Aboriginal peoples’ enduring and life-defining connection to our land tests the assumptions and limits of Australian sovereignty. (ABC Open contributor Kane Chenoweth)
Always was, always will be Aboriginal land.
Sovereignty never ceded.
These are more than words of defiance. These are profound sentiments that have sustained us as Indigenous peoples through two centuries of colonisation, a history too often marked by neglect and injustice.
Our enduring and life-defining connection to our place — our land — our continued presence as distinct peoples bound to our ancient laws and practices tests the assumptions and limits of Australian sovereignty.
We have been reminded of that again this week with a landmark High Court ruling that divided our most pre-eminent legal minds.
Can we be equally one and the same?
The seven-member court found 4-3 that Indigenous people cannot be considered aliens even if they do not hold Australian citizenship.
The case was brought by lawyers for two Aboriginal men, Brendan Thoms and Daniel Love, both born overseas but having Indigenous heritage.
Both faced potential deportation arising from criminal charges. But this case was about more than just the fate of two individuals.
This was about our nation’s history: the legacy of dispossession.
Where do First Nations people fit within the Commonwealth? What is it to be Australian? Indigenous? Can we be equally one and the same?
Can two centuries of imported British law and tradition here, extinguish a connection, law, and lore that has existed for time immemorial?
These questions go to the very heart of the legitimacy of the nation. This is what Indigenous people call Australia’s unfinished business.
The judges’ opinions make fascinating and inspiring reading. They are profound, wise, and sensitive.
The case was brought by lawyers for two Aboriginal men, Brendan Thoms and Daniel Love (pictured), both born overseas but having Indigenous heritage. (Supplied)
They disagree with respect. They write with nuance. They seek to persuade through the force of their argument.
It is such a welcome relief and stark contrast to the facile nature of much popular debate on these issues too often drowned out by fear and hyperbole.
Colour-blind liberalism ignores history
The judges confronted emotionally and politically loaded questions of race, history, identity, and crucially, sovereignty.
In doing so, they have widened the horizon on what it is to be Indigenous and belong to this land.
Justice James Edelman captured the strength of the Aboriginal men’s claim:
“The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation….”
Justice Virginia Bell argued too that an Indigenous person cannot be considered alien, because “…an Aboriginal Australian cannot be said to belong to another place”.
Justice Stephen Gagelar rejected the claim, but also acknowledged an Aboriginal connection “deep” and “enduring”.
Despite the “morally and emotionally engaging” argument, Justice Gagelar said it was “not legally sustainable”.
He could “not be a party”, he wrote, to inserting what he saw as a “race-based constitutional distinction”.
To critics of the High Court judgment, race is always a hot button issue. They reject anything that suggests Aboriginal people, may enjoy privileges or rights apart from other Australians.
They preach a “colour-blind” liberalism. But that is to ignore history.
Aboriginal people have a connection no other Australian has
Race has been critical to the foundation of Australia, both excluding non-white people or not counting Aboriginal people.
It is a straitjacketed view of liberalism that eschews difference for the “narrow soul” of homogeneity.
Yet not all Australians are alike.
We need to stop thinking of Indigenous people as a race, scientists have overwhelmingly discredited the notion of race.
But we are a people, a polity whose ancestral connection to this land infers unique standing.
Aboriginal people have an antiquity, cultural and spiritual connection to this land that no other Australian can have.
Those opposed to recognising the unique rights of First Nations people cannot simply wish us away.
Justice Michelle Gordon reminds us that “the common law can and does recognise that Indigenous peoples can and do possess certain rights and duties that are not possessed by, and cannot be possessed by, the non-Indigenous peoples of Australia”.
I don’t enter the Australian nation as a settler or a migrant; I enter it through the inheritance of my Indigenous ancestors. An unbroken line of kinship never extinguished.
Justice Edelman argues embracing difference is critical to achieving justice.
“To treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference.”
Difference is one thing; sovereignty though is something else entirely. It looms over this judgment.
Aboriginal people have an antiquity, cultural and spiritual connection to this land that no other Australian can have. (ABC Newcastle: Robert Virtue)
Aboriginal people have always tested the limits of law
Australia is unlike other similarly colonised lands.
The judges stress Indigenous Australians don’t enjoy the same political sovereignty as Native Americans or New Zealand Maori.
Justice Gagelar was concerned that elements of this case “come perilously close to an assertion of Aboriginal and Torres Strait Islander sovereignty….”
That is a line no Australian court has dared cross.
As another dissenting judge, Justice Patrick Keane reminds us: “The assertion of a claim to sovereignty has been rejected on the few occasions on which it has been articulated.”
That hasn’t stopped Aboriginal people continually testing the limits of Australian law.
Cases asserting Indigenous sovereignty date back to the 19th century.
Australia is unlike other similarly colonised lands and Indigenous Australians don’t enjoy the same political sovereignty as Native Americans or New Zealand Maori. (AAP: Dan Peled)
In 1836, lawyers for Aboriginal man, Jack Murrell, charged with murder, argued that he was not a British subject and the British law did not apply to him.
The Chief Justice of the New South Wales Supreme Court said it was an “ingenious defence” but rejected it anyway.
By 1841, the issue was again back before the Supreme Court. In this case — another Aboriginal murder trial — Justice John Walpole wondered whether he even had jurisdiction over the matter.
He said, “In Australia it is the colonists not the Aborigines who are the foreigners”. Aboriginal people he said, were “the sovereigns or proprietors of the soil”.
R v Bonjon, as it was known, promised to be more than a criminal trial: the colony itself was in the dock. But it never got that far. Ultimately, the trial itself was abandoned.
The nation can never truly look away
Aboriginal people kept up their legal campaign into the 20th century.
A breakthrough came with the historic Mabo case, which established the existence of Native Title.
Yet, even in that landmark judgment in 1992, the judges still stopped short of questioning the sovereignty of Australia.
Constitutional law professor and Indigenous woman Megan Davis says in its latest ruling, the High Court has “restated its emphatic position that recognition of Indigenous sovereignty is for the parliament and not the court”.
The unresolved question of Indigenous sovereignty haunts Australia. For Aboriginal people, it is part of our inheritance of trauma.
It is what the Uluru Statement from the Heart called “the torment of our powerlessness”.
Yet Aboriginal people hold a mirror up to Australia. The nation can never truly look away.
First Peoples hold to truths of 60,000 years or more that can never be erased.
The latest ruling of the High Court attests to that.
First Peoples hold to truths of 60,000 years or more that can never be erased. (Supplied: Sven Ouzman)
We remain a nation incomplete
Our politics has failed us. The lack of treaties, the refusal to acknowledge meaningful Indigenous sovereignty, weakens the nation.
There is a lack of certainty and the status of First Peoples remains contentious.
The Uluru Statement called for a constitutional voice, something that married enduring Aboriginal sovereignty with the sovereignty of the Commonwealth.
Professor Davis says it offered Australians the chance to resolve this issue “without acrimony or hysteria”.
It remains, though, an opportunity lost.
And we remain, not as the Constitution says a nation indissoluble, but a nation incomplete.
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