A Brief History of Terrible Planning Law: The Batman Treaty

Every so often someone will bail me up at the pub and ask why their miniscule little gallery gets weekly visits from every bureaucrat with a badge, yet its possible to get approval to build terrible apartment blocks everywhere/mine national forests/demolish public housing etc etc.

The short answer is that Australian planning and building laws don’t scale much based on risk or size. The process you go through to set up a gallery in an old warehouse is virtually the same as if you were tearing the warehouse down to put in a new apartment complex. This occurs because the systems are structured to produce a series of controls, mostly cost barriers, aimed at managing the activities of the kind of people who can afford to build new buildings.

When applied to less heavily financed activity, those systems are usually insurmountable. For the most part this is posed as a public health issue but if you trudge back through Australia’s planning history, the logic of the system has another origin.

From the very first moment of Australian planning law, our system was geared towards controlling large enterprise and, in doing so, pricing out those interests with less capital.

The key moment of this is Governor Bourke’s 1835 proclamation regarding Melbourne, arguably the single most important document in Australian history as it simultaneously enforces terra nullius and sets out who could legally use the new nation under what conditions.

You can read the whole thing here, but the key parts are:

I, the Governor, in virtue and in exercise of the power and authority in me vested do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, […] is void and of no effect against the rights of the Crown; and that all persons who shall be found in possession of any such Lands […] will be considered as trespassers…

A few months earlier, John Batman had sailed from Tasmania to Port Phillip, where he successfully negotiated a ‘treaty’ with Wurundjeri leaders of the Kulin nation. They granted him two thousand square kilometres of their land in return for an annual payment of knives, jackets, rugs and flour. Today, we tend to view this as trickery on his part. At the same time, the Wurundjeri were aware of the threat they faced and negotiated a treaty which did protect them from being entirely removed from their land, or subjected to active violence.

Regardless, Bourke’s proclamation effectively said the treaty was worthless, and specified Batman would need to apply to the Crown (and pay a licensing fee) for approval to use the land.

Batman’s treaty was a test case. At that point, there was no legal assurance that the Crown’s powers extended beyond the boundaries of New South Wales and Tasmania. Batman arrived in Victoria with the aim of going into an area devoid of British law and seeing what he could get away with.

His ‘treaty’ was intended to prevent the Crown taking action against him by appealing to the sentiments of both Bourke and his boss, Lord Glenelg, who was in charge of British colonies. Both men had seen conflicts with indigenous people internationally, both knew it was morally fraught and economically costly, and were willing to consider less forceful processes.

When Batman arrived in Victoria, it was obvious to Bourke that he had no real capacity to stop him. Batman stood to produce significant economic benefit through exporting wool back to Britain, and sending out the troops to stop him would have been both costly, ineffective and politically disastrous. Accordingly, Batman did two things;

(1)Declared that the Crown owned all of Australia, not just Tasmania and the land around Sydney.

(2)Declared that anyone who wanted to use Australia had to pay the Crown a licensing fee, those who didn’t were using the land illegally, and they would be prosecuted. This included the people who’d lived on said land for centuries.

The end result of this was the biggest and fasted land rush the Empire had ever seen. The Wurundjeri found their treaty with Batman discarded, their land swamped with pastoralists, their food sources wiped out and any request for recompense treated like trespass.

The legal framing here is important. By over riding the treaty, Bourke made Wurundjeri resistance a matter of criminal trespass, rather than a military conflict. Had the treaty survived, the resultant conflict would have been a war rather than a criminal issue, and their prior occupation of the land something that could be upheld under British law.

This is because its impossible to either sign a contract for property, or militarily invade a country, without implicitly recognising a certain element of land rights. In a similar situation, the Xhosa people in the Cape Colonies had re-claimed their land a few years earlier.

Effectively what Bourke realised is that the commercial interests impacting upon the Australian landmass were too large to stop, but could be harnessed to profit the crown and colonise Australia with limited governmental investment.

Thus, instead of sending out the military to invade the Kulin nation, the Wurundjeri were mostly shot, or forced into starvation, by squatters exercising their right to prevent trespassers.

It’s easy to see this as a historical incident within colonisation; a sort of regrettable encounter with a pre-modern Terra Australis. Yet this is still how land is accessed in Australia. Unclaimed or unused land is zoned, usually through a state planning act under powers devolved by the Crown, absorbed within something like a Local Environmental Plan, and the right to use it can be obtained by seeking Development Approval. The costs associated with applying for approval are now spread out more broadly, but they still work to control a particular level of economic activity, whilst pricing others off the land. Bourke’s proclamation is the extreme end of this system, but it isn’t an anomaly.

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