EVER SINCE BATMAN’S treaty was ‘signed’, there has been plenty of talk about its illegitimacy. To wit, Batman declared that he had signed a treaty for the land with eight chiefs from a family group of about forty-five Indigenous people. They didn’t actually have chiefs, and thus none of them were entitled to sell land. The land Batman said the treaty covered wasn’t held solely by the tribe of the eight alleged signees – but by five different tribes that he never met, let alone negotiated with. Batman probably never marked out the boundaries, as this would have taken him days and brought him to areas he couldn’t possibly have seen, let alone marked. And there are questions concerning the signatures that the eight men used. Were they fabricated? What of the tribal marks? Most have said these were totally inauthentic. The names of some of the elders on the treaty document didn’t correspondent with their known names. Three supposedly had the same name.
Even so, it seems some kind of understanding arose between Batman and the elders. They may have believed they had done well: Batman had promised that only a few white men would be coming – only he and his ‘clan’ (his family and men) would be granted access. The elders may have even believed that through signing they could contain the growing number of incursions by Europeans, by keeping numbers low. The elders weren’t uninformed, nor were they fully duped. It was well known how Indigenous people had been treated by colonists to the north, and by sealers and many others nearby. These men would have been keen to minimise the white man’s well-known desecration of country.
Batman claimed he wouldn’t prevent the locals from remaining on the land. For the Indigenous people involved, this treaty wasn’t about ceding land but about peaceful coexistence, along with the promise of a supply of highly coveted European goods and Batman’s solemn guarantee to be their protector. They appeared agreeable to – or at least resigned to – the fact they would be living with the ngamadjidj.
The alleged signees, of course, believed they were granting Batman access to the land, not handing over ownership. The concept of selling land was completely alien to the Woiwurrung.
Interestingly, the treaty, which presented separate deeds to both Woiwurrung and Wadawurrung lands, was drawn up by Batman’s lawyer Joseph Gellibrand. Gellibrand describes the conveyance as a ‘feoffment’ – an archaic, rarely used legal notion of freehold dating back to early Norman times. Both the tanderrum and feoffment involved strangely similar rites: both required soil or parts of trees to be handed over to the new users of the land. The feoffment conferred rights over the land, but not ownership of it. The tanderrum similarly conferred rights of use and access. Gellibrand had managed to dovetail two entirely alien legal systems into the one treaty, and make both appear intelligible to those on both sides. In describing the land conveyance as a feoffment, he may have been attempting to show that he wasn’t annexing terra nullius (which was deemed Crown land) but simply arranging the right of use. He must have believed that this would make the treaty seem more legitimate to British authorities.
But was the treaty actually signed by Woiwurrung elders? William Barak confirmed that some kind of marking did occur – that the runic-like wavy marks on the deed were indeed those of clan elders, or at least marked their agreement.
Of course, the elders couldn’t have known the exact nature of what they were signing. Any document could have been given to them, and it’s highly unlikely its terms were read out in detail and explained. Of course, they had no idea what use would be made of the land and the ramifications on the environment of thousands of sheep and cattle pouring into their territory. This was certainly never explained to them.
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ON 7 JUNE, the day after he claimed to have enacted his treaty, Batman wrote that ‘the two principal chiefs came and brought their two cloaks, or royal mantles, and laid them at my feet’. They then ‘placed them round my neck, and even my shoulders, and seemed quite pleased to see me walk about with them on’. They also ‘made me a present of native tomahawks, some spears, woomeras, boomerangs, etc’. It all sounded as though Batman was being anointed as a new king.
He would later boast that he owned the land, which even by his own treaty wasn’t correct. He claimed he had been granted the use of 600,000 acres, over nine hundred square miles, of some of the best-yielding grazing pastures on Earth. But the treaty, in the end, was never legitimate from either a British or Kulin standpoint. Still, it was a crafty means to take a seemingly benign foothold in the Port Phillip area, uncontested by the locals. The colonial authorities, of course, knew a land grab when they saw one. When the treaty was later presented to Governor Richard Bourke in New South Wales a few months later, it was vehemently rejected.
To the British, Batman had done the unthinkable by entering into a treaty that inherently legitimised Aboriginal ownership and control of the land. To the Empire this was Crown land, even if the British had never physically claimed it. It wasn’t part of the Nineteen Counties deemed fit for settlement, but in this case that was irrelevant: Batman’s deal both denied British sovereignty and asserted native title. The colonial authorities saw this state of affairs as unconscionable.
My view is that an illegitimate treaty was the founding instrument upon which Europeans obtained free and unfettered access to the region. The only alternative would have been for them to forcibly take over the land – something which no settler, Batman included, had the physical or material means to do.
Just two days later, Batman’s party reconnoitred ‘his’ new land when they took a whaleboat up the Yarra. The boat reached a wide basin that featured a low waterfall. This was to be the site of the Queens Bridge, where those coming upriver would first hit fresh water. Batman recorded in his diaries: ‘I am glad to state about six miles up, found the River all good water and very deep. This will be the place for a village.’ He named the imagined village Batmania – a name that would change even before he settled there. For a while the place was called Bearbrass, which is said to be a mangling of the local name Birrarung that meant ‘river of mists’ among the Woiwurrung. All the same, it sounds much more like a misrendering of the Boonwurrung word for the Batman’s Hill area: ‘Barebeerip’ or ‘Bareberp’
It’s unclear what the Kulin thought of Batman and his fellow settlers. Did they still see white people as bona fide ngamadjidj, or had the illusion shattered after thirty years’ experience? Nobody has ever answered this question completely. What is often said is that whether Europeans were considered former kinsmen or not, many clans tried to embed them into their own kinship system, from which both parties could benefit. Even if the perception of reincarnation was long gone – or only believed by some – the new arrivals could be considered like kin through place of residence, intermixing and mutual gift giving. Others say this kind of misconception was a big part of the problem to come; that by welcoming Batman and so many others, the locals allowed Europeans – at least initially – to gain a foothold and from there to usurp Kulin lands.
Batman, I think, always understood this. He had some understanding of Indigenous culture and was happy to use that against them. The tanderrum had been little more than a device to manipulate the tribes, because there was no other way in.
Even if Batman had somehow obtained the manpower and the means to wrest control of the area, aggressive invasion was at that time politically impossible. The zeitgeist in Britain had changed radically since George Arthur had tacitly financed the Black War five years earlier. The long struggle by British philanthropists against slavery in the colonies had also revealed wide-ranging abuse and ill-treatment of Indigenous people, and the colonies in Sydney and Van Diemen’s Land were no exception. Usurpation by any means was no longer in vogue.
In 1833, two years before Batman’s treaty, the Bill for the Abolition of Slavery had been passed by the reformed Parliament, a bill successfully fought and won by William Wilberforce and his circle of ‘saints’. Now the Anti-Slavery Society and the ‘Exeter Hall’ humanitarians – a lobby group made up of philanthropic foreign missionary societies – turned their attention to improving the conditions of all the indigenous people subjugated by the British colonies. One of the most prominent anti-slavery campaigners in Britain, Thomas Buxton, would later write that ‘the native inhabitants of any land have an incontrovertible right to their own soil’.
Even Arthur, who had instigated the Black War, knew that the colonial mood had tempered dramatically. That year, Quaker missionaries had been in Hobart Town counselling the governor that he and others had to find better solutions in dealing with the local inhabitants. There were members of the Port Phillip Association who also felt this way. One was Thomas Bannister, a soldier and explorer said to be obsessive about the need to maintain harmonious relations between the Kulin and the association. Gellibrand, too, who had drafted the all-encompassing treaty, was passionate about Indigenous rights.
The takeover of the Port Phillip District, Batman declared, would be different – it would be peaceable – but nobody on the European side was under any misapprehension as to what it really was. His association was a commercial enterprise posing rather badly as a philanthropic cause. Nevertheless, he knew that a number of factors were working in his favour. The NSW government had neither the will nor the ability to prevent the trade, nor could they ‘stop the boats’, an ironic notion given the present-day usage of the term in Australia. Batman was also backed by well-resourced interests and had the tacit approval of George Arthur – the most powerful man in Van Diemen’s Land was privately in favour of a treaty, but as a government official he couldn’t publicly sanction it.
It had only taken about a week for the syphilitic son of a convict to become the de facto ‘largest landholder on earth’ – it was mostly Batman himself who declared this – and he now proceeded at lightning pace. He made sure that the treaty was drawn up in triplicate and, without further ado, returned to Launceston on the Rebecca. Back in town, he would load up more provisions and bring his sheep to graze. There would be no subterfuge, either: he would send a copy of the signed treaty documents directly to Governor Bourke in New South Wales, in an attempt to convince him of its validity. Batman played his cards both ways, knowing full well that if Bourke rejected the treaty, it would be far too late. By then Batman’s sheep and cattle would be spread out across his beloved Werribee Plains, munching on kangaroo grass and murnong.
Occupying the St Leonards beach while he was making these preparations would be three white men: the two ex-convicts, James Gumm and Alex Thompson, and the Irish freeman, William Todd, who would write a journal of the early days of the settlement. There would be five of the seven Sydney blacks, two of whom had been instrumental in making the deal; there was Joe the Marine, Bullet, Bull and Bungett, and their de facto leader, John Pigeon. Batman left his men well armed and with what he thought would be sufficient provisions until his return. He also left a further supply of gifts for the locals: handkerchiefs, knives, tomahawks, scissors and shirts, as well as looking glasses and tin pots. He set up two tents and planted a British flag.
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WILLIAM BUCKLEY WAS out gathering roots with an old man when two young boys came walking through the marshes towards him, ‘each having a coloured cotton handkerchief fastened to the end of his spear’.
The boys told Buckley they had met three white men and five black men, none of whom they had encountered before. The strangest thing was, they added, that the men had made a camp but their ship had gone. They had erected two white tents at a beach south of Indented Head and were extremely well provisioned, but had only offered the local people knives, scissors and a few other trinkets. They hadn’t offered any of their treasured tomahawks, the boys reported, which had caused offence. The boys were on their way to rally round other men of the tribe to raid the camp, kill these intruders and hopefully take some of the booty for themselves.
In a flash, Buckley realised that this time he had to act. These weren’t men coming ashore for wood and water, but settlers here for the long term. He couldn’t ignore them or be a passive bystander. ‘That night was one of great anxiety,’ he recalled, ‘for I knew not how, without danger, to apprise the strangers of their perilous situation.’ Buckley wrote that in warning these settlers that they were about to be murdered, he felt he would be betraying his own people, but he also felt something had to be done – after all, he was now known as a peacemaker. ‘My reflections were very painful. I was, of course, aware of having long since forgotten the language of my youth. I was at a loss of what to do for the best, but at length determined on hazarding my life by going to them at the earliest opportunity, for their protection.’
Buckley made his way towards Indented Head, around twenty miles from where he’d heard the news. A few days later he spied a beach with tents erected just a few yards off the shore, and a massive post with a large red, white and blue flag fluttering riotously and rudely above. Buckley knew it wasn’t the pole holding up the firmament, but he might have guessed it was the beginning of the end.