4.11. Could the Voice undermine Indigenous sovereignty?
One criticism of the Voice, which comes primarily from a radical group of Aboriginal and Torres Strait Islander people, is that the body would undermine Indigenous sovereignty. This concern arises from the prospect of enshrining the Voice, or any form of recognition of First Nations people, into the Constitution and thereby legitimising the authority of that Constitution.
The concept of ‘Indigenous sovereignty’ used in this way is broadly understood to be based not on modern law but on a claim to ‘inherent rights’ which result from a connection to Country. It is widely agreed that Aboriginal and Torres Strait Islander people have occupied Australia for tens of thousands of years and have deep spiritual connections to the land. When the Australian Constitution was formed, First Nations people were specifically excluded from it and their sovereignty denied. While the Uluru Statement from the Heart notes that Indigenous sovereignty has ‘never been ceded’ and currently ‘coexists with the sovereignty of the Crown’, some members of Aboriginal and Torres Strait Islander communities are concerned that through inclusion in the Constitution formed by colonial settlers their sovereignty as they understand it could be considered to be ceded.
According to some, these concerns about ceding sovereignty largely result from a lack of trust in Australian governments, while others argue that Australia needs to establish a treaty before the establishment of a Voice in order to avert the risk. The question has, however, been widely discussed from a legal perspective, and the most strongly supported opinion is that these fears are not justified and that the Voice will not legally undermine Indigenous sovereignty. According to views put forward by the relevant experts, under international law there would need to be ‘explicit, formal agreement’ in order to cede sovereignty.
In addition to the above arguments, advocates for the Voice such as Megan Davis and Noel Pearson assert that in any case Indigenous sovereignty can exist alongside the sovereignty of the Crown. Pearson also emphasises that Indigenous sovereignty exists in practice where the rights to self-determination of Indigenous peoples are acknowledged and preserved by law.