The question that I ask is whether Australia was Terr Nullius when Cook arrived, or could it have been considered a self governing state or collection of self governing states.

Terra nullius is a Latin expression deriving from Roman law meaning "nobody's land", which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty.

The last international judgement on the issue determined that there was no discernable nation states at the point of settlement, however, the University of NSW disagrees.

Opinions please.

Dear Shadow Minister,

The following link explains that Captain Cook's
aim was to establish a penal colony and take
Australia for settlement, hence his
proclamation of 'Terra Nullius," (nobody's
land). However, at the time Australia was occupied by
over 400 different nations. It was not nobody's
land.

http://www.racismnoway.com.au/teaching-resources/factsheets/10.html

Dear Shadow Minister,

Chinese President Xi in a speech to the Australian parliament during his visit to Canberra advised that the Chinese discovered Australia before European explorers. Therefore, China has a greater claim to the Australian continent than the Commonwealth.

China's claim extinguishes any claim that the Commonwealth has under terra nullius. China is in its initial stage of predatory expansion towards Australia. After it has consolidated its annexation of the South China Sea it will be able to move on toward reclaiming the Australian continent.

The university of NSW would disagree;I was reading just this morning that they wanted to re-write history to fit in with the 'invasion' view of the settlement of Australia. We need to remember things were a lot different 200 odd years ago. And we should put it behind us and concentrate on own values in the 21st. Century.

Overflowing jails in England, and the wars with France concided. It's not quite right to say that settlement was just to clear out the English jails; the French were sniffing around the continent, and the east coast was a good naval base. England wanted it before the French could settle there. That somewhere to transport convicts who could be helpful to settlement was fortuitous, not the main aim.

Certainly there were people living here, but they were disparate groups of nomads with no civic interests at all: there was no civilisation,in any sense of the word. Hence terra nullius, which was acceptable FOR THE TIMES. Personally, I view people who try to use modern law and values to criticise our ancestors who saw things differently as trouble makers with nothing better to do.

I don't think that Cook ever used the expression 'terra nullius'. I've typed up several thousand pages of old documents and have never come across the expression. But clearly, nobody, absolutely nobody, ever suggested the place was empty of people, never.

As for what it means, I thought it meant that the people on the land did not have a system of land ownership in a Western sense, or even in a non-Western agrarian sense - land use, yes, but not 'ownership'. In texts on the development of systems of ownership, the story usually starts with the development of agriculture, of the privatisation of land ownership: prior to that, systems of land use are readily recognised, what they called usufructuary rights in land.

There are still plenty of examples of that in English practice, individuals being entitled to the product of a particular stream or peach tree, or the right to gather firewood from somebody else's land, etc. Clearly, Aboriginal groups had a concept of a right to exclude others from their foraging grounds: these were commonly called their 'nations'. After all, the word used to mean 'family'.

In the earliest days in South Australia, the use-rights of Aboriginal people were recognised and eventually written into the Pastoral Acts, in every pastoral lease document. It still is.

But the question is: do rights to use land and exclude others from it, constitute land ownership ? Combined, I think they do, but it's a pretty fragile basis. After all, the power or force to exclude others is a sort of licence for the strongest to do just that: the principle that whoever can push others off land or exclude them from it is thereby the owner.

[TBC]

[continued]

Obviously, in the earliest days, foraging groups - by not settling or staying put in particular locations - gave all observers the very strong impression that they didn't consider it necessary to do so: that since moving about in order to use the land for sustenance seemed to be more urgent and salient than holding it - that there was no point in staying on just piece of land - then a recognition of such traditional land-uses for hunting and gathering was all that was needed in early colonial law.

Perhaps that's why there has been a recent condemnation of the terms 'nomad' or 'nomadism', since they gave exactly that impression.

Joe