Revived Aboriginal sovereignty in its modern form cannot be what it once was, just as white sovereignty today is not what it was in 1788. In a complex world of obligations and responsibilities, shared sovereignty within a federation of states and the UN, sovereignty is now to be read as ‘subject to’.

 

Aboriginal sovereignty would manifest itself today in different forms depending on the topic and environment:

a)      On Aboriginal owned land it would mean complete exemption from white authority on planning, land use and resource ownership;

b)      on remote Aboriginal communities it would provide for absolute political and legal control including customary laws and enforcement of those laws prevailing over white law;

c)       it would free up Aboriginal communities to decide what forms of representation would apply, policing, transport, electricity generation and supply, taxation and environmental and land use and planning;

d)      in an urban environment it would mean meaningful and enforceable rights to approve education of children, impose a legal requirement on courts to ensure parity of imprisonment rates, decision making over where houses were to be built with Aboriginal ownership of them and so on.

e)      This sovereignty would be subject to the constitution, in which case the trade-off for political integration of Aboriginal sovereignty would be, say, 3% of GDP (currently about $2,000 billion, giving Aboriginals $60 billion annually) on the basis Aboriginals are 3% of the population.

 

You can see that constitutional recognition is irrelevant to Aboriginal sovereignty.

 

A treaty would be expected to deliver:

a)      Land: return full ownership of all vacant crown lands to Aboriginal people so that as a category, crown lands would no longer exist;

b)      Empowerment: a treaty would provide for a sharing of sovereignty through a national indigenous body that took over administration of Aboriginal affairs. Such body would be established by and be accountable only to Aboriginal people. The national body would receive $60 billion annually to set priorities and support those priorities;

c)       Shared power: it would also include between 8 and 12 designated seats in the Senate parliament (in the case of a national treaty) and seats in state parliaments in the case of state treaties;

d)      a treaty could provide for sub-agreements on where customary law would apply alongside white law and provide for communal policing, community authority and local government powers. Local government powers would enable communities to decide all land use and planning, make bylaws for conduct within that area, In some cases, community decision making over housing, health, education and so on could flow from a treaty.

 

You can see that constitutional recognition is also irrelevant to a treaty.

 

By comparison, what then, can constitutional recognition deliver?