At the Referendum meeting at Well Thumbed Books on 6 June, a participant cited some friends of hers, Wiradjuri elders. These women were concerned that with a Voice to Parliament, First Nations peoples would be ceding sovereignty. Leading constitutional lawyers, both Indigenous and non-Indigenous, disagree.
But what exactly is sovereignty?
Sovereignty means the authority to self-govern. Governor Phillip hoisted the British flag in Sydney Cove on 26 January 1788, as if the country were Britain’s to take, as if it were uninhabited, a ‘Terra Nullius’ – a doctrine in play until the Mabo decision in 1992. But First Nations peoples had self-governed until that day. They never agreed to cede their land or waters – to give their country to the invaders – or to live under someone else’s laws. Rather, they fought to defend and retain their country.
Sovereignty over this continent had never been ceded. It still hasn’t. It co-exists with the sovereignty of the Crown.
In 2017 the Uluru Statement from the Heart asked for three things: a First Nations voice, then agreement-making between governments and First Nations (a treaty, ‘Makarrata’), then truth-telling – in that order.
Independent Senator Lidia Thorpe believes that a treaty should come before the Voice. ‘We demand a sovereign treaty with an independent sovereign treaty commission,’ she says. ‘We don’t need a referendum.’
The progressive Indigenous argument against the Voice is that Aboriginal people are being co-opted into the white system, and once Indigenous people are part of the white system, they will lose their power to negotiate – how can a people negotiate with itself? – so there will never be a treaty.
Leading constitutional lawyers disagree. The Voice proposal says nothing about sovereignty. Sovereignty does not come from the Australian Constitution or any other settler document and cannot be ceded or extinguished without the agreement of both parties.
Constitutional lawyer and Cobble Cobble woman Professor Megan Davis says, ‘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.’
Dr Hannah McGlade, Noongar woman and member of the UN Permanent Forum for Indigenous Issues, agrees. ‘Nowhere does the Voice to Parliament proposal suggest any agreement of Aboriginal people to cede sovereignty. To the contrary, the proposal recognizes the right of Indigenous people to be heard on laws affecting our people.’
Polling by Ipsos of 300 First Nations people in January revealed that 80 per cent of respondents support the government’s proposed Indigenous Voice to parliament.
I might be whitesplaining so if there’s an Indigenous reader out there who’d like to take this up, please don’t hold back.
This piece was first published in The Triangle community newspaper in July 2023.
Thanks Jen for this very clear explanation.