The Northern Territory was annexed to the Province of South Australia from 1863 to 1911.
South Australia was established by way of Letters Patent, using the enabling provisions of the South Australia Act 1834. They contained the following proviso:
- Provided Always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives
These Letters Patent have been found by Blackburn J in the Northern Territory Supreme Court not to apply to Aborigines in the Northern Territory during the time of annexation to South Australia, primarily because the geographical boundaries were set within it (Milirrpum v Nabalco (1971) 17 FLR 141).
Notwithstanding, these Letters Patent could have provided a suitable base for treaties between the colonial Government and Aborigines in both South Australia and the Northern Territory. Acquisition of land on just terms appears to have been the intention of not only King William IV, but also the South Australian Commission. Moreover, the South Australian Letters Patent of 1836 were consistent with the standards of the day in respect to how British colonies were to interact with their indigenous peoples. Most poignantly, the Letters Patent were made around the time of the Treaty of Waitangi (of 1840).
Furthermore, the proviso within the Letters Patent appear to have been given at least some effect at the commencement of South Australia's land-grab within the Northern Territory, through protection clauses within the first pastoral leases to be entered into following the passage of the Northern Territory Land Act (SA) 1872. As required by regulations under this Act and the Northern Territory Act, the first pastoral leases provided for the 'protection of the aborigines'; for further information, click here.
A modern-day treaty, based on human rights would redress this injustice.