0000031538 00000 n 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. 0000006169 00000 n ISSN: 1323-1391. See also Logan Jack (1921), and cf para 39. Queensland 4003. 0000063863 00000 n But there is anachronism in this. 0000061270 00000 n Request Permissions, The International and Comparative Law Quarterly. That which is captured by the first taker becomes his or her property. 0000016429 00000 n 0000038209 00000 n << 0000005450 00000 n See para 66 for statements of this view. [51] And it is another question again what the consequences would be of a reassessment now of the status of the acquisition of Australia, and of its classification as uninhabited and uncultivated. See also para 23, 24. h|y TSwbLuhEjqR(2( 65 The Australian Courts Act 1828 (Imp) s 24. 0000002726 00000 n (1979) 24 ALR 118 (Full Court). 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. In the light of subsequent anthropological research, the assumption that Eastern Australia in 1788 had neither settled inhabitants nor settled law cannot be sustained. There has been some excellent work published in the last few years on developing a treaty with Australian indigenous people.7 I have little to add to them suffice to say that there is little obstacle to effecting a treaty from a precedent standpoint, as New Zealand and Canada have shown from the 1980s.8 The latest of this work from Professor Megan Davis has demonstrated how grass roots indigenous people across the country want an indigenous body to advise the Commonwealth. 2) (1992) FACTS - 5 - Queensland took ownership of the Islands to the north, including the Murray Islands - Meriam people were an established group of people with their own customs and 0000065632 00000 n 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. The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. endobj As Hannah Robert has shown, the story is more complex and the central problem is how occupancy as a concept played out. It continues to offer practitioners and academics wide topical coverage without compromising rigorous editorial standards. 0000064319 00000 n European colonists could not acquire land from indigenous peoples, only the Crown could effect that; Discovery gave title to the Crown, subject only to the fact that the indigenous inhabitants were admitted to possess a present right of occupancy, or use in the soil, which was subordinate to the ultimate dominion of the discoverer. As Chief Justice Marshall had noted, [i]t has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty [with Great Britain after independence was won], subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government. endobj }AWG5{eNw RDJ2\d"h Aboriginal Traditional Marriage: Areas for Recognition, Functional Recognition of Traditional Marriage, Legitimacy of Children, Adoption and Related Issues, Questions of Maintenance and Property Distribution, Spousal Compellability in the Law of Evidence, 15. His Excellency Sir Thomas Brisbane, then Governor-in-Chief of New South Wales and its Dependencies, on the 27th May 1823, made a grant to one William @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 Director : Stuart Heisler Media Format : NTSC, Subtitled Run time : 1 hour and 30 minutes Release date : February 6, 2018 Actors : Gary Cooper, Loretta Young, William Demarest, Dan Duryea Subtitles: : English Studio : Classicflix ASIN : B076DR791M Number of discs : 1 Where the indigenous people were in actual occupation, however, was a question to which the facts on the ground did not readily admit an answer. 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. It is divided into two parts: the first part examines the difficulties of the natural law arguments in Mabo to deal with the sovereignty and land management issues that will not go away, and explores the origin and role of terra nullius in creating those difficulties. 0000002143 00000 n F$E-:# The last lingering doubts, if there were any, were firmly removed when the British authorities refused to give any form of legal recognition to John Barmans claim that he could acquire land rights by treating with Aboriginal tribes in the Port Phillip district.[37]. 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 Crown in right of the State of Queensland had difficulty establishing to the satisfaction of their Honours a legal relationship or right to the property it claimed it had vested in a crocodile under the Fauna Act. xref 0000001189 00000 n [32] Justice Murphy considered neither Cooper v Stuart nor Milirrpum to have settled the point: Although the Privy Council referred in Cooper v Stuart to peaceful annexation, the aborigines did not give up their lands peacefully: they were killed or removed forcibly from the lands by United Kingdom forces or the European colonists in what amounted to attempted (and in Tasmania almost complete) genocide. The Recognition of Aboriginal Customary Laws and Traditions Today, The Position of Torres Strait Islanders and South Sea Islanders, The Definition of Aboriginal Customary Laws. 876 By this means the Australian colonies directly inherited a vast body of English statute and common law. 185 0 obj <>stream 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. Review of the Legislative Framework for Corporations and Financial Services Regulation, Religious Educational Institutions and Anti-Discrimination Laws, 2. 0000004467 00000 n Both in the Select Committee Report on New Zealand in 18442 and in the South Australian Letters Patent, the word actual qualified the indigenous right to occupation:3. What it may provide is a direction or a presumption, that where recognition is possible it should occur, as an aspect of the acknowledgment of past wrongs (and perhaps as a form of compensation to Aboriginal people thereby affected). Many of these journals are the leading academic publications in their fields and together they form one of the most valuable and comprehensive bodies of research available today. The Mabo judgment has done much to put those claims onto a more secure foundation, but as one author has put it, the radical title fiction has simply replaced the feudal fiction.1, And of course, Mabo could say nothing about the acquisition of sovereignty over Australias land mass and territorial seas. %%EOF In passing their Lordships referred to NSW as a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. In this sense the comment was more akin to obiter than a ratio. 0000000676 00000 n Likewise, the history of land law in Australia is one of difficulty in establishing exactly how the Crown in right of the States establishes a legal relationship to land such that it exercises lawfully its right to grant, demise or dispose of land. Rather than rewriting the judgment, the authors provide a commentary on the social history of the case and its impact on Australian constitutionalism. /Resources << In practice, difficulties such as those encountered in Milirrpums case would be encountered, given the enormous changes in Aboriginal societies and traditions since settlement. Two of the four justices in Coe v Commonwealth[30] thought the point arguable, though two did not. 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. This law effectively stopped anyone xb```f``u2l@q ^z49nOekLP5UZl[T:>y]YNaq``r``1`Pf4(%=H@?sPD Ff}@a I9bI(xpk@y hTu,,b~g1h~y endobj [41] The recognition of Aboriginal customary laws now, it has therefore been argued, depends at least in part on a reassessment of the initial classification of Australia for the purposes of the application of law. George Street Post Shop |D!"U#W7;vAp! %PDF-1.2 The Governor of the colony, before 1824, had made a land grant that was subject to a reservation that the government could reacquire, at any time, a portion of the land that might be needed for public purposes. [cited 23 Jul, 3 Letters Patent for South Australia 19 February 1836. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. 4 H. Robert, Paved with Good Intentions: Terra Nullius, Aboriginal Land Rights and Settler-Colonial Law , ACT: Halstead Press 2016 at 50. It has been argued that such a reassessment would open the way to wider recognition of customary laws by the common law. Conclusions and Implementation: The Way Forward? The attack went further: The defendants counsel maintained that there was a material difference between dominion, or the right of sovereignty over the soil and country, which were unquestionably in the Crown, and the possession or the title to the possession in or of that soils, with power to grant the same at her discretion, which title be broadly denied.9. 1996 Cambridge University Press 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. LAWYER MONTHLY - Lawyer Monthly is a Legal News Publication featuring the Latest Deals, Appointments and Expert Insights from Legal Professionals around the Globe. Aboriginal Marriages and Family Structures, Marriage in Traditional Aboriginal Societies, Aboriginal Family and Child Care Arrangements, 13. >> [40] Except so far as it has been altered by Australian Parliaments or courts, or by Imperial Acts applying to Australia, British law as it existed at these dates is still the law applicable to all citizens, including Aborigines. The case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 34. 0000021511 00000 n [25] It is clear that these rules were the vehicle by which recognition of Aboriginal laws was denied. 6jJckD~"zv,%WZ[ZEIE)JMeo;[37njq7 wqoG erqB@JMx;lz~. [39]4 & 5 Win IV c95 s 1; and see Acts Interpretation Act 1915 (SA) s 48. @&fI@DQQg'jk[;y`}8$L &9kf{w _8zoZ3qh#M/F|xrgc"cLf|1H" and its proclamation of This was not because necessarily indigenous rights were ignored. endstream endobj 64 0 obj<> endobj 65 0 obj<>/Encoding<>>>>> endobj 66 0 obj<>/Font<>/ProcSet[/PDF/Text/ImageB]>>/Type/Page>> endobj 67 0 obj<> endobj 68 0 obj<> endobj 69 0 obj<>stream c2c2$&;(k*`mcI@qc.|3/O..0h^!cAU~%W6THl.23BkdXm.YgiYu*#]Ud(Vjp4^M&he&-PpiCu}(!x:)jH,-)|~#d:_*\8D*4\3\0z6M! 0000001216 00000 n endobj However, the Committee concludes that, as a legal proposition, sovereignty is not now vested in the Aboriginal peoples except insofar as they share in the common sovereignty of all peoples of the Commonwealth of Australia. 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. /Parent 5 0 R 9 0 obj General Issues of Evidence and Procedure, 24. It follows that Aborigines must be considered within the allegiance of the Queen and as entitled to her protection. 10 0 obj To justify the acquisition of land in Australia, the British combined the common law notion of settlement (from Blackstone), an argument of indigenous rights to land where the indigenous people were in actual occupation, and a scale of civilisation framework borrowed from both the Lockean idea of property rights being generated from labour mixing with the soil and the Scottish moral philosophers four stages of civilisation (Hunter-gatherers, Agriculture, Mercantilism and Industrialisation). 0000007196 00000 n The right of occupancy asserted by Gippss examination of legal commentaries looks like native title as we understand it from Mabo, and the title in the Discoverer looks like radical title. << Had Australia been treated as a conquered colony, Aboriginal customary laws, to the extent that they had not been expressly abrogated, would presumably have been recognised, at least in their application to Aborigines. In Cooper, it was stated that the New South Wales territory consisted of a tract of [48]See I Hookey, Settlement and Sovereignty in P Hanks and B Keon-Cohen (eds) Aborigines and The Law, George Allen and Unwin, Sydney, 1984, 16, 17. However it must be See para 61. The International Court in the Western Sahara case emphasised that what was required was occupation by tribes or peoples having a social and political organisation (para 80). This explanation also helped prefigure the circumstances in which the Australian state, including the Australian Constitution, developed without legitimate consideration for the rights of First Nations. 63 0 obj <> endobj 0000061065 00000 n 25 See Blackstone, above /Parent 5 0 R WebJ. Each of the settlement is incorporated into an Act for each Maori group and includes the Crown Apology. H Watson, unpublished paper 2018. But problems regarding its application led in 1828 to the passing of the Australian Courts Act,[38] s 24 of which provided that: all laws and statutes in force within the Realm of England at the time of passing of this Act shall be applied in the administration of justice in the Courts of New South Wales and Van Diemens Land respectively, so far as the same can be applied within the said colonies . 140 0 obj <> endobj 0000035325 00000 n It is possible that the point may be dealt with by the High Court in. 0000005359 00000 n The Court held that the Crown could not establish that legal relationship sufficient to overturn the mans honest claim of right to take the crocodile by exercising his native title right to hunt the crocodile. The Proof of Aboriginal Customary Laws, Proof of Customary Laws: The Overseas Experience, Proof of Aboriginal Customary Laws: The Australian Experience, Methods of Proving Aboriginal Customary Laws, 26. But see para 109 for difficulties with compensation in this context. The Waitangi Tribunal was set up by the government in 1975 by the Treaty of Waitangi Act 1975. cXDNc8>-D 0APP9d%Hl$#=JJ*%%Z$a (b` He attended and graduated from Brown University Program In Medicine in 1978, having over 45 years of diverse experience, especially in Neurology. ON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889). 0000004448 00000 n /Length 10 0 R Current student We use cookies to ensure that we give you the best experience on our website. 0000021105 00000 n [33]id, 138. 0000001680 00000 n To similar effect S Jones, Submission 16G (7 June 1977); P Gray & R Williams, Submission 19 (15 June 1977) 1. /Length 18 0 R Stay informed with all of the latest news from the ALRC. Brennan Js decision recognised the indigenous right to occupancy of the land, sovereignty over which was acquired by the British Crown.14 The occupancy of the Aboriginal people, in the absence of any claim to sovereignty, gave them ownership as first taker. See all. 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. Cooper v Stuart (1889) 14 App Cas 286 Show simple item record Cooper v Stuart (1889) 14 App Cas 286 Files in this item This item appears in the following Collection (s) Book chapters Contains book chapters authored /Type /Page WebWilliam Cooper v The Honourable Alexander Stuart (New South Wales) [Delivered by Lord Watson] 1. trailer Without it, Australia cannot claim to be a post-colonial landscape. They did not mention indigenous rights at all, except to appear to argue, interesting in hindsight, that such Aboriginal rights were allodial in nature.11 This legal statement can only be reconciled to the historical record using the propositions discussed in part 2.