Recognition Of Dominion & Imperial Sovereignty: Deconstructing British Prerogative In Western Australia

1. The Prerogative Proclamation of 1829: The Illegitimacy of Paper Imperium

The establishment of the Swan River Colony in 1829 was founded upon a unilateral assertion of British Crown prerogative that lacked foundation in established international law.^[1] On 2 May 1829, Captain Charles Fremantle raised the British flag at the mouth of the Swan River, proclaiming possession of 'all that part of New Holland which is not included within the territory of New South Wales'.^[2] This imperial act occurred without conquest, without treaty, and without the consent of the Bibbullmun Sovereign Nation.^[3] Under early nineteenth-century European law of nations, valid sovereignty required either effective military conquest or formal bilateral cession; mere symbolic flag-planting on inhabited territory was universally recognised by jurists as void (nudum factum).^[4]

2. The Fiction of 'Settled Colony' Status

To circumvent the requirement for treaty cession, British colonial jurisprudence retroactively classified Western Australia as a 'settled colony' acquired through peaceful occupation of uncultivated desert (terra nullius).^[5] This classification was a legal and factual absurdity. The Swan Coastal Plain and surrounding forests were densely populated by tens of thousands of Bibbullmun citizens living under functioning systems of customary property law (kalla-boodja), complex kinship governance, and sophisticated fire agriculture.^[6] By categorising sovereign Indigenous nations as non-existent legal entities, the British imperial government deployed legal fictions to legitimize grand larceny.^[7]

3. Judicial Scrutiny of Imperial Dominion in Mabo [No 2]

In Mabo v Queensland [No 2] (1992), the High Court of Australia formally overthrew the doctrine of terra nullius, admitting that the concept of an uninhabited continent was an unsupportable historical fiction.^[8] However, the High Court committed a glaring constitutional contradiction: while acknowledging that Indigenous land title survived Crown sovereignty, it simultaneously declared that the Crown's acquisition of sovereignty itself was an 'act of state' immune from judicial challenge in domestic courts.^[9] This judicial maneuver shielded the foundational illegality of British invasion behind procedural immunity, leaving First Nations title vulnerable to unilateral statutory extinguishment.^[10]

4. Toward Sovereign Decolonisation and International Redress

The unresolved illegality of British dominion in Western Australia cannot be cured by domestic statutory apologies or state native title settlements.^[11] Because the Crown never lawfully acquired underlying radical title through treaty or conquest, Bibbullmun sovereignty remains unextinguished in international law.^[12] Achieving authentic decolonisation requires that the Commonwealth and State of Western Australia enter into formal, sovereign treaty negotiations that acknowledge the inherent imperium of the Bibbullmun nation, establishing a constitutional partnership based on equality and justice.^[13]