“First Nations people have been sovereign people of these lands for thousands and thousands of generations. They — we — are sovereign people,” Greens Senator Lidia Thorpe told a panel of Attorney General Department representatives who had been skirting around answering her query on November 7.
“The question, very clearly, is: Does going into the Australian Constitution through the Voice cede the sovereignty of First Nations people in this country?” the Gunnai Gunditjmara and Djab Wurrung Senator asked the panel for the fifth time.
Labor Senator Murray Watt, standing in for Attorney General Mark Dreyfus, replied that the answer is “No”.
“As the representative of the attorney general, I can say that it doesn’t, from the government’s point of view,” Watt said.
This exchange shows that the chief lawmaker’s office and the federal government recognise that First Nations peoples hold sovereignty over the continent, referred to as Australia.
This really does challenge the basis of the sovereignty the government claims it holds over the same land.
Another significant point during the exchange was when the attorney general’s office secretary Katherine Jones referred to the Voice to Parliament as “constitutional recognition”.
This was the idea of former Prime Minister John Howard in 1998, which the adoption of the Voice proposal was meant to have rejected.
During the November 7 Legal and Constitutional Affairs budget estimates hearings, Thorpe ascertained from Jones that, despite Dreyfus’ office readily acknowledging First Nations sovereignty, it had never occurred to anyone to query how this constitutional reform might affect it.
Speaking truth to power
“If the Department of the Attorney General acknowledges First Nations sovereignty, on what basis can the Australian government say that it is sovereign over these lands?” Senator Thorpe told Sydney Criminal Lawyers.
“We can only negotiate shared sovereignty through a grassroots self-determined Treaty process,” Thorpe said. “That will enable us to negotiate how we can live together peacefully, as equals.”
A treaty is an agreement between two acknowledged equal parties; it covers the rights and relationship between both entities in terms of land, waters and resources.
If the attorney general acknowledges First Nations sovereignty, he is well aware that the just way forward are treaties.
The reason why Thorpe, and many First Nations people, are concerned about Indigenous recognition in the Constitution is that it may extinguish their sovereignty as it will give prominence to British sovereignty.
Indeed, that is why many assert Howard concocted his plan.
“Sovereignty has never been ceded by First Nations people, so there are legitimate concerns from Sovereign First Nations people that need to be addressed in the formulation of the Voice,” Thorpe added.
The settler colonial ruse
If the Howard reference sounds conspiratorial, consider this: the High Court’s 1992 Mabo decision recognised that, at the time of European invasion, First Nations people existed and had prior claim to the land, or sovereignty.
Paul Keating’s government then promptly passed the Native Title Act 1993 in direct response to Mabo. It provided a process for First Nations people to apply for native title rights over their own lands. These rights are much weaker than land rights, which the real fight was about.
To ensure native title rights were not too problematic, the 1996 High Court Wik decision found that native title rights can coexist alongside a pastoral lease. However, if there’s ever a conflict of interest, the leaseholder’s rights always prevail, and native title is extinguished.
The government wants the Voice to Parliament to be enshrined in the Constitution to make it appear to have real substance. Once something is installed in the founding document, it’s hard to alter it.
But, as Jones let it slip, she still considers the proposal to be “constitutional recognition”.
Her description of the Voice showed no sign of acknowledging sovereignty. She described Voice as “a mechanism for advice to be provided to the parliament around issues affecting Aboriginal and Torres Strait Islander people”.
The Voice will ensure First Nations peoples are recognised in the Constitution, as Howard wished. It will be able to make suggestions (which can already be done on issues of concern for Indigenous peoples) and there will be no statutory guarantee for MPs to pay attention to them.
Advising the overlords
“The Albanese government’s failure to consider First Nations Sovereignty in its proposal for a Voice to Parliament tells me that they haven’t spoken with any Sovereign grassroots First Nations people,” Thorpe said.
During the budget estimates hearing, Thorpe pushed the attorney general panel on whether its office had consulted any legal experts on how putting First Nations people into the Constitution will affect their sovereignty. Jones continued to figure-skate around giving a direct answer.
In reply Jones said the way “we’ve been approaching this work”, was to focus on looking at the Uluru Statement and the different aspects of implementing that including “supporting the Voice, looking at the proposed question and supporting the constitutional legal experts’ group”.
It is strange for a group of constitutional legal experts, supposedly concerned with establishing a body aiming to strengthen First Nations rights, to not consider whether such a body will extinguish the key right they are chiefly concerned with.
“The Tent Embassy called on the Prime Minister and minister Linda Burney for consultation on the Uluru Statement from the Heart back in May,” Thorpe said. “That invitation went unanswered.”
First Nations' liberties
The Uluru Statement from the Heart was revealed at the May 2017 National Referendum Council, the culmination of a nationwide series of dialogues involving Indigenous representatives. But Thorpe has always opposed the Voice to Parliament being prioritised.
The statement also includes the setting up of a Makarrata Commission for truth-telling and agreement-making, following the Voice to Parliament being enshrined in the Constitution.
But Thorpe and the Australian Greens maintain that Labor’s prioritisation of the statement is wrong.
They are calling for a truth-telling commission to be established to reveal the true history of colonisation and, from then, then treaties between sovereign entities should be negotiated and entered into.
This is one of the reasons why the question of sovereignty and the Constitution is so important.
Treaty making or “agreement making”, as the Uluru Statement describes it, cannot take place if there are no longer two equal entities or if one party’s sovereignty has been extinguished by the others.
“The federal Labor party is losing sight of Truth, Treaty and Sovereignty. That’s why I’m fighting so hard to keep these on the agenda,” Thorpe said.
“Labor has an opportunity to show real leadership and some ambition. The Greens will keep pushing Labor to go further for Blak justice.”
The Australian Greens have drafted a bill that would establish real rights for First Nations people, not a constitutionally enshrined suggestion box.
Thorpe introduced the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 earlier this year. It would guarantee that the rights of Indigenous peoples established by the UN would be reflected in all Australian laws, policies and procedures.
“This is a priority for the Greens, because it will ensure that human rights are the foundation for all First Nations policy,” Thorpe said in conclusion.
“In our negotiations with Labor, I’ve asked for their evidence that the Voice will not cede our sovereignty. To date, no one has responded to this request.”
[This article first appeared at Sydney Criminal Lawyers and is republished with permission.]