Renovating the Orthodox Theory of Australian Territorial Sovereignty

Lavery, Daniel (2022) Renovating the Orthodox Theory of Australian Territorial Sovereignty. University of New South Wales Law Journal, 45 (2). pp. 499-530.

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Abstract

Mabo v Queensland [No 2] opened for re-examination the fundamental principles underpinning the colonial foundations of Australia, stating the native title of Indigenous peoples could survive the assertions of territorial sovereignty by Great Britain. Finding their territories were‘sovereign’-less because they were ‘backward peoples’, an original, plenipotent sovereignty swept across the 3,000,000 square kilometres of ‘New South Wales’ on 7 February 1788, and across the balance of continental Australia in 1824 and 1829. This orthodox theory of sovereignty was unchallenged until Members of the Yorta Yorta Aboriginal Community v Victoria in 2002, where the High Court stressed the traditional laws and customs sourcing these native titles must be housed in pre-existing yet vital normative systems which likewise survived the assertions of sovereignty. Each native title determination thus acknowledges an Indigenous society whose laws and customs are sourced outside of the formal constitutional framework. The orthodox theory needs renovating in order to achieve a legally congruent and historically coherent framework.

Item ID: 75537
Item Type: Article (Research - C1)
ISSN: 1839-2881
Keywords: Australian territorial sovereignty, Indigenous sovereignties, terra nullius, enlarged terra nullius, Occupation of Backward Peoples Doctrine, orthodox theory of sovereignty
Date Deposited: 25 Jul 2022 22:03
FoR Codes: 48 LAW AND LEGAL STUDIES > 4807 Public law > 480702 Constitutional law @ 100%
SEO Codes: 28 EXPANDING KNOWLEDGE > 2801 Expanding knowledge > 280117 Expanding knowledge in law and legal studies @ 100%
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