Living on Stolen Land

The garb worn by the radical indigenous politician, Lidia Thorpe, during her protests on Australia Day this year had a much greater impact than she could have hoped. Waving her fake sword in the air and sporting the T-shirt slogan “Sovereignty Never Ceded: Speak the Truth”, Thorpe posed for photographs that were later used by almost every newspaper and television news bulletin in the country to accompany stories of her unexpected desertion of The Greens  in the Senate. However, the proponents of a constitutional amendment for the Aboriginal Voice were less enthusiastic. They quickly recognized the threat these images represented. They have since tried to play down the concept Thorpe was advertising and to treat her as an isolated extremist rather than an accurate spokesperson for her cause.

In his article in The Australian (February 9 2023) the legal academic George Williams claimed that the referendum on the Voice promised by the Albanese government “has nothing to do with sovereignty”. This was, he argued, because the Constitutional Expert Group of which he was a member said so. The group was appointed by the Albanese government last year to advise on the issue and, predictably, it supported the line the government wanted it to take. Albanese was advised to take a position that Aboriginal activists had long supported in order to cover up the real agenda behind their demands.

Twenty years ago, in the book Treaty: Let’s Get it Right!, Mick Dodson had recommended that the term “sovereignty” be left out of any debate over constitutional amendment. Given the well-known failure of other referenda to be passed in Australia, Dodson said the Aborigines’ best hope of success would be if their wording kept to broad and less contentious principles such as “the right to self-determination” and ”the protection of indigenous laws and culture”.

Within the ranks of the educated Aboriginal elite, however, there has never been any hesitation about stating, both among themselves and in appeals to their white political supporters, what they really want. Here are some of the highlights from a campaign that goes back for more than forty years.

In April 1979, when Malcolm Fraser was Prime Minister, the then existing Aboriginal body advising the minister, the National Aboriginal Conference, began to publicly endorse the notion of sovereignty and a treaty between Aboriginal people and the government. The government referred these arguments to the Senate Standing Committee on Legal and Constitutional Affairs which from 1980–82 conducted an inquiry into what it called a “Makarrata” or treaty agreement. The submission to this committee made by the National Aboriginal Conference declared:

In pursuing the Makarrata (Treaty) we assert our basic rights as sovereign Aboriginal nations who are equal in political status with the Commonwealth of Australia in accordance with the principal espoused by the International Court of Justice in the Western Sahara Case that sovereignty has always resided in the Aboriginal people.

In 1988, the year of the bicentenary of the British founding of Australian settlement, Prime Minister Bob Hawke agreed that one of the ways he would mark the occasion was by attending the Barunga cultural and sporting festival in the Northern Ter­ritory where he would be given a statement of national Aborigi­nal political objectives, since known as the Barunga Statement. Presented by the Yolgnu leader, Galarrwuy Yunupingu, chair­man of the Northern Land Council, the statement called on the government to negotiate a treaty with indigenous people to rec­ognise “our prior ownership, continued occupation and sover­eignty”.

In the bicentenary year 1988, activists also founded the Aboriginal Sovereign Treaty ’88 Campaign, which used the occasion to call for the recognition of sovereign rights of Aboriginal people. It affirmed their ownership of Australia and demanded the gov­ernment make a treaty with Aboriginal sovereign nations through the mechanism of international law.

In July 1990, a group of left-wing Aboriginal activists formed what they called the Aboriginal Provisional Government. Original members included Michael Mansell, Kevin Gilbert, Bob Weatherall, Jack Davis and Geoff Clark. Their aim was to establish an Aboriginal state “with all the essential control,” the panel noted, “being vested back into Aboriginal communities”. Geoff Clark also became chair of the Hawke Labor government’s Aboriginal and Torres Strait Islander Commission (ATSIC).

Over this time, two other well-known activists and media commentators, Patrick Dod­son and Marcia Langton, were both on record as having pub­licly affirmed the notion of sovereignty as a legitimate goal for Aboriginal politics. In his 1999 Vincent Lingiari Memorial Lec­ture, Dodson said any hope for reconciliation could not avoid the topic:

The sovereign position that Aboriginal peoples assert has never been ceded … Moreover, a significant number of the Aboriginal peoples in Australia continue to assert their unextinguished sovereignty. For them, no settlement will be possible until Australian governments are able to grapple with fundamental and difficult questions concerning the basis of the relationship between indigenous and non-indige­nous peoples in Australia.

Langton had expressed similar views. In a 2002 paper titled “Ancient Jurisdictions, Aboriginal Polities and Sover­eignty”, given to the Indigenous Governance Conference, Can­berra, she said:

Aboriginal people have continued to argue that not only customary property rights in land but also ancient jurisdictions survive, on the grounds that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal governance under the full body of Aboriginal customary laws, by the same logic as that led to the recognition of native title at common law must, even if in some qualified way, have survived the annexation of Australia by the Crown.

Langton says Aboriginal dissatisfaction about their position has created a demand for separate nationhood. In 2005 she endorsed a book titled Treaty, authored by legal academics Sean Brennan, Larissa Behrendt, Lisa Strelein and the ubiquitous George Williams. In her Foreword, Langton wrote:

The Australian state has consistently failed to understand and to accept the right of its Indigenous people to be allowed the fullest rights to self-determination. It is little wonder that calls for a separate nation find ready adherents in the Aboriginal community.

The only prominent member of this long-standing elite who took a modified view of sovereignty was Noel Pearson. He said a case could be made for Aboriginal self-determination within the existing Australian nation. He advanced the concept of “local indigenous sovereignty”:

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 their society. … Recognition of this “local indigenous sovereignty” could exist internally within a nation-state, provided that the fullest rights of self-determination are accorded.

Pearson was evoking a distinction that derives from international law in the nineteenth century. This defined sover­eignty as the supreme power by which a state is governed but identified both external and internal sovereignty. External sover­eignty was about the power of a nation to deal with other nation states like itself. Internal sovereignty was the power vested in either the people of a democratic state or the ruler of an autoc­racy by its constitutional law or internal public laws. Internal sov­ereignty need not be absolute but could be divided, as the Australian Constitution divides power between the Common­wealth and state governments. Hence, Pearson’s “local indige­nous sovereignty” could be created if Aboriginal people were given a state of their own within the Commonwealth.

The common assumption all these activists share is that the real aim of constitutional change is not to arrive at some final settlement that will make the nation complete. They support recognition of Aborigines in the Constitution simply as one more of the steps they need to take towards their real objectives: political autonomy, traditional law and values, and sovereignty over their own separate state or nation.

Some, like Pearson, regard a constitutional amendment as a critical step towards this goal. Others, like Thorpe, think it would be better to first do a deal with the Commonwealth for a treaty that would itself define the kind of constitutional amendment they want. But the goal both approaches seek is essentially the same.

It is also important to recognise that this goal is far from being confined to the leading members of the Aboriginal urban elite. While the names of Pearson, Dodson and Langton are among the most promi­nent backers of some form of sovereignty, there is fairly reliable evidence of how deeply embedded the notion has become within the wider Aboriginal population, especially those connected to land councils in the various states and territories and those employed by both Commonwealth and state government bureaucracies.

In 2011, a survey by the National Congress of Australia’s First Peo­ples found the three most important issues for its members were sov­ereignty, health and education. No fewer than 88 per cent of Congress members identified constitutional recognition and sovereignty as top priority. The report also quoted the National Indigenous Lawyers Corporation of Australia saying, “recogni­tion of our sovereign status is an aspiration of Aborigi­nal people and Torres Strait Islanders and an issue that will need to be con­fronted at some stage in the not too distant future”.

In other words, reporters, news editors, headline writers and academic commentators today are being quite deceptive when they describe Aboriginal sovereignty as an issue confined to a bunch of easily excitable political fringe dwellers like Lidia Thorpe. Sovereignty has now become the mainstream demand of all members of the Aboriginal political class. Aboriginal activists are uncompromisingly radical in their insistence that “sovereignty over all of Australia” lies with them. The best-known Northern Territory Abo­riginal identity, Galarrwuy Yunupingu, made it very clear how intransigent he stood in relation to our democratic nation. In 2009 he declared:

The clans of east Arnhem Land join me in acknowledging no king, no queen, no church and no state. Our allegiance is to each other, to our land and to the ceremonies that define us. It is through the ceremonies that our lives are created. These ceremonies record and pass on the laws that give us ownership of the land and of the seas, and the rules by which we live.

In a similar vein, some prominent Aboriginal individuals who once accepted Australia’s political and religious institutions without question, have themselves since become radicalised. Some, like Lidia Thorpe, have come to reject the notion of constitutional recognition on the grounds that, as a sovereign and independent people, the Aborigines are not part of the Australian nation, hence constitu­tional recognition is a ploy to divert and placate them.

For instance, the former actress in the 1955 film Jedda, Rosalie Kunoth-Monks, born in 1937 on Utopia cattle station in the Northern Territory and educated at an Anglican mission hostel in Alice Springs, spent the decade of the 1960s as an Anglican nun in Melbourne. However, after a stint in the 1990s as an official with ATSIC, she had become a critic of constitutional recognition. By 2015, she was denouncing proposals for a referendum on the grounds that it would only further the outdated government policy of Aboriginal assimilation. She told an ABC television program:

The truth is we are sovereign people of this country, therefore we do not need to sought or to look for approval by anyone. We have a continuing history that has never, ever been ceded. … We certainly are not equal in this country because everything that is handed down to us, whether it’s through the policies from the Federal Government, is towards assimilation. We do not want to be assimilated for the cost of losing our identity.

Yet when Anthony Albanese spruiks his support for constitutional change, he persists with assurances that there are no fundamental issues like these for Australian voters to be concerned about. On January 26, against a background of left-wing demonstrators protesting for constitutional recognition at “Invasion Day” rallies, Albanese told a media conference in Tasmania:

Across the country, every state premier, every chief minister, is supporting Yes at this referendum because this is about progress going forward. It is about reconciliation. It’s not a radical proposition. So I’m not surprised that some radicals are opposed to it. Because this is a mainstream proposition. This is a modest and gracious request for reconciliation by Aboriginal and Torres Strait Islander peoples.

But, as I have long argued in other pages of Quadrant and in my book The Break-up of Australia, the proposed Voice or its variants would all be the opposite of reconciliation. The goal has always been political power and who will have ultimate sovereignty on this continent.

Today, we are in a situation where the Aboriginal political class is unwilling to accept a position in contemporary Australia as an ethnic minority group. Its members want other Australians to recognise the “distinct rights” that purportedly flow to Aborigines because their ancestors got here first. As declared by the title of the recent book by award-winning Aboriginal author Ambelin Kwaymullina, (Assistant Professor of Law at the University of Western Australia and daughter of author Sally Morgan) the rest of us are Living on Stolen Land. This is a title that consolidates the objectives of what were once the far left of the Aboriginal political movement but which have now become the central agenda of the demand for constitutional change.

If the proposed referendum is held later this year, as Albanese has promised — some time between September and December, he said recently — voters need to be aware of its ultimate objective. This is to establish a politically privileged race of Aboriginal people, and to relegate of the rest of us to a subservient position in what we once thought was our own country.