‘Indigenous people are a polity’. On sovereignty and constitutional recognition

Yirrkala Bark Petition 1963.

Today’s summit hosted by the Prime Minister and Opposition Leader with Aboriginal leaders from across Australia to discuss constitutional recognition is brimming with potential significance. Is it a turning point in the history of relations between the First Nations of Australia and the Commonwealth? Time will tell. But it is occurring alongside other initiatives around Aboriginal self-government, including the ‘empowering communities’ blueprint championed by Noel Pearson. The opportunity for deep, significant change is here.

Among the debates over constitutional arrangements and political trade-offs lie basic questions of moral and political value. I framed the potential of the summit and what it may herald as a conditional because the risk that it could yet slip away is still very real. However, I think there is an undeniable shift occurring in our politics around these issues – not assured, not linear in development, but real nonetheless.

On Sovereignty

These developments also provide a moment to reflect on one the core concepts at the heart of the history of Aboriginal peoples’ relation with the state and among the most vexed in that history: sovereignty. So often, we seem to stumble over questions of sovereignty. What would it mean to recognize Aboriginal and Torres Strait Islander peoples in the constitution? What about the sovereignty of parliament? Was sovereignty ever ceded? Is sovereignty even the right concept to describe what was possessed by indigenous peoples in the first place?

I want to take a step back from these undoubtedly important questions and ask a more basic one: What is sovereignty good for? And what is the relationship between our conceptions of sovereignty and political community?

For the politician, or indeed a specialist in international relations, this is probably a bizarre question. Sovereignty, for them, is whoever has the capacity and authority to exercise effective control over a territory. Asking what it’s good for, or what it means for conceptions of community, is beside the point. But political philosophers tend to think that there is more to it than that.

Frontispiece, Leviathan, Thomas Hobbes, 1651. Chris Tolworthy/Flickr

Of course, the 17th political philosopher Thomas Hobbes has provided the basic framework for our conceptions of sovereignty since his famous treatise [Leviathan]( was published in 1651. For Hobbes, the justification of sovereignty emerged from what he called the “state of nature”: man exercising his natural rights of liberty unhindered by anyone. The consequence of such a condition was a state of war.

Looking around war-torn Europe in the 1640s as he wrote Leviathan, Hobbes didn’t need much more evidence of the disastrous consequences when people disagreed about the bases of legitimate political authority. For him, political power needed to rest in a single “office”, grounded in the consent of those who agreed to relinquish their basic rights to a sovereign who exercises them on their behalf.

Any other arrangement was doomed to failure. And failure meant civil chaos. The attempt to share sovereignty in anyway entailed so many “worms in the entrayles” of the body politic, as Hobbes so memorably put it.

Of course, we have moved on from this Hobbesian remedy, but the legacy of his analysis continues to cast a long shadow over our politics. Contemporary democratic theorists who worry about the “end of representational politics”, or the “legitimation crisis” of the modern state, are still bewitched by this Hobbesian analysis.

Rethinking the first political question

So, according to one influential part of this tradition, sovereignty is what provides for the conditions in which politics can happen at all, let alone peacefully. It’s what the brilliant British philosopher, Bernard Williams, referred to as the “first political question”.

But there is another part of the tradition, this one with different historical roots and circumstances. And, in fact, it’s a tradition deeply shaped by the colonial encounter in North America and Australasia, including around the same time that Hobbes was writing the Leviathan.

We can find traces of it in the important work of intellectual and legal historians such as Henry Reynolds, Brian Slattery and Andrew Fitzmaurice, as well as in the work of indigenous legal and political theorists such as John Borrows Megan Davis, Val Napolean and Mavis among others.

And here the “first political question” can be framed in very different ways. Instead of effective, absolute control, it’s about the coordination of different sources of normativity and legal orders, none of which can be reduced to the other. So sovereignty is still about providing the conditions for politics, and thus the provision of justice, but not at the price of relinquishing all to a singular, sovereign authority.

It requires, instead, seeing sovereignty as itself a conditional good; one justified, in part, just insofar as it enables the well-being of the diverse peoples that make up that territory to flourish on the basis of reasonable terms of cooperation.

This means relinquishing the demand, in advance, for a determination of final authority as the dominant element of our conception of sovereignty. It means living with a more complex array of normative and legal orders, where the emphasis is on translation and coordination, rather than pre-emptive determination. Conceptually speaking, it means disaggregating the different components of the concept and re-assembling them in new ways.

Indigenous languages map.

Indigenous peoples are polities

And in different ways, and to differing extents, we are already doing this. State sovereignty is conditioned increasingly – albeit imperfectly – by international human rights norms. Indigenous peoples, the world over, are asserting their political agency through a variety of mechanisms at the local, national, regional and global level. Less tidily, and more ambiguously, state sovereignty is also increasingly subject to a range of extra-territorial constraints through various aspects of globalisation. Sovereignty, in the Hobbesian sense, is a wasting asset.

What the current debate around constitutional recognition can do is help reveal more of this complex legal and political reality in Australia. As Pearson has put it, “indigenous people are a polity”.

More to the point, they are a bundle of polities. This is the fundamental challenge to our current conceptions of sovereignty that this process will reveal and in the process, hopefully, prefigure new forms of political community for all of us.