Australian Republic & indigenous Sovereignty

Two things worried me while reading Mark McKenna’s powerful Moment of Truth. First is that he, along with others writing in The Monthly & The Guardian, brings together the issues of an Australian republic and of a settlement with Aboriginal Australia, arguing that Australia will soon have the opportunity to become a republic and also “to achieve a meaningful constitutional settlement with Indigenous Australians. If these changes are to have any realistic prospect of success, we need to articulate a more cohesive and unified vision, one that understands the crucial importance of truth-telling” In this process, “acknowledging the past … will not weigh us down. It will liberate us.” (pp.16-17).

Second is the Uluru Statement’s view of Aboriginal sovereignty– quoted with obvious approval at the beginning of McKenna’s essay – as “a spiritual notion: the ancestral tie between the land … and the Aboriginal and Torres Strait Islander peoples who were born therefrom”. Here, sovereignty is not used in the conventional sense that most of the world has inherited from the territorial settlements of sixteenth and seventeenth century Europe: sovereignty as tied to a specific territory, with the sovereign – a state or Royal of some kind – holding supreme power within its own territory and acting independently outside. (This formulation suggests that sovereignty in the conventional sense must be exclusive but the reality is not so tidy.) To note that the Uluru view of sovereignty is unconventional is to say no more than that there are differences to be explored and, hopefully, understood & respected. Sovereignty in the conventional Western sense involves a legal & military/political link to the land – which both Britain & Argentina appealed to in the 1982 war – but not a spiritual tie in the sense stressed by the Uluru statement. Nor is this spiritual tie just an Australian version of nineteenth century European – and recent American – racist appeals to blut und boden (blood & soil)

Well before I finished McKenna’s Essay, I had put these two worries behind me. To explain the worries and why they no longer bother me in the same way, I should begin by confessing that I write as a recovering academic, that is, as suffering an unhealthy – and certainly unAustralian – addiction to identifying the steps in an argument and establishing how well they work. Since crucial steps are frequently slipped over in silence or buried in a maze of chatter that, however engaging it might be in other respects, is hardly consequential to the issue at hand, this can be both challenging & time-consuming.

When I finally settled in Australia in 1987, I was already a British anti-monarchist. I hardly needed persuading to support Australian republicanism but it took me a while to appreciate the importance of a Settlement with Aboriginal Australia and even longer to grasp why anyone would put these two issues together.

My main problem with Australian republicanism was that too many of its supporters favoured a minimalist republic, one that would change as little as possible outside the formal break with Britain – trying to sell the republican idea as if the break with British Royals would leave Australia much as it had been before. Writing in The Monthly (‘The republic is an Aboriginal issue’, April 2018), Megan Davis asks “whether the Australia on the other side of a successful referendum for a republic [would be] the same as the Australia on this side. Lipstick on a pig …. If Uluru had zero impact on Australian republicans… [H]ow can [indigenous Australians] rely on the reassurance of the political elite who say, “Let’s get a republic up and we will deal with your issues later.” It ain’t gonna happen.” Of course it ain’t.

I have never been impressed by the argument that Australia needs an Australian Head of State instead of the British Monarchs we seem to be stuck with. The problem with having British Monarchs as Head of State seems to me less that they are British than that they are Monarchs. We could dissolve the British connection simply by adopting, say, a junior member of theThai or Japanese Royal Families, assuming they would have us, and avoid dependence on foreigners altogether by adopting a Packer, Rinehart, Downer, Turnbull or even a repatriated Murdoch dynasty – but who would regard any of these as improving on the Windsor/Saxe-Coburg-Gotha model? Monarchs on the British mould are no mere symbols, as Australians realised in 1975. They are capstones holding up ugly & divisive hierarchies – various kinds of honour & prestige, landed property and other kinds of wealth, etc. The UK has more complex & elaborate hierarchies than Australians have yet had sufficient time or imagination to establish.

Well before the end of McKenna’s Essay, I was persuaded of the need for a Settlement with Aboriginal Australia and I also found myself agreeing that the two issues – Republic and Settlement – belong together. Yet the argument for this last point is not easy to identify and this was one of the things that made me uncomfortable. How could people I respected be persuaded of something in the absence of formally compelling argument?

One way to approach this question would be through the archaic notion of a self-evident truth which appears in the final draft of the American Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Self-evident here means something like ‘so clear or obvious that no proof or explanation is required’ This works for me. Before I even finished McKenna’s Essay, I needed no further proof or explanation.

Yet, there were clearly other things going on among the Americans. If a truth is self-evident the opening ‘We hold’ adds nothing. The sentence might well start “These truths are self-evident” or even “It is self-evident that all men…” Alternatively, turning the issue around, we might ask whether the opening ‘we hold’ is actually doing any real work. I suspect that it is saying something about who belongs in the Declaration’s collective “We”, meaning we who share a common set of beliefs (an important part of what social scientists would now call culture.) So, it means roughly “We, people like us, believe… Others (who are not like us, Native Americans, say, or Black Slaves) believe differently.”

If this is a useful way to look at the case for placing Republic and Settlement together, then we – who need no persuasion – have to admit that there are Australians, including many Coalition parliamentarians, who would not be affected by reading Moment of Truth, The Uluru Statement or Megan Davis’ Monthly article quoted above. Acknowledging the past is one thing; facing up to its contemporary ramifications is something else. Perhaps teaching more honest Australian history, which many of our historians are now busy writing, would do the trick. But, perhaps not. Perhaps this is just another illusion of the intellectuals, the belief that people will admit the truth when we present it to them. Perhaps, Howard knew what he was doing when he launched his History Wars.

Turning now to the issue of sovereignty, if the sovereign is seen as holding supreme power within its own territory and acting independently outside then sovereignty will be regarded as exclusive in the sense sovereignties cannot overlap in a territory. Give or take uncomfortable complications, this implication of the conventional Western view of sovereignty is rarely questioned. Partly for this reason, many commentators are uncomfortable with the proposal that Jerusalem should be the capital of both an Israeli and a Palestinian State – but their discomfort is not a good reason for abandoning an otherwise promising proposal.

Among these complications, two are particularly worth noting here: first, nineteenth-century European powers & the USA imposed concessions on imperial China and the Ottoman Empire which ensured that American, British, French or Dutch commercial law operated in limited regions in or near Shanghai & Istanbul; second, the diplomatic convention that selectively insulates many Embassy staff & their buildings & grounds from the laws of the host country, in part by treating the latter as belonging to the territory of another independent state. This diplomatic pretence enables Julian Assange, for example, to safely ignore many British laws as long as he stays within the Ecuadorian Embassy. Such complications are worth recognising as precedents showing the possibility of overlapping sovereignties whatever we think of the manner in which it was achieved. I noted earlier that the sovereignty asserted in the Uluru Statement’s sense seems to be radically distinct from the conventional account of sovereignty as a political/territorial notion. The Statement also insists that “[i]t has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.”

So, from the perspective of Aboriginal sovereignty, there is no reason it cannot coexist with a different sovereignty in the conventional sense. The question is whether the conventional understanding of sovereignty could be equally accepting. The examples of diplomatic convention and concessions imposed by Western powers offer precedents of a kind but we should be wary of accepting them. The Aboriginal sovereignty we are invited to recognise today is not like the limited sovereignty we accord to the Chinese or American embassies in Canberra – there is no independent Aboriginal state of which the tent embassy in Canberra could be regarded as an extension – nor is it a concession imposed on the rest of us by Aboriginal Australia.

Another precedent we would do well to avoid is the notion of domestic dependent nation developed in a series of judgments by US Supreme Court Justice Marshall in the early nineteenth century. Marshall’s conceptual innovation proved to be a mixed blessing for native Americans (See Patrick Wolfe’s useful discussion in Traces of History). On the one hand, it gave (some) American tribes legal standing in the USA, allowing them to enter legally-binding agreements and to bring cases to court. On the other hand, it recognised (some) tribes as distinct but not independent nations: they were not sovereign bodies with which US Governments could make truly international treaties, of the kind it made, for example, with Britain, China, France, Germany & Japan; & earlier treaties between USA and native tribes no longer had the legal force of treaties with sovereign independent states. A Treaty between Australia and a domestic dependent indigenous nation would be worth little more than the paper or bark on which it was written.

While it is easy enough to find precedents for the possibility of overlapping sovereignty, the examples noted here all present unequal relationships in which the dominant party concedes, voluntarily or under threat of force, a partial sovereignty to the other. If this is the best the conventional understanding of sovereignty has to offer indigenous Australia, it is unlikely to be acceptable.

Does this mean that a Settlement with indigenousAustralia is too hard to even contemplate, that we need to aim for a different – some would say a lesser – outcome? Not necessarily. What we desperately need is the jurisprudential creativity – of the quality we saw, for example, in the Uluru Statement, for that matter, the High Court’s Mabo judgment – to rework the conventional understanding of sovereignty so that it could recognise indigenous Australia and the Australian state as formally equal parties – much as it enables USA and Mexico to treat together as formal equals. Fortunately, there are outstanding constitutional lawyers in Australia, one of whom appears to have been involved in drafting the Uluru Statement.

We also need a Government willing to turn a sympathetic ear – unlike the wilfully tin ear the Coalition Government turned to the Uluru Statement. The polls suggest we may be lucky enough to get one before too long.

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