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VOL. 80 PART 5 SEPTEMBER 2022
Australian historian Bain Attwood concluded that Reynolds “undoubtedly”
had used the term terra nullius metaphorically “to register the racism
that Aborigines and their supporters saw as integral to the British colonization
of the continent and the dispossession and destruction of its indigenous
peoples”.46 Similarly, Australian lawyer David Ritter noted that the
term “emotively connoted the historical reality of how Aboriginal people
had been treated”.47 Recently, Australian legal academic Shane Chalmers
acknowledged that terra nullius was not used in the 19th century in reference
to Australian colonization, but that he nonetheless continued “to use
the term here anachronistically, not as a legal-doctrinal concept, nor as an
historical concept, but as a discursive concept that expresses the denial of
Indigenous land rights in Australia and that has been used in the struggle
by Aboriginals and Torres Strait Islanders against the ongoing colonisation
of their country”.48
The Common Law Status of Colonies
But there was even more to it than this.49 In fact, there had been a domestic
common law corollary to the (later) international law concept of terra nullius:
land acquired by settlement that was “desert and uncultivated”.50
According to the common law, this kind of colonized land attracted English
laws of real property ownership, since it was assumed that no land law or
tenure existed in the colony at the time of its annexation by the Crown.51
Britain had applied this categorization to the Australian colonies.
Reading Justice Brennan’s judgment, one can see his conflation of terra
nullius and the status of land and law in a settled colony.52 By the “enlarged
notion of terra nullius”, Justice Brennan appears to have intended to
describe the imperial treatment of inhabited lands as uninhabited lands, for
the purposes of law, in a colony established by settlement. For the majority
in Mabo, this “enlargement” had been improperly based on assumptions
that the Indigenous inhabitants were too “low in the scale of social organization”
to have legal systems and interests in land that ought to be recognized
by British common law.53
Australian judges had routinely applied the English common law rule
relating to settled colonies. In Milirrpum in 1970, in an action claiming Aboriginal
title under the common law, a judge of the Supreme Court of the
Northern Territory rejected the government’s argument that the Indigenous
plaintiffs could not have had “law”. Of the government’s position, the judge
said, “I do not find myself much impressed by this line of argument”,54 and
concluded:
I am very clearly of opinion, upon the evidence, that the social rules and
customs of the plaintiffs cannot possibly be dismissed as lying on the