Law and History Review


Why Terra Nullius? Anthropology and Property Law in Early Australia

Stuart Banner

The British treated Australia as terra nullius—as unowned land. Under British colonial law, aboriginal Australians had no property rights in the land, and colonization accordingly vested ownership of the entire continent in the British government. The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992.

Stuart Banner is a professor of law at UCLA <>. For helpful comments on earlier drafts, he thanks Andrew Buck, Bruce Kercher, Henry Reynolds, Chris Tomlins, the LHR readers, and participants at the 2002 meeting of the Australia and New Zealand Law and History Society. For help with the research, he thanks the staffs at the Mitchell Library, State Records New South Wales, and the Public Record Office.