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High Court challenged

In 1975, the UN asked the International Court of Justice for an advisory opinion as to whether the western Sahara had been terra nullius at the time it had been colonised by Spain in 1884. Decolonisation, not colonisation, pushed this odd phrase into the modern world. In 1977 terra nullius took root in an Australian court room when 28-year-old Paul Coe from the Redfern Legal Service, a man of Aboriginal-European descent, tumbled terra nullius into his High Court case against the commonwealth government claiming restitution and compensation for Aborigines.

He presented a range of propositions favourable to the recognition of Aboriginal rights, including a statement that Australia had not been terra nullius at the time European sovereignty was asserted. No one in the 18th century had said it was. Coe had not found terra nullius in the Historical Records of Australia [a scholarly series and a recognised source] but in the ICJ's advisory opinion on western Sahara. Before then few Australians had ever heard the term.

In 1770 James Cook sailed along the east coast of Australia, mapped it and claimed the coastline he saw for Britain. Cook did not think it was a particularly great acquisition. What came next, historians dispute. For some the decision to place settlements at Botany Bay and Norfolk Island was taken in order to have strategic bases on the edge of the Pacific. For others the distant land, though not the first choice, was selected as a place where British criminals could be transferred from Britain and dumped, with some hope that by their own efforts, and with some government supplies, they would survive.

Aboriginal dispossession was the fact, terra nullius was a misunderstood theory used to explain it. The savage abstraction tore a wound in the fabric of society that conciliation could never mend, because it was a lie. An argument of modern land-rights politics, terra nullius was not the legal foundation of the nation's sovereignty.

In 1970 Charles Rowley published The Destruction of Aboriginal Society. His book updated the tragic version of Australian history, but did not mention terra nullius. He explained land policy in terms of British organisational practice: "The legal device of declaring all land initially crown land was a matter of administrative convenience, because it is always best to clear the way for policy-making by having a tabula rasa [a blank surface] - especially as the British well knew, in dealing with land matters."

By 1982, when he wrote the foreword to the Penguin edition of Henry Reynolds's The Other Side of the Frontier, Rowley's history had changed: "The white Australian legal system was established on the basic doctrine of terra nullius - the assumption that the continent was not 'really' occupied." This is not what he had said only 12 years before.

In the mid-1970s Liberal politician Neville Bonner argued in the Senate for recognition of the Aborigine's prior ownership of the land, and did so without using the term. When he returned to the topic in 1994 his examination of British settlement began with terra nullius.

Terra nullius was never a law, or a clearly expressed and accepted doctrine. Over the centuries when theorists considered how territory could be acquired, different opinions and theories were put forward. The beginning of our encounter with terra nullius may be traced to Lausanne, Switzerland, in 1888. One hundred years after the founding of Australia, 13 years before the commonwealth, territorium nullius was discussed during a session of the Institute of International Law as one of the ways in which possession, by 19th-century colonising powers, could be asserted over territories. A committee presented a draft proposal in which there was a definition of territorium nullius: "Any region not effectively under the sovereignty or protectorate of one of the states forming the community of international law, whether inhabited or not."

The definition introduced a discussion about where this placed Morocco, Abyssinia, the sultanate of Zanzibar and the Egbas, half a million people living between Dahomey and the Niger. An amendment was introduced changing the wording to regions not "under the sovereignty or protection of a state". However, the delegates, aware of the complexities of such a ruling, voted to suppress it from the final declaration they later adopted.

Territorium nullius survived Lausanne as an intellectual proposition concerned with sovereignty sometimes found in texts and essays considering international law. Before the '70s the phrase terra nullius was not used in any Australian court, but it did occur in the work of at least two Australian legal theorists.

In 1965 Professor D.P. O'Connell, professor of international law at the University of Adelaide, used Australia to illustrate occupation as a way of acquiring territory in his textbook International Law: "Since the Australian Aborigines were held incapable of intelligent transactions with respect to land, Australia was treated as terra nullius." O'Connell did not define the phrase, and he did not say Aboriginal Australia was terra nullius but that it was treated as such.

In 1968 barrister Elizabeth Evatt used territorium nullius in a discussion of the British acquisition of Australia and New Zealand. In her conclusion she wrote that "the rules concerning the occupation of a territorium nullius seem inept to deal with the assertion of sovereignty over a backward people without any regard for their interests." Like O'Connell, her discussion had touched on British actions which, she claimed, were tempered by local conditions: "Although a state might prefer to obtain some form of consent where there is an organised community with a recognised chief, this was impossible in the case of Australia, inhabited by scattered unorganised tribes."

In the High Court, Coe claimed Cook and Arthur Phillip "wrongfully treated the continent now known as Australia as terra nullius whereas it was occupied by the sovereign Aboriginal nation". Justice Anthony Mason found the claim unarguable because it was "inconsistent with the accepted legal foundations of Australia". Coe produced the western Sahara advisory opinion and Mason tried to keep it out of Australian law and history: "Whatever that decision may say it has no relevance to the domestic or municipal law of Australia based on the Constitution which this court is bound to apply." Years later Mason was one of the Mabo judges. He supported a decision, said to have overturned terra nullius, which used the western Sahara advisory opinion to do so.

Coe rightly sensed the usefulness of terra nullius for emerging political arguments in favour of Aboriginal land rights, but when he appealed the verdict of Mason in 1979, his case was a mess. The appeal was heard by four High Court justices. So badly prepared and disorganised was it that Justice Harry Gibbs called it "embarrassing" even as he recognised "that some of the allegations hint at the existence of questions that might be regarded as arguable".

The court was evenly divided and Justice Lionel Murphy used the western Sahara advisory, ignoring the serious reservations expressed by Mason. Doing so, Murphy lifted terra nullius from Coe's arguments and threw it into modern Australian politics. Murphy made terra nullius - which appeared in no dictionaries or Australian history books and very few texts on international law - seem the accepted legal and historical explanation for Australian sovereignty. Gibbs and Murphy came to different decisions about Coe's case but both recognised that important matters were involved.

Terra nullius brought historians and lawyers together to create a law of the land that could be smashed in order to achieve legal recognition of communal Aboriginal land rights. Terra nullius was not a law, and had nothing to do with our colonial history, yet it was turned into history in order to make modern law.

In August 1981, James Cook University Student Union and the Townsville Treaty Committee hosted one of the most important forums held in Australia. Land Rights and the Future of Australian Race Relations was a three-day conference assembling influential land-rights activists to discuss "the use of international pressure and the possibility of bringing about a definitive High Court decision on the question". The talking led to the decision to launch a case in the courts, about the land rights of Torres Strait Islanders, which became known throughout Australia as Mabo.

Historian Reynolds claimed in his book Race Relations in North Queensland an important role in modern politics for James Cook University and, as its most well-known staff member then, himself: "There can be little doubt that the [university's] history department played a major role in the fundamental re-interpretation of Australia's past which found expression in the Mabo decision." Mabo, [my] book argues, was flawed because that "fundamental reinterpretation", based on terra nullius, and Reynolds's historiography was flawed.

In Townsville in 1981, Reynolds's own presentation to the forum was called "European justification for taking the land" and it indicated his historical thinking at the time. He made no mention of terra nullius and presented ideas different to those he would later use in The Law of the Land. That same year, his book The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia studied Aboriginal resistance but did not explore Aborigines and European law. Claiming to be the result of 10 years' research carried out in Australia and overseas, and bearing a very impressive-looking bibliography, the book never mentions the law as the oppressor of colonial-era Aborigines, and references not a single court case. Stating that his book turned "Australian history, not upside down, but inside out", Reynolds did so without reference to the law.

In Reynolds's version of history six years later, in The Law of the Land, terra nullius became the still-beating organ of colonial law pumping bile from Sydney Cove across the continent, and on into the present: "Terra nullius is still at the heart of the Australian legal system."

But none of the historians, including Reynolds, who took part in the conference mentioned terra nullius then; that arrived at the conference with the lawyers. After lunch on Sunday, the final day of the conference, two legal activists, Barbara Hocking, a Melbourne barrister, and Greg McIntyre, a solicitor with the Aboriginal and Torres Strait Islanders Legal Service, presented important papers. Their contributions came within a segment called A High Court Test Case?, and was the whole reason for the weekend gathering.

Hocking's legal survey was an overview of legal precedents that could be used in courtroom argumentation. Her paper was entitled "Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian Courts". In this discussion she referred to terra nullius and, like Coe, her source was not Australian history but the International Court of Justice's advisory opinion on western Sahara. She said: "The court applied the rule of international law requiring it to look at the state practice of the relevant period (1884) to determine whether or not territories inhabited by tribes or peoples having a social and political organisation were considered to be terra nullius. It advised that the state practice of that time indicated that such territories were not regarded as belonging to no one ..."

The court was not applying a rule of international law but replying to a specific request for an advisory opinion as to whether western Sahara had been terra nullius at the time it had been colonised by Spain.

That weekend Eddie Mabo, described as a teacher at James Cook University's Institute of Advanced Education, also gave a paper. His arguments claimed not communal land rights but individual, family and clan holdings, plus the declaration of the Torres Strait as an autonomous region within the commonwealth.

In the words of conference organiser Noel Loos, Hocking "delivered a paper proposing that an Aboriginal group should consider a High Court challenge, and detailed the international and Australian legal history she believed would support such a claim. She also sketched in many of the major issues that would confront such a legal challenge.

The Murray Islanders returned from a group discussion determined to take up the challenge. Eddie Koiki Mabo became the leading litigant."

According to Nonie Sharp of La Trobe University, the Murray Islanders' meeting held during the conference was "secret" and was attended also by Garth Nettheim, a law professor at the University of NSW. The solicitor and the barrister got themselves jobs. McIntyre was instructed by the Murray Island plaintiffs, and he briefed Hocking. In symmetry of a sort, the case began before the High Court nine months later.

Townsville was a fork in the road in the story of Aboriginal Australian race relations. There had been no road signs, nothing was clearly marked. One side seemed a super legal highway stretching into the future towards the promise of land rights, though different people had different ideas about what that meant. McIntyre noted: "The term does not appear to have been anywhere comprehensively defined." Chris Kirkwright, who identified himself as an Aboriginal law student at the University of Sydney, said: "It's land that gives economic power and it's through economic power that you have some sort of independence from the white person."

White intellectuals sold the idea of land as the great solution to all the problems of Aboriginal Australians. In their imaginations this probably meant returning Aborigines to hunter-gatherer lifestyles or, more likely (as they usually seemed blind to the realities of the savage lifestyle), turning the bush into a cathedral and Aborigines into priests and priestesses of a primitive conservation cult. In the imagination of some black politicians it would transform them into ancien regime landlords with millionaire mining-company tenants. Did anyone really imagine it would solve the late 20th-century problems of real people?

The other road that could have been taken was a sandy track that stretched back to Sydney Cove in 1788. It might have led to a political and realistic conciliation between people, a solution freely entered into by all peoples. Had they all missed the point? Hocking had spoken of "the absence of decisive political action", but the conference had chosen expensive lawyers and divisive arguments. Lawyers' land rights needed dead bodies, injustice, confrontation, ill feeling, hatred and academic experts. The other sandy track could have been taken. The other road needed an Aboriginal leadership not running up lawyers' bills but fighting political fights for modern justice.

The challenge for the historians present was to catch up with the lawyers and develop a mirror-image history to fit the legal arguments. The lawyers provided the skeleton. All the historians had to do was fill in the missing fleshy bits from their research.

In the years to come Reynolds persuasively placed terra nullius as the unstable foundation of the law. It was participatory history, written to transform Australia. It was profoundly naive, incalculably destructive and about matters far more complex than land rights. Later, writing more clearly about his ideas for Aboriginal sovereignty, Reynolds speculated that the existing Australian states "can be cut again to accommodate emerging ethnic nationalism". In 2001, 20 long years after the Townsville conference, some of those who had been present flew north again for a commemorative conference. Organised by the Native Title Research Group, and largely sponsored by the Aboriginal and Torres Strait Islander Commission, it was the second Native Title Representative Bodies Legal Conference -- the first, held the year before in Melbourne, had attracted "over 200 native-title practitioners and others". Townsville had seeded successful careers, for some.

Edited extract from The Invention of Terra Nullis: Historical and Legal Fictions on the Foundation of Australia, by Michael Connor, published by Macleay Press, $39.95. Connor is an honorary research associate with the school of history and classics at the University of Tasmania.

Source: The Australian

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