People still discussing terra nullius should get their feet back on good old terra firma. Nobody cares.

Very interesting Andrew. It seems then that Australia was a 'terra nullius' but not a 'territorium nullius' as there was 'a change of sovereignty' in 1788 (Mabo case per Brennan J many times), I suggest you research Blackstone and Roman law concepts of property as well. Also, the difference between the civil and the common law applications of the doctrine is important. Although Blackburn J got the law "wrong, wrong, wrong" (Calder's case, Canada) in his judgment in the Gove Land Rights case, it would be appropriate for a historian at least to mention it, as Blackburn J's findings of fact about the existence of Aboriginal property relationships were right, even though his legal finding that Australia had been a 'terra nullius' in 1788 was indeed very wrong. Congratulations on getting published in the Australian - they refused to publish my answer to Connor's confused and inadequate effort.
It is interesting that only the lawyers seem to appreciate the role of racism in the liberties being threatened/protected. There is perhaps a relationship with the battles against slavery.

Correction to first post -
the first sentence should read:
It seems that Australia was neither a terra nullius nor a territorium nullius ...

I would have thought that immediately prior to the 22nd August, 1770, the day that James Cook took posession of eastern Australia in the name of King George III, the indigenous occupants of the area were nominal subjects of the King of Spain, as far as existing international law was concerned. Although Great Britain did not recognise the Treaty of Tordesillias, and the territorial claim over the lands washed by the Pacific Ocean made by Vasco Nunez de Balboa at Panama on the 13th September 1513, the international recognition of those claims meant that Cook only claimed part of Spain's portion of Australia, as the rest nominally belonged to Portugal, England's oldest ally. Because England did not recognise the spanish claim this meant that no-one owned it, in any form that would have been recognised internationally.

All this referred to national sovreignity, not individual property rights. As no such rights could be discerned amongst the indigenous inhabitants, none were recognised. Compare New Zealand, where such rights existed, and were respected.

Notwithstanding all this, I can only agree with other posters that this is a very sterile argument, and many people would prefer that the money being spent on lawyers was spent instead on directly helping the people concerned.

I agree with Leigh, nobody cares, it has already been setablished, please move on nothing to read here. Professor Henry Reynolds is of course correct.

I shake my head in bewilderment about the nit picking of legal pedantry over something which is quite straight forward....

1/ White men came to Australia, which was inhabited by Aborigines.
2/ They (Cook) 'claimed' the land.
3/ He had no right except that of 'might' to do so, and at this one point, the fundamental immorality of the establishment of modern Australia occurred.
4/ Now, we have all become the victims of that same history. While not being the perpretrators, we are nevertheless the beneficiaries.
5/ Does anyone seriously doubt that Indigenous people would carry out the same level of 'addressing the crimes of history' that Robert Mugabe is now doing, if they had the numbers ?
6/ Robert Mugabe is doing a lot of things wrong, but one thing he is spot on with, and that is taking back land which was stolen by our mob.
7/ This clearly boils down to one thing.."Power".
8/ We can woffle on till the cows come home about terra this and terra that, but no amount of woffling will change the fact of point 3/
9/ The struggle with the concepts of Terra blah blah is nothing more than a striving after moral redemption and a cleansing of social/historical concience, which no matter which way you cut it, can never happen, based on the evidence and facts.
10/ The best solution, is to seek to reconcile as best we can and to treat indigenous people with dignity and equality, and do nothing FURTHER to expand the problem.

"Sin" is that which can never be undone. It can only be 'forgiven'.

Finally, a Quote from my hero Jesus.

He said, "Woe to you lawyers also! For you load men with burdens that are difficult to carry, and you yourselves won't even lift one finger to help carry those burdens. Luke 11.46

Interesting post Barb. As for the rest of you, to say that it simply doesn't matter is flaunting ignorance. Of course, there are many more important aspects of aboriginal dispossession than getting to the bottom of the legal truth of the matter. But legal questions were and are an important part of the reality of dispossession and remain important to arriving at some form of justice. One of the elements most lacking from the problem of land rights in this country is intelligent discussion and these posts just confirm that sorry fact.

Dr Andrew Fitzmaurice deserves credit for being one of the few academics willing to confront their credibility crisis. Unfortunately he is also willing to resort to the sort of methodology that caused the crisis in the first place. His accusation that Connor fabricates when he discusses territorium nullius as a forerunner of terra nullius is preposterous. There is no parallel between Connor’s discussion and Reynolds’ “word substitution” of terra nullius for res nullius - the former is an open account of what happened; the latter is a hidden fabrication of what didn’t happen. The British colonists did not proclaim a doctrine of terra nullius. We were conned. For 20 years.

Connor's thesis didn't gain any particular advantage from his discussion of territorium nullius, it wasn’t needed to “support a particular interpretation of Aboriginal dispossession”. Connor’s case would have lost none of its force if he had omitted reference to territorium nullius. But if he had done that, Fitzmaurice would have had a real charge of “tailoring the evidence to fit the argument”, rather than a trumped-up one. Fitzmaurice’s charge, in effect, criticizes Connor for being too thorough.

Fitzmaurice’s claim that “territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property” is nonsense. Over the last few decades terra nullius has been used to describe “an absence of sovereignty” and an “absence of property” and an absence of inhabitants and various combinations and permutations of these definitions that are switched around all the time, so as to perform magical feats of argumentation.

If “any account of the justification of dispossession is not going to look dramatically different” without terra nullius, then no one need fear a re-examination of colonization without that “idiotic” doctrine that never existed. So I trust Fitzmaurice will be working on his colleagues to bring it on.

http://www.macleaypress.com/Washout.htm?id=SKU004

I am each way on this one. I do agree with the first few points BD makes. However I do find it strange how such a religious man believes that all men have in them an inherent capacity for genocide which they would exercise if given the chance...

Winschuttle and his cohorts (our prime minister being one) have played this card, attacking Reynolds in particular for years. Any rational viewing of their attacks can discern two common themes: One, they are politically motivated; and two, they lack scholastic credibility when one views their claims in any logical fashion. It is an exchange not disimilar to the Deshowitz/Finklestein (and many others mind you) exchange regarding the Jewish lobby in the US and the Palestinian Israeli conflict.

That said, I agree the article has merit, but it does seem a tad nit-picky to be appearing in mainstream media. Seems funny that the Australian will publish anything portraying Indigenous Australians in a negative light, and stuff like this, but nothing ever that notes achievements that have been made.