Australian Indigenous Sovereignty

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Sovereignty sign at the Aboriginal Tent Embassy Aboriginal Tent Embassy, Canberra 006.JPG
Sovereignty sign at the Aboriginal Tent Embassy

Australian Indigenous Sovereignty, also recently termed Blak sovereignty, refers to various rights claimed by Aboriginal and Torres Strait Islander peoples over parts or all of Australia. Such rights are said to derive from Indigenous peoples' occupation and ownership of Australia prior to colonisation and through their continuing spiritual connection to land. Indigenous sovereignty is not explicitly recognised in the Australian Constitution or under Australian law. [1]

Contents

Political movements have emerged in the 20th and 21st centuries around the cause of Indigenous Sovereignty, seeking various political, economic and cultural rights both within and outside of the Australian State. According to some supporters, the recognition of the prior occupation and ownership of Australia means accepting sovereignty by the First Peoples, and also paves the way for a treaty between the First Peoples and the Government of Australia. A referendum is planned for late 2023 to vote on constitutional amendments both to recognise First Nations sovereignty of the land and to provide an Indigenous Voice to Parliament.

Background

Aboriginal peoples have occupied mainland Australia since at least 65,000 years ago, [2] whereas colonisation of Australia by the British only began in 1788 with the arrival of Governor Arthur Phillip and the First Fleet. No treaty was signed with the Aboriginal peoples of Port Jackson at the time, [3] and sovereignty of the land has never been ceded by any First Nations people since. Notably, the Letters Patent establishing the Province of South Australia of 1836 (unlike the South Australia Act 1834 , which it amended), included recognition of the rights of the Aboriginal peoples of South Australia. [4] [5]

After the colonisation of Australia, the British afforded very little recognition of Aboriginal customs and laws in the various Australian colonies. In 1840, all Governors in Australia and New Zealand were directed that all Aboriginal customary law was to be superseded by British law. [6]

Indigenous sovereignty has not been recognised under Australian law, whether as sovereignty that existed before colonisation or that still exists. [1] This is not the case for other countries colonised by British settlers. The US recognises the continuing tribal sovereignty of native American nations and allows a certain level of self-governance and law making. [7] Canada recognises a certain level of sovereignty with its Indigenous Peoples, with courts upholding treaties agreed to at colonisation (such as in the case of R. v. Sioui 1990) and other treaty negotiations ongoing at different levels of government. [8]

In Coe v Commonwealth (1979) [9] the High Court of Australia rejected the notion that there existed an Aboriginal Nation that exercised sovereignty of an even limited kind, distinguishing the US case of Cherokee Nation v. Georgia (1831) which recognised Native American nations as 'domestic dependent nations' of the US by reasoning that the Aboriginal People of Australia are not organised as a "distinct political society separated from others" and that they have never been uniformly treated as a state.

In Mabo v Queensland (No 2) (1992), [10] the High Court recognised the pre-colonial land interests of Indigenous Australians within the common law of Australia in the form of native title. However, these rights did not arise due to continuing Indigenous sovereignty; the court merely held that existing rights to land held by Indigenous groups were not automatically extinguished on acquisition of sovereignty by the Crown. The case has also been interpreted by the High Court in later cases as also holding that there no longer exists any limited sovereignty in Indigenous groups. [11] In addition, the court held that the validity of the acquisition of sovereignty by the Crown cannot be challenged in the courts. [12] However by also rejecting previous authorities that characterised Indigenous societies as "without laws, without a sovereign and primitive in their social organization" the judgment has also been taken to implicitly recognise the existence of Indigenous sovereignty prior to colonisation. [13]

Activism

20th century

The rights and political movements associated with Indigenous sovereignty vary significantly and there is no consensus as to what recognising Indigenous sovereignty would entail. Some earlier activists raised the possibility of full secession from Australia; [14] however, most sought a different level of autonomy within the State. Other call for reparations, self-governance and the ability to live under traditional law unimpeded, with any future interactions between Australia and Indigenous nations to be at a minimum. [15] The recognition of an Indigenous nation under the Commonwealth has been compared with the shared responsibility and sovereignty between the states and territories and the federal government. [16]

From the 1920s until the 1967 referendum, the struggle for the rights of Indigenous Australians was expressed in terms of demands for full citizenship rights. The Nationality and Citizenship Act 1948 (Cth) granted nominal citizenship to Indigenous Australians, however the vast array of discriminatory laws and practices meant that they were citizens in name only. Only following the civil rights movement in Australia along with the passage of the Racial Discrimination Act 1975 (Cth) did explicit discriminatory laws end. [17]

However, the use of the citizenship framework to agitate for rights was not uncontroversial as this framework implicitly recognised and affirmed the authority of the Australian state. There remained great suspicion that civil rights were granted as a part of a broader cultural assimilation project by the State. [18]

Following the 1967 referendum, greater emphasis was placed on Indigenous Sovereignty to call for greater self-autonomy and self-determination. New activists emerged, challenging the assumptions of the previous generation by conceptualising their struggle as that of an oppressed people rather than as minority group seeking inclusion. [19]

In 1972, the Aboriginal Tent Embassy was established on the steps of Old Parliament House in Canberra, the Australian capital, to demand recognition of the sovereignty of Aboriginal Australian peoples. [20] Demands of the Tent Embassy have included land rights and mineral rights to Aboriginal lands, legal and political control of the Northern Territory, and compensation for land stolen. [21]

In 1979 author and activist Kevin Gilbert led the "National Aboriginal Government" protest on Capital Hill, Canberra, calling for acceptance of Aboriginal Sovereignty. [22] [23]

In 1988, the Australian Bicentenary, the "Aboriginal Sovereign Treaty '88 Campaign" called for recognition of Aboriginal sovereignty and for a treaty to be enacted between the Commonwealth of Australia and Aboriginal nations. [24] Gilbert became chair of the Treaty '88 campaign. He defined the legal argument for a treaty or treaties and Aboriginal sovereignty in his 1987 work Aboriginal Sovereignty, Justice, the Law and Land. [23]

21st century

The Aboriginal Tent Embassy, still in place on its 50th anniversary as of 2022, [25] remains a symbol of Aboriginal protest relating to various Indigenous issues. Protests have been held there against Aboriginal deaths in custody, the Howard government’s 2007 Northern Territory Intervention, and cuts to services. In 2020, its most prominent issues are Aboriginal sovereignty and an acknowledgement of Indigenous right to self-determination. [21] In 2012, there were seven tent embassies dotted around the nation. [26]

In February 2012, barrister and 2009 Australian of the Year Mick Dodson addressed Parliament on the subject of "Constitutional Recognition of Indigenous Australians". He raised three issues: an acknowledgement in the Constitution that the Aboriginal and Torres Strait Islander peoples were in Australia first and also in possession of the country, when the British Crown asserted its sovereignty over the whole continent, and it follows that the land was taken without consent; the second was about issues of Aboriginal identity being respected and protected within the Constitution and Australian law; and the third element related to equal citizenship under law. [27]

Uluru Statement and the Voice to Parliament

In 2017, the Uluru Statement from the Heart was released which stated that Aboriginal and Torres Strait Islander tribes were the original sovereign nations of the land of Australia. This sovereignty is of a spiritual nature and has never been ceded or extinguished, instead co-existing with the sovereignty of the Crown. [28]

The document also calls for constitutional changes and reform such that "this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood". The reforms sought are a constitutional amendment to provide for an Indigenous Voice to Parliament, a Makarrata Commission to engage in agreement making between governments and First Nations and a truth-telling process. [28]

A referendum to establish the Voice to Parliament, as required for any constitutional amendments, was announced by the Albanese Government and is planned for the later half of 2023. [29] As part of the debate over the Voice, Lidia Thorpe, an independent Senator originally elected as a Green, expressed concerns that the Voice model would impact Indigenous sovereignty. [30] However, government ministers, constitutional and international law scholars, and Voice advocates such as Megan Davis and Noel Pearson say that these concerns are baseless. [31]

"Blak Sovereignty"

After defecting from the Greens in February 2023 ahead of the referendum, Thorpe said that she wished to lead the "Blak sovereignty" movement, and campaign for such called a Treaty with First Nations people before implementing the Voice. [32] [33] [34] [35] Her idea of Blak sovereignty includes the creation of a Blak Republic as an ultimate goal. [36]

Treaties and constitutional recognition

A treaty is a legal document defining the relationship between two sovereign entities. As of 2020 there are no treaties between the Australian Government and Indigenous peoples of Australia; [37] There are ongoing negotiations in some states and territories of Australia on the possible crafting of treaties between Indigenous peoples and governments.

A treaty between the Australian government and the country's First Peoples would at a minimum recognise symbolically Indigenous Sovereignty through recognising them as independent actors not totally represented currently by the State of Australia. [38]

There have also been moves towards constitutional changes both to recognise prior occupation and ownership (and thus sovereignty), and an Indigenous voice to parliament enshrined in the Constitution.

Symbolic recognition of land ownership

Many public events in Australia, including ceremonies, speeches, conferences and festivals, begin with a Welcome to Country or Acknowledgement of Country, intended to highlight the cultural significance of the surrounding area to a particular Aboriginal clan or language group. They are often made by elders of the nation on whose traditional lands each event is taking place. Since 2008, a Welcome to Country has been incorporated into the ceremonial opening of the Parliament of Australia, an event which occurs after each federal election. [39]

See also

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References

  1. 1 2 "Sovereignty and Jurisdiction of Courts" . The Laws of Australia. Westlaw. 1 June 2018. paragraph [1.1.140]. Retrieved 27 February 2023.
  2. ↑ Clarkson, Chris; Jacobs, Zenobia; Marwick, Ben; et al. (2017). "Human occupation of northern Australia by 65,000 years ago" (PDF). Nature. 547 (7663): 306–310. Bibcode:2017Natur.547..306C. doi:10.1038/nature22968. hdl: 2440/107043 . ISSN   0028-0836. PMID   28726833. S2CID   205257212 . Retrieved 20 July 2020.
  3. ↑ Frost, Alan (2012). The First Fleet: The real story. Collingwood: Black Inc. ISBN   9781863955614.
  4. ↑ "Order-in-Council Establishing Government 23 February 1836 (UK)". Museum of Australian Democracy. Documenting a democracy. Retrieved 20 July 2020.
  5. ↑ Draft of the Order-in-Council Establishing Government 23 February 1836 (UK) , National Archives of Australia
  6. ↑ Dodson, Michael; Robin Mcnamee (2008). "Recognition of the Indigenous People of Australia and their rights". In Hinton, Martin; Rigney, Daryle; Johnston, Elliott (eds.). Indigenous Australians and the Law. Routledge. p. 234. ISBN   978-1135314392 . Retrieved 11 October 2015.
  7. ↑ Department of Justice (9 September 2014). "Department of Justice PolicyDepartment Of Justice Policy On Indian Sovereignty And Government-to-government Relations With Indian TribesBES". Department of Justice Archives. Archived from the original on 20 December 2022. Retrieved 27 February 2023.
  8. ↑ The Canadian Encyclopedia. "Treaties with Indigenous Peoples in Canada". The Canadian Encyclopedia.
  9. ↑ Coe v Commonwealth [1979] HCA 68 at [12], (1979) 53 ALJR 403, High Court (Australia)
  10. ↑ Mabo v Queensland (No 2) [1992] HCA 23 , (1992) 175 CLR 1, High Court (Australia)
  11. ↑ Coe v Commonwealth [1993] HCA 42 at [27], (1993) 118 ALR 193, High Court (Australia)
  12. ↑ Mabo v Queensland (No 2) [1992] HCA 23 at [83], (1992) 175 CLR 1, High Court (Australia)
  13. ↑ "Sovereignty and Jurisdiction of Courts". The Laws of Australia. Westlaw. 1 June 2018. paragraph [1.1.150].
  14. ↑ McGregor, Russell (19 August 2009). "Another Nation: Aboriginal Activism in the Late 1960s and Early 1970s". Australian Historical Studies. 40 (3): 343–360. doi:10.1080/10314610903105217. S2CID   144227935.
  15. ↑ Maddison, Sarah (2019). Front cover image for The colonial fantasy : why white Australia can't solve Black problems The colonial fantasy : why white Australia can't solve Black problems. Allen & Unwin. p. 212. ISBN   9781760295820.
  16. ↑ Maddison, Sarah (2019). Front cover image for The colonial fantasy : why white Australia can't solve Black problems The colonial fantasy : why white Australia can't solve Black problems. Allen & Unwin. p. 9. ISBN   9781760295820.
  17. ↑ Maddison, Sarah (2019). Front cover image for The colonial fantasy : why white Australia can't solve Black problems The colonial fantasy : why white Australia can't solve Black problems. Allen & Unwin. pp. 3–4. ISBN   9781760295820.
  18. ↑ Maddison, Sarah (2019). Front cover image for The colonial fantasy : why white Australia can't solve Black problems The colonial fantasy : why white Australia can't solve Black problems. Allen & Unwin. p. 5. ISBN   9781760295820.
  19. ↑ McGregor, Russell (January 2011). Indifferent Inclusion: Aboriginal People and the Australian Nation . Canberra: Aboriginal Studies Press. pp. 163–4. ISBN   9780855757793 . Retrieved 26 February 2023.
  20. ↑ Lisa Martin (24 January 2012). "Aboriginal tent embassy clocks up 40 years". The Sydney Morning Herald. Fairfax Media. Retrieved 26 January 2012.
  21. 1 2 "Aboriginal Tent Embassy". National Museum of Australia. 13 April 2018. Retrieved 19 July 2020.
  22. ↑ "Kevin Gilbert". MCA Australia . 1 April 2022. Retrieved 29 September 2022.
  23. 1 2 Gilbert, Kevin (1987) Aboriginal Sovereignty: Justice, the Law and Land, ISBN   978-0-9876030-1-2 (iBook) ISBN   0 9588019 1 6 (print)
  24. ↑ "Treaty '88". Australian Institute of Aboriginal and Torres Strait Islander Studies . 19 November 2015. Retrieved 20 April 2020.
  25. ↑ Evans, Steve (25 January 2022). "Old Parliament House Aboriginal Tent Embassy marks 50 anniversary on January 26". The Canberra Times . Retrieved 27 January 2022.
  26. ↑ "'Intercontinental Cry' Article on Australian Sovereignty movement". Sovereign Union:First Nations Asserting Sovereignty. 1 January 2010. Retrieved 20 July 2020.
  27. ↑ Dodson, Mick (February 2012). "Constitutional Recognition of Indigenous Australians". Parliament of Australia. Papers on Parliament No. 57. Retrieved 19 July 2020. This paper was presented as a lecture in the Senate Occasional Lecture Series at Parliament House, Canberra, on 5 August 2011.
  28. 1 2 First Nations National Constitutional Convention. "The Uluru Statement from the Heart" (PDF). Retrieved 17 May 2023.
  29. ↑ Morse, Dana; Ross, Jessica (28 December 2022). "Anthony Albanese promises to deliver Voice referendum by December 2023". ABC News. Retrieved 25 February 2023.
  30. ↑ "What is 'black sovereignty' and how does it conflict with the Voice?". ABC News. 6 February 2023. Retrieved 11 February 2023.
  31. ↑ "What's Indigenous sovereignty and can a Voice extinguish it?". Sydney Morning Herald. 9 February 2023. Retrieved 25 February 2023.
  32. ↑ "'On the table': Greens want treaty before backing Voice to Parliament". The Canberra Times. 9 August 2022.
  33. ↑ Butler, Dan (7 February 2023). "'I am here for a reason': defiant Lidia Thorpe says she will stay put to pursue Treaty and Sovereignty". NITV . Retrieved 17 May 2023.
  34. ↑ Murphy-Oates, Laura; Karp, Paul; Herbert, Miles; Koning, Joe (14 February 2023). "Lidia Thorpe on Blak sovereignty and leaving the Greens" (podcast). The Guardian . Retrieved 17 May 2023.
  35. ↑ "What is 'black sovereignty' and how does it conflict with the Voice?". ABC News. 6 February 2023.
  36. ↑ Revell, Jack (10 February 2023). "What Is the Blak Sovereign Movement Lidia Thorpe Wants to Lead?". The Latch. Retrieved 17 May 2023.
  37. ↑ "Australia moves towards Aboriginal treaties". BBC News. British Broadcasting Corporation. 8 June 2018. Retrieved 14 July 2019.
  38. ↑ "The lack of treaty: Getting to the heart of the issue" . Australians Together. Retrieved 19 July 2020.
  39. ↑ "A historic first: traditional Indigenous welcome begins Parliament". Australian Broadcasting Corporation. 12 February 2008. Retrieved 2 August 2018.

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