Ponderance

(May 2003 - March 2007.) Tama's thoughts on the blogosphere, podcasting, popular culture, digital media and citizen journalism posted from a laptop computer somewhere in Perth's isolated, miniature, urban jungle ...

History Wars in Latin: Terra nullius Vs Territorium nullius

Wednesday, March 15, 2006
There has been a great deal of debate in the past months about the applicability of terra nullius as the term which captures the colonial position on indigenous land rights (ie none) which was overturned by the Mabo decision. Henry Reynolds' work fundamentally underpinned that judgement, but has recently been attacked by conservative historians, most notably Michael Connor's work which argues Reynolds was completely inaccurate in sing terra nullius as a term, or representative term, of the colonial position. However, Andrew Fitzmaurice in The Australian today makes a powerful counter-argument, reinforcing the political utility of both Reynolds' work, and the Mabo decision:
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 valorise.


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