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Sovereignty never ceded: Conflict of laws – which law is subaltern in Australia?
by Ghillar, Michael Anderson
Thursday Jan 30th, 2020 2:57 AM
Media statement 30 January 2020

Ghillar, Michael Anderson, Convenor of the Sovereign Union, last surviving member of the founding four of the Aboriginal Embassy and Head of State of the Euahlayi Peoples Republic, introduces the concept of ‘subaltern’ through a recent Commonwealth Law Bulletin article from which parallels are drawn, that First Nations law is the law of the land and the colonial Australian law is subaltern, inferior.
Media statement 30 January 2020

Ghillar, Michael Anderson, Convenor of the Sovereign Union, last surviving member of the founding four of the Aboriginal Embassy and Head of State of the Euahlayi Peoples Republic, introduces the concept of ‘subaltern’ through a recent Commonwealth Law Bulletin article from which parallels are drawn, that First Nations law is the law of the land and the colonial Australian law is subaltern, inferior.

I am returning to some matters that I have highlighted in other statements. This time I’m pleading with our mob/peoples to walk away from the current treaty processes being promoted by different states. These treaty processes are not focusing on the key issues that our peoples have been marching for on the streets since the 1960s and 1970s, and before that during the 1930s, 1940s and 1950s the argument was about equality and civil rights, which sought our people from being wards of the state where we had no rights to make decisions for ourselves and I am certainly sure that our Old People knew that they were in fact prisoners of the colonial states rounded up under the scorched earth principle to clear the way for squatters. Those who rebelled were imprisoned in their institutions and were never released or, as Barry Morris identified in 1989 in his book Domesticating Resistance: The Dhan-Gadi, that on the north coast of New South Wales the squatters themselves wrote in their own diaries how they shot and killed the resisters and/or cleared the land by poisoning waterholes where Aboriginal people gathered. In the Gippsland area of Victoria Angus McMillan and his horde of squatters did the same.

So, from the British perspective they simply ‘settled’ the land ‘peacefully’, which suggests that our peoples just rolled over and gave them everything without resisting to protect the sacred heartlands. When Aboriginal people talk about Invasion Day that is not just an Aboriginal and Torres Strait Islander reflection of history, it is by definition a European concept that operated in the 18th and 19th centuries.

We cannot overlook what happened in 1788, because the British written instructions to Governor Phillip told them that they had to invade the land under the Rules and Disciplines of War. This authority to invade was underpinned by the authority of the Catholic church through the Papal Bulls of that time, which authorised the taking of the lands of the heathens and infidels, e.g. The Bull Romanus Pontifex (Nicholas V), January 8, 1455 and The Bull Inter Caetera (Alexander VI), May 4, 1493.

We now know that the High Court Mabo decision overturned these concepts and restored all property rights back to our peoples. Unfortunately, not enough of our people understand what this truly means, property rights that is, real estate. Former Prime Minister John Howard and his cohorts knew exactly what was missing in a colonial legal sense and so he put up a big story about a Ten Point Plan. This Ten Point Plan only focused on one issue, the validity of the Crown’s land tenure, where the judgement at paragraph 83 stated that:

4. Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).

5. Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title.

Then what constitutes a valid act?

Howard cleverly wrote into the Native Title Act as amended in 1998 the need for Indigenous Land Use Agreements. These Indigenous Land Use Agreement are mere contracts. Within that contract there are three key elements that are not emphasised, nor are they explained fully to you, as Native Title claimants, by your lawyers who supposedly represent your interests. The three aspects that our people don’t know the true meaning of are:
Do all you applicants and claimants agree in this Native Title determination to:

1. Validate all Past Acts.
On this issue the Native Title Act can only go back to 1993, when this Native Title Act became law in Australia. So, people, when you sign that Indigenous Land Use Agreement you validate all government acts in relation to the land tenures that the invaders established between then and now. If our people were diligent enough to look at State and Territory law, you would see the enormous amount of legislation that was amended in respect of land tenure in those States and Territories, due to recognition of Native Title.

2. Surrender.
So, what does surrender truly mean in the context of the Native Title Act? They are asking you to surrender all future claims against the Crown and you are being asked to forgive them for past wrongdoings and therefore surrender claims against the colonialists and the modern States. You are denying yourself the rightful compensation, reparation and restitution by agreeing to this term.

3. Future acts to be classified and past acts
This means that you have surrendered all your rights to development to local government, State governments, mining companies and/or others in the future. So, surrendering allows the future acts to take place without any consideration of your rights.

If our people do not understand this then heaven forbid what is coming in the treaties with States!

I just ask our people to think for themselves and stand their ground, and not be led by the assimilated new black trackers. These modern black trackers are trained just as they trained the original black trackers to shoot their own people. When those black trackers finished their job for the Crown they went back to their own mob and lived in poverty for the rest of their lives, obeying the white rule because they knew the power of the gun.

Surely, our people can see history repeating itself now?

Let it be understood First Nations Law is the law of the land and the colonialists know it. The British law that came with the invaders was a foreign law of a foreign country and was supplanted here to protect the interests of the British subjects only. Those laws did not relate to our peoples, nor have jurisdiction over our peoples, never have and never will.

But when you sign a treaty with a State all this ##changes.

Ironically enough, Australians who invite other foreign nationals into our country make very big issues of their customs and law and argue that emigrants should not bring their law and customs to Australia, which is contrary to what the British argued when they arrived here. The British argued that they were not subject to the law of the land when they arrived, because where an Englishman goes the English law follows, but it seems that that only applies to an Englishman.

Mabo changed the status quo. Whether Australians like it or not there are two laws operating today in Australia: The law of the land belonging to sovereign First Nations and Peoples under our own laws and customs and the imposed colonial law originating from a foreign jurisdiction.

On land tenure and civil jurisprudence colonial Australia is found wanting. The rule of international law at the time, and now, respects the continuing sovereignty of a Nations and Peoples and in respect to Aboriginal and Torres Strait Islanders our law is paramount, whereas the imposed law is ‘subaltern’, inferior. The only power that the Australians have over us is through the power of the gun and the police.

The way in which the British have deceived people all these years was described by Pierre Clastre, the French anthropologist, who exposed how the Spanish and Portuguese criminalised ‘otherness’ in South America. The British, through their practice, stole this concept. Dr Gary Lilienthal, Wang Shi Qi and Dr Nehaluddin Ahmad published a paper in Commonwealth Law Bulletin in 2020 entitled The treatment of Chinese customary Law in British colonial Hong Kong, in which they examine the British necessity to invoke the concept of ‘othering’ in order to assert colonial power:

To consider here the concept of othering the stability of a European colony had always required enunciation of the rhetoric of culture subordination of the non-white other, so they can be transformed into the native subaltern. In this way, they became a colonised people by, to the ears of the European metropolitan audience, apparently freely permitting exploitation of their lands, labour and natural resources. Thus, the so-called practice of othering justified the already established facts of domination and subordination of native peoples. It degraded them, from citizen to subject, and then displaced them from the periphery of the colonial imperialists’ body politic. The stark irony of the claim of othering Hong Kong’s British common law legal system suggest a research objective of examining critically any historical relationship between Chinese and British law in Hong Kong.

It is likely that both Imperial and later China viewed their 19th century treaties with Western powers as ‘unequal’, because Chinese officials were not treated as equal negotiators. Rather, under the duress of war, the Imperial Qing government was forced to agree to Western encroachment on China’s sovereign rights. These intrusions arguably reduced imperial China to a form of colonial status. The earliest of the unequal agreements was in the negotiations of the 1841 Convention of Chuenpi, … , during the first of the Opium Wars. Imperial China and Great Britain signed the first of these unequal treaties, in 1842, designated as the Treaty of Nanjing.

Commonwealth Law Bulletin, 2020, pp. 1-24. (for purchase)

Having drawn the parallels, I just simply ask our mob to look at what the modern black trackers did in their negotiations on the Native Title Act; without them realising it, they approved an act of parliament that is absolutely racially discriminatory and takes away all those civil and citizen rights that our people have been fighting for since invasion.

Currently, Australia does not have the ability to be truthful and honest. Even the universities are dictated to by the political whim of the day and do not teach the true history of this continent. They do not teach the basic fundamentals and the true repercussions for the Australian legal system when Mabo recognised Aboriginal law and customs. If ever there was a need to pinpoint a starting point for open and truthful discussions one would think that the universities would be the first port of call, especially the history and law faculties. But, of course, these institutions are controlled by the government. I know this from first hand experience, because when Robert Tickner was the Minister for Aboriginal Affairs (1990-1996) he wrote to the Pro Vice-Chancellor of the University of Newcastle, enquiring as to what subjects I was teaching, as well wanting to be briefed on the content of my lectures. Consequently, the Pro Vice Chancellor ordered that I was not to be offered tenure as a lecturer in preference to keeping the Aboriginal money flowing into the university.

Such is the evil that continues within the Australian colonial administration. If the truth be known the Australian colonial governments state and federal know that they are on a losing side, they are subaltern.

As nations and peoples we need to stand strong and firm in our commitment to get it right, to assert our sovereign rights. We owe it to our future generations.

Stand strong against the newborn resurrected black trackers, agents of the coloniser.

Michael Anderson
Convenor of Sovereign Union of First Nations and Peoples in Australia
and Head of State of the Euahlayi Peoples Republic
ghillar29 [at], 0499 080 660

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