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31 January 2022

Cultural warning: Aboriginal and Torres Strait Island viewers are advised that this article and linked sources may contain images, voices, and videos of deceased persons. In addition, culturally insensitive words and phrases may be used, but this is purely for educational purposes.

In Gumtree of Liberty Live #17: How Long Till WA Secedes, with CD McRae we discussed the topic of Australia Day and terra nullius. In that episode, I promised that I would write an article on terra nullius and the Indigenous sovereignty claims. This is that article.

Indigenous history in Australia since the arrival of white Europeans in 1788 has become a controversial topic in the 21st-century. Australia Day now sees annual Invasion Day protests in response to the celebration of the British First Fleet at Sydney Cove on Jan. 26, 1788. These protests are a response to the treatment of the Indigenous since then. And central to this discussion is the issue of terra nullius.

In 1768 Captain James Cook, then only a lieutenant, left the British Isles aboard HMS Endeavour to discover Terra Australia Incognita, as Australia was then known. By that time, Europeans had explored the Americas, traded with Asia, and mapped the coast of Africa. During the European Enlightenment, explorers and thinkers had reasoned that there must be a southern continent. Believing in the idea of balance, it seemed reasonable that, given how much land was in the northern hemisphere, there must be some large southern landmass, a continent just out of their reach. The Dutch had already reached what is now Western Australia, and named it New Holland, although they hadn’t sent settlers there. So the British Admiralty sent Cook on an exploration mission. His instructions from the Admiralty read, in part, as follows:

“You are also, with the consent of the natives, to take possession of convenient situations in the country, in the name of the King of Great Britain, or, if you find the country uninhabited, take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors.”

Having mapped the New Zealand coast, along with the eastern coast of Australia, Cook declared the east coast to be a possession of the British Empire on Aug. 22. Cook and his men also saw signs that the land was inhabited, noting in his diary that there were fires along the coast, meaning that people lived there. However, despite Cook’s instructions, he made no attempt to gain the consent of the Indigenous population. So although he knew that the land was inhabited, which fulfilled the criteria for the first option in his instructions, he treated the land in accordance with the second option.

By Jan. 20, 1788, Captain Arthur Phillip and the 11 ships of the First Fleet, which included a large number of prisoners, had landed at Botany Bay, where Cook had also landed 18 years prior. However, that land was quickly deemed unsuitable, so the ships left the harbour and arrived at Sydney Cove on Jan. 26, which is why Australia Day is celebrated on that date.

On Feb. 7, 1788, Phillip proclaimed the colony, named New South Wales by Cook, in the name of King George III. Phillip was also promoted to Governor, per his instructions. But again, the “consent of the natives” had not been attained. This was despite Phillip and the rest of the colony knowing of the Indigenous tribes in the area.

This stands in stark contrast to the British treatment of the other land mapped by Cook, New Zealand. There, the Maori lived in chiefdoms that Europeans were more familiar with, with many of the Maori living in sedentary communities, and even farming. James Bushby was appointed the first British Resident in New Zealand in 1833, and worked with the Maori chiefs to sign the Declaration of Independence of New Zealand in 1835, and Bushby also helped create the Treaty of Waitangi five years later. Although the Maori were treated worse in those legal documents than they would have been if they were another European nation-state dealing with the British, this was much better than the treatment of the Indigenous Australians under British law.

Terra nullius is a Latin phrase literally translating ‘no man’s land,’ meaning ‘land belonging to no one.’ It dates back to Roman days, as the doctrine of res nullius, or ‘no man’s thing,’ which meant that people could take legal possession of any object that didn’t have an owner. Since then, it developed to transition from applying to objects to being applicable to land. And it was this doctrine that was used to justify what was essentially the annexation of sovereign peoples into the British Empire.

This doctrine of terra nullius can perhaps be best demonstrated by considering the case Cooper v Stuart (1889) 14 App Cas 286. In 1823, the Governor of New South Wales, Sir Thomas Brisbane, granted William Hutchinson 1,400 acres of land, although the Crown, operating through the Governor, retained an interest in 10 acres, which could be apportioned from the rest of the property and used by the colonial government for government purposes. Then, in 1882 Governor Lord Augustus Loftus gave notice that he would parcel off those 10 acres for a public park. William Cooper, the son of Hutchinson, brought an action against the Premier, Alexander Stuart, to prevent this.

In brief, the legal issue in the case was the applicability of the law against perpetuities. If the case was heard in Britain, the 10-acre clause could not be exercised by the government until 21 years after the death of Hutchinson. Cooper argued that this doctrine applied in New South Wales, inherited from British law, and that therefore the government was prevented from exercising the clause. This case was eventually heard before the Privy Council of the House of Lords in Britain, the highest court of appeal. Although the actual issue in the case did not relate to the Indigenous Australians, it would have serious implications that would not be repealed for almost 100 years.

The Privy Council had to consider whether British law was binding on the colony. According to section 24 of the Australian Courts Act 1828 9 Geo 4 c 83, all British law that existed at the time applied to the colonies of New South Wales and Van Diemen’s Land, now known as Tasmania. However, future laws passed by Parliament would only apply to the colonies if they explicitly stated that they applied to the colonies. However, the Privy Council stated that Cooper did not sufficiently demonstrate that the law against perpetuities was in practice in NSW when the land grant was given.

But how does an obscure legal principle affect the status of the Indigenous Australians? Well, to determine that the law against perpetuities was not in effect, the Privy Council argued this:

“There is a great difference between the case of a colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The colony of New South Wales belongs to the latter class.”

Therefore, they applied the commentary of the late judge William Blackstone, which stated that all British laws applied to an “infant colony” that was previously unoccupied. However, the Privy Council stated that as the wealth, industry, and population of a colony grows, the English laws that were unsuitable no longer applied. And it was deemed that this was the case for the law against perpetuities. Hence, the doctrine did not apply, and the government won the case.

Cooper v Stuart is not known for its judgment on the law against perpetuities, but rather for the fact that the Privy Council didn’t consider the Indigenous population to have any claim to the land. This gave legal authority to the poor treatment that the Indigenous population had faced at the hands of the white Europeans, including the hunting and near-genocide of the Indigenous tribes of Tasmania. The phrase “peacefully annexed to the British dominions” is especially concerning for the Indigenous, because there was a lot of violence in the acquisition of the land. This includes the Waterloo Creek Massacre on Jan. 26, 1838. The Indigenous people of Australia did not have a say in how they and the land were treated by foreigners who saw them as barbarian subjects.

If the Indigenous people were not able to own property or land, then they were not fully human. This was already a popular conception amongst Europeans, and now it had legal authority from the highest court in the British Empire. For example, Watkin Tench wrote the following about his first interaction with Barangaroo:

“Wine she would not touch, but turned from in disgust, though heavily invited to drink by the example and persuasion of Baneelon. In short, she behaved so well, and assumed the character of gentleness and timidity to such advantage that, had our acquaintance ended there, a very moderate share of the spirit of travelling would have sufficed to record that amidst a horde of roaming savages in the desert wastes of New South Wales might be found as much feminine innocence, softness, and modesty (allowing for inevitable difference of education) as the most finished system could bestow, or the most polished circle produce.”

Barangaroo and her husband, Benelong (Baneelon), were members of local Indigenous clans of the Eora language group who had regular contact with the British colonial government in the early days of New South Wales. This image of the Indigenous population as noble savages led to their oppression.

In 1967 a referendum was held to finally recognise Indigenous Australians as Australians. This referendum sought to count the Indigenous in the census, which was prohibited under section 127 of the Commonwealth of Australia Constitution Act 1900 (Imp), and to prevent states from passing discriminatory laws against the Indigenous, which were referred to as “special laws” under section 51(xxvi) of the Constitution. This would also enable the Indigenous Australians to have the right to vote. Although this referendum was a resounding success, and the Indigenous were finally considered to be Australian, their traditional guardianship of the land was still not recognised.

Despite the work of civil rights activists in Australia, the movement suffered a major setback in the ruling by Justice Richard Blackburn of the Supreme Court of the Northern Territory in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. In that case the Yolgnu people protested against mining on their traditional land, so sought to have their claim to the land recognised. Blackburn J held that there was no native title at common law, only under statute, and that the Yolgnu people did not meet the requirements for a statutory claim. Although this case did not mention terra nullius, it effectively upheld Cooper v Stuart.

The doctrine of terra nullius was finally overturned by the High Court of Australia in the landmark native title rights case of Mabo v Queensland (No 2) (1992) 175 CLR 1. The court found that the Privy Council and the British had approached land rights from the blinkered perspective of Europeans. For Europeans, land had to be maintained and cultivated for it to be owned. However, Indigenous Australians were hunter-gatherers. Justice John Toohey, therefore, applied the decision in Sac and Fox Tribe of Indians of Oklahoma v United States (1967) 383 F 2d 991, where the US court said that occupancy is to be determined “in accordance to the way of life, habits, customs, and usages of the [indigenous people] who are its users and occupiers” (alterations made by Toohey J). He also considered the ruling of the Canadian Federal Court in Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513, where the court said that the lifestyle of the Inuit people was a response to their environment, and so did not necessarily mean that they were less civilised.

This demonstrates why the Maori and Indigenous Australians were treated so differently. The Maori had chiefs and a recognised hierarchy that the British could somewhat relate to. The Maori also did what the British could recognise as farming. In contrast, they could not understand the complex tribal systems of Indigenous Australians. They immediately saw them as savages. Some Indigenous Australians engaged in aquaculture, creating canal systems to farm fish and eels. And trade was an important part of Indigenous life, with complex trade networks that were connected to “the paths of The Dreaming Ancestors.”1 In the Blackall Ranges in Queensland, annual bunya nut festivals would be held, which was an opportunity to trade and resolve legal matters. However, this was foreign to the British, who simply dismissed this more nuanced understanding in favour of the ‘noble savages’ approach.

Following Mabo v Queensland (No 2), the doctrine of terra nullius, which had been applied to the Indigenous Australians for well over 200 years, finally ended. Although the fight for native title rights is still ongoing, Mabo v Queensland (No 2) paved the way for the recognition of the sovereignty of Australia’s original inhabitants. The denial of the right to ownership for so long is why so many Indigenous Australians are opposed to the celebration of Australia Day on Jan. 26, because for them it signifies a time of oppression and suffering. However, now that the obstacle of terra nullius has been overcome, Indigenous Australians can look to the future with more optimism and hope for further success in undoing their systemic oppression.

Bibliography:

  1. Bourke, C 2019, ‘Economics: Independence or welfare,’ in Bourke, C, Bourke, E & Edwards, B (eds), Aboriginal Australia: An introductory reader in Aboriginal studies, 2nd edn, University of Queensland Press, Brisbane, pp. 224-5.
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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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