What does terra nullius mean?

In Latin, the term terra nullius means "no man's land or territory without an owner". However, it does not appear to have been a Roman concept. Not being great discoverers, the Romans had to acquire their empire the old-fashioned way: they fought for it.

Beginning in the 17th century, terra nullius denoted a legal concept that allowed a European colonial power to take control of "empty" territory that none of the other European colonial powers had claimed.

Of course, most of these "empty" territories were inhabited, so the meaning of terra nullius grew to include territories considered "devoid of civilized society." The most famous example is that of Australia, where the concept of terra nullius still features in claims brought by Aboriginal peoples. Other examples of lands that were once considered terra nullius would be Siberia and the Americas. The United States appears to have treated its western border as terra nullius in the rush to fulfill its so-called Manifest Destiny.

Terra nullius in Australia

The United Kingdom relied on this principle to claim possession of the Australian mainland. Before the arrival of the Europeans, Australia was considered to be "a practically unoccupied tract of territory, with no established inhabitants and no established law" (as put by the [Privy Council](https://en.wikipedia.org/wiki /Private_Council_of_the_United_Kingdom) in 1889). This was, of course, a legal fiction, as the continent was inhabited by native peoples, the Australian Aborigines, and legal codes were already operational in some places, such as the Yirrkala Mission Aborigines. This was overlooked or ignored by the colonial authorities. In this sense, the application of terra nullius to Australia was incompatible with the practice in other parts of the British Empire. The British government attempted, as early as the 1830s and 1840s, to harmonize Australian colonial practice with international law as it stood at the time and with the approach taken in other parts of the Empire. His efforts were unsuccessful, and Australian policy towards native land rights developed in a markedly different way from that of the rest of the Empire.

Part of the explanation for the difference may lie in the fact that, rather than implying a mere void, terra nullius could also be interpreted as an absence of civilized society. For example, the English common law of the time allowed for the legal establishment of "uninhabited or barbarous country". Although Australia was clearly not an empty land, the presence of scattered and nomadic Aboriginal groups would have been widely perceived, through European eyes at the time, as evidence of a barbaric country and therefore without a legal impediment to the settlement. By contrast, most other British-ruled territories had significant native populations and well-established indigenous administrative codes (as in the cases of India and New Zealand, for example).

Until the 1970s, the terra nullius doctrine was generally accepted in Australia on the basis that the continent had been "settled", a classification that gives no legal consideration to indigenous customs. During the 1970s, historians reviewed the colonization of Australia, reassessing the degree to which force had been used to dispossess the native inhabitants.

This led a number of lawyers and activists to suggest that Australia should be legally reclassified as "conquered" territory, a distinction that requires the conqueror to acknowledge the customs of the conquered. Court cases of 1977, 1979 and 1982 brought by or on behalf of Aboriginal activists challenged Australian sovereignty on the grounds that terra nullius had been applied incorrectly, so Aboriginal sovereignty must be considered intact. These cases were thrown out of court, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

The concept of terra nullius became a major issue in Australian politics when, in 1992, during an aboriginal rights case known as Mabo , the High Court of Australia issued a ruling that some interpreted as invalidating terra nullius . However, the ruling was much narrower than that. The court did not reclassify Australia as "conquered" territory, but instead reaffirmed the terms of Australian sovereignty. The Crown is still considered capable of legally extinguishing native title, but some native title still remains intact where it can be proven that clear indigenous rights existed before the native population was dispossessed. The 1996 Wik Decision went further, stating that native title and pastoral leases could co-exist in the same area; Native peoples could use the land for hunting and sacred ceremonies even without exercising property rights.

The court ruling in Mabo has allowed some Aboriginal peoples to claim appropriate territory under the terra nullius doctrine. This has proven extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. It is estimated that another 3,000 agreements have been reached in which Aboriginal peoples have recovered previous lands. One example is the case of December 2004, in which the Noonkanbah people were recognized as the traditional owners of a 1,811 km2 plot of land in Western Australia.

In the Northern Territory, 40% of the land and most of its coastline is now in the hands of Aboriginal people. This represents a favorable result in the face of the initial dispossession they suffered based on the concept of no man's land/territory without an owner.