Sovereignty: (1) the quality or state of having supreme power or authority; (2) the authority of a state to govern itself; (3) a self-governing state.
Oxford English Dictionary
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Uluru Statement from the Heart
ABORIGINAL AUSTRALIANS ARE a colonised people without a just and proper settlement having been negotiated over the last two hundred and forty years. This is indisputable. What has been at issue is the way in which Aboriginal people can achieve sovereignty, and the modern Australian democracy can decolonise. First we must take stock of the current situation in order to make meaningful steps forward.
With the recognition that colonisation has been overwhelmingly destructive of Indigenous peoples and their cultures, there was a comprehensive movement for decolonisation following World War II. Colonial powers were very depleted by the demands and aftermath of that war, and European colonies across Africa, Asia and the Caribbean fought for and claimed independence. Meanwhile, the wealthy settler-colonial nations of Australia, Aotearoa-New Zealand, the US and Canada, where Indigenous peoples are in a minority, sought other creative ways to decolonise and secure the human rights and social justice of their First Peoples.
Aboriginal Australians are a minority people within a settler-colonial regime; just 3.3 per cent of the total population, some 786,689 people in a total population of nearly twenty-five million. This reduces the opportunity for true representation in the Australian democracy, as it now stands, based on geographical boundaries. While five Aboriginal persons are members of the 226-member Commonwealth Parliament – rightly celebrated as a great achievement – they have their electorates to represent and no mandate to represent the interests of all Aboriginal Australians.
There is a different apparatus in Aotearoa-New Zealand, where Maōri electorates that cover the whole of the country were introduced in 1867 under the Maōri Representation Act. The original four electorates have grown to seven as the Maori electoral roll has increased; Maōri have a choice of being on the Maōri or the general electoral roll. Maōri members elected to parliament within these electorates have the mandate of all Maōri constituents, and also answer to them at the ballot box. Maōri members of parliament are still outnumbered in a parliament of one hundred and twenty, and forced to build alliances with the major political parties to gain traction. While not perfect – it is not sovereignty – it is a more inclusive and progressive option than that which we have in Australia.
It was only in the 1970s that the Australian state began to relieve structural disadvantages after a period of high activism both internally, by Aboriginal people and their allies, and externally through the United Nations. Over time, many policies and programs have been developed and have all failed to achieve the promises and expectations of the state and the Aboriginal people. While there are many reasons for these failures, the one constant and overriding factor is that Aboriginal people are not in fact considered a part of the Australian state apparatus. In my view, policies developed within a settler-colonial representative democracy are bound to fail because Aboriginal people are in a state of exception to the Australian state.
As I have argued elsewhere, despite the promise of citizenship following the 1967 referendum, there has been a failure to achieve citizen rights because of the pillars of this exception that include: the ongoing impact of the doctrine of terra nullius that is still the basis of the constitution; the ‘normal’ everyday, ubiquitous expression of racism; the ongoing crisis of the removal of Aboriginal children from their families; the extraordinarily high levels of incarceration of Aboriginal men and women; the imaginary moral centre of settler ways of being and doing; the lack of respect for Aboriginal cultural ways of being; and the cunning of citizenship for Aboriginal people. All of these lead to the deeply entrenched, endemic poverty of Aboriginal Australia.
Most recently, Prime Minister Turnbull’s veto of the first of the suggested initiatives outlined in the Uluru Statement from the Heart was a clear proclamation of opposition to the aspirations of Aboriginal people. It should come as no surprise since attempts to achieve sovereignty, even a shared sovereignty as was proposed, have suffered repeated rejection. The history of the Aboriginal peoples’ relationship to the state has been one of hostility and rejection of an outstretched hand.
We have suffered under the imposition of policies of genocide, ‘protection’, segregation, assimilation and so-called integration. Most recently, the imposition of the Northern Territory National Emergency Response, and its ripple effects across the country, has laid bare the violence of the settler-colonial democracy that harms the Aboriginal people who are in a state of exception – physically, psychologically and spiritually. The Aboriginal people, particularly those who live in communities, missions or reserves and in urban ghettoes, the washed-up remnants of the original aggression, are truly homo sacer. They live only a ‘bare life’ from day to day, or even hour to hour.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
Uluru Statement from the Heart
WHAT THEN IS ‘a state of exception’? And what are the possible solutions for this structural political problem to ensure human rights and social justice for the Aboriginal people of Australia? Philosopher Giorgio Agamben has studied developments in Europe following two world wars. Europe was in such turmoil after World War I that many people were refugees living in camps, which he describes as ‘places where people go to die’. He asserts that people in these camps were in a state of exception, with a deep and pervading powerlessness, in the developing modern democracies of postwar Europe. Camps are, by their very nature, makeshift and rudimentary, lacking public health facilities and adequate food, water and shelter for human life. People in camps have no political voice.
This has been the history of Aboriginal people whose camps, often described critically in the Australian media, are similar. These are not the way that Aboriginal people have traditionally lived on this continent. They were imposed, but without adequate resources to properly support human life. Aboriginal people can be seen to be refugees in their own lands.
Recent scholarship on the origins of concentration camps has described their development in Spanish-occupied Cuba (1868–98), American-occupied Philippines (1899–1902), the Boer War (1899–1902) and the Herero-Nama Wars in South-West Africa (1904-1907) as precursors to the notorious death camps in Europe. It has now begun to include the camps developed as a result of wars with Indigenous peoples in the settler-colonial states. For example, the camp near Fort Snelling, Minnesota, where hundreds of Dakota women, children and the elderly were forced to relocate in 1862, is called a concentration camp by the Dakota. As with other such camps, there was a huge death toll from starvation and disease. This violent reorganisation of space is evident in Australian history: Aboriginal people were pushed into states of liminal existence, marginalised and said to be a ‘vanishing race’ in a blatantly genocidal strategy.
Agamben says that people in camps as refugees, where only bare life exists, do not have the rights of the citizen. The Australian state exists because of the presumption and doctrine of terra nullius. It was this, more than anything else, that authorised the most horrendous frontier crimes and the ongoing crimes of child removal and high levels of incarceration. This shifted Aboriginal people into the state of exception and allowed increasingly high levels of violence on Aboriginal bodies.
This is particularly evident in prison and juvenile detention centres, where violence is the norm; in the increasing rate of Aboriginal deaths in custody; and in the abduction, rape and death of Aboriginal women. Agamben says that people in the state of exception have the violence of the modern democratic state vested on their bodies. This is all too evident in Australia.
This is biopolitics: the intersectional field between the body and politics, only life enough to exist in the moment, with no resources, little opportunity for adequate nutrition, let alone gainful employment and no idea of a future. Living short lives in the shadow of threatened and real violence in many forms. It is this that makes it so difficult for us to hear the voices of the people of remote and not-so-remote Australia, whose lives are lived as if each day were their last.
The sovereign state cannot be held to task for its own crimes against the people in the state of exception, because the sovereign cannot prosecute itself under its own law. As Ravi de Costa documented in A Higher Authority: Indigenous Transnationalism and Australia (UNSW Press, 2006), Aboriginal activists of the postwar period realised that since internal solutions were intractable, they needed to appeal to the United Nations as the only body to assist them with claims for human rights and social justice – to decolonise and claim sovereignty.
While visiting a Congress of African People in Atlanta, Georgia, in 1970, Aboriginal activists Bob Maza, Jack Davis, Bruce McGuinness, Pat Kruger and Bob Bellear also presented two petitions to the United Nations in New York, demanding intervention into Australian government dealings with Aboriginal people. Later, Paul Coe, Lyall Munro Jnr and Ray Robinson had the Aboriginal-controlled National Aboriginal and Torres Strait Islander Legal Service included as part of the Working Group on Indigenous Populations at the United Nations in 1982.
Appeals to the United Nations have brought little relief for complex reasons, and this too in spite of the recent visits of the Special Rapporteurs on the rights of Indigenous peoples in 2009 and 2017. Following Victoria Tauli-Corpuz’s visit to Australia in 2017, the UN issued a statement that emphasised ‘that the rates of incarceration for Australia’s Indigenous peoples have reached astounding, “tsunami” proportions.’ It went on to say that the UN human rights expert ‘called on the authorities to respect the peoples’ right to self-determination, to full and effective participation in society, and to step up the fight against racism’.
In a blatant and radical demonstration of its absolute power over Aboriginal people, the sovereign state suspended the powers of the Racial Discrimination Act 1975 in order to pass the Northern Territory National Emergency Response Act 2007 and to carry out the discriminatory programs and policies of the Intervention. This flagrant disregard for human rights then continued, in what the journalist and advocate for Aboriginal rights Jeff McMullen called a ‘shameful’ bipartisanship, with the succeeding ‘Stronger Futures’ approach introduced by the Labor government of Julia Gillard in 2012. These actions point to the deep and abiding disregard of Australian democracy for the people in the state of exception. This would no longer be possible under a bill of rights as enshrined in a new constitution of an Australian republic.
AGAMBEN HAS ARGUED that what is needed to address this exceptional disadvantage is a new governance apparatus based on the human rights of those in the state of exception, with their rights and social justice at the forefront. In Australia this could be achieved by creating a new governing apparatus within a republic.
The idea of the Australian state negotiating with Aboriginal people for sovereignty is linked to activist thinking over time. In 1970, Jack Davis, a leading figure in the Western Australian Aboriginal rights movement, argued for Aboriginal ownership of the country and that white rule should be by agreement. It is safe to say that at the time, the idea of an Australian republic was not on the agenda, but by 1995 – perhaps the high point of the republican movement – it was supported by three quarters of Australians. A republic could answer the need for a state that incorporates Aboriginal people and their original ways of living on this continent, while at the same time meeting Australia’s need for autonomy from the British Crown. We need to think beyond a republic that essentially relabels the existing governance system, in order to enable a process that brings a new constitution with a bill of rights. Such a process should take as long as it takes to include all the seemingly disparate groups that come under the purview of the state.
There are many voices calling for change, with an increasing awareness of the need to address deep and abiding schisms in Australian society and politics. The Aboriginal people now have many allies among the diverse peoples that make up the Australian constituency and who are cognisant of the need for a constructive and humanitarian way forward. Settler-colonials from many walks of life, for example, are now allies of the Aboriginal people, as has been amply demonstrated by the tens of thousands who attended the protest marches across the country on Australia Day 2018 demanding a change to the date of the holiday. In Melbourne alone, the crowd was estimated to be sixty thousand people.
Paul Keating, who famously made public settler-colonial ownership of the deep and pervasive impacts of colonisation in his Redfern Park Speech on 10 December 1992, is an exemplar of those Australians who recognise the need for a new way forward. His speech introduced the International Year of the World’s Indigenous People in 1993 and was cognisant of worldwide developments:
And, as I say, the starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask – how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us.
This speech was intended to herald the beginning of a new relationship with the Aboriginal people; it was the expression of a wish to move into a united, national future. Keating built on this with a speech to commemorate its twenty-third anniversary at the Australian Museum in December 2015. He moved on from recognition of past wrongs to understanding the centrality of Australia’s Indigenous people and culture to Australia’s future. He said, and it is worth repeating here at length:
Is it any wonder then that this culture, the longest with a collective memory of any in continuous existence, with its originality and creativity, is now pointing the way for our own culture – an essentially European one but one under constant renovation, not least at the incidence of Indigenous inspiration?
Aboriginal art and culture draws from the land, for Aborig-inality and the land are essential to each other and are inseparable.
At its best, Aboriginal art carries sacred messages through its symbols and materials yet manages to hold its secrets while speaking to a broader audience. More than that, it has been effective in translating an entire culture and the understanding of an entire continent.
Indeed, the more we interpret Australia through Aboriginal eyes, through the experience of their long and epic story, the more we allow ourselves to understand the land we share.
So I think there is a lesson in this: we may reach a point where Aboriginal art and culture become so integral and so central to Australian art and culture that each melds into the other.
Whatever our identity is today or has become, it is an identity inseparable from Aboriginal Australia. For their fifty thousand years here has slaked the land with their resonances, their presence and their spirit. Our opportunity is to rejoice in their identity, and without attempting to appropriate or diminish it, fuse it with our own, making the whole richer.
Australia is positioned in the fastest growing, most dynamic part of the world. Indigenous cultures exist all around it. And in the largest countries on earth.
Our two-hundred-year occupancy of this vast continent, in terms of long history, sits at odds with the settled old societies near us and around us.
But this is not the case with our indigenes.
They were never at odds with what surrounded them nor indeed with their own land. They are entirely at home with it and in it.
But as it turned out, their home is now our home and the more we rejoice in their identity – and their one-ness with the country, the more the country will become ours as we become nearer its spirituality and its meaning.
The more we view the country through the prism of Aboriginality, the more likely we are to get the angle right.
Keating underlines the unique and invaluable contribution Aboriginal Australians can make to the ways in which we live in this country and the way that we approach the future. He looks forward to opportunities to work together to deal with future challenges. This is the response that the late great Aboriginal philosopher and senior lawman of the Ngarinyin people of the West Kimberley, David Mowaljarlai, was looking for when in 1996 he was addressing visitors to his country:
We are really sorry for you people. We cry for you because you haven’t got meaning of culture in this country. We have a gift we want to give you. We keep getting blocked from giving you that gift. We get blocked by politics and politicians. We get blocked by media, by process of law. All we want to do is come out from under all of this and give you this gift. And it’s the gift of pattern thinking. It’s the culture which is the blood of this country, of Aboriginal groups, of the ecology, of the land itself.
In this connection it is important to be cognisant of world history and the looming destructive forces that are being unleashed through climate change and the reality of a dying Earth. We need to know more about the ways in which Aboriginal people have been able to survive in harsh environments for many thousands of years, including at least one Ice Age. Aboriginal land management practice that conserves water in the environment is only one of many examples. This fledgling learning process is already beginning in Wiradjuri country in NSW, for example, as documented by the environmental historian George Main in his book Heartland: The Regeneration of Rural Place (UNSW Press, 2005).
We invite you to walk with us in a movement of the Australian people for a better future.
Uluru Statement from the Heart
THERE IS A case to be made that Australia is suffering a socio-political crisis because we have not had sufficient political will to decolonise. Toula Nicolacopoulos and George Vassilacopoulos in Indigenous Sovereignty and the Being of the Occupier: Manifesto for a White Australian Philosophy of Origins (re press, 2014) argue the need for white Australia to renegotiate their basis of being in this country. Their position is that there are opportunities for a better future for all Australians when the reality of Indigenous sovereignty is embraced. It is only by accepting the historical fact of the dispossession of Aboriginal and Torres Strait Islander Peoples that this emptiness of being can be addressed and we can be freed from the colonial past.
Furthermore, the refugees on Manus Island and Nauru have a similar relationship with the sovereign state: they too have only ‘bare life’ and the full force of state violence is vested on their bodies. They are ‘waiting-to-be-migrants’, which is not unusual as historically many Australians were refugees or are descended from refugees.
For Aboriginal Australians, as for refugees, the assertion of human dignity in the face of overwhelming destructive power has become all--important. This response to almost intolerable suffering and despair is evident in the Uluru Statement from the Heart as it is in Behrouz Boochani’s ‘A letter from Manus Island’ published in The Saturday Paper in 2017. Both groups have been characterised by non-violent resistance and co-operation to assert humanity against inhuman treatment. Both groups have a role in the future Australian state – a new Republic of Australia.
Australia is the only country within the Commonwealth that has never signed a treaty with its Indigenous peoples. Treaties were historically signed between Britain and the Indigenous peoples of what is now the United States (as well as by the US after the War of Independence), in Aotearoa-New Zealand, Canada and Jamaica. Treaties with indigenous peoples are historical. They were made by colonising forces to secure their rights – essentially the best land for ‘beads and blankets’. Many Indigenous peoples were forced to do treaty in order to retain any of their original economic base, or to continue a life uninterrupted by the incursions of the new dominant power in their lands. The cessation of violent hostilities was a pressing incentive. While some who have found themselves on lands that have proven to be mineral rich may have experienced a change in fortunes, the overall situation with treaties has been complex and harrowing, littered with stolen lands and broken promises. The Anishinaabe and Lakota/Dakota Elder Leonard Peltier has said he only asks for the treaties to be honoured, reflecting the view of many Native Americans who have experienced disregard for historical treaties.
The continuing violence from wars of resistance often made treaties necessary. This is the case with the Maroon people of Jamaica, who are descended from the Indigenous Taino and the Africans who took their freedom from the plantations and fled to the mountains to wage a long, guerrilla-style war on the British plantation owners and the soldiers who were sent to protect them. They were successful; the British were forced to do treaty with them to stop the hostilities in 1739 and the Maroon today still live and work on their remote treaty lands. George Arthur, Lieutenant Governor of Tasmania, reflected on the ‘fatal error’ of no treaty with the Indigenous people of Tasmania in the midst of the Black War in 1832.
The problem with treaty-making is that it is an agreement to relinquish sovereignty to the dominant power. It is for this reason that Indigenous peoples who have treaties are unhappy with their outcomes and view treaties as tools of subjugation and intended cultural transformation and assimilation. The exhibition Nation to Nation: Treaties between the United States and American Indian Nations, currently at the National Museum of the American Indian in Washington DC, is not a celebration of the treaties that have had a fraught history of ‘duplicity and bad faith’ but a celebration of the diplomats who dealt with the colonising powers. There is no expectation of the treaties as a way to achieve sovereignty; they are a site of contestation and continuing struggle of the Native people of the US in a complex and confounding legal environment.
What Indigenous Australians might achieve from such a compact in the contemporary world context has to be weighed up carefully. Because we don’t have treaties is not a good reason to want to have them. We have to be sure of what can be achieved through this process.
KEATING’S REDFERN PARK Speech, and Kevin Rudd’s 2008 Apology to Australia’s Indigenous peoples, occurred within an international context of settler-colonial governments’ acknowledgements of the history of past injustices. There has been a number of apologies delivered across the world in recent years: in 2008, Canada’s Prime Minister Stephen Harper offered a full apology on behalf of Canadians for the Indian Residential School system, following a CAN$1.9 billion dollar settlement two years earlier; in 1993, a joint resolution of Congress had the President of the US apologise to the Native Hawaiian people for the overthrow of their kingdom in 1893 and the deprivation of their rights to self-determination; in 2000, the Bureau of Indian Affairs in the US formally apologised to the Native Americans for the historical conduct of that agency; and nine years later, President Barack Obama apologised on behalf of the people of the US for the many instances of violence, maltreatment and neglect inflicted on Native Peoples, although this was not a public apology. In 2017, Canadian Prime Minister Justin Trudeau made an expansive speech of apology to Canada’s native people in a speech to the United Nations. California and Colorado have apologised for massacres, and churches of various faiths in the US have also apologised for their role in the taking of lands. In Taiwan in 2016, President Tsai Ing-wen apologised to the Indigenous people for centuries of suffering and unfair treatment.
The truth is that settler-colonials remember history that is in the past but Indigenous people live this history in the present. The past is not behind us as Aboriginal people, it is with us. There is an argument for the embodiment of history among Aboriginal people that is explained by historical and intergenerational trauma, but this is only one dimension of the reasons for that trauma. The acknowledgement and the apology is not enough to change the lives of people who live their lives within the state of exception created by history.
Clearly it is time for the next step. Australia, among all settler-colonial nations, is in a unique position whereby the call for a new Republic of Australia can segue appropriately with the need for Aboriginal sovereignty, an end to injustice and abrogation of the humanity of Aboriginal people. The call for a Makarrata in the Uluru Statement from the Heart is an important part of the process. It would, in its words, ‘supervise a process of agreement-making between governments and First Nations and truth-telling about our history’.
There are many reasons why there needs to be a full enquiry in order to create clear ways forward in the relationship of Aboriginal people to not only the federal government but to the governments of the states and territories. The late activist Robert Riley famously remarked in 1989, when negotiating for the development of the new Aboriginal and Torres Strait Islander Commission out of the Office of the Minister for Aboriginal Affairs, that dealing with the states and territories was like dealing with different countries. The relationships that they have with Aboriginal people are grounded in history, the history of the formation of different colonisations over time, and their coming together at Federation in 1901. The ways in which they treat Aboriginal people vary widely. There is no better way to get to the truth of the relationship Aboriginal people have to these bodies, including the impacts of policies and programs and of fiscal management, than through hearing the personal testimony of the people themselves.
The Canadian Royal Commission on Aboriginal Peoples (1991–96) goes some way towards offering a prototype for what could happen in Australia. The Makarrata Commission would need to have the powers of a royal commission to bring together the people required to give evidence and to access government and archival documents for a full enquiry to be possible. The Canadian royal commission was developed to investigate the relationship between Indigenous peoples and the Canadian state, and – importantly – the culture of the settler-colonial state as a whole. This involved examination of the historical relationship of Aboriginal peoples to the state. While it was established to examine the possibility of self-governance, the Makarrata could have an open mandate to explore the possibility of Aboriginal participation in the development of a new Republic of Australia.
The Canadian royal commission consisted of five high-profile Aboriginal members and jurists. Importantly, there was provision for every Aboriginal person who wished to do so to make a submission to the inquiry, and commissioners travelled to many communities to make this possible. This is why it took many years to complete. The result is a five-volume, four-thousand-page report with four hundred and forty recommendations, setting out a twenty-year agenda for change in the relationship with the Canadian state.
One of the main recommendations was for a Truth and Reconciliation Commission into the Indian Residential Schools system. It took six years, and resulted in an apology and reparations, as well as ninety-four ‘calls to action’ urging all levels of government to work together to repair the harm done by the removal of Aboriginal children from their families and to roll back this policy. The recommendations are preceded by the words ‘We call on the Canadian government to…’ that underlines the relationship of the Aboriginal people of Canada to the Canadian state, that of the supplicant, not one of shared sovereignty. And this too in a settler colonial state that is marked by many treaties with Indigenous peoples.
Implementation of the many recommendations of the royal commission has, however, been stalled by a recalcitrant government and the gains made by Aboriginal people have not been as expected. The Trudeau government has vowed to implement each of the recommendations and has already mounted an inquiry into missing and murdered Aboriginal women.
We now have an historic opportunity in Australia to build on the experience of other Indigenous peoples within settler-colonial contexts in their attempts to decolonise. We need to imagine the future that we want and work towards it – the best option is entirely possible. Australia is now poised for deep change with the Uluru Statement from the Heart as a blueprint for ways forward.
Australia could achieve absolute decolonisation and shared sovereignty and live up to the reputation we like to have, as a nation deeply concerned with human rights and social justice. The solution to the problem of the deep disadvantage of Aboriginal people lies within our grasp. The time is ripe for a shift in activism to the achievement of a new Republic of Australia based on the sovereignty of Aboriginal people, the values and ethics embedded in their philosophy and the inherent value of their ways of living on this continent.
Agamben, G 1998, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press, California.
DeCosta, R 2007, A Higher Authority: Indigenous Transnationalism and Australia, UNSW Press, Sydney.
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Grieves, V 2017, ‘The Seven Pillars of Aboriginal Exception to the Australian state: Camps, Biopolitics and the Northern Territory Emergency Response’, in E Baehr & B Schmidt-Haberkamp (eds), And there'll be NO dancing: Perspectives on Policies Impacting Indigenous Australians since 2007, Cambridge Scholars Publishing, Cambridge.
Grieves, V 2017, The Uluru Statement and Manus Island: How the settler colonial state of exception compounds race and the necessity for a Republic of Australia, weblog, 28 December, viewed 18 April 2018, <https://acrawsa.org.au/2017/12/28/the-uluru-statement-and-manus-island-how-the-settler-colonial-state-of-exception-compounds-race-and-the-necessity-of-a-republic-of-australia/>.
McMullen, J 2015, ‘Rolling Thunder: Voices against Oppression’, in R Scott & A Heiss (eds), The Intervention: An Anthology, Concerned Australians and Griffin Press, Adelaide, pp. 115-138.