Terra Nullius

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.

24 thoughts on “Terra Nullius

  1. The Butterworths entry for terra nullius points to Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) [1972-73] ALR 65; (1971) 17 FLR 141 at 201 per Blackburn J:

    Principles applied to the acquisition of colonial territory.

    There are certain wide principles, not purely of law, which must be set out as a necessary background to a statement of the law applicable to colonial possessions.

    The first is a principle which was a philosophical justification for the colonization of the territory of the less civilized peoples; that the whole earth was open to the industry and enterprise of the human race, which had the duty and the right to develop the earth’s resources; the more advanced peoples were therefore justified in dispossessing, if necessary, the less advanced. Kent explains this principle shortly (Commentaries on American Law, vol. III, p. 387); he mentions its earlier expression by Vattel, but as a philosophical doctrine it no doubt had a longer pedigree. The Puritans of Massachusetts looked upon it as the application of a command given by God at the Creation: Kent’s Commentaries, vol. III, p. 388, note (a).

    Related to this was the doctrine that discovery was a root of title in international law: that the sovereign whose subjects discovered new territory acquired title to such territory by the fact of such discovery. This principle was repeatedly said to have been the basis of the claims by European sovereigns, including of course the British Crown, to land on the American continent: see, for example, Chalmers, Political Annals of the Present United Colonies (1780), vol. I, p. 5; Johnson and Graham’s Lessee v. M’Intosh((6)), per Marshall C.J.; Kent’s Commentaries, vol. III, p. 379.

    Related again was the principle that subjects of a sovereign have no power to acquire for themselves title to land from aboriginal natives; any such purported acquisition operates as an acquisition by the sovereign. This principle operates whether the actions of the subject amount to a conquest of the aboriginal natives, or the conclusion of a treaty with them, or merely a private bargain. The principle was often shortly described as the sovereign’s right of pre-emption. Its existence and age are undoubted. It is stated, for example, in terms implying no doubt, in an opinion of the Law Officers given in 1717: Chalmers, Opinions of Eminent Lawyers (1814), p. 41. It was again stated by Marshall C.J. in Johnson and Graham’s Lessee v. M’Intosh((7)) as a principle which had been applied by other sovereigns as well as by the Kings of England, and also invariably by the United States. It was again stated by Chapman J. in Reg. v. Symonds((8)), where the origin of the rule was suggested as a development of the previous principle that title rests upon discovery. These two cases last mentioned were, as *201 will be seen, heavily relied on by the plaintiffs. See also Kent’s Commentaries, vol. III, p. 385.

    This last rule was a highly beneficent one in the interests of the aboriginal natives, since it protected them from being over-reached by unscrupulous colonists, and made it far more likely that any bargain would be fair. Another way of expressing the same rule was to say that only the Crown, or the sovereign, had power to extinguish native title. In that form, it comes near to being a statement of the proposition that as against white subjects the natives have rights which cannot be taken away from them. This proposition resembles some of the dicta in cases in the nineteenth century upon which the plaintiffs relied strongly in this case.

    The application of English law in the overseas possessions of the Crown.

    In my opinion the authorities show that the law relating to the application of English law to the overseas possessions of the Crown was, in principle, well settled by 1788: indeed, it had been so since Campbell v. Hall((9)) and scarcely less so since the publication of Blackstone’s Commentaries (1765). The American authorities show, I think, that their courts regarded the law as having been well settled at the time of the Revolution (1776).

    Blackstone (Commentaries I. 107) stated the doctrine as clearly settled at the time when he wrote. The work was published in 1765. There is a distinction between settled colonies, where the land, being desert and uncultivated, is claimed by right of occupancy, and conquered or ceded colonies. The words “desert and uncultivated” are Blackstone’s own; they have always been taken to include territory in which live uncivilized inhabitants in a primitive state of society. The difference between the laws of the two kinds of colony is that in those of the former kind all the English laws which are applicable to the colony are immediately in force there upon its foundation. In those of the latter kind, the colony already having law of its own, that law remains in force until altered. Blackstone cites several cases, forming a chain of authority which goes back to Calvin’s Case((10)). The whole doctrine was clear, though its application in any given case often caused difficulty, particularly the question whether a particular English law applied in a particular colony. The great case of Campbell v. Hall((11)), where the law of a ceded colony was in question, treats the doctrine as stated by Blackstone as settled beyond doubt, and in my opinion it was settled beyond doubt in 1788 and is so at this day, for settled colonies.*202

    As far as I can tell, the judgment doesn’t mention terra nullius by that name.

  2. While the expression “terra nullius” might be recent, the term “res nullius” — meaning “things which have not or never had an owner” — has long been used. So “terra nullius” is consistent with that concept.

  3. I’ve put up a lengthy post in this topic today; mostly it’s a plain text version of a journal article by me on Milirrpum v Nabalco Pty Ltd (aka the Gove Land Rights Case).

  4. Can you provide a link Paul?

    IMHO “terra nullius” was a phrase that captured an absurdity under Australian law, namely that Aborignal people had no standing in the court as landowners.

    The Mabo decision was based upon acknowledging this absurdity for what it was. In the case of TI there was a long standing well understood traditional law governing property rights.

    The common law consequences of long standing arrangements are recognized in Canadian Law as well as in British Law. Specifically, in the case quoted in Mabo, of the rights of inheritance of Welsh land owners following the Union of 1700(date?). The court did not have decide the legal meaning of terra nullius – it only had to decide that Aboriginal people were real people.

    The question of the standing of Aboriginal people in Australian law is one of those pieces of history that the likes of Christopher Pearson prefer to gloss over. The various State Native Welfare Acts reduced Aboriginal people to a status equivalent to cattle or worse. As was noted at the time, the 1966 referendum corrected the anomaly which saw them counted as part of the flora and fauna of Australia.

  5. Terra nullius means “no mans land” as in the land between opposing armies. Any other definition is a definition of will, which has very little to do with the original concept. basically it’s a postmodernism interpretation, mainly pseudo-Marxist jurist prudence .
    To understand it properly, you also have to understand the meaning of “Uti Possidites” “Here I stand”. In other words ” We (the army) have sovereignty over the land we hold”
    Basically they were military terms which leaked into international law.
    My take on it is that “terra Nullius” in it’s 16th century application, was a reaction to the Muslim concept of Dar al-Harb (Dominion of War)which meant that all lands not in Dar al-Islam (Dominion of Peace) were legally available to any muslim who could conquer them.
    Forgetting this, has led to the idiocy of the present interpretation, i.e. that it’s just an anti-native concept, which is basically just racism, according to the strange interpretation of the adherents of Marxism and Tranzism .
    Have a look at the “The Bull Romanus Pontifex (Nicholas V), January 8, 1455.” as an indication of the origin of the concept.

  6. If you care to delve you’ll find that Blackburn J didn’t accept terra nullius and that Gibbs CJ said it was unknown to the common law.Rather than huffing about Connor you should read his piece on the web and, if you can, make a reasoned argument agaist him.

  7. *If you care to delve you’ll find that Blackburn J didn’t accept terra nullius and that Gibbs CJ said it was unknown to the common law.Rather than huffing about Connor you should read his piece on the web and, if you can, make a reasoned argument agaist him.*

    (1) Can you provide a link for Connor ?
    (2) My reading so far is that Blackburn made no mention of terra nullius, but affirmed the broadly identical claim that Australia was “desert and uncultivated” when it was “discovered”. If the critique of Reynolds involves more than a semantic quibble about these terms, none of the criticisms Ive read has shown this.

  8. Can I suggest that those interested in this matter read my work, which Christopher Pearson purports to discuss in his column in the Australian on 26 June. This exists in two forms, ‘Myth, History and the Law of the Land’, in the Australian Financial Review, Review Section, 11 June 2004, and a longer, referenced version, ‘The Law of the Land or the law of the land?: History, law and narrative in a settler society’, in History Compass, vol. 2, 2004, which is available through inter-library loan from Monash University Library.

    Bain Attwood

  9. What I found as I skimmed Christopher Pearson’s article in the Australian was that the prose was turgid, the thinking unclear and even the main message hard to understand.

    A fairly typical piece of Pearson’s writing. I have yet to determine why he is given regular space in a major newspaper. He is definitely predictable and nobody would ever read him for a fresh insight into a topic. He is not even witty.

  10. For Connor,see Michael Connor via Google.He first exposed the fact that Reynolds had conjured an obscure and irrlevant international law term (see Vattel)and introduced it into a British comon law context.

  11. Michael Connor’s August 2003 “Bulletin” article is at:

    As for Connor’s claim therein:

    ‘In his introduction to a collection of legal essays on the Mabo case, Sir Harry Gibbs, a retired chief justice of the High Court, confessed himself puzzled that the court had reportedly overturned terra nullius, which he found “unknown to the common law”. Few legal writers noted his words and judges and lawyers continue to reveal their own confusion’.

    I was and am certainly among this apparently select minority of Harry Gibbs-watchers; in 1994 I drew specific attention to Gibbs’s cavilling on terra nullius:
    http://paulwatson.blogspot.com/2004_06_27_paulwatson_archive.html#108839158183279547 (n. 9).

    Then and now, I’m surprised that anyone would bother to take further Gibbs’s semantic quibble (as John accurately calls it). To put it in its full, reactionary context, Gibbs went on to say this, a few lines after his terra nullius cavil:

    “Australia was certainly not unoccupied in 1788 but it is another thing to say that the social organisation of the Aboriginal inhabitants was of a kind which the nations of Europe in the eighteenth and nineteenth centuries recognised as civilised”.*

    Quite. And Aboriginal and European-settler standards of “civilisation” grew still further apart in the late-twentieth and early twenty-first centuries – if you regard Harry Gibbs as an example of the latter, that is.

    * M A Stephenson and Suri Ratnapala (eds), “Mabo: A Judicial Revolution” (UQP 1993) xiv (Foreword by Harry Gibbs).

  12. So, nobody was on about Connor until CP brought him up.

    For some more background, read Thomas More’s Utopia to see what he thought the right attitude to seizing land was (if people weren’t good clients, that proved they weren’t entitled to their land and it could be seized justly). Also, all that stuff about individuals acting on behalf of their sovereigns is just what the sovereigns would say; things were very different under feudal law (or England would have been conquered for France by the Dukes of Normandy, and so on). The issue isn’t what the law says is right, but what ethics say laws ought to support. Mostly, the sovereigns were concerned not to have alternative power bases spring up that could come back and haunt them. E.g., the Norman Kings of England went into Ireland not to control the Irish but to control the Normans going in independently, to stop their independence becoming as great as the independence of the Dukes of Normandy from the Kings of France. Similarly for the extension of British authority from New South Wales into Victoria, and so on.

    “Terra Nullius” seems to me to have the accurate but limited meaning that aborigines did not deal with land using institutions of ownership. People wanting to take ownership felt that that meant there was no bar, but actually they were begging the question. Ironically, by asserting aboriginal land rights of this sort, people are imposing a cultural imperialism that requires aborigines to deal with land in the form of property – which can backfire in many ways, e.g. by putting its effective control in the hands of those purporting to act on their behalf, or making it possible for them to lose the land that they are not yet culturally equipped to handle as property (that was what happened to native lands in the USA under their allotment system).

    Yet more cultural instances show up if you look at the course of Norman and English penetration of Ireland and Scotland up until about the renaissance. Spenser’s view of Ireland (available on the internet) gives some background.

  13. Paul Watson can snipe at Harry Gibbs until he’s blue in the face but the question remains:is Gibbs right at law? It’s very far from being a linguistic quibble.Irrespective of the present-day attachments people have as an explanatory principle to terra nullius, if 18thC settler society and English courts knew nothing of T.N. and didn’t conceive of what they were doing in those terms – and they didn’t – it changes the whole debate. Connor explains it admirably.

  14. I have read, and its clear he’s right. Almost no one from Reynolds on has the faintest idea what terra nullius means. Reynolds uses it to mean three different and more or less mutually exclusive concepts. 1) Land with no soverign 2) unoccupied territory ie Antarctica 3) Land owned by no one. The result is that lazy lawyers and commentators and judges ever since have been engaging in a dialogue of mutual incomprehension about sliding concepts which, depending on context, are almost infinitly fungible.

  15. Aaron: “lazy lawyers and commentators and judges” is an interesting kind of explanation.

    In areas like the media, and the work of commentators, I come across startling examples, for bad reasons like people knowing who pays the piper, and good reasons like overwork.

    But in law and politics, it is unlikely. This is a space in which the adversarial approach is very useful. There is always someone looking for an angle to keep you on your toes. Just look at the scale of the commentary here and on Troppo.

  16. In response to some earlier comments, I think Pearson is less predictable than the other conservative commentators with whom he is often lumped in (PPM, Bolt, Akerman etc). In particular, he’s always been pretty good on unemployment. I think he’s way off the mark here, though.

  17. Whether or not “terra nullius” is a straw man erected by the HIgh Court as a way of recognizing the historical fact of Eddie Mabo’s title. The end result of the Mabo decision has been that it has become a straw man itself that the racist elements in this society use to attack any progress towards a just settlement of Aboriginal grievances over land.

    The Wik amendments and the consequent HIgh Court decisions(Ward, Yorta Yorta) have ensured that ‘native title’ is as rare as a ground parrot for most Aboriginal communities.

    It doesn’t matter, for instance, that Noongar people have camp sites all over (otherwise unalienated crown land with the Albany City boundaries). The existence of those ‘City’ boundaries ensure that native title does not exist. This in a ‘city’ that has a poulation of 27,000 people and whose boundaries cover an area 200km by 50km.

    So if racist commentators like CP and others want to knock down Mabo on the grounds of their selective reading of history and their ready access to the mainstream print media, then, as far as most Aboriginal people are concerned, they can go for it. The only damage they are doing is to perpetuate the racist attitudes that have characterised this country since colonization.

  18. The first direct reference to terra nullius that I have been able to track down is in an 1888 International Law Tribunal. The first British use of the term I can find is in an 1899 International Arbitration hearing. The fact that the High Court annulled the non-existant in Mabo (for there was no doctrine of terra nullius in 1788) does not legally diminish Aboriginal land rights. Instead it calls to attention the fact that the status of Australian lands remain in a legal limbo, as they remain unclaimed by any recognised mode of territorial acquistion. It is evident that this must be rectified by the High Court using intertemporal law to nominate Conquest as the mode of territorial acquisiton (something that should have occurred, but didn’t, in the Mabo decision), and therefore, by law, also recognising Aboriginal sovereignty and land rights. It is possible that terra nullius was a red herring used to detract attention away from the fact that Australian territory has not been acquired by any legal mode in international law. This is potentially a strong platform for further claims to Aboriginal sovereignty and land rights.

  19. A clarification: Henry Reynolds did not invent the expression ‘terra nullius’. As to international law, it already had a locus classicus in the Advisory Opinion of the International Court of Justice in the Western Sahara Case 1975: http://www.icj-cij.org/icjwww/idecisions/isummaries/isasummary751016.htm

    One could also consult the decision of the Permanent Court of International Justice in the Eastern Greenland Case 1933.

    These cases are discussed in Mabo (no 2), albeit without making it entirely clear that Western Sahara (at least) actually uses the phrase ‘terra nullius’ and indeed turns on the concept so named.

    It seems reasonable for Reynolds to have attached a current label to an idea that had been otherwise expressed, whether that had been in international law or in Anglo-Australian law. It hardly matters when the very expression was first employed in any legal system and it is certainly wrong to try to read an idea off from the structure of a Latin phrase – especially one that seems to be of no great age

    What seems to matter, rather, is what idea (or, perhaps, set of ideas) one finds in place in a particular legal system at a particular time. But it then matters very much indeed, which legal system one is looking at. Although English law students were encouraged to read Roman property law as well as or even instead of English property law as late as the mid-nineteenth century, the English and Roman conceptions of land title are very different. The former is the framework for the idea of ‘native title’, while the latter as it now comes through international law is the framework for the idea of colonial sovereignty.

    It therefore could be right to say that ‘terra nullius’ was never a doctrine known to the common law. But that would be a different thing from alleging that it was never a doctrine known to common lawyers (such as Blackstone) when they thought about international law, including the international-legal basis of the common law in a British colony.

    At any rate, one should also consider why – as of 1788 – law govering relations among established nations in Australia should be sidelined for the benefit of law created by and for those of Europe.

Comments are closed.