, repealed and withdrawn. Settlement and control, both going forward hand in hand can be said to have broken, repealed or prevented the blacks from ever in the future continuing to roam and graze as they may have done in the dim dark ages both in mind and body. Moreover, the very people who cry the loudest when it comes to aboriginal rights and freedoms destroyed the once proud pristine native by demolishing his dreamtime and inserting in its place the ravings of a cantankerous and recalcitrant Jew called Jesus.

The passing of the Commonwealth of Australia Constitution Act 1900 (Imp) by the Westminster Parliament can be said to have created the sovereign States and the Commonwealth; on the coming into being of these legal entities, then native title or the right of existing nomads to roam and hunt would surely be extinguished. Yet we have a High Court seventy years after the event seeking to create a legal right or interest in and over land from a legal fiction called the common law. If the Parliament of Westminster did not chose to recognise, protect or preserve aboriginal rights and interests in the newly created Commonwealth of Australia or the several States then their rights and interests were lost, repealed or became defunct. The 1967 referendum only gave the Commonwealth power to legislate in respect of aborigines not territorial or land rights; not erect a shrine steeped in the stench of fakery, drawing obsequious reverence, garlanded with outrageous baubles of largess resplendent with rich tapestries of velvet rights and satin entitlements. It is significant that ss 106 and 107 of the Constitution continued the state constitutions and powers of the state Parliaments as at the establishment of the Commonwealth. At the time the Constitution was framed, the legislative powers of the former colonies were considered to be fundamentally territorial. It is still true to say that s 107 clearly refers to the power of the parliament of the state with respect to that state as a geographical portion of the entire Commonwealth. The Commonwealth has no power to legislate in respect of the common law land law of the states nor to impose a veil of innate land title over the territorial jurisdiction of the states post facto the Australia Constitution Act 1900 nor has the High Court jurisdiction or power to make ex professo declarations as to what rights attach to land in Australia.  In fact, the High Court has the cart before the horse, aborigines were never seised of the land and thus never enjoyed the rights attached to the land but the High Court has argued the land is attached to the aborigines which is an absurdity because the dominant estate is held by the Crown.

All this woolly and wobbly argument by the High Court may or may not be right regards the situation pre-federation but on federation, the government of the UK gave up its rights and duties to administer and govern Australia and invested and transferred to the Commonwealth and the several States all the territorial lands pertaining to the Commonwealth and the States. If one was to look into The Indian Independence Act 1947, one would find that the UK Parliament readily accepted geography, language, race, ethnicity, religion, etc as markers on which legislation might be based thus discriminating for or against peoples, groups and tribes. The Act acknowledged religious incompatibility and established the principle of partition of India; the princely states would assume independent status and be preserved, effectively ignoring universal suffrage and self determination. The UK Parliament did not preserve, recognise or acknowledge aborigines in the Australia Constitution Act 1900 so they and their rights ceased to exist. They became extinct at law.

Then after the High Court brought about this legal absurdity of Native Title, this bucolic fantasy of the noble savage roaming the atavistic foothills of terra Australis, the Federal Government introduces laws which restrict non aboriginal citizens from debating, questioning or expressing a personal view regarding the merits of these entitlements granted by the Australian community to the aboriginal community because it is offensive in the subjective view of an individual aborigine. The gift of citizenship is their recognition; they need no further endowments. What more can your country do for you than give you equality, fraternity and liberty.

Therefore, the Cook Exchange is not an ideology but a phenomenon. Its effect was to transform Australia into a version of England so that the settlers might live more comfortably. The Abophiles have assiduously asserted that they have found dishonourable motives and hidden genocidal blueprints in the detritus of history. They have become obsessed with conspiracy theories behind every event in the calendar of settlement; writing and advocating a contrived and revisionist history of the aborigine. Regrettably this approach to Australian history has persuaded governments and the High Court of Australia to create the legal concept of native title simply because it is alleged that the contemporary values of the Australian people demanded it.

Mr Interlocutor, there is much merit in your discourse but who will arbitrate who has the power and the wisdom when the vested interest arrayed against it will be formidable. An extract from: Deception Bay by Paul Dillon ASIN: B0186GYV9A, Kindle Edition, Amazon.

 

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