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Smokescreen nullius

A former chief justice rejects the importance of terra nullius in the Mabo decision, writes Deborah Hope

25 February 2006 - WHEN historian Michael Connor published his book The Invention of Terra Nullius, attacking the 1992 Mabo decision in December last year, history wars aficionados from each side came out to cheer and jeer.

University of Adelaide scholar Wilfrid Prest took Connor to task for the "extraordinary animus" he found in the book towards "state-salaried historians" and "history warlords".
Christopher Pearson, a columnist with this newspaper, went into print in January with the charge that terra nullius - or land belonging to no one - was a "a piece of stage machinery" introduced by historian Henry Reynolds "to help sway ignorant judges' minds about 200 years of settled land law". Conservative lawyer David Flint also jumped into the inflammatory debate, positing that farmers and miners "who have paid for Mabo, and are still paying" may have grounds to sue.

Now, in a rare interview, Anthony Mason, chief justice of the High Court from 1987-95 and in the hot seat during Mabo, has spoken out in defence of the land-rights decision, claiming Connor has got it all wrong.

In the Mabo decision, a 6-1 majority of judges found that native title had not been wiped out for unalienated traditional lands, establishing the basis for the passage of the landmark Native Title Act, and rejected the doctrine of terra nullius.

Connor, however, contends that the doctrine of terra nullius is a fiction, "an argument of modern land rights politics", rather than the legal foundation of the nation's sovereignty. As such, he claims Mabo is seriously flawed.

According to Mason, 80, Connor's attempt to debunk "the doctrine of terra nullius" and with it Mabo is little more than "a quibble" that makes no difference to the Mabo result. He argues that terra nullius played a very minor role in the decision and that the critical issue in Mabo was not sovereignty, which the court did not dispute, but property rights under common law.

In this, Mason is backed by a range of eminent lawyers who spoke to The Weekend Australian this week, variously describing Connor's central argument in The Invention of Terra Nullius as "a red herring", "confusing" and "a storm in a sherry glass".

At face value, the tussle between an historian and a clutch of distinguished lawyers over whether the common law or international law formed the foundation of the Mabo decision seems arcane. In reality it goes to the heart of Australia's culture and history wars, in which the Mabo decision is a flashpoint.

According to Connor, in the history of ideas, terra nullius was a damaging "modern critique of the modern authority of Australia. It was a concept that supported the history, the politics and the careers of a middle-class intellectual elite. Sadly, it didn't exist".

Mason demurs. He says the fact that terra nullius didn't exist as a concept by the time of Captain Arthur Phillip's arrival in 1788 is "a quibbling point" and that "the ideas that lie behind the concept had been around for a very long time". The "doctrine of terra nullius", he argues, gives expression to ideas that had been discussed by international lawyers such as Emmerich de Vattel in his 1797 volume The Law of Nations.

In any case, argues Mason, "what the British thought about its international law grounds for establishing sovereignty over Australia, for annexing Australia, is beside the point." It wasn't a critical issue in Mabo, he says, "because the court accepted that Britain had established sovereignty over Australia" and didn't contest that reality.

Responding to Connor's claim that the invention of terra nullius renders the Mabo decision fatally flawed, Mason says: "If the Mabo decision was all about the doctrine of terra nullius he might have a leg to stand on. But if you look at the 160 pages or so of the judgment, the references to terra nullius occupy fairly few."

According to Mason, the judgment deals with "another question altogether: does the common law (as applied in the Australian colonies) exclude altogether the rights of the indigenous people so that forever the rights they formerly had are excluded?" In resolving that question with a loud 'no', the court referred to several cases, beginning with an 1847 judgment by NSW Chief Justice Alfred Stephen, which held that the land rights of indigenous people had been extinguished.

At the crux of the court's thinking was a Privy Council decision in the 1889 Cooper and Stuart case. Says Mason: "Lord Watson said there was a principle that the rights of indigenous people didn't prevail in cases where the colony was practically unoccupied, without settled inhabitants and without settled law. He went on to say NSW was such a colony."

In 1992 a majority of the court decided Watson was wrong and his decision "inappropriate to the situation of NSW", "unjust and discriminatory" and "based on a mistaken fact". In other words, says Mason, "the ideas behind terra nullius were not totally irrelevant but they weren't critical to the decision at all".

In Connor's sights is the embattled Henry Reynolds. 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", says Connor. In Reynolds's 1987 tome The Law of the Land, he goes on to argue, "terra nullius became the beating organ of colonial law pumping bile from Sydney Cove across the continent, and on into the present".

Reynolds's work was referred to twice in the footnotes to the Mabo judgment written by justices William Deane and Mary Gaudron. By comparison, some 12 references were accorded to Canadian law professor Kent McNeil's 1989 volume Common Law Aboriginal Title.

"Mabo, [my] book argues, was flawed because that 'fundamental reinterpretation', based on terra nullius, and Reynolds's historiography, was flawed," says Connor.

Mason, however, denies his court came under the influence of Henry Reynolds's version of history. "Anti-Maboians [have] always said the court fell under the influence of Henry Reynolds, and Henry Reynolds was wrong. Now, I see this as a means of historians getting into the debate. They see references to Henry Reynolds, they make it a big issue as to whether Henry Reynolds is right, and they say here's this man, he had misrepresented the position and he's caused the High Court to go off on a false trail.

"But I'd be astonished if the members of the court were influenced by Henry Reynolds. I must say, as far as Henry Reynolds is concerned, I've never read his books. I think we were referred to some passages in his books in the course of argument in the materials, and I remember reading two or three pages, but I wasn't very impressed by Henry Reynolds."

For his part, Reynolds describes the idea that The Law of the Land influenced the court to change the law of Australia "as a flattering fiction, but it's a fiction", and an "insult" to the court. Connor's book indicates a fundamental lack of awareness about how courts work. "The only influence I had was in the very beginning when I encouraged [Eddie] Mabo to have a court case," Reynolds says.

According to Reynolds, Connor's argument has "no cogency" beyond the fact that "as far as we know, terra nullius wasn't used when Australia was first settled".

"A new term for an old reality" is how he refers to the two words terra nullius.

"It's completely analogous to economic historians talking about the GDP of colonial society. No such term existed in colonial society, but that doesn't mean we can't use it now to discuss the reality then."

Connor is "half right" on terra nullius, according to Greg Craven, the executive director of Perth's John Curtin Institute. Despite this, he says the historian's argument is a historical "debating point" that "just doesn't matter" and is "not convincing as a way of knocking Mabo off".

"You can argue about Mabo that it didn't follow precedent, that its results were not as good as hoped, but not on terra nullius," he says. "It's not one of its more important aspects. Mabo rests on its foundations. I think it's just a storm in a sherry glass."

University of Queensland Professor of Law Suri Ratnapala, Emeritus Professor of Law at the University of NSW Garth Nettheim, and Michael Lavarch, the lawyer who was the Keating government's attorney-general at the time of Mabo, are in accord with Mason and Craven.

"You can shove the phrase terra nullius out of the way and it has no consequence," says Nettheim. He says the British Admiralty's "secret" 1768 instructions to Captain James Cook regarding his search for the Great South Land are instructive. They say: "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 the first discoverers and possessors."

In other words, says Nettheim, in taking the latter course, the equivalent of deeming Australia terra nullius, Cook was carrying out British Imperial policy.

"A red herring," offers Lavarch of Connor's terra nullius thesis. "It doesn't change anything regarding the validity of the High Court's decision or the way governments are obliged to respond. It would have been a very odd decision if it found there was no such entitlement in Australia. [The issue] came to Australia's highest court very late in the piece."

Taking up the argument, University of Sydney historian Andrew Fitzmaurice accuses Connor of historical sloppiness for failing to "excavate the origins" of terra nullius, "preferring, it seems, to 'invent' them".

According to Fitzmaurice, natural law, "the basis of international law", was the principle used to justify colonisation from the 16th to the 20th century. "One of the foundation stones of natural law was the principle that anything that belongs to no one is the property of the first taker ... producing the argument that Aboriginal peoples had not exploited nature sufficiently for them to have created extended property rights, let alone sovereignty."

Terra nullius is one of the "oldest legal concepts" and there is nothing fictitious about it, argues Barbara Hocking, a retired Melbourne barrister who worked on the Mabo case, in a letter to The Weekend Australian.

In an extract from his book published in these pages last month, Connor claimed Hocking had proposed an Aboriginal group mount a High Court challenge at a 1981 land rights forum in Townsville, in effect securing herself a job.

Hocking points out in her letter that she worked pro bono on the case "until our solicitor managed to obtain special funding for the test case that Mabo had eventually become".

Responding to the critique of his work, Connor said yesterday: "It's one thing to say [the court] would have arrived at the same decision in Mabo without terra nullius. But [terra nullius] is the moral underpinnings of the decision. In an address to the nation in 1993, for example, then prime minister Paul Keating had asserted: "The lie was terra nullius ... The truth was native title."

"I suggest we really are talking about a term that has a meaning, and it's one of sovereignty. We have got the basis of our sovereignty wrong.

"We've both, historians and lawyers, got things wrong, and it needs looking at again."

Source: The Australian

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