I recently made this new updated version of the “Self-determination roadmap for Colonised, Indigenous Peoples”. This is the first version of it that I feel really comfortable with. There were a few things that didn’t sit well with me for the older versions, but I posted the older versions anyway because even if it’s not perfect – it can still add something to the debate.

The map it is not totally self-explanatory, in this post I am going to take it apart step by step.

Inspiration for this map

I was inspired to make this map from listening to some videos made in 2017 June at the Aboriginal Tent Embassy. Elders including Jenny Munro and the late Les Coe spoke about the Referendum Council process and how it was predetermined from the start.

“The stuff with the Referendum Council was done months if not years in advance to the point it was all printed up before we even get up there. Politicians, conservative media discussing it beforehand. No good gesture from Mr Pearson. it is one of the most inglorious moments and the lowest point our people have reached so far in the struggle.”

Jenny Munro

So let’s go where our strength is, let these young people lead this discussion. We need young lawyers, we need old minds, old lawyers to sit together and pull this document apart and expose it for what it is, expose the referendum council and the Australian government for what they are. They still through the process of assimilation. Pearson and Mundine are the successfully assimilated blacks. They wanna be white. I never had that wish in my life, I wanna go to the grave as black as the day as I was born.

Jenny Munro

The so-called sovereign state gave the term of reference to the Referendum Council, and they stuck by that agenda. What happened at Yulara was predetermined. There was only one map with only one road on that map. I’d like to see a map with a lot of roads that cover the whole country, not just north Queensland and into parts of the northern Territory – where the road actually after that just sort of dissapears, and then it appears again from the Canberra airport to Parliament house here. I wanna fill in the rest of the road of that map, for all of our people to be a part of this – not just a very select through of well paid …traitors.

Les Coe

There are a lot of blanks in the referendum council roadmap – and I made it my mission to try and ‘fill in’ the rest of the road. The end result is this map, which I will break down step by step in this post.

The Noel Pearson Roadmap

Below is the predetermined Yulara roadmap. There is only one path on it. It leads to the promise of the pearly gates of the “self-determination” of “Indigenous Australians” under the banner of UNDRIP – the United Nations Declaration on the Rights of Indigenous Peoples. When that point is reached where Australia implements UNDRIP, everything will be ok – trust us – we are experts – they say. Meanwhile, many questions go unanswered.

It is like a colouring-in book where the settler-state draws the outline, hands it to us with some coloured pencils and patronisingly pats us on the back as we fill the spaces with colour – as if we made the path ourselves.

“Self-determination” Roadmap for colonised, indigenous peoples

The title of the map

“Self-determination” is not a straightforward concept, it is nuanced. Colloquially – in everyday talk – it means for people to have control over their own destiny – to be able to make decisions for themselves. But when lawyers and politicians talk about it – that isn’t necessarily what it means. This map represents how it’s effectively implemented in international law.

The international law concept of self-determination has been around for a long time, but it was formalised after World War 2. At the time, superpowers had enough nuclear weapons pointed at each other to kill everything on earth several times over. The world faced an existential threat. The concept of non-interference into other nations’ affairs took on a new importance.

Aboriginal peoples also live by a principle of non-interference. On the face of it, it looks similar to that of nation states. But there is a big difference – the Aboriginal notion of non-interference is born out of empathy and respect. This is evident because non-interference extends to all and everything – neighboring clans, the opposite gender’s business, the land, animals, plants and the environment.

In contrast, the principle of non-interference in international law is born out of war. It is born out of an expectation that if you agree to not interfere with others – they won’t interfere with you. The root of this is not empathy, but fear and an expectation of reciprocity. There is only tokenistic gesturing of goodwill to those who can’t retaliate. This is why things like genocide still happen, and military industrial complexes continue to grow.

The international principle of non-interference lies at the core of the right to self-determination for nation States. Every right has a corresponding obligation – they are two sides of a single coin. There can be no rights, if there is no one who is responsible for upholding that right. On the other side of the coin from right of self-determination, is the obligation to respect other nations’ boundaries to do their own thing. This is a fundamental principle on which both the UN charter and international law rests on today.

However, there was another special category of peoples who had the right to self-determination – what the UN called ‘peoples of non-self-governing territories’. The category of ‘peoples of non self governing territories’ includes peoples under alien colonial subjugation. Or – as I have called it in this on the map – colonised peoples. Colonised peoples have very specific, narrow, but powerful rights to self determination – a different form from the right to self-determination of UN member states. The obligation side of the rights/obligation coin of the colonised peoples right to self-determination lies with all UN members (erga omnes), is underpinned by the UN Charter, is part of customary international law, and there is some argument that it is a peremptory norm.

The right to self-determination for colonised peoples is not the same as the right to self-determination for indigenous peoples. It’s easy to get ‘colonised’ and ‘indigenous’ mixed up, especially when settler-colonial assimilationists deliberately conflate the concepts. But they are two completely different categories of peoples. The roadmap I made deliberately separates these two concepts (blue colonised section/orange indigenous section) to show how they relate in the context of self-determination.

I deliberately do not capitalise the word “indigenous”, because I don’t believe it should be. It is not a proper noun until it is clearly defined.

‘Indigenous’ is more of an anthropological concept than a political concept. For a given territory with multiple waves of human migration, the indigenous peoples are those with the oldest continuous culture on that land. It has nothing to do with the state of being under colonialism.

The idea of indigenous peoples having the right to self determination started emerging from the international human rights field in the late 70’s early 80’s. Today, self-determination for indigenous peoples manifests as a bundle of “rights” in UNDRIP. These “rights” are structurally very different to the right of self-determination for colonised peoples or for nation States.

So all up – for the purposes of this map – the right to self-determination is for 3 categories of peoples. 1. nation States (white middle section) 2. Peoples under colonialism (blue left) and 3. Indigenous peoples (orange right).

The decolonisation era and resolution 1514

when people think of decolonisation… they think of Africa

I live in Germany. People here talk about the present time as being in a post-colonial era. As far as Germans are concerned – it’s true – Germany lost all of it’s colonies when the Nazis lost World War 2.

There is a wide perception that decolonisation was done and dusted between the 50’s and 70’s. This classic decolonisation era was helped along by resolution 1514. But by the time this resolution passed at the end of 1960, African colonies were already falling like dominoes. The UN likes to take credit for decolonising Africa – but in reality it was the people struggling on the ground who made it happen. Nevertheless, resolution 1514 helped shape the way things played out.

This pathway that classic colonies went down (independence) is shown here;

In some ways, Africa swapped one form of domination with another. They are still dealing with the legacy left behind, power struggles between each other because they lost their sense of order, and dealing with new forms of domination (eg. IMF debts). I mention this here because if we somehow find a way to go down this path – we should make sure we are adequately compensated by the Crown so that we don’t end up in perpetual debt slavery.

Settler-colonial states – how did they decolonise?

We have to ask – what happened to those peoples living under settler-colonialism? It seems they were forgotten.

I don’t think that decolonising settler-colonial states was outright forgotten – I think the process was domesticated.

After resolution 1514, the UN created the special committee, the C24 committee to do the yard work to decolonise those territories in the C24 mandate. They developed a set of criteria to determine if a territory has decolonised. The criteria are these 3 pathways on the map below;

Once the independence line is crossed, out of the blue area of the map – the territory is technically decolonised.

But the problem is – with the way that the committee was set up. Settler-colonies and other peoples fell out of the C24 committee’s mandate. This was the result of political interference, and was inconsistent with the purposes and principles of 1514 and of the UN Charter. This exclusion made peoples under settler-colonial subjugation invisible.

However – the process through these 3 pathways is still being facilitated domestically by settler-colonial states. Settler colonial states are working on decolonising under these rules, but doing so in-house.

I have marked with yellow stars where settler-colonies are on this map. Canada and NZ have historical treaties – but more importantly – the Crown diplomatically recognises native nations in those territories. Historically they are heading down the same path as the USA – association/treaty plus independence. USA has declared independence so it is out of the blue zone – however I have included it because it has not decolonised according to the principles and purposes of the UN Charter.

Australia was, up until about 2014, heading towards the integration pathway. This was possible because there are no treaties – but more importantly – because up until that time, the Crown never diplomatically recognised native nations in Australia. Because there is no diplomatic recognition – native peoples can be treated as flora and fauna* until they are diplomatically recognised as being part of Australia proper.

*Yes I know there was no flora and fauna act or legislation – but if we are not recognised diplomatically as peoples in our own right, and we are not part of the Australian polity or British subjects, then we must be flora and fauna for the Crown to be able to pass laws on us. Why is there still an Aboriginal man on the $2 coin when the rest of the coins have animals? Why are there Aboriginal faces in the Australian War Memorial among wildlife?

Indigenous Rights

Put yourself in settler colony’s shoes, you don’t want your colonised minority upsetting your apple-cart by pursuing the road of independence under their own terms.

General Assembly Resolution 2625 clarified that decolonisation must happen by the free choice of the colonised peoples – not by the settler state. I can explain why this is – but it’s complicated so I leave this claim as-is for now. Within the blue box on the diagram – the pathway chosen is fully the prerogative of the colonised peoples.

So as a settler-state you want to steer the colonised peoples to the decolonisation pathway that suits yourself. They invented an entire new scope of “self-determination” for indigenous peoples to distract from the full range of choices of “self-determination” for colonised peoples.

Modern Treaty

In 2013 some native nations in Australia began declaring independence, this forced the Crown to diplomatically recognise those nations. This in turn changed the direction of decolonisation in Australia. 100% integration (as in attempts of 1967, 1999, Recognise) was no longer possible. A treaty under the association pathway is now needed.

* Edited 6/08/2021: see comment section

The UDI’s from the Sovereign Union killed “Recognise” and put treaty on the table. Protests and Aboriginal community dissent did not. There’s a lot of circumstantial evidence to back this claim up (save it for a future blog post).

Modern Treaty is structurally similar to Instruments of Accession in India. They only work in a colonial federation situation where the settler-state has not yet declared independence. So – in Canada and Australia. It won’t work in New Zealand or in the United States.

The larger red spot in the blue zone is the enshrinement of the Voice in the constitution. Then comes the Declaration of Independence/Recognition. The red dots are agreement-making – although it doesn’t matter when agreement-making happens as long as it happened after 2017 when the Uluru Statement offer was made. Agreement-making is essentially – treaties of integration.

In the long-run there is no difference between this and vanilla assimilation policies of the past – because the negotiated terms of the agreement-making are only enforceable under domestic law. The agreements will be either broken, or the scope of negotiations will be so narrow that they will never achieve anything meaningful. Jammu and Kashmir’s accession instruments were broken even though they were enshrined in the Indian constitution. This is the same path. India is the precedent for Modern Treaty – not Canada/British Columbia and it’s Modern Treaty process still in infancy.

The dark side of UNDRIP

If we continue down the path of modern treaty or of integration, we approach the pearly gates of UNDRIP.

There are some problems here. UNDIP sounds nice – the content resonates. But it’s not the content that’s the problem, it’s what it is structurally.

UNDRIP is a non-binding, aspirational agreement between nation states who are already members of the UN club. It’s more of a new-years-resolution than a promise. It’s not a binding commitment.

It is a aspirational agreement that each signing nation should treat their own indigenous minorities to a standard. As we have not decolonised or have a treaty, we are not part of the nation state; this doesn’t apply to us yet. We are not “their Indigenous peoples”. This is why I placed this at the end of the roadmap and not at the start. Decolonisation must logically happen first.

Consider the two-sided coin of rights and obligations. UNDRIP is non-binding. So who has the obligation to protect indigenous rights? No one. If it does not create obligations, it doesn’t create any rights. It is not like the right to self-determination for colonised peoples (blue part of the map) – which is an erga omnes (to all) obligation. In other words – there is nowhere to go if “indigenous rights” are broken.

I acknowledge that some international conventions start out as non-binding aspirations, and gradually catch on to become part of customary international law. And perhaps UNDRIP will one day become a norm. But there is no guarantee this will happen. It’s a huge gamble for us to put all of our hope in this basket when there are no guarantees.

But the biggest problem of it – is the stop sign that stands in front of it. Once we arrive at the pearly gates of UNDRIP, we will have already integrated into the State as minority peoples and consented to parliamentary sovereignty. UNDRIP is made for indigenous peoples – not for freshly decolonised peoples. UNDRIP will be for “Indigenous Australians”, not for “Aboriginal and Torres Strait Islander peoples”.

So who defines “Indigenous Australians”?

“Aboriginal and Torres Strait Islander peoples” is defined with its 3 part criteria – one of these criteria is community acceptance. This puts the community fully in control.

‘Indigenous peoples’ has no hard definition, but a cultural continuity criteria is attached. As the colonial state is the signatory to UNDRIP, they will eventually implement it in their own way, and will need to ultimately define and judge which of their minorities are and which are not indigenous. How will they determine this cultural yardstick? It’s trivially easy for them to simply set the bar high enough that only a very small minority of Aboriginal and Torres Strait Islander peoples make the grade.

We will be wiped out by dictionary.

We have no control over who will be entitled to so-called indigenous “rights” and who will not be, it will be the prerogative of the state. We will divided into the ‘has cultural continuity’ and ‘has no culture, but has some heritage’. Divide and conquer – the real “on the ground” blacks vs. the city and suburban fakers.

This is already happening. Josephine Cashman is stirring up demand to carve this line. She tries to leverage Australian nationalism – which is comical to watch because Australian identity is so shallow and superficial. So she appropriates US nationalism by channeling Trump and MAGA, which defeats the purpose of nationalism itself. It’s bizarre, but if you can see the end goal it makes sense. Don’t forget – Cashman was one of the Kirribilli leaders who initiated the referendum council, and was on the Indigenous advisory group. She was sacked from the advisory group in dramatic fashion in what I suspect was a manufactured PR stunt. The end goal is to remove community control to determine who belongs and who does not. Most of us will be tossed under the bus either because we have been historically displaced from our ancestral lands or we can’t meet the state’s high burden of proof. Most of us will not be allowed through the gates.

Be careful what you wish for. UNDRIP is designed by settler states for their own agendas.

What’s the answer then?

Here is the full map.

Overall – what is happening is that we are being led to decolonise in a technical sense – but in a way that benefits the colonial status quo. As the peoples of the land – we hold the full prerogative to choose the pathway for decolonisation (blue). The settler-state is assembling a maze of smoke and mirrors, steering us through the decolonisation process, while dangling a carrot of ‘indigenous rights’ which will likely not eventuate.

We will travel to the end of one of these paths whether we do so knowingly or blindly. We should take the lead here so we know exactly where we are going. All of the basic options in international law are on this map, and the ball is in our court. We should learn about each of them, consolidate them with our own law/lore (I believe this is possible), decide on the best way forward, and go for it.

I realise that many may be skeptical of using international law and the UN charter to attempt to free ourselves. The UN has failed us, mostly because they have allowed some dominant members put selfish interest ahead of the UN Charter principles. We are in a position to call this out, and calling it out won’t just help ourselves – but will help others in their struggle against State domination.

The fact is that we are a part of a wider world, and that world has come in. We have to deal with this international framework. We do not have to deal with the Australian colonial framework, as the international framework allows us to bypass the colony completely. Australia derives it’s legitimacy from this body of international law – but that legitimacy is premised on a false assumption that we are also Australian. To challenge this false assumption will be take back our power, and our power of choice. We are not Australian. That’s a powerful statement.

Previously I wrote about the Declaration of Recognition. You might not have heard of it – even if you are familiar with the Uluru Statement, and “Voice, Treaty, Truth”. The Declaration of Recognition is a key part of the Uluru Statement reform package, but it is not “in the brochure” – so to speak. You are lucky to see a mention of it, anywhere.

Since my previous blog post on the Declaration of Recognition, a lot more pieces of the puzzle have come together. I have made a video on my facebook page. This post today is a written version of that information in the video linked/embedded below.

The origin of the Declaration of Recognition

In 2014, constitutional conservatives and members of the Samuel Griffith Society Damien Freeman and Jullian Leeser put out a booklet called The Australian Declaration of Recognition. Later on in 2015 they founded a non-profit think tank called Uphold and Recognise.

The Declaration of Recognition is very often compared with the US declaration of independence. I was, for a long time suspicious that perhaps that is exactly what it is. Now, I think that idea is “half right” as I’ll explain more in this post.

The Declaration of Recognition and Voice were proposed around the same time. Noel Pearson wrote a Quarterly Essay on the Voice around the same time the Declaration was being flogged. Noel Pearson endorsed Uphold and Recognise. These two ideas are related, and belong together as part of a larger overall reform package.

The Referendum Council Failure in Evaluation

The Referendum Council distilled a set of criteria from previous Expert Panels and from the regional dialogues to evaluate different reform proposals. These criteria were called “guiding principles”.

A statement of acknowledgement inside the constitution was properly evaluated and is in the table graphics from the final report below. However – the statement of acknowledgement outside of the constitution was never evaluated against the principles. This is despite it being an option in the original Referendum Council discussion papers. Neither was “truth-telling” evaluated – obstinately because truth-telling was not one of the original discussion paper options. Go figure.

Different reform proposals were also tested for their level of support during the regional dialogues.

Although the Declaration of Recognition is in the list of Referendum Council final recommendations – it does not appear to have been evaluated by the guiding principles criteria or by the regional dialogues. This is despite it being part of the original 2016 Referendum Council’s discussion paper proposals for reform. It should have been evaluated!

The Declaration snuck itself into the Referendum Council final report.

The Declaration of Recognition has literally snuck itself into the proposal with no scrutiny, no evaluation against the criteria, and without the endorsement of even the hand-picked Yulara delegates. The later Joint Select Committee also overlooked this omission. This is not surprising when you note who was on the select committee.

It is now being further bypassed from wider scrutiny by a carefully controlled campaign which barely ever brings it up for education, discussion or debate.

What the Declaration of Recognition is

After I have literally combed through decades worth of Australian law journals that are freely available on line, I came across some academic papers which shed a lot of light on this.

Two papers of particular interest are;

• Moshinsky, Mark — “Re-enacting the Constitution in an Australian Act” [1989]

• Dillon, Anthony — “A Turtle by Any Other Name: The Legal Basis of the Australian Constitution” [2001]

Without trying to bore you with the legalistic details, this is what it means.

Australia has a problem with it’s foundation. It is not a truly independent State. The Australia Acts (1986) made Australia legislatively and administratively independent. They don’t have constraints on their operation. However, Australian governments still run under the authority of the Crown. So they do not act in their own authority.

Moshinsky writes that Independence consists of two components.

1. Autonomy – which Australia fully gained in 1986.

2. Autochthony – which means native – is to have governance who’s authority springs from their own soil. The independence to act in their own right. Australia lacks this.

Dillon discusses this problem in A Turtle by Any Other Name and lays out some ideas on how to overcome it. What is needed – in a nutshell – is a reenactment of the constitution in the name of the “Australian people”.

If we also consider the UN Decolonisation principles (which Dillon touched on very lightly by mentioning “reconcilliation”, which I think is code for colonially-controlled decolonisation) – “Australian people” should ideally include the colonised first peoples – because the natives hold the requisite authority of the soil. An alternative source of authority could be used – (something like a God, nationalism, white Australia pioneers, ANZAC heroes, a personality cult figurehead like Kim Il Sung etc.) however that may create more complications if the colonised population later pursue decolonisation. Including the subjugated, colonised population as an integral part of the reenactment of the constitution is the most elegant solution for the colony. It kills two birds with one stone. It upholds the constitution and the colonial status quo, and subdues Aboriginal peoples’ special status as colonised peoples in one go.

Now – Uphold and Recognise released a publication called A Fuller Declaration of Australia’s Nationhood with perfect timing to submit to the Joint Select Committee. This publication was attached in an Uphold and Recognise Joint Select Committee submission (No 172). It was heavily referenced in the final Joint Select Committee Final Report.

If you compare Dillon’s A Turtle by Any Other Name paper proposed solutions with the Uphold and Recognise A Fuller Declaration, there is a huge similarity. So much so – that I would bet that whoever wrote based it off Dillon’s paper. (watch the video at top of post for more comparison/explanation)

Megan Davis and Noel Pearson (Aboriginal Referendum Council members) are credited with helping write A Fuller Declaration. I question how appropriate this is in terms of accountability to their Aboriginal community. These two ran the dialogues without evaluating the Declaration, but included it as a final recommendation. Then – to push the knife in even deeper – they help write Uphold and Recognise’s Joint Select Committee submissions.

The Joint Select Committee itself was chaired by Jullian Leeser – if you recall – one of the original authors of the Declaration of Recognition booklet the first time this idea was proposed. By that time he had resigned from Uphold and Recognise – but really… come on! They couldn’t get someone else? You gotta wonder – is that how he got his safe blue-ribbon LNP pre-selection – because they wanted him chairing the Joint Select Committee?

There are many conflicts of interest here and hardly any grassroots involvement. Even the handpicked Yulara delegates were bypassed on this one.

The purpose of the Declaration of Recognition is to make Australia authoritatively independent. Another way to look at it – is that the Australia Acts (1986) are HALF of a Declaration of Independence. The Declaration of Recognition is the second half.

They are using Aboriginal sovereignty as an initial fire-spark to gain authority for themselves through the Declaration of Recognition.

The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly Resolution 1514) was a call by the international community for the end of colonialism. It led to the decolonisation of many franchise colonial states in the 60’s through referendums.

Australia – a settler-colonial state, also attempted to decolonise through the 1967 referendum and other activities during the 60’s.

The impetus for the 1967 referendum can be traced back to Lady Jessie Street. Jessie Street was the grand-daughter of squatter Edward Ogilvie – who participated in the Tabulam Massacre and built Yugilbar castle near the massacre site.

Ogilvie also kidnapped Aboriginal children.

Jessie Street was born in British India, but grew up in Yulgilbar castle after her grandfather died and her mother inherited it. She married into the Street dynasty which was a prominent colonial family of bankers and lawyers. Her husband was Lieutenant-Colonel Sir Kenneth Street who was the Chief of Justice of the NSW Supreme Court and the Lieutenant-Governor of NSW. Jessie Street was part of the colonial elite – she was the only female delegate for Australia at the San Francisco conference that made the UN Charter.

Jessie Street traveled overseas between 1950 and 1956. During this trip in England she spent time with the London Anti-Slavery Society. In the same year that she returned to Australia she recruited Pearl Gibbs and Faith Bandler. Together they helped establish a number of organisations behind the 1967 referendum including the Aboriginal-Australian Fellowship and indirectly the Federal Council for Aboriginal Advancement.

In Adelaide – at the inaugural meeting for the Federal Council for Aboriginal Advancement there was a call to change the federal constitution to allow passing laws for Aborigines. There was also a call for “integration” of Aborigines, and equal rights. “Integration” is one of the methods for decolonisation from the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples.

The 1967 referendum was not motivated by social justice, it was an attempt to decolonise.

According to the international decolonisation rules at the time, a colony can decolonise by “integration” if the native people have equal rights with the colonial occupation. This isn’t possible without the federal government having power to pass laws for Aboriginal peoples. During the 60’s, the states also all allowed Aborigines to vote and changes to the constitution were made. Many changes happened under the banner of equal rights.

But the rules from 1960 about decolonisation changed in 1970 in United Nations General Assembly resolution 2625. This change was partly due to a international backlash against a racist white settler minority declaring independence with a Unilateral Declaration of Independence in (southern) Rhodesia in 1965. The new rules set in General Assembly resolution 2625 state that the peoples of the territory (the natives) must give their consent before decolonisation can occur.

The British tried to manage this new 1970 rule in it’s franchise (non-settler majority) colonies through a policy called NIBMAR (No Independence Before Majority Rule). This means that it is British policy to not decolonise franchise colonial states without getting the native population on board. Meanwhile the British continued a policy of political assimilation for settler-colonial states. As the 1967 referendum in Australia did not involve Aboriginal consent – under the new 1970 rules it no longer met the requirements for decolonisation.

Since 1970, the Australian government tried creating various representative bodies to give consent to decolonisation via political assimilation. This includes the NAC, ATSIC and the National Congress. The problem is none of these bodies have been able to gain and demonstrate consent from the wider Aboriginal community. This is why they are discarded – they failed in their goal.

This time around – for the Uluru Statement, the newest representative body has the mandate already built in to the representative body from the start. As the Uluru Statement is a package of reform and part of a single offer – the mandate for political assimilation and independence is already built in. All the colony needs is to get Aboriginal and Torres Strait Islander people to enroll in the body and they are getting the consent for political assimilation built-in. They are also getting consent to independence through the Declaration of Recognition which is also built into the offer and is in the Referendum Council report but not spoken of publicly. Enshrinement of the Voice to Parliament and wide participation of Aboriginal and Torres Strait Islander peoples in the voice will remove the last barrier for decolonisation of Australia. That is the true agenda behind the Uluru Statement. It will not give land back, reparations, internationally-binding negotiated terms or the truth. Just like 1967 was for the benefit of the colony, so is the Uluru Statement. Under the UN decolonisation framework, Aboriginal and Torres Strait Islander peoples collectively have effective veto over the form of independence that Australia can form when becoming a republic. “Recognition” and the advisory-only Voice are very weak proposals put out by the colony.

We can do better

Title image by Илия Илиев from Pixabay

Posting a link to this very good (but lengthy) essay by Jedediah Purdy with some comments and thoughts about it.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2489&context=faculty_scholarship

The writer points out the distinction between “civilised” nations and the “uncivilised”, or as Johnson McIntosh calls it – “the full sovereign” as opposed to the “imperfect sovereign”.

Purdy’s essay looks at how Johnson v. M’Intosh re-enforced that distinction in common law.

(Background -Johnson v. M’Intosh is a court decision made in the USA in 1823 about land titles. Even though it was in USA, it has had a huge indirect effect in Australia which I have touched on here)

The civilised/uncivilised distinction was always used as a moral justification for theft and invasion. The notion that “uncivilised” people are not worthy of basic collective rights such as having their own land title concepts respected.

My thoughts – the civilised/uncivilised dichotomy is now reframed as a dichotomy of States vs “Indigenous”.

Indigenous rights are “Uncivilised peoples’ rights”. The sub-standard rights of the “uncivilised” must always yield to the rights of the civilised, especially when it comes to territorial integrity land rights. This is very true of UNDRIP, which reasserts this principle in article 46.

If you trace the genesis of the international indigenous rights movement – even the concept of “indigenous peoples” encompasses a criteria of cultural continuity. When this continuity is broken, “Indigenous Rights” are forfeited. In other words – when a peoples become ‘civilised’, they no longer hold this substandard tier of traditional rights – they become one with democratic, civilised society as another patch in a multicultural quilt. From the time point where this cultural continuity is broken – there is no option to return to being ‘uncivilised’. It doesn’t matter if the break occurred at the point of a gun. This continuity break concept is also a basis of Australian Native Title law – once your family tree has fallen off the land, your land rights are extinguished and the family can never return and reestablish their connection to country.

This is the problem with “Indigenous rights”. There is a prerequisite tie to cultural continuity. The institutions of civilised society are the judges of whether or not, that cultural continuity is broken. “Indigenous rights” can be easily extinguished with the stroke of a colonial pen by a judgement that a peoples are not “culturally authentic” enough. This is the the same old elimination Realpolitik with lipstick.

“Indigenous” as a term is not yet defined in Australian law. It won’t be defined until UNDRIP is legislated. And that won’t happen until the assimilation project is far enough along the roadmap that we are safely enshrined/entrapped in the constitution.

Do you see the end goal here? 3% of the territorial population are Aboriginal and Torres Strait Islander peoples. But much less than that will meet the cultural continuity benchmark and be afforded “Indigenous” status. Most of that 3% will NOT be defined as “Indigenous” – members/status holders of a designated, official “First Nations” who have done their agreement-making and jumped through requisite hoops to prove their cultural authenticity. Most of that 3% will be redefined as “people of Aboriginal heritage”. An ethnic minority with an imperfect, broken connection. Why do you think the colony are hellbent on closing remote communities? They are eliminating the last remnants of cultural continuity. Why are professional agitators such as Josephine Cashman calling for the redefinition of Aboriginality identity? It is to reduce, or eliminate us by dictionary. This in turn reduces the obligation that the State has to the shrinking, or barely existent “Indigenous” population. Other countries already do this – many simply deny that Indigenous peoples live within their borders – there is nothing much that can be done about this when the State’s “sovereignty is paramount and UNDRIP is non-binding.

How “civilised” are you? Afterall, you are reading this on the internet. Perhaps you and your family will not meet the bar of being uncivilised enough to enjoy any “Indigenous rights”.

Why advocate for “Indigenous rights” when it is possibly just another elimination strategy?

—–Property and Empire: The Law of Imperialism in Johnson v. M’Intosh by Jedediah Purdy (PDF full essay)

3 Years ago, West Papua did a petition to the UN C24 decolonisation committee. They had collected a massive 1.8 million signatures, many risking jail by signing the banned petition and by smuggling sheets of paper across the territory.

While petition was rejected – it did get a response from the C24 committee, and the people of West Papua got their position out in the open.

This is something that we (Aboriginal and Torres Strait Islander peoples) could look at doing.

The reason the West Papuan petition was rejected by the C24 committee:

…the chair of the decolonisation committee, Rafael Ramírez, said no petition on West Papua could be accepted because the committee’s mandate extended only to the 17 states identified by the UN as “non-self-governing territories”.

This is inexcusable. Decolonisation is an erga omnes obligation. UN General Assembly Resolution 2625 states:

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

A/RES/2625/XXV

The C24 committee does have an obligation – as decolonisation is a duty TO ALL (‘through joint and separate action’). It is ridiculous for the C24 committee to claim that duty does not apply to them – given all of their committee members are in turn members of the UN bound by the UN Charter, and given that’s the C24 Committee’s ONE JOB!

It is interesting that lack of mandate was the excuse given. They could have argued that West Papua has already achieved self-determination from the “Act of Free Choice” referendum held in 1969. I suppose this means the C24 committee are well aware that the “Act of Free Choice” was a sham.

The experience of West Papua and the “Act of Free Choice” should be a warning to us – that yes – a small minority of colonised peoples can be handpicked and endorse a colonial proposal on behalf of and at the expense of the majority under colonial occupation. The world has, and will turn a blind eye if we don’t make noise. After the Yulara convention where a handpicked minority endorsed a proposal for the majority, we are perilously close to falling into the same situation.

As for this quote from C24 about territorial integrity of UN Member states:

One of the principles of our movement is to defend the sovereignty and the full integrity of the territory of our members. We are not going to do anything against Indonesia as a C24.

This is inconsistent with Resolution 2625 which states (emphasis added);

“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour“

A/RES/2625 (XXV)

The resolution is clear. The upholding of UN member state’s territorial integrity is dependent on them meeting the above conditions. Does Indonesia meet this condition? Arguably not – as the 1969 “Act of Free Choice” left out the vast majority of the Papuan population – peoples who are geographically, culturally and ethnically distinct from the rest of Indonesia.

Australia certainly doesn’t meet the conditions. The Australian constitution does not and never has represented Aboriginal and Torres Strait Islander peoples. The Australian Constitution also contains a “races” power that is actively used to discriminate against these polities that are native to the soil. Aboriginal and Torres Strait Islander peoples have never exercised their right to self-determination in the colonial context.

So as for Australia. What would the excuse be if we were to write up a petition to the C24 committee? I think probably the same thing and reject it as being outside of their mandate. Let me be clear – I don’t actually expect making a petition will put us on the C24 list of non-self-governing territories.

But if the petition were drafted in a way to remind them of the erga omnes nature of the duty to decolonise, it would put the C24 in a difficult position. If we had a well-drafted petition, pre-empting any excuses they are likely to come up with – it would be at the very least entertaining to watch them trying to squirm out. And the added benefit of letting the world know – we are sovereign people. We are not necessarily interested in constitutional assimilation.

The idea of a petition is not to dictate how decolonisation should occur, but that we ask the international community to uphold their promise made in 1960. The petition is to ask to be provided with the means for us to collectively make a fully informed decision free of colonial interference. It also is an assertion to the International community that we have never had a proper chance to do this, and that the Uluru Statement process did not meet that standard.

A petition could be done continentally. But could also be done on a State-by-State basis, as each State is it’s own colony and could decolonise as such. Fullas in Victoria – I’m looking at you. You have a head start being relatively smaller state and you could build off the work that has already been done mapping out the clans. Torres Strait Islanders, and peoples in remote communities also have a special case – being “geographically separate” from your colonial administrators in far away capital cities, the Bluewater hypothesis could work in your favour.

There is an alternative way to present a petition to what West Papua did. That is by instead of presenting it directly to the C24 committee, a UN Member state/s could sponsor in the General Assembly Resolution. There are many, many UN Member states who are still suffering after-effects of colonisation themselves and are not dependent on Ausaid – it shouldn’t be too hard to find one or a few sympathetic to our cause. To reach out to other member states is an assertion of sovereignty in it’s own right, and a good start at building up our own diplomatic relations and nationhood.

Image by mohamed Hassan from Pixabay