“First Nations people have been sovereign people of these lands for thousands and thousands of generations. They – we – are sovereign people,”
explained Greens Senator Lidia Thorpe to a panel of Attorney General Department representatives, who’d been skirting around answering her query.
“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 politician asked the panel representing the nation’s chief lawmaker for the fifth time.
the answer is “no”, and “as the representative of the attorney general, I can say that it doesn’t, from the government’s point of view.”
Labor Senator Watt, who was standing in for attorney general Mark Dreyfus, replied
This exchange shows that the chief lawmaker’s office and indeed, the entire federal government, recognise that First Nations peoples hold sovereignty over the continent referred to as Australia, which really does challenge the basis of the sovereignty it claims it holds over the same land.
Another significant point during the exchange is that AG office secretary Katherine Jones refers to the Voice to Parliament as “constitutional recognition”: the idea former PM John Howard cooked up in 1998, which the adoption of the Voice proposal was meant to have been a rejection of.
Then, during the 7 November Legal and Constitutional Affairs budget estimates proceedings, 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 this.
Speaking truth to power
“If the Department of the Attorney General acknowledges First Nations sovereignty, on what basis can the Australian government say that they are sovereign over these lands?” Senator Thorpe put it to Sydney Criminal Lawyers.
“We can only negotiate shared sovereignty through a grassroots self-determined Treaty process,” she continued. “That will enable us to negotiate how we can live together peacefully, as equals.”
A treaty is an agreement between two acknowledged equal parties that covers the rights and relationship between both separate entities in terms of land, waters and resources. If the AG acknowledges First Nations sovereignty, then he’s well aware the just way forward is treaty.
The reason why Thorpe and many of the colonised First Nations people of this continent are concerned about recognising the Indigenous of the land in the Constitution is it may extinguish their sovereignty as it will give prominence to that based on British sovereignty.
Indeed, that’s why many assert Howard concocted the 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,” the Australian Greens Senator added.
The settler colonial ruse
If the Howard reference sounds a tad conspiratorial, then consider this. The High Court’s 1992 Mabo decision recognised that at the time of invasion, First Nations people existed and had prior claim to the land, or sovereignty, shall we say.
The Keating government then promptly passed the Native Title Act 1993 (Cth) 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, however, are much weaker than land rights, which the real fight was about.
But just to be sure native title rights weren’t too problematic, the 1996 High Court Wik decision found that native title rights can coexist alongside the rights of a pastoral lease, however if there’s ever a conflict of interest, the leaseholder’s rights always prevail, and native title is extinguished.
The Voice to Parliament will be enshrined in the Constitution, which appears to give it some real substance because once something is installed in the founding document, it’s hard to alter it. But as Jones let it slip on Monday, she still considers the proposal to be “constitutional recognition”.
And her description of the Voice during the hearing definitely shows no sign of acknowledging sovereignty, as she described it as “a mechanism for advice to be provided to the parliament around issues affecting Aboriginal and Torres Strait Islander people”.
So, basically the Voice will ensure First Nations are recognised in the Constitution, as per the want of Howard, and the body itself will be able to give suggestions, which are available already on issues affecting Indigenous peoples, and there will be no statutory guarantee to pay attention to them.
Advising the overlords
“The Albanese government’s failure to consider First Nations Sovereignty in their proposal for a Voice to Parliament tells me that they haven’t spoken with any Sovereign, grassroots First Nations people,” Thorpe continued in relation to the responses from the attorney’s office on Monday.
During the budget estimates hearing, the senator pushed the AG panel on whether its office had been consulting any legal experts on how First Nations people entering into the Constitution will affect their sovereignty, and Jones continued to figure skate around any direct answer.
The secretary replied that the way “we’ve been approaching this work” has been focused on looking at the issue of the Uluru Statement and the different aspects of implementing that: “supporting the Voice, looking at the proposed question and supporting the constitutional legal experts’ group.”
However, it’s a strange set of circumstances when you have a group of constitutional legal experts supposedly concerned with establishing a body aiming to strengthen First Nations rights, yet it hasn’t bothered to consider whether it will extinguish the key right they’re 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 added. “That invitation went unanswered.”
First Nations liberties
The Uluru Statement from the Heart was revealed at the May 2017 National Referendum Council, which was the culmination of a nationwide series of dialogues involving Indigenous representatives, but Blak activists, like Thorpe, have always opposed its prioritisation of the Voice to Parliament.
The statement also includes the establishment of a Makarrata Commission for truth-telling and agreement making, following the Voice to Parliament being enshrined in the Constitution.
But Greens Senator Thorpe and her party maintain that the statement and the path Labor is taking is wrong.
A truth-telling commission should initially be established to reveal the true history of what took place on this continent, and then treaties between sovereign entities should be negotiated and entered into.
Of course, this is one of the reasons why the question of sovereignty in entering the Constitution is so important.
Treaty-making, or agreement making as the statement terms it, can’t take place if there are no longer two equal entities: if one’s sovereignty has been extinguished by the other’s.
“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 explained. “Labor has an opportunity to show real leadership and some ambition. The Greens will keep pushing Labor to go further for Blak justice.”
And the Australian Greens has produced legislation that would establish actual 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.”