By Michael Anderson, Goodooga, northwest NSW, November 8th, 2011
It appears that the courts of NSW are standing firm on their consistent practice to exercise jurisdiction over Aboriginal people despite the amended 1872/75 Pacific Islanders Act.
While some judges understand the legal conundrum, the frustration is that some are no doubt asking themselves: what law does apply to Aboriginal people?
This question arose in a number of criminal cases in 1827 in South Australia, Victoria in 1836 and NSW in 1842. After the NSW case, the NSW Supreme Court judge John Walpole Willis commented that in his opinion jurisdiction over Aboriginal people must be made definite by an act of the British parliament.
In response, Governor George Gipps wrote to secretary of state, Lord Stanley, on January 24, 1842 informing him that despite decisions of the local supreme courts that Aborigines were amenable to the British law, he requested at the behest of Judge Willis that the Attorney and Solicitor General of England put this matter beyond doubt.
Unfortunately, Governor Gipps' received no reply to his request. This allowed the courts to further entrench a legal uncertainty in the new and developing Australian colonial legal system.
I contend that this question was well and truly put beyond doubt when the British parliament passed the 1875 amendment to the 1872 Pacific Islanders Act, which clearly establishes at law that the parliament of England confirmed that Queen Victoria did NOT claim dominion or sovereignty over 'Aboriginal people and their Places', and thereby saved the expressed 'Rights of the Tribes, their Rulers/Chiefs'.
All judges in this country now know the consequences of this and are standing firm. This creates a major problem because law is about absolutes, therefore it is incumbent upon all judges to uphold the law, not permit themselves to engage in adjudicating on ambiguities and to restrain themselves from engaging in social policies, which is the domain of the parliaments.
With the current development and stalemate I call upon the judges to apply section 78b of the Judicial Act before proceeding with any trials against Aboriginal people. That is, have this matter placed before the High Court so that all the Attorneys-Generals of the states, territories and federal governments can consider this problem they now face: a constitutional matter that must now be dealt with.
If this is not done then we will all know that given the Mabo Judgement No.2, the parliaments of this country and the High Court realize that the sovereignty of the Aboriginal people that was affirmed and recognized in the 1872-75 Pacific Islanders Act is real and they do not know what to do.
To stand their ground and try to ignore it will only serve to create further delay and frustrations. It will also complicate things that can and will cause much angst. Should Australian governments choose to adopt this as a course of action, then they must now ask themselves this very real question: How do we deal with the Aboriginal nations who have defined their boundary and now assert sovereign independence?
Given the terms of the Pacific Islanders Act 1875, it is now possible for the Aboriginal nations to establish their own local governance and call upon the people living within their territory to now pay them rent and rates. Moreover, they can claim and establish a new form of land tenure that suits their needs and those occupying these lands will have to comply. This will include all mining activities in and on their land.
The problem that the Australian governments will have is the ruling by the High Court of Australia that the question of sovereignty is NOT justiciable in the domestic courts. This means that the state, territory and federal governments cannot ask their respective high courts to rule against Aboriginal nations who assert sovereignty over and in their lands, water and airspace.
Unless the governments of this country want this to happen, then ignore us and try to solve this with your Uncle Toms and Aunt Marys. These people are show cases and have no meaning or purpose in the local communities. The people at the coal face of this dilemma now seek meaningful and lasting solutions.
We understand that if they so choose the government can use the military and police to forcefully suppress us and our rights, but such is the challenge that we now face. If we truly seek to be liberated from this tyrannical rule we have been subjected to all these years, then we must make the stand.
Too many of our people are dying in custody, killing themselves and being imprisoned for driving motor cars without a license. Our children are again being taken from us. The Northern Territory Intervention is nothing but martial law that robs our people's lands from them and denies them the right to negotiate with mining companies to create their own independent wealth. Not to mention being absolutely contemptuous of the UN Declaration on the Rights of the world's Indigenous Peoples.
The confrontation we now have is the confrontation Australian governments tried to hide and avert. It is real and they know that they must talk! The National Indigenous Congress is NOT our representative organization and cannot talk for us as a people across this Australian land mass.
The time has come for Australia to truly become liberated and free from England.
Michael Anderson can be contacted at 02 68296355 landline, 04272 92 492 mobile, 02 68296375 fax, firstname.lastname@example.org