Fragile Settlements

Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada

By Amanda Nettelbeck, Russell Smandych, Louis A. Knafla, and Robert Foster

SERIES: Law and Society

UBC Press

Fragile Settlements compares the processes by which colonial authority was asserted over Indigenous people in south-west Australia and prairie Canada from the 1830s to the early twentieth century. At the start of this period, there was an explosion of settler migration across the British Empire. In a humanitarian response to the unprecedented demand for land, Britain’s Colonial Office moved to protect Indigenous peoples by making them subjects under British law. This book examines the tensions and contradictions that emerged as colonial actors and institutions – including government officials, police, courts, churches, and philanthropic organizations – interpreted and applied the principle of law in their interactions with Aboriginal peoples on the ground. As a comparative work, Fragile Settlements highlights important parallels and divergences in the histories of law and Indigenous-settler relations across the Anglo-colonial world. It questions the finality of settler colonization and contributes to ongoing debates around jurisdiction, sovereignty, and the prospect of genuine Indigenous-settler reconciliation in Canada and Australia.

This book will be of interest to scholars and students of trans-colonial history, Indigenous Studies, and the socio-legal history of the British Empire.

Fragile Settlements is a testament to the benefits of collaboration and an answer to the daunting logistics of comparing multiple historic sites ... [It] is a valuable contribution to the historiographies of Canada and Australia. Kenton Storey, independent historian, Canada, Australian Historical Studies

Fragile Settlements makes an important contribution to the growing field of transcolonial studies by bringing into conversation the legal histories of the dispossession of Indigenous peoples in south-west Australia and western Canada. The authors provide critical insight into the ways in which the various forms of legal colonial governance played out in two locales. This work is an important one for anyone considering how the legal histories of the past can better inform our understanding of clashes over sovereignty and jurisdiction in the present. Shaunnagh Dorsett, professor, faculty of law, University of Technology Sydney, and co-editor (with John McLaren) of Legal Histories of the British Empire: Laws, Engagements and Legacies

The authors of Fragile Settlements tackle what few legal scholars have attempted – regional comparisons – and they do it very well. They ambitiously and successfully set out to uncover how contemporary experiences of ‘imperfect sovereignty’ in both Australia and Canada can be traced to their parallel histories of Aboriginal subjugation through law and other forms of settler governance Peter Karsten, professor, Department of History, University of Pittsburgh, and the author of Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora–The United States, Canada, Australia, and New Zealand, 1600-1900

Amanda Nettelbeck is a professor in the School of Humanities at the University of Adelaide, Australia. She has published extensively on the history of the settler frontier and the colonial governance of Indigenous people. Her books co-authored with Robert Foster include Out of the Silence: The History and Memory of South Australia’s Frontier Wars and In the Name of the Law: William Willshire and the Policing of the Australian Frontier. Russell Smandych is a professor of sociology and criminology at the University of Manitoba, Canada. He is a specialist in criminal justice and comparative British colonial legal history and has published extensively in these fields, including in Legal History, Law and History Review, Criminal Justice History: An International Annual, and the Australian and New Zealand Journal of Criminology. Louis A. Knafla is a professor emeritus at the University of Calgary. He co-edited, with Haijo Westra, Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand. Some of his work on the history of the law in western Canada appeared in Laws and Societies in the Canadian Prairie West, 1670-1940 and in Law and Justice in a New Land: Essays in Western Canadian Legal History. Robert Foster is an associate professor in the Department of History at the University of Adelaide, Australia. He is a specialist in Australian Indigenous history and has written extensively on conflict between Aboriginal people and settlers on the Australian frontier, including in Journal of Australian Colonial History, History Australia, Aboriginal History and Australian Historical Studies.

Introduction: Settler Colonialism and Its Legacies

1 British Law and Colonial Legal Regimes

2 The Foundations of Colonial Policing

3 Policing Aboriginal People on the Settler Frontier

4 Co-optive Policing: Native Police, Trackers, and Scouts

5 Agents of Protection and Civilization

6 Aboriginal Peoples and Settlers in the Courts

7 Agents of the Church

8 Agency and Resistance: Aboriginal Responses to Colonial Authority

9 Colonizing and Decolonizing the Past

Conclusion: Spaces of Indigenous and Settler Law

Notes; Bibliography; Index of Statutes, Treaties, Charters, and Proclamations; Table of Reported Cases; Index