0000063550 00000 n /Length 18 0 R So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. Peter O'Grady trading as Legal Helpdesk Lawyers ABN 93 775 540 127 | Shop K2, Bridgepoint Shopping Centre, 1-3 Brady Street, Mosman NSW 2088 endobj 0000016429 00000 n <<858E00CE4FFAF342A410969D82250243>]/Prev 348379>> 0000003584 00000 n cf A Frame, Colonizing Attitudes towards Maori Custom (1981) NZLJ 105; MR Litchfield, Confiscation of Maori Land (1985) 15 Vict U Well L Rev 335. trailer 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. As a result, neither conquest, cession by treaty nor settlement establish an uncontestable legal relationship to property of each State and Territory in the land those jurisdictions encompass. /Resources << 0000033715 00000 n The Crown in London gave up the fight to stop leases being given to those who had simply spread out beyond the limits of location, and passed the 1846 waste lands legislation providing for leases of Crown land. 63 0 obj <> endobj This is an NFSA Digital Learning resource. It would indeed be a poor birthright if the common law inherited by the settlers of New South Wales was only Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, 1994 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. When the officers identified themselves, Cooper drove home and then almost killed an officer when he swerved around a roadblock erected in front of his house. WebMlad Sheldon (angl. [54] But such a presumption is hardly needed. 0000064207 00000 n 0000005562 00000 n >> 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. 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. 66. The Recognition of Traditional Marriages: General Approach, Existing Recognition of Traditional Marriages under Australian Law, Alternative Forms of Recognition of Aboriginal Traditional Marriages, Recognition of Traditional Marriages as De Facto Relationships, Enforcement of Traditional Marriage Rules, Traditional Marriage: Definition and Proof, 14. The Protection and Distribution of Property, Distribution of Property between Living Persons[2], 16. and its proclamation of Liability limited by a scheme approved under Professional Standards Legislation The case for the forms of recognition of Aboriginal customary laws and traditions recommended in this Report is, in the Commissions view, a clear one. 0000037337 00000 n @*" 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\= [39]4 & 5 Win IV c95 s 1; and see Acts Interpretation Act 1915 (SA) s 48. WebCooper v. Aaron. 0000036526 00000 n 0000034568 00000 n Reminds. As Connor has pointed out, it was the Advisory Opinion on Western Sahara in 1975 which led directly to the idea of terra nullius taking hold of the historical and legal imagination in Australia. Even Blackstone himself remarked that the American plantations were obtained in the last century [that is, the 17th century] either by right of conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties.6 Blackstone was not sure of the legality of what occurred, but with an unwarranted delicacy declined to examine the issue of indigenous rights further. 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. 13. %%EOF The case took the form of a Crown information against the defendant landholder Brown for intruding into the coal seams and trespassing on the Crowns rights to the coal in the soil. Aboriginal Customary Laws: Recognition? Other Methods of Proof: Assessors, Court Experts, Pre-Sentence Reports, Justice Mechanisms in Aboriginal Communities: Needs, Problems and Responses, 28. The land was deemed terra nullius Mabo v Queensland (No. The difference of course has been that where there were treaties a modern clawing-back has taken place to re-establish the honour of the Crown in Canada, America and New Zealand. 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. Dr. William Cooper, MD, is a Neurology specialist in Alamosa, Colorado. a Q;AO.0@.t;h*() B` 2,8fd/^rq?1 H #x9230:C GDpqs7>ao"'2BSUmA7#h2KrD* He shot the other deputy as he ran from his truck to the house. 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. 0000063863 00000 n See para 68. 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. 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. By this means the Australian colonies directly inherited a vast body of English statute and common law. However it must be 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. >> 0000032924 00000 n Sign up to receive email updates. 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. 0000001591 00000 n Aboriginal Marriages and Family Structures, Marriage in Traditional Aboriginal Societies, Aboriginal Family and Child Care Arrangements, 13. /Type /Page Phone +61 7 3052 4224 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 >> In practice, difficulties such as those encountered in Milirrpums case would be encountered, given the enormous changes in Aboriginal societies and traditions since settlement. In Cooper, it was stated that the New South Wales territory consisted of a tract of But the Maori experience suggests that such recognition would have been grudging and temporary. 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 /ProcSet 2 0 R 0000002143 00000 n Traditional Hunting, Fishing and Gathering Practices, Traditional Hunting, Fishing and Gathering in Australia. 12 0 obj q\6 Australian Court Case, Barwick, Chief Justice, Cooper V Stuart, Deane, Sir William, High Court of Australia, Murphy, Justice, Murphy, Justice, native title, Papua Aboriginal Customary Laws and Anglo-Australian Law After 1788, Protest and Reform in the 1920s and 1930s, 6. Of course, deciding where nomadic peoples actually occupied the land was a nonsense, but it grounded the colonial project in Australia and New Zealand. |D!"U#W7;vAp! [49]See para 29, 34, and cf J von Sturmer, Submission 403 (March 1984) 10. Although the Privy Council referred in Cooper v Stuart to peaceful annexation, the aborigines did not give up their lands peacefully: they were killed This law effectively stopped anyone 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. hb```f``Uf`c`` @Q(@mPV1=i"OE/GOG(A. [41]This was the case, at least initially, in New Zealand. cHzHRfj0"'sa)&pVZ+,d#1jTWRHa@E The second part sets out the legal argument for a compact/Makkerata or recognition of prior sovereignty in Indigenous Australians, based both on part 1 and the New Zealand precedent. But they also empowered him to take possession of uninhabited country, by setting up Proper Marks and Inscriptions as first discoverers and possessors. As Hannah Robert has shown, the story is more complex and the central problem is how occupancy as a concept played out. It is hardly necessary to say that the question is not how the manner in which Australia became a British possession might appropriately be described. 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). Yorta Yorta man William Cooper establishes the Australian Aborigines' League in Melbourne together with Margaret Tucker, Eric Onus, Anna and Caleb Morgan, and Shadrach James. Helping Injured Clients to Regain Mobility, http://www.law.unsw.edu.au/news/2017/06/symbolic-constitutional-recognition-table-after-uluru-talks-. %PDF-1.4 % But the Maori experience suggests that such recognition would have been grudging and temporary. Argued September 11, 1958. 0000003030 00000 n Discrimination, Equality and Pluralism, Criteria for Equality: A Comparative Perspective, The Position under the United States Constitution, The Position in Other Comparable Jurisdictions, Pluralism, Public Opinion and the Recognition of Aboriginal Customary Laws, Human Rights and Indigenous Minorities: Collective Guarantees, The Recognition of Aboriginal Customary Laws and Human Rights Standards, 12. We use cookies to ensure that we give you the best experience on our website. Two of the four justices in Coe v Commonwealth[30] thought the point arguable, though two did not. 0000001952 00000 n 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]. 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. Jonathan is a Partner and the Head of the leading Resources and Energy practice. Whether all the consequences of that classification are legally beyond dispute that is, beyond the reach of judicial reassessment is another question. mqF-iX=x&h0xT(n\Al |(J")Jb /01N@C4004jX;Ph P@8Hs)zNr\,\SX9oX3EjhJ \9d +9 yb &`h`.Fc8PJP\ cn9& a9 &lH,G#LDFCpEQ] -QApS : 8sJ1Ny]"fSo9_#eNFIE1Tq&Qz+JTZ1a1%\0x\6B6VY 2B It publishes over 2,500 books a year for distribution in more than 200 countries. 0000001809 00000 n 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. Stay informed with all of the latest news from the ALRC. Aboriginal Land (Lake Condah and Framlingham Forest) Act, 1987, Aboriginal Land Rights Act (Northern Territory), 1976, Aboriginal & Torres Strait Islander Heritage Protection Act, AMEC (Assoc' of Mining & Exploration Co's), ATSIC Aboriginal and Torres Strait Islander Commission, Australian Aboriginal Progressive Association, Department of Aboriginal & Islander Affairs (DAIA), FCAATSI Federal Council For Aboriginal Advancement, Ganalanja Corp v Queensland and Ors (1996), Hamlet of Baker Lake v Minister for Indian Affairs (1979), Miriuwung Gajerrong Peoples v Western Australia (1998), Oneida Indian Nation v County of Oneida (1974), Queensland Coast Islands Declaratory Act , 1985, Southern Rhodesia, Amodu Tijani V Secretary, 1921, Te Weehi v Regional Fisheries Office (1986), Teddy Biljabu and Ors v Western Australia (1995), The Administration of Papua v Daera Guba 1972-3, The Land Titles and Traditional Usages Act, Walley v State of Western Australia (1996), This is an NFSA Digital Learning resource. Whatever the position in 1788 or in 1837, it is much too late to suggest that justice to Aboriginal people today can be achieved thro ugh attempts to[53] reconstruct or recreate the past. At law, commencing with Attorney-General v Brown8 and then by assertion in subsequent cases (see proposition 7), occupancy of the Crown by settlement of British subjects in the new colony of New South Wales grounded absolute beneficial ownership. It was applied in the Australian colonies and in New Zealand, regardless of the existence of treaties (be it Batman or Waitangi). }AWG5{eNw RDJ2\d"h The issue for the Commission in the present Reference is the extent to which Aboriginal customary laws and traditions should be recognised by the Australian legal system now, nearly two hundred years after permanent European entry into Australia. Y:GEEYEBwCC-YGYD6[EYE,A2Z- 0000002286 00000 n It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. There are other factors also. 81 0 obj<>stream 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. xb```f``u2l@q ^z49nOekLP5UZl[T:>y]YNaq``r``1`Pf4(%=H@?sPD Ff}@a I9bI(xpk@y hTu,,b~g1h~y The lack of treaties in Australia is one more obstacle to such a reestablishment in Australia. What underlies those proposals, and the Commissions general approach, is an acknowledgment of the present realities, and the present needs, of the Aboriginal people of Australia. It has maintained its pre-eminence as one of the most important journals of its kind encompassing Human Rights and European Law. [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. This was the case, at least initially, in New Zealand. 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. 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. General Issues of Evidence and Procedure, 24. For more information, visit http://journals.cambridge.org. >> 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. [53]When the House of Commons Select Committee on Aborigines reported: see para 64. To acknowledge the error and to admit that the country was inhabited by human beings whose customs could have been recognised (as they were recognised on the other side of the Torres Strait) does not involve the overthrow of the established Australian legal order. Despite The decisive date was deliberately made the date of the passing of the Act, 25 July 1828, in order to gain the benefit of Peels criminal law reforms introduced during the 1820s. He is skilled in the art of negotiation, mediation and the resolution of disputes in relation to resources and energy projects. /hWj|]e_+-7 There was no recognition of common law native title: only a recognition of a right of occupancy fatally qualified in the southern hemisphere colonies by the word actual. The effect was of course to force an actual occupancy by the policy mechanisms just described, thus wresting Aboriginal people from their spiritual connection to country. Parliament, and want to work more slowly towards a national treaty.9 Nevertheless, Victoria and South Australia have started consultation towards provincial treaties.10 Proposition 10 is the consequence: On this view, Mabo is only a step on the path to the establishment of that legal relationship. 0000005271 00000 n cXDNc8>-D 0APP9d%Hl$#=JJ*%%Z$a (b` 552 A similar distinction was made by the Senate Standing Committee on Constitutional and Legal Affairs in its report on the feasibility of an Aboriginal treaty or Makarrata: It may be that a better and more honest appreciation of the facts relating to Aboriginal occupation at the time of settlement, and of the Eurocentric view taken by the occupying powers, could lead to the conclusion that sovereignty inhered in the Aboriginal peoples at that time. Review of the Legislative Framework for Corporations and Financial Services Regulation, Religious Educational Institutions and Anti-Discrimination Laws, 2. On this view. 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. stream 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. The second part of this essay will address the basis as it appears in the archive. [42]Justice JA Miles, Submission 263 (29 April 1981) 2-3. Web1889 case of Cooper v Stuart (Cooper),6 albeit in bald dictum, was accepted as binding. In those of the latter kind, the colony already having law of its own, that law remains in force until altered.[28]. 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). 9 0 obj But nevertheless Cooper v Stuart mandates the statement of proposition 6 because in 1971 Justice Blackburn still considered himself bound by it: 291) was heavily influenced by this reversal of argument previously used to protect indigenous rights in the face of colonial acquisition of territory. @x @L#&JfA He attended and graduated from Brown University Program In Medicine in 1978, having over 45 years of diverse experience, especially in Neurology. This item is part of a JSTOR Collection. WebThis commentary explains the Privy Councils opinion in Cooper v Stuart (1889) 14 App Cas 286, a case which continues to influence Australias constitutional framework. [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. 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 0000000016 00000 n stream 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. Lawyer Monthly is a news website and monthly legal publication with content that is entirely defined by the significant legal news from around the world. 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. 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. [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. 0000004448 00000 n 0000016908 00000 n [50]Coe v Commonwealth (1978) 18 ALR 592 (Mason J);. 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. Web1973-1985. 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. endobj 6jJckD~"zv,%WZ[ZEIE)JMeo;[37njq7 wqoG erqB@JMx;lz~. Aboriginal Customary Laws and Sentencing, Aboriginal Customary Laws and Sentencing: Existing Law and Practice, The Recognition of Aboriginal Customary Laws in Sentencing, Aboriginal Customary Laws and the Notion of Punishment, Sentencing and Aboriginal Customary Laws: General Principles, Taking Aboriginal Customary Laws into Account, Incorporating Aboriginal Customary Laws in Sentencing, Related Questions of Evidence and Procedure, 22. G(pKrox)mFYz.E\R|1 /L`:b2``l&A3F&>i9lg0k 'tNeNgv]ILjiuNLMCEE$tngx?:rs$N&4?{lW~Bb)+j'UOX#_f!~:Nc{LkjFei?`~24?'3%zH. 0000061385 00000 n He was Lord Advocate , the most senior Law But problems regarding its application led in 1828 to the passing of the Australian Courts Act,[38] s 24 of which provided that: all laws and statutes in force within the Realm of England at the time of passing of this Act shall be applied in the administration of justice in the Courts of New South Wales and Van Diemens Land respectively, so far as the same can be applied within the said colonies . Arguments for the Recognition of Aboriginal Customary Laws, Arguments against the Recognition of Aboriginal Customary Laws, 9. ON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889). Special Aboriginal Courts and Justice Schemes, Support Structures for the Aboriginal Courts, 30. WebThe case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 0000005450 00000 n F$E-:# 6 Legal Tips On Protecting Yourself Against Dental Malpractice, Drugmaker Endo Signs $65 Million Opioid Settlement With Florida, Inos 17-049 GmbH Acquires Werther International, Bancomext raises $600 million to face COVID-19, 5 Great Tools for Attorneys to Improve Sales. 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. [30] Attorney-General v Brown (1847) 1 Legge 312. endobj Cooper is secretary of the League which campaigns for the repeal of discriminatory legislation and First Nations representation in the Australian Parliament. He examined Chief Justice Marshalls famous American judgments on the subject, Storeys Commentaries on the Constitution of the United States, Kents Commentaries on American Law and various Colonial Office documents relating to an attempt by William Wentworth to purchase land from Maori people directly and without the involvement of the Crown.1 The 9 July proceedings centred on the Claims to Grants of Land in New Zealand Bill, which was designed to render null and void Wentworth and others purported purchase of Maori land. Its authority to deal with claims was backdated from 1975 to 1840 in 1985 (Treaty of Waitangi Amendment Act 1985 (NZ) s 3). Importantly, Cooper v Stuart, through the doctrine of stare decisis, prevented Justice Blackburn in Milirrpum v Nabalco ((1971) 17 FLR 141 at 242) from recognising indigenous rights to land in the Northern Territory. %PDF-1.2 The question is whether and how those laws and traditions, as they now exist, should be recognised. /F1 8 0 R 140 46 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. After the Uluru Statement of the Heart, the Commonwealths recognition of Aboriginal sovereignty is also now under the spotlight. The difference between the laws of the two kinds of colony is that in those of the former kind all the English laws which are applicable to the colony are immediately in force there upon its foundation. George Street Post Shop [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 contrary view was expressed, for example, by Justice H Zelling, Submission 369 (26 January 1983) 1, on the grounds that the settled colony rule was established practice for other colonies with indigenous inhabitants, and that it was in any event established, for South Australia at least, by statute (4 & 5 Wm IV c95), not merely by judicial decision. [50] The classification of Australia as a settled rather than a conquered colony may also have been an act of state; at least, it may now be a classification settled by legislative or judicial decision. Without it, Australia cannot claim to be a post-colonial landscape. See eg RL Sharp, People without Politics, in VF Ray (ed) Systems of Political Control and Bureaucracy in Human Societies, University Of Washington Press, Seattle, 1958; P Sutton People with Politics: Management of Land and Personnel on Australias Cape York Peninsula, in NW Williams and ES Hunn (eds) Resource Managers: North American and Australian Hunter-Gatherers, Westview Press, Colarado, 1982, 155. Indigenous Justice Mechanisms in some Overseas Countries: Models and Comparisons, 31. 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. Local Justice Mechanisms: Options for Aboriginal Communities, Aborigines as Officials in the Ordinary Courts.
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