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Blacks to sue the Crown

By Luke Mcllveen

2 September 2002 - THE nation's richest Aboriginal land council is preparing to launch unprecedented legal action in the British High Court, claiming that 18th-century white settlers ignored royal instructions when they dispossessed Aborigines of their land.

The Metropolitan Local Aboriginal Land Council, which represents the traditional owners of Sydney, has appointed lawyers to prepare the High Court action, which would be the first attempt to hold the Crown responsible for the treatment of Aborigines.

The council will argue that governor Arthur Phillip ignored instructions from King George III to establish a treaty with indigenous Australians, in accordance with 18th-century British foreign policy.

An adviser to the land council, former barrister Paul Coe, said the action would pursue the Crown for breaching its fiduciary duty because it did not show "specific legislative intent" to overrule the property rights of Aborigines.

"They just took it without permission. Everyone said Mabo was off the planet, but we believe we have a very strong case," Mr Coe said. "This has gone beyond John Howard saying sorry, and now it's purely about compensation. How much are we seeking? Well, how much is the commonwealth worth?

"This High Court action is deadly serious because it's the only avenue where Aboriginal people are ever going to obtain justice. If you look at the Treaty of Waitangi in New Zealand, and the treaties in America and Canada prior to the War of Independence, Australia stands out as this bizarre case where the normal practice of at least trying to form good relations was just ignored."

British High Court proceedings require a guarantee from both parties that costs will be met in the event of their action failing, but the council has requested a waiver of this guarantee from the Crown.

The land council - which owns vast tracts of prime real estate around Sydney Harbour and the suburbs - will also ask other land councils to join the action. Clayton Utz, the council's lawyer, is the same firm retained by the Prime Minister.

The land council also has convinced NSW Governor Marie Bashir to write to the Queen asking her to apologise for the treatment of Aborigines. An apology from the Queen would boost the case, but it will push ahead with the action regardless.

As revealed in The Weekend Australian , Professor Bashir will unveil next month a plaque acknowledging members of the Cameraygal clan who resisted British "invasion" at Woodford Bay, near Sydney's Lane Cove.

Source: The Australian

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