In 2019, the Minister of Immigration tried to deport two Aboriginal men from Australia. One was born in Papua New Guinea, and the other in New Zealand. Although long resident in Australia, neither had applied for citizenship. This, the Minister argued, made them eligible for deportation on character grounds after conviction for minor offences.
The men challenged the idea that their non-citizenship of the colonial state nullified their belonging to places that their ancestors had occupied for at least 50,000 years. The High Court ruled by a 4-3 majority that non-citizenship does not make an Aboriginal person alien. The two concepts are not synonymous. This is significant, because it is only on the basis of alienage that the Minister has the power to deport.
The majority found that the depth of cultural connection to a defined territory was of such significance that it could not be consistent with alienage. Aboriginality alone makes one ineligible for deportation.
The High Court had earlier established that there is a threefold test of a person’ aboriginality: i) aboriginal parentage, ii) self-identification and, iii) acceptance by an indigenous nation according to the laws and values of that nation as they existed at the time British sovereignty was acquired.
The Government is, however, considering the dissenting opinion of the Chief Justice, in which the Attorney-General sees ‘great strength of reasoning’ and ways to circumvent the majority’s position.
The Chief Justice found that allowing alienage to be determined, in part, by an indigenous nation’s decision as to who is or is not among its members, gave the nation a form of sovereign authority (an authority that the Court had previously found incompatible with the fact of British sovereignty).
However, the United Nations’ Declaration on the Rights of Indigenous Peoples, which Australia voted against when it was adopted by the UN in 2007, but which it accepted as an aspirational instrument in 2009, is explicit: ‘Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned.’
Naturally, the Court considered sovereignty and belonging as constitutional concepts and the Chief Justice found that in this sense belonging ‘refers to the formal legal relationship between a person and the community or body politic in question’; a legal relationship recognisable only through the formal status of Australian citizenship.
However, sovereignty and belonging are broader and deeper political and cultural concepts. And there is an unquestionable right to belong. If that right can be removed by the state, the colonial project is complete. State sovereignty is an absolute, incontestable and indivisible coercive authority over and above indigenous persons.
Yet politically, and practically, in liberal democratic states like Australia, sovereignty is the people’s collective authority. It is exercised by parliament on the people’s behalf and on the assumption that all people have the same right to influence the society in which they live.
The Declaration shows how this right of influence may be contextualised and differentiated to reflect distinctive indigenous aspirations; to allow participation as culturally and politically distinctive shareholders in the sovereign authority of the state, as well as membership of their own nations.
Indigenous human rights require substantive and meaningful indigenous political voice in matters such as health, education and land rights. They also require recognition of the sovereignty that indigenous Australians argue is preliminary to fair political relationships with the state and its non-indigenous members. As the Uluru Statement says:
‘Sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.’
From this perspective, and from the perspective of an indigenous right to influence public affairs, it is clear that there are broad political and cultural conceptions of sovereignty that human rights require, over and above the narrow and absolute legal accounts on which courts rely.