We live on stolen land. Indigenous sovereignty has never been ceded. As activists it is crucial to educate ourselves. Important resources are:
- Treaty Republic
- ‘The Black GST’ This short documentary about contemporary and historical indigenous issues is narrated by two of the leaders of the Black GST movement, Robbie and Marg Thorpe, available http://www.treatyrepublic.net/content/black-gst.
- Gary Foley ‘For Aboriginal Sovereignty’ (1988) The Koori History Website, available at http://www.kooriweb.org/foley/essays/speech1.html
- Pratt, Angela M, "Indigenous sovereignty-never ceded": sovereignty, nationhood and whiteness in Australia, PhD thesis, Faculty of Arts, University of Wollongong, 2003. http://treatyrepublic.net/content/indigenous-sovereignty-never-ceded-sovereignty-nationhood-and-whiteness-australia
The struggle to recognise Indigenous sovereignty over the lands and waters of Australia and realise a treaty is a political struggle. It is not (solely) a legal struggle, nor one that can be won (solely) in the courts. It is an urgent imperative and one which requires transformative political change.
However, court cases may present opportunities to highlight and raise awareness about the continuing and illegal occupation of Indigenous lands. Asking the courts to do something they ultimately never can - to justify and legitimate their jurisdiction - may serve as an opportunity to highlight the limitations of the Australian judicial/political system and present media opportunities for making these arguments to a wider public.
As such some activists have chosen to enter a plea of ‘no jurisdiction’ in the court. As discussed above this is an argument which is extremely unlikely to legally succeed in any proceedings, however making this argument may assist in further other political objectives activists may have.
Although the court was not asked to and did not question the established position that British sovereignty was acquired through 'settlement', the decision of the High Court in Mabo No.2 encouraged further challenges to jurisdiction of Australian court’s, and particularly to their ability to prosecute Indigenous peoples.
Blokland and Flynn argue that the court's rejection of the terra nullius and acceptance that Aboriginal people had their own system of laws 'raise the spectre of the classification of Australia as a settled colony being reviewed.' The authors acknowledge both that '[t]here is no indication in Mabo that the High Court is prepared to recognise Aboriginal sovereignty' and that the High Court is unable to inquire into the actual acquisition of sovereignty. Nevertheless, the authors note that the court may be able to review the manner of acquisition:
'Two alternatives present themselves. First, it might be accepted that Aboriginal sovereignty survived "settlement" and co-exists with Crown sovereignty. This approach prevailed in relation to the indigenous people of the United States who are said to enjoy an inherent or dependent sovereignty ... Secondly, Australia might be re-classified as a "conquered" colony ...it could be argued that Aboriginal people, in so far as they adhere to Aboriginal law, are not subject to the received criminal law.'
However, all attempts to challenge Australian court’s jurisdiction to hear criminal matters have failed. For example in Walker v NSW (1994) 126 ALR 321 at 322 the Chief Justice of the High Court said:
'there is nothing in the recent decision of Mabo v Queensland (No. 2) to support the notion that the parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo (No. 2) rejected that suggestion.'
However, for many activists facing charges for protests, especially where the objectives of the protest was to be part of or to act in solidarity with Indigenous struggles, pleading ‘no jurisdiction’ is an important political and ethical choice. In choosing to plea ‘no jurisdiction’ they seek to continuously highlight the need for political and legal recognition of Indigenous sovereignty.
For a discussion of case in which it was argued (unsuccessfully) that the Australian criminal law does not apply to Indigenous peoples see Jonathan Kenna ‘Mabo the Native Title Revolution: Some Ramifications of the Decision for the Criminal Law’ at http://www.mabonativetitle.com/info/ramificationsCriminalLaw.htm
In 2009 a group of activists claimed no jurisdiction in the Magistrates Court after being arrested within the grounds of Barrick Golds Lake Cowal Gold Mine, and charged with Enter inclosed lands without lawful excuse.
The basis of our argument was that Australia was colonised illegally and therefore the court (an institution of Commonwealth law) lacked the jurisdiction to adjudicate the matter. Our argument was based largely on the findings of the Mabo case and certain cases and premises of international law. The main points of our argument were:
- During the colonial period the conduct of colonial powers was bound by the Law of Nations
- Under the Law of Nations in 1788 the British Crown had three options open to it: Cession, Conquest or Settlement (commonly referred to as occupation)
- Despite historical evidence of resistance to the British, the continent was never declared conquered
- Instead of declaring the continent conquered (and there are no treaties to suggest that it was ceded), the British declared it a settlement on the basis of terra nullius: the Law of Nations required that settled or occupied territories be terra nullius.
In 1992, the High Court overturned the principle of terra nullius in Mabo v Queensland. However, the concept of “settlement,” the legal analogue of terra nullius at common law, was never overturned
It follows from this that either:
- Terra nullius still exists through the common law concept of settlement OR
- The British Crown no longer has any legal claim to sovereignty in Australia
According to international law at the time, the British could not have settled a land that was not empty, therefore Australia was not settled according to the principles of international law in effect at that time.
We represented ourselves on the basis that it would be a contradiction to claim that the courts do not have jurisdiction and then be represented by a lawyer, technically an officer of the court. One mistake was handing our argument on paper to the Magistrate before we presented it – allowing the Magistrate to cut me off half way through presenting the argument on behalf of the group, claiming to have read the rest, and ruling that the court indeed had jurisdiction. The Magistrate gave no substantial reasons to justify his finding, relying on the requirement for us to show lawful excuse under the NSW Inclosed Lands Protection Act, under which we were charged. This was despite the procedural convention, otherwise observed in our legal proceedings, that the question of whether the court has jurisdiction been addressed prior to any discussion of the facts of the case.
Once the Magistrate had found that the court had jurisdiction and the court proceeded to the facts of the case, we disengaged from the rest of the proceedings, refusing to enter any argument in our defence as it had not been shown that the court had jurisdiction.
A significant problem in our case was that there were two groups being heard on the same day. The original group of arrestees had split into a group with legal representation making a different jurisdictional argument that fell within accepted legal parameters; and our group, unrepresented and making a novel argument. Inadvertently, this led to our argument not being genuinely tested. As the individuals in the two groups had all been charged for exactly the same reasons, all arguments and facts of the case had to be heard before a ruling could be made, to avoid a discrepancy in the final decision which may result in a discrepancy of justice. This meant that despite our requesting otherwise, our case could not be considered separately from the arguments put forward by the lawyer for the other group.
Both groups were found guilty on the grounds that we could not prove lawful excuse. However, the parity required of the ruling was not extended to sentencing. The represented received fines of $300 plus court costs (aside from those with prior offences), as compared with $400 plus costs for the unrepresented claiming no jurisdiction. Both groups were convicted.
A smaller group had their sentences (including convictions) dismissed under Section 10(1)(a) Crimes Sentencing Procedure) Act 1999, on appeal to the NSW District Court. The appeal only challenged sentence severity, and as such did not re-open the question of jurisdiction. Its importance perhaps lies in the main argument made by our lawyer: that had we entered a plea of guilty from the outset we would have undoubtedly qualified for a Section 10 (given the nature of our actions), and therefore we should not be penalised for testing the law. This provides a precedent for others making this argument at the level of the Magistrates Court.
Thanks to Nectaria