What is sovereignty?

Myth “Sovereignty = Separatism”

“It’s a natural human reaction to FEAR WHAT YOU DO NOT UNDERSTAND and what you do not know…”

 

What is ‘sovereignty’ and what does it mean to First Nations people in Australia?

 

The Oxford Dictionary, defines sovereignty as “supreme power or authority, a self-governing state”.

 

“The First Nations sovereignty movement is often portrayed as the push for a separate black state and anti-white, failing to acknowledge the diverse views that exist in Aboriginal and Torres Strait Islander communities about this issue.  Aboriginal sovereignty has nothing to do with a hierarchical idea of a sovereign [i.e. Western world] and would be more of a lateral system.” Philosopher & Academic MARY GRAHAM (Kombumerri & Waka Waka)

Lawyer MICHAEL MANSELL (Palawa)

“We are entitled to full independence from any of the political processes that Australia has in place.”

LAND, KINSHIP, LAW, CEREMONY and LANGUAGE – “if I have access to all of those things, and I can live by them, that is what it means to be a sovereign First Nations woman.” Creative Producer MERINDAH DONNELLY (Wiradjuri)

Poet LORNA MUNRO (Wiradjuri) “Why is being pro-Black considered anti-White? To uphold one’s own identity, why do people think it has to put down another’s? This society is so pro-White and anti-Black. Therefore, to affirm my own identity, I think we need to flip the script a little bit.”

Activist PETER SKUTHORPE (Gamilaraay)

“The word ‘sovereignty’ means to me, a sense of belonging, ownership and connection to country – it’s my birthright.”

Veteran KOOMA activist Wayne ‘Coco’ Wharton  says another point of confusion is the comparison made with African Americans and their struggle for equality and civil rights.  He says the question about sovereignty in this country is not about equal rights.  “You can’t look at Aboriginal Australia the same way as the rest of the world looks at a Black man in Mississippi.  We didn’t come from anywhere else.  Our question here in Australia is not about equality, it’s about our rightful place.”  The predicament Native Americans currently find themselves in is far more comparable, as they are the ORIGINAL people of what is now known to the world as the United States of America.

 

For the past two centuries, First Nations people have been subject to large scale dispossession, genocide and systematic discrimination.  The push for sovereignty is an ongoing attempt to reverse this devastating process and establish a revived dignity for First Nations people and their communities.

 

Talk of and calls for First Nations sovereignty is not something new and ‘radical’.  The movement in this country emerged from Sydney, Brisbane and Melbourne in the late 1960s alongside the Gurindji Strike in the Northern Territory, leading up to the emergence of the Aboriginal Embassy in 1972, the 1982 Commonwealth Games protests demanding Land Rights for Aboriginal people and the call for a Treaty towards the start of the new millennium.

 

Why is this concept so alien to Australia?

 

Other Indigenous peoples around the world have varying degrees of tribal sovereignty, recognised by colonial society and governments.  The Treaty of Waitangi in Aotearoa (New Zealand), signed in 1840 between more than 500 Maori chiefs and the British Crown, established the principle of partnership between Maori and non-Maori.  As well as the Treaty in New Zealand, similar agreements exist in both Canada and the United States of America.

 

Former US President George W Bush (2004) responded to a question from a Native American journalist with the following – “The relationship between the Federal Government and the Tribes [Native Americans] is one between sovereign entities.”

 

Activist & radio producer ROBBIE THORPE (Gunnai) “There’s no proper legal foundation here.  That comes with a Treaty.  Australia is the only Commonwealth country without a Treaty.  Otherwise, we allow ourselves as Aboriginal people to be forced to adopt another law.  There’s been no consent, so the Australian government have no jurisdiction.”

“Go back to where YOU came from!”

Many people seem to shun the idea of First Nations sovereignty, deeming it to be a form of separatism and segregation, fear mongering about being kicked out of the country or evicted from their homes by the local tribe.  The question of First Nations sovereignty is far more akin to the concept of coexistence.  Below are some of the lyrics from Yothu Yindi’s 1991 hit TREATY:

 

Now two rivers run their course

 

Separated for so long

 

I’m dreaming of a brighter day

 

When the waters will be one!

http://www.989fm.com.au/smashingthemyths/sovereingty-separatism/

What is sovereignty?

Sovereignty is best defined as a sphere of authority and autonomy – the legitimate power to govern. It is often said that whatever the institutions of government, sovereignty resides in the people and it is the people who determine how they will be governed. This is the internal aspect of sovereignty. Sovereignty also has an external aspect. The people as a sovereign entity should be respected in their autonomy and should be allowed to determine their relationship with other sovereign peoples. This is often referred to as the right of peoples to self-determination. In the international system of states, these principles of self-determination and independence form the basis of international relations and international law.

Under the international system, it is accepted that each state has the right to self-determination. However, the right to self-determination is a right of ‘peoples’, not states, because it is the people that are sovereign. In international human rights instruments, this principle is expressed in the first Article:

‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

(The International Convention on Civil and Political Rights (ICCPR), article 1 and The International Convention on Economic Social and Cultural Rights (ICESCR), article 1)

Therefore, self-determination is asserted by non-state actors including Indigenous peoples. It is included at Article 3 of the Draft Declaration on the Rights of Indigenous peoples currently being considered by United Nations committees.

From an external perspective, Australia is seen as a sovereign entity in the international community of states. But from an internal perspective, Australia must negotiate the ways in which sovereignty is to be exercised – whether it is to be shared, and how it is be administered. Formally, under the Australian Constitution, sovereignty is shared between the federal and state governments and between the three separate arms of government – the legislature (the Parliament); the judiciary (the courts) and the executive (the government). Informally, some functions of government are also reserved at the local level, to local government. Each of these separate arms of government has a sphere of authority and autonomy, which is respected by the others. Through these systems of federalism and separation of powers, power is divided to ensure that the rights of the people are protected and that the institutions of government reflect regional differences.

http://www.mabonativetitle.com/info/whatIsSovereignty.htm                Author: Lisa Strelein

Sovereignty

This is not a debate about the legitimacy of either or. This is a debate about the need to conclude a messy and genocidal history. It is about working together to get it right and to settle grievances and disputes in a fair and just manner.

It can become ugly, but only if the dominant society rejects outright our legitimate claim to continuing sovereignty and dominion over our lands, natural resources and the naturally occurring biodiversity.

Over the millennia conflicts have come and gone and always at the end settlements through negotiations are agreed to. This debate and confrontation can end just as easily as it started, but we must all agree to talk and negotiate in order to locate peaceful and lasting settlements if we are to become an Australian society unified in common purpose and cause, always respecting each other’s background, religious beliefs and right to say NO to the destruction of Mother Earth.

We can prosper with great effect if we commit to protecting Mother Earth, which must be one of our pre-negotiation agreements and commitments.

This is not a debate about the legitimacy of either or. This is a debate about the need to conclude a messy and genocidal history. It is about working together to get it right and to settle grievances and disputes in a fair and just manner.

It can become ugly, but only if the dominant society rejects outright our legitimate claim to continuing sovereignty and dominion over our lands, natural resources and the naturally occurring biodiversity.

Over the millennia conflicts have come and gone and always at the end settlements through negotiations are agreed to. This debate and confrontation can end just as easily as it started, but we must all agree to talk and negotiate in order to locate peaceful and lasting settlements if we are to become an Australian society unified in common purpose and cause, always respecting each other’s background, religious beliefs and right to say NO to the destruction of Mother Earth.

We can prosper with great effect if we commit to protecting Mother Earth, which must be one of our pre-negotiation agreements and commitments.

A statement on the current sovereignty debate – AboriginalAustralia, White Australia By Michael Anderson © – Goodooga, northwest NSW, 5th January, 2012

Sovereignty is defined as “the ultimate overseer or supreme authority in a state.  In a state sovereignty is vested in the institution, person, or body to impose law on everyone else and to alter any pre-existing law.”

In Australia sovereignty lies with the people because we are a Democracy where, by definition, the people rule. Australia is a Common Law country, where the law made by the common people prevails over all other forms of law.  The Australian Constitution is, itself, Common Law because it was directly approved by and can only be altered by a referendum of the common people (s. 128).

Australian State and Federal Parliaments create Statute Law, which are only laws made  indirectly by the common people, through their elected representatives.

However, Australian Courts create Common Law because they are laws directly made by the common people forming Juries of twelve. It is a lie to say that Judge-made Law is Common Law because a Judge is not a Jury of the common people  .

Lord Edward Coke (1552 – 1634) said, “Common Law doth control Acts of Parliament and when adjudged against common right to be void”.

No one man has sovereignty over another. The American Declaration of Independence says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –” and goes on to give one of “the causes which impel(led) them to the separation”  being “– For depriving us in many cases of the benefits of Trial by Jury”.

“Inalienable” means that those rights “cannot be given away nor taken away.” Such rights are sacred – “all men are (so) ..endowed by their Creator”.

Ancient civilizations such as the Romans regarded the number 12 as sacred, ie: “safeguarded or required by religious or reverance or tradition, indefeasible, inviolable, sacrosanct”. Juries of 12, bound by oath, were regarded as a sacrament, which are the “visible signs of agreement between God and individuals”.  Only then could there be “the lawful judgment of his Peers” (Magna Carta)

Trial by Jury is the confirmation of the “Freeman” status (as per Magna Carta) and the sovereignty of the People. Tyrants want to abolish Trial by Jury so that they can assume sovereignty.

No one man can pass judgment on another but there must be the unanimous verdict of 12 of his equals, “beyond a reasonable doubt”, for an accused to be punished for violating the rights of another. Juries exercise their sovereignty in every action brought before them by judging the justice of the law or laws cited by the parties.  Law and justice are not synonomous because a law can be unjust.

The Preamble to the United Nations’ Universal Declaration of Human Rights says “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”. Juries are just such a protection at law with Magna Carta, granting “for ever”, the right to Trial by Jury. Trial by Jury is the result of the wisdom of generations and has been sustained and honoured over the centuries by the wisdom of further generations.

To survive, Common Law must be in harmony with Natural Law.  Natural Law is the permanent underlying basis of all law. Philosophers have extolled that there was a kind of perfect justice given to man by nature and man’s laws should conform to this as closely as possible. Theories of Natural Law have been an important part of jurisprudence throughout history. The moral power of Natural Law derives from the fact that man’s innate nature (itself part of the nature of the cosmos) and his propensities are viewed as ideal or inherently good.

Immanuel Kant said that in all men there is a categorical imperative, ie: they know what is right and what is wrong. This unconditional, absolute, explicit, direct and plain-speaking bidding of conscience creates the ultimate moral law and comprises the conditions under which all members of society can enjoy the maximum freedom from subjection to the arbitrary will of others.

– Compiled by J. Wilson, http://www.rightsandwrong.com.au

SOVEREIGNTY

A Brief History in the Context of U.S. “Indian law”

by Peter d’Errico

Legal Studies Department

University of Massachusetts, Amherst USA

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This article was written as the entry for “Sovereignty” in the The Encyclopedia of Minorities in American Politics, part of the American Political Landscape Series (Phoenix, AZ: Oryx Press, 2000, at pp. 691-693). Copyright is held by Jeffrey D. Schultz & Co., Colorado Springs, CO (USA), with all rights reserved. It is published here as part of a course at the University of Massachusetts, Amherst, for educational purposes.

________________________________________

Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Bodin and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a “divine right” of rulers. Another has been about the relation between legal authority and political-economic power which may influence or dominate law. The definition of sovereignty in federal Indian law partakes of both ancient controversies. An ambiguous concept from the start, surrounded by disagreement, sovereignty is perhaps most cryptic in federal Indian law.

The legal history of “tribal sovereignty” starts with colonialism. From their earliest contacts with the “new world,” colonizing powers asserted sovereignty over indigenous peoples, based a theological-legal theory built on “divine right.” Spain, Portugal, France, England, and other colonial regimes explicitly based their sovereignty claims on religious doctrines decreed by the Pope, who was regarded as having power to grant titles to portions of the earth for purposes of Christian civilization.

The result of colonial assertions of sovereignty was that indigenous nations were legally stripped of their independent status. Their existence was in some instances not recognized at all and their lands treated as legally “vacant” (terra nullius). In other instances, indigenous peoples were declared to have a “right of occupancy” but not ownership of their lands. In either instance, the fundamental principle was that supreme legal authority lay outside the indigenous nations.

In 1823, in Johnson v. McIntosh, 8 Wheat. 543, the Supreme Court adopted for the United States the “right of occupancy” version of colonial sovereignty. This remains the basic legal position of federal Indian law, despite the fact that “divine right” is not accepted elsewhere in United States law. The Johnson v. McIntosh decision may be seen as a laundry for sovereignty theory, washing out the theology and transferring “divine” powers to a secular state.

The debate about legal authority versus political and economic power also informs the definition of sovereignty in federal Indian law. In the earliest treaties, statutes, and cases, indigenous nations were regarded as having a “subordinate” sovereignty related to their “right of occupancy.” Denied full sovereignty as independent nations, they were nevertheless regarded as having authority over their own relations amongst themselves –an “internal” or “tribal” sovereignty. In Worcester v. Georgia, 6 Pet. 515 (1832), for example, the Supreme Court declared that the Cherokee Nation possessed “its right to self-government,” even though it was “dependent” on the United States. Justice McLean concurred, saying, “At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always admitted to possess many of the attributes of sovereignty.” McLean went on to question whether there could be any end to this “peculiar relation”: “If a tribe of Indians shall become so degraded or reduced in numbers as to lose the power of self-government. the protection of the local law, of necessity, must be extended over them.”

The Court picked up Justice McLean’s suggestion in 1886, in United States v. Kagama, 118 U.S. 375, when it reduced indigenous sovereignty almost to a nullity, declaring, “…Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exist within the broad domain of sovereignty but these two.” The Court did not base its assertion of a broad federal power over Indians on any clause of the Constitution, but on the “right of exclusive sovereignty which must exist in the National Government.” The Court went on to state, “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.” In half a century, Justice McLean’s suggestion that political and economic factors might override legal sovereignty was manifested in the Court’s broad assertion of general federal power over Indians.

But the Kagama case was not the end of “tribal sovereignty.” The concept rose again in the “New Deal” administration of the federal government. Felix Cohen, whose efforts as a high-ranking lawyer in the Interior Department made him a major architect of the new deal for Indians, resurrected “tribal sovereignty” as an organizing principle of the Indian Reorganization Act of 1934, 48 Stat. 984. He wrote, in his Handbook of Federal Indian Law , “…[T]hose powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished.” Cohen did not suggest that Congress could not extinguish all Indian sovereignty; he merely argued that until extinguished by federal authority, it remained part of federal Indian law.

The Indian Reorganization Act provided for the formation of “tribal governments” under federal authority as vehicles for Indian “self-government.” The Act provided a model of government based on democratic and corporate structures often at odds with the original forms of organization among indigenous nations. The fact that the New Deal abandoned some of the grosser exercises of federal authority typical of the allotment era that preceded it made it appear attractive to native peoples; but the contradictions embodied in a concept of “dependent sovereignty” would continue to produce conflict and confusion in federal Indian law.

The situation after 1934 remained complexly disordered. One might say of Indian sovereignty, “now you see it, now you don’t.” In 1973, in McClanahan v. Arizona, 411 U.S. 164, the Supreme Court invalidated a state income tax on individual Indians on an Indian reservation. The Court relied on the principle of “tribal sovereignty,” yet suggested that such sovereignty might not be inherent, but rather derived from federal power. The Court referred to “platonic notions of Indian sovereignty” and referred to Indian sovereignty as “a backdrop” for analyzing treaties and federal statutes. The Court did not suggest that the whole concept of sovereignty was “platonic,” or that it was only a “backdrop” for analyzing all political and economic power.

Subsequent to McClanahan, the Court swung back and forth repeatedly. As Vine Deloria, Jr., wrote in Of Utmost Good Faith, in federal Indian law the Supreme Court “skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation.” In 1978 alone, the Court went from almost completely subordinating indigenous sovereignty under federal law in Oliphant v. Suquamish, 435 U.S. 191, to an affirmation of it as a third kind of sovereignty in the United States in United States v. Wheeler, 435 U.S. 313. The latter decision was a complete contradiction of the analysis in Kagama. In 1997, in Idaho v. Coeur d’Alene Tribe, No. 94-1474, the Supreme Court held that “Indian tribes … should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity.” This was a startling contrast to the foundational federal Indian law decision in Cherokee Nation v. Georgia, 5 Pet. 1 (1831) that the Cherokee were not sovereign as a “foreign nation.”

The concept of sovereignty, however convoluted and contradictory, remains an important part of federal Indian law. Tribal councils established under the Indian Reorganization Act are regarded as vehicles of “tribal sovereignty”; they act as governments and not just as corporations, though they are often limited by federal funding and authority. Indian hunting and fishing rights have been protected against state and local regulation, though an ultimate authority has been reserved outside the realm of tribal sovereignty. Indian nations are regarded as immune from suit without their consent, under the doctrine of “sovereign immunity,” yet their power over non-members of the particular nation is sometimes severely limited.

In short, the idea that indigenous nations have at their roots some aspect of their original, pre-colonial status as independent nations operates — sometimes directly and sometimes by implication — throughout federal Indian law today. This idea is accompanied by the colonial legacy of superior authority claimed over indigenous nations by the federal government. Both these ideas have been part of federal Indian law from its inception, and are the reason why Chief Justice Marshall could say, in formulating the foundations of this law in the Cherokee Nation case, “The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence.”

In assessing the results of “tribal sovereignty” at the close of the 20th century, Vine Deloria, Jr., and Clifford Lytle wrote, “Local institutions that served Indians were in a much stronger position even though they now resembled the local units of government that served other Americans and possessed little that was distinctly Indian. Indians themselves had assimilated to a significant degree….” This may be the ultimate irony, that “tribal sovereignty” could prove to be the vehicle for incorporating indigenous nations within the colonizers’ civilization. It may also be true that the persistence of “tribal sovereignty” has kept alive the idea of local sovereignty, of “the people” as the ultimate source of legal authority.

The idea of indigenous sovereignty surfaced internationally and with intensity in the Draft United Nations Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub. 2/1994/56, issued in 1994 as a report to the U.N. Commission on Human Rights. This document, which may eventually become the basis for an international protocol or convention, stirred up the ancient debates. The United States took an official position that the word “peoples” was inappropriate in a statement of “rights,” because it implied group rights, which would threaten the sovereignty of states. The United States and others argued that “rights” adhere only to individuals, and that no group may be recognized as having any legal existence independent of a state. Indigenous nations, on the other hand, asserted that the Draft Declaration was meant to embody just such group rights, that these were essential for the survival of indigenous peoples worldwide. Struggles about indigenous sovereignty continue into the 21st century, on as grand a scale as in any other era.

BIBLIOGRAPHY

•             Cohen, Felix S. Handbook of Federal Indian Law. Washington, D.C.: Government Printing Office, 1942.

•             Deloria, Vine, Jr. Of Utmost Good Faith. New York: Bantam, 1971.

•             Deloria, Vine, Jr., and Lytle, Clifford. American Indians, American Justice. Austin: University of Texas, 1983.

•             Fried, Morton H. The Notion of Tribe. Menlo Park: Cummings Pub. Co., 1975.

•             Jennings, Francis. The Invasion of America. New York: W.W. Norton & Co., 1976.

•             Newcomb, Steven T. “The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power.” N.Y.U. Rev. of Law & Social Change. XX no. 2 (1993): 303-341.

•             Salmond, Sir John. Jurisprudence. 8th edition, by C.A.W. Manning. London: Sweet & Maxwell, 1930.

•             Savage, Mark. “Native Americans and the Constitution: The Original Understanding.” American Indian Law Rev. 16 (1991): 57-118)

•             Scott, Craig. “Indigenous Self-Determination and Decolonization of the International Imagination: A Plea.” Human Rights Quarterly. 18 (November 1996): 814-20.

•             Williams, Robert A., Jr. The American Indian in Western Legal Thought. New York: Oxford University Press, 1990.

http://www.umass.edu/legal/derrico/sovereignty.html

Sovereignty is the law of the land and the power to use it – the legitimate power to govern.  If we had our law in practice when we were invaded, our law is the law of the land until conquered in war or treaties signed. Sovereignty can be an important building block for the right of peoples to self-determination. In the international system of states, these principles of self-determination and independence form the basis of international relations and international law.

To survive, Common Law must be in harmony with Natural Law.  Natural Law is the permanent underlying basis of all law. Philosophers believe that there was a kind of perfect justice given to man by nature and man’s laws should conform to this as closely as possible. Theories of Natural Law have been an important part of theory and philosophy of law throughout history. The moral power of Natural Law derives from the fact that man’s innate nature (itself part of the nature of the cosmos) and our natural ways are viewed as ideal or inherently good.

Your Rights Protected

Aboriginal activist and trained lawyer Michael Anderson says a recent appeal court decision implies that Australian courts have no jurisdiction over Aborigines because they have never ceded sovereignty to the white invaders.

Activist sees court judgment questioning jurisdiction over Aborigines

Mon 03 Oct 2011
By Anonymous

Aboriginal activist and trained lawyer Michael Anderson says a recent appeal court decision implies that Australian courts have no jurisdiction over Aborigines because they have never ceded sovereignty to the white invaders.

On Friday 30th September Mr Anderson appeared in a NSW District Court hearing an appeal by Ms Nicholson-Kitchener against her conviction for using an uninsured motor vehicle at Deniliquin and driving without a license.

Mr Anderson writes in a media release: “Clearly, the judge says in his concluding statement….that the case against her was proven but that she was released without a conviction being recorded against her name.

“This judgement did in fact overturn the Magistrate’s findings, thereby dismissing those guilty findings, as well as overturning any reference to a criminal record, which would have been the case had she not appealed it.

“This is an odd decision from my viewpoint because the judge essentially concluded the case by squaring the ledger, that is, the case was proven – that she committed wrong under Western law – but freed her of the alleged wrong doings, implying an issue of lack of jurisdiction.”

“Clearly, this is not an issue that any government or attorneys-general want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.”

Mr Anderson’s release in full:

On Friday 30th September I appeared in NSW District Court in the matter R v Nicholson-Kitchener in the criminal jurisdiction (case number: 20100040578). The matter is related to Ms Nicholson-Kitchener being charged with the use of an uninsured motor vehicle at Deniliquin and driving without a license.

The District Court matter arose as a result of an appeal in the Magistrate’s Court in Deniliquin by Ms Nicholson-Kitchener. I prepared arguments in the original Magistrate’s Court in this matter, arguing unceded Aboriginal sovereignty and questioning jurisdiction.

In the written submission in the Magistrate’s Court I argued that given Mabo judgement No. 2, which implied that Aboriginal sovereignty is continuing, then this is a matter for another jurisdiction, i.e. the International Court of Justice (ICJ).

I contend that if we have a situation of contested sovereignty, which is implied in the Mabo judgement No. 2, then legal jurisdiction over Aboriginal people is in question.

With the appeal to the District Court, I expanded the written submission, arguing that in 1841 there was great debate in the NSW Supreme Court on the jurisdiction question, with the courts arguing that Aboriginal people had to be subject to some legal jurisdiction, mainly because of the constant conflict that was occurring between the traditional sovereign owners and the invader settler society.

These conflicts came down to conflict over property, that is, the invaders’ society squatted and took possession of Aboriginal lands, waterways and natural resources. Aboriginal people, who fought the invading force, were charged with violations and criminal misconduct for trying retake their traditional property.

The dominant colonial society created laws to protect that which they held by force and created a criminal code that prosecuted Aboriginal people as thieves, when they tried to retake their own traditional lands back.

The laws that now exist in Australia are all about protecting property rights of the invading thieves themselves and criminalising Aboriginal efforts to regain lands and waters. This continues to this day.

Given that there are no treaties that ceded our sovereignty to the British invader, I asked in my submission to the District Court Judge R. Toner, at what time in history did the British usurp Aboriginal sovereignty under existing law at the time, and at which time did the traditional customary laws of the land in Australia governing Aboriginal peoples cease to exist.

What time in history did Aboriginal law cease to exist and British law govern Aboriginal people?

In response to the District Court judgment of 30 September 2011, Judge Toner SC, in his written judgment, has maintained the status quo by citing Denis Walker’s case in the High Court 1994. Judge Toner said that Chief Justice Mason at that time alleged in his judgment that the common law was the only valid law and its application to Aboriginal people is to the extent to which it has been accepted by them.

In the other cases Judge Toner cited in his written judgment he failed to prove that there was in fact jurisdiction over Aboriginal people and basically agreed to the NSW Attorney-General’s response to Neville Chappy Williams on 13 October 2011, when he said the laws have been applied to Aboriginal people ‘consistently’ since colonisation:

The courts have consistently held that the fact of sovereignty of Australia and New South Wales over Australia is something which cannot be considered or challenged in the courts of Australia. The courts have also confirmed that sovereignty over Australia was validly acquired at colonisation and the common law of England properly received at that colonisation applies to and binds equally all those in Australia, including colonists, later immigrants and indigenous people. In the light of that, it is neither necessary not appropriate to provide you with any documents as to the so-called ceding of sovereignty by any people.

Clearly, the judge says in his concluding statement on the Nicholson-Kitchener matter that the case against her was proven but that she was released without a conviction being recorded against her name, i.e. a Section 10.

This judgement did in fact overturn the Magistrate’s findings thereby dismissing those guilty findings, as well as overturning any reference to a criminal record, which would have been the case had she not appealed it.

This is an odd decision from my viewpoint because the judge essentially concluded the case by squaring the ledger, that is, the case was proven – that she committed wrong under Western law – but freed her of the alleged wrong doings, implying an issue of lack of jurisdiction.

Clearly, this is not an issue that any government or Attorneys-General want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.

But if you do this, then we must walk together and support each other, because almost all white lawyers and the black lawyers trained in this country cannot think outside the square boxes to see the arguments from our point of view, because they have sworn allegiance to the Crown.

Contact: Michael Anderson (number available upon request)

Source: http://www.indymedia.org.au/2011/10/03/activist-sees-court-judgment-questioning-jurisdiction-over-aborigines

 

 

A Proposed date for our Sovereignty Day

  1. On the 22nd August 1770, Captain James Cook planted a foreign flag on an  Island  belonging to Aboriginal nations, now called Possession Island, taking illegal possession of our lands and its resources, without the permission or knowledge of any Aboriginal or Torres Strait Islander peoples.

 

  1. We believe that no Aboriginal or Torres Strait Islander Peoples ceded or made treaties or agreements over their lands and all of its resources to any foreign nation or Peoples since time immemorial.
  1. We believe that Aboriginal and Torres Strait Islander Peoples continue to maintain, to this day their sacred, spiritual, social, political and economic connections to their lands since time immemorial.
  1. We call upon all Aboriginal and Torres Strait Islander peoples to claim this day, 22nd August as Aboriginal Sovereignty Day.
  1. We propose that Sovereignty Day be a Day of celebration, ceremony and acknowledgement by all Aboriginal Peoples that our ancient connections to our beloved lands have never been ceded or broken by the tide of history or by any foreign nation or Peoples.

What is the difference between Legal Sovereignty vs. Political Sovereignty?

The sovereignty of the state may be viewed from two points of view i.e., Legal Sovereignty and Political Sovereignty. Legal sovereignty represents the lawyer’s conception of sovereignty. It is associated with the supreme law-making authority in the state.

The body which has the power to issue final commands in the form of laws is the legal sovereign in a state. This power may be vested in one person or a body of persons. It may be a king or dictator or parliament. Under absolute monarchies, it was the king who was vested with the power of making laws.

A dictator makes laws under a dictatorship as was the case in pre-war Germany and Italy. The courts recognize only such laws as are made by a sovereign. In England, Parliament is the legal sovereign which enjoys unlimited powers of law making.

In the words of Dicey it can adjudge an infant of full age, legitimize an illegitimate child or if it thinks fit, may make a man judge in his own case. The following are the characteristics of a legal sovereign:

1.A legal sovereign is definite and determinate. It may be a person as in the case of an absolute monarchy or a body of persons as in the case of the British Parliament.

2. Legal sovereignty is definitely organized and re-organized by constitutional law.

3. Legal sovereign alone has the power to declare in legal terms the will of the state.

(b) Political Sovereign:

The concept of political and popular sovereign is very confusing. In the modern democratic state, a distinction, all the same, has come to stay between legal sovereign and political sovereign.

Legal sovereign is defined as that person or body of persons that makes law and whose law is final and is recognized by courts and is enforced by the executive.

However above the legal sovereign is the political sovereign, As Dicey says, “Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow.

” This is the political sovereign. In democracies, the legal sovereign receives its authority from the electorate, whatever be the basis of the right of vote, and is answerable to it for the exercise of its powers.

Legal sovereign is subject to be changed by the mandate of the electorate at regular intervals. Even during the term of Parliament, in the cabinet system of government, legislature may be dissolved and fresh mandate from the electorate sought.

The legislature makes laws on the basis of the policy approved by the electorate. So we may say that the electorate is political sovereign.

http://www.preservearticles.com/201106248493/what-is-the-difference-between-legal-sovereignty-vs-political-sovereignty.html

 

Examples of Sovereignty in action in – The City of London, The Crown.

Like Vatican city, London’s inner city is also a privately owned corporation or city state, located right in the middle of greater London. It became a sovereign state in 1694 when king William the third of Orange privatized and turned the Bank of England over to the banksters. Today the City State of London is the world’s financial power center and the wealthiest square mile on the face of the Earth. It houses the Rothschild controlled Bank of England, Lloyds of London, the London stock exchange, all British banks, the branch offices of 385 foreign banks and 70 US banks. It has its own courts, its own laws, its own flag and its own police force. It is not part of greater London, or England, or the British Commonwealth and pays no taxes. The City State of London houses Fleet Street’s newspaper and publishing monopolies. It is also the headquarters for world wide English Freemasonry, and headquarters for the world wide money cartel known as The Crown.

Contrary to popular belief, The Crown is not the Royal Family or the British Monarch. The Crown is the private corporate City State of London. It has a council of 12 members who rule the corporation under a mayor, called the lord mayor. The lord mayor and his 12 member council serves as proxies or representatives who sit-in for 12 of the worlds wealthiest, most powerful banking families, including the Rothschild family, the Warburg family, the Oppenheimer family and the Schiff family. These families and their descendants run the Crown Corporation of London.

A way forward

to be realistic and in no way to tarnish the shininess of what you propose .. they are not going to let you take over the senate .. the process of doing so WOULD create a governance void .. and a very dangerous one ..its not in aboriginal interests to get the blame for economic collapse .. that would lead to every redneck resentful prick in the country putting on a white hood .. its has to be forced .. i agree ..

the governor general position .. and state governors .. are the target .. they are the sovereign rep positions .. they hold reserve powers .. in the constitution those reserve powers entitle the sovereign to do pretty much anything because the constitution dont spell out what those reserve powers are .. just that they there .. so thats where the bottom line is .. holding sovereignty … NO legislation .. passed by the senate or the reps becomes law until it signed off by the sovereign rep .. they appoint the government .. they empower parliament and they dissolve parliament .. they have a permanet seat on the exutive .. meaning nothing goes on in any juristiction without aboriginal knowledge ..

instead of one person being governor general .. a council of elders is ..

all this can be achieved without making ANY change to the constitution .. [except the identity of the sovereign .. which of course is is so stable and it would be supported by vast majority of the australian masses .. and all sovereign rights would be enshrined .. but in a way that people can take time to heal to sort out the new paradigm .. and without getting the blame ..

– Compiled by J. Wilson, http://www.rightsandwrong.com.au

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