• Eddie Mabo walking with his team of lawyers in his case, which saw the High Court overturn the legal doctrine of terra nullius (Supplied)
Is 'State sovereignty' the only definition of sovereignty? Writer, Natalie Cromb discusses how Indigenous Sovereignty is undervalued in legal discourse.
By
Natalie Cromb

19 May 2017 - 2:25 PM  UPDATED 8 Jun 2017 - 12:34 PM

“I am a sovereign woman. I am from this land, I sprung from this land, I care for this land.” - Amatjere activist and humanitarian, Rosalie Kunoth-Monks OAM.

 

Sovereignty, and the assertion of sovereignty, is a critical item of Indigenous activism in Australia - we're the only Commonwealth country without a compact between Indigenous and non-Indigenous people. It can be said that the notion of Indigenous Sovereignty (that is, the ability practice culture on country) is intertwined with the activism for treaty and the pursuit of self-determination.

 

Defining 'Sovereignty' and the non-impartial High Court.   

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 the 'power and authority to govern and make laws', however there are contexts in which it arises - internal and external sovereignty; internal, referring to the ability to make laws for a people within borders, and external, for the enforcement of territories against foreign entities or persons.

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. During the 1992 Mabo case, the High Court refused to examine this point and determined that it was 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. And 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' (the idea that the land originally belonged to no one), 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.

So where to from here? And why should we accept this western legal definition of sovereignty when it will always pit Indigenous Sovereignty against State sovereignty, using instruments created by the State to deny all other notions of sovereignty? Why does 'sovereignty' have to be thought of in the same light as State sovereignty?

Indigenous Sovereignty is vastly different to the notion of State sovereignty. To associate the two undermines the notion of Indigenous Sovereignty ( , and pre-determines the outcome and undermines our push for Treaty/ies and Self-Determination.

 

Credit where credit is due.

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.

For over 200 years the governments have consistently been able to resist any support for Indigenous Sovereignty by presenting an 'either/or' argument with little regard to the cultural notion of sovereignty, oppressing the Indigenous people and their ability to organise, collaborate and assert sovereignty by chipping away at the crucial cultural elements that make us who we are; land, culture, family, ceremony. The governments have consistently pointed out the difficulties of the pursuit of Self-Determination ('ATSIC failed – you can’t handle your own affairs'), Treaty/ies ('you can’t pursue this because you are Australian citizens and we can’t enter a treaty with ourselves') and control the message delivered by the media to frighten large segments of the community into supporting their position and resisting what is just, what is right and what is due.

This response by the governments is political. So do we have any legal avenues to resist the governments’ measures to resist the growing movement to assert sovereignty?

If the courts were asked to adjudicate on issues relating to a concept of Indigenous Sovereignty, one 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.

Justice Brennan, in Mabo said,

"In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency."

Therefore, the illegitimate sovereign State continues to impose laws upon all subjects (notwithstanding the sovereignty of the Indigenous subjects) and this illegitimate sovereign thwarts all attempts made by Indigenous people to assert sovereignty by controlling the definition of sovereignty and the institutions that would adjudicate the question of sovereignty.

It is clear, both looking historically and contemporaneously, that relying on the Australian legal system to administer just decisions as they concern Indigenous people and Indigenous Sovereignty is a flawed approach. The conflict is obvious and makes any case untenable.

This is the wrong starting point for the push for Treaty/ies and Self-Determination. Defining Indigenous sovereignty in these terms, in non-Indigenous ways, is a way of guaranteeing its instability and ultimate defeat. It is a construction which the agents of the State will join together to defeat 'for the good of the country and the broader community'.

It is clear, both looking historically and contemporaneously, that relying on the Australian legal system to administer just decisions as they concern Indigenous people and Indigenous Sovereignty is a flawed approach. The conflict is obvious and makes any case untenable.

 

Can we look to international law, instead?

Again, we face difficulties because international law will generally support the claim of States to territorial integrity; that nation-states should not attempt to promote secessionist movements, 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 legal system that is moving away from concepts of rights as being given by States or which only exist thanks to the acquiescence or agreement of governments. The move is towards a more universal approach. Rights are not within the discretion of governments to give or withhold but are inherent. For Indigenous people, the international system has begun to 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.

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.

 

Indigenous Peoples are Sovereign Peoples.

Of course – as it currently stands – they cannot in good conscience say that they do this. But if they took steps to do so, it would provide credibility and legitimacy to its own assertions of being the sovereign power in Australia. In other words, recognition of Indigenous sovereignty can enhance and fulfil the legitimacy of Australia's sovereign status. Such recognition should be seen as complementary and of mutual benefit.

Given that Indigenous sovereignty is not concerned with power or governing Australia this could be an ideal outcome for us. We would have our sovereignty acknowledged and mandates and it would lay the foundation for self-determination and a treaty process.

We are sovereign peoples. The assertion of our sovereignty will not be easy but it is necessary to lay the foundations for a better future for our people – one where Indigenous people are in control of Indigenous Affairs.

 

Like the content? Follow the author @NatalieCromb

National Reconciliation Week (NRW) runs annually from 27 May – 3 June. These dates mark two milestones in Australia’s reconciliation journey: The 1967 referendum and the historic Mabo decision, respectively.

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