Australia Day is marked by many as a celebration of Australian identity and culture. However, it deeply troubles many Australians, particularly Aboriginal Australians.
The date coincides with events on 26 January 1788 at Sydney Cove which mark the symbolic act of state by which the British appropriated the colony of New South Wales in right of King George III of England – and, from there, the entire continent of Australia.
This NewsFlash reflects on some aspects of Aboriginal and Australian law that followed the British assertion of sovereignty.
Prior to English occupation of Australia, Aboriginals operated pursuant to a jurisprudence contained in a system of Laws based on a Law of Relationship.
“Situate yourself inside yourself – as the site of law. This must be done to begin to gain any understanding for feeling lawfulness. It will be shown how feeling (and not emotion) internally galvanizes a person’s relationships with other life forms. From this it will be demonstrated how intrinsic the feeling of lawfulness is to the law of relationship and how the law of relationship helps balance energies. Where the feeling of legality, rather than the governance of men is crucial to, as much as a result of, the enactment of the law of relationship.”.
The law of feeling and relationship is intrinsic. Rights and responsibilities are highly sophisticated. Advanced Aboriginal legal thinking adopts a jurisprudential philosophy that is radically different from western legal systems.
The British arrival brought with it an entirely separate jurisprudence. Early colonization applied the British system alongside the Indigenous one, initially allowing Aboriginal Australians to regulate their own affairs. However, ultimately, British courts and British jurisprudence gained dominance so as to finally become Australia’s legal system.
Compounding the clash of jurisprudential settings, colonization increasingly ignored the very existence of Aboriginals. The only lawful justification at the time (according to British and European law) for settlement without treaty or war was that newly occupied land was terra nullius ie empty land. Clearly, Australia was not empty from the moment of Cook’s visit or from the first settlement: and this was well known to the British.
Year after year, yet more whitefella historic documents add yet more confirmation that all early sea and land explorers of Australia, as well as the first fleet settlers, knew the land was populated and used Aboriginals to aid their explorations.
Neither James Cook nor Arthur Phillip circumnavigated Australia. It is highly likely that Indigenous Peoples made skilled circumnavigational journeys from antiquity. Certainly, American and British whalers had circumnavigated these seas and the continent was mapped in segments by the Dutch and Portuguese long before Cook’s journey. The French also mapped southern coastlines at approximately the same time as the British Sydney Cove settlement. Flinders’ journey, appears to be the first surveying work that mapped the entire continent and was almost certainly informed by earlier navigational directions, ships logs and maritime knowledge.
The Mabo Case rejected terra nullius. The Native Title Act was a regulatory response that introduced the new notion of “native title” into Australian property law. This destroyed the Crown’s monopoly in its land and created a quasi public-private partnership between Government and Aboriginal groups in respect of native title land. The Act’s most powerful legacy appears to be the obligation to negotiate with native title Claim Groups about any act that could potentially affect native title rights, including new developments.
On Australia Day, we should remind ourselves of the Preamble to the Native Title Act. A Preamble is a “continuing declaration of moral foundation”. The Native Title Act’s Preamble, its moral foundation, includes:
“(Aboriginal peoples) have been progressively dispossessed of their lands. This dispossession occurred largely without compensation …
“The people of Australia intend … to rectify the consequences of past injustices… and to ensure that Aboriginal peoples … receive the full recognition … to which … their prior rights and interests … fully entitle them to aspire.”
“Governments should … facilitate negotiation … in relation to … proposals for the use of (claimed) land for economic purposes.”
On this Australia Day 2019, we also, particularly recognize, Elder Reg Dodd, South Australia’s Senior Australian of the Year. Our firm was proud to be associated with his nomination and acknowledges his courageous and tireless advocacy for Arabunna country, law, culture and community. It acknowledges, with gratitude, the knowledge passed by him personally to so many members of the legal profession all over Australia. This wisdom has enabled them to gain insight into Aboriginal perspectives on Australian law and work to redress past injustices.
28 January 2019
 Extracted from Leonie Kelleher’s PhD, 2012, The Impact of Regulatory Change on Entrepreneurial Opportunity: Case Study, Native Title Legislation.
 Parker, Darren, 2012, The Exclusivity of Inclusive Democracy: An Aboriginal Jurisprudential Examination of ATSI Constitutional Recognition, IGSA Seminar, Melbourne Institute for Indigenous Development Murruk Barak.