FEDERAL COURT OF AUSTRALIA
Walker v State of South Australia (No 2)  FCA 700
|Citation:||Walker v State of South Australia (No 2)  FCA 700|
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|Parties:||LANCELOT GILBERT WALKER v STATE OF SOUTH AUSTRALIA & ORS|
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|File number:||SAD 162 of 2010|
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|Date of judgment:||19 July 2013|
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CONSTITUTIONAL LAW – whether the Commonwealth of Australia’s assertion of sovereignty over the asserted traditional lands of the applicant’s native title claim group is valid and effective – whether the proviso concerning Aboriginal people in the Letters Patent establishing the Province of South Australia limits the effect of the Commonwealth’s assertion of sovereignty
CONSTITUTIONAL LAW – State of South Australia – foundation and status
JURISDICTION – jurisdiction of Federal Court under Native Title Act 1993 (Cth) extends to all land within Commonwealth
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Native Title Act 1993 (Cth) s 61
Judiciary Act 1903 (Cth) s 78B
Federal Court of Australia Act 1976 (Cth)
Pacific Islanders Protection Act 1875 (Imp) 38 & 39 Vict, c 51, ss 6, 7
Commonwealth Constitution ss 106, 107, 127
An Act to enable His Majesty to establish a Court of Criminal Indicature on the Eastern Coast of New South Wales, and Parts adjacent (Imp) 27 Geo III, c 2
South Australia Act 1834 (Imp) 4 & 5 Wm IV, c 95, ss 1, 6
An Act to amend an act of the Fourth and Fifth Years of His late Majesty, empowering His Majesty to erect South Australia into a British Province or Provinces (Imp) 1 & 2 Vict, c 60, s 1
South Australia Act 1842 (Imp) 5 & 6 Vict, c 61, ss 1, 5
Australian Constitutions Act 1850 (Imp) 13 & 14 Vict, c 59, s 7
South Australian Constitution Act 1855-6 (Imp) s 1
Colonial Laws Validity Act 1865 (Imp) (28 & 29 Vict, c 63, s 7
Australian Constitutions Act 1862 (Imp) 25 & 26 Vict, c 11
Colonial Acts Confirmation Act 1863 (Imp) 26 & 27 Vict, c 84
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12
Australia Act 1986 (UK) s 2
Treaty of Waitangi Act 1975 (NZ) sch 1
Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19, s 3
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Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 applied
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 cited
R v Burah (1878) 3 App Cas 889 at 904 cited
Hodge v The Queen (1883) 9 App Cas 117 cited
Powell v Apollo Candle Company (1885) 10 App Cas 282 cited
Coe v Commonwealth (1979) 53 ALJR 403 applied
Coe v Commonwealth (1993) 68 ALJR 110 applied
Walker v New South Wales (1994) 182 CLR 45 cited
McDonald v Director of Public Prosecutions (2010) 26 VR 242 cited
Jones v Public Trustee (Qld) (2004) 209 ALR 106 cited
R v Buzzacott (2004) 154 ACTR 37 cited
Williams v Attorney-General (NSW) (1913) 16 CLR 404 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
R v Murrell (1836) 1 Legge 72 cited
R v Wedge  1 NSWLR 581 cited
Kruger v Commonwealth (1997) 190 CLR 1 cited
Tuckiar v R (1934) 52 CLR 335 cited
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|Date of hearing:||To be heard on the papers|
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|Date of last submissions:||12 July 2013|
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|Number of paragraphs:||61|
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|Counsel for the Applicant:||The applicant appeared in person|
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|Counsel for the State of South Australia:||M Hinton SC and D O’Leary|
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|Solicitor for the State of South Australia:||Crown Solicitor|
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IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 162 of 2010
LANCELOT GILBERT WALKER
STATE OF SOUTH AUSTRALIA & ORS
19 JULY 2013
REASONS FOR JUDGMENT
- On 22 October 2010, Karno (Lancelot Gilbert) Walker made an application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for a determination of native title on behalf of the Ramindjeri people over an area of land comprising Kangaroo Island and a substantial part of the Fleurieu Peninsula. The claim area overlaps, on the mainland, with the Kaurna Peoples Native Title Claim (SAD 6001 of 2000) and Ngarrinderi and Others Native Title Claim (SAD 6027 of 1998).
- On 25 June 2012, the State of South Australia (the State) made an interlocutory application seeking orders that Mr Walker’s application be summarily dismissed.
- On 4 September 2012, Mr Walker filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) (the Notice). The Notice raised an argument that the Court does not have jurisdiction to summarily dismiss Mr Walker’s application, because the Commonwealth of Australia (the Commonwealth) does not have sovereignty over the Ramindjeri people and their asserted lands and the Court had no jurisdiction or power to hear and determine the summary dismissal application.
- The State’s interlocutory application was listed for hearing on 14 December 2012. At that hearing, it was pointed out that, if Mr Walker’s contention was correct, he could not invoke the jurisdiction of the NT Act at all. If he did not wish to invoke the jurisdiction of the NT Act, the primary claim under s 61 of the NT Act could be dismissed, because he did not wish to accept and invoke the jurisdiction of the Court. The interlocutory hearing was adjourned for directions to 5 April 2013 to give Mr Walker time to make an application to a suitable court, presumably the High Court of Australia (although he also mentioned other possible avenues) to determine whether the Commonwealth’s claim of sovereignty over the Ramindjeri people and their asserted lands is a legitimate one. That date was selected as it gave Mr Walker sufficient time to institute such alternative or additional proceedings as he considered appropriate.
- By 5 April 2013, no such application had been made. At the directions hearing, I ordered that the issue as to the jurisdiction of the Court be heard and determined on the papers. By that time, Mr Walker had filed further affidavits exhibiting undated letters from the “Original Sovereign Tribal Federation” and referring to possible proceedings in the High Court of England and Wales and then, if necessary, to the “European Union Humanitarian Courts”. The exhibited correspondence also includes correspondence in which the Privy Council acknowledges receipt of some communication from the Original Sovereign Tribal Federation.
- In addition to the oral submissions on the issue made on 14 December 2012, the State had filed written submissions on this issue on 10 December 2012. Mr Walker was given an opportunity to make written submissions in reply, but he did not avail himself of that opportunity.THE NOTICE
- The Notice advances facts and arguments in favour of the proposition that the Ramindjeri have never vested sovereignty or dominion over their lands to the Crown, either the Commonwealth or the State, so this Court as a Court created by the Commonwealth by the Federal Court of Australia Act 1976 (Cth) could have no jurisdiction or power to make an order with respect to Ramindjeri land.
- First, Mr Walker asserts that the Letters Patent issued by the Imperial Crown on 19 February 1836 that established the Province of South Australia had the effect of “barring” the Crown from “extending … sovereignty or dominion over the Ramindjeris’ lands and people…”
- The basis for that proposition is the proviso contained in clause 8.1 of the Letters Patent that reads:
PROVIDED ALWAYS that nothing in these our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives…
[(the Letters Patent proviso)]
- Second, Mr Walker contends that the Pacific Islanders Protection Act 1875 (Imp) 38 & 39 Vict, c 51 (1875 PIP Act) also has the effect of “barring” the Crown from “extending … sovereignty or dominion over the Ramindjeris’ lands and people…”
- The sections of that Act that are said to support this argument are ss 6 and 7. Section 7 appears to be most relevant to the argument. In conjunction with that provision, he refers to an Order in Council of 2 August 1875 (Imp) by which the 1875 PIP Act “was made”.
- Third, Mr Walker appears to contend that the Commonwealth does not have sovereignty over the Ramindjeri people because of “[l]imitations under Ramindjeri law prohibiting the vesting of Ramindjeri lands in any other party,” and that neither the Constitution of the Commonwealth of Australia nor the Constitution of the State of South Australia can override the Ramindjeri sovereignty over its lands.
- More broadly, he says that the Ramindjeri Tribe was never, and is not, subject to the jurisdiction of the United Kingdom or to the Commonwealth or the State by the United Kingdom transferring any jurisdiction and powers to the Commonwealth or the State. Mr Walker also then appears to contend that the removal of s 127 of the Commonwealth Constitution (Constitution) in the 1967 referendum, and the fact that s 127 was not replaced by a “positive statement”, means that the Commonwealth has no right “to make laws for the Tribal people of this continent, but particularly, the Ramindjeri Tribe” and no right “to count the Tribal people of this continent, but particularly the Ramindjeri Tribe, as part of the population of the Commonwealth or any part thereof.” Section 127 of the Constitution until 1967 had stated:
In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
- Fifth, Mr Walker appears to contend that because of a “financial joinder” between the Commonwealth and State courts and the Crown, those courts are “incompetent to hear any matter” that involves the Crown (either the Commonwealth or the State) as a party, presumably because the Courts are “interested” in the outcome of the application under s 61 of the NT Act and cannot bring an independent judgment to it.
- As was pointed out to Mr Walker, the basic proposition for his position necessarily involves him asserting that the NT Act has no application to the Ramindjeri People or him, so the application under s 61 of the NT Act should be dismissed because he purports to invoke a jurisdiction which he says does not exist. On the other hand, if he pursues that claim, he necessarily submits to the jurisdiction of the Court, so it is not necessary to address those issues.
- It is up to Mr Walker to pursue his assertions in a forum which is appropriate.
- Nevertheless, it is convenient in response to his assertions to record the basis of the Court’s jurisdiction.
- I record that the detailed written submissions of the Solicitor-General for South Australia, which I accept, provided the bases for the following reasons. CONSIDERATION The establishment of the colony of South Australia
- Prior to 1834, the land that subsequently became South Australia had been claimed in right of the Crown of the United Kingdom as part of the colony of New South Wales.
- In 1770, all eastern Australia comprising what is now New South Wales, Tasmania, Victoria, Queensland, South Australia and the Northern Territory (to longitude 135 degrees East) was claimed for the Crown by Lt James Cook RN, who named the territory New South Wales: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 77-78 per Deane and Gaudron JJ (Mabo (No 2)). In 1788, New South Wales was established as a penal colony: An Act to enable his Majesty to establish a Court of Criminal Indicature on the Eastern Coast of New South Wales, and Parts adjacent (Imp) 27 Geo III, c 2. On 26 January 1788, Governor Phillip founded the colony of New South Wales, which was later extended to the 129th meridian, which now forms the border of South Australia and the Northern Territory with Western Australia.
- The High Court recognised in Mabo (No 2) that “the whole of the territory designated in Phillip’s Commissions was, by 7 February 1788, validly established as a ‘settled British Colony’”: at 78-79 per Deane and Gaudron JJ, and that upon the establishment of the Colony, sovereignty and the radical title to all the land vested in the Crown: Mabo at 53 per Brennan J, with whom Mason CJ and McHugh J agreed, and 81 per Deane and Gaudron JJ. Consequently, I must reject Mr Walker’s contention that the Crown as at 1834 did not acquire sovereignty over the Aboriginal people resident in South Australia or their country.
- The Province of South Australia was established pursuant to the South Australia Act 1834 (Imp) 4 & 5 Wm IV, c 95 (1834 SA Act). Section 1 empowered the King to establish a separate province or provinces within the geographical area of what is now South Australia. That section relevantly provided:
… it shall and may be lawful for his Majesty … with the advice of His Privy Council, to establish one or more provinces and to fix the respective boundaries of such provinces; and that all and every person who shall at any time hereafter inhabit or reside within His Majesty’s said province or provinces shall be free, and shall not be subject to or bound by any laws, orders, Statutes, or Constitutions which have been heretofore made, or which hereafter shall be made, ordered, or enacted by, for, or as the laws, orders, Statutes, or Constitutions of any other part of Australia, but shall be subject to and bound to obey such laws, orders, Statutes, and Constitutions as shall from time to time, in the manner hereinafter directed, be made, ordered, and enacted for the Government of His Majesty’s province or provinces of South Australia.
- Part of the effect of s 1 was to excise South Australia as an entirely separate Province, terminating the operation of laws made in New South Wales.
- In the exercise of the power vested by s 1 of the 1834 SA Act, Letters Patent dated 19 February 1836 were issued, erecting and establishing the Province of South Australia. Those Letters Patent contained the Letters Patent proviso.
- Mr Walker seeks to make something of that proviso.
- Neither the 1834 SA Act nor the Letters Patent preserve any sense of sovereignty in the Aboriginal people of South Australia. I do not accept that the language of the Letters Patent ascribes any protection of indigenous sovereignty. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum) at 278, Blackburn J characterised the contrary argument as follows:
That the words of the Letters Patent do not naturally suggest this meaning appears to me to be self-evident. That the Government would have tried to effect such a result by an instrument in such terms seems unlikely.
- A construction of the Letters Patent proviso that provides for some protection of sovereignty is inconsistent with the fact that by 1770, and at least by 1834, the Crown understood that it had acquired full legal and beneficial ownership over the whole of eastern Australia, including that which is now South Australia. The clear terms of s 1 of the 1834 SA Act provided for the erection of a colony over which full sovereignty was exercised, expressly providing that:
All and every person who shall at any time hereafter inhabit or reside within His Majesty’s said province … shall be subject to and bound to obey such laws, orders, Statutes, and Constitutions as shall from time to time, in the manner herein-after directed, be made, ordered, and enacted for the Government of His Majesty’s province … of South Australia.
- Moreover, s 6 of the 1834 SA Act authorised the Commissioners of the Province to declare all lands of the Province to be public lands, open to purchase by British subjects. Considering the proviso in light of s 6, Blackburn J in Milirrpum at 281 held:
It is impossible to see how, if the proviso to the Letters Patent is to be construed as either giving or preserving to any persons any proprietary rights in any lands of the Province, it was not repugnant to the express provisions of the Act, and thus invalid to that extent.
- It is consistent with the express provisions of the South Australia Act 1834 (Imp) that broad powers to convey and alienate the waste lands of the Crown vested in the Governor, and subsequently the legislature of the Province are granted by the Imperial Acts 5 & 6 Victoria c 35 (1842) and 18 & 19 Victoria c 56 (1855).
- The Proclamation of Governor Hindmarsh on 28 December 1836 included the resolution:
… to take every lawful means of extending the same protection to the NATIVE POPULATION as to the rest of His Majesty’s Subjects, and of my firm determination to punish with exemplary severity, all acts of violence or injustice which may in any manner be practiced or attempted against the NATIVES, who are to be considered as much under the Safeguard of the law as the Colonists themselves, and equally entitled to the privileges of British Subjects.
- It shows that sovereignty over all inhabitants of the newly established colony vested in the Crown in right of the Colony was in place.
- In my view, the clear effect of the South Australia Act 1834 (Imp), and that which was recognised by the Proclamation of Governor Hindmarsh, is that the Indigenous people inhabiting the Province of South Australia were to be treated as British subjects, in the same way as the colonists themselves were. I reject the assertion of sovereignty vested in the Indigenous people of South Australia carved out by the Letters Patent proviso: Mabo (No 2) at 107 per Deane and Gaudron JJ.The constitutional foundations of South Australia
- It is also apparent that the protection of the sovereignty, or some lesser but material protection that would render the NT Act otiose, as claimed by Mr Walker in reliance on the Letters Patent proviso, is inconsistent with the subsequent legislative and constitutional history of the Province of South Australia which conferred upon the colonial legislature a plenary power as large and of the same nature as that of the Imperial Parliament: see Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9; R v Burah (1878) 3 App Cas 889 at 904; Hodge v The Queen (1883) 9 App Cas 117 at 132; Powell v Apollo Candle Company (1885) 10 App Cas 282 at 290.
- The contention that the various legislative bodies of the Province, and later State, of South Australia were subject to a prior and intractable sovereignty, or some other qualification or protection from the application of its laws, vested in the Indigenous people of South Australia, is inconsistent with the grant, and repeated confirmation, of plenary legislative power, over the whole of the land and over all of its inhabitants, from 1836 to 1986. That is readily seen from the following.
- Legislative power was originally conferred upon the Governor, with the concurrence of two of either the Chief Justice, the Colonial Secretary, the Advocate-General or the Resident Commissioner, to make laws for the “peace, order and good government” of the colony subject to disallowance by the King in Council and that were not contrary or repugnant to any of the provisions of the 1834 SA Act and the Order in Council of 23 February 1836 authorising the Governor of South Australia to make laws. Apparently due to difficulties in the separation of responsibilities of the Colonisation Commissioners and the Governor, the Governor was appointed as Resident Commissioner in 1838, and legislative power was conferred upon “three or more” residents of the Province, to make laws “for the peace, order and good government of Her Majesty’s subjects and others within the said province”: An Act to amend an Act of the Fourth and Fifth Years of His late Majesty, empowering His Majesty to erect South Australia into a British Province or Provinces (Imp) 1 & 2 Vict, c 60, s 1.
- The 1834 SA Act and its 1838 amendment were subsequently repealed by the South Australia Act 1842 (Imp) 5 & 6 Vict, c 61, s 1. Pursuant to s 5 of that Act, a Legislative Council comprising the Governor and seven other persons was established to make laws for the “peace, order and good government of the said colony”, pursuant to instructions under royal sign manual (South Australian Government Gazette, 23 February 1843, 62).
- The South Australia Act 1842 (Imp) was later repealed by the Australian Constitutions Act 1850 (Imp) 13 & 14 Vict, c 59, which provided that the existing Legislative Council could establish another Legislative Council comprising of no more than 24 members, a third to be appointed by Her Majesty, with the remainder to be elected, as well as allowing the existing Legislative Council to alter its constitution and constitute a bicameral legislature. Section 14 provided that the Governor of South Australia, with the advice and consent of the Legislative Council established pursuant to the Act, had the authority to make laws for the “peace, welfare and good government” of the colony.
- Pursuant to s 7 of the Australian Constitutions Act 1850 (Imp), the South Australian Legislative Council passed the South Australian Constitution Act 1855-6 (SA). Section 1 established a bicameral legislature consisting of a Legislative Council and a House of Assembly, which combined “shall have and exercise all the powers and functions of the existing Legislative Council”.
- The next step in the historical sequence was the Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63. Relevantly, s 7 provided that all laws enacted by the legislative body of the colony which had received the assent of either Her Majesty in Council or the Governor “shall be and be deemed to have been valid and effectual from the date of such assent for all purposes whatever”. The earlier Australian Constitutions Act 1862 ((Imp) 25 & 26 Vict, c 11 and Colonial Acts Confirmation Act 1863 (Imp) 26 & 27 Vict, c 84 had likewise confirmed the validity of laws passed by the colonial legislatures.
- Upon the commencement of the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, the Province of South Australia was renamed the State of South Australia, its Constitution, and the powers of its Parliament, subject to the Constitution, preserved: Constitution, ss 106 and 107.
- Finally, the Australia Act 1986 (UK) was passed by the United Kingdom Parliament. Section 2 relevantly “declared and enacted” that the Parliaments of the States, including South Australia, had plenary legislative power to make laws for the “peace, order and good government” of their respective States.
- The asserted restriction on legislative power requiring a recognition of sovereignty of Aboriginal people, or some other qualification or protection for Aboriginal people from the application of Colonial and Imperial laws, is inconsistent with the grant, and repeated confirmation, of plenary legislative power, over the whole of the land and over all of its inhabitants, from 1836 to 1986. Whilst such plenary power has been described as being as large, and of the same nature, as that of the Imperial Parliament, it is now, of course, qualified, but only by the limits derived from the Constitution. The asserted restriction on legislative power is also inconsistent with the decision of the High Court in Mabo (No 2).Qualified sovereignty rejected
- The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held:
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 might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
- That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ:
Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power.
- Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J:
[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. … Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided.
- Mason CJ in Coe v Commonwealth (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia:
Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.
- That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at  and  per Ashley JA and  per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) (2004) 209 ALR 106 at - per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott (2004) 154 ACTR 37 at - per Connolly J.
- It may be observed that the position in New Zealand reflects a different historical foundation. The sovereignty of the Maori people was expressly recognised in the Declaration of Independence signed on behalf of the King of England on 28 October 1835. In 1839, the Lieutenant Governor of New Zealand, Captain Hobson, was given instructions by the Queen to:
… treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any parts of those Islands which they may be willing to place under Her Majesty’s Dominion.
(See T. Lindsay Buick, The Treaty of Waitangi; or How New Zealand became a British Colony (3rd ed, 1916 at 70-9.) Pursuant to that authority, the Treaty of Waitangi between the Imperial colonial authorities and the Maori peoples of New Zealand was agreed and signed on 6 February 1840. It is now shown as Schedule 1 to the Treaty of Waitangi Act 1975 (NZ).
- There is no equivalent in Australia to the Treaty of Waitangi. In the nineteenth century the Governor of South Australia acknowledged the Indigenous peoples’ interests in country through the use of land grants and the setting aside of reserves. In such circumstances title remained vested in the Crown: Prest, Round and Fort (eds), The Wakefield Companion to South Australian History (2001) at 7. An attempt to enter into a treaty with Aboriginal elders at Port Phillip in 1835 was, by the Governor’s Proclamation, refused recognition, recognising the “unquestionable proposition that … the whole of the lands were already in law the property of the King of England”: Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 439 per Isaacs J (emphasis in original) and see also Mabo (No 2) at 107 per Deane and Gaudron JJ.
- It is desirable to say a little more about the Letters Patent proviso. The Letters Patent proviso was addressed with at length by Blackburn J in Milirrpum at 274-283 and briefly by Kirby J (agreeing with the majority, who however did not address this question) in Fejo v Northern Territory (1998) 195 CLR 96. In both cases, their Honours rejected a less radical argument than Mr Walker’s argument – namely, an argument that the Letters Patent proviso protected the rights of Aboriginal people to the occupation or enjoyment of their lands from any inconsistent legislative or executive act.
- Kirby J in Fejo dismissed an argument that the Letters Patent proviso provides any protection for the rights of Aboriginal people to the occupation or enjoyment of their lands other than protection from any effect the terms of the Letters Patent itself might have on such rights. Some of his reasons for that conclusion are not applicable to this case, but the following reasoning at  is directly applicable to this case and highly persuasive:
[A]ccording to the terms of the [Letters Patent] proviso the only rights affected [by the Letters Patent proviso] were those arising from the activities of erecting and establishing the Province of South Australia and fixing its boundaries. The Letters Patent do not purport to deny, still less do they have the effect in law of denying, the quality of other acts which would otherwise affect the rights of the defined Aboriginals and their descendants. [Also], the [South Australia Act 1834 (Imp)] provided that it was the Colonisation Commissioners, not the Governor, who could declare all lands in the Province to be public lands available for purchase and to sell such lands and apply the funds recovered (e.g. for future immigration to the Province). Thus the actual alienation of land in South Australia was, from the start, effected pursuant to express statutory provision, not the Royal Prerogative. Any limitation on the power to grant a legal interest in land would therefore have to conform to the applicable statute. A proviso in the Letters Patent of the Governor could not override such a statutory source of power. [Further], and in any case, the mere fact of erecting and establishing the Province of South Australia and fixing its boundaries did not of itself adversely affect the rights referred to in the proviso. With the wisdom of hindsight and the modern understanding of the effect of the acquisition of sovereignty over Australia by the Crown, its establishment of a settlement (such as the Province of South Australia) did not of itself adversely affect native title. Any such effect arose from later conduct which on no view could be seen as subject to the proviso’s limitations.
- That is, with respect, clearly correct. The terms of the Letters Patent proviso are expressly limited in their application to the substantive provisions of the Letters Patent. They merely establish the province of South Australia and fix its boundaries. They do not provide for the Crown’s acquisition of sovereignty over the relevant land. That had already been acquired, because the relevant land was, prior to the Letters Patent, part of the colony of New South Wales. As such, the Letters Patent proviso cannot be said to have any effect on the sovereignty of the Commonwealth over the asserted Ramindjeri lands. See also per Blackburn J in Milirrpum at 281 and at 282-283.The Pacific Islanders Protection Acts
- Contrary to Mr Walker’s contention, the Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19 (1872 PIP Act) and the 1875 PIP Act have no application to the Indigenous people of Australia.
- The 1872 PIP Act (then given the short title of The Kidnapping Act 1872) was passed to protect the indigenous populations of the islands of the Pacific Ocean from kidnapping for the purpose of labour, a practice known as “blackbirding”. It expressly referred to “natives of islands in the Pacific Ocean, not being in Her Majesty’s dominions”. Section 3 made it unlawful for British vessels to carry native labourers absent a licence granted by a Governor of any of the Australasian Colonies of New South Wales, New Zealand, Queensland, South Australia, Tasmania, Victoria, and Western Australia. Section 9 established offences relating to the kidnapping and enforced labour of the natives, conferring jurisdiction on any Supreme Court in any of the Australasian Colonies for the trial and punishment for any such offences.
- Section 6 of the 1875 PIP Act gave the Queen the power to exercise jurisdiction over her subjects “within any islands and places in the Pacific Ocean not being within Her Majesty’s dominions nor within the jurisdiction of any civilised power”, and conferred the power to establish courts of justice with jurisdiction over those subjects within those islands. However, s 7 contained the proviso that:
[n]othing herein or in any such Order in Council contained shall extend or be construed to extend to invest Her Majesty, her heirs or successors, with any claim or title whatsoever to dominion or sovereignty over any such islands or places … or to derogate from the rights of the tribes or people inhabiting such islands or places … to such sovereignty or dominion.
- On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean “not being within her Majesty’s dominions”. As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty’s dominion, as had all the other colonies of Australia.Other Matters
- Mr Walker’s third contention based upon the content of Ramindjeri law must also fail. Even assuming that Ramindjeri law had the effect contended for, Ramindjeri law does not constitute the law of Australia: see eg R v Murrell (1836) 1 Legge 72; R v Wedge  1 NSWLR 581.
- As to the repealed s 127 of the Constitution, this provision did not carve out from the people of the Commonwealth all “aboriginal natives” such that the legislative, executive and judicial power of the Commonwealth did not apply to those people. Rather, it was a provision dealing with the mode of reckoning the population. That is sufficiently clear from the wording to remove the need for further elucidation.
- Section 127 only required that Aboriginal people not be counted in the census: Kruger v Commonwealth (1997) 190 CLR 1 at 45 per Brennan CJ. Aboriginal people were certainly treated as subjects of the laws of the Crown: see, eg, Tuckiar v R (1934) 52 CLR 335.
- In my view, there is no foundation for actual or perceived bias on the part of this Court in the way it proposes to deal with the application, either in procedural steps or in the application of the relevant law to the order or orders which may ultimately be made.CONCLUSION
- For those reasons, the challenge to the jurisdiction of the Court fails. The Court will proceed to hear the interlocutory application of the State.
|I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.|
Dated: 19 July 2013
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