Was Australia ‘invaded’ by the British? I previously answered this question in detail in a previous article here. However, the article did not address the popular and misunderstood claim that British settlement is illegitimate because they did not recognise Aboriginal sovereignty under the doctrine of terra nullius (‘land belonging to no one’).

The idea of terra nullius was immortalised in 1997 when Dennis Denuto in The Castle famously said in reference to the Mabo high court decision, ‘It’s the vibe of the thing, your Honour.’ It just seems to make sense. Or, as one ABC article on Australia Day argues, ‘There has been great strides take place in the understanding around the formation of so-called Australian society on Indigenous land under the domain of Terra Nullius.’ Most people seem to think it is just the ‘vibe’, and use it to question events like Australia Day.

But was Australia really founded on the idea of terra nullius? In short, no. The term did not exist until the late 1890s and is inadequate to explain the full practical justifications for British colonisation.

Origins

So how did the doctrine of terra nullius come about? In 1981, Alan Frost was the first historian to put forward the argument of terra nullius to explain why the British Crown failed to recognise Aboriginal ownership of Australia. Frost argued what is now mainstream consensus:

…if the Indigenous had advanced beyond the state of nature only so far as to have developed language and the community of the family, but no further; if they had not yet mixed their labour with the earth in any permanent way, or if the region were literally uninhabited, then Europeans considered it to be terra nullius, to which they might gain permanent title by first discovery and effective occupation.

This argument went on to be accepted my numerous historians and still remains unabated in mainstream public discourse. Essentially, Frost considered the issue of sovereignty as a matter determined by international law. The acquisition of land, Frost argued, was based on three general principles used by Europeans to colonise: conquest, purchase, and discovery (followed by dominion).

The first two require he European power to acknowledge a native right to land, but the last one of discovery does not. To justify the claim, Frost contests that the writings of John Locke and Hugo Grotius represented a growing European perception that native people had not worked the land and therefore did not possess it. And so, the theory goes, when Cook sailed up the east coast of ‘New Holland’ with the instructions:

…to take possession of convenient situations in the country in the name of the King of Great Britain [with the consent of the natives], or, if you find the country uninhabited, take possession for His Majesty.

Cook had to answer two questions, ‘Was it a terra nullius? If it were a terra nullius, was he the first European discoverer of it?’ Frost concludes that Cook discovered that New Holland was terra nullius and the First Fleet made the discovery legitimate by occupying the territory 18 years later. In short, the 18th Century British settler had the ‘inappropriate [legal] criteria’ to negotiate with Aborigines, because they did not recognise them as occupants of the land.

Six years later, one of Australia’s most influential historians, Henry Reynolds, continued this argument in his book The Law of the Land (1987) and cemented the concept into the modern Australian consciousness.

Hence, the concept of terra nullius is nothing short of a challenge to Australia’s legitimacy and national identity. However, many scholars have challenged Frost’s original argument which was popularised by Reynolds. What follows are six reasons why the doctrine of terra nullius is, in my opinion, an inappropriate and anachronistic term that is being misused to simplify Australian History for political purposes.

The term terra nullius did not exist at the time.

Historian Andrew Fitzmaurice writes in his academic article called The genealogy of terra nullius, ‘It is becoming widely acknowledged that the term terra nullius was not used in the eighteenth and nineteenth centuries to justify the dispossession of Australian Aborigines. Terra nullius, it seems, was an impostor. Debate is turning to why we embraced this legal fiction.’ In fact, the term originates from the debate over the race to the North Pole in the 1890s.

As the historian David Ritter points out, ‘When Australia was originally colonised by the Crown, neither terra nullius or any other legal doctrine was used to deny the recognition of traditional Aboriginal rights to land under the common law.’ In other words, it is impossible for any imperial agent to have used the doctrine of terra nullius prior to 1890, because it did not even exist.

Even if it existed, applying terra nullius was practically impossible.

The doctrine of occupation requires a right to own the land, but a claim of possessio only requires the uninterrupted possession of the land. The former is much harder to prove than the latter. As Bain Attwood explains:

By contrast, making claims to possession on the basis of occupation or res nullius could be fraught since it involved an investigation of the grounds upon which the territory could be acquired. This typically entailed answering two questions: first, whether all things in a newly discovered territory had the status of res nullius or whether the natives there had any property claims in those things … second … were there rights of native polities standing in the way of such claims, which was a question that required an imperial agent to find out whether the native people had anything that resembled a sovereign polity.

Put simply, terra nullius was never used as a justification to claim Australia, because it would have required an imperial agent to conduct an anthropological test on each Aboriginal tribal group, or at least a significant sample, and deduce whether the native people had a sovereign polity.

The underlying principles terra nullius are not found in the primary sources.

It could be argued that colonisers may not have been using the term terra nullius, but were essentially using the ideas that would later form the legal doctrine. Defenders of terra nullius use references to possession and discovery to prove their claims. For example, Frost quotes the first legal officer of NSW David Collins, who wrote:

By the definition of our boundaries it will be seen that we were confined along the coast of this continent to such parts of it as were navigated by Captain Cook, without infringing on what might be claimed by other nations from the right of discovery. Of that right, however, no other [European] nation has chosen to avail itself… Great Britain alone has followed up the discoveries she has made in this country by at once establishing in it a regular colony and civil government.

As Attwood point out, this is not a possible reading of the primary sources, ‘…as readers can see for themselves, it does nothing of the sort. Instead, it suggests that the government claimed possession on the basis of both discovery and possessio.’

Claiming sovereignty was about competing with imperial rivals.

When Cook explored Australia, the British government had no intention of colonising or conquering the unknown land. Attwood argues:

The point of claiming possession was merely to stake a claim in case an imperial power might want to establish an interest there at a later point: in time. Moreover… The Lords of the Admiralty directed Cook to ‘take possession of convenient situations in the country’, that is, particular places. This is what Cook did, at least in most of his acts of claiming.

The extent of Cook’s claims on New Zealand and the east coast of Australia were limited to particular places he saw or visited. As Margaret Cameron Ash points out in her latest book Beating France to Botany Bay: The Race to Found Australia (2021), the British were competing for control of the Pacific. Consequently, Cook’s original claims of discovery over parts of Australia were not directed at Indigenous people at all, but rather potential future European rivals.

Colonisation was based on more than one principle.

Lauren Benton and Benjamin Straumann have pointed out that a significant amount of academics have expanded the term terra nullius to mean any claim to land that had indigenous people on it. They contest that a variety of principles such as discovery, occupation, improvement of land, and state of nature are being inaccurately lumped into an overarching theory of terra nullius.  As Bruce Buchan helpfully explains, ‘The argument… [for terra nullius], confuses the application of a recognisable doctrine of international law (belonging to a later historical period) with the influence of more deeply entrenched assumptions in European thought.’ In short, historians have taken the legal doctrine of terra nullius and applied them backwards into the minds and writings of early explorers, rather than vice versa.

The theory did not directly impact imperial practice.

To argue the writings of a philosopher or academic from metropolitan London was playing over in the minds of sailors and soldiers thousands of miles away to legitimise their conquests is to overestimate the importance of ideas in the historical context. In other words, just because a famous person wrote it, does not mean British subjects believed it. As Stuart Banner points out, the writing of John Locke and his theory of natural law applied to the process of colonisation was ‘an exercise in high theory’ that had scant influence on land policy conducted by settlers who would have ‘known [that] Locke was wrong’. As Bain Attwood explains, imperial agents ‘usually had a highly imperfect understanding of legal concepts’. It is therefore more important to understand what the British encountered in reality, not in theory. See here for a whole article on the practical reasons for British colonisation.

Conclusion

So, if the doctrine of terra nullius is inadequate to explain British colonisation, why did the British not form a treaty with Aboriginal peoples and legitimise their sovereignty? Attwood helpfully explains:

In order to understand how and why native sovereignty or property rights were treated in a particular manner in any colony, historians must investigate instead the circumstances in which an imperial power first made claims of possession and more especially the period of time that passed between that moment and the point it decided to assume sovereignty.

I have answered this question in another article here. In summary, the British Crown could not make a treaty with Aboriginal peoples, even if they wanted to. Regardless, the assertion that Australia was invaded under the legal cloak of terra nullius is simply not true. We should resist the temptation to simplify our history into anachronistic slogans and try to imagine what it really would have been like for both early settlers and Aboriginal peoples when they first encountered each other. Without a sense of empathy for both parties involved we will never understand our shared history.