Aboriginal people and the law - Legal Information Access Centre

40 The Law Handbook[2.10] Historical legacyTo understand the relationship betweenIndigenous people and the Australian legalsystem, it is essential to appreciate somethingof the history of that relationship.Which law?There are two legal systems for many Aboriginal andTorres Strait Islander people.The most obvious is the Australian legal system to whichall Australians are subject (with some differences betweenstates and territories). The other body of law thatapplies to Aboriginal and Torres Strait Islander people istheir own systems of customary law, beyond the lawsenacted by parliament or developed by the courts. TheHigh Court has only since the Mabo decision in 1992(Mabo v Queensland (No 2) (1992) 175 CLR 1) recognisedthat Indigenous laws survived invasion by the British andcontinue to the present time. So far this recognition hasonly been applied to the ownership and use of land andwaters, but it could conceivably extend to other areas.[2.20] The issue ofsovereigntyIndigenous people in Australia never cededsovereignty of the lands comprising theAustralian continent to the British Crown –that is, not one of the 600 or more clangroups (defined by dialect) ever gave upsovereignty over their traditional lands.Indigenous people argue that the Crown’sclaim to sovereignty is not sustainable underinternational law. However, in Coe v Commonwealth(1979) 53 ALJR 403 the HighCourt said that Australian courts were notcapable of deciding the issue of sovereignty,which meant that Indigenous Australianswould have to seek a ruling in internationallaw on the legality of the way in which theBritish government gained sovereignty overAustralia. The international courts are not,however, designed for what amounts tosecessionist action by Indigenous peoples orothers seeking to roll back colonialism. Theymay only hear matters between “nationstates”, and no Aboriginal and Torres StraitIslander group in Australia has that status.Indigenous people are left to seek remediesfor their dispossession under the domesticlaws of Australia and through politicalactions.Recourse to the United NationsWhere there has been a breach of an international treatyor convention, Indigenous people may be able to bringan individual or group application before the UnitedNations Human Rights Committee; for example mostrecently in 2007 in an application brought to theCommittee in relation to the Commonwealth Government'sEmergency Intervention in the Northern Territoryand earlier in 1998, regarding the effect of the amendmentto the Native Title Act 1993 (Cth) (The Ten PointPlan).Under the International Covenant on Civil and PoliticalRights, which Australia has signed, the Committee canhear complaints from Australian citizens where:• the violation occurred on or after 25 December 1991,and• the complainant has exhausted all available domesticremedies.