Online Debates

Two Sovereigns?

6/6/2025

According to the Uluru Statement, Aboriginal sovereignty was never ceded, and co-exists with that of the Australian Crown. The High Court disagrees, having declared that no sovereignty adverse to the Crown currently resides in the Aboriginal people, and that there can be no Indigenous law-making system parallel to that of the Crown. Motivated by debates about treat-making, lawyers Sean Brennen, Brendan Gunn and George Williams examine the concept of sovereignty [full discussion here, and, for those with less time, the Readers Digest version here], its uses in Australia by Indigenous peoples, governments and the courts, as well as how it is applied in other nations. So who is right? Can Aboriginal sovereignty co-exist with that of the Australian Crown?

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

3 Comments

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?

ARIM

23/6/2025 12:58:14 pm

One issue I see with this approach to the question of divided sovereignty is that it adopts a rather loose conception of what sovereignty actually entails. For instance, the above comment gives an example of sovereignty being divided (in some sense) between a liberal state and the religious communities which exist within that state, insofar as those communities can adopt and apply their own rules over their members.

However, insofar as religious organisations must comply with the liberal conception of freedom of association (which they presumably would need to within the ambit of a liberal state) then they don't truly exercise sovereignty over their members as members adherence to a church's rules is consensual rather than mandated. (Notably this was not always the case).

I personally think it is most fitting to speak of sovereignty as existing only in those institutions which (are purported to) hold arbitrary and involuntary moral authority to bind individuals to their commands. Otherwise, you begin to might begin to speak of bosses being sovereign over their workers or parents being sovereign over their children.

Finally, it is worth stating that this observation might seem to be a trite reduction of the overall discussion to a focus on semantics and definitions (a sovereign being the one who possesses ultimate authority). However, I think it's worth making the point that perhaps a kind of structural (rather than definitional) divided sovereignty really is possible, but that in a system such a system (whatever it may entail) no single person or institution could truly be described as sovereign. Hence, while a good introduction to the underlying problem, the word sovereignty may be inapt, in a meaningful sense.

26/6/2025 08:06:01 pm

I distinguished between peoples-divided, powers-divided, and powers-then-peoples-divided sovereignty.

Your basic point seems to be that any division of sovereignty actually eliminates anything that deserves to be so called. This is plausible for the last two, but less so for the first. Two nations occupying disjoint territories are both sovereign, and I don’t see why the same point doesn’t apply when the two peoples are intermingled over on land.

It is also plausible to say that there had better be some distinction between the authority the govt has over people and that which an employer has over their employees. Not sure that consent will do the trick however, as per your proposal, since that rules out social contract theories of government authority by definition. They may be false, but not by definition. It may have to do with the (purported) legitimate use of force.

With regard to the other two forms of “divided” sovereignty, the dispute may indeed be a verbal one. The key issue, really, is how much control people (groups, but also individuals, you and I will want to insist) over their own lives. NSW does retain some control over its own way of life, and can issue punishments etc, so—assuming that sovereignty does have to do with the use of force—it is properly called sovereign, though of course in subordinate sense. As you say, this will exclude employers, as well as (my example) religious groups, on the assumption that they may not use physical force against miscreants in their own communities. So, contrary to what I claimed, that would NOT be a “sovereignty”. Different again, however, are indigenous groups who /are/ allowed to punish their own wrong-doers, and that would be a form of (very diminished) sovereignty, properly so-called.

So powers-then-peoples divided arrangements may not be sovereignties, though the other two mind be.

Debates

Two Sovereigns?

Leave a Reply.

Members