Article: High Court can hear cases on Aboriginal sovereignty, new findings show
New Article Published by Hub Member on First Peoples’ Sovereignty and the High Court
Hub Member, Associate Professor Olivia Barr, has recently published an interesting article examining the legal recognition of First Peoples’ sovereignty. In A Matter of Precedent, Barr revisits the long-standing interpretation of Coe v Commonwealth. This is a case often taken to mean that the High Court cannot determine questions of Indigenous sovereignty. She argues that this assumption is based on a misunderstanding of the case and that, in fact, the High Court may have the jurisdiction to hear such claims. She suggests there may indeed be a viable pathway for First Peoples to seek recognition of sovereignty through the courts.
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.”
Her research is published in the University of New South Wales Law Journal and has the potential to open the way for the Court to hear cases on the question of sovereignty.