THE ARCHITECTURE OF a society is shaped by structures that form the power to tell a nation’s story. And our capacity to create a narrative that respects First Nations sovereignty depends on the value we place on hearing the sacred voices of Aboriginal and Torres Strait Islander peoples in our quest for the truth of our giilangs[i] – our stories.
‘Our sovereignty has never been ceded!’ It is a frequently used phrase, and one that echoes across this continent from Aboriginal and Torres Strait Islander peoples. In the colony of Australia, these are powerful words: they assert that First Nations authority over our countries endures. Despite invasion and colonisation, our lore prevails.[ii]
Perhaps the legendary lyrics of Yothu Yindi say it best: ‘The planting of the Union Jack never changed our law at all… Treaty yeah! Treaty now!’
But treaty, how?
The demand for treaty – or, more accurately, the demand for many treaties – must be driven by the cultural authority of each sovereign First Nation. This process must be underpinned by cultural protocol and custom that recognises the many tribal clans within the First Nations. For the colony of Australia, this raises complex moral, legal and political questions, because our notion of lore is not the same as Western law.
Our history tells us that ‘treaty’ is an easy word to say, but a difficult thing to do. Unlike other parts of the world invaded by European powers, the colonies that formed the federation of Australia in 1901 did not recognise the First Nations on this continent; nor had binding treaty negotiations been made at first contact in 1770 or 1788.
And so the invasion continues; our sovereignty remains unrecognised.
With over 250 First Nations across the continent, many treaties will need to be signed – and not just with governments, but with each other. This will not be an easy task. Who speaks on behalf of the cultural authority of each First Nation; who negotiates the terms of a treaty; how we build blak power to ensure that treaties are honoured and negotiations are entered into in good faith. These are all relevant considerations.
While some First Nations may already have leverage to engage in treaty conversations, the reality is that many are simply fighting to survive in a colony that still flourishes in the midst of our premature death rates and the daily dispossession of our lands.
There are many lessons to be learnt from our international brothers and sisters. In the United States, treaties had become a tool to diminish the independence of tribal Indian governments by 1850. In 1871, the US Congress legislated unilaterally rather than making separate negotiations over Native American affairs.[iii] What began as a relationship founded on morality, an attempt to act in good faith, and negotiations to uphold treaty agreements eventually evolved into a battle for control over land use.
To be effective, treaties must have the power to deliver land back to First Nations in a way that transcends political cycles, reliance on courts and changes of government. Saying that our sovereignty has never been ceded is one thing; enforcing this position against the state as well as holding the system to account is a modern-day battlefield. We must ask ourselves: do we trust any Australian government to sign a treaty in good faith when it is under no obligation to hear us?
In late 2019, I was invited to deliver the prestigious Yarramundi Lecture at Western Sydney University alongside two formidable Aboriginal freedom fighters, Professor Tom Calma AO and Aunty Jenny Munro. Their presence was a powerful showcase of the spirit of our Ancestors; both have had a significant impact on Aboriginal rights.
I must admit, I felt out of my depth. I questioned whether my voice was worthy of being heard in such extraordinary company – and I was concerned about being a much younger participant. Yet it is fair to say that the legacy my generation leaves will affect the many generations that succeed us. Our next generations matter: 53 per cent of First Nations peoples are under the age of twenty-five compared with only 31 per cent of non-Indigenous Australians.
We do not have the luxury of time on our side.
But my recollection of the evening has nothing to do with the speeches. What stood out for me was a conversation I had with a Maori sister who politely pulled me aside after the event. ‘Sis,’ she goes, but quietly, ‘I just wanna say keep fighting. We have the Treaty of Waitangi and it brings us lots of problems because it means different things to the government and us Maori. Keep calling for a powerful First Nations Voice.’
Her ancient Maori voice touched my spirit. Tidda to Tuahine,[iv] sister to sister; we understood the common struggle for recognition of our sovereign birth rights. Unlike Australia, formed from states and territories, the colony of New Zealand does not have a single written constitution to distribute power. Instead, the Treaty of Waitangi is one of the foundational documents of Aotearoa, the Land of the Long White Cloud.
Treaties have become a lawyers’ litigation fiesta, inherently risky because they require a balancing of power between their negotiating parties as well as ongoing execution and interpretation. This is why they are consistently the subject of legal action within colonial courts around the world, including international courts of law.
In any case, the Australian Commonwealth and its states and territories are not compelled to uphold treaties or other executive agreements by virtue of their existence – or the nation’s participation as a signatory. Australia’s international commitment to the Kyoto Protocol and the Paris Agreement to tackle climate change operate as virtue signals to the world; there is no actual implementation of, or accountability for, serious climate action in this country’s own backyard.
In 2020, the Australian Government asked the United Nations Humans Rights Committee, a body of independent experts that monitors compliance with the International Covenant on Civil and Political Rights, to dismiss the Zenadth Kes (Torres Straits) claim that Australia is breaching its international climate justice obligations. This is despite clear evidence that the Torres Strait Islands are being swallowed by rising seas.
Treaty agreements alone would not provide an ironclad guarantee that our sovereignty would be honoured.
Let’s start seeding sovereignty, not ceding sovereignty.
‘SOVEREIGNTY’ IS A colonial word. It is broadly defined as the supreme power or authority over the body politic. In Australia, the assumption that the government has sovereignty over this continent’s First Nations politik sits precisely at the core of this country’s dilemma.
The unfinished business of Australia’s story is recognition of the ancient sovereignty of the First Nations. This sovereignty is the lore that links us to our land: it is intertwined in the landscapes and waterways that traverse all points beneath the southern sky. It is a spiritual notion:[v] prescribed in cultural protocol, it transcends Western laws. And it is not necessarily written, but passed down orally or expressed artistically from generation to generation. These systems of lore govern our relationships with one another, with mother Earth; they govern our kinship, our community, and our connection to this time and place.
The clearest expression of First Nations thinking on this – and one driven by a cross-section of the community – was contemporaneously documented in the constitutional dialogue debates that culminated in the Uluru Statement from the Heart. Traditional owners, grassroots community leaders and Aboriginal-controlled organisations discussed a way forward for First Nations peoples.[vi] They demonstrated the most sophisticated thinking of our time, visualising a just future and articulating a roadmap for reckoning with our past by asserting sovereignty, which was contemporaneously documented in Our Story:[vii]
Every First Nation has its own word for The Law. Tjukurrpa is the Anangu word for The Law. The Meriam people of Mer refer to Malo’s Law. With substantive constitutional change and structural reform, we believe this surviving and underlying First Nation sovereignty can more effectively and powerfully shine through as a fuller expression of Australia’s nationhood.
The Law was violated by the coming of the British to Australia. This truth needs to be told.[viii]
Elevating these ancient lores into the national consciousness is a matter of structural change. It requires creating a national narrative based on all our peoples’ stories – one that values the authority and continuation of First Nations sovereignty.
IF YOU TREK across the south-eastern seaboard of this vast continent – from the lush, rugged mountains of the Great Dividing Range, where Mount Yengo stands as tall as a skyscraper in the Hunter Valley, to the Byrock Granite outcrops of the western plains that sweep across to Narran Lake and Baiame’s Nhunnhu (also known as the Brewarrina Fish Traps) – Baiame’s lore reigns supreme. This lore connects ancient songlines that span from Baiame’s Cave on Wonnarua Country. These creation stories powerfully symbolise unceded sovereignty. Our sovereignty is not defined by white systems, and no white law can extinguish First Nations sovereignty.
In this way, our existence is the resistance.
But creating culturally safe spaces to elevate dialogue about sovereignty among us means white Australia must exercise its privilege and power to hold space for First Nations peoples. Holding space is about opening your heart and decolonising your mind. For non-Indigenous people, this often means it is more important to listen before speaking or sharing an opinion. This is a skill white Australia is yet to master.
Nowadays, whether mob are at the NSW Koori Knockout (the biggest gathering of blak Australia), or crossing paths with a brother, sister, aunty or uncle, the very first thing they say when they meet is, ‘Who’s your mob; where you from?’ The response will instantly identify a nation: ‘I’m Noongar.’ ‘I’m Yamatji.’ ‘I’m Torres Strait.’ ‘I’m Bundjalung.’ Not a single sovereign First Nations person would proudly proclaim they are an Indigenous ‘Australian’ – a nation symbolised by the Union Jack.
How well we continue to nurture the seeds of First Nations sovereignty remains relevant to how well we create and hold space for respectful conversations that are grounded in truth. This personal shift needs to galvanise collective action to transform the power structures of our society. This is the hard work.
The history of blak activism reveals that many First Nations have lawyered up to litigate against the state in the courtroom. The fighting legacy of the Wik peoples and the cases of Coe, Koowarta and Kartinyeri – to name a few – have all shifted the narrative of this country. Despite a lack of political will, the courtroom has functioned as a space in which activists can create change. The origins of this strategy can be traced to the establishment of the Aboriginal Legal Service in Redfern, the epicentre of radical blak activism.
The Meriam people’s claim of ownership over Mer Island and its waters was a colossal ten-year legal battle that culminated in the landmark Mabo (No. 2) decision. In this case, the High Court overturned the myth of terra nullius, the notion that the land was legally uninhabited before colonisation – that it was nobody’s land. But the court did not answer the question of Meriam sovereignty. Instead, it asserted Crown sovereignty and stated that the Meriam people were entitled to recognition of native title rights within the common law.
At Para , the High Court pronounced:
However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system. The proposition that the Crown became the beneficial owner of all colonial land on first settlement has been supported by more than a disregard of indigenous rights and interests. It is necessary to consider these other reasons for past disregard of indigenous rights and interests and then to return to a consideration of the question whether and in what way our contemporary common law recognizes such rights and interests in land.
In Mabo (No. 2), it’s not only what the High Court said that remains pivotal for us today; rather, it’s what the High Court failed to say. It assumed that the Australian nation state was a legitimate ‘settlement’ and bypassed the legal basis of the colonisers’ relationship with First Nations sovereignty.
The High Court’s reticence to recognise Indigenous sovereignty is understandable given that its role is to interpret the constitutional validity of laws and therefore to uphold the sovereignty of the Crown. But, we know that the key to dismantling that skeletal framework lies with the power of the Australian people, which this very system is designed to control. The separation of powers in Australia is defined by the judiciary, legislature and executive – and the critical point to be made about this framework is that it is not accountable for the inherent rights and interests of First Nations.
Australia is not a peaceful settlement; it is an invasion scene.
WHETHER THE ISSUE is Aboriginal deaths in custody, land back or asserting sovereignty, the one thing we must ensure is that we have power when we are alive, not dead.
As the #BlackLivesMatter movement gained momentum in Australia in mid-2020, a national spotlight shone on Aboriginal deaths in custody. As a nation, we have to ask ourselves why Indigenous peoples are forced to protest for the simple right to life, to protest to be heard when it comes to accountability for the loss of our lands and lives?
The global amplification of #BlackLivesMatter demonstrated precisely how the power of the people can shape public consciousness and draw attention to the reality of systemic racism in Australia. It also shows how quickly the spotlight can be dimmed and the issues confronting First Nations diffused.
The simple fact of the matter is that so-called Australia was built on racism; this is written in its law and flourishes within its institutions.[ix] It penetrates deep into the hearts and minds of the people and manifests in both conscious and unconscious ways, individually and systemically. The notion of equality before the law is a myth.
In mid-2020, widespread calls to abolish systemic racism seemed to fall on deaf ears in the houses of power. Prime Minister Scott Morrison even denied that slavery had existed in Australia. As anger and frustration mounted, we witnessed another ritual in the area of Indigenous affairs as the federal government clicked the refresh button to ‘Close the Gap’.
This ritual is a dangerous façade – performative politics that implies to Australian people that their hard-earned tax dollars are being invested in the ‘black problem’ and creating the illusion that the government is doing something when in fact it is doing nothing at all. The original intent of Close the Gap, set in 2008, was to achieve health and life expectancy parity among First Nations peoples and non-Indigenous Australians by 2018.
Today, gaps are widening in some areas – for example, Aboriginal women are the most rapidly incarcerated cohort in Australia, with incarceration rates increasing by an alarming 148 per cent since the Royal Commission into Aboriginal Deaths in Custody (1987–1991).[x] As the Uluru Statement from the Heart explains, ‘proportionally, [First Nations in Australia] are the most incarcerated people on the planet. We are not an innately criminal people.’
Government infatuation with performative political rituals – without commitment to the structural change necessary to eliminate systemic racism – is modern-day genocide. The projection that parity of Indigenous and non-Indigenous incarceration rates is to be achieved by 2093 is a particularly brutal blow. The average age of First Nations peoples is twenty-three, with a life expectancy of sixty-five for Aboriginal men and sixty-nine for Aboriginal women. We cannot wait another seventy-three years for that parity to be realised.
In Indigenous affairs, decades pass, political promises are made and broken, and few changes occur on the ground in our communities: this is the torment of our powerlessness. Still no treaty, still no truth and still no Voice.
Our capacity to create structural change is also hindered by the politics of fear that haunts Indigenous affairs. As a child of the 1990s, my public education was acutely shaped by the insidious legacy of the ‘black armband’ approach to history decried by former prime minister John Howard, and the scent of that disdain for blak Australia still lingers today.
Australians know the truth: this land was colonised without treaty. The whitewashing of this history means that 250 years later, they are yet to deal with this truth and be held accountable – which is why it has been convenient to ignore the voices of First Nations peoples, who comprise less than 3 per cent of the country’s total population.
THE FOUNDATIONAL GRIEVANCE of the great Australian invasion will remain intact for as long as Australia continues to ignore the reality that no Australian politician – including the Prime Minister or the Minister for Indigenous Australians – speaks on behalf of the cultural authority of First Nations. The call for a First Nations Voice to Parliament is an idea whose time has come.
As Roy Ah-see, the co-chair of the Uluru Statement from the Heart Working Party, has said, no political party represents First Nations interests: ‘We don’t want a Green voice, we don’t want a Red voice, we don’t want a Blue voice. We want a Blak voice. And it has to be enshrined in the Constitution.’[xi] This statement was made in response to the Greens’ Federal Senator Lidia Thorpe MP, a Gunnai-Kurnai/Gunditjmara woman, swearing allegiance to the Queen and announcing her preference for treaties. This is despite the Greens’ policy platform mandating that ‘the Australian Greens support the Uluru Statement from the Heart in full’.[xii]
That support means honouring the sequence: the enshrinement of a First Nations Voice to Parliament in the Constitution would allow for the subsequent establishment of a Makarrata Commission to enable a process of treaty and truth-telling. The order of these reforms is crucial to the exercise of self-determination that will ensure all First Nations have a seat at the treaty table, not just the loudest or the most influential.
Make no mistake: enshrining a First Nations Voice to Parliament is a radical attempt to decolonise power structures and disrupt systems that have historically oppressed us. That is the very reason why the political elite continue to dismiss the idea. The obligation of Federal Parliament (not just the government) to be accountable to our grassroots mob has the potential to become a powerful mechanism to dismantle the colony as we know it, speaking truth to power.
No politician or Royal Commission is going to save us, to right the wrongs. Without systemic change, structural powerlessness will continue to cripple our communities’ rights to exercise sovereignty and self-determination. We must remain vigilant and clear-sighted about Australia’s failure to hear the First Nations.
The call for a First Nations Voice to the Australian Parliament, simple yet profound, ought to recognise that we are allowed to disagree and debate issues – even if that means demonstrating a walk-out from the negotiating table. We are not a homogenous group: this is blak politik, not playschool. No one expects white Australia to agree on every issue, and this expectation – often placed on First Nations – is an excuse to halt critical and substantive change.
When it comes to blak activism, whatever the call to action demands – accountability for Aboriginal deaths in custody; defunding police; abolishing prisons; paying the rent; dismantling racism; decolonising institutions; or promoting healing for intergenerational trauma – we as First Nations are eternally bound by our relationships with our countries. And these stories connect us to one another as sovereign First Nations.
Imagining a country that respects the authority of First Nations sovereignty requires an honest narrative about Australia’s story. Our search for truth requires us to reimagine the architecture of how power functions – and visualising that this can change.
Too often, the politics of fear has hindered our capacity to grapple with the truth of our past, because the status quo has delivered a life of comfort for many Australians who assume this country originated from a peaceful settlement. The real challenge now is whether we can harness our collective energy to create sustainable change that delivers truth, justice and accountability.
This means continuing to hold space for difficult conversations when #BLM is not trending, to discuss the reality of racism in our society. It means recognising that Aboriginal land in Aboriginal hands is climate justice in action. That the moral force of lore is beyond the measure of Western law. That the way to a powerful treaty is to enshrine a First Nations Voice – and that this is only the beginning of revolutionising and redistributing power, not the end.
There are many chapters to our nation’s story: which one will we write?
Always was, always will be sovereign First Nations land, sky and sea – so let’s seed sovereignty.
Our giilang; our story.
This article is published in the run-up to the third anniversary of the federal government’s rejection of the Uluru Statement from the Heart in October 2017. This essay, like the Uluru Statement from the Heart, is written to the Australian people.
[i] Giilang is the Wiradjuri term for story.
[ii] ‘Lore’ is a common term used by Aboriginal people in New South Wales to define cultural protocols and customs to assert sovereignty. Other Indigenous people prefer to use the term ‘law’. As a proud Wiradjuri and Wailwan woman from Gilgandra in New South Wales, I use the term ‘lore’ in this essay with the acknowledgment that other First Nations may prefer to use the term ‘law’.
[iii] Harris, S (1979), It's Coming Yet: An Aboriginal Treaty Within Australia Between Australians, Aboriginal Treaty Committee, p. 17.
[iv] Tuahine means soul sister in Maori; consent was given by my long-time Maori sister to include the word in this essay.
[v] Uluru Statement from the Heart (2017).
[vi] The constitutional dialogues were a consensus-building process with an applied formula: thirteen dialogues; 60 per cent traditional owners, 20 per cent key individuals, 20 per cent Indigenous organisations. See section 2.1, Referendum Council (2017), Final Report of the Referendum Council, https://www.referendumcouncil.org.au/final-report.html#toc-anchor-2-first-nations-regional-dialogues-and-national-constitutional-convention
[vii] Final Report of the Referendum Council (2017), p. 17.
[x] Hurst, M (2019), The Shame of Indigenous Female Incarceration, http://www.naaja.org.au/wp-content/uploads/2019/08/The-Shame-of-Indigenous-Female-Incarceration.pdf
[xi] Prema, S and Lackey, B (2020), ‘Aboriginal leaders are ANGRY that the Greens have chosen an indigenous senator who walked out of constitutional recognition talks’, Daily Mail, 27 June, https://www.dailymail.co.uk/news/article-8465117/Aboriginal-Indigenous-leaders-ANGRY-Greens-Lidia-Thorpe-divisive-views-constitutional-recognition.html