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Where to From Here?

Explore the legal status of treaties with indigenous peoples, including the concept of concurrent sovereignty and the fallacy of terra nullius. Learn about the importance of acknowledging past truths and promoting tribal sovereignty.

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Where to From Here?

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  1. Where to From Here? Prof Tim McCormack Dean - UTas Law School

  2. What is the Contemporary Legal Status of The Promise? • R. v. Sioui (1990) Supreme Court of Canada on 1760 treaty between the British and the Huron Tribe: • Treaties with First Peoples must be ‘given a just, broad and liberal construction’ with ‘uncertainties resolved in favour of the [indigenous peoples] Indians’ • ‘what characterises a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity’

  3. Concurrent Sovereignty • Cherokee Nation v Georgia (1831) Marshall CJ, US Supreme Court: • ‘The Cherokee nation … is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokee themselves, or in conformity with treaties, and with the acts of Congress.’ • President George W Bush, May 2001: • ‘My Administration will continue to work with tribal governments on a sovereign to sovereign basis … We will protect and honour tribal sovereignty and help to stimulate economic development in reservation communities’

  4. Acknowledging Past Truths • Senator Pat Dodson: • ‘Our song lines, the ancient tracks of our ancestor spirit beings, created a sense of nation or oneness out of people who spoke different languages and occupied different landscapes’ • Callum Clayton-Dixon: • ‘From the ancient reciprocal relationship we have with our lands. This relationship finds its roots in our connection to kin and country, manifesting in our song, dance and story, our language, ceremony and law. It is vested in the individual, the tribe and the nation. Our sovereignty has endured since the first sunrise – it cannot be handed to us or taken from us. Aboriginal sovereignty can only be expressed or suppressed’

  5. The Fallacy of Terra Nullius • Mabo v Queensland (1992), Brennan J, High Court of Australia: • ‘To treat the dispossession of the Australian Aboriginals as the working out of the Crown’s acquisition of ownership of all land on first settlement is contrary to history. Aboriginals were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.’

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