Following the landmark decision in 1992 of the High Court of Australia in the Mabo case, there have been many references in the media to the concept of “terra nullius”. Rarely, however, has anyone explained what it meant other than simply translating the Latin term to mean something like “land that is not inhabited”. This is not what it was understood to mean in the 18th and 19th centuries when it was used as a quasi legal justification for dispossessing the Australian Aborigines of their land.
The British Government knew the land was occupied, and never pretended otherwise. What I will do in this article is briefly explain how the concept evolved and how it and other concepts were used during the period of European invasion and colonisation in the 18th and 19th centuries. I will be drawing largely on an article by Ernest Scott. (People may refer to the article in the Journal of the Royal Australian Historical Society, Volume XXVI, “Taking Possession of Australia – The Doctrine of Terra Nullius” pp.I-19.) Born in England in 1867, Scott worked as a journalist and editor before becoming Professor of History at Melbourne University. He retained the post until his death in 1939.1
The article was written shortly before Scott’s death in 1939 in response to a request he received from an American Professor, Philip Jessup, asking how the concept of terra nullius had been applied in Australia. Scott explains that the interest of the Americans was not purely academic for in July 1939 the U.S. Government stated that “… once Rear Admiral Byrd has established bases during his forthcoming expedition to the Antarctic, the Government will take the stand that any attempts by foreign Powers to establish a base west of the I90th meridian would be regarded as an unfriendly act.”2 Scott comments that “Here, then, is an assertion of the doctrine of terra nullius in the present year.” What he does not point out was that Antarctica was uninhabited and, as such, was “no man’s land” in 1939, whereas Australia in 1788 was not uninhabited.
Scott says that terra nullius was used to mean “… land not under any sovereignty. It is therefore land of which a sovereign state may consider itself at liberty to take possession. … In the 16th, 17th and 18th centuries, Portugal, Spain, Holland, England and France took possession of such territory in Asia, Africa, America and Australasia, by performing certain symbolic acts,”3
When Columbus stepped ashore in 1492 he took the Royal Standard and called on his felIow officers to bear witness that he had taken possession (of what he didn’t know) for King Ferdinand and Queen IsabelIa. In 1583 Humphrey Gilbert, at Newfoundland,’ “erected the arms of England ingraven in lead and fixed upon a pillar of wood.”4This was as a means of signifying that he claimed possession for his sovereign, Queen Elizabeth I. Many other such examples could be given.
So, if terra nullius is defined as land not under any sovereignty, the next question is what is meant by the term “sovereignty”? During the invasion/colonisation of North America the English Government’s policy was that “colonists should not attempt to settle in any territory already possessed by any other Christian prince or people.” 5 Disputes inevitably arose between European countries concerning what areas “belonged” to which power, but by the end of the 17th century it was generally agreed “that effective occupation gave a valid title, but that discovery did not.”6 This then begs the question; what is effective occupation? In effect, it meant permanent occupation by Europeans.
The first known symbol of European discovery erected in Australia was that of the Dutchman, Dirk Hartog, in 1616. The Dutch, however, never made any claim to sovereignty over any part of Australia. When Cook set out on his first voyage of discovery he was instructed that ifhe found new lands he was to “take possession for his Majesty by setting up proper markers and inscriptions as first discoverers and possessors.”7 This Cook did in New Zealand and in Australia at various places in 1770.
This was somewhat contrary to the rules and the British Government knew that this claim would not be recognised by some European powers unless backed up by effective occupation. This it began to do in 1788 when a settlement was established at Sydney Cove. The British Government then claimed possession of all the East coast of the Australian continent and inland as far as the 135th degree of longitude that is to say, approximately the Eastern half of Australia but not including Tasmania. When a French expedition under the command of Baudin sailed in that direction in 1802, the Governor of N.S.W. sent a ship with orders to establish a settlement at Port Phillip Bay. Soon after settlements were established at Hobart and Launceston. A large part of the reason for these early settlements, initially at least, was to pre-empt any idea the French may have had about putting in a “land claim” of their own. Similar considerations of French and Dutch interest in Western Australia lead to Captain Charles Fremantle being given orders to take possession of the Western half of the continent in 1829. A settlement was then established on the Swan River.8
In his article Scott says virtualIy nothing concerning the original inhabitants except for a brief comment that “Little regard was paid to their rights by any of the colonizing peoples. GeneralIy, they considered that they were acting righteously in introducing the Christian religion to lands previously heathen.”9 Religion, like the concept of terra nullius, was used as one more justification for colonisation and, thereby, for the dispossessing the Aborigines of their land. In returning to the earlier question of what Europeans meant by the term “effective occupation”, Scott does not give us an answer. This point, however, is taken up by James MilIer in writing about the dispossession of his ancestors early last century in the Hunter Valley. MilIer says that part of the intelIectual baggage brought by Europeans to Australia in the late 18th and early 19th centuries was John Locke’s proposition that “as much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property.”10 Therefore, it was argued, the Aborigines did not effectively occupy the land because they did not cultivate it, nor did they build permanent settlements. 11The Sydney Herald managed to combine elements from Locke and the Bible in 1838 when it stated that; “The British people took possession (of Australia) … and they had a perfect right to do so, under the divine authority, by which man was commanded to go forth and till the land.”12
In conclusion, I wish to comment on some lessons which can be drawn from the- above. One is the ingenuity with which societies and/or governments are able to justify, at least to themselves, actions which cause great harm to others. The historian’s task, on some occasions, is to challenge convenient beliefs even when this causes discomfort and even anger among some sections of society. Such is the case with the early history of White invasion and settlement in Australia. The history books used in schools today need to revise old thinking and make it clear that colonialism was based on conquest. It was European technological superiority which made this possible. Colonialism was based on the desire for land and wealth which was accomplished at enormous cost in human suffering and lives. The concept of terra nullius then provided some justification for what had been done.
Many people in Australia still prefer to use some of these justifications today rather than face the truth about what happened and why it happened. Despite this, attitudes are changing, as was seen in the 1992 High Court decision to recognise the principle of Native Title. Part of the tragedy is that Aborigines have been trying to make this point since 1788. For them it has been a long and bitter struggle. Maybe there are other lessons we “new Australians” can learn from the “old Australians” if we bother to listen. And hopefully it won’t take another 200 years.
- Australian Dictionary of Biography, Vol. II, p.544.
- Ernest Scott; “Taking Possession of Australia – The Doctrine of Terra Nullius”, Journal of the Royal Australian Historical Society, Vol. XXVI, 1941, p.3.
- ibid., p.3.
- ibid., p.4′.
- ibid., p.4.
- ibid., pp.8-9.
- ibid., pp.17-19.
- ibid., p. 4.
- Locke, John, “Of Property” in Two Treatises of Government, Quoted by James Miller in Koori: A Will To Win, Angus & Robertson, 1985. p.94. John Locke (1632-1704) provided a philosophical basis for the English Whigs who came to power after the Glorious Revolution of 1688. They supported a Constitutional Monarchy under the rule of Parliament whereas their opponents, the Tories, supported an Absolutist Monarchy with a subservient Parliament. Locke’s rationalist ideas had a profound influence on European political and scientific thought in the 18th century, ultimately giving a philosophical basis to the French Revolution. His ideas on land reform in Europe were twisted by later generations to help justify the dispossession of native peoples.
- This concept was not of much help to the British when they decided to invade and colonise New Zealand because the Maoris had permanent settlements and did cultivate some of their land. This however didn’t stop them losing most of it.
- Miller, op. cit., p.94.