The Federal Government’s “Act of Recognition” and Aboriginal customary law.

What the high court says has been extinguished, legislation now says is continuing.

It is not the Australian constitution, with or without its proposed amendments, that extinguishes Aboriginal sovereignty and customary law within Australian law. It is the Racial Discrimination Act that does it.

The High Court of Australia has deemed Aboriginal customary law to be in contravention of the Racial discrimination Act as it is a law specific to one particular “race” (in the terminology of the Act). The Racial Discrimination Act gives everyone the equal right to be be English (language, law and culture) and it criminalises all non-English modes of law. As such, the High court has ruled for a blanket extinguishment of all customary law. This ruling has been applied to dismiss Bejam Denis Walker’s “No Jurisdiction” high court action that challenged the Crown’s jurisdiction over Aboriginal people who are within the jurisdiction of Sovereign Aboriginal customary law. The racial discrimination act and the High Court’s blanket extinguishment of customary law have also been used to prevent customary law issues being raised in defense and sentencing matters before the criminal courts.

In dismissing Bejam Denis Walker’s “No Jurisdiction” case the High court also ruled that its own single source of authority and the extent of the parameters of its jurisdiction are derived solely from the Crown, as such it had no authority or jurisdiction to hear challenges to the legitimacy of the Crown’s jurisdiction. The court could not consider the possibility of biting its own master.

Prior to the High Court’s blanket extinguishment, many remote police, courts, corrective services and legal firms were routinely incorporating local Aboriginal customary law into their decision making. A key legal issue that emerged and was being taken seriously by the courts was “double jeopardy” whereby a person convicted by the courts would face customary law for their crimes as well as going to prison or whatever the court sentence ordered. Clearly such people were being punished twice for the one crime which the courts are supposed to ensure did not happen. Many remote courts began incorporating customary law into their determinations of guilt or otherwise and especially into their sentencing options by not imprisoning people in recognition of them facing customary law for their crimes. Some courts even began ordering that customary law sentences be conducted properly, with the full integrity of customary law and not just token gestures for the court. But the high court ended all that, the double jeopardy issues were resolved by simply determining that customary law was not lawful and therefore was not to be taken into account by the courts.

There have been no colonial statutes anywhere that attribute any legal legitimacy to Aboriginal sovereignty and customary law, (despite recent misunderstandings and misinformation about the Pacific Islander Protection Act – an act to legalise and tax blackbirding)

Native title rights have no legal root in Aboriginal customary law, they are defined and created by the colonial legal system as English common law rights that can be and have been extinguished by colonial legislation (as also outlined in the Pacific Islander protection Act regarding Fiji becoming a British colony).

Nowhere, anywhere has there ever been any colonial legislation acknowledging the existence and continuation of anything at all of Aboriginal customary law. Most of Australia’s legal history relied on Terra Nullius that totally ignored the existence of Aboriginal people and more recently the courts and parliaments have defined Aboriginal legal rights totally within the framework of colonial law – common law native title and anti-discrimination.

Nowhere, anywhere in the colonial law has there been an acknowledgement of Aboriginal “culture, languages, heritage and relationship to land” until now. But now there is!

But wait, there’s more……… and its not just steak knives!

The legislation that is now Australian law says that Aboriginal peoples’ “culture, languages, heritage and relationship to land” are……… wait for it………… “continuing”!

If the above mentioned vaguely described attributes of Aboriginal people are “continuing” in any form whatsoever, then obviously the High Court’s blanket Extinguishment of all and any customary law is now in conflict with current legislation, at least for the next two years and further if (big IF) constitutional amendments use similar language.

Customary law is now back on the legal agenda and appeals to the High Court challenging the blanket extinguishment have, for the first time ever, legislation to rely on. There are obvious implications for the Racial Discrimination Act also.

The main battlefield where Sovereign Aboriginal Customary law collides with the colonial jurisdictions of the Crown is not in international law but in the colonial courts, mainly the criminal courts. Every weekday since the end of the native police raids, the Crown’s law has been imposed onto sovereign Aboriginal people in the courts. The over representation of Aboriginal people in prison is just the tip of the ice-berg, the systematic criminalisation of Aboriginal people by police and the courts effectively maintains a colonial police state over Aboriginal families in all communities – while not resolving any issues of crime and violence in the process. The colonial war rages in the lower courts.

Before being extinguished by the High Court, customary law defenses and sentencing options in the criminal courts did not get the same media attention as native title or even the modern Aboriginal Sovereignty political campaigns but they did achieve a lot for the legal recognition of customary law. It opened up the issues of not just the existence of, but also the legitimacy of customary law in Aboriginal communities. Customary law was accommodated and sometimes even facilitated by courts and police. The motivation for this development was not theoretical legal notions of sovereignty but of seeing and responding to the obvious truth – it just made sense, it worked at the local level and it had momentum – until the High Court’s blanket extinguishment.

The problem with the more high profile political notions of Aboriginal sovereignty and international law is that despite the obvious legal correctness of the argument and the equally obvious fraudulent claim of British sovereignty, there are simply no courts to hear such argument, either domestically or internationally. The High Court, the highest court in the land has said it does not have jurisdiction to consider challenges to the sovereignty of the crown for such sovereignty is the sole authorisation of the High Court. There are no United Nations Courts to hear the matters of international law and the authority of the UN courts comes only from the sovereignty of its member states that. The UN courts, like the High court, cannot question its own authorisation. The international criminal court, that only has jurisdiction for matters after 2002, must hear matters of war crimes and genocide in the domestic court of the relevant member state. There are no domestic or international courts to hear an indigenous sovereignty legal argument.

However, all the big issues of sovereignty and jurisdiction are inherent in customary law defense and sentencing matters in the colonial courts, the place where the shit hits the fan in the ongoing war of colonisation. Now that Aboriginal culture, language, heritage and relationship to land is recognised in legislation to be continuing, there is a legislative basis to overturn the High Court’s blanket extinguishment of customary law.

If customary law defense, sentencing and indeed “No Jurisdiction” is put back on the legal agenda, as the Act of Recognition facilitates, it doesn’t just open the door to customary law process to reduce the numbers of Aboriginal people criminalised and incarcerated by the legal system – which of itself would save many Aboriginal lives, it also opens up the whole legal can of worms of the pre-existing legal sovereignty inherent in customary law processes – a can of worms that cannot be opened by legal appeals to international law or non-existent international courts, as proposed by some Aboriginal sovereignty activists.

John Tracey

post script – The Pacific Islander protection Act 1872/75 (PIPA)

I have mentioned this Act specifically because much of the Aboriginal sovereignty movement is promoting it as a foothold in international law for sovereignty claims.

For those who refer to PIPA in their legal and political arguments, please consider…..

1/ The purpose of the PIPA was to legalise, regulate and tax blackbirding – slave trading. Slavery had recently been made illegal in the English empire so a new law was made that euphamised the slavery as “indentured labour” and enabled slave traders to operate legally as long as they did the paperwork and paid their tax.

2/ The PIPA is specifically for natives outside of British colonies and it specifically identifies the Australian states as British colonies (Section 2 1872 Act).

3/ The crucial section 7 relating to the “rights of the tribes” is one sentence. The only sovereignty referred to is the British Crown’s, specifying the limits to it outside of its colonies and its relationship to native tribes there. When the second part of the sentence mentions “sovereignty” it is referring to the matters of the first part of the sentence. The rights of the tribes in non-English territories are not to be derogated by the sovereignty of the British Crown. It does not introduce a new notion of native sovereignty. What is specifically attributed to the tribes is “rights” – European international common law rights in relation to the English crown’s jurisdiction.

4/ The above point 3/ is clearly reinforced in section 8 (the very next section that nobody seems to have read) regarding Fiji that became a British colony in 1874, after the 1872 PIPA. – The Fijian “tribes” were no longer natives of non-British colonies as per the PIPA but now had a colonial parliament. Section 8 determines that the rights of the tribes in Fiji remain in place until the new colonial parliament passes legislation to extinguish them. The High Court referred to PIPA in its Mabo judgement as reinforcement of this principle.

5/ PIPA was repealed by the new Australian Federation’s White Australia policy that outlawed non-white immigration and specifically the Pacific Island Labourers Act that legalised the mass deportations of pacific slaves – often not to their homeland from which they were taken. There are some who argue that PIPA was not really repealed and section seven is still relevant but legislation of the Australian parliament is the standard for domestic and international law and the white Australia Policy trumps the PIPA, irrespective of any imperial law. The English Act of Westminster specifically releases the parliaments of the English dominions from all imperial law (except the Act of Settlement).

PIPA was a law to regulate slavery, it outlines a mechanism for extinguishing the “rights of the tribes” by colonial parliament, it was specifically not for the English colonies of which the Australian states are specifically identified as being, the Act has been repealed and there are no courts to hear Aboriginal disputes of international law. The PIPA argument is not strong.


15 responses to “The Federal Government’s “Act of Recognition” and Aboriginal customary law.

  1. So the Crowns’ own courts, where those sitting the bench are paid by that same Crown have found in favour of the Crown….

    Who would EVER have thought that would happen ?

    It is time for the matter of Sovereignty to be heard in a public transparent forum where those sitting the bench aren’t paid by one of the parties.

    Unless of course it is the Tribes’ turn to man the guns ?

  2. Mark,

    Have you any response to my comments about PIPA? Am I wrong?

    What transparent forum are you talking about?

  3. Mbitjana Elatjia Elder

    As a Tribal Elder and Lawman of the Arrente Nation in Central Australia, I consider that whatever this crown (the business/corporation) part of the throne feeds to the tribes in whatever capacity is nothing but a continuation of the Ethnic cleansing of our Sovereign tribes across this continent if not across the globe. This is an act of war against us.
    A transparent forum should be of all Sovereign tribal nations globally who have a treaty with each other as to re-cognise as Sovereigns each particular Tribal Law and re-cognised under International Law.
    Not these ‘acts’ from a company /corporation/business or godless government to continue to capture Tribal land and its people to (common) wealth of their lands, that is stealing under their acts and not discounting the holocost from the past for example the 50,000 tribal Indian children murdered by church and sate in Canada in the 1800-1900.They wren’t the only ones murdered by this same crown and throne.
    Spritual awakening is here so wake up………………….

  4. Mbitjana Elatjia Elder

    We are all tribes sovereign to somewhere on this planet.
    The tribes have now morphed into what it is today ruled globally by an oligarchy where power comes from a small number of tribal people. These people could be distinguished by royalty, wealth, family ties, education, corporate, or military control.
    The spiritual part is still with the tribes but distorted by this oligarchy well known to the tribes as evil.
    It is our time now, we are about to ‘man the guns’ now with spiritual understanding and peaceful means from written historical evidence of the rape and murder of the sovereign tribes on a global scale by this oligarchy, its all going to come crashing down and we have known about this for some time. All these crimes against humanity for the sake of material wealth and power. How sad because when you look at it we are all the human race on a home we call earth flying through space at 600km/s and this is what some people are doing to others.

    Elatjia Sovereign Tribal Elder

  5. Hello Elder,

    Can you tell me of a transparent forum of global tribes with treaties such as what you and Mark describe?

    You mention the Canadian genocide. Are you connected to Kevin Annett’s common law court? Is this an example of what you mean?

  6. Mbitjana Elatjia Elder

    Hello John,

    I am not connected in any way to kevin Annett or his court, but after googling him I as an Elder hope he can bring to the global community these horrors and atrocities done to these tribal people who didn’t deserve this treatment that was experienced by them and their families. Blatant disregard for human life. We as a tribe knew about these atrocities and re-cognised by what happened to our ancestors, the rape, murder, theft, it all adds up tp hegemony and racial disharmony to innocent Tribal people with different colour skin that the british queen amongst other whites called ‘useless eaters’. Well there is a Tribal community on this earth who used to eat people like this queen.
    As an Sovereign Tribal Elder in the Elatjia Tribe of the Arrente Nation, we are quietly going about our business as a Tribe and Re-Affirming our Sovereignty and Re-Claiming our dominion of the lands we are Tribal to and By Re-Convening our Tribal Elders (Parliament) meeting as if we have had a long break from it and Treaty with other Tribal people who are sovereign on this Continent until we as a Tribal Arrente nation Will Treaty with the Pitantjatjara, Yankujatjara, Nanatjara, Walpiri and so on until all or most all Tribal Nations on this Continent have a reciprocal Treaty with respect to each Tribal Law. From there we will Treaty Globally (we already have some) with other Tribes until a majority of the Tribes have a treaty including the tribes of Russia,China, iran, Iraq, North and South Korea the list goes on and Tribes who have these treaties and now with re-cognition become our trading partners and our allies. We can only accomplish this with peace and the Spirit of Sovereignty through ceremony and with Honor. We are all Sovereign to somewhere on the planet, find your Sovereign place John with honor and we could treaty with you and your Tribe and you will also be a trading partner and have an alliance with those who have a Treaty.
    I hope you can find it within your being where you live, to continue to have a peaceful existence.

    Elatjia Sovereign Tribal Elder.

  7. Hello again Elder,

    I admit my ignorance of central desert business but I guess I would assume that blood relations, skin relations, story lines and ceremony already is a framework of reciprocal law that binds Pitantjatjara, Yankujatjara, Nanatjara, Walpiri, every mob in Australia and indeed Aboriginal laws around the globe. What is the purpose of an inter-tribal document fashioned in the literary form of colonial law? I can understand the need for a written peace treaty with the colonial force to stop the genocide because the colonial society knows of no other kind of law, they cannot understand real law, but I cannot see how an inter-tribal document can in any way further empower pre-existing customary law. Even if such documents did constitute a new jurisdiction and courts, what power would they have beyond what Aboriginal people already have? The reduction of law to a literary document of itself disempowers the law.

    The creation of a new legal jurisdiction based on these treaty documents does not provide any tools or weapons whatsoever to either assert sovereignty or defend against colonial attack.

    My concern about the sovereign citizen common law ideology that is promoted by the OSTF and Kevin Annett and others is that a/ it is a distraction into meaningless activity that cannot bear fruit because it is just an illusion and b/ It teaches wrong information about the substance and nature of the colonial law and such misinformation is disempowering Aboriginal people by making them ignorant of white law and the possibilities of defense from it when it attacks, as it does every day in the courts, prisons and police beats.

    Aboriginal people are being told lies about a variety of things including the meaning of the word Aboriginal, the Pacific Islander protection Act, the Act of Settlement, that common law overrides colonial legislation at the root of colonial law, that legislation cannot be repealed and their is a big trust account somewhere that our strawman can access by giving power of attorney to our real man, that the U.S. Uniform commercial code (UCC) is the key to undoing colonial legislation and a range of other lies and misinformation.

    This is how some white Australian common law sovereign citizens see this country – – can you really see Pitantjatjara, Yankujatjara, Nanatjara and Walpiri fitting into this?

    Kevin Annett’s home-made court is totally powerless, it is an illusion that manifests only in the minds of those that believe the illusion and buy his videos. Apart from that, Annett claims that Aboriginal/Native law and culture has been totally destroyed and Aboriginal sovereignty is the same as all the white sovereign citizens and based on white notions of common law. Furthermore Annett’s court is totally insensitive to Aboriginal law in that Annett represents the deceased without permission of many families and sometimes in direct violation of instructions from families. He is grand-standing on Aboriginal grief. All those who speak of genocide are not necessarily allies.

    Annett’s court, the whole US sovereign citizen movement (that was begun by KKK and neo-patriots) and the notion of “original sovereignty” promoted by the OSTF is all based on a fictional law that has no base in reality in either Aboriginal customary law or colonial written law including international law. It is a con job.

    Some other things about common law sovereign citizenship and Aboriginal business that you may find interesting –

    Kevin Annett “Elder, elder, whose got the elder”

    “Crazy and confused, con job or cult” A US perspective,
    an excerpt – ““It is clear that these American right wing sovereign citizenship “Common Law Groups” would never recognize Aboriginal People because they already assume that according to their Sovereign Citizenship they have all jurisdiction they need over our lands already. We need to be aware of this… “

    You do not need this American ideology if you are reinvigorating your own law. This American ideology was designed by the KKK to confuse and disrupt the US federal government, it will not help you in your dealings with white law either.



    I do have relationships with the Sovereign law of the country on which I live and in the past this has included twenty years as a treaty member of Bejam Denis Walker’s Oodgeroo treaty circles. However this has not lead to a peaceful existence but rather a sharing of the burden and pain that all aboriginal people suffer. I would be suspicious of any treaty that offered a peaceful existence for white people, this would be an escapist fantasy to appease white egos, and there are enough of them already.

  8. Mark McMurtrie

    Seems like you are the one with nothing to offer JT…

  9. Mark McMurtrie

    Lets all just sit on our hands and cry like skirts eh ? EXACTLY what do you propose them JT ? You are one of those people who pulls the wheels off a car and then think you are a prophet when you tell people it can’t be driven.

  10. Hello Mark,

    No I am no prophet. I would just rather walk than get into a car with no wheels. And it was not me who took your wheels either.

    I wonder if you can refute what I have said about the PIPA or the US common law sovereign citizen movement or even the act of recognition?

    What I propose exactly is an honest intelligent critical analysis of everything including the act of recognition and your own common law movement. What I have to offer is my own analysis and the hope of an intelligent conversation. Also, if you read my article you will notice that I propose a no jurisdiction defence or double jeopardy sentencing case be argued up to the high court using the act of recognition to overturn the high court’s blanket extinguishment of customary law.

  11. Mbitjana Elatjia Elder

    The Federal Governments “Act of Recognition” and Aboriginal customary law.
    What the high court says has been extinguished, legislation now says is continuing. It is not the Australian constitution, with or without its proposed amendments, that extinguishes Aboriginal

  12. Mbitjana Elatjia Elder

    Hello again John,

    You can call me by my Arrente Skin name ‘Mbitjana (silent M).
    You do have way of explaining things that are re-presented by/from a society (not a tribe) of producing barriers (with loopholes) and inuendo that doesn’t lead to a transparent forum as you first asked about, which I believed I explained to you in my last post.
    The Treatys between tribes are not a legal jursdiction. They are a record of Treaty between the tribes not any other entity (governments).
    There will be Tribal aspects by fire to these Treatys under full Ceremonial Tribal Law duties world wide. Representatives of our Tribe has been invited to Ceremonially Treaty with the Navaho, Cheyenne and a host of others including the Korean Tribes North and South because they Re-cognise our Elatjia Tribe to be the true Sovereigns domicile on the Northern Territory of Central Australia.
    One must understand that not all humankind has evolved equally in terms of spiritual understanding and a common respect for each other, therefore Sovereignty would be the only means of a trans-parent forum necessary for talks between the tribes under a re-ciprocal treaty having the understanding re-cognition acceptance of each tribes tribal law which has been honed to perfection over aeons of what you call time to what it is now, never changed never will only the Altjerre can change it.
    After re-convening our Elders meetings (our parliament) both male and female our tribe on the 26 January 2013 CE by Proclamation, Re-affirmed our Sovereignty because we never lost it and we re-claimed the dominion of our tribal lands here in the NT (not anywhere else in Australia).
    As for the rec-cognition of our Elatjia Tribe of the Arrente Nation, we have Absolute Autonomous Autocthonus Authority and Autocthony being our holy/spirtual mandate which is our Sovereign status.
    One of our Tribal women is a federal minister in the NT electrorate who help run the NT with four other Tribal MLA entities from other tribes elsewhere from the NT.
    A week after we made the Proclamation, I was at our oustation where I live on our Tribal Sovereign land, saw two individuals in dark overalls on a hot day walking up our 2km dirt driveway, they were about halfway and looked out of place.
    I got on my horse and met them and noticed they were the sworn NT peace officers (police). I noticed they were un-armed and had left their police vehicle at our gate which was open and must have noticed our SOVEREIGN sign there all in BIG RED LETTERS.
    I thanked them for coming onto Sovereign land unarmed, one of them said“We understand”, and went on to small talk about some fires on land if we needed any help with them.
    Two weeks later which could be a co-incidence, I was traveling on roads built by foreigners on our land and I saw a traffic patrol police car coming toward me and flashed his blue lights indicating for me to stop. He turned round parked behind us and when he re-cognised who I was he took his hands off the car stepped back with both palms facing down he said. “Could you please slow down, I clocked you doing 135kmph and there has been too many deaths on this road.” I replied. “Yes thats because you mob been chasing them and I won’t take my eyes off the road to look at the speedo because everything changes in seconds it’ll be unsafe to take my eyes off the road.” These are remote area bitumen roads on our land. Anyway he mumbled something about keeping my speed down and left but not in a huff. The two other people in the car with me looked at me with their jaws hanging down.
    There are more I could relate here but I won’t. But recognition is what is required and I believe we have that here on tribal land.
    So I hope I could give you an insight to what I believe SOVEREIGNTY is the way to go and in saying that, just because someone is born here and his DNA comes from Europe doesn’t mean he is sovereign to here, he is not he can only Treaty with the Sovereign Tribal people for which land he occupies and come under their Tribal Law and with Honor.


    PS I already know all about Albert Pike and the KLU KLUX KLAN and the NWG/NWO, amongst other things remedies to get out of the system.

  13. Hello Mbitjana,

    The treaty arrangement you describe sounds more like a government or a network of sovereign governments rather than a “public transparent forum” to hear the “matter of sovereignty” (Marks words). And to repeat my earlier point, if it did call a forum to determine matters of sovereignty, what power would it have to enforce its findings? And this is where my concern about the US sovereign citizen common law movement comes in, for it is an ideology that teaches that such tribunals can enforce their findings by way of false notions of common law and the clever manipulation of documents to neutralise parliamentary legislation. The problem is it is not true.

    It seems to me that the recognition and respect from the police that you describe does not come from any documents you have signed or any sovereign citizen style common law. It is because of your spiritual and political relationship with your land and your people that some cops are able to identify and respond to with common sense. Having politicians amongst your community probably helped too.

    I am heartened by what you say of your people’s proud embrace of your own sovereignty on your own land and I am sure those who sign up to the OSTF do so with the strongest intentions. However I urge you to examine the claims of the OSTF more closely to determine if it is speaking the truth in regard to matters such as the Pacific Island protection Act, a universal common law that can be appealed to, the meaning of the word Aboriginal, the meaning of the Aboriginal flag and more recently the meaning of the “R” in recognition. I suggest to you that these things are not real.

    please consider – note the term used “original citizen” in relation to the recent attempt to extinguish the word Aboriginal

  14. Mitjana Elatjia Elder

    Hello John,
    We were always Sovereign to this Continent before the British and we still are, when the British brought their divide and conquer mentality by using method known as the doctrine of discovery. We the Sovereign Tribal Nations of Australia were cheated, lied to, raped, murdered, pillaged …….you know the rest and its still happening today in many different ways. Genocide and Ethnic cleansing of all tribes globally by godless governments bent in assimilating Tribes (divide and conquer) to bring in a one world government under a new world order to destroy the middle class so the lower class can be slaves to them (heirarchal oligarchy) and there is no honor in this whatsoever.
    The Tribes globally as First Nation peoples have been interacting on a large scale amongst ourselves to recognise each others laws to re-affirm their Sovereignty with honour because we never lost it and reclaim dominion over their tribal lands and to reconvene elders councils. Those who Treaty between each tribe has nothing to do with belligerent, fraudulent, hegemonous murderous governments.
    The world governments are a lie, fraud and not Sovereign Tribes but a group of rich people of elite network to control the earths inhabitants in a one world goverment.
    Our tribe would rather speak our own tribal language, build our own tribal houses (which we are doing) on our own tribal land, grow our own tribal food be self sufficient using alternative energy sources treaty with our neighbours (NOT GOVERMENTS) and they will become our trading partners and our allies. A Treaty could be in a form of song a dance a movement a piece of paper it only matters that the piece of paper is a record of Treaty for white eyes to see how many nations of tribes globally have treatied with each other (and there will be a lot) for white eyes historical records.
    We don’t need anyone or any entity overlording us when we have our tribal elders making decisions for the tribes. That would be an act of war against our tribe and we may have to call in our allies to help defend our tribe.


  15. adrian botting

    Well, I”ll Be fucked! Never knew how the got away with it!

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