Terra Nullius

In Latin, the term terra nullius means "land belonging to nobody." It does not, however, seem to have been a Roman concept. Not being great discoverers, the Romans had to acquire their empire the old-fashioned way: they fought for it.

Starting in the 17th century, terra nullius denoted a legal concept allowing a European colonial power to take control of "empty" territory that none of the other European colonial powers had claimed.

Of course, most of these "empty" territories were inhabited, so the meaning of terra nullius grew to include territories considered "devoid of civilized society." The most celebrated example is that of Australia, where the concept of terra nullius still features in lawsuits pressed by the Aboriginal peoples. Other examples of lands once considered terra nullius would be Siberia and the Americas. The United States seems to have treated its Western frontier as terra nullius in the rush to fulfill its perceived Manifest Destiny.

Terra nullius in Australia

The United Kingdom relied on this principle to claim possession of the Australian continent. It was deemed that, prior to the arrival of Europeans, Australia was "a tract of territory practically unoccupied, without settled inhabitants or settled law" (as the Privy Council put it in 1889). This was, of course, a legal fiction, as the continent was inhabited by native peoples – the Australian Aborigines – and legal codes were already operative in some places, as in the case of the Aborigines of the Yirrkala mission. This was overlooked or ignored by the colonial authorities. In this regard, the application of terra nullius to Australia was inconsistent with the practice elsewhere in the British Empire. The British Government attempted as early as the 1830s and 1840s to bring Australian colonial practice into line with international law as it then stood, and with the approach taken elsewhere in the Empire. Its efforts were unsuccessful and Australian policy towards native land rights developed in a markedly different way to that of the rest of the Empire.

Part of the explanation for the difference may lie in the fact that rather than implying mere emptiness, terra nullius could also be interpreted as an absence of civilised society. For example, the English common law of the time allowed for the legal settlement of "uninhabited or barbarous country". Although Australia was clearly not empty land, the presence of scattered and nomadic Aboriginal groups would have been widely perceived, through European eyes of the time, as evidence of a barbarous country and thus no legal impediment to settlement. By contrast, most of the other territories ruled by Britain had significant native populations and well-established indigenous administrative codes (as in the cases of India and New Zealand, for instance).

Until the 1970s, the doctrine of terra nullius was generally accepted in Australia on the grounds that the continent had been "settled", a classification which gives no legal consideration to indigenous customs. During the 1970s historians revisited the colonisation of Australia, reassessing the degree to which force had been used to dispossess the native inhabitants.

This prompted a number of lawyers and activists to suggest that Australia should be reclassified in law as "conquered" territory, a distinction which requires the conqueror to recognise the customs of those conquered. 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. These cases were rejected by the courts but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

The concept of terra nullius became a major issue in Australian politics when, in 1992, during a Aboriginal rights case known as Mabo, the High Court of Australia issued a judgement which some interpreted as an invalidation of terra nullius. The ruling was, however, rather narrower than that. The court did not reclassify Australia as a "conquered" territory but instead restated the terms of Australian sovereignty. The Crown is still deemed capable of lawfully extinguishing native title, but some native title still remains intact where clear indigenous rights can be proved to have existed before the native population was dispossessed. The 1996 Wik Decision went further, stating that native title and pastoral leases could co-exist over the same area; native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim territory appropriated under the doctrine of terra nullius. This has proved extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. An estimated 3,000 further agreements have been reached in which Aboriginal peoples have regained former lands. One very recent example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km©˜ plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now in the hands of Aboriginal peoples.