To celebrate NAIDOC 2021 Kellehers again will do its daily NewsFlash[1].
This year’s theme – ‘Heal Country!’ – is a perfect fit with our environmental planning law specialist practice.
Each day we will look at caselaw about particular Country. We will shine light on the voice of the People in that case about their Country. Brave imaginative litigants raising their voice, amid risk and danger – seeking to heal Country. They speak powerfully into the Australian legal system.
To begin the week, we include the magnificent poem by Wiradjuri poet Jeanine Leane. Jeanine Leane is the winner of many, many prestigious literary awards and Associate Professor in the Faculty of Arts at Melbourne University.
Jeanine has, with great kindness, allowed Kellehers Australia to print in full her wonderful poem Native Grasses[2].
In the poem, this Aboriginal poet tells the struggle of Aboriginal Australians to have their voice heard. She speaks of the perils of ‘putting your head up’, of speaking out and even of living. Destruction of native grasses is her wild image. The clearing quotas, the silent loss of millions of individual species, entire ecosystems. Jeanine’s wild grasses will not be stopped.
At Kellehers, we love this poem as it also speaks of lawyers standing beside Aboriginal Australians in matters affecting Country. An environmental law practice frequently considers native grasses. But the lawyers in these cases are also often targeted personally by abuse and social media invective. It is not unusual to face threats of, or actual, legal action. Powerful interests seek to separate lawyer from client, increasingly by targeting the lawyer personally. This instantly separates the client from the lawyer because, as the lawyer must defend some (unfounded) allegation, he or she automatically faces a conflict of interest with the client. Kellehers has experienced this twice[3]. Ultimately, the unfounded allegation never proceeds or is withdrawn but, by then, the client has been alone: and the lawyer put to great cost, inconvenience and risk defending the unfounded.
So, Kellehers also finds woven into this complex poem, the clients and the lawyers who fight to ensure their voice is heard. Those clients and lawyers must, indeed, watch their backs. Nobody wants them. People call them pests. Some try to kill them off. They keep getting in the way of progress. Each client and each lawyer must be careful.
Coe (on Behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another
The Wiradjuri People put their head up in 1993 nearly 30 years ago – just after Mabo[4]. Isabel Coe on behalf of her People sought declarations that the Wiradjuri are the owners of land constituting a very large part of southern and central New South Wales. The Commonwealth of Australia and the State of New South Wales sought strike out orders.
Image: Map showing Wiradjuri Country[5]
Coe sought recognition of the sovereignty and autonomy of the Wiradjuri nation. Her claim said:
“2. Since time immemorial, since 1788, since 1813, since 1901 and since within living memory (hereinafter collectively referred to as ‘since time immemorial’) the Wiradjuri people, who are known as Wiradjuri Kooris and who are included in that group of people known as Aboriginal people, are a nation of persons who have continuously lived on and occupied that land now known as central New South Wales, in whole or in part, according to Wiradjuri laws, customs, traditions and practices, with their own language.
3. The Wiradjuri nation have rights to all [land bounded by the common borders it shares with its neighbours … and extends from the upper reaches of the Wambool (Macquarie) River in its northern border, the Murray River in its southern border, and the Great Dividing Range and the Murrumbidjeri (Murrimbidgee) River in its eastern border and the flood plains of the Kalar (Lachlan) River in its western border and comprises approximately 80,000 square kilometres] and have continued to have rights to the said land by reason of their traditional connection to the said land, notwithstanding any wrongful or unlawful extinguishment, forced dispossession, or forced abandonment of the said land pleaded herein.”[6]
She claimed that the Commonwealth of Australia and the State of New South Wales acquired Wiradjuri land illegally through acts of unprovoked and unjustified aggression including genocide and other crimes against the Wiradjuri people[7]. Her claim said:
“9. The second named Defendant — and George III, George IV, William IV, Victoria Regina and the Colony of New South Wales, being predecessors of the second named Defendant — and their servants and agents (hereinafter collectively referred to as ‘the second named Defendant’), by unprovoked and unjustified aggression including murder, acts of genocide and other crimes against humanity, and contrary to international customary law, wrongfully and unlawfully attempted by force to settle, the whole or part of the tribal lands of the Wiradjuri, and partially excluded the Wiradjuri people and the Plaintiff’s forebears from the Wiradjuri land.
10. The first and second named Defendants have, by way of crimes including particularly genocide and other crimes against humanity, wrongfully benefited through their wrongful and unlawful seizure of Wiradjuri land, and their wrongful and unlawful claims to proprietary interests in Wiradjuri land.”[8]
She claimed that the Wiradjuri are the sovereign nation of people, or in the alternative are a domestic dependent nation entitled to self-government and full rights over traditional land[9] and that native title had not been extinguished. Her claim said:
“George III, George IV, William IV and Victoria Regina had the sole power as International Sovereign to impair the personal, proprietary and usufructuary rights of the Plaintiff.”[10]
She claimed a breach of trust and fiduciary duty.
“13. The first and second named Defendants have represented by their conduct and otherwise to the Wiradjuri nation that they recognised and continue to recognise:
(a) Wiradjuri title;
(b) the personal and usufructuary rights of the Wiradjuri; and
(c) Wiradjuri laws, customs and practices.
Her claim also alleged breach of fiduciary duty on the basis that the defendants were trustees of a trust on behalf of the Wiradjuri nation and breached that trust in dispossessing the Wiradjuri from their land and alienating Wiradjuri land. She claimed that King George III and his successors “had a Sovereign duty to protect the rights of the Wiradjuri nation and failed to do so”.[11]
The High Court, consisting of Chief Justice Mason sitting alone upheld the strike out requests, but granted Isabel Coe leave to file and serve an amended statement of claim.
He found her claim before him to be an abuse of process as brought for the ‘improper purpose’ of using the proceedings for political purposes including inducing the farming community to negotiate with Wiradjuri people for royalties from its occupation of Wiradjuri lands.
He also found that the claim before him, particularly the sovereignty claim, did not disclose a reasonable ground for relief and found that compensation claims for NSW government breaches of trust and fiduciary duty should not be permitted to stand.
He held that the native title claim was tenable subject to four qualifications:
- precise description of the land – he regarded the description above as inadequate;
- joinder as defendants of those with a possible interest in opposing a native title declaration;
- regard to Crown rights on expiry of lease holdings; and
- the onus of proof would lie with the plaintiff to prove native title.
Since Isobel Coe spoke up in 1993, proud Wiradjuri woman, Linda Burney became the first Aboriginal woman elected to Federal Parliament. In her maiden speech to Parliament in 2016, she spoke of her proud Aboriginal ancestry:
“In many ways these experiences have been the catalyst for my subsequent lift as an advocate for education and social justice. The Aboriginal part of my story is important. It is the core of who I am, but I will not be stereotyped and I will not be pigeonholed. Let me tell you a little of the Wiradjuri story. In Wiradjuri lore Biami is the creation spirit. He is the source of both our physical and moral landscape. The story of invasion and conquest for the Wiradjuri sites are dotted all over my lands. The scars are evident for all of us to see.”[12]
You can watch Linda Burney’s historic maiden speech HERE.
Proud Wiradjuri man, well know journalist and TV personality, Stan Grant is a constant voice for his People. And, last year’s Miles Franklin winner, Tara June Winch, in The Yield, wrote achingly of the endless grief and harm to her beloved Wiradjuri People. We end with her words:
“In the language of the Wiradjuri yield is the things you give to, the movement, the space between things: baayanha.”[13]
KELLEHERS AUSTRALIA PTY LTD
5 JULY 2021
Download a PDF of this Article HERE.
[1] Copyright © Kellehers Australia 2021.
[2] Jeanine Leane wrote her own personal NAIDOC 2021 story for SBS Voices. We include the link she provided us to that powerful piece. https://www.sbs.com.au/topics/voices/culture/article/2021/06/21/our-countries-cannot-heal-until-their-names-are-given-back accessed 05072021
[3] Bernard Collaery is a high profile lawyer similarly affected in the case involving opposition to government action in East Timor – reported in today’s news https://www.abc.net.au/news/2021-07-04/court-document-witness-k-bernard-collaery-cleared-public-release/100263168. accessed 05072021
[4] COE (on behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another (1993) 118 ALR 193; Mabo v Queensland (No 2) (1992) 175 CLR 1, 107 ALR 1.
[5] Museums & Galleries of NSW website https://mgnsw.org.au/sector/aboriginal/aboriginal-language-map/
[6]COE (on behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another (1993) 118 ALR 193 [194].
[7]COE (on behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another (1993) 118 ALR 193, 201.
[8]COE (on behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another (1993) 118 ALR 193, 50 [196].
[9] COE (on behalf of the Wiradjuri tribe) v Commonwealth of Australia and Another (1993) 118 ALR 193, 195.
[10] (1993) 118 ALR 193 ‘Coe’ 50 [196].
[11] Coe [196-197].
[12] APH op cit., Burney op. cit.
[13] Winch, Tara June, 2020, https://thestellaprize.com.au/prize/2020-prize/the-yield/ accessed 05072021.
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
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