Signals From The High Court
Occasional suggestions of possible reconsideration of the Australian law came from the High Court itself. In a 1973 judgment on an appeal from Papua New Guinea, Chief Justice Barwick hinted that native title might exist at common law.
In a 1979 decision the justices agreed that the doctrine of native title would be an 'arguable question if properly raised'. In his judgment in that case, Justice Murphy had this to say about the 1889 Privy Council decision in Cooper v Stuart which held that New South Wales should be treated as a settled colony, on the basis that it was 'practically unoccupied, without settled inhabitants or settled law at the time it was peacefully annexed to the British dominions'.
Justice Murphy said:
'Although the Privy Council referred ... 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 statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of Aborigines' land.'
In a 1985 case Justice Deane remarked that, if Australian law did not acknowledge native title, then it would not have achieved the 'retreat from injustice' that the law of the USA had achieved in the early nineteenth century.
In a 1979 decision the justices agreed that the doctrine of native title would be an 'arguable question if properly raised'. In his judgment in that case, Justice Murphy had this to say about the 1889 Privy Council decision in Cooper v Stuart which held that New South Wales should be treated as a settled colony, on the basis that it was 'practically unoccupied, without settled inhabitants or settled law at the time it was peacefully annexed to the British dominions'.
Justice Murphy said:
'Although the Privy Council referred ... 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 statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of Aborigines' land.'
In a 1985 case Justice Deane remarked that, if Australian law did not acknowledge native title, then it would not have achieved the 'retreat from injustice' that the law of the USA had achieved in the early nineteenth century.
Keywords: 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, 1973-1985
Author: Nettheim, Garth