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

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)