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Stand Back Waleed: Sovereignty is more complex than an oath

23 Jun 2022

The danger of Aly’s assertions is that it oversimplifies a very complex notion in political and legal philosophy and, by reducing the act of ceding sovereignty to a singular oath, it reveals a lack of critical insight to what sovereignty can mean and how it can operate for First Nations peoples.

Senator Lidia Thorpe

Claims about our sovereignty made by Waleed Aly on ‘The Project’ this week were not just offensive, they were wrong.

In case you missed it, the popular channel 10 panel show ran a segment on Tuesday called ‘Flag Wars’ to discuss the Greens’ decision to remove the Australian flag from the background for their conferences.

The interview was primarily conducted between Waleed Aly and Gunai/Gunditjmara woman Senator Lidia Thorpe, and while it started as a discussion about flags it quickly devolved to an exchange about sovereignty and, particularly, whether Indigenous peoples cede sovereignty when we take an oath to the Commonwealth in order to become a politician. 

This line of enquiry by Aly, alongside other questions, was quickly criticised in the wake of the episode as ‘condescending, ignorant and offensive’.

I am not confident that many non-Indigenous people in Australia adequately understand what we mean by ‘sovereignty’ in this context and, especially, what it means to ‘cede’ sovereignty. The danger of Aly’s assertions is that it oversimplifies a very complex notion in political and legal philosophy and, by reducing the act of ceding sovereignty to a singular oath, it reveals a lack of critical insight to what sovereignty can mean and how it can operate for First Nations peoples.

Typical mainstream understandings of sovereignty fall under a ‘Westphalian Lens’, which refers to a set of treaties in mediaeval Europe called the Treaties of Westphalia 1648. These treaties believe that sovereignty means having a ‘sovereign’ (king, dictator, government) that can have complete control over what happens within their territory’s borders.

This is coupled with the norm of ‘non-intervention’ which means that other ‘sovereign’ states should respect your sovereignty by not intervening in the happenings of your country.

The typical practice of non-intervention, as we know, was not respected when it concerned the invasion and colonisation of Indigenous peoples around the world. European philosophers, such as John Locke, justified settler-colonialism by degrading forms of Indigenous governance and land management. The impact of this justification can be seen in Australia through the doctrine of terra nullius and the longstanding denial of the existence of First Nations legal systems and modes of governance.

The primary issue, alongside its eurocentrism, when it comes to this understanding of sovereignty is that it believes power has to be exclusive. It can not imagine a sharing of power or political authority but Indigenous concepts of sovereignty predate, and exist beyond the boundaries of, the Westphalian model. It can be understood as the organisation of political function where we don’t invest all authority into a singular sovereign. 

Particularly for First Nations peoples in Australia, sovereignty is about the organisation of authority as traditional custodians so we can effectively care for Country and community. Quandamooka woman, Professor Aileen Moreton-Robinson in her book ‘The White Possessive’ (2015) asserts that Indigenous understandings of sovereignty can not be adequately understood in purely legal terms or frameworks, but can be reframed in terms of presence and belonging. First Nations sovereignty also manifests beyond the obvious realms of law and politics, it also finds home in our song, dance and story, our language and ceremony.

Broadly, Indigenous sovereignty is understanding and embracing of relationships. It accounts for the influence of numerous parties, and the interdependence we have on one another to govern appropriately for the benefit of Country. Sovereignty for us is not about the right to rule over a parcel of land or create borders in which to violently exclude others from, sovereignty is the freedom to protect and preserve our ways of being, knowing and doing.

Senator Thorpe’s participation within the settler-colonial parliament (and all Black civic participation) does not prejudice or undermine our sovereignty.  We do not inherently see it as a betrayal to our authority to engage in a space that we know impacts our land and our people because we understand the relationship between the ‘Australian’ state and the everyday lives of Black communities.

‘Sovereignty never ceded’ is a phrase that echoes in the foundations of Black activism, academia and politics but what does it mean in a Western legal sense?

‘Cede’ is another word for ‘transfer’, one way of acquiring sovereignty under international law is if it is transferred to you and this is also called ‘cession’. Ceding sovereignty is typically done by a state signing a treaty and a global example of this is the cession of Hong Kong Island in the Treaty of Nanking 1842. If we apply International Law principles, the transfer of sovereignty to the United Kingdom could only have been determined by an agreement but, as we know, no treaty has ever been made between the Commonwealth and First Nations peoples.

Instead, the prevailing justification for the imposition of English law was ‘settlement’ and not cession. ‘Settlement’ claims that a land is ‘uninihabited’ at the point of acquiring sovereignty, in English legal philosophy uninhabited can mean that a group of people do not operate under legal or political systems that are similar to White systems. It is a deeply racist assertion that was challenged in Mabo (No 2), a case which recognised the existence of Indigenous customary law. It is on this basis that terra nullius was rejected and the illegitimacy of Australia’s assertion to sovereignty in 1788 was recognised.

Waleed Aly, on ‘The Project’, was incredibly erroneous in his line of enquiry with Senator Thorpe. If we operate on the principles of International Law the act of ceding sovereignty requires treaty making, a singular politician taking an oath to the Commonwealth in a Parliament does not fulfil this requirement in any form. In fact, Indigenous understandings of sovereignty accommodate Black civic participation within our relational mode of authority-sharing as a way to uphold our duty to community.

My sovereignty predates the creation of the English language, it does not come from a crown or a throne, but the sea and soil. No parliamentary oath could ever take that away from me.

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