• Uncle Talgium Edwards. (NITV News)Source: NITV News
A Boonwurrung, Yorta Yorta, Muthi Muthi, Taungerung and Palawa man has for years been claiming Victoria's court system has 'no jurisdiction' over him, arguing the Kulin Nation never ceded its sovereignty.
By
Madeline Hayman-Reber

Source:
The Point
6 Jun 2019 - 6:29 AM  UPDATED 6 Jun 2019 - 6:32 AM

Uncle Talgium Edwards has been in and out of trouble with the law since he was criminalised as a child simply for being stolen from his mother and placed at Victoria’s Turana Youth Training Centre.

The Elder has been locked up for a number of minor offences over his time, from littering to vagrancy – also known as homelessness.

But since 2015, he has been contesting the court’s jurisdiction over him as a "sovereign man of the land" when he has been taken to court by police over minor offences.

“It's a waste of everyone's time, waste of money, waste of magistrate time, waste of government time. These are trivial little things,” Uncle Talgium told The Point.

In a letter to the Melbourne Magistrates' Court one of the first times he made the argument, he wrote that he pleads ‘no jurisdiction’ because sovereignty was never ceded, and there are no fully informed documents of consent from any of the Kulin Nation without duress or undue influence.

“I went to Court, and then said ‘I contest the Court's jurisdiction’. They said, ‘charge dismissed’ and I said ‘you can't do that your Honor. I want no jurisdiction’ and he said, ‘we've dismissed the charge’,” Uncle Talgium laughed.

So what exactly does this mean? A jurisdiction is a physical or metaphorical area that a court has the power to make a ruling on either a person, object, or piece of land.

To claim the court has 'no jurisdiction' means that you’re rejecting its power to convict you of a crime, or make a ruling.

In order for it to do so, the matter would need to be referred up to the High Court, and ultimately the High Court would have to decide whether or not the Constitution and in fact the establishment of the Commonwealth is legitimate.

While it has never escalated this far, Constitutional law expert and lecturer at the University of Technology in Sydney, Dr Harry Hobbs, said that if it were to get to that point, the High Court would overrule claims of ‘no jurisdiction’.

“It may be that the government, or the people bringing forth the government, decides that it's not worth their time because they think that it's a minor charge and it's not worth the hassle,” Dr Hobbs said.

“But certainly on a legal, technical position, if it went all the way up to the High Court, the High Court would find that the fact that sovereignty was never ceded, while true in fact, would have no legal consequences.

“The court would still exercise jurisdiction, and still claim to exercise jurisdiction lawfully over anyone who claims sovereignty was never ceded but certainly from a political and moral perspective there's more to be said there.”

However, Uncle Tagium says he would like to see more people contesting the court’s jurisdiction for minor offences.

“I think everyone should contest the court's jurisdiction, no matter how trivial the charge might be,” he said.

“If you don't vote, a lot of people don't vote, they get charged. But contest the jurisdiction, and that we want to be trialed by our own people of whichever Nation's country that we are in.”

Dr Hobbs says that there's already several examples of this idea working around the world, and one of the most significant is the Navajo Nation in the United States.

Their reservation has had its own judicial system based on Navajo Lore since they signed a Treaty with the United States government in the 1800's. This is called a shared jurisdiction and it's very different to the Koori Court system.

“Koori Court and circle sentencing are really valuable in many respects, but they're still based on State law, they're not based on First Nations’ law. That's different to the shared jurisdiction of the Navajo Nation for example,” Dr Hobbs said.

“Their courts are based on Navajo Lore, they're not based on United States law. Obviously because they're a smaller entitity within the United States there's some sort of transition and some sort of way that the relationship has worked out.

“United States law can ultimately come over the top, but generally that doesn't happen, so the Navajo Nation courts for example work with Navajo law. Koori Courts work on state law, and bring in some Aboriginal traditions.”

Dr Hobbs said that according to The Harvard Project on American Indian Economic Development, studies suggest that for the Navajo Nation, self-determination and being able to exercise their own Lore has had positive outcomes for empowerment and incarceration rates.

“It's difficult to translate that immediately across to Australia because it's a different constitutional, legal, political context, but the data suggests from the United States that self-determination has had a major impact in empowering FN peoples,” Dr Hobbs said.

“You could imagine that similar effects could happen in Australia as well, although you can't say for certain.”

With Treaty process currently underway in Victoria, and a recently announced $1.8 billion dollar investment into building more prisons by the state's Labor Government, there is a sense of hope that systems like this could one day be in place to keep mob out of jail.

But Dr Hobbs says in order for mobs to have this power, Treaties need to be negotiated at a federal government level, rather than a state level.

“There's nothing that says Victoria can't sign a treaty legally with the Kulin Nation for example, or any other nation within Victoria. Legally, under the Australian Constitution, Victoria can do that,”

“I think the way that the Australian Constitutional distribution of powers operates, it would be ideal that federal and state governments negotiate Treaties with the Kulin Nation together that would just make sure that the Kulin Nation would get more of the terms that they desire at any state.

“At this stage, the Victorian Treaty may not be able to do everything that the Kulin Nation, as an example, desires.”

While there's no telling exactly how a shared judicial system might work for each individual nation, Uncle Talgium has a few ideas of his own.

“Well they'd be dealt in the blackfella way, right. If they've done a wrong thing, they could be speared, they could have to answer to the family where the offence happened, they could be banished from the tribe, banished from the land, maybe things like that,” he suggested.

“I'm only new to the game. Started off late being a Stolen Gen, then growing up in a whitefulla world and not really knowing until around 40 that all this stuff happened to my people here in this country, you know, growing up in this crazy whitefulla world.”

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