Why Terra Nullius? Anthropology and Property Law in Early Australia

tags: LAW 343 Dispossession

Notes

The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992."

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British land policy in Australia was different from land policy in otherwise similar colonies before and after. Why?

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Australia, Cook reported, was very sparsely populated.

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Britons believed that Australia was mostly empty.

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Lawyers in England and throughout Europe agreed that settlers had a legal right to occupy uninhabited land. But what about land that was inhabited very sparsely?

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had to be some limit to the amount of land a small group might claim

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Parts of Britain were also thinly populated, and yet no one thought it lawful for strangers simply to move in.

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the Aborigines were not farmers. They were hunter-gatherers

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The absence of aboriginal farms was crucial, because the British were heirs to a long tradition of thought associating the development of prop- erty rights with a society’s passage through specific stages of civilization.

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All societies progressed through four stages, Adam Smith (among others) explained: “hunting, pasturage, farming, and commerce.”

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American Indians were not just farmers; they were also formidable military opponents

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it was cheaper to buy the plains than to conquer them. In Australia, the same calculation suggested the opposite policy. The Aborigines were not thought capable of fighting back.

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the Aborigines seemed to show no interest in British manufactures.

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What exactly was wrong with the Aborigines? What was it about them that the British perceived as so wretched and miserable?

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Britons found the Aborigines unbearably ugly.

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Disgust was more than skin deep. Britons perceived the Aborigines to be astonishingly primitive.

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lack of clothing or adequate shelter.

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Most important of all from the perspective of property rights, British settlers confirmed that Cook and Banks were right in observing that the Aborigines lacked agriculture.

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the only people I ever heard of who did not Worship some Deity.

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The “state of nature,” as Europeans understood it, was a state in which humans had not yet appropriated land as property.

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earliest British contacts with Australia were large, well-armed expeditions con- trolled by the imperial government. The North American colonies and New Zealand, by contrast, were settled first by small, weak groups operating largely outside the reach of the government.

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Britons interpreted disputes about land between themselves and the Aborigines as evidence that the Aborigines, not the settlers, lacked sufficient understanding

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Under English property law, the Aborigines did not exist.

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Terra nullius rested on some empirical assertions about Aboriginal life—that the Aborigines were few in number, that they roamed throughout the land without a sense of boundaries, that they claimed no particular territories as their own.

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James Cook and his colleagues had seriously underestimated the Ab- original population.

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tribes were nomadic, but each within its own boundaries.

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“Some people have observed,” Robinson remarked, “in reference to the natives occupy- ing their country, what could they do with it? The answer is plain—they could live upon it and enjoy the pleasures of the chase as do the rich of our own nation.”

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If there was any doubt that the Aborigines understood themselves to own their land, it was dispelled by the obvious fact that they did not acquiesce when the British occupied it.

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your Scotch Highlanders or our peasants in Brittany, who, if they do not eat their fellow men, are nevertheless just as objectionable.

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When Aborigines killed settlers, another writer pointed out, they were merely “following the example we have set them, and acting on the principle that might is right.”

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the court lacked the jurisdiction to try anyone, not just Lowe, but at the very least, he claimed, the Aborigines, being “the free occupants of the demesne or soil,” could not be tried in colonial courts

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despite all the controversy surrounding Aboriginal land rights in the middle decades of the nineteenth century, whenever the question of land ownership came up, the government always resolved it in favor of terra nullius.

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British Australians seemed to think that the Aborigines possessed an incapacity for improvement rather than a genuine preference for traditional ways.

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“We found the country in the state in which ages before the black people had found it—its resources undeveloped, unappropriated! In landing here, we exercised a right which we possessed in common with them.”

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Britons “cannot but feel ourselves delighted at the sight of smiling harvests taking place of naked wastes,” applauded one far-off observer, “since man’s business, as an inhabitant of this world, is to improve and cultivate the face of the earth.”

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the spread of an advanced, Christian civilization over the face of the earth was an end that might justify some otherwise distasteful means.

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To say that terra nullius was wrong was only to raise, not to answer, a difficult ethical question.

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For virtually all Britons of the period, colonization was an unalloyed good, the humanitarian thing to do, a way of bringing to others the benefits of European civilization.

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Would the Aborigines be better off, in this life and the next, as primitive pagan nomads or civilized Christian farmers?

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From the distance of more than a century and a half, the early critics of terra nullius are liable to be accused of lacking the courage of their convictions,

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Reversing terra nullius would have posed a terrible administrative problem

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To overturn the doctrine would be to upset every white person’s title to his or her land. The result would be chaos

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to admit that the Aborigines owned any part of Australia was to admit that they owned all of it

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The government might have discarded the doctrine only prospectively, so that only Crown land would be returned to the Aborigines, and settlers would retain title to land the Crown had already granted to them. Something like this would become law in the 1990s after Mabo. In the nineteenth century, however, such a plan would have deprived the government of what was anticipated to be a major source of revenue, the sale and lease of Crown land.

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Any colonial land policy, whether terra nullius or its opposite, produced a powerful political force to keep that policy in place.

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Notes

The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992."

British land policy in Australia was different from land policy in otherwise similar colonies before and after. Why?

Australia, Cook reported, was very sparsely populated.

Britons believed that Australia was mostly empty.

Lawyers in England and throughout Europe agreed that settlers had a legal right to occupy uninhabited land. But what about land that was inhabited very sparsely?

had to be some limit to the amount of land a small group might claim

“usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have, therefore, no reason to complain, if other na- tions, more industrious and too closely confined, come to take possession

Parts of Britain were also thinly populated, and yet no one thought it lawful for strangers simply to move in.

the Aborigines were not farmers. They were hunter-gatherers

The absence of aboriginal farms was crucial, because the British were heirs to a long tradition of thought associating the development of prop- erty rights with a society’s passage through specific stages of civilization.

All societies progressed through four stages, Adam Smith (among others) explained: “hunting, pasturage, farming, and commerce.”

American Indians were not just farmers; they were also formidable military opponents

it was cheaper to buy the plains than to conquer them. In Australia, the same calculation suggested the opposite policy. The Aborigines were not thought capable of fighting back.

the Aborigines seemed to show no interest in British manufactures.

What exactly was wrong with the Aborigines? What was it about them that the British perceived as so wretched and miserable?

Britons found the Aborigines unbearably ugly.

Disgust was more than skin deep. Britons perceived the Aborigines to be astonishingly primitive.

lack of clothing or adequate shelter.

Most important of all from the perspective of property rights, British settlers confirmed that Cook and Banks were right in observing that the Aborigines lacked agriculture.

the only people I ever heard of who did not Worship some Deity.

The “state of nature,” as Europeans understood it, was a state in which humans had not yet appropriated land as property.

earliest British contacts with Australia were large, well-armed expeditions con- trolled by the imperial government. The North American colonies and New Zealand, by contrast, were settled first by small, weak groups operating largely outside the reach of the government.

Britons interpreted disputes about land between themselves and the Aborigines as evidence that the Aborigines, not the settlers, lacked sufficient understanding

Under English property law, the Aborigines did not exist.

Terra nullius rested on some empirical assertions about Aboriginal life—that the Aborigines were few in number, that they roamed throughout the land without a sense of boundaries, that they claimed no particular territories as their own.

James Cook and his colleagues had seriously underestimated the Ab- original population.

tribes were nomadic, but each within its own boundaries.

“Some people have observed,” Robinson remarked, “in reference to the natives occupy- ing their country, what could they do with it? The answer is plain—they could live upon it and enjoy the pleasures of the chase as do the rich of our own nation.”

If there was any doubt that the Aborigines understood themselves to own their land, it was dispelled by the obvious fact that they did not acquiesce when the British occupied it.

your Scotch Highlanders or our peasants in Brittany, who, if they do not eat their fellow men, are nevertheless just as objectionable.

When Aborigines killed settlers, another writer pointed out, they were merely “following the example we have set them, and acting on the principle that might is right.”

the court lacked the jurisdiction to try anyone, not just Lowe, but at the very least, he claimed, the Aborigines, being “the free occupants of the demesne or soil,” could not be tried in colonial courts

despite all the controversy surrounding Aboriginal land rights in the middle decades of the nineteenth century, whenever the question of land ownership came up, the government always resolved it in favor of terra nullius.

British Australians seemed to think that the Aborigines possessed an incapacity for improvement rather than a genuine preference for traditional ways.

“We found the country in the state in which ages before the black people had found it—its resources undeveloped, unappropriated! In landing here, we exercised a right which we possessed in common with them.”

Britons “cannot but feel ourselves delighted at the sight of smiling harvests taking place of naked wastes,” applauded one far-off observer, “since man’s business, as an inhabitant of this world, is to improve and cultivate the face of the earth.”

the spread of an advanced, Christian civilization over the face of the earth was an end that might justify some otherwise distasteful means.

To say that terra nullius was wrong was only to raise, not to answer, a difficult ethical question.

For virtually all Britons of the period, colonization was an unalloyed good, the humanitarian thing to do, a way of bringing to others the benefits of European civilization.

Would the Aborigines be better off, in this life and the next, as primitive pagan nomads or civilized Christian farmers?

From the distance of more than a century and a half, the early critics of terra nullius are liable to be accused of lacking the courage of their convictions,

Reversing terra nullius would have posed a terrible administrative problem

To overturn the doctrine would be to upset every white person’s title to his or her land. The result would be chaos

to admit that the Aborigines owned any part of Australia was to admit that they owned all of it

Any colonial land policy, whether terra nullius or its opposite, produced a powerful political force to keep that policy in place.