Terra Nullius

Aborigines lived in Australia for many thousands of years before Europeans discovered the continent. Claiming the land as terra nullius — 'empty land' or 'land belonging to nobody' — Europeans set out the foundation of land law that was to last more than 200 years and have devastating effects on the original inhabitants of the land.

Captain James Cook's first glimpse of Australia was Point Hicks — which he named after his lieutenant who sited the land — in Gippsland. The date was 19 April 1770. While Cook's journey took him north — and into the history books with the accolade of 'discovering' Terra Australis — others from Europe had been and gone from the southern continent centuries before.

The Portuguese are believed to be the first Europeans to site Australia in the early 16th century on their drive to find new routes to the Indies. One such ship — the Mahogany ship — is the subject of myth and contention. There are oral stories of a Portuguese galleon's hull being sited in the shifting sand-dunes between Warrnambool and Port Fairy, late in the 19th century. However, there is no scientific evidence to support the claims.

From 1605, the Dutch made regular landfalls up and down Australia's west coast — captains heading for Java were in instructed to travel east after rounding Cape Hope. These ships haphazardly collected information about the southern continent's characteristics and dangers, piecing together a fragmented image of the coastline.

The Gulden Zeepaert skippered by Francois Thijssen made a more significant contribution to mapping the coastline. The ship traced much of the southern coast along what is now known as the Great Australian Bight. Starting a theme, Thijssen noted a 'desolate' land and returned uninterested. Another explorer of note included Abel Tasman who discovered Tasmania in 1642, naming his find Van Diemen's Land.

The First Fleet arrived in Port Jackson, Sydney Cove on the 7 February 1788, with convicts, military, and a British flag to raise in possession. The British Crown claimed the sovereignty and ownership of the land as the southern continent was deemed terra nullius.

The legal notion — and fiction — of terra nullius justified ongoing policy and attitudes towards denying the original inhabitants of Australia their land, culture and traditions. It took only 200 years — for many Aboriginal people and clans it took much, much less.

'Native Title' is the name given by the High Court to Indigenous property rights recognised by the court in the Mabo judgment — 3 June 1992. The judgment overthrew the legal fiction of terra nullius. The judgment found that a native title to land existed in 1788, and may continue to exist provided it has not been extinguished by subsequent acts of government and provided Indigenous groups continue to observe their traditional laws and customs.