Aboriginal law and custom is very strict on who has authority to speak for a group of people. One must have the correct authority, and can only speak with the explicit backing of those they speak for. An argument you will a lot from Aboriginal people is – “X doesn’t speak for me!”. It is a very ingrained principle. This contrasts with other cultures; and in my opinion – modern democracies could be improved by incorporating this element of strict accountability. Many unpopular and subsequently futile, protracted wars in recent history (Iraq, Afghanistan) would have never happened if this principle were followed by modern democracies.

In this post I am going to try to find a point of harmony with this Aboriginal principle and with a conflict this principle may have with International law on decolonisation.

Why International Law is important

I would like to see a meeting of Aboriginal law and International law because I believe that International law holds the best chance for true justice and a fair decolonisation process. The reason for this is twofold.

1. The legitimacy of Australia is ultimately grounded in the acceptance of that legitimacy by the wider international community. If the international community of nation states did not accept Australia as legitimate due to it’s ongoing colonial violations, then it would not be legitimate. (see: Constitutive theory of sovereignty) This point is massive political leverage if we understand it, and make it loud and clear.
2. The domestic laws of Australia offer no solution for our emancipation. The settler-colonial system was fundamentally built on our elimination. The goalpost has shifted from genocide to complete political assimilation – which will leave us as Australians and not as distinct peoples in our own right.

I can envisage some Aboriginal people taking a more purist point of view, and argue that International law is not “our law”, and therefore we shouldn’t accede to it or accept it. I can see that point of view; but in practical terms our distinct political identities will die in a slow, painful death without outside, international support. We don’t have a military, and I can’t see us embarking on a guerrilla war or envisaging violent tactics going anywhere. Leveraging International law and diplomacy is the only viable option we have. And the fact is – although international politics is dominated by a small minority of powerful nations who benefit directly and strive to uphold settler-colonial status-quo, International law is clearly on our side in regards to decolonisation.

I have sometimes compared the dynamic under colonialism as being similar to the dynamic of a domestic violence situation. We are living in the same house as a controlling abuser. There comes a point where an abused, beaten woman realises “he will never change”. I hope she realises it before she ends up dead. I would say to her “I know – you are traumatised and beaten – but realise the urgency. You must do something about your predicament. Don’t sit and wait for the abuser to redeem and make everything better. The first step is to build a support network outside of the house, and to think seriously about what to do next. “

There are “support services” available for colonised peoples. There is the UN C24 decolonisation committee. We need to find a way to access these “support services” and to make friends outside of the abusive household (establishing diplomatic relations with other countries). This will make things easier when we eventually kick the abuser out of our house, or come to a negotiated resolution with them. Right now we are under so much control that we are not aware of potential sources of outside support, and we are being presented with an extremely narrow set of solutions by the abusive party.

What is Uti possidetis juris?

Uti possidetis juris is a principle in International Law to do with decolonisation. It means that upon decolonisation and the emergence of a new independent state (country), the previous colonial borders are kept intact. (see Burkina Faso vs. Mali ICJ case for an example)

This principle effectively overwrites any pre-colonial nation boundaries and replaces them with imposed colonial borders. This does have some logic. It is intended to prevent disputed “terra nullius” territory arising from gaps left after decolonisation; to protect newly independent state borders from conflict. The principle arose in South America and Africa; continents with multiple competing European colonising powers. On the face of it, this seems logical and makes sense. However in practice it hasn’t worked out – and has resulted in conflicts between peoples and the random decolonised state they have ended up in – all because some European fulla drew a straight line on a map a few hundred years beforehand.

The principle of uti possidetis juris does not make sense for application in Australia for a handful of good reasons. It is a continent – with no land borders, with a single European colonial power dominating. Aboriginal law has songlines creating threads of continuity covering most of the territory, and territorial boundaries which have; for the most part, not been forgotten. No third-party has a plausible historical claim the territory. But because uti possidetis juris is already well established in International law, it is something that applies regardless by precedent. Yes, it’s dumb. But don’t shoot the messenger (me). Just be aware.

Let’s use Australia and the Murrawarri Republic as an example to show how uti possidetis juris might function. The Murrawarri Republic is an unrecognised (in the wider International community) Aboriginal micro-nation who declared independence in 2013. Following their own custom (of only speaking for their own land and people); they only declared independence for their own territory. However; under International principle of uti possidetis juris; they cannot do that. They need to claim the entirety of the Australian territory – because the colonial nation boundaries must be maintained. There is a conflict here between Aboriginal territorial law and International Law regarding territorial matters.

If the Murrawarri Republic claim were to be accepted by the International community, it would violate uti possidetis juris. It would make the remaining territory of Australia a “terra nullius”; a contested territory.

I’m not saying that the Murrawarri Republic have done anything wrong. They followed and asserted their own law. But I am giving a reason as to why their Declaration of Independence has not been accepted in International Law. As far as I can see – by all other laws on decolonisation – they have done the right thing. However they can’t act alone.

Why is Uti possidetis Juris so important to understand?

What uti possidetis juris effectively means is that all Aboriginal and Torres Strait Islander peoples; occupied polities of single colonial territory, need to come to a singular political consensus in order to decolonise.

The Referendum Council is well aware of this. This is a major reason why they fabricated a pan-indigenous consensus at the Yulara dialogues in violation of Aboriginal law. They know that a clan/nation/mob cannot decolonise alone. They are exploiting this principle for the benefit of the colony.

To counter this fabrication – a strong counter consensus needs to be put forward.

How can Aboriginal law meet International Law harmoniously

So how can we retain our national (tribal, clan, nation etc.) boundaries, yet still decolonise?

Part of the sovereignty movement at the moment; is a movement to “come home”. To reconnect with our homelands, customs, stories, ways and laws. I believe this will be an extremely important part of building a strong foundation from which meaningful decolonisation can happen.

Personally, I am a failure in this reconnection effort (I live in Europe!). But I want to stress how important it is to reconnect with this foundation that the colony tried so hard to destroy. I know it looks hypocritical to preach sovereignty from overseas; but at the same time I want to say – we are all on a journey. It’s not where we are as individuals on that journey that matters; it’s the direction that we are moving as a collective. The direction toward a collective reconnection with who we are is more important that worrying about what any individual persons are doing.

Once this connection back to country is built (actually – a process that never ends!), a “national consensus” can be formed. Just like what the Referendum Council tried to do, but a consensus that will not sell out our interests.

A National Consensus – a suggested pathway

I don’t want to prejudice what that consensus might be. Whilst I am Aboriginal person, I can’t speak for anyone but myself. In saying that; below I offer a suggestion as to what that consensus might look like. A consensus that I hope would be compatible with Aboriginal and Torres Strait Islander laws and customs; yet facilitates decolonisation under International law.

To cleanly navigate Uti possidetis juris, decolonisation needs to happen in a two-step process.

Process-wise: all First Nations will need to each endorse the overall two-step roadmap plan (by a treaty/agreement between ourselves). Under Aboriginal law and under Torres Strait Ailan Kastom – all nations need to explicitly consent. Under International law – a consensus of the occupied peoples of the colonial territory needs to be reached, but pockets of dissent can be brushed aside. Aboriginal law and Ailan kastom is stricter. It’s better if we can come to a unanimous and fully inclusive agreement to be true to our own laws. For this reason, it will not be easy to figure out and agree on the details; but as far as I can see – this is the only way.

Step 1. The first step is to meet the International Law requirements for decolonisation. This can be done by declaring independence as a single unit – I will call it for now – the Autochthonous Confederation of First Nations (ACFN). We need to come together under a single banner to give the colony the initial boot. This would involve firstly writing up a constitution for the confederation, secondly each nation agreeing to join the ACFN, and thirdly declaring independence.

The ACFN constitution needs to be drawn up very carefully; this is where we can draw on support of the international community (they have an obligation to support us), maybe the UN C24 committee can help. We need funding to make this happen, as our abuser controls all our resources. At this crucial step, we need to truly have our wits about us to counter inevitable sabotage attempts.

Step 2. The second step after independence is where each nation (according to how the peoples decide how to identify themselves) can decide whether to remain in the confederation, or go their own way^*. If they go their own way, they can treaty with the Crown on their own terms, or simply choose to act independently of the new confederation in the wider international arena. The option to exit the ACFN needs to be left open in order to respect each nations right to self-determination on their own, or to exit and treaty with the Crown if they so choose. This option of a separate, full sovereignty of an Aboriginal tribal/clan micro-nation is normally thwarted by uti possidetis juris; but this two-step process with an intermediary confederation works around it.

_{*(This is technically called secession from the confederation- this needs to be discussed and be part of the roadmap from the start because there may be complications in International law. Note article 16 clean slate tabula rasa provision of the Vienna Convention on Succession of States in respect of Treaties)}

Since “Australia” would technically no longer exist at this stage; it is not possible to do a treaty with Australia, only with the Crown. Since Australia never fully attained independence from the Crown anyway – this is an issue of semantics. I don’t know why any nation would want their own treaty with the Crown at his point (reparations? unfinished business?) but if they really want to, this is where it can happen.

The elephant in the room is the Australian people. They need somewhere to call home, their needs need to be met, they need political representation etc. The whole process can, and should include Australians from the outset. They will need some guarantee on their personal property – I would suggest retain most existing, modest private land titles to be transferred initially as 100 year leases from the Confederation to give normal Australian people security. Disruption can be minimalised by simply replacing “Crown title” with another underlying title for the interim. Australians could have their existing political systems and institutions reenacted for themselves if they feel it suits them. Constitutional protection of basic human rights is something Australians have never enjoyed under the colonial federation and should be negotiated generously. We do not want to become oppressors. The ACFN could establish a political relationship with a newly enacted “Australian” parliament by a condominium. Or perhaps by something structurally similar to what the Uluru Statement requests as a federal compact; but negotiated transparently with powers better distributed to the true custodians so they can fulfill their duties of looking after country without Rio Tinto blowing it up.

The big difference between the Uluru Statement and this approach is that the Uluru Statement is being driven by an elitist, colonial mindset behind closed doors; whereas this process could be driven by the sovereign people. It can be made an inclusive process that can be presented as a clear roadmap placed on the table from the outset well before independence of the ACFN is declared. You will never please everyone; however the true custodians of the land should be the ones driving it and should have the final say – with the needs of the Australian people accommodated as well as possible. It should not be driven by an astroturfing campaign primarily coming from those with historical blood on their hands; the mining industry, the domestic legal industry, constitutional conservatives, politicians and colonial institutions.

Final word

We need to be putting ideas on the table for discussion. We need to become familiar with International Law and with potential “gotchas” such as Uti possidetis juris. And we need to get our governance sorted and clearly asserted. We need to drive this. We need to stand together, even just for a single moment in time. If we don’t, we will be railroaded into a form of decolonisation that will destroy our identities.

Most importantly; we need to have hope; to imagine, to visualise and to believe that it is possible to decolonise under our own terms. Visualising how things could play out is the first step to making something possible. I know that’s not easy to think of a positive future whilst on the ground having your guts kicked out. But you have to in order to survive.

Photo by Curioso Photography from Pexels