Between: Paul Thomas Coe on Behalf of the Wiradjuri Tribe (Plaintiff) and The Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland (Defendants).
Judges: Gibbs, Jacobs, Murphy and Aickin JJ
Judgment:
In this case, the High Court was asked to hear an appeal from an Aboriginal man, Paul Thomas Coe, against the decision by Mason J to dismiss his request to amend his statement of claim. His original statement of claim accompanied a writ against the defendants for alleged disposition of territory, but it was struck out after an application by the first defendant. Mr Coe's proposed amendment asserted Aboriginal sovereignty over Australia.
The leading judgment was delivered by Gibbs J, who held that it would be difficult to find that the Aboriginal people of Australia were a separate political entity to the rest of Australia's inhabitants. This made it difficult to assert that an independent Aboriginal political entity could exist within Australia that could exercise its own sovereignty.
Gibbs J left open the question of whether Aboriginal people had any rights whatsoever to the lands of Australia, notwithstanding the lack of sovereignty. This was partly because the Court considered that it would be preferable for Coe's complex position to be argued with an appropriate level of rigour, as opposed to simply through amending a pre-existing statement of claim.
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Legal Background
The High Court had initially been asked to consider a writ from Mr Coe that had been accompanied by a statement of claim, which alleged that Aboriginal land had been impermissibly possessed by Captain Cook (1770), Captain Phillip (1788) and others.
Mr Coe sought to amend his statement of claim to assert that:
• the Aboriginal people were a sovereign nation;
• Britain had wrongly asserted sovereignty over Australia; and
• Australia was acquired by conquest, not settlement.
Details of the judgment
Aboriginal sovereignty
In hearing the appeal, Gibbs J held that 'the contention that there is in Australia an aboriginal (sic) nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain' [12]. The decision was made on the basis that it would be difficult to hold that that the Aboriginal people of Australia were organised as a 'distinct political society separated from others' [12].
His Honour left open the question of what rights Aboriginal people had to the lands of Australia, acknowledging that this had become a matter of 'heated controversy' [21]. Gibbs J stated that if the resolution of such serious questions was to be achieved by the courts, it would not be assisted by 'imprecise, emotional or intemperate claims' [21]. Rather, the claimants would be best served if their claims were put 'dispassionately, lucidly and proper form' [21].
The legal challenge to colonisation
Gibbs J also held that the legal premise under which Australia was colonised was not justiciable, meaning that the Court couldn't make a decision on it, because '[i]t is fundamental to our legal system that the Australian colonies became British possessions by settlement and not by conquest' [13].
Jacobs J agreed, stating that sovereignty and sovereign possession were matters for 'the law of nations' [3] (i.e., international law). His Honour made this point because the sovereignty that Mr Coe was challenging was the same sovereignty that gave legitimacy to the Court in which Mr Coe brought the challenge. The High Court was therefore not the correct jurisdiction in which the sovereignty of the High Court could be challenged.
Jacobs and Murphy JJ both agreed that the part of the statement of claim dealing only with inherent rights to land was not based on a denial of Crown sovereignty and should be permitted to proceed. This meant that the question of whether there were any rights to land was justiciable, despite the fact that questions of sovereignty were not [12].
Implications
The question of inherent rights to land being left open ultimately led to the finding in 1992 that Indigenous relationships to land and water could be recognised through native title, in the seminal decision of Mabo v the State of Queensland [No. 2] [1992] HCA 23.
Another claim to sovereignty followed this decision was brought by Isabel Coe (on behalf of the Wiradjuri people) in Coe v Commonwealth [1993] HCA 4. This too was unsuccessful.
Claims to Indigenous sovereignty have generally been separated from the recognition of native title. This has meant that denying sovereignty has been reconcilable with Indigenous land rights.
Despite the lack of sovereignty recognition, commentary by Brennan et al. suggests that this is unlikely to be a roadblock to a form of treaty or agreement about land use and rights between Australia and its Indigenous peoples.
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