The Importance of Terra Nullius in Australian History - The British Empire

Before I return to this point, I would like to refer to the way the British government annexed New Zealand. In 1837 at a time when there was no formal authority in New Zealand, 200 settlers and missionaries petitioned William III to provide them with protection. There had been a series of Maori civil wars in the previous decade, and although the Maori people had been decimated by inter-tribal wars and contracting European diseases, they still posed a threat to the white settlers who numbered around1000, mainly living around the Bay of Islands. The Secretary of the Colonies Lord Glenelg realised that something had to be done. The position of the Colonial Office at this time to founding more colonies was to resist such pressure as there was little money available to provide an administration and sufficient soldiers for defence. The attitude of government also was to do as little as possible as the Colonial Office was understaffed, overworked, and having to deal with the problems in Canada, South Africa, and the West Indies. The empire had a low profile in government and parliament and such colonies as there were had been acquired for reasons of trade. The government preferred that trade and business proceed without the intervention of government which would only intervene as a last resort to protect British business interests. In the case of New Zealand Glenelg realised that British authority was needed. He and his under-secretary, James Stephen, were both evangelicals who believed that the British government had a clear responsibility for the native inhabitants of colonies and that the role of the Colonial Office was to act as a referee to ensure justice was done between the conflicting interests of the traders, settlers, missionaries and local people. Although they were evangelicals, Glenelg and Stephen rejected the views of the Church Missionary Society which believed that encouraging settlement would inevitably result in conflict with the Maori and concluded that colonisation was inevitable and what was needed was British intervention.

Hobson was given the instruction to deal fairly with the Maori, to buy such land as he was able and to guarantee the rights and the welfare of the Maori. The Treaty of Waitangi was the result. The difference between the annexation of New South Wales and that of New Zealand is obvious and is possibly due to the nature of who was in the Colonial Office at the time. Were they trying to rectify what they regarded as an obvious error in what Cook had done (or not done)? It is impossible to know.

In Roman law, res nullius meant nobody’s thing or things without owners. The res nullius argument has been used by many historians, particularly Alan Frost and Henry Reynolds who claim that in the 15th and 16^th centuries European countries adopted the res nullius principle for territorial conquest. By the time of Cook’s voyage there existed certain international principles regarding the annexation of territories. If a territory was not already the possession of a rival, it could be acquired by a) through the consent of the inhabitants b)by purchasing the right to settle or c) to possess on the grounds of being the first to discover the territory and occupy (or settle) it. (ie on the grounds of res nullius.) There is a debate amongst historians as to whether the right to acquire a territory by discovery and settle (on the grounds of res nullius)could apply even if there were inhabitants. Such a right existed according to some,  if the inhabitants had not advanced beyond a primitive state of nature and had not yet mixed their labour with the earth in a permanent way.

It was a common doctrine amongst European at the time of Cook’s claim that all things exist in potential and that humans have to release  the potential to exercise  ownership.  (Fitzmaurice, 2004). This became an important part of the legal claim to terra nullius. A land could be regarded as terra nullius if the inhabitants did not practise agriculture in the European sense of preparing land, sowing seeds, harvesting, and then storing the subsequent harvest.

By the time of the creation of the federation of Australia in 1901 the legal basis for the white ‘conquest’ of Australia was the principle of ‘Terra Nullius’ a term that only dated back to the 1880s although it is now accepted by many historians, principally Andrew Fitzmaurice, that the principle of terra nullius is something that ‘international lawyers invented in the c20th to explain the doctrine of res nullius as it applied to land. Fitzmaurice maintains that although the term res nullius was not used in the early c19th it was the same as the natural law doctrines of the time and formed the basis of terra nullius. The myth of the founding of the Australian was born -it was founded on terra nullius and on Captain Cook being the first European to ‘’discover Australia. This version of history not only erases the rights of the indigenous people but also the contribution of the Dutch who fist landed on Cape York in 1606, 150 years before Cook made his claim  there. There were 29 further expeditions to map the coastline from Cape York to Tasmania before Cook arrived in 1770 -expeditions which form little part of Australia’s written history.

This Anglo-Centric view of Australia remained unchallenged until the 1970s. In 1971 in Milirrpum v Nabaalco Pty Ltd, Justice Blackburn ruled that Australia had been considered desert and uncivilised in a primitive state of society before European settlement. In subsequent cases though, Australian sovereignty was challenged on the grounds that terra nullius had been improperly applied. One of these cases was brought by Paul Coe, an Aboriginal activist commenced, who as plaintiff, brought an action in the High Court of Australia arguing that at the time white people came to Australia, Aborigines were there and therefore the Court had to recognise their rights. His case was dismissed on technical grounds, but he had raised the issue and it would not now go away.

At about the same time the historian Alan Frost argued that the principle of terra nullius  implied that a territory that had not been improved by a native people could be regarded as terra nullius but had Prime Minister Pitt known that the Aborigine people were not in fact nomadic but had a ‘complex social, political and religious framework’ then the British government would have had to negotiate with the indigenous people already there.

In 1986, in a book, The Law of the Land,  Henry Reynolds wrote that when the British arrived they regarded Australia as a terra nullius, but the British had made a legal error in treating indigenous land as terra nullius. ‘The Aborigines were in possession of their land  as that term was understood in both international and English law at the end of the c18th and the early years of the c19th.‘ For Reynolds it was just necessary to have the intention to possess land and that didn’t necessarily require living  permanently in one place. The implication of this was that Aborigine people had a legal right to their traditional lands.

In 1982 Eddie Mabo and four other Torres Strait islanders started legal proceedings to establish their legal right to their traditional land. After legal proceedings which lasted for ten years, the judge declared in 1992 that the Mer people had owned their land prior to annexation by Queensland. As part of the evidence produced by the appellants was a map of the shoreline of Murray island which clearly shows the Aborigine people living in a settled community. This helped the High Court Judge to rule that the Meriam people were entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands.’ The court rejected the idea that Australia was terra nullius before white settlement and set a precedent in Australian law which has since seen Aboriginal and Torres Strait islander groups regain rights over their traditional lands.