Terra nullius

Categories: Common law | International law | Legal fictions | Latin legal phrases | Native title | Aboriginal peoples in Canada

Terra nullius is a Latin expression deriving from Roman Law meaning "empty land" or "no man's land". Modern applications of the term stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign entity recognized by European authorities as land that was not owned at all.

During the 18th century the doctrine gave legal force to the settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius also applied where the land was not cultivated by the indigenous inhabitants. Since the land was not being cultivated, it was not being put to good use, therefore those who could cultivate the land had a right to the land.

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Australia

The United Kingdom relied on this principle to claim possession of Australia. It was deemed that, prior to the arrival of Europeans, Australia was "a tract of territory practically unoccupied, without settled inhabitants or settled law" (as the Privy Council put it in 1889). This was a legal fiction, as Indigenous Australians were known to inhabit the continent and legal codes were already operative in some places, as in the case of the Aboriginal people of the Yirrkala mission. This was overlooked or ignored by the colonial authorities. In this regard, the application of terra nullius to Australia was inconsistent with the practice elsewhere in the British Empire. The British Government attempted, as early as the 1830s and 1840s, to bring Australian colonial practice into line with international law of the time and with the approach taken elsewhere in the Empire. Efforts towards conformity were unsuccessful and Australian policy towards native land rights developed in a markedly different way to that of the rest of the British Empire.

Part of the explanation for the difference may lie in that, rather than implying mere emptiness, terra nullius can be interpreted as an absence of civilized society. The English common law of the time allowed for the legal settlement of "uninhabited or barbarous country". Although Australia was clearly not unoccupied, scattered and nomadic Aboriginal groups would have been widely perceived, through European eyes of the time, as evidence of a barbarous country and thus no legal impediment to settlement. By contrast, most of the other territories ruled by Britain had significant native populations and well-established indigenous administrative codes, as in the cases of India and New Zealand. However, this explanation has been questioned, on the basis that the Indigenous societies inhabiting coastal regions and river basins — the people that British settlers would have first encountered in Australia — often had permanent settlements centred around food sources.

Until the 1970s, the doctrine of terra nullius was generally accepted in Australia on the grounds that the continent had been "settled", a classification which gives no legal consideration to Indigenous customs. During the 1970s historians revisited the colonization of Australia, reassessing the degree to which force had been used to dispossess the native inhabitants.

This prompted a number of lawyers and activists to suggest that Australia should be reclassified in law as "conquered" territory, a distinction which requires the conqueror to recognize the customs of those conquered. Court cases in 1977, 1979 and 1982 brought by or on behalf of Aboriginal activists challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact. These cases were rejected by the courts but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

The concept of terra nullius became a major issue in Australian politics when, in 1992, during a Aboriginal rights case known as Mabo, the High Court of Australia issued a judgement which some interpreted as an invalidation of terra nullius. The ruling was, however, rather narrower than that. The court did not reclassify Australia as a "conquered" territory but instead restated the terms of Australian sovereignty. The Crown is still deemed capable of lawfully extinguishing native title, but some native title still remains intact where clear indigenous rights can be proved to have existed before the native population was dispossessed. The 1996 Wik Decision went further, stating that native title and pastoral leases could co-exist over the same area; native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim territory appropriated under the doctrine of terra nullius. This has proved extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. An estimated 3,000 further agreements have been reached in which Aboriginal peoples have regained former lands. One very recent example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km² plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now in the hands of Aboriginal peoples.

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Terra nullius elsewhere

Terra nullius was still relevant to international law in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice in 1974 to determine the status of the Western Sahara (Rio de Oro and Saguia el-Hamra) at the time of colonization by Spain.

Japan's claim to the Liancourt Rocks, strongly disputed by South Korea, also rests on a legal basis of terra nullius.

Even Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted Terra nullius. The matter was later settled in the Permanent Court of International Justice by 1933.

In northeastern Brazil there are unclaimed areas between the states of Piauí and Ceará. It is unclear, however, whether this strip of land is partially or wholly claimed by either or both of the two states, and so it is in effect a federal territory of Brazil.

Another example of a terra nullius is Antarctica, none of which has yet been capable of supporting human habitation without supplies from the outside world.

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References

  • Culhane, Dara. The Pleasure of the Crown: Anthropology, Law, and the First Nations. Vancouver: Talon Books, 1998.
  • Rowse, Tim. "Terra nullius" - The Oxford Companion to Australian History. Ed. Graeme Davison, John Hirst and Stuart Macintyre. Oxford University Press, 2001.fr:Terra nullius

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