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Terra Nullius and Australian Colonialism

Terra nullius, was a concept first developed to rastionalise colonial expansion. It soon took on an ideological life of its own, which substantially outlived colonialism. The British settlement of Australia was based in its presumptions, and the people of Australia—Aboriginal and colonial alike—have struggled with its residue for over 230 years.

In its simplest sense, terra nullius is land belonging to no one. The invocation of terra nullius, necessary as it was to colonial expansion, required a restrictive notion of territorial title. New South Wales was not the first arena in which Europeans tested the pragmatics of terra nullius. By the time Captain Cook first laid eyes on Australia, European states had been struggling to subdue the native inhabitants of the Americas for nearly three hundred centuries. England, France, Spain, and the Netherlands claimed for themselves portions of the New World, wrenching the land from a wide range of Native American societies—from the hunter-gatherers of northern regions to the highly centralized empires of Central and South America. For all intensive purposes, “discovery with symbolic taking of possession” constituted “an adequate basis for legal title to terra nullius” (Simsarian) at this point. Simply put, Native Americans were given no ideological claim to their land in the absence of a centralized government. Those few indigenous societies that the Europeans granted as holding sovereignty over their land, however, were not saved from colonization; they were simply conquered in the process. From its experience in America, Europe had developed a legal framework in which colonization was both acceptable and encouraged. Occupation of Australia was practically a foregone conclusion.

Captain Cook didn’t discover Australia. It had been occupied for tens of thousands of years. He wasn’t even the first European to stumble across the continent. Somehow, though, Britain claimed the continent for itself. Under contemporary international (i.e. European) law, Britain could take control of territory:

by persuading the indigenous inhabitants to submit themselves to its overlordship;

by purchasing from those inhabitants the right to settle part or parts of it;

by unilateral possession on the basis of first discovery and effective occupation. (Frost qtd. in McGrath 12)

History dictates that neither the first nor the second method legitimized British colonization of Australia, and common sense excludes the third. The reports from Captain Cook, however, allowed London to turn a blind eye to the rights of the Aborigines. Cook described the land as being in “a pure state of nature,” and claimed that there was not “one inch of Cultivated Land in the Whole Country” (Cook qtd. in Day 26). Britain was fully aware of an indigenous population when it sent the first fleet of convicts to Botany Bay in 1787. In a typical display of European cultural and racial arrogance, however, the Aborigines were not seen as adequate proprietors of the land they had inhabited for at least forty thousand years: “The people could not be considered owners of their land. British settlement was, for all practical purposes, a full-scale invasion, with the convicts forming the front line. Adherence to the myth of terra nullius, however, meant that white Australians were fighting against opponents who didn’t exist, who didn’t have to be pushed of the land that was never theirs to begin with. Australia’s designation as terra nullius seemed to be an irreversible decision. Even when the British discovered evidence of cultivation and land ownership traditions, they refused to acknowledge their mistake. Aboriginal forfeiture of the land was taken for granted, which retarded the drive to subdue the entire continent immediately. Indeed “the dominant motive” in establishing new Australian colonies in the early nineteenth century “was to forestall any possible occupation by the French government, which had sent several scientific expeditions to the Pacific” (Crowley 352). Such actions signify the total lack of regard with which the British viewed the peoples they had supplanted. Clearly, the notion of terra nullius was inherent to white views of Australia. With an influx of white settlers, the full legal and practical implications of occupying the “terra nullius” of Australia would soon become apparent.

The ability of white settlers to rationalize away Aboriginal land claims was a powerful force in itself, but it rested firmly on codified disenfranchisement executed by the state. Certainly, the original settlement of the continent had been based on a legal notion of terra nullius. British law officers in 1819 wrote that “That part of New South Wales possessed by His Majesty, not having been acquired by conquest or cession was taken possession of by him as desert and uninhabited” (qtd. in Reynolds 67). The land, of course, was inhabited. By denying sovereignty if the Aborigines, however, the white settlers could justify their claim of terra nullius. That fallacy lasted well into the twentieth century, the High Court writing in 1979 that Aboriginal peoples “have no legislative, executive, or judicial organs by which sovereignty might be exercised…The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain” (qtd. in Reynolds 95). Official denial of Aboriginal land rights was not universal, however. In 1837, for example, a Select Committee on Aborigines in the British acknowledged Settlements (in a quite Dickensian tone) the injustice suffered by indigenous Australians:

It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country. (qtd in Crowley 526).

Professor Eklund 28th February 2001