Why a First Nations Voice Will Not Extinguish Indigenous Sovereignty

Abstract

If the opinion polls are to be believed, large majorities of both progressive voters and Aboriginal and Torres Strait Islander voters support enshrining a First Nations Voice in the Australian Constitution. But among the Voice’s progressive critics, and especially First Nations critics, one of their persistent concerns has been that constitutionally enshrining the Voice could extinguish Indigenous sovereignty. These are important and valid concerns, and Aboriginal and Torres Strait Islander people should have clear responses to them prior to the referendum. They are concerns which I seek to assuage in this comment. While the question of whether the Voice would extinguish Indigenous sovereignty has been addressed by legal scholars through brief commentary in the media, this comment is the first to give the question in-depth scholarly consideration.

I begin by outlining the concerns expressed by some First Nations people that constitutional enshrinement of the Voice would extinguish Indigenous sovereignty. Next, I argue that the Voice cannot extinguish Indigenous sovereignty under either Australian law or international law because, according to each of those legal systems, Indigenous sovereignty does not exist in the first place. In other words, when it comes to the formal recognition of Indigenous sovereignty under Australian and international law, the problem is with the law as it currently exists, not with changes to the law produced by constitutional enshrinement of the Voice. The denial of Indigenous sovereignty is an injustice, the blame for which should be sheeted home to existing Australian and international law rather than to the effects of the Voice. I go on to show that, regardless of what Australian or international law says, Indigenous sovereignty exists as both a lived reality under Indigenous law and as a political claim against the settler state.