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.
Terra nullius is a Latin expression deriving from Roman law meaning “nobody’s land”, which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished .
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.