New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 11 April 2015
SOVEREIGNTY AND THE ABORIGINAL
BY HENRY REYNOLDS*
Sovereignty has been a contentious issue in Australia for the last 20 years. Aborigines and Torres Strait Islanders have questioned the status quo and have pursued the matter in the courts, the corridors of power and the streets. And while the contemporaneous campaign for land rights has achieved considerable success the attempt to question the basis of British/colonial sovereignty has been vigorously rebuffed by both politicians and jurists who argue that any concession to the indigenous position would undermine the state and divide the nation.
Jurists have been more emphatic in their defence of the status quo than have the politicians and commentators. Their reasoning was forcefully outlined in the first major case concerning sovereignty, Coe v the Commonwealth, which was heard by the High Court in 1979.'
Coe was certainly ambitious. In his statement of claim he declared:
From time immemorial to 1770, the Aboriginal Nation has enjoyed exclusive sovereignty over the whole of the continent now known as Australia. The Aboriginal people have had from time immemorial a complex social, religious, cultural and legal system under which individuals and tribes had proprietary and/or possessory rights, privileges, interests, and claims to particular areas of land...Clans, tribes and groups of Aboriginal people travelled widely over the said continent now known as Australia, developing a system of interlocking rights and responsibilities, making contact with other tribes and larger groups of Aboriginal people, thus forming the sovereign Aboriginal nation. The whole of the said continent now known as Australia was held by the said Aboriginal nation from time immemorial for the use and benefits of the said nation.2
Coe then went on to claim that Britain had illegally claimed this continent over which the Aboriginal nation held sovereignty and asserted:
On or about the twenty-sixth day in April 1770, Captain James Cook RN at Kurnell wrongfully proclaimed sovereignty and dominion over the east coast of the continent now known as Australia for and on behalf of King George
Henry Reynolds is one of Australia's most influential and widely read historians. His publications include The Other Side of the Frontier: Aboriginal resistance to the European invasion of Australia (1982); Frontier: Aborigines, settlers and land (1987); Fate of a Free People (1995); and Aboriginal Sovereignty: reflections on race, state and nation (1996).
 HCA 68; (1979) 53 ALJR 403.
2 Ibid, 404.
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III...on or about the 26th day of January, 1788 Captain Arthur Phillip RN wrongfully claimed possession and occupation for the said King George III...of that area of land extending from Cape York to the southern coast of Tasmania and embracing all the land inland from the Pacific Ocean to the west as far as the 135th longitude...3
The High Court bench unanimously rejected Coe's sweeping propositions. The leading judgment was given by Mr Justice Gibbs who said, in part:
To suggest either that the legal foundation of the Commonwealth is insecure or that the powers of Parliament are more limited than is provided in the Constitution, or that there is an Aboriginal nation which has sovereignty over Australia can't be supported. In fact we were told in argument it is intended to claim there is an Aboriginal nation which has sovereignty over its own people, notwithstanding that they remain citizens of the Commonwealth...The Aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty may be exercised. If such organs existed they would have no power except such as the laws of the Commonwealth or of the state or territory might confer upon them. Contention that there is in Australia an Aboriginal nation exercising sovereignty even of a limited kind is quite impossible in law to maintain.'
Gibbs considered the situation of Indians in the United States as originally defined by Chief Justice Marshall in the 1831 case Cherokee Nation v State of Georgia' but argued that their status as domestic dependent nations had no relevance to Australia.
A similar decision was handed down by the High Court in 1994 in the case of Walker v New South Wales. The plaintiff, activist Dennis Walker, appealed against a criminal charge on the grounds that the Australian parliaments lacked the power to legislate in relation to Aborigines without their request and consent. Chief Justice Mason dismissed the proposition that "sovereignty resided in the Aboriginal people". The New South Wales parliament had power to make laws for the peace, welfare and good government of the state "in all cases whatsoever". Therefore the proposition that state laws did not apply to Aborigines or to "particular conduct occurring within the State" had to be rejected.'
The High Court dealt with sovereignty in the now famous Mabo case of 1992. While rejecting by a 6 to 1 majority the doctrine of terra nullius in relation to property rights the bench decisively confirmed the traditional interpretation of the acquisition of sovereignty. Mr Justice Dawson was the
4 Ibid, 408.
5 30 (US)  USSC 6; (5 Pet) 1 (1831).
6 Walker v New South Wales (1994) 126 ALR 321.
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one dissenting voice in the case. But he spoke for all his colleagues when addressing the question of sovereignty, remarking that:
The annexation of the Murray Islands is not now questioned. It was an act of state by which the Crown in right of the Colony of Queensland exerted sovereignty over the islands. Whatever the justification for the acquisition of territory by this means (and the sentiments of the nineteenth century by no means coincide with current thought), there can be no doubt that it was, and remains legally effective.'
Australian courts have taken refuge in the established doctrine that the Crown, while acting outside Britain itself, exercises prerogative powers which cannot be questioned by municipal courts. In the 1975 High Court case, New South Wales v the Commonwealth, Mr Justice Gibbs declared that the acquisition of territory by a sovereign state was "an act of state which cannot be challenged, controlled or interfered with by the Courts of that State"!
This is, indeed, long-established doctrine. It also provides Australian judges with an excuse for not dealing with fundamental problems relating to sovereignty. The answer to the question of how Britain acquired sovereignty over Australia remains as it has always been. The continent became British by settlement, there being no treaties and no acceptance of the idea of conquest. But the old story rests on two quite distinct foundations:
Both these ideas demand re-examination.
The powerful and portentous idea that the Aborigines had no sovereignty was enunciated by Mr Justice Burton in the New South Wales Supreme Court in the 1836 case Rex v Murrell. He argued:
although it might be granted that on first taking possession of the Colony, the Aborigines were entitled to be recognized as free and independent, yet they were not in such a position with regard to strength to be considered free and independent tribes. They had no sovereignty.'
7 Mabo v Queensland (1992) 107 ALR 121.
a (1975) 135 CLR 388.
9 Supreme Court Papers, 5/1161, NSW Archives, 24/48.
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Burton's case notes indicate that he spent considerable time dealing with, and dismissing, the idea of Aboriginal sovereignty. He wrote:
Yet I deny these tribes are entitled to be considered as so many Sovereign or Independent tribes in as much as that depends not only upon their independence of any foreign control but having also attained to such a situation in point of numbers and civilization as a nation and to such a settled form of government and such settled laws that civilized Nations may and are bound to know and respect them.10
Burton's view of Aboriginal society took hold in the courts and received the imprimatur of the Privy Council in 1889. In Cooper v Stuart, Lord Watson declared that in 1788 Australia was "a tract of territory practically unoccupied without settled inhabitants or settled law"."
Lord Watson also commented on the nature of British sovereignty in a situation like Australia where a colony had been acquired by settlement rather than by conquest or cession. In such circumstances there could be "only one sovereign, namely the King of England, and only one law, namely English law".'
Australian jurists have relinquished one aspect of the traditional story — that there was neither law nor government in Australia when the British arrived although the full consequences of the change have not become apparent. In 1971 Mr Justice Blackburn rejected the Yolngu people's claim on their traditional land in the so-called Gove Land Rights case in the Northern Territory Supreme Court. But he concluded that the evidence presented showed:
a subtle and elaborate system highly adapted to the country in which the people lived their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence...the system of law was recognized as obligatory upon them by members of a community."
In 1979 Mr Justice Murphy observed in Coe v the Commonwealth that there was a wealth of historical evidence indicating that the Aborigines "had a complex social and political organization" and that their laws were "settled and of great antiquity".14 In the Mabo case several members of the High Court acknowledged that Aboriginal laws and customs were "elaborate and
"  UKLawRpAC 7; (1889) 14 App Cas 286.
13 (1971) 17 FLR 267.
14 Coe v the Commonwealth, op cit n 1, 403.
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obligatory" while the boundaries of traditional land were "likely to be longstanding and defined".'
Enough has been cited to indicate that Australian courts have clearly rejected Lord Watson's assertion of 1889 that the continent was a place without settled inhabitants or settled law. That being so it has to be assumed that the indigenous tribes or nations held sovereignty over the country. What then happened to it in the absence of conquest or cession? We are back with the problem which confounded George Augustus Robinson, the notorious `protector' of the Tasmanian Aborigines, who in a letter to a friend in 1832 confessed he was at a loss "to conceive by what tenure we hold this country for it does not appear to be that we either hold it by right of conquest or right of purchase".16
Pursuit of that issue leads us back to the problem of sovereignty and to the twin questions of how and when Australia became British. The answer to them lies less in legal theory and more in the actual history of settlement and an assessment of when the colonial governments were in effective control of the territory claimed. There seems to be no doubt that the British government when it annexed Australia did actually acquire the external sovereignty. After all, no other foreign power challenged the external sovereignty of Britain over Australia but internally it was another matter all together. There was not just one sovereign but many sovereigns if you apply the views of Blackburn and Murphy to the problem — that is, there were many systems of law and there were many forms of government in Aboriginal Australia. The numbers exercising their laws and sovereignty declined progressively through the century. There was not one set of laws in Aboriginal Australia; there were many. But even more significant is the question: did Britain, or the colonial governments, actually achieve effective occupation of Australia? It was one thing to claim sovereignty; it was another thing to actually exercise it. Did the imperial and colonial governments exercise effective sovereignty over most of Australia in the nineteenth century? And the answer must surely be no.
This question of effective sovereignty was taken up by the most famous of the eighteenth century writers on international law — and the person most widely read in the nineteenth century — Emerich de Vattel in his book The Law of Nations, first published in 1758 and republished many times. He wrote that it was:
15 See the judgment of Deane and Gaudron, J.J., Mabo v
Queensland, op cit n 7,99-100.
16 Robinson to Whitcomb, 10 Aug. 1832, Robinson papers, 35, Mitchell Library, Sydney.
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questioned whether a nation can thus appropriate by the mere act of taking possession of lands which it does not really occupy and which are more extensive than it can inhabit or cultivate. It is not difficult to decide that such a claim would be absolutely contrary to natural laws.'
In the nineteenth century there were large areas of Australia that Europeans had never even seen. They had sent exploring expeditions across most the country but the areas of country actually seen were limited. There were many parts of the continent where no permanent European settlement had taken place. There were large areas of country that were not effectively mapped. Applying standards which Britain itself applied in other parts of the world, it was clear that British occupation of the whole of the continent was not fully effective during the nineteenth century.
Contemporaries realized this at the time. One was a senior colonial official, James Stevens; the other was Justice Cooper, who was Justice Burton's contemporary and the first judge in South Australia. Stephen's comments were made in a memorandum to his Minister, Lord Glenelg, when he was drawing up the Letters Patent for the settlement of South Australia in 1835. He was pondering on the problem of where he should draw the borders. He wrote:
how this is to be done in a terra incognita, I cannot imagine. How it can be done at all with any due regard to the rights of the present proprietors of the soil or rulers of the country.18
So although sovereignty had been claimed in 1824 over this territory, eleven years later Stephens was talking about the Aborigines being "the proprietors of the soil and the rulers of the country".
Similar comments were made by Cooper in a number of cases in South Australia in the early years of settlement. He was concerned about applying the law to people who had no knowledge of it — who were outside the control of European authority — tribes or nations who were outside British sovereignty. Cooper said of these people:
The doctrine that they are to be held and dealt with as British subjects, and, under no circumstances, to be tried or punished, except according to the ordinary forms of our law cannot be received without modification. It may be true, in its full extent, as regards those tribes with whom we have constant and peaceable intercourse — for whose subsistence we provide — who acquiesce in, and acknowledge a friendly relation with us — and who are making advance towards civilization. To our intercourse with these, the ordinary forms of our Constitution and laws may be beneficially and effectually applied. The extension to them of the full rights of British subjects may be practicable, and
17 E. de Vattel, The Law of Nations, (1758),
18 Stephens to Glenelg, Colonial Office Paper, Public Records Office, London, CO. 13/3.
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attended with no evil result. But it would be assuming too much to hold that the same maxims and principles must be applied without modification to distant tribes inhabiting a territory beyond the limits of our settlements with whom we have never communicated under friendly circumstances, whose language is equally unknown to us as ours is to them, and who betray in all their intercourse with Europeans, the most savage and brutal hostility — who have never acknowledged subjection to any power, and who, indeed, seem incapable of being subjected to authority or deterred from atrocious crimes, except by military force. Nor can it be doubted that circumstances may occur, in which, for the safety of the colonists, and for the prevention of plunder and bloodshed, it may be necessary to view such tribes, however savage and barbarous their manners, as a separate state or nation, not acknowledging, but acting independently of, and in opposition to, British interests and authority.°
The views of Stephen and Cooper suggest a different interpretation of the imposition of sovereignty, one more in touch with the actual history of colonization. At the beginning of settlement all the colonists could claim was to exercise sovereignty over those small areas they actually governed and where they could impose their laws. These areas grew progressively larger during the nineteenth century and early twentieth century. Beyond the zone of actual control were regions where British or colonial officials exercised authority some of the time and in some manner. Such areas could be termed 'protectorates' to use a name widely employed in other parts of the Empire. Farther away from areas under direct control, in regions where no European had settled — or had ever been — were parts of the continent where all the British could realistically claim was to have a 'sphere of influence' where no other power would be allowed to interfere and where Britain might have ambitions to impose sovereignty but nothing more. As the nineteenth century unfolded, as population grew and settlement expanded, the area of sovereign control expanded, impinging on the areas of protectorate which in turn impinged on the spheres of influence.
But one of the most interesting and intriguing questions about whether the Australian authorities had effective occupation of Australia was the persistence of frontier violence. Violence is important because one of the principal tests used to determine whether a European power was in effective occupation of colonial territory was whether it could impose its law —impose it in such a way that the Government could protect the indigenous people by that law, and where they did not have to use punitive expeditions or the gunboat to simply punish people collectively. This idea was authoritatively discussed in the classic 1928 text The Acquisition and Government of Backward Territory in International Law by M F Lindley. In discussing the question of when a colony had come under effective control,
19 The South Australian Register, 19 Sept. 1840.
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Lindley referred to what he termed the "personal safety of the natives". In the chapter of that title he wrote:
In the early stages of the government of backward territory the only method of bringing unruly tribes to reason and maintaining order in outlying parts of the territory may be by way of punitive military expeditions directed against the tribe or district as a whole without it being possible to distinguish between innocent and guilty individuals. But the requirement of effective occupation clearly involves the duty on the part of the acquiring state of taking steps to secure the administration and policing of the whole territory under its full sovereignty or protection so as to render it possible, within a reasonable time, to mete out punishment to the guilty individually.
The requirements of "effective occupation", Lindley argued, demanded the "existence in the territory of an authority capable of protecting the natives in their persons and property".20
If we apply that standard to Australia then, clearly, the governments —colonial, state and federal — were not in effective control until well into the twentieth century. Punitive expeditions which killed Aborigines disproportionately and indiscriminately, continued to operate until the 1920s. At Coniston in central Australia in 1928 a federal government police party shot down as many as 70 Aborigines — men, women and children — in revenge for the killing of one European and the wounding of another. An official inquiry determined that the actions of the police party were justified and no further action was taken.
Effective occupation — and sovereignty — were gradually extended over the Australian landmass. In those areas where Aborigines and Islanders still occupy their traditional lands and continue to exercise aspects of customary law sovereign control is still not comprehensive; the process of colonization is not complete. On that basis it must be assumed that remnant sovereignty has survived and should provide the basis for indigenous claims to exercise rights of self-government, to link their vestigial sovereignty with the developing international right to self-determination.
20 (1928), chapter xxxix.