Between: Isabel Coe on Behalf of the Wiradjuri Tribe (Plaintiff) and The Commonwealth of Australia and State of New South Wales (Defendants).
Judge: Mason CJ
Judgment:
In Coe v Commonwealth [1993] HCA 4 (Coe (No. 2)), Isabel Coe on behalf of the Wiradjuri Tribe asserted that the Wiradjuri people were a sovereign nation in the external sense, meaning that they were a sovereign nation independent of the British colonisers.
In the alternative, they claimed to enjoy a subsidiary or internal form of sovereignty as a ‘domestic dependent nation, entitled to self-government and full rights over their traditional lands, save only the right to alienate them to whoever they please’ [8].
Mason CJ, whilst noting the importance of Mabo v the State of Queensland [No. 2] [1992] HCA 23 (Mabo (No. 2)) held that the findings in that case were ‘entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia’ [27]. His Honour held that the decision was ‘equally at odds’ with the notion that a limited kind of sovereignty resides in the Aboriginal people [27].
The decision is important as it shows the limitations of Mabo (No. 2), whilst also dispelling the notion that Aboriginal sovereignty could exist alongside Crown sovereignty. The issue raised in Coe (No. 2) is also important due to the context of the time in which it was decided. It followed the decisions in Coe v Commonwealth [1979] HCA 68 (Coe (No. 1)) and Mabo (No. 2).
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Legal Context
The decision in Coe v Commonwealth [1979]
In Coe (No. 1), the High Court held that there was no Aboriginal nation exercising sovereignty in Australia. However, the Court left open the question of what rights Aboriginal people had to the lands of Australia. Gibbs J stated that the matter had become one of high importance, meaning that a high standard of litigation in future would be appropriate to look at the question of what rights, if any, the Aboriginal people of Australia had to the land.
The decision in Mabo (No. 2) [1992]
In Mabo (No. 2), the High Court of Australia decided that the common law of Australia was capable of recognising Indigenous relationships to land and waters as defined by traditional laws and customs, whilst maintaining the settler's legal system of land tenure. In doing so, the court introduced the concept of native title into the common law. This decision was a highly significant moment in the Aboriginal land rights movement.
The claims made in Coe (No. 2) [1993]
After the decision in Mabo (No. 2), the plaintiffs in Coe (No. 2) brought a claim on behalf of the Wiradjuri Tribe, asserting Indigenous sovereignty. The first defendant was the Commonwealth, as the successor in title to the Colony of NSW. The second defendant was the State of NSW, in that it was the purported owner and occupier of lands within the area of the Wiradjuri Tribe.
The plaintiffs argued that the Wiradjuri People are a sovereign nation or, alternatively, have some form of limited sovereignty.
The plaintiffs also contended that acts that had occurred at colonisation constituted genocide under international law.
Details of the judgment
Relying on the decisions in Coe (No. 1) and Mabo (No. 2), Mason CJ held that the sovereignty claimed by the plaintiffs did not exist. His Honour also held that there was no legal consequence for the acts that referred to as genocide.
The sovereignty claim
Mason CJ held that Mabo (No. 2) is at odds with the notion that sovereignty adverse to the Crown is held by the Aboriginal people of Australia. Instead, he held that Mabo (No. 2) found that land in the Murray Islands was held by means of native title under the paramount sovereignty of the Crown. This principle applies to the entirety of the Australian mainland, including the territory claimed by Coe on behalf of the Wiradjuri Tribe.
The genocide claim
The Wiradjuri Tribe relied on international law and the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) to argue that the forced settlement of Australia constituted genocide.
With respect to the Convention, Mason CJ held that international conventions do not give rise to rights under Australian law in the absence of legislation giving effect to the convention. In any case, he stated that the Convention post-dates most of the acts complained of.
His Honour also held that there was no reason why the acts that referred to should generate an entitlement to damages or compensation against either the Commonwealth or NSW. Both of those parties, in their form at the time of the case, had not been party to many of the alleged acts, which occurred in the late eighteenth and early nineteenth centuries.
Dismissing the claim
The plaintiffs sought to derive further support from the minority judgments of Murphy and Jacobs JJ in Coe (No. 1) However, Mason CJ preferred the reasoning of Gibbs J, who had dismissed the appeal.
Gibbs J had considered:
a) that it was settled law that the Australian colonies were acquired by Great Britain by settlement and not by conquest; and
b) that the amended statement of claim did not plead sufficiently or appropriately a claim that the Aboriginal people had subsisting rights and interests in land which were recognised by the common law.
As a result, Mason CJ held that Coe (No. 1) provided no support to a surviving Aboriginal claim to sovereignty and dismissed the claim.
Implications
The concept of sovereignty as it has developed in the common law, through cases such as Coe (No. 1) and Mabo (No. 2), is of importance for several reasons. Aside from being a central part of the debate about Australia’s history and future, it also has implications for how a treaty process can be negotiated between Australia and its Indigenous people.
Academic literature notes that the dismissal of sovereignty in cases such as Coe (No. 2) is unlikely to pose a roadblock to moving forward with ‘innovative new settlements’ (Brennan et al., 2004). However, it does suggest that the matter of acquisition of sovereignty is one for international law, whereas the consequences of that acquisition of sovereignty is a matter for the domestic legal and political sphere (Brennan, et al., citing Mabo (No. 2)).
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