Tuesday, May 06, 2008

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,  land title as envisaged in English law didn't existand thus Australia was deemed to be acquired by settlement rather than by conquest. 

Hope that's useful.



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14 Comments:

Blogger Charles said...

A helpful way to understand swiss statutes is not that far over the border in Germany at the

"University of Konstanz in Germany and [as well the USA] National Institute of Standards and Technology (NIST) have demonstrated an ultrafast laser that ... could boost the sensitivity of astronomical tools searching for other Earthlike planets as much as 100 fold."

See the physorg article here

Government officials too want to increase their sensitivity.

The smell of new power drives rulers mad.

The result of this is that increasingly men will dream of places far far away.

5/06/2008 06:26:00 AM  
Blogger Rick said...

Thank you very much for not just a clarification, but also interesting reading this morning.

5/06/2008 06:43:00 AM  
Blogger Teresita said...

Wretchard: ...his definition also included lands very sparsely populated, lands without sovereignty or property rights, and lands lacking cultivation of the soil...

Here in Washington State between the cities of Bellevue, Renton, and Issaquah is a huge triangle of forested uplands. They have been mostly logged off, and coal was taken out of there a century ago, but now the land has been moved from private to public ownership and is to lie fallow. No tree-farming or soccer fields or anything like that. It's a big wild green place right smack in the middle of suburbia. Even conservative Republicans in Washington are greenies, and everyone recognizes that having a big place so close to the city where no urban villages or strip malls will ever be built satisfies a need in all of us. In the future, all across the country, more and more land will transfer from private hands to terra nullius.

5/06/2008 06:50:00 AM  
Blogger Charles said...

I live inside the Beltway of washington DC in Mclean VA. I will tell people that a local paster here has a profound sense of the everyone's inner fool in this neighborhood. What's more that fool is as specific to a neighborhood as the kinds of trees and plants that grow in the area. Go here to hear his serman on How To Avoid Spiritual Disaster"

You'll see the serman on the lower right dated 05/04

5/06/2008 06:51:00 AM  
Blogger Kirk Parker said...

Wretchard,

"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."

I take it you're not presenting this as being a surprise, right? :-)

5/06/2008 08:14:00 AM  
Blogger Wretchard said...

It's the reader's argument and I think he may be right. My grasp of the legal traditions are somewhat hazy.

And the discipline of real scholars (as opposed to the good-enough-for-government work guys like me) is that they dot ever i and cross every t. I met a fellow who drove two hundred miles to look up an obscure record to make sure he got the quote exactly right. Now that's scholarship. I won't pretend that I'm one.

5/06/2008 08:20:00 AM  
Blogger Kirk Parker said...

Here is the area Teresita is referring to, and here is a Google map.

Of course, this may all be somewhat off-topic since all these lands are, in fact, owned by somebody (in the case of Cougar Mountain Regional Wildland Park, it's owned by King County.)

5/06/2008 08:30:00 AM  
Blogger j- said...

*Even conservative Republicans in Washington are greenies, and everyone recognizes that having a big place so close to the city where no urban villages or strip malls will ever be built satisfies a need in all of us. *

Even if it were owned by nobody, the urge to develop it into housing that someone other than Seattle or Eastside millionaires could afford as housing would certainly suit a need.

Knowing your geographic location certainly helps explain your beliefs. I thought I had lived around some far-out crazies before in Madison and Austin, but the folks around here certainly take the blue ribbon for derangement.

5/06/2008 08:58:00 AM  
Blogger Mike H. said...

Perhaps Teresita can speak for herself. Speaking for conservatives is not her forte.

Most conservatives realize that they shouldn't litter while at the same time realizing that being green, as in Teresita's case, will eventually land you in third place.

A Washingtonian.

5/06/2008 09:56:00 AM  
Blogger Teresita said...

Kirk Parket: Here is the area Teresita is referring to, and here is a Google map.

I'm proud to say I created and wrote the bulk of that article, under the nom de plume "Endomion"

5/06/2008 12:14:00 PM  
Blogger NahnCee said...

So if the Saudi's weren't doing anything with all that sand when oil was first discovered, why the hell did we let them keep it?

5/06/2008 06:23:00 PM  
Blogger Kirk Parker said...

You know, guys, that it's probably not best to tell T. to speak for herself in the same comment where you then do the same for her. :-(

In the case of Cougar Mountain in particular, I would have thought that a real Washingtonian like Mike H. wouldn't need to be told that it's only a virtual stone's throw from there to Tiger Mountain State Forest (the much larger green triangle at the far right side of the picture in Google Maps) which is a real working forest complete with logging and all the rest.

Plenty of room in the region for areas with all types of development, including none, and it's not the loss of the mostly-unsuitable-for-building Cougar Mtn area that's messing up housing development in King County.

5/06/2008 09:13:00 PM  
Blogger Lucky Pierre said...

Here in Portland (Oregon) we've got Forest Park, which is 5,100 acres, officially the largest natural area inside a city limits in the US. I'm not knocking Cougar Mountain, but this is bigger and closer to the folks. Another thing that's going on in the war of the Green vs. Grays is the Rails-to-Trails movement, which sometimes runs afoul of homeowners when an old railroad that ran between their house and some waterfront is turned into a display of joggers and bikers in neon pink Lycra. I'm pretty conservative, but I want the trails to go all the way through rather than having them dead-end at some guy's property line. I think of it as holding them in trust. A hundred years from now, the oil will be gone, and we might be back to coal trains again.

5/06/2008 10:15:00 PM  
Blogger Mike H. said...

Hey Kirk, in Spokane son, but I guess that's a whole 'nother state. And T is nowhere near the philosophy that she is trying to speak for.

5/07/2008 08:38:00 AM  

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