Timber Creek redress precedent - The options for First Nations

Ghillar, Michael Anderson, Head of State of the Euahlayi Peoples Republic, is proposing a number of options that First Nations might consider when seeking redress following the High Court's decision in the Timber Creek case. The High Court recognised that Native Title claimants should be eligible for compensation for the 'loss of rights to gain spiritual sustenance from the land' among loss of other rights and interests'.

The High Court hearing on the Timber Creek native title compensation case
(ABC News - Photo: Mitch Woolnough

First Nations' options for seeking redress following the High Court's decision in the Timber Creek Case

 
Ghillar, Michael Anderson, 29 March 2019

Refining the understanding of the options available to those caught in, or considering, the Native Title process.

To crystallise our ways forward, we need to understand the limitations of operating within the colonial legal system, that is, how far can our rights and interests be recognised and asserted under the British/Australian legal systems. At what point do we reject the invaders' legal systems and transition from being subservient Sovereign Nations to asserting our unique status, and asserting our sovereign rights through Unilateral Declarations of Independence (UDIs). Asserting our unique status and our sovereign rights can ultimately lead to a process of decolonisation to end 'the scourge of colonialism in all its manifestations'.

Unilateral Declarations of Independence (UDI) - explained

This is against the background that the Australian government is an 'occupying power' as admitted in the 1983 Report to the national parliament entitled 200 Years Later, when the parliament admitted that:

It may be that a better and more honest appreciation of the facts relating to Aboriginal occupation at the time of settlement, and of the Eurocentric view taken by the occupying powers, could lead to the conclusion that sovereignty inhered in the Aboriginal people at that time. [The Report by the Senate Standing Committee on Constitutional and Legal Affairs on the feasibility of a compact, or 'Makarrata', between the Commonwealth and the Aboriginal people entitled Two Hundred Years later, Australian Government Publishing Service, Canberra, p. 50.]

A general practice in the British-based Australian law, is that there are two processes for First Nations to pursue in terms of rights: the Common Law Right and the Native Title Right.

But firstly, it is most important to remember that there are two common laws operating in Australia. There is the 'continental common law' that is the foundation of First Nations Law, culture and customs, which is manifested through the Songlines and passed on through ceremony and by other means. Then there is the 'common law' that has been imposed by the colonial power and is the foundation of all the Australian colonial laws assented to by the Crown. For clarity we'll call this the 'British/Australian common law' or the 'colonial common law'.

As a result of the 1992 Mabo decision, the 'British/Australian common law' now recognises, within its own common law, the legal system and customary practices that owe their existence to First Nations' Law and customs, independent of anything and all, that is foreign to this Country. In the Mabo Case this is described as Sui generisSui generis is a Latin phrase used in law that means "of its own kind; in a class by itself; unique.Sui generis, or unique, which confirms that First Nations are outside and separate from the British/Australian law. This vindicates what Prime Minister Robert Menzies told the parliament in 1965. [See 'Background']

The unique, Sui generisSui generis is a Latin phrase that means "of its own kind; in a class by itself; unique.Sui generis, nature of First Nations' Native Title rights and interests is spelt out in section 65 of the Mabo decision:

65. … Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

We, as members of First Nations, understand well the second part of this statement and our Elders have always argued our Law cannot be changed, because we don't have the wisdom. We are not Gods nor Creators of this world.

The Native Title Act 1993, as amended, incorporates the recognition of our Colonial Common Law rights at Section 223. It identifies two sets of rights that we have. We can assert a Colonial Common Law right or a Native Title right. If we are to assert our Colonial Common Law rights then those rights can only be asserted under our Law and custom, since the Colonial Common Law now recognises them, or we can go through Native Title, which is then controlled by the Native Title Act and is open to abuse and manipulation. By asserting Colonial Common Law rights under our Continental Common Law, the British/Australian legal system, together with the parliamentary processes, cannot pass laws to take away our right to our Law, customs, our lands, waters, natural resources, flora and fauna to which we are totemically linked. These are our now recognised Colonial Common Law rights and we can assert these rights, which cannot be interfered with, unless superior force is applied illegally. The Native Title Act at Section 223 covers this very point:

223 Native title
Common law rights and interests

1. The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
   1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
   2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
2. the rights and interests are recognised by the common law of Australia

Through the decision of the High Court in Mabo and the Native Title Act, the courts now, by law, MUST accept and comply with First Nations Peoples' legal customary practices under our Law and custom, that are part of the First Nations' Continental Common Law.
There is, and can be, no contest in respect to establishing the bone fides of First Nations' Law and custom because our Laws, cultures and customs have belonged to First Nations Peoples for thousands of years before colonisation. It therefore follows that if the colonial power tries to contest and override our First Nations Peoples' customary Law and practices, then no municipal court within the colonial system has the power to make any determination in respect of any conflict of law around this issue. As the Mabo decision held at section 83:

83. 83. …The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

If this goes for the sovereignty of the Crown, this statement must also include the same for First Nations. The following cases demonstrate this very point. Mabo did not overturn any of the cases that are cited below.

When reading this paragraph in the Mabo decision along with paragraph 65 above, clearly there is a contest of sovereignties regarding whose law is paramount and there is a conflict of laws. The question that then arises is whose law is dominant, i.e. whose law is the Law of the Land? In this regard Mabo did not overturn what was held by Justice Willis in the Supreme Court case in R v Bonjon 1841:

'… the Supreme Court of New South Wales had no jurisdiction to proceed with the trial of Bonjon" and Bonjon was discharged and released from jail.' R v Bonjon, Supreme Court of New South Wales, Port Phillip District, Willis J., April 1841, Melbourne

During the Bonjon trial, Justice Willis imported the rationale for his decision by quoting from the 1837 British Parliamentary Select Committee Report. In this way Justice Willis brought the Select Committee's findings into the Australian common law:

'The Report further states, “It might be presumed that the native inhabitants of any land, have anincontrovertible right to their own soil; it is a plain and sacred right which seems not to have been understood. Europeans have entered their borders uninvited, and when there, have not only acted as if they were the undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country. If they have been found upon their own property (and this is said with reference to the Australian Aborigines) they have been hunted as thieves and robbers–they have been driven back into the interior as if they were dogs or kangaroos.”' R v Bonjon, Supreme Court of New South Wales, Port Phillip District, Willis J., April 1841, Melbourne

There is yet to be a decision on this very point by an appropriate international legal tribunal. Any attempts to suppress our Rights under our Law and customs by the Australian governments are acts of aggression and war against our Peoples.

The Native Title Act, in fact, repeatedly refers to successful Native Title claimants, as the 'common law holders of native title'. In effect this is as close as our sovereignty position can get within the established system of the 'British/Australia common law', but the High Court's fear of fracturing the skeletal principle of colonialism allows for the Native Title process to be subverted. This is affirmed by section 29 in the Mabo Case ruling, which I quote frequently, because the High Court chose to maintain colonialism over and above justice and human rights:

29. In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

This statement by the High Court is a clear example of what is called 'apprehended bias' and fits within the category of prejudice and defines these judges as treasonous, because they wrested the law unto themselves, when they made the above ruling.

In the New South Wales Supreme Court case, R v Bonjon (April 1841) Justice Willis explained the way the judiciary may act treasonously:

… I am here as a Judge to declare the right, and not to have recourse to expedient, I can never permit the end to justify any undue means for the accomplishment. This may be policy and wisdom in a statesman, but it is little less than treason in a judge. He must not Wrest the law to his authority, nor do a great right, through a little wrong.
[Macquarie University Decisions of the Supreme Court of New South Wales 1788–1899]

Another vital concept to keep in mind is that NO First Nations' land in Australia was ever validly transferred, conveyed, in writing to the invaders. This is affirmed in two court cases. Firstly, the frequently quoted Attorney-General (NSW) v Brown 1847 in which Chief Justice Stephen in the NSW Supreme Court stated the law at the time to be:

'…that the waste lands of this colony are, and ever have been, from the time of its first settlement in 1788, in the Crown - there is no other proprietor of such lands.' The Attorney-General v Brown [1847] NSWLeggeSC 2; (1847) 1 Legge 312 (10 February 1847) p. 319

But further reading of this case about the ownership of coal reveals yet another admission regarding to the underlying uncertainty of land titles claimed by the Crown:

'First, the title to lands in this colony is in the Crown; equally on constitutional principles, as by the adaption of the feudal fiction. Such a title, on either ground, is fatal to the idea of the allodium. Whether the term implies a property acquired by lot, or a conquest, or one left in the occupation of the ancient owners, (that is, of the aboriginal inhabitants, see Steph. Com. title Tenures, and the authorities there cited,) it equally rejects the supposition of a title, in or from the Sovereign. The objection, therefore, is only another mode of disputing that title.' The Attorney-General v Brown [1847] NSWLeggeSC 2; (1847) 1 Legge 312 (10 February 1847) p. 324

In other words, there had been no valid transfer of land title from First Nations to the Crown. Then in the 1975 Seas and Submerged Lands Case there was further confirmation that there had been no conveyancing of land titles whatsoever.

38. What was involved in the process of colonization in the case of the Australian colonies was the placing under delegated government defined areas of land. No alienation of property or of rights was involved. Nothing in the least comparable to the consequences of a conveyance of land occurred upon or by the act of establishing a colony. New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (17 December 1975)

It is not the Native Title Claim Group that should be proving their connection to Country, but it is the colonisers who should be proving that they have a valid transfer of land title. Chief Justice French in the High Court made a statement to the same effect, namely, that:

… one way to address this problem could be to amend the Native Title Act to provide certain presumptions in favour of native title claimants. For instance, there could be a presumption of the 'continuity of the relevant society and the acknowledgement of its traditional laws and observance of its customs from sovereignty to the present time'.[15]Once these presumptions are triggered, the burden would shift to the respondents to rebut the presumptions with proof to the contrary.

[15] Chief Justice RS French, Lifting the burden of native title: Some modest proposals for improvement (Speech delivered to the Federal Court Native Title User Group, Adelaide, 9 July 2008), para 29. At
Native Title Report 2009 chapter 3, Section 3.3

It therefore follows that the Crown can in no way argue to this day that there has been a valid transfer of land from the original owners.

ENLAGE IMAGE
Timber Creek mob at High Court, 5 September 2018
(Image: Northern Land Council

Courts in recent days appear to be casting off the shackles of apprehended bias shown in the Mabo judgement. On 13 March 2019 the full bench of the High Court established a further precedent in the Timber Creek Case (on appeal from the Federal Court) that 'loss of rights to gain spiritual sustenance from the land' among loss of other rights and interests, require compensation:

1. “The issues are extensive, and in some respects complex, butfundamentally there are three questions:
   1. how the objective economic value of the affected native title rights and interests is to be ascertained;
   2. whether and upon what basis interest is payable on or as part of the compensation for economic loss; and
   3. how the Claim Group's sense of loss of traditional attachment to the land or connection to country is to be reflected in the award of compensation.

1. “For the reasons which follow, those questions should be answered thus:
   1. the objective economic value of exclusive native title rights to and interests in land, in general, equates to the objective economic value of an unencumbered freehold estate in that land. In these appeals, the objective economic value of the non-exclusive native title rights and interests of the Claim Group is 50 per cent of the freehold value of the land;
   2. interest is payable on the compensation for economic loss, and in the circumstances of this case, on a simple interest basis, at a rate sufficient to compensate the Claim Group for being deprived of the use of the amount of compensation between the date at which compensation was assessed and the date of judgment; and
   3. the compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land is the amount which society would rightly regard as an appropriate award for the loss. The appropriate award for the cultural loss in these appeals is $1.3 million.”

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (13 March 2019)

Article: Let Timber Creek be a step towards true and respectful reconciliation The Guradian by Michael Lavarch

Given this decision on compensation, it is now appropriate for First Nations Peoples within Australia to commence legal processes of reparation though the British/Australian common law, to assert all those rights that belong to us under our Law and custom, with the end result of a guarantee that the atrocities, destruction of culture and spirituality, frauds and land theft never happen again.

I now turn again to the question of land. In the Mabo judgement it was held that First Nations' claims to cultural property and land can be extinguished by a 'legal' grant of land, but we must now ask: What constitutes a legal grant of land? If we are again to follow what was held in the Mabo judgement then there can only be one way in which a land grant can extinguish our right of claim, that is, the land is terra nullius and we do not exist or are not sufficiently civilised to have law and governance. The full bench of the High Court made this very clear when they held at paragraph 51:

51. …If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General v. Brown (95) See pp 13–14 above; (1847) 1 Legge, at pp 317–318: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. [emphasis added] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

I therefore argue that the mere creation of a legislative regime within State and Territory jurisdictions, through their legislature, cannot validly extinguish our First Nations' titles to land, because these lands were previously occupied by our Peoples, i.e. '… were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law' [ at para 51 ]. Therefore, if the Crown does not have a beneficial radical title it basically has no land title, merely a colour of title. In other words, Crown Grants have no legal foundation nor status without First Nations' free prior and informed consent (FPIC) to surrender their right of claim to land under their Law and customs. The legal system was corrupted by the Native Title Act because it now perverts the course of justice by attempting to get away with a major fraud against our Peoples, when politicians and lawyers attempt to argue that land titles were 'validly/legally' granted under their land title system. This is contrary to what was held in Mabo, as quoted from paragraph 51 above – if the land were occupied by others there can be no legal land grant without the free prior and informed consent of the original owners.

I must add that being displaced Peoples does not make the land terra nullius, nor vacant, nor unoccupied. The displacement of many of our Peoples in the guise of 'protectionism' was in fact a strategy of war that the British colonialists implemented by force. This practice is now called the 'scorched earth principle'. The current closing down of Homelands does not make the land vacant so that miners and developers can exploit and desecrate it at will.

The only good thing that the Native Title process is doing right now is that some of the anthropological Connection Reports establish the past location of our Peoples. But these Reports also have to be interpreted with caution as there is now a pattern emerging that the Connection Reports can exclude the key 'traditional owner' families and bring in 'outsiders' to the claim, who then, without the spiritual connection, would be more willing to sign off on development and destruction of Country, whereas those with 'bloodline back to Country' have a sacred duty to protect their Homelands under their Law and culture, but are so often thwarted by the lack of any veto powers and the politics of poverty.

The falsified and corrupt current Native Title processes, for expedient colonialist purposes, construct a twisted and demented thought practice that has been developed by evil and vile racists to pervert what was held in the Mabo Case, that is, now the Native Title Claim Group must establish that they continue that Connection to Country through our ancient Law and custom, while the colonialists know full well that people in the more densely populated areas in Australia in the east and southeast may and will have some degree of difficulty in establishing that continued physical connection. While many of our Peoples in the east and southeast may not be able to establish a continued physical connection, documentary evidence collected by some Aboriginal Protectors and Welfare agencies and ethnologists has been kept and records maintained of the location of the people, who were forcibly removed from Country in the guise of protectionism, and where they were transported to. Clearly, these people can establish an argument of forced displacement, which demonstrates they did not leave their Country voluntarily.

This then establishes two legal processes that can be now argued.

One, is reparation, including restitution and compensation along with apology and a guarantee it never happens again, for being forcibly displaced from their ancient Homelands.

ECOSOC Resolution 2005/30: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

United Nations - Rule of Law Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

Reparatory Justice Esther Stanford-Xosei (YOUTUBE)

The second is the fact that the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide defines what can be prosecuted as 'genocide' and our People can apply these definitions, which have been breached under international law.

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Given this to be the case, there is also another legal process within the British/Australian common law, which can be pursued and that is there is an action for Tort. Under the law of Tort, First Nations Peoples do have a case in the common law jurisdiction for reparations in all its manifestations.

The fact that the Native Title process has been established by statute, the Native Title Act, we must remember that it is merely a process. The Native Title lawyers engaged enjoy a great pay packet and other side benefits, but they fail to represent our Peoples in advising the claimants of all that I have spoken about in this paper.

There can be NO extinguishment of sovereign inherent rights of any kind, unless our Peoples voluntarily surrender and/or cede through the distorted and illegal practice of appearing to be voluntarily surrendering land, now and in the future, or by agreeing to approve and authorise all past illegal land tenure processes by way of Indigenous Land Use Agreements (ILUAs), in which Native Title applicants, on behalf of the Claim Group, sign and say that they validate all past acts in relation to lands and waters and natural resources, including mineral resources and petroleum. No one tells our Peoples how far back those past acts go.

Let me assure you they would reach back to the first day of the British assertion of sovereignty over our lands in 1788.

Why do I say this? It is because of what the lawyers always say to a Native Title Claim Group: You must establish your connection, under your Law and culture to the lands and waters that you claim at the time of 'sovereignty' (the British claim of sovereignty in 1788). Clearly, the reference then to past acts means from the day when Governor Phillip proclaimed the colony of New South Wales on 7 February 1788.

If you, or those representing you, have signed an ILUA and these facts were not pointed out and you were not fully informed of these material and legal facts, then any Native Title determination and/or ILUA signed by your applicants is null and void, because it was not based on free prior and informed consent (FPIC).

In the colonial common law, no contract of any kind is valid if, after investigation, it is clear that if the signatories were not fully informed of what they were signing and were not informed the implications, impacts and consequences of the document you signed.

If you were not fully informed of all the details and consequences, then no Native Title determination, either by consent or by court determination can be valid, nor is any Indigenous Land Use Agreement (ILUA) valid for the same reason. Any member of the Claim Group can request a judicial review on the grounds that you were not fully informed and you argue that all consequences and ramifications were not made clear to you and your People. Additionally, all contracts and agreements should be translated into your mother tongue in order for you to be able to better comprehend their meaning. This is your right.

European Court of Human Rights or the Inter-American Court of Human Rights

There is another process that is available to us and that is we can argue our case in either the European Court of Human Rights Euorpean Cort of Human Rights or the Inter-American Court of Human Rights

We can argue that the Native Title legislation created is racially discriminatory and deceptively ambiguous, for example, to the extent that our Peoples are forced to follow a process that discriminates against those who were forcibly taken and displaced from their lands under legislated regimes, when the People had no way of defending themselves. To now condemn those people under the Native Title process is unjust and is a complete denial of natural justice. Moreover, it establishes action of Tort that can be prosecuted under international law.

Our people need to make themselves very aware of this

No contract or treaty is valid if the parties are at war

On a broader front, it is a fact that no contract or treaty is valid if the parties are at war. In reality and technically there is a war of attrition raging across our Homelands right now.

No treaty or contract is valid if the parties are at war

If we are, as Nations and Peoples, to consider these processes and possible actions then it is the States that we will prosecute, not the citizens. Since the States govern in right of the Crown of Britain, ultimately, it is those who sign on behalf of the Crown, e.g. the Governors and the Governor-General, whose signature is required to represent the Crown of Britain's authority, that in turn makes all legislation of this kind 'legal' in all Australian jurisdictions. Without the Queen's agent's signature, or her personal signature, no law passed by any parliament in this Country is valid.

I urge everybody to truly reconsider their Native Title determinations, because NO legislated land tenure, as it has evolved over time, 'legally' extinguished your right of claim and your sovereign inherent birth right and your common law right. Your argument for your common law rights are spelt out in this paper.

Furthermore, the lawyers, employed to do you over under the Native Title process, can have their legal insurance policies prosecuted by a claim for lack of due diligence and integrity when allegedly representing your People. Therefore, any losses that your People have suffered can be compensated for from the Native Title lawyers' own personal insurance policies.

In conclusion, everybody who has been involved in doing us over must be held accountable for their actions, given this, nobody can be excused for lack of due diligence, or taking orders from higher up the hierarchy.

Fight back! The time is now.

   

Contact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here