...the phrase was probably never used in relation to the colonisation of Australia until the second half o the twentieth century.

In an article rifled "Error Nullius", in the Bulletin, August 26, 2003, Dr Connor explains that nobody except a handful of historians and international lawyers had ever heard of terra nullius until it was adopted and adapted by "the best-known and most trusted historian on Aboriginal and White conflict", Professor Henry Reynolds. In The Law of the Land, published in 1987, Professor Reynolds redefined terra nullius. He took a 1938 passage, which defined terra nullius as "land not under any sovereignty", and a 1910 passage with the term res nullius, which he replaced with terra nullius in square brackets. He then commandeered the ms nullius definition, "a thing which has no owner", and attached it to terra nullius.

This hybridised term, says Connor, replaced clarity with confusion by muddling the historical/political concept terra nullius, with the legal concept ms nullius, and to further muddy the waters, with the geographical concept (meaning uninhabited). The result, says Connor, was "a mutating linguistic virus":

After fixing it in place, Reynolds' career was based on disproving its validity. The work of the mirrors was done. His mangling of international law, common law, and translation produced a late-twentieth-century superstition. Once introduced, the Latin tag was quickly loved by historians, social scientists, lawyers, clergy, journalists, and racial activists. It meant whatever its users wanted it to mean. Impressive sounding, it was ridiculously easy to mock.

It was just what the "1969-style" radicals who had taken over Australia's humanities faculties needed for their latest campaign. Terra nullius sounded scholarly and high-status and was ripe for equivocation. It was propagated through ideologically primed schools, manoeuvred skilfully through the media, and when it arrived on the bench of the High Court in 1992 it was "the only explanation for the British settlement of Australia" the court was to consider.

"Historians more interested in politics than archives," argues Connor, "misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds' version of our history, especially The Law of the Land, underpinned the Mabo judges' decision-making."

Its job at the High Court done, terra nullius was placed behind museum glass as a permanent reminder that our nation was founded on an "idiotic" iniquity. Imagine then the reaction of the breeder of this ideological weapon, at the thought that it might escape in a form mutated beyond his control; and this may go some way to explain the undercurrent of paranoia that runs through Henry Reynolds' chapter in Whitewash, which he titled "Terra Nullius Reborn".

HENRY REYNOLDS' contribution to Whitewash: On Keith Windschuttles Fabrication of Aboriginal History (the third chapter) begins: "There is no doubt about Keith Windschuttle's ambition. He seeks to bring the concept of terra nullius back to life." Reynolds presents no direct evidence to support this assertion, but then the presentation of evidence is not his strongest suite. His certainty rests on his own assessment that this ambition is: "a central feature of The Fabrication of Aboriginal History".

Terra nullius is not what Keith Windschuttle says Fabrication is about. In its introduction he says it's about "the methodology of history". He says it "examines how we can know about the past, the kinds of evidence we can regard as reliable, and how to detect false claims when they are made". He says it examines "the nature of the written history of the relations between colonists and Aborigines". He says it challenges the orthodox view that "violence was ever present along the ragged line of early interaction ... through a century-long campaign of guerilla warfare". He says Fabrication was "written in the belief that the factual details are matters not to be waived aside". He says nothing about terra nullius. But Reynolds believes he knows better. He knows that history books are written as political tools.

On the first page of his first book, The Other Side of the Frontier, published in 1981, Reynolds states that his book:

is based on extensive research among a vast array of historical records. Yet the book was not conceived, researched or written in a mood of detached scholarship. It is inescapably political, dealing as it must with issues that have aroused deep passions since 1788 and will continue to do so into the foreseeable future.

Near the end of Why Weren't We Told? re-published in 2000, Reynolds declares:

I thought from the beginning of my career that historical writings were inescapably political--the history of race relations especially so. How could I pretend otherwise? Historians do not shed their ideological clothing or their personal feelings when they venture back into the past seeking to hear the words and delve into the minds of their chosen subjects.

There is a sense in which the last sentence is true Historians cannot be expected to "shed their ideological clothing or their personal feelings", any more than judges, surgeons or engineers can. What can be expected of professionals, however, is that when they go to work they focus on reality rather than on what their ideology or feelings would have that reality be--and that they record it accurately without bias. It is this objectivity, however, that Reynolds discards as beyond the responsibility or even the capacity of historians. In fact, even if objectivity were possible, he insinuates, it would miss the point of the exercise.

The point of the exercise was exposed by Michael Duffy in a letter to the Bulletin, September 2, 2003:

In writing off terra nullius as mere fiction, Michael Conner ignores the important need it fills. To believe our founding fathers used a ludicrous notion to justify their invasion of Australia makes them appear absurd, even contemptible. This makes it easy to condemn them. By seeking to remove this moral cordon sanitaire between the ancestors and ourselves, Connor threatens that consoling sense of superiority so essential to modern identity. Surely there are times when the truth needs to be sacrificed for a higher end?

Reynolds would not put it in those words, at least not in public, but his approach implies that historians are necessarily driven by their ideologies to find a history that supports it, or to fabricate one if necessary, then to write history books to further their political agendas; for example, an historian might start with an anti-colonial ideology, fabricate 20,000 Aboriginal deaths, write a book that might influence High Court justices to apportion 'unutterable shame" and overturn terra nullius. If another historian attacks his book that must mean, he concludes, that his antagonist's ambition is to reverse his work and bring terra nullius back to life.

Reynolds is right to consider the message of Fabrication to be the antithesis of his own. But he is wrong to suppose that its ambition is merely political. If it turns out to be the case, as per Reynolds' conviction, that Windschuttle's thesis would reverse the High Court's Mabo judgment against terra nullius, that would...

NOTE: All illustrations and photos have been removed from this article.



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