The Invention of Territorium Nullius

by Michael Connor (Pic below)



Land rights were given to Australia's indigenes by the High Court some years ago. In making its decision, the court appears to have been under the impression that the legal authority over Australia originally asserted by the British government (and subsequently passed on to the Australian government) was based on a claim of "terra nullius". That understanding however was sourced only from the work of propagandizing Leftist historians and the court apparently carried out no legal research of its own -- an amazing omission for a body that takes precedent seriously. Michael Connor was one of those who subsequently pointed out that there was in fact no mention of any "terra nullius" doctrine anywhere until over 100 years after British authority was established. The judges, lawyers and historians have been wriggling ever since. Michael Connor replies below to the most recent wriggles

In "Evidence tailored to fit an argument" published in the Higher Education Supplement (March 15, 2006) Sydney University academicAndrew Fitzmaurice challenged my book The Invention of Terra Nullius.

Fitzmaurice made three major criticisms. Firstly, that I have misunderstood, and misused, the terms territorium nullius and terra nullius. Secondly, that in my use of an International Court of Justice Advisory Opinion I have been guilty of a "distortion of history". Thirdly,that I failed to find the first usage of the term terra nullius - which he claims to have discovered.

Of these charges the first especially is a serious accusation.Fitzmaurice accuses me of misunderstanding and misusing the terms territorium nullius and terra nullius, charging me with "fabrication"and "word substitution". Not guilty. Territorium nullius and terra nullius are the same thing. My discussion of terra nullius begins with international lawyers in Lausanne in the 1880s working out concepts of what they called territorium nullius. I point out this use of language and as I proceed I treat this as terra nullius.

Andrew Fitzmaurice objects. He claims these phrases are very different in meaning. In Fitzmaurice's analysis, "Territorium nullius was coined in 1886 to codify rules for the carve-up of Africa. The very different contexts lent the respective terms different meanings, not the least of which is that one refers to territory (a political entity) and the other to land (a material entity). Territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property.

"Is he correct? Are territorium nullius and terra nullius different concepts? No, they are not, they mean the same thing and Fitzmaurice points to no international law text to support his inventiveness. The law cases he uses, which he thinks support his argument, deal with sovereignty. Legal writers Elizabeth Evatt and Mark Lindley both wrote texts (much used in discussions of terra nullius) in which they used the term territorium nullius to discuss sovereignty. Justice Brennan in Mabo, and Henry Reynolds in his books, rightly interpreted this as terra nullius. Likewise associate professor Bain Attwood, he noted that Mark Lindley was "the author of an oft-quoted text on the subject [terra nullius]", then cited a page in which Lindley used the words territorium nullius - as Lindley does throughout his book.

Will Andrew Fitzmaurice also accuse Justice Brennan, Henry Reynolds, and Bain Attwood of "fabrication" and "word substitution"? As Fitzmaurice argued that terra nullius is to do with land as property, not sovereignty, he referred to Professor Ernest Scott saying that he "made the much-cited first use of the term applied to Australian history".

In Scott's first paragraph he defined terra nullius as "land not under any sovereignty".Not apparent from Fitzmaurice's account is that the word "invention" in my book title refers to the confused meanings which have been loaded onto the words terra nullius. Terra nullius is not a myth, it is a real term in international law theory, and it means land without sovereignty.

In my book I show that other meanings were invented - land without tenure, unpopulated land, sparsely populated land, uncultivated,"a land where nothing exists", "Captain Cook's law", etc.. I suggest invented meanings have created such confusion that shared understanding and accuracy have been destroyed. Just as confidently as he now puts forward his latest idea on terra nullius, Fitzmaurice told Radio National listeners in 2004 that, "Terra nullius means - or res nullius - refers to - uncultivated. It's as simple as that." Having published my book I hadn't expected that a senior academic would come forward, at this late stage in the life of terra nullius, to give a public demonstration of my thesis.

Fitzmaurice accuses me of misusing the International Court of Justice Advisory Opinion on Western Sahara: "It is a strange distortion of history to represent, as Connor does, the ICJ's 1975 western Sahara advisory opinion as the source of modern discussions of terra nullius."

Not guilty. My book is specifically about terra nullius in Australian history. I note earlier usages in this country and my then narrative traces the influence of the ICJ opinion in Australia because it had a clear impact on our law and history writing. - other usages in international law reports were less relevant. Using it I point out that the international judges discussing sovereignty stated that terra nullius had "a very precise meaning".

The progress of the Western Sahara Advisory Opinion through our courts is a fascinating story, with illuminating sub-plots. In 1993 ChiefJustice Sir Anthony Mason said, "the rejection of the doctrine of terra nullius [in Mabo] is entirely consistent with the rejection of that doctrine in the Western Sahara case." Some years earlier he banned its use in his own court because, "it has no relevance to the domestic or municipal law of Australia based on the Constitution which this Court is bound to apply."

Fitzmaurice accuses me of not finding the first use of terra nullius: "What Connor's research failed to turn up was that the term terra nullius was first used in 1909 in the debate over the status of the polar regions."

Not guilty. I traced its origins to the use of territorium nullius in the1880s. But if he is seriously concerned about finding the first use of the exact phrase terra nullius then he has overlooked at least one earlier reference in the nineteenth century. In 1899 the term appeared in The Times in a report on theVenezuela Arbitration then taking place in Paris - and it was used inrelation to sovereignty. The date, and the importance Fitzmaurice attaches to the exact wording in his analysis, negates his claim that the term was invented in the twentieth century - and suggests that more searching of international law cases could prove interesting.

This piece of research is not even my own; my story is about the meanings which have been invented for terra nullius and I did not use it in my book. The citation was sent to me by a non-academic, a person interested in terra nullius, who did a better research job than my academic critic. Fitzmaurice's vivisection of my book was carried out with blunted perceptions of exactly what The Invention of Terra Nullius is about. He says I argue "that the term of terra nullius was never employed in the 18th and 19th centuries and is another case of historical fabrication. For Connor, Reynolds is again the historian the most culpable."

I argue that the term was never applied to Australian colonialism in the eighteenth or nineteenth centuries, but I do not apply the word "fabrication" since I show it being used in the 1880s, and I suggest that it has a very real meaning in international law theory. I do criticise Henry Reynolds, in part because the influential definition of terra nullius he gave in his book The Law of the Land is flawed.

Fitzmaurice charges that, "Connor's inevitable conclusion is that if terra nullius were a myth the legal foundations of the High Court's Mabo judgment look wobbly (although this would assume that the term was indeed important for that judgment)." In my Mabo chapter I show that the judges were confused in their usage of the term, and I criticise their handling of it. The historian best known for calling terra nullius a myth is Bain Attwood - he also called it a lie.

Fitzmaurice asserts that "Terra nullius was certainly not reinvented in the 1970s and '80s by Australian historians motivated by the politics of land rights." I don't say this. I demonstrate that terra nullius entered the Australian High Court in the 1970s and then made its way into our history books and public discussion. As it did so I show that new meanings were invented for it.

Many words in Fitzmaurice's article were devoted to the place of natural law in the dispossession of the Aborigines. My book is about two words and the role they have played in modern Australia. In my index there are more page references to "Fitzmaurice, Andrew" than "Locke, John". When I deal with the history of colonialism I do so to disperse the fog of terra nullius, and consider how the newcomers spoke of and justified their enterprise.

Fitzmaurice claims lawyers "coined" terra nullius to summarise "the natural law understanding of property" and "this is why terra nullius, although crude when used historically because it is anachronistic, was accepted by most Australian historians and by the wider community as a description of the arguments employed to dispossess indigenous peoples."

This particular argument is considered in my book. I suggest it was seized on by historians, to protect their earlier work, only after the usages they had made of terra nullius were questioned. Australians were taught that terra nullius was the language of the eighteenth century, used to dispossess the Aborigines. As late as 2002 historian Richard Broome claimed the "pertinent fact" was that theAborigines were dispossessed "by settlers invoking terra nullius". Meanings were invented for terra nullius which have nothing to do with either international law, or natural law notions. A writer, an example among many, who called it a "land of no people", was hardly referring to natural law theory.

Fitzmaurice's new errors compound his old one about terra nullius meaning "uncultivated" and need to be corrected. The saddest part of Fitzmaurice's defence of the indefensible suggests the crippling of academic enthusiasm and curiosity: "The fact remains that the words terra nullius are absent from the 19th-century historical record. Before the 20th century no person would have recognised the term. Should we, therefore, wipe the slate clean and rewrite the story of Aboriginal dispossession as Connor suggests?

Certainly, but any account of the justification of dispossession is not going to look dramatically different. We would be better off dealing with the history of colonialism and Aboriginal dispossession in English, going back to the sources and telling the story again. Professor Greg Melleuish, in an article in the Higher Education Supplement (January 11 2006) which indicated he had actually read my book, suggested the story could be told in terms of "power and land hunger" - which does not seem unreasonable.

Future histories which explore the cultural clashes and the cultural merging of real people meeting throughout this continent will be a different story to the dull narratives the old historians have attached to a misunderstood legalism. Not guilty of the charges Fitzmaurice brings against me may I, politely, suggest they reveal serious problems with his own work -research into terra nullius supported over three years by a large ARC grant, and conducted within the history department of a leading Australian university.

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Illegal fishing sunk by new rules

This is something that should even make the Greenies happy -- if there is such a thing as a happy Greenie. Australia's very extensive territorial waters are heavily protected from overfishing by Australian laws and therefore ensure extensive habitat preservation for marine species. But Australia's Muslim neighbours need heavy pressure before they will pay any attention to Australia's right to control its own waters and resources. They have negligently fished out their own extensive waters and see no reason why they should not steal fish from Australian waters. The Australian government does however now seem to have got the attention of most of them

MORE warships and planes, greater co-operation from Jakarta and tough new rules allowing the navy to "shoot to sink" the vessels of suspected poachers has led to a 90 per cent drop in the number of illegal fishing boats this year. And those boats that are spotted are more likely to be seized, with a doubling of the apprehension rate, defence spokesman Brigadier Andrew Nikolic said yesterday.

Operation Resolute -- the name given to fisheries protection -- combines the resources of the Australian Defence Force, Customs and Quarantine and the Australian Fisheries Management Authority. Orion spy planes, mine hunters, a missile-armed frigate and Armidale class patrol boats can be called on to enforce the vast northern fishery zone, Brigadier Nikolic said. In the 12 months to June 30, the navy alone had boarded 235 suspected illegal fishing boats, he said. Area surveillance had increased by about 10 per cent.

The figures indicate new federal government strategies to tackle the scourge of illegal fishing were beginning to work, a spokesman for Fisheries Minister Eric Abetz said. "In the 18 months since the ramped-up budget package came into place with an extra $390 million, we've seen a decline (in illegal fishing boat sightings) of around 90 per cent," he said. At the weekend, three Indonesian boats equipped with sophisticated diving gear were seized off Evans Shoal, 320km northwest of Darwin.

Last year's budget measures paved the way for a big boost in patrol hours and the deployment of additional maritime resources for cracking down on illegal fishing. A total of 365 illegal fishing boats were caught last year, compared with 281 in 2005. Still of concern to authorities were the estimated 6700 sightings last year of illegal vessels in Australian waters. While many of these are likely to have involved the same boat, the number is still high and according to federal Labor justifies its policy of a national coast guard service.

The cost for the (Indonesian) owners of losing their fishing boats has proven a decisive factor in the fall in the number of sightings this year, the minister's spokesman said. Relaxed rules of engagement also allow warships to fire on illegal fishing boats if they fail to heed warnings to stop. Education programs in poor Indonesian fishing communities and better co-operation between Australia and Indonesia since the 2006 Lombok Treaty were also helping stem illegal fishing.

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Citizens must score 60pc in Aussie values

A PASS mark of 60 per cent will be enough to became an Australian under the citizenship test to be introduced later this year. The draft Citizenship Test Resource Book released yesterday by Immigration and Citizenship Minister Kevin Andrews contains little that is likely to frighten civil libertarians. To become a citizen, applicants will need to correctly answer 12 out of 20 questions in the test, expected to be introduced later this year after legislation has passed through parliament.

The booklet from which questions for the test will be drawn stresses cultural diversity, freedom of religion, a society governed by the rule of law and a nation of proud sports traditions. Sample questions contained in the 40-page book include: What is the floral emblem of Australia? and, In what year did Federation take place?

"It is important that people wishing to become Australian citizens demonstrate an understanding and commitment to Australia and our way of life," Mr Andrews said yesterday. "A citizenship test provides the means of ensuring that prospective citizens have such an understanding. "Before becoming a citizen it is reasonable to expect that a person will understand the core values that have helped to create a society that is stable yet dynamic, cohesive yet diverse. Respect for the free-thinking individual and the rule of law are the foundations of the Australian liberal democratic tradition."

The new test applies only to those seeking to become citizens, not those migrating and settling in Australia on permanent or provisional visas. Special arrangements will be made for those with low levels of literacy or with special needs.

In a section on freedom of religion, the booklet says: "Australia has secular government with no official or state religion. Religious laws have no legal status in Australia." It also tackles the concept of mateship, saying: "Australia has a strong tradition of mateship -- where people help and receive help from others voluntarily, especially in times of adversity. A mate can be a spouse, partner, brother, sister, daughter, son or friend. A mate can also be a total stranger."

In the section Introducing Australia, the guide describes Australia as a nation of immigrants and says the country's history has been built by the efforts of millions of immigrants from 200 countries. Migrants have added to the rich tapestry of Australia, the booklet says, and have become a vital part of our society.

The ANZAC legend is covered, and so is the vexing history of Aboriginal people and their treatment by European settlers. "There has been great debate about how many Aboriginals were killed in the frontier battles. Many more Aboriginals than settlers were killed," it says.

Intending citizens are warned that Australia is also a "sports-crazy" nation and that of all our sporting heroes Donald Bradman is the best-known. While Australian rules is the dominant style of football in four states -- Victoria, South Australia, Western Australia and Tasmania -- more recently soccer has started to attract a larger following among young people.

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Threats as a way to improve hospital standards??

A LABOR government would seek to slash GST payments to states if they failed to improve public hospital standards by 2009, triggering Kevin Rudd's threat of a commonwealth takeover. The Labor Leader's office confirmed last night his plan to wrest control of state hospitals would involve a reduction in commonwealth payments to the states "from all sources" of funding.

The admission sparked a prediction by Peter Costello that the premiers would never agree to part with GST revenue. "They will agree with Rudd for an increase in the GST rate to make up the difference," the Treasurer said. Under current arrangements, states spend up to $25 billion a year on public hospitals, including about $9 billion in commonwealth funding. The remainder is funded from their own income, which includes about $40 billion in GST in 2006-07. This is expected to rise to $47.8 billion by 2009-10.

Although the Opposition Leader's office made no further comment, any push to seize GST receipts from the states would almost certainly spark a serious battle between the two levels of government. When the new tax was introduced in 2000, states were guaranteed the entire proceeds of the 10per cent consumption tax and the rates were legislated into existence after months of wrangling. News of a possible GST clawback emerged last night after Mr Rudd had earlier committed a Labor government to spend $220million to provide incentives to general practitioners, specialists, nurses and other health professionals to establish "GP super-clinics" in areas poorly served by doctors. And it also followed a promise from Health Minister Tony Abbott that a re-elected Coalition Government could take over more state hospitals, using its controversial takeover of Devonport's Mersey hospital in Tasmania as a template.

Health policy has been a key pre-election battleground in the past week, with Mr Rudd promising that if elected he would offer $2billion in incentive payments to states for lifting public hospital standards in accordance with agreed benchmarks to be established in his first 100 days in office. But, insisting voters were sick of the inter-governmental blame game, Mr Rudd also said last week that if states failed to deliver improvements by the middle of 2009, he would stage a referendum in 2010 seeking approval for a commonwealth takeover of all public hospitals.

Mr Costello said last night the states would not agree to hand back the money, which he said was more than $16billion in today's terms. Instead, they would demand that Mr Rudd increase the rate ofGST, which now stands at 10per cent. Mr Rudd was unavailable last night to discuss the issue. But his office released a statement saying he hoped to improve hospitals in consultation with states, making a takeover unnecessary. He also repeated his promise to act if states did not lift their game. "This will involve a parallel reduction in the commonwealth outlays to the states and territories from all sources for these hospitals," the statement said. "This includes the Australian Health Care Agreement, specific purpose payments and other such funding arrangements." The response did not directly mention the GST, despite The Australian explicitly asking Mr Rudd's press secretary whether a takeover would require a claw-back of GST receipts.

Asked to clarify last night, the spokesman said no one was available. Earlier, Mr Rudd said Labor's new GP super-clinics were particularly aimed at regional and outer-metropolitan areas unable to attract doctors. The $220million fund would run for four years and include incentive payments to encourage groups of doctors and other health professionals to put all their services under one roof to enhance patients service and convenience. The centres would include consulting rooms for visiting specialists and teaching facilities for medical students and specialist trainees. Incentives would include grants of between $50,000 and $25million to build the centres or renovate existing buildings, plus payments of up to $15,000 for doctors prepared to relocate to work in the centres. "The criteria mean the clinics are most likely to be located in regional towns and outer-metropolitan areas, which are currently poorly served, particularly for commonwealth-funded services," said Mr Rudd's policy document. "Along with incentives to pay for administrative and nursing support, funds could be used to provide for teaching rooms and facilities to make the super-clinics attractive to new graduates, trainees and GP registrars."

Mr Abbott accused Labor of "making up policy as they go". He said Labor was proposing to replace programs that already existed under current arrangements. Earlier, he rejected Labor criticism that his Government's decision to bail out the Mersey Hospital was piecemeal and aimed at securing the marginal seat of Braddon, rather than improving health policy. If the intervention worked, it could be expanded "quite significantly", he told the Nine Network's Sunday program. "The Mersey is the first step. It's not necessarily the last step," he said.

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