Indigenous communities may now have a legal pathway to ask the High Court to rule on the fundamental question of Indigenous sovereignty following the discovery of a landmark legal rule that challenges previous assumptions about the court’s power.
- Research identifies a 1935 legal rule stating that split-court decisions do not create legal precedent.
- The discovery opens the door for the High Court to hear cases regarding Indigenous sovereignty, overturning a stalemate from the 1970s.
- Legal experts warn the move is “high risk,” with the potential for massive legal change or devastating regression.
The Legal Pathway to Indigenous Sovereignty
Research conducted by Associate Professor Olivia Barr of Melbourne Law School has uncovered a 1935 legal rule in Tasmania v Victoria. Barr states this rule means there is an “open door” for the High Court to involve itself in questions of Indigenous sovereignty.
The issue stems from the 1970s case Coe v Commonwealth, where four High Court judges split two-two on whether the court should allow a trial on sovereignty. Because the vote was a stalemate, the case did not go to trial and it was widely assumed the High Court lacked jurisdiction.
However, Barr argues that because split-court decisions do not create precedent, the Coe case effectively never happened. This allows the High Court to agree to hear any future cases on Aboriginal sovereignty.
Australia remains the only Commonwealth country that has not signed a national treaty with its Indigenous peoples. Such a treaty would acknowledge sovereignty, defined as the authority and power of original inhabitants to govern aspects of their own lives.
Potential Risks and Historical Context
Despite the legal opening, Barr warns that pursuing a test case is “high risk.” She noted that such a move could result in massive legal change, the maintenance of the status quo, or “massive legal regression.”
Barry Judd, the University of Melbourne deputy vice-chancellor (Indigenous), suggested that Indigenous leaders and organizations will likely hold private discussions to determine if now is the right time to act, particularly following heightened racism after the Voice referendum.
Judd noted that this research should be viewed alongside the 1992 Mabo decision, which debunked the myth of terra nullius and recognized Indigenous land rights. He stated the research offers the legal system an opportunity to revisit historical “untruths” lived by Australians since 1788.
While Barr believes High Court recognition could lead to wider treaty-making and significant benefits, she cautioned that a negative result could be as devastating as the Voice referendum result.
Associate Professor Barr’s research was published in the University of New South Wales Law Journal on Thursday.
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