Aboriginal Sovereignty or Native Title?

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The adoption of foreign OPCA and Sovereign Citizen concepts by Australian groups has caused a distortion of Aboriginal sovereignty philosophy. Traditionally, an aboriginal activist will claim there was no treaty with their people, therefore sovereignty was never ceded, and they will subsequently disregard any system of law other than customary tribal lore.

They generally didn’t hold a mistaken belief in magic documents, mythical common law, a double-personality person premise, or a hypothetical process that makes them immune to legislation. It is only an unfortunate recent phenomenon that a percentage of aboriginal activists have adopted some of the false premises of the U.S. Sovereign Citizen movement, and the Canadian Freeman on the land movement. The majority of aboriginal activists are completely aware that these assertions have no legal merit and will inevitably be rejected by the courts if used as a defence.

Aboriginal Customary Law

In many remote communities in Australia, police, courts, corrective services and legal firms once routinely incorporated local tribal law into their decision making. The local courts accommodated and sometimes even facilitated these exceptions into their determinations of guilt, and especially into their sentencing options. These defense and sentencing options achieved a lot for the legal recognition of tribal law, and its legitimacy in communities, but the motivation for this inclusion was not based in the notion of sovereignty but of responding to the obvious truth in individual cases, and it worked well at the local level for some time.

Often these sentences would be conducted properly with the full integrity of tribal law, so local courts would usually refrain from imprisoning aborigines for certain offences, on grounds of the defendant being predetermined to face the appropriate tribal law sentence for their crimes anyway. One of the main complications in this principle was that sometimes a defendant convicted by the courts would face tribal law for their crimes as well as going to prison or whatever the court sentence ordered. This “double jeopardy” scenario meant that people were being punished twice for the one crime, and the courts were powerless to ensure this did not happen.

Eventually the High Court resolved the double jeopardy issue and other inconsistencies with Australian law, by determining that tribal law was not constitutional and therefore was not to be taken into account by the courts, ruling in favour of a blanket extinguishment of all tribal law defenses.

It would be very hard to argue that Aboriginal customary law should take priority in an Australian Court. This is because Common law rules, which bind Australian courts, only recognize two sources of law: laws authorized by the legislature and the doctrine of precedent. However, there is nothing to say that if there is no precedent or legislation which offers guidance to a subject matter that Aboriginal Law cannot be used. It has already been recognized by the High Court that Aboriginal customary law was here long before Common law, and although Aboriginal customary law and Common law cannot exist side by side (unless Aboriginal customary law is recognised by the Commonwealth *and* State constitutions), if there is a legal matter where the two sources of law do not apply but Aboriginal customary law offers a rule, the most logical step is to apply Aboriginal customary law.

In fact, this practice is covered by the law of contracts. The law does not offer complete guidance on how two people interact with each other in an agreement. For this, the agreement itself applies (unless it is an illegal contract, or there is legislation such as the Australian Consumer Law which implies terms) and those two people create law between themselves. Where Aboriginals have agreed to live in a certain way, and there is no legislation or common law which takes priority, Aboriginal customary law should apply for the same reason why a contract applies between consenting parties.

I should stress though, that this does not mean Aboriginal customary law can apply in the same way as legislation or common law. A court would undoubtedly reject this. There’s nothing to indicate that it’s possible to apply Aboriginal customary law to someone who is not of Aboriginal decent, or has agreed to follow it. However, it is entirely possible to write Aboriginal customary law into a valid agreement, say for example a land agreement where there is proven Aboriginal title involved, or an agreement amongst the people of an Aboriginal nation, although I can guess that some Aboriginal people will not necessarily be interested in having an Aboriginal matter determined by a court.

The Question of Jurisdiction

When the British first arrived, they initially only assumed jurisdiction over their own small outpost, and their boundaries slowly grew with exploration. It wasn’t until 1836 that the question of jurisdiction of Aboriginal people was first raised, in the Murrell decision. This involved a murder of an Aboriginal man by another Aboriginal man, and it was determined the former was a British subject with equal rights to any other British subject, that must be protected by the law, and hence a charge of murder applied to the latter. Anything else would have obviously been a massive miscarriage of justice, with a court ruling that white subjects have full protection of the law, while black subjects have none. Even in 1836, such a notion was quite rightfully condemned as inconsistent with the rule of law, hence the decision.

This initial recognition of Aboriginal people by the law, as persons before the law, having the same rights as other British subjects, was the first instance jurisdiction was considered. Reading from subsequent cases from the 1830’s-40’s colony of NSW cases, it appears this sense of equality before law continued. After Westminster Parliament passed the Australian Colonies Government Act in 1850, the imposition of the various colonies laws on Aboriginal people in the bush depended mainly on the prevailing attitudes of their own elected governments of the time. The raiding of settler’s properties and the killing of their cattle prompted the parliaments of the colonies to respond, and the Aboriginal Protection Acts were subsequently passed, the first in 1867 and last in 1911. These Acts effectively made all tribal people in the bush (not the townies) enemy combatants.

One thing that must be clearly understood, that prior to the 1967 referendum, the states were responsible for the governance of Aboriginal people, and not the Commonwealth. The Commonwealth had no way of preventing the Aboriginal Protection Acts, or any mistreatment it carried. They had no powers to, specifically excluded from legislating for Aboriginal people at all. This was agreed prior to Federation to be solely a state matter, under the residual legislative powers of the states.

Thankfully, this changed when the referendum was carried with overwhelming support from the collective populous, who were sick of the injustices imposed by the states. There were Aboriginal people in every state that participated in this referendum, and for years prior to it, thousands fought for full inclusion as Australians, with protests and marches. There was no Aboriginal opposition to the amendments, they actually passed with a 97% yes vote.

See article regarding Australian Law As Applied To Aborigines.

Sovereignty or Native Title?

It is generally agreed that upon arrival in Australia, the Crown acquired what is referred to as “radical title”. If Australia were truly terra nullius, (uninhabited) this radical title would become absolute beneficial title of the Crown. However, since Australia was inhabited (and not terra nullius), radical title did not imply full beneficial ownership. In Mabo v Queensland (No.2) (1992) 175 CLR 1 the High Court concluded that the Crown’s radical title only conferred sovereignty, and sovereignty did not extinguish native title by default. Therefore, while the sovereignty remained with the Crown, the beneficial ownership or title remained with the original inhabitants. Nevertheless, native title only confers what is directed by the Crown, being the sovereign entity representative of the people as a collective. Kenna, J. stated:

“There is no indication in Mabo (No.1) that the High Court is prepared to recognize Aboriginal sovereignty, the High Court is unable to inquire into the actual acquisition of sovereignty.”

Similarly, in Walker v NSW (1994) 126 ALR 321:

“The Court confirmed received doctrine on sovereignty, putting the matter beyond the reach of review in domestic Australian courts.”

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Like many aboriginal activists also do, I personally look at British Colonization with distaste. In ethical terms, similarly as with the American Indians and most other indigenous peoples, there should have been treaties established from the start. Unfortunately this was not the case, and 200 years later this issue still burns strong in Australian minds.

The British Empire is gone, and all former ties have been severed. Today we live in a federal, sovereign nation, that has no obligations to England or any other foreign nation. We are peopled by a multi-cultural population, each group having different traditional values and customs, but included as a whole. We have our own language, law and culture, and all have the equal right to be Australian.

With this being the situation, Aboriginal people can no longer refer to the majority of the Australian populous as being “English” or even foreign occupiers. Many generations have passed since colonization, and several more since complete independence from England. I know I had no part in this colonization, and indeed no person alive today had. These were the actions of a previous government, which is now merely another collapsed empire recorded in the annals of history.

There is nothing that the current government can do to change the paradigm back to the day the English first landed on these shores. There has been a formal recognition in law regarding land titles, and a formal apology from the establishment on behalf of the previous government, but that is the full extent to which this nation as a whole could possibly compromise on the matter. Expecting a complete return of this landmass to the original inhabitants is quite delusional. There are 25 million people here, mostly comprised of the descendants of migrants. One could not seriously expect them all to “go home” to the nations from which they came. This will never occur, and can never occur. If push comes to shove, this insistence would inevitably cause a bloody civil war, and the majority would inevitably put an end to the notion, along with the tiny minority group causing the civil unrest.

What is Sovereignty?

In democratic countries like Australia, the term “sovereignty” is connected to the people, thus we can talk about the sovereignty of the people. In terms of the constitution, the sovereign is the Australian people, as a collective. The democratic meaning of sovereignty has nothing to do with monarchy, or even the original inhabitants of Australia. It represents legitimate rule, as opposed to actual power. It represents democratic legitimacy, the right to govern. A government must be elected by the people, according to constitutional guidelines, or else they have no legitimacy in governance. This cannot be said in Australia, there are regular elections to gauge the “consent of the governed”, which stands as evidence that those in parliament are in fact representatives of the majority.

There is only one legal system in Australia, and only one “law” and that is Australian law. Under the Australian legal system there are two types or sources of law: laws made by parliament (legislation) and laws made by the courts (common law). In Coe v Commonwealth of Australia [1979] HCA 68; 53 ALJR 403 it was stated:

“The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.”

In Walker v NSW (1994) 126 ALR 321 in the High Court, Chief Justice Mason, and Judges Ashley, Neave and Redlich, unanimously rejected the notion that a system of law could operate along side the Australian legal system. The notion of parliamentary sovereignty means that Australian parliaments can pass laws that apply to Aboriginal people, and have the legislative competence to regulate or affect the rights of Aboriginal people, as equally as they do regarding any other race. Regarding the acquisition of sovereignty, the court has numerous times relied on the principle stated by Gibbs J. in New South Wales v. The Commonwealth (1975) 135 CLR, at p 388, that:

“The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.” and that the principle “…precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown’s Dominions.”

In essence, the struggle for Aboriginal sovereignty, has nothing to do with the English, or the government, but it is against the people that presently populate this nation. The main problem is, the concept of Aboriginal sovereignty is not a legal system proposed for the inclusion of all other cultures such as exists in Australia. Aboriginal customary law could not possibly cater for all the needs these differing groups require, it is purely a race-based philosophy, that is only concerned with those of native blood, while the rest are put in another basket and their needs completely ignored like they don’t exist. After all, they shouldn’t even be here, right?

I don’t think those non-aboriginal supporters of this concept have even thought these things through, they’ve just gone along with a popular trend, an emotive impulse regarding the obviously criminal actions of an ancient empire. The adoption of foreign OPCA and Sovereign Citizen concepts by Australian groups has led to the rise of this obstinate philosophy. Since the early 1990’s, it has been included in various defence strategies in the Courts, by both Aboriginal people and non-aboriginal people. Their claims of “no jurisdiction” are overruled by High Court precedent, so they are inevitably declared frivolous and rejected.

The legal premises of the Aboriginal Sovereignty Movement

The activists only solution to all these ills, is to “treaty” with the Aboriginal people, denouncing all previous claims to anything since 1770, and recognising them as having an “absolute monarchy” type of sovereignty over the landmass and everyone on it. This noble title, of course, can only be bestowed upon those of Aboriginal blood, not any other blood. It is hoped, that overnight, this tiny minority group would suddenly become like royalty, having dominion over those of all other races on this landmass. I for one, cannot for a moment logically condone this proposal. It evokes the exact same philosophies applied in South Africa during the apartheid years, with a huge sector of the population having less or no rights under their laws, purely based on the color of their skin. Any such race-based philosophy is to be condemned, not condoned.

Secondly, they propose an indivisibility of church and state, another concept that has long been defeated in western history, with their own form of spirituality, religious lore or custom being imposed upon those of other religions and customs. For good reason, such a concept is contrary to section 116 of our Constitution, and the Racial Discrimination Act. These provisions also protect Aboriginal people from Christians or any other religious group imposing such notions of religious observance on others. For example, certain Islamic groups would like to see Sharia in force in Australia, yet all Australians are protected by these provisions in our constitutional framework.

In comparison, no such provision exists in customary Aboriginal law. Like with the first contention, it is hoped that this tiny minority group would suddenly become, not only like royalty, but sacred priests and priestesses ruling by divine right, over this “lower species” that is existing on their landmass. Ultimately, they will hold national sovereignty, so they can tell the U.N. to get stuffed, or alternatively, come and pick up these 20 million or so refugees of foreign descent. Maybe those offshore immigration detention centres can be refurbished to manage the outward flow, instead of incoming refugees.

“You do support Aboriginal sovereignty don’t you? No? Well you’re obviously a degenerate racist and should be publicly shamed. You are intentionally perpetuating an unlawful occupation and genocidal legal system. How dare you!”

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There are presently many exemptions in law that apply only to those of Aboriginal descent, recognised “rights” that are unavailable to the majority of Australians like myself. There are rights to land title, and the use of land for traditional purposes, hence many fishing and hunting regulations that could land me a spell in jail do not even apply to Aboriginal people. Since the displaced group known as “the stolen generation” was recognised in law, there are now provisions that confer responsibility of an endangered child to the nearest suitable relative, another privilege unavailable to the rest of us.

There are also many discrimination provisions that only apply to their particular racial group. On the surface, these provisions may seem discriminatory toward non-Aboriginal  Australians, but it is fitting, and fair, that the descendants of the original inhabitants be granted all these privileges by the collective Australian people, in recognition of past wrongs by the British Empire. However, this does not imply that the Australian people, or our government, should completely surrender our national sovereignty, because of an imposed guilt trip that we are not even responsible for, in favour of an apartheid-type religious dictatorship. Such a prospect is unwarranted, and immeasurably distasteful.

All the angst, hate and division that is propagated by these groups does absolutely nothing constructive, it has no conceivable final result, and no achievable purpose but to promote unwarranted civil unrest. These groups want everything their way, refuse any type of compromise, and refuse to take into account the will of the collective. Then, when the collective responds, they are invariably play the minority card, and claim they’re being oppressed and victimized.

I’m so glad that these “sovereignty” groups represent but a tiny sector of the Aboriginal people, with the majority capable of more intelligent, logical, non-emotive schools of thought and negotiation. There are presently large tribal structures being developed throughout Australia, that are constructively using available Native Title provisions to become self-funding and gain more cultural autonomy, initiatives that are entirely managed by their own governing body.

Constitutional Recognition

Eventually, when constitutional recognition occurs, there can even be separate, entirely self-governing Aboriginal States created under existing provisions in the constitution, that are of equal standing to the governments of the other states. But… such a suggestion is rejected by the “Aboriginal Sovereignty” movement, insisting on everything their way or no way at all. They reject constitutional recognition, asserting it is a trick to deceive the tribes into surrendering their non-existent “sovereignty” and instead, propose that “white people” have to first be recognised in THEIR constitution.

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These sovereignty groups are effectively throwing out the baby with the bathwater, squandering a great opportunity for progress, choosing instead to feel sorry for themselves, prevent reconciliation, and perpetuate this victim mentality. Great progress can only be made when people work with what they have, instead of complaining about what they don’t have, and quite logically, can never have.

But such is the influence of Sovereign Citizen theory on Aboriginal  affairs.

For some examples of how these premises work out in the courts, check out:


An open letter to Owen Torres (16 October 2017) Your 30 questions answered…

Click to access open-letter-to-owen-torres-from-robert-sudy-your-30-questions-answered.pdf