Or, to cut a long story short, the term "terra Nullius" and its use or non-use is not important - the fact that any form of land ownership was denied [under what ever term] and land taken when there really was ownership existing was what eventually gave judges the duty of recognising potential land rights 200 years later.

The history of the world is chock full of occupation of land and dispossession of the original inhabitants by newcomers. Usually by force. It seems clear that Terra Nullius was not used by The Crown in occupying Australia, but simply a statement to the effect that England was now in charge.
You appear to try and justify the use of the Terra Nullius argument by lawyers, I assume out of sympathy for aborigines.
It would be far more effective for aboriginal welfare to forget the divisive, expensive and unfair lawyers picnic that this very dodgy theory has provoked, and work to establish a fair and well organised system to maintain traditional knowledge and languages for all our benefits.

If I understand correctly the logic used here, the reason you can't find historical references to terra nullius is because everybody knew it existed.

>>the fact it did not enter public discourse and was not legally specified until later only means that its application had gone without saying for a long time.<<

I am no historian, but is this an acceptable level of proof?

"Your honour, the fact that no-one mentioned that the defendant was a serial rapist only means that everybody knew it to be the case."

or even

"So what did you do in New York?"

"Kept it free of tigers"

"But there are no tigers in New York"

"Good, aren't I?"

In my opinion there is only one truth, and that is this country has been occupied for 80,000 year by Aboriginal people 'terra nullius" or not, as simple as that.......I am a white Anglo-Saxon 50 year old male........

Hmmm.. yes, I fail to see why it takes so much woffle to say something very simple...

1/ Australia was populated by Indigenous people (as every land was except antarctica ?)

2/ For historical reasons which most of us know, Britain took more than a passing interest in the place.

3/ 'Rights' only exist under a power structure. He who has the power, dishes out the 'rights'.

4/ The Indigenous people of Australia were DISPOSSESSED... by a force more powerful than they. WELCOME to the history of the world !since Cain whacked Abel !

5/ Now, we all should get on with the job of doing the best to right any rightable wrongs, and reaching out to all well meaning members of the population, and getting along.

6/ Land not 'owned' and called 'Crown Land' should be so only for its protection against rampaging capitalist exploiters. This would need to be handled delicately between national interest (including defense) and Indigenous sensitivies and include a reference board of Indigenous trustees.

The Indigenous concept of land stewardship, can be accomodated within the European concept of 'ownership'. Even 'owned' land.

Why do we go to such unbelievable lengths to even waste time trying to 'justify' the unjustifiable. Move on...face the facts.. and aim for reconciliation as best we can do. (practical as well as emotional and spiritual)

Pericles is right; the logic in this article doesn't stand up

"Terra nullius was not tested because its legality was not in doubt: this is one proof of its existence, not the contrary. Ironically, Connor’s research actually confirms terra nullius’ pervasive application." and "When one speculates about erasures, lack of evidence might itself be quite solid evidence"

This is paranoid logic at its finest, comparable to - of course there are communists in the White House - the fact they've never been discovered just show how clever they are at concealing themselves.

"Terra nullius has the remarkable characteristic of denying itself ex post facto by its very being operative." Remarkable indeed. But if this is true, how can native title be "recovered", as the author goes on to say in the next sentence?

"While terra nullius identifies native title so that it can be denied, native title establishes terra nullius so that it can be discontinued"

This is surely the point that Connor etc are trying to make - it was necessary to invent "terra nullius" to justify (the also recently invented) "native title". Neither existed in the 19th century, according to Connor.

"This polemic ultimately proves how disturbing it is for some Australians that Aboriginal dispossession should happen and that someone should mention it"

This is a blatant ad hominem

"Connor perhaps thinks that if terra nullius is proven to be a fabrication Aboriginal dispossession would also disappear as well as its purported redress"

He hasn't said this, and I doubt he would.

Like other posters here, I don't want to deny the fact of Aboriginal dispossession or its injustice. Nor do I want to overturn native title or turn back the clock. But I don't think we need to invent nasty legal fictions, to or re-write the past, in order to justify doing the right thing now.