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.
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.
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 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.
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“
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.
“Advance Australia Fair” extolls the virtues of exploiting nature’s gifts for the “advancement” of white people. It’s a joke to think that to change a single word makes it inclusive of Aboriginal and Torres Strait Islander peoples – peoples who’s fundamental world view is incompatible with the overall message of the anthem.
It’s also a joke that Australia pretends that it is an independent democracy.
The plebiscite to choose this song in 1977 was not even a question about adopting an official national anthem. It was about choosing a “national song” to be played at non-Regal occasions.
The 1977 question was:
“Against the background that ‘GOD SAVE THE QUEEN’ is the NATIONAL ANTHEM to be played on Regal and Vice Regal occasions, electors may indicate their preferences as to which of the tunes of the songs listed below they would prefer to be played on other occasions.”
Plebiscite question 1977
Note – “which of the tunes of the songs”. They were not even voting on lyrics, just on the melody.
This latest tweak to the lyrics (changing ‘young’ to ‘one’) was done by proclamation by the Governor-General with the consent of the States. So Australians have still never voted on their choice of national anthem.
The colonial elite saved this latest change for the eve of the 120th year anniversary of the Federation of Australia. The timing is a sign it was likely planned years in advance, with publicity stunts over the latter part of 2020. Or maybe we can believe the media and it was Glady’s idea from last month…
This is just a part of getting the ducks all in a line to prepare for our political assimilation as “First Australians”. We need to have our wits about us in this new decade.
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.
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.
