I write this essay from a place where two very different yet interwoven narratives meet within a single family history. My father was Wiradjuri, descended from one of the largest Indigenous nations of central New South Wales, and my mother was Jewish, a refugee who arrived in Australia after the devastation of the Second World War. These dual lineages – one shaped by dispossession and struggle against a settler state, the other by flight from persecution and search for refuge – have given me a particular vantage point from which to consider how colonial narratives justify settlement and silence indigenous presence. What follows is a comparative exploration of the British doctrine of terra nullius in Australia and the rhetorical and political strategies that enabled Zionist settlement in Palestine, with attention to legal frameworks, historical events, cultural consequences, and prospects for justice.
The stories passed down within my family are not abstract. My father’s Wiradjuri identity connected him to country in ways that transcended any narrow legal definition of property; land was place, law, ancestry, and spirituality. The British legal construction of terra nullius – the claim that the continent was essentially empty of legitimate property relations and sovereign structures – contradicted every aspect of that connection. My mother’s experience, by contrast, was shaped by modern statelessness; she arrived in Australia seeking safety from genocidal violence in Europe. For many Jews in the mid-20th century, Palestine represented both historical memory and a practical solution to existential insecurity. Yet the implementation of that solution involved the displacement of Palestinian Arabs and the silencing of their claims to the same land.
Growing up, I spent time at the Aboriginal Tent Embassy in Canberra campaigning alongside my cousin, Aunty Isobel Coe, one of the embassy’s founders and a relentless advocate for Wiradjuri sovereignty. The embassy’s makeshift tents and daily rallies were a visible rebuttal to terra nullius; they made the ongoing presence of Indigenous peoples impossible to ignore. At the same time, my mother’s accounts of fleeing Europe and resettling in a country still structured by colonial hierarchies underscored the ways that refugee movements intersect with settler colonial dynamics. These family narratives compelled me to examine how legal fictions and rhetorical strategies are deployed to legitimate settlement, and how they continue to shape political and moral debates today.
This essay will first trace the origins and effects of terra nullius in Australia, culminating in the landmark Mabo decision of 1992 and its aftermath. It will then turn to Zionist arguments in Palestine, considering the slogan “a land without a people for a people without a land,” early Zionist land acquisition practices, British imperial facilitation, and the events of 1948 and thereafter. A comparative analysis will highlight common logics between the two cases – erasure of indigenous presence, demographic engineering, and the deployment of legal or rhetorical devices to justify dispossession – while also identifying important differences in origins, legal form, and historical contexts. Finally, the essay will consider present-day implications and explore possible pathways toward justice, reconciliation, and shared futures.
The British Doctrine of Terra Nullius and the Colonisation of Australia
The colonisation of Australia by the British Empire was premised upon specific legal and philosophical ideas that rendered Indigenous occupation invisible in European terms. The doctrine of terra nullius drew on elements of Roman law and early-modern European natural law, adapting those ideas to justify the acquisition of territory deemed “unclaimed” because it did not show evidence of private land tenure in the English sense. When Captain James Cook claimed possession of the eastern coast of Australia in 1770, he and subsequent colonial authorities interpreted Indigenous social, legal, and spiritual relationships to land as insufficiently “civilised” to constitute ownership under British law. This interpretation allowed the British Crown to assert sovereignty and to distribute land to settlers through grants and later mechanisms such as pastoral leases.
The application of terra nullius was not merely a matter of abstract jurisprudence; it had devastating practical consequences. Indigenous communities were dispossessed of lands that had been managed through complex systems of seasonal movement, customary law, and ecological stewardship. The colonial economy transformed land use patterns, replacing Indigenous fire management and hunting practices with large-scale pastoralism and agriculture. The result was not only economic marginalisation but also the breakdown of social structures and the erosion of cultural practices tied to country. Violent conflict, disease introduced by colonists, and policies aimed at assimilation dramatically reduced Indigenous populations and undermined community resilience.
Legal and administrative instruments reinforced dispossession. Governor Richard Bourke’s 1835 proclamation in the colony of New South Wales declared that British law applied across the territory and that all land grants would be under Crown ownership, effectively ignoring Indigenous interests. Across the Australian colonies, land tenure systems were designed to facilitate European settlement and economic extraction, with little to no recognition of preexisting Indigenous law. The absence of treaties – contrasted with British practices in other settler colonies where treaties were sometimes used (however unequally) as mechanisms of negotiation – left Indigenous peoples without formal recourse within the colonial legal order.
The consequences for Indigenous cultural life were catastrophic. Practices that sustained families and communities were interrupted, sacred sites desecrated, and linguistic diversity diminished. State policies of protectionism and assimilation culminated in the forced removal of children, the Stolen Generations, which fractured kinship networks and inflicted intergenerational trauma. Frontier violence against Aboriginal people included massacres documented in historical records, while many incidents went unrecorded. The systemic nature of dispossession entrenched racial hierarchies that continued into the late 20th century and beyond.
Resistance to colonial encroachment was persistent and took many forms. Armed resistance occurred in many regions, often met with disproportionate force. Civil petitions, legal challenges, and cultural survival strategies were also evident. The establishment of the Aboriginal Tent Embassy in 1972 marked a watershed in Indigenous protest, with activists publicly asserting sovereignty in the heart of Australian political life. Figures such as Aunty Isobel Coe and others brought national attention to demands for land rights, self-determination, and treaty-making.
Mabo and the Legal Rejection of Terra Nullius
For nearly two centuries, Australian legal doctrine denied that Indigenous customary systems could constitute land ownership under the British Crown; that position changed radically in the late 20th century. The High Court of Australia’s decision in Mabo v Queensland (No 2) in 1992 dismantled the legal fiction of terra nullius, recognising that Indigenous peoples had existing systems of law and connection to land that could, under certain conditions, give rise to native title rights. The case, brought by Eddie Koiki Mabo and other Meriam people from Murray Island in the Torres Strait, challenged the assumption that British sovereignty had extinguished all Indigenous property rights without legal reflection.
The court’s reasoning acknowledged that the common law of Australia could recognise pre-existing rights where they had not been validly extinguished. Justice Gerard Brennan’s leading judgment characterised terra nullius as a legal fiction that failed to acknowledge the prior occupation and legal orders of Indigenous peoples. The Mabo decision thus reframed the legal landscape, compelling the Australian Parliament to enact the Native Title Act 1993 to provide a statutory process for claiming native title. The act set out mechanisms for determining the existence of native title, dealing with competing interests, and compensating extinguishment in some circumstances.
Mabo had both symbolic and practical implications. Symbolically, it represented an official recognition by Australia’s highest court that Indigenous occupation and systems of law mattered within the common-law framework. Practically, it opened the door for hundreds of native title claims across Australia, some of which succeeded in restoring legal recognition to traditional owners. The decision also triggered contentious political debates about property rights, resource development, and the extent to which historical injustice might be redressed within existing institutions.
However, the Mabo outcome did not translate into an unambiguous transfer of land or full sovereignty. Native title is often described as a bundle of rights that can coexist with, or be limited by, other interests such as pastoral leases or freehold titles issued by the Crown. In many cases, native title claims have been extinguished by prior acts of government or commercial development. Subsequent High Court decisions, such as the Wik Peoples v Queensland (1996) case, clarified that native title could coexist with certain pastoral leases, but political backlash led to legislative amendments that narrowed native title protections. Moreover, the procedural complexities, evidentiary standards, and financial costs associated with native title litigation have meant that many Indigenous communities face significant barriers to asserting their rights.
Despite these limitations, Mabo reframed public discourse about Australian history and opened possibilities for truth-telling and institutional reforms. The decision contributed to a national conversation that included the 2008 National Apology to the Stolen Generations and various land settlements and agreements that began to recognise Indigenous rights in practice. Nonetheless, socioeconomic disparities, overrepresentation in the criminal justice system, and ongoing conflicts over resource development and sacred sites demonstrate that legal recognition alone does not fully resolve the structural legacies of dispossession.
Zionist Arguments and the Colonisation of Palestine
Zionism emerged in the late 19th century as a response to centuries of antisemitism, culminating in the violent height of European persecution in the 20th century. Advocates of a national home for the Jewish people argued that Jews required territorial sovereignty as a safeguard against statelessness and genocide. Theodor Herzl and other leading thinkers promoted the idea of reestablishing Jewish political life in Palestine, a land with deep historical and religious significance for Jewish communities. Yet alongside this historical claim, some strands of Zionist rhetoric portrayed Palestine as underutilised or mismanaged, a land in need of modernising settlers. The phrase often paraphrased as “a land without a people for a people without a land” captured that sentiment, even though it obscured the reality of a vibrant Palestinian society already inhabiting the territory.
Early Zionist settlement in Palestine involved a combination of land purchases, agricultural colonisation, and institutional development. Organisations such as the Jewish National Fund accumulated land through purchases from absentee landlords and the Ottoman and later British legal systems. New agricultural settlements, kibbutzim, and urban institutions were established, and Jewish immigration (Aliyah) increased significantly in the interwar years and after the Second World War as refugees sought safety. The British Mandate period (1920–1948) was pivotal: the Balfour Declaration of 1917, in which the British government expressed support for “the establishment in Palestine of a national home for the Jewish people,” provided international political cover for Zionist objectives while ambiguously pledging to protect the civil and religious rights of non-Jewish inhabitants. This ambiguity facilitated differing interpretations and competing claims.
The demographic transformation of Palestine through immigration, along with political mobilisation and land acquisition, intensified tensions between Jewish and Arab communities. Palestinian political nationalism, organised through institutions like the Arab Higher Committee, resisted both colonial rule and Zionist settlement. Periodic outbreaks of violence, including major disturbances in 1929 and the Arab Revolt of 1936–1939, reflected deep and growing antagonisms. British policies oscillated between facilitating Jewish immigration and attempting to constrain it in response to Arab resistance and imperial calculations.
The events of 1947–1948 marked a watershed. The United Nations Partition Plan of 1947 proposed dividing the territory into separate Jewish and Arab states, an arrangement acceptable to many Zionist leaders but rejected by Palestinian and broader Arab leadership as unfair and impracticable. Following the UN vote, civil war escalated. The declaration of the State of Israel in May 1948 and the subsequent war with neighbouring Arab states culminated in what Palestinians call the Nakba – a large-scale displacement of Palestinians, the destruction of hundreds of villages, and the creation of a massive refugee population. Laws enacted by the new Israeli state, such as the Absentees’ Property Law, facilitated the appropriation of land and property belonging to displaced Palestinians.
Interpretations of the 1948 events and their motivations vary widely. Some historians emphasise strategic and military factors, while others highlight the intentionality of displacement and the role of plans and operations that aimed to secure territory and minimise the chance of the return of Palestinian residents. Scholars such as Ilan Pappé frame these events as ethnic cleansing, while others, including those offering revisionist accounts, focus on wartime exigencies and the multiplicity of actors involved. What remains clear is that the demographic and territorial realities established in 1948 set the parameters for the subsequent decades of Israeli state-building, Palestinian displacement, and regional conflict.
Comparative Analysis: Shared Logics and Divergent Paths
When placed side by side, the Australian and Palestinian contexts reveal several shared logics that underpinned settler settlement, alongside critical differences in context, mechanisms, and outcomes.
Shared logics
• Erasure of indigenous presence: Both systems relied upon narratives that minimised or negated the preexisting claims of Indigenous populations. In Australia, terra nullius functioned as a legal doctrine that denied the legitimacy of Aboriginal land tenure. In Palestine, rhetorical framings such as “a land without a people” and political practices that marginalised Palestinian social organisation helped to justify settlement. In both cases, narratives of emptiness or inadequacy served to morally and legally facilitate acquisition.
• Demographic engineering and immigration: British encouragement of settlers in Australia and Zionist promotion of Aliyah in Palestine changed the demographic balance in favour of settlers. These shifts were strategic, intentional, and central to establishing political control.
• Legal and administrative tools of dispossession: Both cases employed legal mechanisms to appropriate land – Crown grants and pastoral leases in Australia; land purchase structures, mandatory-era administrative measures, and later Israeli property laws in Palestine. In each context, law was used to naturalize and embed settlement within formal structures.
• Cultural suppression and renaming: The colonial imposition of new place names, the suppression of languages, and the rewriting of histories were common strategies. In Australia, Aboriginal place names and knowledge were often erased or Anglicised. In Palestine, Hebrew place names and new institutional narratives reshaped the cultural landscape.
• Resistance and international solidarity: Indigenous resistance in Australia and Palestinian resistance to Zionist settlement and Israeli state policies have both been sites of long-term struggle, attracting international attention and solidarity movements. Activists have often drawn comparative analogies between the two causes, and cross-cultural partnerships have emerged in various contexts.
Divergent contexts and consequences
• Legal form versus rhetorical framing: Terra nullius became embedded in colonial legal doctrine, enabling direct Crown sovereignty and immediate jurisdictional control. The Zionist slogan was primarily rhetorical and strategic, not an explicit legal doctrine; Zionist settlement relied on a combination of private land transactions, international diplomatic moves (notably British policy and the UN partition), and state formation dynamics.
• Temporal and geopolitical contexts: Australia’s colonisation was primarily an 18th–19th century imperial expansion, driven by maritime empire-building and economic motives, and involving direct imperial governance. The Zionist project unfolded in the context of late 19th and 20th century nationalist movements, decline of Ottoman imperial rule, and the politics of European imperial mandates, World War I outcomes, and the Holocaust. These differing historical circumstances shaped both motivations and methods.
• Refugee dynamics and moral imperatives: Zionism was animated in part by the desire to provide a refuge for a people who had experienced centuries of persecution and the unprecedented genocidal catastrophe of the Holocaust. The moral urgency of securing a Jewish homeland is a distinguishing factor that complicates simple analogies with other forms of settler colonisation. In contrast, British colonisation of Australia did not originate as a refugee-driven project.
• Legal redress and recognition: Australia experienced a legal reversal in Mabo that explicitly repudiated terra nullius and recognised native title under common law, creating a framework – imperfect and contested – for claims and negotiations. No analogous legal ruling has nullified the foundational political claims that enabled large-scale displacement during the creation of Israel; efforts to address Palestinian dispossession have taken other forms, including UN resolutions, international law debates, and varying diplomatic initiatives, but without a comprehensive judicial remedy comparable to Mabo.
• Demographic scale and settlement patterns: Australia’s vast interior and lower indigenous population density in some regions produced settlement patterns different from those in Palestine, where dense towns and agricultural communities were already well-established. This difference affected the nature of resistance and the immediacy of displacement.
The Personal Dimension: Living Between Histories
My family history embodies the tensions described above. Aunty Isobel’s activism at the Tent Embassy underscored the centrality of land to Wiradjuri identity and the need for structural change in Australian law and society. The embassy’s presence opposite the seat of national government was both literal and symbolic: it insisted that Indigenous sovereignty and rights could not be relegated to the margins. The Mabo decision was, therefore, exhilarating, representing a juridical acknowledgement that Indigenous laws and relationships to land mattered. Yet it did not, and could not by itself, undo centuries of dispossession, nor did it guarantee economic restitution or cultural restoration.
At the same time, my mother’s journey to Australia conveyed the urgency that propelled many Jews toward Palestine and toward the search for in-group safety after the Holocaust. Her experience prompts empathy for refugees and recognition of the existential motivations behind Zionist claims. Yet empathy for one group’s suffering should not obscure another’s displacement. The challenge is to hold both histories in tension: to acknowledge legitimate Jewish trauma and the moral arguments for refuge, while also recognising the real, often violent consequences of settlement for Palestinian communities.
This duality – standing simultaneously as a descendant of both dispossessed Indigenous people and refugees who sought safety – creates a moral imperative to seek frameworks of justice that address both historical wrongs and present injustices. It makes clear that the pursuit of rights for one group should not necessitate the denial of rights for another.
Modern Implications and Pathways to Justice
The legacies of terra nullius and the Zionist settlement project continue to shape politics, law, and social life in Australia and Palestine today. In Australia, Mabo and subsequent developments have catalysed important changes but have not achieved full material parity or societal reconciliation. Indigenous Australians continue to face systemic disadvantages across health, education, economic opportunity, and criminal justice. Political debates over constitutional recognition, treaty-making, and mechanisms like a Makarrata Commission (a proposed body for truth-telling and treaty negotiation) reflect ongoing struggles to translate legal acknowledgment into structural reform.
In the Palestinian context, the consequences of displacement, occupation, and contested sovereignty remain at the heart of regional instability. International law debates focus on issues such as the applicability of the Fourth Geneva Convention to occupied territories, the legality of settlements in the West Bank, the status of refugees under UN General Assembly Resolution 194, and the obligations of states to allow return or to provide compensation. The challenge of moving toward a just resolution is compounded by profound mistrust, asymmetries of power, and competing historical narratives.
Despite these challenges, there are concrete pathways and strategies that may contribute to more equitable and sustainable outcomes in both contexts:
• Truth-telling and historical inquiry: Establishing forums for rigorous, publicly accessible historical truth-telling – whether through commissions, academic collaborations, or community-led histories – can challenge myths of emptiness and restore recognition to erased communities. In Australia, the work of historians, Indigenous-led research, and educational reforms have begun to reshape public knowledge about colonisation. In Palestine and Israel, joint historical projects and oral history initiatives can illuminate overlapping narratives and create shared understanding.
• Legal recognition and reform: Strengthening legal mechanisms that recognise Indigenous rights, land tenure, and cultural heritage remains vital. Expanding the scope and accessibility of native title processes, ensuring fair negotiation with resource developers, and enshrining Indigenous voices in decision-making are practical measures. In the Palestinian case, legal avenues include pursuing remedies through international courts and exploring frameworks for restitution, compensation, or alternative dispute resolution mechanisms that heed international legal norms.
• Restorative justice mechanisms: Truth and reconciliation models, land restitution programs, and reparative initiatives can address historical injustices without welding them into zero-sum political struggles. These mechanisms must be community-driven and accompanied by material resources that enable cultural regeneration, economic participation, and institutional change.
• Political solutions grounded in equality: For Palestine and Israel, political solutions have been debated for decades – ranging from two-state arrangements to one-state solutions based on equal rights. Any durable resolution must address refugee rights, political representation, security concerns, and economic viability. For Indigenous Australians, treaty processes that recognize sovereignty and establish frameworks for self-determination are central.
• Cross-community solidarity and civil society engagement: Grassroots connections between Indigenous Australians, Palestinians, Jews, and non-Indigenous Australians demonstrate the potential for solidarity grounded in shared experiences of dispossession and a commitment to justice. Civil society organisations, academic partnerships, and cultural exchanges can build coalitions for change, while also respecting the agency and leadership of affected communities.
• Education and public commemoration: National narratives are often shaped by education and commemoration practices. Incorporating Indigenous histories and Palestinian narratives into curricula, public monuments, and cultural programming counters the logic of erasure and fosters more inclusive citizenship.
• Economic and material support: Effective redress must include economic measures – investments in infrastructure, health, education, and cultural enterprises – that enable communities to rebuild and thrive. Land rights without economic empowerment risk perpetuating inequality.
Ethical Reflections and the Limits of Analogy
Comparative analyses like the one undertaken here can illuminate shared structures and aid mutual understanding, but they also carry risks. Drawing direct equivalences between different historical contexts can elide particularities – specific legal formations, lived experiences, and moral obligations unique to each case. It is important to maintain nuance: to acknowledge the specificity of the Holocaust and the genuine existential threat it posed to European Jewry, and to recognise the distinct historicities of Indigenous settler encounters in Australia. At the same time, acknowledging differences does not preclude the identification of common moral claims: the imperative to recognise Indigenous sovereignty, to remedy dispossession, and to construct political arrangements that respect human dignity and self-determination.
Conclusion: Toward a Shared Ethic of Recognition and Repair
This comparative essay has sought to situate the British legal construction of terra nullius and the rhetorical-political strategies of Zionism within a broader framework of settler colonial logics. Both cases demonstrate how narratives of emptiness, tools of legal and administrative appropriation, and demographic policies can serve to legitimise settlement and erase indigenous claims. My personal lineage – Wiradjuri on one side, Jewish refugee on the other – provides a lens that underscores the human stakes involved in these abstractions. The Mabo decision in Australia illustrates that legal fictions can be challenged and overturned, and that recognition of indigenous title is possible within settler legal orders, even if incomplete. In Palestine, the absence of an equivalent juridical repudiation of the foundational narratives that enabled displacement leaves the struggle for justice ongoing and contested.
Paths forward require truth, law, politics, and empathy. They demand honest historical reckoning that recognises multiple victims and perpetrators, legal frameworks that meaningfully restore rights and resources, and political creativity that prioritises equality and dignity. They ask civil societies to engage in solidarity without erasing difference and to cultivate an ethic of repair that accepts complexity.
For those of us whose identities straddle the histories of both dispossession and refuge, responsibility resides in refusing to simplify. We must hold the particular traumas of our own communities with care while resisting narratives that validate one community’s security at the expense of another’s basic rights. Building equitable futures means dismantling legal fictions, honouring indigenous presence, and crafting political solutions that address both past harms and contemporary injustices. Only then can histories of colonisation be transformed from instruments of erasure into foundations for mutual recognition and genuine reconciliation.
