Governor Bourke revokes Batman’s Treaty

After much research, planning and financial input, John Batman succeeded in establishing a group to assist in the exploration of the land around Port Phillip which had not at that time, been confirmed nor settled by Europeans.

The group was aptly named the Port Phillip Association.

The following is a brief Timeline of the early encounters with the then little known region of Port Phillip:

→  1802

Lieutenant John Murray entered Port Phillip Bay in the February of 1802.

Matthew Flinders explored and mapped the bay during late April and early May, 1802.  Matthew Flinders thought he had discovered the bay – only to realise later that Murray had beaten him by just ten weeks . . .

→  1803

Lieutenant Collins attempted a settlement at Sorrento in 1803, which was quickly abandoned as he deemed the area unfit to establish a colony.

→  1824

Hume and Hovell had stumbled across Port Phillip during their overland exploration tour in 1824, however, Hovell had insisted that they had arrived at Western Port Bay – not Port Phillip.  Hume did not agree, and it was not until they had returned to Sydney that Hume could confirm his suspicions that it was, in fact, Port Phillip Bay that they had encountered.  The fundamental difference being that Western Port Bay has an island, whereas Port Phillip does not.  The body of water they had encountered did not have an island . . .

→  1826

William Hovell had attempted a settlement at Corinella, Western Port Bay in 1826, still believing that this had been the location he had encountered during the tour of exploration with Hamilton Hume in 1824, however, he soon realised his mistake.  The settlement was abandoned within 15 months of their arrival . . .

Port Phillip – the Voyage of Discovery & the Treaty –  May to June 1835 . . .

John Batman had thoroughly researched the area that lay just north of Tasmania.  He engaged in lengthy discussions with his childhood friend, Hamilton Hume, and after collating all the information, strongly suspected that there was wonderful farmland to be found.  In mid 1835, with the support of the members of the association, he and his crew left on the ship Rebecca – to the unknown and barely chartered waters and lands that lay to the north of their island home, Van Diemen’s Land (now Tasmania).

Digital Collections - Maps - Wedge, John Helder, 1793-1872. Map of Port Phillip from the survey of Mr - Small

Map defining “Batman’s Treaty” re Dutigalla Land – June 1835

John Batman, who was born and bred in Parramatta, Sydney, had spent much of his childhood exploring and learning the Australian terrain with his friend, Hamilton Hume and the local Aborigines.  As adults, they both became renowned bushmen, who owed their amazing skills to their Aboriginal friends who had taught them so well.  They both had an immense respect for Aborigines and naturally concluded that Australia belonged to the them.  As John Batman stated in his journal of exploration in 1835 that the Aborigines are the “rightful owners of the soil” . . .

Batman Treaty - Small

“Batman’s Treaty” with Aborigines re Dutigalla Land – June 1835

For this reason, John Batman had a treaty prepared by barrister, lawyer, and former attorney-general, Joseph Gellibrand, ensuring that any lands procured from the Aborigines during his journey, would be paid for by means of an annual tribute.

The location at which this momentous occasion took place has always been assumed as being at the Merri Creek, however:

” . . . Mr. G. W. Kusden has fixed the site of this celebrated treaty on Merri Creek, Northcote, at or near the spot now occupied by the ” Old Colonists’ Home “.  He does not give the evidence for this selection, and it is at variance with Batman’s record of the distances travelled, and the delineation on his map.

Difficult as it is to follow Batman’s itinerary on a modern map, his own being hopelessly out of scale, careful computations, and comparisons of the original diary, the touched-up report furnished to Governor Arthur, and the narrative of Captain Robson of the Rebecca, place it beyond doubt that the celebrated treaty took place on the river Plenty, two or three miles above its junction with the Yarra, and distant about thirteen miles in a straight line from the site of Melbourne.

In a vague sort of way the Merri Creek has been generally referred to as the site, having been adopted without examination by Dr. Lang, Bonwick, Lloyd and other writers whom Mr. Rusden has followed.  But in 1885, in a lecture delivered before the Historical Society of Australasia by a well-known surveyor, Mr. James Blackburn, C.E., the locality as set forth above was established beyond question.

After leaving the camp Batman and his party marched, according to the diary, twelve miles in a south-westerly direction, crossing a small stream, which the explorer called Lucy’s Creek, after his favourite daughter, and which was evidently that now known as the Merri Creek.  Soon after passing this they entered a thinly timbered forest abutting on a swamp, which they overlooked from the ridge now covered by the borough of Flemington.  When they reached the swamp their attention was for a time diverted by the clouds of quail that arose about them, and getting entangled in the dense ti-tree scrub which grew around the marsh, they found on forcing their way through that they were on the banks of a river that was larger than the one they had gone up.  This was the Yarra, which they had struck somewhere below the site of the present Gasworks, and as they were unable to find a ford and night was approaching, when they got to the junction with the Salt Water River, two of the Sydney natives were deputed to swim across, and go to the vessel for the purpose of bringing up a boat.  Three hours’ waiting in the dark, with the tide risen to their ankles, was an unpleasant experience ; but the boat came at last, and the long Sunday’s work ended comfortably on board the Rebecca, where Batman recorded in his diary, ” My travelling I hope on foot will cease for some time, having done everything I could possibly wish “.

Self-congratulatory as are these last words, they appear to have been penned on the eve of his accomplishing his most important discovery.  His intention had been to start for Launceston next morning, but when the day broke a strong southerly wind prevented the Rebecca from getting out of the river.  To utilise the time lost by this enforced detention, and if possible to replenish their supply of fresh water.  Batman and Robson took a boat’s crew and pulled up the large river which came from the east.  They found it good water and very deep for six miles above the junction, and where the old ridge of rocks stopped the inflow of the tide, the spot now spanned by the Queen’s Bridge, they filled their casks with water, and Batman marked in his rough diary, ” This will be the place for a village “. . . “

Source:  Excerpt – “A History of the Colony of Victoria from its Discovery to its Absorption into the Commonwealth of Australia in Two Volumes” – Volume I – A.D. 1797 – 1854 – by Henry Gyles Turner – published 1904 – pp 110-111

The territory included in the treaties was defined:

” . . . All that tract of country situate and being at Port Phillip, running from the branch of the river at the top of the port about seven miles from the mouth of the river, forty miles north-east, and from thence west forty miles across Iramoo Downs or Plains, and from thence south-south-west across Mount Villanmarnartar to Geelong Harbour, at the head of the same, and containing about five hundred thousand more or less acres, as the same hath been before the execution of these presents, delineated and marked out by us, according to the custom of our Tribe, by certain marks made upon the trees growing along the boundaries of the said tract of land “.

The other deed conveyed the tract of country known as Indented Head, ” extending across from Geelong Harbour, about due south for ten miles more or less, to the Head of Port Phillip, taking in the whole neck or tract of land, and containing about 100,000 acres “. . . “

Source: Excerpt – “A History of the Colony of Victoria from its Discovery to its Absorption into the Commonwealth of Australia in Two Volumes” – Volume I – A.D. 1797 – 1854 – by Henry Gyles Turner – published 1904 – pp 108-109


” . . . In this he says that, after all the formularies were completed, a tree was marked four ways to know the corner boundary, and he returned next morning to his ship . . . “

Source: Excerpt – “A History of the Colony of Victoria from its Discovery to its Absorption into the Commonwealth of Australia in Two Volumes” – Volume I – A.D. 1797 – 1854 – by Henry Gyles Turner – published 1904 – pp 109


John Batman was the first and only European to recognise Aborigines as the owners of the lands of Australia until 1992.

The following excerpt from ‘The Native-born: The First White Australians” by the Australian National University Emeritus Professor of History, John Molony, published in the year 2000, provides an expert opinion of the events of 1835:

” . . . To Batman, what mattered was the fact that there were already unauthorised settlers across Bass Strait by 1835, including Edward Henty and his party, so why not join them?  A body called the Port Phillip Association was formed, principally by Batman, which would take the initiative and commence settlement there.

In May 1835 Batman set out with three whites and seven of the Sydney blacks, intending to make treaties with the Aborigines of the ‘Imaroo’ by paying continuous tribute to them for fifteen years in return for the peaceful occupation of 600,000 acres.  With the help of the Sydney men and, later with William Buckley, the treaties were concluded on 6 June with the local ‘chiefs’ of great status, much in the manner of William Penn in his founding of Pennsylvania.  Having decided the area for his agricultural and pastoral ventures, Batman selected a spot on the Yarra River, fit, in his words, as ‘the place for a village’ . . . “

Unquestionably, the treaties he concluded were crude and illusory but there is no evidence that the local Aborigines did not understand their import as explained to them by the Sydney men whose ability, customary among Aborigines, to communicate with others after a few days of close contact, was remarkable.  The Crown, with its claim to land that allegedly belonged to no one, in effect used the concept of terra nullius to decide against Batman.  In effect, the Aborigines were deemed to have nothing to barter away and the Crown was not prepared to let slip its right to land it claimed to own as a result of Cook’s taking possession of eastern Australia in 1770.  Consequently, the treaties were quickly rejected as invalid by the British government which regarded both Batman and the blacks incapable of such proceedings, as well as being determined to exercise in a direct and public manner its own prerogative to ‘ownership’ of the land.  To have done otherwise would have served as an encouragement to others.

By means of treaty Batman had attempted to come to some form of amicable arrangement between blacks and whites.  The goods offered, and to be renewed annually, were to the value of about £200 in clothes, food and implements, with tobacco, spirits and firearms strictly excluded.  The offer was certainly inadequate for such an extent of land but the treaties were based on recognition of the right of the Aborigines to their land, and Batman deserves credit, rather than opprobrium, for his genuine attempt to act with some degree of justice.  Furthermore, the determination of Batman and the members of the Association to avoid the dreadful consequences resulting from the enforced occupation in Van Diemen’s Land was to his, and their, lasting honour.  Governor Arthur, who had been duped by rapacious, land-hungry whites in his dealings with the blacks, recognised in 1832, when it was too late, that ‘A fatal flaw in the first settlement of Van Diemen’s Land [was] that a treaty was not entered into with the natives’.  Batman, with his understanding of the Aborigines, his respect for them and his bond from young manhood with them, know the truth of those words.  In the outcome, on the ‘Imaroo’ there were very few clashes between the two races, in which perhaps twelve Aborigines and four whites died, during the period in which the treaties were held to have force.  In that time relations were generally very cordial.

Batman died in 1839 in the officially named Melbourne, the village-city he had founded.  Unheralded, unsung, and unhonoured, even by later generations, the currency lad died destitute and bereft of the presence of his family . . . “

 – Source:  Excerpt – The Native-born: The First White Australians by ANU Emeritus Professor of History, John Molony, published 2000  

Terra Nullius re Australia

Interestingly, from the time of Lieutenant James Cook’s arrival in early 1770, the British Governance proceeded with obtaining the new lands as if Australia were uninhabited, noting that technically Cook had declared the territory from latitude 38o S northward and longitude 135o E eastward for Britain under the doctrine of ‘terra nullius’.

As defined in the following excerpt of ‘The Myth of terra nullius’ – NSW Board of Studies, 1995:

According to the international law of Europe in the late 18th century, there were only three ways that Britain could take possession of another country:

If the country was uninhabited, Britain could claim and settle that country. In this case, it could claim ownership of the land.

If the country was already inhabited, Britain could ask for permission from the indigenous people to use some of their land.  In this case, Britain could purchase land for its own use but it could not steal the land of the indigenous people.

If the country was inhabited, Britain could take over the country by invasion and conquest- in other words, defeat that country in war.  However, even after winning a war, Britain would have to respect the rights of indigenous people.

Strangely Britain did not follow any of these rules in Australia.  Since there were already people living in Australia, Britain could not take possession by “settling” this country.  However from the time of Captain Cook’s arrival the British Government acted as if Australia were uninhabited.  So, instead of admitting that it was invading land that belonged to Aboriginal people, Britain acted as it were settling an empty land.  This is what is meant by the myth of terra nullius.

 – Source:  ‘The Myth of terra nullius’ NSW Board of Studies, 1995

The following transcript from Cook’s Journal dated Friday 4th May 1770, clearly states the presence of inhabitants of the land that he described as ‘New Wales East Coast of New Holland‘:

“New Wales East Coast of New Holland

. . . Friday 4   Winds Northerly sereen Wea r, upon my return to the Ship in th[e] evening I found that none of the Natives had appear’d near the Water  g [pla] but about 20 of them had been fishing in their Canoes at no great distan[ce] from us, In the AM as the Wind would not permit us to Sail I sent out so[me] parties into the country to try to form some connections with the Nati[ves] one of the Midshipmen met with a very old man & Woman & 2 small Child[ren] they were close to the Waterside where several more were in there Canoes gather [torn page] of Shell fish & he being alone was afraid to make any stay with the 2 old p [torn page] ple least he should be discover’d by those in the Canoes, he gave them a [torn page] he had Shott which they would not Touch neither did they speak one word but seem’d to be much frightned, they were quite Naked even the Women had nothing to cover her nuditie, Dr. Monkhouse & another Man being in the Woods not far from the water g place discover’d 6 more of t[he] Natives who at first seem’d to wait his coming, but as he was going up to them he had a dart thrown at him out of a Tree which narrowly escaped him, as soon as the fellow had thrown the dart he descended the Tree & made off & with him all the rest & these were all that were met within the Cour[se] of this day – . . . “

It was therefore, by definition, definitely NOT an uninhabited land.  It was clearly inhabited as is proven by the above excerpt.

The British therefore, had NO right to settle the land without permission or payment to the natives of the land.

The only person to seek permission and offer payment for the use of the land was John Batman.

So, how can it be that John Batman was denied the treaty with the natives of the land ???  

However, history records prove that the British aristocracy defied Terra Nullius and removed the undeniably legal treaty.


Bourke’s Proclamation

Though the association had made every attempt to communicate with the constabulary throughout the process, on the 10th October 1835, Governor Bourke issued the following Proclamation:

” . . . Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, 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, as aforeseaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission, that is to say, extending from the Northern Cape, or extremity of the Coast called Cape York, in the latitude of ten degrees thirty seven minutes South, to the Southern extremity of the said Territory of New South Wales, or Wilson’s Promontory, in the latitude of thirty nine degrees twelve minutes South, and embracing all the Country inland to the Westward, as far as the one hundred and twenty ninth degree of east longitude, reckoning from the meridian of Greenwich, including all the Islands adjacent, in the Pacific Ocean within the latitude aforesaid, and including also Norfolk Island, 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 as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony. . . “

And so, with this succinct letter of Proclamation from Governor Bourke, the rights of Aborigines, settlers and all those who had risked their lives, limbs, families and fortunes; to discover and settle these undiscovered territories – lost it all . . .

The Proclamation of Governor Bourke implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown taking possession of it.  Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown.  Many people at the time recognised that the Aboriginal occupants did have rights to the lands as was confirmed in a House of Commons report on Aboriginal Relations in 1837, however, somehow, the law followed and almost always applied the principles expressed in Bourke’s proclamation.  This would not change until the Australian High Court’s decision in the Eddie Mabo Case in 1992 . . .

During the early times of discovery and the mapping of Australia, most of those brave enough to tackle the unknown wilderness died at an early age.  It is as if they pushed their minds and bodies beyond what is humanly possible.  John Batman was one of those.  He succumbed to the toils of his discoveries and the frustrations of dealing with the aristocracy just four years after his exploration tour of Port Phillip – on the 6th May 1839, at the tender age of only 39.  Though he and his wife fought to keep their home on ‘Batman’s Hill‘, Government offices moved in as soon as he had passed, his wife and children left homeless and penniless . . .

The growing Village of Melbourne – as pictured in 1839


From the time of Batman’s Treaty, it took 157 years for the Aborigines to be recognised as natives to this land, however, the first explorers and settlers have never been acclaimed in any way – not in the accurate recording of their gallant achievements, nor in the right to live out of poverty . . .


Monody on Batman’s Hill


View other important events in this Region’s History . . .

View other important information on Discovering Terra Australis . . .

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