Summary 

Preliminary advice provided by Tony McAvoy SC, Barrister at Frederick Jordan Chambers to the National Native Title Council (NNTC) concludes that within the understanding of international law First Nations sovereignty will not be impacted by the referendum for, and subsequent constitutional enshrinement of, an Aboriginal and Torres Strait Islander Voice. 

Key points: 

• Under international law, the acquisition of sovereignty over occupied territories may only occur by conquest or cession. ‘Sovereignty’ is used in Australia by First Nations representatives to mean that sovereignty was possessed by the First Peoples over their respective territories and has never been ceded and continues to be possessed. The High Court in the Mabo No 2 decision acknowledged the false basis of the acquisition of sovereignty by the British.

• The proposal for a Voice was not put to the government by the entities which hold Indigenous sovereignty, the First Nations. Despite the inclusion of 250 First Nations individuals at the Uluru Statement from the Heart convention in 2017, without the specific representative from each First Nation across Australia, sovereignty would not be affected.

• A government official has rejected the proposition that the Voice reform will affect First Nations sovereignty. The expert group advising the government has advised that there will be no effect on any rights.

• The commitment by the Government to the Uluru Statement from the Heart, including the establishment of a treaty and truth telling commission, is more consistent with the recognition of ongoing sovereignty and not the cession of sovereignty.

• Consideration of the principles of free prior and informed consent (FPIC), and failure of the government to seek consent would undo any claim by the Australian state that sovereignty has been ceded through an amendment to the Constitution or that a failure to respond by First Nations may be relied upon as acquiescence.

• The draft wording for the amendment to the Constitution does not contain express words or meanings that could affect sovereignty, nor is there the basis for inferring of implying any impact on the assertion of sovereignty by First Nations. If the acquisition of sovereignty could occur by any means other than conquest or cession, it would have occurred as a result of the 1967 referendum to amend section 51(xxvi) of the Constitution or the passage of the Native Title Act 1993 (Cth). 

In conclusion, it is suggested that greater clarity and understanding may come from the release of a public statement by the Federal Government to the effect that the referendum does not have any impact or affect upon First Nations sovereignty, although such a statement is not necessary for legal purposes.  

To read the full preliminary report please click here.