0000002143 00000 n Its interest to a wider Australia is obvious; its own That which is captured by the first taker becomes his or her property. To a considerable extent this reassessment or reevaluation of the processes of British acquisition of Australia is an aspect of the moral and political debate over past and present relations between Aboriginal and non-Aboriginal Australians. W 3 Whether all the consequences of that classification are legally beyond dispute that is, beyond the reach of judicial reassessment is another question. We pay our respects to the people, the cultures and the elders past, present and emerging. The question is whether and how those laws and traditions, as they now exist, should be recognised. to receive all of the latest news from the world of Law. 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. [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. They held that New South Wales should be treated as a settled colony as at 1788, such that applicable English law arrived with the first settlers. The Doctrine of Terra Nullius became a morphed and more extreme version of the Doctrine of Discovery and was not overruled until the 1992 case of Mabo v State of Queensland. For the purpose of deciding whether the common law was introduced into a newly acquired territory, a distinction was drawn between a colony acquired by conquest or cession, in which there was an established system of law of European type, and a colony acquired by settlement in a territory which, by European standards, had no civilized inhabitants or settled law. dqP5)b l8"$yTbS,&s;L?NV;%gN\8E)Ee[- uwZ/ m\]c1sDoIhccP?RB[^@IBIcOlV0&`|?g7lv2CL! However it must be This paper seeks briefly to survey some of the voluminous literature on these related topics. 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. [27] Justice Blackburn in Milirrpums case put the distinction thus: There is a distinction between settled colonies, where the land, being desert and uncultivated, is claimed by right of occupancy, and conquered or ceded colonies. However it is desirable to deal with the issue at the general level at which it is raised. 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. As the Privy Council pointed out in passing in Cooper v Stuart, New South Wales had been regarded as a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions. Recognition of Aboriginal Customary Laws (ALRC Report 31), 5. A more usual though not necessarily more fruitful approach to the question of common law recognition of customary law is through a reassessment of the way in which the basic common law rules with respect to colonial acquisition were applied to Australia in 1788 and thereafter. >> xref 0000000016 00000 n 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. 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. 13 0 obj Australia has always been regarded as belonging to the latter class [31]. 0000061065 00000 n 0000002286 00000 n \9d +9 yb &`h`.Fc8PJP\ cn9& a9 &lH,G#LDFCpEQ] -QApS : 8sJ1Ny]"fSo9_#eNFIE1Tq&Qz+JTZ1a1%\0x\6B6VY 2B 0000006318 00000 n 0000004448 00000 n 0000004467 00000 n The Western Saharan tribes, it held, were socially and politically organised under chiefs competent to represent them (para 80, & cf para 149). 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. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, 1994 Jonathan applies his extensive projects, resources, native title and cultural heritage experience to mining, oil and gas transactions, renewable energy, infrastructure developments, joint venture arrangements, and asset and share sales and acquisitions across Australia and internationally. 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 >> 1996 Cambridge University Press 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. xb```f``u2l@q ^z49nOekLP5UZl[T:>y]YNaq``r``1`Pf4(%=H@?sPD Ff}@a I9bI(xpk@y hTu,,b~g1h~y 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. AC3bXEJV`!!uj4Cx5SVHJ}f2DK2 0000005271 00000 n 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. Discussion of Australias status on colonisation has not been limited to judicial pronouncements. Cooks secret instructions had provided that he should acquire territory with the consent of the Natives. Several propositions derived from the literature can be baldly stated, and then examined more closely. }AWG5{eNw RDJ2\d"h [50]Coe v Commonwealth (1978) 18 ALR 592 (Mason J);. It is not difficult to see how Henry Reynolds could assert that native title was recognised by the Crown in the 1840s, through the provision of reserves, the insertion of reservation clauses in pastoral leases to recognise practically the right of occupancy on runs, and provision in clause 20 of the Waste Lands Act 1842 (Imp.) 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 0000032924 00000 n This was the case, at least initially, in New Zealand. Aboriginal Customary Laws and Substantive Criminal Liability, Criminal Law Defences and Aboriginal Customary Laws, Intoxication and Diminished Responsibility, Conclusion: Intent and Criminal Law Defences, Aboriginal Customary Law as a Ground of Criminal Liability, 21. 0000035325 00000 n 5 Quoted in S. Brennan, L. Behrendt, L. Strelein and G. Williams, Treaty, Leichhardt, NSW: Federation Press 2005 at 72. 2 See Select Committee on the State of the Colony of New Zealand Report (1844) reproduced in Accounts and Papers [of the] House of Commons, 1844 (9) vol XIII, Irish University Press series of British Parliamentary Papers, Colonies: New Zealand pp 5ff; see J Fulcher, The Wik judgment, pastoral leases and Colonial Office Policy and intention in NSW in the 1840s Australian Journal of Legal History, vol 4, no 1 1998, 33-56 at 41. However it is desirable to deal with the issue at the general level at which it is raised. endobj 4 0 obj >> 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. 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. ,)bL $Oy %yLAFX%*0S~mPwmdRi_~?V-y*='L8Q WebWilliam Cooper v The Honourable Alexander Stuart (New South Wales) [Delivered by Lord Watson] 1. endobj 0000036242 00000 n The Tribunal cannot conduct negotiations. Il est le 35e gouverneur du Kentucky (19001907) et un snateur pour l'tat au Snat des tats-Unis. Legal and Moral Issues. There was no other way of dealing with them, than that of keeping them separate, subordinate and dependent, with a guardian care thrown around them for their protection. The original Indian nations, despite being acknowledged by the discoverers as the proprietors of the soil, had no power of alienation except to the governing power of the discoverers. The Governor of the colony, before 1824, had made a land grant that For more information, visit http://journals.cambridge.org. endstream The Australian High Court's Use of the Western Sahara Case in Mabo - Volume 45 Issue 4 WebThe case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. See also Logan Jack (1921), and cf para 39. Only then can the Crown in each of its capacities in Australia establish a legal relationship between its claims to sovereignty and rights in the. Jonathan is regarded as one of Australias leading native title and cultural heritage lawyers and has been recognised by Chambers Asia Pacific every year since 2007 in addition to several other legal publications. [54] But such a presumption is hardly needed. 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. /Type /Page /Font << But the Maori experience suggests that such recognition would have been grudging and temporary. The landowner argued that this reservation was invalid because it was against a long-standing principle of property law known as 'the rule against perpetuities'. >> stream 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. Community Wardens and other Forms of Self-Policing, Policing Aboriginal Communities: Conclusions, 33. @&fI@DQQg'jk[;y`}8$L &9kf{w _8zoZ3qh#M/F|xrgc"cLf|1H" Current student % 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). Web14 William Holdsworth, History of English Law (Methuen, 3rd ed, 1932) 410-6. 0000000676 00000 n Cooper v Stuart (1889) 14 App Cas 286. It would indeed be a poor birthright if the common law inherited by the settlers of New South Wales was only WebStudy with Quizlet and memorize flashcards containing terms like Influence on Aus., Arrival of CL in Australia, British understanding of civilisation and more. Paul Coes statement of claim in Coe v the Commonwealth used the concept expressly, and it was taken up by historians such as Reynolds and others.7 Thus it is now necessary to put proposition 4: There is no reference to terra nullius being the basis for settlement in 19th century historical sources relating to the settlement of Australia. Provided Always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives. 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. Argued September 11, 1958. << 0000002726 00000 n The English, citing Locke, inverted it: those who mixed their labour with the soil and with things available in nature were entitled to a first claim to property rights in those things, a sort of first taker as first fashioner.4. 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). [48] Certainly the process of conquest by attrition took much longer than the acquisition of the territory of Australia as a matter of international law.[49]. He is skilled in the art of negotiation, mediation and the resolution of disputes in relation to resources and energy projects. HlUn6}WQob&[`Q2mT_DJ8\9gWZGM /ProcSet 2 0 R 0000016429 00000 n of 10% of the land fund being devoted to Aboriginal welfare. %PDF-1.6 % endstream endobj 141 0 obj <> endobj 142 0 obj <> endobj 143 0 obj <> endobj 144 0 obj <>/Font<>/ProcSet[/PDF/Text]>> endobj 145 0 obj <> endobj 146 0 obj <> endobj 147 0 obj <> endobj 148 0 obj <> endobj 149 0 obj <> endobj 150 0 obj <> endobj 151 0 obj <> endobj 152 0 obj <>stream 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). The second part of this essay will address the basis as it appears in the archive. 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.