Reparation: the colonisers’ fear of admitting the truth of invasion

Reparation: the colonisers’ fear of admitting the truth of invasion
2019 Canberra Invasion Day Rally (Photo: Lorraine Gibson Napaljari
SU Media Release

Ghillar, Michael Anderson 27 January 2019

One of the slogan chants of the Invasion/Sovereignty Day March in Sydney was "No accident, it was murder!", referring to the continuing and spiralling number of deaths in custody. International lawyers are now referring to First Nations Peoples’ Deaths in Custody as being attributed to State-sanctioned death squads. People wanting to know need to do research on this. It is in fact an untold story that is operating world-wide, but perfected in Australia.

Another slogan was "What do we want - Land Rights; When do we want it now!" All those years ago the militant young Blacks of the 1960s and 1970s succeeded in smashing PM Billy McMahon’s policy of leasing back land to First Nations Peoples, the owners of the country. But today, with the assistance of wilfully assimilated First Nations Peoples, centralised power and ownership of land is now a reality and as the current cries now state: "Native Title is NOT Land Rights."

The NSW Land Rights Act is not Land Rights. Other Land Trusts around Australia are not Land Rights. These Land Trusts only lease back land to their own people, as they hold the land in for the Crown. It should also be understood that this is an escheat regime, where the Crown retains ultimate title under a feudal-type system. Thus, Billy McMahon’s policy is now a reality. Land Rights is when First Nations are accepted as the true original owners and guardians of our lands, waters and sacred places. Our ownership can only be secure, if it is not vested in legislation in a minister of the Crown, making the Blacks mere custodians on behalf of the Crown. That is not Land Rights.

The final cry in Sydney this year was "Sovereignty Never Ceded". So then, what does this truly mean?

The question of our continuing sovereignty governed by our ancient Law and customs is traced by our Songlines, dances and songs across this continent. There are variations to a central Creation Story, which are influenced by the landscape of each First Nation. The truth is we have a single continental common Law, which is the foundation for all First Nations Law and custom. When we acknowledge this, we must understand what the highest court in the federated colonies ruled, when the Mabo judgement came down in 1993. I repeat what I have already said before in other statements. At paragraph 65 the High Court ruled:

65. … Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law.

The ‘common law’ the court referred is the colonial common law as distinct from the continental First Nation common law which is inalienable. What does this mean for our people in reality?

I put this to our people – the parliaments of the Federal, state and territory governments do not have the parliamentary power to pass any laws or make any regulations that will impact in any way, shape or form on First Nations Peoples recognised Law and customs that are observed and rule our societies. The courts are barred and cannot alienate that which constitutes our Law and customary practices. This gives rise to and affirms First Nations’ ultimate and sovereign powers and authority within our Nations, on and within our lands, waters and airspace.

In the same decision the Mabo judgement reinforced these points of law, when the judges also ruled:

83. … 1. The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.?

In the same decision Justice Dawson concurred when he ruled that a decision of this kind belongs to another jurisdiction:

17. What I have said is not inconsistent with the well-established principle that the municipal courts have no jurisdiction to entertain a challenge to an act of state and, in particular, that obligations assumed by one sovereign to another, as in a treaty, cannot be enforced by municipal courts(338)

There are several international courts that can deal with these questions, but the most significant court that exists is the International Court of Justice (ICJ) which sits in the Hague, in the Netherlands.

I now bring you back to our domestic situation. The High Court had to make a ruling about itself, but in doing so committed treason and the way they committed treason is best illustrated by a very serious legal question that was raised in an early NSW Supreme Court case dated 1841. In R v Bonjon (April 1841) Justice Willis held:

"…I am here as a Judge to declare the right, and not to have recourse to expedient, I can never permit the end to justify any undue means for the accomplishment. This may be policy and wisdom in a statesman, but it is little less than treason in a judge. He must not Wrest the law to his authority, nor do a great right, through a little wrong." [emphasis added]

[Macquarie University Decisions of the Supreme Court of New South Wales 1788-1899]

Now I ask the reader to take special note. The full bench of the High Court did in fact breach this doctrine of the rule of treason. As Justice Willis explained over 150 years before, it is treasonous to rule the way the High Court judges did in the Mabo Case:

At paragraph 29 The Mabo judgement ruled:

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. 
… Here rests the ultimate responsibility of declaring the law of the nation. Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country (21) it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own (22)

21 - Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 390, 394; Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88, at pp 93, 120-121, 132, 135, 150-151, 166, 174
22 - Jones v. The Commonwealth (1987) 61 ALJR 348, at p 349; 71 ALR 497, at pp 498–499; John v. Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, at pp 438–439, 451–452; McKinney v. The Queen [1991] HCA 6; (1991) 171 CLR 468, at pp 481–482.

As can be seen from this ruling, the Mabo judges committed treason and demonstrated their refusal to make an unbiased decision. This apprehended bias in a judge, or in this case judges, clearly demonstrates that they were unfit for the positions they hold and/or held. This is discrimination and prejudice of the highest order and it is what reflects First Nations Peoples continued cry ‘Sovereignty Never Ceded’.
This position was further clarified in paragraph 43 of the Mabo case:

43. However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.

The ‘skeletal principle’ that they refer to is the uncertainty of the power and authority of their own laws over First Nations Peoples and the right to make laws on the land over our allodial titles. In other words, the court fudged the ruling to suit the need for their colonial parliament to make laws. Instead of admitting the need to end the scourge of colonisation by decolonising, they dig a deeper hole for themselves. All of this is a major contradiction when you consider that they correctly made a legal ruling that First Nations Peoples Law and custom is not a construct of the common law and First Nations Laws are not alienable by this foreign colonial system.

What we have therefore is two regimes within this country. The colonial regime now recognises First Nations Law and customs in their colonial common law, but First Nations Peoples have never have consented to be ruled by their foreign system of governance and laws. We are still separate and independent from their Constitution and legal system.

This whole question of uncertainties and ambiguities first raised its head in two previous 1800s Supreme Court cases. The first was R v Jack Congo Murrel 1836, but the more significant one that was dealt with without an apprehended bias was in R v Bonjon 1841. In this case, the question was: Did the jurisdiction of the colonial criminal law have the right to deal with the criminal liability of Bonjon, a ‘native’. As a consequence of the challenge of jurisdiction no evidence was presented against Bonjon by the prosecuting Crown’s representatives. In respect of this case and non-judgement, Governor Gipps wrote to England asking the English authorities to give him instructions as to how to deal with this matter. History now shows that the British parliament, the Colonial Secretary’s office and/or the reigning monarchs failed to respond.

Significantly, the (almost) official historical record that is peddled is that the intent of Phillip’s 1787 Commission was to establish a colony and ‘conciliate the affections of the natives’. There was, however, a second ‘secret’ Admiralty Instruction which was issued to Phillip on 2 April 1787 that demonstrates clearly that Britain was aware of the potential for Aboriginal resistance and had prepared themselves for combat upon their arrival. The ‘secret’ commission stated:

And we do hereby give and grant unto you the said Arthur Phillip by yourself or by your captains or commanders by you to be authorised full power and authority to levy armed muster and command and employ all persons whatsoever residing within our said territory and its dependencies under our government and as occasion shall serve to march from one place to another or to embark them for the resisting and withstanding of all enemies pirates and rebels both at sea and land and such enemies pirates and rebels if there shall be occasion to pursue and prosecute in or out of the limits of our said territory and its dependencies and (if it shall so please God) them to vanquish apprehend and take and being so taken according to law to put to death or keep and preserve alive at your discretion.
And to execute Martial Law in time of invasion or other times when by law it may be executed and to do and execute all and every other thing and things which to our Captain-General and Governor-in-Chief doth or ought of right to belong.
And we do hereby give and grant unto you full power and authority to erect raise and build in our said territory and its dependencies such and so many forts and platforms castles cities boroughs towns and fortifications as you shall judge necessary and in the same or any of them to fortify and furnish with ordinances and ammunition and all sorts of arms fit and necessary for the security and defence of the same or any of them to demolish or dismantle as may be most convenient.1

How anyone can believe the lie perpetrated by the High Court in Mabo, Tony Abbott and others that this continent was settled peacefully is beyond me.

First Nations have always resisted and have paid the highest price:

As the Invasion Day/Sovereignty Day chant in Canberra resonated on the 26th: "No more genocide. End the war!"

So we ask: Why? Why the insistence on ‘peaceful settlement’? Clearly, admission of invasion changes the history of this country and creates a demand from First Nations Peoples for compensation, reparation and restitution in all their legal forms, as are defined by those words. This is what the colonial powers are scared of.

Another admission against interest by the Commonwealth Senate Standing Committee on Constitutional and Legal Affairs on the feasibility of a compact, or 'Makarrata', between the Commonwealth and the Aboriginal people entitled Two Hundred Years later reported to the parliament when dealing with the issue of First Nations sovereignty:

It may be that a better and more honest appreciation of the facts relating to Aboriginal occupation at the time of settlement, and of the Eurocentric view taken by the occupying powers, could lead to the conclusion that sovereignty inhered in the Aboriginal people at that time.

The Report by the Senate Standing Committee on Constitutional and Legal Affairs on the feasibility of a compact, or 'Makarrata', between the Commonwealth and the Aboriginal people entitled Two Hundred Years later…, Australian Government Publishing Service, Canberra, p. 50. 

So this reflects yet again the fragility of a colonial state in respect of its authority and power and its inability to address in real terms the core issue we are confronted with.

The only way to deal with this is to tell the truth and face reality. We cannot permit untruths and illegal power and authority to be asserted over and upon our Peoples any longer.

When we talk about decolonisation based on these facts, we must understand that the colonial power has only had control over First Nations Peoples and our lives by the power of the gun, superior force, through their police forces and at times military, as was demonstrated in the NT Intervention.

In concluding, I just state that Commonwealth, State and Territory parliaments only have powers to make laws and establish social, economic rules and regulations for all the ‘illegal boat people’ who have arrived on and within our lands since 1788, including those who came by plane.

We don’t need reconciliation. We don’t need constitutional recognition. We don’t need a Voice to parliament. We are the sovereigns of the soil, always was and always will be.

What we need is to for us all to stand up as First Nations Peoples all over this country and assert our right to rule without prejudice our own lands and water, airspace and Peoples. If the foreigners/newcomers want to be become part of this decision-making system then it will be us who make this decision, not the disenfranchised and assimilated Uncle Toms and Aunt Marys of the modern day. If Uncle Tom and Aunt Mary want to be part of that foreign colonial power and system then we say that is your right to make that choice, but don’t hold yourself up as a leader of First Nations, because you do not have authority to make any calls whatsoever.

This is our Country, our land – always was and always will be.

Going back to Country is where the answer lies. Sovereignty cannot be achieved in a vacuum, off Country. Governance under our Law and culture cannot be challenged by anyone who is part of an illegal colonial society.

Kevin Gilbert (1933-1993) said it well in his poem Home Centre:

Home Centre
Our great culture was being lost
our people doomed to die
I could not see an ending
solutions? None had I.
Then like an emu drumming
came a voice across the plain:
Get 200 pounds of strychnine
dose their flour 'n’ sugar again
And it happened at the Alice
where the chips a' roll with malice
to part the tourist quickly from his cash
the croupier rolls his dices
to champion human vices
and glory in the humans that they smash
If you don't want repetition
stop writing sad petitions
stake your claim with
pride and courage
on your tribal land again
Go back to the land my people
here in the city you'll die

Go back to the songs remembered
Go back to the distant past
your children die like stricken flies
no chance in the city to last

Go back - move back to the rivers
Go - flee from this grim evil place
'assimilation' and 'right' is a lie
and there's death in its white leering face

Go back to the desert mountain
Go back to the sun scorched plain
Go back as a people possessing
each other, our Dreaming and pain
and know as a song remembered
that joys and sorrows are shared
but here in this death stricken city
is the lonely white soul sick and bared
they have nothing worthwhile to offer
their TVs and cars are a brace
to keep our attention diverted
from the soul loss in their empty face

Go back to the land our mother
grow strong on her warm brown breast
the whiteman's children will flee one day
to your campfire for their rest

Go back to the land our mother
and time will prove the test.

- Kevin Gilbert (1933-1993)


Ghillar, Michael AndersonContact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here