Aboriginal Sovereignty Notes

Aboriginal Sovereignty: A Practical Roadmap

Larissa Behrendt discusses Aboriginal sovereignty, drawing from her experiences and legal background.

Concept of Sovereignty

Growing up in the Aboriginal community, sovereignty was an inherent concept.
It stems from a distinct history, culture, community, and identity.
The first peoples never conceded their land, thus their sovereignty remained.

International Law Perspective

Initial interest in sovereignty under international law.
Analysis of the British claim to sovereignty over Australia.
The most interesting question is to deconstruct the political aspirations of Aboriginal people when using the term "sovereignty."
The starting point should be defined by Aboriginal people themselves, focusing on their wants and aspirations.

Practical Meaning of Aboriginal Sovereignty

It encompasses a spectrum of claims related to the relationship between Aboriginal people and the rest of Australia.
It includes rights to:
- Not be discriminated against.
- Enjoy language, culture, and heritage.
- Land, seas, waters, and natural resources.
- Education and work.
- Economic self-sufficiency.
- Involvement in decision-making processes.
- Governance and management of their own affairs and communities.

These claims can be categorized into:

Equality Rights

The right not to be discriminated against.
Equal access to services, infrastructure, and opportunity.
Aboriginal people have been historically denied these rights, despite laws like the Racial Discrimination Act (1975).

Indigenous Rights

Rights to culture, heritage, language, and native title.
The dominant legal culture struggles to recognize Indigenous people wanting to protect these rights.
Mechanisms such as language policies, language centers, and education policy are required to accommodate these rights.

Empowerment Rights

Rights to make decisions and have control over decisions that affect their lives.
The dominant legal system is least tolerant toward the recognition and protection of these rights.
The principle of sovereignty finds the greatest resonance in this category.

Framework for Achieving Aboriginal Sovereignty

Requires ensuring the enjoyment of different types of rights.
Strengthening rights protections within the dominant legal system.
The framers of the Constitution left decision making about rights protections to Parliament.
A nondiscrimination clause was rejected, ensuring states could enact laws that discriminated against people on the basis of their race, particularly Aboriginal people.
The first legislation passed by the new Australian Parliament entrenched the White Australia policy.
The High Court case of Kruger v The Commonwealth highlighted the lack of rights protection in the system of governance.
Plaintiffs claimed human rights violations, including implied rights to due process, equality before the law, freedom of movement, and the express right to freedom of religion, but were unsuccessful.
Silences in the Constitution about rights were intentional and have led to rights violations.
The 1967 referendum, which focused on citizenship rights, mistakenly led to the perception that Aboriginal people gained citizenship or the right to vote.
The alteration to the Constitution allowed Indigenous people to be included in the census and gave the federal Parliament the power to make laws regarding Indigenous people.
In Kartinyeri v Commonwealth, it was argued that the government could not use the law to take away rights and benefits from Aboriginal people, but the High Court rejected this argument.
The 1967 referendum did not produce a new era of equality for Aboriginal people.
The most enduring consequence of the constitutional change was the new relationship it created between federal and state and territorial governments.
The legal framework leaves much faith in the benevolence of government and allows governments to make all the decisions about Aboriginal rights.
The Racial Discrimination Act of 1975 has only been suspended three times, each time about the rights of Aboriginal people.
Governments cannot be trusted to protect the needs of Indigenous people.
The government agenda in the Northern Territory is a stark reminder of how vulnerable Aboriginal people remain within the legal framework.
The failure to provide a check on government power has created a climate in which dissent can be easily silenced.
Rights such as access to education, adequate health care, employment, due process, freedom of movement, and equality are essential for individuals to live with dignity.
Every other Commonwealth country has incorporated a bill of rights, but Australia has no such line to monitor the exercise of power by the government.
This complete discretion of Parliament over human rights protection has left Aboriginal people vulnerable to human rights violations.

Indigenous Rights

Australian law has little tolerance for their equal recognition.
The legal system protects those rights for members of the dominant culture but is less adapted to protecting those rights in other cultures, including Aboriginal cultures.
After ignoring Aboriginal rights to land during colonization and adopting a legal fiction of terra nullius, formal common law did not recognize Aboriginal interests to land until the decision in the Mabo case in 1992.
The native title holder's interests are treated as secondary to the property interests of all other Australians.
Whenever there is a conflict between property interests over land where native title exists, it is always the native title that is found to have been extinguished.
When Aboriginal people lose a property right, it does not have a human aspect to it.
When Aboriginal people gain recognition of a right, they are seen as getting something for nothing rather than getting protection for something they already had.
When Aboriginal people have a right recognized, it is seen as threatening the interests of non-Aboriginal property owners.
Native title is often portrayed as being "unAustralian."
Competing interests in property can be balanced, but a right that is conceptualized as existing before the imposition of the dominant legal system is given the least protection of any comparable property right.

Empowerment Rights

The dominant legal system recognizes no jurisdiction.
There is no ability to generate community laws.
Customary or cultural laws are given limited recognition and protection.
The Fernando principles in sentencing allow for some recognition without challenging the law's ultimate control.
Circle sentencing trials in New South Wales show how space can be created within the dominant legal system for Aboriginal people to exercise decision-making power and authority.
These programs are piecemeal, underresourced, and usually run as pilot projects.
They do not envisage the recognition of a jurisdiction vested in the Aboriginal people.

Recognition of Indigenous Control in Other Countries

The United States Supreme Court established a legal doctrine through three key cases that would define the rights and jurisdiction of Native people in the United States:
- Johnson v McIntosh: The discovering European power had the sole right of acquiring the soil from the natives.
- Cherokee Nation v Georgia: The Cherokee nation was considered a "state" but not a "foreign" state; instead, it was a domestic dependent nation.
- Worcester v Georgia: The Cherokee nation is a distinct community occupying its own territory, in which the laws of Georgia have no force.
These cases gave Native people the status of "domestic dependent nations" and prevented states from having any power over their affairs.
The jurisdictional space for decision making about matters related to Native people under this "domestic dependent nation" status is unexplored within Australian jurisprudence.

Absence of a Strong Human Rights Framework in Australian Law

There is little to temper or fetter the exercise of power by the federal government in relation to policy on Indigenous people.
Policy in Australia in relation to Aboriginal people is heavily influenced by ideology.
Better socio-economic outcomes are achieved when Indigenous people are involved in the setting of priorities within their community, the development of policy, the delivery of services, and the implementation of programs.
This involvement can be characterized as self-determination and, when control is given centrally to Aboriginal people without constraint, can be a form of sovereignty.
Despite evidence, decisions about where to spend dollars allocated to Aboriginal affairs are often shaped by the ideologies embraced by government.
Under the Howard government (1996-2007) these ideologies were:
- Assimilation and mainstreaming.
- Mutual obligation and shared responsibility.
- Unlocking control of Indigenous-controlled land so that it could be accessed by non-Indigenous interests.
- That the "real Aborigines" live in the north.

Northern Territory Intervention

The Intervention represented the Commonwealth's "emergency response" to a 2007 report into child sexual abuse in Aboriginal communities of the Northern Territory.
The government chose not to implement the recommendations of the report, rather acting to quarantine welfare payments, force the acquisition of townships through compulsory leases linked to service provision, increase policing and sending in the army, scrap the access permit system, and appoint managers to all prescribed communities.
Aboriginal communities had been pleading for resources for housing, health services, and police services to assist them with dealing with levels of violence.
Successful programs had been developed by community members, such as night patrols, dry-out areas, and safe houses.
The key aspects of the Northern Territory Intervention ignored the evidence of what community initiatives were working and instead embraced the ideologies of assimilation and mainstreaming.
The policy approach was led by ideology rather than by research or understanding about what actually works on the ground.
The rhetoric of doing what is in the best interests of Aboriginal people masks a list of other policy agendas that are unrelated to dealing with systemic problems of violence and abuse.
The approach is paternalistic and top-down rather than a collaborative approach.
The Rudd and Gillard governments have continued to support the intervention designed by the Howard government and have continued to quarantine welfare payments.

Linking Welfare Payments to School Attendance

The Halls Creek Engaging Families Trial was introduced on a voluntary basis.
The evaluation of the trial found that school attendance of the children did not improve over the course of the trial.
The study noted three factors that affected school attendance: lack of parental insistence, teacher quality, and bullying and teasing.
There is no evidence that shows that linking welfare to behavior reforms is effective.
What works in getting Aboriginal children into schools are: breakfast and lunch programs, programs that bring the Aboriginal community into the schools, Aboriginal teachers' aides and Aboriginal teachers, curriculum that engages Aboriginal children, and programs that promote self-esteem and confidence through engaging with culture.
Rather than simply punishing parents for their children's nonattendance, the government should be providing schools and teachers that meet the needs of the Aboriginal community.
It cost $88$ million to make the initial administrative changes in Centrelink to facilitate the welfare quarantining, but not one dollar was spent in the intervention on any of the types of programs that have been proven to engage Aboriginal children in schools.
Only forty-seven cents is spent for every dollar spent on non-Aboriginal students.

Underinvestment in Infrastructure and Services

Money tagged as "Indigenous-specific funding" often does not make its way into Aboriginal communities in need.
Spending on basic Indigenous health services is estimated to be underfunded by $450$ million.
For every dollar spent on the education of a non-Aboriginal student, only forty-seven cents was spent on the Aboriginal student.
The provision of basic services should never have been intertwined with the stripping away of fundamental rights.

Failures to Protect Aboriginal Rights

There is the failure to protect "equality rights" through suspension of the Racial Discrimination Act (1975) and the suspension of the right to appeal to the Social Security Appeals Tribunal.
There is a failure to protect "Indigenous rights".
There is a failure to protect "autonomy rights".

Entitlements of Aboriginal People

As Australian citizens, Aboriginal people are entitled to adequate housing, adequate funding of teachers and the provision of enough classrooms, and an adequately funded and appropriate police service without having to give up hard-won rights.
They are also entitled to their inherent rights as Aboriginal people, which includes a residual jurisdiction and rights to land and natural resources.

Conclusion

When Aboriginal people speak of "sovereignty," it describes a set of political, economic, social, and cultural aspirations that are achievable and offer a practical approach to policy making.
The recognition of Aboriginal sovereignty is not a threat to Australian sovereignty.
Facilitating the exercise of Aboriginal sovereignty allows for the empowerment of Aboriginal people and produces better policy, more effective programs and service delivery models, and improved socio-economic outcomes.