'Strange situation': Why Australia must strike a treaty

In ringing tones the Uluru Statement declares the Aboriginal and Torres Strait Islander tribes were the first sovereign nations of the Australian continent and possessed it under their own laws and customs. Sovereignty has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. There is, as well, demand for a Voice to Parliament and national commitment to truth telling. But the question of sovereignty overshadows every other consideration.

The statement’s intellectual confidence stands in notable contrast to the confusion about sovereignty in mainstream Australia. I published a book on the subject more than 20 years ago and discussed it with audiences all over the country. The ignorance and misunderstanding I encountered at the time is still with us.

Cook’s declaration of sovereignty over Eastern Australia at Possession Island in 1770 is a major source of the confusion. There is a widespread belief that it was a defining moment and after that the legal situation was settled, that discovery had, in effect, won half a continent for the British crown. Two serious misconceptions are involved. In a legal sense Cook did not discover eastern Australia. The great 17th century Dutch jurist Hugo Grotius declared that it was shameless to "claim for oneself by right of discovery what is held by another ... for discovery applies to those things which belong to no one".

John Alexander Gilfillan's 1889 painting "Captain Cook taking possession of the Australian continent on behalf of the British Crown".Credit: AAP

The second relates to what a claim like Cook’s actually meant. It was an assertion of priority which was directed outward to competing European powers and not inward to the Indigenous nations. The law was succinctly defined by Chief Justice John Marshall in the American Supreme Court in 1832. Such claims of discovery "asserted a title against Europeans only and were considered as blank pages so far as the rights of the natives were concerned".

So if Cook didn’t extinguish Indigenous sovereignty in 1770 who did and how and when? At present there is no viable judicial explanation. Indeed our courts have avoided the question. This leaves Australia unable to explain itself either to our First Nations or to the wider world. It is a very strange situation to be in.

It would have remained manageable if we continued to accept the declaration made in the Privy Council in 1889 that in 1788 Australia was "practically uninhabited without settled inhabitants" who therefore had no sovereignty meaning that the Crown acquired an original rather than a derived sovereignty. This precedent overshadowed Australian courts until the Australia Act of 1986 and above all the Mabo judgment in 1992. Its importance notwithstanding, it did not consider the question of sovereignty. But the implications were highly relevant to the question and, at the same time, far reaching. The court recognised that in 1788 the First Nations were in possession of their traditional homelands and managed their ownership by laws and customs which could be recognised by the common law. These laws applied to specific areas of traditional land which had definite and recognised borders. The implication was inescapable. The First Nations exercised sovereignty over every corner of the continent.

Eddie Koiki Mabo and his legal team at the High Court of Australia 1991.Credit: SMH

So what happened to it? The relevant law has been settled for centuries. Sovereignty can be lost or acquired either by conquest or treaty. Australia, as we know, did not have treaties unlike Canada, the US and New Zealand. Was it conquest then? Is that what the frontier wars were about? It is not a conclusion that Australia has ever wanted to accept. So we are left with momentous, unanswered questions. Do we, as the Uluru statement asserted, have a shared sovereignty? Are there large areas of the continent where the First Nations are not merely the holders of native title but also, at very least, of remnant sovereignty? Should customary law, therefore, be recognised as a contributing element in a system of legal pluralism?

Clearly Australia cannot go on avoiding the question of treaty making. A Voice to Parliament will be an important innovation but it does not touch the underlying problem of First Nations' sovereignty.
Two things are required. We need a national treaty negotiated between the Australian state and a representative body of the First Nations starting from the position that the Indigenous people bring their sovereignty to the table and sit down to negotiate as equals. But there should also be a process which could emulate the Canadian model of regional treaty making based on the premise of the Indigenous right to self-government. Since 1975 regional treaties have been signed covering most of the country’s north.

Comparable Australian treaties would have to relate to large enough areas to make regional self-government viable. But it would be a fundamental step in a process of returning local decision making back to communities. It would also represent the critical step towards the decolonisation of large areas of the continent where the First Nations have regained their traditional lands.

In the long run regional self-government may be as important as having a voice at the national level. The future of vast areas of the continent is in question including places of critical strategic importance like the Tiwi Islands and Torres Strait. The wellbeing of remote communities is also at stake and with it the continuing survival of language and culture. This is a responsibility of the deepest importance for which Australia will have to answer to world opinion.

Henry Reynolds is an Australian historian whose primary work has focused on the frontier conflict between European settlers and Indigenous Australians. His latest book This Whispering in Our Hearts Revisited is published by NewSouth Books.