A Response to Henry Reynolds from Garth Nettheim

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Professor Reynolds writes with his usual lucidity to question the propositions that, either, Indigenous Australians never exercised “sovereignty”, or that, if they did, it was snuffed out at the moment that the British claimed sovereignty over the several colonies and territories that became Australia.

The argument for an original sovereignty seems indisputable. It is generally accepted that the various Aboriginal peoples and Torres Strait Islanders had systems of law and justice in their distinct territories.

It also seems closer to the truth to say that such Indigenous sovereignty became subordinated to British sovereignty, not in one instant of flagraising and proclamations, but on a step-by-step basis as such sovereignty was asserted in fact, with the advance of the frontier. This accords precisely with the analysis of Aboriginal dispossession propounded in the Mabo decision.

The question remains as to the legitimacy of those assertions of British sovereignty. The debate has been going on since at least as far back as the years following Columbus’ “discovery” of the Americas. The High Court in Mabo did not assert the legitimacy of the imposed sovereignty; rather, as Henry Reynolds says, it held that the matter was “non-justiciable” as an “Act of State”. In the 1979 Coe decision, Justice Jacobs in the High Court pointed out that such matters are “not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged”.

Can the challenge to the Australian sovereignty be asserted under International Law? The problem is lack of a forum. Generally speaking, only a State may invoke the jurisdiction of the International Court of Justice. So the “Catch 22” is that, in order for an Aboriginal people to argue that they are a State, they must, first, be accepted as a State.

There remains the possibility of a continuing Indigenous sovereignty which is subordinate to the International sovereignty of the State. This has been accepted in US law since “the Marshall cases” in the US Supreme Court in the 1820s and 1830s.

The proposition has, for the most part, been rejected by Australian courts in cases such as Murrell and Coe. But the Australian courts have been applying, basically, the same Common Law as had produced a different conclusion in the USA. The differing approach has been based on reasoning which includes invidious contracts between the degree of social and political organisation of Native Americans and Aboriginal Australians. Yet the High Court in Mabo expressly rejected the legitimacy of any such distinctions.

I would agree that a continuing but subordinate Indigenous sovereignty, in the sense of an inherent right to self-government, would be a logical development from Mabo and would not “fracture the skeleton of principle” with which Brennan J. was concerned. (I have argued the point in “‘The Consent of the Natives’: Mabo and Indigenous Political Rights” in Essays on the Mabo Decision. 1993, p103.)

But the argument keeps failing in Australian courts. Part of the reason for the failure is the context in which it is raised, usually a criminal prosecution in which an Aboriginal defendant disputes the authority of an Australian court to try him.

Even in Canada, which is well advanced towards recognition of an inherent right to self-government, such an argument struck problems in the British Columbian Court of Appeal in the Delgamuukw litigation.

The issue is more likely to be satisfactorily resolved by negotiated agreements and resulting legislation, rather than through litigation. This has been the recent experience of Indigenous peoples in Canada, Greenland and Scandinavia. Elements of Indigenous self-government may be accorded in “regional agreements” for the Torres Strait Islands and other parts of Australia. Indigenous Australians are looking increasingly to negotiated settlements as the basis for gaining recognition of such degree of autonomy as they seek to assert in modern conditions.
Professor Garth Nettheim is Chair of the Aboriginal Law Centre at the University of New South Wales.

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