Australian Indigenous sovereignty

Last updated February 17, 2024

Australian Indigenous sovereignty, also recently termed Blak sovereignty, encompasses the various rights claimed by Aboriginal and Torres Strait Islander peoples within 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 recognised in the Australian Constitution or under Australian law.

Political movements emerged in the 20th and 21st centuries around the cause of Indigenous sovereignty, seeking various political, economic and cultural rights both within and outside the Australian state. These have included land rights,^[1] the right for Indigenous peoples to be treated as a distinct polity with their own laws and institutions,^[2] and various cultural and intellectual property rights.^[3]^[4] These rights are not fixed, with the right to Indigenous data sovereignty emerging in the context of greater data collection by governments.^[5] According to some supporters, the recognition of the prior occupation and ownership of Australia means accepting the sovereignty of Indigenous peoples and paves the way for treaties between them and both Commonwealth and state and territory governments.

Discussion of the concept was prominent in various campaigns around the failed referendum of 14 October 2023, which would have amended the Constitution to prescribe an Indigenous Voice to Parliament. Leaders of the Blak sovereignty movement such as Michael Mansell in Tasmania and Senator Lidia Thorpe in Victoria did not support the Voice, on the basis that it would affect sovereignty and that treaties are required first to engage in sovereign to sovereign discussions instead.^[6]

Background

Aboriginal peoples have occupied mainland Australia for at least 65,000 years.^[7] When the British began the colonisation of Australia with the arrival of Governor Arthur Phillip and the First Fleet, no formal treaty was signed with the Aboriginal peoples of Port Jackson at the time.^[8]^[1] However, the Letters Patent establishing the Province of South Australia of 1836 (unlike the South Australia Act 1834 ), included recognition of potential rights held by Aboriginal people of South Australia.^[9] By 1840, all governors in Australia and New Zealand were directed that all Aboriginal customary law was to be superseded by British law and subsequently little regard was given to existing Indigenous laws and customs.^[10]

Meaning

Today, Indigenous sovereignty generally relates to "inherent rights deriving from spiritual and historical connections to land".^[1] Indigenous studies academic Aileen Moreton-Robinson has written that the first owners of the land were ancestral beings of Aboriginal peoples, and "since spiritual belief is completely integrated into human daily activity, the powers that guide and direct the earth are believed to exist with all human life".^[1] The 2017 Uluru Statement from the Heart similarly expresses sovereignty as a "spiritual notion" that is the "the ancestral tie between the land, or 'mother nature', and the Aboriginal and Torres Strait Islander peoples who were born therefrom".^[11] Moreton-Robinson says that for people like Captain Cook and Joseph Banks this concept of sovereignty was invisible, as it "challenge[s] the philosophical premises of state sovereignty", not sharing the same ontology as Europeans. Other important components of this concept of sovereignty were Aboriginal kinship systems, and borders based on languages and customary agreements (the equivalent of treaties), were also integral components of First Nations sovereignties. This concept of sovereignty is said to not be extinguished by settlement or force.^[12]

However, this meaning of the term is not universal, with some Indigenous communities and individuals also emphasising elements of the traditional western conception of sovereignty, such as the absolute authority of a group over a particular area and the mutual recognition of equality between sovereign bodies. This emphasis is seen in Senator Lidia Thorpe's conception of "Blak sovereignty".^[12]

Australian legal position

Indigenous sovereignty has not been recognised under Australian law, whether as sovereignty that existed before colonisation or that still exists.^[13] 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.^[14] 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.^[15]

In Coe v Commonwealth (1979)^[16] 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),^[17] 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.^[18] In addition, the court held that the validity of the acquisition of sovereignty by the Crown cannot be challenged in the courts.^[19] 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.^[20]

However, despite this legal rejection of the western exclusive view of sovereignty, Robert French (writing extrajudicially) has argued that an agreement between Indigenous Australians and the Commonwealth that recognises their traditional rights and historical connection to country would be possible "without compromising, symbolically or otherwise, Australia's identity as a nation" and that such an agreement may be made "in terms of sovereignty" where that sovereignty was "under traditional law and custom" and "may have meaning in that universe of discourse".^[21]

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;^[22] however, most sought a different level of autonomy within the State. Others 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.^[23] 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.^[24]

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.^[25]

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.^[26]

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.^[27]

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.^[28] 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.^[29]

In 1979 author and activist Kevin Gilbert led the "National Aboriginal Government" protest on Capital Hill, Canberra, calling for acceptance of Aboriginal sovereignty.^[30]^[31]

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.^[32] 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.^[31]

In 1990, Pakana lawyer and academic Michael Mansell co-founded the Aboriginal Provisional Government, based on the principle that Aboriginal people "are and always have been a sovereign people". The APC has ever since been issuing its own passports, which have been officially stamped upon entry to several foreign countries as well as Indigenous territories.^[12]

21st century

The Aboriginal Tent Embassy, still in place on its 50th anniversary as of 2022^[update],^[33] 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.^[29] In 2012, there were seven tent embassies dotted around the nation.^[34]

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.^[35]

In March 2013, the Murrawarri Republic, comprising parcels of land in New South Wales and Queensland, announced its independence from Australia, which is not recognised nor acknowledged by the Government of Australia.^[36]^[12]

In 2014, the Sovereign Yidindji Government, followed suit, comprising traditional land of the Yidindji nation in Queensland and the Northern Territory.^[37] They issue their own postage stamps and currency.^[12]

Aboriginal activist Michael Mansell argues for a seventh state, comprising Aboriginal native title lands, along with a structure similar to state governments.^[12]

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.^[38]

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.^[38]

A referendum to establish the Voice to Parliament, as required for any constitutional amendments, was announced by the Albanese Government and is scheduled for 14 October 2023.^[39] 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.^[40] However, government ministers, constitutional and international law scholars, and Voice advocates such as Megan Davis and Noel Pearson say that these concerns are baseless.^[1]

Blak sovereignty

After defecting from the Australian Greens in February 2023 ahead of the referendum, Lidia Thorpe said that she wished to lead the "Blak sovereignty" movement, and called for a treaty with First Nations to be signed before the implementation of the Voice.^[41]^[42]^[43]^[44] Her idea of Blak sovereignty includes the creation of a Blak Republic (as a replacement of the current constitutional monarchy) with shared sovereignty and equal power between Indigenous and settler Australians as an ultimate goal.^[45]^[46] Her concept of sovereignty refers not just to the "native title definition that our sovereignty is a spiritual notion", but also "a position of power in this country that we've always had and that we will always have until we come to a peace agreement to be able to unite this country once and for all".^[12]

Related issues

Treaties and constitutional recognition

A treaty is a legal document defining the relationship between two sovereign entities. As of 2020^[update] there are no treaties between the Australian Government and Indigenous peoples of Australia;^[47] 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.^[48]

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 connection to land

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.^[49]

Related Research Articles

Constitutional Conventions in Australia are significant meetings that have debated the Australian Constitution. The first two gatherings debated Federation and what form of Constitution to adopt, while the following conventions debated amendments to the document.

The Aboriginal Tent Embassy is a permanent protest occupation site as a focus for representing the political rights of Aboriginal Australians and Torres Strait Islander people. Established on 26 January 1972, and celebrating its 50th anniversary in 2022, it is the longest continuous protest for Indigenous land rights in the world.

Native title refers to rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of Mabo v Queensland in 1992. The doctrine was subsequently implemented and modified via statute with the Native Title Act 1993.

Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors. Land is a major economic asset, and in some Indigenous societies, using natural resources of land and sea form the basis of their household economy, so the demand for ownership derives from the need to ensure their access to these resources. Land can also be an important instrument of inheritance or a symbol of social status. In many Indigenous societies, such as among the many Aboriginal Australian peoples, the land is an essential part of their spirituality and belief systems.

Camp Sovereignty is the name given to an Indigenous Australian protest movement established to publicise the "Black GST" political group. The "GST" reflects the group's aims of ending genocide, acknowledging sovereignty and securing a peace treaty.

<span class="mw-page-title-main">Aboriginal title</span> Concept in common law of indigenous land rights persisting after colonization

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

<span class="mw-page-title-main">Canadian Aboriginal law</span> Canadian law regarding indigenous people

Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Aboriginal peoples as a collective noun is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people. Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.

Kevin Buzzacott, often referred to as Uncle Kev, was an Aboriginal Australian rights campaigner and elder of the Arabunna nation in northern South Australia. He campaigned widely for cultural recognition, justice, and land rights for Aboriginal people. He initiated and led numerous campaigns, including against uranium mining at Olympic Dam mine on Kokatha land and the exploitation of the water from the Great Artesian Basin. He also published a collections of poetry, which included the content of his keynote address at a 1998 conference.

Indigenous Australian customary law refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people.

Michael Alexander Mansell is a Tasmanian Aboriginal (Palawa) activist and lawyer who has campaigned for social, political and legal changes.

The Aboriginal Provisional Government (APG) is an Indigenous Australian independence movement.

Indigenous land rights in Australia, also known as Aboriginal land rights in Australia, are the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia; the term may also include the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of Torres Strait Islander people, and there has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples prior to colonisation of Australia starting in 1788, and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.

Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown, as well as many other variations.

Vincent Forrester is an Aboriginal Australian activist, artist and community leader. Forrester was a founding member of a number of Aboriginal organisations in central Australia. He lives at Mutitjulu, where he has served as the chairman of the community council. During the 1980s, he served as an advisor on indigenous affairs to the governments of Malcolm Fraser and Bob Hawke.

Lidia Alma Thorpe is an Australian independent politician. She has been a senator for Victoria since 2020 and is the first Aboriginal senator from that state. She was a member of the Australian Greens until February 2023 when she quit the party over disagreements concerning the proposed Indigenous Voice to Parliament. She had also served as the Greens' deputy leader in the Senate from June to October 2022.

The Uluru Statement from the Heart is a 2017 petition to the people of Australia, written and endorsed by the Australian Aboriginal and Torres Strait Islander leaders selected as delegates to the First Nations National Constitutional Convention. The document calls for substantive constitutional change and structural reform through the creation of two new institutions; a constitutionally protected First Nations Voice and a Makarrata Commission, to oversee agreement-making and truth-telling between governments and First Nations. Such reforms should be implemented, it is argued, both in recognition of the continuing sovereignty of Indigenous peoples and to address structural "powerlessness" that has led to severe disparities between Indigenous and non-Indigenous Australians. These reforms can be summarised as Voice, Treaty and Truth.

Indigenous treaties in Australia are proposed binding legal agreements between Australian governments and Australian First Nations. A treaty could recognise First Nations as distinct political communities, acknowledge Indigenous Sovereignty, set out mutually recognised rights and responsibilities or provide for some degree of self-government. As of 2023, no such treaties are in force, however the Commonwealth and all states except Western Australia have expressed support previously for a treaty process. However, the defeat of the Voice referendum has led to a reversal by several state liberal and national parties in their support for treaty and a much more ambigious expressed position by state Labor parties and governments.

The Aboriginal and Torres Strait Islander Voice, also known as the Indigenous Voice to Parliament, the First Nations Voice or simply the Voice, was a proposed Australian federal advisory body to comprise Aboriginal and Torres Strait Islander people, to represent the views of Indigenous communities.

Constitutional recognition of Indigenous Australians refers to various proposals for changes to the Australian Constitution to recognise Indigenous Australians in the document. Various proposals have been suggested to symbolically recognise the special place Indigenous Australians have as the first peoples of Australia, along with substantial changes, such as prohibitions on racial discrimination, the protection of languages and the addition of new institutions. In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. When submitted to a national referendum in 2023 by the Albanese government, the proposal was heavily defeated.

The 2023 Australian Indigenous Voice referendum was an unsuccessful constitutional referendum held on 14 October 2023. Voters were asked to approve an alteration to the Australian Constitution that would recognise Indigenous Australians in the document through prescribing a body called the Aboriginal and Torres Strait Islander Voice that would have been able to "make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples". The proposal was rejected nationally and by a majority in every state, thus failing to secure the double majority required for amendment by section 128 of the constitution. The Australian Capital Territory was the only state or territory with a majority of "yes" votes.

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