Captain Cook’s Contested Claim to Australia

Two hundred and fifty years ago, on 22 August 1770, Captain James Cook claimed possession of much of the Australian continent in the name of George III. It is commonly believed that this act changed the course of the territory’s history. Yet Cook’s actions in Australia are a salient example of the old adage that the significance of an event often lies not so much in what happened as in what subsequent generations believe to have happened. In the course of time, Cook’s claiming of possession became shrouded in myth and misunderstanding.

In the second half of the 19th century, Cook began to be regarded as the discoverer and founder of the nascent Australian nation. There was nothing natural about his ascension to this status: his exploits on land (as compared to those at sea) were few and far between and of much less significance than any that occurred after British colonisation began in terra Australis in 1788. Nevertheless, by the end of the 19th century Cook’s name had secured a privileged place in Australian history among white or settler Australians. As the consequence of a great deal of myth-making, performed in myriad forms (in school and scholarly texts, images, place names, commemorations, in porcelain, statuary and stamps, poetry, drama and novels) Cook was transformed into a hugely symbolic figure.

This myth-making amounted to a foundational history. Cook’s acts – his ‘discovery’ of the continent and his claims to its possession – became the origin story of a new, enlightened and progressive nation. At the same time, this story ignored the Indigenous people who were already there, just as it tended to obliterate their ongoing presence.

‘Skeleton in the closet’

In 1970, as the bicentenary of Cook’s so-called discovery and founding of Australia was being celebrated, a very different way of considering Cook in the nation’s history came into view. Aboriginal political leaders called for a day of mourning and protest as they declared that Cook’s claims of discovery and possession amounted to a ‘skeleton in the closet of Australia’s national life’ because he had denied their people’s land rights. They denounced him for leading the ‘European invasion’ that had dispossessed them of those lands. Likewise, they insisted that ‘Australian history did not begin [with Cook] in 1770’ and that the foundational history was ‘lying’ when it claimed that he had discovered Australia and implied that Aboriginal people did not exist before the coming of the white man.

In fact, Aboriginal people increasingly told stories about Captain Cook that depicted his feats in a very different fashion from the way they had been portrayed in white myth-making. One such story, as told by the Aboriginal elder Rolly Gilbert, described Cook’s arrival thus:

That Captain Cook … he was travelling in the boat on the ocean. Then he came out to see Australia. A couple of blokes were in the boat and himself. He said: ‘We go ashore in Australia’ and they did come to shore, and saw these couple of Aboriginal people standing by the beach. They were going to do them over, like shot them down, [but] another fellow said ‘You had better not do that. They might give a good idea where the other people might be’. And so they did. They pointed out where the Aborigines had their main camping area. Then they [Captain Cook] set off and found the tracks of Aborigines where they were hunting around the area. Then they went back to the boat and set up the people to explore and go down the countryside, and shot the people down, just like animal. They left them lying there for the hawks and the crows. So a lot of old people and young people were struck by the head with the end of a gun and left there. They wanted to get the people wiped out because Europeans ... had to run their stock: horses and cattle.

In 1978, the Aboriginal activist Paul Coe took a case to Australia’s highest court, in which he alleged that the proclamations issued by Cook in 1770 and the first governor of New South Wales in 1788, and the colonisation that followed, ‘wrongfully treated the continent now known as Australia as terra nullius’, a concept understood as a land without a sovereign or a land belonging to no one.

Shortly afterwards, Australian historians, more or less for the first time, set about trying to explain why the British government had never treated with the Aboriginal people to acquire sovereignty and land. Terra nullius was at the heart of the story they told. The historian Alan Frost argued that Cook had claimed possession of New Holland in accordance with a particular international legal doctrine, terra nullius, which held that a land was empty of possession when its people had not advanced beyond the state of nature and mixed their labour with the soil. Frost asserted:

Had [Prime Minister William] Pitt and his advisers known that the Aborigines were not truly nomadic, that they had indeed mixed their labour with the land, and that they lived within a complex social, political and religious framework – that is, had the British not seen New South Wales to be terra nullius, then they would have negotiated for the right to settle.

In 1987, another historian, Henry Reynolds, agreed that the British had denied Aboriginal people their land rights because of the application of this doctrine, though in his eyes terra nullius had more than one meaning, as it could refer not only to a land deemed to have no owners, but also to land held to be largely uninhabited. More importantly, Reynolds contended that the British government had made a legal mistake in treating Australia as a terra nullius: ‘The Aborigines were in possession of their land as that term was understood in both international and English law at the end of the 18th century and the early years of the 19th century.’ To prove that you were in possession of the land, he continued, ‘it was not necessary to enclose and farm the land in the way of Europeans, nor was it necessary to live permanently in one place’. Instead, one simply had ‘to be present on the land and to manifest a will to ownership’. By arguing thus, Reynolds distilled in a very powerful manner a moral crisis for the Australian nation that had begun as a result of the campaign being fought for Aboriginal land rights: the law of the land that denied those rights could not be regarded as just and fair because it was no longer in accordance with the newly acknowledged facts of Australian history, namely that Indigenous peoples were the land’s original or traditional owners.

The problems with terra nullius

In the closing decades of the 20th century the story of terra nullius became a major theme in Australia, articulated by historians, deployed by major legal and political players and given unprecedented coverage in the media. In so doing, it tended to slip whatever moorings in the past it might have had. It was frequently claimed that Cook and his successors went so far as to even deny that Aboriginal people were even present before 1770 or 1788.

In recent years it has started to become apparent that the story of terra nullius has major weaknesses, especially if it is to be regarded as an empirical account that explains why the British government never treated with the Aboriginal people for sovereignty or land. 

It is evident that the doctrine of terra nullius has been invoked by historians in an unduly expansive fashion, so much so that it has come to refer to any legal claim that newly discovered lands belonged to no one, irrespective of the precise basis upon which such a claim was made. In other words, scholars have treated claims of possession that were often based on a series of different legal rationales – such as those of discovery, improvement and settlement – as though they were all parts of a single legal doctrine that they referred to as terra nullius.

The contention that the British claimed possession of New Holland in the late 18th century on the basis of terra nullius is anachronistic because there was neither a doctrine bearing this name, nor any historical record of it being used in any systematic fashion until the mid 19th century. It could be argued that terra nullius derived by analogy from a Roman Law doctrine know as res nullius and that the latter had firm foundations in a body of law that predates the early modern period, or that terra nullius was connected to another Roman legal doctrine known as occupatio or occupation, but there is no reliable historical evidence to suggest that the British government was influenced by, or invoked, either res nullius or occupation as it began to colonise New Holland.

Discovery and possession

It seems more likely that the British claimed possession of New Holland in 1788 on the basis of an amalgam of two, if not three, other legal doctrines: discovery, which was a claim to be a territory’s first European discoverer; possessio or possession, which was a claim that a person or state who had something and intended to possess it should be regarded as its possessor; and usucapio, possessing something for a certain period without interruption (which amounted to occupation of a land). 

The first two of these doctrines were practical in the context of making imperial claims of possession. They could be made and upheld more readily against an imperial rival than any claim based on res nullius because the latter involved an investigation about the local people that required asking two questions. First, whether all things in the newly discovered territory had the status of res nullius or whether the Indigenous people had any property claims in those things. Second, in the event that there were things that were not part of anybody’s property, could they be claimed as res nullius or were there native polities standing in the way of such claims? This question required an imperial agent to find out whether the native people had anything that resembled a sovereign polity and, if so, whether this could annul the application of res nullius. Claims that were based in the first instance on discovery were much easier to make than any claim that involved negotiations with the consent of the Indigenous people.

By what law?

Cook seems to have concluded that it was too difficult to acquire the consent of the Indigenous people (as he had been instructed to do by the British government) and that a claim that was made on the basis of the doctrine of discovery would suffice. 

In the only entry in his journal in which he recorded the several claims of possession he made in New Holland, it seems that he was relieved when an armed group of the local people whom he feared might oppose his landing moved away, thereby allowing him to take what he called ‘peaceable possession’. He was concerned to remark that there had been no previous European discoverer of the area on the eastern side of what he called ‘Possession Island’, though he seems to have been unsure about the basis – or the ‘rule’, to use his word – upon which he was claiming possession, judging by the fact that he deleted two key passages in his journal, highlighted here:

On the western side [of this island] I can make no new discovery the honour of which belongs to Dutch navigators and as such they may claim to it as their property; but the eastern coast from the latitude of 38 [degrees] south down to this place I am confident was never seen or visited by an European before  and therefore by the same rule belongs to Great Britain.

In 1788, the man who became first governor of New South Wales, Arthur Phillip, appears to have claimed possession of New Holland on the basis of discovery and possession or usucapio, given that David Collins, New South Wales’ first legal officer, remarked several years later:

By the definition of our boundaries it will be seen that we were confined along the coast of this continent to such parts of it as were navigated by Captain Cook, without infringing on what might be claimed by other nations from the right of discovery. Of that right, however, no other [European] nation has chosen to avail itself … Great Britain alone has followed up the discoveries she has made in this country by at once establishing in it a regular colony and civil government.

The claims of possession that Britain made in the next few decades in terra Australis were similarly concerned with asserting a right vis-à-vis its major imperial rival, the French, rather than against the Aboriginal people.

Exaggerated claims

There has been a tendency among historians to assume that imperial claim-making such as Cook’s necessarily encompassed a claim to both imperium (sovereignty) and dominium (lordship over property). But in the case of New Holland it is very doubtful that Cook had any interest in staking a claim in regard to the latter. As was so often the case, the point of an imperial agent claiming possession was to stake a claim in case his master decided to plant a colony in those places at a later point in time.

Most importantly, it is apparent that historians who have considered imperial claims of possession such as those made by Cook in regard to New Holland have badly exaggerated their historical significance. It should be evident that these claims did not dictate the way in which imperial powers treated sovereignty, let alone rights of property, at the point they later chose to plant colonies. 

The example of New Zealand is a case in point. In 1769-70 Cook claimed possession of parts of those islands for the British Crown in the same manner as he had claimed New Holland, yet in the 1810s the British government took steps to repudiate its claim to sovereignty and in the late 1830s it decided it had to negotiate cession of that sovereignty with the Indigenous people before annexing the country. In short, then, historians should be wary of concluding that Cook’s claims of possession in 1770 determined the treatment of Indigenous sovereignty or rights inland in Australia.

In order to explain why the British treated the Aboriginal people’s sovereignty and rights in the way they did, historians need to shift their attention to a later period of time and consider a range of factors that had little to do with the law. 

In the early decades of the colony of New South Wales, the government acted as though the British Crown was the only source of title to land in the Australian colonies. This disregard for both the sovereignty and rights of property of the Aboriginal people at the outset of colonisation soon became entrenched. Cook may not have taken possession of Australia under terra nullius, yet the story that the myth has told clearly has a connection to a genuine historical past. Moreover, the denial of Aboriginal people’s agency, sovereignty, land and history remains the ‘skeleton in the closet of Australia’s national life’.

Bain Attwood is Professor of History at Monash University. His latest book is Empire and the Making of Native Title: Sovereignty, Property and Indigenous People (Cambridge, 2020).