06/19/2014 14:42
Thoughts on and response regarding the article: Constitutional Recognition does not foreclose on Aboriginal Sovereignty. Davis, M. Indigenous law Bulletin 2012. Please read article at Link - https://www.ilc.unsw.edu.au/sites/ilc.unsw.edu.au/files/Megan%20Davis_0.pdf
The title of this article is misleading as nothing can foreclose on the sovereignty of the original peoples of the continent lands now known as Australia because human sovereignty is a fact in law; in its various forms of Original people's tribal law and universal European international law, therefore sovereignty always exists. To foreclose on sovereignty would mean to prevent it from existing. It is impossible to prevent the original people sovereignty from existing. An attempt to prevent current universal laws pertaining to sovereignty of people would negate the sovereignty of all claims that rely on it to exist, such as every sovereign nation on the planet. And to try and move such a law would set a common law precedent that would negate the sovereignty of all existing sovereign nations and monarchies. Therefore, the people are sovereign and always will be according to law and to even suggest it can be foreclosed on is an oxymoron statement. So the title is misleading.
This is the main focus of what the government is seeking to change with its Constitutional Recognition is this Act:
Commonwealth of Australia Constitution Act 1900 (A British Act of Parliament)
Powers of Parliament, Section 51(26): 'Special laws' for people of any race: s51(xxvi). - As initially drafted, s 51(xxvi) empowered the Parliament to make laws with respect to: "The people of any race, (other than the aboriginal race in any State), for whom it is deemed necessary to make special laws". The Australian people voting at the 1967 referendum deleted the words in brackets (other than the aboriginal race in any State). Thus, amending to constitutions special race powers law to more broadly include people of every race with intention to include the original people of the land too.
In a report delivered to the Australian Prime Minister on 19 January 2012, it was recommended that a referendum be held for the repeal of s51(xxvi), to be replaced by s51A (which empowers the Commonwealth to make laws for Indigenous Australians, but also recognises Aboriginal and Torres Strait Islanders as Australia's first peoples) and s116A (which prohibits racially discriminatory legislation or the making of laws under s51A that are not for the benefit of Indigenous peoples). The report also proposed the insertion of a new s51A which would permit the Parliament to make laws "with respect to Aboriginal and Torres Strait Islander peoples".
(Source: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, January 2012, ISBN 978-1-921975-30-1 - Wiki source: https://en.wikipedia.org/wiki/Section_51(xxvi)_of_the_Australian_Constitution )
With this in mind the co-chair of the Recognition in the Constitution panel, lawyer Mark Leibler key argument for adding the original peoples in the constitution is: "Quite early in the panel's deliberations we came to the view that it would be contradictory to recognise Aboriginal and Torres Strait Islander people in a document that still enabled them to be discriminated against on the basis of race. But removing the race power without replacing it would have unintended consequences, as a number of current laws such as native title and heritage protection laws depend on it."
And "Some people might question why you would want to remove race from the constitution and then replace it with a power to legislate for Aboriginal and Torres Strait Islander people. I would say we have to get away from this 19th-century idea that Aboriginal people are members of a "race". Their identity is based on ancestry, ethnicity and belief systems, not race. We need to have laws that relate to Aboriginal and Torres Strait Islander people just as we do for many groups in society - women, the elderly, the disabled, veterans, people living in remote areas - but these laws should be based on need and the national interest, not race."
(Source read more: https://www.smh.com.au/federal-politics/society-and-culture/racism-still-shadows-our-history-20120119-1q8iq.html#ixzz33ahJFOnV)
Here Liebler uses the argument of removing the word 'Race' as the excuse for wanting to add a specific statement of the need for parliament to be able to make laws for the original peoples so Native Title and Heritage Protection laws remain intact is discriminatory and segregates the original peoples as being the only secular group of people in Australia that parliament will have the ability to make special and specific laws for and meanwhile without the intention of obtaining their consent. Native Title attempts to usurp the sovereignty of the original peoples too by way of getting them to consent to labelling themselves as ('Aboriginal traditional owners' meaning TRADE OWNERS of land as opposed to sovereign owners of their land. See Aboriginal Title Link for further information: https://en.wikipedia.org/wiki/Aboriginal_title and description from this facebook link: https://www.facebook.com/210730945611610/photos/pb.210730945611610.-2207520000.1401867400./445441592140543/?type=3&theater )
Wanting to have special race powers over the original peoples raises many questions as to the government's ability of fortifying its desire to pass special race specific laws such as the NT Intervention laws more widely across the country as a consequence of creating such a special race law in the Constitution as its proposed new s51A Powers of Parliament law which will only target the original peoples and not the greater Australian public. This specific targeting of granting special race powers to parliament is unimaginable in these modern times that people of any country would seek to grant themselves such an oppressive abuse of power over the country's original sovereign inhabitants without respecting the tenets of self-determination or obtaining their informed consent.
By suggesting that a specific race power for parliament to make laws is needed in regards to the original peoples so existing laws such as Native Title and heritage protection laws would remain intact is a clear admission of being guilty of the government possessing no current jurisdiction without their consent over the original peoples as they have never ceded their sovereignty to the British monarch.
However, the danger lies within the context of what statement will be added to replace section 51s Special Race Laws in the Constitution with the granting of the Australian Parliament having the right to make specific laws for the 'benefit' of the Aboriginal and Torres Strait Islander peoples which will in fact essentially usurp and transfer the sovereign jurisdictional powers of the original peoples over themselves and their lands and waterways to the government to make laws and act on their behalf and to do it without their consent.
Essentially it's asking the original peoples to enter into social contract with the occupying government by way of getting them to campaign for recognitions and be publicly seen as consenting to and supposedly the driving force behind being recognised in the constitution. The Recognition in the Constitution campaign is in essence getting the original sovereign peoples of this continent to acquiesce their sovereign jurisdiction over their lands to lay solely in the hands of the legislative assembly of the Australian government. Who in their right mind would willingly agree to such a thing when sovereign jurisdiction at present lies lawfully in their hands?
The domestic conflict of interest for the Government and its High Court is that it is still refusing to obey International law and deal with the issue of its lack sovereign jurisdiction over the land and its original inhabitants. This is relevant to constitutional recognition and is summed up in this quote from this article, (Constitutional Recognition does not foreclose on Aboriginal Sovereignty. Page 13. Davis, M. Indigenous law Bulletin 2012.):
"The Constitution is not a place for conversations about sovereignty. As the Expert Panel argued:
The High Court has developed its own 'working definition' of sovereignty and Australia's legal system continues to operate accordingly. The judiciary is only one arm of government, however, and questions of settlement and legitimacy continue to be agitated in parliament and in discussion with government and in the public arena."
In Coe vs. the Commonwealth the High Court used is discretionary powers of interpretation and self-proclaimed that sovereignty of the original peoples is watered down and no longer existed.
Here is a description of these High Court Discretionary powers of interpretation with the Constitution. (Source: Judicial Interpretation
The High Court of Australia has the jurisdiction to interpret the constitution, an often controversial ability. Many of the court's interpretations have focused on section 51, from cases arising out of disputes between the states and the Commonwealth Parliament. Source: https://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitution )
As for the issue of domestic recognition of the original people's sovereignty the High Court of Australia is able to subvert international law conventions pertaining to sovereignty in favour of the government's unlawful occupation of the land. It does this because the High Court of Australia is at liberty to define the Australian constitution at its own discretion. Hence the utter denial of its lack of sovereign jurisdiction over the lands and waterways and its own discretionary right to claim its own sovereign juridical authority without any domestic need to honour the tenents of international law and universal human rights doctrines ultimately makes this country a rogue unlawful nation in the global arena in respect to Common Law.
