I have recently been sent a letter from one of our people caught up in a Native Title claim and who is trying to understand if there are any benefits that result from the Native Title process. She asked me to interpret the attached letter [attached below] from the Commonwealth Attorney-General’s Native Title Unit and for me to give my opinion as to the truth of the AGs position, which is crystallised as: Mr Sullivan advised that the Mabo v Queensland (No 2) 1992 175 CLR 1 (Mabo) decision settled the question of the exercise of sovereignty over Indigenous Australians by the Crown in right if the Queensland government. I can advise that the decision also settled the same question in respect of the Crown in right of the Commonwealth. From my understanding of history and the colonial law I can categorically say that the Attorney-General’s position is wrong and is deliberately misleading the Native Title claimant.
The High Court Mabo v Queensland (No 2) failed to settle the matter of contested sovereignties on the Australian continent, but merely stated that sovereignty was an issue that could not be dealt with in the municipal (domestic) courts [at para 31]. This is because to do so would negate the validity of the High Court itself, since its very existence depends on the body of colonial law imported from Britain.
First Nations and Peoples’ sovereignty has never been ceded. It is not for an occupying colonial power to shield itself from contested sovereignty by hiding behind the Act of State doctrine and then claiming its sovereignty cannot be challenged, when First Nations’ sovereignty is pre-existing and continuing, holding the oldest Law and cultures on earth.
Clearly, the courts of the invader society either have no legal will to recognise the pre-existing sovereign States of settled native laws that pre-existed prior to the coming of the Bible and the Christian Doctrine of Discovery. The American case McIntosh which established the Doctrine of Act of State is solely for the purpose of ensuring and maintaining the illegitimacy and assumed authority by the invaders themselves. But these same judges, who claim an association with God through the Bible, ignore the teaching of inherited land ownership as demarcated through boundary stones.
When we look at this we can only conclude the inadequacies of the contemporary judicial system to adjudicate without prejudice, but as stated above on the issue of Aboriginal sovereignty within Australia, the High Court said in Mabo that the issue of sovereignty is not justiciable within the municipal courts. This decision separates this unresolved question and does not kill off the question in its entirety at all. The High Court of Australia can only deal the issues of the invader State. Sovereignty is ours to assert and the domestic courts in Australia cannot deal with nor interfere with our exercise of our sovereign rights.
A closer look at Australia’s claim to be a legitimate government reveals an intriguing web of deceit. From the outset Britain invaded our lands and territories, but over time developed spin to reassure the world that the government was legitimate.
Recently uncovered correspondence and despatches between England and the official authorities and non-official personnel within the colony of New South Wales clearly demonstrate that Australia goes from one denial and distortions of the truth to another, in order to attempt to create a semblance of legitimacy.
The historical communiques and despatches show that many of the Australian governors appointed by Britain had transgressed their powers as per their terms of reference as governors of the colony [commission].
Presently Australian courts inform us that all the laws of England came with the invaders, euphemistically called the ‘settlers’, but this is not true. The laws that governed the colony of NSW from its inception and for 35 years thereafter were ones of absolute confusion and frustration. It was not until Lachlan Macquarie became governor of NSW and he brought with him two brothers who were themselves trained in England as attorneys that the illegalities operating in the colony were exposed.
These two lawyers, Ellis Bent in particular, communicated with England expressing concern about the legalities of the court system that had been introduced in the colony and the power of the governor to issue proclamations and other orders, as the governor without any restraint or checks and balances.
Originally much of the discontent centred around trade and taxes. Documents reveal that Governor Macquarie ruled vigorously to ensure stability and order within the colony and in doing so his authority was questioned by major colonial figures, such as the first Deputy Judge Advocate and Jeremy Bentham, who on two occasions, 2 November and 18 December 1802, told Lord Pelham that he was critical of the experiment of penal colonisation and spoke of the illegalities which characterised the administrative system, because of the oppression of British subjects (the convicts and free ‘settlers’) who he said were denied all the rights of the Magna Carta, the Petition of Rights, the Habeas Corpus Act and the Bill of Rights. Further, Bentham questioned the validity of governors’ proclamations in Australia.
Having made these criticisms he was also careful to say that while denying their legality, they were expedient. This can be no justification for tyrannical rule that set up an illegal regime and an oppressive State.
The increasing concern in Britain about the autocratic powers exercised by the governor revealed that what Macquarie had done was ultra vires (outside the law). Other senior officials in England also expressed further concern some about the application of English law, particularly as it related to the colony of NSW.
In fact it is clearly not true that civil and criminal law came with the colonialists at the start because Governor Phillip merely came with a Charter of Justice. Up until 1811 the Charter of Justice had never been amended and so the questions and confusion reigned in relation to the nature of the judicial system that was operating in the colony of NSW in those first 35 years. There were three levels of the justice system that were uncertain. The only certainty that existed was the Admiralty Court relating to military law. The problem, however, was that this court only applied to members of the military and those in uniform. After this was realised Governor Macquarie began to appoint some of the British subjects present in the colony of NSW to be magistrates in different regions. This included in some cases ex-convicts, who, prior to Macquarie's governorship, had been part of a corrupt and lawless society after Captain Bligh had earlier been removed from his office as governor of NSW. This had led to military personnel and their friends taking up large parcels of land without authority. This illegal action continues to haunt Australia today as these early families continue to benefit from the proceeds of crime.
On the question of enforcing various governors' proclamations
Correspondence and communiques between Britain and Australia reveal that the English parliament was the only authority that could validate the laws of the governor. In fact much of the correspondence related to the powers of the governors to issue proclamations. In particular J. H Bent, Deputy-Judge-Advocate, wrote to Lachlan Macquarie on 2 October 1815 with respect to the validity of governors' orders. Judge Bent, who had come to New South Wales with Lachlan Macquarie, wrote to Lord Bathurst:
I am required to admit that to be legal and founded on due authority which I know to be otherwise and to acknowledge that your Excellency's will, expressed by proclamation, by what is termed a government orders, or a government notice, has the force and validity of law, a proposition so startling that I cannot conceive any person in England, much less any lawyer, could have the slightest notion that it would be maintain even in argument, far otherwise that it would be attempted to be carried out to its fullest extent in practice.
In effect Judge Bent had expressed an admission against interest when writing to Lord Bathurst since he explained that he had found in the Governor’s orders much that appeared to him to be 'directly adverse to the laws of England.'
In 1936 A.C. V. Melbourne wrote in Early Constitutional Development of Australia regarding Bent giving legal counsel to Lord Bathurst:
He [Lord Bathurst] added that his [Governor Macquarie] sense of duty had forbidden him to give legal form to regulations which seemed to be illegal, nor would he admit the existence of any local necessity which seemed to justify departure from the law.
Then Judge Bent later confided in a letter to Lord Bathurst dated 1 July 1815:
It never could be intended that so vast a power should be placed in the hands of any one man without the smallest provisions against its abuse.
Judge Bent then added in the same letter:
… that it was a power which set the governor of New South Wales above the legislature of the United Kingdom, which resolved the rule of action in the colony into the mere will of the governor, a will not subject to any previous advice or control.
Evidence shows that Lachlan Macquarie's autocratic and tyrannical rule was of enormous concern. A. C. V. Melbourne in Early Constitutional Development of Australia at page 33 observed that:
It has been observed that Macquarie was rescued from a difficult position when the Secretary of State decided to recall the brothers [Ellis Bent-Deputy-Judge-Advocate and J. H. Bent – judge]
On the departure of the Bent brothers Baron Field was appointed judge in 1816; however, he also had difficulty in admitting the illegality of Macquarie's proclamations, so much so that Field suggested that the solicitor for the Crown in New South Wales should be warned not to proceed in legal suits. Baron Field said:
The defences to which will probably involve legality of the imposition of duties in this colony without an act of Parliament.
Field's concern in the correspondence suggested an anxiety to prevent public discussion on the question of legalities and he quoted various authorities, which had arisen as a result of the rebellion in the American colonies. In one quote he said in relation to proclamations regarding duties and taxes:
The position was more difficult and more objectionable in New South Wales. The American colonies had rebelled, because they had been taxed by Parliament; New South Wales was being taxed by the King alone.
In relation to the legalisation of the Governor's powers and authority it was necessary to determine the terms of his Instructions when appointed, because it appears from the records that the English authorities were increasingly concerned about the legal ties and connection to the land known at that time to be New South Wales. In this regard the questions that were becoming very evident were the powers to govern on these lands, because as A.C. V. Melbourne wrote at page 34:
The Governor as a legislator
In the event of negative answers being given to these questions (ie the power of the Governor to make proclamations) counsel was asked to suggest a method by which existing and future duties could be legalised (This included all other proclamations issued by governors). The opinions given on this occasion are important. Counsel, having explained that New South Wales had been acquired by occupation, and not by conquest or by cession, went on to say:
We apprehend His Majesty by his Royal Prerogative has not the right either by himself or through the medium of his Governor to make laws for levying of taxes in such colonies; such taxes can only, under the present circumstances of that colony, be imposed by the Parliament of the United Kingdom. Even if the power of imposing such taxes were in the King, or in those to whom he should delegate his power, the imposition of them by the Governor (in this case) was not warranted because his Commission did not invest him with any such authority. If, however, His Majesty had a right by virtue of his prerogative to impose taxes in a colony of this sort, the defect in the present imposition might speedily have been remedied by an Order of His Majesty in Council and future taxes (when thought advisable) might be imposed by a similar order. But we think, as we might have before observed, that the only mode of legalising the taxes in this colony is by an act of the united Parliament and that future taxes can only be imposed by the same authority, as the law now stands, the colony have no representative assembly of its own by which such taxes can be imposed.
Since these laws and proclamations were ultra vires, the question arises for us as Aboriginal people – did the British Parliament legalise proclamations of Martial Law within the colony, which gave the military and the civil community the right to slaughter with impunity Aboriginal Peoples across this country?
The Colonial Laws Validation Act 1865 does not legitimise any of the illegal proclamations by the governors during the early colonial period. This Act itself only validates laws passed in colonial houses of legislatures.
It is now very clear why former NSW Premier Kristina Keneally put an indemnity clause in the NSW Constitution Act 1902 as amended against any wrongdoings against the Aboriginal people of NSW, while at the same time recognising us in the NSW Constitution:
NSW Constitution Act 1902
… As at 27 May 2014
2 Recognition of Aboriginal people
(1)
Parliament, on behalf of the people of New South Wales, acknowledges and
honours the Aboriginal people as the State's first people and nations.
(2) Parliament, on behalf of the people of New South Wales, recognises that
Aboriginal people, as the traditional custodians and occupants of the land in
New South Wales:
(a)
have a spiritual, social, cultural and economic relationship with their
traditional lands and waters, and
(b) have made and continue to make a unique and lasting contribution to the
identity of the State.
(3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.
This flies in the face of what the Commonwealth Attorney-General’s department Native Title Unit said in the letter above dated 17 February 2016. Clearly there are deep issues afoot. Denial can only last so long as truth has a life of its own.
Ghillar Michael Anderson
Convenor of the Sovereign Union of First Nations and Peoples in Australia, Head of State of the Euahlayi Republic and co-founder of the 1972 Aboriginal Embassy
ghillar29@gmail.com Phone 0499 080 660
Sovereign Union of First Nations and Peoples in Australia
Asserting Australia's First Nations Sovereignty into Governance
