Missed meanings: the language of sovereignty in the treaty debate.

• Jurisdiction: Australia
• Date: 01 January 2002
• Author: Strelein, Lisa

In the ten years since the High Court's recognition of native title in the Mabo case, there has been intense scrutiny of the outcomes achieved through that recognition. For the most part this has focused on the number of successful determinations and the content of the rights reflected in those determinations. For those of us who look further afield at the changes in the political and legal environment occasioned by the recognition of native title, there is a stark contrast between the potential limits of native title, as evidenced in the adverse outcome in the appeal of the Yorta Yorta Nations, and the larger possibilities of the emergence of Indigenous rights to self-government.

ATSIC chairman Geoff Clark has repeatedly suggested that the native title process has failed and has called for greater energy to be devoted to a treaty process. (1) It has therefore been assumed that there is a necessary disjunction between native title and a treaty process. I have argued elsewhere that native title as a property right cannot be separated from native title as a self-government right. (2) The process of determination and negotiation of Indigenous Land Use Agreements establishes Indigenous peoples as one group among hundreds of interest holders and, in its current form, does not adequately recognize the status of native title holding groups as political, legal and social entities. This is despite the fact that the establishment of these elements is part of the proof of native title. Recognition of a collective interest in land, which is demonstrated through proof of Indigenous peoples' status as lawmakers, necessarily involves the recognition of a sphere of Indigenous authority and autonomy. I will argue that native title in this sense is a recognition of an Indigenous or inherent sovereignty, as I understand that term, residing in Indigenous peoples. This is not a completely outlandish leap to make. Indeed, this necessary connection has been made recently in Canada, both in federal policy and by the courts. (3)

I do not subscribe to the view that Indigenous rights to self-government and the recognition of Indigenous sovereignty are precluded under modern common law. It is my understanding that while the international status of Australian state sovereignty is non-justiciable, the internal ordering of authority and jurisdiction and the consequences of settlement as a matter of domestic law are within the purview of the High Court. (4) The question is, would the Court recognize it? It would take a much longer treatise than afforded in this article to comprehensively answer that question, but a large part of the answer lies in how the courts understand the concept of sovereignty.

In Australia we are seeing a gradual recognition that native title claims cannot be successfully separated from the claims that Indigenous peoples make, as peoples, directly against the state. This has been recognized in part through the emergence of state framework agreements and, more recently, through proposed comprehensive agreement or settlement processes in Western Australia and South Australia. There is a recognized need on both sides that Indigenous peoples and state governments must engage in direct dialogue with each other, without the multitude of parties involved in a native title process. This process requires a dialogue in which each side seeks to understand the claims of the other, as well as the language each side uses to express these claims. To move beyond the simplistic assertion that the question of sovereignty is not open to debate, we must go beyond rhetoric and delve deeper into the conceptual issues at stake. The idea of there being competing claims of sovereignty presents one of the most difficult conceptual issues in the debate. The state claims that Australian sovereignty is indivisible. Indigenous peoples worry that in entering into a treaty they would give up their sovereignty as Indigenous peoples. Both sides rely on the concept of sovereignty, yet their perspectives are so far apart. This raises the questions of what kind of sovereignty each party is speaking about, and whether divergent concepts can be accommodated through political negotiation.

Indigenous Peoples' Claims and the Language of Sovereignty

First, I want to examine the idea of Indigenous sovereignty and the language that Indigenous peoples use to assert their claims against the state. The assertion of identity, autonomy and authority, and demands for recognition and respect from the colonial state, have led Indigenous peoples to embrace the language of self-determination and sovereignty. The attraction of this language is as much in the force of its imagery, as in its meaning or its application in international law and politics. The choice of language is by no means arbitrary. While it has been suggested that these terms will 'scare the horses' and should therefore be jettisoned, they have important implications that draw on other struggles for independence and recognition.

Robert Williams Jr has suggested that the language Indigenous peoples adopt is often 'an act of self-defence' because it 'enables indigenous peoples to understand and express their oppression in terms that are meaningful to them and to their oppressors'. (5) But I sometimes wonder if we as non-Indigenous people, especially in legal and public policy debates, are sufficiently reflective about the conceptions of sovereignty that are readily employed to deny Indigenous claims. In our recent history, mainstream Australia has been much more comfortable with the concept of 'self-determination' than with the concept of 'Indigenous sovereignty'. This is an odd dichotomy because the two concepts are linked in Indigenous claims.

Self-determination has been used by Indigenous peoples to describe the broad array of claims made against the state as peoples--from claims to equality and freedom from discrimination asserted collectively, to claims to self-government, land-title and recognition by the liberal polity of Indigenous laws and institutions. These are not claims for special rights or privileges. Rather, they are claims for recognition of the prior and continuing authority of Indigenous peoples as the first peoples of the land that was colonized as Australia. This issue of respect for a prior and distinct status and identity is fundamental to Indigenous peoples' claims against the state and is an essential part of the language that is used. Self-determination, for example, has been expressed in international law as the freedom of a people to determine its own political status, and the freedom to pursue its economic, social and cultural development. (6) The idea of 'self' and identity, and the power to 'determine', seems to provide recognition of the many aspirations implicit in Indigenous peoples' claims. But it is the emphasis on process that is imperative.

The possibility of territorial and non-territorial autonomy remains central to the self-determination process. (7) However, selfdetermination is not, in itself, secession or self-government, or the right to vote. Rather, it is seen as a statement of principle: that whatever the nature of the institutions of government, they must be chosen by the freely expressed will of the people. (8) In this sense, self-determination as a process, it has been argued, should be viewed as a continuum of outcomes up to and including secession. (9)

Many Indigenous peoples also voice their claims in the language of sovereignty. Although the understanding of sovereignty may be different to that put forward by the state, the appeal of sovereignty, similar to that of self-determination, is that it allows a people to 'project onto it a promise of most of their political, sociocultural, and economic aspirations'. (10) The characteristic of self-rule is implicit in these claims, but so too is the notion of personal autonomy. (11) In non-Indigenous legal and political theory, self-determination has been associated with the conventions of modern theories of sovereignty and statehood. The impact of this association is significant because states, governments and many theorists use the rhetoric of state sovereignty to preclude recognition of Indigenous peoples' claims.

The difficulty for Indigenous peoples, then, is that the legitimacy of demands for the recognition of sovereignty, nationhood, self-determination or self-government are all assessed by non-Indigenous participants in the debate in terms that presume the very universals under challenge. (12) When Indigenous peoples voice their claims in the language of self-determination and sovereignty...