Terra nullius

Terra nullius (/ˈtɛrə.nʌˈlaɪəs/, plural terrae 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 sovereignty. Sovereignty over territory which is terra nullius may be acquired through occupation, (see reception statute) though in some cases doing so would violate an international law or treaty.

Indigenous Australians had inhabited Australia for over 50,000 years before European settlement, which commenced in 1788. Indigenous customs, rituals and laws were unwritten.

The first test of terra nullius in Australia occurred with the decision of R v Tommy (Monitor, 29 November 1827), which indicated that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems. This position was further reinforced by the decisions of R v Boatman or Jackass and Bulleyes (Sydney Gazette, 25 February 1832) and R v Ballard (Sydney Gazette, 23 April 1829).

Prompted by Batman's Treaty (June 1835) with Wurundjeri elders of the area around the future Melbourne, in August 1835, Governor Bourke of New South Wales indicated the significance of the doctrine of terra nullius by a that Batman's so-called treaty was null and void because Indigenous Australians could not sell or assign land, nor could an individual person or group acquire it, other than through distribution by the Crown.

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