A replica of Captain Cook’s ship in Sydney: ‘The marks of Indigenous civilisation stretching to 60,000 years were all over this continent when Cook arrived.’ Photograph: The Sydney Morning Herald/Fairfax Media via Getty Images
A quarter of a century to the day since the high court overturned the proposition of terra nullius in the Mabo case, it’s worth contemplating just how laughable was the British assertion that this land belonged to no one when Captain Cook sailed in.
The marks of Indigenous civilisation stretching to 60,000 years were all over this vast continent when Cook arrived at Kamay – now Botany Bay – aboard the Endeavour in autumn 1770. For starters, some 750,000 Indigenous people lived here and their elaborate life signs – shell middens as high as today’s city buildings, age-old tracks, multi-generational camps, boats traversing the waterway trade routes, scarred trees from which canoes had been cut, elaborate rock carvings and paintings, fire-controlled grasslands, ancient burial grounds – prevailed.
It was a prescient first contact ahead of the first fleet invasion in 1788: Cook’s men shot at least one Gweagal tribesman and stole traditional weapons that remain, today, in the British Museum.
In Cook’s cabin were his secret instructions from the British admiralty that read, in part: “You are … with the Consent of the Natives to take Possession of Convenient Situations in the Country in the Name of the King of Great Britain: Or: if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions.”
Yes … “with the Consent of the Natives …”
Which one of those Gweagal tribesmen or women said: “Sure, Captain – take it all”?
Cook claimed the lot, nonetheless.
It’s never been clear if the high court in Mabo v Queensland (No 2) carefully considered the admiralty’s instructions to Cook in determining that the Meriam people of the Torres Strait held traditional ownership of their land and that native title, therefore, applied to all Indigenous people.
But implicit in those secret instructions is the implication that the land, if inhabited, was someone else’s for the asking.
It underscores, in part, the vast, almost comic, absurdist fiction of the convenient notion of some Australian terra nullius – “nobody’s land” – that endured for so long after invasion and occupation.
In 1835 John Batman – a founding pioneer of Victoria to whom whitefella history has been exceedingly generous – struck what he deemed a “treaty” with the local Aboriginal people to buy the land on which Melbourne would be founded, for, among other exotic trinkets, some blankets and axes. Richard Bourke – the governor of New South Wales, which administered the then division of Victoria – indicated the primacy of the terra nullius doctrine by declaring Batman’s deal illegitimate because only the crown was entitled to distribute land. It was not, in other words, in possession of the “natives” to trade.
The notion of terra nullius was later implicitly upheld in the Northern Territory supreme court’s 1971 Gove land rights case brought by the Yolngu people. It ruled that the crown had primacy over any Indigenous rights to the land (if such rights existed), which belonged to nobody at the time of British occupation. The Northern Territory supreme court justice Richard Blackburn famously said the people belonged to the land rather than the land to the people.
While government-granted land rights – and native title – continue to deliver too little real autonomy over some traditional lands to Indigenous people, the legal case of 33 Meriam people led by Eddie Koiki Mabo opened the possibility that Aboriginal and Torres Strait islanders could, through the invader’s court processes, have their enduring traditional laws and customs, and associations with land and the rights that ought to entail, acknowledged.
It is often referred to as a “historic” moment. It is in the truest sense a moment that upended white “Australian history” – when the state was forced to nod to the irrefutable primacy of a continental Indigenous land connection and custodianship, traditional law and some associated rights.
The highest court in the settler state had, after 222 years, acknowledged that the land did, in fact, belong to the blackfellas when the tall ships arrived.
Eddie Mabo had spent a lifetime fighting for acknowledgement of Meriam land rights. He died five months before the high court’s ruling.
The Keating government’s 1993 Native Title Act clarified to some degree stakeholders’ legal positions and established a federal court process to deal with claims.
More than 40% of the continent is now covered by a combination of land rights (meaning, federal and state parliamentary social justice responses to claims such as that at Gove, by Gough Whitlam and state governments) and exclusive and non-exclusive native title.
But establishing native title is often extremely difficult and divisive, sometimes pitting claimant against claimant owing to the required proof of “continuous” connection to traditional lands from which First Peoples were eradicated or otherwise dispossessed during occupation and colonisation.
The antecedents of some claimants were forcibly shifted to missions and reserves. Their proof of connection to land often relies, ironically, on a combination of non-Indigenous anthropology, old, flawed white mapping and traditional story – oral history. It is a difficult two-way test of continuity of rights and interests under traditional law and maintenance of connection with lands and water since colonisation.
Predictably, perhaps, some hysteria that suburban backyards would be under threat from traditional ownership claims accompanied the Mabo decision and subsequent native title legislation. This was never a reality.
While native title can coexist in some circumstances with pastoral leases (leasehold overrides native title where rights conflict), “exclusive possession” may also exist only in certain places such as unallocated or vacant crown land – usually in the remote centre and north of the continent.
The bottom line where native title and the Australian court process meets: it’s easier for those whose connection to traditional land was less disrupted by invasion to assert their rights. This leads to conflicts over land between them and others who were more impacted and, therefore, find it harder to establish continuous connection.
So, while terra nullius was proved to be a laughable fiction, degrees of colonial disruption – or invasion – will now largely determine the success of native title claims.
And that’s another unjust, malevolent legacy of colonialism and occupation for Aboriginal and Torres Strait Islander people.