• jmcdonnell64

Creating Separate Sovereignty

In a recent decision the High Court found that people of aboriginal

descent may not be citizens of Australia but they could never be

“aliens” and come within the ambit of the “alien” power in the

Constitution. This means that they cannot be subject to any of the

immigration legislation that is based on this power. At the moment

this results in a situation where two violent criminals who are foreign

citizens cannot be deported to their countries of origin.

The basis of the 4-3 majority decision was that aboriginal people have

an inalienable connection to country. The court implied that this

conferred on aboriginals more than just the right to ‘native title’ but

also additional personal rights that are not available to other

Australians.

Aboriginal activist and journalist, Stan Grant, was effusive in his

praise of the High Court decision. He argued, in an article in the Nine

Entertainment Sydney Morning Herald, that this was a recognition of

aboriginal sovereignty which should now be expanded so that First

Peoples could achieve equality. He seemed to be arguing for a model

of separate development controlled by indigenous bodies.

This process has already begun. On February 7, in a groundbreaking

move by a state government, it was announced that the Yamatji

people, who occupy land around Geraldton in Western Australia, had

been granted title over 48,000 square kilometres of land and given

$450 million for economic development as compensation for the

alienation of their native title rights.

In Victoria, the Andrews Government announced on Saturday that it

was reviewing settlements already made with three aboriginal

communities.


In a press release it said: “The Andrews Labor Government has

reaffirmed its commitment to self-determination with a review of the

legislation that recognises Traditional Owner land rights.

“Attorney-General Jill Hennessy joined Traditional Owners to launch

the First Principles Review, which will seek to make improvements to

the Traditional Owner Settlement Act.

“It will review opportunities to remove bureaucratic obstacles that

prevent Traditional Owners from realising the full benefit of their

native title settlements.

“It will also look at whether Traditional Owners are receiving

adequate compensation in settlement agreements, including

compensation for cultural loss, in line with the High Court’s Timber

Creek decision in 2019.

“The first agreement under the Settlement Act was reached in October

2010 with the Gunaikurnai People of Gippsland. It was followed by

agreements with the Dja Dja Wurrung People of mid-northern

Victoria in 2013 and more recently with the Taungurung People in

2018.

“Combined, the three agreements cover more than six million

hectares of the state and include the transfer of 25 parks and reserves

as Aboriginal title to the three Traditional Owner corporations, to be

jointly managed by the Traditional Owner corporations and the

State.”

In his speech on ‘Closing the Gap’ last week the Prime Minister, Scott

Morrison, announced a radical change in the Government’s approach

to constitutional recognition. He said it would be based on the

recommendations of the Parliamentary Committee on Constitutional

Recognition that had been chaired by Senator Pat Dodson and Julian

Leeser. This was unequivocal in its conclusion that the only

worthwhile form of constitutional recognition was the inclusion in the

founding document of an indigenous ‘voice to Parliament’.


The Prime Minister agreed that this, together with a commitment that

indigenous organisations would control indigenous policy, was the

only way to close the gap.

Not all indigenous leaders agree with the Prime Minister. In an article

published on the Centre for Independent Studies website on Saturday,

Jacinta Nanpijinpa Price commented:

“The aim of Closing the Gap is to create unity between Indigenous

and non-Indigenous peoples. However it’s hard to think of an action

more likely to be divisive than creating a vague legal entitlement

enjoyed exclusively by a subset of people with Indigenous heritage,

which operates completely outside our system of government.”

This is the fatal flaw in the indigenous sovereignty push. It is unlikely

that the 98% of Australians who do not hold any special rights will

agree that 2% of the population should have special rights by dint of

their ancestors’ prior occupation of the continent. Moreover they are

likely to be sceptical that separate development will lead to better

social and economic outcomes for indigenous people and continuous

accusations of bigotry and racism are unlikely to change their minds

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