672 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
Australia and its effect on Indigenous peoples.3 The present article, published
in two parts, adapts and extends Fitzmaurice’s framework to the
Canadian legal context showing, I hope, that neither the Law Society’s nor
the Chief Justice’s statement is entirely correct.
In Part I of this article, I examine the international and Australian use of
the term terra nullius in legal and non-legal contexts. In Part II, which will
be published in a later issue of the Advocate, I will trace the Canadian
jurisprudential adoption of the term. To the date of writing, Canadian
judges have referenced terra nullius in only 17 decisions; the treatment has
been substantive in only seven. Tellingly, the first mention of the term was
in May 1993, a year after the High Court of Australia’s lengthy discussion of
terra nullius in its groundbreaking Aboriginal title decision, Mabo v. Queensland
(No. 2).4 I will conclude Part II by briefly examining the interface and
friction between Indigenous and settler legal systems in 19th-century
British Columbia, suggesting that this is where we should focus our attention
if we are to properly understand our legal pasts and present and to craft
a legal future.
WHAT IS TERRA NULLIUS?
The “Genealogy” of Terra Nullius
In the last 30 years, terra nullius—meaning, literally, “land belonging to no
one”5 or “land without owners”6—has come into wide usage in reference to
British colonization.7 However, as Fitzmaurice and others have shown, terra
nullius is valid only as a shorthand; it is not an accurate description of a legal
or political doctrine employed in the justification of the British empire.8
One scholar terms it a “neologistic loan expression” whose “fascination is in
being so widely misunderstood, a casualty of the conjunction of legal, political,
and historical attitudes toward the past”.9
Terra nullius emerged as an international law concept only toward the
end of the 19th century.10 Although similar to the Roman law terms res nullius
and territorium nullius, terra nullius has a distinct meaning and genesis.11
By applying terra nullius anachronistically, we obscure two complex histories:
(1) the comparatively recent history of terra nullius as it was used to
discuss European expansion; and (2) the older history of how ideas of occupation
were used to justify empire.12
Following the term’s sporadic appearances, Britain and Venezuela
applied terra nullius in an 1899 arbitration concerning a long-simmering
conflict over three former Dutch colonies in Guiana.13 Then, early in the
20th century, terra nullius secured a place in the international law lexicon.14
In 1909, French foreign affairs official Camille Piccioni used it in an article