TERRA
NULLIUS AND THE SETTLED COLONIES THEORY
David Hornby
Today,
the perspective and context has changed as the legal validity and
significance of English settlement of Australia is under close
scrutiny. This is shown particularly by the Mabo
decision of the High Court. The historical problem which has largely
been remedied by Mabo
was the legal fiction that when Australia was first colonised it was
terra
nullius (empty
land), and therefore, was treated as a settled
colony, as
distinct from a conquered
or
ceded
territory.
On
the other hand in New Zealand the UK Parliament was obliged to sign a
treaty with the Maoris.
Terra Nullius was an entirely convenient doctrine to support white
settlement in Australia, for on that basis the British could claim
both sovereignty and ownership of the land. This, led to the
dispossession of the original Aboriginal inhabitants of their land.
Under Mabo,
although Britain had "radical" title to Australia, it did
not inherently have "beneficial" title over native lands
and therefore native title remains intact where land was not
alienated or used for a purpose contrary to native title.
The
general principles for the introduction of British law into a
'settled', as distinct from a 'conquered', colony were articulated by
Blackstone in 1765, and Blackburn J in Milirrpum
described the distinction as follows:
There
is a distinction between settled colonies, where the land being
desert and uncultivated, is claimed by right of occupancy, and
conquered a ceded colonies. The words 'desert and uncultivated' are
Blackstone's own; they have always been taken to include territory in
which live uncivilized inhabitants in a primitive state of society.
The difference between the laws of the two kinds of colony is that in
those of the former kind all the English laws which are applicable to
the colony are immediately in force there upon its foundation. In
those of the latter kind, the colony already having law of its own,
the law remains in force until altered.
This
distinction had originally been confirmed by the British Privy
Council in Cooper
v Stuart (1889)
14 App 286 at 291 where it was pointed out that NSW had been regarded
as a 'tract of territory, practically unoccupied, without settled
inhabitants or settled land, at the time when it was peacefully
annexed to the British dominions'. What this meant, of course, was
that Aboriginal tribal law and land rights could be conveniently
disregarded. Murphy J of the High Court had scant respect for the
settled
colonies
theory:
Although
the Privy Council referred in Cooper
v Stuart to peaceful
annexation, the Aborigines did not give up their lands peacefully;
they were killed or removed forcibly from the lands by United
Kingdom forces or the European colonists in what amounted to
attempted (and in Tasmania almost complete) genocide. The statement
by the Privy Council may be regarded as either having been made in
ignorance or as a convenient falsehood to justify the taking of
Aboriginal land (Coe
v Commonwealth (1979) 24 ALR
118 at 138).
A
related problem of early colonization was the question of Aborigines
in relation to the law, and this question too, hinged on the settled
colony theory.
Since Australia was deemed to be 'uninhabited' (however bizarre this
might seem) there could obviously be no prior existing Aboriginal
law, so it was taken as axiomatic that British law came to Australia
as part of the 'invisible and inescapable cargo' of settlers. The
context of law was mentioned above and the history of Aboriginal land
rights claims in the courts well illustrates the gradually changing
community attitudes towards these basic claims.
In
its landmark 6 1 judgment in Mabo
v Queensland (1992)
66 ALJR 408, the High Court finally put an end to the elaborate
fiction of terra
nullius.
Mabo is now the law in Australia so that Aborigines did possess
property rights prior to British settlement, and still have property
rights as native title where their claims have not been overridden by
subsequent government actions and land uses:
Where
the Crown has validly alienated land by granting an interest that is
wholly or partially inconsistent with a continuing right to enjoy
native title, native title is extinguished to the extent of the
inconsistency. Thus native title has been extinguished by grants of
estates of freehold or of leases but not necessarily by the grant of
lesser interests (eg authorities to prospect for minerals) (Mabo v
Queensland (1992) 66 ALJR 408 at 422).
2