5.11. Will the Voice undermine Indigenous sovereignty?
- Jack Latimore, ‘What’s Indigenous sovereignty and can a Voice extinguish it?’ Explainer, The Age, February 9, 2023.
- Bertus de Villiers, ‘A Fresh Approach to Aboriginal Self-Government and Co-Government – Grassroots Empowerment’, Brief 47,1 (2020).
- Thomas Mayor, ‘The Torment of our Powerlessness: The Uluru Statement and enshrining a voice for Indigenous Peoples’, Australian Options 87 (2018).
Will the Voice undermine Indigenous sovereignty?
Jack Latimore, ‘What’s Indigenous sovereignty and can a Voice extinguish it?’ The Age, February 9, 2023
A key concern for some Aboriginal and Torres Strait Islanders about the Voice to Parliament is whether enshrining the body in the Australian Constitution —– or recognising Indigenous peoples in any way in the nation’s founding document — extinguishes the sovereignty of First Nations people.
‘Recent polling by Ipsos of around 300 First Nations people revealed that 10 per cent of respondents did not support the Albanese government’s proposed Indigenous Voice to parliament. Within this cohort lies the view that constitutional amendment recognising Aboriginal and Torres Strait Islander people would bring about a “cessation” of sovereign Indigenous rights. The fear of recognition is rooted in a distrust of government. The expression “Sovereignty never ceded!” is embodied in the world’s longest-standing protest action, the Aboriginal Tent Embassy in Canberra, which was founded by members of the Aboriginal Black Panthers in 1972. But constitutional law scholars, alongside international law experts and Voice advocates have labelled this suspicion “outlandish” and — at the request of [Lidia] Thorpe — have repeatedly declared that an enshrined Indigenous Voice cannot cede or extinguish Indigenous sovereignty. They point out that in international law, only an explicit, formal agreement such as a treaty mechanism between sovereign entities can lead to a cessation of sovereignty. Uluru Dialogue co-chair Professor Megan Davis, a constitutional lawyer and Cobble Cobble woman from south-east Queensland, says Indigenous sovereignty co-exists with the Crown.
Since neither federation in 1901 nor the recognition of Aboriginal people as citizens in 1967 ceded Indigenous sovereignty, nor would a constitutionally enshrined Voice to Parliament … no one can cede sovereignty other than yourself or your people, your tribe, your nation.
And lawyer Noel Pearson, a Guugu Yimithirr man, who is also a prominent Voice advocate, has long argued that local Indigenous sovereignty can exist within European concepts of sovereignty as long as self-determination rights such as those contained in the UN Declaration of the Rights of Indigenous Peoples are officially recognised and protected in common law.
In a 2012 report on Recognising Aboriginal and Torres Strait Islanders in the Constitution, the expert panel wrote: “It derives from the majority view of the High Court in Mabo v Queensland (No 2)52 that the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals”.’
Bertus de Villiers, ‘A Fresh Approach to Aboriginal Self-Government and Co-Government – Grassroots Empowerment’, Brief 47,1 (2020), p. 12.
De Villiers is a Professor of Law. He argues for Aboriginal ‘co-governance and self-governance’ to take place according to a grassroots model that would inspire local communities and ensure their involvement in decision-making. De Villiers draws on and describes recent experiences in Hungary ‘where cultural communities have in recent times been given special right of representation, consultation and self-government at a local level in a manner that is unique in international contemporary democratic theory and practice’. He discusses the Hungarian developments to demonstrate that there can be fresh thinking about democratic processes that are outside the ‘existing box of constitutional and legal dogma’.
‘The missing link (so far) in the design of the Voice has been how the rights and interests of local Aboriginal communities would be accounted for in the Voice. Policies pursued at a national level in areas such as mining, environment, agriculture, education, native title, resource use, land managements, welfare, and health need to be informed by the needs and aspirations of local communities, otherwise the perception of local Aboriginal communities being disempowered will be repeated within the Voice.’
Thomas Mayor, ‘The Torment of our Powerlessness: The Uluru Statement and enshrining a voice for Indigenous Peoples’, Australian Options 87 (2018), pp. 8, 9
This article was written by a signatory of the Uluru Statement from the Heart following Malcolm Turnbull’s original negative response to the Voice proposition. It focusses on both the struggle for justice and equality for Aboriginal and Torres Strait Islander communities and the hope for a different future represented in the Statement from the Heart. Mayor recalls his early days as a member of the Maritime Union of Australia which, through organisation and cooperation with similar unions and federations, overcame the Howard Government’s attempts to break the union. The article proceeds to argue that protests and rallies for indigenous rights are not effective enough, and that Aboriginal and Torres Strait Islander communities need their ‘voice heard on the street and in parliament’. Mayor argues for the constitutional enshrinement of the Voice to protect it from being disbanded when new governments come into power as has happened in the past. He also emphasises the importance of a Voice to Parliament to future negotiations with government for the creation of a treaty and a Makarrata Commission. This article also considers the process leading to the Uluru Statement from the perspective of a participant. Mayor describes the Statement as both ‘an unprecedented process of hope’ and as ‘the vanguard of our movement’.
‘Some argue against enshrining the Voice of First Nations in the constitution fearing that this will diminish sovereignty. But asserting our cultural authority and right to be heard in the constitution of Australia has no impact on who we are. As the Uluru Statement says, sovereignty is “the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty”. Sovereignty has not and never will be ceded.’