Malbon, Justin --- "The Walker Case: Applicability of Non-Aboriginal Law to Aborigines" [1989] AboriginalLawB 18; (1989) 1(37) Aboriginal Law Bulletin 14

• The Walker Case The Applicability Of Non-Aboriginal Law To Aborigines

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The Walker Case

the Applicability of Non-Aboriginal Law to Aborigines

by Justin Malbon

Denis Walker, a member of the Nunukel tribe which live on Stradbroke Island, was arraigned during June, 1988 in the Queensland Criminal Court on the charges of entering a dwelling with intent and on two counts of wilful destruction of property. He refused to enter a plea on the basis that the court had no jurisdiction to try him. He argued on his own behalf that Captain Cook had illegally claimed possession of Australia, by breaching his instructions, and that the principles in Magna Carta required that he be tried by his peers. He argued that an all white jury did not constitute his peers. Presiding Judge Skoien entered a plea of not guilty on Denis' behalf. Denis was later found guilty of the two wilful destruction charges.

Walker appealed to the Queensland Court of Criminal Appeal in relation to the first trial. Again he argued his own case. On Ist December, 1988 the court dismissed his appeal. He then sought special leave from the High Court to appeal the Court of Criminal Appeal decision. On this occasion he was represented by Ron Castan QC and Bryan Keon-Cohen. The Chief Justice, Dawson and McHugh JJ refused special leave because they believed that the issues which counsel wished to put before the High Court had not been fully argued before the Court of Criminal Appeal.

In the Court of Criminal Appeal the Crown admitted, as a matter of historical fact, that before and after 1770 the Nunukel people occupied Stradbroke Island, they had possessed a system of government and laws and that Denis Walker is a descendant of the people who occupied the Island in 1770. Cook was instructed to take possession of "convenient situations" on the Australian continent "with the consent of the native" peoples. He failed to comply with that instruction. However, the Court of Criminal Appeal found that his "claim" was validated by a number of subsequent instruments. Despite that it is far from clear how the British were able to validly acquire territory occupied by a number of sovereign nations or groups which had in place their own systems of government and laws. The Court observed that the British claim of sovereignty:

raises the issue of how it is that judges and others in Queensland apply ... these laws to Stradbroke Island; and, conversely, why the Nunukel people, who in times long past once exercised sovereignty over Stradbroke Island are without any formal displacement of their own legal system, now expected and obliged to submit to laws not of their own making.

The Court avoided any adequate answer to that question by simply asserting that

"the fundamental fact, be it historical, political or social, is that we as judges recognize the authority in Queensland of laws having their source in the Imperial, Colonial, State and Commonwealth statutes to which I have referred."

The rational for this assertion appears to be on the basis that

"courts transfer their allegiance to a new legal order when they recognize that the old order has been effectively overthrown, a process described as revolution, which may be violent or peaceful or a combination of both".

This extraordinary legal reasoning has been rejected by the courts in the US, Canada and New Zealand and requires challenge in Australia.

The Walker case is not the first case to challenge the jurisdiction of the Australian courts to deal with Aboriginal people. Despite that, there is no authoritative case which holds that non-Aboriginal Courts have jurisdiction over alleged offences by Aboriginal people occurring on their land. Tribal courts a r e n o t unprecedented as they exist under the US legal system which derived from the British common law. The High Court did not dismiss the appeal, but required that the arguments be properly put to the court below. The Walker case confirms that questions of the jurisdiction of non-Aboriginal courts over Aboriginal people and the means by which the British acquired Australian territory are yet to be resolved by an authoritative decision of a court.

Lawyers working in the area of Aboriginal law should be alert to the possibility of a well thought out jurisdictional challenge. They would be well advised to seek the opinion of senior counsel from the outset to ensure that the appropriate issues are raised so that they may be considered on appeal. So as to indicate the issues which arise in this context, I have listed below an edited version of the grounds of appeal in the Walker case. In view of the concessions mentioned in the said judgement made by the Crown, the Court of Criminal Appeal erred in law in that it should have found:

(a) that following 1770. 1788, 1824 and thereafter:

(i) the Nunukel peoples' entitlement to Stradbroke Island in the State of Queensland being a traditional native communal title to the whole or part of the said island, survived and has not been displaced;
(ii) the said Nunukel people's system of traditional government including administration of criminal laws inter se amongst the Nunukel peoples, or between Nunukel peoples and other peoples, survived and has not been displaced, to the exclusion of the application of the criminal laws of Queensland;
(iii) such survival of traditional government further was not impaired or displace by the establishment of the colony of Queensland and the administration of its laws therein including its criminal laws; by the establishment of the State of Queensland and the administration of its laws therein including its criminal laws; or by the establishment of the Commonwealth of Australia pursuant to the. Constitution in 1901, and the administration of its laws therein including the Commonwealth's criminal laws.