‘Lost’ rule opens door to Indigenous sovereignty
Indigenous communities may be asking the Supreme Court to rule on the fundamental question of sovereignty following the discovery of a groundbreaking legal rule that overturns the belief that the court has no authority to decide.
Research by Olivia Barr of Melbourne Law School found that a 1935 rule of law meant there was an “open door” for the Supreme Court to intervene in Indigenous sovereignty issues.
The root of the problem dates back to the 1970s case of Coe v Commonwealth; In that case, four Supreme Court justices were split two to two on the procedural question of whether the court should allow a hearing on sovereignty.
Associate Professor Barr said the case did not go to trial because the vote was deadlocked and everyone accepted the outcome and the presumption that the Supreme Court did not have jurisdiction.
However, Assoc. Dr. In Tasmania v Victoria (1935), Barr uncovered a long-forgotten rule of law that divided court decisions do not constitute precedent.
“This means it is as if the Coe case had never happened, so it is clear that the Supreme Court will accept any case made regarding Aboriginal sovereignty,” he said.
Australia is the only Commonwealth country that has not signed a national treaty with its Indigenous peoples.
A treaty acknowledges the “sovereignty” of the original inhabitants, that is, their authority and power to decide how best to govern certain aspects of their lives.
The next practical step will be for Indigenous communities and leaders to decide whether a test scenario is a good idea and worth the risk.
Assoc. Prof. “This is high risk,” Barr said.
“This could lead to a major legislative change, it could lead to a major regulatory setback, or it could lead to the status quo.”
University of Melbourne vice-chancellor (Indigenous) Barry Judd said given the growing experience of racism following the Voice referendum, Indigenous leaders and organizations were likely to engage in private discussions about what this meant.
“I think it will be a time of deep reflection and evaluation about whether it is the right time to lift our heads or whether we can think about this for a longer period of time,” he said.
He said the research should be considered in the context of the Supreme Court’s 1992 Mabo decision, which recognized that terra nullius was a myth and that indigenous people had land rights.
“This investigation potentially gives the Australian legal system, through the Supreme Court, an opportunity to reconsider history and questions of truth that have been partially, but not fully, answered by Mabo.”
Professor Judd said this raises the issue of Australians taking responsibility for the historical lies and untruths we have experienced since 1788.
He said that the results of the research should not be feared, because if sovereignty exists, it will not change the world and the sky will not collapse.
“This would put Australia pretty much in line with contemporary societies that were part of the former British Empire,” he said.
Assoc. Dr. Barr said the Supreme Court’s recognition of Indigenous sovereignty would be a major change with potentially huge benefits and would lead to broader agreements.
“But if there is a ‘no’ or status quo result, then it will be devastating, like the Voice referendum result,” he said.
“So Aboriginal and Torres Strait Islander communities need to have conversations, because this is not without risk.”
Assoc. Dr. Barr’s research was published Thursday in the University of New South Wales Law Journal.
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