The fiction of terra nullius

Chris Webster

Opinion

On July 30, 1768 the British Admiralty issued detailed secret instructions to James Cook where after observing the Transit of Planet Venus at Tahiti, he was to investigate if there was land south and to sail towards Abel Tasman’s New Zealand to establish how far it extended to the east.

The British interest in the South Pacific was a mixture of scientific curiosity and the desire for trade and riches. Cook was directed “to explore the extent of the coast, record both in latitude and longitude variations and bearings of physical coastlines, direction and course of the tides and currents, depths and sound of the sea, shoals and rocks. He was also to observe and bring specimens of the minerals, valuable stones, flora and fauna etc”.

And he was “to observe the genius, temper and disposition and number of the Natives, if there be any, and endeavour by all proper means to cultivate a friendship and alliance with them making presents of such trifles as they may value, inviting them to traffic and show them every kind of civility and regard; taking care however not to suffer yourself to be surprised by them but to be always upon your guard against any accidents. You are also with the consent of the Natives to take Possession of convenient situations in the country in the name of King George of Great Britain. Or if you find the country uninhabited take possession for his majesty by setting up proper marks and inscriptions as first discoverers and possessors.”

The President of the Royal Society (Earl of Morton) advised Cook “that they exercise the utmost patience and forbearance with respect to the Natives of the several lands where thy ship may touch. The shedding of blood would be a crime of the highest order. They are the natural and in the strictest sense of the word, the legal possessors of the several regions they inhabit. No European nation has the right to occupy any part of their country . . . it is natural for them to defend their land and if they are hostile there are to be no reprisals.”

His advice on how Cook should interact with the Natives was seemingly more honoured in the breach than the observance, as portrayed in Shakespeare’s Hamlet.

The coveting of land and resources begins . . .

In October 1769, James Cook (with copies of Tasman’s diary, compass bearings and charts) arrived off Turanganui-a-Kiwa where his crew killed up to nine Maori citizens. He sailed to Te Whanganui o Hei on the eastern Coromandel coast to prepare for the transit of Mercury to fulfil the then central quest of astronomy, to determine the size of the solar system and to fix the longitude of Aotearoa.

The New Zealand Boundaries Act 1863 records that activity. “The Colony of New Zealand shall for the purposes of the said Act and for all other purposes whatever be deemed to comprise all territories, islands and countries lying between the one hundred and sixty-second degree of East longitude and the one hundred and seventy-third degree of West longitude and between the thirty-third and ?fty-­third parallels of South latitude.”

Though the die was cast, bear in mind the prescience of the Earl of Morton, who was 224 years ahead of the 1992 decision in Mabo v Queensland which exposed the fiction of terra nullius in Australia. In Aotearoa, Hobson was directed by the British to pronounce the South Island to be uninhabited by civilized peoples, which qualified the land to be terra nullius and therefore fit for the Crown’s political occupation. Fittingly, in 1997, Ngai Tahu had the last word.