Month: April 2021

“Sovereignty is a spiritual notion” – Catholic influence in the Uluru Statement

~ Jessica Savage ~ 2 Comments

Years ago, I read this article by Mark Brett and I had no idea what he was talking about. Now with some basic Catholic historical context I’m going to share in this post – I finally understood what he is hinting at throughout the article and when he writes in the conclusion –

“The First Nations cannot, and should not, ever be absorbed into a single nation-state.”

When I first read this, I was scratching my head here, because non-territorial federalism of First Nations looks exactly like absorption into the nation-state. I also remember hearing claims (but I don’t remember where exactly) that the proposal ‘will not subordinate’ First Nations. How is it not subordination to fall under Parliamentary supremacy? But now I understand – we will remain separate in the same way that the church and state are separate. And it’s true, technically we won’t be subordinate. Absorption and subordination will be prevented, ironically, using Catholic doctrine.

It’s not surprising that Catholic doctrine ended up in the Statement. Greg Craven – the former vice-chancellor of the Australian Catholic University who retired this year – has been active and influential in Australian constitutional matters for decades. The original idea of an Aboriginal representative body seems to have originated from both him and Noel Pearson. Uphold and Recognise, a think-tank which had a heavy influence over the the Uluru Statement package was co-founded by Damien Freeman, a lawyer at the Australian Catholic University

Examining the text

I’m going to break down some of the text of the Uluru Statement to show what sovereignty as a spiritual notion might mean by the authors. I will concentrate on these first two paragraphs;

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

Uluru Statement from the Heart

It’s widely known that part of this text (much of the second paragraph above) is drawn from a quote by Nicolas Bayona-ba-Meya in the Western Sahara International Court of Justice (ICJ) case. The original quote is from a third-person account (a submission made by Bayona-ba-Meya, a Congolese lawyer acting for Zaire) describing the connection that Sahrawi people have with their land. This submission was to the ICJ, and formed part of the subsequent ICJ advisory opinion. The court case itself was initiated by Morocco and Mauritania feuding over Sahrawi land. This ICJ advisory opinion was then drawn on by the Australian High Court in Mabo 2.

All up – it’s a third-person, third-hand account of Sahwawi peoples sacred connection with their land in Africa.

An opportunity was missed here to draw on a more direct account from many talented Aboriginal and Torres Strait Islander writers, poets, songwriters and storytellers to describe our connection to country and sovereignty in our own words. This assertion of sovereignty as a spiritual notion made on behalf of a single continent-wide collective of peoples falls short by not also including kinship connections that we hold with each other as individuals, connections of communities and places through songlines, and connectivity through shared experiences of colonialism. The borrowed quote sounds nice enough, but also contrived.

I believe this quote is in there because of the way it weaves together three key concepts; connection with the land, sovereignty and spirituality. There is a legalistic, hidden agenda behind this. The quote fills in a missing link.

The Uluru Statement text quoted above can be distilled into four main points.

  1. An assertion being made – by people identifying themselves as being the descendants of the Aboriginal and Torres Strait Islander tribes.
  2. These peoples assert an ongoing spiritual connection with the land.
  3. This spiritual connection is described as “ownership of the soil” and as “sovereignty”
  4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”.

Point 1 identifies the asserters as “colonial peoples” in line with the UN Declaration on the Granting of Independence to Colonial Countries and Peoples. They are the political communities that pre-date colonialism. They hold a “status separate and distinct” from the colonial occupation. They – and only they (also possibly only in their entirety) – can determine the status (independence) of the territory in question and lead to the decolonisation of “Australia”.

Points 2. these peoples assert an ongoing spiritual connection with the land; and 3. This spiritual connection is described as “ownership of the soil” and as “sovereignty” – are reinforced by borrowing Mr. Bayona-ba-Meya’s quote.

The next step once Aboriginal sovereignty is incorporated into the Australian federation is to fence-off Aboriginal sovereign power within the nation State so it is rendered ineffective. The stage is set in point 4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”

This has parallels with the concept of Papal spiritual power and Crown temporal power.

Spiritual vs Temporal power

In medieval times the Pope held both Spiritual and Temporal power. The basis of the Pope’s spiritual power is the direct connection the Pope has with God. The Pope also had massive influence in the real world – or temporal power.

Over time, much of the worldly, temporal power was delegated increasingly more from Church leaders to a coronated monarch. Church leaders would use their spiritual authority to coronate Kings with the blessing of God. Leaders of various churches still coronate monarchs today. Kings and Queens – the worldly, temporal sovereigns – are anointed by spiritual sovereigns, and derive temporal authority via mandate from the church.

Photo of a statue of Queen Victoria holding a ball in her hand
Queen Victoria Statue in Brisbane (near the Treasury Casino, site of the original Church of England’s St John’s Church built in 1854). The Orb (ball) she holds in her hand represents Christ’s power over the world globe. The sceptre (rod) represents temporal power. These items are presented at coronation by the Archbishop of Canterbury. For more explanation click here. An interesting note – the Orb she holds in this statue does not – like the original Orb used – have the three medieval continents marked (Australia is not one of those three). Photo: Michael Zimmer

In some countries today, the temporal authority of Kings and Queens is vested or partly vested in a nation state of people as a monarchy/democracy hybrid. The people are sovereign in that they hold temporal power, and the Crown acts as a figurehead representing the people. The spiritual power then sits parallel to the State in an official state religion.

A King with a coat made up of people, King is oversized, overlooking land and buildings.
Book cover of Leviathan by Hobbes. The King is the head of the nation – the Head of State, and represents the body of people. Look closely on the King’s clothing to see the body politic (people). The people are sovereign, the King represents them, together they rule over the land.

The Archbishop of Canterbury coronated Australia’s colonial monarch. The Australian constitution itself was enacted by the “Crown of the United Kingdom of Great Britain and Ireland” with the advice and consent of the “Lords Spiritual and Temporal”. The English equivalent of the Australian senate – the house of Lords – has bishops and archbishops in designated seats to give the parliament authority. Colonial Australia was created with spiritual authority and continues to run from that authority.

First Nations – Spiritual Sovereignty. Crown – Temporal Sovereignty

In the Uluru Statement parallel, the temporal power is labeled the “sovereignty of the Crown”. “The Crown” is simultaneously both 1. the British Crown who was coronated in the Church of England and enacted the colonies, and 2. a symbolic figurehead of the Australian polity called the “Queen of Australia” (this is a bit complicated and I have explained it more in this post). The Uluru Statement refers to this second aspect – the local Australian Crown.

From the Uluru Statement – Sovereignty, as a spiritual notion, is the connection that First Nations have with their land and ancestors. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown“. This is exactly how the Church’s spiritual authority co-exists with a Crown’s temporal power. First Nations will take the place of the Church becoming like an Australian “Pope” – their spiritual connection with the land and ancestors is akin to the Church’s connection to God.

The colonial Queen (of British Subjects residing in the Commonwealth of Nations) has been coronated – but no one with authority has yet coronated the “Queen of Australia” (Queen of Australians as a separate body politic). The only thing missing now – is the Australian “Pope” has to coronate the Australian “Crown”. First Nations need to use their spiritual sovereignty to legitimate the temporal power of the democratic body.

At the Yulara convention, when Pat Anderson symbolically presented a coolamon to the Australian people containing a piece of paper with the Uluru Statement printed – perhaps that represented an offer of temporal power in the similar way that an orb and sceptre is presented at a coronation ceremony. A coolamon is a vessel used to carry physical, worldly objects; it makes a good stand-in to represent the material world. It resembles a large, slightly curved land mass on the earth’s surface – like the Australian continent. It is used by women to carry babies – just as ‘mother earth’ carries us all. There were a number of other ceremonial objects presented, with no explanation of the meaning. I’m not sure how this transfer of power will happen, but perhaps it will be by the treaty of federalism between Australia and First Nations, with First Nations reserving only spiritual sovereignty as their residual power.

Mr. Bayona ba Meya’s quote helped characterise First Nations sovereignty in this very specific way, as a spiritual notion. It would have been difficult to fish for something similar in consultations, especially when so many Aboriginal people are focused and still agitating strongly on Land Rights and other matters that are clearly in the temporal realm.

A sword, or a shield… or two swords?

The seemingly nonsensical “sword and shield” analogy given in the Referendum Council Final Report also starts making more sense when seen in this context.

The parallels between an anti-discrimination clause and a shield is self-explanatory as they are forms of protection. Painting an advisory-only voice as a sword seems like a stretch. But the voice as a sword analogy resonates with the Catholic doctrine of Two Swords. First Nations people are to hold the spiritual sword. The nation state will hold the temporal sword.

 “We are taught by the words of the Gospel that in this Church and under her control there are two swords, the spiritual and the temporal . . . both of these, i.e., the spiritual and the temporal swords, are under the control of the Church. The first is wielded by the Church; the second is wielded on behalf of the church. The first is wielded by the hands of the priest, the second by the hands of kings and soldiers, but at the wish and by the permission of the priests. Sword must be subordinate to sword, and it is only fitting that the temporal authority should be subject to the spiritual” .

(Unam Sanctam, Denzinger 873)

The new Australia will be running off the authority of the spiritual sword wielded by the First Nations peoples. The nation state wields the temporal sword, which is subordinate to the spiritual sword.

Those promoting the Statement may tell us we will not be subordinate, which is technically true in terms of derivation of authority. But this isn’t medieval Europe – the Pope and church leaders might still be the top of the chain of authority, but they aren’t allowed to influence much in worldly affairs, and neither will we.

Consider also what happened in France in 1905 when state secularism was established. If we frame our law in a purely spiritual way, and a strict regime of state secularism were introduced in Australia; consider the consequences. Will ‘special Aboriginal funding’ and ‘special Aboriginal treatment’ be seen as being an attack against the separation of church and state? In France they basically confiscated all places of worship as public property. What happens to our sacred sites?

A spiritual sword is not very useful in a secular world.

Title image by emersonmello from Pixabay

The logic of Native Title

~ Jessica Savage ~ Leave a comment

I think the ultimate goal of “Native Title” is to give the Crown sovereignty over the land.

Here is the logic behind this idea;

1. Starting point (time of “British Discovery” formal claim).

Aboriginal peoples collectively hold ALL rights to the land.

  • They have the rights to do A.
  • They have the rights to do B.
  • They have the rights to do C.
  • They have the rights to do D.
  • They have the rights to do E.

etc. – where this list infinite because they have allodial title and hold ALL rights as sovereigns of that territory.

“The company” (British fleets and the Australasian colonies) acting in the right of the Crown, then claim a right of Discovery under the Discovery Doctrines. As the land is not a completely Terra Nullius, this gives them an exclusive (against other European powers) right to Treaty or to purchase land from the inhabitant sovereigns. It does not give the Crown sovereignty over the territory.

2. Fast-forward to after the “overturning of Terra Nullius”.

Aboriginal people under colonial occupation make a “Native Title claim”. They claim that;

  • They have the rights to do A.
  • They have the rights to do B.

This type of claim is very limited. Only forms of “traditional” land use is allowed. It’s sometimes called a ‘bundle of rights’, it is a subset of all possible land rights.

Native Title claimants are, in a way, granting the following land rights to “the company”;

  • Rights to do C.
  • Rights to do D.
  • Rights to do E…

etc. and anything that the Native Title group don’t claim themselves. When Native Title claimants omit these rights from their claim, these residual land rights become “nobodies”, or terra nullius.

Before the Native Title claim, Aboriginal people hold ALL land rights. They couldn’t grant land to Batman, so they cannot have been surrendered historically – well at least not to any British Subject before Mabo2 overturned the Crown’s right of preemption. Interesting side-note, in the tabloids a few years ago was a case where land could have been surrendered historically, but it was to a Maori group in 1811, before the Treaty of Waitangi in 1840 (so to non-British subjects, non-Europeans). I don’t know what the outcome of that was, the story overall sounds made up.

After making the Native Title claim, Native Title holders have affirmed rights to do A and B. “The company” now has affirmed rights to C, D, E .etc.

Native Title claimants have being tricked into granting “the company” most of their land rights.

3. This is where Pratt-Yorke decision comes in.

So far – Aboriginal people – by claiming Native Title – have issued a land grant to “the company” for the uses of C,D,E etc. By “the company”, this means something like the British East India company, but Australia is colonial and acts in the right of the Crown so for this purpose it is similar to “the company”.

Here’s some of the Pratt-Yorke decision (this is about the British East India company but I think it is one of the bases of Native Title)

“(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form colonies, and receive your majesty’s protection, by virtue of your royal charters.”

It is claimed Australia was settled, not conquered. This quoted part of the decision is about settlement (also in the same decision it has the different rules for conquered territory)

.By claiming Native Title and applying Pratt-Yorke logic;-

  • Aboriginal people grant “the company” land title
  • The property of the soil is now vested in “the company” by that “Indian grant”
  • “the company” can now form settlements, and use the land
  • This allows settlers to carry “your majesty’s laws” to that settlement.
  • This in turn grants “your majesty’s right of sovereignty over the settlements” (burdened only by the Native Title holders claimed land rights).

In a nutshell – by claiming Native Title Aboriginal people are;

  • giving the Australian States land rights (C, D, E, etc) for free
  • giving the Crown a form of sovereignty over “settlements” on that land
  • often includes a “past-acts” clause

It’s a dog deal.

But there is still unfinished business. The Pratt-Yorke opinion says;

subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects.

The form of sovereignty given to the Crown (with Native Title) is limited. Crown sovereignty is only over the “English subjects” and “English settlements”, and not over the “Indian princes” or the territory itself. Native Title only fixes part of the problem – hence the need for constitutional reform to reconcile the bigger problem of colonisers gaining sovereignty over the territory, and over the peoples of the territory.

The Wik decision

Think about this logic above, and how the Wik decision affects land claims in light of this.

Pastoral leases do not involve intensive planting or building of permanant structures. If you compare a typical pastoral lease area with an area that has been traditionally firestick-farmed for Kangaroo in terms of building permanent structures and tiling fields, there is little difference. It’s hypocritical and illogical for settlers to claim an area initially unused because there are no planted fields, to then go claim that the area is now used – even though there are still no planted fields or structures.

This is a big problem for the colony because much colonial territory is pastoral leases. The colony has not done it’s job of “settling” very well – the population density of most of the Australian landmass is very low. Wik was designed to allow Native Title claims over pastoral leases, which in turn validates Crown claim to sovereignty over a greater area.