Exam notes - Summary Native Title in Australia In those of the latter kind, the colony already having law of its own, that law remains in force until altered.[28]. Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making, Aboriginal and Torres Strait Islander peoples and the law, Synot, E; de Silva-Wijeyeratne, R, Commentary: Cooper v Stuart (1889) 14 App Cas 286, Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making, 2021, 1. JavaScript is disabled for your browser. /Resources << 0000000676 00000 n [26] The general principles for the introduction of English law into a settled as distinct from a conquered colony were laid down by Blackstone in 1765. 66. 0000001065 00000 n mqF-iX=x&h0xT(n\Al |(J")Jb /01N@C4004jX;Ph P@8Hs)zNr\,\SX9oX3EjhJ /Contents 12 0 R Each of the cases (Attorney-General v Brown, Cooper v Stuart) in the 19th century were designed to guard the Crown against the unwarranted overreach of 8 The case that recognised the Treaty of Waitangi principles was the Lands Case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641). Despite the Treaty of Waitangi, this idea of actual occupation coupled with the labour theory of property was applied not just by British settlers but by the Crown in New Zealand as well as Australia (where no treaties were made by the Crown). ON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889). 0000038209 00000 n There are other factors also. Andrew Fitzmaurice has very usefully explained the origins of terra nullius in the Roman law idea of the first taker. On this view. It is this founding phrase that justified the creation of reserves, the reservation clauses being placed in pastoral leases and the establishment of a fund for Aboriginal welfare from sales of waste lands. Treaty of Waitangi (State Enterprises) Act 1988 (NZ); Treaty of Waitangi Act 1975 (NZ), ss 8A-8HJ). 0000002143 00000 n Cooper v Stuart (1889) 14 App Cas 286 | 4 - Taylor & Francis Cooper v Stuart [1889] UKPC 1 | Peter O'Grady Lawyer 0000001501 00000 n of 10% of the land fund being devoted to Aboriginal welfare. 8. British law, both common law and statute law, as at this date was thus declared to be the law of the two eastern colonies New South Wales and Van Diemens Land but only so far as it could then be reasonably applied within the said colonies. [39] In Western Australia, the State was deemed to have been established on 1 June 1829 for the purposes of determining the application of Imperial Acts. /Parent 5 0 R 35. /hWj|]e_+-7 ,)bL $Oy %yLAFX%*0S~mPwmdRi_~?V-y*='L8Q See also Logan Jack (1921), and cf para 39. Eventually the scramble for Africa in the late 19th century saw the English formulation temporarily win out.5 But by 1975, in international law, the anti-dispossession view of terra nullius was re-established: Occupation being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid occupation that the territory should be terra nullius a territory belonging to no-one at the time of the act alleged to constitute occupation. Those territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius.6 Thus we can state proposition 6. WebJ. [50]Coe v Commonwealth (1978) 18 ALR 592 (Mason J);. TOPIC 2: HISTORY OF AUSTRALIAN LAW Flashcards | Quizlet But they also empowered him to take possession of uninhabited country, by setting up Proper Marks and Inscriptions as first discoverers and possessors. The reassessment now of Australias status as a settled colony would not as such bring about appropriate forms of recognition. 0000015739 00000 n This is summed up by proposition 8: In Canada and America, the domestic dependent nation status of indigenous peoples produced perhaps no less injustice than in the south. From the first days of settlement, the interaction of British administrative policies and legal principles relating to the colonies provided the foundation for asserting of English law at the expense of the customary laws and practices of Aboriginal groups. 185 0 obj <>stream Web14 William Holdsworth, History of English Law (Methuen, 3rd ed, 1932) 410-6. l @ *R(r34Pb2h\0FVBw 81 0 obj<>stream 68. But unease at the insensitive disregard for the facts of Aboriginal life, and at the way in which terms such as peaceful annexation gloss over the reality of the relations between European settlers and Aboriginal groups,[45] has been a significant factor in recent suggestions that the question needs to be re-evaluated. Section 24, in effect, reaffirmed that New South Wales was a settled colony, but provided a later date of reception for reasons of convenience. The South Australian Colonization Commissioners followed this up with instructions to the Protector of Aborigines, narrowing the legal meaning of Aboriginal rights in land to cover only lands used for cultivation, fixed residence or funereal purposes.4 Land not actually occupied by Aboriginal people was beneficially owned by the Crown. 0000036242 00000 n %%EOF Conclusions and Implementation: The Way Forward? Cooper v Stuart (1889) 14 App Cas 286, 291. For more information, visit http://journals.cambridge.org. That which is captured by the first taker becomes his or her property. @hA h#(P !QJc)@("2HN$b)HIbFi1IAp8 (kFQ aZT7DGJO)wHT0`r R$$ 0@L T)tV/Z*"4\7VPaAq@\9 Cx|ujp_1A@C7Ni;Y'3m2*`VF#N !r,Q~ * !i&@ bX 6 Cited in Mabo no 2 at 34-35. Several propositions derived from the literature can be baldly stated, and then examined more closely. [42]Justice JA Miles, Submission 263 (29 April 1981) 2-3. For differing views on the question of classification see GS Lester, Inuit Territorial Rights in the Canadian Northwest Territories, Tungavik Federation of Nunavut, Ottawa, 1984, esp 37-41, a summary statement of the arguments developed by the same writer in The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument, Ph D Thesis, York University, 2 vols, 1981; and MJ Detmold, The Australian Commonwealth, Law Book Co, Sydney, 1985, ch 4. The second is the application of British law to Australia, and the con sequences of that application for the continued existence and enforcement of Aboriginal customary laws and traditions. @*" b@ 'd"7Jd(./n,nA,ho+ +Z> c|>Tzb&8&B* `hbFGs.CLCE3ddFq1#:E ;=0hm'n*J+bafLl9S$S9ERL3dP &W2b -h 2 "B,2@)"":j,* (AF}2H\LY/rA\= |D!"U#W7;vAp! A political compact or settlement which addresses past wrongs, establishes a proper basis for the acquisition of land by the Crown, and settles the compensation which is required to seal that compact between the States, the Territories and the Commonwealth on the one hand. 0000003844 00000 n William Cooper was killed by multiple shots before he made it inside. The Growth of Japanese Dispute Resolution, The Threshold for Perversity When Challenging the Assignment of Claims, Crime in Art Law: Digitalisation, Trafficking and Destruction, div#side-jobs-widget br {display: none;}div#side-jobs-widget strong{display:Block;}.slj-job.slj-job-sidebar{margin:0 0 25px;}, OSCAR HEALTH 72 HOUR DEADLINE ALERT: Former Louisiana Attorney General, UPSTART HOLDINGS 96 HOUR DEADLINE ALERT: Former Louisiana Attorney, OUTSET MEDICAL ALERT: Bragar Eagel & Squire, P.C. It then surveys the debates over . See also GS Lester, Submission 468 (19 February 1985). In Cooper, it was stated that the New South Wales territory consisted of a tract of Previously, Blackstonian notions of dominion and control had dominated legal thinking about how to make claims to property. OCTOBER 1996] UNOSOM 923 - JSTOR 13. Recognition of Aboriginal Customary Laws (ALRC Report 31), 5. Phone +61 7 3052 4224 Australian Court Case, Barwick, Chief Justice, Cooper V Stuart, Deane, Sir William, High Court of Australia, Murphy, Justice, Murphy, Justice, native title, Papua Despite the Treaty of Waitangi, this idea of actual occupation coupled with the labour theory of property was applied not just by British settlers but by the Crown in New Zealand as well as Australia (where no treaties were made by the Crown). Whether Eastern Australia was desert and uncultivated in Blackstones sense may be another question. Securing Hunting, Fishing and Gathering Rights, Aboriginal Participation in Resource Management, Administrative and Political Constraints of the Federal System, The Framework of Religious Exemptions in Anti-discrimination Legislation, Australias Corporate Criminal Responsibility Regime. 9 http://www.law.unsw.edu.au/news/2017/06/symbolic-constitutional-recognition-table-after-uluru-talks- indigenous-leaders-say ; see also M. Davis, Political Timetables Trump Workable Timetables: Indigenous Constitutional Recognition and the Temptation of Symbolism over Substance in S Young, J. Nielsen, J. Patrick (ed) Constitutional Recognition of Australias First Peoples Theories and Comparative Perspectives, Leichhardt, NSW: Federation Press 2016; speech at University of Queensland, 20 April 2018. A political compact or settlement which addresses past wrongs, establishes a proper basis for the acquisition of land by the Crown, and settles the compensation which is required to seal that compact between the States, the Territories and the Commonwealth on the one hand and the indigenous peoples of Australia on the other should now be actively debated by Australian society at large, not just by academics and elites. The statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of aborigines land.[33]. WebIn Cooper v Stuart (1889) 14 App Cas 286, 29 it was held that Australia was Terra Nullius at the time of annexation and defined Australia. See also footnote 2 in Fitzmaurice, The Genealogy, 10 (1889) 14 App Cas 286 at 291; (1886) NSWR 1; Evening News, Sydney, Monday 17 August 1885 at 5; Darling Downs Gazette Saturday 6 April 1889; The Daily Northern Argus Rockhampton Monday 28 January 1889, 14 Exactly what the defendants counsel in Attorney-General v Brown had argued, see footnote 9. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. THE RECEPTION OF LAND LAW INTO THE AUSTRALIAN South Australia was not founded until 1836, and the relevant date of reception is 28 December 1836. endobj After the Uluru Statement of the Heart, the Commonwealths recognition of Aboriginal sovereignty is also now under the spotlight. f. WebThe Old Privy Council decision in Cooper V Stuart [1889] was based on the factual errors that Australia was peacefully settled and that Aborigines were never in possession of the land. That relationship to property in the crocodile was said to ground the Crowns right to prosecute an indigenous man who took that crocodile in accordance with his traditional laws and customs. See eg the discussion of initial European contact in Cape York in R Logan Jack, See I Hookey, Settlement and Sovereignty in P Hanks and B Keon-Cohen (eds). If we do not, the Australian legal system will continue to rest on a dubious basis of either fraud or a mistake of fact. [cited 23 Jul, 3 Letters Patent for South Australia 19 February 1836. << See also para 23, 24. Supreme Court of the United States. Rather than rewriting the judgment, the authors provide a commentary on the social history of the case and its impact on Australian constitutionalism. The Settled Colony Debate | ALRC <]>> 23 Cooper v Stuart (1889) 14 App Cas 286, 291; See also Stoljar, J Invisible Cargo: The Introduction of English Law in Australia in Gleeson, JT, Watson, JA and Higgins, RCA (eds) Historical Foundations of Australian Law: Vol 1 Institutions, Concepts and Personalities (The Federation Press, 2013), 194 211 Google Scholar. 63 19 Level 8, Waterfront Place, 1 Eagle Street, Brisbane Qld 4000. 0000036109 00000 n It is necessary to distinguish three separate issue s. The first is the acquisition of sovereignty by the British Crown over Australia as a matter of international law (and the international consequences for the Aboriginal inhabitants). www.vic.gov.au/aboriginalvictoria/treaty.html; Initially the concept was used to justify indigenous rights to land, because as early as the 16, In the scramble for Africa in the late 19, The justification by European powers for the acquisition of African territories using a concept of, The key Australian decision from the Privy Council in. This commentary explains the Privy Councils opinion in Cooper v Stuart (1889) 14 App Cas 286, a case which continues to influence Australias constitutional framework. Webis generally regarded as settled, a legal principle laid down in Cooper v Stuart7 in 1889 and followed by Blackburn J in Milirrpum v Nabalco Pty Ltd in 1971. Aboriginal timeline: Politics It is possible that the point may be dealt with by the High Court in Mabo v Queensland and Commonwealth, although the claim there does not depend on the conquered colony argument. >> It does involve the concession that justice has been denied to the Aboriginal people through a fundamental misconception of fact from which legal consequences have followed. 140 46 The Australian High Court's Use of the Western Sahara Case in Mabo - Volume 45 Issue 4 0000020370 00000 n 4 0 obj 15 John Lilburnes treason trial [1649] Quoted in Stuart Banner, When 24 Cooper v Stuart (1889) 14 App Cas 286, 291. It will examine these further three propositions: 1 Ulla Secher The doctrine of tenure in Australia post-Mabo: Replacing the feudal fiction with the mere radical title fiction Part 2 (2006) 13 Australian Property Law Journal 140, 2 Coe v Commonwealth (1979) 53 ALJR 403; Mabo v State of Queensland (no 2) (1992) 175 CLR 1 at 31, 3 A Fitzmaurice The Genealogy of Terra Nullius (2007) 129 Australian Historical Studies at 7 quoting Francesco de Vitoria, 5 In re Southern Rhodesia, [1919] AC at 232, 6 Advisory Opinion on Western Sahara, [1975] ICJR at 39, 7 M Connor, The Invention of Terra Nullius: historical and legal fictions on the foundations of Australia Sydney: Maclaey Press 2005. The second part of this essay will address the basis as it appears in the archive. Local Justice Mechanisms: Options for Aboriginal Communities, Aborigines as Officials in the Ordinary Courts. The Treaty of Waitangi (State Enterprises) Act 1988 (NZ) amended the Treaty of Waitangi Act and gave power to the Tribunal to recommend that the Crown conduct negotiations to provide redress to the Maori as a result of suffering caused (see sections 5(1)(a) and 6(3) of the Treaty of Waitangi Act). As he points out, if Australia had been regarded as conquered, no Aboriginal rights would have been enforceable against the Crown without recognition by the Crown (which did not occur); even the application of Aboriginal customary laws as between Aborigines themselves would have been excluded because those laws would have been regarded as malum in se: Calvins case (1608) 7 Co Rep 1a, 77 ER 377, and cf para 62. Cooks secret instructions had provided that he should acquire territory with the consent of the Natives. This is an NFSA Digital Learning resource. (M[Qm`}Jw[R$@(W\ 5 Quoted in S. Brennan, L. Behrendt, L. Strelein and G. Williams, Treaty, Leichhardt, NSW: Federation Press 2005 at 72. [39]4 & 5 Win IV c95 s 1; and see Acts Interpretation Act 1915 (SA) s 48. But the Maori experience suggests that such recognition would have been grudging and temporary. Liability limited by a scheme approved under Professional Standards Legislation Whatever may have been the injustice of this encroachment, there is no reason to suppose that either justice or humanity would now be consulted by receding from it.[34]. /F1 8 0 R 0000003584 00000 n Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. /Length 13 0 R << This was the case, at least initially, in New Zealand. The Tribunal gives recommendations to the Crown, and often these recommendations are not binding (they have capacity to make binding recommendations in relation to Crown Forest Licence, or land subject to a memorial, but it is not often used. 67. Other Methods of Proof: Assessors, Court Experts, Pre-Sentence Reports, Justice Mechanisms in Aboriginal Communities: Needs, Problems and Responses, 28. The International and Comparative Law Quarterly This is a very interesting and well researched book marred by its sometimes hectoring tone and enthusiastic embracement of the revisionist side of the History Wars; Coe v Commonwealth (1979) 53 ALJR 403; (1993) 118 ALJR 110; H Reynolds The Law of the Land 2nd ed Melbourne: Penguin Books 1992. As a result, neither conquest, cession by treaty nor settlement establishes an uncontestable relationship to property of each State and Territory in the land those jurisdictions encompass. /Resources << 10 0 obj Keywords: colonialism, colonisation, Cooper V Stuart, crown land, doctrine of tenure, New South Wales, Privy Council, settlements, terra nullius. The Distinction Between Settled and Conquered Colonies. Despite being overturned by Mabo v Queensland (No 2) (Mabo [No 2]), the case remains important because of the Privy Councils justification for the application of English common law to the colony of New South Wales. This paper seeks to articulate that justification for a general legal readership. So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. This became known as the enlarged notion of terra nullius, a process that Brennan J explained in Mabo (No 2) as resulting in the parcel by parcel dispossession of First Nations which underwrote the development of the nation. The Commissions Work on the Reference, Special Needs for Consultation and Discussion, 3. >> 0000006318 00000 n G(pKrox)mFYz.E\R|1 /L`:b2``l&A3F&>i9lg0k 'tNeNgv]ILjiuNLMCEE$tngx?:rs$N&4?{lW~Bb)+j'UOX#_f!~:Nc{LkjFei?`~24?'3%zH. 64. 1996 Cambridge University Press To similar effect S Jones, Submission 16G (7 June 1977); P Gray & R Williams, Submission 19 (15 June 1977) 1. It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. 0000030966 00000 n startxref Aboriginal Legal Service