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Usurping Indigenous sovereignty through everchanging legal fictions
Journal article   Peer reviewed

Usurping Indigenous sovereignty through everchanging legal fictions

Ben Wardle and Beth McKenna
Griffith Law Review, Vol.28(1), pp.37-69
2019
DOI: https://doi.org/10.1080/10383441.2019.1682959
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https://doi.org/10.1080/10383441.2019.1682959View
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Abstract

Indigenous peoples sovereignty terra nullius treaty Uluru Statement from the Heart history
The legitimacy of Australia's legal and political systems lies in the understanding that the British and then Australian governments validly secured sovereignty, and, in doing so, legally annexed the land occupied by Indigenous peoples, and the people themselves, under the laws of the Crown. This paper critically examines the legal foundations of Australian sovereignty by comparing the earliest judicial statements that outline the basis and extent of Australian sovereignty with the positions taken by various key High Court judgements in the twentieth century, as well as contemporary statements by former Prime Minister Turnbull in response to the Uluru Statement from the Heart. This analysis reveals how the legal and political discourses asserting Australian sovereignty continually re-write history to develop dramatically differing legal narratives to suit changing social and political climates. When examined alongside the ceaseless assertions of sovereignty by Indigenous peoples preceding colonisation till the present it becomes apparent how judges and politicians have participated in promulgating legal fictions to provide legitimacy to an unjustified and illegal denial of Indigenous sovereignty from 1770 until the present.

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