Around Christmas last year I did a video about the Declaration of Recognition. I wrote and did a video about how I thought that having the declaration “outside of the constitution” was code for in the preamble – which is in the Imperial constitution act – and therefore not “in” the constitution.

But I don’t think that’s right anymore, and want to write down my revised thinking.

Have you heard the saying – “hidden in plain sight”? After watching a video on youtube – and re-reading the Declaration of Recognition book from Uphold and Recognise I have a new idea what it is.

In the video – go to 32 minutes. This is Damien Freeman. He is one of the two founders of Uphold and Recognise. The other founder is Julian Leeser, who was also (very conveniently) appointed co-chair of the Joint Parliamentary Select Committee post-Yulara convention. In the video, Freeman seems a little nervous and reluctant to answer, and tries to fob a question off to Shireen Morris. I would do the same if I were him – Morris is brilliant at putting lipstick on a pig and leaving the audience none-the-wiser. Anyway – Freeman, in the video compares the Declaration of Recognition to the US Declaration of Independence.

Now – Australia is not yet Independent. Every piece of legislation passed by federal and state governments needs (foreign?) Crown assent, even if it’s at arms length by a Governor as a proxy. So it makes sense, that the first thing they would want to do once they safely have Aboriginal and Torres Strait Islander peoples locked under the Australian domestic umbrella – is to declare their independence. But they can’t actually call it a Declaration of Independence, because that would raise eyebrows and questions, because Australia is supposed to already be independent. So they call it a Declaration of Recognition instead. Outside of the interpretation of the High Court, it will be the tip-of-the-pyramid founding document of Australia, effectively replacing the Imperial Constitution Act of the UK Parliament.

Now – they needed to include the Declaration of Recognition in the Referendum Council report to demonstrate that the “First Nations State” endorsed this Declaration of Independence as part of the overall reform package. The other states and the federal government show their endorsement just before the Voice referendum. From the Referendum Council Report Recommendations;

That an extra-constitutional Declaration of Recognition be enacted by legislation passed by
all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of
recognition to unify Australians.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating
Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts
of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our
multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the
lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament,
as an expression of national unity and reconciliation.

Final Report of the Referendum Council, Page 2

They legislate it concurrently just before the referendum to give a pretense that the Australian people are also voting for Independence. I am guessing they will set up this concurrent legislation ‘ad referendum’, so conditional on the referendum passing. This endorsement of the people is a joke because Australians think it’s a gammon symbolic statement. The declaration was fairly prominent in the Referendum Council report, but you won’t see Thomas Mayor touring around explaining to whitefullas what it is.

Overall I think this means – the Unilateral Declaration of Independence that the Sovereign Union talks about is a good idea.

This is essentially what Australia is attempting to do, but with First Nations standing under their umbrella.

First Nations might want to get in first, and declare independence on behalf of their own respective nations to preempt this attempt by the Commonwealth. Recognising each other as nations will also help reinforce this position.

Lately there has been some people sharing my blog on Facebook, and I’ve been getting a lot of views. I just want to say thanks for sharing this information. I want to write more and post more videos, and getting feedback is encouraging.

If you haven’t seen it already – I posted a video a month ago – Link: https://vimeo.com/360731209

If you don’t feel like watching it – this post is briefly what it’s about. This video examines Malcolm Turnbull’s claim that the voice will be a Third Chamber of Parliament. But Turnbull never actually said the Voice IS a Third Chamber, he said

It would inevitably become seen as a third chamber of Parliament”.

In other words – it’s going to look like a third chamber. The “third chamber” is a historical reference to the Indian Chamber of Princes, which was a true third chamber of the Indian Parliament. This Indian Chamber of Princes is – as far as I know – is the only third chamber in history. And once the Indigenous Voice is enshrined, it will look very similar to this Indian Chamber of Princes. And what happened to the Chamber of Princes? It didn’t last. That’s what Turnbull was warning about – because I think – part of “free, prior and informed consent”, someones gotta tell us the cons. They just stage-manage the information release, and get people like Turnbull, Abbott, Pauline Hanson et al. to deliver us the cons so we are primed not to take notice.

This misunderstanding is also the root of stage-managed “confusion” happening right now in regards to Ken Wyatt and his supposed rejection of the Voice. Ken Wyatt has not rejected anything, he said;

the question we put to the Australian people will not result in what some desire, and that is a enshrined voice to the Parliament”

Now that could mean one of two things.

One – he is changing the proposal by leaving out the Voice. This is not possible though – because the Yulara Statement offer is non-negotiable. So under basic contract law, the offer cannot be diminished or watered down.

Two – the proposal sucks. Yes, it does… and this is fully aligned with what Turnbull said. The proposal is going to end in tears. Wyatt is right – it will not result in an assembly as some desire.

Of course the media is feeding us with option 1, because they want you to think that the government doesn’t really want these reforms happening. This is because they don’t want a repeat of 1999 – government don’t want to seem too keen. It’s a bluff. They are bluffing so hard, that Ken Wyatt and Noel Pearson BOTH didn’t show up to a scheduled Q&A appearance shortly after Ken Wyatt said the above quote at the Vincent Lingiari Memorial Lecture. I guess if they turned up, they would have been backed into a corner, and would have to clarify. No – the strategy was to let the media run with disinformation to brainwash us all. No clarification needed.

The Referendum Council report just asks for a “Voice”. Not an assembly, chamber, senate, black parliament… but a “Voice” or a body – that is the actual terminology used in the report. The Referendum Council have left a gaping hole that the government can proceed to drive a truck through, because what they have asked for is consistent with normal voting rights. So keeping in mind that as Aboriginal and Torres Strait Islander peoples – as non-citizens we don’t yet have voting rights. We are allowed to vote, but that is not the same as having the right to vote. So further down the line – the Voice could will mean – the right to vote as fully assimilated Australians. This is the benefit that we will get from this Treaty – because in a Treaty such as this there has to be an exchange of benefit for it to be legit. Beads and trinkets are needed. Be warned – it is a true Treaty.

It is no coincidence that the first elections to the First Peoples’ Assembly are happening at the same time as the lead-up to call for referendum. The connection between the two lies in contract law.

More specifically, the laws into formation of a contract. Contract formation can vary from simple to a complex, multi-step process. Two steps are particularly relevant here – 1. formation of a binding agreement by exchange of consideration, and 2. intention to create legal relations.

Formation of a binding agreement

First – formation of a binding agreement. Here is a basic example without the jargon. If you go to a restaurant, read the menu, order some food and eat the food, the law says that you must pay your bill. Why? You didn’t sign any contract saying that you would pay? Even though you didn’t sign anything saying you would pay – you still have to pay because a binding agreement has formed.

There are 4 steps of contract formation. They are;

• Offer
• Acceptance
• Consideration and
• Intention to create legal relations

Offer is what’s on the menu, and the price on the menu items. The restaurant sets the terms of the agreement in the menu, the menu is the offer. You read the menu and decide if you want to take the next step, perhaps after chatting to the waiter about what the soup-of-the-day is, or you can walk away and eat somewhere else.

Acceptance is when you order the food. It means you accept the menu items ordered and the price you will pay. When you order the food, the waiter takes your order to the kitchen and the restaurant starts cooking. It does not require that the restaurant explicitly says “yes”, taking action is enough to accept an offer.

Consideration is legal jargon for the benefit that is exchanged. In this case, consideration exchange happens when you eat the food. The kitchen went to the effort to cook your meal. There is an exchange of benefit – as in you have benefited from getting food in your belly, and that has been at a cost of time and ingredients to the kitchen who cooked it. At this step, a binding agreement has formed because of “exchange of consideration” which is – you have gained a benefit of getting food in your belly at a cost to the restaurant. The restaurant could call the cops if you walk out without paying because a binding agreement was formed when you ate the food.

Intention to create legal relations – doesn’t apply to this example, because I picked this example to explain what a binding agreement is. This step makes the agreement into a contract.

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Relating these steps of contract formation back to the Yulara Constitutional reforms and the Victoria assembly. This may explain how the two are related. Identify the steps.

Offer was made by a group of First Nations people claiming to represent ALL Aboriginal and Torres Strait Islander people. The offer was this – First Nations people ask for Voice (help setting up and sustaining a First Nations political body), Treaty (if you follow my work you know the Voice is actually the Treaty, but there will also be opportunity for domestic agreement-making) and Truth telling. These three things are asked for in exchange for something – that is “sharing sovereignty”, or in other words allowing the Australian Federation to run off First Nations sovereignty. The offer was made to the entire Commonwealth because it included a request to join the Federation – in other words – it was made to all of the State governments and the Federal government. Yes – that includes Victoria, the offer was made to the Victorian Government as well.

Acceptance could be when Victoria, upon hearing about the offer at Yulara, started work to create the Victorian Treaty Advancement Commission. The stated goal of the commission was to set up a representative body. Note – if this representative body went one extra step and became constitutionally enshrined it would be consistent with Yulara request for a “Voice”. Now – Victoria Treaty going-ons happened since before Yulara – however note that the Treaty legislation and Commission (to set up the rep body) was set up AFTER Yulara. Victoria could argue later that they set up the commission in response to the offer at Yulara. I say could, might etc. because it depends on the motivation of the Victorian Government, and would hang on the answer to this question – “Would Victoria have set up the assembly had it not been for the Yulara offer?”.

Note that in contract law, acceptance does not require an explicit “yes”. Taking action is enough to accept an offer. Just like in a restaurant, the waiter does not have to explicitly tell you “Yes – we will cook your food now”, it is automatically implied by action. When the government allocates funding, sets up processes, spends time/money towards it etc. this could satisfy acceptance. Keep this in mind when you see claims that Turnbull or whoever “rejected” the Yulara statement. Actions matter.

Consideration is legal jargon for a benefit that is exchanged. When the Aboriginal community in Victoria enroll and vote in the Assembly elections, community get a benefit from the work (time/money spent) that the Victorian Government have done setting up the assembly. Exchange of consideration makes an agreement binding, just like when someone eats food in a restaurant they become obliged to pay. What I am saying here – the Assembly might not be for free! That also goes for any agreement-making and truth telling, because this was also requested in the offer at Yulara. The cost may be shared sovereignty. Participation in the assembly may turn the offer into a binding agreement because of the exchange of consideration. The qualifier is again – did Victoria set up the assembly because of the Yulara offer?

The next step is Intention to create legal relations.

Intention to create legal relations

Following on from the previous section, where we may have a binding agreement from mob voting in the assembly. When does the final step of contract formation – Intention to create legal relations occur? Note the Commission is called the Treaty Advancement Commission – a hint perhaps that the Treaty is the legal relations. Something has to be signed somewhere, and needs to be signed by a sovereign body or bodies representing First Nations.

The Assembly of Victoria itself will ultimately “enshrine sovereignty”, it says so on page 14 of the Final report of the “Community Assembly” link to document here: http://victreatyadvancement.org.au/publications

We must be governed by what our families and Community wants for us. This must be fresh and inclusive of all in our Community, regardless of the legal structure, it is inclusive of every Aboriginal Victorian voice in the State. Ultimately, the Representative Body will enshrine our Sovereignty. It is a place of strength from which to exercise self-determination.

Regarding the Assembly enshrining sovereignty. The language used in the final report of the Community Assembly opens up a huge risk. What does “ultimately” mean? It could mean immediately after the first election – this needs clarification. I doubt giving a majority-rules rep body sovereign powers is legal under Aboriginal law; without clear rules set beforehand it will inevitably push the 40% of clans into things that the 60% agreed with. What happens when the body is gerrymandered by vested interests? I understand that the community is very concerned that not every clan has a seat, but in my opinion – the real danger is this rightful concern in combination with the assembly enshrining sovereignty without clear rules limiting that power.

And if you have been following my work, you know there is already a Treaty sitting on the table being negotiated right under everyones noses – the enshrinement of the Voice to Parliament in the constitution is a Treaty. It’s all well and good to say the Assembly will not negotiate a Treaty, but will the Assembly enter into this Treaty. Note this recent quote from the Treaty Commissioner, Jill Gallagher;

https://www.theguardian.com/australia-news/2019/apr/11/victoria-a-step-closer-to-indigenous-treaty-with-creation-of-first-peoples-assembly

Gallagher said it was important that any federal process to establish a voice to parliament was mindful of representative voices already operating. “Whatever happens at the national level it’s important we don’t have another process forced upon as as Aboriginal people in Victoria.”

Aboriginal people in Victoria should not have another process forced on them. So that implies a possibility that the Assembly will be re-used at the federal level. If the First Peoples’ Assembly of Victoria somehow votes itself to form part of the “Voice to Parliament” and is enshrined – boom – there is your Treaty and intention to create legal relations. Every mob in Victoria, by voting in the assembly has just signed up to a Treaty to share their sovereignty, and they probably won’t step foot in a negotiating table until years later. And as John Howard says, Australia can’t Treaty with it’s own citizens. Once that voice is enshrined, whoever it represents are Australian citizens recognised in the Australian constitution. There’s no “Treaty” after this – from that point it is “agreement making”. Watch the other states and note how many are also talking about or setting up rep bodies – the same danger is there.

“Victorian Treaty Advancement” – what is the Treaty that mob in Victoria are being advanced towards?

Too long; didn’t read

If that all went over your head, here is a take-home summary. If Victoria constructed the Assembly in response to Yulara, then when mob in Victoria vote in the Assembly elections they are rubber stamping the Yulara statement. Voting in the assembly elections is like voting yes to Yulara in a black-only referendum. Not voting at all, is voting no to the Yulara statement.

If it didn’t go over your head – if you think about it a little more, you know why gubs don’t care if delegates from Victoria walked out at Yulara. And you also know why they are giving out free footy tickets and visiting jails to get people to enroll.

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.

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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.

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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.

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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.

The following is the transcript for the video at https://vimeo.com/312690051
The original video is a powerpoint style presentation with voice-over. 

Truthtelling explained

This video is part 4 of a series. I should have included truth telling as part of Makarrata video (part 2). If you read the Referendum Council report carefully, and note commentary about it, it shows that Makarrata consists of both agreement making and truth telling. 

So what does Truthtelling have to do with agreement making?

They are grouped together because truth telling is part of contract law. Let’s go back to the basics of agreement making and contract law. These reforms involve contracts, which will presumably be made under white man’s law, or under English contract Law. A contract under English contract law is when one party makes an offer and the other party accepts it by accepting the offer or by performing the offers terms. I will explain this more in my next video, where I discuss how the components of the reform package fit together. 

Legal practicalities

Before any contracts or agreement making can happen, there are 2 fundamental practical considerations that need to be established. For Australia to conduct agreement making with First Nations, they must first establish;

1. Who are the “First Nations” parties to the agreement?
2. Do each of these First Nations have the authority to enter into such an agreement?

The first of these considerations; 

1. Who are the First Nations parties to the agreement.

This is about identification of each Sovereign Nation

One of the first steps of making agreements, before negotiation even begins, is identifying the parties of the agreement. This happens in every agreement, whether it is an informal agreement to borrow your friends car, or several countries signing a trade agreement. Sometimes identifying the parties is an automatic process based on a pre-established trust, for example when you make a verbal agreement to borrow your friends car – you already know each other. Most of the time in day-to-day business it involves filling out a form with your name, date of birth and address. Other times it is more detailed – for example getting a loan from the bank usually involves a 100 point ID check.

In the case of agreement making in Makarrata, this identification process has not yet happened. No one knows in total how many First Nations sovereign groups there are, who they are and what their territory is. There is the Tindale map, but that is of language groups and not of Sovereign nations. For Australia to begin Makarrata agreement making, the identity of the groups must be established. First Nations do not have founding documents. They have oral histories, songlines and stories instead. Truth telling is the telling of songlines and stories in order to identify groups. It is the equivalent of showing identity or foundation documents.

The second point that needs to be established before agreement making can proceed;

1. Do each of the First Nations have the authority to enter into such an agreement.

A second, related legal practicality, is to establish that the particular First Nations group are legitimate sovereigns, that they have sovereign powers that they can share with the Australian federation, and to make sure they are not fraudulantly presenting themselves to be traditional owners. This ensures that the First Nation in question has the ability to enter into the agreements. Australia will not want to enter an agreement with groups who are not sovereign, as that would defeat the entire purpose of the reforms which is to acquire Aboriginal sovereignty. Ensuring that each individual First Nation has the ability to enter the agreement could be seen as the equivalent of getting a credit check and showing all your payslips when you go in to get a loan from the bank. It makes sure that the party is “good” for it.

Each of the groups will need to establish that they are the correct family traditional owners of a piece of land. They will do this by sharing their oral histories, or by truth telling. These histories must show a continuity from pre-invasion to the present day to prove continuing sovereignty. It helps if these narratives can be backed up by white man’s science and history. This must also include the not so pretty parts of history, including massacres, dispossession and removals – as these stories also help show continuation for the survivors descendants. Ideally Australia will want to have their entire claimed territory under agreements, the more comprehensive the truth telling, the more water-tight the mapping out the groups and thus the agreements.

These two points alone are necessary legal practicalities that need to be addressed before any agreement making can proceed. 

Re-writing the Zeitgeist of the Australian Republic

There is a third reason for truth telling that is not related to the agreement making, but is also necessary for the reforms to have longevity.

This reason is, that the local sovereign groups must be recognised, and their history and tie to the land as sovereigns of the soil must be emphasised in the collective consciousness of society in order to rule in the right of First Nations. This process needs to occur on all tiers of government, and it must acknowledge individual First Nation sovereign groups. For example, it cannot be merely “we recognise aboriginal peoples”, but it must be “we recognise the Birri Gubba people as the traditional owners of this land”. Sound familiar? That’s because this is already happening.

When I went to school in Queensland in the 80s, we used to sing God save the Queen at our school assembly, and we had a portrait of the Queen in every classroom. This reverence of the Queen doesn’t happen anymore, as it is planned that the sovereignty of the crown be replaced by Aboriginal sovereignty. So the formalities are changing to suit. This has been slowly progressing since terra nullius was overturned as part of the reconciliation agenda.

It has been an 180 degree change in the Zeitgeist – to go from “Aborigines don’t exist” to “We rule in the right of Aboriginal peoples”. This has already happened at a national level, but it still must drill down to the sovereign group level and become more localised. This is absolutely necessary because the individual nations are the holders of sovereignty of the soil, not the generic “Aboriginal and Torres Strait Islander Peoples”. Acknowledgment of country, and welcome to country, knowing who the traditional owner groups are, these formalities are replacing portraits of the Queen.

A couple of years ago I visited an Australian consulate in Frankfurt, Germany. I noticed they had a stately official portrait of Julie Bishop in the waiting room, no portrait of the Queen. I also noted that behind the counter hung an under-stated Aboriginal painting. I imagine that after the reforms go through, Aboriginal paintings will decorate the waiting room as well, and Aboriginal art will eventually be incorporated into official heraldry, seals and such. 
Truth telling is needed to appropriate Aboriginal identity into the Australian identity, and to recognise Aboriginal sovereignty. To quote the Uluru Statement:

“With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood. “

Selling “Truth Telling”

These three aspects can all be taken care of by truth telling.

Now, Australia has been clever in dressing up this information-collecting expedition as truth telling. It resonates well with the Aboriginal community, and it makes it sound appealing to Aboriginal people. Note that Native Title also involved truth telling, as in proving that a group had a legitimate claim. However, the form of truth telling with Native Title was not appealing at all. Court processes typically ran for a decade, it was an expensive, tedious exercise, because the Australian government didn’t want to make it easy or appealing.

Compare this with something called a “Truth and Justice Commission” or “Truthtelling”. Especially to a group whose entire existence was ignored up until the 90s. It sounds far more appealing than Native Title and ILUA dramas.

But don’t be fooled, this is no social justice initiative, it is not inter-generational trauma therapy. It is merely a legal practicality with lipstick. Generally, the less onerous the process looks, the more the government wants participation. The truth must be told to make the agreements, and thus to make the new basis of the truly independent Australian state stable. 

Coming up…

My next video will be the final video of this series on the Yulara Constitutional Reforms. I will discuss how the different elements of the reform package fit together, in particular, how the so-called state-run treaty processes and the federal constitutional reforms work together. Please check back in a few weeks. This next video is especially important to anyone contemplating entering into an agreement in a state treaty process, such as the Victorian Treaties.

I recently posted a new video on my Vimeo page about Recognition. It runs about 16 minutes.

The reforms proposed by the Referendum Council include the writing of a new Constitutional preamble. This change is deceitfully framed in the Referendum Council report as an “extra-constitutional Declaration of Recognition”. This video presents evidence of why this is really a new preamble, and also explains why Constitutional recognition in the preamble is something that the government has always been pursuing, and why it is a danger to Aboriginal sovereignty.

The Joint Select Committee final report has just come out, but I have not read it, and am not writing about that just now. I want to write about the circus show that is being played before the eyes of the public. 

If you look at who is initiating processes, who is funding processes, and which individuals are actors in the processes, it is bleedingly obvious that the Constitutional Reforms are being driven by the Government, and are being helped along by unelected, not endorsed under Aboriginal law nor the Aboriginal Community,  ‘Aboriginal Leaders’.  If you understand that the reforms will benefit Government far, far more than they will benefit Aboriginal people, you know there is a very strong motive. 

In “our democracy”, it is supposed to work something like this; the public want to change “their” constitution, so they go to their representatives who’s job is to get the ball rolling to hold a referendum to get the changes through. This is why the Yulara Statement was addressed from the non-Australian sovereigns of the soil to the Australian people, and not to the politicians. The Australian people are then, in turn, supposed to act on it and carry it to politicians in an attempt to appear that the request has come from Australians. Meanwhile the Government runs committee after committee, while simultaneously running various PR campaigns to keep the momentum to “raise awareness”, going against the will of the people for their own power. This is a bastardisation of democracy bordering on tyranny. 

Every good show needs a villain. Malcolm Turnbull put his hand up for the job and has continually copped it for rejecting it and “lying” about it being a third-chamber. When Turnbull lost his position as Prime Minister it became a hard for him to continue to play the scapegoat, so less than two weeks later Tony Abbott was nominated as “Indigenous Envoy” to replace him. I gotta say he does a fantastic job at looking like a clown, very entertaining. Nigel Scullion has also been made the bogyman by allocating funding according to the national interest, fueling derision of the deluded who think an “Indigenous Affairs Minister”, sworn to the Crown, should be looking after Indigenous interests. No doubt the same people who think the Chief Protector of Aborigines’ job was to “protect” Aborigines.

There is a very consistent pattern that has gone since First Contact, Government creates the problems, then they present their solution on a silver-platter, which usually does bugger-all to solve the problem, but would you please see how hard they are trying! Not their fault Aborigines don’t stay alive and out of jail… So many black kids in jail…if only we had an advisory body enshrined in the Constitution everything would be so much better, right? One of the oldest tricks in the book. Also note how they use the Labor/Liberal, good cop/bad cop dichotomy to feign disagreement while they buy themselves time to push their bipartisan agenda onto the public.

The Australian public have been indoctrinated (falsely) over many decades that Aboriginal people are Australians too. “We’re all Aussies”. They have deeply grounded (albeit with some major blindspots) ideals of equality. Tall-poppy syndrome is a symptom of this. Trying to turn around now and claim that Aboriginals need special treatment in the Constitution is going to be a very hard sell. The reason that the 1967 referendum was so successful was not because of a wish to help “the poor Aborigines”, it was successful because it removed “special treatment” of a particular race from the constitution. Now, the Australian public are not buying-in to special treatment for Aborigines – and why should they when it is contradictory to their values of equality? The only way they might come around is to explain what is really going on and tell them their Hills-Hoist is at risk, but that would be Game Over because Aborigines would also see what’s going on. 

No politician is going to stick their neck out for a referendum that doesn’t have clear public support. It is not that politicians are against it. They are very supportive of getting their power secured by Aboriginal sovereignty. They are waiting on public support, which is just not there.

The other major actors – the Aboriginal Community. Have you seen them out on the streets and out on social media campaigning for whitefellas to support Constitutional Reform? I saw one protest in the mainstream media run by Aboriginal organisations. 

In an unprecedented show of unity, the coalition of land councils, medical services, legal services, child and family services and education advocates – representing thousands of Aboriginal people across the state

So who funds these organisations? And note the protest was run on a workday/weekday. There is no authentic, Indigenous grassroots movement. I could be cherry-picking – go search yourself and see if you can find authentic-looking actions from the Aboriginal community. I’m not saying there are no Aboriginal people supporting it, but the support is far from overwhelming like the media and proponents are trying to make out. My feeling is that most in the Aboriginal community are generally disinterested and slightly skeptical. Then there are some that are very against it like myself, especially amongst the Sovereignty proponents, who are a growing minority of a minority. The majority in the Aboriginal Community don’t give a crap, and are probably as apathetic about the Australian constitution as most whitefellas are.

The real players and drivers – the think tanks, insiders, influencers. These are the mechanisms driving the changes. The Cape York Institute, Uphold and Recognise, the Referendum Council, the Joint Select Committee/the Government themselves, legal institutions, certain universities, Australian-appointed UN representatives, certain media outlets, Land Councils, mining, banks… it goes deep. Look who is on these bodies, the history of these individuals, who is supporting these bodies etc. I won’t go into that here because it deserves a post on it’s own. The same individuals are moving in-between these circles, opportunities pop-up for them at just the right time, the same names keep popping up – because they have ‘the background knowledge’, right? And they have the nerve to preach self-determination.

Maybe if Aboriginal people were simply granted some control of their own land  they would be able to organise politically on their own terms, but they are busy trying to stay alive in an oppressive system while vampires work on stolen land to appropriate Aboriginal sovereignty while pretending to help.

Don’t be fooled by the circus show. We are all been taken for a ride.

This is just a note to let any of my blog followers know, I now have a channel on Vimeo. I made this to make the information here more accessible to people who would rather listen than read. Here’s a link to the channel;

https://vimeo.com/user91910335

Right now, I have two videos up. One is about the First Nations Voice to Parliament, the other is about Makarrata. They are the first videos I have ever made, they are slide-shows with voice-over.