Monday, November 28, 2011

Terra Nullius Essay

Terra Nullius Essay

For at least 40,000 years Aborigines have lived in and called Australia home. However the lives of Indigenous Australians changed in 1770 when European white men, unfairly took possession of the land (Simpson,1997). They wrongly declared the country "terra nullius", land owned by no one, and dramatically decreased the population of the aborigines dues to their invasion. Only in the past decade has Australian law recognised that prior to 1770 Indigenous people did live on the land, and in knowing this, the High Court of Australia rejected "terra nullius" from our law. This overturn however, did not and still does not address the fact that Europeans took land from Aborigines with no consent or agreement.

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European, Captain James Cook, arrived in Botany Bay, on the south-eastern coast of Australia in 1770. He claimed possession of the east coast of country for Britain under the doctrine of "terra nullius" ( This doctrine was part of international law, which stated that Britain could take possession of another country if it was uninhabited, if the indigenous people gave them permission, or if they defeated that country in war. However Britain did not follow these rules in Australia, and acted as though the country was uninhabited. The land was declared "terra nullius" and free for appropriation. It has been debated that this occurred because Australia was the only country in the world where Indigenous people were not recognised, therefore no consent was needed. However the British Government may have purposely not acted in accordance with the international law of the time. Either way Australian land was declared empty as if the Aborigines did not exist. Those of different culture, language and lifestyle unfairly claimed their home.

Prior to Australia being taken over by Europeans, Aborigines lived unique and different lives to the rest of the world. They lived in hundreds of different tribes all over the country, and each spoke separate languages. Simple devices like spears and fishnets were highly effective ways of securing food for living. Aborigines also had a very deep connection with their land. Every rock and mountain had a name, and everything from a tree, to animal, to rainbow had a story and meaning (Luling,1979). The arrival of white people not only stole land, but also took away the Aborigines special way of life and culture. Britain made towns and cities, forced Indigenous people to work for them and enforced a totally different way of life. They brought about deadly diseases like smallpox and ultimately reduced the aboriginal population down to the 1.5% of the total population that it is today. Unjustifiably the culture and lifestyle of Indigenous Australians was demolished to the tiny amount that still exists today, but after over 200 years since invasion Australian law has begun to recognise what unfairly occurred in the 18th century.

For hundreds of yeas the rights of Aboriginal people were not recognised, but with the mid 20th century came the acknowledgement of the civil and legal rights of this small proportion of the population. In 1967 the first step toward recognition came when Aborigines were given voting rights. However it was in 1992 with the Mabo and Others v the State of Queensland, that Australia removed the principle of terra nullius for the law, and acknowledged that Aboriginal existence in Australia pre-dates that of Europeans (Farrer, 1999) This case involved Indigenous Australians appealing to the High Court of Australia in an effort to claim land that was rightfully theirs. Along with the outcome removing terra nullius, the Native Title Act 1993 (Cwlth) was implemented into Australian law. This act identifies the common law rights of Indigenous people in regard to land and their ability to negotiate matters involving sacred ground (Farrer, 1999). Nevertheless the Australian government still has not signed anything to formally admit that Australia was not terra nullius and that Europeans broke the law when invading the country. Today and for years to come, Aborigines will be fighting for the written recognition of their pre-1770 existence. The elimination of terra nullius in 1992 has made a stepping-stone for others to one day take action and for the government to one day sign a longed for treaty.

In 1770 Europeans invaded Australia, a country already inhabited with Aborigines. The British government defied international laws of the time, declared the land terra nullius, and took over the country. The lives of Aborigines were changed forever and only in the last century has Australian law begun to acknowledge that Australia was not terra nullius because Indigenous Australians have lived here for many more years than Europeans. Although terra nullius has not been removed from our law, the Australian government is yet to formally endorsed that Europeans took land from Aborigines with no consent or agreement.

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