Challenging terra nullius
Terra nullius in Australia
Terra nullius, meaning land belonging to no-one, was the legal concept used by the British government to justify the settlement of Australia. While historians debate how and when the terra nullius legal concept was used to justify the colonisation of Australia, it is likely that Cook considered that the land belonged to no-one. To Cook, Aboriginal people were ‘uncivilised’ hunters and gatherers—he did not see evidence of settlement and farming in a form he recognised.
Although many British colonisers shared Cook’s views, some believed that Aboriginal and Torres Strait Islander people were rightful owners of the land.
In 1835, for example, John Batman negotiated an agreement with the Wurundjeri elders in Victoria to take ownership of their land in exchange for goods. The colonial government declared the treaty void, as it was based on the premise that the Wurundjeri people owned the land. Such an acknowledgement would have been inconsistent with terra nullius and the basis for British colonisation.
Evidence of agriculture and roads
An absence of agriculture was a factor in the colonisers’ terra nullius argument. At the time, European scholars defined the indicators of agricultural development to be selection of seed, preparation of soil, harvest of crops, storage of surpluses and permanent housing.
Bruce Pascoe, of Bunurong, Tasmanian and Yuin heritage, authored the award-winning Dark Emu and argues that all these things occurred in pre-contact Australia. Debunking the hunter-gatherer label, Pascoe relies on the writing and illustrations of early explorers and colonists to support his argument that Indigenous Australians had lived in settlements, and developed complex agricultural and land-management systems over thousands of years.
Bruce Pascoe - Evidence of agriculture and roads; Eric Rolls Lecture
Activity 1: Why didn't Cook recognise First Nations agricultural practices?
List reasons why Cook, and the subsequent colonists, may not have recognised and/or acknowledged Indigenous agricultural practices.
Consent to take possession
When Cook and his crew came to Australian shores, they undoubtedly witnessed some of the Indigenous practices that Pascoe describes. Cook also had instructions to ‘with Consent of the Natives’ take possession of territories, and had with him some hints from the Earl of Morton, which included the following advice about the Indigenous occupants:
"They are the natural, and in the strictest sense of the word, the legal possessors of the several Regions they inhabit.
No European Nation has a right to occupy any part of their country, or settle among them without their voluntary consent. Conquest over such people can give no just title; because they could never be the Aggressors."
Nonetheless, on 22 August 1770, Cook declared the east coast of the continent a British possession.
Joseph Lycett & Joseph Lycett, Aborigines resting by camp fire, near the mouth of the Hunter River, Newcastle, New South Wales, 1817, nla.gov.au/nla.obj-138500420
Joseph Lycett & Joseph Lycett, Aborigines resting by camp fire, near the mouth of the Hunter River, Newcastle, New South Wales, 1817, nla.gov.au/nla.obj-138500420
Activity 2: How were Cook's experiences in Australia and New Zealand different?
- With reference to the instructions Cook received to gain the ‘consent’ of the Indigenous inhabitants before claiming territory, research and compare the colonisation of Australia to that of New Zealand.
- Identify Cook’s experiences and interactions in both places, the similarities and differences between the indigenous peoples, and how this shaped the colonisation of both countries.
Overturning terra nullius
The concept of terra nullius, or land belonging to no-one, remained the legal principle on which British colonisation rested until 1992, when the High Court brought down its finding in the Mabo vs Queensland (No. 2) case. It ruled that the lands of the continent were not terra nullius at the time of settlement, just as Pascoe’s evidence suggests.
This sketch, which shows the land divisions of different family groups on Murray Island, formed part of the evidence in the Mabo case. The High Court ruled the Meriam people (from the Murray Islands, which the Meriam people call Mer) were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'.
In recognising that native title had always existed, the Mabo ruling set a precedent in Australian law, which has now seen numerous Aboriginal and Torres Strait Islander groups regain rights over their traditional lands.
Supreme Court and Australia High Court (1981) Papers of Bryan Keon-Cohen [manuscript]: the Mabo case, 1981-2000, nla.gov.au/nla.obj-224081463
Supreme Court and Australia High Court (1981) Papers of Bryan Keon-Cohen [manuscript]: the Mabo case, 1981-2000, nla.gov.au/nla.obj-224081463
Activity 3: Claiming native title
In Australian law today, Aboriginal and Torres Strait Islander people wishing to claim native title must prove an ‘ongoing’ connection to their traditional lands since the time of British possession.
Pascoe has highlighted ways in which Indigenous Australians were connected to land at the time of colonisation, yet it has been very difficult for many people and groups to prove an ongoing connection since that time.
- What events and factors since colonisation may have affected people’s ability to claim native title?
- Why might some groups’ native title have been ruled extinguished?
More to learn and do
Kathy Weeden reading her book Phonobet, illustrated by Kim Drane and published by NLA Publishing, at Enlighten at the Library 2024
Michael Jensen, Vincent Lingiari at Wattie Creek [(Daguragu), Northern Territory] when they had water on tap, 1977, nla.gov.au/nla.obj-137086604