Conquest and Colonisation

The challenge for Australia of

sustainable governance

1

2

settlement

reception

democracy

constitutionalism

Australia’s sovereignty stories:

wrapped up in a neat box

Australia’s missing

‘sovereignty story’

3

Voyages of Discovery

European colonisation?

First nations

40-60,000 yrs ongoing

AUSTRALIA TODAY

History informs the present

4

Prime Minister for Aboriginal

Australians supports closure of

remote communities

5Image K Galloway

6

Seriously?

7

http://www.soyouwanna.com/lifestyle/

DISPOSSESSION AT LAW

Terra nullius

8

Three ways to acquire sovereignty

over a territory…

Conquest

• Existing law remained unless/until altered

Cession

• Existing law remained unless/until altered

Settlement

• Receptionof coloniser’slaw

9

Through European eyes: inhabited

country…

Image K Galloway

“Uninhabited” countryImage K Galloway

land power law

12

English law

No agriculture

No legal system

No power

13

English interpretation of

Australia

Land use: if only they looked

http://www.abc.net.au/news/2014-01-06/fish-trap-

heritage/5185828 (Western Catchment Management Authority)14

Tiwi artist’s statement: culture

is ancient and contemporary

15

Image K Galloway from Museum and

Art Gallery of the Northern Territory,

2014

The evidence shows a subtle and elaborate

system, highly adapted to the country in

which the people led their lives, which

provided a stable order of society and was

remarkably free from the vagaries of

personal whim or influence.

If ever a system could be called a

‘government of laws, and not of men’, it

was shown in the evidence before me.

Milirrpum v Nabalco (1971) 17 FLR 141, 267

16

Lifestyle choice?

DISPOSSESSION IN FACT

Terra nullius

17

[you are..] with the consent of the

Natives to take possession, in the

name of the King of Great Britain,

of convenient situations …

(Captain Cook’s instructions, 1776)

…[you are to] conciliate their

affection in order to live in amity

and kindness..

(Governor Phillip’s instructions)

18

Frontier

Wars

19http://www.eurekastreet.com.au/article.aspx?aeid=35825#.VQSzw0YeY wF

Dispossession:

not just

historical

20

Scott Ludlum

@SenatorLudlum Twitter

13 March 2015

LAND RIGHTS

Sovereignty Land

21

Sovereignty on trial

Decision Held

McDonald v Levy (1833) Australia was an ‘uninhabited country’ and

that Aboriginal people who ‘lived without

certain habitation and without laws were

never in the situation of a conquered people.

Cooper v Stuart (1889) NSW: a ‘tract of territory practically

unoccupied, without settled inhabitants or

settled law, at the time when it was

peacefully annexed to the British dominions.’

Coe v Cth (1979) Sovereignty cannot be challenged in the

domestic courts: act of state doctrine

22

Sovereign nation at international

law

Domestic courts cannot determine validity of nation’s

sovereignty

Only international courts have jurisdiction

The Act of State doctrine

23

My ancestors never signed away our

ancient laws or ceded sovereignty. Our

ancient laws are not extinguishable.

They were not created by humans and

they cannot be extinguished by them,

through whatever processes they

devise. It is not that simple. The old

people know the law and its onerous

obligations. Obligations which hundreds

of Aboriginal peoples still carry today.

Irene Watson (2000) 24

Eddie Mabo: I know who owns

my land, and it’s not you…*

Edward Koiki Mabo (1936–1992) Original hand-drawn map … 1981–1992 ink & coloured felt-tip pen on paper 32.5 x 20.4cm | Manuscript Collection, MS 9518 | National Library of Australia | http://nationaltreasures.nla.gov.au/index/Treasures/item/nla.ms-ms9518-1-1x-s1*Not a quote

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.

Mason CJ & McHugh J

Mabo v Qld (No 2), [31]26

SovereigntyRadical

title Right to

grant land

CustomNative

title Land rights

But…

27

1770:

40-60,000 yrs

Mabo alters relationship

between sovereignty & land

Radical title

• Belongs to crown

• Power to grant land

Full beneficial title

• Belongs to traditional owners

• Can be extinguished

Once native title extinguished…

Crown has full title

Mabo and land rights

pros cons

29

Legal pluralism??

Customary law continues within communities

30

English lawALRC

Report 1986Sentencing, family law…

Native title

SOVEREIGNTY AND CITIZENSHIP

Equality before the law

31

All inhabitants became

subjects of the King

32http://en.wikipedia.org/wiki/Sydney_Cove

Equality before the law?

33

Mounted Police and Blacks' depicts the killing of Aboriginal people at

Slaughterhouse Creek by British troops

http://en.wikipedia.org/wiki/Waterloo_Creek_massacre#mediaviewer/File:M

ounted_police_and_blacks.jpg

Equality before the law?

Exclusion of Aboriginal, Torres Strait

Islander laws

Dispossessed of land

Culture, self-determination

disrupted

Retribution against

Indigenous people

massacresWithout

consequence for English

No enforcement of law against

English

Crimes not investigated

Indigenous complainants can’t testify

34

Citizenship: franchise

1885

• Elections Act Qld

• Excluded Aboriginal people

1930

• Torres Strait Islanders excluded

• ‘half caste’ people also excluded

1962• Right to vote in Commonwealth elections

1965

• Right to vote in Qld for all Aboriginal & Torres Strait Islander people

35

The 1967 referendum

• The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

Power to make laws

s51(xxvi)

• Aboriginal people can be counted to determine electorates

• Census, other govt figures can now include Aboriginal people

• Re-weighted value of Aboriginal votes

Repeal s127

1. The ‘67 referendum was not about citizenship

2. Aboriginal and Torres Strait Islander Australians were not part of a ‘Flora and Fauna Act’…

Davis & Williams, Everything You Need to Know about the Referendum to Recognise Indigenous Australians (2015), 35

38

Protectionism

39

Protectionism: is this

citizenship?

40

Stolen children: equality

before the law?

41

http://www.creativespirits.info/aboriginalculture/economy/stolen-

wages

Stolen wages: equality

before the law?

Assimilation: equality before

the law?

42

Northern Territory News 16

February 1954

43

Assimilation: equality before

the law?

Joe Hedger @cuz888 Twitter 11 March 2015

A question of perspective

Exploration Pastoralism Federation

Protectionism AssimilationSelf-

determination

HUMAN RIGHTS

The ignored sovereignty story in Australia

45

46

Questioning law’s legitimacy

No case can command unquestioning

adherence if the rule it expresses

seriously offends the values of justice

and human rights (especially equality

before the law) which are aspirations of

the contemporary Australian legal

system.

Brennan J

Mabo v Qld (No 2) [29]47

Declaration on Rights of

Indigenous Peoples

Article 8

1. Indigenous peoples and individuals

have the right not to be subjected to

forced assimilation or destruction of their

culture.

48

Lifestyle choice or human

right?

49

Consider ‘lifestyle choices’…

…the underlying assumption is that State

sovereignty and territorial integrity are

privileged over the rights of Indigenous

peoples to be self-determining. That

they have a higher claim to protection.

In fact just the opposite is true…

William Jonas (2002)50

WHAT DOES THE FUTURE HOLD?

Righting the wrongs

51

Swings & roundabouts: 50

years

1965 Freedom ride

67 referendum

Land Rights Act NT

Racial Discrimination

Act 1975

MaboRCIADIC‘Bringing

them Home’Apology

InterventionExpert panel -

recognitionReferendum? Treaty??

52

Reinventing Australia’s

sovereignty story through law

Human rights

Treaty Justice

53

HOW WILL YOU MAKE A

DIFFERENCE?

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