‘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;

1. non est factum is fraud.
2. fraudulent treaties are invalid.
3. 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.

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