A Matter of Precedent: Are All Questions of First Nations Sovereignty Really Non-justiciable in Australian Courts?

For several decades, the High Court of Australia has consistently repeated that all questions concerning First Nations sovereignty are non-justiciable in Australian courts. Not surprisingly, it is widely assumed that this position is incontestable as a matter of precedent. This article calls this assumption into question by exploring the precedential value of the Court’s position, including retracing the under recognised origins in their 1979 decision of Coe v Commonwealth (‘Coe’), which remains the Court’s only appellate decision directly on this point. Closely examining Coe through the lens of precedential value offers important insights, namely: that an evenly divided Court encountered a complex set of substantive issues in an interlocutory context, based its decision on technical issues of procedure, and delivered limited reasoning on underlying substantive issues. Re-evaluating Coe’s precedential value thus raises significant questions about the doctrinal stability and durability of the Court’s current position that all questions of First Nations sovereignty are non-justiciable.