Michael Connor: Australia's shaky foundation for native title rights
Terra nullius was only injected into the legal debate in the late 20th century, says Michael Connor
THE prime minister believed in it. In his address to the nation on the Mabo judgment in 1993, Paul Keating said: "The lie was terra nullius -- the convenient fiction that Australia had been a land of no one. The truth was native title."
The majority of the High Court judges believed it. In the Mabo decision Gerard Brennan claimed: "International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant."
The most influential historians writing today affirm it constantly. In his Concise History of Australia, Stuart Macintyre asserts: "The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstances, not that this prevented [Arthur] Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove."
The people who educate our school teachers believe it. According to Ben Wadham, a lecturer in education at Flinders University: "The notion of terra nullius is a representation of the rationality underlying the operation of dominance and legitimation of violence in Australian colonialism."
Many Aboriginal people believe it too. Barbara Miller of the Aboriginal Co-ordinating Council, Queensland, writes: "Declaring Australia terra nullius, uninhabited, and killing off any Aboriginal resistance to land seizure with superior weaponry, diseases, poisoned waterholes and flour laced with arsenic, the British settlers set up institutions and governments which have perpetrated their violent domination."
But there was no doctrine of terra nullius present at the foundation of Australia. The term was never used in the 18th or even 19th century. Modern judges and historians, not our ancestors, inflicted the concept on Australia.
Terra nullius only entered our history writing and law rhetoric in the late 20th century and quickly poisoned relations between Aborigines and other Australians. Elsewhere, tribal groups had been deprived of their lands but only in Australia was the presence of the original inhabitants supposedly obliterated by invaders wielding a Latin phrase.
Terra nullius limped into the High Court not from our history but from a 1975 International Court of Justice Advisory Opinion on Western Sahara. The court had been asked to advise whether the Western Sahara had been terra nullius when it was colonised by Spain in the 19th century. As terra nullius had not been mentioned at the time, and as Spain had obtained treaties from the inhabitants, the answer was no. Several judges pointed out that the question they had been asked to answer was "loaded" and one, Andre Gros, asserted that the matter "was not a legal one, that it was purely academic and served no useful purpose".
His words should have brought common sense into the High Court when it referred to the advisory opinion. Unfortunately, the Australian judges were relying on modern history books, which taught, as Henry Reynolds wrote, that terra nullius was "the doctrine underlying the traditional view of settlement".
Though lawyers and historians all talked of terra nullius they often had confused ideas of what it meant, and even where it came from....
THE prime minister believed in it. In his address to the nation on the Mabo judgment in 1993, Paul Keating said: "The lie was terra nullius -- the convenient fiction that Australia had been a land of no one. The truth was native title."
The majority of the High Court judges believed it. In the Mabo decision Gerard Brennan claimed: "International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant."
The most influential historians writing today affirm it constantly. In his Concise History of Australia, Stuart Macintyre asserts: "The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstances, not that this prevented [Arthur] Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove."
The people who educate our school teachers believe it. According to Ben Wadham, a lecturer in education at Flinders University: "The notion of terra nullius is a representation of the rationality underlying the operation of dominance and legitimation of violence in Australian colonialism."
Many Aboriginal people believe it too. Barbara Miller of the Aboriginal Co-ordinating Council, Queensland, writes: "Declaring Australia terra nullius, uninhabited, and killing off any Aboriginal resistance to land seizure with superior weaponry, diseases, poisoned waterholes and flour laced with arsenic, the British settlers set up institutions and governments which have perpetrated their violent domination."
But there was no doctrine of terra nullius present at the foundation of Australia. The term was never used in the 18th or even 19th century. Modern judges and historians, not our ancestors, inflicted the concept on Australia.
Terra nullius only entered our history writing and law rhetoric in the late 20th century and quickly poisoned relations between Aborigines and other Australians. Elsewhere, tribal groups had been deprived of their lands but only in Australia was the presence of the original inhabitants supposedly obliterated by invaders wielding a Latin phrase.
Terra nullius limped into the High Court not from our history but from a 1975 International Court of Justice Advisory Opinion on Western Sahara. The court had been asked to advise whether the Western Sahara had been terra nullius when it was colonised by Spain in the 19th century. As terra nullius had not been mentioned at the time, and as Spain had obtained treaties from the inhabitants, the answer was no. Several judges pointed out that the question they had been asked to answer was "loaded" and one, Andre Gros, asserted that the matter "was not a legal one, that it was purely academic and served no useful purpose".
His words should have brought common sense into the High Court when it referred to the advisory opinion. Unfortunately, the Australian judges were relying on modern history books, which taught, as Henry Reynolds wrote, that terra nullius was "the doctrine underlying the traditional view of settlement".
Though lawyers and historians all talked of terra nullius they often had confused ideas of what it meant, and even where it came from....