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. 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. [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. 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). 0000001591 00000 n |D!"U#W7;vAp! It has been argued that such a reassessment would open the way to wider recognition of customary laws by the common law. mqF-iX=x&h0xT(n\Al |(J")Jb /01N@C4004jX;Ph P@8Hs)zNr\,\SX9oX3EjhJ }";K{ls}EZvM<5B 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. cXDNc8>-D 0APP9d%Hl$#=JJ*%%Z$a (b` q\6 a Q;AO.0@.t;h*() B` 2,8fd/^rq?1 H #x9230:C GDpqs7>ao"'2BSUmA7#h2KrD* 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. Cooper v Stuart (1889) 14 App Cas 286, 291. See also para 23, 24. endstream endobj 64 0 obj<> endobj 65 0 obj<>/Encoding<>>>>> endobj 66 0 obj<>/Font<>/ProcSet[/PDF/Text/ImageB]>>/Type/Page>> endobj 67 0 obj<> endobj 68 0 obj<> endobj 69 0 obj<>stream [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. So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. 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. 0000001952 00000 n 140 0 obj <> endobj 0000003584 00000 n Treaty of Waitangi (State Enterprises) Act 1988 (NZ); Treaty of Waitangi Act 1975 (NZ), ss 8A-8HJ). He was Lord Advocate , the most senior Law Several propositions derived from the literature can be baldly stated, and then examined more closely. 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. 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. The Issue for the Commission. 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. << WebThe case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 13 0 obj 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. %%EOF 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. 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. By this means the Australian colonies directly inherited a vast body of English statute and common law. Current student 63 0 obj <> endobj 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. 0000001809 00000 n trailer 1996 Cambridge University Press See also Logan Jack (1921), and cf para 39. 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. The Privy Council eventually held that the reservation was valid, but they first had to decide whether the laws of England operated in the colony at the time of the grant. Post-Brexit Restructuring Proceedings: What Are the Implications for Luxembourg? 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. <<858E00CE4FFAF342A410969D82250243>]/Prev 348379>> HlUn6}WQob&[`Q2mT_DJ8\9gWZGM Web14 William Holdsworth, History of English Law (Methuen, 3rd ed, 1932) 410-6. /F1 8 0 R 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]. Brennan Js decision recognised the indigenous right to occupancy of the land, sovereignty over which was acquired by the British Crown.14 The occupancy of the Aboriginal people, in the absence of any claim to sovereignty, gave them ownership as first taker. 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. WebJ. id, 138. 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. [45]See eg the discussion of initial European contact in Cape York in R Logan Jack, North West Australia, Simpkin Marshall, Hamilton Kent and Co Ltd, London, 1921. 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. 0000003422 00000 n Level 8, Waterfront Place, 1 Eagle Street, Brisbane Qld 4000. 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. Despite 876 xb```f``u2l@q ^z49nOekLP5UZl[T:>y]YNaq``r``1`Pf4(%=H@?sPD Ff}@a I9bI(xpk@y hTu,,b~g1h~y %PDF-1.6 % This was the case, at least initially, in New Zealand. 0000061065 00000 n Additional Instructions for Lt James Cook, appointed to command His Majestys Bark Endeavour, 30 July 1768, in JM Bennett & AC Castles. 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. See also footnote 2 in Fitzmaurice, The Genealogy, 10 (1889) 14 App Cas 286 at 291; (1886) NSWR 1; Evening News, Sydney, Monday 17 August 1885 at 5; Darling Downs Gazette Saturday 6 April 1889; The Daily Northern Argus Rockhampton Monday 28 January 1889, 14 Exactly what the defendants counsel in Attorney-General v Brown had argued, see footnote 9. 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. There are no files associated with this item. /ProcSet 2 0 R >> 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. 0000002286 00000 n /Font << << The case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 0000036242 00000 n WebCooper v. Aaron. [46]Western Sahara Advisory Opinion ICJ Rep 1975, 12; J Crawford, The Creation of States in International Law, Oxford, Clarendon Press, 1979, 181. 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. Canada inserted section 35 into its Constitution in the 1980s, thus embedding indigenous rights into the foundational structure of the nation. 0000032924 00000 n Full case name. [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. These two results from the different understandings of terra nullius fought for supremacy in the 19th century. 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. ;:Da>C[D{n+)ptz]fm=X#(L60 uq!AffW+2M^:.zctt'TPmm;CH*Ox@AmMu. 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. 68. 0000036109 00000 n 0000031538 00000 n Traditional Hunting, Fishing and Gathering Practices, Traditional Hunting, Fishing and Gathering in Australia. 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. Decided September 12, 1958. 0000005359 00000 n hb```f``Uf`c`` @Q(@mPV1=i"OE/GOG(A. This law effectively stopped anyone 15 John Lilburnes treason trial [1649] Quoted in Stuart Banner, When 24 Cooper v Stuart (1889) 14 App Cas 286, 291. [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. C. W. Beckham en 1915. WebON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889).. 2023 Lawyer Monthly - All Rights Reserved. Cooper v Stuart (1889) 14 App Cas 286. 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. LAWYER MONTHLY - Lawyer Monthly is a Legal News Publication featuring the Latest Deals, Appointments and Expert Insights from Legal Professionals around the Globe. 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. Phone +61 7 3052 4224 Whether Eastern Australia was desert and uncultivated in Blackstones sense may be another question. Australian Court Case, Barwick, Chief Justice, Cooper V Stuart, Deane, Sir William, High Court of Australia, Murphy, Justice, Murphy, Justice, native title, Papua WebCooper who had the title to the land argued that the 1823 clause was invalid because it went against the law of perpetuities. 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. [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. 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. Aboriginal Customary Laws: Recognition? 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 10 The Advancing the Treaty Process with Aboriginal Victorians Bill 2018; South Australias new Government has just halted talks on a treaty The Guardian Australia 30 April 2018 news/2018/apr/30/south-australia-halts-indigenous-treaty-talks-as-premier-says-he-has-other-priorities. Web1889 case of Cooper v Stuart (Cooper),6 albeit in bald dictum, was accepted as binding. See para 37, 203. >> As Kents Commentaries pronounced, [t]he peculiar character and habits of the Indian nations, rendered them incapable of sustaining any other relation with the whites than that of dependence and pupillage. xref Dispute Settlement in Aboriginal Communities, 29. xref 0000006318 00000 n The problem is how to explain how that ownership appeared to be ignored when the law was based on mere assertion and could hardly ground a reasonable justification for Crown absolute beneficial ownership of land, and when that common law was promulgated in the context of battles over the extent of the Crown prerogative in the new colony of NSW without reference to indigenous interests. [26] The general principles for the introduction of English law into a settled as distinct from a conquered colony were laid down by Blackstone in 1765. Aboriginal Societies: The Experience of Contact, Changing Policies Towards Aboriginal People, Impacts of Settlement on Aboriginal People, 4. Previously, Blackstonian notions of dominion and control had dominated legal thinking about how to make claims to property. Il est le 35e gouverneur du Kentucky (19001907) et un snateur pour l'tat au Snat des tats-Unis. 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. Indigenous Justice Mechanisms in some Overseas Countries: Models and Comparisons, 31. 8. 2020 Peter O'Grady, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window). 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. [25] It is clear that these rules were the vehicle by which recognition of Aboriginal laws was denied. >> /F2 14 0 R The Governor of the colony, before 1824, had made a land grant that 0000035325 00000 n We should be mature enough to make that concession. 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. [53]When the House of Commons Select Committee on Aborigines reported: see para 64. Local Justice Mechanisms: Options for Aboriginal Communities, Aborigines as Officials in the Ordinary Courts. 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). /Filter /LZWDecode There are other factors also. Its interest to a wider Australia is obvious; its own But the Maori experience suggests that such recognition would have been grudging and temporary. 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 . See all, colonialism, colonisation, Cooper V Stuart, crown land, doctrine of tenure, New South Wales, Privy Council, settlements, terra nullius, Australian Court Case, Barwick, Chief Justice, Cooper V Stuart, Deane, Sir William, High Court of Australia, Murphy, Justice, Murphy, Justice, native title, Papua New Guinea, Privy Council, United States of America, Aboriginal Land Rights Act (Northern Territory)(1976), Australian Court Case, Brennan, Justice Gerard, Cooper V Stuart, Kakadu National Park, land rights, Mabo v Queensland No.2, Milirrpum v Nabalco Pty Ltd, 1971 , native title, Northern Territory, Pitjantjatjara, recognition, reconciliation, resistance, South Australia, Uluru National Park, Australian Court Case, Blackburn, Justice, Cooper V Stuart, doctrine of tenure, Federal Court of Australia, Gove Case, Mabo v Queensland No.2, Milirrpum v Nabalco Pty Ltd, 1971 , mining, Nabalco, Nettheim, Garth, New South Wales, Northern Territory, Privy Council, terra nullius, Yirrkala, Yolgnu, Australian Court Case, Common Law, Cooper V Stuart, crown land, New South Wales, plaintiffs, Queensland, Radical Title, sovereignty. c2c2$&;(k*`mcI@qc.|3/O..0h^!cAU~%W6THl.23BkdXm.YgiYu*#]Ud(Vjp4^M&he&-PpiCu}(!x:)jH,-)|~#d:_*\8D*4\3\0z6M! biXDN>[ 57h$%42TPd0vX:{ ~4an``)Tpv%qX;V0]`pVVP1(X"y5 X} 7b Had Australia been treated as a conquered colony, Aboriginal customary laws, to the extent that they had not been expressly abrogated, would presumably have been recognised, at least in their application to Aborigines. 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. The commentary ends by discussing a Makarrata Commission as proposed by the Uluru Statement from the Heart. Discussion of Australias status on colonisation has not been limited to judicial pronouncements. endobj See para 61. stream 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. l @ *R(r34Pb2h\0FVBw >> 0000065953 00000 n cf A Frame, Colonizing Attitudes towards Maori Custom (1981) NZLJ 105; MR Litchfield, Confiscation of Maori Land (1985) 15. 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). Web2019] COOPER V. AARON AND JUDICIAL SUPREMACY 257 such a mix of the laudable and contestable. << 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. %%EOF 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. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. 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. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. /ProcSet 2 0 R F$E-:# It is possible that the point may be dealt with by the High Court in. Cooper is secretary of the League which campaigns for the repeal of discriminatory legislation and First Nations representation in the Australian Parliament. 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. 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. 1 Votes and Proceedings of the NSW Legislative Council, no 13, 9 July 1840. 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. Spanning the centuries from Hammurabi to Hume, and collecting material on topics from art and economics to law and political theory, the OLL provides you with a rich variety of texts to explore and consider. AC3bXEJV`!!uj4Cx5SVHJ}f2DK2 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. As Hannah Robert has shown, the story is more complex and the central problem is how occupancy as a concept played out. If you continue to use this site we will assume that you are happy with it. The Australian High Court's Use of the Western Sahara Case in Mabo - Volume 45 Issue 4 It publishes over 2,500 books a year for distribution in more than 200 countries. Two of the four justices in Coe v Commonwealth[30] thought the point arguable, though two did not. The consequence of the settlement doctrine producing a justification of Crown full ownership of most of the land in Australia in this way is, as Mick Dodson has pointed out, that the sovereign pillars of the Australian state are arguably, at the very least, a little legally shaky.5 Neither conquest, cession nor settlement provides a proper legal basis for the establishment of the Crowns legal relationship to property in land. The International and Comparative Law Quarterly 0000007196 00000 n 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. endobj 63 19 See all. 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. /Filter /LZWDecode Jonathan is a Partner and the Head of the leading Resources and Energy practice. 34. 11 0 obj It was not a question justiciable in a court deriving its power from the Commonwealth Constitution, whose authority derives from that very sovereignty.2. 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. He shot the other deputy as he ran from his truck to the house. In the light of subsequent anthropological research, the assumption that Eastern Australia in 1788 had neither settled inhabitants nor settled law cannot be sustained. [36] Subsequent extensions of British rule were made: on the assumption that the entire continent was to be acquired through settlement and not conquest. After the Uluru Statement of the Heart, the Commonwealths recognition of Aboriginal sovereignty is also now under the spotlight. and its proclamation of This commentary explains the Privy Councils opinion in Cooper v Stuart (1889) 14 App Cas 286, a case which 0000008013 00000 n The attack went further: The defendants counsel maintained that there was a material difference between dominion, or the right of sovereignty over the soil and country, which were unquestionably in the Crown, and the possession or the title to the possession in or of that soils, with power to grant the same at her discretion, which title be broadly denied.9.