Nine tenths of the law

There’s a principle that states that possession is nine tenths of the law. It’s a principle that is familiar to every school yard bully who ever stole your toys in the playground, but that fact did not deter the British when they arrived in Australia from the end of the 18th century onward. Finding an Aboriginal population had beaten them to nine of those tenths by a matter of a mere 60 thousand years or so, they promptly moved the goal posts. They declared the land unoccupied, in spite of appearances to the contrary, thereby reducing the locals to the surprising legal status of flora and fauna.

It was a Colonial sleight of hand but it achieved the intended result. The concept of Terra Nullius granted the Crown under European right of discovery the capacity to assess survey and sell Deepest Darkest Australian Terra Firma to an emerging settler society in a pattern of dispossession that would soon be repeated throughout the Australian colonies. At Port Phillip in 1835 however, there occurred a brief anomaly that remains today as the only recorded attempt by an emerging settler society to treaty with the Australian native people in the 19th century. The story of John Batman’s dubious treaty is reasonably well known, although the actual location of the signing has long been debated, but what isn’t so widely appreciated is that one of the suggested locations for the signing was a site on the Plenty River just a little way upstream from Yallambie. Batman’s journal for various reasons remains an unreliable document, but it does describe a meeting that “took place alongside of a beautiful stream of water”:

Title: “Batman’s treaty with the aborigines at Merri Creek, 6th June 1835”, by John Wesley Burtt, c1888. The Merri Creek has long been a popular alternative location for the Treaty negotiations and Burtt’s 19th century painting was a faithful recreation of events based on oral traditions which placed the signing in the Merri Creek area. (Source: La Trobe Picture Collection, State Library of Victoria)

“The country here exceeds anything I ever saw, both for grass and richness of soil. The timber light, and consists of she-oak and small gum, with a few wattle.” (John Batman)

John Batman portrait by William Beckworth McInnes. (Source: City of Melbourne Collection )

James Blackburn in 1855, H. G. Turner in 1904 and George Vasey in 1909 all identified the “beautiful stream of water” described by Batman as the Plenty River while David Wilkinson more recently fixed the location more precisely, recording that the meeting took place at a distance some three miles north of its confluence with the Yarra, (Wilkinson: The Early History of the Diamond Valley, 1969).

Jim Poulter in “Batman’s Treaty – The True Story”, (Red Hen Enterprises, 2016) also examines this story and in the process quotes the Aboriginal elder William Barak who was present at the signing:

“…Batman sent some potatoes from Melbourne to the camp of the Yarra blacks. Then the blacks travel to Idelberg (sic). All the blacks camp at Muddy Creek. Next morning they all went down to see Batman, old man and women and children…” (William Barak)

“All the blacks camp at Muddy Creek. Next morning they all went down to see Batman, old man and women and children…” (William Barak). The Plenty River at Yallambie, June, 2018.

In his diary, Batman records that he named the stream where the signing took place, “Batman’s Creek, after my good self” forgetting of course that the stream must already had a native name. Poulter explains that the Aboriginal name for the lower reaches of the Plenty River at the time was “Kurrum”, a Woiwurung word meaning “Muddy”, and in a forensic examination of Barak’s full text, concludes that the tribes therefore must have gathered at Heidelberg before meeting Batman on the lower Plenty.

Banyule City Council sign posting on the banks of the Plenty River, Yallambie Park, reads: “Heartland of the Wurundjeri william”.

It’s an interesting proposition. Wilkinson’s distance of three miles north of the Plenty/Yarra river confluence is about the same distance as Yallambie is from the river junction, although most commentators favouring a Plenty River signing have generally put the actual location at Partington’s Flat in Greensborough, a little further upstream from Yallambie. Be that as it may, the incident remains historically as the only ever recorded attempt in Colonial times to recognize Aboriginal prior ownership of the land. The reasons for this are obvious if understandably understated. M F Christie in “Aboriginies in Colonial Victoria” (Sydney University Press, 1979) states that “if it was acknowledged that the Aborigines had the right to dispose of their land as they saw fit, then the Crown’s claim to all Australian lands would be in doubt.” For this reason it was quickly dismissed by the then Governor of New South Wales, Sir Richard Bourke who immediately declared the Batman treaty invalid. The land in effect belonged to nobody.

John Batman’s dubious “Treaty”.

With perhaps just a little irony then, when the time came for Europeans to sell “nobody’s land” a few years later, the first sales outside Melbourne involved land from this very same treaty signing country – a country that would later constitute the greater part of the Heidelberg District with the area that now constitutes Yallambie itself forming a large part of Portion 8 in Hoddle’s 1837 survey.

Walker’s subdivision of Portion 8 with coneptual overlay of Bakewell c1850 survey map and (part) modern street plan.

As explained previously in these pages, most of Portion 8 soon passed into the possession of John and Robert Bakewell who had arrived in the Port Phillip District of NSW in April, 1840. The Bakewells were Quakers and shared religious and familial ties with the cultural elite of Melbourne through their friendship and kindred ties with the Howitts. Work on their Plenty Station probably began even before a complete title had been established for this in itself was one of the pillars on which rested the British claim to a legitimate occupation of Australia. Both Richard and William Howitt, writing a decade apart after separate visits to Yallambee in 1842 and 1852 respectively make reference to the productivity of the country under European occupation, and of its formerly “sterile” state while in native hands.

“How neat and nicely fitted-up was their house! In it, with its thin walls and French windows, you seemed scarcely in-doors. It was the Sabbath, and on the table lay the Bible, and not far from it a Literary Souvenir. Guns were piled in corners, but which I dare say are now, the first country newness being over, seldom used.” (Richard Howitt, Impression of Australia Felix)

The Bakewell brothers’ Yallambee by George Alexander Gilbert, (Source: State Library of Victoria collection).

“The hunter races of the earth, the forerunners of the house-building, ship-building, ploughing, busy, encroaching white man — they who occupied the wilderness, and sat under the forest-tree, without commerce or ships, living easily on the animals of the chase — they who lived like the mammoth and the mastodon, the kangaroo and the emu — have perished with them, and are daily perishing before the civilised and artistic tribes, indomitable in the spirit of the conqueror and the possessor.” (William Howitt, Land, Labour and Gold)

La Trobe University’s Lucy Ellem, writing in an unpublished paper, “Plenty Botanical”, states that Richard Howitt’s 1842 account “sets a scene of British virtue, order, and good management at the Plenty Station,” and goes on to say that:

“Howitt evokes the piety and literary culture of the inhabitants, and refers to dangers faced in this frontier settlement. The Bible, brought out for the Sabbath, attests to the centrality of religion in these Quakers’ lives. It also legitimates for them their presence there, their husbandry rendering this land useful and productive, fulfilling a Biblical command to ‘subdue’ and ‘replenish the earth’…” (Ellem: Plenty Botanical)

It is an interesting insight into the workings and the motivations of the European mind in a 19th century frontier society, but Lucy also notes that the native forests described by Richard Howitt as a “sterile stringy-bark” wasteland were in actual fact a productive and essential resource for Indigenous people.

“Abounding in edible and medicinal plants, weaving fibre, timber for hunting spears and digging tools and habitat for game, this “almost worthless” land had for millennia provided the staples of Aboriginal life. But captivated by the luxuriance of imported species, Howitt is almost oblivious to the ‘natural’ nature that surrounds him. Confronted by the ‘vast and sterile’ Australian bush, he scarcely names a native species.” (Ellem: Plenty Botanical)

John Batman said in his diary that the land he passed through in 1835 “appeared laid out in farms for some hundred years back, and every tree transplanted. I was never so astonished in my life.” Many settlers after Batman recorded similar impressions of a virgin landscape which to all intents and purposes appeared to be laid out in imitation of an English gentleman’s estate. With an approach founded in the European idyll, it was an instinctive reaction for them to overlook the fact that this “natural” aspect was anything but that. It had been shaped by a fire stick farming culture over millennia to develop fields of grass land suitable for kangaroos and with carefully defined copses of woodland habitat suitable for possums.

Indigenous Australian encampment from an engraving by John Skinner Prout. (Source: Wikipedia).

Captain John Harrison, an early settler of the Yan Yean area, observed the lives of the Wurundjeri on the Plenty River and wrote that their diet consisted chiefly of speared fish, goanna, possum, kangaroo, yams and the grubs collected from the roots of wattle trees. He noted their clothing in winter consisted of possum skins joined together with kangaroo sinews and that the men carried spears and the women yam sticks. Following this theme, Wilkinson also adds that native camps typically consisted of about 30 people, their houses were made of bark and boughs and that their hair was worn in elflocks with faces painted red with ochre.

Batman’s first contact with the natives of Port Phillip occurred in the winter of 1835. During the winter months it is commonly believed that Aboriginal people moved away from the exposed river flood plains of the Yarra into the more protected forested land and elevated country of the Plenty Valley and at Yallambie this resulted in what has been described as a camp that “existed on the high terrace on the neck of the Plenty River just north of Yallambie Estate ‘the Plenty Station’.” (Weaver: Lower Plenty Archaeological Survey, 1991)

Such claims appear to have been based entirely on oral tradition for it’s a fact that Australia’s First People left very little real physical evidence of their occupation. All the same, at Yallambie I sometimes like to walk along the River in the fading light of evening, the sound of the jogger’s footfall coming up behind me like the echoing steps of a vanished people whose feet passed without a mark over the landscape. It is then that I wonder how this country might have looked at another time – a time before Bakewells and boundaries and my mind wanders. Every gnarled gum tree with an old scar becomes a Canoe Tree and every raised mound of earth becomes a midden. It is a Dream Time of the imagination.

“Every gnarled gum tree with an old scar becomes a Canoe Tree…” Old growth billabong woodland at Yallambie, June, 2018.

This month the Legislative Assembly of the Victorian State Parliament passed a bill aimed at negotiating Australia’s first Aboriginal Treaty. Thirty years after Bob Hawke’s unfulfilled promises of this same idea were made at a national level, and 183 years since John Batman’s self serving attempts, the Victorian state legislation is intended to facilitate the establishment of a Victorian Elders Council which it is hoped will pave the way towards a Treaty negotiation itself. It’s a small step and the legislation still has to pass the Victorian Legislative Council, but with support from the cross benches, this time it just might get up.

In the media in recent times there has been much debate about Australian sovereignty. The question of foreign ownership of real estate and resources in the land we call the Lucky Country is a much discussed issue, but in all this debate, the question of Aboriginal prior ownership of this country has gone missing. Australia is the only Commonwealth country not to have a treaty with its Indigenous people. Yet every dairy farm that has been purchased in recent times by Chinese business interests and every mining lease that has been carried off shore by a multinational company has done so for ready money but without a thought to the first owners of this country. Now might be as good a time as any to give this just a passing thought.

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