The redoubtable historian, Prof. Henry Reynolds, set the cat amongst the pigeons by noting that the Australian High Court had not dealt with the issue of sovereignty when it dealt with the associated issue of land rights. He stated that “the High Court’s decision to recognise prior rights of property but not sovereignty lines Australian law up with the international lawyers writing at the high noon of imperialism”. This decision has therefore left intact the traditional view that, when the British annexed parts of the Australian continent in 1788, 1824, 1829 and 1879, the Crown acquired sovereignty over the land; and that sovereignty is indivisible.
The professor argues instead that, under international law, sovereignty is a ‘collection of powers’, often ‘separated one from another’; that British colonial arrangements displayed a division of sovereignty, ranging from spheres of influence, to protectorates, to outright colonial possession; and that both the USA and Canada have accepted that their indigenous peoples have residual rights of sovereignty, carried over from pre-colonial days; and that such rights can be extinguished by the state, but only by a ‘clear and plain intention to do so’. It was also British colonial policy to recognise customary or traditional law, where established by usage, and where not inconsistent with British concepts of justice.
I also note that the High Court ignored the issue of sea rights under native title. As for claims by Torres Strait Islanders for sea rights, were the government to be driven by justice, it could foster the development of fishing co-operatives by these Islanders, and issue them with exclusive licences to fish in the seas they claim as theirs.
So, is there some doubt about sovereignty in Australia? Sovereignty to the Crown by occupation on the one hand, and residual sovereignty to Aborigines by prior right on the other? As indigenous peoples, the Aborigines and Torres Strait Islanders would seem to have rights to self-determination. This includes the right to autonomy or self-government in certain areas, especially in relation to maintaining and developing their cultural distinctiveness. Would this also include the right to special seats in the federal parliament? So, I ask: can the Aussie black afford to have a dream, as did the African-Americans a generation ago?
Special arrangements, including a treaty, for a small cultural minority would be abhorrent to those inured to political dominance by white people over all others –– as in the colonial era. Special arrangements could be abhorrent also to a nation of diverse but assimilated peoples — as in the White Australia era. Or even to a multicultural nation-state composed of a variety of tribes who have integrated (but not assimilated) with the mainstream population.
Yet, if after more than 200 years, the indigenes of Australia still want to remain separate peoples and to control their way of living, how can they, as first nation peoples, be denied? Is it not time for them to receive their share of justice? After all, isn’t Australia already a multicultural nation? Perhaps what is needed is for the colour-sensitive Aussie to stop fearing that the blacks will become rich and politically powerful. What if some of them do? As Nelson Mandela said, “As we are liberated from our own fear, our presence automatically liberates others”.
(The above are extracts from my book ‘Hidden Footprints of Unity.’)
RAJA ARASA RATNAM 