We must reject colonial legal concepts to revive Indigenous rights

After more than 80,000 years of Indigenous sovereignty and 233 years of colonisation in Australia, governments have been slow to enact human rights norms, advance recognition and meaningfully reset Indigenous and non-Indigenous relations. Global emergencies such as climate change, pandemics and water security, as well as domestic threats, are further diminishing the capacity and living standards of Aboriginal and Torres Strait Islander peoples.

It’s well past time for Australia to address its impasse on the recognition of the First Peoples of this ancient land and value their sovereignty. After centuries of harm to First Nations Australians, national truth-telling, a federal treaty, federal constitutional recognition and amending Australia’s Constitution to include the Uluru Statement from the Heart in the preamble are among the reforms now at hand.

The Uluru Statement is an opportunity for healing, recognition and restoration of integrity. It is a concrete step to integrate and respect Indigenous ways of knowing, sovereignty and human rights in contemporary Australia.

However, embarking on the structural reform needed to realise the Uluru Statement and move towards justice first requires our society and governments to reject the colonial concept of the ‘Doctrine of Discovery’.

Under early international law, previously known as the Law of Nations, the doctrine sanctioned Christian European monarchies and states to ‘discover’ and seize lands inhabited by non-Christian, Indigenous Peoples. Because inhabitants of these territories were not Christian, they were not considered human, and thus the lands were deemed empty, belonging to no one, or terra nullius.

A United Nations study on the impact of the doctrine upon sovereign Indigenous Peoples referred to it as the ‘Framework of Dominance’ because of the human rights violations perpetuated upon Indigenous Peoples by settler colonies and state actors for more than 500 years.

Domestic and international law has long facilitated this framework, which has had devastating intergenerational consequences.

The historical reality is that Australia is a Black nation and the sovereignty, or self-governing authority, of First Peoples was never ceded.

While Indigenous Peoples across Australia exercise their laws, customs and practices, the co-existence of two sovereign nations has not been an accepted premise in law — neither by the Crown nor by the Australian courts. Australia as a nation-state has, and continues to implement, strategies to exclude, control and marginalise the cultural and economic rights and interests of Aboriginal and Torres Strait Islander peoples.

In Australia, Western legal interpretations poorly conceptualise or ignore Indigenous laws. Aboriginal creation stories determine that water is inseparable from the land, but by legislating the separation of water from the land Australian governments and courts continue and expand the Framework of Dominance. What then is the likelihood of reshaping Australia’s policy and laws, and contemporary international standards, when the vestiges of the Framework of Dominance are still institutionalised?

The foundation of the Uluru Statement is that Indigenous Peoples’ rights should “co-exist with the sovereignty of the Crown”. This premise is supported by the need for truth-telling about Australia’s settler and contemporary history, privileging Indigenous voices on matters of policy and law-making, and reforms executed by treaty between Indigenous Peoples and Australia.

Now, as we look to a referendum on an Indigenous Voice to Parliament, many questions remain. Is there sufficient will in our society to reconfigure Australia’s federalism to include Indigenous Peoples at its heart? Do contemporary international laws provide opportunities to challenge the racialised construct of the Framework of Dominance?

So long as the concept of discovery and acceptance of invader sovereignty are instilled in every facet of Australia’s nation-building, then every facet of Indigenous Peoples’ laws, culture and values are diminished. The lands and waters of the First Peoples of Australia were never lost and were never discovered. Indigenous Peoples will tell you: always was, always will be Aboriginal land.