The Old Privy Council decision in Cooper V Stuart [1889] was based on the factual error that Australia was peacefully settled and that Aborigines were never in possession of the land. That case was also inconsistent with the common law decisions of the United States, Canada and New Zealand. In short, it was wrongly decided’. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, Allen & Unwin, 1994

1889 – 3 April, England: Lord Watson, Lord Fitzgerald, Lord Hobhouse, Lord MacNaghton, Sir William Grove in Cooper V Stuart [1889] AC, Privy Council of the United Kingdom ruled; ‘in 1788 New South Wales was ‘a tract of territory practically unoccupied, without settled inhabitants or settled law…[so its peoples] were never in possession of the land’.

A very convenient decision as British Law contended; ‘there was a great difference between the case of a Colony acquired by conquest or cession’. For if territory was conquered or ceded British law imposed obligations of Reparation and Treaty as demonstrated in Canada and New Zealand.

‘In the first use of firearms in a threatening way against the Eora,on 22 February 1788, midshipman Francis Hill ordered some marines to fire on Eora men who were taking tools at Woolloomooloo’. John Connor, The Australian Frontier Wars, 2002

Yet despite contrary evidence; ‘British troops participated in the great struggle at the heart of the European conquest of this continent’ the Privy Council in Cooper V Stuart [13] ruled; ‘the Colony (New South Wales) was peacefully annexed to the British Dominions’.


‘British troops…twenty-five regiments of British infantry participated in the great struggle at the heart of the European conquest of this continent….They fought in one of the most prolonged frontier wars in the history of the British Empire and for the first half of their stay were probably more frequently in action than the garrison of any other colony besides that of Southern Africa’. Dr Peter Stanley, The Remote Garrison, The British Army in Australia 1788-1970, Kangaroo Press, 1986

1992 – 3 June, Australia: In Mabo and Others V Queensland (No. 2) the High Court found, in a majority 6:1 judgement, Justices Mason, Brennan, Dean, Gaudron, Toohey, Justice Dawson dissenting, Privy Council [13] ‘Aborigines were never in possession of the land’ was ‘wrongly decided’.

‘How moral was the Empire? In the settler colonies , settlers simply seized the land and pushed aside the natives or killed them. In North America, as in Australia, New Zealand and South Africa, and then later in East Africa, the process was the same; acquire land by seizure or trickery and then ignore the native, or shoot him if he acted as if he still owned the place. Donald Horne, God is an Englishman, Penguin Books, 1969

Australia’s First Nations’ People never ceded their land to the Crown. On 26 January 1788, without consent, Governor Arthur Phillip raised the Union flag and claimed New Holland part of the British Empire.

Australia’s First Nations’ Peoples were conquered;‘in one of the most prolonged frontier wars in the history of the British Empire’. Questions of  Sovereignty and Treaty remain to be addressed

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