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.
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.
Dr Christopher Reynolds is experienced as a teacher, professor, business manager and political strategist. He has worked on several American political campaigns and on staff under Senator Teddy Kennedy and Senator Mitch McConnell, and received a commendation from President Ronald Reagan for "excellent work". He's the author of several books including his most recent work, What a Capital Idea – Australia 1770-1901. His Ph.D. is in Government/Political Philosophy. [more]
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