ANDREW FITZMAURICE
This article examines the genealogy of the term terra nullius, which remains elusive even as it is now clear that the term is absent from the eighteenth – and early nineteenth century historical record.
I show, however, that terra nullius was generated by the history of European expansion and, specifically, by the natural law tradition that since the sixteenth century was employed to debate the justice of colonisation.
I conclude that the contemporary use of the idea of terra nullius is consistent with a tradition in which natural law was used to oppose colonisation … terra nullius copy.pdf
The term “terra nullius” might be new but the legal concept is old. Words such as “wasteland”, “desert” or “uncultivated” have been used in law for centuries.
The common law “doctrine of reception” determines how an imperial power can establish their law in another land. The land must be empty, or the people must be conquered in war, or there must be a treaty. This doctrine was applicable during 18 century imperialism and the treaty of Paris.
England never denied that there were people here, Cook and Banks give detailed descriptions of the people they came in contact with. However Banks and others asserted that the Aborigines were dying out, which is why the land could be considered empty in terms of the doctrine of reception.
There was a public argument that Aborigines were dying out because they were a backward remnant of less evolved epoch and could not cope with the modern world. However, I think, the real reason England assumed the Aborigines were dying out was because of the deliberate infection of smallpox to the Aborigines, beginning with Cook and Banks. See – http://paradigmoz.wordpress.com/2007/02/27/captain-cook-joseph-banks-and-smallpox/
After the smallpox epidemics came the native police massacres. Genocidal policies were designed to ensure the dying out.
The idea that Aborigines were dying out was government policy until well into the 20th century, the policy of “smoothing the dying pillow” was the basis of missions and reserves and protection laws.
The problem for the invader is that the Aborigines did not die out as planned. It is the failure of genocidal policies, not historical inaccuracy, that has caused the contradiction of Terra Nullius.
Terra Nullius is just the little toe of the real strawman…http://unlearningtheproblem.wordpress.com/
If i am reading this correctly, the article “The Genealogy of Terra Nullius” is saying that the concept of ‘terra nullius’ did not exist in 1788 when Australia was colonised; the concept first appeared in print many years later in 1909.
From this it may be concluded that the dispossession of aboriginal people of their lands was not based on the concept of ‘terra nullius’ as the high court judges in the Mabo case would have us believe. The high court was knocking down a straw man (terra nullius) that came into being long after colonisation and after federation itself. But Terra Nullius did not suddenly shoot out of the ground … that fiction of ‘terra nullius’had been nurtured by other concepts long before.
The article takes the line that it was Roman law that is the basis of the injustice of dispossession. The latin root of aboriginal comes from ‘ab’ meaning ‘from’ and ‘origine’ meaning the beginning; therefore ‘from the beginning’.
Natural Law states that right of possession is based on who were here first AND who made use of the land. It is not enough to be here. Wild animals, plants and land must be exploited to convey the right of sovereignty under this philosophy.
If this is true, Mabo is historically incorrect but headed in the right direction because it recognises the sovereignty of first peoples who lived on and took possession of the land for thousands of years before Europeans came. But that recognition in the form of ‘native title’ was itself flawed because it allowed for ‘bucket loads of extinguishment’ of land rights. The Native Title legislation introduced by the Keating government following the High Court decision in Mabo is itself a failure.
This discussion raises the question of where did the first people in Australia come from? From the rift valley, from India?
A recent show on SBS called “Footprints” says dreamtime stories vary on this question, some suggest aborigines were here from the beginning, some say they were the first boat people coming here from the north even before the megafauna became extinct, tens of thousands of years ago.
ian curr
January 2014