London, 9 December 11
The High Court Mabo judgment (No. 2) only got it half right; by this I mean that the sovereign status of our people gives us rights in ownership and title to all Crown lands in Australia. This is affirmed from the Order in Council from England in 1875 through the Pacific Islanders Protection Act.
So far my trip to London has made it patently clear that an Order in Council is law and can only be taken away by another Order in Council from the monarch and cannot be taken away by Parliament.
Where we have been cheated by the Australian Parliament was through their act to engage the "Magnificent Seven" Aborigines to work with the Government to formulate a code of laws to restrict our ability to take ownership as sovereign Peoples to the remaining lands and waters that had not been usurped. That is, these lands are known in Australia as 'Crown lands' and they belong to us unencumbered as sovereign nations' land. The Magnificent Seven, without being fully informed, worked to circumvent our ownership of these lands.
The High Court Mabo judgment said that all Crown lands were available for claim. Clearly the Wilson v Anderson case of 2002 was Australia's stand against Aboriginal sovereign rights to secure by statute State leasehold lands for non-Aboriginal people.
Part of the Land Rights struggle that we now face is to gain compensation for the land that has been usurped by force from our nations.
The doctrine of adverse possession is a possessory right by occupation and we Aboriginal Peoples, as sovereign true owners of the occupied lands, must now stand and fight for the right to be compensated. This compensation right must include compensatory measures for the wealth that the government gains through our naturally occurring resources.
Clearly the Samuel Griffith Society of lawyers, which protects Australian Constitution rights, got it right when they advised John Howard in 1998 that it would be at his government's peril if they affirmed government ownership of natural resources in the Native Title Act or any other Act of the Australian State. One of the most important points made in this advice was that should Aborigines be successful in arguing their case for sovereignty then the Australia State would have to repay to Aboriginal Peoples all monies derived from the exploitation of our natural wealth. It goes without saying that the white legal experts in Australia are very wary and concerned about the High Court's statement in Mabo when the judges referred to Australian State as having a skeletal framework. In this regard the High Court said:
"the maintenance of their rights was fatally inconsistent with white settlement of the country, and yet white settlement was the object of the whole forward movement, pioneered by the Company and controlled by the Crown, and that object was successfully accomplished, with the result that the aboriginal system gave place to another prescribed by the Order in Council".
Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. …
It is important to understand that the High Court in Mabo went on to say in para 42 that:
43. However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system. The proposition that the Crown became the beneficial owner of all colonial land on first settlement has been supported by more than a disregard of indigenous rights and interests. It is necessary to consider these other reasons for past disregard of indigenous rights and interests and then to return to a consideration of the question whether and in what way our contemporary common law recognizes such rights and interests in land.? Crown title to colonies and Crown ownership of colonial land distinguished.
As Aboriginal Peoples we must now truly understand that Australia's claim in title to our lands, waters and natural wealth is more than 'on shaky ground'. The High Court Mabo decision has determined that:
Fortunately for Aboriginal Peoples, the Order in Council in the Pacific Islanders Protection Act 1875 clearly contradicts this assertion in para 44.
As Peoples it is now imperative that we unite and rebuild as sovereign independent nations, in order to claim our sovereign title and rights throughout Australia. This will be a major political and legal fight, but it is our future for not just us, but for our children and our grandchildren.
Over the next few days I will have confirmed our sovereign status within Australia under international law. Presently I can say that the shutting down of the National Aboriginal Conference (NAC) in 1985 was not about the NAC's failure to represent their constituency, but rather it was about its success in beginning to shatter the skeletal framework of the Australian State, later referred to in the High Court Mabo judgment.
Contact Michael Anderson firstname.lastname@example.org