A political activist, Mr Anderson is the last survivor of the four young “Black Power” men who set up the Aboriginal Tent Embassy in Canberra in 1972. Of Euahlayi and Gumilaroi descent, he is the leader of the 3,000 Euahlayi whose lands straddle northwest NSW and southwest Qld.
Goodooga, northwest NSW, November 8th, 2011.
By Michael Anderson
It appears that the courts of NSW are standing firm on their consistent practice to exercise jurisdiction over Aboriginal people despite the amended 1872/75 Pacific Islanders Act.
While some judges understand the legal conundrum, the frustration is that some are no doubt asking themselves: what law does apply to Aboriginal people?
This question arose in a number of criminal cases in 1827 in South Australia, Victoria in 1836 and NSW in 1842. After the NSW case, the NSW Supreme Court judge John Walpole Willis commented that in his opinion jurisdiction over Aboriginal people must be made definite by an act of the British parliament.
In response, Governor George Gipps wrote to secretary of state, Lord Stanley, on January 24, 1842 informing him that despite decisions of the local supreme courts that Aborigines were amenable to the British law, he requested at the behest of Judge Willis that the Attorney and Solicitor General of England put this matter beyond doubt.
Unfortunately, Governor Gipps’ received no reply to his request. This allowed the courts to further entrench a legal uncertainty in the new and developing Australian colonial legal system.
I contend that this question was well and truly put beyond doubt when the British parliament passed the 1875 amendment to the 1872 Pacific Islanders Act, which clearly establishes at law that the parliament of England confirmed that Queen Victoria did NOT claim dominion or sovereignty over ‘Aboriginal people and their Places’, and thereby saved the expressed ‘Rights of the Tribes, their Rulers/Chiefs’.
All judges in this country now know the consequences of this and are standing firm. This creates a major problem because law is about absolutes, therefore it is incumbent upon all judges to uphold the law, not permit themselves to engage in adjudicating on ambiguities and to restrain themselves from engaging in social policies, which is the domain of the parliaments.
With the current development and stalemate I call upon the judges to apply section 78b of the Judicial Act before proceeding with any trials against Aboriginal people. That is, have this matter placed before the High Court so that all the Attorneys-Generals of the states, territories and federal governments can consider this problem they now face: a constitutional matter that must now be dealt with.
If this is not done then we will all know that given the Mabo Judgement No.2, the parliaments of this country and the High Court realize that the sovereignty of the Aboriginal people that was affirmed and recognized in the 1872-75 Pacific Islanders Act is real and they do not know what to do.
To stand their ground and try to ignore it will only serve to create further delay and frustrations. It will also complicate things that can and will cause much angst. Should Australian governments choose to adopt this as a course of action, then they must now ask themselves this very real question: How do we deal with the Aboriginal nations who have defined their boundary and now assert sovereign independence?
Given the terms of the Pacific Islanders Act 1875, it is now possible for the Aboriginal nations to establish their own local governance and call upon the people living within their territory to now pay them rent and rates. Moreover, they can claim and establish a new form of land tenure that suits their needs and those occupying these lands will have to comply. This will include all mining activities in and on their land.
The problem that the Australian governments will have is the ruling by the High Court of Australia that the question of sovereignty is NOT justiciable in the domestic courts. This means that the state, territory and federal governments cannot ask their respective high courts to rule against Aboriginal nations who assert sovereignty over and in their lands, water and airspace.
Unless the governments of this country want this to happen, then ignore us and try to solve this with your Uncle Toms and Aunt Marys. These people are show cases and have no meaning or purpose in the local communities. The people at the coal face of this dilemma now seek meaningful and lasting solutions.
We understand that if they so choose the government can use the military and police to forcefully suppress us and our rights, but such is the challenge that we now face. If we truly seek to be liberated from this tyrannical rule we have been subjected to all these years, then we must make the stand.
Too many of our people are dying in custody, killing themselves and being imprisoned for driving motor cars without a license. Our children are again being taken from us. The Northern Territory Intervention is nothing but martial law that robs our people’s lands from them and denies them the right to negotiate with mining companies to create their own independent wealth. Not to mention being absolutely contemptuous of the UN Declaration on the Rights of the world’s Indigenous Peoples.
The confrontation we now have is the confrontation Australian governments tried to hide and avert. It is real and they know that they must talk! The National Indigenous Congress is NOT our representative organization and cannot talk for us as a people across this Australian land mass.
The time has come for Australia to truly become liberated and free from England.
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Michael Anderson can be contacted at 02 68296355 landline, 04272 92 492 mobile, 02 68296375 fax, ngurampaa@bigpond.com.au
Comments
Join us at the next summit to fight for what is rightfully ours
this dialectic by michael anderson on our rights to our traditional lands is in reply to the government's false assertions that it is they who own the lands by right of conquest only. they do not, as michael and some other aborigines such as mark mcmurtrie, arthur and peta ridgeway, among others, who have legally acted upon this argument in the courts. any actual legal rights that the australian governments have by their own english/australian readings or understandings of their own law do not exist.
we on the other hand have ownership by right of at least 60 000 years of habitation and our human rights that is clearly recognised by the un declaration on the rights of the world's indigenous people. we most certainly do control the moral high-ground of this legal battle along with, we believe, the strict legal view that our traditional lands are truly ours.
this legal view is one of the strong supports that michael expounds within the parametres of the aboriginal summits that he initiated and that are still ongoing. it is my understanding that michael intends to go to the international court to seek a strict definition as to whether the australian governments have any real and binding sovereignty over the stolen lands and the traditional owners.
i fully support the position that calls for the much belated legal relief to our ills that have been forced upon us over the last 223 years.
justice must be ours but the fight still has a long way to go.
please support our struggles to reach the goal of what is rightfully ours. join us, if able, at the next summit to add your voice to our push for real sovereignty and not an ersatz assimilation.
fkj
ray jackson
president
indigenous social justice association
email isja01@internode.on.net
mobile 0450 651 063
landline 02 9318 0947
address 1303/200 pitt street waterloo 2017
We all look forward to the outcome, sooner rather than later
as there are snakes and ladders, so too are there counter discussion as to the veracity or otherwise of any relevant point. michael anderson's claims from the other day have been advised by patrick byrt who is with the university of south australia, so i understand, that michael is wrong in fact and has enclosed the relevant pacific islanders protection amendment act 1872 and 1875. also included is the english interpretations of the acts.
having twice read the attached document i must say that i am none the wiser. the terminology of 'pacific islands' seems to be quite easy to accept but the 'australian colonies' do not seem to be so defined. from what i can glean, the australian colonies were to be used for their courts acting on behalf of the english courts. being more of a 'bush lawyer' than those, such as michael, who were/are legally trained, i shall leave it to them.
all the arguments i have heard relate that we were/are under admiralty law rather than the british law courts.
i just do not understand the point that michael is making. maybe he is right or maybe patrick is right, or even worse, maybe their both right. the law, after all, has rightly been described as an ass!
i am sure, however, that we all look forward to the outcome, sooner rather than later. maybe our legal friends on this list will have an opinion.
pro bono, of course.
fkj
ray jackson
Hi Ray,
I've attached the Pacific Islanders Protection Act 1875 and the English legal scrutiny it justly bears does not support the claims made for it by Michael Anderson.
It does not in its own express terms apply to the Australasian Colonies of the time under the English Crown and within its alleged Dominion, and which extended to the territorial jurisdictions claimed to run on and over Aboriginal territories in the Australian Colonies, and nor does it apply in Australia today for application in Australia by the Australian Courts for the purpose that Michael claims it may operate.
The saving provision of Section 7 of the Pacific Islanders Protection Act 1875 for the rights of tribes and their persisting dominions and sovereignties did and could not have applied to the Aboriginal tribes in the Australian Colonies, and no matter how unjustly this failure was ignored by the enactment, because the Australian Colonies were not defined by the statute as coming within the definition of 'Islands of the Pacific' spelled out within the terms of the legislation.
To assert otherwise than the Act provides solely for the enduring benefit solely of the tribes of the Islands of the Pacific may be an Aboriginal act of sovereign rejection of the legislation.
But such an act of Aboriginal sovereign rejection cannot be and is not within the applicable jurisdiction created by that Act which is an express exercise of the jurisdiction of the same English Dominion that was then operating in the Australasian Colonies, and is not recognizable as such by the Australian Courts today,
The Act being relied upon by Michael asserts that its terms preserve the dominion and sovereignties of the tribes and chiefs of the Islands of the Pacific exclusive of the Australian Aboriginal peoples in the Australasian Colonies, including the Australian Colonies on Aboriginal territories and for that very reason it may not validly be called upon in the Australian Courts as a binding matter of English law today to uphold Aboriginal Dominion and Sovereignty.
It is simply bootstrapping to make this argument and an unsustainable contradiction to seek the Australian courts to hold that it is applicable in the Australian Courts by force of the Pacific Islanders Protection Act 1875.
The Aboriginal Dominion and Sovereignty that is being argued for needs to be asserted against the jurisdiction that it opposes and not within the actual bosom of that jurisdiction's own certain rejection of a recognizable Aboriginal territorial jurisdiction that continues by virtue of its own sovereign dominion today.
The Australian Courts are indeed constituted with an inherent bias against the possible validity within those courts of such an Aboriginal sovereign position by definition.
It is even more so in relation to any such position allegedly based on some external English law that is supposed to override that constituted jurisdiction which is self-evidently incompetent within that jurisdiction because by definition it is necessarily external to it.
I refer you to the express terms of the Act.
Kind regards,
Patrick Byrt
http://www.unisanet.unisa.edu.au/research/condon/theses/THESES.asp?THESE...
e-mail: Patrick_Byrt@clc.net.auitution
Join us in the Journey of Healing to remember the pain
of the Stolen Generations, their families and communities left
behind. Tell them how sorry we are. Ask our Government to sit
down and work out with the Stolen Generations how to repair
the damage done. Ask fellow Australians to join together to help
with healing for us all: visit: http://sajoh.auspics.org.au and
www.nsdc.org.au
If arrested or dragged into court charge them with kidnapping
There is NOTHING in ANY Law on planet Earth that deals with Origines, nor Digenous people, except their very own Tribal-Law.
The letters "Ab" in front of ANY word has the same result as the letters "In", they both mean NOT or NO!
Australian courts CAN rule against "Aborigines", because that's the perfect description of Aussies......they are NOT Origines.
If you are a Native of this land (and Aussies are NOT), and you find yourself being arrested or dragged into court, charge them with kidnapping ($75,000 per hour) of a Sovereign.
Register a CounterClaim, and place the Sherrif or policeman on the witness stand....then watch them squirm when they perjure themselves........careful however, you may cause a heart attack, as happened in the Lismore Courts.
A good place to start according to some are the 7Rs
By savigils
Self-determination is the key to the attainment of self-government and not misunderstanding, error of fact or the misinterpretation of law that the construction of a statute cannot bear.
In Australia, until a commonly accepted national Australian language replaces that colonial tongue from another country, power, nation and culture which rules the colonial law and national lore of Australia, all international and national matters of law will be conducted in the dominating glossary of legal English, that controlling tongue.
The statutory TERM the "Australasian Colonies" included within the amended 1872/75 Pacific Islanders Act then established a legislative definition all of the named colonies of New South Wales, Queensland, Victoria, South and Western Australia, Tasmania and New Zealand (of course at least two Pacific Islands), and which was extended by the 1875 amending Act to Fiji (an indisputable Pacific Island).
However, the 1872 Kidnapping Act as extended by the 1875 amending Act distinguishes between those colonies as being within the Dominion of the Crown and the Islands of the Pacific and places within them which are excluded from being within the "Australasian Colonies".
It is for this reason that the term "places" does not and cannot refer to the places and locations of each of the tribes of each of those colonies.
There is a national and international need to talk about reasonable solutions.
A good place to start according to some are the 7Rs:
Recognition
Respect
Rights
Reform
Reciprocity
Responsibility
Reparations
Recognition of: "the hopes, aspirations and spirit of Indigenous people to live in this country/our country in an more equitable society".
Respect for the two common community concepts/strategies for change in outcomes for Indigenous people we know as Reconciliation and Human Rights need to work in alignment with each other and not in antagonism or misalignment
Rights are a strong legal focus on striving for Human Rights and social justice
Reform Reconciliation issues like flag raising, putting up signs and memorial plaques, talking and educating non-Aboriginal communities about Indigenous people and their issues, so that they include direct Human Rights pro-action
Reciprocity partnerships with local Aboriginal people to work and advocate for the tough issues such as: education,
housing, employment and health.
Responsibility for the current situation where Indigenous people face a strongly entrenched Reconciliation Network (primarily non-Aboriginal people) that needs to be developed to uphold a basic human rights approach for Indigenous people
Reparations for all Indigenous South Australians including all removed children.
They are fit for attaining the self-determination of self-government.
We must remain united or others will exploit our differences
the above post came as no great surprise as i had received it from two cc's and also savigils. the only common denominator was that all three posts originated in south australia.
whilst i accept their view it does not however sway me from the michael anderson view. for obvious reasons, michael's at least gives some hope while the views of the triumvirate do not.
as i said previously, the law is a strange and erratic entity and depends on the view(s) of the judge or judges of the day. that they are expected to forensically apply their legal minds to the task of interpretation goes without saying but as we know the legal system and religion is interpreted by human beings (and all that that allows) and not by paragons of legal virtue for the former nor by the gods in the latter.
that being the situation then, necessarily, gives and allows for multiple interpretations.
the fight for their lands in sth australia by the traditional owners is at least as legally muddy as is the 1875 act.
sth australia has a document, from mad king george i think it was, stating that any lands wanted by the invaders needed to be legally purchased if it was already owned and occupied by the 'natives.' unlike the rest of the country where the politics of invasion was in full swing, those coming to sth australia were expected, under royal decree, to behave as they would if they were purchasing land in england or europe.
such gentlemanly behaviour however proved to be an impediment to their land-lust and they quickly reverted to their normal barbaric genocidal stage occurring every where else in australia at that time.
since those early times the aborigines of sth australia have maintained their call that the lands were forcibly taken from them and restitution of the lands and/or reparations for the armed theft needed to be forthcoming. successive sa governments have fought against the aboriginal claims and we must continue to hope that one day their rightful claim will be answered with justice.
the only way we can move forward and win on these issues is to choke the invader governments with their own words and the proper legality of those words.
that is what michael is attempting and that is what the activists of sth australia need to do also. having read a good book on the sth australian situation i know it has not been easy nor will it get any easier but backing the racist views of governments against what michael is attempting will get us nowhere. we must remain united in our fight for our sovereignty as others will move to exploit our differences. for far too long we have played their game of avarice and petty jealousies as family fought family, clan fought clan for the crumbs that were doled out to the government's favourites or modern day 'breast-platers' as i care to identify them.
i would have thought that words of support from antar sa, patrick and savigils would have served all our cause much better than merely putting an opposing view. many times i have read their statement and the one positive i see is the call for self-determination, a process that we are not allowed to properly participate in, ever.
to do so would of course make us stronger, in our culture, in our life, to the point that we would then have to be negotiated with as equals. they will never agree to that concept so we must use all of our strength, our cunning and our knowledge of their weak points in what is called australian democracy and that is in their courts of law. and especially the high court. the move to do a howard and legislate away any court engendered gains needs also to be strongly fought against
the problem i see with the document below and the seven 'r's is that there is no clear plan of action and it reads to me like a reconciliation document. all good statements but where are the nuts and bolts of the actions needed to bring it to some form of fruition? how do we reach self determination in the full fury of governments who will do all they can to deny us such a right?
at least michael is in court.
it will take time but for a people of a 60 000+ years of history time means little. we must continue to harry and harass them until one day, just like mabo #2, common sense and justice will be the decision of the high court.
one day we will get our nations back and with it our birthright.
whether by michael or the sa three or someone else is of little consequence. the who does not really matter if we struggle as one people.
always was, always will be..................aboriginal land.
fkj
ray jackson
president
indigenous social justice association
isja01@internode.on.net
(m) 0450 651 063
(p) 02 9318 0947
address 1303/200 pitt street waterloo 2017
www.isja.org.au
we live and work on the stolen lands of the gadigal people.
sovereignty treaty social justice