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Res nullius | Land rights | Colonial rights | Namibian land issue | Herero genocide The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation.The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.
What do the small Murray Islands (Mer, for the natives), which have a total land area of hardly nine square kilometers in the Torres Strait off the Queensland coast (Australia) have in common with Namibia?
Surely not geography, nor even the history of their occupation.
The lands of this continent were not terra nullius or “practically unoccupied” in 1788.
The Crown’s property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.
It was immaterial whether or not the natives had previously occupied the land.
While one may resent the arrogance of 19th century colonial mentality, it nevertheless made sense to classify uninhabited land as res nullius, at least in legal terms.
In determining property rights, it didn’t really matter whether the land had been occupied, or if it had been ceded or conquered.
In 19th and early 20th century colonial legal thought, all “undiscovered land”, that is to say lands where no Europeans had settled, were considered as res nullius.
Unlike the bloody German/Herero and Nama wars, not a shot was fired when Her Majesty’s administration in Queensland declared the Murray Islands a Crown colony of the British Empire, in 1879.
The governor of Queenstown had exercised some power over the islands from 1870 even though it they weren’t part of the colony.