Michael Connor

The Invention of Terra Nullius

Surely Henry Reynolds knew terra nullius was never used in the eighteenth century? After all, he couldn't find an example for his books. He needed to tell his readers this. Throughout his book his usage and argumentation made terra nullius out to be the contemporary judicial means used to dispossess Aborigines of their land. The historians who used his books, the Aboriginal activists who quoted him, the students who learnt their history from him, all believed terra nullius was the authentic voice of the eighteenth century evicting Aborigines.

Before his confused/confusing definitions Reynolds asked 'what this obscure Latin concept actually means and if it was legitimately applied to Australia in the late eighteenth century.' The answer he gave, throughout his book, was 'no,' and as to what it actually meant his opinions were divided. Having authorised two meanings for terra nullius, he went on to offer others.

Several times in The Law of the Land, Reynolds presents literal meanings of terra nullius, and manages to disagree with himself each time. In one place he introduces the plural and claims the literal meaning is 'a land without owners.' In another he changes course and says the literal meaning is 'largely uninhabited.' Elsewhere he refers to tena nullius as 'uninhabited lands.' Ironically, one of the references he gave for his definition of terra nullius pointed out that uninhabited does not necessarily mean without sovereignty.

Accept Reynolds's view that the magic phrase was not 'legitimately applied to Australia in the late eighteenth century,' and the question arises of why we have muddied our history, law courts, and public discussions by using it? The British government took possession of the sovereignty and ownership of all the land. There are English words which may be used to clearly examine the ensuing stages of Aboriginal dispossession. Although terra nullius was a useful tool for modern politics, and its sudden withdrawal would release some hot air from the history writing of a generation of academics, we could really learn to live without it.

Terra nullius, with its meaning tightly controlled, could have been presented as a possible theory from late nineteenth and early twentieth century theorists to discuss British colonial settlement of Australia. It could have battled it out with other possible theories. We accepted it completely. We drove off the specific meaning of the term in favour of 'literal meanings.' Its general acceptance slanted historical discussion, and slowed a scholarly return to the archives for a necessary reappraisal of settlement. When scholars and students entered the archives looking for examples of terra nullius that is all they found: examples which seemed to fit the theory. They needed to look further afield for bits that didn't fit the mental template. And even as everyone fitted it into their books, articles, and conversations, there was no guarantee that there was even a shared understanding of what it meant.

The politics of modern land rights politics have thrown big questions at our small beginnings. How did this land become British? How were the Aboriginals dispossessed? Was it all really accomplished in a matter of moments as Phillip read his commission? For an historian, the answers raise questions of evidence. What sort of data is needed? Are all the answers to be found in inter-bureaucrat correspondence? Should any weight be given to the views of anonymous writers in colonial newspapers? How important are the adversarial arguments of lawyers, the opinions of judges, or the views of Colonial Official legal experts who had never seen the colony and perhaps knew little of its brief history? Did philosophy, Roman law, or books of law theory written years before the founding of New South Wales explain antipodean actions? How important, if at all, was a theory unheard of until over one hundred years after the colony was founded and not applied to our history for almost another hundred years?

Reynolds was rather strict with Mabo's Justice Daryl Dawson saying that, amongst other things, he had

failed to use many of the most obvious sources and did not pursue the issues in question with the rigour which might have been expected. The historical record is critical to his argument but it was not examined with sufiicient care.

Justice Dawson consulted the commissions of the early governors. Reynolds didn't. In The Law of the Land, these basic documents, the sources of British claims to sovereignty and crown ownership of the land, are missing. They are not hard to find. They begin on page one of volume one of the
Historical Records of Australia.