Literally translated as ‘land belonging to no-one’, Australia was a rich gem quickly appropriated by European explorers, the Great Southern Land in the pocket of the empire at last.

Cook’s declaration of ‘terra nullius’, as he stepped ashore on to Gadigal land in 1770, was a lie so steeped in injustice and corruption that it still weeps like a festering sore today. A bastardised catch-all employed with the pomp and vitriol of colonial endeavour, his words were a convenience, removing questions of authority, of ownership, of power. 

The explorer’s own diaries – rich in cursive and undeniable evidence of the Indigenous communities to whom this land has always been home – disprove his assertion yet Cook strolled confidently into a future in the knowledge that the cloak of colonisation would hang stanch from this Latin declaration.

These archaic words deftly removed questions of authority, of ownership, of power. Terra nullius removed black Australia at a stroke… replacing it with emptiness. 

‘Emptiness’ became the dark interior, untamed land so barren it spawned its own movement – the Australian Gothic. Emptiness represented the void beyond the black stump – the never never – a wild land to be feared. So removed from England’s green and pleasant lands and bucolic inertia, ‘out back’ was stigmatised, tens of thousands of years of culture, civilisation, stories, politics and lore denied, rights extinguished. Emptiness became erasure. 

Terra nullius was an excuse to exert European ‘white’ control and unfurl a poisoned blanket of systemic racial dispossession, injustice and enduring prejudice. It described an ‘empty’ space, in which nothing exists; in which Aboriginal Australia was not recognised. 

This doctrine has existed in the law of nations throughout the development of Western democracy and is derived from Roman law. It spruiks the concept that ownership by seizure of a thing no one owns is legitimate if the use of the land is not consistent with European ideals. The language here is telling: ‘seizure’ is described as ‘the action of capturing someone or something using force’; ‘legitimate’, too, suggests an illegitimacy inherent in the concept.

Stan Grant writes that terra nullius is “about the denial of humanity, the brutality of that, and the unceasing, unending, irrepressible demand to be heard. [It is] what stops white Australia seeing – truly seeing – black Australia… [We are a nation] founded on an idea that the First Peoples of this continent were invisible”.

He talks, too, of terra nullius memories: 

Yet the most powerful argument against the fiction of terra nullius is black Australia. It lives, breathes and replicates its truth in the enduring strength and resilience of Australia’s First People – because we are still here despite countless attempts to erase us. We are the oldest continuous culture on earth, and our connection to Country – this great Southern Land – is a truth that cannot be denied.

Today, on the 75th anniversary of the momentous Mabo case which altered the foundation of Australian land law, native title exists as recognition of First Nations’ enduring connection to this land.  

Led by Eddie Kioiki Mabo, the case fought the legal concept that Australia and the Torres Strait Islands were not owned by Indigenous peoples because they did not ‘use’ the land in ways Europeans believed constituted legal possession.
The High Court decided "that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants". The court rejected the notion that such a finding undermined the foundations of sovereignty, since, as Justice Brennan put it, the "Crown's acquisition of sovereignty… cannot be challenged in an Australian municipal court". And further, on acquisition of that sovereignty, "the Crown acquired a radical title to the land".

Still, First Nations People are still trapped in the “throes of contestation and opposition” [1], the need to always defend their histories and identities. Aboriginal and Torres Strait Islander People have to prove themselves and show that their rights have not been “washed away on the tides of history”.
 
The terra nullius lie is pervasive. It will only be truly denounced by recognition of and reconciliation with this country’s First People and moving beyond the empty words of a broken colonial history. [2]

Always was, always will be.  

Footnotes
[1] Anthropologist Elizabeth Povinelli, as above.
[1] Stan Grant, 'Terra nullius is a lie': the brutal denial of First Peoples' humanity, Sydney Morning Herald, 2019