According to the theory we are discussing, it is because the
English colonisation of Australia was neither by 'conquest'
nor 'cession' that there is no legal obligation to compensate
the original inhabitants for the lands taken from them, nor
to negotiate with them to cede their land by treaty. In this
view, the original Aboriginal inhabitants did not constitute a
sovereign state or nation so that it was not legally possible
to establish a treaty between them and the newly arrived
representatives of the English Crown.

This legal theory, that Australia was 'settled' rather than
acquired by conquest of the Aborigines or by cession by them
under a treaty, has been the basis of the Australian
Government's subsequent dealings with the Aboriginal
peoples, in particular, over the ownership of land. Thus, in
an early legal case, Cooper v. Stuart ( 1889) 14 App. Cas. 286,
the Privy Council declared as follows:

There is a great difference between the case of a colony
acquired by conquest or cession, in which case there is an
established system of law, and that of a colony which
consisted of a tract of territory practically unoccupied, without
settled inhabitants or settled law, at the time it was peacefully
annexed to the British dominions. The colony of NSW belongs
to the latter class.

Commenting on Batman, the anthropologist W.E.H. Stanner
has this to say:

It can at least be said for Batman that he acknowledged that
the land had possessors; he also treated them as principals;
he came to agreed terms--an immediate consideration and
a yearly rent or tribute . . . and he sealed the bargain by a
sign the Aborigines understood--eight of them took up hand-
fuls of earth and handed them to him. The English Secretary
of State, Lord Glenelg, however, refused to acknowledge that
the Aborigines had 'any right to alienate to private adventurers
the land of the colony', and went on to say: 'It is indeed enough
to observe that such a concession would subvert the founda-

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