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Michael Connor- Null truth to academic accusations
A Sydney academic, one Andrew Fitzmaurice has written "Evidence tailored to fit an argument"
which sounds like a claim that Mr. Connor is a liar. Mr. Connor begs to differ.
This argument will run and run.
Michael Connor: Null truth to academic accusations
April 05, 2006
A Sydney academic has only added to the confusion with his inaccurate entry in the history war debate, writes Michael Connor
IN "Evidence tailored to fit an argument" (HES, March 15), University of Sydney academic Andrew Fitzmaurice challenged my book The Invention of Terra Nullius. Fitzmaurice had three main criticisms. First, that I have misunderstood, and misused, the terms territorium nullius and terra nullius. Second, that in my use of an International Court of Justice advisory opinion I have been guilty of a distortion of history. Third, that I failed to find the first usage of the term terra nullius, which he claims to have discovered.
Of these charges, the first especially is a serious accusation, Fitzmaurice charging me with fabrication and word substitution.
Not guilty. Territorium nullius and terra nullius are the same thing. My discussion of terra nullius begins with international lawyers in Lausanne in the 1880s working out concepts of what they called territorium nullius. I point out this use of language and as I proceed I treat this as terra nullius.
Fitzmaurice objects. He claims these phrases are very different in meaning.
In Fitzmaurice's analysis, "Territorium nullius was coined in 1886 to codify rules for the carve-up of Africa. The very different contexts lent the respective terms different meanings, not the least of which is that one refers to territory (a political entity) and the other to land (a material entity). Territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property." Is he correct? Are territorium nullius and terra nullius different concepts? No, they are not, they mean the same thing and Fitzmaurice points to no international law text to support his inventiveness. The law cases he uses, which he thinks support his argument, deal with sovereignty.
Legal writers Elizabeth Evatt and Mark Lindley both wrote texts (much used in discussions of terra nullius) in which they used the term territorium nullius to discuss sovereignty. Justice Gerard Brennan in Mabo, and Henry Reynolds in his books, rightly interpreted this as terra nullius.
Likewise, associate professor Bain Attwood, who noted that Lindley was "the author of an oft-quoted text on the subject [terra nullius]", then cited a page that used the words territorium nullius, as Lindley does throughout his book.
Will Fitzmaurice also accuse Brennan, Reynolds and Attwood of fabrication and word substitution?
As Fitzmaurice argued that terra nullius is to do with land as property, not sovereignty, he referred to Ernest Scott, saying that he "made the much-cited first use of the term applied to Australian history". In Scott's first paragraph he defined terra nullius as "land not under any sovereignty".
Not apparent from Fitzmaurice's account is that the word invention in my book title refers to the confused meanings that have been loaded on to the words terra nullius. Terra nullius is not a myth, it is a real term in international law theory, and it means land without sovereignty. In my book I show that other meanings were invented: land without tenure, unpopulated land, sparsely populated land, uncultivated land, "a land where nothing exists", "Captain Cook's law", and so on. I suggest invented meanings have created such confusion that shared understanding and accuracy have been destroyed.
Just as confidently as he now puts forward his latest idea on terra nullius, Fitzmaurice told ABC Radio National listeners in 2004 that "terra nullius means - or res nullius - refers to uncultivated. It's as simple as that." Having published my book, I hadn't expected a senior academic would come forward, at this late stage in the life of terra nullius, to give a public demonstration of my thesis.
Fitzmaurice accuses me of misusing the International Court of Justice advisory opinion on Western Sahara: "It is a strange distortion of history to represent, as Connor does, the ICJ's 1975 Western Sahara advisory opinion as the source of modern discussions of terra nullius."
Not guilty. My book is specifically about terra nullius in Australian history. I note earlier usages in this country, then my narrative traces the influence of the ICJ opinion in Australia because it had a clear impact on our law and history writing. Other usages in international law reports were less relevant. Using the opinion, I point out that the international judges discussing sovereignty stated that terra nullius had "a very precise meaning".
The progress of the Western Sahara advisory opinion through our courts is a fascinating story, with illuminating subplots. In 1993, chief justice Anthony Mason said: "The rejection of the doctrine of terra nullius [in Mabo] is entirely consistent with the rejection of that doctrine in the Western Sahara case." Some years earlier he had banned its use in his own court because "it has no relevance to the domestic or municipal law of Australia based on the Constitution which this court is bound to apply".
Fitzmaurice accuses me of not finding the first use of terra nullius: "What Connor's research failed to turn up was that the term terra nullius was first used in 1909 in the debate over the status of the polar regions."
Not guilty. I traced its origins to the use of territorium nullius in the 1880s. But if he is seriously concerned about finding the first use of the exact phrase terra nullius, then he has overlooked at least one earlier reference in the 19th century.
In 1899 the term appeared in The Times in a report on the Venezuela Arbitration then taking place in Paris and it was used in relation to sovereignty. The date, and the importance Fitzmaurice attaches to the exact wording in his analysis, negates his claim that the term was invented in the 20th century and suggests that more searching of international law cases could prove interesting.
Fitzmaurice's vivisection of my book was carried out with blunted perceptions of exactly what The Invention of Terra Nullius is about. He says I argue "that the term of terra nullius was never employed in the 18th and 19th centuries and is another case of historical fabrication. For Connor, Reynolds is again the historian the most culpable."
I argue that the term was never applied to Australian colonialism in the 18th or 19th centuries but I do not apply the word fabrication since I show it being used in the 1880s and I suggest it has a very real meaning in international law theory. I do criticise Reynolds, in part because the influential definition of terra nullius he gave in his book The Law of the Land is flawed.
Fitzmaurice charges that "Connor's inevitable conclusion is that if terra nullius were a myth, the legal foundations of the High Court's Mabo judgment look wobbly (although this would assume the term was indeed important for that judgment)".
In my Mabo chapter I show that the judges were confused in their usage of the term and I criticise their handling of it. The historian best known for calling terra nullius a myth is Attwood; he also called it a lie.
Fitzmaurice asserts that "terra nullius was certainly not reinvented in the 1970s and '80s by Australian historians motivated by the politics of land rights". I don't say this. I demonstrate that terra nullius entered the Australian High Court in the 1970s, then made its way into our history books and public discussion. As it did so, I show that new meanings were invented for it.
Many words in Fitzmaurice's article were devoted to the place of natural law in the dispossession of the Aborigines. My book is about two words and the role they have played in modern Australia.
When I deal with the history of colonialism, I do so to disperse the fog of terra nullius and consider how the newcomers spoke of and justified their enterprise.
Fitzmaurice claims lawyers coined terra nullius to summarise "the natural-law understanding of property" and "this is why terra nullius, although crude when used historically because it is anachronistic, was accepted by most Australian historians and by the wider community as a description of the arguments employed to dispossess indigenous peoples".
This particular argument is considered in my book. I suggest it was seized on by historians to protect their earlier work, only after the usages they had made of terra nullius were questioned.
Australians were taught that terra nullius was the language of the 18th century, used to dispossess the Aborigines. As late as 2002, leading Australian historian Richard Broome claimed the "pertinent fact" was that the Aborigines were dispossessed "by settlers invoking terra nullius". Meanings were invented for terra nullius that have nothing to do with international law or natural law notions. A writer, an example among many, who called it a "land of no people", was hardly referring to natural law theory.
Fitzmaurice's new errors compound his old one about terra nullius meaning uncultivated and need to be corrected.
The saddest part of Fitzmaurice's defence of the indefensible suggests the crippling of academic enthusiasm and curiosity: "The fact remains that the words terra nullius are absent from the 19th-century historical record. Before the 20th century, no person would have recognised the term. Should we, therefore, wipe the slate clean and rewrite the story of Aboriginal dispossession as Connor suggests? Certainly, but any account of the justification of dispossession is not going to look dramatically different."
Rather, we would be better off dealing with the history of colonialism and Aboriginal dispossession in English, going back to the sources and telling the story again. Greg Melleuish, in an article in the HES (January11) suggested the story could be told in terms of "power and land hunger", which does not seem unreasonable.
Future histories that explore the cultural clashes and the cultural merging of real people meeting throughout this continent will be a different story to the dull narratives the old historians have attached to a misunderstood legalism.
Michael Connor's book The Invention of Terra Nullius is published by Macleay Press.
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