One of the first things I am often asked when explaining these proposals is – what happens to Aboriginal Sovereignty? Do the reforms cede sovereignty? Do they extinguish sovereignty?
The answer is no – the proposals do not cede or extinguish sovereignty. The modern world is built on agreements of sharing of sovereignty, not on outright conquest. Treaties, agreements, pacts and unions between nominally “sovereign states” and other entities is the new game. Ask Brexiteers or Yellow Vests who want out of the European Union – what does sovereignty mean to them? Outright cession of sovereignty is rare – nominal sovereignty is still a concept – but is becoming increasingly fluid. Far more likely and dangerous in this day and age, is entering into agreements where effective control is handed over, but nominal sovereignty is kept. Total cession of sovereignty is not really a thing anymore.
The case in Australia for First Nations peoples – that I want to warn about – is the danger of unwittingly handing over inherent sovereign powers, but keeping a ceremonial, nominal role as “traditional owners”.
For shared sovereignty to function in the modern world – the roles and powers of the sharers needs to be decided and agreed on. A line has to be drawn to give the legal systems something to go on in the case of conflict. This line is called the division of powers.
In Australia, the sovereignty of Aboriginal peoples has been slowly defined in the law journals, public discourse and the courts – dominated by a colonial perspective. Once this defining is done, it can be formalised by making an agreement of division of powers between the colonial state and First Nations. This 2 part blog is about why, and how Aboriginal sovereignty needs to be redefined in preparation for “reconciliation”, for formalising a division of power agreement.
The Real Myth of Terra Nullius
Firstly… I want to bust a myth. Not the usual, blah blah… that Terra Nullius was a legal fiction.
Terra Nullius was NOT overturned.
We hear it over and over…. Mabo overturned terra nullius.
But.. that is a myth. Terra Nullius was only overturned in Australian, domestic legal doctrine.
Mabo decision ruled (unanimous 7:0):
“The Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court“
Cannot be questioned – because it is a matter of international jurisdiction. In the Mabo case, they only talked about acquisition of sovereignty so they could make more informed decisions about land rights and land titles. First, the case made a distinction between acquisition of sovereignty and acquisition of radical title (45). Then they overturned Terra Nullius under Australian legal doctrine. Then they made some decisions about what that means in terms of land title claims. The validity of acquisition of sovereignty by the Crown was not challenged.
The Crown’s claim to sovereignty over Australia is something that exists under INTERNATIONAL law, not domestic law. The Crown’s claim on the basis of Terra Nullius, remains untouched.
Australian governments, state and federal, are all dependent on the Crown’s claim. Every piece of legislation needs to be signed off by a representative of the Queen before it is passed. Terra nullius is still the basis of the Crown’s claim of sovereignty. The entire Australian system, all institutions, parliament, courts, issuing of land titles, the Australian dollar and credit rating, international agreements, everything – still depend on Terra nullius. This is the number one problem that needs to be solved. Forget the Native Title act, the Race power, section 44 etc, they are secondary issues. So much effort and money goes into constitutional reform, because Terra Nullius needs to be fixed before people catch on. The consequences of not resolving this could be catastrophic not just for the colonial establishment, but for everyday Australian people.
The colonial solution
Let’s try to look at things from the colonial perspective.
How did this mess come about? They claimed the land with the justification of terra nullius – in the hope that the original people simply die out, allowing the colony to go on like nothing happened. The rewards if it paid off, were great, an entire continent for the Empire, and a stepping stone for control of a large portion of the Pacific.
But the original people didn’t die out.
The Australian colonies took an approach seemingly directly out of Herman Merivale’s “Indian Problem Plan” from Canada – extermination, slavery, insulation (missions) and assimilation. The goal of Herman Merivale’s plan was clearly stated – it was to maintain law and order. Revisionists, including assimilated blacks revisionists, try to claim that Australia used these exact same tactics toward a different goal, to “protect” native people. They are (willfully?) blind to seeing that this plan, successfully applied in Australia, would prevent sovereign peoples challenging the illegal occupation of their lands. The goal in Australia with indigenous policy always was, and always will be, like Merivale’s goal – to maintain law and order – or in other words to maintain the system.
Never forget this. The system was built to destroy us. We remain an existential threat to that system.
But the plan failed. Our identity is strong. Our numbers – under self identification and community identification definitions – are growing. Genocide and destruction of identity has failed. We are learning more, seeing through their crap, and challenging the systems foundations.
So what next? What can the colony do to fix this problem?
Even under whitemans’ own laws – Aboriginal peoples have a strong claim to sovereignty, perhaps the strongest in the world. Culture, law, people, identity, link to the land – all survive. Resistance has been continual against occupying governments, it was clearly not a case of peaceful prescription (which is acquiring sovereignty unchallenged).
How does this measure up to a claim based on terra nullius? It doesn’t!
And the colony knows it. They need to do everything they can to prevent a case of contested sovereignty going to an international court, because they would fail. Terra Nullius doesn’t cut it anymore. It needs to be replaced with something else. And it has to be done right.
There are only a limited number of options, a limited number of ways acquisition of sovereignty over an obviously inhabited territory can happen under international law.
Some possible options;
- Treaty: The right thing. Negotiate in good faith, sign treaties with each the original nations on a nation-to-nation basis.
- War: Declare war under international conventions and win. Sign cession treaty at end.
Treaty.
The problem with signing treaties – is – what if the original nations refuse to sign? At this stage, there are nations who have already indicated that is exactly what they intend to do. Any Nation who refuses – Australia will lose that part of territory. Original nations have huge bargaining power, although many don’t know it. Restitution is also not an unreasonable request – Crown is also liable as everything has been done in the right of the Crown. Will the Crown be made to pay to clean up the mess they left at Maralinga? Maralinga is merely a fraction of the tip of the iceberg. Australia and the Crown are afraid of treaty negotiations because it will be too expensive. But – the longer they drag it out – the more Aboriginal people educate themselves and realise what strong position they are in. In hindsight, the Crown and colony should have got it over with in the 70’s by not sacking Whitlam, it would have been far cheaper then.
War
Declaring war. Military action would require ignoring protests of the Australian people, and would need the support of at least some of the International community. Military action, even if done under the correct international protocols, would look like strait-up, open genocide “against it’s own citizens”.
Australia has been telling us that Aboriginal peoples are Australian for the last 50 years, so they will need to do a 180 turn and explain to Australians and to the world that Aboriginal peoples are foreigners in order to declare international war. Aside from the public relations nightmare trying to sell a war, under international law – Australia can’t declare war on Aboriginal peoples without shooting their own (Terra Nullius) claim of sovereignty in the foot. War would have to be declared by a proxy third country, and (kind of funny if it weren’t so serious) that proxy would be acknowledging Aboriginal Sovereignty – the last thing Australia wants!
This circular logic failure is the same reason why the Frontier Wars are not commemorated in the Australian War Memorial. The Frontier Wars are excluded – not because the memorial is run by ignorant right-wing racists (although that’s a convenient cover story). It is because including the Frontier Wars in the memorial implies the Frontier Wars were international wars between sovereign states, not civil war. Note how they deflect the question by using the word “overseas” instead of “international”, yet inconsistently commemorate the Darwin bombing and other actions on Australian soil. War under proper international protocol, and acquisition of sovereignty from winning a war, is incompatible with Terra Nullius.
The modern way: “sharing”
There is however, another option. It does not involve traditional, old-school acquisition of sovereignty under international law. Get with the times! It involves an assertion of continuing sovereignty, but framed in just the right way to benefit the colonial system.
It is: Take over First Nations legitimacy and governance systems through a formal agreement of shared sovereignty.
Here are a couple of different frames of reference/angles to look at this, but they are all the same thing.
- Taking over the legitimacy and governance of the Aboriginal peoples in a way that Aboriginal peoples are still included in governance process and are nominally sovereign “Traditional owners”, yet they are effectively powerless.
- One-for-one – replacing the Terra Nullius based authority of Crown with inherent authority of Aboriginal sovereign people.
- Transplanting the colonial institutions on top of Aboriginal foundation. Then ditch both Crown and Aboriginal legal systems which become redundant.
Mabo 2 judgement said (paragraph 65);
“First, unless there are pre-existing laws of a territory over which the Crown acquires sovereignty which provide for the alienation of interests in land to strangers, the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants
and their descendants. Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. “
Side note: this is very cleverly worded to not explicitly acknowledge the existence of pre-existing law. They are treading on very fragile ground.
Anyway – this implies that Australian (common) law cannot change Aboriginal (pre-existing) laws because Aboriginal law is outside of their jurisdiction. However – what if the laws were to merge into one institution? If you study the legal journals over the last few decades, you will see plenty of discussion about this – about how to reconcile Aboriginal traditional law and the Australian legal system. This is not a new idea. It is part of the colonial maneuvering… the pre-existing, Aboriginal law will become one jurisdiction with Australian law – once that happens it can be changed by whiteman. It is not technically the end of Aboriginal law, but a complete takeover of it.
To be successful, this will require these steps;
- conceptual repackaging and redefining of Aboriginal Sovereignty and Aboriginal peoples’ inherent rights and interests,
- getting Aboriginal peoples to accept this redefinition,
- (optional) formalising an Aboriginal state/s
- merging the (formalised or conceptual) Aboriginal State and Australia Commonwealth together, while drawing a line for the division of powers.
- (optional, but inevitable and not to be ignored in context) Forming a Republic will cement the deal, and be a one-off opportunity to tidy up any loose ends.
This is the path the colony has chosen.
Now, I can’t speak for Aboriginal peoples, but I am sure about something… This is far from the spirit of Aboriginal peoples’ intention when they call for Treaty. Even though legally, it might be a Treaty (discussed in next post).
From the Colonial perspective – there are a couple of different pathways or roadmaps they can achieve this goal of taking over Aboriginal legitimacy – and different ways the ‘line’ can be drawn. Part 2 of this blog I will go into the methods.