Terra Nullius

In the Bobby Dazzler Newsletter* #78 (December 2016), I wrote a review of Bruce Pascoe’s book “Dark Emu”. In it, Pascoe describes how Aboriginal people, despite common perceptions to the contrary, did build houses, did build dams, did sow, irrigate and till the land, did alter the course of rivers, did sew their clothes, and did construct a system of pan-continental government that generated peace and prosperity.

I went on to say that I was taught at school that aboriginal people were hunter-gatherers, naked nomads who were most of the time on “walkabout”, who didn’t build “proper” houses, etc. And I’m sure the words “primitive” and “uncivilised” came into it somewhere. It suited my British forebears to regard the country as “terra nullius” – “nobody’s land” – and thus legitimise their claiming of the country as a British possession, just waiting to be occupied and put to some worthwhile use by “civilised” people.

In British common law, terra nullius referred to land which had been neither occupied nor otherwise utilised for a certain period of time, and a court could assign or change ownership of that land to a suitable applicant. An article about the term terra nullius and its use in Australia can be found here.

In 1992, the Mabo case handed down by the High Court of Australia was a landmark case recognising native title in Australia for the first time. The Wikipedia article on “Mabo v Queensland (No. 2)” says that “The High Court held that the doctrine of terra nullius, which imported all laws of England to a new land, did not apply in circumstances where there were already inhabitants present – even if those inhabitants had been regarded at the time as “uncivilized”.

However, a letter from Newsletter reader Rob French tells of an occasion when he was lecturing students at the University of New England in Armidale, and had invited a surveyor to be a guest lecturer on the legalities of land ownership in Australia. The surveyor told the story of “a Tasmanian farmer who had asked his neighbour across the road if he could graze his cows on a triangle of his neighbour’s land which he wasn’t using. ‘Sure’ was the reply, so that’s what happened. I can’t remember how or why, but I suspect that the grazier, as part of the grazing deal, paid the small taxes and rates on behalf of the owner. Quite a fair deal, wouldn’t you think? But one day the grazier turned up to the Tasmanian Lands Department and said ‘I have been producing from that land for over the required number of years and I have been paying the rates and taxes as an obedient servant of the Crown, so gimme.’ And he got the land, much to the chagrin of the former owner. He had used terra nullius to dud an honest farmer out of his land!”

The story continued that “It was the same terra nullius law that got Eddie Mabo his island back. While a terra nullius appeal was unique and frightening to the Queensland Government, the ten years of slowly grinding wheels of English-type law finally found in favour of the appellants. Why? Hidden amongst all the fluff and legal jargon and ideas of native title was the fundamental that, although the ownership of Murray (Mer) Island had been legally assumed by the Crown in the 18th or 19th century on the basis of terra nullius, it was shown in court that no Queensland Government development work had taken place for more than enough years for it to become terra nullius once again. That is, anybody could claim possession of the island, and Eddie Mabo did just that. Not a lease or aboriginal title but straight-up ownership. So if it hadn’t been for the terra nullius doctrine, Eddie Mabo’s mob would NOT have gained title to their island and would have had to negotiate some lease agreement or other form of title.”

Rob French concludes: “This info might start a stimulating discussion around a campfire, especially if you have a lawyer involved. If you look at websites, they usually say the common law doctrine of terra nullius was overturned. It looks like it was overturned to the untrained legal eye because ownership was returned to the Torres Strait Islander. My information is that, on the contrary, it was upheld.”

*If you’d like to receive the (free) Bobby Dazzler Newsletter about the Australian Outback by email every two months, just send a request to brennan@bba.com.au

PS: A reader sent a comment about the tone of this article, and my reason for writing it, and I have responded to that in my own comment. To see the comments, just click on “Comments” below.


About dazzlerplus

Writing about the things that interest me helps me to discover what I think. One of my loves is the Australian Outback, and I travel out there often, and when possible take friends with me.
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5 Responses to Terra Nullius

  1. Sue Emeleus says:

    Dear Rob, Thank you for that interesting research. I certainly thought as you described about the whole thing with Eddie Mabo.I’m glad you keep finding these things. Blessings on you, Sue

    On 5 February 2017 at 14:04, Bobby Dazzler’s Blog wrote:

    > dazzlerplus posted: “In the Bobby Dazzler Newsletter* #78 (December 2016), > I wrote a review of Bruce Pascoe’s book “Dark Emu”. In it, Pascoe describes > how Aboriginal people, despite common perceptions to the contrary, did > build houses, did build dams, did sow, irrigate and ti” >

  2. Gillian Hunt says:

    Thanks Rob. The clearest summary of terra Mullins and Eddie Mabo’s successful claim that I have ever read! Cheers Gillian

    Sent from my iPhone


  3. L Walsh says:

    Dear all, Im not a lawyer, Im also not an Indigenous person. I do not have the ability to understand the detailed legal machinations of this significant case. Yet neither do I assume to be able to interpret the lens through which Aboriginal and Torres Straight Islander people receive and interact with this historical event.

    I am however, lucky to spend time with many Aboriginal and Torres Strait Islander people who celebrate the life and work of Koiki Mabo as a pioneer and activist who indeed gave his life to the fight for recognition of his sovereignty and unbroken practice of culture on country. The reverence given to this man and this moment in story is important…. and does not exist without the stories of his family….or of how his grave was vandalised the day after he was buried…. my question here is – as non indigenous people analysing interpretation of CROWN law – and whether the original crime of Terra Nullius against First Nations people was overturned or upheld, may not be as important as listening to the voices of the people for whom this outcome created real change and what this meant for them.

    We are served well to tread gently in this space…ask questions…to place Aboriginal and Torres Strait Islander voices at the forefront, be humble and willing to quieten our voices.

    • dazzlerplus says:

      Thank you, L Walsh , for your sensitive comment on my post. Like you, I am neither a lawyer nor an indigenous person. But unlike you, I unfortunately don’t have the privilege of regular contact with Aboriginal and TSI people. However, I do recognise and rejoice in the fundamental change brought about for indigenous people by Koiki Mabo’s triumph in the 1992 case in the High Court of Australia, and the reversal of the calamitous original application of the terra nullius principle.

      I tried to make it clear in both the article in the Newsletter (mentioned above) and this post that I was deeply impressed by Bruce Pascoe’s book, “Dark Emu”. In the Newsletter, I said:

      “I cannot recommend it too highly. It deserves to be read not only by all non-indigenous Australians, but also by the non-indigenous peoples of other countries (such as the USA and Canada) which were colonised by Europeans full of the confidence of their ‘superior’ culture, religion, and understanding of the way things ought to be.”

      Writing this piece about terra nullius came about when a reader recounted a story claiming that Mabo won the case by the re-application of the terra nullius principle rather than the overturning of it. I had never heard this claim before, and it struck me as a strange legal situation where it might be possible for a case to be won either by upholding or overturning one and the same legal principle. I have never doubted that the original application of terra nullius in Australia was a grave and cruel injustice to the indigenous inhabitants.

      The summaries of the Mabo ruling which I have read all say that the case was won by the overturning of terra nullius. I have not read the full Mabo judgement (and would probably have trouble understanding it if I did).

      I appreciate that aspects of my post may have caused distress to some indigenous people. If so, I humbly apologise, and invite you to share your comments here if you wish.

  4. kate b says:

    Each black dot represents the site of a recorded massacre of Aboriginal men, women, and children – each black dot should also represent the location of a well constructed monument that adequately explains the tragic history of the site. Bruce Pascoe


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