Common(wealth) Knowledge #72: The Voice, Treaties and the assumption of Sovereignty

Without the involvement of international law, the question of Australian sovereignty cannot be challenged.

Throughout the referendum campaign over the Indigenous Voice to Parliament, there’s been some discussion about what the Voice would mean for Aboriginal and Torres Strait Islander sovereignty in Australia. So, just one week out from voting day, it's worth looking at just how hard recognising Aboriginal sovereignty would be, and what a referendum failure would mean for sovereignty.

The first important thing to consider is that treaties and the question of Aboriginal sovereignty pre-1788 are two separate things. Treaties are simply legislation passed by Parliament, and would be negotiated between Parliament and the relevant Aboriginal and Torres Strait Islander peoples, like at the state level.

These treaties would likely rely on the race power from Section 51(xxvi) of the Australian Constitution, which authorises Parliament to make laws with respect to individual races.

There is some authority to suggest that the race power also allows Parliament to make laws with respect to subgroups of a race, such as individual Aboriginal communities. The applicability of the race power to sub-groups was advanced by Justices Gummow, Hayne and Kirby in Kartinyeri v Commonwealth (1998).

Treaties don’t necessarily depend on the existence of Aboriginal sovereignty pre-1788. Rather, they focus on the consequences of the British and Australian governments assuming sovereignty over the land.

Treaties are made with individual communities because the effects this assumption of sovereignty had can vary between communities. This is the exact reason why native title cases also require considering the traditional customs and laws of a community to determine what rights they exercised on the land.

However, in the aftermath of Mabo v Queensland (No 2) (1992), Isabel Coe, on behalf of the Wiradjuri Tribe in New South Wales, argued that the law should recognise the sovereignty of her tribe, or at least a level of self-governance.

Isabel Coe’s lawsuit, Coe v Commonwealth (No 2) (1993), used many of the arguments advanced by her brother, Paul Coe, in Coe v Commonwealth (No 1) (1979). However, Isabel Coe adjusted the arguments to apply to the new context of Mabo (No 2).

Chief Justice Mason of the High Court, who as a young Justice was the trial judge in Coe (No 1), heard Isabel Coe’s case.

His conclusion remained the same: Even in light of Mabo (No 2), the common law could not recognise any level of self-governance or sovereignty in regard to the Wiradjuri Tribe.

His Honour was of the opinion that this case was an “abuse of process,” and that Isabel had insufficiently laid out the borders of the land she was claiming. In addition, there were so many non-Aboriginal people whose land fell within the claimed area, that if she was claiming all of their land was sovereign Aboriginal land, then those people would all become defendants in the case, making it “unmanageable.”

However, Mason CJ decided to humour Isabel, and examine her claims.

He dismissed her claims of genocide and other “crimes against humanity,” because even if they could be made out to the standard of proof needed, they were not recognised offences under the Australian legal system.

Mason CJ’s ruling would later be echoed by the High Court in Kruger v Commonwealth (1997), also known as the Stolen Generations Case.

Treaties can now rectify this by providing some form of compensation for the acts committed against Aboriginal people after the colonial government assumed sovereignty.

The most important part of Mason CJ’s ruling is that he said “Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia.”

The question of Aboriginal sovereignty challenges the very bedrock of governance in Australia. To rule that there was any degree of sovereignty would undermine those foundations. No “Australian municipal court,” not even the High Court, could challenge the government’s sovereignty. That was a question of international law.

While treaties deal with the consequences of the assumption of sovereignty, no government in Australia can recognise any form of Aboriginal sovereignty, or at least sovereignty that continues until today.

The most important international law document that addresses Aboriginal and Torres Strait Islander peoples is the United Nations Declaration on the Rights of Indigenous Persons (2007).

However, that is merely a declaration, and so holds no legal weight. It does not impose any obligations on Australia that could be relied upon to adopt the Declaration into domestic law.

The closest that Australia can come to resolving the question of sovereignty would be by a referendum saying that sovereignty was ceded by the Aboriginal and Torres Strait Islander peoples to Australia in 1788. And if the Voice referendum fails, that referendum has no chance at succeeding.

But even that is problematic, because there was no legally binding treaty signed by the colonial authorities and the Aboriginal and Torres Strait Islander peoples ceding sovereignty when the British arrived, either peacefully or by conquest.

Currently, there is no international framework in place that could be relied upon to recognise any Aboriginal or Torres Strait Islander sovereignty either before 1788 or after 1788. To claim that the Voice referendum would cede sovereignty to Australia is therefore incorrect because any question of sovereignty requires the involvement of international law.

Unless international law gets involved, Australian governments are constrained in what rights and recognition they can give to Aboriginal and Torres Strait Islander peoples, because they must keep in mind that they can only consider the consequences of the assumption of sovereignty, but not the assumption of sovereignty itself.

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Sources:

Coe v Commonwealth (No 1) (1979) 24 ALR 118; [1979] HCA 68.

Coe v Commonwealth (No 2) (1993) 118 ALR 193; [1993] HCA 42.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 52.

Kruger v Commonwealth (1997) 190 CLR 1; [1997] HCA 27.

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

United NationsDeclaration on the Rights of Indigenous Persons (2007).