How the little-known Latin term 'terra nullius' helped European colonisation of Australia

At the time of European exploration, colonial authorities looked for legal justifications that would allow them to take control of foreign lands without recognising local sovereignty.

In 1770, when Lieutenant James Cook charted the eastern coastline aboard HMS Endeavour, he saw Indigenous communities that lived along the coast yet still believed the land was unclaimed.

He then claimed ownership of the entire eastern seaboard for King George III.

Cook's secret instructions included an order to obtain the "consent of the natives" if possible, but that order had been ignored.

That act rested on an assumption that was inherited from European legal tradition, and held that land could be claimed if no clear political or legal authority appeared to govern it.

British law made categories for methods of taking land, under which Australia was generally treated as settlement and so required no treaty.

Years later, the British Crown acted on Cook's reports when it authorised the establishment of a penal colony in 1786, using his claim as a basis for the foundation of New South Wales. 

Upon arrival in 1788, Governor Arthur Phillip received instructions that treated the land as unoccupied in the legal sense, though the term terra nullius itself did not appear in official documents at the time, and this meant that no treaties or agreements were required.

Settlers commonly acted on the belief that the absence of fenced farms, permanent stone dwellings, or written legal titles indicated a lack of ownership, and as a result, the British applied the doctrine of terra nullius to justify the imposition of Crown law.

Aboriginal social organisation tied management of country to kinship obligations and ceremonial life, which was passed on through oral tradition and was expressed through connection to country, yet colonial authorities treated those institutions as not legally recognised. 

Over the next several decades, the colony expanded beyond Sydney Cove, and European settlers moved inland.

They assumed the right to occupy, farm, and fence land, even when Aboriginal communities had already used and managed those places.

As a result, violent confrontations broke out between settlers and Aboriginal groups, particularly on the frontier.

Conflicts such as the Bathurst War of 1824 and the Black War in Tasmania reached a peak between 1828 and 1832 and highlighted the violent enforcement of colonial claims.

Courts frequently sided with settlers and supported the idea that Indigenous people held no legal rights to land.

Since their forms of land use typically did not look like European farms or legal records, the courts decided that no ownership had existed before colonisation. 

By 1901, when the Australian colonies united under Federation, terra nullius had become firmly established in legal rulings and government policy in practice.

The new Constitution excluded Aboriginal people from being counted in the population for electoral and representation purposes under Section 127 and denied the Commonwealth Parliament power to legislate for them.

Meanwhile, Indigenous communities kept their connections to land, even though colonial authorities refused to recognise those connections.

Across generations, they preserved stories, totems, language, and ceremony that kept their identity tied to place. 

Over time, Indigenous resistance gradually increased, and in the 1960s and 70s, Aboriginal communities began to challenge land claims in court and demanded recognition of traditional ownership.

One significant moment occurred in 1971, when the Yolngu people of Arnhem Land took their case to the Northern Territory Supreme Court.

Formally known as Milirrpum v Nabalco Pty Ltd, the Gove land rights case presented evidence of a clear and spiritual system of law.

Justice Richard Blackburn accepted that the Yolngu had an established legal tradition, which he nevertheless ruled held no legal standing under Australian law.

Although he did not use the term terra nullius, his reasoning supported the view that the Crown had acquired sovereignty without needing to recognise Indigenous land rights. 

Eventually, the issue reached the High Court, and in 1992, after years of legal action that Eddie Mabo and fellow Meriam people from the Murray Islands had brought, the court delivered its important decision in Mabo v Queensland (No 2).

The judges found that the Meriam people possessed Native Title rights that predated British sovereignty.

Their connection to land had not been erased by settlement. As a result, the court rejected the 'legal fiction' of terra nullius.

As the High Court stated in its judgment, "the fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent had to be abandoned."

For the first time, Australian law recognised that Indigenous people held legitimate legal claims based on traditional ownership. 

Importantly, the decision did not formally grant new rights. It acknowledged rights that had always existed but had never been formally recognised.

The court ruled that Crown sovereignty did not automatically extinguish Indigenous land rights.

If Aboriginal people could prove a continuing connection to land under traditional laws and customs, their title could, in some cases, be recognised under common law.

Parliament followed the ruling with the Native Title Act 1993, which formally established a legal process to examine and register Indigenous claims. 

For over two centuries, a Latin term provided the legal cover that enabled the taking of land and the forced removal of people, and it had also allowed authorities to deny Indigenous sovereignty.

It allowed the Crown to ignore Indigenous presence and enabled settlers to act without consent or compensation, and in doing so, it had effectively erased thousands of years of culture and legal practices from recognition and had largely removed Indigenous approaches to country from the law's consideration.

When colonial authorities treated the continent as vacant, they created a convenient fiction that supported their expansion and hid the violence needed to maintain it. 

Eventually, the voices and efforts of Indigenous Australians gradually showed the problem with that idea.

Their persistence ultimately forced the legal system to face what the nation had long refused to admit.

The High Court's rejection of the term did not erase its effects, but it was the beginning of a long legal and moral process of confronting colonisation in Australia.