Determining the Self in Self-Determination
31.03.2021
The below is an edited version of a presentation given to the Australian National University College of Law Conference: Public Law and Inequality, 18-22 February 2022. The content of this blog draws from my doctoral research project ‘Gugu Badhun Sovereignty, Self-Determination and Nationhood’ and the work being undertaken by the Gugu Badhun Nation whilst participating in the ARC funded research project entitled Prerequisite Conditions for Indigenous Self-Government.
Determining Aboriginality: Love, Thoms v Commonwealth
The matters contained within the High Court cases of Love, Thoms v Commonwealth of Australia, and Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, speak to a broader problematic issue of state definitions of ‘Aboriginality’ — a problem for which Australian Government definitions and administrative procedures affect the day-to-day social, cultural, economic, and political life of Aboriginal and Torres Strait Islander people.
In the case of Love, Thoms v Commonwealth, the High Court ruled in a four-to-three decision that Aboriginal people with sufficient connections to their communities and country cannot be subject to legislation passed pursuant to s 51(xix) of the Australian Constitution, known as the aliens’ power, and therefore be deported. In determining the plaintiffs’ Aboriginality, all four justices in the majority (See, Bell J at [79]-[80], Nettle J at [271], Gordon J at [366]-[371], Edelman J at [458]) accepted the applicability of the tripartite test established in native title, as set down by Brennan J in Mabo v Queensland [No. 2]:
[m]embership of the Indigenous people depends on biological descent from the Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
The plaintiffs themselves relied upon the commonly used three-part test for determining whether a person meets the description of an “Aboriginal person”. In the end it was found that Mr Thoms could not be deported because it was accepted by the majority of the Court that he was Aboriginal, whilst the decision about Mr Love’s Aboriginality according to the native title tripartite test was referred to the Federal Court (there was a lack of evidence to determine whether Mr Love met the requirements of the third criteria). The agreed facts disclose that whilst Mr Thoms was recognised by the Gunggari People by way of being a common law native title holder; Mr Love was recognised by only one identified elder of the Kamilaroi group, so it wasn’t clear whether his recognition as an Kamilaroi person conformed to the traditional customs and laws of that group ([187]).
Indigenous Self-determination of cultural identity and membership
Culturally, and from a political perspective of Indigenous sovereignty, I am uneasy about the constituted order of the Australian state – in this case, the High Court, but in other instances, the Government itself – externally determining and applying the criteria of Aboriginal people’s cultural identities and ongoing connection to our lands. The reading of these cases inspired me to write about the potential of cultural identity and membership being recognised and determined by an Indigenous Nation in accordance with their traditional laws and customs, and the authority to determine cultural identity and membership being vested in the decision-making policies and procedures of an autonomous self-determining Indigenous Nation.
Treaty Federalism
One way that this could be made possible is through the concept of Treaty Federalism, which has come out of the work developed by Indigenous legal scholars in North America. Through the structural framework of Treaty Federalism, negotiations occur with each Aboriginal and Torres Strait Islander Nation. The basic idea of Treaty Federalism is that the multilateral and bilateral treaties negotiated between Indigenous Nations and Australian Governments constitute a form of exchange of political recognition through an agreed distribution of powers thereby structuring an ongoing federal constitutional relationship.
Federalism broadly defined as ‘self-rule combined with shared rule’ is a useful way to conceptualise this model of First Nations being potentially recognised within the Australian Constitution according to constitutional legal scholar Dylan Lino. Wiradjuri legal scholar, Mark McMillan, points out that federalism ‘is about the maintenance of sovereign relationships and the recognition of the status of sovereigns within a deliberately organised structure’.
The authority of an Indigenous Nation to decide cultural identity and membership could be negotiated through treaty arrangements which are based on the sovereignty drawn from the geographic territories and cultural and political jurisdiction, that facilitates autonomy and self-government of Indigenous Nations. Through this model, Indigenous Nations and the Australian State agree to share authority where there is overlapping political jurisdiction via mutual exchange of political recognition. As sovereignty has both external and internal elements associated with its exercise, Treaty Federalism is a mechanism through which both the Australian State and Aboriginal and Torres Strait Islander Nations agree which matters of their sovereignty are parallel, shared, and sometimes delegated to either party.
In lieu of amending the Constitution for such matters, Lino has proposed that these federal arrangements could be pursued either through the existing clauses of the Australian Constitution which deal with the creation of states and territories rather than through referendum, or alternatively through legislative arrangements. These legal and political frameworks present the possibility of membership of an Indigenous Nation being decided on more robust terms rather than the native title tripartite test. Nonetheless Treaty Federalism is a framework which could not only structure the authority of local level decisions of an Indigenous Nation regarding cultural identity and membership but strengthen local level claims to Indigenous sovereignty, self-determination, and self-government. However, structuring political authority is one thing, Indigenous self-government creates responsibility of Indigenous Nations to operationalise the decision-making techniques and procedures required to determine cultural identity and membership.
Indigenous Self-Government - Control and authority over membership and citizenship
At an operational level, self-determination is an ongoing process of choice, participation, and control over the decisions that affect our daily lives. However, self-determination has a cultural facet to it. It is the “right of a group of peoples to meet the human needs of that group, including the means to preserve that group’s identity and culture.” These identity and cultural rights to self-determination are also outlined within the United Nations Declaration on the Rights of Indigenous Peoples. Article 3 states that:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 33 states that:
1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.
2. Indigenous peoples have the right to determine their own structures and to select the membership of their own institutions in accordance with their own procedures.
Reading Article 3 and 33 alongside UNESCO’s description of self-determination, it follows that in exercising a right to self-determination, Indigenous Nations have a right not only to develop techniques and procedures that practice and maintain their identity and culture, and a right to the political institutions required to oversee them.
In contemporary times Aboriginal identity has become multi-layered and complex. Dispossession, and displacement of the Aboriginal population during colonial frontier violence and subsequent occupation of our ancestral homelands has meant that births now happen off country, and marriages outside of traditional marriage lines and tribal boundaries is now common. The effect of this is that Aboriginal people have multiple cultural and hereditary identities to choose from. Using the example of my cultural identity, it can be conceptualised as localised Gugu Badhun, regionally Bama or Murri depending on social context, and broadly joining up to the collective Aboriginal. Because Aboriginal cultural identity post-colonisation is now multi-layered, and because we are for the most part operationalised administratively as native title common law holders, it will be an important step in the formation and establishment of local level Indigenous political institutions not only to develop a criterion for citizenship, but to govern the techniques and procedures that the Indigenous Nation will use to determine who is and is not a member of that Nation.
Deciding who is included in membership of an Indigenous Nation requires a scaffolding of information and decisions. For example, maintaining information about who is included in a cultural identity by way of biological ancestry, or cultural adoption, and by determining which people want to participate in the internal business of the Indigenous Nation. It would involve deciding not only the eligible criteria for citizenship but designing the rights and responsibilities which flow from these terms of citizenship - including which individuals the Nation’s political institutions are accountable to, and which citizens the Nation’s Government would act on behalf of and represent politically. This type of information and decision making is essential in identifying and knowing who the self is in self-determination.
Whilst native title anthropology has been a conduit for re-connection and re-establishment of Aboriginal genealogy within the native title system, the Indigenous Nation, in exercising a sovereignty over their community and culture, must develop their own procedures to determine citizenship of their Nation. In doing this work Indigenous Nations could look to the records of our colonisers, but also maintaining our own genealogical records of births and deaths will be needed. Amalgamating traditional cultural protocols and with new bureaucratic systems and methods is inevitable if Indigenous nations want to exercise control and authority over their own membership and citizenship.
The work of Political Constitutions
Matters relating to who is and who is not a member of a Nation can be dealt with in the design and implementation of a political constitution. We can learn from examples within North America, particularly out of the work of the Native Nations Institute, at the University of Arizona. Whilst a political constitution may or may not hold legal recognition within juridical, legal, and political paradigms of Australian state-sovereignty, as an act of popular sovereignty Indigenous constitution-making constitutes a communal contract entered by citizens of the Nation. A political constitution defines the cultural values and political ideals that animate a polity distinguishing it from all others and everything else. A political constitution articulates the rules and principles for how an Indigenous Nation has agreed to be governed and exist as a nation; it also articulates the rules and principles for how an Indigenous Nation is to enter external relationships with other sovereign entities. A political constitution defines the powers, authority and function of the political institutions and governing structures which need to be put in place to give operation to and regulate the powers and functions of those governing structures of the Nation. Based on the laws and customs of the Indigenous Nation, a political constitution could also define the processes for choosing their own political representatives as per Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples; as well as assigning responsibilities within the Nation as per Article 35.
A political constitution designed by an Indigenous Nation could define its citizenry and provide mechanisms for Indigenous self-government in order to enact their own terms of citizenry. For example, the terms for citizenship and ethnicity; qualifications for citizenship; establishing citizenship; surrendering or revoking citizenship; whether dual or multiple citizenships of other tribal groups are allowed and very importantly, resolving questions or disputes regarding citizenship. Once an Indigenous Nation has identified who is a citizen then they can begin to understand and respond to the needs of its constituency.
All of this work is important preparation before Indigenous Nations enter into Treaty negotiations. It will also be relevant to the necessary, important work of building and designing a constitutionally enshrined Voice to Parliament which would incorporate and structure the political voice and representation of each and every Aboriginal and Torres Strait Islander Nation. Indigenous Nations must have the necessary policies, procedures, and technologies for developing, endorsing, implementing, reviewing, representing, and resetting the collective aspirations of its constituency — and in addition to this, Indigenous Nations must have the established political institutions and structures for self-government that to monitor, report, oversee and represent them. This is because self-determination creates rules, goals, and aspirations — it also creates expectations, rights, roles, responsibilities, and obligations through the requirement for autonomy and self-government.
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Janine Gertz is a Lecturer at UNSW’s Nura Gili Indigenous Programs, and a researcher at UNSW Indigenous Law Centre.
