"Constitutional recognition does not foreclose on Aboriginal Sovereignty"

Back in 2012, this was the advice from the Expert Panel. I’m going to break this advice down – because firstly – it does not actually address the concerns that Aboriginal people have about sovereignty, and secondly – I want to show that the advice is technically correct, although it gives a misleading impression.

The first quote:

the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples
Expert Panel legal advice

It is true that the sovereignty of the Commonwealth does not depend on any act by Aboriginal and Torres Strait Islander peoples – and I will explain why. This is to do with international law and diplomatic recognition. There are two theories on state sovereignty internationally. You can see them here on the wikipedia page about Sovereign States. They are 1. constitutive and 2. declarative.

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state
wikipedia: Sovereign State

Australia meets this, because it is recognised by other states.

By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity’s statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force.
wikipedia: Sovereign State

Australia meets this as well, as long as it successfully maintains the position that it’s sovereignty was not gained by military force. This is one reason why Australia denies the Frontier Wars (refuses to have include in the War Memorial) and maintains that Australia was “settled” and not “conquered”.

It is true – that in international law – no explicit act of confirmatory acquiescence from Aboriginal people is needed. But nevertheless – Australia’s sovereignty claim does depend on Aboriginal people not challenging this claim in the international arena.

In other words – the sovereignty of Australia is dependent on Aboriginal peoples keeping their mouths shut, it is not dependent on Aboriginal peoples actively agreeing to anything.

Next Expert Panel legal advice here;

“The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.”

This is easier to digest in two sentences.

The first sentence.

The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled.

The Australian constitution is an Australian (colonial) document, it’s pretty clear from reading it – in particular the enacting clause. If Australians choose to include/mention/recognise as equal citizens – aboriginal peoples in the constitution – that’s Australia’s business. It has nothing to do with Aboriginal and Torres Strait Islander peoples, because we remain distinct and separate (A/res/2625/xxv) from the colonial occupation.

Constitutional recognition will not foreclose on the question of how Australia was ‘settled’, because it simply makes a unilateral claim on behalf of the Australian people. Australian people can claim whatever they like in their constitution – at the end of the day – it doesn’t matter because the status of the territory itself and over ourselves as Aboriginal people, is not their call. Our sovereignty of the soil still stands in the way.

If you look at George Williams’s paper – he suggests that ‘settlement’ can happen in the past, present or future. Australia claims that “Australia was settled” – but don’t assume that settlement is something that has already happened in the past and has been concluded. I think what is happening is, that the end story will be that Aboriginal people first settled Australia, and the British validly merged into that sovereignty by also settling and bringing their laws. These reforms are to formalise and foreclose this position.

But this can’t be formalised by constitutional recognition ALONE – which is what these lawyers are basically (correctly) saying. It needs another vital step – a constitutional reenactment, or declaration of independence – it requires an international act as it is an external assertion of sovereignty. This state act (with Aboriginal people onboard) WILL foreclose on the issue. These lawyers are not technically lying, but they are not telling us the whole truth.

The second sentence.

Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.

Reworded slightly: Constitutional recognition shouldn’t have a detrimental effect on future domestic projects.

Historically, government policies have been atrocious – this is just saying that constitutional reform shouldn’t make domestic policies any worse. How lame.

Referendum Council Report Advice

Some legal advice that ended up in the referendum council report.

Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The subsequent occupation of the country and land law in the new colony proceeded on the fiction of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been the exertion of force by and on behalf of the British Crown. No-one asked permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them.
Referendum Council Final Report

So what?

If you look at the positioning and context of this quote in the report (end of page 11)- it seems to be trying to reassure us that the changes will not affect our sovereignty. But this is not reassuring at all. If anything – it means we should be even more concerned – because we clearly have a lot to lose.

All this quote does is state a position, this time – from an Aboriginal perspective. It does not explore – whatsoever – the affect that the Uluru Statement changes will have on that position, nor other pathways that could be taken from this position.

So far I have not seen anyone associated with these reforms explaining what effect the Uluru Statement has on our sovereignty. All I see is clever sound-bites that skirt around the issue.

Image by Kerstin Riemer from Pixabay

Thinking Sovereignty

Thinking Sovereignty

“Constitutional recognition does not foreclose on Aboriginal Sovereignty”

Leave a Reply Cancel reply