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1999 Referendum: Why

~ Jessica Savage ~ 2 Comments

The 1999 referendum question looked a lot different to the 1967 referendum, however both referendums had an overlapping goal, to fix the “aboriginal problem”. The overlooked, ‘missing piece’ that links the two referendums is changes to UN decolonisation rules that happened in 1970.

The attempt at integration of “Aborigines” in the 1960’s; under the UN rules at the time, would have been successful if original peoples did not contest it, and they integrated into mainstream Australian life. I suppose Australia thought that would eventually happen and all would be ok.

But the UN Decolonisation rules changed in 1970 with the passing of General Assembly Resolution 2625 – the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. This resolution put a spanner in the works for settler-colonial states.

This change in the rules was needed because of the problematic way decolonisation was happening in southern Africa. In 1965, the British colony of Southern Rhodesia declared a Unilateral Declaration of Independence to become Rhodesia. But it was the white settler-minority who voted for independence – they excluded the indigenous Africans, creating what the UN called an “illegal racist minority regime”. Rhodesia was heavily sanctioned by the UN because of this. South Africa was also a foreign-white-minority ruled apartheid state at this time.

Keep this historical context in mind. Resolution 2625 passed in 1970 had a section entitled The principle of equal rights and self-determination of peoples. This included rules to make sure a settler-colonial occupation cannot simply declare independence over a territory without the indigenous population on-board.

Here is a part of this section of the resolution;

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

A/RES/2625/XXV

This section is a thorn for settler-colonial states, and something they have made a staggeringly huge effort to work around. It is no accident that there is a section of text very similar to this in the UNDRIP. If you compare the texts side-by-side it becomes clear what is going on. In the hands of settler-colonial government agents – UNDRIP is a tool used to re-frame this external right to self-determination for colonised peoples into an internal right of self-determination for indigenous peoples. I believe the entire international “indigenous rights” movement is an exercise to aid settler-colonial states, not indigenous peoples. Please consider NOT using UNDRIP as a tool to advocate for your rights, because your international political status must be addressed before any discussion of domestic ethnic minority rights.

What this section in resolution 2625 effectively means is two things;

  1. The Aboriginal and Torres Strait Islander Peoples retain a status separate and distinct, retaining the right to self-determination (including option of independence) until they themselves exercise it. This means that it is a risky move for Australia to declare independence without bringing the original peoples along, because the original peoples could later declare independence separately, thus contesting the declared independent Australia. I think this is why Canada ‘patriated’ their constitution in 1982, and the reason for the Australia Acts 1986; bizarre gymnastics – because declaring independence is risky, so they do the closest they can.
  2. For settler states to become independent they must be possessed of a government representing the whole people, and thus including the peoples with the special status. It also means that a settler-state is vulnerable if it does not possess such an inclusive government. In Australia, the peoples of the land are not represented in the constitution; neither is there a treaty agreeing that the Australian government represents them. Other settler-colonial states with treaties may or may not meet this criteria, it would depend on detail in the treaties. This is why the 1967 crossing out of “except for the aboriginal race in any State” doesn’t fix the problem anymore under the 1970 rules. The Australian government still does not represent the original peoples.

The 1999 referendum and peripheral activities were an attempt to do the following;

  • Recognise symbolically that the Australian government represents the whole people – (so needs to include Aboriginal and Torres Strait Islander Peoples).
  • Build the requisite aboriginal decision making institution (ATSIC) that can exercise the right to self-determination and choose independence as part of Australia.
  • Re-enacting the constitution (into a home-grown/autochthonous one, and not a colonial one) and becoming a republic.

From the Australian point-of-view, these things solve the “aboriginal problem” in an external sovereignty sense. These points still need to be addressed to this day; and are all addressed in the Uluru Statement reform package to the benefit of the coloniser.

The catalyst for reform

The First International Decade for the Eradication of Colonialism (1990 – 2000) was likely the catalyst for the 1999 referendum. The UN decided they were going to make a burst of effort progressing the 30-year-old Declaration on the Granting of Independence to Colonial Countries and Peoples. You can imagine that settler-colonial countries would feel eyeballs on them, as they are colonies with unfinished business.

The land rights movement and grassroots activism also contributed a lot to keeping the pressure on.

The decade coincided with the life of the Council for Aboriginal Reconciliation and the formation and dismantling of ATSIC. If you keep Australia’s international goals in mind, you can see a lot of things that happened domestically in the 90’s were directly related to these goals. This will be covered in a future post I will write – “1999 Referendum – How”.

Title image by Gerd Altmann from Pixabay

The Shield and the Sword: Why The Constitution will stay racist.

~ Jessica Savage ~ 2 Comments

One of the strange things of the Uluru Statement was the abandonment of race power reform and leaving out the prohibition of racial discrimination clause.

Before the Referendum Council (2017), there was an emphasis on the importance of removing racism in the constitution. This was reflected in the 2012 Expert Panel report and the 2015 Joint Select Committee report. Both recommended removing the race power, creating a head of power for “Aboriginal and Torres Strait Islander peoples”, and creating a prohibition on racial discrimination clause.

The narrative went something like this… 

The constitution is racist. Race should play no part in a modern constitution. It's embarrassing that Australia still has the word "race" in it's constitution. etc. etc.

Making the constitution “not racist” was the selling point. And should be an easy sell in a referendum, given Australia’s ‘fair go’, egalitarian self-perception.

But these changes are not part of the latest iteration of constitutional recognition. What happened to them?

Both the 2012 and 2015 committees had a criteria that any reform must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples. Yet at the conclusion of the Yulara dialogue rounds in 2017, the Aboriginal and Torres Strait Islander delegates had dismissed both the non-discrimination clause and race power reform. Did the experts read the wishes of Aboriginal and Torres Strait Islander peoples; for at least half a decade, completely wrong?

The anti racial-discrimination clause (116A(1))

It seems like at the Yulara dialogues have framed a dichotomy. A Voice OR a non-discrimination clause is possible, but not both.

Section 116A as proposed by the Expert Panel was one of two substantive proposals. The other substantive proposal was the Voice to the Parliament.
Delegates to the First Nations Regional Dialogues were conscious that these two substantive proposals were options, each being an alternative to the other. The protection against adverse discrimination provided by section 116A was viewed as a shield dependent upon interpretation by the High Court of Australia, whereas a Voice to the Parliament was viewed as a sword, enabling First Peoples to advocate directly to the Parliament.

Referendum Council Final Report, page 13

“each being an alternative to the other….”

Why not both? It is 100% vanilla to have constitutions that contain both representative advocacy and rights enshrined AT THE SAME TIME. I would guess the majority if not all democratic republic constitutions in the world contain these two elements. Swords and shields are meant to be used together. Why should we fight with only one hand, like Jamie Lannister?

It is not really explained why not both, just that the delegates were conscious that they are alternatives to one another.

Many have used the word “sophisticated” to describe the Yulara deliberations. I don’t believe delegates know why the Voice and the Racial discrimination clause is an either-or choice. Perhaps by “sophisticated” they mean full of “sophistry”.

The report goes on; back-tracking on the anti racial-discrimination clause;

Delegates were well aware, following considerable discussion at the Dialogues, that section 116A was subject to interpretation by the High Court and prohibitive in relation to costs of litigation both in terms of finance and time.

Referendum Council Final Report, page 13

This is an admission that even after reform, First peoples will still be too poor to access the so-called justice system to fight against government discrimination. I don’t see any solutions offered as to how to address this problem of the inaccessibility of the justice system. It is brushed aside as too hard.

This is also an admission that governments do not care enough about the constitution to stop and think twice about what it says before acting. Clauses like this should not have to go to the High Court to have an effect; they should act as an immediate and general deterrent. Which makes you wonder – if putting such a clause in the constitution should be so ineffective, why bother with constitutional reform at all?

The Race power (51(xxvi)/ 51A)

As for reforming the race power, the dialogues decided to keep the race power “as is”.

There was no significant appetite for removing the word ‘race’. Dialogues understood that although the concept of ‘race’ was a social construction, removing the word ‘race’ and inserting ‘Aboriginal and Torres Strait Islander Peoples’ does not alter the adverse discriminatory potential of the race power. Therefore, removing the word ‘race’ was not regarded as an improvement on the status quo of the people affected.

Referendum Council Final Report, page 13

This ignores a fundamental problem with the race power – the equivalent of a “type-mismatch error” that computer programmers will recognise. It is logically incorrect to apply a “race power” to a polity. Race and polity are apples and oranges. To state the bleeding obvious – We are NOT A RACE. This alone is reason to reform the power. The Constitution and it’s interpretation should be clear, concise and unambiguous.

It also seems that the delegates and facilitators have only thought of themselves, and not considered the possibility that reforming the race power would prevent the government from discriminating against other races. A racist government could have a field day with the races power against any race, not just the aboriginal race in any State (sic). Given our culture, I find it hard to believe that we would not support protecting others against racial discrimination, even if we were still at the mercy of it ourselves.

Why keep all that racist stuff in the Constitution?

Why are the Voice and the non-discrimination clause considered alternatives; why can’t we have both? And why is the races power being left as-is; despite being fundamentally flawed?

If you know what the colony is trying to achieve in accordance with decolonisation General Assembly resolutions 1514 and 1541, it sheds light on the issue. Going from removal of racism, to the Voice was a switch from “integration” to “association” decolonisation pathways.

The non-discrimination clause prepares for Integration

General Assembly Resoultion 1541 outlines the conditions for the “Integration” decolonisation pathway.

Principle VIII

Integration with an independent State should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government.

A/RES/1541(XV)

If you evaluate the Australian constitution and recent events, then Australia fails this.

Firstly – the “races power” is used to discriminate to the detriment of Aboriginal and Torres Strait Islander peoples. That’s textbook State discrimination against the peoples who are under colonial occupation.

Fail.

The Northern Territory Emergency Intervention required the suspension of the Racial Discrimination Act. This shows that racial discrimination is not just constitutional in a theoretical sense, but that deliberate and premeditated racial discrimination occurs.

Another fail.

Aboriginal and Torres Strait Islander peoples are not even in the constitution. The Australian constitutions represent the British Subjects of the colonies, plus those who have immigrated under that body of law, plus the descendants of all those peoples. They later constructed a conceptual Australian citizenship and rolled with jus soli (soil birthrights) for a few generations to fabricate a connection with the land. But the entire constitution is still predicated internationally on the Crown claim of Terra Nullius. There is no Treaty. There can be no proof of equal rights of citizenship when it is not clear how Aboriginal and Torres Strait Islander peoples became Australian citizens.

Fail again.

What fixes these failures is recognition with consent, reforming the races power and adding a non-discrimination clause. These reforms would clear the path and enable Integration under the General Assembly Resolution 1541 criteria. But the colonised peoples weren’t having any of it. No Consent. Time for plan B.

The Voice is a request for Association

The Uluru Statement is a request for asymmetric federalism. Federalism is a form of free association. (see Associated State) Let’s look at the requirements for free association. Note that there is no mention of discrimination;

Principle VII

(a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.
(b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.

A/RES/1541(XV)

First and main point – unlike the rules for integration, there is nothing here about discrimination.

Note the similarities with this Principle VII and what played out in the Referendum Council process. Mark Leibler and the legal team would have had this resolution printed out and at the forefront of their minds in the backrooms of the First Nations National Constitutional Convention. Consent for association was the ultimate goal. These similarities to Principle VII and the Dialogues (going by the “official narrative”) in point form:

  • They wrote a First Nations internal constitution without outside interference (no media or non-indigenous people allowed at the Constitutional Convention).
  • They had a wide representation geographically, representing the cultural characteristics of the territory. While that doesn’t make the cut under Aboriginal law, it looks plausible to the outside world and ticks the box.
  • They made an offer to the Australian people to associate by way of federalism. A free and voluntary choice – as the delegates made the offer, it was not imposed on them by the government.
  • Under association, the Voice retains the freedom to modify the status of the territory. They also retain “Spiritual Sovereignty”, some kind of undefined, nebulous sovereignty. The freedom to modify the status of the territory is to be exercised immediately on federation of the Voice. The delegates endorsed the Declaration of Recognition, or “recognition outside of the constitution”. This endorsement consents to modify the status of the territory to a newly independent democratic federation of which the Voice is a member.

The absence of discrimination is not a requirement under the General Assembly Resolution 1541 criteria for association. This is the real reason why these proposed anti-racism changes were dumped – the colony doesn’t need them anymore. They don’t want any unnecessary limitation on their power.

The ‘sword and shield’ reasoning is smoke and mirrors to avoid the now redundant racial discrimination clause being included. I seriously doubt the delegates were conscious of this.

Reason for optimism

The amazing thing about this, is that Australia seems to be putting an obscene effort towards attempting decolonisation under the UN decolonisation resolutions. And they are doing it with great amount of deception – which shows they don’t want people catching on what’s happening.

This is strong evidence that the options under 1514 are still on the table waiting for the colonised peoples to exercise them. Just because we are outnumbered by settlers 33 to 1, doesn’t foreclose on our right to self-determination under resolution 1514.

To exercise this right together as sovereign peoples, we can emulate the dialogues, but do it proppa. The Yulara dialogues have shown that it must be legally possible under 1514, we simply need to keep the UN resolutions in mind. Have meetings from the ground up with the strength of lore. There needs to be choices made whether to go for Independence, Association or Integration. Every Nation might not necessarily go down the same path. This is rightfully the choice of the sovereign peoples, and all options should be understood, be on the table and discussed.

The options might be hard to visualise because no settler-colonial state has gone down this path before. The options will look very different when exercised under a settler-colonial state vs. under a franchise colonial state. We will be breaking new ground and there will be much to learn and many decisions to be made.

Building strong community decision-making mechanisms is vital. This is where our lore and our connectivity as peoples come in to play. These are our strengths. This is something which everyone can play a part in strengthening. There is always something you can do to help your community, even if it’s just checking in for a yarn.

We are all linked by Songlines, these are a form of international law as they are shared law between nations. Songlines prove we are capable of entering into international agreements, and that we have done so for millenia. The Songlines can be connected – or recognised – by the outside world. This equates to diplomatic recognition in the international sense. It doesn’t mean we have to become members of the UN, that is a choice that can be made later.

Just like Israel will never recognise Palestine, Australia will never recognise our sovereignty as being separate to theirs. But like recognition of Palestine, some countries will see us. We are colonised peoples who have never agreed to ceding, integrating or sharing our sovereignty. The international community has a jus cogens duty under customary international law to recognise us and allow us and assist us to exercise our free choice of self-determination. We just need to leverage our lore to reach out and speak to the world loudly enough so they hear us from under the weight of colonial oppression.

The 1967 Referendum: an alternative perspective

~ Jessica Savage ~ 1 Comment

This week is the anniversary of the 1967 Referendum. I am going to show that giving Aboriginal and Torres Strait Islander peoples “equal rights” was for the benefit of the colony, and not for the benefit of Aborigines as it was sold to the Australian public.

Firstly: the movement was initially pushed by Lady Jessie Street. She was married into the Street dynasty, her husband was Chief Justice of the Supreme Court of NSW. She started advocating for equal rights for Aboriginal people after returning from a trip to England in 1956. The Aboriginal equal rights campaigns of the 60’s were initiated by the elite of colonial society, and plausibly tied to the mother country itself.

In 1958, a meeting between various Aboriginal Advancement organisations was held in Adelaide. This became the Federal Council for Aboriginal Advancement (FCAA), later renamed to the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI). At the meeting, they discussed the need for “integration” and not assimilation of Aborigines. They spoke of the need for the federal government to have constitutional power over Aborigines and the need of “equal rights”.

In 1960 the United Nations General Assembly passed resolution 1514 The Declaration on the Granting of Independence to Colonial Countries and Peoples. A related resolution; number 1541, contained two alternatives to full independence of the original, colonised peoples – “association” and “integration”. These two alternative options are very convenient for settler-colony states, as they avoid the possibility of settler repatriation – like what happened in Algeria where the settlers had to return to France. Not coincidentally, “integration” is the term that was used throughout the 1960’s domestically in Aboriginal affairs, and had already been emphasised in the inaugural FCAA meeting two years prior.

The qualifying condition attached to decolonisation on the basis of “Integration”, is that the colonised peoples must have equal rights and be free from discrimination. (See A/RES/1541(XV) Principle VIII)

Do you see now? Equal rights for Aborigines was needed for Australia to decolonise itself by the UN “Integration” rules.

In 1961, a House Select Committee on the Voting Rights of Aborigines was held. The report of the Committee makes references to the progress towards “Integration”.

Australia got a seat on the Special Committee in 1961. The Special Committee of the UN was tasked with supervising decolonisation of the world. This is probably why peoples under the subjugation of settler-colony states have never had the opportunity to decolonise – because those benefiting are guiding the UN decolonisation process. The committee itself evaluates and maintains the list of Non-Self-Governing Territories. Australia – despite it’s clear colonial foundations – was never put on the list. Neither were other British settler-colonial states. It seems that settler-colonial states have been trying to decolonise themselves secretly – like a kid scrambling to do their homework under their desk – hoping no one notices they haven’t done it yet.

During the 60’s, Western Australia and Queensland finally allowed state voting for Aborigines.

With the advocacy of the Federal Council for Aboriginal Advancement, tag-along authentic grassroots campaigns, and government action this all eventually led to the successful 1967 referendum.

That should have been the end of the story. Aborigines would have been integrated, then Australia would have declared independence.

But then Land Rights, Sovereignty and other grassroots movements happened. Lack of consent in 1967 (also required under the UN decolonisation resolutions) meant that the colonisation issue continues to drag on in it’s latest iteration in the form of constitutional reform. There was a major change in 1970 in the decolonisation rules (discussed more in this post) that required a new approach. The new thought-weapon is now the so-called “Indigenous Rights” movement. This movement, just like the 1960’s “Aboriginal Rights” movement, is intended to shepherd colonised peoples away from their full range of choices for self-determination in the international sense.

It’s very important that all colonised peoples understand their options under the original UN decolonisation resolutions.

Self-determination – A Roadmap

~ Jessica Savage ~ 2 Comments

“All peoples have the right to self-determination”

International Covenant on Civil and Political Rights (ICCPR)

But some peoples have a more strongly implemented right to self-determination than other peoples. Colonised peoples have the right to self-determination, and indigenous peoples also have the right to self-determination, but this right is implemented very differently in both cases.

So it is important to distinguish the difference between colonised peoples and indigenous peoples, because they have different support structures in exercising their right to self-determination.

A peoples (or a polity, nation, or political community) can be colonised and not indigenous. For example, African slaves from Spanish-run slavery in Jamaica escaped and lived in the Jamaican jungle. But there were already indigenous peoples living on the island – the Arawak and Taino peoples. Later on, a British wave of colonisation came, and the non-indigenous, African Jamaicans were colonised. So these non-indigenous peoples were for a time, colonised.

Likewise, a peoples can be indigenous, but not colonised. There’s plenty of examples of this in the world. Some peoples have already decolonised, and others that were never colonised at all. Many indigenous peoples don’t need special “indigenous rights” despite being technically indigenous, because they are not in a position of subjugation.

We just happen to be both indigenous and colonised. So we have two very distinct pathways of self-determination available to us.

The Right to self-determination for colonised peoples

Self-determination for colonised peoples is: colonised peoples have a right to freely decide for themselves their international political status.

There are 3 basic self-determination pathways to decolonisation. They are independence, association and integration. I talked about this more in the “UN Decolonisation” video (see Thinking Sovereignty page on Facebook), but this post is to show how it fits in a bigger picture of self-determination.

Independence is the complete removal of all colonial control and the birth of a new system, or rebirth of the pre-colonial system.

Association is a consensual arrangement where the colonised peoples retain the freedom to modify the international status of their territory, and also retain the right to determine their own internal constitution without outside interference; yet in some ways are still administered by a seperate, independent government.

Integration is where the colonised peoples surrender their right to determining their own constitution and territorial status, and agree to become part of another independent state.

There is another option. This is what ever the colonised peoples decide for themselves. The peoples can choose another option, or a combination of these three options. The important thing is that the peoples themselves freely decide their political status as part of an international State. To assert a personality on the stage of international states.

These 3 paths under UN resolutions going back to the 50’s. Decolonisation is an established peremptory norm in international law, that means there are no “if’s or but’s” allowed; no excuses, and the international community has a binding obligation to assist peoples under colonial control in choosing and realising that choice.

Now given those options – put yourself in settler-colonial shoes. These options, especially the option of independence would amount to a internationally mandated revolution against the settler state. It would be a disaster if it were freely chosen by the colonised peoples. The international community has; under their own customary laws, an obligation to support the colonised peoples in their choice. The Montevideo Convention, and other international law also supports the colonised peoples. The only real solution for a settler colonial state is to funnel peoples under colonial subjugation towards choosing more favourable options, ones that benefit the settler state.

These days, you can’t use force to gain consent; at least not openly. So you have to persuade my other means. Carefully present those peoples under alien subjugation with limited options, and hope they say “yes” and don’t ask too many questions.

Another thing you can do as a settler state, is keep off the UN decolonisation target list. The UN maintains a list of Non-Self-Governing Territories. A special committee maintains the list and supervises the decolonisation process. The problem is that on the committee itself sits member states who directly benefit from settler colonialism. The police are policing themselves. Nevertheless, this political interference does not change the resolutions made or the established peremptory norms. As long as settler-colonial countries can keep off the list, and the colonised peoples are not aware of their options – then all is good for the settler state. But in the meantime the settler colonial state will try to funnel those subjugated peoples down the path the colony has chosen.

The Right to self-determination for indigenous peoples

The right to self-determination for “indigenous peoples” is a very different concept to the right to self-determination for colonised peoples. Indigenous peoples rights are written up in the United Nations Declaration on the Rights of Indigenous Peoples.

This declaration; once adopted, is a non-binding obligation to States to protect indigenous minority rights. The language used in the declaration makes it clear that it is mainly about indigenous peoples who are a minority within the larger nation state. The declaration writes about the relationship between “indigenous peoples” and “States”. It is not a State-to-State or a Nation to Nation relationship, it immediately implies a majority/minority dynamic.

This relationship dynamic is not applicable to colonised peoples who have not yet exercised their right to self-determination in the international sense. Colonised peoples; who also happen to be indigenous, still have the opportunity to negotiate (or re-negotiate) internationally-binding treaty terms as part of an association arrangement. This would allow them to prioritise and secure terms that are most important to them, and secure those terms under international law. This is far more secure than aspiring, non-binding declarations. UNDRIP is unnecessary for colonised peoples.

On the roadmap image I have illustrated this in yellow on the right side of the map. Decolonisation in blue has to happen first for UNDRIP to be relevant.

Note the capitalisation of some terms used throughout the UNDRIP. States is a proper noun with a big “S”, but indigenous peoples is used as an adjective/noun with a small “i”. This is not being disrespectful, it means that States is clearly defined, whereas indigenous peoples is a more general, non-specific term. One big problem with UNDRIP; at least for colonised indigenous peoples who still retain a distinct status from the colonial nation state, is that there is no hard definition of “indigenous”. There is a UN working definition from 1986 (scroll pdf to point 379) which is roughly based on cultural continuity.

Ultimately it is up to States to implement in their own legislation and definitions of whom; amongst their own state’s population, are the “indigenous peoples”.

Some countries such as Bangladesh and Indonesia have denied having any indigenous peoples at all. In Africa, only small tribal minorities are officially considered to be “indigenous”, even though most African people in Africa are indigenous to Africa. There is a cultural distinction and cultural continuity aspect to the term. I think the term will one day be seen as a “social construct” in the same way race is seen as outdated today. The term is a mixture of a peoples origin, their connection with the land, their subjugation and miraculous survival under waves of human migration crashing on top of them, and a Disney-like perception from outsiders of their cultural “uniqueness”. It is a narrow term, and there is not much scope for change and adaption in the fast-changing world. Neither is there much appreciation for more subtle aspects of identity and practices, aspects which may continue in the “non-continuous” “non-authentic” cultures that doesn’t quite make the official definition.

Implications in Australia

One of the assessment principles of the Uluru Statement is that it

Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.

Final Report of the Referendum Council

This is not self-determination for colonised peoples as in General Assembly resolutions 1514, 1541 etc., It is self-determination for indigenous peoples which is a very different thing.

In Australia, the term “Aboriginal and Torres Strait Islander peoples” is a properly defined legal term, and by the criteria is determined by the Aboriginal and Torres Strait Islander community itself. “Indigenous Australian” is at this point in time used interchangeably with “Aboriginal and Torres Strait Islander peoples”. BUT… that is only at this current point in time. Ultimately, the definition of the term “Indigenous Australians” is the prerogative of the Australian people, not of Aboriginal and Torres Strait Islander peoples. There is a danger that one day you may wake up to realise, yes you are still Aboriginal, your community still accepts you, you have technically decolonised, but your community cannot show a strong enough cultural continuity to be “Indigenous Australians”. Or it could backfire in the other direction – when Pauline Hanson reckons she is an “Indigenous Australian” – she might be right depending on how Australians define the term. UNDRIP will only help those who are officially “indigenous”.

I suspect that the criteria will be tightened rather than loosened; and “Indigenous Australian” will eventually mean a Native Title holder. I doubt it is a mere coincidence that Native title holders are the only Aboriginal and Torres Strait Islander peoples who have proven themselves to comply with the absolutely most restrictive interpretation possible of the UN 1986 working definition (refer to section 380). Logically, if Australia wants to restrict the definition of “Indigenous Australian” as much as possible to reduce their obligations under UNDRIP while still being technically compliant, then the Native Title holder criteria adapted as a new “Indigenous Australian” definition fits this perfectly.

Conclusion

UNDRIP is; for colonised peoples, a big carrot leading them up a mine-ridden path. There are better options already existing from the UN decolonisation framework, there is no reason why these options should not be available to peoples under the “settler” brand of colonial subjugation. There are ways to bring better options for self-determination up and make them available, ways both for peoples who have no treaties (eg. in Australia and British Colombia) and those that already have treaties but never ceded sovereignty over their territory. One important thing is that there is wider awareness of these options. I will write/talk about more in my next post or video about how to make these paths available.

Here is the full roadmap image:

See also the Facebook page “Thinking Sovereignty” for the UN Decolonisation video for more detail.

Declaration of Recognition

~ Jessica Savage ~ 2 Comments

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.

Third Chamber – revisited… And welcome to my new visitors

~ Jessica Savage ~ Leave a comment

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.

First Peoples’ Assembly of Victoria, Contract law and Constitutional Reform

~ Jessica Savage ~ 2 Comments

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.

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.

Redefining Sovereignty – Part 1 of 2.

~ Jessica Savage ~ Leave a comment

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.

Truthtelling – Explained

~ Jessica Savage ~ Leave a comment

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.

Recognition in the Preamble

~ Jessica Savage ~ Leave a comment

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.