Terra nullius
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For other uses, see No Man's Land (disambiguation).
Terra nullius (/ˈtɛrə.nʌˈlaɪəs/, plural terrae nullius) is a Latin expression deriving from Roman law meaning "nobody's land",[1] which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty. Sovereignty over territory which is terra nullius may be acquired through occupation,[2] (see reception statute) though in some cases doing so would violate an international law or treaty.
the fact is this was and still is indigenous land .
Australia
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Indigenous Australians had inhabited Australia for over 50,000 years before European settlement, which commenced in 1788. Indigenous customs, rituals and laws were unwritten and their social and political organization was unknown or understood by Europeans as being analogous to their own institutions, and the British could not find recognised leaders with whom they could sign treaties.
The first test of terra nullius in Australia occurred with the decision of R v Tommy (Monitor, 29 November 1827), which indicated that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems. This position was further reinforced by the decisions of R v Boatman or Jackass and Bulleyes (Sydney Gazette, 25 February 1832) and R v Ballard (Sydney Gazette, 23 April 1829).
Prompted by Batman's Treaty (June 1835) with Wurundjeri elders of the area around the future Melbourne, in August 1835, Governor Bourke of New South Wales indicated the significance of the doctrine of terra nullius by a Proclamation that Batman's so-called treaty was null and void because Indigenous Australians could not sell or assign land, nor could an individual person or group acquire it, other than through distribution by the Crown.[3]
The first decision of the New South Wales Supreme Court to make explicit use of the term terra nullius was R v Murrell and Bummaree (unreported, New South Wales Supreme Court, 11 April 1836, Burton J). Terra nullius was not endorsed by the Judicial Committee of the Privy Council until the decision of Cooper v Stuart in 1889, some fifty-three years later.[4]
In 1971, in the controversial case of Milirrpum v Nabalco Pty Ltd, popularly known as the Gove land rights case, Justice Richard Blackburn ruled that Australia had been considered "desert and uncultivated" (a term which included territory in which resided "uncivilized inhabitants in a primitive state of society") before European settlement, and therefore, by the law that applied at the time, open to be claimed by right of occupancy, and that there was no such thing as native title in Australian law. The concept of terra nullius was not considered in this case, however.[5] Court cases in 1977, 1979, and 1982 – brought by or on behalf of Aboriginal activists – challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact. The courts rejected these cases, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered". Later, on 1 February 2014, the traditional owners of land on Badu Island received freehold title to 10,000 hectare in an act of the Queensland Government.[6]
In 1982, Eddie Mabo and four other Torres Strait Islanders from Mer (Murray Island) started legal proceedings to establish their traditional land ownership. This led to Mabo v Queensland (No 1). In 1992, after ten years of hearings before the Queensland Supreme Court and the High Court of Australia, the latter court found that the Mer people had owned their land prior to annexation by Queensland.[7] The ruling thus had far-reaching significance for the land claims of both Torres Strait Islanders and other Indigenous Australians.
The controversy over Australian land ownership has erupted into the so-called "History wars." Historian Michael Connor, in his critique of the legal fiction, has claimed that the concept of terra nullius was a straw man developed in the late 20th century:
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.[8]
There is some controversy as to the meaning of the term. For example, it is asserted that, rather than implying mere emptiness, terra nullius can be interpreted as an absence of civilized society. English common law of the 18th century allowed for the legal settlement of "uninhabited or barbarous country".[9]
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