A reader responds
An erudite reader responds to my previous post.
I read your latest post, Terra Nullius with great interest. I fully agree with your point on the idiocy of the Swiss Ethics Committee's report. However, you may not be aware of the origins of the doctrine of terra nullius or of the fact that in 1788, the date of the first settlement, if you had mentioned the term, no one would have known what you were talking about, for no one would ever have heard of it.
In fact, to refer to the rights of the Crown as dependent on the doctrine of terra nullius is as accurate as to refer to the overthrow of Governor Bligh in 1808 as The Rum Rebellion, a name which was actually invented by English Quaker William Howitt in 1855. Just as the so-called Rum Rebellion had nothing to do with rum, the settlement of Australia had nothing to do with the subsequent invention of the doctrine of terra nullius. However, legends stick.
How then did the term come into Australian courts?
In Error Nullius Revisited, a paper presented to the Samuel Griffith Society in 2004, Dr Michael Connor explains:
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 basis of national sovereignty. In 1977 Paul Coe of the Redfern Legal Service introduced terra nullius into a case he was arguing before Justice Mason of the High Court. Before then few Australians had ever heard the term. Coe, claiming restitution and compensation for Aborigines, argued Australia had not been terra nullius at the time of European settlement. No-one in the 18th Century had said it was.
Coe had not found terra nullius in the Historical Records of Australia, but in the International Court of Justice's Advisory Opinion on Western Sahara, on the 1975 dispute between Algeria and Morocco over Western Sahara. The Algerian lawyers defined terra nullius as a "territory belonging to no-one". Seldom reported is the Moroccan lawyer's comment on Algeria's arguments as a "real piece of intellectual conjuring".
Sir William Blackstone's Commentaries on the Laws of England provides a better source for the legal doctrines actually applied in the settlement of Australia than does the International Court of Justice.
In Thoughts on Terra Nullius, a paper presented to the Samuel Griffith Society in 2007, Dr Geoffrey Partington notes:
The most widely respected legal opinion in Britain in 1788 on such matters [territorial claims] was that of the recently deceased Sir William Blackstone. Blackstone never used the term terra nullius, but he was largely responsible for the important legal distinction between conquered or ceded colonies, and colonies of settlement. In one version of his Commentaries he wrote:"In conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws, but till he does actually change them the ancient laws of the country remain, unless such are against the law of God, as in the case of an infidel country".
In practice, in many conquered states regarded by Christians as infidel, the English Crown permitted the continuance for many years after the establishment of its sovereignty of not only existing property rights, but also of practices, such as polygamy and suttee, that were illegal in England. Ceded or conquered territories were usually parts of organised states, often ones recently defeated in war. On the other hand, Blackstone maintained, that in "colonies of settlement", or "plantations", all the English laws "are immediately in force".
It is not correct that English legal doctrine held that Aborigines were deemed not to exist. As Partington notes:
Blackstone wrote that "colonies of settlement" included all cases when "an uninhabited country be discovered and planted by English subjects", but his definition also included lands very sparsely populated, lands without sovereignty or property rights, and lands lacking cultivation of the soil. Justice Blackburn held in 1971, in Milirrpum v. Nabalco Pty Ltd and The Commonwealth of Australia, that Blackstone's definition of "desert and uncultivated", or colonies of settlement, had "always been taken to include territory in which live uncivilized inhabitants in a primitive state of society", not simply or mainly territory which is unoccupied.
It isn't true that Aborigines were to be treated just a rocks, and the doctrine of terra nullius, which didn't previously exist, had to be invented so that it could be overturned!
Partington discusses the issue of land title in his paper, which should be read in full, and I won't try to summarise it here. However, it should be noted that the nature and scope of any title to land in Aboriginal society was totally at variance with any form of title envisaged by English law. The Crown never asserted that Australia was unoccupied or uninhabited, but that it lacked sovereignty, identifiable boundaries, cultivation of the soil and the rudiments of a civil society, with an absence of evidence of property rights that the Crown could identify.
In broad terms, without cultivation, Hope that's useful. The Belmont Club is supported largely by donations from its readers.
Hope that's useful.
The Belmont Club is supported largely by donations from its readers.