I first learnt about Aboriginal sovereignty as a law student in the 1990s - the WA government was introducing harsh new criminal laws known as the 'three strikes' laws and we decided to protest nationally. We had permission from the Tent Embassy in Canberra to arrive at the embassy to protest these racist laws which harm our children to this day. I arrived with several Noongar youth at risk from such laws, which continue to incarcerate our children in WA and Northern Territory today.
At the Tent embassy I met Koori sovereignty leaders, Isobel Coe and Kevin Gilbert, who'd studied the way Australia was colonised without Treaty. Under the Law of Nations, the lands of Indigenous peoples could only be acquired with the agreement and consent of the Indigenous peoples, by Indigenous peoples agreeing to give up their sovereignty through 'cession'. Indigenous people's lands, and sovereignty, could also be lost in war and through 'conquest'.
The Aboriginal sovereignty movement started by Aboriginal leaders of the 1960s powerfully raised awareness of the unlawful acquisition of this land by the British, and the consequences of it today for Aboriginal people - whose sovereignty was never ceded.
In 1979 on behalf of the Wiradjuri people, lawyer Paul Coe went to the High Court of Australia to argue that Aboriginal people retained sovereignty as a distinct political people. This was rejected outright by the High Court who found that questions of sovereignty were not justiciable by the courts. In a second case brought by Isobel Coe in 1982, the High Court confirmed this earlier decision. The latter case of Mabo (1992) also confirmed the High Court will not examine Aboriginal sovereignty.
Where has this left Aboriginal people specifically in relation to our claim for sovereignty? Under international law, the wrongful acquisition of Australia could be examined by the International Court of Justice (ICJ) - but the ICJ only recognises nation states have legal standing to appear before the court. Indigenous peoples who are not states cannot commence an action in the ICJ and would need other nations to do so on our behalf, and of course that never happened. Indigenous peoples here and globally have, notwithstanding, continued to fight for Indigenous rights, ensuring the development and adoption of the Declaration on the Rights of Indigenous Peoples, the first such instrument dedicated to the rights of Indigenous peoples.
In the 1990s the Aboriginal and Torres Strait Islander Commission (ATSIC) called for a Treaty between the Australian government and Aboriginal people and led national dialogue on Treaty and what it should mean for us. I worked for the Treaty campaign, which also included discussion about reforming the Commonwealth constitution to properly recognise Indigenous peoples.
Across Australia, Aboriginal people were very receptive to Treaty, and positive also about constitutional reform. The Council for Aboriginal Reconciliation in its final report also recommended that Australia enter into Treaty agreements with Aboriginal people and further, amend the Commonwealth Constitution to prohibit race discrimination.
Now to the point of this note. Unfortunately, there is a concern that recognition of Indigenous peoples by way of the Voice referendum may be a 'cession' of Indigenous sovereignty. Yet 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.
Furthermore, even hypothetically if there was such an outlandish proposal the Voice will be determined by way of vote of the Australian people, and accordingly could never represent an agreement or consent of Indigenous peoples to cede sovereignty. Indigenous people's sovereignty can only be ceded under international law through the consent or agreement of Indigenous peoples, which happened historically under treaty agreements, or due to 'conquest' in warfare. Again, this never happened here.
The Voice cannot be construed as cession of Aboriginal sovereignty by way of participation in the Commonwealth parliament and Australian body politic any more than the participation of Aboriginal politicians on behalf of their political parties. This is simply not international law.
At its last meeting in New York in 2022, the UN Permanent Forum on Indigenous Issues supported the Voice proposal, noting it had been five years since the Uluru Statement from the Heart, and expressed concern at the prospect of further delay. Internationally, the contemporary recognition of Indigenous peoples in the constitutional arrangements of nation states is regarded in a positive light reflecting respect for Indigenous peoples and our participatory rights. Moreover, the Voice reflects the spirit of Article 18 of the Declaration:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves, in accordance with their own procedures, as well as to maintain and develop their own decision-making institutions.
The Uluru Statement from the Heart and proposal for Voice, Treaty and Truth (in this order) has also been supported by the former UN Special Rapporteur on Indigenous Rights Vicky Tali-Corpuz in her 2017 report to the Australian government, and the UN Expert Mechanism on the Rights of Indigenous Peoples. These highly respected international Indigenous mechanisms have given clear support to the Voice as being progressive recognition of Indigenous rights today.
As an Aboriginal lawyer with over two decades experience in UN law, I hope this note allays any misconception about Aboriginal sovereignty and the Voice. I urge the Australian government respond to the request by Senator Lidia Thorpe for legal advice concerning sovereignty and urge Senator Thorpe to engage with Aboriginal experts in international law. It's time that all political parties respect our rights under the UN Declaration on the Rights of Indigenous Peoples, including Article 18, now being implemented through the historic Voice proposal.
LLB, LLM, Ph.D
Member, UN Permanent Forum for Indigenous Issues