THE DOCTRINE OF TERRA NULLIUS IN AUSTRALIA

Terra nullius: land belonging to no one.

It refers to uninhabited territory and to territory that has no recognisable system of law, or social or political organisation.

Under the doctrine of reception, when uninhabited land was colonised by Britain and no other system of law was apparent, English law would dominate.

Impacts of terra nullius on the indigenous population:

Loss of land Loss of culture Dispersal Loss of life Relocation

The British division of the land:

1.

Freehold: land granted or sold by the representatives of the British Crown in the colonies to individuals who, in turn, could sell or lease it to other people in the colonies
Leasehold: land rented by the leaseholder from the colonial authorities for an agreed length of time Pastoral lease: gives the leaseholder land for grazing and associated pastoral activities, as well as to allow Indigenous peoples their rightful and customary access to their traditional lands

2. 3.

The concept of terra nullius has had major impacts on native title claims.

Any ATSI community that has tried to claim native title has had to prove that they are the traditional owners of the land and have an ongoing connection with it.

As the land was considered empty prior to British settlement, it also meant that the settlers could posses most of the land with government approval.

Something to think about

If the traditional owners of the land have been forced off their land, how do they prove a continuing connection with this land under Aboriginal law and custom?

THE LEGAL STATUS OF INDIGENOUS AUSTRALIANS UP TO 1969

The doctrine of terra nullius meant that in the eyes of the law Indigenous Australians did not exist as citizens.

The criminal laws did not protect Indigenous people and government policies tended to condone violence.

Myall Creek Massacre 1838

Refer to the case study on your handout

THE DEVELOPMENT OF NATIVE TITLE

1963 the Yolngu people from the Grove Peninsula, in eastern Arnhem Land, sent a bark petition to the Commonwealth government protesting the removal of 300 hectares of land for bauxite mining without their permission.

The petition failed to move the federal government to recognise the rights of the Yolngu people and hence the Gove land rights case started in the NT Supreme Court in 1971.

Refer to your textbook to read the case study on page 128

3 years after the unsuccessful Yolngu petition, members of the Gurindji people walked off the job at two cattle stations in the NT, protesting against poor working conditions, pay and dispossession of their traditional land by pastoralists.

Pastoralists farmers raising sheep or cattle, usually on large areas of land.

1972 the ALP, let by Gough Whitlam, was elected.

The government established the Department of Aboriginal Affairs. A Royal Commission into Aboriginal land rights was established, under Justice Edward Woodward.
This led to the drafting of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

1975 in response to the Gurindji land claim, the government negotiated with the owners of the stations to return part of the land to the traditional owners = native title

THE MABO CASES

Read the Mabo cases in your textbooks pages 130-132

Read the Wik case in your textbook page 133 and read the article on your handout.