Sovereignty in Australia is tightly connected to the Aboriginal self-determination movement. But how do you define sovereignty? And who has sovereignty in Australia?
Sovereignty is a word that's used a lot in discussions about Aboriginal issues. But what does it mean?
Under current international law, sovereignty is defined as follows:
"Sovereignty in the sense of contemporary public international law denotes the basic international legal status of a state that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative, or judicial jurisdiction of a foreign state or to foreign law other than public international law." [1]
The Wikipedia defines sovereignty as "a state or a governing body [that] has the full right and power to govern itself without any interference from outside sources or bodies" [2].
Sovereignty cannot 'exist', it can only be asserted, claimed or taken. If it is taken, this can be through conquest by a sovereign entity (after a war and subsequent treaty of surrender or complete destruction), cession (a sovereign entity cedes, through a treaty, part or all of its power to another sovereign entity) or settlement (a territory is completely uninhabited by people). [3]
Sovereignty is recognised reciprocally, meaning that sovereign entities (usually nations) recognise each other’s sovereignty.
Sovereignty vs self-determination
It can be difficult to distinguish the two terms. 'Self-determination' is a more loose word for 'sovereignty'. Sometimes, it is used as an alternative, while other times it is used to describe a form of ‘limited sovereignty’ under the sovereign power of someone else. In international law, sovereignty is a more precise term than self-determination.
True sovereignty also means that you have full ownership of your issues. It will be interesting to see what vocal Aboriginal activists have to say once First Nations peoples manage themselves the huge challenges they are facing today.
Aboriginal definition
For Aboriginal people, sovereignty has three components: land, law and people.
Land
Wiradjuri woman Jenny Munro explains how sovereignty is linked to land:
"It means we have right to this land. It is our land. We never ceded the right to the land, the sea and the air. We have never given that right away. We never told white people in any way that we had given them this country. There are no contracts of any sort, no treaties. It is still our land.
"White people keep perpetuating nationhood on a lie. They said the country was terra nullius and Mabo was supposed to have knocked that on the head but in every school they still talk about Captain Cook, and explorers discovering country.
"This year [2015] for example, they will celebrate the two- hundred year so-called discovery of the path across the Blue Mountains. They didn’t discover anything. They followed a Blackfella up the path. That was our trading track with the Sydney people, the Eora and Wiradjuri trading track. Blaxland, Lawson and Wentworth were not the first people to cross the Blue Mountains." [4]
Law
Reverend Dr Djiniyini Goṉḏarra OAM, Senior Elder Dhurili Clan Nation and Chairman of Arnhem Land Progress Aboriginal Corporation, explains how law relates to sovereignty (Madayin = Yolngu law system):
"We believe we have never been conquered and we are not subject to the Australian or British law but still maintain our own sovereignty. We still have our language and practice our Madayin law and as one of the first peoples we assent to the Madayin law not Australian law. Still we want to find a way forward. So, if the Law we have always assented to is not recognised then there can never be a real rule of Law only lawlessness and true justice can never exist for our people and the communities we live in." [5]
Sovereignty has been confirmed by Australian courts
Michael Ghillar Anderson, Convener of Sovereign Union of First Nations and Peoples in Australia and Head of State of the Euahlayi Peoples Republic, has worked tirelessly for the sovereignty of his people. He has unearthed a judicial gem, a court decision that acknowledges Aboriginal peoples' sovereignty in 1841.
At the Supreme Court of New South Wales in Melbourne in April 1841, Justice J. Willis ruled over the murder of an Aboriginal man [6]. The Justice made some remarkable statements in his judgement (my emphasis):
"...if this colony were acquired by occupying such lands as were uncultivated and unoccupied by the natives, and within the limits of the sovereignty asserted under the commission, the aborigines would have remained unconquered and free, but dependent tribes, dependent on the colonists as their superiors for protection; their rights as a distinct people cannot, from their peculiar situation, be considered to have been tacitly surrendered. But the frequent conflicts that have occurred between the colonists and the Aborigines within the limits of the colony of New South Wales, make it, I think, sufficiently manifest that the Aboriginal tribes are neither a conquered people, nor have tacitly acquiesced in the supremacy of the settlers."
"I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this colony to the English colonial law, and I have shown that the Aborigines cannot be considered as Foreigners in a Kingdom which is their own."
Justice Wills found that "the colonists and not the aborigines are the foreigners; the former are exotics, the latter indigenous, the latter the native sovereigns of the soil, the former uninvited intruders."
Free book: Aboriginal Sovereignty - Justice, the Law and Land
The concept of treaty was presented in 1987 to draw attention to the fact that Aboriginal sovereignty has never been ceded to the British Crown or the Australian Commonwealth government.
Aboriginal Sovereignty - Justice, the Law and Land by Kevin Gilbert resonates in the contemporary era as a foundation stone to the Sovereignty Movement, by casting a web around the fundamental legal argument that sovereignty has never been ceded by First Nations and Peoples in the land now known as Australia.
There is a viable pathway for recovery from the ongoing genocidal onslaught. Kevin Gilbert's well researched work provides an uncomplicated definitive legal argument based on international law and clarifies the concept of pre-existing and continuing sovereignty.
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