Sovereignty was never ceded, why cede solidarity?

6/3/2018

Vol 13 Issue 2

By Tilly Houghton
Each January 26, the Invasion Day rally gets bigger, the momentum visibly gaining, and people seem to be more aware of why (even if they like sitting in a paddle pool all day sinking tallies and punching darts*), the date could change. Even in the wake of knowing the extents and limitations of native title, I’m hopeful that we will eventually get to a treaty. That we will recognise the value of Indigenous ontologies in solving problems and that perhaps, maybe, they won’t be distorted by private enterprise too quickly. That the Commonwealth will make concerted efforts to work with leaders within communities and not against them in developing policy. The idea for this article started as a desire to analyse the characteristically cynical discomfort I have for the forms of virtue-signalling that consist of posting photos of the Invasion Day rally to social media. But without solidarity, we’re all fated to spend another few decades getting distracted by the divisiveness of the current political climate. Solidarity entails mutual responsibility and interdependency. That, to my mind, means knowing that there are rightfully many people who are angered at the current discourse on changing the date because it detracts from the glaring inadequacies of the present system. If the onus is placed on Indigenous people to discuss and challenge continued inequities, then that burden is placed on a statistically small number of people – some of whom may be tired of continuing the call for change alone.

We need look no further than last year’s anniversary of the Royal Commission into deaths in custody, or the death of Elijah Doughty, to understand that the rights of Indigenous peoples in this country need to be brought into focus more often than the 26th. We are only now beginning to understand the history of this continent in a way that acknowledges the effects of genocide, displacement, and intergenerational trauma on Indigenous populations. If we had any common sense as a country, we’d acknowledge the rich, fascinating cultures that have existed here since time immemorial, and take pride in the fact that this is a nation with a strong history, from which we could learn a great deal—if we had the common sense.

Race is a focal point of the national discourse at present. When the discussion of Indigenous recognition results in a bipartisan “perhaps we do need to think about this,” when former Prime Minister Kevin Rudd decides that perhaps Manus and Nauru weren’t as good an idea as was anticipated, and when racial discrimination is as prevalent as ever, the emerging conclusion is that without solidarity, we will not make any progress. Being a student at Melbourne Law School imports a responsibility that comes from receiving this education. That is, a commitment to justice, and to integrity. The onus is on you to use the skills that you have for the benefit of, and in solidarity with people who need it—it’s a remarkably simple concept that is often lost in the static of national discourse. For MLS, it gets lost in the idea that the law is, in every instance, the great equaliser. The fact that a small, but vocal, corner of the De Minimis comments section still questions Indigenous sovereignty as a political objective is indicative of the nature of some of the issues we face as a profession. It is a political objective (as well as being an indisputable fact) because law itself is political – but the focus on the judicial branch of government obscures this aspect of what many of us will go on to do.

Somehow, the idea that one must believe in the brotherhood of man was lost. In its wake, what is left is a deeply angry and divided nation. In the absence of leadership, the gauntlet has instead been thrown at the feet of the Australian populace. As people who will one day have a tangible effect on how this country is to develop, we share that responsibility. The unchecked cynicism I have as to why it is that each year, my social media is flooded with hashtags to #changethedate when the entire system feels irreparably broken. Perhaps it comes down to the idea that performative allyship, as a problem to be addressed, would be too easy. Yes, we owe it to the owners of this land to make a concerted effort to ensure that the sovereignty among all Indigenous groups is recognised. My discomfort lies in the fact that it can often become an all too easy demonstration of the goodness of the white people at rallies. Is this too cynical of me? Prove me wrong—but aside from that hashtag, what else have we done to assist the people who could benefit from our voices?

Collectively, we’re getting there. The general populace has started scrutinising the extent of racism and violence that has previously characterised the history of this nation. Yes, we’ll get to a treaty. Immigration politics will shift. Race will cease to be a means of gaining political favour in the lead up to elections. But it will take the collective efforts of the entire population to get there. And, more importantly, it will take self-reflection on the part of everyone who has benefited from systemic racism to make a change. It only takes humility, respect, and the desire to help the people we should be grateful towards. Always was, always will be.

*You can take the girl out of Queensland…

More like this

Small but vocal corner of the De Minimis comments section

6/3/2018 09:53:56 pm

The reason why some of us continue to question the "indisputable fact" of indigenous sovereignty is for the same reasons you put forward here in your article. You lament the loss of the brotherhood of man and its replacement by anger and division, you hope for a day when race will not be used as a means for gaining political advantage, and so on.

To many people, the idea of constructing a sovereignty inextricably based upon a specific a race of people, in this case the indigenous people, is racist in concept and simply serves to reinforce the sort of divisions you talk about. Who will be able to be placed under this sovereignty? Will it be exclusionary and only be open to indigenous people, or will it be open to people of every race and background? Will an applicant's indigeneity determined by their blood or by their self identification, and would either of these be justifiable in the face of principles of diversity and multiculturalism? Will all people of aboriginal background be automatically shifted from Australian sovereignty to indigenous sovereignty at the flick of a pen or will they be given a choice under which system of law and ultimate authority they prefer to live under?

Is it possible that some proponents of indigenous sovereignty haven't really thought about what sovereignty actually means and the potential to unleash this Pandora's box of difficult questions? Is it possible 'sovereignty' is instead supported because it is just the nice, feelgood thing to do and is the sort of virtue signalling you mention in your article?

Aside from the above, the idea of an all encompassing indigenous sovereignty for the Australia continent arguably has no historical basis. The indigenous people of Tasmania did not exist under the same political authority as the indigenous people of far north Queensland. I'm sure anyone who has taken Property will remember seeing the map of the 100 plus indigenous nations before the arrival of the British. The idea that they all existed under a unified indigenous sovereignty is a revisionist fiction, equivalent to claiming Europe in the 1100s existed under a single European sovereignty. Supporters would in truth need to support the resurrection of hundreds of independent sovereignties for each indigenous nation as they existed at the point of the British arrival.

But all in all, the question is, why push for indigenous sovereignty, or hundreds of fragmented sovereignties, when there already exists an Australian sovereignty which, while originally was highly exclusionary, has now been revolutionized and become open and all encompassing to people of all races and cultural backgrounds?

Tilly

7/3/2018 10:42:26 pm

You make some interesting points – ones that I wasn’t able to address due to length restrictions in the article.

The overarching framework for my thinking is that Indigenous ontologies, on the whole, have a conception of sovereignty that arises from the land itself. This is important, I think, when having a discussion on sovereignty in general because the issues you raise come down to the tension between two paradigms of law – Crown law as was declared upon invasion, and the pre-existing forms which I say are indisputable fact. (1)

While there is strength in your point that constructing a sovereignty that is based upon a specific race is “racist in concept”, I’m wary that such an assertion is too removed from the contextual history of the nation and the current lack of representation of Indigenous voices in Parliament.
Indigenous Australians have, since invasion, consistently had definitions of their indigeneity defined for them by the State. Whether by blood, self-identification, or a mixture of both, the questions that you ask are ones that the Commonwealth and Indigenous communities ought to be having dialogue about. Leaving it solely to Parliament and the Courts is, in my view, a continuation of the history of constructing Indigenous identities to suit the ideological aims of the State. (2)

The Pandora’s box you mention ought to be unleashed—but, (and this is only my thinking and not that of all proponents of Indigenous sovereignties) given that Indigenous sovereignties threaten the legitimacy of the Crown narrative—that is, the ‘skeletal principles’ Brennan J mentions as being non-justiciable—the many, many attempts since invasion to open it have been strongly resisted by the Commonwealth. That much can be seen in the fact that multiple cases (3) before Mabo raised the questions you have, and in the response of the Howard government to Wik. The idea that Crown sovereignty will merely disappear or shift from the flick of a pen, again, ignores the historical background of how sovereign power has been employed in Australia, to the detriment of Indigenous peoples. Nonetheless, I think these are important questions, and ones that ought to be given proper consideration. Relegating it to the ‘too hard’ basket, as has previously been the case, is not what questions of jurisprudence would call for.

This brings us to your final point: the idea that Australian sovereignty “has now been revolutionized” in a way that is sufficient to represent the interests of all Indigenous groups gives far too much credence to the Commonwealth—one, I think, that is non-existent. Notwithstanding that the foundations of Australia as it now exists are rooted in violence, illegitimacy, and racism, the undoing of the exclusionary policies of the past has been unbearably slow. I’d further question the extent to which Crown sovereignty can ever be said to represent the interests of Indigenous Australia, given that its very existence is predicated on ideas of what constitutes ‘civilisation’ – but, as was said by Tyson in his article, we have reached a point where a great deal of this discussion can’t adequately address the practical realities of Indigenous Australia.

Many communities there may be, but getting a voice to Parliament will take the collective efforts not only of those communities, but also of the wider Australian populace. Yes, this includes people of all races and cultural backgrounds—but that doesn’t negate the fact that Indigenous Australians were (and remain) the custodians of this land prior to the formation of the multicultural nation we have become.

(1) Aileen Moreton-Robinson, Irene Watson, and Christine Black all expand on these ideas far more eloquently than I do, and it’s worth taking a look if you are interested in the question of the interaction of sovereignties.
(2) See Mick Dodson’s 1994 Wentworth Lecture titled ‘The End in the Beginning: Re(de)finding Aboriginality.
(3) David Ritter gives a fairly thorough overview of these cases in his article, ‘The Rejection of terra nullius in Mabo: A Critical Analysis’

Blut und boden

10/3/2018 12:58:07 am

I know there are claims that the indigenous Australian concept of sovereignty is not the same as the Western concept of sovereignty, that it has a unique relationship with the land, and would not be in conflict with the sovereignty of the Crown, and so on. Apart from my suspicion that this is really just window dressing, if what is being sought is not absolute and final political and legal control over indigenous affairs, then proponents should stop using the word sovereignty. This is an English word afterall, with a very established meaning. Presumably a word from an indigenous language exists which better reflects the idea that what is being sought is not the equivalent of western sovereignty.

So long as proponents claim they want sovereignty, I will for my part assume what they mean is that they want sovereignty; to have the final political and legal word over all indigenous affairs free from the control of the Australian government. And so long as this is what is being sought, the movement remains an ethnic nationalist blood and soil separatist movement, which no supporter of liberal ideas should be able to support without experiencing an overwhelming sensation of cognitive dissonance.

10/3/2018 11:56:17 am

If that be so, I suppose we're at an impasse. Stating that Indigenous sovereignty is akin to "window dressing" because it doesn't immediately align with the origins of the word as you understand it isn't an assertion made in good faith. Yes, there are words for sovereignty in Indigenous languages with meanings that vary. No, that doesn't equate to the impossibility of reconceptualising sovereignty in the present day, given our current system of government and contextual history.

The "established meaning" of sovereignty has taken many centuries to take place and, as with other legal concepts, is neither fixed nor absolute. I see no reason why proponents ought to be excluded from discussion merely because sovereignty, as you understand it, is immutable.

It might do you well to do some further reading, particularly into theorists in international law. Where there have been pre-existing Indigenous peoples, there have been scholars debating the extent and content of (mostly British) sovereign power in the face of already occupied lands. Even in Australian history, there are cases which grapple with the question (R v Bonjon is a good starting point for giving a brief overview).

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Sovereignty was never ceded, why cede solidarity?

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