Inside Story

A steady path to sovereignty?

The Voice debate has opened up the complexity of First Nations political thought

Tim Rowse 6 October 2023 3630 words

Old forms of organisation will need to do new things: Marcia Langton at the National Press Club last month. Lukas Coch/AAP Image

Not long after Anthony Albanese announced the draft constitutional amendment at the 2022 Garma Festival, senator Lidia Thorpe declared that some see constitutional inclusion as “a sign of ceding sovereignty.” Thorpe was then with the Australian Greens, whose support for the referendum was important, so the government was quick to issue an assurance that Indigenous sovereignty would not be affected by recognising First Nations in the Constitution.

Attorney-general Mark Dreyfus’s representative in the Senate, Murray Watt, made that pledge to Senator Thorpe on 7 November last year. Lawyer Megan Davis, an adviser to the government on the vote, was equally emphatic: “A referendum to establish a Voice to Parliament will not impede an unceded, unextinguished sovereignty asserted by First Nations people.” As 2023 began, Dreyfus repeated his view that putting the Voice in the Constitution would have no impact on sovereignty. Labor senator Malarndirri McCarthy gave a similar assurance on the ABC’s Q&A in late January.

But the government seemed reluctant to define what Indigenous sovereign rights entailed. During the July debate on the constitutional alteration bill, government speakers avoided mentioning that the Uluru Statement envisaged the Voice as a step towards a treaty. (The Greens were keen to make that point.) While the government remains nominally committed to implementing the Uluru Statement’s demand for Voice, Treaty and Truth, the fact that a Voice would enable a treaty has more often been highlighted by the No than the Yes campaign.

First Nations activists have good reason to explore the possible meanings of Indigenous sovereignty, but not all of them agree. Some Indigenous Australians, for example, reject “sovereignty” and “treaty” as counterproductive “separatism.” Some who want a treaty reject the Voice as an impediment (Warren Mundine) or as a diversion (Michael Mansell), while others who will vote Yes see the Voice as the body that could legitimately negotiate a treaty with the Australian government. Such diversity has been one of the revelations of the referendum debate.

Three clusters of First Nations thinking have become evident. Some, as mentioned, reject “separatism,” a term broad enough to include the Voice and any treaty. Others, supporters of “Blak sovereignty,” warn that constitutional recognition would pre-empt sovereignty recognised in a treaty. A third group takes a gradualist position, envisaging sovereignty as a steadily accumulating regional practice of land and native title rights.

Against “Indigenous separatism”

The anti-separatist position is exemplified by two First Nations participants in the referendum debate: academic psychologist Anthony Dillon and senator Jacinta Nampijinpa Price. Writing in Sydney’s Daily Telegraph on 24 April 2019 under the heading “Close the Gap on Myths,” Dillon attacked a series of “myths”: that only Aboriginal people are expert on Aboriginal affairs, that only Aboriginal adults can raise an Aboriginal child, and that government is totally to blame for the problems facing Aboriginal people.

It is also a myth, Dillon wrote, that “we cannot move forward until this country acknowledges the atrocities of the past” and that Aboriginal people are victims of colonisation. And it is a myth that “Aboriginal people are an homogeneous group with all members equally disadvantaged,” given that many are thriving. “When we speak of closing the gap,” he wrote, “let’s focus on those who are most disadvantaged.”

Dillon believes these myths distract us from “the important issues facing Aboriginal people, like the need for employment, job readiness, good schools, ready access to modern services, and good housing.”

More recently, in 2022, in an essay titled “The Voice: Self-Determination or Separatism?” Dillon argued that “self-determination” policies mistakenly assume that Indigenous Australians are essentially different from other Australians and essentially similar to each other. Many individuals’ access to education and employment had, he said, been weakened as a result.

For Dillon, the leaders of the Yes campaign are those who successfully grasped education and employment opportunities despite self-determination policies. The Voice would, he argues, empower these successful Indigenous people to entrench a policy paradigm that is failing other Indigenous people. If anyone needs a voice, he says, it is the Indigenous Australians whose lives are much worse than the lives of Voice advocates. He has since confirmed that he will vote No.

As a National Party senator, Jacinta Price can seem like a typical rural conservative populist, repeatedly positioning herself as a critic of urban elites. She gives this stance a particular inflection: as the champion of abused women and children in First Nations communities who can’t gain the attention of the powerful (including leaders of Indigenous organisations). We should “amplify” the regions, she says, so we can hear the unheard.

Yet Price and the Nationals haven’t endorsed the Liberals’ proposal for a legislated regional Voice, so it isn’t clear how they would amplify the cries of the unheard — other than by persuading them to vote National. The constitutionally enshrined Voice, says Price, is likely to be a “bureaucracy” controlled by those whom she has called “the Qantas-sponsored leaders of the activist industry.” She blames Indigenous policy failure on these activist elites.

Price is ambivalent about whether we should characterise “the regions” in cultural terms. Social policy should assist people according to their needs rather than their distinct culture and historical experiences, she says. But she also sees the problems of Indigenous remote communities as cultural. When she recently denied that Aboriginal people are suffering intergenerational trauma as a result of colonisation, she suggested that their lives are instead blighted by “something much closer to home” — violent ways continuing from precolonial times.

Campaigning for a No vote, Price has highlighted her own family’s experiences. As a second-generation agent of what anthropologist Paul Burke calls the “Warlpiri diaspora,” she grew up in a household in Alice Springs rather than in the Warlpiri homelands. In this location and in her choice of a non-Indigenous husband she has followed her mother. Burke describes the “Warlpiri matriarchs” of this Australia-wide diaspora as “refashioning” Warlpiri tradition by adding non-kin to their stock of social capital. Price has presented her family as paradigmatic of a unified Australia threatened by Indigenous separatism.

Blak sovereignty as a rupture with the past

Having left the Greens earlier in the year and announcing herself as a leader of the Blak sovereignty movement, Lidia Thorpe moved the following amendment to the referendum bill during July’s parliamentary debate:

Nothing in this Act shall be taken to cede or disturb the Sovereignty of Aboriginal and Torres Strait Islander peoples. The Sovereignty of Aboriginal and Torres Strait Islander people means an unceded right held in collective possession by the members of Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters and natural resources of what is now known as Australia, and the right of Aboriginal and Torres Strait Islander peoples to exercise an unimpeded and collective self‑determinate governance over their political, economic and social affairs.

Two features of Thorpe’s thinking are worth highlighting. Although she has sometimes demanded that Australian law align with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, she hasn’t acknowledged the UNDRIP’s approach to sovereignty.

According to Article 46 of the UNDRIP, Indigenous peoples’ self-determination should do nothing to “dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States.” In other words, the UNDRIP would require that First Nations sovereignty coexist with and pragmatically accept Australian sovereignty, working within Australia’s federal and state constitutions and laws. Yet Thorpe’s formulation of Indigenous sovereignty includes these words: “Sovereignty has never been ceded, our sovereignty does not coexist with the sovereignty of the crown.”

In their repudiation of Australia’s legal framework, the Blak sovereigns distinguish themselves from advocates of Indigenous sovereignty who see potential in Australia’s existing Constitution. One of them, Michael Mansell — a No advocate — believes parliament should create a seventh state of Australia, its territory combining all Aboriginal lands (as long as the owners consented).

Other champions of Indigenous Australia’s many emerging polities also see potential in federalism. As University of Technology Sydney legal academic Alison Vivian and her co-authors wrote in 2017, “divided sovereignty, shared jurisdiction and a capacity to evolve in response to changing community values are fundamental attributes of federations.”

Thorpe’s rejection of Australia’s legal traditions includes a dismissal of apparently progressive laws such as native title, which she has labelled “an insult.” Of the parliament in which she now sits, she has said, “Not one piece of legislation that has ever come out of this place has been good for us. You know why? Because it’s deliberate. It’s deliberate. This place is here because they need to get rid of the Black problem.”

Such words imagine Blak sovereignty as necessitating a revolutionary rupture from an entirely bad past. As I understand the Blak sovereign position, the rupture would be brought about by truth-telling — a process of enlightenment — that would leave Australians with such a sense of collective shame that they would sign a treaty establishing First Nations sovereignty in whatever terms First Nations wanted.

This scenario conceives human history in a way that owes much to a religious imagination. By picturing a moment of settler colonial awakening, confession and collective self-perfection, Thorpe turns her back on the opportunities created by recent Australian law and policy. Hers is a historical imagination alienated from messy, incremental politics.

This anti-politics can’t concede that settler colonial history is punctuated by moments of crisis, negotiation, compromise and concessions in law and institutional design. In the Keating and Howard governments’ responses to two High Court judgements that recognised “native title” (Mabo in 1992, Wik in 1996) we have recent history that discourages this abject pessimism.

The Blak sovereigns seem unwilling to conceive Indigenous agency as experimental, and they too easily dismiss open-ended settler colonial ideologies and practices such as “recognition.” For example, University of South Australia legal academic Irene Watson writes that “there are no remedies in the recognition game; it is like the game of snakes and ladders, which goes up and down, but leads to only one ending, our assimilation into the white Australian nation. Genocide: there is currently no other alternative on offer.”

In recent Australian historical scholarship, the idea of a settler colonial society taking genuinely progressive steps has been under suspicion among historians and political scientists who take the “settler colonial studies” approach. This view aligns with Indigenous doubts that Australia could ever overcome its original sin. To quote Watson writing about the Voice in 2017:

The current discussion in Australia about possible constitutional recognition of First Nations is out there for public consumption, in an electorate noted for its conservatism. What it means beyond the terra nullius narrative is yet unknown, but there is little to suggest that it means much more than the continuation of that same narrative: the terra nullius body dressed in the costume of “recognition.”

Sovereignty as a steadily accumulating practice

In contrast with a rupture with the past, Indigenous sovereignty could also evolve from the imperfect structures of reformed settler colonial government, including the Aboriginal Councils and Associations Act (1976) the Corporations (Aboriginal and Torres Strait Islander) Act (2006), the various state and territory land rights acts, and the Native Title Act (1993).

Consider the following contrast. The “Detailed Outline of the Blak Sovereigns’ Position on the Referendum” declares that “Land rights are central to our Sovereignty. Native Title is not land rights. Our struggle for real land rights is an assertion of our Sovereignty.” Others, though, see native title legislation as the context for nurturing First Nations’ capacities for sovereignty.

That way of thinking gained academic impetus more than twenty years ago when Marcia Langton and her colleagues at the University of Melbourne joined with the Aboriginal and Torres Strait Islander Commission in an Australian Research Council–funded project, “Agreements, Treaties and Negotiated Settlements in Settler States: Their Role and Relevance for Indigenous and Other Australians.”

In a 2002 paper, “The Nations of Australia” Langton celebrated agreements signed under the Native Title Act that acknowledged the “ancient identities” of nations such as the Wik, Thaayorre and the Alngith. Referring to Indigenous signatories as “Aboriginal nations,” she wrote: “Corporations acknowledge that pre-existing Aboriginal polities exist as a profound reality in our political and economic landscape. The Constitution does not.” She hoped that constitutional amendment would eventually acknowledge “the pre-existing Aboriginal polities, or Aboriginal nations.”

Twenty years later, proposals for amending the Australian Constitution have taken a different form — not the constitutional acknowledgment of First Nations as sovereigns but the inscription of an Indigenous Voice to advise federal parliament and the executive. But these two calls for constitutional recognition share a commitment to Indigenous regionalism — a commitment also sustained by the Aboriginal and Torres Strait Islander Commission in the years 1990 to 2004.

Langton’s Negotiated Settlements project argued that the practice of native title — especially after the Howard government’s 1998 amendments to the Native Title Act — was a stimulus to the reformation of Aboriginal polities:

In the minimal form of Aboriginal land-holding corporation, we find that governance and dominion, such as those rights of possession asserted among Aboriginal groups in disputes over territory, are achieved both within and between such groups. As a result, we find that there are transactions that may be construed as governance in a larger entity than the clan itself.

Langton was arguing that asserting customary law in matters of land title is one stimulus for the capacity and will to act regionally. The Negotiated Settlements project concluded that “the making of agreements [has] become the principal form of engagement between Indigenous nations and the modern nation-state.”

The project never lost sight of the fact that in these dealings Indigenous Australians have negotiated not only with governments but also with non-Indigenous corporations. Private enterprises have had a material interest in recognising Indigenous polities by contracting with them.

Indigenous polities have not always had the human and material resources they need to deal with corporations and government agencies. In a paper published in 2015, Langton described the Prescribed Bodies Corporate, the organisations that hold native title, as overburdened and under-resourced. She warned against assuming that PBCs’ roots in Aboriginal customary law meant they possess sufficient social capital to do all that is expected of them.

Langton also pointed to a danger of excessive localisation and thus of “balkanisation.” To work well as polities, old forms of social organisation would have to do new things, such as forge regional alliances. She applauded native title holders who were seeking “economies of scale” through “regional governance bodies” and saw hope in the regionalist visions of Native Title Representative Bodies.

Pointing to the “conflicting values at work: traditional values to stay local on the one hand, and the pressures of the organisational world on the other,” Langton exhorted “Aboriginal people themselves to change their mindset about the highly localised social world that they prefer, and make a decision to escalate their administrative organisational capacity to a much higher level than they are accustomed to.”

With this background, Langton was an excellent choice to lead the design of an Indigenous Voice to Parliament with Professor Tom Calma. When it was released in December 2021, their model emphasised the local/regional foundations of the Voice. The boundaries of the thirty-five Voices would be determined by discussions between governments and Indigenous organisations.

In each region, a Voice would either be designed from scratch or (more likely) built on existing Indigenous organisations and so “leverage existing approaches… with adaptation and evolution as needed.” This continuity would give the thirty-five Local and Regional Voices legitimacy in Indigenous eyes.

Calma and Langton declined to present a blueprint for the Voices, instead suggesting nine guiding design principles. The legitimacy of the National Voice, they said, would derive from “the strength, legitimacy and authority of Local & Regional Voices.” They recommended that the National Voice not come into operation “until the vast majority of Local & Regional Voices are fully established.” The Langton and Calma vision of regionalism is descended from the regionalism that ATSIC (which had thirty-six regions) practised and that the Negotiated Settlement project theorised as the emergent practice of land rights and native title.

The contest between the Yes and No campaigns has been an opportunity for the Australian public to learn about First Nations’ political diversity. What has become increasingly clear is that the Yes/No contest has been a misleading guide to that diversity.

For example, the Yes/No divide obscures the common ground between Jacinta Price and Noel Pearson. Both Pearson (in his 2022 Boyer Lectures) and Price have argued that social policy should pay attention to socioeconomic need and not assume that Indigenous problems are distinct in causation and solution. Both of them were also very critical of the Albanese government’s abolition of the cashless debit card in 2022.

Price wins the applause of some conservative Australians by urging a critical appraisal of Indigenous traditions, but she is not the only First Nations person to urge Indigenous Australians to allow space for critically assessing the claims of “custom.” Revision of custom is part of Langton’s project too.

The building of First Nations is a concern of people on both sides of the referendum debate. Warren Mundine is a No campaigner, but he also advocates that First Nations be recognised by treaties with Australian governments. As chief executive officer of NTSCORP Ltd, the native title service provider for Traditional Owners in New South Wales and the Australian Capital Territory, Mundine’s approach to sovereignty emerges from the practice of native title. He believes that the path to First Nations treaties will be more direct without a National Voice in the Constitution.

The strength of the Indigenous opposition to the Voice amendment has surprised and puzzled Australians who pay attention to Indigenous affairs. But the 2022 Reconciliation Barometer, conducted between 21 July and 28 August last year (before and after the prime minister’s announcement of the draft amendment) provided clues to minority Indigenous disquiet about Yes campaign themes. While 57 per cent of Indigenous respondents judged it “very important” to protect a “First Nations Body” by putting it in the Constitution and a further 30 per cent chose “fairly important,” a substantial minority of respondents weren’t committed to some of the key ideas on which the Yes campaign has drawn.

About a quarter of respondents didn’t consider themselves to be well informed about the history of Australia, about the histories of First Nations people and about Aboriginal and Torres Strait Islander cultures. The same proportion (but not necessarily the same respondents) disbelieve or feel “unsure” about the truth of some of the main themes issuing from the critical history of colonisation — the frontier wars and the stolen generations.

Asked how we should face up to the “wrongs of the past” (deeds not specified by the survey), about half the respondents chose “There should be forgiveness for the wrongs of the past and all Australians should now move on,” a higher proportion than those who chose “Must be rectified before all Australians can move on” (38 per cent).

On the causes of Indigenous Australians’ “disadvantage,” about a third of Indigenous respondents didn’t agree that “past race-based policies” were to blame, and they didn’t see disadvantage as “Australia’s colonial legacy.” Some flatly disagreed with this linking of cause and effect; others declined to express a view. When the survey listed nine kinds of “disadvantage,” the proportion denying that government policies had caused them ranged between 9 and 12 per cent.

In 2022, the Barometer didn’t ask respondents to agree or disagree with the statement “Aboriginal and Torres Strait Islander Australians are responsible for their own disadvantages today.” But in four previous Barometers (2014, 2016, 2018 and 2020) between a quarter and a third of Indigenous respondents agreed with that statement.

Some Indigenous support for voting No comes from those who prioritise a treaty as the guarantee of the sovereignty they believe constitutional recognition would deny. While the 2022 Reconciliation Barometer didn’t ask respondents to rank Treaty and Voice or to choose between them, it did show that Indigenous support for a treaty is on the same level (54 per cent very important, 32 per cent fairly important) as Indigenous support for a constitutionally entrenched “Indigenous Body.”

While the Reconciliation Barometer 2022 suggests that a very high proportion of Indigenous Australians support the Yes case, it also reveals Indigenous support for ideas about history, responsibility and treaty-making that resonate with the No campaign.

The Yes/No alignments of First Nations Australians may not be an accurate guide to their differing views about sovereignty, but the debate about how to vote has at least focused attention on larger questions that Indigenous representatives will probably need to debate if a Voice is established. I see four questions.

In what ways are First Nations people distinct from/the same as other Australians? This is a cross-cutting question, open to many contextual answers.

At what scale can Indigenous representation operate? Some would agree with Warren Mundine that there can be no effective representation of Indigenous interests above the level of a First Nation. Others argue that a national representative body is both possible and necessary.

What is the relationship between citizenship within a First Nation and Australian citizenship? This question arises when Indigenous Australians debate whether access to welfare should be contingent on the approval of local Indigenous authorities (as it has in the Cape York experiment).

The question arises also in debates about what role (if any) Indigenous community organisations should play in the authentication of the Indigenous identity of individuals.

As the Australian Indigenous project experiments with the political and legal devices that Australian history is making available, such questions will demand attention. In this sense, the recently revealed diversity of Indigenous opinion about the Voice is but a stage in the formation of First Nations’ political thought. •