Posting a link to this very good (but lengthy) essay by Jedediah Purdy with some comments and thoughts about it.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2489&context=faculty_scholarship

The writer points out the distinction between “civilised” nations and the “uncivilised”, or as Johnson McIntosh calls it – “the full sovereign” as opposed to the “imperfect sovereign”.

Purdy’s essay looks at how Johnson v. M’Intosh re-enforced that distinction in common law.

(Background -Johnson v. M’Intosh is a court decision made in the USA in 1823 about land titles. Even though it was in USA, it has had a huge indirect effect in Australia which I have touched on here)

The civilised/uncivilised distinction was always used as a moral justification for theft and invasion. The notion that “uncivilised” people are not worthy of basic collective rights such as having their own land title concepts respected.

My thoughts – the civilised/uncivilised dichotomy is now reframed as a dichotomy of States vs “Indigenous”.

Indigenous rights are “Uncivilised peoples’ rights”. The sub-standard rights of the “uncivilised” must always yield to the rights of the civilised, especially when it comes to territorial integrity land rights. This is very true of UNDRIP, which reasserts this principle in article 46.

If you trace the genesis of the international indigenous rights movement – even the concept of “indigenous peoples” encompasses a criteria of cultural continuity. When this continuity is broken, “Indigenous Rights” are forfeited. In other words – when a peoples become ‘civilised’, they no longer hold this substandard tier of traditional rights – they become one with democratic, civilised society as another patch in a multicultural quilt. From the time point where this cultural continuity is broken – there is no option to return to being ‘uncivilised’. It doesn’t matter if the break occurred at the point of a gun. This continuity break concept is also a basis of Australian Native Title law – once your family tree has fallen off the land, your land rights are extinguished and the family can never return and reestablish their connection to country.

This is the problem with “Indigenous rights”. There is a prerequisite tie to cultural continuity. The institutions of civilised society are the judges of whether or not, that cultural continuity is broken. “Indigenous rights” can be easily extinguished with the stroke of a colonial pen by a judgement that a peoples are not “culturally authentic” enough. This is the the same old elimination Realpolitik with lipstick.

“Indigenous” as a term is not yet defined in Australian law. It won’t be defined until UNDRIP is legislated. And that won’t happen until the assimilation project is far enough along the roadmap that we are safely enshrined/entrapped in the constitution.

Do you see the end goal here? 3% of the territorial population are Aboriginal and Torres Strait Islander peoples. But much less than that will meet the cultural continuity benchmark and be afforded “Indigenous” status. Most of that 3% will NOT be defined as “Indigenous” – members/status holders of a designated, official “First Nations” who have done their agreement-making and jumped through requisite hoops to prove their cultural authenticity. Most of that 3% will be redefined as “people of Aboriginal heritage”. An ethnic minority with an imperfect, broken connection. Why do you think the colony are hellbent on closing remote communities? They are eliminating the last remnants of cultural continuity. Why are professional agitators such as Josephine Cashman calling for the redefinition of Aboriginality identity? It is to reduce, or eliminate us by dictionary. This in turn reduces the obligation that the State has to the shrinking, or barely existent “Indigenous” population. Other countries already do this – many simply deny that Indigenous peoples live within their borders – there is nothing much that can be done about this when the State’s “sovereignty is paramount and UNDRIP is non-binding.

How “civilised” are you? Afterall, you are reading this on the internet. Perhaps you and your family will not meet the bar of being uncivilised enough to enjoy any “Indigenous rights”.

Why advocate for “Indigenous rights” when it is possibly just another elimination strategy?

—–Property and Empire: The Law of Imperialism in Johnson v. M’Intosh by Jedediah Purdy (PDF full essay)

3 Years ago, West Papua did a petition to the UN C24 decolonisation committee. They had collected a massive 1.8 million signatures, many risking jail by signing the banned petition and by smuggling sheets of paper across the territory.

While petition was rejected – it did get a response from the C24 committee, and the people of West Papua got their position out in the open.

This is something that we (Aboriginal and Torres Strait Islander peoples) could look at doing.

The reason the West Papuan petition was rejected by the C24 committee:

…the chair of the decolonisation committee, Rafael Ramírez, said no petition on West Papua could be accepted because the committee’s mandate extended only to the 17 states identified by the UN as “non-self-governing territories”.

This is inexcusable. Decolonisation is an erga omnes obligation. UN General Assembly Resolution 2625 states:

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

A/RES/2625/XXV

The C24 committee does have an obligation – as decolonisation is a duty TO ALL (‘through joint and separate action’). It is ridiculous for the C24 committee to claim that duty does not apply to them – given all of their committee members are in turn members of the UN bound by the UN Charter, and given that’s the C24 Committee’s ONE JOB!

It is interesting that lack of mandate was the excuse given. They could have argued that West Papua has already achieved self-determination from the “Act of Free Choice” referendum held in 1969. I suppose this means the C24 committee are well aware that the “Act of Free Choice” was a sham.

The experience of West Papua and the “Act of Free Choice” should be a warning to us – that yes – a small minority of colonised peoples can be handpicked and endorse a colonial proposal on behalf of and at the expense of the majority under colonial occupation. The world has, and will turn a blind eye if we don’t make noise. After the Yulara convention where a handpicked minority endorsed a proposal for the majority, we are perilously close to falling into the same situation.

As for this quote from C24 about territorial integrity of UN Member states:

One of the principles of our movement is to defend the sovereignty and the full integrity of the territory of our members. We are not going to do anything against Indonesia as a C24.

This is inconsistent with Resolution 2625 which states (emphasis added);

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

A/RES/2625 (XXV)

The resolution is clear. The upholding of UN member state’s territorial integrity is dependent on them meeting the above conditions. Does Indonesia meet this condition? Arguably not – as the 1969 “Act of Free Choice” left out the vast majority of the Papuan population – peoples who are geographically, culturally and ethnically distinct from the rest of Indonesia.

Australia certainly doesn’t meet the conditions. The Australian constitution does not and never has represented Aboriginal and Torres Strait Islander peoples. The Australian Constitution also contains a “races” power that is actively used to discriminate against these polities that are native to the soil. Aboriginal and Torres Strait Islander peoples have never exercised their right to self-determination in the colonial context.

So as for Australia. What would the excuse be if we were to write up a petition to the C24 committee? I think probably the same thing and reject it as being outside of their mandate. Let me be clear – I don’t actually expect making a petition will put us on the C24 list of non-self-governing territories.

But if the petition were drafted in a way to remind them of the erga omnes nature of the duty to decolonise, it would put the C24 in a difficult position. If we had a well-drafted petition, pre-empting any excuses they are likely to come up with – it would be at the very least entertaining to watch them trying to squirm out. And the added benefit of letting the world know – we are sovereign people. We are not necessarily interested in constitutional assimilation.

The idea of a petition is not to dictate how decolonisation should occur, but that we ask the international community to uphold their promise made in 1960. The petition is to ask to be provided with the means for us to collectively make a fully informed decision free of colonial interference. It also is an assertion to the International community that we have never had a proper chance to do this, and that the Uluru Statement process did not meet that standard.

A petition could be done continentally. But could also be done on a State-by-State basis, as each State is it’s own colony and could decolonise as such. Fullas in Victoria – I’m looking at you. You have a head start being relatively smaller state and you could build off the work that has already been done mapping out the clans. Torres Strait Islanders, and peoples in remote communities also have a special case – being “geographically separate” from your colonial administrators in far away capital cities, the Bluewater hypothesis could work in your favour.

There is an alternative way to present a petition to what West Papua did. That is by instead of presenting it directly to the C24 committee, a UN Member state/s could sponsor in the General Assembly Resolution. There are many, many UN Member states who are still suffering after-effects of colonisation themselves and are not dependent on Ausaid – it shouldn’t be too hard to find one or a few sympathetic to our cause. To reach out to other member states is an assertion of sovereignty in it’s own right, and a good start at building up our own diplomatic relations and nationhood.

Image by mohamed Hassan from Pixabay

Supporters of the Uluru Statement insist that the reform package has a strict sequence which places constitutional enshrinement of the Voice as the first step, and treaties to come after.

The Greens – (seemingly led on this issue by Senator Lidia Thorpe) have been critisised as backflipping and against the Uluru Statement mandate by suggesting the re-ordering of the sequence to “Treaty First”, or – Treaty before Constitutional change.

The issue here is that Uluru Statement supporters are not clearly articulating the full reasons why the Voice must come first. Advocates are being dishonest by claiming that the reason for sequencing the “Voice” first is that a protected voice is needed for political leverage. They are not telling us the real reason – that “Constitutional Reform” is a technical prerequisite for “modern treaties”.

At the root of this issue, is the difference between “modern treaties” and historical, or first contact treaties. Structurally they are very different instruments. The Uluru Statement calls for a modern treaty process.

While I don’t want to put words in Senator Thorpe’s mouth, my understanding is that she (on behalf of her grassroots following) is calling for what is structurally a historical treaty, even though it is done in modern times.

This blog post I am going to present what I think the structural difference is between modern treaties and historical treaties.

Some observations/clues

I have never seen a decent explanation on the difference between historical and modern treaties, but there is a trail of clues.

• The distinction between modern and historical treaties is only ever made in a colonial context. For example, no one calls the Treaty of Versailles as a historical treaty; even though it is of historical importance. It is simply a Treaty.

• Normally a “Treaty” is understood as being a formal, binding agreement between actors in International law. Are peoples under settler-colonial subjugation actors in international law? If they are, it implies they are capable of making a Treaty.

• A common justification why Modern treaties are needed is because of out-of-date content in historical treaties. For example in Canada there are historical treaties that pay some First Nation individuals an annuity of $4 per year. This would have been a decent amount at one time, but because of inflation it will not pay for a shopping trip. Now it has more symbolic value than practical value. Modern treaties reflect modern times and deal with content that is more practical for today.

• Modern treaties are better because of the unenforceability of historical treaties, and the colonisers historical lack of ability or will to uphold their side of the agreement. Note however, colonising States are today much better at upholding these antiquated treaties than in the past. There seems to have been a shift from historical treaties not being worth the paper they are written on to being of fundamental importance to the colonial nation State’s legitimacy. What promoted this shift in perception when treaties remain unenforceable? Why would colonial states wish to move from unenforceable historical treaties to those enforceable in their domestic legislation? This shift towards increased enforceability appears to be against settler-colonial State interests.

• The modern treaty process is somehow linked with referendum success when lawyers and academics write about them. Why is a referendum needed for a treaty?

• Modern treaty is mostly a British Colombia/Canadian model/innovation, and is often looked to as an example to follow in Australia. The British Colombia situation is especially relevant to Australia because British Colombia was; like Australia, colonised terra nullius without treaties.

• New Zealand and the USA; settler colonial states with historical treaties, are not considering modern treaties. But New Zealand is considering increased self-government for Maori, and constitutional reform. Self-government is commonly cited as a characteristic of a modern treaty. And constitutional reform seems to be somehow related to treaty in Australia. So why not also refresh the Treaty of Waitangi content for modern times? New Zealand seem to be borrowing some of the main elements that are part and parcel of modern treaties, but without a modern treaty. As for the USA, why don’t they talk about modern treaties or constitutional reform at all?

I’ve come up with a hypothesis that explains many of these questions. It draws on the UN decolonisation resolutions 1514 (which is 60 years old today!) and 2625.

Historical Treaties

From a structural standpoint, these are entered into at or around the time of first contact. Original peoples were approached by European discoverer powers. The European settlements were established both legally and morally dependent on upholding the binding treaty terms. This was beneficial for both parties. The coloniser gains some protection of their territorial claim to ward off other European crowns. The original peoples set the conditions of settlement.

Once the European settlers had safely established themselves and their initially fragile colonial settlements, they turned to the Doctrine of Discovery Papal Bulls to justify wide-scale theft of land and genocide of the original people.

“…invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit”

Papal Bull Dum Diversas 18 June, 1452

The historical treaties were typically honored for a honeymoon period while invading powers established themselves, then ignored.

The Doctrine of Discovery has now been rightly repudiated and can no longer be used to justify territorial claims. Without the Doctrines of Discovery giving settler-colonial states their dieu et mon droit mandate to steal the land of infidels, historical treaties become – plain, normal treaties. That is; binding agreements between actors in International law.

In the withdrawal of the Discovery Doctrines from customary international law, settler states now remain dependent on these historical treaties for their territorial legitimacy. They operate on indigenous land conditionally on the terms of these historical treaties. The treaties are still binding. Most historical treaties did not explicitly agree to a complete cession of sovereignty. Because of this, the underlying sovereignty of the territory still resides with the original peoples.

In case of treaty-less territories (Australia, the Canadian province of British Colombia and perhaps other pockets); on the condemnation of the Doctrines of Discovery – the settler state is left with a flimsy legal basis. They must stay afloat by clinging to the wreckage of Discovery, while searching for a more sturdy legal foundation through “reconciliation”. For example, the Mabo 2 decision absurdly clung to the Doctrines of Discovery via Johnson vs. M’Intosh – more than 30 years after the UN Declaration on Colonialism.

There is an often cited criticism that historical treaties are not enforceable, and conversely modern treaties are better. As in there is no centralised “world police” to enforce internationally binding treaties, “historical” or otherwise. However there are mechanisms for non-centralised, diplomatic enforcement of treaties through international customary law. Hand-waving in the UN Security Council or General Assembly, withdrawing diplomats, closing embassies, sanctions etc. But settler-colonial states; like common burglars in the night, cut the phone lines to diplomacy and guard the doors of the courthouse to prevent historical treaties being enforced. Peoples under settler-colonial subjugation are effectively locked out of normal enforceability mechanisms. For example; the main judicial organ in International law is the International Court of Justice (ICJ). It is not possible to force a State into being judged on their unlawfullness in the ICJ (see Portugal vs. Australia). This is just one of barrier that locks peoples suffering under colonialism from the ICJ. The colonising state can refuse to consent to ICJ jurisdiction. Many of the usual treaty enforceability mechanisms in International law are denied because original nations are not recognised as being States.

Historical Treaties are effectively unenforceable. But there is now a ‘big stick’ available to all peoples under colonial subjugation in the Decolonisation resolution 1514 and the Friendly Relations resolution 2625. “Self-determination” in the colonial sense has not been technically achieved in settler-colonial states, including the USA. There is unfinished business, colonial settler states are on notice. Peoples under colonial subjugation can now theoretically pull the rug out from colonial states who are violating historical treaties.

This is why it is vital that settler states now uphold their historical treaties. The treaties are the settlers lifeline in the event of a challenge from original peoples under 1514. The Bluewater Thesis is an illusion and will not hold up forever.

Settler states remain burdened by the original peoples still holding the underlying authority of the land. This is not an ideal situation for them. If there was a way to wriggle out of this burden, they would find it.

Modern Treaties

There are three basic characteristics of modern treaties. Harry Hobbs and George Williams explain;

 A first principles assessment, and close examination of the modern treaty-making process in Canada, reveals that a treaty contains three elements. First, recognition that Indigenous peoples are polities, and so are distinctive and differentiated from other citizens within the State. Second, that settlement is achieved via a broad-ranging political agreement negotiated in good faith and in a manner respectful of each party’s standing as a polity. Third, that the State recognises or establishes, and resources, structures of culturally appropriate governance with powers of decision-making and control that amount to (at least) a limited form of self-government. Treaties are not merely symbolic instruments; they entail transferring some decision-making power from the State to Indigenous polities. The extent and scope of that self-governing power will differ according to context, but some decision-making power must be transferred. In consideration, Indigenous peoples must accept that the settlement constitutes a resolution of their claims against the State.

Harry Hobbs, George Williams

These three elements;

• recognition as political communities
• negotiation
• and an ongoing (possibly tokenistic eg. advisory-only) element of self-government

I posit that modern treaties are Instruments of Accession, similar to the instruments used in the formation of India, East Pakistan (Bangladesh) and West Pakistan (Pakistan). Accession is a process of entering into a treaty that is already negotiated, signed and in effect.

Remembering that both Canada and Australia, the two countries contemplating modern treaties; are already federations. A federation is a treaty. The treaty ‘documents’ are the Constitutions of each of the members of the federation (hence the requirement for constitutional reform for modern treaties to happen). The Commonwealth of Australia is already a treaty, or a compact between states or provinces. For original peoples to become party to one of these existing treaties of federation (Canada or Australia), they can do so through an accession instrument.

Accession instruments to a federation logically must include self-government because a federation is an arrangement where each member has a degree of self-government.

As Mohawk activist Russel Diabo has noted, Canada considers indigenous people as a “fourth level of government”. This is a possible outcome of the conclusion of “modern treaties” with an element of self-government.

New Zealand; unlike Canada and Australia, is a unitary State. Maori cannot accede to New Zealand because it is not a federation. This is why New Zealand is not doing “modern treaties”. It doesn’t work in their situation. They are trying a slightly different path.

Under a geographically comprehensive set of modern treaties or instruments of accession with original peoples (being kept track of through a Treaty depository), the settler-colonial State fully incorporates the original peoples into the settler polity and settler governance system. It is the political equivalent of marriage. ‘What’s mine is yours, what’s yours is mine’, there is no longer any distinction as to where sovereignty lies. The settler-colonial law can continue, using the original peoples’ legitimacy without having to meaningfully incorporate the cultural values or laws of those peoples. The terms of agreement can be fenced in by UNDRIP “rights”. The territory falls under the consented, legitimate control of the settler state. The land loses the influence of sacred lawkeepers and custodians. The settler-colonial communities are not expected to observe the sacred, ancient laws. But these ancient laws must be acknowledged at least tokenistically as they will replace the Crown as a source of legitimacy.

Modern treaty disarms the original peoples’ of holding the underlying authority of the land, and displaces original laws with foreign colonial law.

To enjoy the benefits from UNDRIP, the original peoples must meet the State’s burden of proof of cultural continuity. On the other side of the coin – the State now meets the burden of proof of their sovereign legitimacy through the consensual incorporation of the original peoples into the State itself.

Modern Treaties vs. Historical Treaties in the long-run

If you really want to see where modern treaties will lead in the long run, the best example to look towards is not British Colombia/Canada – but India. The act of Accession to the Indian federation remains internationally binding. But the negotiated terms of the (domestically binding) accession instruments themselves were and still are being betrayed. This is why Kashmir is still in turmoil today – India is not respecting the terms of the domestic “agreement-making”.

A recent example – Kashmir has tried to preserve it’s traditional family-based land-title through the terms of the accession instrument, and is now under huge pressure from mainstream India to open up to developers. There’s not a lot it can do against it, it is only a matter of time before they will be worn into submission.

There is one aspect today that could make a slight improvement on the Indian situation, and that is the UNDRIP. However, UNDRIP is not binding; it is an aspirational agreement between the “club” of nation states, and does not offer indigenous people’s their own leverage mechanisms.

Why “Treaty First” or Historical style Treaties are better

Historical, sovereign-to-sovereign treaties are (insofar as keeping up appearances internationally) respected by colonial states under the threat of the stick of UN Decolonisation. Settler-colonial states are scared of having the rug pulled out from under them. By not respecting historical treaties, they increase a real risk of their legitimacy being challenged under the UN Decolonisation framework.

This is why supporters of the Uluru Statement insist on constitutional reform BEFORE treaty. Constitutional reform in this context is federalism, and it is a structural prerequisite for modern treaties. It is preferable for the colony to have “modern treaties”, domestically enforced instruments which can be later ignored like what is happening in Kashmir.

A ‘historical’ type treaty – a “Treaty First” approach that Senator Lidia Thorpe advocates would be fully binding under International law. It is also theoretically enforceable under the “big stick” leverage of Aboriginal Torres Strait Islander peoples knowing they can walk away and declare independence under UN General Assembly resolution 1514 if their historical-style treaties are being violated.

The main reason why a historical treaty may not happen is because it would cause embarrassment for the Crown. But the Crown will have no choice once people see what’s going on.

Image by Steve Buissinne from Pixabay

In this video, Megan Davis spends about an hour talking about the importance of removing racial discrimination from the constitution. This was in 2012. She gives many good reasons why the Australian constitution needs an anti racial discrimination clause.

Fast forward to 2017.

The Referendum Council dumps the anti racial discrimination clause. This is despite more than 5 years of mainstream media propaganda trying to convince everyone why it was needed.

The stated reasons for the Referendum Council leaving out a prohibition on racial discrimination clause was that it wouldn’t advance self-determination, and wouldn’t provide a platform for treaty and truth-telling.

Well no shit. It doesn’t tick every single box. Neither would the Declaration of Recognition if they had bothered evaluating that against the same checklist. But the Declaration made it into the package.

A constitutional prohibition on racial discrimination – despite many good reasons to include it, was completely left out. ICERD (International Convention on the Elimination of all forms of Racial Discrimination) reviews continue to raise the weaknesses of the Racial Discrimination Act and the racist parts of the constitution as a major failure of Australia’s compliance with this important human rights convention. A constitutional anti-racial discrimination clause would have had a decent chance at preventing the cashless welfare card and the NTER. Both of these racist laws would probably be unconstitutional if a prohibition on racial discrimination were in the constitution and if ICERD were properly implemented. The legislation could be challenged in court, or to the Australian Human Rights Commission. The Human Rights Commission would then have the backup of the constitution itself. And even though going to a court might be expensive and time-consuming – it would be a deterrent to those drafting legislation that they have to make sure that they are not drafting something racist and unconstitutional.

A Voice to Parliament on the other hand would just give members of Parliament a bit of extra information to make their decision on a bill. Parliamentary backroom deals and members telephoning each other to get a bill through will happen regardless. “You vote yes on this bill, I’ll owe you one, wink wink…”. That’s how Parliament works – a “Voice” won’t change that. Watching the drama yesterday of the cashless welfare card passing the senate it’s clear that this is exactly how it works.

The real reason they left out the anti-racial discrimination clause is because there is a secret agenda behind all of this, and that is to decolonise. And you don’t need to remove discrimination under decolonisation by “free association”.Compare UN General Assembly Resolution 1541 annex Principles VII and VIII.

“Integration” (preambular recognition) requires the removal of discrimination – it needs to happen on the basis of equality. But “free association” (federalism with “First Nations” as per the Uluru Statement) does not.

The colony is so petty that it went out of it’s way, getting Megan Davis to back-flip on the anti-racial discrimination clause. They could have just left it in there – the Australian people would probably not bat an eyelid at it being included, it would protect everyone and make the Australian constitution look a bit less backward.

Image by edith lüthi from Pixabay

This post is part of some work I am working on in raising awareness for the UN Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES/1514/XV) made in 1960. The Declaration will be 60 years old on 14 December 2020.

1990’s “Reconciliation” was a project to lead to the decolonisation of Australia in a technical sense according to resolution (A/RES/1514/XV).

Australia’s first attempt at decolonisation was in the 60’s with the 1967 referendum. But in 1970, UN General Assembly resolution 2625(XXV) had a further development on the technical side of decolonisation – which retrospectively meant that the 1967 referendum didn’t meet it’s decolonisation goal. Resolution 2625 says (in quote below) that the native peoples of the territory retain their special status as people under alien subjugation (in accordance with the purposes and principles of the UN Charter) until they exercise their right to self-determination.

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

Exercising the right to self-determination in the context of decolonisation means to assert a political status on the international stage of nation states.

So all up this means – for a territory to decolonise – the descendant communities of the pre-colonial communities (or polities) must explicitly assert their political status in an international sense. This is what “self-determination” means in the context of decolonisation. It is not to do with autonomy or “having a say in their affairs”. It simply means to assert a status.

(Don’t confuse the right of self-determination for colonised peoples (A/RES/1514/XV) with the right of self-determination for indigenous peoples (UNDRIP) – they are completely different things.)

During the 90’s, this was what Australia was trying to achieve. The goal was to form a republic, with inclusion of an assertion of a status from the pre-colonial peoples.ATSIC was intended to be the vehicle for this exercise of assertion of political status.

Who did ATSIC represent?

The ATSIC Act was (at least in part) a special law for a race – it was established using the federal races power. The Aboriginal and Torres Strait Islander Commission Act 1989 defines:

* “Aboriginal person” means a person of the Aboriginal race of Australia.

* “Torres Strait Islander” means a descendant of an indigenous inhabitant of the Torres Strait Islands

One of these terms is clearly race based, and the other based on an individual holding indigenous descent. Note that there is no legal definition of “indigenous” in international or in Australian law.

A major change in who ATSIC represents

In the late 1990’s, there was a change in who – conceptually – ATSIC represents. The original terms relating to persons of a race, and persons with indigenous descent (Aboriginal persons, Torres Strait Islanders) morphed into a new political term: “Aboriginal and Torres Strait Islander peoples”.

The colony changed from using race/descent terms to using a single term representing a distinct polity through manipulation via the courts. The main case this occurred was in Shaw v Wolf.

In Shaw vs Wolf, eleven people tried to become ATSIC representatives and had their eligibility challenged in the courts. One of the persons, Ms Oakford, could not demonstrate Aboriginal descent; although she had self-identification and community acceptance. The court determined her to be ineligible to run in the ATSIC election because she couldn’t demonstrate Aboriginal ancestry. Judge Merkel’s decision redefined “Aboriginal person” from being a race-based term as per the constitutional foundation of the ATSIC Act into a political definition.

The courts established the three part definition. The three parts are descent, self-identification and community recognition. The latter two criteria plus the fact that ATSIC’s function is to control resources for the community form a textbook definition of a polity.

Including descent as the first of the three criteria allowed some semblance of continuity in using the races power against pre-colonial polities.

However there was a problem. Most political communities and nations in the world enjoy the prerogative to decide whether or not to confer membership on outsiders; regardless of bloodline. In deciding to exclude Ms Oakford from the Australian legal definition of Aboriginal community, the courts took that prerogative away from the Aboriginal community themselves. This undermining of the community’s prerogative may have been a technical blunder that put the whole republic project at risk.

The Shaw vs Wood court case occurred in April 1998, not long before the 1999 referendum. The court case was perfect timing to get the ducks in line before forming a republic. ATSIC was retrospectively defined by the court into a body that represents the descendant pre-colonial political communities. Compare this with UN resolution 2625. The three part definition (*almost) corresponds to the peoples who retain a “separate and distinct status” from the colonial occupation in resolution 2625. In the international law on decolonisation – a race cannot exercise the right to self-determination and decolonise. A political community can. ATSIC must represent the correct political community in order to fulfill it’s job of consenting to forming a republic.

The referendum – a (secret) backflip

ATSIC supported the preamble and the republic referendum right through the 90’s. The official position of the ATSIC delegation to the 1998 constitutional convention was of support. However something went wrong. I think the plug was pulled behind the scenes on the entire exercise. John Howard made unexplainable dumb decisions in 1999 which made the referendum very unappealing to the public. He effectively sabotaged it. “Aboriginal leaders” later backflipped on their support in 1999, they stated the reason was because Howard’s personal poet drafted the preamble. I don’t buy it ATSIC leaders… I smell a rat. Why drop support because of a poet, when it includes the recognition you spent a whole decade supporting?

One of the criteria of constitutional reform proposals since the 1999 failure was that reform must be technically and legally sound. The inclusion of this criteria is a bit strange – duh, it’s a given that any change to the constitution should be legally sound. Is this criteria stated, perhaps because the 1999 proposal was NOT technically and legally sound? Perhaps due to the courts denying the Aboriginal community’s choice to include Ms Oakford as an election candidate? Or another reason?

A second possible reason for Howard’s sabotage and eventual failure of the 1999 referendum is this – ATSIC was not able to demonstrate their position of support as being reflective of their constituency. The assertion of consent from the pre-colonial community is needed under UN General Assembly Resolution 2625 to decolonise. And it needs to be strong enough to demonstrate in an international court if challenged. ATSIC failed in it’s main job – the community did not consent. So early in 1999, Howard put forward an unviable republic proposal to ensure that Aboriginal and Torres Strait Islander peoples remain unaware of their own power, to give backflipping ATSIC leaders an excuse to back away, and to attempt to at least get the preamble change through (which was polling better than the republic question at that time). If Aboriginal and Torres Strait Islander peoples were to be tipped off that they have the right of veto on any republic proposal, they might be able to leverage that for land rights, reparations, a degree of self-governance, or to carve out their own fully separate nation state. Howard’s strategic sabotage kept that cat in the bag.

This theory sheds a new perspective on the Buckingham palace meeting. ATSIC leaders met with the Queen in Buckingham Palace in October, less than a month before the referendum in November. Members of the delegation reported that they did not discuss the referendum, but were talking about “Reconciliation”. I suppose they there to plan the next decade – Reconcilliation 2.0.

Rewriting History

I wanted to add a recent, and odd quote from a piece Megan Davis wrote.

The starting point is 1999. At the last referendum to be held in Australia in that year, Prime Minister John Howard put to the Australian people a preamble to the constitution that included recognition of Aboriginal and Torres Strait Islander Peoples. This form of recognition was rejected by all of the cultural authority of Australia in its entirety, from land councils to the elected representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC), to the electorate.

Megan Davis – The long road to Uluru

She sets the scene at 1999 – thus brushing away the support of ATSIC and “Aboriginal leaders” during the entire 90’s, including at the 1998 Constitutional Convention where ATSIC leaders had a supportive delegation. This is dishonest.

Right up into late 1999, at least some prominent “Aboriginal leaders” still supported the referendum. After the Buckingham Palace meeting in October 1999 –  Lowitja O’Donoghue stated

But I ought to say, that personally my position hasn’t changed as a result of having come to see the Queen, the Queen of Australia. I will still be advocating and voting ‘yes’ for a republic.

Lowitja O’Donoghue

When someone is being dishonest, they often try too hard and over explain themselves, and divert attention. The cheating husband has a big, elaborate, detailed story ready when he stumbles home late. I wondered why Megan Davis often writes these long articles going through history – going all the way back to 1967, into details which I don’t expect people to be interested in.

Why doesn’t she focus instead on the current reforms, and perhaps spend some of her word count and expertise to give us a better explanation beyond buzzwords and three-word slogans? Maybe she could explain what federalism of a First Nations entity would mean. Perhaps she could explain for us mere mortals how the reforms are “sophisticated” and “substantive”.

Megan Davis is being dishonest about the intention of every single attempt of these reforms, all the way back to 1967. They are – to decolonise Australia under UN/RES/1514/XV, for the benefit of Australians and the detriment of Aboriginal and Torres Strait Islander people.

On the 14 December 2020, it will be 60 years since Resolution 1514 on colonialism. 2020 also marks the final year of the Third  International Decade for the Eradication of Colonialism

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 1967 referendum was initiated by Lady Jessie Street. Jessie Street was the grand-daughter of squatter Edward Ogilvie – who participated in the Tabulam Massacre and built a castle near the massacre site.

Edward Ogilvie also kidnapped Aboriginal children, and admitted to doing so in a letter to the editor to the Sydney Morning Herald on 8 July 1842.

Jessie Street was born in British India, but grew up in the 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 the only female delegate from Australia at the San Francisco conference in 1945 when the United Nations Charter was written.

Jessie Street traveled overseas between 1950 and 1956. She spent time in England with the London Anti-Slavery Society. When she returned to Australia she recruited Pearl Gibbs. 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 Aboriginies. There was also a call for “integration” of Aboriginies, and equal rights.

“Integration” is one of the 3 methods for decolonisation from the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples.

According to the international decolonisation rules at the time, a colony can decolonise 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.

The referendum has strong ties back to England through Lady Jessie Street. The referendum gave the federal government to power to make racist laws to target Aboriginal people.

During the 60’s, the states all allowed Aborigines to vote and changes to the constitution were made.

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 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 colonies (those where the settlers are a minority) 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 laws of decolonisation, 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. We can do better.

If I ever manage to make inroads with educating mob about International Law and decolonisation – the “Blue Water Thesis” aka “Saltwater Doctrine” aka “Belgium Thesis” is probably going to be rolled out as an excuse as to why we can’t decolonise or achieve sovereignty on our terms.

But I am going to pre-empt the rolling out of this argument here.

According to the usual understanding of the Blue Water Thesis, if your coloniser is administering your territory FROM your territory (or from directly adjacent territory), and not from “overseas” – then it is not real colonialism. You have to have “blue water”, or “salt water” in between your country and the foreign colonial invader to count as “real” colonialism. When there is no oceanic separation, there is no option for decolonisation.

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

The territory of Australia is generally accepted as being administered by the Australian government. So, on the face of it (prima facie) there is no blue water separation between Aboriginal peoples and their occupying administrators, so it is not a colonial situation requiring decolonisation. But if you read the constitution/s, the Australian governments still derive 100% of their authority from overseas. Australia is technically administered from overseas, with everything delegated locally by the Crown. With all the smoke and mirrors; one could be forgiven for thinking that the Australian territory is fully locally administered, although technically and constitutionally it is not.

But let’s; for arguments sake, ignore the constitution like the colonial establishment often does, and posit that Australia is prima facie administered locally.

When you read the UN General Assembly Resolutions that the Blue Water Thesis is based on (A/RES/1541/(XV))- in context of the entire resolution – you will see that even without the presence of blue, salty water between the colonised and the coloniser; this resolution does not at all limit the right of Aboriginal and Torres Strait Islander peoples to decolonise.

It limits the obligation that the administering state has in transmitting information on the territory to the C-24 committee.

It doesn’t stop Aboriginal and Torres Strait Islander peoples from requesting assistance in their decolonisation, or affect their right to self-determination as peoples under alien subjugation.

Even if Australia is prima facie locally administered, the Blue Water Thesis does not limit our rights to decolonise at all! It only means that Australia does not have an obligation to report the status of the Australian territory to the C-24 committee on decolonisation.

We are still be able to REQUEST that we be put on the C-24 list and be afforded assistance from the International community.

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The full resolution click here

The part of the text that matters:

ANNEX

PRINCIPLES WHICH SHOULD GUIDE MEMBERS IN DETERMINING WHETHER OR NOT AN OBLIGATION EXISTS TO TRANSMIT THE INFORMATION CALLED FOR IN ARTICLE 73 E OF THE CHARTER OF THE UNITED NATIONS

A/RES/1541/(XV)

Image by Comfreak from Pixabay

Aboriginal law and custom is very strict on who has authority to speak for a group of people. One must have the correct authority, and can only speak with the explicit backing of those they speak for. An argument you will a lot from Aboriginal people is – “X doesn’t speak for me!”. It is a very ingrained principle. This contrasts with other cultures; and in my opinion – modern democracies could be improved by incorporating this element of strict accountability. Many unpopular and subsequently futile, protracted wars in recent history (Iraq, Afghanistan) would have never happened if this principle were followed by modern democracies.

In this post I am going to try to find a point of harmony with this Aboriginal principle and with a conflict this principle may have with International law on decolonisation.

Why International Law is important

I would like to see a meeting of Aboriginal law and International law because I believe that International law holds the best chance for true justice and a fair decolonisation process. The reason for this is twofold.

1. The legitimacy of Australia is ultimately grounded in the acceptance of that legitimacy by the wider international community. If the international community of nation states did not accept Australia as legitimate due to it’s ongoing colonial violations, then it would not be legitimate. (see: Constitutive theory of sovereignty) This point is massive political leverage if we understand it, and make it loud and clear.
2. The domestic laws of Australia offer no solution for our emancipation. The settler-colonial system was fundamentally built on our elimination. The goalpost has shifted from genocide to complete political assimilation – which will leave us as Australians and not as distinct peoples in our own right.

I can envisage some Aboriginal people taking a more purist point of view, and argue that International law is not “our law”, and therefore we shouldn’t accede to it or accept it. I can see that point of view; but in practical terms our distinct political identities will die in a slow, painful death without outside, international support. We don’t have a military, and I can’t see us embarking on a guerrilla war or envisaging violent tactics going anywhere. Leveraging International law and diplomacy is the only viable option we have. And the fact is – although international politics is dominated by a small minority of powerful nations who benefit directly and strive to uphold settler-colonial status-quo, International law is clearly on our side in regards to decolonisation.

I have sometimes compared the dynamic under colonialism as being similar to the dynamic of a domestic violence situation. We are living in the same house as a controlling abuser. There comes a point where an abused, beaten woman realises “he will never change”. I hope she realises it before she ends up dead. I would say to her “I know – you are traumatised and beaten – but realise the urgency. You must do something about your predicament. Don’t sit and wait for the abuser to redeem and make everything better. The first step is to build a support network outside of the house, and to think seriously about what to do next. “

There are “support services” available for colonised peoples. There is the UN C24 decolonisation committee. We need to find a way to access these “support services” and to make friends outside of the abusive household (establishing diplomatic relations with other countries). This will make things easier when we eventually kick the abuser out of our house, or come to a negotiated resolution with them. Right now we are under so much control that we are not aware of potential sources of outside support, and we are being presented with an extremely narrow set of solutions by the abusive party.

What is Uti possidetis juris?

Uti possidetis juris is a principle in International Law to do with decolonisation. It means that upon decolonisation and the emergence of a new independent state (country), the previous colonial borders are kept intact. (see Burkina Faso vs. Mali ICJ case for an example)

This principle effectively overwrites any pre-colonial nation boundaries and replaces them with imposed colonial borders. This does have some logic. It is intended to prevent disputed “terra nullius” territory arising from gaps left after decolonisation; to protect newly independent state borders from conflict. The principle arose in South America and Africa; continents with multiple competing European colonising powers. On the face of it, this seems logical and makes sense. However in practice it hasn’t worked out – and has resulted in conflicts between peoples and the random decolonised state they have ended up in – all because some European fulla drew a straight line on a map a few hundred years beforehand.

The principle of uti possidetis juris does not make sense for application in Australia for a handful of good reasons. It is a continent – with no land borders, with a single European colonial power dominating. Aboriginal law has songlines creating threads of continuity covering most of the territory, and territorial boundaries which have; for the most part, not been forgotten. No third-party has a plausible historical claim the territory. But because uti possidetis juris is already well established in International law, it is something that applies regardless by precedent. Yes, it’s dumb. But don’t shoot the messenger (me). Just be aware.

Let’s use Australia and the Murrawarri Republic as an example to show how uti possidetis juris might function. The Murrawarri Republic is an unrecognised (in the wider International community) Aboriginal micro-nation who declared independence in 2013. Following their own custom (of only speaking for their own land and people); they only declared independence for their own territory. However; under International principle of uti possidetis juris; they cannot do that. They need to claim the entirety of the Australian territory – because the colonial nation boundaries must be maintained. There is a conflict here between Aboriginal territorial law and International Law regarding territorial matters.

If the Murrawarri Republic claim were to be accepted by the International community, it would violate uti possidetis juris. It would make the remaining territory of Australia a “terra nullius”; a contested territory.

I’m not saying that the Murrawarri Republic have done anything wrong. They followed and asserted their own law. But I am giving a reason as to why their Declaration of Independence has not been accepted in International Law. As far as I can see – by all other laws on decolonisation – they have done the right thing. However they can’t act alone.

Why is Uti possidetis Juris so important to understand?

What uti possidetis juris effectively means is that all Aboriginal and Torres Strait Islander peoples; occupied polities of single colonial territory, need to come to a singular political consensus in order to decolonise.

The Referendum Council is well aware of this. This is a major reason why they fabricated a pan-indigenous consensus at the Yulara dialogues in violation of Aboriginal law. They know that a clan/nation/mob cannot decolonise alone. They are exploiting this principle for the benefit of the colony.

To counter this fabrication – a strong counter consensus needs to be put forward.

How can Aboriginal law meet International Law harmoniously

So how can we retain our national (tribal, clan, nation etc.) boundaries, yet still decolonise?

Part of the sovereignty movement at the moment; is a movement to “come home”. To reconnect with our homelands, customs, stories, ways and laws. I believe this will be an extremely important part of building a strong foundation from which meaningful decolonisation can happen.

Personally, I am a failure in this reconnection effort (I live in Europe!). But I want to stress how important it is to reconnect with this foundation that the colony tried so hard to destroy. I know it looks hypocritical to preach sovereignty from overseas; but at the same time I want to say – we are all on a journey. It’s not where we are as individuals on that journey that matters; it’s the direction that we are moving as a collective. The direction toward a collective reconnection with who we are is more important that worrying about what any individual persons are doing.

Once this connection back to country is built (actually – a process that never ends!), a “national consensus” can be formed. Just like what the Referendum Council tried to do, but a consensus that will not sell out our interests.

A National Consensus – a suggested pathway

I don’t want to prejudice what that consensus might be. Whilst I am Aboriginal person, I can’t speak for anyone but myself. In saying that; below I offer a suggestion as to what that consensus might look like. A consensus that I hope would be compatible with Aboriginal and Torres Strait Islander laws and customs; yet facilitates decolonisation under International law.

To cleanly navigate Uti possidetis juris, decolonisation needs to happen in a two-step process.

Process-wise: all First Nations will need to each endorse the overall two-step roadmap plan (by a treaty/agreement between ourselves). Under Aboriginal law and under Torres Strait Ailan Kastom – all nations need to explicitly consent. Under International law – a consensus of the occupied peoples of the colonial territory needs to be reached, but pockets of dissent can be brushed aside. Aboriginal law and Ailan kastom is stricter. It’s better if we can come to a unanimous and fully inclusive agreement to be true to our own laws. For this reason, it will not be easy to figure out and agree on the details; but as far as I can see – this is the only way.

Step 1. The first step is to meet the International Law requirements for decolonisation. This can be done by declaring independence as a single unit – I will call it for now – the Autochthonous Confederation of First Nations (ACFN). We need to come together under a single banner to give the colony the initial boot. This would involve firstly writing up a constitution for the confederation, secondly each nation agreeing to join the ACFN, and thirdly declaring independence.

The ACFN constitution needs to be drawn up very carefully; this is where we can draw on support of the international community (they have an obligation to support us), maybe the UN C24 committee can help. We need funding to make this happen, as our abuser controls all our resources. At this crucial step, we need to truly have our wits about us to counter inevitable sabotage attempts.

Step 2. The second step after independence is where each nation (according to how the peoples decide how to identify themselves) can decide whether to remain in the confederation, or go their own way^*. If they go their own way, they can treaty with the Crown on their own terms, or simply choose to act independently of the new confederation in the wider international arena. The option to exit the ACFN needs to be left open in order to respect each nations right to self-determination on their own, or to exit and treaty with the Crown if they so choose. This option of a separate, full sovereignty of an Aboriginal tribal/clan micro-nation is normally thwarted by uti possidetis juris; but this two-step process with an intermediary confederation works around it.

_{*(This is technically called secession from the confederation- this needs to be discussed and be part of the roadmap from the start because there may be complications in International law. Note article 16 clean slate tabula rasa provision of the Vienna Convention on Succession of States in respect of Treaties)}

Since “Australia” would technically no longer exist at this stage; it is not possible to do a treaty with Australia, only with the Crown. Since Australia never fully attained independence from the Crown anyway – this is an issue of semantics. I don’t know why any nation would want their own treaty with the Crown at his point (reparations? unfinished business?) but if they really want to, this is where it can happen.

The elephant in the room is the Australian people. They need somewhere to call home, their needs need to be met, they need political representation etc. The whole process can, and should include Australians from the outset. They will need some guarantee on their personal property – I would suggest retain most existing, modest private land titles to be transferred initially as 100 year leases from the Confederation to give normal Australian people security. Disruption can be minimalised by simply replacing “Crown title” with another underlying title for the interim. Australians could have their existing political systems and institutions reenacted for themselves if they feel it suits them. Constitutional protection of basic human rights is something Australians have never enjoyed under the colonial federation and should be negotiated generously. We do not want to become oppressors. The ACFN could establish a political relationship with a newly enacted “Australian” parliament by a condominium. Or perhaps by something structurally similar to what the Uluru Statement requests as a federal compact; but negotiated transparently with powers better distributed to the true custodians so they can fulfill their duties of looking after country without Rio Tinto blowing it up.

The big difference between the Uluru Statement and this approach is that the Uluru Statement is being driven by an elitist, colonial mindset behind closed doors; whereas this process could be driven by the sovereign people. It can be made an inclusive process that can be presented as a clear roadmap placed on the table from the outset well before independence of the ACFN is declared. You will never please everyone; however the true custodians of the land should be the ones driving it and should have the final say – with the needs of the Australian people accommodated as well as possible. It should not be driven by an astroturfing campaign primarily coming from those with historical blood on their hands; the mining industry, the domestic legal industry, constitutional conservatives, politicians and colonial institutions.

Final word

We need to be putting ideas on the table for discussion. We need to become familiar with International Law and with potential “gotchas” such as Uti possidetis juris. And we need to get our governance sorted and clearly asserted. We need to drive this. We need to stand together, even just for a single moment in time. If we don’t, we will be railroaded into a form of decolonisation that will destroy our identities.

Most importantly; we need to have hope; to imagine, to visualise and to believe that it is possible to decolonise under our own terms. Visualising how things could play out is the first step to making something possible. I know that’s not easy to think of a positive future whilst on the ground having your guts kicked out. But you have to in order to survive.

Photo by Curioso Photography from Pexels

1. How widespread is support of the proposal in the wider Aboriginal and Torres Strait Islander community?

We can argue till the cows come home about how widespread the support is. But until there is an inclusive plebiscite of the peoples involved, no one can definitively make a claim either way. Reuters gave Hillary Clinton a 90% chance of winning the election against Trump just hours before the 2016 vote – and she lost!

Polls and invite-only meetings can be skewed, just as interacting in social media bubbles can be skewed. Only 7% of eligible people voted in the Victorian First Peoples’ Assembly elections – indicative of general distrust in government-run processes. This brings us to the next, more important question…

2. How do/did Aboriginal and Torres Strait Islander peoples consent to the Uluru Statement reforms?

What is the mechanism for consent for the reforms? Has it already been given by Aboriginal and Torres Strait Islander peoples, or is it still to be given?

This is important for Australians to know before they run off to their local members asking for a referendum because they think it’s what Aboriginal people want.

This is important for Aboriginal and Torres Strait Islander peoples to know so they can give their free, prior and informed consent, and do so consciously.

Australia is a dualist state, and has not yet incorporated the UNDRIP notion of “free, prior and informed consent” into domestic legislation. So we don’t even know what “consent” in this context means. In 2018, the UN Expert Mechanism on the Rights of Indigenous Peoples did a study on “free, prior and informed consent”. If you want to know what Australia really thinks about “free, prior and informed consent” you can read it in their submission to the study (tl;dr – they haven’t decided yet!).

How can consent be given when both the definition and mechanism of consent is unclear?

This is a critical question – consider how the rules of consent were changed to get the Noongar settlement through by changing Native Title Act. This settlement has been dubbed “Australia’s first Treaty”, so it is a harbinger of things to come with agreement-making. We need to agree on the rules of consent up-front before any major reform. Otherwise government can make their own definition on the fly to suit themselves.

For example – if black consent for constitutional recognition meant a yes/no question vote at 60% majority of Aboriginal and Torres Strait Islander peoples in a majority of states, then at least we would be on par with the standard to change the Australian constitution. Australia chose how it defines consent of their peoples, why are our own cultural notions of consent not also respected?

The right to self-determination should also include the right to say “no” to political assimilation and “no” to constitutional recognition. When have the wider Aboriginal and Torres Strait Islander community ever had the chance to say “no”? They never have. The multi-million dollar question has always been “How do you want to be recognised in the Constitution”. Not a cent has been spent on asking – “Do you want to be in the Constitution at all?”.

3. Why is the proposed function of the Voice to monitor the race power and the territories power?

Quoting from the Referendum Council Final report main recommendation –

One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122.

Final Report of the Referendum Council (page 2)

Section 51 (xxvi) is the power to pass laws “for any race”. Section 122 is a power over territory that the commonwealth has acquired (under the section “New States” – because the Voice will be a new State!).

Would it make sense for the Queensland Parliament (representing a polity of the people of Queensland) to have the function to monitor the use of some random heads of power in the federal constitution?

Nope.

And it makes about the same amount of sense to have the Voice (representing a polity of the “First Nations” peoples) monitoring these two federal powers. Is the Voice going to monitor laws on the Jervis Bay Territory or the Australian Antarctic Territory? Is the Voice going to ensure Australia’s immigration policy does not revert back to the White Australia Policy, as per the original intention of the races power; to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth?

The monitoring heads of power function of the Voice doesn’t make sense. There is no real correlation with these heads of powers and “matters affecting Indigenous peoples”. Aboriginal and Torres Strait Islander peoples are a polity, not a race.

4. What happens to sovereignty?

Yes – we know… the “guiding principles” say that sovereignty will not be ceded or diminished.But what happens to sovereignty? Who is game enough to explain the effect on sovereignty beyond fragmented soundbites regurgitating the mantra of “sovereignty never ceded” or talking about Phillip’s instructions?

Discussion from Australian lawyers about Aboriginal sovereignty usually come back to domestic court decisions which can only deal with the “internal” notion of sovereignty, and are based on English interpretations of International law. What about International Law and external sovereignty? How will external sovereignty be affected?

5. Why do mining companies support it?

Simple question – what’s in it for them? Rio Tinto are blowing up sacred sites and simultaneously supporting the reforms.

6. What happens when Australia becomes a republic and the constitution is rewritten?

Protection in the constitution is only going to last as long as the constitution itself. Forming a republic will involve major constitutional reforms or a rewrite of the constitution. What happens to the Voice then? What will protect it from being erased or being equated with voting rights?

7. What does the worst-case scenario look like?

As a matter of strategy, if you going to make take-it-or-leave-it offers to a government in exchange for sharing your sovereignty, your offer needs to be solid. This means – the worst-case scenario that meets the terms of the offer needs to be acceptable. Fantasising about the various functions the Voice could have is not helpful if those functions were not part of the offer. Only elements part of the original take-it-or-leave-it offer are binding, optional add-ons from co-design are not. What does this worst-case scenario look like?

8. How are the negotiated terms of agreement-making enforceable?

Colonial countries historically have very poor track records for keeping their Treaty obligations. But since the UN’s call for decolonisation in the 60’s, settler-colonial nation States have been a lot better at upholding their Treaty obligations, because they are on notice that historical treaties are fully enforceable in International law. The legitimacy and foundation of settler-colonial States depends on upholding those historical treaties, and they know it.

The Uluru Statement calls for agreement-making. How will the terms negotiated in agreement-making be enforceable? Will the legitimacy and foundation of Australia be dependent on upholding internationally enforceable agreements, or are they simple contract terms that are enforceable only in domestic courts?

When we talk about the “myth of terra nullius“, this is normally understood to mean that in the past, Australia was erroneously claimed to be a terra nullius upon discovery by the British. And this myth was the basis of settlement of the colonies. The error of terra nullius was rectified by the High Court overturning it in 1993.

But this is a myth in itself.

The Crown never explicitly claimed Australia was a terra nullius. There was also no declaration of war to legitimise Crown conquest and there is no treaty. The Crown, with it’s honorable nature, would never illegally invade, genocide and dispossess other nations to claim sovereignty over their territory, right? So by deduction, the only way the Crown’s claim can be legitimate is if the Australian territory was a terra nullius upon discovery.

It’s a retrospective inference of convenience, not an explicit claim. It’s often claimed that terra nullius derived from the Bourke proclamation, and that it was overturned in the 1993 Mabo ruling. I am going to break down the history here and show that is a distortion of the truth.

Timeline of terra nullius

Here is a timeline of events that I think were important in the development of the terra nullius myth.

In 1823, in a landmark case in the United States, Johnson v. M’Intosh held that private citizens could not purchase lands directly from Native American tribes. This ruling drew from the right of preemption from the Discovery Doctrines. The right of preemption means that when a European claims ‘discovery’ over a land in the right of their Crown, that Crown gains a preemptive right; or in other words – an exclusive right, to treaty or purchase in that discovered land. It does not grant automatic sovereignty. All it does is remind other European powers of their agreement to stay away from each others ‘discovered’ territory. This rule was to benefit to European discoverers, it meant that they would not waste expense fighting with each other, and could concentrate on dominating non-Europeans and conquering new lands. more info on Johnson v. M’Intosh here

26 August 1835 was the date of the Bourke proclamation. This implemented some of the findings of Johnson v. M’Intosh in the laws of the Colony of New South Wales. It affirmed the Crown’s right of preemption. It invalidated the Batman treaty, just as Johnson’s attempt to purchase land directly from the Piankeshaw Indians was found invalid.

The Bourke proclamation applied to New South Wales – which did not have the same boundary as today. At the time, New South Wales extended north to Cape York, west to 129 degrees (current WA border), and included part of New Zealand’s north island. It did not include Van Diemens land (Tasmania), Western Australia or the Torres Strait Islands.

I think the northern islands and Western Australia were not under a similar Proclamation because the British knew well they had a shady claim over these Dutch-discovered territories from the Anglo-Dutch Treaty of 1824, and therefore had no right to make such a proclamation. Van Diemens Land was probably excluded because the colony was already progressing very well in completely wiping out the Aboriginal people.

Also note that Mer (Murray Island) where Koiki Mabo is from, was also never part of New South Wales and therefore never under this New South Wales proclamation. Mer was annexed by the Colony of Queensland in 1879.

The Bourke Proclamation established the Crown’s right of preemption, but that is not the story we hear today. We are told that it implemented terra nulius.

The Proclamation of Governor Bourke implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown taking possession of it. Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown.

Source: http://www.migrationheritage.nsw.gov.au/exhibition/objectsthroughtime/bourketerra/index.html

The Bourke Proclamation does not say that there are no Aboriginal people, or that Australia was a no-man’s-land. On the contrary; the proclamation would not make any sense if it were truly a no-man’s-land, as there would be no people that settlers could buy land from and therefore no need for such a declaration. Here is part of the actual proclamation (emphasis added for skim-reading);

Whereas, it has been represented to me, that divers of His Majesty’s Subjects have taken possession of vacant Lands of the Crown, within the limits of this Colony, under the pretence of a treaty, bargain, or contract, for the purchase thereof, with the Aboriginal Natives; Now therefore, I, the Governor, in virtue and in exercise of the power and authority in me vested, do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, as aforesaid, for the possession, title, or claim to any Lands lying and being within the limits of the Government of the Colony of New South Wales, as the same are laid down and defined by His Majesty’s Commission; that is to say, extending from the Northern Cape, or extremity of the Coast called Cape York, in the latitude of ten degrees thirty seven minutes South, to the Southern extremity of the said Territory of New South Wales, or Wilson’s Promontory, in the latitude of thirty nine degrees twelve minutes South, and embracing all the Country inland to the Westward, as far as the one hundred and twenty ninth degree of east longitude, reckoning from the meridian of Greenwich, including all the Islands adjacent, in the Pacific Ocean within the latitude aforesaid, and including also Norfolk Island, is void and of no effect against the rights of the Crown; and that all Persons who shall be found in possession of any such Lands as aforesaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.

The Bourke proclamation also applied to part of the north island of Aotearoa which was then part of the Colony of New South Wales. Waitangi is located in this area of proclamation. So – how could the Crown treaty with natives at Waitangi, if Waitangi was declared a terra nullius in the Bourke proclamation? Clearly, the Bourke proclamation did not claim terra nullius.

Moving on from the Bourke proclamation of 1834.

In October 1835, northern Maori declared independence with the help of James Busby. I think James Busby was acting for the Crown, and this declaration of independence was the first step in getting Maori governance formalised in order to facilitate a treaty. The British were worried about the French being first in making a treaty with the Maori. They were probably also worried about the Johnson v. M’Intosh precedent, as Pakeha were already buying (and stealing) land off Maori.

1838: In New South Wales, the office of the Protector of Aborigines was established pursuant to a recommendation contained in the Report of the Parliamentary Select Committee on Aboriginal Tribes, (British settlements.) of the House of Commons. The office of Chief Protector of Aborigines was established in some states, and in Queensland the title was Protector of Aboriginals.

10 June 1838 The Myall Creek massacre. What followed is was what I think was a show-trial to demonstrate to the outside world that the colony of New South Wales were doing their part ‘protecting’ the natives. But in reality, there were literally hundreds of other massacres going unpunished, and in some cases led by colonial officials.

15 June 1839 A new Letters Patent was issued to expand the territory of New South Wales to include the whole north and south islands of New Zealand. Before that, New South Wales was only part of the North Island (cut by a line the latitude of Wilsons Promontory).

6 February 1840 Treaty of Waitangi was signed. Part of the treaty was that the Crown agreed to “protect” the Maori. The idea is, that Maori get protection from the French invading them, and the British Crown gets exclusive settlement on their land. This gives an idea as to why the Aboriginal Natives back on continental New South Wales also need “protection”. Protection is supposed to be a benefit gained in exchange for surrendering land. This explains why the Myall Creek show-trial was necessary, it added a (fake) stamp of legitimacy to the Crown’s land acquisition in continental New South Wales.

Putting these events all together, what happened is that the Crown took the land and paid for it with “protection” services, rather than negotiating a treaty. And “protection” was redefined as hunting us down and institutionalising us. It is absolutely criminal.

The overturning of terra nullius

The so-called ‘overturning of terra nullius’ in 1993’s Mabo 2 case never really happened.

Firstly: Mer (Murray Island) was never subject to the Bourke proclamation. If the Bourke proclamation really implemented terra nullius, it is not relevant to the Mabo case.

Secondly: Even if terra nullius were claimed – it would be a Crown claim in International law. Only the Crown can overturn it’s own claim. Only an international court could rule that claim to be invalid. The High Court of Australia doesn’t even have the jurisdiction to question the Crown’s acquisition of sovereignty. So it is ridiculous to claim that it can overturn a Crown claim made in International law.

So if Mabo 2 didn’t “overturn terra nullius”, what did it do?

What Mabo 2 did was overturn the Crown’s right of preemption. The Commonwealth governments are now acting rogue, like Johnson or Batman, doing their own land ‘purchases’ (Indigenous Land Use Agreements). (* edit – since I wrote this post I have dug deeper and found the relevance of Pratt-Yorke) More recently, they are starting to justify unilateral extinguishment of Native Title. The recent Timber Creek compensation case set a precedent that makes it profitable for States to extinguish Native Title if they find a third-party to offload at the right price. Queensland recently extinguished Native Title for Adani. There is now no way within the colonial system to say ‘no’ to having your land taken. The way things are going, all Native Title will eventually be extinguished.

The States are also now preparing to start “treaties” recognising (usurping) sovereignty, just like they recognised land title.

The overturning of the Crown’s right of preemption paved the way for Australia to treaty directly with First Nations. It’s an essential step towards usurping both Aboriginal land and sovereignty. The only way out now is to assert sovereignty and work outside of the Australian system and to look internationally.

Image by S. Hermann & F. Richter from Pixabay