The ‘Terra Nullius’ Death, 50th year Celebrations: The Long Wade Through the Layers of Deception, have now Drawn to a Close. Melissa Jane Petrak-Mellor

In 2017, The truth behind First Nation’s People’s ‘settlement’ history, has been largely suppressed from the Australian people. Although history cannot deny, Australia’s First Nation’s People’s, are the longest living culture on earth. In 2017, this is ‘just’ the 50th year, in which this ancient indigenous nation have been counted as a people, under Australian Constitutional law. Only after One hundred and fifty years of colonial rule, the Australian First Nation’s People were finally given Australian Constitutional acknowledgement, after the removal of the- Terra Nullius fiction

Although the dark twisted and evil history allowed atrocities to occur; the long wade through the layers of deception, have now drawn to a close, for all who wish know the truth, let them know the truth.

The history of Queensland, has not been pleasant for Australia’s First Peoples, who have suffered the most chilling encounters of brutal subrogation. It was therefore rather surprising to hear the precedent on native title land rights in Australia, concerned the top end of the State.
The Murray Islands customary law of the Merriam people, finally has been recognised, through the doctrine of possession. Subsequently, this precedent case was first bought before the Crown on the 20th May 1982. When Eddie Mabo, and others with a strong connection to the Murray Islands, brought declarations to the High Court of Australia, based on their ownership of certain parcels of land and sea, within the Murray Islands region.
The claimant’s rights to ownership as the original custodians of the Murray Islands, had survived. This continual habitation and lineage, could be traced back before the confirmed annexation had been established by Great Britain.
Under common law, the annexation was dependent upon the concern of settlement. In Australia, it had to be shown at common law- that the land in question, was in fact well ‘settled’ in the English, sense of the word. There was an abundant presence of farms, dwellings, and gardens. As to, was the settled presence was recognised in Ceylon, whereby millions of people worked their own lands, yet it was overlooked in the original Murray Island’s, claim.
The former decision In Mabo (No. 1) was said to be invalid on the account it directly conflicted with the Commonwealth Racial Discrimination Act 1975. The decision was flawed with misgivings, partly due to the nature of deception surrounding the annexation of Murray Islands in 1879. This separation was done under Sir Thomas McIlwraith, who was Premier of Queensland, at the time. McIlwraith, was utterly defiant towards the authorities in London, when he proclaimed the annexation of the Murray Islands, in the name of Queen Victoria, this did eventually lead to London, reluctantly confirming the annexation. Similarly In 1992, the doctrine of ‘Terra Nullius’ confirmed in Milirrpum v Nabalco, known as the Gove case, this principle was overruled by the High Court of Australia.
In Mabo (no. 2), the annexation of the Murray Islands, is precisely where Justice Dawson, began by stating, -: “there can be no doubt that it was, and remains legally effective.” The foundation of this statement, links right back to the claims that Australia, was settled; rather than conquered and therefore, from the declared moment of annexation the land became the property of the Crown.
The annexation was subrogated under British rule, using the lie of ‘Terra Nullius’. This in turn, then denied the rights of any Sovereign traditional owner’s access to their own ‘settled’ lands and therefore, their traditional connection to land and country was rendered null-in void. Justice Dawson, proclaimed any native rights, had then been extinguished in-light of the annexation of the Murray Islands. Dawson, added- it was an issue of legal responsibility that lies in the statutes found in common law, and not with the courts. He went on to look to the long line of legal tradition, and noted Australia, received sovereignty from the British Crown, from the annexations of -:1788, 1824, 1829 and again in 1879. He relied upon the past cases of Doe and Wilson v Terry (1889). This case carried erroneous and preposterous notion that Australia, was unoccupied and a wasteland.
This essay, will highlight carefully documented history and therefore reject the notion that Australia, lay waste and unoccupied. The Judgments of Dawson, cast a devastating situation and provide no acknowledgement whatsoever, concerning traditional, cultural or property rights for Australia’s First Peoples. These rights, were first recognised under international law, in the eighteenth century; yet – denied by Dawson. Furthermore, Dawson, dismissed the Father of International law, John Selden. Selden’s, jurisprudential account in 1652, predates settlement in Australia; and he was quite specific on the law of possession- when he clarified,
‘that vacancies are his who first apprehends by occupation,’
Modern scholars of jurisprudence state,
‘…the right to use that which one has created, possessed or occupied without wrongfully taking by another, is fundamental to the legal system….common law has continued to regard possession as proof of ownership.’
Dawson, in his dissent of Mabo (no2), chose to avoid any jurisprudential observations documented first hand- by the very people, who witnessed grave injustices done towards Australia’s First People, – the likes of Earl Grey, Gawler and Arthur, all of whom will be briefly explored in this essay.
Dawson, did not raise an eyebrow at the social injustices raised by John Batman, regarding Tasmania. He did not show any concern that after the First Australians, had their land invaded and taken from them. The First Australian’s, were disrespected, as then described by the Supreme Court of New South Wales during the Macdonald v Lev, case as –
“..Wandering tribes, living without certain habitation and without laws [and ] were never in the situation of a conquered people”,”
Later it was held in the Privy Council case of Cooper v Stuart in 1889, Lord Watson emphasised-
The great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony, which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.
This has had disturbing consequences for the First Australians and was no- doubt spurred on by the writings of Bentham and later Austin on the rejection of the law-
“Among the savages of New South Wales, whose way of living is so well known to us: no habit of obedience, and thence no government – no government, and thence no laws. . . .”
This argument continued in to the Boer war, where not only were First Australians denied a connection to land they were denied access back to Australia, under the white Australia policy Immigration Restriction Act (1901). ‘This original clash of cultures has, in many respects, yet to be resolved.’

The assenting decision held by the majority in Mabo, was-
“The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius…” (Brennan J, Mason CJ and McHugh J concurring, at [63].
This proved the existence of laws concerning the inheritance of land had pre-existed the White invasion. It proved that sovereignty has always existed in the passing on of land from generation to generation, through the male blood lines, as is the tradition in the Torres’s Strait, proving sovereignty had existed prior to colonisation. However, “The long shadow of the Eighteenth Century lies athwart
In Mabo, no 2, claim was made about any land on mainland Australia, Dawson chose to reject the early writings of George Gawler, which indicate the First Australians, indeed had true proprietary rights in the soil. When we consider the writings and observations of the early colonists we discover the most respectful comparisons existed in history; between Australia’s First People and the well-to-do English aristocratic upper-class society- that generally one can only be born into. When Gawler, drew this parallel and compared the First Australians to English Gentlemen; it should be considered this was an era, where class distinction was more prevalent than it is nowadays. Gawler’s, observation is of paramount importance. Gawler, has to be understood in both the context and time of which it was made, the First Nation Peoples of Australia, were not compared to peasants, who equally tilled the soil not at all. Gawler’s, writings were specific.
‘They (Australia’s First Nation’s People) hunt the game upon (their lands), take fish in and eat the roots on their own district just, as much as “English gentlemen” kills deer and sheep or fish, in his (own) private park. The property is equally positive and well defined. ‘[Emphasise added]
The observations of a highly organised society, also confer Australia’s First Nation people, have a system of tenure, and proprietary rights in the soil.

Many jurists, have conveniently misunderstood or ignored the findings of the Colonial Office. The law was defied often for selfish capital gains, by the early settlers, pastoralists, Government and even the Courts.
Earl Grey, supported the provisions found in The Waste Land Act (1846). Grey, viewed the unlawful act of removing The First Nation’s People, off the land, as an illegal act. As the Secretary of the State, at the time he wrote to Governor Fitzroy, informing him of the fact it was completely illegal, to force the First Nation’s People’s, from their lands, (be the land) cattle stations or pastoral leases, the law afforded the rights, and protections to the First Australians for any such aggression they suffered.
The Terra Nullius, myth- had been rejected and three years earlier this deliberate separation by the colonials had been described ‘as the root of the evil.’ Bishop Ploding, explained to the New South Wales, Legislative Council, in 1845, that the European settlement of lands, was done ‘without invitation’ and with ‘no exchange’ of compensation. This was a blatant disregard to earlier decisions concerning the First Australians to be bought into line with the rest of the British empire: when it was established by the Colonial Office, in the late 1830’s and by 1840’
“…that such lands as may be necessary for their support…they should be provided.’
This was coupled by George Arthur’s, insistence that the recognition of native title was vital’, he was aware of the legalities and the contemporary view and how native title was bound up in common law. He retained a copy of the legal writings of Burge, Follet and Pemberton. He drew up instructions that emphasised the First Nation’s People were to enjoy freedom and -engage in the cultivation of their lands and to watch over their rights and interests. Furthermore, he called for the protection against encroachment upon their property.
In May 1839, however- these requests remained, largely ignored when the Surveyor General, showed a map to the Chief Protector, G.A Robinson, the First Nation’s Peoples of Australia, were disregarded. The map in question at the time, uncovered that in a 30 Mile Sq. radius; there was not one single reserve set aside for the First Nation’s Peoples. Robinson’s, interpretation of the map, highlighted the ramifications this map, would bring to light if displayed in England; when he remarked, ‘people would see at once and the mistreatment and deliberate unlawful forced dispossession of the First Nation’s Peoples would become apparent. The Government, had legal onus to protect the First Australians, Robinson, saw through the deception which was filtering through to London. This misinformation created the impossible situation for the First Australians, when Robinson, stated-
‘…this is a complete system of expulsion and extermination for first the purchaser of their lands drives them onto other purchased lands, and then on ad infinitum.’
The First Nation’s People’s proprietary right to property, was recognised throughout main-land Australia, and the officers of the First Fleet, did observe the boundaries of the differing tribal territories, in and around Botany Bay at the time of settlement.

The First Nation’s People of Australia, had much the same concept as John Locke, Their respects consolidated on the boundaries of properties. The Officers from the First Fleet, noted the set boundaries of various tribal territories. Michael Kirby, explains the situation perfectly,
‘Locke’s traditional invocation of “Crying to Heaven,” when imperfections cannot be cured, no longer seems acceptable in today’s world.’
In-fact history plays tribute to the lifestyle of the First Australians, in the Western districts of Victoria, villages of stone huts, and well landscaped properties, many spanning ten acres were designed to harvest the eels, as they journeyed through the Victorian inland waters.

The first Australians, were commended on the elaborate fish traps found all along the coastal regions of Australia. Early settlers would no doubt have rejoiced when they were shown a network of paths leading to man-made water wells, a necessity to survival in the Australian harsh climate. Earl Grey, was so impressed by his discoveries noting the country of Western Australia had
..’been inhabited for a long series of years, for more had been done to secure a provision from the ground by hard labour than I could have believed it [possible] in the power of uncivilised man to accomplish.’ [Emphasise added].

This indicated an affinity with the land, and the use of well-designed tools coupled with a systematic approach to farming.

Henry Reynolds, notes this methodical approach in land care, was also seen in the gathering of game into a particular area, achieved as a direct result of the seasonal burnings of the grasslands, along the banks of creeks and water holes, the forest was equally attended to.

The First Australians were also compared to stockholders, who have seasonal burn off on their properties. One of the earliest signs of white intervention on the Australian landscape is noted by Thomas Mitchell, when he complains
‘a man could no longer gallop without impediment and see whole miles before him, as the thick forests of young trees now stood in the way.’
Many observations of early land care processes were documented by the early settlers these are the underpinnings of an exclusive intellectual society, are a common theme throughout history of the colony and are a credit to the First Peoples of Australia.
Henderson, noted in 1832, ‘the limits of their retrospective hunting grounds appear to be distinctly recognised.’ Earl George Grey, pointed to the fact that first Australians, knew the limits of their land.
JD Lang, notes the obvious emotional attachment to land displayed a complete sense of property and proprietary rights in the soil. Each tribe had their own respective territory. It was noted that our first Australians, elected ambassadors. These Ambassadors would be sent ahead of the rest of the tribe, to gain permission to enter neighbouring tribal lands. This was a formality that was followed before all formal ceremonies, and joint corroborees.

Respect was reciprocal between neighbouring tribes and trespass was observed as a sign of war and aggression by the Polish explorer Strzelecki, when he noted there were severe punishments as trespass was prohibited among the First Australians. The history proves nothing was done in ignorance. Even the underlying precedent decision held in Mabo (no2) Native title is sui generis; not a personal right, not a proprietary right. The term native title is based on occupation, and does not constitute any form of ownership; native title cannot be sold, traded or dealt in any way, other than be given back to the crown.
The jurisprudence found in ‘the Marshall cases’, laid the foundation for United States law concerning Native Americans. The Chief Justice Marshall’s, case of Johnston v M’Intosh, (1823)- was considered in Mabo (no2) and are fundamentally based on jurisprudence, which is also followed in Canadian law.

The assumed doctrine of discovery draws on the jurisprudential works of Vattel. These jurisprudential underpinnings, shaped common law in Australia, in the first half of the 19th century. Imperial authorities denied ‘the pre-existing rights, of its ancient possessors’. Justice Deane, took the Marshall, cases into full consideration during Mabo, and was supported by the decision in the Gove land rights case, recognising the pre-existence of the laws of The First Peoples of Australia. Justice Deane, & majority in the High Court decision of the Mabo (no2) case expressed the common law of Australia,
‘should be read in the same sense, as that of the United States, to recognise the rights of the original inhabitants (subject to the powers of government) to retain the occupancy of their traditional land.’
The long wade through the layers of deception, have now drawn to a close through the majority decision held in Mabo (no2). (Petrak-Mellor)

The Torres Strait people have gone on from strength to strength, and have used education as a vessel for empowerment of their peoples.

Gray, S. (1998). Notes on South Africa and Australian Theatre. South African Theatre Journal, 12(1-2), 172-177.
Kerwin, D. (2013). The lost trackers: Aboriginal servicemen in the 2nd Boer War. Sabretache, 54(1), 4.
Taçon, P. (2008). Marks of possession: the archaeology of territory and cross-cultural encounter in Australia and South Africa. Handbook of Landscape Archaeology, 218-227.
Maynard, J. (2015). ‘Let us go’… it’s a’Blackfellows’ War’: Aborigines and the Boer War. Aboriginal History, 143-162

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