Terra Nullius. Terra nullius is a Latin term meaning “land belonging to no one”. British colonisation and subsequent Australian land laws were established on the claim that Australia was terra nullius, justifying acquisition by British occupation without treaty or payment. This effectively denied Indigenous people’s prior occupation of and connection to the land.
Is Australia really terra nullius?
Michael Connor in his book The Invention of Terra Nullius takes an even more extreme view and argues that no one in the 19th century thought of Australia as being terra nullius. He calls the concept a legal fiction, a straw man developed in the late 20th century:
What was the significance of the British doctrine of terra nullius?
It implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown taking possession of it.
What is terra nullius prior European settlement?
This effectively denied Indigenous people’s prior occupation of and connection to the land. In the 1971 Gove land rights case, Justice Blackburn ruled that Australia was terra nullius prior European settlement. This judgement was unsuccessfully challenged by subsequent cases in 1977, 1979 and 1982.
What happened at the end of terra nullius?
The end of Terra Nullius, the beginning of Native Title. Terra nullius is a Latin term meaning “land belonging to no one”. British colonisation and subsequent Australian land laws were established on the claim that Australia was terra nullius, justifying acquisition by British occupation without treaty or payment.
Why was Australia called terra nullius?
Possession of Australia was declared on the basis of unilateral possession. The land was defined as terra nullius, or wasteland, because Cook and Banks considered there were few 'natives' along the coast. They apparently deduced that there would be fewer or none inland. Their observations were soon proven incorrect.
Who decided Australia was terra nullius?
Governor Richard BourkeThe Proclamation of NSW Governor Richard Bourke in 1835 implemented the legal principle of terra nullius in Australian law as the basis for British settlement. This was 47 years after the arrival of the First Fleet.
Why did Cook claim Australia as terra nullius?
The legal concept of terra nullius allowed British colonists to disregard Indigenous ownership of Australia, to regard Australia as an empty continent and to take the land without ever negotiating a treaty.
When did the British declare Australia as terra nullius?
Nonetheless, on 22 August 1770, Cook declared the east coast of the continent a British possession. The concept of terra nullius, or land belonging to no-one, remained the legal principle on which British colonisation rested until 1992, when the High Court brought down its finding in the Mabo vs Queensland (No.
What was the declaration of terra nullius?
The Proclamation of Governor Bourke implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown taking possession of it.
How did the idea of terra nullius give justification for Europeans to settle and Colonise Australia?
Terra nullius is a Latin term meaning 'land belonging to no-one'. British colonisation and subsequent Australian land laws were established on the claim that Australia was terra nullius, justifying acquisition by British occupation without treaty or payment.
Was terra nullius Australian law?
Terra nullius remained the law in Australia up until 1992. After decades of fighting for recognition of indigenous land rights, the Native Title Act was passed in 1993 by Australia's High Court.
What was terra nullius and how has it impacted on Aboriginal people?
Terra nullius essentially asserted that Indigenous people were non-human. This premise formed the basis of the relationship between Indigenous people and the nation state from its very inception. This problematic relationship has never been fully resolved, even in light of the Mabo decision and resulting Native Title.
What was the main purpose for the British Colonising Australia?
The new colony was intended to alleviate overcrowding in British prisons, expand the British Empire, assert Britain's claim to the territory against other colonial powers, and establish a British base in the global South.
Why did the British decide to settle in Australia?
The reasons that led the British to invade Australia were simple. The prisons in Britain had become unbearably overcrowded, a situation worsened by the refusal of America to take any more convicts after the American War of Independence in 1783.
Why did the British treat Australia as Terra Nullius?
Why Terra Nullius? Anthropology and Property Law in Early Australia. The British treated Australia as terra nullius —as unowned land. Under British colonial law, aboriginal Australians had no property rights in the land, and colonization accordingly vested ownership of the entire continent in the British government.
Why was Terra Nullius so difficult to reverse?
The brute fact was that terra nullius, once underway, was extraordinarily difficult to reverse, because every British landowner in Australia depended on it. Indeed, for the same reason, any colonial land policy would have been difficult to reverse.
How did the Aborigines progress?
All human societies had begun in the state of nature, but most of them had progressed since then, and one of the ways in which they had progressed was by assigning property rights in land. If the Aborigines were still in the state of nature, then by definition they did not own their land. The land was terra nullius.
What were the four stages of the development of Australia?
All societies progressed through four stages, Adam Smith (among others) explained: “hunting, pasturage, farming, and commerce.”.
Who was the naturalist who was sent to New South Wales by Joseph Banks?
By 1809, the naturalist George Caley, sent to New South Wales by Joseph Banks to gather botanical specimens, could sum up two decades of British observations. “I believe it is universally said,” Caley told Banks, “that the natives of New South Wales are the most idle, wretched and miserable beings in the world.”.
Did pastoralists develop property?
Pastoralists needed, and thus developed, property in their animals. Farmers developed property in their land. And a commercial people like the English invented more complex property arrangements, to suit their needs. In the mind of an educated Englishman, property in land went along with agriculture.
Who introduced the idea of permanent property in the soil?
In the mind of an educated Englishman, property in land went along with agriculture. As William Blackstone noted in his ubiquitous legal treatise, published just a few years before Cook returned from Australia, “the art of agriculture … introduced and established the idea of a more permanent property in the soil.”.
What is the difference between Terra Nullius and Res Nullius?
Many scholars have noted the similarity between the terra nullius principle and the Roman law term res nullius, meaning nobody's thing. In Roman law, res nullius, or things without owners, such as wild animals (ferae bestiae), lost slaves and abandoned buildings could be taken as property by anyone by seizure. Therefore, some scholars have argued that terra nullius stems from res nullius, but others disagree and claim that the derivation is "by analogy" only.
When did the Aboriginal people challenge Australian sovereignty?
Court cases in 1977, 1979, and 1982, brought by or on behalf of Aboriginal activists, challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact.
Why was the Mexican claim rejected?
The Mexican claim was rejected for lack of proof of prior Spanish discovery and, in any event, no effective occupation by Mexico before 1858, when the island was therefore territorium nullius , and the French occupation then was sufficient and legally continuing.".
How long did Aboriginal people live in Australia?
Aboriginal Australians inhabited Australia for over 50,000 years before European settlement, which commenced in 1788. Indigenous customs, rituals and laws were unwritten. It was formerly claimed that Australia was terra nullius at the time of settlement. This is also described as a " doctrine of discovery ".
What is the name of the land in Antarctica?
The unclaimed areas of Antarctica, including all of Marie Byrd Land. Terra nullius ( / ˈtɛrə nʌˈlaɪəs /, plural terrae nullius) is a Latin expression meaning " nobody's land ". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
When did Norway claim Greenland?
Norway occupied and claimed parts of (then uninhabited) eastern Greenland in 1931, claiming that it constituted terra nullius and calling the territory Erik the Red's Land. The Permanent Court of International Justice ruled against the Norwegian claim. The Norwegians accepted the ruling and withdrew their claim.
Which country claimed the Senkaku Islands?
However, this interpretation is not accepted by the People's Republic of China (PRC) and the Republic of China (Taiwan), both of whom claim sovereignty over the islands.
Who claimed the East Coast of Australia for Britain?
In 1770 Captain James Cook landed in Botany Bay, home of the Eora people, and claimed possession of the East Coast of Australia for Britain under the doctrine of ‘terra nullius’
What would happen if a country was uninhabited?
If the country was uninhabited, Britain could claim and settle that country. In this case, it could claim ownership of the land. If the country was already inhabited, Britain could ask for permission from the indigenous people to use some of their land.
What was the claim of the British colonization of Australia?
British colonisation and subsequent Australian land laws were established on the claim that Australia was terra nullius, justifying acquisition by British occupation without treaty or payment. This effectively denied Indigenous people’s prior occupation of and connection to the land. In the 1971 Gove land rights case, ...
When did the Meriam people claim land rights in Australia?
This judgement was unsuccessfully challenged by subsequent cases in 1977, 1979 and 1982. However, on the 20th May 1982, Eddie Koiki Mabo and 4 other Indigenous Meriam people began their legal claim for ownership ...
What is the Native title of Australia?
Native title: recognises that Indigenous Australians have a prior claim to land taken by the British Crown since 1770. replaces the “legal fiction” of terra nullius, which formed the foundation of British claims to land ownership in Australia [3]
Who challenged land rights in Australia?
At a Land Rights Conference in 1981, a lawyer suggested there should be a test case to claim land rights through the court system. Five Meriam men, Eddie Koiki Mabo, Sam Passi, Father Dave Passi, James Rice and Celuia Mapo Salee, decided to challenge for land rights in ...
Who did not live to hear the Mabo case?
Three of the plaintiffs did not live to hear this ruling, including Eddie Mabo, who passed away just months before the decision was handed down. The High Court’s judgement in the Mabo case resulted in the introduction of the doctrine of native title into Australian law, removing the myth of terra nullius and establishing a legal framework ...
What is Terra Nullius?
This was claiming a land on the basis of Terra Nullius, a concept meaning ‘land belonging to no-one. Although the term was not heard of before the 1880s it became the legal justification for British colonisation. Although the term was not heard of before about 1888, the principle had existed in European law since the Middle Ages.
Who used the Res Nullius principle?
The res nullius argument has been used by many historians, particularly Alan Frost and Henry Reynolds who claim that in the 15th and 16 th centuries European countries adopted the res nullius principle for territorial conquest.
Why did Cook take possession of the Eastern coast?
Cook was keen to ensure that he abided with the international law on taking possession and took possession of the Eastern coast only because he believed it had not been visited by any other European.
Why did the government prefer that trade and business proceed without the intervention of government?
The government preferred that trade and business proceed without the intervention of government which would only intervene as a last resort to protect British business interests. In the case of New Zealand Glenelg realised that British authority was needed.
What was Cook's claim based on?
It is interesting to note that Cook based his claim on the principle of discovery and occupation, but the subsequent legal claim was based on the land belonging to no-one.
When did Captain Cook claim Australia?
Cook claims Australia. 250 years ago, this month, on 22 August 1770, Captain Cook claimed Australia for Britain. His journal entry for that day reads ‘ when he wrote in his journal: on the Western side I can make no new discovery the honour of which belongs to the Dutch Navigatorsand as such they may make claim to it as therir property but ...
Who brought the case of the Aboriginal rights?
One of these cases was brought by Paul Coe, an Aboriginal activist commenced, who as plaintiff, brought an action in the High Court of Australia arguing that at the time white people came to Australia, Aborigines were there and therefore the Court had to recognise their rights.
Who quashed the Treaty of New South Wales?
New South Wales Governor, Sir Richard Bourke, effectively quashed the treaty with this Proclamation issued by the Colonial Office and sent to the Governor with Dispatch 99 of 10 October 1835.
Where did the Europeans go to buy land from the Aboriginal people?
When John Batman, one of the pioneers in the founding of Victoria, first settled at Port Phillip, he made an attempt to buy the land from the Aboriginal people through a treaty.
The Consent of The Natives
- In 1768 the Royal Society hired James Cook to take a ship to the South Pacific to observe the transit of Venus across the sun, the measurement of which, from several parts of the world simultaneously, would help astronomers determine the distance between the sun and the earth. James Douglas was the president of the Royal Society. He knew that Cook’s expedition was likel…
The Miserablest People in The World
- The early British residents of Australia exhibited a far greater contempt for the Aborigines than British colonists showed toward indigenous peoples in other places. Settlers in North America made their share of disparaging remarks about Indians, to be sure, but they also praised Indian technology, Indian social life, Indian political organization, and so on. Comments on the Aborigin…
The Real Proprietors of The Soil
- From the onset of British colonization, however, there were colonists who disagreed with this picture of the Aborigines and their lack of property rights.Terra nullius rested on some empirical assertions about Aboriginal life—that the Aborigines were few in number, that they roamed throughout the land without a sense of boundaries, that they claime...
No Title to Their Land
- Some of the doctrine’s staying power can be attributed to the simple fact that there was another side to the debate. Every bit of land not in the possession of Aborigines was one more bit available for settlement. The standard arguments in favor of terra nulliusthus still had their appeal. Decades after the British arrived, the Aborigines were still not farming nearly as much a…
Overview
Terra nullius is a Latin expression meaning "nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
Historical claims of terra nullius
Several territories have been claimed to be terra nullius. In a minority of those claims, international and domestic courts have ruled on whether the territory is or was terra nullius or not.
A narrow strip of land adjacent to two territorial markers along the Burkina Faso–Niger border was claimed by neither country until the International Court of Justice settled a more extensive territorial dispute in 2013. The former unclaimed territory was awarded to Niger.
History
Many scholars have noted the similarity between the terra nullius principle and the Roman law term res nullius, meaning nobody's thing. In Roman law, res nullius, or things without owners, such as wild animals (ferae bestiae), lost slaves and abandoned buildings could be taken as property by anyone by seizure. Therefore, some scholars have argued that terra nullius stems from res nullius, but others disagree and claim that the derivation is "by analogy" only.
Current claims of terra nullius
While several countries have made claims to parts of Antarctica in the first half of the 20th century, the remainder, including most of Marie Byrd Land (the portion east from 150°W to 90°W), has not been claimed by any sovereign state. Signatories to the Antarctic Treaty of 1959 agreed not to make such claims, except the Soviet Union and the United States, who reserved the right to make a …
Limits of national jurisdiction and sovereignty
View the following chart as if it was a "cross-section" of the earth, stretching from underground to outer space.
Limits of national jurisdiction and sovereignty Outer space (including earth orbits; the moon and other celestial bodies, and their orbits) national airspace territorial waters airspace contiguous zone airspace international airspace territorial land surface internal waters' surface territorial wa…
View the following chart as if it was a "cross-section" of the earth, stretching from underground to outer space.
Limits of national jurisdiction and sovereignty Outer space (including earth orbits; the moon and other celestial bodies, and their orbits) national airspace territorial waters airspace contiguous zone airspace international airspace territorial land surface internal waters' surface territorial wa…
See also
• Aboriginal title
• Allodial title
• Antarctic Treaty System
• Common heritage of humanity
• Discovery doctrine
Sources
• Connor, Michael (2005). The Invention of Terra Nullius. Sydney, NSW, AU: Macleay Press.
• Culhane, Dara (1998). The Pleasure of the Crown: Anthropology, law, and the First Nations. Vancouver, BC: Talon Books.
• Rowse, Tim (2001). "Terra nullius". In Davison, Graeme; Hirst, John; Macintyre, Stuart (eds.). The Oxford Companion to Australian History. Oxford University Press.
External links
• Aboriginal and Torres Strait Islander Social Justice Commissioner. Social Justice Reports, 1994–2009 (Report). Archived from the original on 30 August 2007.{{cite report}}: CS1 maint: uses authors parameter (link)
• Aboriginal and Torres Strait Islander Social Justice Commissioner. Native Title Reports, 1994–2009 (Report). Archived from the original on 29 June 2019.{{cite report}}: CS1 maint: uses …