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In denial over dispossession

10 May 2006 - Michael Connor's claims lack credibility, writes Henry Reynolds

MICHAEL Connor opens his book, The Invention of Terra Nullius, by observing that after he had finished his PhD he visited the law library of the University of Tasmania, sought out documents about the founding of NSW and could not find any mention of terra nullius.

Is this credible? That even after writing a doctorate on early colonial history he was so unfamiliar with the basic documentation that he expected to find the term terra nullius and was genuinely shocked when he didn't? I know of no historian or jurist who has written on the subject during the past 20 years who has said that the term was used in the late 18th century.

There may well be some people who have this impression, who think the term was coeval with the first European settlement. Perhaps those using it should have anticipated that some people would become confused. But the use of new terms for past events and concepts is inseparable from intellectual life. All disciplines and all areas of study can produce examples of the practice.

It is rarely necessary to remind readers that a term is more recent than the reality to which it refers. Historians write about the past, but they address a contemporary audience using contemporary language. Economic historians use many modern terms to describe the economies of earlier times.

One of the best-known books on the economy of early colonial Australia uses, within a few pages, such terms as business cycle performance, gross domestic product per unit of factor input, internal production function, annual input series, systematic exchange pricing and land resource ratios. But no one expects economists to explain that these terms were not in use in 1810. We take it for granted. Terra nullius is just such a contemporary term used to describe an old reality.

The cognate term territorium nullius was used in the late 19th century to describe the situation where European powers were taking possession of African colonies with the claim that the local people did not have sovereignty, although their land ownership was recognised. The term was almost unknown in Australia because it did not seem to have any local relevance. It became less relevant in the rest of the world once the era of imperial enlargement came to an end.

The distinctive feature of Australian settlement was that the British recognised neither Aboriginal sovereignty nor land ownership: Australia was both a territorium nullius and a terra nullius. The terms became relevant, and entered circulation, only when the question of Aboriginal land rights emerged in the 1960s. It made sense to refer only to terra nullius. And that is what Australian historians and jurists did, because it was a convenient term and none other existed. People used it in a variety of ways, sometimes confusing sovereignty and property. But the general understanding was clear: terra nullius described the situation in 1788 when the British failed to recognise Aboriginal property rights and so perpetrated one of the greatest expropriations in history.

Historians did not impose terra nullius on a hapless legal community. They didn't lead the High Court astray, and to suggest they did insults the professionalism of the court and the intelligence of readers. The fact that six of the High Court judges used the term confirms its usefulness and gives it the sanction of the highest judicial authority in the country. We should go on using it.

Connor's argument about terra nullius is either inconsequential or ridiculous. If he is saying that in recent times Australians have come to use a phrase that was scarcely known a generation ago, it is a matter of little importance. If, on the other hand, he is saying that Australian settlement did not begin with the judicial dispossession of the Aborigines, one can only wonder where he learned history.

Connor has nothing to say about native title: there is not even an entry on the subject in the book's index. This is extremely important, because native title was the central intellectual thread running through the Mabo judgment; misunderstand native title and the case may well seem insecurely based. There is no excuse for not pursuing the question of native title. In the past 30 years there has been a highly sophisticated debate on the subject among legal historians in the US, Canada, New Zealand, Australia and Britain.

There are 20 to 30 articles that are required reading for anyone seeking to understand the development of thinking about native title and its application to Australia by the High Court.

Neither Connor's text nor his bibliography suggests that he has read any of these works. More serious still is his failure to read the large body of relevant court cases. Native title has been the subject of many judgments in all the leading common law jurisdictions since the early 19th century. For the High Court justices this jurisprudential tradition was fundamentally important: this is where they found their precedents, and this is why they made their decision. They make this clear in almost every page of the Mabo judgment. And they document their dependence abundantly: they cite more than 150 cases in their footnotes, many of them from overseas. Not all were of equal importance, but 15 to 20 leading cases are referred to many times.

These are essential reading for anyone seeking to understand Mabo. There are no shortcuts; anything less fails to respect the reasoning of the court, which was built up on precedent.

No doubt it will come as a surprise to many readers to learn that Connor has read none of the native title cases. We learn from his bibliography that he consulted only two cases from outside Australia. What are we to make of this extraordinary omission, this failure to carry out rudimentary research relating to the central point of his thesis? It seems that Connor simply did not understand what the Mabo case was about. To take the High Court to task and condemn the judges' decision when it would appear that he did little more than skim through the case looking for references to terra nullius seems little more than sheer effrontery.

If Connor can tell us little of value about Mabo and even less about native title, what are we left with? Politics cannot be subtracted from the Mabo judgment. The six judges who supported the majority decision made it clear that they believed Australian settlement began with an injustice - the failure to recognise Aboriginal native title - and that this was a situation almost without precedent in the British Empire. They thought that such an injustice should no longer disfigure Australian law. Many Australians commended them for their decision, as did jurists from other common law countries where native title had always been recognised. The Mabo judgment was seen as one of the few concrete achievements of the era of reconciliation.

Connor disagrees. In The Invention of Terra Nullius he has a different story to tell: one that is distinctive to the point of eccentricity. He believes that the deep divisions between blacks and whites do not come from the past but are instead of recent origin. The problem is not the actual dispossession but the use of terra nullius to describe what happened. It is the words that cause the trouble. Terra nullius was an offensive phrase to Aboriginals; it was a savage abstraction that tore a wound in the fabric of society. The wound could never be healed because terra nullius was a lie. It was used again and again to offend and stir up hatreds. It created a gulf wider than Carpentaria to separate Australians to the end of our history.

The problem of injustice, it would appear, derives not from what actually happened in the past but from those who dare to speak its name, and who use the fateful words terra nullius.

If only the historians had kept quiet, everything would have been all right. Some "tactful forgetting" is all that is needed to usher in the better days. Remove terra nullius, Connor declares in his peroration, and a "new historical landscape is visible as the sun burns off the fog of the old history".

This is an edited extract from Henry Reynolds's essay A New Historical Landscape?, published in the May edition of The Monthly magazine. Henry Reynolds is an Australian Research Council senior fellow in the school of history and classics at the University of Tasmania.

Historians decry rival viewpoints

By Bernard Lane

10 May 2006 - A NEW school of right-wing nationalist historians has emerged to undo a decade's work of Aboriginal reconciliation, historian Henry Reynolds has warned. "The Aboriginal past, rather than provide an avenue for reconciliation, has become the location for angry disputation," Professor Reynolds says.

He blames the Howard Government and a new "right-wing nationalist" school of historians led by Keith Windschuttle, author of The Fabrication of Aboriginal History and publisher of The Invention of Terra Nullius by Michael Connor.

Both books sharply criticise the history of Aboriginal and European relations written by Professor Reynolds, who mounts his first significant defence against Dr Connor's book in the latest edition of The Monthly magazine.

Dr Connor argues that everyone from the High Court to the general public has been misled into believing that the doctrine of terra nullius, suggesting a legal vacuum in ownership of land, underpinned British occupation of Aboriginal Australia.

He says that especially during the post-1970s era of land rights, Professor Reynolds and others gave the impression that terra nullius was a term with a colonial pedigree and muddled its meanings.

But Professor Reynolds says in The Monthly that Dr Connor had launched "the most vehement and ill-considered" assault on the High Court's Mabo and Wik native title judgments, which were "the most enduring legacy" of reconciliation.

He says that using a more recent term such as terra nullius to describe what went on in the past was part and parcel of intellectual life, just as economic historians might discuss the "business cycle performance" of colonial life, even though that term would have been unknown in colonial times.

"The general understanding was clear: terra nullius described the situation in 1788 when the British failed to recognise Aboriginal property rights and so perpetrated one of the greatest expropriations in history," he says.

"I know of no historian or jurist who has written on the subject over the past 20 years who has said that the term was used in the late 18th century." However, Professor Reynolds does concede that "perhaps those using [terra nullius] should have anticipated that some people would become confused".

Last week Dr Connor said it was quite true that terra nullius was a more recent term used to describe the past but this should have been openly acknowledged when it was being used anachronistically in the '70s and '80s.

In his essay Professor Reynolds says Dr Connor simply had not come to grips with the landmark Mabo decision.

Dr Connor said he had not set out to write a book about native title. "I'm interested in terra nullius, how the courts have used it and how the historians have used it," he said. "[Professor Reynolds] has avoided what my book's about."

Professor Reynolds suggests that the Windschuttle school - Connor is the only other member mentioned - is obsessed with the footnotes, typos and political agendas of other historians.

Source: The Australian

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