non est factum: Tricks and Treaties

February 16, 2021 ~ Jessica Savage ~ 2 Comments

‘non est factum’ is a defense used to get out of a contract. It will not, however, get anyone out of a treaty or out of the agreement-making process.

There is a meme doing the rounds on social media amongst the Aboriginal sovereignty movement related to this concept of non est factum. The overall logic runs something like this;

non est factum is fraud.
fraudulent treaties are invalid.
Therefore, treaties entered into under conditions of non est factum are invalid.

All up, the impression is that it isn’t possible to be tricked into a treaty. If you don’t understand what you are signing because you don’t have the right information, education or advice, then the treaty will be invalid.

Lets break the three points down, The first point – that non est factum is fraud – is incorrect. Non est factum means ‘not my deed’, and can occur by honest mistake. It can, but does not automatically mean fraud. It is typically an excuse used in contract law to get out of a contract because the person signing it didn’t know what they were signing because of a disability (such as visual impairment) or some other condition. It is a weak defense and generally hard to prove in court. Also – it’s usefulness and applicability to treaties is unproven.

The second point is that “fraudulent treaties are invalid”. This is true – but we should look at the Vienna Convention on the Law of Treaties to see the full context. The convention sets out the conditions on which a treaty is invalid due to fraud in Article 49.

Article 49 – Fraud. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Yes – fraudulent treaties are invalid – but only if it is due to the fraudulent conduct of another negotiating State. So if it’s your own people doing the fraud it doesn’t count. In the case of the Uluru Statement – the treaty (the federation) is between First Nations and the Commonwealth. If other ‘First Nations’ people defraud and mislead First Nations people – it doesn’t count as fraud for the purposes of the Vienna Convention on the Law of Treaties. As long as the token blacks are doing the misleading and the Government keeps their hands clean – it is not fraud.

So overall, non est factum is not going to get any Aboriginal group out of this agreement-making/treaty. If in doubt – do not sign any treaty or “agreement-making” settlement.

The non est factum social media memes propagate a dangerous myth, as it gives Aboriginal people a false sense of security that they cannot be tricked into a treaty. This is false – it is possible to be tricked. These memes give the government an advantage in the overall scam that they are perpetuating – it is very likely deliberately planted disinformation.

Image by Gutife from Pixabay

“Constitutional recognition does not foreclose on Aboriginal Sovereignty”

February 12, 2021 ~ Jessica Savage ~ Leave a comment

Back in 2012, this was the advice from the Expert Panel. I’m going to break this advice down – because firstly – it does not actually address the concerns that Aboriginal people have about sovereignty, and secondly – I want to show that the advice is technically correct, although it gives a misleading impression.

The first quote:

the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples
Expert Panel legal advice

It is true that the sovereignty of the Commonwealth does not depend on any act by Aboriginal and Torres Strait Islander peoples – and I will explain why. This is to do with international law and diplomatic recognition. There are two theories on state sovereignty internationally. You can see them here on the wikipedia page about Sovereign States. They are 1. constitutive and 2. declarative.

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state
wikipedia: Sovereign State

Australia meets this, because it is recognised by other states.

By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity’s statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force.
wikipedia: Sovereign State

Australia meets this as well, as long as it successfully maintains the position that it’s sovereignty was not gained by military force. This is one reason why Australia denies the Frontier Wars (refuses to have include in the War Memorial) and maintains that Australia was “settled” and not “conquered”.

It is true – that in international law – no explicit act of confirmatory acquiescence from Aboriginal people is needed. But nevertheless – Australia’s sovereignty claim does depend on Aboriginal people not challenging this claim in the international arena.

In other words – the sovereignty of Australia is dependent on Aboriginal peoples keeping their mouths shut, it is not dependent on Aboriginal peoples actively agreeing to anything.

Next Expert Panel legal advice here;

“The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.”

This is easier to digest in two sentences.

The first sentence.

The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled.

The Australian constitution is an Australian (colonial) document, it’s pretty clear from reading it – in particular the enacting clause. If Australians choose to include/mention/recognise as equal citizens – aboriginal peoples in the constitution – that’s Australia’s business. It has nothing to do with Aboriginal and Torres Strait Islander peoples, because we remain distinct and separate (A/res/2625/xxv) from the colonial occupation.

Constitutional recognition will not foreclose on the question of how Australia was ‘settled’, because it simply makes a unilateral claim on behalf of the Australian people. Australian people can claim whatever they like in their constitution – at the end of the day – it doesn’t matter because the status of the territory itself and over ourselves as Aboriginal people, is not their call. Our sovereignty of the soil still stands in the way.

If you look at George Williams’s paper – he suggests that ‘settlement’ can happen in the past, present or future. Australia claims that “Australia was settled” – but don’t assume that settlement is something that has already happened in the past and has been concluded. I think what is happening is, that the end story will be that Aboriginal people first settled Australia, and the British validly merged into that sovereignty by also settling and bringing their laws. These reforms are to formalise and foreclose this position.

But this can’t be formalised by constitutional recognition ALONE – which is what these lawyers are basically (correctly) saying. It needs another vital step – a constitutional reenactment, or declaration of independence – it requires an international act as it is an external assertion of sovereignty. This state act (with Aboriginal people onboard) WILL foreclose on the issue. These lawyers are not technically lying, but they are not telling us the whole truth.

The second sentence.

Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.

Reworded slightly: Constitutional recognition shouldn’t have a detrimental effect on future domestic projects.

Historically, government policies have been atrocious – this is just saying that constitutional reform shouldn’t make domestic policies any worse. How lame.

Referendum Council Report Advice

Some legal advice that ended up in the referendum council report.

Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The subsequent occupation of the country and land law in the new colony proceeded on the fiction of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been the exertion of force by and on behalf of the British Crown. No-one asked permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them.
Referendum Council Final Report

So what?

If you look at the positioning and context of this quote in the report (end of page 11)- it seems to be trying to reassure us that the changes will not affect our sovereignty. But this is not reassuring at all. If anything – it means we should be even more concerned – because we clearly have a lot to lose.

All this quote does is state a position, this time – from an Aboriginal perspective. It does not explore – whatsoever – the affect that the Uluru Statement changes will have on that position, nor other pathways that could be taken from this position.

So far I have not seen anyone associated with these reforms explaining what effect the Uluru Statement has on our sovereignty. All I see is clever sound-bites that skirt around the issue.

Image by Kerstin Riemer from Pixabay

As sovereigns, why don’t WE make a Bill of Rights

February 9, 2021 ~ Jessica Savage ~ Leave a comment

If we are serious about asserting our sovereignty, then we have to start asserting it. One way to assert sovereignty – is to write an Aboriginal Bill of Rights. It is a good chance to lay down our law/lore and values, and to concile with peoples of the settler-state.

I don’t mean a Bill of Rights that sets down settler state obligations to the inhabitants.

I mean a Bill of Rights that sets out our obligations that we as Aboriginal peoples – acting as sovereigns – have towards settler-peoples.

The current lack of Rights

Peoples of the settler-state have very little rights in their colonial system. Most ‘rights’ have are legislated, and can also be taken away by legislation.

The only true rights – the five + one constitutionally protected rights are;

There are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).
The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.

Aboriginal people have historically had some of the five explicit constitutional rights systematically denied. Voting rights and land acquisition are obvious. Trial by jury for Aboriginal people is a curse – in practice it means trial by a white jury – not trial by peers, which defeats it’s purpose. Section 116 prohibits the Commonwealth making laws for prohibiting the free exercise of any religion. Our freedom of religion has been indirectly denied through state action systematically destroying our language and culture.

Adding a new constitutional prohibition on racial discrimination was recently put in the too-hard basket.

And for Australians, this list of constitutionally protected rights is a haphazard mish-mash full of omissions and holes.

I think the reason why Australia never had a Bill of Rights is because it is a Federation of colonies. It is a compact between Crown colonies – it is not a relationship between governments and the people. The people are passive bystanders in this system. The only active role the people have is to approve of changes to the federal Constitution, and to elect members of Parliament. Members of Parliament are sworn to serve the Crown – not the people. Even the State constitutions are changed without the approval of the people. It doesn’t make much sense to have a Bill of Rights in such an arrangement.

Biggest barrier to effective assertion of Aboriginal sovereignty

The biggest barrier to asserting Aboriginal sovereignty is not the settler-colonial state itself. It is settler-colonial people’s fear of the unknown.

The settler-colonial state’s legitimacy (whether you think it is valid or not) is underwritten by both the Crown and the settler peoples. There is a complex interplay of power. But at the end of the day, the settler peoples will have the choice between continuing a system built on colonialism and domination, or coming under our ancient system grounded in the soil.

To help settler peoples make this choice – we can present the settler peoples with a charter of principles that we pledge to uphold if they choose to work with us. This can hopefully ally their biggest fears. Their fears are mostly based in ignorance of our values and of our culture. This isn’t their fault, but it is something we can proactively address.

Land Reform

Put yourself in the settler’s shoes. They are afraid that we will take their house, hills hoist and their livelihoods. They forget that the Crown can already take their house anyway. If their house stands in the way of a new road it can be resumed on the condition the Crown pays just compensation.

Maybe we can match the Crown’s land protection in our Bill of Rights, or offer an alternative deal. We could reform the way land title works. People want security in their land tenure, they also feel threatened by multi-nationals and foreigners buying up large swathes of ‘their’ land. Right now, settlers are afraid that Aboriginal people could take all the land back, and they will be left with nowhere to live. This fear is possibly due to Jungian projection – because it is what they did to us historically. But this is something that can work in our favour. If we can offer settlers alternatives to the Crown’s ‘rights’, attractive alternatives that takes their concerns into consideration, why would they continue to support the colonial system? The Crown’s ‘rights’ are afterall, pretty pathetic.

Right now, so-called Aboriginal leaders are promising settlers that we will uphold all private land title. I don’t think that is fair. What of an extreme theoretical example – someone owns a very large station the size of a small European country with a homestead that they have inherited from their great-great-great-grandfather who personally massacred people to get that land. I don’t see why the traditional owners should be guilted into rolling over and accepting that. Furthermore, I don’t think normal Australians think that is ‘fair go’ either. Normal Australians may feel some sorrow for such massacres, but don’t have their own personal cattle station to show for it. Perhaps let the settlers in our theoretical extreme keep the homestead – but not the entire property. Not all private property should be protected – that isn’t reasonable. Normally people who receive stolen property do not get to keep it. Can we come up with a reasonable compromise?

Human rights, Environmental rights

Looking at the rights enshrined in the Constitution, there isn’t much there in terms of human rights or state obligations to protect the environment.

Aboriginal culture has a solid foundation in terms of obligations to other people and to the environment. Settlers are not aware of the depth of these obligations. A lot of these obligations could be ‘translated’ into a Bill of Rights. This can offer settlers a sense of reassurance, security and stability while authentic, meaningful decolonisation and the disruption surrounding such a process happens.

Lore/Law Principles of living with the land

It’s not about rolling over an giving settlers everything they want, and fitting us in as an afterthought. Neither is it about materially about taking everything back as our ‘property’. It’s not about revenge or retribution.

It’s about laying down a foundation of principles that we use to re-establish the law/lores of the land, and come to compromises based on that. It has always been our obligation as peoples born into our bloodlines – to keep the law.

I am not in the best position to talk specifics about law/lore, as I did not grow up close with it. There are people who hold this special knowledge. They are best placed to come up with these principles in the first instance. Not me, or “Aboriginal leaders”. I just offer here a rough vision and some examples as starting points.

It is something that the settler-state is severely deficient of – principles and values. I think people feel that deficiency deeply, it is the basis of the shallow national identity. Australia doesn’t really stand for anything. It is like a ship lost at sea.

I believe our principles and values will resonate with settler peoples if we can present them in a way they can understand. The ship will then have something solid to anchor itself on, and those on the ship can be welcomed to their new home on solid ground.

Bild von Terri Sharp auf Pixabay

Native Title amendments and the Vienna Convention on the Law of Treaties

February 4, 2021 ~ Jessica Savage ~ 1 Comment

If you look at the history of Native Title, particularly the chaos after the McGlade decision – something is clear. Australian governments have historically been imposing – through both the courts and legislation, the criteria for the consent of Aboriginal people to ILUAs.

This won’t fly if ILUAs (and compensation agreements) are to be retrofitted to become treaties (Instruments of Accession) in an international sense. The Australian governments will need to extract themselves from the internal processes of Aboriginal decision making. This is what some of these new changes do.

If you familiarise yourself overall with the Vienna Convention on the Laws of Treaties and on international law in general, you will be in a better position to identify a stealth treaty (Instrument of Accession), as these instruments will have to fit these standards.

I will just leave a few quotes here about the amendments alongside some selections from the Vienna Convention on the Law of Treaties that are relevant.

To be very clear, the majority rule is a default one. Any clan that wishes to adopt a decision-making model that requires consensus or unanimity is a matter entirely for them; they can impose conditions to that effect. I think we have made it very clear in this debate that the ability to impose a process that suits the practices of a particular group is remaining entirely in their hands
Amanda Stoker, Queensland, Liberal Party, Assistant Minister to the Attorney-General

Imposing conditions/restrictions on the representative

Amends the: Native Title Act 1993 to: allow a native title claim or compensation group to impose conditions on the authority of its authorised applicant and require public notification of any such conditions
Bill Summary

Article 47 — Specific restrictions on authority to express the consent of a State. If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.
Vienna Convention on the Law of Treaties

Allow an applicant to act with Full powers (like a Head of State)

…clarify the duties of the applicant to the claim group; allow the applicant to act by majority as the default position; allow the composition of the applicant to be changed without further authorisation in certain circumstances; allow the claim group to put in place succession-planning arrangements for individual members of the applicant;
Bill Summary

Article 7 — Full powers
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
Vienna Convention on the Law of Treaties

The Pratt-Yorke opinion (background and the relevance to the recent Native Title amendments)

February 2, 2021 ~ Jessica Savage ~ 1 Comment

If we go backwards in time from Native Title, we have this chain of happenings…

Native Title -> Mabo 2 -> the Bourke Proclamation -> Johnson v Macintosh -> the Pratt-Yorke Opinion.

These things are all linked.

Very briefly – in Johnson v M’Intosh (USA), the judge dispensed of Pratt-Yorke (perhaps to justify the judges own bias due to his personal land holdings). The decision in Johnson v M’Intosh was the likely catalyst of the Bourke Proclamation. The Bourke Proclamation asserted the Crown’s right of preemption under the J v M interpretation of the Doctrine of Discovery, and like J v M – extended that preemptive right to land purchases in Australia. This became basis of terra nullius and subsequent land dispossession. The Bourke Proclamation was then overturned in Mabo 2.

So as the Bourke Proclamation was based on J v M, Mabo 2 has reverted the situation in Australia all the way back to what J v M overturned – Pratt-Yorke.

Mabo 2 and Mer Island was the perfect test case to do this. If they had chosen any other place, the outcome could have been very different. A few important special things about Mer;

Mer was never subject to the Bourke Proclamation. This means the court does not have to directly challenge the proclamation. Bourke Proclamation applied as far north as the tip of Cape York, Mer lies further north than Cape York.
Mer was “discovered” by the British (without too many complications).
- In the western half of Australia, the British discovery claim could be contested because the Dutch had already mapped and named it ‘New Holland’ before the British showed up. You cannot go into court and make arguments about British discovery, when that right of discovery is not crystal clear.
- Mer is a island in the Pacific, and is well and truly east of the Moluccas issue and the Treaty of Saragossa line. Issues of territorial contiguity can be avoided with respect to New Holland geographically. If New Holland is an island, it’s subject to the 1824 Anglo-Dutch treaty. That gives the Dutch (or their French post-Napoleonic-war overlords) discovery rights. Even the discovery of mainland Australia is sketchy if you consider it as an island. I suppose that is why the English speaking world calls it a continent – for political reasons. Geographically and biologically, it is a very large island. When I was learning Spanish and travelling in Spanish speaking countries – I found they don’t consider Australia to a be a continent – it is and island in the continent of “Oceania”.
Mer was annexed by Queensland. Affirming this in the case accepts the validity of an act of state on behalf of Queensland. It puts the state of Queensland in a equivalent position to the United States (as per J v M), a Crown successor. It’s an affirmation of Queensland sovereignty.

I think Mabo 2 and Native Title were deliberately planned and engineered as part of an attempt of the Crown to attain sovereignty – initially insofar as ‘domestic’ British law in concerned.

So, back to Pratt-Yorke. I don’t know a huge amount about this – but what I’ve seen I think it’s very relevant post-Mabo. I’m lifting this from wikipedia for now because I haven’t found another source.

The opinion went on to distinguish lands acquired by conquest from those acquired by treaty or negotiation. In the former case, the Crown would acquire both sovereignty and title; in the latter case, the Crown would acquire sovereignty, but the company would acquire title.

Putting on the colonial thinking-cap. Mabo 2 ruled out conquest. If the court were to claim conquest under the discovery doctrines, the Crown would have absolute beneficial title – but it would make more problems than it solved. Colonialism was supposed to have ended, claims of conquest under discovery are very fragile. Securing negotiations of title between the “company” and the natives is a more secure plan in the long run.

(1.) Mr. West’s opinion on this subject in 1720.
The common law of England, is the common law of the plantations, and all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary, though no statutes, made since those settlements, are in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear.

I’m not sure if I’m reading this right with this old-school language – but antecedent to the settlement of a colony sounds to me like this – the Englishman carrying the law to a colony is conditional on a preceding valid act of settlement. The settlement is supposed to come first, then the law. This is not what happened in Australia.

(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form colonies, and receive your majesty’s protection, by virtue of your royal charters.

This tiny portion of text blows my mind. Especially the parts I have bolded. I don’t even know where to start.

As an analogy – if a bunch of schoolkids go on an excursion to the museum, they still have to follow the school rules. The school has jurisdiction over them even though they are not physically on school grounds. But that doesn’t mean the school rules apply to the museum and every worker and visitor to the museum, just because the schoolkids are there. It doesn’t mean the school rules override the rules of the museum. It doesn’t mean the kids can ignore the museum rules. That is totally logical. But in our case/museum – the kids run rampant, smash and destroy, force us to follow their rules – they think they own the entire museum because they have made themselves comfy.

The Pratt-Yorke opinion is the basis of Native Title. Replace Indian Princes with Traditional Owners and it starts making sense.

Native title – as in the original version of it – grants the king’s subjects land grants. You have to look at Native Title upside-down. Native Title is where traditional owners grant land to the kings subjects, but TO’s reserve some rights for themselves – hunting, fishing, cultural etc. This in turn gives the Crown some degree of sovereignty – at least as far as the British interpretation of things goes.

Of course – that sovereignty is not absolute – it is only over the English settlements and the English subjects. But that part is largely ignored.

Now, the above says acquired by treaty or grants. I think ILUA’s are treaties. It’s an alternative to land grants for the Crown to acquire some form of sovereignty.

ILUA’s are ‘treaties’ – but originally, they were not international in nature. But since some nations such as the Murrawarri Republic have upset things by declaring independence – an international solution is needed.

The Uluru Statement asks for “agreement making” as part of a larger package offer which includes a treaty of federation. Since that offer – agreements (note the ‘A’ in ILUA) may under certain conditions – form part of this package, which give them an international flavour.

See this from Harry Hobbs and George Williams – The Noongar Settlement: Australia’s First Treaty. I’m not alone here in seeing ILUA’s and other agreement as treaties.

So… on to the latest Native Title developments. What I see here – is tidying up loose ends to make ILUA’s compliant with the Vienna Convention on the Law of Treaties. ILUA’s were originally designed as domestic instruments. They need to be upgraded to meet international standards so they can become stealth Instruments of Accession.

Next post – I’m going to go though some of these changes, and compare them with the Vienna Convention on the Law of Treaties and show how the changes make ILUA’s more compliant with this Convention.

Thinking Sovereignty