This is a response to the blog post on the Indigenous Constitutional Law blog by Sean Brennan titled – “NAIDOC Week 2021: The Wording is Not the Problem“.

In summary, Brennan says there does not need to be any detailed wording for the reforms if a well-defined purpose has been established. And a purpose is clear, that is to give First Nations a guaranteed say in laws made about them. The wording can be deffered until later, this is totally normal constitutional practice.

I don’t mean to pick on this article specifically, but the article is a short’n’sweet summary of this argument that has come up a lot recently. But there is a reason why this argument is flawed.

It is to do with the laws of contract formation and contra proferentem. I have already posted about this in more detail here.

Shortly after the Uluru Statement offer was made – Turnbull claims he received it as a take-it-or-leave-it offer from the Referendum Council. In the true spirit of colonial trickery, we don’t know if this claim is true or not as the Referendum Council has left no record either way. Even if it is true, the Referendum Council no longer exists, so they will never be held accountable for this blunder.

This matters – because if detail is insufficient, and the offer really is take-it-or-leave-it, it is almost guaranteed that we will be screwed over.

Normally when take-it-or-leave-it offers are made they are very detailed. Think of a contract for a car hire for example – they are typically pages and pages of fine print. There’s a good reason for that, because the drafter must cover their own arses by minimising ambiguity in every which-way possible due to contra proferentem.

Contra Proferentem: A Latin term used in contract law referring to the principle that a judge will construe an ambiguous term against the party that imposed the inclusion of the term in the contract during negotiation or drafting.

https://www.law.cornell.edu/wex/contra_proferentem

But the lawyers on the Referendum Council have – at least according to Turnbull, drafted a complete take-it-or-leave-it offer with ambiguity. This is not normal. The concept of constitutional deferral is being used as an attempt to explain this anomaly, because people out there instinctively know something’s not right.

One major ambiguity in the offer is the meaning of “the constitution“. Another ambiguity is the request for a referendum, as it is not certain that a section 128 amendment is being requested.

We have been set up to fail. And once all is done, we won’t even know who is responsible. It’s either Turnbull for falsely claiming it’s take-it-or-leave-it, or it’s the lawyers behind this who will be sitting by a pool somewhere sipping cocktails at our expense.

Yeah it’s true, the wording is not the problem. Laywers who are not acting in our interest purporting to do us a favour are the problem.

Image by marucha from Pixabay

If someone could see only in black and white, what would they see if you showed them a rainbow? They would see grey where there is no grey.

From their perspective, to see grey would be to see a contradiction. They cannot comprehend anything outside black and white. They reject the rainbow.

I see this a lot when trying to explain things to people with a western binary-type mindset. It’s very hard for them. Sometimes it’s impossible to get anything through.

People with a binary mindset make very good ‘useful idiots’.

In political jargon, a useful idiot is a derogatory term for a person perceived as propagandizing for a cause without fully comprehending the cause’s goals, and who is cynically used by the cause’s leaders.

https://en.wikipedia.org/wiki/Useful_idiot

They only see two sides, they pick one. And they diligently stick to it.

How can one avoid this trap of binary thinking?

Aboriginal culture has the answer here. It’s training yourself to listen carefully and in a non-judgmental way. And listening with an awareness and appreciation of context of what you are hearing.

You don’t always have to take a side. Sometimes the best place to sit is on the fence, and just quietly watch.

Concentrate on trying to deeply understand and empathise.

Let go of your ego, accept that you don’t always have to have all of the answers. You don’t always have to be right.

Regularly try to ‘debunk’ and challenge your own beliefs. Especially when you notice something in the world which seems to contradict your belief. Ask yourself why that contradiction is there. Go hard, take out the trash – because holding onto false assumptions will blind you.

I think if this was widely practiced, most propaganda simply wouldn’t work.

To be honest, when I started hearing about the book Dark Emu, I was skeptical about the claims of Aboriginal agriculture, and I still am. However, even though I am Aboriginal, that doesn’t mean I’m in a position to know that the claims in the book are wrong or right. I don’t know what every nation practiced, I can’t speak for other nations’ practices. I will leave it up to the nations that Pascoe writes about to make any necessary corrections. I never read the book, as it simply didn’t interest me. But I watched as it captured the popular imagination of many people, and generated discussion about Aboriginal culture – which I think is a welcome thing.

But there are a few things about the Bruce Pascoe saga that make me suspicious that it has been a coordinated propaganda campaign running with the constitutional assimilation project. Maybe you want to call me a ‘conspiracy theorist’, but if you stop and consider what is at stake in the battle for sovereignty – conspiracy is to be expected, including coordinated propaganda campaigns. I think Bruce Pascoe sits at the center of such a campaign.

Questioning Pascoe’s identity

Firstly the initial attacks on his identity by concerned Australians. I stumbled on a very creepy website a year or two ago where someone named Jan Holland went through Pascoe’s family tree combing for evidence that he has no Aboriginal ancestry. Stalking someone’s family records like that and publishing them presumably without their consent is creepy. It makes me uncomfortable that light-skinned Aboriginal people can be targets of random weirdos going through their family records. But the main problem I have with this questioning of his identity is this;

We – Aboriginal people, as a polity – should have the prerogative to choose whether or not someone belongs to our community, regardless of whether they can prove ancestry. The descent requirement has been imposed on us.

As an example to illustrate – suppose I were to go and pursue German citizenship because I now meet Germany’s requirements having lived here long enough. The decision to include me in the German polity is between the German community, their criteria they have chosen, and myself. So – on the basis that I do not have any German ancestry – are you going to complain to the German government that I shouldn’t be eligible for citizenship? Expecting all members of the Aboriginal polity to have proven ancestry is like telling the Germans they are only allowed to naturalise people who can prove already existing German ancestry. There is a double standard when it comes to colonised peoples to determine who belongs to their polity. Ancestry and blood quantum requirements are imposed and designed to eliminate us.

I don’t care if Bruce Pascoe has not a drop of Aboriginal blood – it is the choice of the Aboriginal people to include or not include him in their polity (in conjunction with Pascoe’s own self-identification), and to include ancestry or any other requirements they choose. It is certainly none of concerned Australians‘ business.

I suspect these concerned Australians are in cohorts with the colonial elite, they knew all along Pascoe has no proven blood ties and they arranged him the accolades and awards to build him, put him in the spotlight so they could publicly tear him down. They constructed an artificial narrative about a scourge of fake light-skinned Aborigines taking money from the “real” Aborigines in remote communities. They also helped cement in people’s minds the legitimacy of the imposed ancestry criteria that denies us the prerogative to freely decide who belongs to our polity.

False dichotomy

A book “debunking” Dark Emu has come out called “Farmers or Hunter-Gatherers? The Dark Emu Debate“.

False dichotomy is propoganda 101 – throw nuance out the window and present two narrow categories, herd everyone into two camps, and set them to battle each other.

While I haven’t read Dark Emu, I have read “1491: New Revelations of the Americas Before Columbus” by Charles C. Mann. This book demonstrates there is something other than agriculture and hunter gathering – a nuance that is not fully appreciated by a Eurocentric worldview. There is some hunting and there is some gathering, but it is not purely opportunistic; it involves extensive land management practices that are not concentrated on designated plots of land. I don’t even know if there is an English word for this concept. Even before I read this book, I knew that Aboriginal people practiced this kind of concept.

One irony about the Farmers or Hunter-Gatherers book is that it accuses Pascoe of adopting a Eurocentric world view for labelling Aboriginal practices as “agriculture” – yet the title of the book does the same by implying an equally Eurocentric label of hunter-gatherer.

Josephine Cashman has primed this hunter-gatherer label with her little redneck army and her people on the ground™ over the last few years like it was pre-planned from the start. Marcia Langton played the opposite side by talking up Pascoe’s book and working on getting it in school curriculums. Concern trolls are now “outraged” because Dark Emu content is in curriculums and the children are being fed left-wing lies. Sounds like we have been setup for an ideological war.

So – I am curious – what is the agenda behind labelling us either way? Colonialism itself can no longer be justified on the basis of technological superiority, so there must be some other agenda. There are possible clues in the criticism of Dark Emu.

Spiritual vs Material rights

(Sutton) was “disappointed” that in attempting to describe Aboriginal land use, Pascoe ignored the importance of spiritual tradition and ritual.

…..

In contrast to the picture conveyed by Dark Emu, the greater part of Aboriginal traditional methods of reproducing plant and animal species was not through physical cultivation or conservation but through spiritual propagation,” Sutton writes. “This included speaking to the spirits of ancestors at resource sites, carrying out ‘increase rituals’ at special species-related sites, singing resource species songs in ceremonies, maintaining rich systems of totems for various species that were found in the countries of the totem-holders, and handling food resources with reverence … A secularised notion of Aboriginal cultivation, devoid of spiritual dimensions, did not exist in Australia before conquest.”

HAS DARK EMU BEEN DEBUNKED? PETER SUTTON AND KERYN WALSHE TAKE AIM IN NEW BOOK

I think a wider political agenda behind this manufactured debate is to emphasise Aboriginal attachment with the land in the spiritual dimension, but minimise the material connection. The groundwork has been set in the Uluru Statement which asserts sovereignty as a purely spiritual notion.

They are trying to build a narrative that pre-invasion Aborigines had only superficial material interests in the land – as if our ancestors were breatharians living on metaphysical energy waves and didn’t need material/physical sustenance from the land.

The land can’t have been materially stolen if it was never possessed by Aboriginal people in a material way.

Of the two Eurocentric labels – farmer and hunter-gatherer – the hunter-gather label fits the spiritual-only possessor narrative well. The farmer has an active material interest in the land – the farmer directly and very visibly makes an impact on the land. The hunter-gatherer in contrast – has a passive material interest – and with a bit of clever sophistry this can be framed as a purely spiritual interest.

We need to be dissociated from our material interest in the land for the Uluru Statement to be successfully pulled off. This is the agenda behind labelling us as hunter-gatherers.

Let me put this in another way – Aboriginal land rights/interests are merely spiritual, cultural rights. We have no right to build homes, or make a living or profit off our land – these rights are reserved for settlers. This is what is meant by “sovereignty is a spiritual notion”.

Divide and conquer

It’s very clever the way they have divided the two sides up.

In the blue corner we have the materialist/Pascoe the identity-fraud/leftists/light-skinned city Aborigines.

In the red corner we have the spiritual/experienced academics/the right/and the real Aborigines on the ground™.

Side by side – you can see what side is being set-up to win.

When looking at how this is playing out – it would not surprise me if Dark Emu is riddled with factual errors and Pascoe has no Aboriginal blood. The propaganda machine is gearing up to paint “City” or “east-coast” Aboriginal people as out-of-touch both spiritually and factually – supporting pseudoscience. “East-coast” Aboriginal people have a powerful voice – they could derail constitutional assimilation, and they need to be neutralised. This campaign is designed to discredit them through association with Pascoe who is being slowly revealed to be a fraud.

As for the “real”, “remote” Aboriginal people – they are much easier to control by using them in the same way people like Josephine Cashman and Peter Sutton do. Cashman and Sutton do not stand in their own authority, but use their people “on the ground” or “The Old People” (yes – they actually use these phrases) as their crutch to give them legitimacy.

Cashman is Aboriginal, she speaks her own mind (which I highly respect, and I often agree with her) – but she also speaks and re-interprets for a small posse of Aboriginal women from regional communities rather than simply giving them a direct platform. This is not correct cultural protocol – but white Australians don’t know that. Sutton is not Aboriginal at all. Both continually emphasize having spent a lot of time with ‘authentic’ Aborigines.

By careful emphasis on selective accounts from people “on the ground“, the colonial powers can control our narrative to the Australian people. They can also pit the east-coast and the “real” Aboriginal people against each other – which will divide us up nicely in preparation for when the time comes to decide who is indigenous and who is not.

Image by Manfred Richter from Pixabay

I’m going to explore this question of who is Australia’s head of State using Hobbes’ Leviathan concept of a Commonwealth.

The Hobbesian concept of a Commonwealth

In terms of the Hobbesian concept of a commonwealth, see the image below;

This is where the term ‘head of state’ comes from. You have a king and a kingdom. It’s a one-to-one relationship; one king for one kingdom, and one kingdom for one king. The King is the head, his subjects make up the body – or the body politic. The King is a representative figurehead for the subjects, he is accountable to them, they pledge allegiance to him, and together they rule over the kingdom.

This is a natural development from original absolute monarchy type arrangements like Pharaohs or emperors. It is a natural development – because absolute dictatorship will not work in the long term. Eventually an absolute ruler will come to power with weaknesses which will be exploited by the ladder-climbers who surround him – these ladder climbers will eventually become the men behind the curtains who use their influence to become de-facto rulers. The figurehead ruler is always looking behind his shoulder for those who envy his position; if he wants to stay in his position he needs to be good at playing the game of appeasing those directly around him. Eventually the absolute ruler becomes subject to the wishes and demands to an increasingly larger number of his subjects through the fear and threat of popular revolution, and he becomes a mere figurehead with a lot of discretionary power that is not often exercised. He is no longer a dictator, but a symbol. A symbolic head on the back of a coin. The true power is then held by all his horses and all his men (the political elite), or alternatively by all of his subjects depending on their inclination for revolution (hello France).

As for the discretionary power of the Crown in practice – if you watch the Netflix series The Crown – you can see how this plays out in a constitutional monarchy. Queen Elizabeth II may have a lot of power on paper, but she can’t do whatever she wants – far from it. It is the political elite ladder-climbers who manipulate from behind the curtains.

The Magna Carta

Under the Hobbesian concept, this head of the commonwealth has a social contract with his subjects and together they hold power over the land (see first image). This social contract concept ties in with the older Magna Carta.

Australia has a special relationship with the Magna Carta. The Magna Carta conjures up an implied social contract between the Australian people and the British Crown. Without this contract dragged out of the cellar – from the subjects’ perspective, Australia is a benevolent penal colony under absolute rule; a constitutional monarchy where the constitution is not created from the authority of popular legitimacy, and one where the Crown has little to no contractual obligations to it’s subjects.

A related point – why doesn’t Australia have a Bill of Rights? Because that would place obligations on some party, and it is not clear in Australia’s case who that party is – whether it be the foreign Crown or the squatter Parliament with no autochthony. Also related – why is Australia one of the few countries with compulsory voting with penalty of fine? Both these points relate because there is no contract between the Australian people and it’s government. There is no consent of the governed; even for the settlers (and certainly not for the colonially occupied).

The ironic thing is that the Magna Carta has not even been paid lip-service in it’s application to Aboriginal and Torres Strait Islander people. It is laughable to think that there was any such contract made or honored between the native peoples and the imposed Crown.

What is Elizabeth II the Queen of?

Australian citizenship as a concept arose from the Nationality and Citizenship Act 1948. A few years later in 1953, Queen Elizabeth II was coronated as the Queen of her domains. So at the time or her coronation, Australians; or British Subjects resident in the Australian colonial states – were simultaneously both British Subjects and fresh Australian Citizens.

The concept of Australians being British subjects was dropped with the Australian Citizenship (Amendment) Act 1984, a couple of years before the Australia Acts were passed.

So in 1953, one Queen was coronated over her single Hobbesian ‘Queendom’; Queen of her British subjects all around the world in the various dominions. What happens if a coronation were to happen now – with Australians supposedly not being British subjects anymore?

The colonial British have warped this concept of a Commonwealth to be more inline with the original leviathan of mythology in the form of a multi-headed beast. Each separate dominion has effectively spawned a new cloned head of the British Empire. There were originally six dominions from the Imperial Conference of 1926 – Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State. The single kingdom made up of dominions, with one Crown is now a complex arrangement of many cloned, crowned heads.

Australia is also separately described as a commonwealth within itself – with six original states. Along with the new proposed ‘First Nations’ state – will be a seven-headed Hobbesian leviathan – just like mythological seven-headed beasts of the sea. This is even represented on the Australian flag in the Commonwealth Star floating on a British naval ensign – like the seven-headed sea-monster that intends to swallow us up.

If Australia is a Commonwealth in it’s own right – as it claims to be since 1901 – then it should have it’s own head of that Commonwealth. Who, or what position is that head? What is the head of the colonial beast?

An awkward situation

Back to the question asked earlier – what happens if a coronation were to happen now; with Australians not being British subjects anymore? Would her successor need to travel around and have multiple coronations to accommodate the now separate, sovereign “kingdoms”?

Australians are not supposed to be British subjects anymore – British citizens with dual Australian citizenship are not even allowed to stand in Parliament under the way they apply section 44 of the constitution since 2017 (it is no coincidence the dual citizenship saga began shortly after the Uluru Statement was issued – they are working on a pre-planned timeline). The land is not supposed to be under the authority of the British crown anymore – but under the Australian people. Since 1986, it really doesn’t make sense for a foreigner to be crowned the King/Queen of Australia.

There’s another reason why it does not make sense. The Uluru Statement asserts spiritual sovereignty. For that assertion to be properly respected – the Archbishop of Canterbury cannot use his spiritual power to coronate the successor ‘Queen of Australia’. For the archbishop to do so would be in flagrant denial of the spiritual sovereignty declared at Yulara/Uluru. The spiritual sovereigns of the land must be the ones to coronate the King or Queen of Australia. This means Aboriginal people will need to coronate Charles as the King of Australia – an embarrassing and comical proposition. This is why there is such a urgency to get this sorted before the successor is coronated – so give or take – a year or two after Elizabeth II passes.

Who is the Head of State of Australia?

My answer is – the head of state of Australia is a purely abstract and symbolic head called the “Queen of Australia”. Queen Elizabeth II is only acting in this position – but does not own the position. She has NEVER been coronated in this role – she was coronated over her British subjects who reside around the world including in the Australian states.

This newer, abstract, symbolic Australian Crown is separate and distinct to the British Crown. It has it’s own set of autochthonous regalia (eg. the coat of arms with kangaroo and emu). Australia is standing with the back-foot on the British Crown and the forward-walking foot on the Australian Crown – but the weight is still on the leg of the British Crown. Right now it is attempting to shift that weight onto the forward leg, but can’t do so without first fixing the “Aboriginal problem”.

If the Hobbesian head of state; or Australian Crown has obligations to the Australian people – who, or what position holds these obligations?

The Governor General is not the Head of State – it is merely a local proxy for the colonial Crown, with no direct obligation to the Australian people.

Parliament – No one in parliament has an obligation to the Australian people either – their oath is to “Her Majesty Queen Victoria, Her heirs and successors according to law.” This includes the Prime Minister. The Prime Minister isn’t even a specified role in the Constitution Act (1901).

The British Crown – continues to have an obligation to it’s British subjects through the Magna Carta and other conventions. But the Crown is administratively detached since the Australia Acts (1986), so these obligations are meaningless and not accountable or enforceable (case in point the “Royal” Commission into Aboriginal Deaths in Custody began AFTER the Australia Acts and was effectively ignored for decades). Furthermore – Australians aren’t supposed to be British subjects anymore. No one can explain how Aboriginal and Torres Strait Islanders became British subjects, and/or why obligations under the Magna Carta have been completely ignored in the Aboriginal context despite Australia bragging that it is somehow a foundational document.

The answer to the question of what is the “Queen of Australia” – is a three-way interplay (with a pivot point).

The Australian parliament and institutions (as British crown creations under their written constitutions) are accountable to Queen Victoria and her successors. Queen Victoria and her successors in-turn have obligations to their subjects via the Magna Carta. So Parliament and Australian institutions ARE accountable (albeit indirectly) to the Australian people – via the British Crown as proxy, and with the Magna Carta filling in the missing obligational link.

The “Queen of Australia” as an entity with obligations to it’s subjects – is a representation of this three-pronged entity holding a collective social contract with the Australian people. It’s not a standard “Crown”. It is the British Crown + Australian Parliament and Institutions + the Magna Carta. It is an abstraction.

The Pivot Point

Looking at this abstract “Queen of Australia” as a Hobbesian Head of State, it must also be an abstraction representing not just obligation and social contract – but also the head/personality and the authority of the Australian body polity and of the Australian lands.

The Australian body polity itself does not (yet) include Aboriginal and Torres Strait Islander peoples, thus it does not have true legitimacy of the land. However if the native people agree that they are part of the Australian body politic – the abstraction of the Queen of Australia will in turn inherit their autochthonous power via state “enshrinement” and recognition of that spiritual connection with the land.

In the Uluru Statement it says Aboriginal sovereignty coexists with the sovereignty of the crown. The question is – which crown? I think it means the “Queen of Australia”, or the Head of State, which itself is an ambiguous and pivoting abstraction.

The current position is that the “Queen of Australia” is – the British Crown + Parliament and Aus institutions + the Magna Carta.

The “Queen of Australia” will be pivoted (or the weight of the leg shifted) to become – Aboriginal sovereignty + Parliament and Aus institutions + Magna Carta/Bill of Rights. Aboriginal sovereignty will provide the initial symbolic spark to light the republic fire – and like Cathy Freeman lighting the Olympic cauldron – once lit it will no longer be needed. Aboriginal sovereignty will be neutered and assimilated via outnumbering and mainstreaming into the Australian body politic – which will inevitably happen because the offer made at Yulara was so pathetically weak. The final planned result being Australian peoples’ sovereignty + Parliament and Aus institutions + Bill of Rights. Australia’s institutions can mostly go about their ways, having swapped symbolic authoritative figureheads and become actors in their own authority. The end result looks like a proper, modern democratic republic like France or Germany.

The new head of State will thus be an Australian person chosen by the Australian people, representing the Australian people. The mechanics of how this is decided doesn’t really matter as long as the people are satisfied. Having an Australian Head of State – as an actual person in an actual role – is probably the number one selling point used by the republic campaign.

One good thing about this is – Aboriginal and Torres Strait Islander people will finally have basic human rights protected. But it is extremely deceptive, and will legitimise and brush under the carpet the massive theft and genocide that has happened.

Years ago, I read this article by Mark Brett and I had no idea what he was talking about. Now with some basic Catholic historical context I’m going to share in this post – I finally understood what he is hinting at throughout the article and when he writes in the conclusion –

“The First Nations cannot, and should not, ever be absorbed into a single nation-state.”

When I first read this, I was scratching my head here, because non-territorial federalism of First Nations looks exactly like absorption into the nation-state. I also remember hearing claims (but I don’t remember where exactly) that the proposal ‘will not subordinate’ First Nations. How is it not subordination to fall under Parliamentary supremacy? But now I understand – we will remain separate in the same way that the church and state are separate. And it’s true, technically we won’t be subordinate. Absorption and subordination will be prevented, ironically, using Catholic doctrine.

It’s not surprising that Catholic doctrine ended up in the Statement. Greg Craven – the former vice-chancellor of the Australian Catholic University who retired this year – has been active and influential in Australian constitutional matters for decades. The original idea of an Aboriginal representative body seems to have originated from both him and Noel Pearson. Uphold and Recognise, a think-tank which had a heavy influence over the the Uluru Statement package was co-founded by Damien Freeman, a lawyer at the Australian Catholic University

Examining the text

I’m going to break down some of the text of the Uluru Statement to show what sovereignty as a spiritual notion might mean by the authors. I will concentrate on these first two paragraphs;

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

Uluru Statement from the Heart

It’s widely known that part of this text (much of the second paragraph above) is drawn from a quote by Nicolas Bayona-ba-Meya in the Western Sahara International Court of Justice (ICJ) case. The original quote is from a third-person account (a submission made by Bayona-ba-Meya, a Congolese lawyer acting for Zaire) describing the connection that Sahrawi people have with their land. This submission was to the ICJ, and formed part of the subsequent ICJ advisory opinion. The court case itself was initiated by Morocco and Mauritania feuding over Sahrawi land. This ICJ advisory opinion was then drawn on by the Australian High Court in Mabo 2.

All up – it’s a third-person, third-hand account of Sahwawi peoples sacred connection with their land in Africa.

An opportunity was missed here to draw on a more direct account from many talented Aboriginal and Torres Strait Islander writers, poets, songwriters and storytellers to describe our connection to country and sovereignty in our own words. This assertion of sovereignty as a spiritual notion made on behalf of a single continent-wide collective of peoples falls short by not also including kinship connections that we hold with each other as individuals, connections of communities and places through songlines, and connectivity through shared experiences of colonialism. The borrowed quote sounds nice enough, but also contrived.

I believe this quote is in there because of the way it weaves together three key concepts; connection with the land, sovereignty and spirituality. There is a legalistic, hidden agenda behind this. The quote fills in a missing link.

The Uluru Statement text quoted above can be distilled into four main points.

1. An assertion being made – by people identifying themselves as being the descendants of the Aboriginal and Torres Strait Islander tribes.
2. These peoples assert an ongoing spiritual connection with the land.
3. This spiritual connection is described as “ownership of the soil” and as “sovereignty”
4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”.

Point 1 identifies the asserters as “colonial peoples” in line with the UN Declaration on the Granting of Independence to Colonial Countries and Peoples. They are the political communities that pre-date colonialism. They hold a “status separate and distinct” from the colonial occupation. They – and only they (also possibly only in their entirety) – can determine the status (independence) of the territory in question and lead to the decolonisation of “Australia”.

Points 2. these peoples assert an ongoing spiritual connection with the land; and 3. This spiritual connection is described as “ownership of the soil” and as “sovereignty” – are reinforced by borrowing Mr. Bayona-ba-Meya’s quote.

The next step once Aboriginal sovereignty is incorporated into the Australian federation is to fence-off Aboriginal sovereign power within the nation State so it is rendered ineffective. The stage is set in point 4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”

This has parallels with the concept of Papal spiritual power and Crown temporal power.

Spiritual vs Temporal power

In medieval times the Pope held both Spiritual and Temporal power. The basis of the Pope’s spiritual power is the direct connection the Pope has with God. The Pope also had massive influence in the real world – or temporal power.

Over time, much of the worldly, temporal power was delegated increasingly more from Church leaders to a coronated monarch. Church leaders would use their spiritual authority to coronate Kings with the blessing of God. Leaders of various churches still coronate monarchs today. Kings and Queens – the worldly, temporal sovereigns – are anointed by spiritual sovereigns, and derive temporal authority via mandate from the church.

In some countries today, the temporal authority of Kings and Queens is vested or partly vested in a nation state of people as a monarchy/democracy hybrid. The people are sovereign in that they hold temporal power, and the Crown acts as a figurehead representing the people. The spiritual power then sits parallel to the State in an official state religion.

The Archbishop of Canterbury coronated Australia’s colonial monarch. The Australian constitution itself was enacted by the “Crown of the United Kingdom of Great Britain and Ireland” with the advice and consent of the “Lords Spiritual and Temporal”. The English equivalent of the Australian senate – the house of Lords – has bishops and archbishops in designated seats to give the parliament authority. Colonial Australia was created with spiritual authority and continues to run from that authority.

First Nations – Spiritual Sovereignty. Crown – Temporal Sovereignty

In the Uluru Statement parallel, the temporal power is labeled the “sovereignty of the Crown”. “The Crown” is simultaneously both 1. the British Crown who was coronated in the Church of England and enacted the colonies, and 2. a symbolic figurehead of the Australian polity called the “Queen of Australia” (this is a bit complicated and I have explained it more in this post). The Uluru Statement refers to this second aspect – the local Australian Crown.

From the Uluru Statement – Sovereignty, as a spiritual notion, is the connection that First Nations have with their land and ancestors. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown“. This is exactly how the Church’s spiritual authority co-exists with a Crown’s temporal power. First Nations will take the place of the Church becoming like an Australian “Pope” – their spiritual connection with the land and ancestors is akin to the Church’s connection to God.

The colonial Queen (of British Subjects residing in the Commonwealth of Nations) has been coronated – but no one with authority has yet coronated the “Queen of Australia” (Queen of Australians as a separate body politic). The only thing missing now – is the Australian “Pope” has to coronate the Australian “Crown”. First Nations need to use their spiritual sovereignty to legitimate the temporal power of the democratic body.

At the Yulara convention, when Pat Anderson symbolically presented a coolamon to the Australian people containing a piece of paper with the Uluru Statement printed – perhaps that represented an offer of temporal power in the similar way that an orb and sceptre is presented at a coronation ceremony. A coolamon is a vessel used to carry physical, worldly objects; it makes a good stand-in to represent the material world. It resembles a large, slightly curved land mass on the earth’s surface – like the Australian continent. It is used by women to carry babies – just as ‘mother earth’ carries us all. There were a number of other ceremonial objects presented, with no explanation of the meaning. I’m not sure how this transfer of power will happen, but perhaps it will be by the treaty of federalism between Australia and First Nations, with First Nations reserving only spiritual sovereignty as their residual power.

Mr. Bayona ba Meya’s quote helped characterise First Nations sovereignty in this very specific way, as a spiritual notion. It would have been difficult to fish for something similar in consultations, especially when so many Aboriginal people are focused and still agitating strongly on Land Rights and other matters that are clearly in the temporal realm.

A sword, or a shield… or two swords?

The seemingly nonsensical “sword and shield” analogy given in the Referendum Council Final Report also starts making more sense when seen in this context.

The parallels between an anti-discrimination clause and a shield is self-explanatory as they are forms of protection. Painting an advisory-only voice as a sword seems like a stretch. But the voice as a sword analogy resonates with the Catholic doctrine of Two Swords. First Nations people are to hold the spiritual sword. The nation state will hold the temporal sword.

 “We are taught by the words of the Gospel that in this Church and under her control there are two swords, the spiritual and the temporal . . . both of these, i.e., the spiritual and the temporal swords, are under the control of the Church. The first is wielded by the Church; the second is wielded on behalf of the church. The first is wielded by the hands of the priest, the second by the hands of kings and soldiers, but at the wish and by the permission of the priests. Sword must be subordinate to sword, and it is only fitting that the temporal authority should be subject to the spiritual” .

(Unam Sanctam, Denzinger 873)

The new Australia will be running off the authority of the spiritual sword wielded by the First Nations peoples. The nation state wields the temporal sword, which is subordinate to the spiritual sword.

Those promoting the Statement may tell us we will not be subordinate, which is technically true in terms of derivation of authority. But this isn’t medieval Europe – the Pope and church leaders might still be the top of the chain of authority, but they aren’t allowed to influence much in worldly affairs, and neither will we.

Consider also what happened in France in 1905 when state secularism was established. If we frame our law in a purely spiritual way, and a strict regime of state secularism were introduced in Australia; consider the consequences. Will ‘special Aboriginal funding’ and ‘special Aboriginal treatment’ be seen as being an attack against the separation of church and state? In France they basically confiscated all places of worship as public property. What happens to our sacred sites?

A spiritual sword is not very useful in a secular world.

Title image by emersonmello from Pixabay

Malcolm Turnbull, upon accepting the Referendum Council final report, claimed in a joint media release that the Referendum Council said the offer was “take it or leave it”

The Referendum Council said the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people.

I have never seen this claim denied by anyone, but it seems to be confirmed in this sbs article here by Thomas Mayor – one of the main faces pushing the statement. Mark Liebler, Referendum Council Co-Chair also attached this same news article to his own Joint Parliamentary Select submission (no. 8) with a commendation.

The Referendum Council heard us, and they informed Government that the substantive recognition we asked for through a constitutional Voice was a “take it or leave it proposition”.

Thomas Mayor

If the offer really is “take it or leave it”, it puts First Nations people in a very vulnerable position when future problems with the enacted proposal come up. This vulnerability comes from the doctrine of Contra proferentem.

from https://en.wikipedia.org/wiki/Contra_proferentem

Contra proferentem (Latin: “against [the] offeror”), also known as “interpretation against the draftsman”, is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

First Nations people, in this case are the draftsman. Because they claim to be the authors of the proposal, it makes it very difficult for them to later contest any ambiguity in the agreement.

This doctrine means that the drafted offer should be comprehensive, clear and succinct. In my opinion, the Uluru Statement offer is not comprehensive enough to meet the minimum expectations of First Nations peoples. It does not ask for reparations, land rights, the end of child removals, implementation of deaths in custody recommendations, a right to be consulted, any specificity on when the duty to consult should be triggered, any details on the structure of the Voice such as a minimum floor number of seats the Voice should have. Yet, many have expectations that these things will result from the proposal. This lack of detail and ambiguity in expectations will bite us because of contra profentum.

I have already written about another way that will make it hard for First Nations to get out of a rotten deal by claiming they were tricked – and that is if they sleepwalk into agreements while relying on disinformation that is being spread on social media regarding non est factum.

It seems that the Referendum Council have structured things to make it as difficult as possible for First Nations people to go back on this proposal – despite the fact that many legitimately do not understand the consequences of it.

An interesting way this ‘take it or leave it’ offer has been structured, is that the Referendum Council split up some of the details in the proposal outside of the Referendum Council Final Report. As the offer is ‘take it or leave it’, this means that the offer is “it“. Only what is actually in the Referendum Council Final Report and the Uluru Statement will be legally binding.

This is why they call it “co-design” of the Voice – and not “negotiation” of the Voice. The difference is this. Co-design is where Parliament designs the Voice, while taking input from First Nations people. However – it is still 100% the decision of Parliament what the final design is. First Nations do not even rubber stamp the design. They simply inform.

If the offer were instead – not ‘take it or leave it’ – but be an offer to be negotiated, the final design outcome after negotiation of the form of the Voice would be binding. Parliament would not be able to change it without consent of First Nations people.

Making it ‘take it or leave it’ is very foolish when the offer is not comprehensive and detailed.

This trickery is obvious when you see what the Referendum Council did with regards to a Joint Select Committee (JSC) Submission, number 479. (The JSC was the step that happened immediately after the Referendum Council Final Report. )

The authors of this submission are Aboriginal members of the Referendum Council who were responsible for the design and execution of the First Nations Regional Dialogues and the national constitutional convention and the technical advisors who assisted the Indigenous working groups in the First Nations Regional Dialogues and the national constitutional convention. We are solely responsible for the views and content in this submission.

Joint Select Committee submission 479

At first glance, it seems strange that they did not think ahead to include many of the details in this submission in the final report. The details in the submission draw on the dialogues themselves, and regard things such as the design of the Voice, the possible wording for a referendum and wording for Constitutional (big C) amendment. The reason they separated these things from the Final Report is, I believe, because by putting them separate from the offer, they will ultimately not be binding. It is to give people a misleading impression that these details are part of the offer – when they are not.

These details, and anything else not spelt out in the Referendum Council Final report are optional extras – they will not be protected. This includes other subsequent chatter and pipe-dreams of having designated seats in Parliament, having a say in certain laws, or having some control over the structure and design of the Voice. This includes the outcome of the co-design process – and if you understand this, you will see that participating in co-design is a complete and utter waste of time. If you want these things to have permanence- they should have been included in the original take-it-or-leave-it offer. It’s too late to add them now.

Image by Aida KHubaeva from Pixabay