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
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
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
“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
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