A few considerations arising from Native Title

“The redoubtable historian, Prof. Henry Reynolds, set the cat amongst the pigeons by noting that the Australian High Court had not dealt with the issue of sovereignty when it dealt with the associated issue of land rights. He stated that “the High Court’s decision to recognise prior rights of property but not sovereignty lines Australian law up with the international lawyers writing at the high noon of imperialism”. This decision has therefore left intact the traditional view that, when the British annexed parts of the Australian continent in 1788, 1824, 1829 and 1879, the Crown acquired sovereignty over the land; and that sovereignty is indivisible.

The professor argues instead that, under international law, sovereignty is a ‘collection of powers’, often ‘separated one from another’; that British colonial arrangements displayed a division of sovereignty, ranging from spheres of influence, to protectorates, to outright colonial possession; and that both the USA and Canada have accepted that their indigenous peoples have residual rights of sovereignty, carried over from pre-colonial days; and that such rights can be extinguished by the state, but only by a ‘clear and plain intention to do so’.

It was also British colonial policy to recognise customary or traditional law, where established by usage, and where not inconsistent with British concepts of justice.

I also note that the High Court ignored the issue of sea rights under native title.

So, is there some doubt about sovereignty in Australia? Sovereignty to the Crown by occupation on the one hand, and residual sovereignty to Aborigines by prior right on the other?”

(‘Hidden Footprints of Unity,’ from which the above extracts were drawn, was published in 2004. The legal position may have been altered since then. I conclude this post by quoting the following extracts from the book:

“Was it not St.Paul who said, ‘We wrestle … against spiritual wickedness in high places’?”

“For some inexplicable reason, I keep recalling Arnold Toynbee’s ‘No annihilation without representation,’ whenever extinguishment of Aboriginal native title is mentioned.”)

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