History wars have raged in many countries over the last twenty years. Though every campaign has concentrated on specific aspects of the past, it is possible to discern common concerns about the purpose of history and its relation to the nation-state. In South Africa, Latin America and Eastern Europe, truth commissions have provided a setting for intense investigation of the recent past. In New Zealand the Waitangi Tribunal has been deeply engaged in a search for historical consensus about events as far back as the Treaty of Waitangi.
In Australia during the 1990s, inquiries into Aboriginal deaths in custody and the removal of Aboriginal children from their families enabled an assessment of past policies and attitudes. The reconciliation movement placed history at the centre of its mission. Time and again Aboriginal leaders declared that what they wanted was recognition of past suffering and injustice; they were not asking for reparation, nor were they seeking to enliven white guilt. They sought to achieve some agreement about what had happened in the past. They wanted the decade-long process to perform the function of a truth commission.
For a while in the ’90s it seemed that Australia was changing. In many communities people began to talk about subjects long taboo. Local records were examined; memories were revived; secrets were exposed. But with the election of the Howard government in 1996 the mood changed. The final recommendations of the Reconciliation Council were ignored. One began to hear the demand that Aborigines put the past behind them; that forgetting was required. History itself was the problem. Indigenous people were their own worst enemies: they behaved like victims and their terrible social conditions were their own fault. So, after a decade of reconciliation, there were two views of the past. White Australians were told to cherish the past, to remember the pioneers and the Anzacs, and to revere that sacred phrase, ’Lest We Forget’; indigenous Australians were counselled to forget the past and not to dwell on the great tragedy that had befallen their people.
Any consensus now seems chimerical. The Aboriginal past, rather than provide an avenue for reconciliation, has become the location for angry disputation. One of the most pertinent developments has been the emergence of a school of right-wing nationalist historians led by Keith Windschuttle, whose book The Fabrication of Aboriginal History appeared in 2002. Now that the immediate controversy occasioned by that work has abated, we can better separate its central themes from its sensationalist claims of dishonesty and malpractice. At the heart of the book is a denunciation of traditional Aboriginal society that would have seemed extreme a hundred years ago. We read that the Tasmanians were so primitive they lacked any sense of land ownership; their society was totally dysfunctional; they gave their women away; they were thieves and murderers who brought destruction on themselves. Windschuttle told a Launceston audience that the Tasmanians were like junkies who held up service stations. Could a contemporary writer vilify any other society in this way and be lauded for his efforts?
In retrospect, the most enduring legacy from the decade of reconciliation was the two judgments handed down by the High Court relating to Aboriginal land rights: Mabo in 1992 and Wik in 1996. The Mabo decision was applauded by jurists all over the world. Within Australia, reactions were mixed. From the moment of delivery the judgment was attacked, with the most recent assault – and the most vehement and ill-considered – launched by Dr Michael Connor over the last two and a half years in a series of articles and interviews, and in his new book The Invention of Terra Nullius, published by Keith Windschuttle’s Macleay Press.
Connor’s thesis is simple. The concept of ‘terra nullius’ was invented and promoted by historians in the 1980s: it is a modern creation. The legal profession was in turn misled by the historians. Even the High Court judges were fooled: they “fell for a legal fiction”. My book The Law of the Land was the main cause of the judges’ contagion. It underpinned their judgment; they paraphrased the book, as a result accepting questionable historiography about 1788. The Mabo judgment is therefore unsound and should be overturned.
Connor’s view has proved irresistible to conservative commentators. His work has coincided with a concerted attack on land rights, on Aboriginal autonomy, and on the whole human-rights agenda. At the same time, academic historians are portrayed as scheming, unscrupulous careerists, and the High Court judges as dupes. Praise for Connor’s book from these commentators has been without restraint. Australian history, we are assured, will never be the same again. What are we to make of such hyperbole? At almost every turn Connor’s argument is misconceived, his grasp of legal concepts unsure, his research in critical areas threadbare, and his conclusions demonstrably flawed. In an interview with Michael Duffy, Connor confessed, “speaking as an historian, we don’t understand lawyers and the courts and whatever”. It was an admission of which his admirers might have taken more notice.
Connor opens The Invention of Terra Nullius by observing that after he had finished his PhD he visited the law library of the University of Tasmania, sought out documents about the founding of New South Wales, and could not find any mention of ‘terra nullius’. Is this credible? That even after writing a doctorate on early colonial history, he was so unfamiliar with the basic documentation that he expected to find the term ‘terra nullius’, and was genuinely shocked when he didn’t? I know of no historian or jurist who has written on the subject over the last twenty years who has said that the term was used in the late eighteenth century.
There may well be some people who have this impression, who think the term was coeval with the first European settlement. Perhaps those using it should have anticipated that some people would become confused. But the use of new terms for past events and concepts is inseparable from intellectual life. All disciplines and all areas of study can produce examples of the practice. It is rarely necessary to remind readers that a term is more recent than the reality to which it refers. Historians write about the past, but they address a contemporary audience using contemporary language. Economic historians use many modern terms to describe the economies of earlier times. One of the best-known books on the economy of early colonial Australia uses, within a few pages, such terms as ‘business cycle performance’, ‘gross domestic product per unit of factor input’, ‘internal production function’, ‘annual input series’, ‘systematic exchange pricing, ‘land resource ratios’. But no one expects economists to explain that these terms were not in use in 1810. We take it for granted.
‘Terra nullius’ is just such a contemporary term used to describe an old reality. The cognate term ‘territorium nullius’ was used in the late nineteenth century to describe the situation where European powers were taking possession of African colonies with the claim that the local people did not have sovereignty, although their land ownership was recognised. The term was almost unknown in Australia because it did not seem to have any local relevance. It became less relevant in the rest of the world once the era of imperial enlargement came to an end. The distinctive feature of Australian settlement was that the British recognised neither Aboriginal sovereignty nor land ownership: Australia was both a ‘territorium nullius’ and a ‘terra nullius’.
The terms only became relevant – and entered circulation – when the question of Aboriginal land rights emerged in the 1960s. It made sense to refer only to ‘terra nullius’. And that is what Australian historians and jurists did, because it was a convenient term and none other existed. People used it in a variety of ways, sometimes confusing sovereignty and property. But the general understanding was clear: ‘terra nullius’ described the situation in 1788 when the British failed to recognise Aboriginal property rights and so perpetrated one of the greatest expropriations in history.
Historians did not impose terra nullius on a hapless legal community. They didn’t lead the High Court astray, and to suggest they did insults the professionalism of the court and the intelligence of readers. The fact that six of the High Court judges used the term confirms its usefulness and gives it the sanction of the highest judicial authority in the country. We should go on using it.
Connor’s argument about terra nullius is either inconsequential or ridiculous. If he is saying that in recent times Australians have come to use a phrase that was scarcely known a generation ago, it is a matter of little importance. If, on the other hand, he is saying that Australian settlement did not begin with the judicial dispossession of the Aborigines, one can only wonder where he learnt history. The irrelevance of Connor’s argument to the ongoing discussion of the Mabo judgment led the retired Chief Justice Sir Anthony Mason to take the most unusual step of entering the public arena to explain the situation. It needn’t have come to that if it had not been for a chorus of conservative commentators, whose praise of Connor’s work has done nothing to enhance their reputation.
In order to sustain the argument that the High Court was duped by historians, it is necessary to discredit the entire history profession. It’s a task that Connor pursues with obvious enjoyment in The Invention of Terra Nullius. Historians cannot merely be in error; they have to be morally bankrupt. Connor’s object appears to be assassination rather than elucidation. The attacks are rancorous and unrestrained. We read that the history profession has a “frozen moral outlook”, “an obvious sense of superiority over the past”, “a careerist mentality”. Historians engaged in “self-centred and childish posturing”; they behaved like “well-heeled spoilt children”. They were “History Warlords” who were “bitterly angry”; their view of the past was based on hatred and “Australiaphobia”. And that’s not all: Connor derides “their certainties, their snobbery, their self-flattering moral vanity, their hunger for power, their fear of criticism, their elitism”.
In situations like this we learn far more about the abuser than we do about the abused. We can only look on with amazement at the lack of judgment. Many readers are put off by such vitriol. But there is more to it than that: if Connor’s judgment is so biased, why should anyone take seriously his assessment of others’ works? If his view of the present is so extreme, is it likely that his judgments about the past will be any more measured or judicious?
Connor clearly believes that his thesis is a major critique of both the historians and the judges, and that its publication will destroy the credibility of Mabo. He has been encouraged in this view by admiring conservative commentators. But if his key arguments are demonstrably false, not much remains. We are left with a hollow shell of a work that is too bitter to beguile, too tendentious to persuade.
Connor has nothing to say about native title – there is not even an entry on the subject in the book’s index. This is extremely important, because native title was the central intellectual thread running through the Mabo judgment; misunderstand native title and the case may well seem insecurely based. There is no excuse for not pursuing the question of native title. In the past thirty years there has been a highly sophisticated debate on the subject among legal historians in the US, Canada, New Zealand, Australia and the UK. There are twenty to thirty articles that are required reading for anyone seeking to understand the development of thinking about native title and its application to Australia by the High Court. Neither Connor’s text nor his bibliography suggest that he has read any of these works.
More serious still is his failure to read the large body of relevant court cases. Native title has been the subject of a great many judgments in all the major common-law jurisdictions since the early nineteenth century. For the High Court this jurisprudential tradition was fundamentally important: this is where they found their precedents, and this is why they made their decision. They make this clear in almost every page of the Mabo judgment. And they document their dependence abundantly: they cite over a hundred and fifty cases in their footnotes, many of them from overseas. Not all were of equal importance, but fifteen to twenty leading cases are referred to many times. These are essential reading for anyone seeking to understand Mabo. There are no shortcuts; anything less fails to respect the reasoning of the court, which was built up on precedent.
No doubt it will come as a surprise to many readers to learn that Connor has read none of the native title cases. We learn from the bibliography of The Invention of Terra Nullius that he consulted only two cases from outside Australia. What are we to make of this extraordinary omission, this failure to carry out rudimentary research relating to the central point of his thesis? It seems that Connor simply did not understand what the Mabo case was about. To take the High Court to task and condemn the judges’ decision when it would appear that he did little more than skim through the case looking for references to ‘terra nullius’ seems little more than sheer effrontery.
If Connor can tell us little of value about Mabo, and even less about native title, what then are we left with? The most obvious thing is an obsessive examination of the sources used by other historians, and the errors they make – including obvious typos and misplaced commas. Connor is an expert in other peoples’ footnotes (that is, unless you are a High Court judge). It seems a long way away from the promise to change Australian history and law for all time.
Connor’s work shares many characteristics with that of his mentor and publisher Keith Windschuttle. Both attack almost all other historians, whom they declare are too political in their approach, to the detriment of their scholarship. For their part, they claim to be interested only in the truth and to have no political agenda. But anyone who attends to their work knows this is untrue. They give themselves away with almost every argument they adduce. Their work is received politically: promoted by the Australian, lauded by Christopher Pearson and Michael Duffy, praised in Quadrant, lionised by right-wing think tanks. Both men accuse their opponents of being motivated by hatred, yet the slightest acquaintance with their work leaves the reader in no doubt as to where the coiled fury resides.
Politics cannot be subtracted from the Mabo judgment. The six judges who supported the majority decision made it clear that they believed Australian settlement began with an injustice – the failure to recognise Aboriginal native title – and that this was a situation almost without precedent in the British Empire. They thought that such an injustice should no longer disfigure Australian law. Many Australians commended them for their decision, as did jurists from other common-law countries where native title had always been recognised. The Mabo judgment was seen as one of the few concrete achievements of the era of reconciliation.
Michael Connor disagrees. In The Invention of Terra Nullius he has a different story to tell: one that is distinctive to the point of eccentricity. He believes that the deep divisions between blacks and whites do not come from the past but are instead of recent origin. The problem is not the actual dispossession, but the use of ‘terra nullius’ to describe what happened. It is the words that cause the trouble. ‘Terra nullius’ was an “offensive phrase to Aboriginals”; it was a “savage abstraction” that tore a wound in the fabric of society. The wound could never be healed because terra nullius was a lie. It was used again and again to “offend” and stir up “hatreds”. It created a gulf “wider than Carpentaria” to separate Australians to the end of our history.
The problem of injustice, it would appear, derives not from what actually happened in the past but from those who dare to speak its name – and who use the fateful words ‘terra nullius’. If only the historians had kept quiet, everything would have been all right. Some “tactful forgetting” is all that is needed to usher in the better days. Remove ‘terra nullius’, Connor declares in his peroration, and a “new historical landscape is visible as the sun burns off the fog of the old history”.