Terra Nullius and Social Justice 1
TERRANULLIUS AND SOCIAL JUSTICE
Inthe early 16thto the late 19thcentury, British continued with their dominance in the world throughcolonization. It could be echoed from American to the fertile landsof Africa. Australia was not that fortunate to escape the exploratorycharacteristic of British. In fact, when they landed in Australiathey considered the land uninhabited, an action which wouldsignificantly shape the lives of Indigenous Australian people(Steffens, Jamieson, & Kapellas, 2016).
Historically,British were superior and in their efforts to civilize people, spreadChristianity and expand their territory, under the Captainship ofJames Cook they landed in Botany Bay in Australia and claimed theland under terra nullius. This Latin term was derived from Roman law,and it means nobody’s land. It has been used by international lawto define a territory that has no sovereignty of any state. Cook,thus claimed eastern Australia for the Crown on the concept ofdiscovery (Reynolds, 2003).
Thus,this research essay seeks to answer how the British claimed Australiaunder terra nullius and the social injustice the Indigenous peoplesuffered as a result of the actions. Previously, I had littleknowledge about the Indigenous people, but this time I am approachingthis assignment from researcher’s point of view based on the classmaterials. Nevertheless, I have also experienced discrimination frommy society especially with the issue of integrating with Muslims.Experiencing the unequal treatment from an early age made mequestion: how would the society be if nobody upheld justice? Mypassion for advocating for fairness led me to select the unit becauseI believed it would enhance my understanding of the social justiceissue and it has in regard to the indigenous people.
Historically,there were three ways in which British justified their settlement inanother country. First, if it was uninhabited in addition to lackingsovereignty, they could simply claim the land for themselves.Secondly, they could seek permission to inhabit from Indigenouspeople and finally, through invasion and war (Reynolds, 2003).
Furthermore,they added that if a land was discovered and its Indigenous peoplelacked a proper political system, legal codes, and recognizedauthority, it could be annexed legitimately. Consequently, someBritish lawyers have justified the claims of colonization on theconcept that the inability of the Indigenous people to provide agovernment system that could be termed as suitable by Britishcustoms, denied that nation the recognition to be termed sovereign(Reynolds, 2003).
Hence,it is not surprising that the British claimed Australia. The Britishasserted to have inhabited Australia on the concept that it wasunoccupied because the Indigenous people did not cultivate or buildpermanent structures to show any attachment to the land (Reynolds,2003). This was Locke’s idea, which justified the dispossession ofland as they had not mixed soil with their labor. The concept wasderived from Christianity by the fact that humans were givenresponsibility to till their lands (Reynolds, 2003).
Therefore,it is only logical that they based their claim of ownership on theideology of cultivating lands and erecting permanent structures,which symbolized tenure (Reynolds, 2003). “The Indigenous peoplewere technically described to have ranged over the land rather thanresided on it. Thus, the Europeans, acquired the unassailable legalposition of being the first occupants,” (Reynolds, 2003). In VonMartens words, “a country becomes the sole proprietor and theabsolute owner of a land when it possesses its territory as the firstoccupier and establishes itself there with a future intent,”(Reynolds, 2003).
Therefore,British discovered the Australian land and had intentions to buildpermanent structures and expand their territory. Under theinternational law of land, possession can be lost when a personphysically abandons a land or seizes to attach to it. The fact thatthe Indigenous people of Australia were perceived by British to benomads and moved from one place to another without having anysentimental attachment to the land, justified their claim of theAustralian land(Short, 2016).
Asa consequence, the British considered huge lands in Australia to beuninhabited giving them the go-ahead to claim them. The argument wassupported by William Black-Stone who claimed that
“aland being thus originally acquired by the first taker, which takingamounts to a declaration that he intends to appropriate the thing tohis use, it remains in him, by the principle of universal law, untilsuch a time as he does some other act which shows his intention toabandon it (Reynolds, 2003).
Theinterpretation of this statement in the British point of view tojustify their actions is that the Indigenous people ceased to ownthose lands that they had previously used when they left it andtravelled to other areas where they carried on with their activitieswithout intentions to repossess.
Onthe other hand, what was a territory expansion mission by the Britishwas seen as an act of trespass and invasion by the Indigenous people,which threatened their civilization. January, 26th 1788, the datethat the British set their flag on the Australian soil, meant thedeath of sovereignty and liberty of the Indigenous. It is for thisreason that this date was set as the Australian national day whenthey commemorate the day that British set their flag on Australiansoil (Reynolds, 2003).
Asthe British possessed this land, they robbed the Indigenous peopletheir fishing and hunting grounds. The relationship between these twopeople was strained the fact that the British saw themselves assuperior while Indigenous were uncivilized and needed help (Reynolds,2003). To understand the social injustice caused by colonization ofAustralian and its implications let’s take a close look at history.
TheBritish came to Australia and inhabited the land without regard tothe Indigenous people’s culture, land and property. This createdconflict, but due to British’s superiority the better settlementswere occupied by them, while the Indigenous people were left to livein other areas (Griffiths,Coleman, Lee, & Madden, 2016).Such actions prompted various rebellions one which was led by thePemulwuy. He was an Indigenous who lived in Botany Bay (Griffithset al., 2016).
Theactions prompted retaliation from the British through war and brutaltreatment of the Indigenous people. The British exploration did notend in eastern Australian they started to venture inland promptingmore retaliation from the Indigenous people. As a result, there wastension between these two communities. As they treaded towards theinland more and more Indigenous people were replaced, maltreated andkilled(Short, 2016).
Inreturn the Indigenous used to destroy and steal property from theBritish. A Single incident out of many that can be regarded ashistorical injustice happened in Myall Creek1839, June whenIndigenous were killed on accusations that they had stolen sheep. Thebrutal killing of these people prompted a stern reaction from Britishsuperiors who punished the perpetrators. It is believed that duringthe colonization period thousands of Indigenous were killed(Pettit, 2015).
Furthermore,they also suffered from diseases that were introduced by British inaddition to being dispossessed of their lands (Pettit,2015).To understand the social injustice that Indigenous suffered, we haveto define the term. It means the act of advocating just society byvaluing diversity, human rights, equity and fair allocation ofcommunity resources(Capeheart & Milovanovic, 2007).
Totackle this question well, then, the task must address how theBritish violated all these issues. From the above little history ofthe Australian takeover by the British, we can learn that the Britishhad no regard for diversity. One of the justifications they used tocolonize nations was to declare a country terra nullius. This wasused when the country was uninhabitable or the country politicalsystem could not be termed as suitable for whites (Reynolds, 2003)
Thisclause in itself disregards the diversity of people. We are diverse,created in our own uniqueness, some of us are black, white, red,while other are brown and what might be considered as suitable forone people of color might be utterly meaningless to another and thatis what we call diversity. Being different from others does not meanthat you are wrong (Short,2016).
TheIndigenous were different from the British from the mode of theirlivelihood. The British had established a political system that wasunder one leadership, while the Indigenous had simple leadershipstyles. Furthermore, the British had different values and norms,which made them consider the actions of Indigenous people as savage(Short, 2016).
Moreover,the British considered the building of permanent structures andcultivating land as a way of showing ownership while on the contrary,the Indigenous way of life consisted activities like, hunting,fishing and rearing animals, as a result they lived a nomadic lifeunlike the British (Short,2016).
Thatdiversity was the basis upon, which the Indigenous were dispossessedof their lands under the term terra nullius, an attitude thatprevailed and still does. A relief would come when Merian people ofTorres Strait were declared to have economic title to theirtraditional land in the High Court of Australia, in Mabo decision, in1992 (Short,2016).Theruling was not much for the Indigenous, but it paved the way forlegal discussions on social injustice suffered (Short,2016).
Dispossessingthe Indigenous their lands affected them greatly. It was not only asource of their livelihood, but life itself, which was reflective ofIndigenous past, present and future (Short,2016).It is inhuman to enter in someone’s compound on the basis ofsuperiority and claim that by a certain clause, that is only known toyou that you are the owner and the previous occupier enjoys no suchrights.
Thataction is utterly inhumane and denied the existence of what was real.It is from this act that Indigenous would greatly suffer forgenerations and generations. Judging the British with their scriptthese people were Christian who tasked themselves with theresponsibility of spreading Christianity. Mathew 25:40 states that“as you did it to the least of my brethren, you did it to me.”Those words are from Jesus’ quote and are similar to the concept ofhuman dignity.
Itis thus ironical that the British being the custodians ofChristianity acted in such a way. Today, Indigenous have not evenenjoyed these rights and it cannot be claimed that there has been anyrestitution for the harm that was suffered by Indigenous (Griffithset al., 2016).As the British acquired land, the Indigenous were massacred, forinstance, in Slaughterhouse Gully, Skull Creek, and Myall Creek amongothers(Griffiths et al., 2016).
Landdisputes also resulted in denial of spiritual rights that were tiedto the land. Discrimination of these people that was spearheaded bythe British would be reflected in the 20thcentury when the Indigenous were denied the rights to vote. Theimplication of this was that they were not recognized as citizens whohave morals, freedom, and personal rights(Newman & Yeates, 2008).
Asof today, the concept terra nullius is still alive, not only in lawsociety of Australia, but every historian and Australian who has cometo know the Indigenous. This concept denies them the right ofownership, which has disadvantaged them economically even today. Inearly settlements, the whites denied the Indigenous equal rights bysegregating them in their settlement and education, thus denying themequal rights(Frederking, 2013).
Thisracism behavior has been passed over to non-Indigenous Australianswho believe that they have responsibility to make decisions for theIndigenous (Frederking,2013).These have continued to suffer in terms of health as a result ofsystematic discrimination(Fraser, 2001).Furthermore, when you compare the unemployment rate, it is high forthe Indigenous compared to the national average (Indigenousand Torres Strait Islanders Social Justice Commissioner, 2015).
Asa result, the income levels are low. The social injustice ofcolonization has disadvantaged the Indigenous people and subjectedthem to systematic racism, which has made them have third worldproblems in a very advanced nation such as inadequate food supplies,water quality, housing and sanitation (Indigenousand Torres Strait Islanders Social Justice Commissioner, 2015).
TheIndigenous and people of Torres Strait Islander continued to sufferdue do structural racism as the criminal justice system was unfair tothem. A couple of them have died while in custody and still whencompared to people in incarceration they represent the highest level(Indigenous and Torres Strait Islanders Social Justice Commissioner,2015).
Therefore,the concept of terra nullius that was imported to Australia by theBritish has negatively affected the Indigenous people who wereoriginal owners of the land. They were discriminated, maltreated andkilled as they were segregated from the white settlements as theywere seen incapable to make sane decisions.
Thisdiscrimination would be reflected in the 20thcentury by the fact that they had no right to vote until 1967(Bignall, Rigney & Hattam, 2015).Furthermore, they have continued to suffer, as their poverty levelsare high, which can be blamed on the fact that their land wasdispossessed, and they continue to suffer structural discrimination,a sad gift that was left by the British. Also, it is sad that theconcept of terra nullius has not been scrapped from the judicialsystem.
Despitethe sacrifices that the indigenous people have made for our nationsuch as fighting in both World War I and II and being the originalowners of Australian land, they live in abject poverty. I feel thatas a nation we have failed them and the issue of social justice willremain unsolved until we rise up and acknowledge what is theirs.
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