Cooper v Stuart
The case, Cooper v Stuart , had nothing to do with the rights of Aboriginal people in New South Wales. 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 landowner argued that this reservation was invalid because it was against a long-standing principle of property law known as 'the rule against perpetuities'. 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. 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. They so held on the basis that the land was 'practically unoccupied without settled inhabitants'.
This proposition was unchallengeable by Australian courts until the appeal to the Privy Council from the High Court of Australia was effectively abolished by statutes enacted by the Commonwealth Parliament in 1968 and 1975.
The Privy Council in 1889 described New South Wales in 1788 as 'practically unoccupied without settled inhabitants'. On that basis, it should be treated as a 'settled colony'.
As a consequence, the common law rule was that applicable laws of England had arrived with the First Fleet as some sort of invisible baggage.
One central feature of the property law of England was the feudal doctrine of tenures. Under this doctrine, no one could establish any title to land unless such title could be traced to a grant from the Crown. This doctrine made perfectly good sense among the newcomers. Needless to say, it set up yet another hurdle in the path of any recognition of pre-existing land rights.
Keywords: colonialism, colonisation, Cooper V Stuart, crown land, doctrine of tenure, New South Wales, Privy Council, settlements, terra nullius
Author: Nettheim, Garth