ABSTRACT
This commentary explains the Privy Council’s opinion in Cooper v Stuart (1889) 14 App Cas 286, a case which continues to influence Australia’s constitutional framework. Despite being overturned by Mabo v Queensland (No 2) (‘Mabo [No 2]’), the case remains important because of the Privy Council’s justification for the application of English common law to the colony of New South Wales. The Privy Council’s explanation, which rested on NSW being a ‘tract of territory practically unoccupied, without settled inhabitants or settled law’, stood as the legal authority for Australian nationhood for over a century. This became known as the ‘enlarged notion of terra nullius’, a process that Brennan J explained in Mabo (No 2) as resulting in the ‘parcel by parcel’ dispossession of First Nations which ‘underwrote the development of the nation’. This explanation also helped prefigure the circumstances in which the Australian state, including the Australian Constitution, developed without legitimate consideration for the rights of First Nations. Rather than rewriting the judgment, the authors provide a commentary on the social history of the case and its impact on Australian constitutionalism. The commentary ends by discussing a Makarrata Commission as proposed by the Uluru Statement from the Heart. As part of an imagined Makarrata Commission, a Research Partnership is established to support future ‘truth-telling’.
