Evidence tailored to fit an argument

At the heart of Australia's history wars is a debate about the honest use of historical evidence. In The Fabrication of Aboriginal History, Keith Windschuttle raised some very troubling questions about the way in which some of our most prominent historians, including Henry Reynolds and Lyndall Ryan, had constructed historical claims on the basis of "fabricated" evidence about frontier conflict.

Now Michael Connor's book, The Invention of Terra Nullius, published by Windschuttle, argues that the term of terra nullius was never employed in the 18th and 19th centuries and is another case of historical fabrication. For Connor, Reynolds is again the historian the most culpable.

When, for example, citing a definition of terra nullius, Reynolds inserted terra nullius in square brackets into the passage he quoted where the author, as Connor points out "used the phrase res nullius [nobody's thing] not terra nullius". Connor's inevitable conclusion is that if terra nullius were a myth, the legal foundations of the High Court's Mabo judgment look wobbly (although this would assume that the term was indeed important for that judgment).

It comes, therefore, as quite a surprise to find that Connor has himself "fabricated" his own evidence for the origins of terra nullius, if by fabrication we understand attributing historical facts to evidence that does not support them. Reynolds "fabricated" terra nullius in the sense that he imposed it on a historical record in which the term was never used. He did so to support a particular interpretation of Aboriginal dispossession.

Connor's reasons are somewhat different but no less important to his argument. Having revealed that terra nullius was "invented", Connor is obliged to explain from where the doctrine came. It appears that he couldn't pin it down and instead of leaving it as the deeply unsatisfactory "of uncertain origin" he, like Reynolds, simply attributes the origin of the idea to material in which the words terra nullius are absent.

This fabrication is extraordinary in the context of the current debate and Connor's own polemic.

Connor argues that "The beginning of our encounter with terra nullius may by traced to Lausanne, Switzerland, in 1888. One hundred years after the founding of Australia, 13 years before the commonwealth, territorium nullius was discussed during a session of the Institute of International Law."

This statement might be allowed to pass if we were prepared to believe that Connor is arguing, not that the term terra nullius was used in Lausanne in 1888, but that it merely had its origin in the idea of territorium nullius.

Through the course of his book, however, he repeatedly slips between terra nullius and territorium nullius so as to be able to locate the origin of terra nullius in the 1880s, still 20 years before the first uses of terra nullius in a very different context.

By the end of the book the substitution is complete, the origins of terra nullius have been well and truly invented, with Connor talking about "the men in Lausanne in 1888 who grappled with the idea of terra nullius". At this point one wonders if the book's title has a double meaning.

What is so surprising about Connor's invention of terra nullius is that it entails precisely the kind of word substitution upon which he bases his case against Reynolds. He commits the sin for which he holds Reynolds guilty: namely, he claims that terra nullius existed in a historical period to suit the purposes of his argument while ignoring the evidence before his eyes. Moreover, as Connor points out, words do matter. He does not accept Reynolds's substitution of terra nullius for the 19th-century term res nullius. We presumably, therefore, should not accept territorium nullius for terra nullius?

What Connor's research failed to turn up was that the term terra nullius was first used in 1909 in the debate over the status of the polar regions. Expeditions between 1898 and 1917 provoked a prolonged discussion of the poles' legal status. The legal arguments concerning the North Pole became unsettled by the realisation as late as 1895 that there was no land under the ice. Could it be possible, the international jurists wondered, to establish sovereignty over floating ice? Does the law of the sea apply to frozen water?

The arguments found firmer ground when the jurists turned to the Arctic islands, specifically Spitsbergen. Before 1925, Spitsbergen remained unprotected by the laws of any state. In 1909, Italian jurist Camille Piccioni described the island as terra nullius, describing in part the legal vacuum.

Territorium nullius was coined in 1886 to codify rules for the carve-up of Africa. The very different contexts lent the respective terms different meanings, not the least of which is that one refers to territory (a political entity) and the other to land (a material entity). Territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property.

Territorium nullius was thus appropriate to African tribes who were widely believed to have property but not sovereignty and terra nullius was believed to be appropriate to polar regions (or to what were believed to be the most primitive of peoples) where even property was not exercised. These differences deserve some serious historical research because they have implications for subsequent uses of both terms in the Australian context.

Terra nullius was certainly not reinvented in the 1970s and 1980s by Australian historians motivated by the politics of land rights. In 1939, Ernest Scott made the much-cited first use of the term applied to Australian history: he attributed this to an inquiry from an American professor. The professor was Philip C. Jessup, later a prominent UN diplomat and member of the International Court of Justice. Jessup employed terra nullius in the 1950s, this time to address one of the most worrying questions of the space race: namely, could states claim sovereignty over parts of outer space, such as the moon?

Terra nullius was also used in Canada in the 1970s, before Reynolds and Mabo, to discuss Indigenous land claims. Indeed, the uses of terra nullius in 20th century legal discourse are rich and varied. It is a strange distortion of history to represent, as Connor does, the ICJ's 1975 western Sahara advisory opinion as the source of modern discussions of terra nullius.

The fact remains that the words terra nullius are absent from the 19th century historical record. Before the 20th century no person would have recognised the term. Should we, therefore, wipe the slate clean and rewrite the story of Aboriginal dispossession as Connor suggests? Certainly, but any account of the justification of dispossession is not going to look dramatically different.

From the 16th to the 20th century, the dominant legal discourse employed to justify colonisation was natural law. It permeated common law discussions of colonisation, and it prevailed over religion, flag-raising and every other excuse.

One of the foundation stones of natural law was the principle that anything that belongs to no one becomes the property of the first taker. This assumption is fundamental to the understanding of property in Western cultures. It was used to justify colonisation in a vast spectrum of different circumstances, producing the argument that indigenous peoples had not exploited nature sufficiently for them to have created extended property rights, let alone sovereignty.

The basis of international law is in natural law, so when the international lawyers coined the term terra nullius they did so as a way of summarising the natural law understanding of property, and in doing so they summarised the most potent argument that had been used to justify colonisation.

This is why terra nullius, although crude when used historically because it is anachronistic, was accepted by most Australian historians and by the wider community as a description of the arguments employed to dispossess Indigenous peoples.

The twist in this story is that the natural law understanding of property was used not only to justify dispossession but was initially developed and then used over 500 years by opponents of colonisation who declared that Indigenous peoples had established property and could not be dispossessed. This opposition was motivated not by humanitarian concern for Indigenous peoples but by a serious concern about the liberty of metropolitan subjects and maintaining the rule of law.

Even when freedom from arbitrary power over property and life had been secured to some degree within Europe, many Europeans continued to fear that their grip on these new-found freedoms was tenuous. They watched as metropolitan governments trampled on the same rights in the colonies - rights such as the secure possession of property, free from arbitrary imposition - that had been so dearly won in Europe. They feared that these abuses would very soon be repatriated into the European states from which they had been expelled.

What difference does it make that the natural law tradition (including the 20th century concept of terra nullius) was used both to justify and to oppose colonial dispossession? One of the central questions discussed by historians internationally for the past 30 years is the degree to which Western political institutions, or liberalism, were implicated in the expansion of Europe and the consequent miseries of slavery and the dispossession of countless colonised peoples.

Overwhelming evidence has been produced that demonstrates that central figures in the development of Western understandings of liberty, such as John Locke and John Stuart Mill, were deeply involved in the business of empire and, what is more, used that involvement to develop their understanding of freedom. In consequence, there are many within this debate who regard Western political institutions as irredeemable in the face of the challenges posed by decolonisation.

If, however, we appreciate that there was a Western political tradition that defended the rights of colonised peoples and, moreover, saw the freedom of those peoples as inherently linked to the freedom of the coloniser, it becomes possible to think about reconciling Indigenous rights and Western democracy (which would seem a pragmatic outcome, at the least, given that liberalism does not seem likely to collapse in the near future).

It is in this context that the Mabo judgment must be understood. The judgment sits in a 500-year tradition of the negative use of natural law arguments to defend Indigenous rights. Rather than overturning the "doctrine of terra nullius", the judgment was keeping alive a tradition of using the tools of natural law and, in this instance, terra nullius, to argue against dispossession.

By arguing that Australia had not been terra nullius at the time of colonial occupation the judges were acknowledging the natural law argument that Aboriginal property rights existed and continued to exist where a relationship to the land was maintained. This continuing relationship between Aboriginal people and land means that the history of colonial occupation is not simply a fait accompli, as historian John Hirst has recently argued, but a part of the present. Mabo is not good history, but it is clearly continuous with a Western judicial tradition that attempted to rescue liberty (or in this case liberal democracy) from the threat posed by the dispossession of colonised peoples.

This is what makes the attack on the Mabo judgment by several commentators on the Right particularly misguided. Out of an ignorance of the complex history of Western political thought, these opinion writers are in effect attacking the liberal tradition that they valourise.