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A different kind of 'subject:' Aboriginal legal status and colonial law in Western Australia, 1829 -1861

Hunter, Ann Patricia (2007) A different kind of 'subject:' Aboriginal legal status and colonial law in Western Australia, 1829 -1861. PhD thesis, Murdoch University.

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      Abstract

      A different kind of ‘subject:’ Aboriginal legal status and colonial law in Western Australia, 1829-1861. This thesis is an examination of the nature and application of the policy regarding the legal status and rights of Aboriginal people in Western Australia from 1829 to 1861. It describes the extent of the debates and the role of British law that arose after conflict between Aboriginal people and settlers in the context of political and economic contests between settlers and government on land issues. While the British government continually maintained that the legal basis for annexation was settlement, by the mid 1830s Stirling regarded it as an ‘invasion,’ but was neither prepared to accept that Aboriginal people had to consent to the imposition of British law upon them, nor to formally recognise their rights as the original owners of the land. Instead, Stirling’s government applied an archaic form of outlawry to Aboriginal people who resisted the invasion. This was despite proposals for agreements in the 1830s.

      During the early 1840s there was a temporary legal pluralism in Western Australia where Indigenous laws were officially recognised. However, by the mid 1840s the administration of British law in Western Australia was increasingly dictated by settler interests and mounting settler-magistrate pressure to modify the legal position of Aboriginal people which resulted in the development of colonial law to construct a landless subject status with minimal rights based on their value as a useful labour force for the pastoral economy. This separate legal status deliberately departed from ‘equality’ principles and corresponded with the diminished status of Indigenous laws and the abandonment of legal pluralism in settled districts, during a period of rapid pastoral expansion in the 1850s. This entrenched discriminatory practice in colonial law would be the prelude to the ‘protectionist’ and discriminatory legislation of the early twentieth century which formalised inequality of legal status.

      Publication Type: Thesis (PhD)
      Murdoch Affiliation: School of Social Sciences and Humanities
      Supervisor: Reece, Robert
      URI: http://researchrepository.murdoch.edu.au/id/eprint/732
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