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Flynn, Martin; Stanton, Sue --- "Another Failed Sovereignty Claim: Thorpe v Commonwealth of Australia (No. 3)" [1997] IndigLawB 104; (1997) 4(7) Indigenous Law Bulletin 19


Another Failed Sovereignty Claim:

Thorpe v Commonwealth of Australia (No. 3)

High Court of Australia, Kirby J

[1997] HCA 21; 71 ALJR 767

Casenote by Martin Flynn and Sue Stanton

The Case[1]

Robert Thorpe instituted proceedings in the High Court in which he sought declarations, in particuar, that the Commonwealth: (1) owes a fiduciary duty to all Aboriginal peoples ('the Fiduciary Claim'); (2) take steps to obtain an advisory opinion from the International Court of justice on whether Aboriginal sovereignty exists over Australia ('the Sovereignty Request Claim'). The Commonwealth brought an application to strike out each of Thorpe's claims. Justice Kirby noted that the decision to strike out a claim would only be made in a clear case and stated that, in so far as the plaintiff's claims involved novel elements, it was worth remembering that:

'as the decisions of this Court in Mabo v Queensland (No .2) [1992] HCA 23; (1992) 175 CLR 1 and Wik Peoples v Queensland (1996) 187 CLR 1 demonstrate, sometimes Australian law ... is not precisely what might earlier have been expected or predicted. Australian law at this time is in the process of a measure of re-adjustment, arising out of the appreciation ... of injustices which statute and common law earlier occasioned to Australia's indigenous peoples' (at 775).

The source of the Fiduciary Claim was said to be the recent acknowledgment by courts (eg Mabo [No . 2]) and the Commonwealth Government (eg Prime Minister Keating's 'Redfern Park Statement') that Aboriginal peoples have long inhabited Australia, have been wrongfully dispossessed of their lands and have been subjected to acts of genocide. After Mabo [No. 2] and Wik (Wik Peoples v State of Queensland & Ors (1996) 187 CLR 1), the question of a fiduciary duty is an open question in relation to native title. However, the Fiduciary Claim was much broader than that considered in Mabo (No . 2). The latter was confined to particular Aboriginal peoples, nominated areas of land and a nominated sphere of Crown activity, namely extinguishment of native title. Kirby J held that the Fiduciary Claim alone was of such breadth as to amount to a request for an advisory opinion on a theoretical question, and the High Court has long determined that it will not volunteer such opinions. A court action needs to be based on 'some immediate right, duty or liability': In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265.

The Commonwealth argued that the Sovereignty Request Claim did not involve a matter upon which the original jurisdiction of the High Court must be founded (see s75 Commonwealth Constitution); the claims did not disclose any known legal duty or legal obligation, but rather raised purely political decisions that were not reviewable by a court of law. This submission was accepted by the Court. Kirby J noted that nothing in the Constitution suggested that international political decisions made by the executive were capable of judicial review, and that the separation of powers doctrine required the court to confine itself to matters amenable to judicial resolution.

In the result, the whole proceeding was dismissed with costs. The Court was not required to address three other arguments put by the Commonwealth: (1) even if the claim did raise a matter and, notwithstanding that Thorpe is an Aboriginal person, he did not have a peculiar interest in the matter so as to give him legal standing to bring the claim; (2) to the extent that the claim involved a challenge to the sovereignty of the Crown, it raised an issue that could not be entertained by an Australian court (see Coe v The Commonwealth [1993] HCA 42; (1993) 68 ALJR 110); (3) the claim was 'frivolous and vexatious' in so far as allegations of genocide and the failures of the Commonwealth to acknowledge the 'rights of the original peoples of this land' were of no legal significance.

Comment[2]

The circuitous logic of the Court and the submissions of the Commonwealth in this case are all too familiar to Aboriginal people. The Commonwealth submitted that Thorpe's claims were purely political in nature and should not be considered by the Court. This indicates that the Government does not want courts to decide on political questions of fundamental importance to Aboriginal people. The High Court concludes that the case raises issues of fundamental significance that cannot be addressed without contravening the constitutional arrangements from which the High Court itself draws authority. Kirby J states: 'The Court whose jurisdiction Mr Thorpe has invoked is, created by the Australian Constitution. It is bound to act within the powers conferred by that instrument' (at 779). Indigenous peoples can be forgiven for being confused about the fact that the Constitution does not allow an institution created to administer justice for all Australians to consider claims for justice that are of particular importance to Aboriginal people, such as genocide.

Sadly for Australian indigenous peoples, and particularly Thorpe, it appears to be a waste of time making these types of claims in Australian courts. Claimants have to satisfy courts that their claims are based on 'some immediate right, duty or liability': In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265, which might make it impossible for indigenous people to make certain claims, such as those based on genocide, sovereignty or fiduciary duty. Pursuing justice through the court system is fruitless while the system refuses to confront Australia's history. It is for this reason that indigenous Australians must focus on new and different strategies in their efforts to assert their claims for justice and compensation. One option is to take these matters directly to those United Nations structures designed to respond to injustices where domestic systems have failed.

The experience of this case highlights the strength and weaknesses of international law as a source of justice for Aboriginal people. The High Court rejected this attempt by Thorpe to use the court to force the Government to obtain an advisory opinion from the International Court of Justice.

The current draft of the Declaration on the Rights of Indigenous Peoples, a product of UN structures, contains promising statements in relation to the issues that were rejected by the High Court. Articles 3 and 4 of the draft Declaration provide that indigenous peoples have the right of self-determination, which includes the right to maintain distinct political, economic, social and cultural characteristics, as well as their legal systems. Article 7 provides that indigenous peoples have the right not to be subjected to cultural genocide and enjoy a right to redress for any action which has the effect of dispossessing them of their lands, and a right to redress for any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures.

However, three points should be noted in relation to the draft Declaration. First, the document has been in draft form for over a decade and there are recent indications that the negotiation process is likely to continue for some time. Second, in the end, indigenous peoples of Australia are subject to the decision of the Commonwealth Government on whether to support the passage of the Declaration through the General Assembly. Third, the final product - a Declaration - will be an international instrument that does not bind Australia. The Declaration will amount to a collection of recommended standards.

As much as indigenous peoples of Australia would like to be optimistic about the prospects of finding a remedy for gross violations of human rights standards, they must also be realistic about the limited prospects of success before the High Court as well as the limits (noted above) of the draft Declaration. If the Commonwealth Government maintains that it supports the concept of self-determination of indigenous peoples, it would do well to heed the views of the Chair of the UN Working Group of Indigenous Populations, Professor Erica-Irene Daes that states should approach self-determination as a form of belated state-building.[3] In Australia, this can only be achieved through peaceful negotiation and the collaborative participation of indigenous peoples. These negotiations can only commence when Australia reaches a level of maturity that will allow it to address and deal with its history.


[1] Written by Martin Flynn.

[2] Written by Sue Stanton.

[3] S James Anaya, Indigenous Peoples in International Law, Oxford University Press, New York 1996, p 87.

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