How could the simple planting of a flag by a sailor mysteriously transfer total control over the destinies of the original inhabitants of Australia to a distant king of whom they had never heard?
The sad answer to this question involves a series of illegal and corrupt decisions by the highest courts in England and Australia over more than 200 years. These decisions have served to deny the sovereignty of First Nations people. But these same decisions do not withstand rigorous legal scrutiny.
From the mis-application of the doctrine of Terra Nullius to the dependence on flawed and discredited precedent in calling on the doctrine of Act of State, the illegality of the dispossession of Australia’s indigenous people is laid bare.
This legal deconstruction of the major cases reveals the extreme fragility of the arguments denying Indigenous sovereignty. In fact, it shows that the very arguments used to deny this sovereignty, actually demand its recognition.
The Australian High Court has tied itself in knots to avoid facing the reality of Indigenous sovereignty. These knots are a legal fiction whose undoing illustrates the advantages of joint sovereignty as a just way forward for all Australian people.