Constitutional recognition, Treaty and Sovereign Rights

Regocnition - boot on the neck

Through legal sophistry and a national agenda to systematically deny the inherent sovereign rights of Aboriginal people, the Australian government and courts have shown themselves as possessing a rancid inability to acknowledge Aboriginal sovereign rights. As the only British colony who has failed to make treaties with the Indigenous peoples, Australia has never removed the ‘boot from the throat’ of Aboriginal nations in its relentless thirst for the land and resources of this continent. Aboriginal people however have not acquiesced to the states or territories attempts to annihilate their rights, and calls for the recognition of Aboriginal sovereignty have been consistently articulated and continue to be made. (Reynolds, H. 1996).

Australia was a continent owned and carefully managed for millennia by Aboriginal people, the ultimate ‘land carers’, who had a highly evolved system of law and governance that kept a careful balance with the environment and the needs of future generations. We now see that the environment has been desecrated beyond belief within a short period of time, since the first boat people arrived from England in 1788 with the intent to steal a continent. Aboriginal people have not been compensated for the theft of their country, let alone provided with compensation for the damage to our ancestral homelands. The compensation and damages bill has been sent, but Australia has a bad credit rating as far as paying their compensatory dues to the Aboriginal owners of the country.

Constitutional recognition

The current bipartisan push to amend the Australian Constitution by securing the right of the Federal government to create laws for Aboriginal people requires analysis. Aboriginal people are not currently mentioned anywhere within the Australian Constitution. The Recognise Campaign is being promoted as a decent and ‘feel-good’ campaign, with a catchcry of ‘You, Me Unity’ through the Recognise campaign. The government has funded the constitutional reform campaign extensively so as to create a support base in the broader community, with the aim of having the numbers to carry a national referendum. The process is deeply concerning: a support base is indeed being built, but the final wording for the changes has not been released. The devil is in the detail. The ‘Expert Panel’s suggesting wording for the mention of Aboriginal people’s history on the continent is ‘as ‘the first occupiers of this land’. Aboriginal people were much more than mere occupiers – Euahlayi warrior Michael Anderson specifies that a proper acknowledgement is due thus:

Aboriginal people are ‘the original possessors with possessory rights and title in possessory and proprietary law for the whole of this continent and its adjacent lands and waters.’ What long term consequences could arise if this referendum succeeds?

Where are the voices and the input of independent human rights lawyers and the international community on this issue? And why should a non-Aboriginal majority be able to decide whether or not Aboriginal people are included in the Australian Constitution, as this needs to be the sole domain and right of Aboriginal people to decide whether actually they want to be included of a racist constitution for successive governments that have brought untold trauma, grief and loss to Aboriginal communities. What Aboriginal people really stand to gain by any inclusion in the constitution? And more importantly, what could we lose? Australian governments have successfully quashed and denied Aboriginal sovereign rights, preferring symbolism over substance. Is the move to include Aboriginal people in the constitution mere symbolism, or does represent another government manoeuvre to trick us out of the inherent but unacknowledged rights to sovereignty. A successful constitutional reform for Aboriginal people, the one that will bring the real justice, peace and substantial change, will be the drawing up and incorporation of internationally scrutinised sovereign treaties. There has recently been a slew of funding cuts to vitally important Aboriginal legal services, showing again the callous nature of the Australian government towards Aboriginal people who outrageously marginalised and impoverished within their own lands. In the same period there is heavy bipartisan government support for constitutional reform – perhaps the unspoken objective they are seeking is an insupportable one that will mandate government to further encroach upon Aboriginal sovereign rights. Megan Davis, a member of the ‘Expert Panel’ which was created to provide advice to government on constitutional reform, made the following statement:

‘Sovereignty was an issue raised by many Aboriginal and Torres Strait Islander peoples in the course of the work of the Expert Panel. It would come as no surprise to Aboriginal and Torres Strait Islander people that constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians and would jeopardise broad public support for the Expert Panel's recommendations. Similarly, it would come as no surprise that qualitative research found that ‘sovereignty’ and ‘self-determination’ were poorly understood concepts and there were similar diverse understandings of sovereignty in the non-Indigenous community as there were in the Indigenous community.’ She then stated brusquely that ‘The Constitution is not a place for conversations about sovereignty.’

Despite the high numbers of submissions made that specifically called for the recognition of Aboriginal sovereign rights to be recognised, Davis and the expert panel lobbed this in the ‘too hard basket’ and justified this by saying the majority would not like it. Whether the majority like it is immaterial, but rather international law best practice should take precedence over a national collective amnesia and culture of denial that fails to acknowledge the genocidal misdeeds of their ancestors. Davis favoured might versus right, and showed complicity by dismissing the importance of the topic. Michael Anderson condemned the abuse of power by the Expert panel: ‘It is done for the purpose of suggesting to the international community that democracy played its part through a process of consultation, but this recent process is absolutely flawed and, instead, represents a dictatorial approach to forcing against our will Aboriginal people’s patrimony to an invader society. The work of the ‘Expert Panel’ is an obvious and chilling example of where Aboriginal people’s call for acknowledgement of their sovereign status has been ignored yet again. Davis subverted and manipulated the call for sovereignty by saying that their data showed Aboriginal people expressed poorly understood concepts of sovereignty. Rather than seeking further discussion or community input, it seemed an excuse to stigmatise and illegitimise the legitimate claims.

Sovereign Rights

Annotated Bibliography One:

Reynolds, H. (1996). Aboriginal Sovereignty, St Leonards NSW, Allen and Unwin.

Williams, G 2012, ‘Does constitutional recognition negate Aboriginal sovereignty?’, Indigenous Law Bulletin, vol. 3, no. 8, pp. 10-11

This article raises the question of whether the inclusion of Aboriginal and Torres Strait Islander peoples into the Australian Constitution would override Aboriginal challenges to treaty and sovereignty. The article implies that these are two separate issues and that inclusion of Aboriginal people in the Australian Constitution will not affect Aboriginal claims for treaties in the future. The themes explored within this essay are Australian politics and constitutional law, Aboriginal claims to sovereignty, and a minor discussion of the treaty movement in Australia.

Annotated Bibliography Two:

AIATSIS 2003, Treaty - let's get it right! : A collection of essays from ATSIC's treaty think-tank and AIATSIS commissioned authors on the treaty concept, Australian Institute of Aboriginal and Torres Strait Islander Studies, Acton, A.C.T.

This collection of articles provides a broad ranging discussion around Aboriginal treaty arguments. It is supportive of calls for a treaty and covers many associated themes including viewpoints of assimilation, challenges in moving forward towards a treaty, possible structures, and why it is ‘unfinished business’ for Australia. This book also examines Mabo and Native Title, and international human rights laws. The perspective of young people is presented as well as an overview of how international treaty models operate.

Annotated Bibliography Three:

Davis, M 2012, ‘Constitutional recognition does not foreclose on Aboriginal sovereignty’, Indigenous Law Bulletin, vol. 8, no.1, pp.13-14
Davis has produced a short article that states that constitutional recognition of Aboriginal people does not rule out future claims for treaty and sovereignty. Davis was a member of the ‘Expert Panel’ advising government about proposed changes to the constitution after surveying various Aboriginal people and stakeholders around the changes but the ‘Expert Panel’ found that there was a great many Aboriginal people who wanted their sovereignty acknowledged and actioned - not necessarily inclusion in the Australian Constitution. However, the panel found that there were different interpretations of sovereignty amongst both Aboriginal and also non-Aboriginal respondents. Dale also reiterates the legal advice that the ‘Expert Panel’ were provided: that the sovereignty of the ‘Australian nation’ does not depend on either permission or acceptance by Aboriginal people. They also stated (contradicting their legal advice) that sovereignty did not pass from Aboriginal people to the settlers, so the conclusion could be that that there is a case to be answered if the findings of the ‘Expert Panel’ contradicts their own legal advice.

Annotated Bibliography Four:

Watson, I 2002, ‘Aboriginal and the sovereignty of terra nullius’, Borderlands ejournal,
Vol. 32, no.4.
A Tanganekald and Meintangk scholar, Watson uses Aboriginal cultural narratives to frame a story about Aboriginal right to land and the importance of sovereignty. This work calls upon the western worldview to scrutinise itself carefully, likening the greed of government and corporations to a well-known Aboriginal story about a giant frog who consumed all the water so that no creatures could live. From a Nunga perspective, explanation is provided about the Australian denial of Aboriginal law, culture and sovereignty of Aboriginal laws has breached international human rights and United Nations recommendations. She describes Native Title as an illusion of recognition, and brings a powerful first nations lens to Western law and history. This work in particular explains her position using strong references to cultural laws and values and goes beyond an interpretation of western laws and conventions to dissect issues from the ‘two-worlds’ viewpoint.

Annotated Bibliography Five:

Gilbert, K 1993, Aboriginal sovereignty: justice, the law and land: (includes draft treaty),
Burrambinga Books, Canberra, ACT

This work describes the legal position and entitlement of Aboriginal sovereign position in Australia. It summarises and describes why the sovereignty of the Australian government has not been acquired by any lawful international mechanisms. Formatted as a treaty document, this work covers the brutal and unlawful invasion, Australia's attempts to legitimise their land theft. It explains how Aboriginal Sovereign rights are both viable and necessary, and why a treaty is necessary to ensure Aboriginal people have access to their land, justice for sustainable and equitable future relations between Aboriginal and non-Aboriginal people, through a mechanism which will create and clearly define entrenched rights.

Annotated Bibliography Six:

Anderson, M 2014, ‘Background evidence to support a declaration of Aboriginal sovereignty’, The Carrington Rand Journal of Social Sciences, vol. 1, no. 1, pp. 1-11
This article identifies many legal outcomes over a long period of time, that allude to, or confirm Aboriginal ownership and authority over their lands. It explains all the legal precedents that have been set showing how western law has in numerous ways shown that it acknowledges no lawful mechanism by which the Australian state has acquired sovereign ownership over Australia. Since 1786, with the Crown’s instruction to the first fleet, there has been a failure on the behalf of the Crown and the subsequent Australian government to act even in line with their own protocols and standards of conduct, and are particularly out of line with international best practice.