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.
