EcoRights and Cosmovision

'Climate Change Law and the Rights of Nature: A Colombian Example Through an International Perspective' by Mario Alejandro Delgado Galarraga in (2022) 13(2) Revista Catalana de Dret Ambiental 1-44 comments 

In 2018, the Colombian Supreme Court bestowed rights to the Amazon Region. The growing climate change risks brought the Court to rule this way. The ruling relied on international environmental law, comparative law, and national policies. The discussion of Rights of Nature is not new; various States have relied on this practice to strengthen environmental protection. Constitutional provisions, legal acts and courts’ decisions are the source chosen by States to entitle the environment with rights. Remarkably, the Inter-American Court of Human Rights already identified how rights of nature are applied in certain American States, raising this discussion to international environmental law. The Colombian Court award may cause further discussions: first, it will allow rights of nature as an alternative in environmental litigation processes, included climate ones. Second, concerning international environmental law, it may contribute to the idea of constituting a regional state practice on rights of nature recognition. 

 Galarraga states that the Colombian Court 

 examined Colombia’s international obligations, national policies, and the measures taken to fulfil them. To this end, besides ordering administrative sanctions on the Government, the Colombian Court noted that there must be a more effective way to fight climate change than the measures already in practice. The Court concluded that to protect the environment and ensure the fulfilment of Colombia’s climate change obligations, the Colombian Amazon Region was to be entitled to certain rights: the right to protection, conservation, maintenance, and reparation. 

The judgement developed a new paradigm for addressing climate change commitments and their connection with the Rights of Nature (RoN), to the point of making it the cornerstone for upcoming judicial awards concerning the environment, and creating a consistent judicial practice. In the same sense, the importance of the ruling was in the decision to bestow rights to a whole ecosystem, rather than to a single entity like some previous cases. Finally, it linked three legal concepts: deforestation (climate change), rights of future generations, and RoN; an unusual occurrence in the legal world. 

This study, relying on this particular case, evaluates whether there is a link between international environmental law and the foundations of RoN. If so, it will review how the Supreme Court managed to merge both concepts. This investigation will give a general overview of RoN, citing the diverse roads taken by those States that have recognised this set of rights. Then, it will examine how the Court addressed general environmental issues and discuss its approach towards RoN by contrasting its arguments with existing international environmental law norms. Afterwards, this paper will examine how the Court, taking into consideration the existing climate change emergency, determined that recognizing the Amazon region as a bearer of rights was imperative. Finally, the study will review how RoN and climate change are interrelated by reviewing how these rights could contribute to climate litigation processes. Although this research does not intend to extensively discuss the legal and philosophical perspective of RoN, it will expose how national and international judges are using legal conceptual alternatives to address environmental matters, specifically, climate change.It will briefly display the current legal status of this set of rights.This study also explains how certain contested concepts, such as RoN, can be employed when interpreting an environmental legal claim, even though they are not part of a legal framework, such as in the Colombian case. Additionally, this document will expose the potential repercussions of the Colombian Court’s decision in future environmental-related legal claims at both the national and international levels.

OPCA Straw

In R. v. Viau, 2022 ONSC 5825 the Ontario Superior Court of Justice dealt with yet another OPCA claim. 

The judgment states 

 [4] This was a challenging case for the trial court when it came up on April 12, 2021. The appellant was self-represented and presented as an OPCA litigant. Right from the start of the case he refused to answer simple procedural questions or engage with standard courtroom ritual. 

[5] When the trial judge asked the appellant if he was ready for his trial, the appellant claimed that he was the victim of “trespass by way of robbery.” He claimed to be accused of “owing a debt” and that he and his property were being held “as ransom.” The trial judge repeated his question and was met with a farrago of legalese, and a claim of entitlement to a trial by jury, to which the trial judge responded that he was not entitled to one. This led to the following exchange: THE COURT: It is a summary conviction offence. [THE APPELLANT]: I don’t give a s***. I’m entitled to a trial by jury. 

[6] The appellant talked while the trial judge spoke and the trial judge warned the appellant that he was going to have the appellant removed and proceed in his absence if he continued to interrupt. While the trial judge directed the clerk to arraign the appellant, the appellant continued to interrupt. When the clerk began to arraign, and stated the appellant’s name and date of birth, the appellant responded: “I don’t know my date of birth, I was pretty young at the time that I was born. My date of birth is hearsay information.” 

[7] The trial judge at that point ordered the appellant removed pursuant to s. 650 of the Criminal Code “because he is misconducting himself and interrupting the proceedings so that to continue in his presence would not be feasible.” As he was required to do by s. 606(2) of the Criminal Code, the trial judge entered a plea of not guilty on the appellant’s behalf, at which point the appellant, who had not yet been removed, accused the trial judge of “practicing law from the bench.” 

[8] Briefly, the charge before the court involved an allegation that the accused had failed to re-attend court in the Superior Court of Justice on November 13, 2019. After arraignment, the Crown introduced into evidence a certificate of non-attendance, a transcript of the proceedings from the set date on October 4, 2019, and notices that were served on the appellant of the Crown’s intention to adduce those items into evidence at trial. The Crown explained that the transcript contained utterances from the appellant that he had made on the set date, to be used for their “truth” and for the Crown’s use “if [the appellant] was going to take the stand in his own defence.” The trial judge noted in response, “that doesn’t appear that that’s going to happen…[b]ut I will invite him to do so if he wishes to do so.” 

[9] As the transcript of proceedings of October 4, 2019 makes clear, on that date the appellant had been similarly obstructive. He had offered pseudo-legal statements and argument and he told the presiding justice that he would not re-attend court on the return date that was set, November 13, 2019. All the while, the appellant continued to ignore the presiding judge and talk over him. 

[10] After the Crown had filed the written material at the appellant’s trial, he suggested that the appellant be brought back into court “to see if he’s changed his mind at all at this stage” since he had had a “few minutes of cooling”. On the appellant’s return to court, the trial judge explained that the clerk had arraigned the appellant and the trial judge had registered a plea of not guilty on the appellant’s behalf in his absence. The appellant then continued in the same vein as earlier in the proceeding: that the judge could not practice law from the bench, that “guilt” means “debt” in German, and that the appellant should be presented with a bill so that he could pay his “debt”. The trial judge again had the appellant removed, as he was being disruptive, disrespectful, and interfering with the proceedings. 

[11] After that, the Crown called as a witness a court officer from the North Bay courthouse, who identified the appellant and gave evidence about his attendance on October 4, 2019 and his non-attendance on November 13, 2019. The Crown closed its case, and the trial judge immediately proceeded to give his reasons. 

[12] The trial judge first explained that he was aware that the appellant has the right to make full answer and defence but given the appellant’s behaviour in court on two occasions, “I am satisfied that that is beyond his focus today.” He made reference to aspects of the appellant’s conduct. The trial judge then referred to s. 650(2)(a) of the Criminal Code and explained that he had acted in accordance with it. The trial judge continued that when the appellant was recalled, “he simply refused to acknowledge anything that I said.” The trial judge then scrupulously reviewed the evidence offered by the Crown and found the appellant guilty of the charge. 

[13] After the finding of guilt, the Crown made sentencing submissions, in the appellant’s absence. The appellant was brought back into court and conducted himself as he had earlier. When the trial judge referred to him as “Mr. Viau”, the appellant denied being a “mister”; he was a “man”. The court then explained to him, “Okay, man. We have now completed the Crown’s case.” The appellant then spoke about being presented with a bill so that he could pay his debt. The trial judge continued: “I’m at the point where I found you guilty and I have to sentence you…. I want to know if you want to say anything with respect to sentence?” The appellant responded that “I don’t consent to any of this” and then continued into pseudo-legalese. The trial judge imposed the sentence that the Crown had proposed in the appellant’s absence. 

[14] At this point, the appellant asked, “Where was my fair trial in an impartial and independent tribunal?” The trial judge briefly spoke of his reasons for excluding the appellant from the courtroom, and the appellant claimed that the court was “a British private court.” Invoking the “Constitution”, the appellant asserted that he had been denied an “independent or impartial tribunal”. 

Grounds of appeal 

[15] The Notice of Appeal is consistent with the appellant’s presentation at trial. In answer to the question on the form, “Plea at trial”, the appellant wrote a response: “no plea was entered by the man known as Joel.” 

[16] Listed among the grounds are many that are familiar from this and other OPCA litigants, such as, among others:

“1. Failure to provide subject matter jurisdiction…. 

2. Interfered with International Human Rights Documents…. 

4. Failure to provide a sworn affidavit in support of the claims made against me as a man…. 

6. No valid contract between the Corporation of HER MAJESTY THE QUEEN and the Corporation of JOEL RAYMOND VIAU…. 

12. Invocation of Article 61 of the Magna Carta in 2001… 

19. The Crown templar prosecutor abandoned the rule of law by creating and continuing a conflict…. 

22. There had been aggreement [sic] of the parties by tacit acquiesce [sic].”

It is not my intention to comment on these grounds, as they are frivolous OPCA nonsense. 

[17] Some grounds could perhaps be construed as legitimate grounds, even if poorly or contemptuously worded:

“14. Interference with my rights as a man to an independent court of record where all parties swear to tell the truth…. 

16. Fraud on the court by the judge….”

It is not my intention to tease meaning into these grounds, as it is unnecessary to do so given other legitimate concerns raised by the appellant. 

[18] Those legitimate concerns relate to the appellant’s exclusion from court during his trial, and to the court’s failure to give him the opportunity to make full answer and defence. While the respondent submits in its factum that s. 650 of the Criminal Code was not directly raised by the appellant, I believe that a court must take a more expansive view of the appellant’s grounds, as he continues to represent himself and should not be deprived of his opportunity to seek appellate redress. I view the following listed grounds as engaging that provision of the Criminal Code:

3. Judge/administrative clerk interfered with Rights protected by the Constitution 

10. Interferance [sic] with my right to face my accuser 

13. Interferance [sic] with my rights as a man to a fair trial 

15. Interference with my rights as a man to have all the guarantees for my defense [sic]

Secrecy

The national Attorney-General has announced a review of Commonwerlth secrecy legislation, over a decade after the ALRC Report on that regime. 

The announcement states 

 A March 2021 survey of Commonwealth secrecy legislation conducted by the Attorney-General’s Department found there are 11 general secrecy offences and 487 specific secrecy offences in Commonwealth legislation. Separately, over 200 non-disclosure duties function as specific secrecy offences because a breach of these duties is criminalised by section 122.4 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code). Section 122.4 will sunset on 29 December 2023. 

Secrecy offences play a legitimate and important role in circumstances where the unauthorised disclosure of Commonwealth information may cause harm to essential public interests, such as national security and the safety of the public. However multiple reviews, including the 2010 Australian Law Reform Commission (ALRC) report Secrecy Laws and Open Government in Australia, have raised concerns about the number, inconsistency, appropriateness and complexity of a range of Commonwealth secrecy offences. 

In June 2018, the Parliamentary Joint Committee on Intelligence and Security (the Committee) recommended that, following the enactment of the general secrecy offences in Schedule 2 of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the EFI Act), the Attorney-General initiate a review of secrecy offences in other Commonwealth legislation, taking into account the set of principles contained in the ALRC report, Secrecy Laws and Open Government in Australia. 

In its unanimous and bipartisan report, the Committee noted the “array of specific secrecy offences … that will continue to exist once the proposed new general offences” were introduced by the EFI Act, and considered it likely that “many of these existing offences will no longer be required, or will require amendment”. The Committee recommended that the review of secrecy offences commence as soon as possible. However, no review was formally commenced during the life of the 45th Parliament. 

In August 2020, in its Inquiry into the exercise of law enforcement and intelligence powers on the freedom of the press, the Committee re-iterated its recommendation for a review of Commonwealth secrecy offences. The Committee recommended that such a review be prioritised for finalisation and report by June 2021, and that the review specifically consider whether relevant Commonwealth legislation adequately protects public interest journalism. On 15 February 2021, the then-Assistant Minister to the Attorney-General, Senator the Hon Amanda Stoker, approved terms of reference for the Attorney-General’s Department to conduct a limited review of Commonwealth secrecy offences with a specific focus on public interest journalism. However, that review was not completed. 

On 28 July 2022, the Attorney-General asked the Independent National Security Legislation Monitor (the INSLM) to complete a review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act). 

Separately, the INSLM has also commenced a review of the EFI Act, including the general secrecy offences introduced by that Act. However, the INSLM is not expected to report until 2024. 

On 11 August 2022, the Interim Report of the Royal Commission into Defence and Veteran Suicide recommended (among other things): For serving and ex-serving ADF members whose lived experience is intrinsically linked to security classified or operationally sensitive information, the defence available under the Criminal Code section 122.5(5) should be extended to cover information communicated to a Royal Commission. A defence to other secrecy offences will also be needed. 

Scope of the Review 

Having regard to the context set out above, the Attorney-General’s Department will conduct an inquiry and report on:

• any specific secrecy offences in Commonwealth legislation that are no longer required in light of the introduction of the general secrecy offences in the EFI Act; 

• the suitability and appropriate framing of the general and specific secrecy offences in Commonwealth legislation, having particular regard to: the principles outlined in the ALRC’s report Secrecy Laws and Open Government in Australia; and other relevant principles, including but not limited to those set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers; 

• any amendments to general and specific secrecy offences in Commonwealth legislation that are necessary to adequately protect individuals who provide information to Royal Commissions (balanced against other essential public interests); and a 

• ny amendments that are necessary to adequately protect public interest journalism (balanced against other essential public interests).

The Department’s inquiry and report should not include recommendations for amendments to the secrecy offences in the NSI Act, noting that the INSLM is likely to complete a review of those provisions in 2023. The Department’s report should identify and have regard to existing reports and inquiries, including but not limited to the INSLM’s report on the impact on journalists of section 35P of the Australian Security Intelligence Organisation Act 1979. For the purposes of this document, a reference to “specific secrecy offences” includes a reference to the 200 non-disclosure duties that function as specific secrecy offences because a breach of these duties is criminalised by section 122.4 of the Schedule to the Criminal Code. 

Vetting

The Guardian and New York Times report that claims by recently-elected congressman George Santos may be largely fictitious. 

 Santos may not have worked at Citigroup or Goldman Sachs, graduated from a New York college or run a pet rescue charity. Santos claimed that his family owned a portfolio of 13 properties; the Times found only one – an apartment in Rio de Janeiro. Claims that he owns a corporation providing an annual salary of U$750,000 and millions in dividends have also been questioned. The Times found records of a 2010 charge in Santos' native Brazil for using a stolen chequebook to buy shoes, and two eviction proceedings against him in New York over the past seven years. He asserted in an interview that his company, the Devolder Organization, had “lost four employees” at the 2016 Pulse nightclub shooting in Orlando. Reportedly none of the 49 victims were connected to Devolder. 

In statements to the Times Goldman Sachs and Citigroup indicated they had no record of Santos ever working there. Baruch College did not find any record of Santos studying there and the Internal Revenue Service was unable to locate a record for an animal rescue group, Friends of Pets United, that Santos claimed he had run for five years beginning in 2013.

Shades of past resume concoction such as that noted here and here.

NonHuman Animal Personhood

'(Feminist) Animal rights without animal personhood?' by Maneesha Deckha in Feminist Animal Studies (Routledge, 2022) comments 

This chapter takes up the pressing question of whether rights are compatible with animals’ status as legal beings. In Animals as Legal Beings in 2021, Deckha theorises a new animal-friendly legal subjectivity, which she calls “beingness”, as a better replacement for property, animals’ present abysmal legal status. Drawing upon feminist and other critical theory, the book argues that beingness can provide the protective shield against instrumental treatment that legal personhood is meant to provide, but unlike personhood, beingness does not demand that animals conform to paradigmatic human benchmarks to qualify for such protection. For many animal law scholars, the form that protection should take is rights. But it is not immediately clear to many how rights can exist without personhood. Given feminist arguments against recuperating personhood, a concept too anthropocentric in origin and design, this chapter asks whether the same fate must befall the concept of rights. Are they also unsalvageable as a liberatory tool for animals? The chapter reviews the hard-hitting critiques that feminist animal theorists have lodged against rights, but ultimately argues that rights as a legal tool may be retained and recuperated as part of a feminist revisioning of law for animals. ... This is not to say that rights are the ideal type of protection for animals, but simply that they are not foundationally limiting for animals as I have argued person- hood is. Part I of this chapter summarises my argument against personhood, which I developed in Animals as Legal Beings, as the replacement for property as animals’ legal status. It begins by considering an existing neo-Kantian account of why rights for animals are fine but personhood is not, to help differentiate the critical theory- informed reasons for why I say personhood is problematic. This background is necessary to understand why I say that personhood must be dispensed with but not rights, despite the limitations of rights, which I consider in the remainder of the analysis. Part II of the chapter reviews the critiques that feminist animal theorists have lodged against rights models given their liberal humanist tradition and replies to them.This part suggests that rights can be oriented away from this tradition, pointing to critical feminist and postcolonial scholarship that has advanced this position, in a way that personhood cannot be cementing the argument that rights and beingness are compatible. Part III then moves to consider whether rights are not only compatible with beingness, but actually might be productive in actualising this new legal outcome for animals.

Deckha's Animals as Legal Beings: Contesting Anthropocentric Legal Orders (University of Toronto Press, 2021) 

critically examines how Canadian law and, by extension, other legal orders around the world, participate in the social construction of the human-animal divide and the abject rendering of animals as property. Through a rigorous but cogent analysis, Deckha calls for replacing the exploitative property classification for animals with a new transformative legal status or subjectivity called "beingness." In developing a new legal subjectivity for animals, one oriented toward respecting animals for who they are rather than their proximity to idealized versions of humanness, [it] seeks to bring critical animal theorizations and animal law closer together. Throughout, Deckha draws upon the feminist animal care tradition, as well as feminist theories of embodiment and relationality, postcolonial theory, and critical animal studies. Her argument is critical of the liberal legal view of animals and directed at a legal subjectivity for animals attentive to their embodied vulnerability, and desirous of an animal-friendly cultural shift in the core foundations of anthropocentric legal systems.

Straw Gods and Homo Sapiens

Another instance of the unpersuasive straw man often adopted by sovereign citizens. In Rambaldi and Anor v Rice Bar Restaurant and Anor [2018] VSC 218 the Court states 

 [27] On 4 January 2018 the defendant filed an affidavit sworn by him on 28 December 2017. The affidavit is rambling, nonsensical and, aside from the occasional assertion in respect of matters the subject of this claim, is unresponsive to Mr Rambaldi’s affidavit of 7 December 2017. By way of example in this regard, an extract of the defendant’s affidavit (paragraphs [1] to [15]) reads as follows: SC:CTM

1. Kim Huit is consciously aware, that He is “Living Spirit” living as “Servant to Al Might Creator” in the “Greater Universe Continuum”. We are integrally interlocked to the immutable1 laws of this “Natural Element” wherein our inalienable “Spirit” is constituted in interlocutory law without been holder or occupier of “PERSON” Office. 

2. Therefore the Man called Kim Huit of the House Tang, with the Grace of God as living breathing soul force of man, whereas one of the people of the land called Australia, and sincerely avow that in Kim Huit’s correct and proper public capacity exclusively as the beneficiary to the Original Jurisdiction, being of majority age, competent to testify, a self-realised man upon the land, that My yes be yes, My no, no, My word be true, and that do avow the truths and facts contained herein, are of Kim Huit first hand, sincere belief and knowledge as being, true, correct, complete, certain and not misleading; and grateful to the Blessing of Almighty God to allow Kim Huit to write this affidavit: 

3. In the State of Victoria, the “Constitution Act 1975 – SECT 76, state that the Supreme Court of Victoria “to be a court of record and to have a seal. The Court shall be a court of record, and shall have and use as occasion may require a seal bearing an impression of the Royal Arms having inscribed thereon the words “The seal of the Supreme Court of the State of Victoria”; and such seal shall be kept in the custody of the Chief Justice of The Court”. 

4. THAT We make this “special appearance” before this honourable court, to assist the court in distinguishing between ourselves: Kim Huit living spirit of the House Tang and KIM HUIT TANG (and all the derivatives and variation in the spelling of the said name (CORPORATION SOLE), in DOG-LATIN of the grammatical fact stating that such NAME written in DOG-LATIN-GLOSSA style in any of your documents are Corrupt and Criminal, our appearance before the court must not be construed as volunteering or consenting to the Plaintiff or the court jurisdiction. 

5. That We have not engaged the services of licenced legal counsel and, thereby rebut any assumed “consent to contract” or “consent to jurisdiction”. 

6. That We are “Kim Huit” with the initial letter capitalized as required by the rules of English Grammar when writing the description of living Spirit man. With the blessing of Al Mighty Creator of All Things We become the son of a man and a woman that was born in our mother womb with rights of inheritance and issue from the house of Tang” with the initial capitalized.  

7. That We are not a life-less, dead-in-law-artificial-legal-entity-person- natural-person-human being. 

8. That We are who we are, not, who the imagination, devices or records of men, say that we are. 

9. That it is the responsibility of the plaintiff and court registrar to bring the correct party before the court, we are not that party. 

10. “. .And the LORD-GOD formed man of the dust of the ground and breathed into his nostrils the breath of life: and man become a living soul” Genesis Chapter 2:7 

11. That consistent with the God’s scriptures laws unless we have wilfully harmed someone or damaged their property, we have not committed any wrongdoing; and therefore we are not liable to answer or enter to any contract without consent or be liable for any damage/penalty(s) but the court should consider a remedy to the benefit of the Living Man Kim Huit of the House Tang. 

12. We truly believe and say that we had fulfilled our obligation lawfully with the A.T.O, we had tendered 7 payments in total in our good faith and accordance with Bill of Exchange 1909, as amended in2011 and administered by the Treasury .... 

13. ATO as a Government entity are well verse in financial instruments and the laws and obligations that must be followed, the Commissioner or his/her deputies know that they had the right to protest at the time stipulated in the instruments; however they chose not to show up at the time of the meeting and they failed or refused to protest and the ATO had never returned the tendered instruments. 

14. Awe (sic) demand that PITCHER PARTNERS and GESS MICHAEL RAMBALDI verify in writing that the A.T.O had never received any payment in a way of Bill of Exchange, and what firsthand knowledge do they have regarding the tendered Bill of Exchange to the ATO, or did ATO mislead them by not disclosing the true facts of the payments they received by BOE, or are they both colluding to deceive us and the Honorable Court to benefit financially. 

15. Notwithstanding we attached A.T.O’s Department inchoate instruments including what have been begun but apparently not completed (missing several material particulars, including some or all of the Parties being expressed in a representative capacity as part of our presentments that having been all accepted for valuable consideration as per the tenor of such terms, provisions and endorsements so expressed (subsequently issued complete with any negativing or limiting one’s liability by such endorsements), as being an “unqualified offer to Contract between the Parties” so named thereon.

[28] The affidavit continues for another 15 paragraphs in the same vein. If one were attempting an analysis of its substance, the defendant appears to contend that the court lacks jurisdiction to hear the claim and that by the proffering of bills of exchange the Commissioner’s claim (which constitutes the entirety of the plaintiffs’ claim in this proceeding) has been discharged. 

[29] On 23 February 2018, the defendant sought to file several additional documents, headed ‘Writ of Error’, ‘Facts-Finding’, and ‘Judicial-Notice’, which were in the same vein as the affidavit to which I have referred. On 27 February 2018 Ms Helena Konstanopoulos, an Assistant Registrar (Legal) and Deputy Prothonotary of the Court wrote to the defendant advising him that the documents had been rejected for filing as they had not been prepared in accordance with the rules of Court and were not in the correct form. The defendant responded on 14 March 2018 in argumentative terms.

In Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103 the Court states that the grounds of appeal by Mr Roberts were as follows: 

 1. A competent person would agree that the flesh of “daniel” or “daniel roberts” is not the same as the office of Trustee “Daniel” or “Daniel Roberts” or the Trust Corpus True Person “DANIEL” “ROBERTS” “DANIEL “ROBERTS” “BENEFICIARY”. 

2. The appellant is a living man with flesh and blood, a living man cannot defend himself in a civil jurisdiction. 

3. The appellant is a member of the Homo Sapien Species, owns Divine Trust Rights to a Good Soul, Body, Mind and Property. 

4. The appellant is not a Thing and cannot be Legally converted to a Thing via Civil Controversy. 

5. The appellant is a Property owner and is apologetic for any Mistake of Fact. 

6. The prospective respondent is a Protagonist of Drama and discharging this case is resolution of the Plot. 

7. The prospective respondent is a fictional Person and cannot make a claim against a living man Natural Person under the Law. 

8. The appellant is not surety for a corporate fiction, Inferior Trust(s) can’t stand, there is hidden accounting, we don’t accept punitive or cohesive benefits. 

9. The appellant is trustee of an express True Trust, appellant has a superior Trust position.

Literature and Defamation

'Legal Fiction: Reading Lolita as a Sentencing Memorandum' by Christina Frohock in (2022) 86(1) Albany Law Review comments 

 The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

SCAG earlier this month stated 

 On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions. This is subject to final agreement in the first half of 2023. Participants noted the significant work that has been undertaken by the interjurisdictional Defamation Law Working Party, led by NSW, since the exposure draft Part A Model Defamation Amendment Provisions were released in August 2022 for public consultation. A large stakeholder roundtable was held in September and 36 written submissions were received. Careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements to the Part A amendments. The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. 

The amendments include:

• Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results 

• A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B) 

• A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online 

• A requirement that courts consider balancing factors when making preliminary discovery orders

• Updates to the mandatory requirements for an offer to make amends for online publications

Participants agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 for defamation law and report back to the Defamation Law Working Party in the first half of 2023. 

Participants noted an update on Part B of the Stage 2 Review, led by Victoria, which considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies. 

Participants noted that consultation on the Part B reforms was finalised in October 2022 and that stakeholder feedback is informing final policy recommendations and amendments to the Model Defamation Provisions. This will enable consideration and agreement of the final Part B amendments in 2023. 

Participants agreed in principle that there should be a review of the Stage 1 and Stage 2 amendments to the Model Defamation Provisions beginning no later than 3 years after the commencement of the Stage 2 amendments (for both Part A and B) in all states and territories.

Constitutions

'Constitutionalizing in the Anthropocene' (Tilburg Law School Research Paper) by Floor M. Fleurke, Michael C. Leach, Hans Lindahl, Phillip Paiement, Marie-Catherine Petersmann and Han Somsen comments 

The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never limited to human concerns, but always and already part of more-than-human collectives, in which both humans and nonhumans act with co-agency, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualizing demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimizing and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal institutions capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations within and beyond humans.

VAD

'Who is Eligible for Voluntary Assisted Dying? Nine Medical Conditions Assessed Against Five Legal Frameworks' by Ben White, Lindy Willmott, Katrine Del Villar et al in (2022) 45(1) University of New South Wales Law Journal coments 

Eligibility criteria in voluntary assisted dying legislation determine access to assistance to die. This article undertakes the practical exercise of analysing whether each of the following nine medical conditions can provide an individual with access to voluntary assisted dying: cancer, motor neurone disease, chronic obstructive pulmonary disease, chronic kidney disease, Alzheimer’s disease, anorexia, frailty, spinal cord injury and Huntington’s disease. This analysis occurs across five legal frameworks: Victoria, Western Australia, a model Bill in Australia, Oregon and Canada. The article argues that it is critical to evaluate voluntary assisted dying legislation in relation to key medical conditions to determine the law’s boundaries and operation. A key finding is that some frameworks tended to grant the same access to voluntary assisted dying, despite having different eligibility criteria. The article concludes with broader regulatory insights for designing voluntary assisted dying frameworks both for jurisdictions considering reform and those reviewing existing legislation.

Fake News

'Fake News and the Tax Law' by Kathleen Delaney Thomas and Erin Scharff in Washington and Lee Law Review (Forthcoming) comments 

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves. 

That people are easily confused by taxes is nothing new. However, with the rise of social media platforms, the speed at which misinformation campaigns can move to shape public opinion is far faster now. The past five years have seen a dramatic shift in the landscape of false information, and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news. 

Building on this burgeoning literature, this Article is the first to examine the incidence and impact of fake news on the tax law. We analyze a unique dataset of tax stories flagged as “false” or “untrue” by reputable, third-party news sources. We use this dataset to explore common themes in fake tax news, as well as the ways tax laws’ complexity contributes to spreading false information. We then offer recommendations for how tax administrators and policymakers can combat these misinformation efforts. Specifically, we argue that insights from the literature on fake news can and should inform how administrators disseminate true tax information to the public. Further, understanding what types of tax laws are easily misunderstood or subject to manipulation should inform substantive tax policy design.

CRT and data

'Data, the New Cotton' by Chaz Arnett - CRT meets Big Data -   comments 

The early transformation of the United States into an industrial power is often attributed to our innovative capitalist system. “Capitalism” is a convenient abstraction that we often neglect to concretize because when we do, it becomes clear that the economic success of the nation was, in truth, extracted from, and built upon the enslavement and exploitation of black bodies in the cotton industry. This enslavement and exploitation was popularly justified through calculated feedback loops of racial subjugation, demonization, and dehumanization. Even after the end of non-carceral slavery, the capitalist economic system continued to actively incentivize the maintenance of these feedback loops. The products changed, but the system essentially remained the same. In the present day, the United States’ wealth is largely built and maintained by a “data economy” involving the extraction, processing, and sale of human data. The products and processes may seem benign as abstractions, but once concretized, we see the same patterns of racialized subjugation and exploitation in the data economy as we did in the cotton industry. This essay is intended to ground some of these abstract processes in reality, and demonstrate how plantation logics are currently alive and well in the modern data economy. The reader is encouraged to use this essay as an entry point into exploring and understanding how the interplay of race, capitalism, big data, and surveillance incentivizes and maintains the subjugation and exploitation of African Americans in the modern United States.

Contempt

In Yap v Matic [No 4] [2022] WASC 422 Solomon J in dealing with contempt refers to sovereign citizenship -

 On 27 October 2022, I found the defendant Sandi Matic guilty of contempt by reason of his breach of the court's orders dated 11 February 2022. My reasons were set out in Yap v Matic [No 3] [2022] WASC 370, which in turn are to be read with reasons I published in Yap v Matic [2022] WASC 181. 

The circumstances of Mr Matic's contempt are explained in those reasons and need not be repeated. 

Procedural background 

As Sandi Matic did not appear at the hearing of 27 October 2022, and also to give him further time to consider his position, I deferred the issue of the appropriate penalty to a hearing on 25 November 2022. Sandi Matic was given ample notice of that hearing. Sandi Matic did not attend on 25 November 2022. On that day I made an order that: The defendant, Sandi Matic, shall appear in person at the Supreme Court of Western Australia at 2.00pm on Wednesday, 30 November 2022, for delivery of the reserved decision. 

Those orders were sent to Mr Matic from the court via email on 25 November 2022. Additionally, the plaintiffs have filed an affidavit of service by Cheryl Lorraine Harrison sworn 28 November 2022 that deposes to the fact that Mr Matic was personally served with those orders, as well as a letter from the plaintiffs' solicitors and a copy of the plaintiffs' submissions in respect of the penalty to be imposed. 

I explained at the hearing on 30 November 2022 that there could be no doubt that Mr Matic had received and was aware of the order that he appear at that hearing, in person. That awareness was illustrated by Mr Matic's correspondence with the court, and with the plaintiffs' solicitors, up until and indeed during the hearing of 30 November 2022. In particular, less than an hour before Mr Matic was due to appear, he sent via email to my chambers a letter addressed to me. Relevantly, that letter included the following passage:

With no evidence to show that we are a named party to these proceedings we kindly decline your invitation to attend this meeting but we offer the Honourable Court to attend future appointments as a friend of the court, Amicus Curiae.

As I explained on 30 November 2022, Mr Matic's repeated failure to appear before the court has delayed these proceedings and interfered with the ability of the court to dispense with this matter. 

I was therefore satisfied that Mr Matic's failure to appear when he had been ordered to do so was, on its face, grounds for the court to charge Mr Matic with contempt of court pursuant to O 55 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC). ...

Mr Matic emailed my chambers this morning, 7 December 2022, in the following terms:

i; private living and peaceful man, 'Sandi' accept your invitation to attend as special appointment to the Honourable Court today at 16:30 at Perth with intention to clarify the mistakes that we believe have been made. 

That email is important for two reasons. The first is that it once again highlights Mr Matic's difficulty accepting the authority of the court. That is illustrated by his characterisation of a court order, and indeed of an arrest warrant, as an 'invitation to attend'. Secondly, this email confirms that Mr Matic did receive the court's orders dated 30 November 2022 and was given notice of the court's allegation of contempt and the circumstances giving rise to that charge. 

At 12.45 pm today, Mr Matic was arrested and remanded in custody. Those are the circumstances that have led to Mr Matic's appearance today. 

Penalty for contempt of court 

I now return to the issue of the appropriate penalty to impose upon Mr Matic in relation to the conviction for contempt handed down on 27 October 2022. 

In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic), the High Court adopted the description of the cardinal feature of the power to punish for contempt as being that it is 'an exercise of judicial power by the courts to protect the due administration of justice'. 

Like that case, here the contempt proceedings arose in the course of a civil proceeding. The comments of the High Court reflect and embody a principle that is both fundamental and ubiquitous; that is that the rule of law and the administration of justice require that all persons in society accept that court orders manifest the application of the law by which all people are governed and that for civil society to be maintained, such orders must be obeyed. People are entitled to adopt and with limited qualifications to express, whatever beliefs they choose no matter how others may regard them. But compliance with court orders is a foundational feature of the rule of law. Many cases throughout the common law world have expressed that sentiment in one way or another. Relevantly, in a number of the cases in Australia, the offending conduct was undertaken brazenly in opposition to the court's authority for financial gain. In other cases, the conduct was part of an orchestrated campaign designed to achieve a purpose, such as a political or industrial outcome in which a deliberate decision was made to flout the court's authority in pursuit of the desired objective. 

In at least some of those cases, public disregard for the authority of the court appeared to be part of the strategy in the achievement of the offender's objective. An important feature was the conscious disregard of the court's authority for personal gain or in furtherance of some cause. 

An example is the High Court case of CFMEU v Boral Resources (Vic) itself. In that case, it was alleged that an industrial union had disobeyed orders made by the court by establishing a blockade of a construction site. As I have noted, in other cases, parties have disobeyed a court's order to make a financial gain or to agitate some political or social cause. 

Here, it is less clear that the defendant was quite as strategic in his disobedience of the court's orders. He appears to have been motivated by a deep sense of grievance arising from his complaints in relation to a commercial transaction, and the proceedings that have been brought against him. The conduct which I have found amounted to a contempt appears to have been undertaken out of a sense of self-righteous anger, in which disregard of the court order was a collateral consequence 

Put simply, it does not appear to me that disobedience of the court's orders or rejection of the court's authority was of itself the defendant's objective when he breached the injunction granted on 11 February 2022. 

At the same time, the defendant has expressed views that could be characterised as inconsistent with an unqualified acceptance of the court's authority. These views have been expressed in comments made by Mr Matic before the court, and in correspondence to my chambers, and correspondence to the plaintiffs' solicitors. Those comments include what appear to be challenges to the court's authority to control the defendant, including the apparent preconditions of his submission to the court's authority, such as whether the court or a judicial officer has entered into a 'contract' with him. Other comments reflect somewhat incoherent or at least unorthodox views about establishing the identity of certain people. The defendant has, for example, demanded that the court identify the defendant himself. These communications have included misguided and distracting debate about the meaning of words such as 'you', and whether the defendant's name when expressed in capitals, refers to him or to some other entity. Some of the views expressed by the defendant might be regarded as irrational, bizarre, or even offensive. 

The communications received by the court on 30 November 2022 referred to at [5], demonstrate the flavour of these comments. I have annexed a selection of that correspondence to this judgment at Annexure A and Annexure B. 

For present purposes, the mischief in the comments with which I am concerned relates not to whether these views are correct or sensible, but rather to the acceptance or rejection of the court's authority. 

It appears that to one extent or another, the views expressed by the defendant are shared by a growing group within society that has loosely been referred to as the sovereign citizen movement and perhaps by other names or descriptions. There are aspects of the views of that movement that have come before this and other courts, including some of the views expressed by this defendant, which reflect a rejection to one degree or another of the court's authority. Those views, and their apparent increasing popularity, or acceptance, cannot be dismissed as harmless or bemusing nonsense. The promulgation of such views and beliefs represents a dangerous corrosion of some of our society's most fundamental values in the maintenance of the rule of law and the administration of justice. The events in the United States of America over recent years reinforce the vigilance required to protect those values and the danger inherent in taking them for granted. 

But at the same time, I am not persuaded, and certainly not beyond reasonable doubt, that it is the holding of such views which inspired Mr Matic to engage in the particular conduct that I have found amounted to the contempt of which he was convicted on 27 October 2022. 

I am therefore not persuaded that for the purposes of this judgment, I should proceed on the basis that views expressed by this defendant regarding the authority of the court, were the motivating force for the particular behaviour that amounted to the contempt. 

In the circumstances, it seems to me that the most important consideration is personal deterrence; that is, imposing a penalty that makes clear to the defendant that he should be conscious of the requirement to obey the court's orders. In Wood v Staunton (No 5), Dunford J summarised the relevant matters to consider in respect of the proper punishment to be imposed for contempt in refusing to answer a series of questions at a Royal Commission. That summary has been adopted in the context of disobedience of a court's order at a civil proceeding by this court; see for example State of Western Australia v Galati [No 4]. The relevant matters are as follows:

(i) the nature and seriousness of the contempt proved; (ii) the consequences of the contempt; (iii) the context in which the contempt was committed; (iv) the reason for the contempt including whether the contemnor intended subjectively to commit the contempt; (v) any benefit received by the contemnor; (vi) whether there has been any apology or public expression of contrition; (vii) the circumstances, character and antecedents of the contemnor; (viii) general and personal deterrence; and (ix) denunciation of the contempt.

Sovereignty

In Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650 the NSW Supreme Court has taken judicial notice of the Uluṟu Statement from the Heart. 

It recognises the spiritual sovereignty of ATSI peoples over the Australian Continent and adjacent lands, co-existing with the sovereignty of the Crown.  The judgment will presumably be misread as recognising a non-spiritual sovereignty.

The Court states 

 It is convenient to set out the orders sought by Mr Anderson in his motion (without alteration): 

 

1   That the originating process by the Indigenous Land and Sea Corporation be dismissed in accordance with the NSW Uniform Civil Procedure Rules, Rule 12.11, 1(g) 

 

2   That the claim by the Indigenous Land and Sea Corporation be dismissed on the grounds that the Euahlayi/Yawaalaraay Nation falls within the definition of, Interpretation, 1 (b) of the Foreign States Immunities Act 1985. 

 

3 That this court make a declaration that to proceed with the plaintiff’s case without this court having the competency to adjudicate on Euahlayi laws and customary practices will prejudice the Défense of the First Defendant Michael Anderson and thus be in violation of section of the Commonwealth Racial Discrimination Act 1975. 

 

4 That this court make a declaration that this case cannot proceed without engaging ceremonially educated Aboriginal Senior law men and women who hold the sacred celestial knowledge law and customs. 

 

5 That the court make a declaration that the First named Defendant Michael Anderson’s Nationality is Euahlayi/Yawaalaraay (hereinafter Euahlayi) Dthane (man) 

 

6 That the court make a declaration that the first named defendant Michael Anderson (tribal birth name Ghillar) aka Michael Eckford (Registered Birth name) is the recognised Leader of the Euahlayi/Yawaalaraay Nation as recognised by the Foreign Sovereign Head of the Commonwealth of Australia, the late Queen Ngudthy 11, (for the purpose of observing Euahlayi law and customary practice. It a sign of respect not to name a deceased person) In regard to the recognition of the First Defendant See Cross Claim affidavit of Michael Anderson dated July 21, 2021, to Case No.2020/00363972 annexure C. 

 

7 The Euahlayi/Yawaalaraay Nation does not submit to the jurisdiction of this court but are making this submission in accordance with section 10 (7) (b) of the Foreign States Immunities Act 1985. That is: Section 7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that: (a) it has made an application for costs; or (b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity. 

 

8 That this court make a declaration that to proceed with this case number 2020/00363972 will violate section 10 of the Racial Discrimination Act 1975 on the grounds that the court fails in its ability to consider Euahlayi Laws and Customs because these laws and Customs belong to a Foreign Nation who have never been Conquered, ceded, nor acquiesced. 

 

9 Further to this, I respectfully submit that this court does not have jurisdiction to consider the origins of Euahlayi/Yawaalaraay ‘celestial law’ that establishes the laws and Customary practises of the Bhurrah (Peoples) within the boundaries as they are and always will be independent clans’ territories within that Euahlayi/Yawaalaraay boundary. 

 

This is a matter that falls within the same category as ecclesiastical law and does not fit within the scope of civil and common law jurisdiction. 

 

There is a fundamental inconsistency in Mr Anderson’s challenge to the Court’s jurisdiction. He seeks to have the plaintiff’s proceeding dismissed yet, on the other hand, he presses his Cross-Claim and also seeks various declaratory orders as set out in his motion. 

 

In brief, the challenge to jurisdiction raises the following four matters: Whether the Foreign States Immunities Act 1985 (Cth) applies. Whether the Pacific Islanders Protection Act 1872 35 & 36 Vict c 19 (Imp) and Pacific Islanders Protection Act 1875 38 & 39 Vict c 51 (Imp) apply. Related to issue (2), whether Mr Anderson can claim a sovereignty which takes him outside the Court’s jurisdiction. 

 

Whether the Court lacks competency and capability to adjudicate on Euahlayi laws and customary practices. 

 

It is convenient to address each of those matters in turn. 

 

(1) Foreign States Immunities Act 

 

The Foreign States Immunities Act provides for a general immunity of a foreign State from the jurisdiction of Australian courts, except as provided by or under the Act. 

 

There are several reasons why Mr Anderson’s reliance upon this legislation is misconceived. First, there is the fact that Mr Anderson is a party to these proceedings in his personal capacity, being a person occupying the lands without the permission of the registered proprietor. The ILSC did not challenge Mr Anderson’s claim to be the ceremonial Elder of the Ghurrie Clan and recognised ceremonial Elder and Leader of the Euahlayi Nation. The fact remains, however, that he is sued in his personal capacity. He personally does not qualify as a “foreign State” within the definition of that expression in s 3 of the Act, which means: … a country the territory of which is outside Australia, being a country that is: (a) an independent sovereign state; or (b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state. 

 

Even if it be assumed for the sake of argument that the relevant State is the Euahlayi Nation and not Mr Anderson personally, the territory to which that Nation relates is not territory which is “outside Australia” for the purposes of the definition of “foreign State” in s 3. The term “Australia” is defined in s 3 as: when used in a geographical sense, includes each of the external Territories. 

 

There can be no question that the reference to “outside Australia” in the definition of “foreign State” is a reference to the country of Australia in a geographical sense. Thus, even though Mr Anderson asserts that the Euahlayi Nation has never been part of Australia in the sense of never having ceded its sovereignty, geographically speaking that Nation’s territory is physically part of Australia. 

 

Secondly, even if, contrary to the above, Mr Anderson could overcome these significant threshold obstacles to his reliance upon the Foreign States Immunities Act, the effect of s 14(1) of that Act is that a foreign State is not immune in a proceeding to the extent to which the proceeding concerns: (a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or (b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind. 

 

There is no doubt that this proceeding relates to the possession or use of immovable property in Australia. 

 

Thirdly, and for completeness, it is also relevant to note the effect of s 10(6)(b) of the Act. It provides that, subject to ss 10(7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by inter alia “intervening in, or taking a step as a party to, the proceeding”. As noted above (assuming contrary to the above that Mr Anderson personally is a foreign state), Mr Anderson has taken various active steps as a party to the proceeding, including filing a defence, an amended defence, evidence, and a notice of motion challenging the plaintiff’s claims of privilege in respect of certain documents. These various steps (which are distinct from the motion which challenges jurisdiction) cannot be described as steps taken in “the proceeding for the purpose or in the course of asserting immunity”, as referred to in s 10(7)(b). 

 

(2) Pacific Islanders Protection legislation 

 

As Mansfield J pointed out in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [54], this Imperial legislation was passed to protect the Indigenous peoples of the islands of the Pacific Ocean from kidnapping for the purposes of labour, a practice which is sometimes described as “blackbirding”. The preamble to the 1872 legislation expressly refers to “natives of islands in the Pacific Ocean, not being in Her Majesty’s Dominions” (emphasis added). Section 2 of that Act defined “Australasian Colonies” as including the colonies of New South Wales and Queensland. Those colonies were at the relevant time part of Her Majesty’s Dominions. 

 

The 1872 Act provided in s 3 that it was unlawful for British vessels to carry native labourers unless they had a licence granted, relevantly, by a governor of any of the Australasian Colonies. 

 

The fact that the legislation was directed to islands and places in the Pacific Ocean not being within Her Majesty’s Dominions is also made abundantly clear in s 6 of the 1875 Act. That provision empowered the making of Orders in Council to establish courts of justice with jurisdiction over Her Majesty’s subjects in such islands and places and to impose penalties etc. 

 

I respectfully agree with Mansfield J’s conclusions and reasoning in Walker at [56] as to why this legislation does not apply to Indigenous Australians, including Mr Anderson and/or the Euahlayi Nation: 

 

On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean “not being within her Majesty’s dominions”. As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty’s dominion, as had all the other colonies of Australia. 

 

Similar reasoning was applied by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [70], with which I also respectfully agree. 

 

(3) Sovereignty 

 

Order 6 sought by Mr Anderson in his motion appeared to raise a claim that the Euahlayi Nation constituted a separate sovereign nation in relation to which the Court had no jurisdiction. This claim also appeared to be supported by parts of Mr Anderson’s affidavit dated 21 September 2022, which included claims that “Sovereignty and Eminent Dominion over the said lands and waters of the Ghurriebhurrah are reserved to the ceremonial Elders” (at [12]) and that “the sovereignty of the Euahlayi/Yawaalaraay Nation continues and that we had Laws and Customs of our own” (at [19]). 

 

In oral address, Mr Anderson relied upon a “Declaration” and a “Declaration of Independence”, which documents appear to have been created on or around 1 July 2013. The Declaration states that the Euahlayi are the original peoples of the land and waters within certain defined territories identified in Sch 1 to the Declaration. The Declaration is signed by various persons. The Declaration of Independence, which is also signed by various persons, states that the “individual members of the Euahlayi State, representing each and all of our clans, are by virtue of our natural and historic inherrent (sic) right, resolve and declare the continuing sovereignty of the Euahlayi Nation, to be henceforth known as the ‘Euahlayi Peoples Republic’”. 

 

Mr Anderson said that copies of both Declarations had been sent to Her Majesty. Mr Anderson did not tender a copy of the letter which he stated he received in reply from Buckingham Palace. 

 

Notwithstanding these matters, and the fact that Mr Anderson also advanced arguments concerning the separate sovereignty of the Euahlayi people in his oral address in chief on the motion, in his oral address in reply Mr Anderson said that “… our argument is not about whether we’re a – about sovereignty. We’re not – that’s not the argument here. The argument here is about whether the Court has the capacity to deal with Yuwaalaraay law and make a decision over the land and the people who belong to the land as to whether or not they are entitled to be on that land. That’s the question here”. 

 

For completeness, however, I will now explain why the sovereignty arguments raised elsewhere by Mr Anderson must fail (as must also be his related reliance on s 10 of the Racial Discrimination Act 1975 (Cth)). 

 

To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point: 

 

43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held: 

 

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain. 

 

44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ: Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. 

 

45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J: 

 

[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. ... Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. 

 

46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia: Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. 

 

47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]-[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]-[17] per Connolly J. 

 

It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt his Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71]. 

 

Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original): Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. 

 

(4) Court’s competence or capacity 

 

As noted immediately above, in his oral address in reply, Mr Anderson identified his central argument as whether the Court has the capacity (or competency) to deal with the Euahlayi Nation’s law. That matter is also raised in orders 3, 4, 8 and 9 of his motion, and are elaborated upon in various parts of his affidavit dated 21 September 2022. For example, in that affidavit he claimed that Euahlayi laws and customs are foreign to the English common law, are sui generis and the Court lacked jurisdiction to “define and concluded (sic) the rights and interests of the Ghurrie clan under Euahlayi Law and Customs which are at the heart of the first defendants (sic) Défense and Cross Claim” (without alteration). He submitted that these matters were “more likely to be found in ecclesiastical laws”. He added that, because the Court could only adopt what he described as “a Eurocentric legal view of this case”, this prejudiced the Ghurrie clan’s rights and interests from being considered without apprehended bias.