Testing Sovereignty: Isabel Coe v The Commonwealth
Since the Mabo decision, the issue of sovereignty was again raised in Isabel Coe v The Commonwealth (1993) 118 ALR 193. The claims, on behalf of the Wiradjuri nation sought recognition of the sovereignty and autonomy of the Wiradjuri people. The claim was rejected by Chief Justice Mason who regarded the claim as 'untenable' because it sought to challenge the sovereignty of the state. (at p 200)
Chief Justice Mason rejected the suggestion that the Mabo decision could be consistent with the assertions made in this case, saying:
'Mabo [No.2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal peoples of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty ... or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, State of New South Wales and the common law.' (p200)
This decision is clearly more reserved than the Mabo decision in recognising Indigenous peoples authority and autonomy and is not likely to see the issue put to rest.
The difficulty with the decision in Isabel Coe is the assumption that recognising Indigenous peoples' sovereignty challenges the sovereignty of Australia as a state. But these are separate issues. The recognition of native title raises issues of sovereignty that are foremost a question for Australia's internal sovereignty and government arrangements.
Chief Justice Mason rejected the suggestion that the Mabo decision could be consistent with the assertions made in this case, saying:
'Mabo [No.2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal peoples of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty ... or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, State of New South Wales and the common law.' (p200)
This decision is clearly more reserved than the Mabo decision in recognising Indigenous peoples authority and autonomy and is not likely to see the issue put to rest.
The difficulty with the decision in Isabel Coe is the assumption that recognising Indigenous peoples' sovereignty challenges the sovereignty of Australia as a state. But these are separate issues. The recognition of native title raises issues of sovereignty that are foremost a question for Australia's internal sovereignty and government arrangements.
Keywords: aboriginal law, Isabel Coe v The Commonwealth, native title, sovereignty, 1993
Author: Strelein, Lisa