The Uluru Statement from the Heart of May 2017 was addressed to the people of Australia from 250 delegates ‘coming from all points of the southern sky’. While clearly a political manifesto, it embodied significant assertions about both history and law, declaring that the Aboriginal and Torres Strait Islander tribes were the ‘first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs’. This sovereignty, the statement continued, ‘has never been ceded or extinguished, and co-exists with the sovereignty of the Crown’. How could it be otherwise, the delegates asked, ‘that peoples possessed a land for 60 millennia and this sacred link disappears from world history in merely the last two hundred years?’
Much of the commentary that followed the release of the statement failed to appreciate that it embodied a direct challenge to the whole structure of Australian law, which was premised on the idea that the British Crown had acquired an original sovereignty over the continent in 1788, 1824 and 1829, because the First Nations peoples were too far below the threshold of social and political organisation to be seen as settled societies. In a case of 1889 the Privy Council declared that Britain acquired the continent because in 1788 it consisted of a ‘tract of territory practically unoccupied without settled inhabitants’. This might all seem antiquarian. But up until the present, Australian courts have determined that they cannot challenge the original claims of sovereignty because as acts of state they are out of the reach of local, or as it is termed, ‘municipal’ courts.
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