Current student 185 0 obj <>stream If you continue to use this site we will assume that you are happy with it. 0000063863 00000 n Aboriginal Customary Laws: Aboriginal Child Custody, Fostering and Adoption, Questions of Principle and Implementation, Federal, State and Territory Forums for Issues of Aboriginal Child Custody, Recognition of Customary or De Facto Adoption, Social Security and the Care and Custody of Aboriginal Children, 17. See para 68. 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. It was applied in the Australian colonies and in New Zealand, regardless of the existence of treaties (be it Batman or Waitangi). If we do not, the Australian legal system will continue to rest on a dubious basis of either fraud or a mistake of fact. 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. 0000001952 00000 n @&fI@DQQg'jk[;y`}8$L &9kf{w _8zoZ3qh#M/F|xrgc"cLf|1H" Aboriginal Customary Laws: Recognition? %%EOF 0000001680 00000 n He is affiliated with many hospitals including San Luis Valley Regional Medical Center, Rio Grande Hospital. 0000001189 00000 n The Select Committee of the House of Commons on Aborigines stated in 1837: The land has been taken from them without the assertion of any other title than that of superior force and by the commission under which the Australian colonies are governed, Her Majestys Sovereignty over the whole of New South Wales is asserted without reserve. At least that is what the law now says. 0000036526 00000 n This item is part of a JSTOR Collection. 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. 13 0 obj These two results from the different understandings of terra nullius fought for supremacy in the 19th century. As one submission put it: I suggest that the Commission should take the opportunity to reject in the strongest terms possible the notion that has hitherto prevented any recognition of customary law among the Australian aboriginal people, namely the doctrine that upon colonisation Australia fell into the category of a settled colony, a land either without previous inhabitants or whose inhabitants lacked any social organisation worth recognising [T]his myopic view of aboriginal society (excusable as it might have been by the standards of the eighteenth and early nineteenth centuries) has been conclusively shown by anthropologists and historians to be quite wrong as a matter of fact Yet the Australian courts persist to the present day in maintaining the fiction of the uninhabited colony, on the ground that it is a question of law which was authoritatively settled by the Privy Council in Cooper v Stuart (a reading of which indicates that the Privy Council hardly addressed its mind to the question). Decided September 12, 1958. Milirrpum v Nabalco at 202, 7 Examples include S. Breanna et al, Treaty; M Mansell Treaty and Statehood: Aboriginal Self-Determination, Leichhardt, NSW: Federation Press 2016. 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). The Crowns title, through settlement (or to put it another way, through the occupancy of British settlers) gave them the status of first taker in the eyes of the Supreme Court of NSW: in a newly-discovered country, settled by British subjects, the occupancy of the Crown is no fiction Here is a property, depending for its support on no feudal notions or principle., But this case must not be wrenched from its historical context. 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. There is now considerable evidence of Aboriginal techniques of land management and conservation, including the deliberate use of fire,[44] but Aborigines were not in the European sense a pastoral or farming people, if that was what was required. The Waitangi Tribunal was set up by the government in 1975 by the Treaty of Waitangi Act 1975. This was the case, at least initially, in New Zealand. 10 0 obj 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. 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. << 0000007196 00000 n 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. The Privy Councils explanation, which rested on NSW being a tract of territory practically unoccupied, without settled inhabitants or settled law, stood as the legal authority for Australian nationhood for over a century. 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). 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. [35] According to Castles, each of the steps taken by Cook demonstrated that he was following those parts of his instructions which assumed that Australia was to be treated as uninhabited. WebMlad Sheldon (angl. 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. endobj 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. The lack of treaties in Australia is one more obstacle to such a reestablishment in Australia. WebJ. 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'. 0000000676 00000 n George Street Post Shop The question is whether and how those laws and traditions, as they now exist, should be recognised. WebWilliam Cooper v The Honourable Alexander Stuart (New South Wales) [Delivered by Lord Watson] 1. 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. 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). 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. [42], The assumption, which underlay the proclamation of British sovereignty over Eastern and later Western Australia and the subsequent gradual occupation of the continent, that Australia was legally uninhabited because it was desert and uncultivated[43] was, it has been argued, wrong as a matter of fact. Discussion of Australias status on colonisation has not been limited to judicial pronouncements. 0000002726 00000 n If applied to territory inhabited by indigenous peoples, the original law of nations provided that goods which belong to no owner [that is, no sovereign] pass to the occupier.3 On this view, a mainly Continental European one, dispossession of first nation peoples was wrong. Queensland 4003. >> 35. For terms and use, please refer to our Terms and Conditions 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. [35]Additional Instructions for Lt James Cook, appointed to command His Majestys Bark Endeavour, 30 July 1768, in JM Bennett & AC Castles, A Source Book of Australian Legal History, Law Book Co, Sydney, 1979, 253-4. [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. 0000005450 00000 n Il est le 35e gouverneur du Kentucky (19001907) et un snateur pour l'tat au Snat des tats-Unis. stream Web1889 case of Cooper v Stuart (Cooper),6 albeit in bald dictum, was accepted as binding. 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. [41]This was the case, at least initially, in New Zealand. 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. 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 General Issues of Evidence and Procedure, 24. 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. This was not because necessarily indigenous rights were ignored. [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. 0000016908 00000 n So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. xref 0000001809 00000 n 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). What Are the Legal Difficulties in Building Envelope Consulting? JavaScript is disabled for your browser. 5 Quoted in S. Brennan, L. Behrendt, L. Strelein and G. Williams, Treaty, Leichhardt, NSW: Federation Press 2005 at 72. Web14 William Holdsworth, History of English Law (Methuen, 3rd ed, 1932) 410-6. and its proclamation of 140 46 WebCooper, the successor in title to the original grantee, argued that this condition was invalid as it did not align with the law against perpetuities. 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. 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. xref [51]GS Lester, Submission 468 (19 February 1985) argued that the only secure basis for asserting Aboriginal rights at common law is to accept that Australia was settled and to controvert the decision in the Nabalco case that the consequence of settlement was to vest all land (and associated rights) in the Crown. For more information, visit http://journals.cambridge.org. 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. [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. 0000061270 00000 n The words desert and uncultivated are Blackstones own; they have always been taken to include territory in which live uncivilized inhabitants in a primitive state of society. Keywords: colonialism, colonisation, Cooper V Stuart, crown land, doctrine of tenure, New South Wales, Privy Council, settlements, terra nullius. 0 /F1 8 0 R 0000030966 00000 n 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. 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. 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. Two of the four justices in Coe v Commonwealth[30] thought the point arguable, though two did not. See para 37, 203. Jonathan is a Partner and the Head of the leading Resources and Energy practice. /F1 8 0 R WebCooper v Stuart was the Privy Council determination which cemented terra nullius in Australia for the century up to Mabo. Community Wardens and other Forms of Self-Policing, Policing Aboriginal Communities: Conclusions, 33. 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. 0000006169 00000 n 876 Traditional Hunting, Fishing and Gathering Practices, Traditional Hunting, Fishing and Gathering in Australia. [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. Cooper v Stuart (1899) Held that the land was unoccupied upon discovery and so it was settled. 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. /Resources << WebON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889).. South Australia was not founded until 1836, and the relevant date of reception is 28 December 1836. It is neither correct nor just to say that it is too late to change now. Thus British law was applied in the colony from the first. 67. Aboriginal Hunting, Fishing and Gathering Rights: Current Australian Legislation, Legislation on Hunting and Gathering Rights, Access to Land for Hunting and Gathering: The Present Position, Miscellaneous Restrictions Under Australian Legislation, Australian Legislation on Hunting, Fishing and Gathering: An Overview, 36. [31]id, 129, citing Cooper v Stuart, Aickin J agreed: id, 138. Conclusions and Implementation: The Way Forward? 64. It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. /Contents 9 0 R Browns intrusion was a direct attack on the Crowns albeit fictional feudal right as ultimate holder of the title to the waste lands. Post-Brexit Restructuring Proceedings: What Are the Implications for Luxembourg? However it is desirable to deal with the issue at the general level at which it is raised. /Contents 12 0 R 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. 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. Criminal Investigation and Police Interrogation of Aborigines, The Law relating to Interrogation and Confessions, The Need for Special Protection of Aboriginal Suspects, Judicial Regulation of Aboriginal Confessional Evidence, Safeguards for Aboriginal Suspects in Legislation and Police Standing Orders. 63 0 obj <> endobj /Filter /LZWDecode ISSN: 1323-1391. %PDF-1.2 Stay informed with all of the latest news from the ALRC. >> Several propositions derived from the literature can be baldly stated, and then examined more closely. Its interest to a wider Australia is obvious; its own Dispute Settlement in Aboriginal Communities, 29. [27]Commentaries on the Laws of England (1765) vol 1, 107. 0000008784 00000 n But the Maori experience suggests that such recognition would have been grudging and temporary. ,)bL $Oy %yLAFX%*0S~mPwmdRi_~?V-y*='L8Q It has been argued that such a reassessment would open the way to wider recognition of customary laws by the common law. 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. 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). 1996 Cambridge University Press Web8 William Blackstone, Commentaries on the Laws of England (first published 176569, a facsimile of the 1st ed, 1979) vol 1, 1045; Emmerich de Vattel, The Law of Nations 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 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. 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.) 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). q\6 endstream The Tribunal cannot conduct negotiations. /Parent 5 0 R LAWYER MONTHLY - Lawyer Monthly is a Legal News Publication featuring the Latest Deals, Appointments and Expert Insights from Legal Professionals around the Globe. 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. xb```f``u2l@q ^z49nOekLP5UZl[T:>y]YNaq``r``1`Pf4(%=H@?sPD Ff}@a I9bI(xpk@y hTu,,b~g1h~y Aboriginal Customary laws and the Criminal Justice System, The Interaction of Aboriginal Customary Laws and the Criminal Law, Legal Pluralism in the Criminal Law: Overseas Experience, 18. 12 0 obj XCIC3MRM!t,k*8j7#`4 c`# 7A 0@ As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. WebThe case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 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. /Resources << 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 0000004448 00000 n /F2 14 0 R 25 See Blackstone, above William Cooper was killed by multiple shots before he made it inside. 552 The Distinction Between Settled and Conquered Colonies. 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. To similar effect S Jones, Submission 16G (7 June 1977); P Gray & R Williams, Submission 19 (15 June 1977) 1. That debate is of great importance, quite apart from any specifically legal consequences it may have. <]>> [36] Subsequent extensions of British rule were made: on the assumption that the entire continent was to be acquired through settlement and not conquest. /ProcSet 2 0 R 66. (1978) 18 ALR 592 (Mason J);. He was Lord Advocate , the most senior Law 6 Cited in Mabo no 2 at 34-35. 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. % 0000061065 00000 n That which is captured by the first taker becomes his or her property. For example, the classification of a country such as Australia was in 1788 as unoccupied territory (terra nullius) might well be incorrect if that classification had to be made by the standards of modern international law. F$E-:# 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. 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. Supreme Court of the United States. Aboriginal Customary Laws and Anglo-Australian Law After 1788, Protest and Reform in the 1920s and 1930s, 6. Treaty of Waitangi (State Enterprises) Act 1988 (NZ); Treaty of Waitangi Act 1975 (NZ), ss 8A-8HJ). The Commissions Work on the Reference, Special Needs for Consultation and Discussion, 3. The Protection and Distribution of Property, Distribution of Property between Living Persons[2], 16. HlUn6}WQob&[`Q2mT_DJ8\9gWZGM 0000038209 00000 n 0000008013 00000 n 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). [33]id, 138. endstream 0000001591 00000 n << 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. WebCooper v. Stuart.3 In this judgment Lord Watson had held that Australia, as a "set-tled" colony, had received transplanted British law "except where explicitly changed or This proclamation articulated the legal principle of Terra Nullius, which was enshrined into Australian law by the Privy Council in the 1889 case of Cooper v Stuart. hb```f``Uf`c`` @Q(@mPV1=i"OE/GOG(A. Section 24, in effect, reaffirmed that New South Wales was a settled colony, but provided a later date of reception for reasons of convenience. 9 0 obj The case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 0000033715 00000 n 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. /Parent 5 0 R [44]cf G Blainey, Triumph of the Nomads, rev edn, Sun Books, Melbourne, 1983, 67-83, and see further para 883-7. 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 [54]But see para 109 for difficulties with compensation in this context. 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. dqP5)b l8"$yTbS,&s;L?NV;%gN\8E)Ee[- uwZ/ m\]c1sDoIhccP?RB[^@IBIcOlV0&`|?g7lv2CL! 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. /Type /Page The acknowledgment of past injustice provides no particular answer to that question. 0000002143 00000 n 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). [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. [53]When the House of Commons Select Committee on Aborigines reported: see para 64. /hWj|]e_+-7 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.
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