Can we evoke a critical form of solidarity using the emancipatory recognition of Indigenous sovereignty?
Any critical solidarity finds difficulty in acknowledging Indigenous populations and refugees as “people forced to the edges of Australian society”, as stated by Walter Shaw from the Tangentyere Council, without running the risk of constructing a dangerous narrative of ‘outsiderness’, disenfranchising the traditional ownership of territory, or reifying a culture of minority solidarity which marginalises difference. However, recent campaigns have emphasised the correlation between the detention and displacement of Indigenous and refugee populations in a way which may have critical traction: taking account of the high rate of incarceration — in which, for example, indigenous children are 24 times more likely to be detained than non-indigenous children, and often followed by deaths in custody , reverberates with uneasy echoes of reports of violent degradation in detention on Nauru.
“The Australian Government must stop imprisoning Indigenous people, and they must stop imprisoning asylum seekers. I am proud to welcome people in need into our community”, Ray Jackson, President of the Indigenous Social Justice Association, stated upon the ceremonial issuing of passports on behalf of Australia’s First Peoples to two Tamil men who had been indefinitely detained. In 2010, at a support rally in Melbourne for 255 Sri Lankan Tamil refugees who had been marooned by the Australian government at the port of Marek, Aboriginal activist Robbie Thorpe argued that “we want to make it clear that Aboriginal people, the true sovereigns of this land, are offering them a passport to enter into our territorial waters, and our land”. Indeed, such recognition is reciprocal with RISE, an organisation run by refugees, asylum seekers and ex-detainees based in Melbourne, condemning the government’s closure and evictions of Aboriginal communities and supporting protests in solidarity, stating that:
As settled and newly arrived refugee communities seeking protection and freedom, we acknowledge that we live on colonised land where the Indigenous peoples are the traditional owners and sovereignty was never ceded.
In July 2016, RISE held an event entitled ‘Sovereignty and Sanctuary’ together with Warriors of the Aboriginal Resistance (WAR), where WAR’s Meriki Onus stated that “RISE’s commitment to accepting Aboriginal passports, Aboriginal law and customary law is refreshing and paves the way for all newcomers to this country.”
As Walter Shaw from the Tangentyere Council argues:
People from some of the most disadvantaged nations on earth choose to jump on a rusty old boat and risk their lives over dangerous seas. They come with nothing more than the shirt on their back to seek asylum in a country they believe offers them the best shot at a way of life everyone deserves — a life where basic human rights and dignity are respected. These are the very same rights denied to my people.
Indeed, in 2009 following the Northern Territory Emergency Response, a request was issued to register the Alyawarra Nation under the international refugee convention as internally displaced persons to the United Nations special rapporteur, who was visiting the Northern Territory last week. The validity of this request was disputed by Professor Mary Crock from the University of Sydney, who emphasised the specificity of the recognition of a “refugee” under international law as pertaining only to those who have crossed international borders, “So”, she argued, “you can’t be a refugee within your own territory.”
It then falls to critical scholars to engage with a broader collective acknowledgement of the relationship between people and territory. Even with the development of international norms and global legal jurisdictions, it can be argued than Emer de Vattel’s ‘statist paradigm’ maintains a resistant hold, in which the legal world is structured into constitutionally defined territories. Through this conception of citizenship, legitimacy is derived from the cohesive regulatory will of a collective body thickly bordered by historical claims to a specific territory. Beyond the national there is only the ‘inter’national, the latter a network of bodies deriving authority singularly from the links between the former. Thus, reconceptualising this connection between people and territory is fundamentally disruptive to the narrative of the nation, demonstrating the fallibility of its construction. Where there is no territorial claim or cohesive strategies refugees and Indigenous peoples are easily exorcised from definitions of contemporary citizenship, as sovereignty is irrevocably intertwined with territorial claims to sovereign belonging.
Jérémie Gilbert argues that human rights law — specifically in the field of indigenous rights — is the forum in which alternative relationships between people and territory has been acknowledged, recognizing that ‘different cultural legal systems could co-exist’ within a single territory. However, placing undue emphasis on the value of minority rights could, ultimately, be disenfranchising. In the light of detention and ongoing discrimination — for example, where Aboriginal people represent only 3% of the total population, yet more than 28% of Australia’s prison population are Aboriginal, and recognising the violence and deprivation encountered though ‘offshore processing‘ of refugees and asylum seekers on Nauru and Manus — there is evidently a pressing need to acknowledge a form of solidarity which challenges the singularity of a territorial model of belonging predicated on ownership and settlement, without reifying a narrative of ‘outsiderness’ and/or assumptions of mythical anachronism. Greater exposure and disruption of the connection between demarcated land ownership, ongoing practices of colonialism and border protection, and the consequences therein for legal identities, will enable an effective forum in which international human rights can acknowledge spatiality differently, by explicitly playing a role in the critique of the idea of a settled or constant spatial order.
Gilbert contends that the definition of what constitutes territorial connection has been challenged through indigenous rights cases, principally including the rejection of the myth of terra nullius in Mabo (No.2) (1992) 175 CLR 1. The fiction of terra nullius was also rejected by the International Court of Justice (ICJ) in 1975, in which the court validated the existence of legal ties nomadic tribes had with territory through patterns of migration, however, the ICJ did not affirm autonomous claims to the nomadic tribes’ ownership of this territory, but rather attempted to determine allegiance to a specific state. Legal occupation is thus consistently legitimated through the silencing of counter-hegemonic territorial links: as such, refugee access and differentiated tribal land use falls outside positivist assumptions of the relationship between people and territory.
Although the sedentary hegemony of state territorial sovereignty has been affirmed in indigenous rights cases, Gilbert suggests indigenous rights may prove a lucrative source of territorial claims. Such a proposal would give precedence to alternative links to territory that have been previously marginalised or silenced, links which derive from tribal customary laws. Gilbert identifies significant jurisprudence in this sense deriving from the Inter-American Court of Human Rights in the recognition of territory as a collective space, and through increasing acknowledgement of trans-territorial solidarity. The United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) states that the right to enjoy one’s culture “may consist of a way of life which is closely associated with territory and the use of its resources.” Indeed, the Declaration placed great emphasis on rights to land, territory and resources as an intrinsic part of self-determination. In this way, two distinctive strands of critical subversion have emerged through recent protests to ongoing processes of detention and displacement:
1) Recognising Indigenous people as hosts, with the authority to grant or deny access to territory: In the act of handing of Aboriginal passports to refugees, Aboriginal activist and elder Robbie Thorpe demonstrated that “under Indigenous law, refugees are WELCOME to this land”. The UNDRIP affirms the need for “control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs”. The Secretary of the Aboriginal Provisional Government Michael Mansell made the case in 2013 that:
As people who know what it’s like to be invaded by boat people we are in a better position to judge how the current boat people should be treated. Where the original boat people who took over our country were armed to the teeth and bent on conquest, asylum seekers in 2013 are unarmed and seeking sanctuary.
During the long history of pursuing land rights through the courts from 1971 (when the Yolgnu people petitioned the Government in the case of Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141) until the recent Kenbi Land claim settlement in the year of the 40th anniversary of the Aboriginal Land Rights (Northern Territory) Act 1976, ontologies of sovereignty are continuously contested so that claims to land must exist through a prism of displacement.
2) A correlative recognition of dispossession: Article 8 (2) UNDRIP states that: “States shall provide effective mechanisms for prevention of, and redress for: … (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources.”
Under the doctrine of terra nullius British colonisation established a legal precedence for settlement and the displacement of Indigenous people in Australia, which persisted until the case of Mabo (No2). Emphasising that land was “empty” it created a culture in which all subsequent indigenous claims to land could be disputed , a legal narrative which “still persists in the collective Australian psyche, evidenced by social policies and government interventions which impact harmfully on Indigenous people and their connection to their land”.
It is worth considering, in this instance, the Matagarup First Nations Refugee Camp established in Perth by a Nyungah elder named Aunty Bella Bropho following government evictions, forced removals and community closures. The camp’s leaders labelled it a “refugee camp” and houses a diverse range of people of both Indigenous and non-Indigenous people in which “newcomers are offered tents and encouraged to set up camp, either as an escape from unsafe dwellings, or from the challenges of living on the street”. Bella Bropho, a Matagarup elder, argues that “We’ve made a stand on this site, because it’s a sacred site, a birthing site [because]There’s nowhere else to go.” Hence, shifting the focus onto the lines drawn by the constructed of space predicated on colonial dispossession, WAR’s Meriki Onus recognised that:
Australian colonial borders continue to oppress communities of colour and Black peoples living inside and outside these borders. WAR condemns the treatment of Aboriginal people, asylum seekers and refugees in detention centres and prisons in this country. It is an international crisis.
Can we use the current human rights regimes and the solidarity engendered on this basis? Can we evoke a critical form of solidarity using the emancipatory recognition of Indigenous sovereignty (in which the responsibility of the ‘host’ shifts from the commonwealth government to the Indigenous people) whilst simultaneously acknowledging the correlative experience of detention, dispossession and violence that brings the very framework of law itself into question? As Robert Van Kreiken writes:
In the Mabo judgments, we see not a choice between a particular normativity and a strict legal formalism which is somehow non-normative, but rather a choice between different articulations of norms and law, varying combinations of different interpretations of common law authorities and diverging moral orientations.
This relationship therefore speaks to a wider solidarity possible through the law, by subverting the rhetoric of displacement, sovereignty, and territorial claims to land as can be witnessed through, for example, the Black Lives Matter movement. The possibilities of this trans-territorial engagement in an increasingly globalised world are yet to be seen.