In 1770 Captain James Cook landed in Botany Bay, home of the Eora people, and claimed possession of the East Coast of Australia for Britain under the doctrine of 'terra nullius'

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
Reproduced in the Sydney Morning Herald, 26 October 1996

Terra Nullius and Australian Colonialism

Professor Eklund 28th February 2001

Europeans colonized the world. Spurred by cultural arrogance and greed, the emerging nation-states of Europe charged across land and sea, establishing footholds for themselves on every habitable continent by the close of the eighteenth century. Colonial history cannot be attributed to any single theme. It was, rather, the result of a complex web of historic trends. The developing impetus for exploration, for example, does not wholly account for changes in the treatment of indigenous populations by colonizing Europeans; the two, rather, interacted with one another. Plucking one thematic thread, therefore, implies the reverberation of numerous others. This is certainly true of any discussion of terra nullius, a concept first developed to rastionalize 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. Antarctica is terra nullius. Even in the eighteenth century, however, Europeans would have been hard-pressed to find a large landmass without inhabitants. The invocation of terra nullius, necessary as it was to colonial expansion, required a more 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 mistakenly believed that the Aborigines as a whole "lived mainly on shellfish and did not cultivate the land or erect permanent habitations upon it" (Day 26). He 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. They were simply primitive and happy occupants" (Moore). 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.

As a penal colony, New South Wales was literally full of convicts. It was the free settlers, however, who provided the impetus for the colony’s expansion, both along the coastline and inland. It was their interests that held greatest sway over colonial government, and it was their acquiescence to the notion of terra nullius that fostered the popular acceptance of Aboriginal dispossession in Australia. At the root of the issue was the belief that the indigenous peoples were somehow inferior to the white settlers. Thus the colonists were "unwilling to admit that Australian Aborigines should have equal civil status with white Europeans" (Crowley 112). It followed, then, that terra nullius was a reasonable policy, meant to foster the property rights of the ‘deserving’ while denying property in any form to those outside the dominant, white society. Support for the myth was widespread; in 1838, The Sydney Herald urged its readers to accept its tenets, asking "whether civilized man has not a right to occupy waste lands merely because they are roamed over by scattered trives of wild men" (qtd. in Reynolds 72). Their answer, of course, favored white settlement, concluding that "Such a country is, a desert for every purpose involved in the question, and my be justly occupied by civilized man" (qtd. in Reynolds 72). As widespread as it was, the myth became central to white Australian identity early on. It "dictated the basis of property ownership, and influenced the structures of fundamental Australian institutions, including its government" (McGrath 4). While some white settlers acknowledged the fallacy of the claim that Aboriginal Australians lacked a sense of property—one of the foundations of the terra nullius argument—they accepted the dispossession of indigenous landholders nonetheless. Francis Armstrong noted that Aboriginal land seemed to be "apportioned to different families," and that it was "beyond doubt inheritable property among them" (Armstrong qtd. in McGrath 244). Still, the myth endured, and grew to serve the diverse needs of an expanding white population. Terra nullius certainly provided the rationalization for the initial British invasion of Australia. It also aided in bringing the land fully under their control by legitimizing their "claim of effective proprietorship that is made by the physical occupation of that land" (Day 3). Eventually, the invaders truly settled, completing the colonization process: white Australians began to view their continent (rather than Great Britain) as ‘home.’

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).

The Committee’s report seems to have fallen on deaf ears in London, however, and no tangible improvements followed. Terra nullius maintained its grip on white Australian consciousness. About a decade later, an Australian judge applied it to new areas of the continent, concluding that:

The circumstances of newly discovered and unpeopled territories, claimed by and vested in the Crown, on behalf of all its subjects, are so widely different from those of a populated and long-settled country…that a moment’s reflection would present them to the mind even of a stranger. The lands in new territories are unoccupied and waste, until granted by the Crown to some individual, willing to reclaim them from the state of nature. (qtd. in Reynolds 68)

In other words, since Aboriginal sustenance has not required enclosure of land (as did European agriculture), the British were right to take control of the lands, and had the right to continue doing so. This claim is particularly bold, though: it accepts the territories in question as true terra nullius, denying the presence of any occupants. So the myth endured, legally and practically.

On the whole, acceptance of terra nullius profoundly affected the white approach to indigenous issues: "Aborigines, as it were, did not exist before the invasion and those who survived were owed no rights except those of legal childern who would ultimately inherit no more than the rights of other Australians" (McGrath 288-9). It allowed the white invaders to rationalize their behaviors as "settlement" and allowed the governments (colonial and later federal) to turn a blind eye to the people who weren’t supposed to exist in the first place. The 1992 Mabo judgment finally freed the continent of terra nullius as a legal doctrine. Anti-Aboriginal sentiments resurrect the idea from time to time, however. The manner in which the Australian people, Aboriginal and white alike, choose address the injustices of the past will have the final say, though, in determining whether terra nullius has been abandoned altogether.

Works Consulted

Australia Institute. "Howard plan resurrects terra nullius." 24 March 1998. http://www.tai.org.au/media/prnativ3.shtml (18 February 2001).

Cooray, LJM. The High Court In Mabo - Legalist Or L'egotiste. 1991. http://www.users.bigpond.com/smartboard/mabo/ (14 February 2001).

Council for Aboriginal Reconciliation. "Documents of Reconciliation: Terra Nullius and Sovereignity." http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/terran.htm

(17 February 2001).

Crowley, Frank. Colonial Australia: 1788 – 1840. West Melbourne, Australia: Nelson, 1980.

Day, David. Claiming a Continent: A New History of Australia. Sydney, Australia: HarperCollins, 1997.

McGrath, Ann. Contested Ground: Australian Aborigines under the British Crown. St. Leonards, Australia: Allen & Unwin, 1995.

Moore, Geoff. "Fact Sheet: Terra Nullius." Australian Aborigines History and Culture Research Project. http://www.aaa.com.au/hrh/aboriginal/factsht28.shtml (18 February 2001).

Reynolds, Henry. Disposession: Black Australians and White Invaders. St Leonards, Australia: Allen & Unwin, 1989.

Simsarian, James. "The Acquisition of Legal Title to Terra Nullius." Political Science Quarterly. Volume LII, No. 1 (1938). http://members.stratos.net/cpetras/ci-1-1.htm (18 February 2001).

Social Change Online. "Racism. No Way. –Fact Sheets: Terra Nullius." 27 December 2000. http://www.racismnoway.com.au/classroom/Factsheet/10.html (18 February 2001).

Stephens, Tony. "Terra nullius of the spirit." Sydney Morning Herald. 4 April 2000. http://www.smh.com.au/news/0004/04/pageone/pageone02.html (18 February 2001).

SEE ALSO:
 Why Terra Nullius? Anthropology and Property Law in Early Australia pdf file
by Stuart Banner Professor of Law at University of California, Los Angeles

 Similar Societies, Different Solutions pdf file
United States Indian Policy in Light of Australian Policy towards Aboriginal Peoples
by Leonard A. Carlson, Department of Economics, Emory University, Atlanta, Georgia