‘Sovereignty’ and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments

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1. Introduction

‘We recognise that this land and its waters were settled as colonies without treaty or consent.’
Prime Minister John Howard, 11 May 20001
‘A nation … does not make a treaty with itself.’

Prime Minister John Howard, 29 May 20002

The first statement by Prime Minister John Howard is a matter of fact. From that fact flows a sense of grievance, felt by many Indigenous people and shared by many other Australians, that ultimate political and legal authority — or ‘sovereignty’ — was never properly secured by the Crown over the Australian landmass. The second statement is an assertion. It suggests that it is impossible to use a treaty to remedy the way that the continent was settled and the Australian nation constructed. The difficulty, it has been argued, is that ‘implicit in the nature of a treaty is recognition of another sovereignty, a nation within Australia’.3 Whether Indigenous people have the power and authority as a matter of law to negotiate and enter into such agreements lies at the heart of the contemporary treaty debate in Australia. This is a difficult question because the concept of sovereignty is elusive and there is no constitutional recognition of Indigenous people or their place within the Australian nation.4 Using Australian and comparative public law principles, this paper explores whether ‘sovereignty’ is indeed a roadblock to a modern-day treaty or treaties5 between Indigenous peoples and the wider Australian community.6

We begin by examining the origins of the term ‘sovereignty’ and the various meanings it has acquired over past centuries. From this diversity of meanings, we identify key themes relevant to the current Australian debate about treaty-making. We explore how the concept of sovereignty has been used in Australia by Indigenous peoples, government and the courts. We then look at how it has been applied by governments, courts and Indigenous people in other comparable English-speaking countries where the relationship between Indigenous peoples and the settler state is an ongoing source of political and legal concern. Finally, we discuss sovereignty within the context of some public law and policy objections that have been made to negotiating a treaty settlement in Australia.

In this article, we find that debates about sovereignty are important — they deal with the most fundamental questions of legitimate power and authority — but they do not appear to be inherently unresolvable.7 After examining the different meanings of the term and the different ways that Australia and other countries have wrestled with its dilemmas, we conclude that as a matter of public law the concept of sovereignty itself poses no roadblock to moving forward with a process of treaty-making. In discussing the possibility of modern treaty-making in Australia we take a broad view of what a ‘treaty’ or treaty-like agreement might be.8 Essentially we apply the term to comprehensive agreements reached between Indigenous peoples and governments that have a political or governmental character, that involve mutual recognition of the respective jurisdiction each side exercises in entering into the agreement and that have a binding legal effect.9 Whether or not such a process is desirable, and what any treaty might contain, are separate questions of politics and policy not addressed in this article.

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