Ma Level Distinction Level

'Dispossession of indigenous peoples is the result of the universalisation of the idea of Terra Nullius. Discuss'.

Terra Nullius is a Latin term that refers to 'without land' or 'no one's land' and in a colonial context has been translated as the right of colonial powers to appropriate certain territories for their own benefit . This is based upon the assumed premise that newly discovered land is effectively virgin, because according to colonial doctrine the culture of indigenous people is so inferior and barbaric it is not worth considering their claims to the land as legitimate. This essay will examine the concept and application of Terra Nullius and discuss if the dispossession of indigenous peoples is the result of the universalisation of this idea. Comparative analysis will be made of different colonial conquests including the colonisation of Australia, North America and the foundation of Israel. Unfortunately due to lack of space Samson's analysis of Terra Nullius in Japan and Africa and Finklestein's work on Germany's war against the Soviet Union and the colonisation of Southern Africa cannot be included. Short (2011) argues that the colonisers of Australia underpinned their support for the concept of 'Terra Nullius' on the 17th century philosophy of John Locke where the right to own property is based upon working the land or as Locke termed it 'mixing labour with land'. In the absence of such activity the colonisers felt able to claim the land as new and undiscovered, occupied by 'uncivilized natives' . However Short notes the concept of Terra Nullius was not applied consistently throughout the British Empire. In the United States and Canada the British entered into negotiations with the natives in order to legitimately obtain their land. This implied that only some native people (namely the Australian Aborigines) were considered uncivilized. This doctrine formed the basis of colonization in Australia and the subsequent dispossession of aboriginal land, as well as the eradication of their culture. Rowley(1970) noted the aborigines did not 'melt away magically before the tide of European settlement ...like fairy floss.....the hard reality is that we killed them'. As Short comments not only were large numbers of aborigines killed (it is estimated that the aboriginal death toll was 20,000 between 1788 and 1884) but their spiritual, cultural and legal systems were destroyed. Finzsch argues that in settler societies such as Australia the indigenous population first have to be de-located (the role of Terra Nullius) followed by their extinction or assimilation and then finally limiting indigenous culture to the margins. This process led to Aborigines being treated as non-citizens until 1967 Macleod (2006) argues there are several reasons why Terra Nullius was applied in Australia but not in other Colonies such as Canada, United States and New Zealand . The Aborigines had not built any permanent settlement and therefore not occupied the land; however it could be argued that this legal definition of a settlement was Eurocentric. Also peace treaties with the aborigines were viewed as unnecessary as they lacked any effective leader or military force. Furthermore thousands of years of separation from other civilizations made them appear so alien to Europeans that perhaps 'it led many settlers to view them as inferior creatures who were barely human' . Gradually white Australian society has begun to face up to the past treatment of Aborigines and an acceptance that Australia was not a new uninhabited territory when British settlers arrived in the late 18TH century. There has also been an acceptance that Aboriginal society was also a complex society in its own right at the time of European discovery and that there is a need for reconciliation between white Australians and Aborigines. Lindquist (2007) notes that 'Sorry Day' has become widely celebrated, putting pressure on the Australian government to apologise for the past actions against Aborigines. He also notes that the concept of Terra Nullius, which was arguably not only the rationale for the British conquest in 1788 but the raison d'etre of the Australian state, was outlawed by the Australian High Court in 1992 . However not all writers agree with this 'march of progress' view which increasingly accepts that the actions of early settlers in determining Australia as Terra Nullius was wrong . Blainey termed the phrase 'black armband of history' to describe the new narrative of settler colonialism based on Terra Nullius. Connor (2005) argues that the concept of Terra Nullius was never invoked or mentioned to justify the British colonisation of Australia, but instead contemporary academic criticisms of the settlement of Australia have used the concept to justify their own point of view. Though terra nullius was not invoked, and wasn't part of the contemporary legal theory ,late twentieth century academic and legal minds devoted themselves to proving that Australia had not been terra nullius , and laid waste the discipline of history to do so.. Connor states that this contemporary assertion of the concept of Terra Nullius originated from a trial in 1977 when Paul Coe from the reform legal service used the concept in his case against the Australian government claiming compensation for Aborigines. During the trial Coe denied Australia had been Terra Nullius at the time of the conquest. Connor however denies that such claim was made during the 18th Century arguing that the concept of Terra Nullius is part of modern history and a political movement to change the present as part of the campaign for Aboriginal land rights. Indeed Terra Nullius has become so ingrained in the academic and legal mindset that it regularly appears in arguments in favour of Aboriginal land rights. Windschuttle (2002) was also critical of 'the colossal fictions' of Aboriginal history in determining the Aborigines as the victims of colonial oppression. He argues that there is no evidence that Aboriginal society considered land as property and that the 'possession of territory and the defence of it by law were not part of the aborigines mental universe' . However these criticisms of the concept of Terra Nullius have not gone unchallenged. Reynolds(2003) argued that the implication from Windschuttle's assertion is that the European colonisers were not taking land that belonged to someone else and that Aboriginal attacks on these colonisers had nothing to do with land issues as the Aborigines had no conceptualisation of the idea of trespassing . To what extent therefore can the concept of Terra Nullius be applied to European (in particular English and French) colonization of North America and what evidence is there to support the assertion that the universalisation of Terra Nullius has led to the dispossession of indigenous people? Finklestein (2003) argues that one of the earliest formal justifications for the acquisition of native American lands in 1632 was that while England was 'full' North America was 'empty, spacious and void'. The natives did little other than run over the grass like 'foxes and wild beast' and lacked 'art, science, skill or faculty to use the land'. This sounds similar to the arguments in favour of Terra Nullius in Australia on the basis that Aboriginal activity on the land was not deemed equal to European uses. Samson has noted the influence of English Puritanism on the doctrine of Terra Nullius in North America. On encountering Native Americans English Puritans asked themselves how can the land they are now occupying become ours? They began to believe that it was a law of nature and God's law that they should own the land (this is why early English settlers called what is now the eastern coast of the United States New England).Samson uses the term 'Vacuum domicilium' to describe the land which although these early Puritans had a 'natural right 'to did not extend to permanent ownership. Finklestein has surveyed some of the contemporary Terra Nullius arguments for English appropriation of the land. He notes that Reverend Purchas ( a friend of John Smith an early colonist) argued that the English should take the land from the natives as God had intended his land to be cultivated and not left in the condition of an 'unmanned wild country , which they(the savages) range rather than inhabit' . John Winthrop who was the first governor of Massachusetts argued in 1629 that the 'natives of New England' could claim no legal title to the land as they had no 'settled habytation' or any 'tame cattell to improve the land by'. Samson argues that the English settlers developed such arguments believing they had improved the land by farming and so had the right to seize the native land as private property as they were simply fulfilling God's request to 'go forth and multiply'. Finklestein states this colonial dispossession of Native American land found a philosophical and political justification in Locke's book 'Two Treatise on Government' (1689). Samson argues that Locke's work emphasised the importance of 'improvement of the soil' as the most important factor in property ownership, as it is this with Labour which for Locke justifies the right to hold private property. However as Samson notes even though Locke never visited America he considered native inhabitants as hunters who only had the right to eat the animals they killed but not own the land that they lived on. For Locke the European way of life (and perhaps more specifically the English way of life) was superior to that of the native Americans due to the more advanced way they cultivated and used the land. For I aske whether in the wild woods and the uncultivated waste of America left to nature, without any improvement,tillage or husbandary , a thousand acres will yield the needy and wreteched inhabitants as many convencies of life as ten acres of equally fertile land doe in Devonshire where they are well cultivated. Samson has also noted that other Enlightenment thinkers such as Rousseau have supported Locke's argument about the dispossession of native land. Perhaps this provides evidence that in the North American and indeed wider contexts the idea of Terra Nullius has been or certainly was internalised as a key concept which led to the dispossession of the rights of indigenous people .However Samson goes on to argue that assumptions from the religious culture of Europe (such as Terra Nullius) came to be regarded as part of the legal defence of private property and thus the universalisation of Terra Nullius. He goes as far as to argue that the concept of Terra Nullius was expanded to include other criteria in order to deprive indigenous people in North America of their rights. In particular Social Darwinism which argued indigenous people had insufficient social organization and other attributes of civilization to merit the same property rights as the colonizers. Other writers have tended to support Samson's arguments that Terra Nullius was not just the opinion or perspective of a minority but something that was endemic among colonial ideology in North America. Finklestein mentions the perspective of Swiss Jurist De Vattel who argued that the native peoples of North America were 'unable to settle and cultivate' and did not make any 'actual or constant use' of the land. He also notes 19th century examples of the reinforcement of Terra Nullius long after the United States became an Independent nation state. Anderson (2007) has argued that the implication of Locke's view (often seen as the philosophical and legal foundation of Terra Nullius) was that the Native Americans whose existence relied on 'spontaneity' had not fully developed as human beings. However Anderson does agree that for the majority of Enlightenment thinkers the notion of 'civilization' was based upon the Lockean ideas of improving the land and securing the soil and states that 'in this act of self- transformation lay the very 'humanity' of the human' . What about the situation in Canada, was and is it any different from that in the United States? Banner(2007) argues that 'British Columbia was the only part of Canada the British treated as terra nullius ' where with few exceptions (such as the acquisition of Vancouver Island) the colonizers did not acquire the land from the native tribes by treaty. Banner has drawn analogues here with the situation of the Australian Aborigines. Perhaps to some extent this indicates that Terra Nullius was not a universal concept employed during the colonization of Canada. Banner has argued that one of the reasons why the situation in British Columbia was different was that although the colonial administration was appointed by the British they had to appease local settlers who wanted to take land from the indigenous population. Samson disagrees with Banner's assertion that Terra Nullius was only applied in British Columbia within Canada, as he argues the assumption that native people did not deserve a claim to the land was enshrined in Canadian law until the 1990s. Samson references the legal anthropologist Asch who argues that Canada has always based its claim to sovereignty on Terra Nullius He argues that Britain handed over indigenous land to the settler population in Canada(and indeed in Australia ,further drawing parallels with Terra Nullius in that country) using the assumption of Terra Nullius, in similar circumstances to the later 'Western Sahara principle' . This was a decision by the International Court of Justice regarding the disputed former Spanish colony of Western Sahara. When Spain decolonized in 1975 following the death of Franco the ICS was asked by Morocco and Mauritania to judge if they had claims to sovereignty over the territory. In the court's judgement both states did not have a claim to sovereignty due to a lack of historical and ethnic ties and it advocated self -determination for the indigenous people of the Western Sahara . However due to the fact that no International body or state was willing to enforce this measure the Moroccan state began a process known as the 'green march' encouraging Moroccan settlers to live in the Western Sahara in order to create a demographic majority(not unlike the situation in Northern Ireland over a longer period of time). Samson argues that a similar process based upon the assumption of Terra Nullius occurred in Canada as recently as 1949 in the case of Newfoundland and Labrador who joined the Canadian state after a referendum of the settler population. However the native Inuit and Inu population were neither able to vote in the referendum nor were they consulted. Pratt draws upon the comparison with the Australian experience noting that the Canadian approach to indigenous -state relations has focused on treaties between settlers and indigenous people and is often held up as a model to which Australia should aspire. Pratt illustrates her argument with reference to King George III's royal proclamation of 1763 which urged settlers to normalize conditions in the colonies, avoid conflict and that land should only be purchased with the natives consent. However she does agree with Banner's argument that British Columbia was an exception and whose situation was not overturned until the 1973 Calder case which decreed that the rights of Indigenous people had not been extinguished. Therefore it could be argued that although Samson may be correct in asserting that the British colonists gave land to settlers under the auspices of Terra Nullius, which laid the foundation for the Canadian state, the Canadian example is different from Australia as land was generally appropriated through treaties with the native population. However although perhaps less blatant than the Australian example it could still be argued that it adds legitimacy to the view that the universalisation of Terra Nullius has led to the dispossession of indigenous people, as evidence indicates this was the case. Consideration will now be turned to the extent the formation of the state of Israel was based upon the concept of Terra Nullius. Zionism the doctrine which argues that the Jewish people have the right to their own land , most often within the bounds of ancient biblical Israel has often been categorised as an colonist, settler and imperialist ideology . Indeed with its emphasis on the Jews as a chosen people Zionism has often been compared to Afrikaner nationalism in South Africa with its own conceptualisation of a chosen people with a right to rule the land based around the theology of the Dutch Reformed Church . There are several reasons and justifications for the foundation of the state of Israel. Firstly after the 'holocaust' in the West the Jews needed a place of safety in which to recover from this tragedy . Secondly from a Jewish and perhaps more specifically Zionist perspective they felt that they had been promised a homeland in Palestine by the British government by the Balfour declaration of 1917 . It could also be argued that if a Jewish state was going to be created it should be in Palestine as the Jewish people had a strong link to the region through their ancient history, culture and religion . Can the foundation of the state of Israel and expropriation of Palestinian land be linked to the concept of Terra Nullius? Pappe (2006) has noted that early Zionist migrants to Palestine in the late 19th century viewed the local Palestinian population as a 'physical hardship' . Although Pappe does not explicitly argue that these settlers were motivated by the concept of Terra Nullius, he does draw comparisons between early Zionist pioneers in Palestine and white settlers in North America . He also noted that in a similar way to settlers in North America and Australia they began to develop more modern agricultural techniques which were rarely shared with the native Palestinian population and the Early Zionists saw themselves as superior to the native population . According to Yoav and Peled (2011) Zionist literature of the period describes Palestine as a' body without organs' implying that it was 'naked,barren,old, and decayed' . They argue that these early settlers viewed the agricultural developments they were implementing as 'resurrecting' the land and converting the land from 'no-man's land 'to 'Jewish land' something which of course sounds very much like Terra Nullius. Svirsky (2010) argues that Terra Nullius can be used to explain the Zionist colonisation of Palestine, but that this conceptualisation differs from the way that Terra Nullius was used by European colonisers in North America and Oceania. Svirsky notes that unlike Australia in the Zionist context there has never been a legal conflict surrounding Terra