I rediscovered a forgotten legal rule. It could transform Indigenous rights in Australia

Canada has signed more than 70 treaties with its Indigenous peoples. The United States has more than 300 treaties. Our neighbour, New Zealand, has the Treaty of Waitangi. Countries such as Ecuador, Norway and Finland recognise Indigenous sovereignty through other devices, such as constitutional recognition and a Sámi Parliament.

In fact, Australia is the only major Commonwealth country not to have formally recognised that its Indigenous people have an inherent right to sovereignty: that is, the power to govern aspects of their own affairs. The Mabo decision dealt with Aboriginal land rights, but the question of Aboriginal sovereignty was left to languish.

That might now be open to change. My new research just published in the University of New South Wales Law Journal has found a long-forgotten legal rule that can clear the way for the High Court to hear cases about First Nations sovereignty.

This could result in cases as significant as Mabo, potentially transforming Indigenous rights in Australia.

The deadlock rule

For around 50 years, the High Court has consistently said all questions about First Nations sovereignty fall outside its jurisdiction – that the court does not have the power to hear such cases.

This started in 1979, with a case called Coe v Commonwealth.

Normally the High Court sits with an odd number of judges. This prevents deadlocks. But in Coe, there were only four High Court judges, who split two and two on the early procedural question of whether the court should allow a trial on sovereignty.

That meant their vote was a stalemate, so the case did not go to trial.

Since then, legal thinking has accepted the outcome of that 1970s case and assumed the High Court doesn’t have the power to hear cases on sovereignty.

This has turned out to be an error. Because it was a stalemate, or a deadlock vote, and not a decision on which the court had a majority verdict one way or the other, the case does not count as a valid precedent. A legal precedent is a decision that must be followed in all subsequent cases.

This is because there is a long-forgotten legal rule that explicitly says deadlocked decisions like this do not create a precedent. Cases in the 1930s and 1960s support this rule.

As a deadlocked decision, Coe v Commonwealth did not create any valid legal precedent. Legally, it is as if the case never happened, leaving behind a clean slate to start again.

Which, in turn, means it is open to the High Court to agree to hear any case on Indigenous sovereignty that is put forward.

So, where to from here?

There are three possible outcomes.

None of them include Australia’s Indigenous peoples “taking your backyard”, as the scare campaign over Mabo insisted.

All other major Commonwealth countries have managed to acknowledge Indigenous sovereignty without their systems of government being undermined. This is because multiple sovereignties can exist at the same time and work together, such as Australia’s state and federal governments.

It will now be up to Aboriginal and Torres Strait Islander peoples to decide whether to run a new test case. If they choose to do that, the High Court might continue to claim it has no jurisdiction and leave it to the political arena.

If the High Court did agree to hear a case, there would be a trial. The court would have the power to decide whether – at least in terms of Australian law – First Nations sovereignty does, or does not, exist.

If the court rejected sovereignty, this could be devastating for Indigenous people, rather like the outcome of the Voice referendum.

But if sovereignty were recognised, this would be hugely significant, like another Mabo. It could potentially open legal avenues to more treaties, self-determination and reparations for First Nations people in Australia.

While Victoria already signed its own statewide treaty last year, no others exist in Australia.

What difference would it make?

The evidence suggests recognition of sovereignty, and implementing it in social systems, can make a huge difference to the wellbeing of Indigenous peoples.

One of Canada’s many successful examples of Indigenous sovereignty is a treaty between a First Nation called the Nisga’a and both the federal and provincial governments.

Before the treaty was signed in 2000, the Nisga’a had poorer health compared to non-Indigenous communities, greater interaction with criminal justice systems, lower life expectancy, and a whole range of problems that come from intergenerational trauma as a result of colonisation.

Since the treaty was signed, giving the Nisga’a decision-making control through their own level of government, the statistics in that community have greatly improved. Life has got better.

And that would be the biggest potential change of all.