Online Debates

Two Sovereigns?

6/6/2025

INSTRUCTIONS:
• "Leave a Reply" to this entry to start a new discussion thread.
• "Reply" to a comment to contribute to a pre-existing discussion thread.
• Don't forget the "Notify me of new comments" checkbox if that is what you want.
• Limitations: (i) Comments are limited to 800 words; (ii) Nesting of replies is limited to two levels, so in some replies you may want to indicate to whom you are responding, eg "@JoeM 6/6/2025 06:02:04 pm" or suchlike.
• Contact the moderator if you have any problems or questions

1 Comment

JoeM

6/6/2025 07:10:29 pm

Could there be two sovereigns over one land? At least /theoretically/, I don't see why not. Actually, there are a number of ways this might be.

First, there could be what we might call "peoples-divided" sovereignties, in which one polity makes all the rules for one group in the land, and the other makes all the rules for another group occupying the same land, perhaps with some mechanism for resolving conflicts between them (eg, combat, treaty, higher federal body, whatever), assuming the two polities are independent.

The prime example is the relation between the British and Eora in 1788. Suppose—just for the sake of illustration—that the British /justly/ acquired secure occupation of the land around Sydney Cove. Even so, it was still the case that the Eora could justly occupy it for themselves, and justly continue to live according to their own law. This model actually received legal support in 1829: "Until the aboriginal natives of this Country shall consent ... to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions" (Report of the Expert Panel, p. 205). In short, even if the British held sovereignty over all their citizens occupying Sydney Cove, that was consistent with the Eora still holding a similar sovereignty over the same land.

Second, there could be "powers-divided" sovereignties, in which one polity makes certain (types of) rules for all people in the land, and the other makes other rules for them, which typically comes with the provision that the decision of one polity (the ultimate sovereign) will prevail over the other (the subordinate sovereign) in case of any conflict between the two. The prime example is the relation between the Commonwealth and each State in the Australian federation, with respect to the territory and population of that State.

Finally, there are what we might call "powers-then-peoples-divided" sovereignties, in which one polity makes certain rules for all people in the land, but certain other polities make other rules for their own groups occupying that land, again typically with the provision that the first polity will prevail over the others in case of any conflict. A good example of this is that, within limits, liberal governments often allow religious groups to decide on the religious rules to impose on their own communities.

The second two provide good models for possible relations between the Australian state and First Nations peoples today. Noel Pearson, for example, has "argued that apart from being unachievable, 'full-blown sovereignty' may not be necessary, and that 'local indigenous sovereignty' could exist internally within a nation state, 'provided that the fullest rights of self-determination are accorded'" (Report of the Expert Panel, p. 211, see also reference to "domestic dependent nations", at p. 206). This will be most workable for remote indigenous communities, who have native title over their traditional lands, and whose native sovereignty will be akin to that of the States. But it might even be possible for urban indigenous communities, who do not have native title, if their self-determination is modeled on (though presumably more extensive than) that of religious communities. Even if the Crown holds territorial sovereignty over the continent, that is consistent with First Nations still holding some (subordinate) sovereignty over their own people.

As it turns out, all of this is rejected by the Courts of Australia, since Mabo (No 2) is "at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a 'domestic dependent nation'" (Report of the Expert Panel, p. 209), and that "what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty" (p. 210), let alone a parallel law-making system not attached to any territory at all.

Notwithstanding these legalities, I think that there can be two sovereigns over one land, when there are few sources of conflict between the two peoples. Theoretically, therefore, I think that the British can acquire sovereignty over some land, even legitimately, without thereby extinguishing Indigenous sovereignty over that same territory. Practically, however, the historical tendency is for one to extinguish the other. As a matter of historical fact, peaceful co-existence is generally replaced by violent conflict, and, eventually, one side conquers the other. No doubt, this has frequently been unjust, but must it always be?

Debates

Two Sovereigns?

Leave a Reply.

Members