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On the 20th anniversary of the Mabo decision they are still pretending that terra nullius was part of our colonial history – it wasn’t.
Terra nullius was a badly understood phrase from international law theory that was thrown into our history books and law rhetoric for political reasons. The Mabo decision was bad history, bad law.
The beginnings of the Mabo Case are acknowledged to be a land rights conference held in Townsville in 1981. It was there, where the decision was made to follow the white lawyers’ path forward, that historian Henry Reynolds suggested using violence to obtain land rights. This is from Chapter Two of The Invention of Terra Nullius:
To get his own way Henry Reynolds, a child of the middle classes, whose personal experiences of warfare had included such dangerous activities as writing spiky letters to the editor of the Townsville Bulletin, advocated unleashing military force and possible civil war on Australia. His comfortable life style, his publishing, his university career, with enviable long stretches of leave to undertake research, were based on exposing past brutality yet he was prepared to bring violence into the present:
If it has to be by force, by using the army, as the Federal government in Washington had to do, I’d accept that. If necessary you could parachute them in and take over the reserves. That wouldn’t concern me one bit, except that if that is the only way, it also means that you are going to move far more quickly than the Queensland public can accept and you will create a backlash. You will create enormous support for the Premier.
Read about the Townsville conference (pdf) here…
See also:
The Invention of Terra Nullius here…
Nulliusgate: the war on a book (Kindle edition) here…
The link to The invention of Terra Nullius is broken. This one should work:
https://www.booktopia.com.au/the-invention-of-terra-nullius-michael-connor/book/9781876492168.html
PS. Apparently no shops stock The Invention of Terra Nullius:
https://booko.com.au/9781876492168/The-Invention-of-Terra-Nullius
However it is still available in the Victorian State Library.
The MABO Case was an act of activism. The following is an extract from my paper, “Aborigines, the Constitution and the Voice”, which can be read at https://www.scribd.com/document/458064355/.
‘An article in the University of Western Sydney Law Review entitled, “The High Court and Recognition of Native Title” contains revelations about the Mabo case given in 2006 by Sir Anthony Mason, former Chief Justice of the High Court of Australia.
These revelations include the following:
“In Mabo, it was conceded by all parties and accepted by the Court that the Crown had acquired sovereignty of Australia by occupancy under international law; the international law doctrine of terra nullius was, therefore, not an issue in Mabo. Indeed, ‘terra nullius’ was not mentioned in any of the plaintiffs’ submissions, and was not referred to at all during the four days of substantive argument before the High Court of Australia. Furthermore, all members of the High Court concluded that, irrespective of the original presence of the Aboriginal inhabitants, on the basis of the ‘desert and uncultivated’ doctrine at common law, Australia was a territory acquired by settlement.”
Further, “Moreover, since the reception of English law into the settled colony of Australia was justified on the ground that it was ‘legally uninhabited’, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule.”’