UNDERSTANDING SOVEREIGNTY
The following extract from Professor Marcia Langton’s essay ‘Sovereignty: 65,000 years of ancestral links to land’, written for the 22nd Biennale of Sydney 2020, explores Aboriginal and Torres Strait Islander sovereignty, which is core to nation building.
Sovereignty: 65,000 years of ancestral links to land
By Marcia Langton
The moral legitimacy of Australia as a modern state will remain at issue while an honourable place for Indigenous Australians in the formal Constitution of the nation remains unresolved.
That place – one that accords the first peoples their rightful status as the original peoples and acknowledges the need for restitution of what was taken from them – must be found beyond the limits of the legal framework. The political settlement of these issues is well overdue.
The calls for a treaty go to the heart of the juridical denial in Australian case law of the existence of Aboriginal nations in Australia prior to the seizure of the land and consequent dispossession of Indigenous people by the British Crown. This denial has accorded Australia the status of an anomaly among the settler colonial states ― such as New Zealand where the Treaty of Waitangi has considerable force, and Canada and the United States of America where treaties are the bedrock of relations between the state and aboriginal peoples.
Aboriginal people in Australia have continued to argue that, just as British sovereignty did not wipe away Aboriginal title or native title, neither did it wipe away Aboriginal jurisdiction. This is the logic of the many Aboriginal proponents of a treaty or treaties between the modern Australian state and Aboriginal peoples.
With native title recognised by the High Court of Australia in 1992 in the Mabo No 2 case, the issue of all other Aboriginal laws, and the idea of Aboriginal and Torres Strait Islander sovereignty, has become a live issue. Sovereignty, as I see it, is the legal personality of the Aboriginal polity ― and that social complex that is sometimes called sovereignty should be recognised. But how is the question. The history of Australia has made this a difficult problem, and so too the refusal of politicians to advocate for this issue.
So how can it be explained that native title to land that pre-existed sovereignty and survived it, as the High Court of Australia explained, has been recognised, and yet the full body of ancestral Indigenous Australian laws and jurisdiction are deemed by a narrow, historically distorted notion of sovereignty to be incapable of recognition.
Why was it denied that in the case of Aboriginal peoples that we were the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it at our own discretion? The answer to that lies in the terrible history of dispossession and the fraudulent arguments used to justify theft and genocide. The main argument used by the colonisers was the now defunct idea of ‘terra nullius’ – a land with no system of government. This legal fiction was overturned by the High Court of Australia in the Mabo No 2 case.
In Australia, the denial at law of Indigenous sovereignty and, indeed, the very existence of Aboriginal polities has a peculiar history. Here, the doctrine of terra nullius ― or empty land belonging to no-one ― was applied to justify colonisation. It was the 19th Century view that we were arrested in an evolutionary cul de sac, and we were positioned in western understanding as a tragedy of geographical and spiritual isolation. And for many 19th Century Europeans, the collapse of Aboriginal society in the wake of European colonial settlement was seen to reflect the static nature and natural inferiority of the Aboriginal ‘race’ – rather than war.
How colonization proceeded without extinguishing the sovereignty of the native Americans in the American colonies gives us a perspective on just how draconian were the developments in Australia.
Domestic dependent sovereignty recognised at law in north American colonies
The status of native American tribes within the federal jurisdiction of the United States of America such that they are regarded as ‘domestic dependent nations’ dates at least from the cases heard by Mr Chief Justice Marshall. In 1823, in Johnson v McIntosh 8 Wheat 543 (1823), he described in the following terms.
This was an action of ejectment for lands in the state and district of Illinois, claimed by the plaintiff under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant.” (p. 541)
Mr Chief Justice Marshall delivered the following opinion:
The Plaintiffs in this cause claim the land in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this titles can be recognised in the courts of the United States.
The facts as stated in the case agreed, show the authority of chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show that the particular tribes for whom these chiefs acted ere in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country. (p. 570)
Following this opening by Chief Justice Marshall, he then goes on to narrow the legal issues to be considered in the following:
In the establishment of these relations the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant soil, while yet in possession of the natives. These grants have been understood by all to convey a title of grantees, subject only to the Indian right of occupancy.” (p. 572-573)
In the Marshall cases, the following was held:
discovery gave title, against all other European governments, to the government by whose subjects discovery was made;
that title might be completed by possession;
the nation making the discovery had the sole right of acquiring the soil from the original inhabitants;
the rights of the original inhabitants were not entirely disregarded; but were considerably impaired;
they remained the rightful occupants and possessors of the land but their sovereignty was diminished
the original inhabitants had no right to dispose of the land; and
if lands were transferred to a third party, those lands carried with them the continued Indian right to occupy the land (unless extinguished by Congress).
Dorsett and Godden (1998:54) explain that the two major differences between Aboriginal title in the United States and native title are:
that the Indian Nations retained some sovereignty, although that sovereignty had been considerably diminished. This contrasts with the Australian situation, where according to the High court in Coe v. Commonwealth (1993) 68 ALJR 110, on acquisition of the continent by Great Britain all Indigenous sovereignty was extinguished; and
that on transfer of lands burdened with Indian title to third parties, that Indian title continues to burden the title of the new owner, unless it has been extinguished by Congress. This is because in the United States the federal government has the exclusive right to extinguished Indian title. Thus the grant of a fee simple interest by a State cannot extinguish Indian title. This contrasts with Australia, where both he States and Commonwealth have the power to extinguish native title, and the acquisition of a fee simple title by a third party will extinguish native title.
Eroding Indian Sovereignty
1. The new US government took three avenues that changed the nature of Indian sovereignty and eroded the powers of sovereign peoples. The US Constitution under Article I, Section 8, Clause 2, recognised the sovereignty of Indian tribes by stating that “The Congress shall have power...to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In this article, the Constitution specifically created two distinct sovereigns - the federal and tribal governments.
2. 2. The Indian Trade and Intercourse Act (1790) gave the federal government - not the states - exclusive power to deal with Indians. Consequently, all relations between the federal government and Indian nations were carried out on a government-to-government basis.
3. Three important U.S. Supreme Court decisions known as The Marshall Trilogy limited Indian sovereignty.
Only a few years after these disputed conveyances Australia was settled by the British, and in 1835 (only 12 years after Marshall’s decision), Governor Bourke firmly rejected the well-known, but ill-fated Dutigalla treaty negotiated by Batman with the original inhabitants of the Woi Wurrung and neighbouring peoples in the Melbourne region, was firmly rejected.
Even if the sovereignty of native American peoples was diminished by acquisition by a foreign power, they retained much of their jurisdiction and legitimacy within the nation. Why was it denied in the case of Aboriginal peoples that we were “the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished Or, why was our sovereignty as peoples denied, and why does it remain so?
Henry Reynolds has persuasively argued in his book, Aboriginal Sovereignty (Penguin), for an understanding of Aboriginal sovereignty, by distinguishing between the State and the nation and arguing for an understanding of the existence of several nations within a State. This arrangement has existed in various parts of the world since at least the Roman Empire. In recent eastern European history, new constitutions recognised the rights of constituent ancient nations and these constitutional developments contributed to ending brutal civil wars.
The status of Aboriginal polities-or Aboriginal nations – is disputed. Some denying that they have any sovereignty rights and others arguing that their rights to self-determination exist. In a High Court decision Coe vs. The Commonwealth (1979) it was found that the acquisition of sovereignty is an act of state that cannot be reviewed and consequently is not justiciable in municipal courts. However, Noel Pearson has argued that a concept of sovereignty inhered in Aboriginal groups prior to European invasion insofar as people have concepts of having laws, land and institutions without interference from outside of their society
He too says this must be a necessary implication of the decision in Mabo against Terra Nullius.
He also suggests that the development of human rights standards relating to Aboriginal people at international, recognition of local Indigenous sovereignty could exist internally within a nation-state provided that the fullest rights of self-determination are accorded.
Understanding sovereignty as the spiritual or ancestral tie of Aboriginal people to their lands
It seems to me that the concept of sovereignty developed in the Western legal tradition to describe nation states is artificial if applied to the Aboriginal relationship to land that is at the core of the Indigenous domain. A more appropriate concept is reflected in the judgment of Judge Fouad Ammoun of the International Court of Justice in 1975 in the Western Sahara Case ― a concept cited explicitly in the Uluru Statement from the Heart.
‘Mr Bayona-Ba-Meya dismissed the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.’
– Mr. Bayona-ba-Meya, Senior President of the Supreme Court of Zaire, Professor at the Faculty of Law, National University of Zaire
It is this attachment to a place through ancestors and tradition that enables those of us who can claim a kind of sovereignty that predates the colonists to have a sense of place that is, at once, deeply emotional and social and political. It is this ancestral connection that makes the sacrifices worthwhile, and makes it possible for one to believe in one’s own humanity.
The co-existence of ancient and pre-existing Aboriginal polities or nations with the Australian state, and the ethical basis for their future recognition by formal constitutional or legislative means is a matter that is close to the hearts of most Aboriginal and Torres Strait Islander people.
Noel Pearson has argued that ‘local indigenous sovereignty could exist internally within a nation-state, provided that the fullest rights of self-determination are accorded.’ But it is precisely here that we have the problem. The Australian state has consistently failed to understand and to accept the right of its Indigenous peoples to be granted the fullest rights of self-determination.
Nevertheless, as Pearson argues, the Mabo judgment put paid to ‘two gross fantasies’: that the ‘blacks were not and are still not here’ (that is, the fantasy of ‘terra and homo nullius’); and that the ‘whites are somehow going to pack up and leave.’ In other words, Mabo meant that ‘co-existence remains our lot.’ The only possible expression of self-determination in postcolonial Australia was that which could be achieved through partnership.
The question of how to bring about constitutional amendment in Australia is another issue that remains hotly debated by Indigenous leaders. To achieve the level of community support needed to pass such an amendment at a referendum would require bipartisan political support, which in turn entails the need to secure support from electorates in rural, conservative and regional Australia.
It is clear that, by itself, the ‘battle of ideas’ will not have the political force required to bring either constitutional change or a treaty process to fruition. Nor would a moral victory lay the ground for strategic alliances and an ongoing, mutually beneficial relationship between the treating parties.
While the many attempts at treating with Aborigines in colonial times and in the early twentieth century were not translated into enduring outcomes, it is clear that the agreements negotiated since the 1970s are evidence of a willingness to do what the colonial settlers were unable to countenance ― namely, to acknowledge: that another group of people were the owners and custodians of the lands and waters of Australia; that their descendants have a right to possess, use and enjoy those lands and waters, to govern, within the limits of Australian law, their use and access by others, and to reap any benefits arising from that use and access by others, as would any other group of people in rightful possession of a place.
My research with Maureen Tehan and Lisa Palmer has shown that, since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian Indigenous people and various corporations and branches of government aimed at achieving sustainable relationships and outcomes, whether the matter concerns the social licence to operate a mining company or government service delivery.
While the many attempts at treating with Aborigines in colonial times and in the early twentieth century were not translated into enduring outcomes, it is clear that the agreements negotiated since the 1970s are evidence of a willingness to do what the colonial settlers were unable to countenance: that is, to acknowledge that another group of people were the owners and custodians of the lands and waters of Australia; that their descendants have a right to possess, use and enjoy those lands and waters; to govern, within the limits of Australian law, their use and access by others, and to reap any benefits arising from that use and access by others, as would any other group of people in rightful possession of a place.
These practical agreements settled between Indigenous and non Indigenous parties, mostly for land use reasons, number in the hundreds – there are possibly two thousand now – and they demonstrate that co-existence can be achieved by formal means, such as Indigenous Land Use Agreements.
Noel Pearson put it this way:
‘There is surely no future in hoping the nation-states will further fragment, so that more nations can be created which reflect the existential convictions of distinct peoples. The existing nation-states, jealously guarding their integrity, have no appetite for further fragmentation. …
But it is also surely clear that nation-states denying the existence of distinct peoples within their territories and insisting upon the integrity of the unitary state, without recognition of distinct peoples and cultures, is no solution either. Insisting on comprehensive assimilation as the concomitant of nationalism is not the recipe for unity within nations; it foments too much ethnic destruction and resistance.
There is an alternative to fragmentation and the assimilatory state. It is recognition and reconciliation: where peoples within nation-states come to terms with each other and commit to the nation, while respecting the existential anxieties of distinct peoples.‘
– Noel Pearson, ‘A Rightful Place. Race, Recognition and a More Complete Commonwealth’, Melbourne, Quarterly Essay, Black Inc, 2014; retrieved on 29 April 2019
Understanding of the cultural foundations of the Indigenous world is not difficult. The First Australians have a right to exist and be acknowledged is this is the outstanding challenge that Australians must eventually face.
The unfinished business of Australia’s nationhood includes this outstanding problem of recognising the ancient jurisdictions of Aboriginal law, and that requires recognition of their polities as nations. There are several options for doing so, including constitutional amendment to provide such polities with the necessary status to treat with Australian governments, private corporations and other entities for the purposes of governance and industry.
In the Australian context, it follows that outdated and unjust theories of race must be replaced by a recognition of the ancient jurisdictions and continuing polity of Aboriginal nations. This must be the full meaning of Aboriginal sovereignty and this is what any future treaties with Aboriginal and Torres Strait Islander must recognise.