Critically examine the terra nullius doctrine in terms of its role and significance in Australia’s settler-colonial history.

Introduction

There is no one story about what happened in relation to how the Australian territory was acquired by the British colonial powers. It can be viewed as a mixed-bag of contradictory and politically expedient historical truths, with each of them having a link to the international law framework for keeping with the ethical beliefs and political expedience of the people. There are numerous examples of people being enslaved by the law and subjected to inhumane treatment while the law protects their oppressors. One such case is the application of terra nullius in Australia by the British colonizers. This paper considers this view via a critical assessment of the doctrine of terra nullius as it relates to its role and significance in the settler-colonial history of Australia. To do this, it starts with a conceptualization of the doctrine of terra nullius, defined as "no man’s land," or the legal power to take over possession of something that has no legitimate owner. This review looks at whether Australian land was uninhabited before the colonizers came and to what extent the doctrine of terra nullius can be considered applicable in the Australian context. Going further, it analyzes its role and significance in the relationship between the settlers and the colonizers that now make up the majority of the population of the continent.

A critical examination of the terra nullius doctrine and its role and significance in Australia’s settler-colonial history.

Terra nullius simply means "nobody’s land". As a doctrine, it has been part of the laws of different countries since the inception of western democracy. Being a word derived from the Latin language, so it appears to derive from Roman Law, which states that one can claim ownership by seizing something that no one legitimately owns (Jagot, 2017).This is possibly the reason why such a concept was attractive to the European empires in the course of their expansion, as they continued to push for political and trade dominance in the 17^th and 18^th centuries. However, even during this era, the rule of law relating to terra nullius had more of a private domination (Jagot, 2017).

In the case of Australia, Captain Cook got the instruction to take charge and possession of the great southern land and it should be based on the consent of the locals (natives) or, if they find themselves in a situation where the country is unhabituated, they should take full possession of such land (Jagot, 2017). Cook saw numerous Aboriginal people living in Australia upon his arrival, but being from England, where the population has been densely as a result of intensive agricultural techniques being used within its geographical sphere for centuries, it was clear evidence that such a land (like Australia) that offered the English some sort of permanent cultivation for agricultural purposes of habitation would remain untouched and unrecognized – and this is how Australia came to be.

It is now widely recognized that this perception of a lack of permanent cultivation and habitation was wrong. It is shown in the archaeological records that the Australian aboriginals crossed from Papua New Guinea to the Australian shores about 65,000 years ago (Reilly, 2002). It is also known that they occupied all parts of the continent. It was evident that all parts of the land, notwithstanding how inhospitable they might seem, were merged into the Aboriginal people’s complex spiritual, social, and cultural network. Also shown in the archaeological is the fact that these Aboriginal people cultivate these lands, making use of them for grazing their animals, planting, mining minerals and soils, including evidence of an extensive trade network. Therefore, Australia was actually far from being a "no man’s land," as it was a land that was already being occupied by certain people, united through their cultural elements, and continued uninterrupted for as long as anyone could imagine (Australian Broadcasting Corporation, 2003).

The doctrine of terra nullius was imposed on the continent by Australian law, which it inherited from England, and it is still the same law that declared the doctrine as void (not applicable). It represents the hallmark of a society where the compact of existence as established under the rule of law with such strength and ubiquity does not ever receive questioning. Although there isn’t a consensus definition of the rule of law, a central element to its concept and content is that it is the main compact between the citizenry of a nation and the government they live under a common set of requirements that are supposed (known) to apply to all individuals and the state in equal proportion.

Although wrongly applied in the context of Australia, terra nullius dictated (and still does to some extent) how Aboriginal Australians people and the Australian nation related up to the moment it was declared inapplicable by the Australian High Court. Based on the doctrine of terra nullius, Australian common law could not and did not recognize the customs and laws of the Aboriginal Australians people. Therefore, it should be clear from such a declaration that, under such setting and until 1992 after the Mabo decision, the Aboriginal Australians  people owned the Australian land, and such ownership would have being in conflict with existing legal doctrine. That doctrine, coupled with some other laws, caused great harm to Australian society, with its impact is still being felt today, notwithstanding that it has been over 20 years since the doctrine was declared inapplicable in Australia by the High Court (Shepherd, 2018).

The role and significance of this doctrine in settler-colonial history mainly manifests in the form of harm. One kind of such harm is silence. It is acknowledged by the country, which is now commonplace in public events, that the history of the Aboriginal Australian is wrapped in silence; at least based on the view of many Australians, even if the majority of them are non-Aboriginal people (Crotty, 2018). There is a constant, designed by the government, to erase the Aboriginal Australians people entirely from the map of Australian history. One major reason why this silence continues to prevail is that the majority of the Australian population do not know nor understand their history (Haebich, 2015). While it is not clear whether or not things have changed, what can be established from history is that the NSW State School system in Australia, from the 1970s to the 1980s, featured a turgid deception and recitation of the so-called "discovery", with debates dominant in areas of exploration, occupation, conscription, Gallipoli, and WW1. Students in that era were not taught anything about the history of the Aboriginal Australians people, especially about how they resisted the occupation of the Europeans. The pictured wars in the country show more of those that exhibited an appetite for land, leading to the expansion of European settlement across the continent; nor was there any mention of the depredation that Aboriginal Australians people experienced through cardiovascular and other kinds of diseases that they never experienced prior to the coming of the Europeans (Maddison, 2013).

Such history hides the fact that the Aboriginal Australians people were used as substitutes for serfs in the pastoral industry, also hiding how they were not allowed to hold the benefit of general enfranchisement that all states in the Commonwealth enjoyed for all voting purposes till 1965. The history also reveals that these people were not considered to be citizens of Australia down to the 1967 Constitution referendum (Pascoe, 2018).

For the indigenous Australians, being deprived of their sovereignty is the main feature of how they relate to settler society, as such deprivation constituted the basis for British colonialism. Therefore, it is imperative to consider how this elimination of the Aboriginal Australians peoples in Australia as sovereign entities was first established in international discourse even before the colonization process could be manufactured. The essence of grounding the sovereignty of these Aboriginal Australians people on international law was based on the selfish desire of the European powers to have and enjoy exclusive access to a given colony over that of other European powers, as the process of international law was used to claim litigation of such territory (Evans, 2009). To be precise, it has been revealed by recent critical legal scholarship that the colonial origins of the doctrine of sovereignty itself are based on major components of international law. Instead of being a governing principle that regulates how European powers relate, evidence suggests that the doctrine of sovereignty was developed as an exclusionary principle that can be applied against non-European societies with the intention of the European powers' expansionist agenda (Anghie 2006).

Therefore, aside from taking the sovereignty of Aboriginal people away from them, the European powers (Britain in particular) enacted laws into the Australian constitution which were designed to silence the Aboriginal people and continually deprive them of their lands, converting their resources and land at will in order to fulfill their selfish desires (Van Der Walle, 2018). Thus, this is what regulates settler-colonial relationships till date as the Aboriginal Australians people are traitors who have made life so miserable for them and continue to deny them the essence of life. There is still a big gap between the Aboriginal Australians people and the main stream Australians in all ramifications of life, with the Aboriginal Australians people mainly being deprived of basic resources necessary for living a standard life. This relationship, although efforts are being made by the government to change the conundrum, is expected to continue for many more years to come as the trust has been destroyed beyond imagination and the wounds are still fresh in the minds of the Aboriginal Australians people.

Conclusion

The principles of sovereignty and common law, although shaped in such a way to look democratic and protective of the general human race, have over the years been exposed as a tool used by the European powers to expand their territorial claims. This includes the adoption of terra nullius as a ground for annihilating Aboriginal Australians peoples and taking over their lands, even when these people have been inhabiting the land for many years under the doctrine of terra nullius. Although the doctrine has been declared inapplicable in Australia, the daily activities in the country still manifest the nature of the blurred relationship between the settlers and colonizers. There exists an extensive gap of trust, which will take numerous while the changes are not yet visible, the discrimination was very visible in the 1970s and 1980s, when Aboriginal Australians people were denied all forms of political participation, barred from voting in the Commonwealth of Nations, and subjected to various forms of government institute discrimination, including healthcare. Today, Aboriginal Australians people find it difficult to access mainstream health care services and facilities because of the lack of trust between them and the colonizers. While it is not certain what the future holds, it can be concluded that past experience shows that the Aboriginal Australians people passed through immense pain in the hands of the colonizers and it still dictates their present relationship today.

References

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