By Brian Madigan LL.B.
The latin term “terra nullius” means “land owned by no one”, or “no man’s land”. It has a rich and varied history, and has now settled into the international law of the sea and the law of outer space.
Vast parts of the globe were largely unknown to the Europeans in the 15th, 16th, 17th, 18th and 19th centuries. So, many countries sent out seamen to locate and explore new territories. If you found a place that was inhabited, then you would entertain the prospect of trading with the natives. If you found a place that was uninhabited, then you might want to claim it, in the name of your King, Queen, Emperor, or whomever sponsored your expedition.
You can see that there was a rather significant incentive to discover uninhabited lands. And, what if you actually saw someone there, but you said that they were just tourists, just passersby, just people enroute to another location? That property too, would be very valuable and it could be claimed. The result was rather inevitable. Explorers claimed lands, planted flags, mapped the area somewhat and returned to report the good news.
Remember, that you don’t have to respect the inhabitants in territory viewed as “terra nullius”. They are simply tourists. They have no more right to be there, than you do.
As a basic legal concept of the “common law”, the doctrine of “terra nullius” was of prime significance.
By the mid 1800’s, the British had largely abandoned the concept of “terra nullius” in its application to territories in North America. The British began to recognize the North American Indian tribes as possessors and owners of the land. They negotiated and entered treaties and land acquisition agreements with the natives.
The colonialization of North America had a two century head start over Australia, but the British were adamant that Australia was “no man’s land”.
In 1770, Captain James Cooke arrived in Australia. He mapped the coastline and then declared that:
• The territory was uninhabited
• Belonged to no one
• Consequently, it was “terra nullius” and was claimed in the name of King George III.
Cooke said that the savages were primitive, uneducated, uncivilized, and consumed what they saw on the land. These people showed no interest in cultivation of the soil or the construction of dwellings. They were nomadic. This made it easy to rationalize the acquisition of their property without a treaty.
There was a famous Australian Aboriginal rights case known as Mabo which was heard in 1992. The long standing history of Australia had recognized and was based upon the “terra nullius” doctrine. The Court overturned that principle and held that in truth, in the English common law, there had always been a concept of native rights, not just human rights, but land ownership rights. It was based on the traditional connection to the land or occupation of the land by the natives. This concept of “native title” could be extinguished by a government in power, provided the government clearly expressed its intention to do so. This laid open the opportunity for many Australian aboriginals to reclaim their property, and in other cases, it simply closed the door.
Now the question remains, what lands still remain “terra nullius” today? The answer seems to be Antarctica, the North Pole, parts of Greenland, part of the Sahara, Bir Tawal, Marie Byrd lands, and some islands in the south Pacific. However, with each of these areas there is a story, and a version of facts offered to support the claims of some, and deny the claims of others. The continental shelf poses a problem and the United Nations sets up committees to review applications all the time.
And, you would at least think that the Moon was safe! No, there is already a treaty in place dealing with the Moon. Imagine that!
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty