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.
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.