If we are serious about asserting our sovereignty, then we have to start asserting it. One way to assert sovereignty – is to write an Aboriginal Bill of Rights. It is a good chance to lay down our law/lore and values, and to concile with peoples of the settler-state.

I don’t mean a Bill of Rights that sets down settler state obligations to the inhabitants.

I mean a Bill of Rights that sets out our obligations that we as Aboriginal peoples – acting as sovereigns – have towards settler-peoples.

The current lack of Rights

Peoples of the settler-state have very little rights in their colonial system. Most ‘rights’ have are legislated, and can also be taken away by legislation.

The only true rights – the five + one constitutionally protected rights are;

There are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).

The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.

Aboriginal people have historically had some of the five explicit constitutional rights systematically denied. Voting rights and land acquisition are obvious. Trial by jury for Aboriginal people is a curse – in practice it means trial by a white jury – not trial by peers, which defeats it’s purpose. Section 116 prohibits the Commonwealth making laws for prohibiting the free exercise of any religion. Our freedom of religion has been indirectly denied through state action systematically destroying our language and culture.

Adding a new constitutional prohibition on racial discrimination was recently put in the too-hard basket.

And for Australians, this list of constitutionally protected rights is a haphazard mish-mash full of omissions and holes.

I think the reason why Australia never had a Bill of Rights is because it is a Federation of colonies. It is a compact between Crown colonies – it is not a relationship between governments and the people. The people are passive bystanders in this system. The only active role the people have is to approve of changes to the federal Constitution, and to elect members of Parliament. Members of Parliament are sworn to serve the Crown – not the people. Even the State constitutions are changed without the approval of the people. It doesn’t make much sense to have a Bill of Rights in such an arrangement.

Biggest barrier to effective assertion of Aboriginal sovereignty

The biggest barrier to asserting Aboriginal sovereignty is not the settler-colonial state itself. It is settler-colonial people’s fear of the unknown.

The settler-colonial state’s legitimacy (whether you think it is valid or not) is underwritten by both the Crown and the settler peoples. There is a complex interplay of power. But at the end of the day, the settler peoples will have the choice between continuing a system built on colonialism and domination, or coming under our ancient system grounded in the soil.

To help settler peoples make this choice – we can present the settler peoples with a charter of principles that we pledge to uphold if they choose to work with us. This can hopefully ally their biggest fears. Their fears are mostly based in ignorance of our values and of our culture. This isn’t their fault, but it is something we can proactively address.

Land Reform

Put yourself in the settler’s shoes. They are afraid that we will take their house, hills hoist and their livelihoods. They forget that the Crown can already take their house anyway. If their house stands in the way of a new road it can be resumed on the condition the Crown pays just compensation.

Maybe we can match the Crown’s land protection in our Bill of Rights, or offer an alternative deal. We could reform the way land title works. People want security in their land tenure, they also feel threatened by multi-nationals and foreigners buying up large swathes of ‘their’ land. Right now, settlers are afraid that Aboriginal people could take all the land back, and they will be left with nowhere to live. This fear is possibly due to Jungian projection – because it is what they did to us historically. But this is something that can work in our favour. If we can offer settlers alternatives to the Crown’s ‘rights’, attractive alternatives that takes their concerns into consideration, why would they continue to support the colonial system? The Crown’s ‘rights’ are afterall, pretty pathetic.

Right now, so-called Aboriginal leaders are promising settlers that we will uphold all private land title. I don’t think that is fair. What of an extreme theoretical example – someone owns a very large station the size of a small European country with a homestead that they have inherited from their great-great-great-grandfather who personally massacred people to get that land. I don’t see why the traditional owners should be guilted into rolling over and accepting that. Furthermore, I don’t think normal Australians think that is ‘fair go’ either. Normal Australians may feel some sorrow for such massacres, but don’t have their own personal cattle station to show for it. Perhaps let the settlers in our theoretical extreme keep the homestead – but not the entire property. Not all private property should be protected – that isn’t reasonable. Normally people who receive stolen property do not get to keep it. Can we come up with a reasonable compromise?

Human rights, Environmental rights

Looking at the rights enshrined in the Constitution, there isn’t much there in terms of human rights or state obligations to protect the environment.

Aboriginal culture has a solid foundation in terms of obligations to other people and to the environment. Settlers are not aware of the depth of these obligations. A lot of these obligations could be ‘translated’ into a Bill of Rights. This can offer settlers a sense of reassurance, security and stability while authentic, meaningful decolonisation and the disruption surrounding such a process happens.

Lore/Law Principles of living with the land

It’s not about rolling over an giving settlers everything they want, and fitting us in as an afterthought. Neither is it about materially about taking everything back as our ‘property’. It’s not about revenge or retribution.

It’s about laying down a foundation of principles that we use to re-establish the law/lores of the land, and come to compromises based on that. It has always been our obligation as peoples born into our bloodlines – to keep the law.

I am not in the best position to talk specifics about law/lore, as I did not grow up close with it. There are people who hold this special knowledge. They are best placed to come up with these principles in the first instance. Not me, or “Aboriginal leaders”. I just offer here a rough vision and some examples as starting points.

It is something that the settler-state is severely deficient of – principles and values. I think people feel that deficiency deeply, it is the basis of the shallow national identity. Australia doesn’t really stand for anything. It is like a ship lost at sea.

I believe our principles and values will resonate with settler peoples if we can present them in a way they can understand. The ship will then have something solid to anchor itself on, and those on the ship can be welcomed to their new home on solid ground.

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