User:Keepitshort/Terra nullius debate

Terra nullius debate
Note: This is a draft for a new section in "History wars". The basis for it is a substantial account presented in Australian frontier wars by (an)other editor(s). I would aim to reduce the account there to the minimum necessary if the debte can be covered as History wars.

Background
In 1770 a British expedition under the command of then-Lieutenant James Cook made the first voyage by Europeans along the Australian east coast. On 29 April Cook and a small landing party fired on a group of Tharawal people who threatened them when they attempted to come ashore at Botany Bay. Two Tharawal men threw spears at the British, before fleeing in alarm after being fired on again. Cook did not make further contact with the Tharawal, but later established a peaceful relationship with the Kokobujundji people when his ship, HM Bark Endeavour, had to be repaired at present-day Cooktown.

Cook, in his voyage up the east coast of Australia, observed no signs of European-style agriculture or other development by its inhabitants. Some historians argue that the prevailing European law was such land was deemed terra nullius or land belonging to nobody and that Cook disobeyed his orders against claiming possession of Australia without the consent of the native inhabitants. Cook claimed the east coast of the continent for Britain on 23 August 1770. They claim that the British Government accepted this action without further investigation.

Historian Michael Connor argues that this is a misinterpretation of Cook’s orders, of the term terra nullius and of the prevailing European law. The section of Cook’s orders which dealt with the Great South Land ordered him to claim it with the consent of the natives or if uninhabited. However, Australia was not then thought of as the Great South Land. In Cook’s time, the Great South Land was believed to lie in an area to the south of Tahiti and east of New Zealand. The Great South Land was a myth and the appellation only began to be applied to Australia (New Holland) long after the voyages of Cook made that fact clear.

Cook’s orders went on to say “You will also observe with accuracy the Situation of such Islands as you may discover in the Course of your Voyage that have not hitherto been discover’d by any Europeans and take Possession for His Majesty and make Surveys and Draughts of such of them as may appear to be of Consequence, without Suffering yourself however to be thereby diverted from the Object which you are always to have in View, the Discovery of the Southern Continent so often Mentioned.” There is no mention in this section of his orders of either getting the consent of the natives or that the lands must be uninhabited before taking possession on behalf of the King. It was this section of his orders that Cook was obeying in taking possession of the Society Islands, New Zealand and the east coast of Australia (all of which were inhabited).

Connor argues that when Cook took possession of the east coast of Australia, he did so by annexation and not because it was regarded as terra nullius. In European tradition, beyond the acquisition of genuinely unoccupied land (like the Falkland Islands), territory could also be acquired by conquest, cession (including gift and purchase) and by annexation. The concept of terra nullius, a term that was originally defined as meaning “land not under any sovereignty”, is not found in the writings of Cook (in particular the log and journal covering the voyage during which he took possession of Australia) and was never used by the British to justify their claim to Australia. Terra nullius has been confused by some historians with res nullius, a legal term, which means “a thing which has no owner”.

The British Government decided to establish a prison colony in Australia in 1786. Some historians argue that Australia had a European legal status of terra nullius and that this meant that Indigenous Australians were not recognised as having property rights and that territory could be acquired through 'original occupation' rather than conquest or consent. The colony's Governor, Captain Arthur Phillip, was instructed to "live in amity and kindness" with Indigenous Australians, however and sought to avoid conflict.

However, under the alternative explanation of the British acquisition of Australia, i.e. annexation, colonists could be granted the right to occupy such areas of the annexed land that did not appear to be under cultivation or some other kind of development (such as a village or town) but were generally expected to respect the property rights of the original inhabitants. Since, in European terms however, property rights were principally exercised by the cultivation of land, the marking of boundaries and by the building of permanent buildings and settlements, it did not appear to the European eye that nomadic hunter-gatherers claimed what could be considered property rights to the lands they roamed over. Instead, nomadic hunter-gatherers seemed, to the Europeans, to be concerned only with the right to hunt and kill the wild game, which was their principal source of food. Many of the violent incidents between white settlers and Aborigines seem to have occurred when Aborigines objected to settlers hunting wild game, rather than because the settlers were 'occupying' Aboriginal territory.

Violence between Indigenous Australians and Europeans began several months after the First Fleet established Sydney on 26 January 1788. The local Indigenous people became suspicious when the British began to clear land and catch fish, and in May 1788 five convicts were killed and an Indigenous man was wounded. The British grew increasingly concerned when groups of up to three hundred Indigenous people were sighted at the outskirts of the settlement in June. Despite this, Phillip attempted to avoid conflict, and forbade reprisals after being speared in 1790. He did, however, authorise two punitive expeditions in December 1790 after his huntsman was killed, but neither was successful.