At the heart of Australia's history wars is a debate about the honest use of historical evidence. In The Fabrication of Aboriginal History, Keith Windschuttle raised some very troubling questions about the way in which some of our most prominent historians, including Henry Reynolds and Lyndall Ryan, had constructed historical claims on the basis of "fabricated" evidence about frontier conflict.
Now Michael Connor's book, The Invention of Terra Nullius, published by Windschuttle, argues that the term of terra nullius was never employed in the 18th and 19th centuries and is another case of historical fabrication. For Connor, Reynolds is again the historian the most culpable.
When, for example, citing a definition of terra nullius, Reynolds inserted terra nullius in square brackets into the passage he quoted where the author, as Connor points out "used the phrase res nullius [nobody's thing] not terra nullius". Connor's inevitable conclusion is that if terra nullius were a myth, the legal foundations of the High Court's Mabo judgment look wobbly (although this would assume that the term was indeed important for that judgment).
It comes, therefore, as quite a surprise to find that Connor has himself "fabricated" his own evidence for the origins of terra nullius, if by fabrication we understand attributing historical facts to evidence that does not support them. Reynolds "fabricated" terra nullius in the sense that he imposed it on a historical record in which the term was never used. He did so to support a particular interpretation of Aboriginal dispossession.
Connor's reasons are somewhat different but no less important to his argument. Having revealed that terra nullius was "invented", Connor is obliged to explain from where the doctrine came. It appears that he couldn't pin it down and instead of leaving it as the deeply unsatisfactory "of uncertain origin" he, like Reynolds, simply attributes the origin of the idea to material in which the words terra nullius are absent.
This fabrication is extraordinary in the context of the current debate and Connor's own polemic.
Connor argues that "The beginning of our encounter with terra nullius may by traced to Lausanne, Switzerland, in 1888. One hundred years after the founding of Australia, 13 years before the commonwealth, territorium nullius was discussed during a session of the Institute of International Law."
This statement might be allowed to pass if we were prepared to believe that Connor is arguing, not that the term terra nullius was used in Lausanne in 1888, but that it merely had its origin in the idea of territorium nullius.
Through the course of his book, however, he repeatedly slips between terra nullius and territorium nullius so as to be able to locate the origin of terra nullius in the 1880s, still 20 years before the first uses of terra nullius in a very different context.
By the end of the book the substitution is complete, the origins of terra nullius have been well and truly invented, with Connor talking about "the men in Lausanne in 1888 who grappled with the idea of terra nullius". At this point one wonders if the book's title has a double meaning.
What is so surprising about Connor's invention of terra nullius is that it entails precisely the kind of word substitution upon which he bases his case against Reynolds. He commits the sin for which he holds Reynolds guilty: namely, he claims that terra nullius existed in a historical period to suit the purposes of his argument while ignoring the evidence before his eyes. Moreover, as Connor points out, words do matter. He does not accept Reynolds's substitution of terra nullius for the 19th-century term res nullius. We presumably, therefore, should not accept territorium nullius for terra nullius?
What Connor's research failed to turn up was that the term terra nullius was first used in 1909 in the debate over the status of the polar regions. Expeditions between 1898 and 1917 provoked a prolonged discussion of the poles' legal status. The legal arguments concerning the North Pole became unsettled by the realisation as late as 1895 that there was no land under the ice. Could it be possible, the international jurists wondered, to establish sovereignty over floating ice? Does the law of the sea apply to frozen water?
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