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Terra nullius (/ ˈ t ɛr ə ˈ n ʌ l ɪ ə s /, [1] plural terrae nullius) is a Latin expression meaning "nobody's land". [2] Since the nineteenth century it has occasionally been used in international law as a principle to justify claims that territory may be acquired by a state's occupation of it.
The doctrine of terra nullius was not applicable to Australia at the time of British settlement of New South Wales; The Crown acquires radical title to land when it acquires sovereignty over it; Native title exists as part of the common law of Australia; The source of native title was the traditional customs and laws of Indigenous groups
The Proclamation of Governor Bourke, (10 October 1835) reinforced the doctrine that Australia had been terra nullius when settled by the British in 1788, and that the Crown had obtained beneficial ownership of all the land of New South Wales from that date.
In Tsilhqot'in Nation v British Columbia (2014), the Supreme Court of Canada confirmed that "the doctrine of terra nullius never applied in Canada". Aboriginal title is a beneficial interest in land, although the Crown retains an underlying title. [48]
Bourke's proclamation effectively declared Batman's treaty null and void, and implemented the concept of terra nullius—that the colonies belonged to no-one prior to settlement by the British Crown. [1]
A concept derived from res nullius by allegory is terra nullius. [7] Using it, a state may assert control of an unclaimed territory by occupying it.. This terra nullius principle was used to justify colonization of much of the world, as exemplified in the competition for influence within Africa by the European powers (see the scramble for Africa).
During the height of settler colonialism many European governments declared huge areas of the New World and Australia to be Terra nullius (land belonging to no one), but this was done to create a legal pretext to annex them to European empires; these lands were not, and are not uninhabited.
The issue of terra nullius was not contemplated in the case. Although Milirrpum was not appealed beyond the Supreme Court of the Northern Territory, it was overruled by the High Court of Australia two decades later in Mabo v Queensland (No 2), when native title was recognised under Australian Law.