tion on which all proprietary rights in New South Wales at pre- sent rest and defeat a large part of the most important regula- tions of the local government.
This same principle was also invoked in the more recent case of Coe v. Commonwealth ( 1979) 53 ALJR. In this case, Coe, claiming to sue on behalf of the Aboriginal people and 'nation', argued that Captain Cook's assertion in 1770 of English sovereignty over the east coast of Australia was illegal in that it did not recognise the existing sovereignty of the Aboriginal people. Coe therefore argued that the Aboriginal people retained rights over their lands and that those lands should be free from interference by the Crown, that mining activity on those lands should be restrained, and that compensation be paid for the Government's interference with the Aboriginal lands.
Coe v. Commonwealth, pp. 403, 408
Coe's plea was rejected by a majority judgement of the High Court on the grounds that it was 'fundamental . . . that the Australian colonies became British possessions by settlement and not by conquest'. Murphy J dissented from this view and remarked that the Privy Council's statement in Cooper v. Stuart that the English annexation of Australian lands had been 'peaceful', was either 'made in ignorance or a convenient falsehood to justify the taking of Aborigines' land'.
Criticism of the 'settled colony' theory
The theory outlined above--that Aboriginal Australia was to all intents and purposes an 'unoccupied country', that the British occupation of Australia was 'peaceful', and that the Aborigines at the time of colonisation did not have any system of law which could justify their having property rights in the lands they occupied--is obviously a legal fiction. Recent authors have criticised the doctrine that the Australian colonies were settled, rather than acquired by conquest or by cession under treaty, and the whole concept of a 'makarrata' or treaty to be negotiated between the Aboriginal people as a whole and the Australian Government obviously calls the doctrine into question. Bayne has argued that 'there is now a growing body of opinion that the settled colony principle is not, as a matter of law, the basis of our legal system'. Again, Hocking notes that 'with the single exception of Australia, all of England's ex-colonial countries have legally upheld the basic principle of recognition of the title of their indigenous people'. Further, the inquiry by the Australian Law Reform Commission into Aboriginal customary law suggests that some kind of recognition of Aboriginal law as a quasi- independent system might in the future be given by the Australian Government. This would imply that the prevailing
'Makarrata'-- a Yolgnu (northeast Arnhem Land) word meaning 'a coming together after a struggle'
Barbara Hocking, "Is might right? An argument for the recognition of traditional Aboriginal title to land in the Australian courts", in Erik Olbrei (ed.), Black Australians: the prospects for change, Students Union, James Cook University, Townsville, 1982, pp. 207-22
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Publication Information: Book Title: The Aboriginal Land Rights Movement. Contributors: Max Charlesworth - author. Publisher: Hodja Educational Resources. Place of Publication: Richmond, Vic.. Publication Year: 1984. Page Number: 14.
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