THE ADVOCATE 671
VOL. 80 PART 5 SEPTEMBER 2022
THE CANADIAN LEGAL GENEALOGY OF
TERRA NULLIUS
SUB NOM.: IS IT TOO LATE TO SEND
TERRA NULLIUS BACK TO AUSTRALIA
(AND WOULD THEY EVEN TAKE IT)?
PART I
By Sarah Pike*
The Myth of Terra Nullius
… When Europeans arrived in the South Pacific in the land that is now
Australia and New Zealand,1 they regarded it as terra nullius or
“nobody’s land.” They simply ignored the fact that Indigenous Peoples
had been living in these lands for thousands of years, with their own
cultures and civilizations. For the newcomers, the land was theirs to
colonize; this narrative was also applied in Canada.
Law Society of British Columbia, Indigenous Intercultural Course,
announced January 26, 2022, Module 3.1.2
* * *
The doctrine of terra nullius (that no one owned the land prior to European
assertion of sovereignty) never applied in Canada, as confirmed
by the Royal Proclamation of 1763.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para. 69, per
Chief Justice McLachlin.
Which of these seemingly opposite statements is true? Both? Neither?
In 2007, Australian historian Andrew Fitzmaurice published “The
Genealogy of Terra Nullius” as part of his contribution to the Australian “history
wars”, debates concerning the historiography of British colonization of
* I thank Hamar Foster, Q.C., Stephanie McHugh, Dr. S. Ronald Stevenson and Dr. Timothy Brook for their reviews and helpful
feedback on drafts of this article. Any errors are mine, as are the views I express.