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.”
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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.