Discovering Indigenous Lands : The Doctrine of Discovery in the English Colonies by Tracey Lindberg & Tracey Lindberg & Tracey Lindberg & Tracey Lindberg

Discovering Indigenous Lands : The Doctrine of Discovery in the English Colonies by Tracey Lindberg & Tracey Lindberg & Tracey Lindberg & Tracey Lindberg

Author:Tracey Lindberg & Tracey Lindberg & Tracey Lindberg & Tracey Lindberg [Lindberg, Tracey]
Language: eng
Format: epub
ISBN: 9780199579815
Publisher: Oxford University Press

F. Terra Nullius as the Exercise of the Doctrine of Discovery

From the first stages of the assertion of sovereignty over Australia, the British made it clear that British laws operated over its newly acquired territory. It gave no recognition to the laws of Aboriginal people or recognition of their interests and rights to their land.

The concept of terra nullius was employed in practice many years before it formally became part of the Australian legal system. Aboriginal people had no legal standing to contest it. The earliest mention of the concept of terra nullius in the colonial laws was in a dispute that had nothing to do with Aboriginal people and their land. In 1819, a dispute arose between Governor Macquarie and a judge of the New South Wales Supreme Court, Barron Field, about the imposition of taxes—more specifically, whether the Governor had the ability to levy taxes or whether that had to be done through the Parliament. The Secretary for the Colonies, Earl Bathurst, referred the matter to the Attorney-General Samuel Shepherd and the Solicitor General Robert Gifford.

The matter was eventually resolved in favour of Field’s view and Parliament, not the Crown, had the right to levy taxes. In conquered colonies, the issue of taxes was one that was left to the Crown’s prerogative; in settled colonies, taxes were a matter for the Parliament. Shepherd and Gifford found that, ‘the part of New South Wales possessed by His Majesty, not having been acquired by conquest or cession, but taken possession of by him as desert and uninhabited’.19 While not concerning Aboriginal people, the decision had a direct bearing on them and their legal status. Under British law, Aboriginal people had no rights to their land.

The colonial law further acknowledged its reliance on the doctrine of terra nullius in 1822 when the issue arose as to whether the new Governor of New South Wales, Thomas Brisbane, had the authority to make laws by proclamation. In an opinion from the Colonial Office, it was reiterated that the power was delegated to Parliament. There were only two situations where the Crown, through the Governor, could exercise direct power—where lands had been conquered or they had been voluntarily ceded. The Colonial Office determined that New South Wales did not fall into either of these categories because it was ‘acquired neither by conquest nor cession, but by the mere occupation of a desert or uninhabited land’.20

Despite this reiteration of the doctrine of terra nullius and its consequence of acknowledging no rights flowing to Aboriginal people, there is some evidence that colonial officials were not entirely comfortable with the legitimacy and accuracy of the doctrine of terra nullius and the assumption that Aboriginal people had no rights to their lands. For example, in 1814, Governor Macquarie established a school for Aboriginal children and land that was to be occupied and farmed by Aboriginal people in Parramatta. In making the proclamation, he said that the grant was given to them because they had been excluded as ‘the


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