Error nullius

Error Nullius was published on 20 August 2003 in The Bulletin RIP

The concept of terra nullius was unknown to Australian colonists and was never used by the British to justify the settlement of New Holland. Rather, the term has more contemporary origins. BY MICHAEL CONNOR
Indigenous matters are discussed all the way from the Top End to the islands off the southern coast of Tasmania. Reconciliation is clearly wanted, yet it bogs down in acrimony and contestation in the law courts. Land claims are argued loudly, consume dollars, and don’t produce much. But at least the basic issues are clear as we weep for the past and use the courts to put history right. We all know about terra nullius , don’t we?

We don’t.

Terra nullius came to Australia from Algeria, not England. An obscure term, confusingly defined, it was not the legal doctrine behind the 18th-century British occupation of Australia. An argument of modern racial politics, it is not the keystone of national sovereignty.

Before the 1970s, perhaps the only reference to terra nullius in Australia was made by the historian Sir Ernest Scott, and only in answer to an inquiry from an American academic. Just before World War II, a professor of international law at Columbia University wrote to Scott asking if the concept of terra nullius had any relevance to the British annexation of Australia.

Scott’s reply was published in the Journal of the Royal Australian Historical Society in 1940. He defined the Latin term “as land not under any sovereignty” and scarcely mentioned Aborigines, being more concerned with the acts of European powers to gain and settle new territories. It was a slightly interesting essay in a specialist journal and had no influence on succeeding generations of historians.

In 1977, Paul Coe of the Redfern Legal Service in Sydney introduced terra nullius into the case he was arguing before the High Court. Before then, few Australians had ever heard of the term. Coe, claiming restitution and compensation for Aborigines, argued that Australia had not been terra nullius at the time of European settlement. No one had ever said it was.

Coe had not found terra nullius in the historical records of Australia but in the International Court of Justice’s report on the 1975 dispute between Algeria and Morocco over the Moroccan invasion of Western Sahara. The Algerian lawyers defined terra nullius as a “territory belonging to no one”.

Coe sensed its usefulness for the emerging political arguments in favour of Aboriginal land rights. If terra nullius was accepted as the basis of British settlement, the opportunities for eternal legal battles over land were alluring, but his court case went nowhere. Two years later, he returned to the courtroom. In new argumentation, he discarded terra nullius and claimed Australia had been conquered by the British.

It was the High Court’s Justice Lionel Murphy who placed terra nullius in modern Australian politics. Summing up Coe’s original case in 1979, he made terra nullius – which appeared in no dictionaries or history books and very few texts on international law – seem to be the accepted legal and historical doctrine for explaining Australia’s sovereignty. The phrase was still so new that it didn’t appear in the first edition of the ­Macquarie Dictionary in 1981.

In 1970, Charles Rowley’s The Destruction of Aboriginal Society had put forward a tragic version of Australian history and did not mention terra nullius. Building on Rowley’s work, Henry Reynolds rapidly became the best-known and most trusted historian on Aboriginal and white conflict. He was prolific; he dealt with the media skilfully and his books were quickly accepted into schools and universities. Admitting that he’d never heard of terra nullius as late as the 1960s, by the 1980s he had made it the theoretical underpinning for his best-selling narratives of racial conflict. Yet the phrase was unknown to 18th- and 19th-century Australian colonists, and was never used by the British government to justify the settlement of New Holland.

In The Law of the Land ( 1987), Henry Reynolds offered the definition of terra nullius that has influenced subsequent dictionary makers and textbook writers. It is the definition given in the Oxford Companion to Australian History: “Confusion has abounded because terra nullius has two different meanings, usually conflated. It means both a country without a sovereign recognised by European authorities and a territory where nobody owns any land at all, where no tenure of any sort existed.” It is questionable whether these concepts should be conflated, because Reynolds has muddled terra nullius with a real legal term, res nullius, “a thing which has no owner”.

Although Reynolds refers to authorities for the first half of his definition, only one of them actually agrees with him – a 1938 book that says terra nullius means “land not under any sovereignty”. Neither of the other two books cited mention terra nullius, and when making a direct quote from one of these texts, Reynolds has altered the author’s words to make them agree with his own. Replacing clarity with confusion he has deleted “res nullius” and inserted “terra nullius” in square brackets!

Reynolds’ definition overlooks the most common modern usage of terra nullius – an unpeopled land, such as Antarctica. In his own books, he commonly uses the phrase in this sense and makes it synonymous with “uninhabited”.

Confusion over the correct meanings of terra nullius make it a mutating linguistic virus. In the third edition of the Macquarie Dictionary, in 1997, the definition was illustrated with an Al Grassby quote from 1988 which made it mean “uninhabited”: “a land without people, the evil fiction that no one lived here when Captain James Cook arrived”.

In 2001, Macquarie revised itself, deleting Grassby and inserting a 1980 quote from Professor Alan Frost, which made it mean “without sovereignty”: “According to international notions, NSW was terra nullius, to be occupied on the basis of first discovery, without purchase from the indigenous inhabitants.” Both readings accepted terra nullius as the unbearable darkness at the centre of our nationhood.

By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds’ version of our history, especially The Law of the Land, underpinned the Mabo judges’ decision-making.

When they “rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”, they were paraphrasing his book and accepting questionable historiography about 1788 (Reynolds’ Law is cited several times). The real legal phrase res nullius, which the Mabo judges should have been familiar with and which could have introduced some nuances into their decision, never appears in their discussions.

The judges and lawyers involved in the Mabo case may not have been historians but they should have known at least one thing about terra nullius. It has something to do with international law and is not part of common law. In his introduction to a collection of legal essays on the Mabo case, Sir Harry Gibbs, a retired chief justice of the High Court, confessed himself puzzled that the court had reportedly overturned terra nullius, which he found “unknown to the common law”.

Few legal writers noted his words and judges and lawyers continue to reveal their own confusion. Justice Michael Kirby has written of the “common law doctrine of terra nullius”. Geoffrey Robertson, in his book Crimes Against Humanity, referred to “the pernicious common law theory of terra nullius – which in countries ‘discovered’ by European explorers allowed native inhabitants to be treated as if they were part of the flora and fauna”.

Terra nullius became one great anachronism as it was pushed backwards into places it had never been. Henry Reynolds discussed terra nullius and Sir Joseph Banks. Another publication on Mabo from the conservative IPA thinktank informed readers that the Milirrpum v Nabalco judgment in 1971 had “re-affirmed the long-held doctrine that Australia was terra nullius”. The case never mentioned the term. Today, it scarcely seems possible that in the mid-1970s Senator Neville Bonner argued in the Senate for recognition of the Aborigine’s prior ownership of the land without using the term.

We have made a mistake; we have got everything wrong. Accept terra nullius and all argument becomes cliche scrolling from the word processor. Ex-minister Robert Tickner was on a familiar autopilot when he wrote that “the theft of land was given legal justification through the doctrine of terra nullius or land belonging to no one”.

Years before Mabo, Wik and the Native Title Act, an Adelaide law professor, D.P. O’Connell, warned that “bad history made bad law”. Bad history also makes bad history writing, for historians consume each other. Academic history is easy to do. You take a bit of something you find in the archives and add it to what you have found in another historian’s works: it’s called scholarship. Professor Alan Atkinson in his 1997 prize-winning book The Europeans in Australia assured readers that “New South Wales was terra nullius, a land hitherto free, not only of sovereignty but of ownership by anyone; a blank page ready for the pen of empire”. His footnote reference is to Governor Phillip’s commission, and Henry Reynolds’ The Law of the Land.

From the beginning, we all pretended we knew what terra nullius meant. While the young grew up hearing the deadly phrase, their elders would have registered hearing it for the first time – and most would have supposed they were hearing archaic words that regularly dropped from the lips of Captain Cook and Joseph Banks as they stood on the decks of the Endeavour. No historian in the ’70s or ’80s seems to have questioned its usage. No one disputed its application to our history. It came out of the spirit of the time and arguments raged about whether or not Australia had been a terra nullius – not whether the term had any validity.

Terra nullius is no good; it’s a useless tool for understanding the colonial world. Historians who yesterday imagined it was a contemporary phrase can’t be allowed to cover their confusion by arguing that, although not used at the time, terra nullius really represents the colonial view – and it is no guarantee that anyone who would make this claim has actually visited the archives. Atkinson observed Governor Phillip and suggested that his ideas about territory “were at odds with the spirit of terra nullius”. Of course they were, and it was those ideas which needed proper exploration, not just a sentence pointing out that they did not conform to our ideas of terra nullius. Without doubt, terra nullius is a phrase and doctrine with historical meanings and importance. It is a tool for unlocking the past – but the recent past, not 1788.

Our legalistic present is being forced backwards onto a dissimilar past. We lack the historical imagination to meet our ancestors on their own terms: the past is not us in drag. The modern quest for reconciliation needs to be placed in terms of modern rights, not based on selective readings of the past. Forget Geoffrey Blainey’s black-armband historians: the universities produce shopping trolley historians, researchers and research assistants who go through primary sources to find the bits of paper that support the argument they have already decided on, approaching the past not to understand but to seek evidence on which historian prosecutors can convict. The real past ­collides with our legalistic notions of what should have been: the ancestors could not have imagined us, and we certainly can’t imagine them. Honest history writing is full of “perhaps” and “maybe”. We ignore these and plunge into judgments, unaware of just how little historians really know.

To achieve reconciliation we don’t need history books – constant refrains of past wrongs. Reconciliation is not possible between us and the people of 1788 but it may be touched by Australians alive in 2003. We may never be able to take politics out of history, but we can certainly take historians out of the courtrooms.

In the beginning, they say, was terra nullius – it wasn’t. And reconciliation is too important to be erected on such a shoddy foundation. Mistakes in universities have effects in the real world. Academics have shouldered a fashionable burden of guilt, but it’s time to put it down. Misled by one phrase, we imagine we know what happened at settlement when we don’t, and those we should be able to rely on are useless guides. Reconciliation needs less confrontation and more goodwill: a history written in terms of goodies and baddies cannot be the basis for satisfying political aspirations of the 21st century.

Let historians argue about the past – it is necessary and interesting and vastly important – but keep them out of the law courts. Reconciliation is the affair of modern Australians dealing with modern conditions. Our world cannot be returned to a pre-1788 Dreamtime, even if our historians could imagine it. We are experiencing a legalistic moment when everything has to be justified and brought to account. Terra nullius serves a politics of confrontation; reconciliation needs to be freed with goodwill and a vision of the future rather than imprisoned by a shadow from the 1970s. l