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Sovereignty….but what model?

Nat Cromb

I often speak and write about the importance of Treaty and the model that I think would best achieve the ultimate goal of land rights, self-determination and reparation. In order to pursue any of these avenues, it is pertinent to understand sovereignty and the path to asserting it given it is apparent it is being denied by the government.

The government’s policy is that we are all Australians and, as such, we are subject to the current structural framework that makes up our laws and governance as a country. This is what is referred to as State sovereignty – the power to govern a territory by a power structure. This view, of course, is silent on the fact that we were here prior to British occupation and are distinctly separate to the government’s definition of ‘Australian’ and that we have a separate claim for sovereignty distinct from the State sovereignty already claimed.

Sovereignty and the assertion of sovereignty is a critical item of Indigenous activism in Australia – the only commonwealth country without a compact between Indigenous and non-Indigenous people. It can be said that the notion of Indigenous Sovereignty is intertwined with the activism for Treaty and the pursuit of self-determination.

The definition of sovereignty is where problems arise. Or more specifically, the white privilege in imposing western legal definitions of sovereignty.

At law, sovereignty refers to power and authority to govern and make laws but there are contexts in which it arises (internal and external sovereignty).

Indigenous Sovereignty has nothing to do with the desire to rule or govern a country, especially not in the capitalist sense. Indigenous Sovereignty is about acknowledgement of our role as custodians of this land since time immemorial and caring for our land and communities. Of course in 2017 capitalist society, caring for land and communities takes resources and those resources need to be fairly allocated, as I outlined in my last column, with communities in control of resource allocation to protect country and people.

Asserting sovereignty in a legal context within the systemically racist paradigm we find ourselves in Australia is not going to be an easy feat, near impossible in fact. The questions have already been asked of the Courts by those before us.

The High Court of Australia was asked to consider the concept of sovereignty, specifically whether the acquisition of sovereignty by Britain over Australia with ‘white settlement in 1788’ could be contested in Australian courts. The High Court in the 1992 Mabo case refused to examine this point and determined that it is non-justiciable or ‘not within the competence of the Court or its jurisdiction.’  Of course the very authority of the High Court depends on the validity of this western legal definition of State sovereignty. Accordingly, the High Court is not well placed to judge the issue of sovereignty because, as itself a creation of the federation of Australia, is not an impartial party and it was correct to refuse on the basis of its own conflict.

That said, the Mabo decision created the disjunction in our legal system between the internal and external notion of sovereignty. While Mabo recognised the continuing connection and rights to land of Indigenous people, it went so far as to reject terra nullius and recognised the illegitimacy of the assertion of sovereignty by the British Crown in 1788. By failing to consider the issue of Indigenous Sovereignty and stating that it was non-justiciable, it left a gap and an uncertainty at the core of our society.

This position by those in power is strategic – to pit Indigenous Sovereignty against an existing system with existing framework, frames the Indigenous people as oppositional and seeking division. The Indigenous assertion of sovereignty becomes a threat to Australia and its territorial integrity whereby language is framed to make Indigenous people appear separatist and all of the worrisome themes that that word evokes and leads to the ultimate view of the majority that Indigenous Sovereignty must be resisted.

If the courts were asked to adjudicate on issues relating to a concept of Indigenous Sovereignty that is consistently defined by the existing power structure as being in conflict with State sovereignty then the courts might state that recognition of Indigenous Sovereignty would fracture the skeletal structure of our legal system and therefore cannot be done.

The legally acknowledged ‘illegitimate sovereign State’ continues to impose laws upon all subjects (notwithstanding the sovereignty of the Indigenous subjects) and this illegitimate sovereign prevents any attempts made by Indigenous people to assert sovereignty by controlling the definition of sovereignty and the institutions that would adjudicate the question of sovereignty.

So if domestic laws are inadequate and conflicted from determining this issue, can we look to international law? Yes and no.

Again, we face difficulties because international law will generally support the claim of States to territorial integrity, but this comes with responsibilities and the obligation to be representative and inclusive of all its citizens, including Indigenous peoples.

International debate on self-determination hints at is that increasingly the credibility and legitimacy of a State’s foundations – its sovereignty – depends on its inclusivity and the way it treats Indigenous peoples.

What this means is that we see an international system of law that is moving away from concepts of a government having ultimate control and that rights are universal regardless of whether the government intends to give or withhold. For Indigenous people, the international system has begun to catch up to the reality of the havoc colonisation has wrought on so many and acknowledge our collective rights to self-determination and to protection of culture – that is, that rights reside in peoples’ systems of organisation, governance and ultimately, sovereignty.

This has the potential to mean positive things for us in our assertion of sovereignty because, ultimately, the intended outcome of our assertion of Indigenous Sovereignty is the commitment by the government that we are afforded the right to self-determine. So if this issue were taken to the international arena to adjudicate this issue, we would be forcing the hand of the government.

The government would be hard pressed to legitimate any claims of democratic inclusion when Indigenous Sovereignty is being ignored, laws are being imposed arbitrarily and targeting Indigenous people unfairly and the power structures disproportionately target and punish Indigenous people.

Therefore, if this matter were taken to the international arena it would be in the best interest of the Australian government to demonstrate that it strives for democratic partnerships and recognition of Indigenous culture and ultimately sovereignty.

At the crux of any sovereignty discussion is the necessity to distinguish Indigenous Sovereignty from State Sovereignty.

Asserting our Indigenous Sovereignty will lay the foundations for negotiations of Treaty which would create a model in which Indigenous Affairs would be controlled by Indigenous people with a parallel structure of governance to current framework. We would see that our nations could self-determine, we could negotiate a fair resource allocation to be controlled and distributed to protect country and community.

But do any of the current models being floated and agitated for, achieve this?

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