The word “Constitutional” – can mean one of two things.
1. The Commonwealth of Australian Constitution Act 1901 – the document itself. In academic literature this is often called the “Big C” constitution.
2. The word ‘constitution’ also means the composition of something. So the ‘little c’ constitution of Australia means the composition of Australia. Australia is composed of a federation of colonies, including the parts of those colonies; the structural parts such as the executive, judiciary, legislative branches and the Australian people. That is the ‘little c’ constitution of Australia.
Which one of the meanings of “constitutional” applies to the Uluru Statement?
If you look at the Referendum Council report, you will see that the “recognition” is to happen in an extra-constitutional Declaration of Recognition. “Extra-constitutional” – means outside of the constitution (like extra-terrestrial means from outside of earth).
Also in the Referendum Council final report (p11) it explicitly says that the delegates outright reject a “statement of recognition or acknowledgment in the Constitution”.
“Recognition in the constitution” that is outside the Australian Constitution Act, must therefore mean that the Uluru Statement asks to recognise Aboriginal and Torres Strait Islander peoples as belonging in the composition of Australia.
“Constitutional Recognition” possibly does not involve the Commonwealth of Australian Constitution Act at all.
Revisiting Recognition
The word “Recognition” can also mean different things. If we consider that Aboriginal and Torres Strait Islander peoples are possibly not part of the explicit composition of Australia – the context of recognition must be looked at from an international political point of view.
Australia (or one of it’s many “Crowns”) needs to diplomatically recognise Aboriginal and Torres Strait Islander peoples as being separate to Australia in order to conduct a Treaty with them to legitimise Australia’s own claims over the territory. This presents a problem – because to recognise Aboriginal people as being separate of Australia, is to admit that Australia’s own claim is sketchy.
The colonial solution is – to diplomatically recognise Aboriginal and Torres Islander peoples as being part of the composition of Australia. Or in other words – ‘little c’ constitutional recognition. All up – “constitutional recognition” – is to diplomatically recognise the sovereignty of Aboriginal and Torres Strait Islander peoples as being an integral part of Australian sovereignty.
This is substantive recognition. One of the meanings of substantive is ‘belonging to the substance of a thing’. Contrary to common understanding – constitutional recognition in the context of the Uluru Statement is not to get a mention in the text of the Constitution Act.
I suspect the Voice itself will also be ‘enshrined’ in the composition of Australia and not in the Constitution Act itself. The Referendum Council appear to have carefully structured the proposal to allow this by separating out certain parts of the proposal from the Final Report into their Joint Select Committee submission (No.479), which deceivingly makes these parts look like an integral part of the non-negotiable offer when they are not.
How to bypass this
Instead of politically assimilating into the Australian state – Aboriginal people can establish diplomatic relations with States other than Australia. This means declaring their own statehood like the Sovereign Union advocates (through UDI’s) and start building their own international relations. Building relations can be done gradually – it does not mean that immediate recognition by the entire UN is needed. This process can start as simply as sending a delegation to meet with another countries leadership, there are pacific island nations who I think will be receptive. Having a single foreign state recognise an Aboriginal nation would be a good start and may set off a chain of more recognitions.
This avoids being recognised as being part of Australia and legitimising the ongoing genocide and occupation. This will in turn force the Crown’s hand, and will either lead to the negotiated, internationally-binding sovereign Treaty that Aboriginal people expect (unlike domestic ‘agreement-making’), or could possibly lead to outright Aboriginal independence or to a new basis for rebuilding a modern Australia with the guidance and leadership of the ancient peoples of the land.
‘non est factum’ is a defense used to get out of a contract. It will not, however, get anyone out of a treaty or out of the agreement-making process.
There is a meme doing the rounds on social media amongst the Aboriginal sovereignty movement related to this concept of non est factum. The overall logic runs something like this;
non est factum is fraud.
fraudulent treaties are invalid.
Therefore, treaties entered into under conditions of non est factum are invalid.
All up, the impression is that it isn’t possible to be tricked into a treaty. If you don’t understand what you are signing because you don’t have the right information, education or advice, then the treaty will be invalid.
Lets break the three points down, The first point – that non est factum is fraud – is incorrect. Non est factum means ‘not my deed’, and can occur by honest mistake. It can, but does not automatically mean fraud. It is typically an excuse used in contract law to get out of a contract because the person signing it didn’t know what they were signing because of a disability (such as visual impairment) or some other condition. It is a weak defense and generally hard to prove in court. Also – it’s usefulness and applicability to treaties is unproven.
The second point is that “fraudulent treaties are invalid”. This is true – but we should look at the Vienna Convention on the Law of Treaties to see the full context. The convention sets out the conditions on which a treaty is invalid due to fraud in Article 49.
Article 49 – Fraud. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.
Yes – fraudulent treaties are invalid – but only if it is due to the fraudulent conduct of another negotiating State. So if it’s your own people doing the fraud it doesn’t count. In the case of the Uluru Statement – the treaty (the federation) is between First Nations and the Commonwealth. If other ‘First Nations’ people defraud and mislead First Nations people – it doesn’t count as fraud for the purposes of the Vienna Convention on the Law of Treaties. As long as the token blacks are doing the misleading and the Government keeps their hands clean – it is not fraud.
So overall, non est factum is not going to get any Aboriginal group out of this agreement-making/treaty. If in doubt – do not sign any treaty or “agreement-making” settlement.
The non est factum social media memes propagate a dangerous myth, as it gives Aboriginal people a false sense of security that they cannot be tricked into a treaty. This is false – it is possible to be tricked. These memes give the government an advantage in the overall scam that they are perpetuating – it is very likely deliberately planted disinformation.
Back in 2012, this was the advice from the Expert Panel. I’m going to break this advice down – because firstly – it does not actually address the concerns that Aboriginal people have about sovereignty, and secondly – I want to show that the advice is technically correct, although it gives a misleading impression.
The first quote:
the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples
Expert Panel legal advice
It is true that the sovereignty of the Commonwealth does not depend on any act by Aboriginal and Torres Strait Islander peoples – and I will explain why. This is to do with international law and diplomatic recognition. There are two theories on state sovereignty internationally. You can see them here on the wikipedia page about Sovereign States. They are 1. constitutive and 2. declarative.
The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state
wikipedia: Sovereign State
Australia meets this, because it is recognised by other states.
By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity’s statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force.
wikipedia: Sovereign State
Australia meets this as well, as long as it successfully maintains the position that it’s sovereignty was not gained by military force. This is one reason why Australia denies the Frontier Wars (refuses to have include in the War Memorial) and maintains that Australia was “settled” and not “conquered”.
It is true – that in international law – no explicit act of confirmatory acquiescence from Aboriginal people is needed. But nevertheless – Australia’s sovereignty claim does depend on Aboriginal people not challenging this claim in the international arena.
In other words – the sovereignty of Australia is dependent on Aboriginal peoples keeping their mouths shut, it is not dependent on Aboriginal peoples actively agreeing to anything.
Next Expert Panel legal advice here;
“The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.”
This is easier to digest in two sentences.
The first sentence.
The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled.
The Australian constitution is an Australian (colonial) document, it’s pretty clear from reading it – in particular the enacting clause. If Australians choose to include/mention/recognise as equal citizens – aboriginal peoples in the constitution – that’s Australia’s business. It has nothing to do with Aboriginal and Torres Strait Islander peoples, because we remain distinct and separate (A/res/2625/xxv) from the colonial occupation.
Constitutional recognition will not foreclose on the question of how Australia was ‘settled’, because it simply makes a unilateral claim on behalf of the Australian people. Australian people can claim whatever they like in their constitution – at the end of the day – it doesn’t matter because the status of the territory itself and over ourselves as Aboriginal people, is not their call. Our sovereignty of the soil still stands in the way.
If you look at George Williams’s paper – he suggests that ‘settlement’ can happen in the past, present or future. Australia claims that “Australia was settled” – but don’t assume that settlement is something that has already happened in the past and has been concluded. I think what is happening is, that the end story will be that Aboriginal people first settled Australia, and the British validly merged into that sovereignty by also settling and bringing their laws. These reforms are to formalise and foreclose this position.
But this can’t be formalised by constitutional recognition ALONE – which is what these lawyers are basically (correctly) saying. It needs another vital step – a constitutional reenactment, or declaration of independence – it requires an international act as it is an external assertion of sovereignty. This state act (with Aboriginal people onboard) WILL foreclose on the issue. These lawyers are not technically lying, but they are not telling us the whole truth.
The second sentence.
Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.
Reworded slightly: Constitutional recognition shouldn’t have a detrimental effect on future domestic projects.
Historically, government policies have been atrocious – this is just saying that constitutional reform shouldn’t make domestic policies any worse. How lame.
Referendum Council Report Advice
Some legal advice that ended up in the referendum council report.
Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The subsequent occupation of the country and land law in the new colony proceeded on the fiction of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been the exertion of force by and on behalf of the British Crown. No-one asked permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them.
Referendum Council Final Report
So what?
If you look at the positioning and context of this quote in the report (end of page 11)- it seems to be trying to reassure us that the changes will not affect our sovereignty. But this is not reassuring at all. If anything – it means we should be even more concerned – because we clearly have a lot to lose.
All this quote does is state a position, this time – from an Aboriginal perspective. It does not explore – whatsoever – the affect that the Uluru Statement changes will have on that position, nor other pathways that could be taken from this position.
So far I have not seen anyone associated with these reforms explaining what effect the Uluru Statement has on our sovereignty. All I see is clever sound-bites that skirt around the issue.
If we are serious about asserting our sovereignty, then we have to start asserting it. One way to assert sovereignty – is to write an Aboriginal Bill of Rights. It is a good chance to lay down our law/lore and values, and to concile with peoples of the settler-state.
I don’t mean a Bill of Rights that sets down settler state obligations to the inhabitants.
I mean a Bill of Rights that sets out our obligations that we as Aboriginal peoples – acting as sovereigns – have towards settler-peoples.
The current lack of Rights
Peoples of the settler-state have very little rights in their colonial system. Most ‘rights’ have are legislated, and can also be taken away by legislation.
There are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).
The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.
Aboriginal people have historically had some of the five explicit constitutional rights systematically denied. Voting rights and land acquisition are obvious. Trial by jury for Aboriginal people is a curse – in practice it means trial by a white jury – not trial by peers, which defeats it’s purpose. Section 116 prohibits the Commonwealth making laws for prohibiting the free exercise of any religion. Our freedom of religion has been indirectly denied through state action systematically destroying our language and culture.
And for Australians, this list of constitutionally protected rights is a haphazard mish-mash full of omissions and holes.
I think the reason why Australia never had a Bill of Rights is because it is a Federation of colonies. It is a compact between Crown colonies – it is not a relationship between governments and the people. The people are passive bystanders in this system. The only active role the people have is to approve of changes to the federal Constitution, and to elect members of Parliament. Members of Parliament are sworn to serve the Crown – not the people. Even the State constitutions are changed without the approval of the people. It doesn’t make much sense to have a Bill of Rights in such an arrangement.
Biggest barrier to effective assertion of Aboriginal sovereignty
The biggest barrier to asserting Aboriginal sovereignty is not the settler-colonial state itself. It is settler-colonial people’s fear of the unknown.
The settler-colonial state’s legitimacy (whether you think it is valid or not) is underwritten by both the Crown and the settler peoples. There is a complex interplay of power. But at the end of the day, the settler peoples will have the choice between continuing a system built on colonialism and domination, or coming under our ancient system grounded in the soil.
To help settler peoples make this choice – we can present the settler peoples with a charter of principles that we pledge to uphold if they choose to work with us. This can hopefully ally their biggest fears. Their fears are mostly based in ignorance of our values and of our culture. This isn’t their fault, but it is something we can proactively address.
Land Reform
Put yourself in the settler’s shoes. They are afraid that we will take their house, hills hoist and their livelihoods. They forget that the Crown can already take their house anyway. If their house stands in the way of a new road it can be resumed on the condition the Crown pays just compensation.
Maybe we can match the Crown’s land protection in our Bill of Rights, or offer an alternative deal. We could reform the way land title works. People want security in their land tenure, they also feel threatened by multi-nationals and foreigners buying up large swathes of ‘their’ land. Right now, settlers are afraid that Aboriginal people could take all the land back, and they will be left with nowhere to live. This fear is possibly due to Jungian projection – because it is what they did to us historically. But this is something that can work in our favour. If we can offer settlers alternatives to the Crown’s ‘rights’, attractive alternatives that takes their concerns into consideration, why would they continue to support the colonial system? The Crown’s ‘rights’ are afterall, pretty pathetic.
Right now, so-called Aboriginal leaders are promising settlers that we will uphold all private land title. I don’t think that is fair. What of an extreme theoretical example – someone owns a very large station the size of a small European country with a homestead that they have inherited from their great-great-great-grandfather who personally massacred people to get that land. I don’t see why the traditional owners should be guilted into rolling over and accepting that. Furthermore, I don’t think normal Australians think that is ‘fair go’ either. Normal Australians may feel some sorrow for such massacres, but don’t have their own personal cattle station to show for it. Perhaps let the settlers in our theoretical extreme keep the homestead – but not the entire property. Not all private property should be protected – that isn’t reasonable. Normally people who receive stolen property do not get to keep it. Can we come up with a reasonable compromise?
Human rights, Environmental rights
Looking at the rights enshrined in the Constitution, there isn’t much there in terms of human rights or state obligations to protect the environment.
Aboriginal culture has a solid foundation in terms of obligations to other people and to the environment. Settlers are not aware of the depth of these obligations. A lot of these obligations could be ‘translated’ into a Bill of Rights. This can offer settlers a sense of reassurance, security and stability while authentic, meaningful decolonisation and the disruption surrounding such a process happens.
Lore/Law Principles of living with the land
It’s not about rolling over an giving settlers everything they want, and fitting us in as an afterthought. Neither is it about materially about taking everything back as our ‘property’. It’s not about revenge or retribution.
It’s about laying down a foundation of principles that we use to re-establish the law/lores of the land, and come to compromises based on that. It has always been our obligation as peoples born into our bloodlines – to keep the law.
I am not in the best position to talk specifics about law/lore, as I did not grow up close with it. There are people who hold this special knowledge. They are best placed to come up with these principles in the first instance. Not me, or “Aboriginal leaders”. I just offer here a rough vision and some examples as starting points.
It is something that the settler-state is severely deficient of – principles and values. I think people feel that deficiency deeply, it is the basis of the shallow national identity. Australia doesn’t really stand for anything. It is like a ship lost at sea.
I believe our principles and values will resonate with settler peoples if we can present them in a way they can understand. The ship will then have something solid to anchor itself on, and those on the ship can be welcomed to their new home on solid ground.
If you look at the history of Native Title, particularly the chaos after the McGlade decision – something is clear. Australian governments have historically been imposing – through both the courts and legislation, the criteria for the consent of Aboriginal people to ILUAs.
This won’t fly if ILUAs (and compensation agreements) are to be retrofitted to become treaties (Instruments of Accession) in an international sense. The Australian governments will need to extract themselves from the internal processes of Aboriginal decision making. This is what some of these new changes do.
If you familiarise yourself overall with the Vienna Convention on the Laws of Treaties and on international law in general, you will be in a better position to identify a stealth treaty (Instrument of Accession), as these instruments will have to fit these standards.
I will just leave a few quotes here about the amendments alongside some selections from the Vienna Convention on the Law of Treaties that are relevant.
To be very clear, the majority rule is a default one. Any clan that wishes to adopt a decision-making model that requires consensus or unanimity is a matter entirely for them; they can impose conditions to that effect. I think we have made it very clear in this debate that the ability to impose a process that suits the practices of a particular group is remaining entirely in their hands
Imposing conditions/restrictions on the representative
Amends the: Native Title Act 1993 to: allow a native title claim or compensation group to impose conditions on the authority of its authorised applicant and require public notification of any such conditions
Article 47 — Specific restrictions on authority to express the consent of a State. If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.
Vienna Convention on the Law of Treaties
Allow an applicant to act with Full powers (like a Head of State)
…clarify the duties of the applicant to the claim group; allow the applicant to act by majority as the default position; allow the composition of the applicant to be changed without further authorisation in certain circumstances; allow the claim group to put in place succession-planning arrangements for individual members of the applicant;
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
If we go backwards in time from Native Title, we have this chain of happenings…
Native Title -> Mabo 2 -> the Bourke Proclamation -> Johnson v Macintosh -> the Pratt-Yorke Opinion.
These things are all linked.
Very briefly – in Johnson v M’Intosh (USA), the judge dispensed of Pratt-Yorke (perhaps to justify the judges own bias due to his personal land holdings). The decision in Johnson v M’Intosh was the likely catalyst of the Bourke Proclamation. The Bourke Proclamation asserted the Crown’s right of preemption under the J v M interpretation of the Doctrine of Discovery, and like J v M – extended that preemptive right to land purchases in Australia. This became basis of terra nullius and subsequent land dispossession. The Bourke Proclamation was then overturned in Mabo 2.
So as the Bourke Proclamation was based on J v M, Mabo 2 has reverted the situation in Australia all the way back to what J v M overturned – Pratt-Yorke.
Mabo 2 and Mer Island was the perfect test case to do this. If they had chosen any other place, the outcome could have been very different. A few important special things about Mer;
Mer was never subject to the Bourke Proclamation. This means the court does not have to directly challenge the proclamation. Bourke Proclamation applied as far north as the tip of Cape York, Mer lies further north than Cape York.
Mer was “discovered” by the British (without too many complications).
In the western half of Australia, the British discovery claim could be contested because the Dutch had already mapped and named it ‘New Holland’ before the British showed up. You cannot go into court and make arguments about British discovery, when that right of discovery is not crystal clear.
Mer is a island in the Pacific, and is well and truly east of the Moluccas issue and the Treaty of Saragossa line. Issues of territorial contiguity can be avoided with respect to New Holland geographically. If New Holland is an island, it’s subject to the 1824 Anglo-Dutch treaty. That gives the Dutch (or their French post-Napoleonic-war overlords) discovery rights. Even the discovery of mainland Australia is sketchy if you consider it as an island. I suppose that is why the English speaking world calls it a continent – for political reasons. Geographically and biologically, it is a very large island. When I was learning Spanish and travelling in Spanish speaking countries – I found they don’t consider Australia to a be a continent – it is and island in the continent of “Oceania”.
Mer was annexed by Queensland. Affirming this in the case accepts the validity of an act of state on behalf of Queensland. It puts the state of Queensland in a equivalent position to the United States (as per J v M), a Crown successor. It’s an affirmation of Queensland sovereignty.
I think Mabo 2 and Native Title were deliberately planned and engineered as part of an attempt of the Crown to attain sovereignty – initially insofar as ‘domestic’ British law in concerned.
So, back to Pratt-Yorke. I don’t know a huge amount about this – but what I’ve seen I think it’s very relevant post-Mabo. I’m lifting this from wikipedia for now because I haven’t found another source.
The opinion went on to distinguish lands acquired by conquest from those acquired by treaty or negotiation. In the former case, the Crown would acquire both sovereignty and title; in the latter case, the Crown would acquire sovereignty, but the company would acquire title.
Putting on the colonial thinking-cap. Mabo 2 ruled out conquest. If the court were to claim conquest under the discovery doctrines, the Crown would have absolute beneficial title – but it would make more problems than it solved. Colonialism was supposed to have ended, claims of conquest under discovery are very fragile. Securing negotiations of title between the “company” and the natives is a more secure plan in the long run.
(1.) Mr. West’s opinion on this subject in 1720. The common law of England, is the common law of the plantations, and all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary, though no statutes, made since those settlements, are in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear.
I’m not sure if I’m reading this right with this old-school language – but antecedent to the settlement of a colony sounds to me like this – the Englishman carrying the law to a colony is conditional on a preceding valid act of settlement. The settlement is supposed to come first, then the law. This is not what happened in Australia.
(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form colonies, and receive your majesty’s protection, by virtue of your royal charters.
This tiny portion of text blows my mind. Especially the parts I have bolded. I don’t even know where to start.
As an analogy – if a bunch of schoolkids go on an excursion to the museum, they still have to follow the school rules. The school has jurisdiction over them even though they are not physically on school grounds. But that doesn’t mean the school rules apply to the museum and every worker and visitor to the museum, just because the schoolkids are there. It doesn’t mean the school rules override the rules of the museum. It doesn’t mean the kids can ignore the museum rules. That is totally logical. But in our case/museum – the kids run rampant, smash and destroy, force us to follow their rules – they think they own the entire museum because they have made themselves comfy.
The Pratt-Yorke opinion is the basis of Native Title. Replace Indian Princes with Traditional Owners and it starts making sense.
Native title – as in the original version of it – grants the king’s subjects land grants. You have to look at Native Title upside-down. Native Title is where traditional owners grant land to the kings subjects, but TO’s reserve some rights for themselves – hunting, fishing, cultural etc. This in turn gives the Crown some degree of sovereignty – at least as far as the British interpretation of things goes.
Of course – that sovereignty is not absolute – it is only over the English settlements and the English subjects. But that part is largely ignored.
Now, the above says acquired by treaty or grants. I think ILUA’s are treaties. It’s an alternative to land grants for the Crown to acquire some form of sovereignty.
ILUA’s are ‘treaties’ – but originally, they were not international in nature. But since some nations such as the Murrawarri Republic have upset things by declaring independence – an international solution is needed.
The Uluru Statement asks for “agreement making” as part of a larger package offer which includes a treaty of federation. Since that offer – agreements (note the ‘A’ in ILUA) may under certain conditions – form part of this package, which give them an international flavour.
So… on to the latest Native Title developments. What I see here – is tidying up loose ends to make ILUA’s compliant with the Vienna Convention on the Law of Treaties. ILUA’s were originally designed as domestic instruments. They need to be upgraded to meet international standards so they can become stealth Instruments of Accession.
Next post – I’m going to go though some of these changes, and compare them with the Vienna Convention on the Law of Treaties and show how the changes make ILUA’s more compliant with this Convention.
I recently made this new updated version of the “Self-determination roadmap for Colonised, Indigenous Peoples”. This is the first version of it that I feel really comfortable with. There were a few things that didn’t sit well with me for the older versions, but I posted the older versions anyway because even if it’s not perfect – it can still add something to the debate.
The map it is not totally self-explanatory, in this post I am going to take it apart step by step.
Inspiration for this map
I was inspired to make this map from listening to some videos made in 2017 June at the Aboriginal Tent Embassy. Elders including Jenny Munro and the late Les Coe spoke about the Referendum Council process and how it was predetermined from the start.
“The stuff with the Referendum Council was done months if not years in advance to the point it was all printed up before we even get up there. Politicians, conservative media discussing it beforehand. No good gesture from Mr Pearson. it is one of the most inglorious moments and the lowest point our people have reached so far in the struggle.”
Jenny Munro
So let’s go where our strength is, let these young people lead this discussion. We need young lawyers, we need old minds, old lawyers to sit together and pull this document apart and expose it for what it is, expose the referendum council and the Australian government for what they are. They still through the process of assimilation. Pearson and Mundine are the successfully assimilated blacks. They wanna be white. I never had that wish in my life, I wanna go to the grave as black as the day as I was born.
Jenny Munro
The so-called sovereign state gave the term of reference to the Referendum Council, and they stuck by that agenda. What happened at Yulara was predetermined. There was only one map with only one road on that map. I’d like to see a map with a lot of roads that cover the whole country, not just north Queensland and into parts of the northern Territory – where the road actually after that just sort of dissapears, and then it appears again from the Canberra airport to Parliament house here. I wanna fill in the rest of the road of that map, for all of our people to be a part of this – not just a very select through of well paid …traitors.
Les Coe
There are a lot of blanks in the referendum council roadmap – and I made it my mission to try and ‘fill in’ the rest of the road. The end result is this map, which I will break down step by step in this post.
The Noel Pearson Roadmap
Below is the predetermined Yulara roadmap. There is only one path on it. It leads to the promise of the pearly gates of the “self-determination” of “Indigenous Australians” under the banner of UNDRIP – the United Nations Declaration on the Rights of Indigenous Peoples. When that point is reached where Australia implements UNDRIP, everything will be ok – trust us – we are experts – they say. Meanwhile, many questions go unanswered.
It is like a colouring-in book where the settler-state draws the outline, hands it to us with some coloured pencils and patronisingly pats us on the back as we fill the spaces with colour – as if we made the path ourselves.
“Self-determination” Roadmap for colonised, indigenous peoples
The title of the map
“Self-determination” is not a straightforward concept, it is nuanced. Colloquially – in everyday talk – it means for people to have control over their own destiny – to be able to make decisions for themselves. But when lawyers and politicians talk about it – that isn’t necessarily what it means. This map represents how it’s effectively implemented in international law.
The international law concept of self-determination has been around for a long time, but it was formalised after World War 2. At the time, superpowers had enough nuclear weapons pointed at each other to kill everything on earth several times over. The world faced an existential threat. The concept of non-interference into other nations’ affairs took on a new importance.
Aboriginal peoples also live by a principle of non-interference. On the face of it, it looks similar to that of nation states. But there is a big difference – the Aboriginal notion of non-interference is born out of empathy and respect. This is evident because non-interference extends to all and everything – neighboring clans, the opposite gender’s business, the land, animals, plants and the environment.
In contrast, the principle of non-interference in international law is born out of war. It is born out of an expectation that if you agree to not interfere with others – they won’t interfere with you. The root of this is not empathy, but fear and an expectation of reciprocity. There is only tokenistic gesturing of goodwill to those who can’t retaliate. This is why things like genocide still happen, and military industrial complexes continue to grow.
The international principle of non-interference lies at the core of the right to self-determination for nation States. Every right has a corresponding obligation – they are two sides of a single coin. There can be no rights, if there is no one who is responsible for upholding that right. On the other side of the coin from right of self-determination, is the obligation to respect other nations’ boundaries to do their own thing. This is a fundamental principle on which both the UN charter and international law rests on today.
However, there was another special category of peoples who had the right to self-determination – what the UN called ‘peoples of non-self-governing territories’. The category of ‘peoples of non self governing territories’ includes peoples under alien colonial subjugation. Or – as I have called it in this on the map – colonised peoples. Colonised peoples have very specific, narrow, but powerful rights to self determination – a different form from the right to self-determination of UN member states. The obligation side of the rights/obligation coin of the colonised peoples right to self-determination lies with all UN members (erga omnes), is underpinned by the UN Charter, is part of customary international law, and there is some argument that it is a peremptory norm.
The right to self-determination for colonised peoples is not the same as the right to self-determination for indigenous peoples. It’s easy to get ‘colonised’ and ‘indigenous’ mixed up, especially when settler-colonial assimilationists deliberately conflate the concepts. But they are two completely different categories of peoples. The roadmap I made deliberately separates these two concepts (blue colonised section/orange indigenous section) to show how they relate in the context of self-determination.
I deliberately do not capitalise the word “indigenous”, because I don’t believe it should be. It is not a proper noun until it is clearly defined.
‘Indigenous’ is more of an anthropological concept than a political concept. For a given territory with multiple waves of human migration, the indigenous peoples are those with the oldest continuous culture on that land. It has nothing to do with the state of being under colonialism.
The idea of indigenous peoples having the right to self determination started emerging from the international human rights field in the late 70’s early 80’s. Today, self-determination for indigenous peoples manifests as a bundle of “rights” in UNDRIP. These “rights” are structurally very different to the right of self-determination for colonised peoples or for nation States.
So all up – for the purposes of this map – the right to self-determination is for 3 categories of peoples. 1. nation States (white middle section) 2. Peoples under colonialism (blue left) and 3. Indigenous peoples (orange right).
The decolonisation era and resolution 1514
when people think of decolonisation… they think of Africa
I live in Germany. People here talk about the present time as being in a post-colonial era. As far as Germans are concerned – it’s true – Germany lost all of it’s colonies when the Nazis lost World War 2.
There is a wide perception that decolonisation was done and dusted between the 50’s and 70’s. This classic decolonisation era was helped along by resolution 1514. But by the time this resolution passed at the end of 1960, African colonies were already falling like dominoes. The UN likes to take credit for decolonising Africa – but in reality it was the people struggling on the ground who made it happen. Nevertheless, resolution 1514 helped shape the way things played out.
This pathway that classic colonies went down (independence) is shown here;
In some ways, Africa swapped one form of domination with another. They are still dealing with the legacy left behind, power struggles between each other because they lost their sense of order, and dealing with new forms of domination (eg. IMF debts). I mention this here because if we somehow find a way to go down this path – we should make sure we are adequately compensated by the Crown so that we don’t end up in perpetual debt slavery.
Settler-colonial states – how did they decolonise?
We have to ask – what happened to those peoples living under settler-colonialism? It seems they were forgotten.
I don’t think that decolonising settler-colonial states was outright forgotten – I think the process was domesticated.
After resolution 1514, the UN created the special committee, the C24 committee to do the yard work to decolonise those territories in the C24 mandate. They developed a set of criteria to determine if a territory has decolonised. The criteria are these 3 pathways on the map below;
Once the independence line is crossed, out of the blue area of the map – the territory is technically decolonised.
But the problem is – with the way that the committee was set up. Settler-colonies and other peoples fell out of the C24 committee’s mandate. This was the result of political interference, and was inconsistent with the purposes and principles of 1514 and of the UN Charter. This exclusion made peoples under settler-colonial subjugation invisible.
However – the process through these 3 pathways is still being facilitated domestically by settler-colonial states. Settler colonial states are working on decolonising under these rules, but doing so in-house.
I have marked with yellow stars where settler-colonies are on this map. Canada and NZ have historical treaties – but more importantly – the Crown diplomatically recognises native nations in those territories. Historically they are heading down the same path as the USA – association/treaty plus independence. USA has declared independence so it is out of the blue zone – however I have included it because it has not decolonised according to the principles and purposes of the UN Charter.
Australia was, up until about 2014, heading towards the integration pathway. This was possible because there are no treaties – but more importantly – because up until that time, the Crown never diplomatically recognised native nations in Australia. Because there is no diplomatic recognition – native peoples can be treated as flora and fauna* until they are diplomatically recognised as being part of Australia proper.
*Yes I know there was no flora and fauna act or legislation – but if we are not recognised diplomatically as peoples in our own right, and we are not part of the Australian polity or British subjects, then we must be flora and fauna for the Crown to be able to pass laws on us. Why is there still an Aboriginal man on the $2 coin when the rest of the coins have animals? Why are there Aboriginal faces in the Australian War Memorial among wildlife?
Indigenous Rights
Put yourself in settler colony’s shoes, you don’t want your colonised minority upsetting your apple-cart by pursuing the road of independence under their own terms.
General Assembly Resolution 2625 clarified that decolonisation must happen by the free choice of the colonised peoples – not by the settler state. I can explain why this is – but it’s complicated so I leave this claim as-is for now. Within the blue box on the diagram – the pathway chosen is fully the prerogative of the colonised peoples.
So as a settler-state you want to steer the colonised peoples to the decolonisation pathway that suits yourself. They invented an entire new scope of “self-determination” for indigenous peoples to distract from the full range of choices of “self-determination” for colonised peoples.
Modern Treaty
In 2013 some native nations in Australia began declaring independence, this forced the Crown to diplomatically recognise those nations. This in turn changed the direction of decolonisation in Australia. 100% integration (as in attempts of 1967, 1999, Recognise) was no longer possible. A treaty under the association pathway is now needed.
* Edited 6/08/2021: see comment section
The UDI’s from the Sovereign Union killed “Recognise” and put treaty on the table. Protests and Aboriginal community dissent did not. There’s a lot of circumstantial evidence to back this claim up (save it for a future blog post).
Modern Treaty is structurally similar to Instruments of Accession in India. They only work in a colonial federation situation where the settler-state has not yet declared independence. So – in Canada and Australia. It won’t work in New Zealand or in the United States.
In the long-run there is no difference between this and vanilla assimilation policies of the past – because the negotiated terms of the agreement-making are only enforceable under domestic law. The agreements will be either broken, or the scope of negotiations will be so narrow that they will never achieve anything meaningful. Jammu and Kashmir’s accession instruments were broken even though they were enshrined in the Indian constitution. This is the same path. India is the precedent for Modern Treaty – not Canada/British Columbia and it’s Modern Treaty process still in infancy.
The dark side of UNDRIP
If we continue down the path of modern treaty or of integration, we approach the pearly gates of UNDRIP.
There are some problems here. UNDIP sounds nice – the content resonates. But it’s not the content that’s the problem, it’s what it is structurally.
UNDRIP is a non-binding, aspirational agreement between nation states who are already members of the UN club. It’s more of a new-years-resolution than a promise. It’s not a binding commitment.
It is a aspirational agreement that each signing nation should treat their own indigenous minorities to a standard. As we have not decolonised or have a treaty, we are not part of the nation state; this doesn’t apply to us yet. We are not “their Indigenous peoples”. This is why I placed this at the end of the roadmap and not at the start. Decolonisation must logically happen first.
Consider the two-sided coin of rights and obligations. UNDRIP is non-binding. So who has the obligation to protect indigenous rights? No one. If it does not create obligations, it doesn’t create any rights. It is not like the right to self-determination for colonised peoples (blue part of the map) – which is an erga omnes (to all) obligation. In other words – there is nowhere to go if “indigenous rights” are broken.
I acknowledge that some international conventions start out as non-binding aspirations, and gradually catch on to become part of customary international law. And perhaps UNDRIP will one day become a norm. But there is no guarantee this will happen. It’s a huge gamble for us to put all of our hope in this basket when there are no guarantees.
But the biggest problem of it – is the stop sign that stands in front of it. Once we arrive at the pearly gates of UNDRIP, we will have already integrated into the State as minority peoples and consented to parliamentary sovereignty. UNDRIP is made for indigenous peoples – not for freshly decolonised peoples. UNDRIP will be for “Indigenous Australians”, not for “Aboriginal and Torres Strait Islander peoples”.
So who defines “Indigenous Australians”?
“Aboriginal and Torres Strait Islander peoples” is defined with its 3 part criteria – one of these criteria is community acceptance. This puts the community fully in control.
‘Indigenous peoples’ has no hard definition, but a cultural continuity criteria is attached. As the colonial state is the signatory to UNDRIP, they will eventually implement it in their own way, and will need to ultimately define and judge which of their minorities are and which are not indigenous. How will they determine this cultural yardstick? It’s trivially easy for them to simply set the bar high enough that only a very small minority of Aboriginal and Torres Strait Islander peoples make the grade.
We will be wiped out by dictionary.
We have no control over who will be entitled to so-called indigenous “rights” and who will not be, it will be the prerogative of the state. We will divided into the ‘has cultural continuity’ and ‘has no culture, but has some heritage’. Divide and conquer – the real “on the ground” blacks vs. the city and suburban fakers.
This is already happening. Josephine Cashman is stirring up demand to carve this line. She tries to leverage Australian nationalism – which is comical to watch because Australian identity is so shallow and superficial. So she appropriates US nationalism by channeling Trump and MAGA, which defeats the purpose of nationalism itself. It’s bizarre, but if you can see the end goal it makes sense. Don’t forget – Cashman was one of the Kirribilli leaders who initiated the referendum council, and was on the Indigenous advisory group. She was sacked from the advisory group in dramatic fashion in what I suspect was a manufactured PR stunt. The end goal is to remove community control to determine who belongs and who does not. Most of us will be tossed under the bus either because we have been historically displaced from our ancestral lands or we can’t meet the state’s high burden of proof. Most of us will not be allowed through the gates.
Be careful what you wish for. UNDRIP is designed by settler states for their own agendas.
What’s the answer then?
Here is the full map.
Full map: many paths, many decisions to be made.
Overall – what is happening is that we are being led to decolonise in a technical sense – but in a way that benefits the colonial status quo. As the peoples of the land – we hold the full prerogative to choose the pathway for decolonisation (blue). The settler-state is assembling a maze of smoke and mirrors, steering us through the decolonisation process, while dangling a carrot of ‘indigenous rights’ which will likely not eventuate.
We will travel to the end of one of these paths whether we do so knowingly or blindly. We should take the lead here so we know exactly where we are going. All of the basic options in international law are on this map, and the ball is in our court. We should learn about each of them, consolidate them with our own law/lore (I believe this is possible), decide on the best way forward, and go for it.
I realise that many may be skeptical of using international law and the UN charter to attempt to free ourselves. The UN has failed us, mostly because they have allowed some dominant members put selfish interest ahead of the UN Charter principles. We are in a position to call this out, and calling it out won’t just help ourselves – but will help others in their struggle against State domination.
The fact is that we are a part of a wider world, and that world has come in. We have to deal with this international framework. We do not have to deal with the Australian colonial framework, as the international framework allows us to bypass the colony completely. Australia derives it’s legitimacy from this body of international law – but that legitimacy is premised on a false assumption that we are also Australian. To challenge this false assumption will be take back our power, and our power of choice. We are not Australian. That’s a powerful statement.
Previously I wrote about the Declaration of Recognition. You might not have heard of it – even if you are familiar with the Uluru Statement, and “Voice, Treaty, Truth”. The Declaration of Recognition is a key part of the Uluru Statement reform package, but it is not “in the brochure” – so to speak. You are lucky to see a mention of it, anywhere.
Since my previous blog post on the Declaration of Recognition, a lot more pieces of the puzzle have come together. I have made a video on my facebook page. This post today is a written version of that information in the video linked/embedded below.
The origin of the Declaration of Recognition
In 2014, constitutional conservatives and members of the Samuel Griffith Society Damien Freeman and Jullian Leeser put out a booklet called The Australian Declaration of Recognition. Later on in 2015 they founded a non-profit think tank called Uphold and Recognise.
The Declaration of Recognition is very often compared with the US declaration of independence. I was, for a long time suspicious that perhaps that is exactly what it is. Now, I think that idea is “half right” as I’ll explain more in this post.
The Declaration of Recognition and Voice were proposed around the same time. Noel Pearson wrote a Quarterly Essay on the Voice around the same time the Declaration was being flogged. Noel Pearson endorsed Uphold and Recognise. These two ideas are related, and belong together as part of a larger overall reform package.
The Referendum Council Failure in Evaluation
The Referendum Council distilled a set of criteria from previous Expert Panels and from the regional dialogues to evaluate different reform proposals. These criteria were called “guiding principles”.
A statement of acknowledgement inside the constitution was properly evaluated and is in the table graphics from the final report below. However – the statement of acknowledgement outside of the constitution was never evaluated against the principles. This is despite it being an option in the original Referendum Council discussion papers. Neither was “truth-telling” evaluated – obstinately because truth-telling was not one of the original discussion paper options. Go figure.
Table on page 29 of Referendum Council Final Report. A Statement of Acknowledgement outside of the constitution was never evaluated against the “Guiding Principles”, only a statement inside.
Different reform proposals were also tested for their level of support during the regional dialogues.
Table on page 15 of Referendum Council Final Report. No distinction between support for a Statement of Acknowledgement either inside or outside the constitution was evaluated. Statement inside the constitution was rejected.
Although the Declaration of Recognition is in the list of Referendum Council final recommendations – it does not appear to have been evaluated by the guiding principles criteria or by the regional dialogues. This is despite it being part of the original 2016 Referendum Council’s discussion paper proposals for reform. It should have been evaluated!
The Declaration snuck itself into the Referendum Council final report.
The Declaration of Recognition has literally snuck itself into the proposal with no scrutiny, no evaluation against the criteria, and without the endorsement of even the hand-picked Yulara delegates. The later Joint Select Committee also overlooked this omission. This is not surprising when you note who was on the select committee.
It is now being further bypassed from wider scrutiny by a carefully controlled campaign which barely ever brings it up for education, discussion or debate.
What the Declaration of Recognition is
After I have literally combed through decades worth of Australian law journals that are freely available on line, I came across some academic papers which shed a lot of light on this.
Without trying to bore you with the legalistic details, this is what it means.
Australia has a problem with it’s foundation. It is not a truly independent State. The Australia Acts (1986) made Australia legislatively and administratively independent. They don’t have constraints on their operation. However, Australian governments still run under the authority of the Crown. So they do not act in their own authority.
Moshinsky writes that Independence consists of two components.
1. Autonomy – which Australia fully gained in 1986.
2. Autochthony – which means native – is to have governance who’s authority springs from their own soil. The independence to act in their own right. Australia lacks this.
Dillon discusses this problem in A Turtle by Any Other Name and lays out some ideas on how to overcome it. What is needed – in a nutshell – is a reenactment of the constitution in the name of the “Australian people”.
If we also consider the UN Decolonisation principles (which Dillon touched on very lightly by mentioning “reconcilliation”, which I think is code for colonially-controlled decolonisation) – “Australian people” should ideally include the colonised first peoples – because the natives hold the requisite authority of the soil. An alternative source of authority could be used – (something like a God, nationalism, white Australia pioneers, ANZAC heroes, a personality cult figurehead like Kim Il Sung etc.) however that may create more complications if the colonised population later pursue decolonisation. Including the subjugated, colonised population as an integral part of the reenactment of the constitution is the most elegant solution for the colony. It kills two birds with one stone. It upholds the constitution and the colonial status quo, and subdues Aboriginal peoples’ special status as colonised peoples in one go.
If you compare Dillon’s A Turtle by Any Other Name paper proposed solutions with the Uphold and Recognise A Fuller Declaration, there is a huge similarity. So much so – that I would bet that whoever wrote based it off Dillon’s paper. (watch the video at top of post for more comparison/explanation)
Megan Davis and Noel Pearson (Aboriginal Referendum Council members) are credited with helping write A Fuller Declaration. I question how appropriate this is in terms of accountability to their Aboriginal community. These two ran the dialogues without evaluating the Declaration, but included it as a final recommendation. Then – to push the knife in even deeper – they help write Uphold and Recognise’s Joint Select Committee submissions.
The Joint Select Committee itself was chaired by Jullian Leeser – if you recall – one of the original authors of the Declaration of Recognition booklet the first time this idea was proposed. By that time he had resigned from Uphold and Recognise – but really… come on! They couldn’t get someone else? You gotta wonder – is that how he got his safe blue-ribbon LNP pre-selection – because they wanted him chairing the Joint Select Committee?
Small elite circle pulling all the strings bypassing both the wider Aboriginal community and the Australian public.
There are many conflicts of interest here and hardly any grassroots involvement. Even the handpicked Yulara delegates were bypassed on this one.
The purpose of the Declaration of Recognition is to make Australia authoritatively independent. Another way to look at it – is that the Australia Acts (1986) are HALF of a Declaration of Independence. The Declaration of Recognition is the second half.
They are using Aboriginal sovereignty as an initial fire-spark to gain authority for themselves through the Declaration of Recognition.
We came to this meeting delegated by a number of nations with the greatest respect and integrity hoping to reach agreement.
We as sovereign first nations people reject constitutional recognition.
We do not recognize the occupying power or their sovereignty because it serves to disempower, takes away our voice.
There is no integrity, our mandate has been stifled.
We need to protect and preserve our sovereignty.
We demand a sovereign treaty with an independent sovereign treaty commission and appropriate funds allocated.
To make this happen this treaty be governed by the Vienna Convention the Law of Treaties.
We don’t need a referendum. We need a sovereign treaty.
This is the walkout statement transcribed as read by Lidia Thorpe.
Background – the walkout was part-way through a multi-day conference. The convention was still deliberating on the form of “Constitutional Recognition”. Officially, no decision was made at this point in time. At this time in the convention – it may have appeared that preambular, symbolic recognition was still on the table.
The curious thing is this. This walkout statement – read very carefully – is perfectly aligned with the final end result proposal of the Constitutional Convention. It’s as if someone WHO KNEW what the final outcome would be, wrote this. This walkout statement ASKS FOR EXACTLY WHAT IS IN THE ULURU STATEMENT!
Point by point:
The walkout statement uses the term “First Nations”. This was defined at the end of the convention in the First Nations Constitution – the Uluru Statement itself.
The Uluru Statement is not “constitutional recognition”. It is recognition OUTSIDE the constitution. The Uluru Statement does in fact – “reject constitutional recognition”.
A line talks about “taking away our voice”. The Uluru Statement requests a Voice.
First Nations Sovereignty will be protected and preserved under the reforms. It will form the basis of the new re-enactment of Australia. (First Nations will have bugger-all effective power – but one thing is sure – their sovereign legacy will be preserved).
The Makarrata commission will be the “independent Treaty commission”.
The Uluru Statement Treaty WILL be “governed by the Vienna Convention the Law of Treaties”. The Federation itself is the treaty – not the “agreement making”. It meets all the requirements of the Vienna Convention.
All up – it is VERY LIKELY that someone who had a role in drafting this is – is government controlled. They knew ahead of time what the final outcome of the convention would be. They prepared this ahead of time to reduce the DAMAGE of a potential walkout.
The odds of this particular wording being a coincidence is far to incredulous, to me anyway.
It’s very concerning. The sovereignty movement is infiltrated. I’m not pointing the finger at any individual – there is little point in doing that. It’s easy for an innocent person to see this walkout statement and go along with it – thinking it sounds good.
The only way things can be cleaned out is through revelation of the truth.
I’m very disappointed. Searching for the truth is a very lonely journey.
The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly Resolution 1514) was a call by the international community for the end of colonialism. It led to the decolonisation of many franchise colonial states in the 60’s through referendums.
Australia – a settler-colonial state, also attempted to decolonise through the 1967 referendum and other activities during the 60’s.
The impetus for the 1967 referendum can be traced back to Lady Jessie Street. Jessie Street was the grand-daughter of squatter Edward Ogilvie – who participated in the Tabulam Massacre and built Yugilbar castle near the massacre site.
Edward Ogilvie, grandfather of Jessie StreetYulgilbar Castle
Ogilvie also kidnapped Aboriginal children.
“When Blacks were Troublesome” The Richmond River Herald and Northern Districts Advertiser (NSW : 1886 – 1942) 29 October 1937: <http://nla.gov.au/nla.news-article126104020>
Jessie Street was born in British India, but grew up in Yulgilbar castle after her grandfather died and her mother inherited it. She married into the Street dynasty which was a prominent colonial family of bankers and lawyers. Her husband was Lieutenant-Colonel Sir Kenneth Street who was the Chief of Justice of the NSW Supreme Court and the Lieutenant-Governor of NSW. Jessie Street was part of the colonial elite – she was the only female delegate for Australia at the San Francisco conference that made the UN Charter.
Jessie Street was a delegate to the conference forming of the United Nations
Jessie Street traveled overseas between 1950 and 1956. During this trip in England she spent time with the London Anti-Slavery Society. In the same year that she returned to Australia she recruited Pearl Gibbs and Faith Bandler. Together they helped establish a number of organisations behind the 1967 referendum including the Aboriginal-Australian Fellowship and indirectly the Federal Council for Aboriginal Advancement.
In Adelaide – at the inaugural meeting for the Federal Council for Aboriginal Advancement there was a call to change the federal constitution to allow passing laws for Aborigines. There was also a call for “integration” of Aborigines, and equal rights. “Integration” is one of the methods for decolonisation from the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples.
The 1967 referendum was not motivated by social justice, it was an attempt to decolonise.
According to the international decolonisation rules at the time, a colony can decolonise by “integration” if the native people have equal rights with the colonial occupation. This isn’t possible without the federal government having power to pass laws for Aboriginal peoples. During the 60’s, the states also all allowed Aborigines to vote and changes to the constitution were made. Many changes happened under the banner of equal rights.
But the rules from 1960 about decolonisation changed in 1970 in United Nations General Assembly resolution 2625. This change was partly due to a international backlash against a racist white settler minority declaring independence with a Unilateral Declaration of Independence in (southern) Rhodesia in 1965. The new rules set in General Assembly resolution 2625 state that the peoples of the territory (the natives) must give their consent before decolonisation can occur.
The British tried to manage this new 1970 rule in it’s franchise (non-settler majority) colonies through a policy called NIBMAR (No Independence Before Majority Rule). This means that it is British policy to not decolonise franchise colonial states without getting the native population on board. Meanwhile the British continued a policy of political assimilation for settler-colonial states. As the 1967 referendum in Australia did not involve Aboriginal consent – under the new 1970 rules it no longer met the requirements for decolonisation.
Since 1970, the Australian government tried creating various representative bodies to give consent to decolonisation via political assimilation. This includes the NAC, ATSIC and the National Congress. The problem is none of these bodies have been able to gain and demonstrate consent from the wider Aboriginal community. This is why they are discarded – they failed in their goal.
This time around – for the Uluru Statement, the newest representative body has the mandate already built in to the representative body from the start. As the Uluru Statement is a package of reform and part of a single offer – the mandate for political assimilation and independence is already built in. All the colony needs is to get Aboriginal and Torres Strait Islander people to enroll in the body and they are getting the consent for political assimilation built-in. They are also getting consent to independence through the Declaration of Recognition which is also built into the offer and is in the Referendum Council report but not spoken of publicly. Enshrinement of the Voice to Parliament and wide participation of Aboriginal and Torres Strait Islander peoples in the voice will remove the last barrier for decolonisation of Australia. That is the true agenda behind the Uluru Statement. It will not give land back, reparations, internationally-binding negotiated terms or the truth. Just like 1967 was for the benefit of the colony, so is the Uluru Statement. Under the UN decolonisation framework, Aboriginal and Torres Strait Islander peoples collectively have effective veto over the form of independence that Australia can form when becoming a republic. “Recognition” and the advisory-only Voice are very weak proposals put out by the colony.
