The long-held legal assumption that Australia's High Court does not have the power to hear claims of Aboriginal sovereignty is wrong, according to new research by Melbourne Law School.
The assumption is based on a misunderstanding of the significance of an earlier legal case, according to Associate Professor Olivia Barr.
Her research is published today in the University of New South Wales Law Journal. 'A Matter of Precedent: Are all questions of First Nations sovereignty really non-justiciable in Australian courts?' is being hailed as having the potential to lead to "the next Mabo", as it opens the way for the Court to hear cases on the question of sovereignty.
Currently, Australia is the only Commonwealth country that has not signed a national treaty with its Indigenous peoples. A treaty acknowledges the "sovereignty" of original inhabitants, that is, their authority and power to make decisions about how best to govern aspects of their own lives.
"For 50 years, the High Court has consistently said that all questions about First Nations sovereignty fall outside its jurisdiction; that is, that the court does not have the power to hear such cases," says Associate Professor Barr.
"This started in the 70s, with a case called 'Coe v Commonwealth (1979)', where four High Court judges split two and two on the early procedural question of whether the Court should allow a trial on sovereignty. The vote was a stalemate, and that case did not go to trial.
"Since then, everyone has accepted the outcome of the 1970s case, and the assumption that the High Court doesn't have jurisdiction."
But, she says, this is an error: "Because it was a stalemate, or deadlock vote, and not a decision in which the court had a majority verdict one way or the other, the Coe case does not count as a precedent (a legal precedent is a decision that must be followed in all subsequent cases).
"There is a long-forgotten legal rule that split-court decisions like this do not create a precedent (see Tasmania v Victoria (1935) as endorsed by WA v Hamersley Iron (No 2) (1969)). This means it is as if the Coe case never happened, so it is open to the High Court to agree to hear any case on Aboriginal sovereignty that is put forward."
Associate Professor Barr said it would now be up to Aboriginal and Torres Strait Islander peoples to decide whether to run a new test case: "If so, the High Court might continue to avoid this issue, as it has done for 50 years, and leave it to the political arena (i.e. claiming no jurisdiction).
"If the High Court did get involved, there would be a trial, and the Court would have the power to decide whether – at least in terms of the law – First Nations' sovereignty does, or does not, exist.
"If rejected, this would be devastating for Indigenous people, akin to the failed Voice referendum.
"If sovereignty were recognised, this would be hugely significant, like another Mabo, potentially opening legal avenues to more treaties, self-determination and reparations for First Nations people in Australia."
She says this is common elsewhere in the world, including in most Commonwealth countries, such as New Zealand with its Treaty of Waitangi.
She says Canada has several successful examples of Indigenous sovereignty, including in its treaty with a First Nation called the Nisga'a: "Before the treaty was signed in 2000, they had poorer health compared to non-Indigenous communities, greater interaction with criminal justice systems, lower life expectancy, and all those things that come from intergenerational trauma as a result of colonisation.
"Since the Treaty was signed, giving them decision-making control through their own level of government, the statistics in that community have greatly improved. Life has got better."
Last year, Victoria signed its first statewide treaty.
