Sovereign Indigenous nations ‘is an Australian myth’

A “welcome to country” smoking ceremony conducted at Parliament House in Canberra. Picture: Martin Ollman

Denying reality never ends well. Sooner or later someone comes along and punctures fashionable delusions.

Hans Christian Anderson made this clear in his fairytale about the Emperor’s new clothes. And almost two centuries later, exactly the same point has been made by Victorian barrister Lana Collaris.

The issue now is whether the cognoscenti in the law and elsewhere will face the facts about Indigenous Australia or whether they will continue to pay homage to a bucolic past that never really existed.

Collaris’ article in this newspaper on Tuesday made many powerful points but they all flow from this: there have never been sovereign Aboriginal nations on this continent.

This reality lies at the core of her refusal to go along with other members of the Victorian Bar Council who, before each meeting, acknowledge the “traditional owners” of the land on which they meet.

It’s impossible to avoid the conclusion that these acknowledgments and the omnipresent welcomes to country give effect to the idea that Indigenous people are the true sovereigns of this land.

How many times have we heard acknowledgments of “first nations” whose sovereignty, while never ceded, was taken improperly?

This is a modern fairytale that does more harm than good.

It gives children a flawed understanding of their own history and hinders the development of public policy on Indigenous affairs based on true equality of citizenship, not historical fantasy.

It gives succour to the wrongheaded notion that modern Australia is somehow in need of “decolonising” – a process that actually unfolded decades ago and culminated in 1986 when Bob Hawke severed this country’s last constitutional links with Britain.

The Constitution started life as an act of the British parliament after the document had been approved in this country. True independence, however, was painfully incremental.

Hawke’s Australia Acts were the final step.

They mean the Constitution’s status as Australia’s fundamental law now derives entirely from the people of this country – a point made by constitutional lawyer Geoffrey Lindell soon after this change came into effect.

After the outcome of last year’s referendum on the Voice, it seems beyond debate that the guiding constitutional principle in this country is now equality of citizenship – not the race-based division that blighted earlier years.

This is the legal reality that all those welcomes and acknowledgments simply gloss over.

But in the gentlest possible way, Collaris has belled the cat.

She could have gone much harder and was clearly sparing the blushes of those lawyers who have simply gone along with the prevailing fashion despite authoritative statements to the contrary from the High Court.

Lawyers, of all people, should have known that the doctrines of Aboriginal sovereignty and nationhood – which underpin these welcomes and acknowledgments – have been repeatedly rejected by the High Court. Because of that it makes no sense for anyone – let alone the lawyers – to talk of “first nations” or to assert that some Indigenous communities had not ceded their sovereignty. They had none to cede.

Collaris merely referred in passing to the 1979 case of Coe. She could, for example, have reminded her critics about what Justice Harry Gibbs said when confronted with the argument that Aboriginal people had once been a sovereign nation and Britain had wrongly asserted sovereignty.

“There is no Aboriginal nation, if by that expression is meant a people organised as a separate state or exercising any degree of sovereignty,” Gibbs wrote in Coe.

Gibbs made the point that the history of the relationships between white settlers and Indigenous people was not the same in Australia as the United States. He noted that the US Supreme Court had accepted in 1831 that America’s Cherokee nation had been organised as a “distinct political society separated from others”. But it was not possible to make such a statement about Aboriginal people in Australia.

Collaris might also have mentioned what happened in 1992 when the great native title case of Mabo (No 2) also rejected the notion of Aboriginal sovereignty.

This aspect of Mabo was explained by former Chief Justice Anthony Mason in the second Coe case, decided in 1993.

The next time someone asserts that Aboriginal sovereignty exists and has never been ceded, keep in mind what Mason had to say in the second Coe case:

“Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia,” he wrote.

“The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are ‘a domestic dependent nation’ entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of NSW and the common law,” Mason wrote.

The point here could have been made by Hans Christian Anderson: organisations risk embarrassing themselves when they ignore the facts and succumb to peer pressure or fashion.

Society expects much more from those in positions of leadership, particularly those in business and the law. It is therefore reassuring that the Victorian Bar has leaders with the fortitude of ­Collaris. Why not follow her example and abandon these race-based mantras and acknowledge all Australians, regardless of race, religion or national origin?

That would be more in keeping with the doctrine of equality of citizenship. It might even prevent eye-rolling when planes full of weary travellers arrive at the nation’s airports.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.

Source: The Australian
Written by Chris Merritt