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Terra nullius

Terra nullius (English pronunciation , Latin pronunciation ) is a Latin expression deriving from Roman Law meaning "land belonging to no one", "nobody's land" i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law.

Rationale

Modern applications of the term terra nullius stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign state recognized by European powers. This modern term refers to a specific application of the concept of res nullius.

During the era of European colonialism the doctrine gave legal force to the claiming and settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius applied to uncultivated land. As the indigenous people were not (in this view) using the land, those who could cultivate the land had a right to claim it.

History in Australia

European settlement commenced in 1788. Prior to this Indigenous Australians inhabited the continent and had unwritten legal codes, as documented in the case of the Yirrkala community.

The first test of terra nullius in Australia occurred with the decision of R v Tommy (Monitor, 28 November 1827), which indicated that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems. This position was further reinforced by the decisions of R v Boatman or Jackass and Bulleyes (Sydney Gazette, 25 February 1832) and R v Ballard (Sydney Gazette, 23 April 1829).

In 1835 Governor Bourke implemented the doctrine of terra nullius by proclaiming that Indigenous Australians could not sell or assign land, nor could an individual person acquire it, other than through distribution by the Crown.

The first decision of the New South Wales Supreme Court to make explicit use of the term terra nullius was R v Murrell and Bummaree (unreported, New South Wales Supreme Court, 11 April 1836, Burton J). Terra nullius was not endorsed by the Judicial Committee of the Privy Council until the decision of Cooper v Stuart in 1889, some fifty three years later.

However, it has been claimed that the concept was only brought to prominence by its critics in the late twentieth century:

"By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds’ version of our history, especially The Law of the Land, underpinned the Mabo judges’ decision-making." - Michael Connor in The Bulletin (Sydney), 20 August 2003: (see further Connor 2005.)

There is some controversy as to the meaning of the term. For example, it is asserted that, rather than implying mere emptiness, terra nullius can be interpreted as an absence of civilized society. The English common law of the time allowed for the legal settlement of "uninhabited or barbarous country".

In 1971, in the controversial Gove land rights case, Justice Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title in Australian law. Court cases in 1977, 1979, and 1982 brought by or on behalf of Aboriginal activists challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact. These cases were rejected by the courts, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

Mabo

The concept of terra nullius became a major issue in Australian politics when in 1992, during an Aboriginal rights case known as Mabo, the High Court of Australia issued a judgment which was a direct overturning of terra nullius. In this case, the Court found that there was a concept of native title in common law, that the source of native title was the traditional connection to or occupation of the land, that the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs and that native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.

In 1996, The High Court re-visited the subject of native title in Wik. The 4-3 majority in the Wik Decision stated that native title and pastoral leases could co-exist over the same area and that native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership. However, in the event of any conflict between the rights and interests of pastoralists and native title, it would be the former that would prevail.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim territory appropriated under the doctrine of terra nullius. This has proven extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. An estimated 3,000 further agreements have been reached in which Aboriginal peoples have regained former lands. An example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km² plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now owned by Aboriginal peoples.

Terra nullius elsewhere

Western Sahara

Terra nullius was still relevant to international law in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice in 1974 to determine the status of the Western Sahara (Río de Oro and Saguia el-Hamra) at the time of colonization by Spain.

Greenland

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted terra nullius. The matter was later settled in the Permanent Court of International Justice by 1933.

Antarctica

Another example of a terra nullius is Antarctica, none of which has yet been capable of supporting human habitation without supplies from the outside world.

West Bank

Sir Elihu Lauterpacht, editor of Oppenheim's International Law has been cited in a 2006 opinion commentary as an authority for viewing the West Bank as having been a res nullius from the date of Britain's withdrawal on 15 May 1948 from the Palestinian Mandate. The writers' opinion is controversial in view of acute political disputation over the legal status of the West Bank and its treatment in a number of UN resolutions as part of a future Palestinian State.

Scarborough Shoal

The Philippines and the People's Republic of China both claim the Scarborough Shoal or Panatag Shoal or Huangyan Island (黄岩岛), nearest to the island of Luzon, located in the South China Sea. The Philippines claims it under the principles of terra nullius and EEZ (Exclusive Economic Zone). China's claim refers to its discovery in the 13th century by Chinese fishermen.

See also

External links

References

  • Connor, Michael. "The invention of terra nullius", Sydney: Macleay Press, 2005.
  • Culhane, Dara. The Pleasure of the Crown: Anthropology, Law, and the First Nations. Vancouver: Talon Books, 1998.
  • Lindqvist, Sven. Terra nullius. A Journey through No One's Land. Translated by Sarah Death. Granta, London 2007. Pbk 2008. The New Press, New York 2007. Details here
  • Rowse, Tim. "Terra nullius" - The Oxford Companion to Australian History. Ed. Graeme Davison, John Hirst and Stuart Macintyre. Oxford University Press, 2001.

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