HISTORIC DOCUMENTS ILLUSTRATE THE ILLEGAL BASIS OF 'AUSTRALIA'
LEGAL DOCUMENTS FROM HISTORY ILLUSTRATE THE CROWN HAS NO JURISDICTION
'AUSTRALIA' HAS A MASSIVE PROBLEM - Historic and legal evidence proves that The Crown, The Parliament of the Commonwealth of Australia, The Australian Government, State and Local Government and Government agencies including Courts and Police, have no lawful jurisdiction over the Sovereign Tribes of the Kabi Nation or our Tribal Lands, or any 'native' peoples or their lands anywhere on the continent and surrounding islands now known as 'Australia'.
SOVEREIGNTY WAS NEVER CEDED TO THE CROWN
Original Sovereign peoples have never ceded our Sovereignty to the Crown of England, or the Australian government, and we have not signed away the ownership of our lands to any other peoples. Sovereign Tribes of this Country assert our continuing spiritual connection, ownership and responsibilities to continue to care for and protect our sacred lands and sacred sites, and to transfer those connections, ownership and responsibilities on to our children.
There have been no treaties or contracts between Sovereign First Nation Tribes and The Crown, or any British or Australian Government or government agents which relinquish First Nation Sovereignty or ownership of the land to the Crown or to any Australian Government.
SECRET ADMIRALTY ORDERS FOR CAPTAIN COOK - TO GAIN 'CONSENT OF THE NATIVES'
The secret orders given to James Cook before he sailed to find the 'Southern Continent', instructed him to ascertain if the continent was occupied, also to make friends with any 'natives', invite them to trade, and to take possession of some 'convenient situations' with the consent of the 'natives'. Following is an extract of those orders:
'You are likewise to observe the Genius, Temper, Disposition and Number of the Natives, if there be any and endeavour by all proper means to cultivate a Friendship and Alliance with them, making them presents of such Trifles as they may Value inviting them to Traffick, and Shewing them every kind of Civility and Regard; taking Care however not to suffer yourself to be surprized by them, but to be always upon your guard against any Accidents. You are also with the Consent of the Natives to take Possession of Convenient Situations in the Country in the Name of the King of Great Britain: Or: if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors.' 1
COOK DOCUMENTED THAT THE LAND WAS OCCUPIED, AND HE WAS NOT WELCOMED
The notion of 'Terra Nullius' is a lie. James Cook found the continent and Islands were occupied, and he documented this in his journals, along with the fact he was not made welcome. He remarked the following after landing at Stingray Bay (now known as Botany Bay):
'...Saw as we came in on both points of the bay Several of the natives and afew hutts, Men women and children on the south shore abreast of the Ship to which place I went in the boats in hopes of speaking with them accompaned by Mr Banks Dr Solander and Tupia - as we approached the shore they all made off except two Men who seem'd resolved to oppose our landing - as soon as I saw this I orderd the boats to lay upon their oars in order to speake to them but this was to little purpose for neither us nor Tupia could understand one word they said. we then threw them some nails beeds &Ca a shore which they took up and seem'd not ill pleased with in so much that I thout that they beckon'd to us to come a shore but in this we were mistaken for as soon as we put the boat in they again came to oppose us upon which I fired a musket between the two which had no other effect than to make them retire back where bundles of thier darts lay and one of them took up a stone and threw at us which caused my fireing a second Musquet load with small shott and altho' some of the shott struck the man yet it had no other effect than to make him lay hold of a ^Shield or target ^to defend himself emmediatly after this we landed which we had no sooner done than they throw'd two darts at us this obliged me to fire a third shott soon after which they both made off, but not in such haste but what we might have taken one, but Mr Banks being of opinion that the darts were poisoned made me cautious how I advanced into the woods...' 2
BANKS ALSO NOTED THE NATIVE PEOPLES WERE 'RESOLVED' TO DISPUTE THE LANDING.
'….for as soon as we aproachd the rocks two of the men came down upon them, each armd with a lance of about 10 feet long and a short stick which he seemd to handle as if it was a machine to throw the lance. They calld to us very loud in a harsh sounding Language of which neither us or Tupia understood a word, shaking their lances and menacing, in all appearance resolvd to dispute our landing to the utmost tho they were but two and we 30 or 40 at least. In this manner we parleyd with them for about a quarter of an hour, they waving to us to be gone, we again signing that we wanted water and that we meant them no harm. They remaind resolute so a musquet was fird over them, the Effect of which was that the Youngest of the two dropd a bundle of lances on the rock at the instant in which he heard the report; he however snatchd them up again and both renewd their threats and opposition. A Musquet loaded with small shot was now fird at the Eldest of the two who was about 40 yards from the boat; it struck him on the legs but he minded it very little so another was immediately fird at him; on this he ran up to the house about 100 yards distant and soon returnd with a sheild. In the mean time we had landed on the rock. He immediately threw a lance at us and the young man another which fell among the thickest of us but hurt nobody; 2 more musquets with small shot were then fird at them on which the Eldest threw one more lance and then ran away as did the other.' 3
Banks went on to note that there were houses, further evidence the land was permanently settled:
' We went up to the houses, in one of which we found the children hid behind the sheild and a peice of bark in one of the houses. We were conscious from the distance the people had been from us when we fird that the shot could have done them no material harm; we therefore resolvd to leave the children on the spot without even opening their shelter. We therefore threw into the house to them some beads, ribbands, cloths &c. as presents and went away. We however thought it no improper measure to take away with us all the lances which we could find about the houses, amounting in number to forty or fifty.' 4
JAMES COOK CLAIMED THE EASTERN COASTLINE AND WATERWAYS FOR THE CROWN
On Wednesday 22nd of August 1770, Cook landed at Possession Island, and noted in his journal:
'...after we Anchor'd we saw a Number of People upon this Island, Arm'd in the same manner as all the others we have seen, Except one man, who had a bow and a bundle of Arrows...' 5
After noting that the island was occupied, Cook also wrote in his entry for the same day:
'....I had in the name of his Majesty taken possession of several places upon this Coast, I now once More hoisted English Colours in the Name of His Majesty King George the Third took possession of the whole Eastern coast from the above Latitude down to this place by the Name of New Wales, together with all the Bays, Harbours, Rivers, and Islands, situated upon the said Coast....' 6
James Cook did not state that he claimed the continent now known as 'Australia', he stated that he claimed the eastern coast, waterways and islands. Cook acted against Admiralty orders, as he noted the land was occupied, and he did not reach agreements with 'natives' to utilise any portions of their land for the Crown. The fact is that Cook was told to leave, and he replied with the use of aggression.
'AUSTRALIA' AS ONE NATION WAS A FICTION IN 1788
Ownership of 'Australia' could not be transferred to the British in 1788, because the existence of 'Australia' as one nation was a fiction. The Continent and surrounding islands consisted of many Sovereign Nations, each having ownership of, and jurisdiction over their own land. Even if the British had made a treaty to purchase land with one First Nation tribe, it would still not have been legally valid for the whole continent.
The independent Sovereignty of tribal nations was acknowledged by 'Aboriginal Protectors', such as Queensland 'protector' Richard Howard, who wrote in his 1909 report:
'The aborigines of Queensland are universally divided into districts and independent tribes, each occupying as their hunting-grounds a certain portion of territory, of which the limits are generally well defined by prominent features in the natural scenery of the country and well known to all the neighbouring tribes. This division would appear to have taken place from time immemorial, as there is no part of the available portion of the country to which some tribe or other does not lay claim....The territory of each tribe is subdivided, moreover, among the different families of which it consists; and the proprietor of any particular subdivision has the exclusive right to direct when it shall be hunted over, or the grass burned, and the wild animals destroyed.' 7
Please note that this was written after the 'Commonwealth of Australia' was Constituted.
LETTERS PATENT PROVE THE CROWN CLAIMED NO RIGHT TO OWNERSHIP OF 'NATIVE' LAND.
The British founding documents for Australia, acknowledge that the British Crown claimed no jurisdiction over the Original peoples of Australia or their land. The Letters Patent Erecting and Establishing the Province of South Australia, 19 February 1836 proves that the Crown of England claimed no title of ownership to any 'Native' land in South Australia, unless it was voluntarily sold by the Original owners.
'Provided Always that nothing in those our letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation and actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives'.8
In the Letters Patent erecting Moreton Bay into a Colony, under the name of Queensland, and appointing Sir George Ferguson Bowen, K.C.M.G., to be Captain-General and Governor-in-Chief of the same (1859), Queen Victoria instructed Sir George Ferguson Bowen to govern Queensland in accordance with her future instructions, and in accordance with the same laws and ordinances used in New South Wales:
'and according to such laws and ordinances as are now in force in our said colony of New South Wales and its dependencies, and as shall hereafter be in force in our said colony of Queensland.' 9
THE PACIFIC ISLANDERS PROTECTION ACT 1875 UK, AGAIN PROVES THE CONTINENT OF 'AUSTRALIA' WAS NOT CLAIMED AS PROPERTY OF THE CROWN, BECAUSE QUEEN VICTORIA ACKNOWLEDGED THAT THE CROWN HAD NO SOVEREIGNTY OR JURISDICTION OVER THE ORIGINAL INHABITANTS OR OUR LAND
Article 7 of the Pacific Islanders Protection Act 1875 UK (38 & 39 Vic. c. 51), (Imperial) Amended, applied to all First Nation Peoples of the Pacific, including Queensland, New South Wales, Victoria, South Australia (which then included the Northern Territory) and Western Australia. In the following words, The Pacific Islanders Protection Act 1875 UK, Article 7, clearly states that Queen Victoria has no title, sovereignty or dominion over the original inhabitants or lands of 'The Pacific Islands':
'Saving the Rights of tribes - Nothing herein or in any such Order on Council contained shall extend or be construed to extend to invest Her Majesty with any claim or title whatsoever to dominion or sovereignty over any such islands or places as aforesaid, or to derogate from the rights of the tribes or people inhabiting such islands or places, or of chiefs or rulers thereof, to such sovereignty or dominion, and at copy of every such Order in Council shall be laid before each House of Parliament within thirty days after the issue thereof, unless Parliament shall not then be in session, in which case a copy shall be laid before each House of Parliament within thirty days after the commencement of the next ensuing session.' 10
Since the Pacific Islanders Protection Acts were authored, there have been no treaties or contracts, between our Sovereign First Nation peoples, and 'the Crown' or any Australian Governments or Government agencies, which relinquish First Nation Sovereignty and jurisdiction, or ownership of our sacred tribal native lands, waterways and sacred sites.
AUSTRALIAN 'LAWS' HAVE NO JURISDICTION OVER FIRST NATION TRIBES OR OUR SACRED TRIBAL LANDS, WATERWAYS AND SACRED SITES, AS SOVEREIGNTY WAS NEVER CEDED, BUT ALSO BECAUSE EXCESS OF POWER IS NOT AND NEVER HAS BEEN LAW.
This is important in proving that 'Native Title' is not necessary for Sovereign Tribal land ownership. Chief Justice Latham, of the High Court of Australia stated in 1942, in the First Uniform Tax Case HCA (High Court of Australia) 1942 (65 CLR 373 at 408):
'A pretend law made in excess of power is not and never has been a law at all', and 'If it is beyond power it is void ab initio'.11
The statement means that Justice Latham publicly recognised in the Court, that any law made outside the jurisdiction of the law-maker is naturally void, or not a valid law, even if it's invalidity has not been recognised by a court. Therefore anybody is entitled to ignore it. This is not just for tax law, but would be relevant to all laws.
“Common expressions such as: ‘The Courts have declared a statute invalid’,” stated Chief Justice Latham,“sometime lead to misunderstanding. A pretend law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision of a court in his favour, but such a decision is not an element that produces invalidity in any law. The law is not valid until a court pronounces against it – and thereafter invalid. If it is beyond power it is void ab initio”, Justice Latham then went on to clearly state that “Anybody in the country is entitled to disregard it.” 12
The worthlessness of 'laws' and judgements which overreach the power of the law makers, was also noted by Chief Justice Robert Shenton French at the Sir Frank Kitto lecture at the University of New England in 2011, when he stated:
For if the decision-maker has misconstrued the condition upon which the exercise of his or her power depends, then the purported exercise of the power may be invalid for jurisdictional error.' 13
Basically, any Laws made by governments in Australia are in excess of power, because 'The Crown', has no jurisdiction over First Nation peoples or their lands, as acknowledged by Queen Victoria in The Pacific Islander Protection Act 1875 UK, Article 7. The Crown did not grant rights which could be taken away, but affirmed and recognised that 'The Crown' had no rights to title, dominion or sovereignty over the Original tribal inhabitants or lands of any of the Pacific Islands, including the continent now known as 'Australia', unless that title, dominion or Sovereignty was voluntarily relinquished.14
NO LAND OWNERSHIP HAS BEEN TRANSFERRED, NO TREATIES HAVE BEEN MADE - THE CROWN AND 'GOVERNMENTS' HAVE NO JURISDICTION
Since the Pacific Islanders Protection Act 1875 came in to force, the Sovereign Tribes of the Kabi Nation have never relinquished our Sovereignty or our land to the Crown or Parliament or any government agent. This would be true of other First Nations of this land. Therefore the Crown, Parliament, federal and state governments, local councils, Police, courts and the judiciary have NO LAWFUL JURISDICTION over our Sovereign 'Native' Tribes or sacred tribal lands, waterways or sacred sites.
Ownership of the sacred tribal lands waterways and sacred sites of the 'Australian' continent, and surrounding Islands naturally remains with First Nation Tribes. It therefore follows that the only valid law on the 'Australian' continent is the pre-eminent Lore/Law of First Nation Sovereign tribal peoples.
THE AUSTRALIAN CONSTITUTION ACKNOWLEDGED THE CROWN HAD NO JURISDICTION OVER FIRST NATION TRIBES
In An Act to Constitute the Commonwealth of Australia 1900, the Crown and the Commonwealth of Australia confirmed their continuing lack of jurisdiction over our Sovereign Native Tribes and our lands. The list of people assenting to unite in a 'Federal Commonwealth' omits 'Aboriginal natives'.15
Section 51 of the Constitution refers to legislative powers, and states clearly that laws cannot be made for people of the 'Aboriginal race in any State'.16 This was not a racist act but an acknowledgement that the Crown and Australian Governments have no jurisdiction over the Original First Nation Sovereign tribes or our land. The striking out of that section of the constitution, is in breach of the Constitution, in defiance of Acts of the Crown, and is unlawful.
Section 127 stated that 'Aboriginal natives shall not be counted' in reckoning numbers of people in the Commonwealth. 'Aboriginal Natives' were excluded from the Australian Constitution, not because of discrimination, but due to recognition of the continuing Sovereignty and jurisdiction of the Sovereign Native Tribes over our lands and over ourselves.17
Only First Nation peoples have jurisdiction over the sacred lands, waterways and sacred sites of our Country. Governments and Councils have no lawful right to occupy, damage, claim ownership, legislate for, or charge anyone for use of, any sacred Tribal lands, waterways or sacred sites, as they do not have lawful ownership over them.
*Please note that historical sources are accurately quoted, and therefore contain their original spelling.
REFERENCES:
1. Secret Instructions to Captain Cook, 30 June 1768, paragraphs 3 & 4, from the Founding Documents website, available from: http://foundingdocs.gov.au/resources/transcripts/nsw1_doc_1768.pdf
2. Cook, James, Journal entry, 29 April 1770, Cook's Journal: Daily Entries, National Library of Australia website, available from: http://southseas.nla.gov.au/journals/cook/17700429.html
3. Joseph Banks, journal entry, 28 April 1770, Bank's Journal: Daily Entries, National Library of Australia website, available from: http://southseas.nla.gov.au/journals/banks/17700428.html
4. Joseph Banks, journal entry, 28 April 1770.
5. James Cook, journal entry for Wednesday 22nd August 1770, The Project Gutenberg EBook of Captain Cook's Journal During the First Voyage Round the World, by James Cook, Project Gutenberg website, available from: http://www.gutenberg.org/files/8106/8106-h/8106-h.htm
6. James Cook, journal entry for Wednesday 22nd August 1770.
7. Richard B Howard 1910 Queensland Annual Report of The Chief Protector of Aboriginals for the Year 1909, (Brisbane: Anthony James Cumming, 1910), p.6. Available from AIASIS website, accessed September 2014: http://aiatsis.gov.au/sites/default/files/docs/digitised_collections/remove/63654.pdf
8. King William the Fourth, Letters Patent Erecting and Establishing the Province of South Australia, 19 February 1836, p. 2. Available from Australian Government Founding Documents website: http://foundingdocs.gov.au/resources/transcripts/sa2_doc_1836.pdf
9. Queen Victoria, Letters Patent erecting Moreton Bay into a Colony, under the name of Queensland, and appointing Sir George Ferguson Bowen, K.C.M.G., to be Captain-General and Governor-in-Chief of the same (1859), available from Queensland government website: https://www.foundingdocs.gov.au/item-sdid-47.html
10. Queen Victoria, The Pacific Islander Protection Act 1875 UK (38 & 39 Vic. c. 51.) (Imperial) Amended, University of South Pacific, Emalus Campus library website, available from: http://www.vanuatu.usp.ac.fj/library/online/texts/Pacific_archive/Western%20Pacific/10.%20Pacific%20Islanders%20Protection%20Amendment%20Act,%201875.PDF
11. Chief Justice Latham, South Australia v Commonwealth (1942) 65 CLR 373 'The First Uniform Tax Case' HCA (High Court of Australia) 1942 (at 408 and following): http://www.austlii.edu.au/cgi-bin/download.cgi/cgi-bin/download.cgi/download/au/cases/cth/HCA/1942/14.pdf
12. Chief Justice Latham, of the High Court of Australia. Uniform Tax Case HCA (65 CLR 373 at 408 and following).
13. Chief Justice Robert French AC, “What were they thinking? Statutory Interpretation and Parliamentary Intention” Sir Frank Kitto Lecture, University of New England , (Armidale, 23 September 2011), p 10. Available from the High Court website: http://www.hcourt.gov.au/assets/publications/speeches/currentjustices/frenchcj/frenchcj23sep11.pdf
14. Queen Victoria, The Pacific Islander Protection Act 1875 UK (38 & 39 Vic. c. 51.) (Imperial) Amended.
15. An Act to Constitute the Commonwealth of Australia 1900, p.1, available from the Australian Government Documenting a Democracy Website, available from: http://www.foundingdocs.gov.au/resources/transcripts/cth1_doc_1900.pdf
16. Ibid, p.11.
17. Ibid, p.24.