A Perspective on the Historical Developments of Case Law Principles Related to Terra Nullius in Courts in the Common Law Jurisdictions

Abstract

Although international lawyers are very familiar with the concept of occupation as one of the modes of territorial acquisition by sovereign states, it is not easy for them to pinpoint the nature of such concept. When the Christian states in the Western Europe rushed in for the competition of expanding their territories through colonization, they thought that they had a right to acquire newly discovered territories because those lands belonged to no other foreign states, that is, terra nullius. However, there were natives occupying those lands well before the European settlement, Many courts in the jurisdictions influenced by the English common law decided that such natives did not have proprietary and possessory rights in land. In 1823, the U.S. Federal Supreme Court differentiated the law of the nations and the law applicable to the Indians in the North America. The Court characterized the Indian title to land as usufructuary to the effect that it burdened the British Crown land. In 1888, the Privy Council of the British Empire decided that the effects of the Indian titles to land continued until the lands of the native Indians were transferred by cession or sale to the Government of Canada. In 1992, the highest court of Australia slightly changed its attitudes towards the common law principles on terra nullius by deciding that its prior decisions as to the land title of the natives were no longer sustainable because of their discriminatory and racial nature. The underlying concept of terra nullius still lingers on in judgments by the courts in Canada. In 2014, the highest court of Canada reaffirmed their long line of decisions reflecting jurisprudence of the English common law developed by the British Empire. The World knows that there are no such thing as terra nullius. However, the colonialism arising out of the concept of terra nullius still haunts in the states whose territories were based on the lands of native occupants.