Boris
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The term “First Nations” derives from twentieth-century American politics and has been transported to Australia, where it does not fit. Aboriginal clans, hordes and tribes, which in most cases were no more than extended families, never attained any status resembling nationhood either before 1788 or any time after. There were no First Nations on this land for 60,000 years, as the Uluru Statement asserts. This was confirmed in 1836 in the seminal judgment of William Burton of the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs, who said in 1979:
it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others”, or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
“We have never, ever ceded our sovereignty”
Before the colonisation of Australia, Aboriginal people never had any sovereignty to surrender. “Sovereignty” is a term from international law, or what was called in the eighteenth century “the law of nations”. The two leading European authorities on international law at that time, Christian Wolff and Emmerich de Vattel, both argued that for a society to be a genuine nation it must have civil sovereignty over a territory and its people and, as a corollary, only nations could have genuine sovereignty.
Justice Burton’s 1836 judgment found the Aborigines did not have anything that amounted to what the British and other nations could regard as statehood or nationhood. He said they
had not attained at the first settlement to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.
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