The question of whether Jim Everett, a Palawa Elder from Tasmania, is bound by Australian law raises profound issues of sovereignty, legitimacy, and justice. Australian law operates under the legal fiction of Crown sovereignty, established through colonial force rather than consent or legitimate agreement with First Nations peoples. This essay argues that Everett, and by extension all First Nations people, should not be compelled to adhere to a legal system. Imposed illegitimately and which continues to deny the pre-existing sovereignty and laws of the First Nations.
The Basis of Australian Law: Legal Fiction of Sovereignty
Australian law, like other systems in settler colonial contexts, founded on a legal fiction. The doctrine of terra nullius, declared in British colonial law, ignored the existence of First Nations peoples, their governance systems, and their unceded sovereignty. While Mabo v Queensland (No. 2) (1992) overturned terra nullius in property law, it left Crown sovereignty unchallenged (Neate, 1998).
This legal fiction creates a paradox: First Nations sovereignty predates colonisation, yet Australian courts continue to assert Crown sovereignty without legitimate basis. Legal scholar Irene Watson argues that the colonial state’s legal framework “is inherently violent, denying Indigenous law and governance through its very existence” (Watson, 2015). If the foundations of Australian law are illegitimate, it follows that it lacks moral authority over First Nations peoples.
Force vs Legitimacy in Law
Law can be understood as legitimate only when it reflects the consent of the governed and upholds principles of justice. Colonial systems, however, often sustained by force rather than legitimacy. First Nations laws, based on intricate relationships with land, water, and community, have governed the continent for tens of thousands of years (Pascoe, 2018). These laws were neither extinguished nor ceded by First Nations peoples, as evident by their enduring cultural practices and legal traditions.
The Case of Jim Everett
In contrast, Australian law imposed unilaterally through military and institutional force. Philosopher John Locke’s theory of legitimate governance posits that authority derives from the consent of the governed (Locke, 1689). By this principle, the Crown’s sovereignty over First Nations peoples is inherently illegitimate, as no treaty or consensual agreement ever formalised its authority.
The Uluru Statement from the Heart explicitly recognises that First Nations sovereignty “has never ceded or extinguished” (Referendum Council, 2017). This sovereignty, underpinned by complex and enduring legal systems, challenges the presumption that Australian law can justly supersede First Nations law.
A Superior Claim: First Nations Laws
First Nations laws remain operative and deeply embedded in their communities, governing relationships with the land and among individuals. In contrast to colonial law, these systems are sustainable, reciprocal, and rooted in millennia of lived experience (Dodson, 1996). If legitimacy, determined by continuity and moral grounding. First Nations laws hold a stronger claim to authority over their lands and peoples than the laws of a settler state imposed less than 250 years ago.
The Ethical Failure of Colonial Legal Systems
Compelling First Nations individuals like Jim Everett to adhere to Australian law perpetuates the colonial violence of dispossession and denial. The legal fiction of the Crown’s sovereignty is an extension of this injustice, as it enforces laws that have no legitimate foundation. Watson (2015) notes that this system relies on the denial of Indigenous governance and cultural continuity, reinforcing colonial power structures rather than rectifying historical wrongs.
Legal pluralism, where multiple legal systems coexist, has been successfully implemented in countries like Canada and New Zealand. Offering a pathway for recognising First Nations laws within contemporary governance structures. However, such recognition must occur on terms that respect First Nations sovereignty, not as a subsumption into the colonial system. Only through a radical rethinking of the legal framework can Australia move toward true justice and reconciliation.
Conclusion – The Case of Jim Everett
The argument that Jim Everett should not have to answer to Australian law is grounded in the principles of justice, legitimacy, and the unbroken sovereignty of First Nations peoples. While Australian law may currently have the force to impose its authority, it lacks the legitimacy to do so. As Watson (2015) observes, the colonial legal system’s inherent violence cannot extinguish the enduring sovereignty and governance of First Nations peoples. Reconciling this truth requires not the integration of First Nations laws into Australian law, but a transformation of the legal and political framework to recognise and align with the legitimacy of First Nations governance.
References
- Dodson, M. (1996). Indigenous peoples and governance structures. Canberra: AIATSIS.
- Locke, J. (1689). Two Treatises of Government. London.
- Neate, G. (1998). ‘The Mabo Case: Ten Years On.’ Indigenous Law Bulletin, 4(15), 4-5.
- Pascoe, B. (2018). Dark Emu: Aboriginal Australia and the Birth of Agriculture. Magabala Books.
- Referendum Council. (2017). Uluru Statement from the Heart. Retrieved from https://ulurustatement.org.
- Watson, I. (2015). Aboriginal Peoples, Colonialism and International Law: Raw Law. Routledge.
Leave a Reply