The Politics of Inclusion: The Right of Self-Determination, Statutory Bills of Rights and Indigenous Peoples

Two relatively recent and overlapping developments potentially offer a new direction for the Indigenous self-determination project, which has been marginalised by Australian governments in recent years: first, the trend towards the domestic protection of international human rights through statutory bills of rights in Australian jurisdictions; and second, the burgeoning recognition of the right of self-determination for Indigenous peoples at the level of international law. This paper critiques the right of self-determination as it would operate under the kind of statutory bill of rights that predominates in Australia. The central argument is that enshrining the right of self-determination in a statutory bill of rights would be an ineffective guarantee of Indigenous self-determination. After developing a normative account of Indigenous self-determination that emphasises the importance of the Indigenous–state relationship, this paper suggests that two things are problematic for Indigenous self-determination in the statutory bill of rights context. The first concerns the standard consultation processes leading up to the introduction of statutory bills of rights; the second concerns the unilateral state control that would exist over the right of self-determination under a statutory bill. This paper concludes with a discussion of the problem of ‘juridification’ in relation to Indigenous self-determination..

978 pages.

Aboriginal Customary Law


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The Right to Self-Determination in International Law — A MATTER OF FORM RATHER THAN CONTENT

Philip Alston is the Chairman of the United Nations Committee on Economic, Social and Cultural Rights and Director of the Centre for International and Public Law, Australian National University. He was addressing a seminar on the Right to Self-Determination organised by the Human Rights Council of Australia, in Canberra, on 1 September 1992.

3 pages.

SELF DETERMINATION 1993


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The Right to Self-Determination and International Law

The concept of self-determination is virtually as old as the concept of statehood itself. Since its inception self-determination has undergone dramatic alterations inmany aspects, from a concept initially conservatively applied to issues such as decolonisation, to a justification for the break-up of multi-ethnic states. The concept may now extend towards indicating a right of self-determination for indigenous people.

The purpose of this article is to identify the traditional approaches to self- determination, and to attempt to explain and analyse the changes this concept has undergone.

7


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“Letters Patent under the Great Seal of the United Kingdom Erecting and Establishing the Province of South Australia

Privy Council (United Kingdom) — “Letters Patent under the Great Seal of the United Kingdom Erecting and Establishing the Province of South Australia and Fixing the Boundaries thereof, 19 February 1836” [1836] IndigLRes 1

Letters Patent under the Great Seal of the United Kingdom erecting and establishing the Province of South Australia and fixing the boundaries thereof,

19 February 1836

2 Pages ~ Second Page.

LETTERS PATENT_1836


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Tribal Treaty denied by the Crown?

Is this Evidence of the Crown’s denial to the

Original Tribes of Terra Australis to form treaties?

Bourke, Richard — “Proclamation By His Excellency Major General Sir Richard Bourke, K.C.B. Commanding His Majesty’s Forces, Captain General and Governor in Chief of the Territory of New South Wales and its Dependencies, and Vice Admiral of the same” [Proclamation by Governor Bourke, 26 August 1835] [1835] IndigLRes 1

Proclamation of Governor Bourke, 26 August 1835 (Approved by the Colonial Office and Sent to the Governor on 10 October 1835)

Proclamation

By His Excellency Major General Sir Richard Bourke, K.C.B. Commanding His Majesty’s Forces, Captain General and Governor in Chief of the Territory of New South Wales and its Dependencies, and Vice Admiral of the same &c. &c. &c.

Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, I, the Governor, in virtue and in exercise of the power and authority in me vested, do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, as aforesaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission; that is to say, extending from the Northern Cape, or extremity of the Coast called Cape York, in the latitude of ten degrees thirty seven minutes South, to the Southern extremity of the said Territory of New South Wales, or Wilson’s Promontory, in the latitude of thirty nine degrees twelve minutes South, and embracing all the Country inland to the Westward, as far as the one hundred and twenty ninth degree of east longitude, reckoning from the meridian of Greenwich, including all the Islands adjacent, in the Pacific Ocean within the latitude aforesaid, and including also Norfolk Island, is void and of no effect against the rights of the Crown; and that all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.

Given under my Hand and Seal, at Government House, Sydney, this twenty sixth Day of August, One thousand eight hundred and thirty five.

(Signed)
“Richard Bourke”
By His Excellency’s Command

(Signed)
Alexander McLeay
God Save the King!

True Copy
Deas Thomson Clk Co


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“Secret Instructions for Lieutenant James Cook Appointed to Command His Majesty’s Bark the Endeavour, 30 July 1768”

Commissioners for Executing the Office of Lord High Admiral of Great Britain — “Secret Instructions for Lieutenant James Cook Appointed to Command His Majesty’s Bark the Endeavour, 30 July 1768” [Lieutenant Cook’s Instructions] [1768] IndigLRes 1

Secret Instructions for Lieutenant James Cook,
Appointed to Command His Majesty’s Bark the Endeavour

30 July 1768
(UK)

Secret

By the Commissioners for executing the office of Lord High Admiral of Great Britain & ca.
Additional Instructions for Lt James Cook, Appointed to Command His Majesty’s Bark the Endeavour

Whereas the making Discoverys of Countries hitherto unknown, and the Attaining a Knowledge of distant Parts which though formerly discover’d have yet been but imperfectly explored, will redound greatly to the Honour of this Nation as a Maritime Power, as well as to the Dignity of the Crown of Great Britain, and may tend greatly to the advancement of the Trade and Navigation thereof; and Whereas there is reason to imagine that a Continent or Land of great extent, may be found to the Southward of the Tract lately made by Captn Wallis in His Majesty’s Ship the Dolphin (of which you will herewith receive a Copy) or of the Tract of any former Navigators in Pursuit of the like kind, You are therefore in Pursuance of His Majesty’s Pleasure hereby requir’d and directed to put to Sea with the Bark you Command so soon as the Observation of the Transit of the Planet Venus shall be finished and observe the following Instructions. You are to proceed to the Southward in order to make discovery of the Continent abovementioned until’ you arrive in the Latitude of 40°, unless you sooner fall in with it. But not having discover’d it or any Evident sign of it in that Run you are to proceed in search of it to the Westward between the Latitude beforementioned and the Latitude of 35° until’ you discover it, or fall in with the Eastern side of the Land discover’d by Tasman and now called New Zeland.

If you discover the Continent abovementioned either in your Run to the Southward or to the Westward as above directed, You are to employ yourself diligently in exploring as great an Extent of the Coast as you can carefully observing the true situation thereof both in Latitude and Longitude, the Variation of the Needle; bearings of Head Lands Height direction and Course of the Tides and Currents, Depths and Soundings of the Sea, Shoals, Rocks &ca and also surveying and making Charts, and taking Views of Such Bays, Harbours and Parts of the Coasts as may be useful to Navigation. You are also carefully to observe the Nature of the Soil, and the Products thereof; the Beasts and Fowls that inhabit or frequent it, the Fishes that are to be found in the Rivers or upon the Coast and in what Plenty and in Case you find any Mines, Minerals, or valuable Stones you are to bring home Specimens of each, as also such Specimens of the Seeds of the Trees, Fruits and Grains as you may be able to collect, and Transmit them to our Secretary that We may cause proper Examination and Experiments to be made of them. You are likewise to observe the Genius, Temper, Disposition and Number of the Natives, if there be any and endeavour by all proper means to cultivate a Friendship and Alliance with them, making them presents of such Trifles as they may Value inviting them to Traffick, and Shewing them every kind of Civility and Regard; taking Care however not to suffer yourself to be surprized by them, but to be always upon your guard against any Accidents.

You are also with the Consent of the Natives to take Possession of Convenient Situations in the Country in the Name of the King of Great Britain: Or: if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors.

But if you shall fail of discovering the Continent beforemention’d, you will with upon falling in with New Zeland carefully observe the Latitude and Longitude in which that Land is situated and explore as much of the Coast as the Condition of the Bark, the health of her Crew, and the State of your Provisions will admit of having always great Attention to reserve as much of the latter as will enable you to reach some known Port where you may procure a Sufficiency to carry You to England either round the Cape of Good Hope, or Cape Horn as from Circumstances you may judge the Most Eligible way of returning home.

You will also observe with accuracy the Situation of such Islands as you may discover in the Course of your Voyage that have not hitherto been discover’d by any Europeans and take Possession for His Majesty and make Surveys and Draughts of such of them as may appear to be of Consequence, without Suffering yourself however to be thereby diverted from the Object which you are always to have in View, the Discovery of the Southern Continent so often Mentioned.

But for as much as in an undertaking of this nature several Emergencies may Arise not to be foreseen, and therefore not to be particularly to be provided for by Instruction beforehand, you are in all such Cases to proceed, as, upon advice with your Officers you shall judge most advantageous to the Service on which you are employed.

You are to send by all proper Conveyance to the Secretary of the Royal Society Copys of the Observations you shall have made of the Transit of Venus; and you are at the same time to send to our Secretary for our information accounts of your Proceedings, and Copys of the Surveys and discoverings you shall have made and upon your Arrival in England you are immediately to repair to this Office in order to lay before us a full account of your Proceedings in the whole Course of your Voyage; taking care before you leave the Vessel to demand from the Officers and Petty Officers the Log Books and Journals they may have Kept, and to seal them up for our inspection and enjoyning them, and the whole Crew, not to divulge where they have been until’ they shall have Permission so to do.

Given under our hands the 30 of July 1768

Ed Hawke

Piercy Brett

C Spencer

By Command of their Lordships
………………………………….[SIGNED]
Php Stephens

[END TRANSCRIPT]


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Northern Land Council v Quall ~ HCA 33 ~2020.

Native title representative bodies, governments around the country, and countless participants in the resources, can all breathe a sigh of relief after the High Court unanimously decided that a representative body’s function of certifying applications for the registration of Indigenous land use agreements (ILUAs) can be carried out by the body’s Chief Executive Officer (CEO).

NLC v QUALL HCA_2020_33


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Report on the Trespass Act.

It is necessary to give some consideration at the outset to the common law concept of trespass to land. At common law, trespass to land “is committed by directly and intentionally … entering or remaining upon or causing some object to come into contact with land in the possession of another, without the consent of the person in possession of the land or other legal justification or excuse”.

The consent or licence of the person in possession can be withdrawn after entry, but the withdrawal must be advised and a reasonable time to leave allowed. It is the fact of possession that is protected by trespass even absent a formal, legal or equitable interest. The “possession” protected by the tort of trespass includes possession of an interest in land such as an easement or a profit a prendre. Remedies for trespass include damages, where loss can be proved, declaration and injunctions. Damage is not a requisite component of the tort of trespass, and the breach is actionable without proof of damage. The Trespass Act incorporates the common law notion of trespass, and provides for a range of additional statutory remedies and offences.

62 pages.

Trespass Act Northern Territory 2013


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NT Larrakia elders lose High Court case against Northern Land Council, vow to fight on

A legal battle over more than 50,000 hectares of Northern Territory land has divided families and taken years to resolve, and now one side is offering an olive branch to try to end it once and for all.

Two Larrakia elders, Eric Fejo and Tibby Quall, yesterday lost a long-running court fight against the Northern Land Council (NLC) over the 2016 Kenbi Land Claim, on the Cox Peninsula near Darwin.

The High Court rejected an earlier Federal Court ruling which found in favour of the elders, who believe the NLC breached the law in how they went about formalising the land agreement.

“My argument was that they had not done their job properly, that they had delegated to the CEO, and that was not permitted by the law,” Mr Fejo said after the court’s judgment yesterday.

“The full court of the Federal Court agreed with me, but the High Court overturned that finding.”

In 2016, the title deeds for Kenbi were handed over to traditional owners with great ceremony, including with an appearance by then-prime minister Malcolm Turnbull.

But some, including Mr Fejo and Mr Quall, were not recognised as traditional owners in the agreement, meaning they were not entitled to any benefits or royalties that could be earned off the land.

The elders now have the option of pursuing the fight against the NLC back in the Federal Court, but the head of the Northern Land Council, Marion Scrymgour, said she would try hard to dissuade them from going down that path.

Marion
Northern Land Council CEO Marion Scrymgour says she wants to extend the olive branch to the two elders.(ABC News: Jon Daly)

“I think it would be easy to litigate, it would be easy to churn up those costs in the court on lawyers,” Ms Scrymgour said.

“But if they wanted to get recognition and look at how they can be part of this, they need to reengage with the land council.

“I’ll put the olive branch out to both Tibby and to Eric Fejo.

“I think it’s really important for those families to come back and to sit down with the land council and look at how we can all work together.”

Despite the NLC’s calls for peace, Mr Fejo vowed to continue fighting.

“The NLC may have won this particular battle, but they haven’t won the war,” Mr Fejo said.

“The High Court has set out what the NLC is allowed to do by law, but the question remains: have the NLC actually done their job properly?”

He said the case had divided families and clan groups across the Top End.

“The sooner they can get it over and done with the sooner we can move forward properly,” he said.

The Larrakia man said he was considering his avenues of an appeal in the Federal Court.

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