Recognising Aboriginal sovereignty-implications for the treaty process

Recognising Aboriginal sovereignty - implications for the treaty process

Speech by Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

Presented at ATSIC National Treaty Conference, Tuesday 27 August 2002

I would like to acknowledge the Ngunawal people, the traditional owners and custodians of the land where we meet today.

This is an acknowledgement that has been made by many other speakers today, and to commence my presentation what I want to do is to reflect on what it means to provide such acknowledgement, because it has a lot to do with the topic for this session.

For many Indigenous people, acknowledging the traditional owners is a way to express cultural respect when we speak on the traditional land of another group. It is recognition of the ongoing responsibilities and obligations of that group over this land. And by making such acknowledgement, we also fulfil a cultural protocol and responsibility to our own group.

Acknowledging the tradition owners is a relatively recent phenomenon. As such it can be seen as a reconstruction - perhaps even a modernisation - of more traditional, customary practices.

So while often an acknowledgement of the traditional owners can appear to be a mere formality, it is in fact a very simple example of the exercise of what we are talking about in this session - Aboriginal sovereignty.

On the one hand it is recognition of the ongoing cultural responsibilities of a particular group to this land - or of their ongoing sovereignty. While the other hand, it is a fulfilment of cultural protocols to our own people that is based in Aboriginal systems of law. Or put differently, it is also an exercise of our own sovereignty.

So we might more appropriately for this conference re-phrase our recognition of the traditional owners by stating that we acknowledge the ongoing sovereignty of the Ngunawal people over this land where we meet.

What I am going to consider today is the inter-relationship between Aboriginal sovereignty and the treaty process. This is an incredibly complex issue. But it does have to be grappled with. It has not yet been explored sufficiently despite its potential ramifications.

In my view, debates about Aboriginal sovereignty in this country have proceeded from a basis that is prejudicial to Indigenous peoples. This has to be addressed to ensure that the current treaty process does not continue along this line and become a tool for further disempowerment of Indigenous peoples.

The main issues that I will try to conceptualise in this presentation - and I must say that I will be raising more issues than I will be answering - are

• how debates about Aboriginal sovereignty to date have defined it in a way that guarantees that it is inferior to the sovereignty of the State and thereby guarantees its demise;
• and then ways to try to move forward so that the treaty process can be one that recognises the legitimacy of Aboriginal sovereignty co-existing with State sovereignty.

To date, Aboriginal sovereignty has tended to be defined as something analogous to the sovereignty of the State or government in international law. It has, in my opinion, been wrongly conflated with the concept of 'State sovereignty'.

This conflation privileges non-Indigenous interpretations and understandings of sovereignty over Indigenous ones in a way that pre-determines the outcome. And this has enormous ramifications for the treaty process.

It establishes a framework in which Aboriginal sovereignty is pitted against the existing system. Aboriginal sovereignty becomes an oppositional force. It becomes a threat to territorial integrity; to our system of government; to our way of life. And as a consequence, it irresistibly leads the broader community to the conclusion that Aboriginal sovereignty cannot be recognised and must be resisted.

This is so from a political perspective. I think it is clear that we currently have a government that is very good at telling us why we can't do certain things. They point out the difficulties and frighten large segments of the community into supporting their position. You certainly don't have to look far for evidence of this - be it the republic debate, fears that we will be overrun by asylum seekers, as well as in relation to proposals for a reparations tribunal for the stolen generations.

And no doubt we will hear later in this conference from the Government about why they believe that we cannot have a treaty. Because it is divisive. Or perhaps because the Australian legal system is not capable of challenging the legitimacy of its own foundations. If the broader community believes that a treaty would create an oppositional form of Aboriginal sovereignty that challenges Australia's sovereignty, then a treaty will never be possible from a political perspective.

This concern also arises from a legal perspective. If the courts were asked to adjudicate on issues relating to a concept of Aboriginal sovereignty that is defined as in conflict with State sovereignty then the courts might say, as they have said in relation to the recognition of some aspects of native title, that recognition of Aboriginal sovereignty would 'fracture the skeletal structure of our legal system' and therefore cannot be done.

This is, of course, if they even got that far. All attempts to recognise Aboriginal sovereignty to date have seen the courts declare it non-justiciable or not within the competence of the Court or its jurisdiction. This is basically a paradox - the legitimacy of the imposed sovereignty of the State cannot be challenged by agents of the system, such as the courts. The legitimacy of State sovereignty is assumed - excluding any other form of recognition that is pitted against it.

This issue of definition of Aboriginal sovereignty is one of the main concerns that I have at this early stage of debate about a treaty. There has been an illegitimate and quite wrongful assumption made by Government and the broader community that it has the prime role in defining what Aboriginal sovereignty is.

This is the wrong starting point for the treaty debate. It gives pre-eminence to non-Indigenous understandings even before the process has gotten underway. Defining Aboriginal sovereignty in these terms, in non-Indigenous ways, is a way of guaranteeing its fragility and ultimate demise. 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'.

There is a second set of concerns that I have about the defining of Aboriginal sovereignty as the same as, and also a competitor of, State sovereignty. This is that it also promotes a concept of power in Australian society as static and monolithic; only able to reside in the State - the government - and unable to be changed or challenged.

There are a number of problems with this construction of power, not least of which is its lack of reality. The nature of Australian sovereignty continually changes and is constantly being re-aligned and redistributed among a myriad of levels and players. The distribution of sovereign power is not fixed and unable to be challenged.

Historically, this evolving nature can be demonstrated by looking at the movement from the process of colonisation in the eighteenth and nineteenth centuries; to the federation of these colonies in 1900; to the continual re-alignments of power between the states, territories and federal governments under the Constitution; to the creation of new territories - such as the Northern Territory and A.C.T in the past forty years; to the passage of the Australia Acts in 1986 - just 16 years ago - when for the first time Australia became autonomous from the British legal system. It continues with ongoing debates about statehood for the Northern Territory; the possibility of becoming a republic; Australia's participation in the ANZUS alliance; and so on.

Clearly, distribution of power within society, between governments, is not static or monolithic. This evolving character must be recognised. The ability of the current system to change - including through the recognition of Aboriginal sovereignty - is not inherently limited or impossible. It is only limited by the will of the people that constitute the whole of our society.

But it is not just inter-governmental relations which change the nature of power distribution in Australian society. There are also powerful international influences at play. The most obvious and omnipresent are the forces of globalisation. Globalisation is diminishing the extent and force of government control and State sovereignty. Private sector entities - trans-national corporations and the like - exercise increasing power across the globe.

An equally important international force at play is developments in international law. Broadly speaking, in the nineteenth and early twentieth century, international law had shifted to a positivist construction. This was based on the premise that 'international law upholds the exclusive sovereignty of states and guards the exercise of that sovereignty from outside interference' . [1] This approach has increasingly been under challenge since 1945, particularly due to the process of decolonisation and the recognition of human rights. A key feature of this change has been the recognition of the rights of non-government actors in the international system. Indigenous peoples are now, for example, legitimately subjects and actors in the international legal system.

Ultimately, 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 naturalist, and truly 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 their collective rights to self-determination and to protection of culture - that is, that rights reside in peoples' systems of organisation, governance and ultimately, sovereignty.

International law remains an imperfect system and this is certainly highlighted by the disjunction between the recognition of Indigenous people's rights by numerous expert bodies and independent authorities within the United Nations, as against the continued reluctance of government-run structures within the United Nations to provide similar recognition. In many ways, the problem of definition that I have described in relation to Aboriginal sovereignty at the domestic level is replicated by States at the United Nations level. This is demonstrated by the ongoing debate at the UN over the scope of Indigenous peoples' right to self-determination.

In the negotiations on the draft Declaration on the Rights of Indigenous People States still resist including any recognition of a collective dimension to Indigenous people's livelihoods and the full application of the principle of self-determination to Indigenous peoples.

Why do they resist? The reason usually given is to guarantee their territorial integrity and sovereignty. As Indigenous representatives point out, the underlying assumption here is that State sovereignty and territorial integrity are privileged over the rights of Indigenous peoples to be self-determining. That they have a higher claim to protection.

In fact just the opposite is true. International law simply does not prioritise a State's organisational form over the rights of its constituent members. The sanctity of the State's integrity is dependent on it remaining representative and being truly of the people.

As Erica-Irene Daes has stated:

The concept of "self-determination" has… taken on a new meaning in the post-colonial era. Ordinarily, it is the right of the citizens of an existing, independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences. The international community… discourage(s) secession as a remedy for the abuse of fundamental rights, but, as recent events around the world demonstrate, secession cannot be ruled out completely in all cases. The preferred course of action, in every case except the most extreme ones, is to encourage the State in question to share power democratically with all groups, under a constitutional formula that guarantees that the Government is "effectively representative"…

Continued government representivity and accountability is therefore a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles. [2]

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.

Ultimately, what this brief discussion of the 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.

So, what are the consequences of this? I think there are two possibilities.

First, if the State strives for democratic partnerships and recognition of Indigenous culture and ultimately sovereignty, it lends credibility and legitimacy to its own assertions of sovereignty. In other words, recognition of Aboriginal sovereignty can enhance and fulfil the legitimacy of Australia's sovereign status. Such recognition should be seen as complementary and of mutual benefit.

Second, and in the alternative, if such efforts are not made then it will potentially lead to an increase in the level of scrutiny and problems of credibility at the international level.

It doesn't take much to see the relevance of these consequences in our domestic context. Take native title as an example.

The Mabo decision created this exact disjunction in our legal system. While Mabo recognised the continuing connection and rights to land of Indigenous people, it did more than this. In rejecting terra nullius it recognised the illegitimacy of the assertion of sovereignty by the British Crown in 1788. However, by also treating this as non-justiciable, it left a gap and an uncertainty - a 'moral illegitimacy' as the Aboriginal Provincial Government has termed it - at the core of our society.

The spectre of that illegitimacy remains today. But of course it doesn't have to be this way - it can be removed by recognising the continuation of Aboriginal sovereignty through the treaty process. Of course it could go the other way - just like native title - where the recognition of Indigenous people's inherent rights has been encased in a legal armature which gives it no room to move and is more about constricting, and limiting the exercise of rights rather than recognising them. This is a very real danger for the treaty process - it could in fact result in a further act of dispossession.

Ultimately, what I am saying is that the way that Aboriginal sovereignty is defined is going to be integral to the capacity of any treaty process to finally address the foundational myths of Australia's settlement and the ongoing consequences of that myth.

Clearly, there is need for much greater attention and consideration to these issues, but I want to conclude with a number of propositions which point to the direction that I think we need to go.

First, we need to re-conceptualise and define Aboriginal sovereignty. It needs to be understood by the broader community that it is not a threat to State sovereignty, but in fact an enhancement of that sovereignty and something of mutual benefit. It must be accepted that Aboriginal sovereignty is inter-related with State sovereignty rather than in opposition or competition with it. Until this distinction can be understood in the broader community we will continue to face political and legal dead-ends on the road to a treaty. In many ways this leads us away from a strictly legal conception of sovereignty to a political one.

Second, in considering how best we might do this, there needs to be consideration as to whether we should in fact call it Aboriginal sovereignty or re-name it something that is perhaps less threatening or which more accurately reflects Indigenous aspirations. At this stage I don't advocate abandonment of calling it Aboriginal sovereignty. But I do think that we need to look to the ultimate end that we are seeking to achieve. We need not be precious about language. And we should bear in mind the danger that insisting on using 'sovereignty' could attract the wrong kind of attention - giving the government the excuse to focus on extinguishment or abandonment of sovereignty rather than its recognition.

Third, if we accept that it is illegitimate for government, and the courts, to seek to impose a definition of Aboriginal sovereignty, that leads us to accept also that the definition and scope of Aboriginal sovereignty is a matter entirely for Indigenous people to be determined according to Indigenous systems of law and governance. The implication of this is that our efforts, as Indigenous people, should be directed to establishing the boundaries of our sovereignty. We must stop asking government to 'give us sovereignty'. It isn't the government's to give. You cannot be given sovereignty, much as you cannot be given self-determination - you must claim it, define it and exercise it. The treaty process is then the 'recognition space' for the ongoing exercise of our sovereignty.

At the same time - and this is my fourth point- this also places an obligation on organisations such as ATSIC to ensure that their treaty development processes are centred in communities, and are 'ground up' rather than 'top down'. The process by which the concept of a treaty is discussed is therefore of vital importance. It must respect traditional governing structures in communities to have any legitimacy.

Fifth, and intrinsically related to this, bodies like ATSIC and Indigenous communities should be looking to build the capacity of communities to exercise our sovereign rights. As Manley Gubay said at the Indigenous governance conference earlier this year, 'if you want to be treated like a sovereign nation then act like one'! This is the key strategic element from an Indigenous perspective for a treaty - at the end of the day what we want is to be self-determining. All efforts should be made to fulfil this end by building the capacity of communities to control decision making over their daily lives.

There are many initiatives underway in this regard as they relate to service delivery arrangements. When I talk about capacity building and governance, though, I am talking at a deeper level. I am talking, for example, about language maintenance and efforts to translate concepts of the non-Indigenous legal system into Aboriginal language (and possibly vice versa). I am talking about maintenance of customary law and oral traditions. It is impossible to know the exact nature of change that this would facilitate, but it is not unrealistic to suggest that it would place Indigenous people in a stronger position to assert their ongoing sovereignty and may even, in some cases, compel governments to recognise aspects of these practices.

And finally, we should seek from the broader community recognition of the legitimacy of efforts to reconstruct elements of our sovereignty, our governance structures and systems of law that may have been lost. We must vigorously oppose attempts to define our systems of law and culture as frozen in time. Our cultures have evolved and they continually adapt to the wider surroundings in which we live.

We remain sovereign peoples. The treaty process is about recognition of the ongoing dimensions of that sovereignty. We should continue to build and expand the scope of our sovereignty so that we can be truly self-determining.

Thank you.

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1. Marks, G, 'Sovereign states vs peoples: Indigenous rights and the origins of international law' (2000) 5(2) AILR 1, 3.

2. Daes, E, Explanatory note concerning the Draft Declaration on the Rights of Indigenous Peoples, 19 July 1993, UN Doc: E/CN.4/Sub.2/1993/26/Add.1, paras 22,23.