674 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
the point more simply if we say that “Terra Nullius” is No-man’s-land. In
the sixteenth, seventeenth and eighteenth centuries, Portugal, Spain,
Holland, England and France took possession of such territory in Asia,
Africa, America and Australasia, by performing certain symbolic acts,
which I shall describe presently.
….
Little regard was paid to the rights of original inhabitants by any of the colonizing
peoples. Generally, they considered that they were acting righteously
in introducing the Christian religion to lands previously
heathen.26
Having gained a foothold in Australia in the 1930s, terra nullius largely lay
dormant there for nearly another half-century. Finally, in 1977, it arose
again in a court case in which an Indigenous man, Paul Coe, argued that
Aboriginal people continued to hold sovereignty in Australia.27 Coe sought
to leverage a recent International Court of Justice decision concerning the
Western Sahara and amend his statement of claim to assert that “the
proclamations by Captain James Cook, Captain Arthur Phillip and others
and the settlement which followed the said proclamations and each of them
wrongfully treated the continent now known as Australia as terra nullius
whereas it was occupied by the sovereign aboriginal nation as set out in
paragraphs 5A, 6A and 7A hereof”.28
Australia’s highest court, however, dismissed Coe’s appeal, refusing him
permission to file the amended pleading. The majority concluded that if
there were serious legal questions to be decided about “what rights the aboriginal
people of this country have, or ought to have, in the lands of Australia,
… the resolution of such questions by the courts will not be assisted
by imprecise, emotional or intemperate claims”.29 Thus, no court ever dealt
with Coe’s claim on its merits.
Mabo (No. 2)
Just three years later, Eddie Mabo and others filed a claim on behalf of the
Meriam people of the Murray Islands in the Torres Strait, part of the Australian
state of Queensland, arguing that they still held “native title” to their
lands. The Mabo plaintiffs did not use terra nullius to attack British sovereignty
over Australia, as Coe had proposed to do. Instead, they ultimately
successfully argued that “the doctrine of terra nullius” had prevented Australian
common law from recognizing Aboriginal title.
Justice Brennan, whose judgment can be considered the majority judgment,
referred repeatedly to “the enlarged notion of terra nullius”—which,
he explained, was an international law principle that justified “the acquisition
of inhabited territory by occupation on behalf of the acquiring sovereign”.
30 The previous international law principle, according to Justice