Dr Irene Watson, Tanganekald and Meintangk/Boandik
This paper discusses existing and ongoing obstacles encountered by First Nations peoples of Australia in achieving meaningful participation in international and intra-national decision-making processes. Across Australian history there have been no treaties negotiated with Aboriginal Peoples. In 1835 colonial settler John Batman attempted to enter into an agreement with the First Nations Peoples of what is now known as the city of Melbourne. However the attempt was declared void by the Crown and First Nations were deemed not to have capacity to determine their future lives and lands. No agreement has been reached regarding the forced removal from our territories, many First Nations Peoples of Australia continue to affirm our sovereignty as subjects of international law.
We have never agreed to the invasion of our country and the historic and continuing acts of land theft, ecocide and genocide. The colonisation of our territories manifests in the abrogation of our capacity and rights as Peoples to self-determination, as recognized in Article 1 of the Charter of the United Nations. The possibility of a democracy to come is non-existent without the possibility of Aboriginal Peoples regaining our capacity to be fully self-determining.
This short piece will consider the United Nations study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, (E/CN.4/Sub.2/1999/20) the author Miguel Alfonso Martinez argued for Indigenous Peoples having the right to self-determination.
Since the invasion of Australia in 1788 Aboriginal Peoples have asked the question of imperial Britain then and the Australian state now: “by what lawful authority do you come to our lands?” What authorises you to dispossess us from our ancient connections to our lands, our ruwe?” What law authorises our exclusion? These questions remain unanswered and a positive response is critical to the future of Aboriginal Peoples. How are our rights to participate in decision-making ensured in law and practice? How are decisions concerning relationships to our territories, the preservation of our natural world and our cultures determined?
While Aboriginal Peoples remain objects of state jurisdiction our participation will remain limited as we are denied and excluded from participating as subjects in international law.
There is a long history around the constructed colonising identity of Indigenous peoples, for example, prior to the invasion of our ruwe-lands, my old people identified as Tanganekald, Meintangk and Boandik. The colonial project imposed other names upon us including: barbarians, heathens, savages, Aborigines, British subjects, Australians, and Indigenous People. But the truth of our identities is in our ancient and original names. Post invasion our ‘participation’ and identity within colonial processes was considered in the Treaty Study; Martinez referred to the limitations of the 1989 ILO Convention (No. 169) concerning indigenous and tribal peoples in independent countries (Treaty Study para 48). Martinez argued that if Indigenous Peoples had no real option to participate, then there was no opportunity to equitably share knowledges or for Indigenous frameworks to be deployed throughout discussions with states. Indigenous Peoples have cited the ILO process as no more than an assimilationist victory incorporating Indigenous Peoples only so far as we fit into state agendas.
Participation – subject/object position.
Martinez recommended that Indigenous Peoples speak in their own voices as Peoples and as true subjects of International law rather than having our collective voices taken up and spoken for by individual ‘leaders’, organisations and NGOs. The colonial ambition was/is to maintain the position of Indigenous peoples, as being subjugated to the will of the state, all of which equates to the ongoing status of Indigenous Peoples as objects of the State. Retaining this object position stands as an obstacle to Indigenous Peoples ongoing quest to be returned to our own inherent jurisdiction as subjects of international law. This is an important point with respect to the question of the ‘participation’ of Indigenous Peoples, because the representation of Indigenous Peoples is quite often performed by Indigenous organisations or NGO’s (Venne, S. H., 2013). The result of which often contradicts ‘proper’ Indigenous representation that is in accord with Aboriginal law and governance.
First Nations Peoples of “Australia” have complex legal systems which have evolved over thousands of years, only interrupted in 1788 by the invasion of the British Empire. Prior to the invasion Aboriginal Peoples shared a history of peaceful co-existence, evidenced by the 500 and more Aboriginal languages then extant. The agreements negotiated between Aboriginal Peoples of this continent are evidenced in the song lines and the mutual respect shared amongst First Nations Peoples at the meeting of song lines, shared spaces, exclusive spaces, private spaces, public spaces and gendered spaces. While we did not have any written-word documents those pre-existing and continuing treaty agreements are nevertheless recorded in the song lines. The records are held by song-holders across the country. Unfortunately the resources made available to the UN Treaty Study were too meagre to take on the possibility for the inclusion of so much additional knowledge (Treaty Study para 56 we negotiated treaty agreements using our own cultural ways of entering agreements, and to correct Martinez Treaty Study at para 57, 98: international agreements between First Nations Peoples also existed across Aboriginal Australia).
Aboriginal Law is complex in its expression of land ownership and relationships to country. Relationships can be learned from knowledge of our song-law and stories about country. Aboriginal being in relationship to land is different to non-Aboriginal understandings of land ownership. Australian law bestows a ‘crown-title’ deed of ownership but the presence of this doesn’t mean the ancient relationship and ownership of lands held by Aboriginal Peoples is displaced. The song and story still lies in the land, and with it remains the ownership of country held by First Nations Peoples. This is a form of ownership which cannot be extinguished by a colonial ‘crown-title’ deed, or more recent creations such as “native title”. No colonial pronouncements have ever recognized Aboriginal Peoples’ sovereign ownership of and relationship to country. Instead the colonial state has denied the presence of Aboriginal world views as a distinct body of Aboriginal Knowledges (Treaty Study para 62).
Domestic – International: Human Rights – Rights of Peoples
If the position of Indigenous Peoples was to continue to shift in view from rights as peoples to that of human rights of indigenous individuals, than does (as I maintain) the ‘domestic paradigm’ become privileged over our status as international identities? UNDRIP does not resolve this question, but rather complicates it, by positioning Indigenous Peoples within the purview of the state. There have been no treaty agreements entered into with any First Nations Peoples of territories now called Australia. The lands of Aboriginal Peoples (without our knowledge and consent) were incorporated into the British Empire by the great land grab which began in 1788. Permanent colonial settlements were established and garrisoned and from that time on land and resources were obtained by force across the breadth of the Australian continent. While there is a history of treaty agreements amongst and between the First Nations Peoples of Australia there are none between the First Peoples and the colonisers.
Instead the doctrine of terra nullius – this land is completely unoccupied – was used to deny the existence of Aboriginal Peoples, and this position remains unchanged post Mabo and Native Title. If anything, these latter-day laws, heralded as recognizing Aboriginal rights, have merely entrenched the colonisers’ position and supported their quest for legitimacy (Treaty Study para 100). Aboriginal Peoples of Australia confront a process of retrogression; where we are deprived of the essential attributes of our identity as sovereign subjects in international law piece by piece, and whereas our original status as sovereign nations was founded in our territory, our capacity to enter into international agreements and govern ourselves suffers with the continuing reduction of our population and the ongoing erosion of our cultures by relentless assimilationist policies (Treaty Study para 105).
British subject Australian citizen – no agreement or consent obtained.
In 1840, 4 years after the founding of ‘South Australia’, Justice Cooper applied colonial law to the Tanganekald People’s resistance to the invasion of our country thus:
I feel it impossible to try according to the forms of English Law people of a wild and savage tribe whose country, although within the limits of the Province of South Australia, has never been occupied by Settlers, who have never submitted themselves to our dominion, and between whom and the Colonists, there has been no social intercourse (Lendrum cited in Watson, 2011).
Two Aboriginal men were hung without trial and many others massacred. The post-contact legal history of the colonial state and the Tanganekald Peoples had begun. Justice Cooper of the South Australian Supreme Court decided that our Peoples were outside British law. This is as true as British Law being outside of the lands and jurisdiction of the Tanganekald. However Chief Justice Cooper did not consider the question: by what lawful right had British Law come to apply to the Tanganekald People? Instead he interpreted the case as being about the application of British law to ‘non-British’ subjects (or as he maintained, ‘a wild and savage tribe’). Whatever colonial construct prevails of the civilised uncivilised, we were fully formed sovereign peoples with our own laws which had been breached by the invasion of the British. The questions of British empire and its legality over our territories remain open.
At the time of the Coorong massacres (1840) South Australian Advocate General Smillie sought to justify the event so as to avoid scrutiny over the failure to examine the murders of Tanganekald people thus:
Necessity warranted the Executive Government, in abandoning ordinary forms, which were inadequate to the emergency, to take upon itself the responsibility of putting forth those more ample powers and prerogatives, with which, for the welfare of the state and the peace of society, it is constitutionally vested (Lendrum cited in Watson, 2011).
Similar cover-ups for the many, many murders of Aboriginal people have occurred across Aboriginal Australia for more than two hundred years. Ironically, the mass cover-ups of vast numbers of murders and institutionalised cruelty accompanied the development of a colonial myth: the peaceful settlement of our Aboriginal lands.
Throughout the subsequent colonial history the Tanganekald, Meintangk/Boandik peoples along with all other Aboriginal Peoples have been governed as the included-excluded, firstly as ‘British subjects’ and since 1901 as ‘Australian citizens’. The Tanganekald were executed and murdered under a declared ‘state of emergency.’ Justice Cooper of the South Australian Supreme Court held the view in 1840 that his court had no jurisdiction over ‘frontier’ Aborigines:
My objection to try the natives of the Big Murray tribe is founded, not on any supposed defect of right on their part, but on my want of jurisdiction. It is founded on the opinion that such only of the native population as have of some degree acquiesced in our dominion can be considered subject of our laws, and that with regard to all others, we must be considered as much strangers as Governor Hindmarsh and the first settlers were to the whole native population when they raised the British standard, on their landing at Glenelg (Lendrum cited in Watson, 2011 – reference to the Grand Jury of the Supreme Court 3 November 1840).
In frontier times the judiciary of South Australia viewed our peoples as being outside British jurisdiction, but far away and at a safe distance from the violence the colonial position was amended by Crown law officers in London. What remains with us today is the ongoing business of colonialism and the unfinished business of decolonization. What began as a violent conflict between international subjects ended in the assumed domestication of Aboriginal Peoples as British subjects, all of which occurred in the falsely-declared setting of a ‘peacefully settled colony?’ At no point was our consent in the matter of becoming British subjects or Australian citizens ever obtained. The British Empire worked and the Australian state continues to work to divest Aboriginal Peoples’ sovereignty and control over our lands and laws.
Aboriginal Peoples challenge the idea that somewhere we have ‘lost’ our international juridical status as nations and peoples. Our status as sovereign peoples is not a claim to be given but one which seeks re-affirmation: we have always been whom we are. First Nations peoples are not a creation of international law; we have come to international law as pre-existing, already formed and arrived entities. We are subjects in our own right in international law. We continue to provide the opportunity for the United Nations to correct this injustice and the exclusion of Indigenous Peoples, an exclusion which is based upon racism and imperialism and calls for an end of imperialism and a beginning of a democracy that we have known in these lands from the first sunrise. We have managed and been managed by our relationships to country from time immemorial and the time we have not done so is a drop in the great ocean of time. We were here first and we are still here today.
Irene Watson belongs to the Tanganekald, Meintangk/Boandik Peoples, and is a Research Professor of Law at the University of South Australia. This paper is an extract from a report to the Independent Expert on The Promotion of a Democratic and Equitable International Order under his mandate pursuant to Human Rights Council resolutions 18/6 and 21/9 made on the 27th September 2012.