Oodgeroo of the tribe Noonuccal, Custodian of the land Minjerribah, Peace Prosperity and Healing, Sacred Treaty Circles

Legal Issues

The Walker Case

the Applicability of Non-Aboriginal Law to Aborigines

by Justin Malbon

Denis Walker, a member of the Nunukel tribe which live on Stradbroke Island, was arraigned during June, 1988 in the Queensland Criminal Court on the charges of entering a dwelling with intent and on two counts of wilful destruction of property. He refused to enter a plea on the basis that the court had no jurisdiction to try him. He argued on his own behalf that Captain Cook had illegally claimed possession of Australia, by breaching his instructions, and that the principles in Magna Carta required that he be tried by his peers. He argued that an all white jury did not constitute his peers. Presiding Judge Skoien entered a plea of not guilty on Denis’ behalf. Denis was later found guilty of the two wilful destruction charges.

Walker appealed to the Queensland Court of Criminal Appeal in relation to the first trial. Again he argued his own case. On Ist December, 1988 the court dismissed his appeal. He then sought special leave from the High Court to appeal the Court of Criminal Appeal decision. On this occasion he was represented by Ron Castan QC and Bryan Keon-Cohen. The Chief Justice, Dawson and McHugh JJ refused special leave because they believed that the issues which counsel wished to put before the High Court had not been fully argued before the Court of Criminal Appeal.

In the Court of Criminal Appeal the Crown admitted, as a matter of historical fact, that before and after 1770 the Nunukel people occupied Stradbroke Island, they had possessed a system of government and laws and that Denis Walker is a descendant of the people who occupied the Island in 1770. Cook was instructed to take possession of “convenient situations” on the Australian continent “with the consent of the native” peoples. He failed to comply with that instruction. However, the Court of Criminal Appeal found that his “claim” was validated by a number of subsequent instruments. Despite that it is far from clear how the British were able to validly acquire territory occupied by a number of sovereign nations or groups which had in place their own systems of government and laws. The Court observed that the British claim of sovereignty:

raises the issue of how it is that judges and others in Queensland apply … these laws to Stradbroke Island; and, conversely, why the Nunukel people, who in times long past once exercised sovereignty over Stradbroke Island are without any formal displacement of their own legal system, now expected and obliged to submit to laws not of their own making.
The Court avoided any adequate answer to that question by simply asserting that

“the fundamental fact, be it historical, political or social, is that we as judges recognize the authority in Queensland of laws having their source in the Imperial, Colonial, State and Commonwealth statutes to which I have referred.”
The rational for this assertion appears to be on the basis that

“courts transfer their allegiance to a new legal order when they recognize that the old order has been effectively overthrown, a process described as revolution, which may be violent or peaceful or a combination of both”.
This extraordinary legal reasoning has been rejected by the courts in the US, Canada and New Zealand and requires challenge in Australia.

The Walker case is not the first case to challenge the jurisdiction of the Australian courts to deal with Aboriginal people. Despite that, there is no authoritative case which holds that non-Aboriginal Courts have jurisdiction over alleged offences by Aboriginal people occurring on their land. Tribal courts a r e n o t unprecedented as they exist under the US legal system which derived from the British common law. The High Court did not dismiss the appeal, but required that the arguments be properly put to the court below. The Walker case confirms that questions of the jurisdiction of non-Aboriginal courts over Aboriginal people and the means by which the British acquired Australian territory are yet to be resolved by an authoritative decision of a court.

Lawyers working in the area of Aboriginal law should be alert to the possibility of a well thought out jurisdictional challenge. They would be well advised to seek the opinion of senior counsel from the outset to ensure that the appropriate issues are raised so that they may be considered on appeal. So as to indicate the issues which arise in this context, I have listed below an edited version of the grounds of appeal in the Walker case. In view of the concessions mentioned in the said judgement made by the Crown, the Court of Criminal Appeal erred in law in that it should have found:

(a) that following 1770. 1788, 1824 and thereafter:
(i) the Nunukel peoples’ entitlement to Stradbroke Island in the State of Queensland being a traditional native communal title to the whole or part of the said island, survived and has not been displaced;
(ii) the said Nunukel people’s system of traditional government including administration of criminal laws inter se amongst the Nunukel peoples, or between Nunukel peoples and other peoples, survived and has not been displaced, to the exclusion of the application of the criminal laws of Queensland;
(iii) such survival of traditional government further was not impaired or displace by the establishment of the colony of Queensland and the administration of its laws therein including its criminal laws; by the establishment of the State of Queensland and the administration of its laws therein including its criminal laws; or by the establishment of the Commonwealth of Australia pursuant to the. Constitution in 1901, and the administration of its laws therein including the Commonwealth’s criminal laws.

Sublimus Dei

Pope Paul III (Topic: the enslavement and evangelization of Indians)

To all faithful Christians to whom this writing may come, health in Christ our Lord and the apostolic benediction.

The sublime God so loved the human race that He created man in such wise that he might participate, not only in the good that other creatures enjoy, but endowed him with capacity to attain to the inaccessible and invisible Supreme Good and behold it face to face; and since man, according to the testimony of the sacred scriptures, has been created to enjoy eternal life and happiness, which none may obtain save through faith in our Lord Jesus Christ, it is necessary that he should possess the nature and faculties enabling him to receive that faith; and that whoever is thus endowed should be capable of receiving that same faith. Nor is it credible that any one should possess so little understanding as to desire the faith and yet be destitute of the most necessary faculty to enable him to receive it. Hence Christ, who is the Truth itself, that has never failed and can never fail, said to the preachers of the faith whom He chose for that office ‘Go ye and teach all nations.’ He said all, without exception, for all are capable of receiving the doctrines of the faith.

The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.

We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic Faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.

By virtue of Our apostolic authority We define and declare by these present letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, which shall thus command the same obedience as the originals, that the said Indians and other peoples should be converted to the faith of Jesus Christ by preaching the word of God and by the example of good and holy living.

[Dated: May 29, 1537]

The Roman Catholic Church – Common Law Notice of want of jurisdiction

The Algonquin Nation’s Presentation to the Members Committee to Examine Matters Relating to the Accession of Quebec to Sovereignty (Feb 1992)

Full document HERE

An excerpt from the conclusion……

(11) Peoples, not states or governments, have the right of
self-determination, as was eloquently acknowledged by the
World Court in the 1975 WESTERN SAHARA case:

It is for the people to determine the destiny of the
territory and not the territory the destiny of the
people.

The territory of Quebec, as such, has na right of self-
determination. This right inheres in the people, and the
people alone, and cannot be exercised on their behalf.

(12) If the Quebecois and Quebecoises claim a right of self-
determination, it is only because they can establish their
credentials as a people. But by doing this, they implicitly
recognize an equivalent right for other peoples living within
the territory. The Algonquins are “peoples” within the
meaning of international law. They clearly have the right of
self-determination.


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