Evidence tailored to fit an argument

The arguments found firmer ground when the jurists turned to the Arctic islands, specifically Spitsbergen. Before 1925, Spitsbergen remained unprotected by the laws of any state. In 1909, Italian jurist Camille Piccioni described the island as terra nullius, describing in part the legal vacuum.

Territorium nullius was coined in 1886 to codify rules for the carve-up of Africa. The very different contexts lent the respective terms different meanings, not the least of which is that one refers to territory (a political entity) and the other to land (a material entity). Territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property.

Territorium nullius was thus appropriate to African tribes who were widely believed to have property but not sovereignty and terra nullius was believed to be appropriate to polar regions (or to what were believed to be the most primitive of peoples) where even property was not exercised. These differences deserve some serious historical research because they have implications for subsequent uses of both terms in the Australian context.

Terra nullius was certainly not reinvented in the 1970s and 1980s by Australian historians motivated by the politics of land rights. In 1939, Ernest Scott made the much-cited first use of the term applied to Australian history: he attributed this to an inquiry from an American professor. The professor was Philip C. Jessup, later a prominent UN diplomat and member of the International Court of Justice. Jessup employed terra nullius in the 1950s, this time to address one of the most worrying questions of the space race: namely, could states claim sovereignty over parts of outer space, such as the moon?

Terra nullius was also used in Canada in the 1970s, before Reynolds and Mabo, to discuss Indigenous land claims. Indeed, the uses of terra nullius in 20th century legal discourse are rich and varied. It is a strange distortion of history to represent, as Connor does, the ICJ's 1975 western Sahara advisory opinion as the source of modern discussions of terra nullius.

The fact remains that the words terra nullius are absent from the 19th century historical record. Before the 20th century no person would have recognised the term. Should we, therefore, wipe the slate clean and rewrite the story of Aboriginal dispossession as Connor suggests? Certainly, but any account of the justification of dispossession is not going to look dramatically different.

From the 16th to the 20th century, the dominant legal discourse employed to justify colonisation was natural law. It permeated common law discussions of colonisation, and it prevailed over religion, flag-raising and every other excuse.

One of the foundation stones of natural law was the principle that anything that belongs to no one becomes the property of the first taker. This assumption is fundamental to the understanding of property in Western cultures. It was used to justify colonisation in a vast spectrum of different circumstances, producing the argument that indigenous peoples had not exploited nature sufficiently for them to have created extended property rights, let alone sovereignty.

The basis of international law is in natural law, so when the international lawyers coined the term terra nullius they did so as a way of summarising the natural law understanding of property, and in doing so they summarised the most potent argument that had been used to justify colonisation.

This is why terra nullius, although crude when used historically because it is anachronistic, was accepted by most Australian historians and by the wider community as a description of the arguments employed to dispossess Indigenous peoples.

The twist in this story is that the natural law understanding of property was used not only to justify dispossession but was initially developed and then used over 500 years by opponents of colonisation who declared that Indigenous peoples had established property and could not be dispossessed. This opposition was motivated not by humanitarian concern for Indigenous peoples but by a serious concern about the liberty of metropolitan subjects and maintaining the rule of law.

Even when freedom from arbitrary power over property and life had been secured to some degree within Europe, many Europeans continued to fear that their grip on these new-found freedoms was tenuous. They watched as metropolitan governments trampled on the same rights in the colonies - rights such as the secure possession of property, free from arbitrary imposition - that had been so dearly won in Europe. They feared that these abuses would very soon be repatriated into the European states from which they had been expelled.