I’ve been relying on historian blogger Christopher Sheil to keep us all informed about any new shots in The History Wars. But he’s let me down, possibly too busy perfecting his own unique brand of black is the new white sophistry.
Instead I stumbled on the fact that a new “History Wars” skirmish has broken out by reading Christopher “Pudgy” Pearson’s column In the Weekend Oz. Pearson’s article deals with an earlier article in The Bulletin by Tasmanian historian Michael Connor, which renews the attack on Professor Henry Reynolds, whose “black armband” view of indigenous history has made him a favourite target of the reactionary right. Connor accuses Reynolds of confusing and exaggerating the influence of the international law doctrine of “terra nullius” (almost to the point of fabrication).
Pearson also asserts that another historian, Bain Attwood, has recently published a similar critique of Henry Reynolds’ account of the historical role of the “terra nullius” doctrine (unfortunately not apparently available online), and that Attwood has also debunked Reynolds’ claims about the benevolence of the nineteenth century British Colonial Office:
Attwood ultimately concludes that Reynolds’ juridical history is “simplistic” and says of its black-and-white oppositional account of humane Colonial Office v racist settlers that “most academic historians have rejected this argument”.
Now I don’t have enough background knowledge about these claims to take a position on them (or the time to acquire it), but I notice that there are several historians who occasionally visit the Troppo comment boxes (e.g. “Currency Lad”), and I’d be most interested in their observations.
One specific area of Michael Connor’s article where I do feel somewhat qualified to comment is his observations about the High Court’s alleged misunderstanding of the nature and origin of the “terra nullius” doctrine in its seminal 1992 Mabo decision. Connor claims:
By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds’ version of our history, especially The Law of the Land, underpinned the Mabo judges’ decision-making.
When they “rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”, they were paraphrasing his book and accepting questionable historiography about 1788 (Reynolds’ Law is cited several times). The real legal phrase res nullius, which the Mabo judges should have been familiar with and which could have introduced some nuances into their decision, never appears in their discussions.
The judges and lawyers involved in the Mabo case may not have been historians but they should have known at least one thing about terra nullius. It has something to do with international law and is not part of common law. In his introduction to a collection of legal essays on the Mabo case, Sir Harry Gibbs, a retired chief justice of the High Court, confessed himself puzzled that the court had reportedly overturned terra nullius, which he found “unknown to the common law”.
I don’t know whether Connor is quoting Sir Harry Gibbs out of context, or whether Sir Harry was being deliberately disingenuous, but the proposition that the Mabo Justices didn’t realise terra nullius was an international law concept is just plain nonsense. Anyone interested can read the judgment for themselves, especially paragraphs 28-42 of Brennan J’s leading judgment. Here’s the critical passage (starting at paragraph 32):
… By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.
33. International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant (27) See E. Evatt, “The Acquisition of Territory in Australia and New Zealand” in (1968) Grotian Society Papers, p 16, who mentions only cession and occupation as relevant to the Australasian colonies. The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers (28) Worcester v. Georgia (1832) 6 Pet 515, at pp 543-544 (31 US 350, at p 369), provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organized in a society that was united permanently for political action (29) Lindley, The Acquisition and Government of Backward Territory in International Law, (1926), Chs III and IV. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of “backward peoples” and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest (30) See Lindley, ibid., p 47. Various justifications for the acquisition of sovereignty over the territory of “backward peoples” were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times (31) See Williams, The American Indian in Western Legal Thought, (1990), pp 78ff; and Johnson v. McIntosh (1823) 8 Wheat 543, at p 573 (21 US 240, at p 253). Another justification for the application of the theory of terra nullius to inhabited territory – a justification first advanced by Vattel at the end of the 18th century – was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants (32) Vattel, The Law of Nations (1797), Bk I, pp 100-101. ….
34. The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or “settlement”, to use the term of the common law). Although Blackstone commended the practice of “sending colonies (of settlers) to find out new habitations”, he wrote (34) Commentaries on the Laws of England, 17th ed. (1830), Bk II, ch 1, p 7-
“so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind”.
As we shall see, Blackstone’s misgivings found a resonance in international law after two centuries (35) Advisory Opinion on Western Sahara (1975) 1 ICJR 12. But he was unable to declare any rule by which the laws of England became the laws of a territory which was not a “desert uninhabited” country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius. …
Justice Brennan then quoted and discussed this famous passage from Blackstone, which is central to previous judicial understandings of the law applicable to newly settled/conquered territories:
“Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony”¦But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain unless such as are against the law of God, as in the case of an infidel country.”
Clearly, Justice Brennan wasn’t labouring under any misunderstanding that “terra nullius” was a common law doctrine, as the above passages show. Either Connor hasn’t read Mabo (or hasn’t read it very carefully), or he’s relying on the fact that most of the readers of his Bulletin article won’t have done so, and therefore won’t realise that his claim is arrant nonsense. Either way, it doesn’t do him any credit at all. Maybe that’s why he’s an “honorary research associate” at the University of Tasmania and not a tenured staff member.
My rather jaundiced initial view of Connor is confirmed by a closer look at his Bulletin article. For example, he encases the following passage in quotation marks (see above as well for the context), giving the impression that it’s a quote from the Mabo decision:
“rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”…
However, as far as I can see, those words don’t appear anywhere in any of the Mabo judgments. If Connor had been a leftie like Phillip Adams, Professor Bunyip would have had him hung, drawn and quartered by now for that sort of academic sin.
Connor also says:
Terra nullius became one great anachronism as it was pushed backwards into places it had never been. Henry Reynolds discussed terra nullius and Sir Joseph Banks. Another publication on Mabo from the conservative IPA thinktank informed readers that the Milirrpum v Nabalco judgment in 1971 had “re-affirmed the long-held doctrine that Australia was terra nullius”. The case never mentioned the term.
Why a misstatement by the IPA should be regarded as saying anything at all about judicial understanding of “terra nullius” is not explained by Connor. Moreover, while it’s true that Milirrpum (sometimes known as the “Gove Landrights Case”) didn’t use the expression “terra nullius”, that assertion is both irrelevant and misleading in the context of Connor’s article. First, Blackburn J (the judge in Milirrpum) effectively treated himself as bound by the following (in obiter) passage from the 1889 Privy Council decision of Cooper v Stuart:
The extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class. …
Secondly, Blackburn J also observed that Blackstone’s reference to “desert and uncultivated” territories (see above) “have always been taken to include territory in which live uncivilized inhabitants in a primitive state of society“. In other words, Blackburn J, like Lord Watson in Cooper v Stuart, was referring to Blackstone’s English common law doctrines about the laws applicable in newly-settled territories. He wasn’t dealing with the terra nullius doctrine which, as Justice Brennan explained in Mabo, was the international law doctrine whereby a colonial nation acquired sovereignty in the first place. Blackstone’s observations come into play to determine the content of domestic law once sovereignty is established under international law. Connor’s comments about Milirrpum conflate this critical distinction in a confusing and unhelpful way. Whether he does so deliberately or as a result of legal ignorance is less clear.
I’m not in any sense suggesting that the judicial reasoning in Mabo is (or should be) exempt from criticism. It’s a much-analysed decision, and numerous commentators have advanced well-reasoned critiques of aspects of its reasoning. However, Connor’s article is not among them. I don’t know about his criticisms of Henry Reynolds, but his criticism of Mabo is complete crap. It’s surprising that a reputable journal like the Bulletin should have published it.
PS – I suppose it’s possible that Michael Connor’s Bulletin article is an abridged version of a much longer paper, and that it’s been edited unintelligently by Bulletin staff, thereby removing important qualifications and explanations. That might be the reason why the Bulletin version makes so little sense in several areas. However, that still wouldn’t explain his evident assertion that the Mabo High Court believed that terra nullius was a common law doctrine rather than an international law one. Manifestly that wasn’t the case.
Update – I see Paul Watson has reproduced on his blog an entire journal article he wrote about Milirrpum v Nabalco some years ago. It doesn’t clearly address Michael Connor’s misstatements in The Bulletin, although Paul does observe (at footnote 9) that Blackburn J uses Blackstone’s expression “desert and uncultivated” rather than “terra nullius”.
As I explain above, they’re dealing with two different but related points: terra nullius was an old international law doctrine providing a pseudo-juridical basis for assertion of sovereignty by European colonial powers, whereas Blackstone’s doctrines were mostly directed at the content of domestic law in a new territory once sovereignty had been claimed. Thus, the fact that Blackburn J didn’t mention terra nullius provides no support at all for Connor’s assertion that it was an almost completely unknown concept that Henry Reynolds rescued from obscurity and misused to fashion a new black armband juridical mythology. There was no reason for Blackburn J to deal with terra nullius at all because, as Brennan J explains in Mabo, a national court can’t entertain arguments about the validity of extant sovereignty because its own jurisdiction emanates directly from that sovereign authority. It would be like sawing off a tree branch on which you’re currently sitting! Instead, Blackburn J was dealing with the same question as Blackstone: what laws (as to land ownership) actually applied? Thus it isn’t really surprising that Blackburn J didn’t discuss the terra nullius doctrine. The High Court Justices in Mabo only did so by way of background, because they were seeking to provide a reasonably definitive explanation of the juridical and historical background to the momentous decision they knew they were making.
I suppose there’s a very trite sense in which Connor has a point. As explained above, there was no cause for considering the “terra nullius” doctrine in any domestic Australian court (except by way of background information as in Mabo). Nor, until recent years, was there any international forum (like the International Court of Justice) where the legitimacy of British sovereignty claims over Australian territory could have been tested and adjudicated. The international law doctrine of terra nullius was little more than a piece of cynical window-dressing agreed between European colonial powers to lend an utterly unconvincing (to modern eyes) aura of legality to what were in reality no more than naked power grabs. It was never conceived as a legal doctrine that could be argued or adjudicated by any court, so it’s hardly surprising that terra nullius was such an obscure concept. Terra nullius was in that sense an empty, mythical concept. It’s also unlikely, I suspect, that many (if any) colonial administrators or settlers had ever heard of it. But none of these observations invalidate or undermine the High Court’s Mabo decision (as Connor and Pearson appear to believe).
Update 2 – John Quiggin also posts on the Christopher “Pudgy” Pearson article. JQ’s post itself doesn’t say all that much, but his comment box discussion is especially worth reading, because it includes a couple of contributions from Pudgy himself, and a careful comment from Bain Attwood.