Part II: Sovereignty and Treaty

The First Nations-People (FNP) have written the Uluru Statement from the Heart claiming  sovereignty over the continent of Australia. They want a Voice to Parliament, they say, in  order to negotiate a ‘treaty’ – a ‘Makarrata’: “Makarrata [they state] is another word for  treaty or agreement making. It is the culmination of our agenda … Treaty and constitutional  recognition should go hand in hand”. 

However, the notion that the FNP could claim sovereignty over Australia is a claim without  merit.

Sovereignty is defined as the authority and the ability to rule over a country, state or land  mass. On February 7, 1788, on the shores of Sydney Cove, Port Jackson, the British read a  declaration and assumed sovereignty over the land of the Australian continent they called  

New South Wales. The declaration was made according to international law and the  principle of terra nullius – no one owned the land, ruled the land or worked the land. 

The Aborigines were seen as diverse warring tribes without a ‘king’ as head of state, a legal,  military or commercial system. They did not have a concept of ‘value’ and therefore a notion  of ownership of land. Nor did they have a national, sovereign identity over the entire land  mass.  

Australia – as terra nullius 

The concept of terra nullius dates back to old Roman law. Any land that was deemed not  subject to a sovereign state, unsettled or uninhabited land was considered terra nullius – land  belonging to no one, or land of no ownership.  

There were two internationally accepted legal and political principles to claiming a land under  a sovereign power. First, a land could be claimed where the land was seen to be effectively  without an owner, and therefore terra nullius, even if it was inhabited by an indefinite  population of itinerant hunters and gatherers.  

The second principle was that a nation’s claim to ‘uninhabited’ land could not be done simply  by proclamation. The nation had to occupy and settle the land. The ancient notion of  ‘sovereignty’ whereby you had to occupy and work the land to own it (an ancient Irish concept)  was further developed by the philosopher John Locke: ownership of a country through  habitation could only be established when labour was mixed with the development of the land  through agricultural cultivation and construction.  

The principles of habitation and sovereignty as set out in Emerich de Vattel’s The Law of  Nations or the Principles of Natural Law in 1758, were recognised by Britain and the  European countries.  

The law of nations will, therefore, not acknowledge the property and sovereignty  of a nation over any uninhabited countries, except those of which it has really  taken actual possession, in which it has formed settlement, or of which it has  made actual use.

The principle of terra nullius was used by the Spanish and Portuguese in colonising South  American land; by the Spanish, French, British and the United States in acquiring land in  North America; by the British in the Caribbean, West Indies and Africa; the French in North  Africa and Asia; and by Russia, Holland and Germany. And, the law was also applied by  Australian colonies in declaring sovereignty over Norfolk Island, Bougainville and Papua  New Guinea. Most of the 59 member countries in the Commonwealth of Nations were  claimed under this law. For 500 years, countries have assumed land under the law of terra  nullius, and for as many years, courts have examined such claims and upheld rights of terra  nullius.  

In 1992, the High Court of Australia in the case of Mabo v Queensland recognised a ‘native  title’ claim by Indigenous people to a particular portion of land. However, the Court did  not question or challenge the prerogative right of the Crown to express its sovereignty over  its land or challenge the Crown’s right to sovereignty over Australia and its claim of terra  nullius in taking possession. If there was ever a notion that Aborigines had sovereignty  over Australia by being the first people here, or on any other basis, in the Mabo case, the  Court declared that any such claim ceased with the British declaration of sovereignty on  February 7, 1788. 

In 1856 -57, Aboriginal people along with all other male British subjects gained a ‘voice to  parliament’ and could vote in colonial elections. In 1899 and 1900, Aboriginal people, along  with everyone else, voted in the referendums for Federation. 

It doesn’t matter where people came from or how long they have been here, as Australian  citizens in a democratic state, they have a right to vote for the parliaments. In this democratic state, governments and authorities are appointed representative of the sovereign  people. Talk of establishing a separate, unelected and un-responsible Black Parliament is  sedition. 

Treaty 

When considering establishing a military base and civil society in New South Wales, the  British as the most developed and advance nation on earth could have purchased land, paid  stipends to rulers – as it did in India, or signed treaties – as it had done in the Americas.  

The British could have send hundreds of warships to Australia to conquer and invade the  nation slaughtering the inhabitants, but what military could they have fought? What king  could have surrendered? What authority could have signed a treaty?  

There was no vast British army storming the beaches of Port Jackson. There was no invasion.  Quite the contrary; Arthur Phillip sat on the beach at Sydney Cove when he arrived and for  two days ate and talked with local Aborigines. Aborigines were living in the little colony  within two years. Arthur Phillip was made an Aboriginal elder and given the name  Wolawaree. 

In reviewing the purpose of treaties by the British in the 18th Century, most were diplomatic  agreements to end wars with European countries, usually the French. Treaties in North  America, were often agreements for trade, to prevent and end wars between native  Americans, offers of protection, or ‘peace treaties’ to end conflicts with settlers. There were  also treaties for the ceding of land to pay off trade debts or the ceding of land as land  purchases.

The New Zealand Treaty of Waitangi of 1840 was initiated by the New South Wales Governor  George Gipps –who had authority over New Zealand, to stop the warring, slaughter and  cannibalism among the native tribes – especially the eating of babies. The Treaty gave the  chiefs control over their lands and brought the tribes together as ‘one people’. The Treaty  acknowledged British Crown dominion and authority over all of New Zealand and brought  New Zealand into the British Empire. In recent times, the New Zealand Government has  paid money as treaty settlements for land taken by the government. Because New Zealand  doesn’t have one document as its Constitution enacted on the basis of a public referendum,  then the Treaty of Waitangi has merit, otherwise the creation of an independent democratic  state would have rendered a British treaty of 1840 with tribal chiefs null and void. 

It is this notion of being paid for land that interests the FNP. Their problem is that they do  not possess, or ever possessed, land and a right to negotiate a treaty. The claim to be  descendants of people who lived on the Australian continent centuries ago is ‘dreaming’ as  their claim to sovereignty, they say, is a spiritual claim based on their animist religion and  belief to be at one with ‘mother nature’. 

In the record of Regional dialogues before the Uluru Statement, the idea of forming a “7th state … of defined territory” was mentioned (p.3). On several occasions the need to have  separate treaties with the States was discussed [South Australia and Victoria have already  formed treaties and Queensland in on the way, which collect tax payer funds to feed FNP requests]. It is a case of wanting to keep eating the cake at ever increasing mouthfuls. 

Still, a real treaty and separate ‘political state’ is an interesting hypothetical to consider: what  could a treaty look like today?  

If a head of a ‘FNP Free State’ could be found to deal with, a treaty could be drawn up  between the citizens of Australia and the FNP and begin with cleaning the slate: all $39.5  billion a year in payments would stop; all 3,000 organisations serving FNP people dissolved;  all access to social, hospital, educational and communication would conclude; all their  passports would be cancelled; and all ‘native title’ claims dishonoured. 

The Australian citizens could, for example, then negotiate out the management rights for the  continent in perpetuity with the power to function as sovereign over all internal and external  affairs. In return, the Australians would give the FNP a region of land in, say, the Northern  Territory as a reservation with full rights to develop their own economic, military, welfare  and communications systems, and, issue their own passports. They would receive 1% of  Australia’s GDP (AUD$15 billion at today’s value) per year. All people claiming to be aligned  with the FNP would be relocated to the Northern FNP Free State to live.  

Of course, the FNP Free State would be unprotected, or under protected against aggressors,  say, like the Chinese, who could attack and invade the FNP Free State at any time, or make  Belt and Road trade agreements to take over the economy. 

Obviously, Indigenous people are far better off living in the very generous Australian  democracy as Australian citizens with full rights and benefits then being transported to a  separate reservation and having to develop their own economy.