Terra nullius

Terra nullius (English pronunciation /ˈtʰɛɹə nəˈlaɪ̯əs/, Latin pronunciation IPA: [ˈtɛrːa nʊlːˈiʊs]) is a Latin expression deriving from Roman Law meaning "no man's land", i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law.

Rationale

In antiquity peace was considered an exceptional condition between states, only established by peace treaty, war being their natural rapport; states were often founded, split or annihililated by military force. Any territory that was not explicitly recognized as legitimately possessed by a treaty partner was considered free to be legitimately occupied, even by offensive war.

As civilisations adopted more pacifist ideologies by considering peace normal unless there were legitimate reasons for war, territories considered controlled by any legitimate state dylans gay could in principle no longer be invaded to seize them by force . The reasoning could be stretched, as the population (if any) was supposed to benefit from the introduction of the principles of law and morality (as there usually was a state religion, these could be held universally valid by divine law, alternatively general principles were found in natural law), supposed to be guaranteed by a legitimate state. Thus colonisation was soon justified as "bringing faith and civilisation" to the 'savage infidels', even if that meant the subjugation or even destruction, of their native polities, religion and culture.

Modern applications of the term terra nullius stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign state recognized by European powers.

During the 18th century the doctrine gave legal force to the settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius applied to uncultivated land. As the indigenous people were not (in this view) using the land, those who could cultivate the land had a right to claim it.

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History in Australia

Indigenous Australians were known to inhabit the continent and to have unwritten legal codes, as in the case of the Aboriginal people of the Yirrkala community.

The first decisions of the New South Wales Supreme Court betray no sign of terra nullius . The decision of R v Tommy (Monitor, 28 November 1827) 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).

The first decision of the New South Wales Supreme Court to employ 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. [1]

However, it has been claimed that the concept was only brought to prominence by its critics in the late twentieth 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." - Michael Connor in The Bulletin (Sydney), 20.8.2003: see further Connor 2005.

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. The English common law of the time allowed for the legal settlement of "uninhabited or barbarous country". Although Australia was clearly not unoccupied, 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.

In 1971, in the controversial Gove land rights case, Justice Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title in Australian law. 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".

Mabo

The concept of terra nullius became a major issue in Australian politics when, in 1992, during an Aboriginal rights case known as Mabo, the High Court of Australia issued a judgement which was a direct overturning of terra nullius. In this case, the Court found that there was a concept of native title at common law, that the source of native title was the traditional connection to or occupation of the land, that the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs and that native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.

In 1996, The High Court re-visited the subject of native title in Wik. The 4-3 majority in the Wik Decision stated that native title and pastoral leases could co-exist over the same area and that native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership. However, in the event of any conflict between the rights and interests of pastoralists and native title, it would be the former that would prevail.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim territory appropriated under the doctrine of terra nullius. This has proven 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 km² 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.

Terra nullius elsewhere

Terra nullius was still relevant to international law in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice in 1974 to determine the status of the Western Sahara (Río de Oro and Saguia el-Hamra) at the time of colonization by Spain.

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted terra nullius. The matter was later settled in the Permanent Court of International Justice by 1933.

Another example of a terra nullius is Antarctica, none of which has yet been capable of supporting human habitation without supplies from the outside world.

Some Zionist leaders considered Palestine as terra nullius during the period of Jewish immigration in the late 19th and early 20th centuries, but there was no legal void as some Ottoman laws are still invoked even before Israeli courts in this century.

According to Sir Elihu Lauterpacht, editor of Oppenheim's International Law, one of the field's authoritative reference works, no state had sovereignty :over the West Bank at the onset of the 1948-49 war. Jordan certainly could not then lay legitimate claim to the territory after acquiring it through armed aggression.

It was thus res nullius or terra nullius that could be "acquired by any state in a position to assert effective and stable control without resort to unlawful means" [2]

The Philippines and the People's Republic of China both claim the islands of Scarborough Shoal or Huangyan Island (黄岩岛), near the island of Luzon, located in the South China Sea. The Philippines claim it by the principle of terra nullius and EEZ (Exclusive Economic Zone). China claims these territories because, in the 13th century, their fishermen first discovered it.

See also

• Aboriginal land claims
• Australia
  • Henry A. Reynolds
  • History wars
  • Native title
    • Mabo v Queensland
    • Wik Peoples v Queensland
• Manifest Destiny
• neutral territory
• Francisco de Vitoria
• Res nullius (Original and broader formulation in law)

External links

• A History of the concept of "Terra Nullius" The University of Sydney
• Veracini L, An analysis of Michael Conner's denial of terra nullius (The Invention of Terra Nullius)
• Terror Nullius (http://www.wulfdhund.de/rassismusanalyse/?Ergaenzungen:Australien)
• [3] High Court of Australia - MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014
• [4] High Court of Australia - The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40 (23 December 1996)
• [5] 1975 International Court of Justice - Advisory Opinion regarding Western Sahara
• "History before European Settlement" New South Wales parliament - note mis-spelling as "terra nulius"
• material on terra nullius - NSW Primary School curriculum
• [6] R. v. Boatman or Jackass and Bulleye - Decisions of the Superior Courts of New South Wales, 1788-1899 (Published by the Division of Law, Macquarie University)

References

• Connor, Michael. "The invention of terra nullius", Sydney: Macleay Press, 2005.
• Culhane, Dara. The Pleasure of the Crown: Anthropology, Law, and the First Nations. Vancouver: Talon Books, 1998.
• Rowse, Tim. "Terra nullius" - The Oxford Companion to Australian History. Ed. Graeme Davison, John Hirst and Stuart Macintyre. Oxford University Press, 2001.