Dear Steele,

This discussion has certainly opened my eyes
in more ways than one.

Before I leave, the following two links may be of interest:

http://theconversation.com/friday-essay-dark-emu-and-the-blindness-of-australian-agriculture-97444

And -

http://www.theaustralian.com.au/weekend-australian-magazine/bruce-pascoe-the-man-behind-dark-emu/news-story/231cefabce2f0103de26b6402fef0e3f

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Dear Loudmouth,

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You wrote :

« Thank you, that's what I was after: possibly no reference anywhere to "terra nullius" - in those words - before the Mabo decision by our High Court judges ? »
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"Terra nullius" is a legal term familiar to many historians and jurists. It was developed by the major European colonial powers to serve their ambitions of territorial expansion.

The historian, Prof. Andrew Fitzmaurice of the Sydney University, explains :

« As European powers each competed to get a piece of Africa for themselves, the German Chancellor, Otto von Bismarck, called a conference of imperial powers in the winter of 1884-85 in Berlin to establish some rules for the division of territories among them. Bismarck and many of his contemporaries feared that colonial competition could bring European states into conflict with each other.

« Then, between 3 and 8 September 1888, the Institut de Droit International met in Lausanne to distil the legal principles from the Berlin conference into regulations of international law. The institute had been established in 1873 to further the study of international law and it was the first professional association of that discipline.^' In 1887 the institute had commissioned one of its members, F. de Martitz, a German professor of law at Tubingen, to present a report on the Berlin conference. It is in Martitz's report and the subsequent lengthy debate among members of the institute that there was first a shift from the terminology 'res nullius' to 'territorium nullius'.

« The first of nine 'articles' in Martitz's 'Projet de declaration' was that: All regions which do not find themselves effectively under the sovereignty or the Protectorate of one of the States which form the community of the law of nations, no matter whether this region is inhabited or not, will be considered as territorium nullius.

« This still leaves us with the matter of how jurists understood terra nullius to be different from territorium nullius. Both terms are species of the natural law of the first taker. ...

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(Continued ...)

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(Continued ...)

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Clearly, in Latin, whereas 'territorium' carried the sense of 'territory' that was appropriate to Martitz's emphasis upon the level of political sophistication, 'terra' implied a question of land. »

Fitzmaurice indicates that the term terra nullius came to prominence between 1908 and 1911, and cites a number of international jurists who popularised the term. He also indicates that :

« The question of whether Australia had been terra nullius at the time of colonial occupation was first posed in 1939, when Philip C. Jessup, a professor of law at the University of Columbia, wrote to the eminent Australian historian Sir Ernest Scott asking if Australia had been described as terra nullius during the period of occupation »

Quite frankly, from my point of view, whether the term "terra nullius" was actually employed or not – before, during or after the Mabo decision – is of no real importance, and not the decisive factor in the judges' decision. Criminal courts are usually more concerned with what people do than what they say or write. Hence the pre-eminence of the fact that the British colonisers dispossessed the Aboriginal peoples of their traditional lands – irrespective of what the pretext happened to be.

As Kevin Williams, of the School of Law, University of Newcastle, declared : "What Mabo did was drag Australia into the 20th century by recognising something that had been recognised in other colonised lands: the pre-existing rights of the original inhabitants. The rights of Canada's first peoples were recognised by Royal Proclamation in 1763 (and in subsequent common law cases). Marshall CJ questioned the discovery theory in the United States in the early 19th century. In New Zealand/Aotearoa, the Treaty of Waitangi in 1840 recognised Maori rights to land prior to acceding sovereignty".

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Hi Banjo,

Now we may be getting somewhere. There are two (at least) concepts which keep getting confused: government (administration, sovereignty) and land tenure (rights to use or dispose of and purchase land). Usually any State claims not just its right (and obligation) to govern and to protect its borders (i.e. issues of 'res' or territorium'), but to be the underlying fictive 'owner' of all land within those boundaries (issues of 'terra'). That is more or less what 'sovereignty' means.

Clearly, the British Crown claimed rights over the 'res' or 'territorium', while claiming that Indigenous groups did not possess those rights - i.e. that all of the clan territories of Australia, and certainly Australia as a single entity, was a 'res nullius' or 'territorium nullius'.

Concurrently, while claiming that all of the territory of Australia was henceforth British, the Crown claimed that those Aboriginal groups did not possess systems of land ownership, only of land-use. Phillip implicitly recognised those land-use rights, and their recognition were explicitly ordered by the Colonial Office in 1849-1850, and henceforth written into all pastoral leases, at least here in SA (and presumably in the other colonies). Aboriginal groups (at least in SA) still have those rights.

But in British law, they did not constitute land ownership, only the rights to use the land as people always had done. Of course, even these rights were breached by colonial authorities in issuing land grants and pastoral leases. What Mabo recognised was that the rights of Aboriginal groups extended, not just to traditional land-use, but to forms of land ownership.

In NZ, the acknowledged authority on Maori issues, Prof. Ian Kawharu seemed to distinguish these two aspects, with one book, "The Treaty of Waitangi ...", focussing on the issues of the extinguishment of Maori sovereignty in exchange for British protection and governance, while another, "Maori Land Tenure ....", focussed on traditional systems of land distribution and ownership. It's surprising that each book did not deal much with the focuses of the other.

So

[TBC]

[continued]

So the issues overlap but deal with quite distinct areas of law.

Of course, Indigenous groups were dispossessed of much of their lands even though they had rights to use their lands in accordance with declared British policy. One problem that arose early was that people vacated their lands - certainly on a temporary basis - in the search for paying work and movement away from their traditional country, and thereby authorities could claim that those lands were vacant, and therefore open to sale and leases.

Joe

BP, I take you to task only on the very last words of your post;

//the Treaty of Waitangi in 1840 recognised Maori rights to land prior to acceding sovereignty//

A subject I have had an interest in for more than 10 years, and have visited Waitangi (treaty grounds) on several occasions and spoken with Maori experts on the subject. The universal opinion is although the English version uses the word sovereignty, the Maori version refers to governance, a word of different meaning. Of those Maori Chiefs who signed the English version, the first being Hone Heke 9my wife's ancestor) who most certainly could read and write English, not most of the other Chiefs who also signed the English version. Hone Heke was an ambitious businessman who wanted to curry favour with the British for personal gain.

Maori ownership of land was recognised by the treaty, there would be no such thing as crown land. In return for their protection as British subjects, all land sales were to be exclusively handled by the British representatives. Although British law was to apply, tribal law was still in operation.