Terrorising terra nullius

My recent post, about the resumed History Wars and the status of the doctrine of terra nullius, continues to attract comment box debate. Two of the more interesting comments (here and here) have been from historian Brian Spittles. The bottom line is that Brian has undertaken research and can’t find any references at all to “terra nullius”, as a concept by that name, earlier than 1888. Since that’s rather a long time after Australia’s settlement in 1788, the absence of any references is clearly relevant both to Henry Reynolds’ classical “black armband” historical work The Law of the Land and the High Court’s historical account in Mabo of Australia’s settlement being allegedly underpinned by the twin doctrines of terra nullius to establish British sovereignty at international law and Blackstone’s “desert and uncultivated” doctrine to determine the content of Australian law.

I don’t readily have either the time or opportunity to check whether Brian Spittles’ claim is correct. However, I’ll assume for present purposes that it is. But where does that leave us? If terra nullius was an unknown term in 1788, then Justice Brennan has certainly been a tad slipshod with his historical research to say the least, and Reynolds has been guilty of likewise or perhaps worse. But does it actually matter? My answer is that it’s rather less important than the revisionists like Windschuttle and cheersquad members like Christopher Pearson (and perhaps Michael Connor) assert, but more important than the studious avoidance of the subject by “black armband” historians (except Bain Attwood) would suggest. Slipshod use of the term “terra nullius” doesn’t undermine either the High Court’s core reasoning in Mabo or Reynolds’ central hypothesis of Aboriginal conquest and dispossession. However, equally I don’t think one can credibly take a blithely post-modern approach and mutter vaguely about “multiple truths”, if basic historical factual (or legal) assertions have been misstated. If we can’t take the accuracy of positive factual or legal assertions by eminent historians and judges for granted, the very basis of historical knowledge and understanding is undermined.

However, I want to take all this a bit more slowly. First, I intend extracting the relevant aspects of comments by Brian Spittles and others, and then I’ll move on to consider some broader contemporary and historical sources. I’m not trying to create a tightly reasoned post. In fact you’ll find it’s fairly long and rambling. But my intention is to make most of the arguments reasonably accessible to general readers prepard to take the time to read a long-ish post. Brian Spittles’ initial comment observed:

Terra nullius was not an old international law doctrine. You will not find it actually recorded in any court case transcript in Australia until 1975. It does not exist in any of Australia’s founding documents. This is Connor’s point.

The first time I can find the actual term “terra nullius” being used in Australia is in 1939. The first time I can find the actual term “terra nullius” being used elsewhere in the world is in 1888 at an international law tribunal. I’ve researched intensively into this with the original intent of proving Connor wrong, but the more I looked, the more I found his core assertion is correct. There was no such thing as the doctrine of terra nullius used by the British in 1788 to acquire Australian territories.

Brian Spittles expanded slightly on this point in his second comment:

I have read some of Castellino’s work before about the connection between terra nullius and uti possidetis, however, like innumerable other authors, Castellino tends to retrospectively inject the term ‘terra nullius’ into a history where it probably did not exist. For example the footnote you directed me to states that “Emerich de Vattel set out three major epochs of terra nullius corresponding to our analysis of uti possidetis”, but de Vattel never actually used the term in any of his works. I never did track down the original source of the term, but my hunch is that it was first coined in the mid-to-late nineteenth century.

Mark Bahnisch then put a major counter-argument succinctly:

As to the whole terra nullius thing, for the life of me I can’t understand why it matters that Reynolds’ work may have informed the Court. Surely the Court’s decision – recognising customary indigenous law as a source of Australian common law – is one that it can reasonably make regardless of the exact trajectory of when particular international law concepts became common in Australian legal and historical discourse. I’d be much happier if people who oppose the Mabo decision argued against it on policy grounds – or grounds of justice – rather than endless attacks on ‘left wing’ historians. It’s really beside the point. Some people think the Mabo decision was just and will argue it in those terms. Let’s hear the reasoned counter-argument.

Brian Spittles eventually explained what he meant and, instead of putting the expected (right wing revisionist) counter-argument, he posited a rather more radical “black armband” proposition than even Mark Bahnisch probably had in mind (albeit ostensibly grounded in law rather than social justice):

Though the High Court annulled the non-existant during Mabo (as the term ‘terra nullius’ seemingly did not exist at the time of Australia’s colonisation in 1788), this does not necessarily diminish the Aboriginal land rights struggle, for whether or not terra nullius existed, Mabo invalidated long-standing claims that Australian territory was ‘unoccupied’ by Aboriginal people. However, if Australian territory was not claimed through the international law mode of Occupation (the occupation of ‘uninhabited’ lands), what did happen? A search through colonial documents such as instructions to Captain Cook and Govenor Phillip give a clear indication that territorial acquistion through Cession was intended, but did not come to pass. What occurred instead was a process of quasi-conquest by default. In annulling terra nullius the High Court should therefore have nominated another mode of territorial acquisition, namely Conquest, thus legally recognising Aboriginal sovereignty and land rights. At present Australian territory remains occupied by no legal mode of territorial acquisition in international law. The use of intertemporal law to nominate Conquest as the mode of territorial acquistion in Australia, along with the recognition of Aboriginal sovereignty, will finish what should have happened in Mabo.

This was a point I had already made myself earlier in the comment thread:

What the High Court was avowedly doing was bringing the Australian common law (previously thought to be represented by Blackstone’s formulation quoted earlier) somewhat more into line with contemporary international law and human rights standards concerning the acquisition and effect of sovereignty and the rights of indigenous peoples. Of course, the logical end result of rejecting Blackstone and also embracing the ICJ view of terra nullius is that as a matter of law the British didn’t validly acquire sovereignty by peaceful settlement. Instead they acquired it by conquest. However, the contemporary legal (as opposed to political and rhetorical) consequences of that distinction are fairly minimal, and the question can’t be adjudicated in any Australian court in any event for reasons already explained.

Contrast my passing suggestion about the fairly minimal legal consequences of formal acceptance that Australia was conquered rather than settled with Brian Spittles’ rather more dramatic-sounding call for “recognition of Aboriginal sovereignty”. The direct legal consequences of formal recognition of Australia as conquered territory would be fairly small because of Blackstone’s classic formulation:

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.

Given that the King (i.e. Parliament) has subsequently passed laws in Australia dealing comprehensively with just about every topic imaginable, it’s very unlikely that any significant areas of Aboriginal customary law would be held still to be in force today (absent legislative intervention to give it renewed recognition). Acceptance of the reality of conquest as a legal fact would not confer “sovereignty” on Aboriginal people (as Brian Spittles seems to think), either generally or in some American-style “domestic dependent nation” sense. It simply results (at least according to Blackstone) in existing indigenous customary laws remaining in force until altered by the new sovereign (British/Australian) authority. On the other hand, formal acceptance of Australia as conquered territory might well be a significant symbolic event with wide-ranging political consequences.

It’s also worthwhile extracting here part of an article by Garth Nettheim that deals in a rather broader context with the terra nullius doctrine. It explains why I think some people are overstating the significance of Connor’s (and Brian Spittles’) claim that terra nullius *at least by that name) was an unknown concept in 1788. Nettheim’s paper contrasts the Australian experience with that of Canada:

In 1763, the Crown issued its Royal Proclamation setting out what had become the basic tenets of British policy toward the Indian nations. What were those tenets? The Royal Commission wrote that:

Aboriginal/English relations had stabilised to the point where they could be seen to be grounded in two fundamental principles.

Under the first principle, Aboriginal peoples were generally recognised as autonomous political units capable of having treaty relations with the Crown. . . .

A second principle emerged from British practice. This acknowledged that Aboriginal nations were entitled to the territories in their possession unless, or until, they ceded them away. . . .

Much of these two basic tenets was retained after the United States of America won independence from Britain, and received some judicial recognition in the US Supreme Court. But the immediate point is this: if British colonial policy had developed in this way in regard to North America, why did it not follow a similar development in Australia?

The critical times were close. The Royal Proclamation was issued in 1763. It was only five years later, in 1768, that the Admiralty issued its instructions to Lt James Cook for his first great voyage into the Pacific. A primary task was to observe the transit of Venus from Tahiti, and there were a number of other scientific dimensions to the voyage. The search for the Great South Land was almost an afterthought. If he should find it, his instructions set out two alternatives:

You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or, if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors. (Emphasis added).

This instruction is entirely consonant with the policy developed in relation to North America. However, when Cook sailed up the eastern coast of Australia in 1770, having some encounters with “natives”, he neither sought nor obtained their consent before proclaiming possession of “New South Wales”, then amounting to about half of the Australian continent, in the name of the Crown.

And when, 18 years later, the First Fleet sailed for Botany Bay, the commission issued to Governor Arthur Phillip said nothing about the rights of the natives, and authorised him to grant land to those who would “improve it”, without any reference to Aboriginal consent.

Had British policy changed so drastically in such a short period of time? It is clear that it had not when one refers to events after the 1770s. Historian Henry Reynolds referred to the North American experience and to British practice in Africa and the Pacific. He placed the instructions issued to Cook in the context of later consideration, by the House of Commons Committee on Transportation, of possible locations for a penal settlement. The Committee took it for granted that it would be necessary to have the agreement of the inhabitants. Britain wrote the principle into the Anglo-Spanish Convention of 1790 in relation to a possible settlement at Nootka Sound on the American northwest coast. Later still the principle was applied firmly in relation to New Zealand, culminating in the Treaty of Waitangi in 1840.

So why does the British settlement (invasion?) of the Australian colonies represent such an aberration from established policy and practice? Again, Reynolds sheds light on the critical factors which consisted largely of a series of assumptions.

• First, in 1785, when the House of Commons Committee on Transportation examined Sir Joseph Banks, who had sailed with Cook in 1770, he was asked whether the Aborigines would be willing to bargain their consent to settlement. Banks thought not, as Reynolds notes:
  

  “The real problem wasn’t that the Aborigines had nothing to sell. They were unwilling to sell because the Europeans had nothing to tender which would be considered of value, apart from provisions which in 1770 had been too valuable to part with.”

• Secondly, there was a belief that Australia was literally uninhabited (terra nullius), apart from a few scattered groups along the coast. This, too, appears to have derived from Banks’ testimony. He reported that the people that he had encountered seemed to derive their sustenance from the sea, and lacked the arts of cultivation. It would follow that the interior could provide no food. Therefore, it must be uninhabited. Reynolds commented: “It all would have been so easy if Banks had been right. . . But he wasn’t.”
• A third factor may have arisen from perceptions that Australian Aborigines were less “advanced” than other native peoples. In the hierarchy of land use, hunter-gatherers were regarded as being at a lower level than nomadic herders who were, themselves, considered to be more “backward” than cultivators, let alone those peoples (such as Europeans) who had developed commercial societies. There was a tradition among scholars, such as Henry Home, John Locke, Sir William Blackstone and Emerich de Vattel, which denied that the use of land by hunter-gatherers and herders merited recognition as property interests.

Whatever the reasons – and in stark contrast with the “two fundamental principles” referred to by Canada’s Royal Commission on Aboriginal Peoples – the fact was that colonisation of Australia proceeded on the basis of non-recognition of the rights of Aboriginal peoples and Torres Strait Islanders. There was no Indigenous consent to the assertion of British sovereignty – such consent has still not been given. And there was no recognition of territorial rights, though that situation has changed over recent times.

Even if terra nullius was unknown by that name in 1788 (as Connor and Brian Spittles tell us), the thinking of 17th and 18th century writers like Blackstone, Locke and Vattel actually encapsulates the same substantive idea i.e. that “primitive” hunter-gatherers who didn’t till the land had no property rights in it. That concept, whether it’s historically accurate to label it “terra nullius” or not, does appear to have provided an important pseudo-justification for wholesale British seizure of Australian territory without the consent of the indigenous inhabitants. At least in that sense, the date when the term terra nullius first came into use might be seen as a nitpick.

Blackstone’s formulation (“desert and uninhabited” etc) was extracted and discussed in my previous post. Locke had similar things to say in his Second Treatise on Government (1680 or thereabouts):

God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being. And though all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of the rest of mankind in any of them, as they are thus in their natural state, yet being given for the use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial, to any particular men. The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his- i.e., a part of him, that another can no longer have any right to it before it can do him any good for the support of his life. …

But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth- i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

Locke’s formulation, although later much-criticised, was undeniably extraordinarily influential. Apart from providing a justification for non-consensual colonial acquisition of untilled lands (however unconvincing to modern eyes – other than libertarian admirers of Robert Nozick), it also formed a principal basis for modern political liberalism and liberal-democratic constitutionalism as embodied in the French and US Constitutions that would be promulgated a century after Locke’s writings.

Emerich de Vattel wrote to similar effect in his 1760 work The Law of Nations. Like Blackstone and Locke, he too didn’t use the expression “terra nullius”, but the substantive meaning of what he wrote is equally conceptually similar (see Book 1 Chapter 18):

HITHERTO we have considered the nation merely with respect to itself, without any regard to the country it possesses. Let us now see it established in a country which becomes its own property and habitation. The earth belongs to mankind in general; destined by the Creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and derive from it whatever is necessary for their subsistence, and suitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing spontaneously, and without culture, sufficient support for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to possess it in common. It therefore became necessary that those tribes should fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labour, or disappointed of the fruits of their industry, apply themselves to render those lands fertile, and thence derive their subsistence. Such must have been the origin of the rights of property and dominion: and it was a sufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or the different families of which it consists were previously scattered over the country, and, there uniting, formed themselves into a political society, ¢â¬â that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.

This right comprehends two things: 1. The domain virtue of which the nation alone may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding. 2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.

When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignly of it, at the same time with the domain. For, since, the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government becomes the seal of its jurisdiction, and is called its territory.

As we can clearly see, although neither Locke, Vattel nor Blackstone used the expression “terra nullius” as such, the legal doctrine they discussed and advocated was conceptually indistinguishable from it. Thus, in conceptual terms Henry Reynolds’ sin may simply have been to adopt the shorthand expression “terra nullius” without explaining clearly that he was taking some fairly sweeping temporal liberties. I’m not arguing that it’s all merely a storm in a teacup, just that we need to keep the discussion in context.