Terra Nullius? Temporal Legal Pluralism in an Australian Colony

AuthorShane Chalmers
DOI10.1177/0964663919875991
Published date01 August 2020
Date01 August 2020
Subject MatterArticles
Article
Terra Nullius? Temporal
Legal Pluralism
in an Australian Colony
Shane Chalmers
University of Melbourne, Australia
Abstract
There remains a puzzle as to the status of Indigenous land rights in Australian colonial
law. The common view is that the laws of the British colonies, and subsequently of the
federated state, did not recognise Indigenous land rights until late in the 20th century.
Against this, a smaller body of scholarship argues that recognition had already occurred
much earlier, the clearest instance being in the colony of South Australia in the 1830s and
1840s. The result is an apparent duplicity in the colonial law, whereby Indigenous land
rights appear to have been both recognised and denied. The article shows a tendency in
the scholarly literature to resolve this duplicity in absolute terms, based on positivist
analysis of law. In contrast, by taking a critical legal pluralist approach, the article shows
how different and even contradictory manifestations of the same law subsisted simul-
taneously through time. This both sheds new light on the question of the recognition of
Indigenous land rights in Australian colonial law, and contributes theoretically to ‘critical
legal pluralism’ by developing its temporal dimension.
Keywords
Colonialism, critical legal pluralism, Indigenous land rights, law and time, South Australia,
terra nullius
Introduction
Gentlemen – Having laid your letter of the 9th inst. before the Governor and Resident
Commissioner, I am desired by His Excellency to say, in reply, that it is to him a matter
Corresponding author:
Shane Chalmers, Melbourne Law School, University of Melbourne, 185 Pelham Street, Parkville, Victoria 3010,
Australia.
Email: shane.chalmers@unimelb.edu.au
Social & Legal Studies
2020, Vol. 29(4) 463–485
ªThe Author(s) 2019
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DOI: 10.1177/0964663919875991
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of deep surprize that persons of intelligence, like you rselves, who also, as preliminary
purchasers, are well acquainted with the history of the establishment of the Colony, should
consider any rights which any Europeans possess to the lands of the Province as preliminary
to those of the aboriginal inhabitants. Those natural indefeasible rights which, as His
Excellency conceives, are vested in them as their birthright, have been confirmed to them
by the Royal instructions to the Governor, and by the Commissioners’ instructions to the
Resident Commissioner. [ ...] It is scarcely necessary for the Governor to mention, that,
prior to the landing of the first British settlers, the natives possessed well understood and
distinctly defined proprietary rights over the whole of the available lands in the Province.
— By His Excellency’s Command, Charles Sturt, Assistant Land Commissioner, 1840
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred
link disappears from world history in merely the last two hundred years?
— Uluru Statement from the Heart, 2017
Duplicitous Law
There remains a puzzle as to the status of Indigenous land rights in the law that was
brought with the British invasion of the country named by the English navigator Mat-
thew Flinders ‘Australia’. The most common view is that the laws of the British colonies,
and subsequently of the federated state, did not recognise Indigenous land rights until
late in the 20th century (e.g. see Attwood, 2013; Banner, 2005, 2007; Castles and Harris,
1987; Robert, 2016). On this view, while a patchwork of limited statutory recognition
began in the 1960s, it was not until 1992 that the Common Law in Australia recognised
‘native title’. In that year (on this view), the High Court in the case of Mabo effectively
overturned ‘terra nullius’ – the notion that Indigenous peoples in Australia had no rights
to the land – which had operated in effect, if not in name, as a principle of law from the
founding of the colonies.
1
There is also another, less well-known view, however, that
recognition had already occurred much earlier in the colonial law, the clearest instance
being in the law of the colony of South Australia (e.g. see Berg, 2010a, 2010b; Brennan,
2010; Kercher, 2001, 2015; Robert, 2016; Robertson, 2010; Simmonds and Berg, 2010).
On this view, the very founding legal documents of that colony recognised, and even
protected, Indigenous land rights; thus it was ‘scarcely necessary’ for the Governor and
Resident Commissioner of South Australia to mention in 1840, 3.5 years after Proclama-
tion of the colony, ‘that, prior to the landing of the first British settlers, the natives
possessed well understood and distinctly defined proprietary rights over the whole of
the available lands in the Province’ (Sturt, 1840). From this second perspective, then,
there was explicit recognition of ‘native title’ in some form in Australian colonial law at
least for a period of one to two decades in the mid-19th century. And yet, even on this
view, that recognition was clearly contested and contradicted. There is no doubt that the
South Australian colonial project was implemented and developed, as in the neighbour-
ing colonies, in ways that effectively denied Indigenous land rights – an historical
experience that is in accord with the dominant view that terra nullius operated as a
principle of law from the very beginning of Australian colonialism. And that is the
puzzle. From one perspective, it seems clear that the law of the Australian state and
464 Social & Legal Studies 29(4)

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