My journey on the road towards recognising the sovereignty of Indigenous Australians started out the same as many others did: one Country governing for one people. It’s a seductively simple idea, that we are all Australian, and we all have an equal claim on the rights distributed to us under law. That there should be a separate body of law for some people and not for others seems on the face of it an unacceptable contradiction of this first premise of equality (that finest of Australian traditions). Of course, this is a country of contradictions and nothing could be as simple as that.
In reality Section 51(xxvi) of the Australian Constitution gives the Commonwealth Government the powers to do just that: to make laws with respect to “The people of any race, for whom it is deemed necessary to make such laws”. This section saw time in the High Court of Australia, where it was decided that the Constitution absolved the Government from considering legal equality when it passed legislation empowering the Chief Protector of Aborigines to remove children as part of what had become known as the ‘Stolen Generation’. These provisions in the Constitution made the Northern Territory National Emergency Response Act 2007 (Cth) possible.
Before progressing further it becomes important to make two notes. One, that despite a quarter century on uninterrupted economic growth, the rising tide has failed to lift the standard of living on Indigenous people. Two, that the ‘Intervention’ had at best a mixed or inappreciable impact on some measures, and may have contributed to declines in others such as tenure and housing. It is clear that neither blind macroeconomic policy or the ‘Command and Control’ top-down approach taken by various State and Commonwealth governments can provide a solution to the problem. Another way must be found, and I am not of the opinion that just because an issue it ‘complicated’ does that excuse us from complacency.
The idea that there should be different laws for different people is, as shown above, not as ‘unAustralian’ as many of us might think. Indeed most Aborigines have been living as ‘second class’ citizens for most of our joined history under both our common laws and the umbrella of laws made specifically for them. Once one comes to terms with this reality, it is not so hard to think that rather than being the enemy, a body of law enshrining the rights of Indigenous Australians replacing the body of laws that limit or control their actions might be part of the answer to approaching equality.
For me, the clincher that pushed me firmly towards this was the discussion panel Let’s Talk Sovereignty where it was brought to my attention that many Aboriginal people do not consider themselves to be Australian. It is a premise as simple as it is important, so simple that I had somehow managed to miss it for 23 years. And indeed why should people that have been systematically oppressed feel themselves is any way a part of the nation most of us naturally regard ourselves citizens of; especially when their people (who were only allowed to participate in our democracy after the 1962 referendum) have a collective history and culture spanning most (if not all) of ‘modern’ human existence.
In reality we are a single country spanning two nations of people, broadly speaking, those of us who consider themselves Australian and those of us who consider themselves Indigenous Peoples – not to mention the not uncommon group in any country on Earth who consider themselves dual- or multi-nationals.
What then? While I now stand firmly behind the notion of Indigenous Sovereignty, the concept of a separate Aboriginal Government with the power to make laws specifically for and on behalf of Aboriginal people seems to me inelegant and impossible without the annexation of land to a separate sovereign government (or governments if we keep in mind that there are several hundred distinct aboriginal nations). Rather, I believe a Treaty, between the Commonwealth on behalf of all Australians and the Aboriginal Peoples (or as many Nations of which it is possible to reach common agreement with) offers the best shot at legislating a body of human rights into Australian Law that can be protected by the full rigour of the Courts. I also believe that a body of common law between the two peoples is not a bad thing, and would promote the equal treatment of peoples in communities beyond the power of the law to change culture.
However such a Treaty is not enough. Without proper action resulting in real change in the living standards, it would be little more than another symbolic gesture. Furthermore, I believe that aside from the ‘bare minimum’ assistance and welfare given to all citizens of the country, the peoples of the Australian Nation owe a moral debt of help to those of our Aboriginal peers who have continued to languish while we reap the benefits of the mineral and agricultural booms.
If we stop short at a separate body of Government, presumably able to raise revenue through taxes on activity on Aboriginal land and with those funds pursue the economic development of its people, then the Commonwealth of Australia must be the ones to provide the funds (not inconsistent with the point made above). This presents a further problem, how to distribute such money? As I mentioned before, neither macroeconomic measures or top-down policy has worked before and I have little reason to suggest that we try to test the definition of insanity.
Interestingly enough a similar problem has arisen in the methods we employ in environmental management. The history of environmental management in this country has in many respects many parallels with those of the experience of Indigenous Peoples. Top-down approaches have the drawback of being prescriptive in applying a ‘one size fits all’ approach to each and every issue without regard to individual contexts. Neither has economic growth prevented the wholesale destruction of entire ecosystems, despite environmental awareness having a moderate connection to affluence. Excessively local micro-management has proven difficult as well, with small budgets and populations unable to monitor and compete with industrial heavyweights who can take their business one LGA over. And finally, environmental boundaries such as catchments or bioregions (or Aboriginal Nations) do not follow the Local or State government boundaries, causing a heterogeneous patchwork of strategies which may be duplicating or incompatible with each other.
Thankfully for the environment this was recognised and the Country was divided up into 54 distinct Natural Resource Management (NRM) Regions which would be able to operate within the specific environmental context of those areas. This works by having each of the managing organisations prepare a set of goals a corresponding budget, which is then approved and granted by the Commonwealth Government. In this way a middle ground between funding certainty, uniformity of standards, and individual needs and contexts is struck.
That a similar approach to Aboriginal empowerment may be an important step is not just a coincidence. The close tie between Aboriginal culture and activity (dare I say, economy) and the environment has been a defining feature of the landscape for millennia and indeed many ecosystems now depend on the continuation of these activities for their survival, eg fire. Indigenous Land Practices are even commonly budgeted for in NRM organisations, and while this is welcome what we need is not just environmental sustainability, we need economic sustainability if we hope to see a flourishing Aboriginal Nation. Thankfully, both ecosystems and communities can reach a point of equilibrium where enough growth is endogenous so that extraordinary inputs can be comparatively small. Think planting trees until enough can produce seeds to grow the next generation, or educating people until enough can foster the growth of the next generation of children. In a sense this is true sovereignty, as a people not dependent on aid can fully take their economic destiny into their own hands. Fears that some may hold of a sovereign Aboriginal People being little more than an official welfare state are in my opinion pessimistic and ignorant of the hopes and dreams that the Aboriginal Peoples of our joint Country have for themselves.