A ‘Kind of Sovereignty’: Toward A Framework for the Recognition of First Nations Sovereignties at Common Law' by James Aird and Allan Ardill in (2023) 46(2) Melbourne University Law Review (forthcoming) comments
The common law rejects ‘Aboriginal sovereignty’ as being inconsistent with Crown sovereignty. Yet the common law defines ‘Aboriginal sovereignty’ as a single, homogenous sovereignty adverse to the Crown. The position at common law differs from the literature by First Australians which maintains that their sovereignties are a spiritual notion, have not been ceded, and are heterogeneous. In the same way that the Uluru Statement from the Heart conceives of its authors’ sovereignty as ‘shining through’ legal and political institutions, this article contends that the recognition of additional rights at common law would be an implicit recognition of sovereignty. This article puts forward three interconnected and alternate sources for such rights: as additional land-related rights as presupposed by native title, via the ‘preferable rule’ in Mabo, or via the connection to land as identified in Love.
The authors argue
In Love v Commonwealth (‘Love’), in a 4:3 split, the High Court ruled that First Australians who were also non-citizens could not be deported as ‘aliens’ within the meaning of s 51(xix) of the Constitution. The four majority justices, while disavowing the word ‘sovereignty’, differed on the underlying principle prohibiting the deportation. Chief Justice Kiefel in dissent, however, was clear:
[T]he legal status of a person as a ‘non-citizen, non-alien’ would follow from a determination by the Elders, or other persons having traditional authority amongst a particular group, that the person was a member of that group. To accept this effect would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo [No 2] — by reason of the fact of British sovereignty and the possibility that native title might be extinguished — and expressly rejected in subsequent cases.
The cases cited by Kiefel CJ as rejecting ‘Aboriginal sovereignty’ maintain that ‘Aboriginal sovereignty’ is not compatible with Crown sovereignty. However, this article contends that the rejection of ‘Aboriginal sovereignty’ is really a rejection of a single, homogenous, Eurocentric, state-kind of sovereignty conceived as ‘adverse to’ the Crown. This article further contends that, on this basis, the notion of ‘Aboriginal sovereignty’ rejected by the common law is different to sovereignty as conceived by First Australians.
The Uluru Statement from the Heart (‘Uluru Statement’) pronounced that the authors’ ancient sovereignties are a spiritual notion coexisting with Crown sovereignty which ‘can shine through as a fuller expression of Australia’s nationhood’. It follows that the Uluru Statement does not conceive of its authors’ sovereignties as a Eurocentric kind of sovereignty but instead as a ‘spiritual notion’ that exists outside of the law but that can nevertheless interact with it. Therefore, the two reforms proposed by the Referendum Council — a First Nations constitutional Voice to Parliament and an extra-constitutional Declaration enacted by all Australian parliaments — are not the authors’ sovereignties but rather incidents of sovereignty shining through the Constitution and Acts of Parliament. This article contends that, in the same way, rights that may arise at common law and vest in First Nations would be incidents of First Nations’ sovereignty shining through, or being recognised, at common law. Indeed, while the High Court clings to the notion of an undivided Eurocentric sovereignty to refuse First Nations sovereignties, it also houses an emergent degree of recognition of the continuity of certain elements of First Nations sovereignties (eg the authority of elders to determine membership and the existence of traditional law and custom underpinning native title). Thus, this article aims to navigate this tension in the jurisprudence by proposing a framework for how First Nations sovereignties might continue via the recognition of other land-related rights.
The relevant right for the purpose of this article is a right to self-government to protect traditional authority in relation to land. We contend that, based on current authority, it is possible to argue that the common law can recognise other land-related rights in addition to native title. A successful argument for an additional right should accord with the Uluru Statement’s conception of sovereignty: that is, sovereignty as an ancient, spiritual notion shining through the common law as a fuller expression of Australian law.
It should be said from the outset that it is not our view that common law recognition of First Nations sovereignties would be sufficiently broad as to satisfy all the aspirations tied up in First Australians’ understandings of sovereignty. This would be beyond the common law and necessarily raises issues of international law which the High Court has determined to be non-justiciable. Any common law recognition of a specific First Nations right would complement the important political action, treaties, and international law advocacy taking place. This article aims to supplement the recent literature surrounding the Uluru Statement, emphasising constitutional recognition to argue that common law principles are not necessarily inimical to First Nations sovereignties.
Any attempt to synthesise First Australians’ understanding of their sovereignties is prone to criticism, not least because such an undertaking is an attempt to ‘speak for’ First Australians. Part II argues that despite the complex and at times disparate literature, four fundamental propositions emerge: knowledge by First Australians has developed since Mabo v Queensland [No 2] (‘Mabo’); First Nations sovereignties have never been ceded; those sovereignties are heterogeneous; and they are fundamentally and inextricably in connection with land.
Part III reviews the common law concept of ‘Aboriginal sovereignty’ and outlines three interconnected possible sources of other land-related rights. The conceptual distinction that animates this part is the difference between Aboriginal title to land on the one hand, and other land-related rights on the other. There is some slippage between these concepts and this distinction, we argue, is under-interrogated as a matter of Australian scholarship and law. To this end, we acknowledge the body of research, mostly from North America, based on the research of McNeil, Secher, Slattery and Walters, which was applied generally to British colonies and which applied earlier Australian law. This literature has informed our analysis of more recent Australian case law although we do not rely on it for the arguments we advance here. Instead, we focus on Australian judicial pronouncements and occasionally refer to this literature where that is appropriate.
Following the Coe v Commonwealth (‘Coe’) cases, Crown sovereignty has been conceptualised so that the judicial focus has been on the narrow colonial concept of native title at the expense of recognising other land-related rights. Yet other land-related rights may expose sovereignties as interdependent, related, and connected ways of knowing and being. The three possible sources for other land-related rights identified in this part are those presupposed by native title, or arising via the ‘preferable rule’ in Mabo or via the connection to land as explicated in Love. Notwithstanding which source of other land-related rights is argued, Part IV puts forward considerations that any such argument must confront. The primary consideration is that any argument must be consistent with the act of state doctrine and must therefore be conceptualised as an effect of the Crown’s assertion of sovereignty rather than framed as ‘adverse to’ Crown sovereignty. In addition, such arguments must not be parallel to the Crown’s lawmaking function and must be consistent with decided cases, including Walker v New South Wales (‘Walker’).
Consistently with respectful research protocols, we introduce ourselves as Australian-born men. One of us speaks with maternal English–German ancestry and paternal Scottish–Yugambeh ancestry, and the other speaks with maternal Irish–German ancestry and paternal English–Irish ancestry. We recognise this article would not have been possible to write without the knowledge, wisdom, history and experience of First Australians, both past and present. We also draw upon the literature written by other Australians. Often this latter body of literature recognises various forms of the continuing lived nature of First Nations sovereignties but tends to assume that the High Court has closed the door on any common law recognition of First Nations sovereignties or regards political action as more promising. This body of literature tends to urge recognition of First Nations sovereignties through political action, treaties, international law, or a combination of these.
