Reynolds, Henry --- "200 Years of Terra Nullius" [1991] AboriginalLawB 64; (1991) 1(53) Aboriginal Law Bulletin 11

• 200 Years Of Terra Nullius

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200 Years of Terra Nullius

by Henry Reynolds

In a recent article in The Age, Aboriginal lawyer Sandra Bailey remarked that blacks were still haunted by the "empty land lie". She explained that, as head of the Aboriginal Issues Unit of the Victorian arm of the Royal Commission into Aboriginal Deaths in Custody, she had held discussions with communities all over the state. In doing so she had found that there was a broad consensus that "the fundamental issue was that of dispossession... All other issues stem from it in some way." In seeking solutions to the current Aboriginal problems she had come to believe that an appropriate start would be "the recognition of the sovereignty of Aboriginal people. It would remove the oppressive legal lie of terra nullius, and take us out of dependency which is perpetuating the cycle of poverty."[1]

Conservative opponents of the Aboriginal cause would reject this prescription and at the same time attach commensurate importance to the doctrine of terra nullius. They argue that it was adopted - rightly or wrongly - by the British Government when Australia was first settled and that it is now impossible to reverse that decision. Any attempt to do so should be stoutly resisted because it could undermine the legal foundations of Australian society. In this way the doctrine of terra nullius has become the focal point for the discussion of Aboriginal rights in contemporary Australia. The doctrine is underpinned by traditional interpretations of both law and history, each drawing strength from the other.

In Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971)17 FLR 141, Mr Justice Blackburn threw his full weight behind the doctrine. A major reason for this was his assessment of the reasons for the Imperial Government's rejection of the 'treaty' negotiated between Victorian Aborigines and the entrepreneurial Port Phillip Association on 1835 (the Batman Treaty). The Treaty, he argued, was never official considered to be in the nature of the purchases from Indians which were customary in America: "It was simply a trespass on Crown Land." What is more, the action of the British authorities was "a cogent demonstration of the total absence from official policy of any idea that the aboriginals had any proprietary interest in the land."[2]

In An Australian Legal History, A. C. Castles supported Blackburn J's interpretation, arguing that the decision in the Batman affair "seems to have ended, once and for all, the possibility that Aboriginal rights should be recognised administratively, except when they were accorded by statute."[3] This interpretation has been reaffirmed recently by a number of academic historians. "When the colonial government rejected Batman's treaty," Attwood explained, "they re-iterated the principle of terra nullius."[4] Shaw concurred, arguing that by its actions the British Government "re-iterated the orthodox view that Australia was uninhabited in 1788, that it was terra nullius."[5]

The doctrine is woven through contemporary political debate. When the Aboriginal Reconciliation Bill was being discussed by the ALP's caucus Aboriginal Affairs Committee the wording of the preamble was questioned, and in particular the assertion that Aborigines has been dispossessed by the British Crown. Members of the committee felt that the phrase carried with it the implication that Aboriginal land was lost at the very beginning of settlement as a consequence of the several claims for sovereignty. The Committee argued that the wording should be slightly amended to the effect that dispossession has been affected by the British Crown and 'successive governments'. The Minister for Aboriginal Affairs, Mr Robert Tickner, argued for the amendment and took the proposal to the Shadow Minister. Twenty four hours later, the opposition rejected the amending phrase; the original wording remained and is enshrined in the Council for Aboriginal Reconciliation Act 1991 (Cth).

Terra nullius also haunted discussions at the Constitutional Centenary Conference in April where, among other questions, it was agreed that-

(1) There should be a process of reconciliation between Aboriginal and Torres Strait Islander peoples of Australia and the wider Australian community, aiming to achieve some agreed outcomes by the Centenary of the Constitution.

(2) The process would seek to identify what rights Aborigines and Islanders have, and should have, as indigenous people of Australia.

(3) The reformed constitution should recognize the Aborigines and Islanders as the indigenous peoples of Australia.

Discussion of these proposals both before the conference and in small working groups made it clear that the draft motions would only be acceptable if they avoided all reference to "prior ownership". Leading figures in state politics, the law and the corporate sector were adamant that they would only agree to some reference to the Aborigines and Islanders in a revamped constitution if there was no challenge to the doctrine of terra nullius.

The doctrine was argued in Mabo v Queensland and the Commonwealth (judgement reserved). Appearing before the full bench of the High Court, the Qld Solicitor-General reaffirmed the traditional view that when sovereignty was claimed over Murray Island in 1879, all the property passed to the crown. When pressed about the ensuing legal status of the Islanders he said that he supposed they became trespassers on Crown Land. Justice Gaudron asked whether it followed that from that moment forward the Islanders could have been legitimately driven into the sea. The Solicitor-General agreed that yes, that did appear to be the case. A decision in Mabo is expected later this year.

So terra nullius lives. But challenges are apparent in both law and history. Kent McNeil has argued powerfully in his recent book, Common Law Aboriginal Title, that there is much greater legal potency in the situation of indigenous people than has commonly been supposed. Above all the doctrine of possession had to be taken far more seriously in common law jurisdictions. All too often, McNeil argues, indigenous people:

“have been unfairly dealt with in the past because it was thought that their claims did not have a legal basis. A major aim of this book has been to dispel this false impression by showing that even by the coloniser’s own rules indigenous people did – and in some cases no doubt still do – have title to lands occupied by them. With this kind of legal argument behind them, indigenous people should be in a position to negotiate from strength.”[6]

Similar arguments have been advanced in Australian historical writing. In The Law of the Land, I argued that the original intention of the British Government was far from clear and may in fact have been premised on the mistaken assumption that much of the continent was uninhabited and, therefore literally, terra nullius. Despite this, many early colonists – free settlers, missionaries, officials – recognized that Aborigines were in possession of the land: of distinct and recognizable tracts of territory which were defended against trespassers. The Imperial Government made two commitments to land rights between 1836 and 1848: in the Letters Patent granted to the South Australian Colonising Commission and in the provisions for usufructuary rights on all land leased under the provisions of the Australian Waste Land Act of 1848.[7]

Further research in the early colonial period has strengthened this interpretation. There appears to be little evidence to suggest that Tasmania was ever considered to be terra nullius. When settled in 1803 it was known to be well-populated – a fact attested to by numerous French and British expeditions which visited the south and east coasts from 1772 onwards. The official statement made by Governor Collins in Hobart in 1805 was significantly different to that of Arthur Phillip 18 years earlier at Sydney. The island Aborigines were, he announced, “equally entitled to the same protection as that afforded to European subjects.” It was, therefore, the Government’s responsibility “to afford their Persons and Property the Protection of British laws.”

Throughout the governorship of George Arthur (1824-36) the official view clearly supported the right of the Crown to alienate Aboriginal land in favour of the settlers. But this was not done on the assumption that the local clans were not there, or did not occupy the land. The thrust of policy was to confine the Aborigines within ‘narrower limits’ but allow them to retain the remainder of their land outside the settled districts. When this proved impractical, Flinders Island was regarded as compensation for the loss of rights on mainland Tasmania. Arthur left Tasmania with the firm conviction that all future colonies must begin with the signing of a treaty with the indigenous people. Re-assessment of the Batman Treaty has also undermined the historical validity of terra nullius. A close examination of the Colonial Office response indicates that the rejection was not an affirmation of terra nullius at all, but rather one of the deeply entrenched legal principle that the Crown had the exclusive right to extinguish native tile. Both judges and historians have seriously mis-interpreted the significance of the Batman affair.

The Mabo case is a far more significant challenge to terra nullius than the work of assorted scholars. It arose because a number of Murray Islanders refused to accept the status accorded to them by traditional legal doctrine. They knew they were landowners on the basis of customary law and that their families had continued to occupy and use the land despite the often obtrusive power of government. It was not solely a matter of injustice but also a case in which legal theory was out of touch with reality.

Justice Moynihan, in the Supreme Court of Queensland, found that a traditional system of land tenure and usage existed on the Murray Islands (see AB 48/10). The Full Bench of the High Court has completed hearing argument on whether this system is recognized as part of the Common Law of Australia. In doing so it is hard to see how the bench can avoid a definitive judgement on terra nullius.

If customary ownership survived the claim of sovereignty in 1879, it must surely have survived those of 1788, 1824 and 1829. That being the case, the onus is placed on the Crown to explain when, how and by what instrument, tradition tenure was extinguished and to come to grips with the question of compensation if the Aboriginal interest was legislated away at some time in the past.

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[1] The Age, 26 April 1991.

[2] Milirrpum v Nabalco Pty Ltd and the Commonwealth, (1971) FLR 141 at 257.

[3] Castles, A.C., An Australian Legal History, Law Book Co, Sydney, 1982, p.519.

[4] Attwood, B., “Aborigines and Academic Historians” Australian Historical Studies, 94, April 1990, p. 131.

[5] Shaw, A.G.L., “British Policy towards the Aborigines”, unpublished conference paper, p. 7.

[6] McNeil, K., Common Law Aboriginal Title, Clarendon Press, Oxford, 1989, pp. 305-6.

[7] Reynolds, H., The Law of the Land, Penguin, Ringwood, Victoria, 1987.