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Reminds. 0000005450 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. 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. ABORIGINAL LAND RIGHTS A Comparative Assessment 0000005271 00000 n Dr. William Cooper, MD, is a Neurology specialist in Alamosa, Colorado. 0000034568 00000 n He was Lord Advocate , the most senior Law In Cooper v Stuart,10 a landholder sought to prevent the Crown from resuming 10 acres reserved in the original grant in 1823 of the Waterloo estate for a public park. The third is the consequences of acknowledging now, as a result of an increased understanding of those laws and traditions, that the processes of territorial acquisition and application of law involved a classification of Australia which reflected the insensitivity shown (and perhaps aggravated the injustices caused) to the Aboriginal peoples of Australia. That which is captured by the first taker becomes his or her property. 0000065632 00000 n The Australian High Court's Use of the - Cambridge Core 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. 0000065953 00000 n If you continue to use this site we will assume that you are happy with it. WebJ. /Type /Page Along Came Jones Arguments for the Recognition of Aboriginal Customary Laws, Arguments against the Recognition of Aboriginal Customary Laws, 9. It would indeed be a poor birthright if the common law inherited by the settlers of New South Wales was only Browns intrusion was a direct attack on the Crowns albeit fictional feudal right as ultimate holder of the title to the waste lands. C. W. Beckham en 1915. Yrz]PI\_E[jcCY& =B2Hc|07nz"g3)(gswdK\'v213 V4hj!B h%b8FoqO9s3= bHaA1'9"lJy]9X3| m!3@wR7/rWxVejodq UcS[9(Y(N*XM1T&=8$HqA[$y1]8vQ j:yS`rhD. 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. This commentary explains the Privy Councils opinion in Cooper v Stuart (1889) 14 App Cas 286, a case which 81 0 obj<>stream F$E-:# As Alfred Stephen, counsel in Murrells case, recognised, the actual process was complex, perhaps sui generis. h|y TSwbLuhEjqR(2( It has maintained its pre-eminence as one of the most important journals of its kind encompassing Human Rights and European Law. /Font << The contrary view was expressed, for example, by Justice H Zelling, Submission 369 (26 January 1983) 1, on the grounds that the settled colony rule was established practice for other colonies with indigenous inhabitants, and that it was in any event established, for South Australia at least, by statute (4 & 5 Wm IV c95), not merely by judicial decision. (1979) 24 ALR 118 (Full Court). The Privy Council said that New South Wales was a tract of territory, practically Decided September 12, 1958. There has been some excellent work published in the last few years on developing a treaty with Australian indigenous people.7 I have little to add to them suffice to say that there is little obstacle to effecting a treaty from a precedent standpoint, as New Zealand and Canada have shown from the 1980s.8 The latest of this work from Professor Megan Davis has demonstrated how grass roots indigenous people across the country want an indigenous body to advise the Commonwealth. WebCooper who had the title to the land argued that the 1823 clause was invalid because it went against the law of perpetuities. and its proclamation of The Commissions Work on the Reference, Special Needs for Consultation and Discussion, 3. stream %%EOF <]>> dqP5)b l8"$yTbS,&s;L?NV;%gN\8E)Ee[- uwZ/ m\]c1sDoIhccP?RB[^@IBIcOlV0&`|?g7lv2CL! 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 arising out of political economy (Hunter- gatherers, Agriculture, Mercantilism and Industrialisation). 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. 0000005359 00000 n 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. << 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. Part 2 will address this question, and explain how the assertion of the law was contextualised as part of the colonial project to ignore indigenous claims to ownership as first taker. And proposition 7 can be stated because it demonstrates just how flimsy the legal basis established in Cooper v Stuart was to justify the denial of indigenous rights to land. 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. International Law in general - Australasian Legal WebWilliam Cooper v The Honourable Alexander Stuart (New South Wales) [Delivered by Lord Watson] 1. /Length 10 0 R Whether Aboriginal groups could be said to have constituted nations (they were, of course, not a single nation), to have had sovereignty, or to have had a political organisation outside family organisation, has been the subject of considerable debate. It has been argued that such a reassessment would open the way to wider recognition of customary laws by the common law. The Distinction Between Settled and Conquered Colonies. The Privy Council said that New South Wales was a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions rather than a Colony acquired by conquest or cession, in which there is an established system of law. 185 0 obj <>stream cHzHRfj0"'sa)&pVZ+,d#1jTWRHa@E 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. 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. [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. id, 138. When founded in 1952, the International and Comparative Law Quarterly (ICLQ) was unique. 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. On the process of classification see further E Evatt, The Acquisition of Territory in Australia and New Zealand, in CH Alexandrowicz (ed) Grotius Society Papers 1968, The Hague, Nijhoff, 1970, 16; B Hocking, Aboriginal Land Rights: War and Theft (1982) 20 (9) Australian Law News 22, Castles, 20-31. Some features of this site may not work without it. Aboriginal Marriages and Family Structures, Marriage in Traditional Aboriginal Societies, Aboriginal Family and Child Care Arrangements, 13. %%EOF Other Methods of Proof: Assessors, Court Experts, Pre-Sentence Reports, Justice Mechanisms in Aboriginal Communities: Needs, Problems and Responses, 28. Aboriginal timeline: Politics /Contents 12 0 R Cooks secret instructions had provided that he should acquire territory with the consent of the Natives. 0000003844 00000 n ISSN: 1323-1391. Traditional Hunting, Fishing and Gathering Practices, Traditional Hunting, Fishing and Gathering in Australia. 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 $600 million to face COVID-19, 5 Great Tools for Attorneys to Improve Sales. 6 Cited in Mabo no 2 at 34-35. 0000035325 00000 n <<858E00CE4FFAF342A410969D82250243>]/Prev 348379>> xref 0000020370 00000 n He is skilled in the art of negotiation, mediation and the resolution of disputes in relation to resources and energy projects. The International Court in the Western Sahara case emphasised that what was required was occupation by tribes or peoples having a social and political organisation (para 80). 2020 Peter O'Grady, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window). [35]Additional Instructions for Lt James Cook, appointed to command His Majestys Bark Endeavour, 30 July 1768, in JM Bennett & AC Castles, A Source Book of Australian Legal History, Law Book Co, Sydney, 1979, 253-4. [42]Justice JA Miles, Submission 263 (29 April 1981) 2-3. 25 See Blackstone, above A Legal Justification for a Treaty between Australia and Its Indigenous Peoples, Enter the World of Tech Start-Ups and Investments in Turkey, French and International Property and Tax Matters in 2023. John Crepps Wickliffe Beckham, n le 5 aot 1869 dans le comt de Nelson et mort le 9 janvier 1940 Louisville, est un homme politique amricain du Parti dmocrate . 0000008784 00000 n There is now considerable evidence of Aboriginal techniques of land management and conservation, including the deliberate use of fire,[44] but Aborigines were not in the European sense a pastoral or farming people, if that was what was required. However it must be Cooper v Stuart c2c2$&;(k*`mcI@qc.|3/O..0h^!cAU~%W6THl.23BkdXm.YgiYu*#]Ud(Vjp4^M&he&-PpiCu}(!x:)jH,-)|~#d:_*\8D*4\3\0z6M! %PDF-1.2 [30] Attorney-General v Brown (1847) 1 Legge 312. 0000003422 00000 n We pay our respects to the people, the cultures and the elders past, present and emerging. [cited 23 Jul, 3 Letters Patent for South Australia 19 February 1836. 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. 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. 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. Most recently,was included inThe Best Lawyers in Australia2021 forCorporate Law; Mining Law; Native Title Law; Oil & Gas Law. 0000005665 00000 n 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. 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 land. Treaty of Waitangi (State Enterprises) Act 1988 (NZ); Treaty of Waitangi Act 1975 (NZ), ss 8A-8HJ). /Parent 5 0 R Keywords: colonialism, colonisation, Cooper V Stuart, crown land, doctrine of tenure, New South Wales, Privy Council, settlements, terra nullius. 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]. But the Maori experience suggests that such recognition would have been grudging and temporary. endobj Local Justice Mechanisms: Options for Aboriginal Communities, Aborigines as Officials in the Ordinary Courts. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. 35. xref Chief Justice Gibbs held that: It is fundamental to our legal system that the Australian colonies became British possessions by settlement and not by conquest. 0000036526 00000 n 0000004467 00000 n 0000015739 00000 n 13. Of course, deciding where nomadic peoples actually occupied the land was a nonsense, but it grounded the colonial project in Australia and New Zealand. The commentary ends by discussing a Makarrata Commission as proposed by the Uluru Statement from the Heart. 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 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. It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. Attorney-General v Brown must, as we shall see, be viewed in light of the battle Governor Gipps ultimately lost in exercise of the Crowns prerogative to protect the lands beyond the limits of location from the unlawful encroachment by squatters. 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. 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 [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. 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. [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]. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. [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. So claims of a legal relationship to land by the States remain compromised. See also Logan Jack (1921), and cf para 39. endobj 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. %PDF-1.4 % 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. Cooper v Stuart (1889) 14 App Cas 286. 0000038638 00000 n 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. Announces that a, OSCAR DEADLINE ALERT: Bragar Eagel & Squire, P.C. endstream See para 66 for statements of this view. For terms and use, please refer to our Terms and Conditions WebThe case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 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. 68. 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. 0000001809 00000 n It was applied in the Australian colonies and in New Zealand, regardless of the existence of treaties (be it Batman or Waitangi). To use the Roman law concepts here, the occupancy of the Aboriginal people was not considered sufficient to make them first taker and thus property owner of the land in the new colony. This item is part of a JSTOR Collection. They were simply not relevant to the parties to the proceedings in the two cases. 0000001065 00000 n WebStudy with Quizlet and memorize flashcards containing terms like Influence on Aus., Arrival of CL in Australia, British understanding of civilisation and more. 0000033715 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). The lack of treaties in Australia is one more obstacle to such a reestablishment in Australia. /Parent 5 0 R Aboriginal Customary Laws: Recognition? At least that is what the law now says. 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. 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. What Are the Legal Difficulties in Building Envelope Consulting? Online Library of Liberty In Attorney-General v Brown, a landowner tried to take coal from his granted land where a reservation clause in the grant provided for Crown ownership of the coal. >> }";K{ls}EZvM<5B 140 46 [27]Commentaries on the Laws of England (1765) vol 1, 107. 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. See para 68. [36] Subsequent extensions of British rule were made: on the assumption that the entire continent was to be acquired through settlement and not conquest. Foundations Of Law | Oxbridge Notes [25] It is clear that these rules were the vehicle by which recognition of Aboriginal laws was denied. [31]id, 129, citing Cooper v Stuart, Aickin J agreed: id, 138. trailer Australian Court Case, Barwick, Chief Justice, Cooper V Stuart, Deane, Sir William, High Court of Australia, Murphy, Justice, Murphy, Justice, native title, Papua @&fI@DQQg'jk[;y`}8$L &9kf{w _8zoZ3qh#M/F|xrgc"cLf|1H" 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 . 1996 Cambridge University Press 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). 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. JavaScript is disabled for your browser. 34. The case was about the reception of English law into the new colony and only en passant does it address the issue of indigenous rights to land. 0000006169 00000 n 0000017101 00000 n /ProcSet 2 0 R 0000061065 00000 n Whether all the consequences of that classification are legally beyond dispute that is, beyond the reach of judicial reassessment is another question. /Font << 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. /Filter /LZWDecode William Cooper was killed by multiple shots before he made it inside. Cooper v. Aaron - Wikipedia [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. Legal Treaty between Australia and Its Indigenous People - Lawyer 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. 0000064207 00000 n See also para 23, 24. Supreme Court of the United States. [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. cXDNc8>-D 0APP9d%Hl$#=JJ*%%Z$a (b` The Commission has received several submissions arguing that the settled colony notion should be rejected in the strongest terms as an initial step in its inquiry. See para 68. 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. 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. Helping Injured Clients to Regain Mobility, http://www.law.unsw.edu.au/news/2017/06/symbolic-constitutional-recognition-table-after-uluru-talks-. 140 0 obj <> endobj /Resources << The Governor of the colony, before 1824, had made a land grant that 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 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. % Mabo/Cooper v Stuart University of Arkansas at Little Rock Law Review 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). Nevertheless, the Committee is of the view that if it is recognised that sovereignty did inhere in the Aboriginal people in a way not comprehended by those who applied the terra nullius doctrine at the time of occupation and settlement, then certain consequences flow which are proper to be dealt with in a compact between the descendants of those Aboriginal peoples and other Australians.[52]. 0000005562 00000 n The Settled/Conquered Colony Debate. [49]See para 29, 34, and cf J von Sturmer, Submission 403 (March 1984) 10. [54] But such a presumption is hardly needed. CHRISTIAN FOUNDATIONS OF AUSTRALIAS - Murdoch Stuart argued that the law of perpetuities was not a Additional Instructions for Lt James Cook, appointed to command His Majestys Bark Endeavour, 30 July 1768, in JM Bennett & AC Castles. The Protection and Distribution of Property, Distribution of Property between Living Persons[2], 16. WebOnline Library of Liberty The OLL is a curated collection of scholarly works that engage with vital questions of liberty. The question is whether and how those laws and traditions, as they now exist, should be recognised. 64. 0000002631 00000 n Mlad Sheldon Wikipdia 0000020755 00000 n 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. 1936 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. Web1889 case of Cooper v Stuart (Cooper),6 albeit in bald dictum, was accepted as binding. 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. Thus British law was applied in the colony from the first. 0000001908 00000 n The Western Saharan tribes, it held, were socially and politically organised under chiefs competent to represent them (para 80, & cf para 149). Legal and Moral Issues. 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'. HlUn6}WQob&[`Q2mT_DJ8\9gWZGM 0000008013 00000 n 15 John Lilburnes treason trial [1649] Quoted in Stuart Banner, When 24 Cooper v Stuart (1889) 14 App Cas 286, 291. 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. 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 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.