I’ve read a number of recent articles the burden of which is that the doctrine of terra nullius was a straw man invented by Henry Reynolds (sorry no links, but Christopher Pearson in the Oz states the point and lists others).
My own memory is that this doctrine was enunciated, both in name and in substance, by Justice Blackburn in a major case about 1971, which wasabout the beginning of Reynolds academic career. I’m prepared to believe that I’m wrong about the name, but I can’t see how the substance of Blackburn’s decision could have a basis significantly different from what we now call the doctrine of terra nullius . Maybe Ken Parish or some other well-informed person can set me straight.
Update: Commenter Dan has all the relevant info, so read the comments thread. Blackburn actually used the phrase “desert and uncultivated” which is taken in all the subsequent discussion to be synonymous with terra nullius.
My conclusion: Pearson and others are talking nonsense. The Blackburn decision made the validity or otherwise of the terra nullius doctrine a vital concern. Reynold’s research showed that this doctrine was not asserted as part of the British claim to sovereignty over Australia. Of course, the evidence can be read in ways more favorable to a terra nullius view, but there’s no sense in which this view was a straw man invented by Reynolds for the purpose of demolition.