Sorry, Australia, it's not your Voice to give

I am not Aboriginal or Torres Strait Islander. Frankly, therefore, the Voice is none of my business. Or at least, as one Elder told me, it shouldn’t be any of my business. It is disrespectful and inappropriate for non Aboriginal/Torres Strait Islanders to make a decision which purports to affect the lives of Aboriginal/Torres Strait Islander people. That is, after all, what has been occurring here for more than 200 years – people from other lands telling the people of this one what is best for them. It has not done anybody any good.

We don’t seem to learn, do we?

Aboriginal and Torres Strait Islander people are not subjects of any Queen or King or Commonwealth. They are not subject to Crown Law. They have their own, older Law – the Lore of the Universe and of the Land.

That Lore has always existed. It will always exist. It is actually our Lore too. Most of us just don’t know it.

For example, under my own ancestral Lore, which itself is also a distillation of the Lore of all peoples; the rule is clear - First in Time, First is Right. Aboriginal and Torres Strait Islander Lore was here before English Common Law. It is still here, and the English Common Law has not yet reconciled itself with it. At a fundamental level, the English Common Law can never hold true legitimacy on this land until it does.

‘Sovereignty’ is a Western concept stemming from another Western concept; ‘Ownership’. There was a meeting once where a brother of mine acknowledged indigenous people as the ‘owners’ of this land. An Aboriginal brother stopped him and told him that across their many languages, there is no concept of ‘ownership’ in the way that we Westernised people think of it. There is a big difference between ‘owning’ something and having a relationship with it. Or more accurately, as I’ve come to learn, between owning something and being physically and spiritually in communion with something. At Lore, Indigenous people don’t ‘own’ the land, they have a deep and ancient relationship with it, and they share their very essence and bodily-material with it. They are not only custodians of the land; they are the land, and the land is them.

So, the Western conceptual paradigm where ‘Sovereignty’ and ‘Ownership’ exist met the shores of Australia along with the first set of leather boots in the late 1700s.

But, as a lawyer, and even as a ‘human rights lawyer’, the Western conceptual paradigms are paradigms I work within.

In this regard, there is absolutely zero doubt, legally, that Aboriginal and Torres Strait Islander people retain ‘sovereignty’ over the land mass of Australia. I’m not talking about Indigenous Lore, where clearly they retain the right to live as they have always lived – I’m talking about English Common Law. Such sovereignty has been recognised, implicitly and explicitly, in Mabo, Wik and several other less famous Australian cases. The fact that Australia still has not entered into any treaty with any first nations people here, several hundred years since a flag was planted and a genocide began, renders our Government’s occupation here still without lawful foundation.

At international law, Australia is (ironically) a party to the ‘UN Declaration on the Rights of Indigenous Peoples’. That Declaration makes very clear that Aboriginal people retain sovereignty over this land. It also makes clear that Australia is guilty of genocide and illegal occupation (by the definitions in that Declaration). It is actually an inditement on the whole United Nations framework and the Covenants and Treaties which apparently hold significance and which Australia signed and covenanted into that another Sovereign body has not yet taken the Australian Government to the International Court of Justice for acts of war and genocide on indigenous people in this land. The law is very clear – that is what happened and that is what is happening.

I have spent many months now asking Elders about the proposed Voice to parliament. I am fortunate that through my work and increasingly through my personal life I have the pleasure of meeting and yarning with various mob. I have a long way to go in connecting to and learning about Aboriginal and Torres Strait Islander people and culture. On some level, I can feel the power of Aboriginal and Torres Strait Islander people and their deep, old spirituality. An Uncle recently told me that true spirituality is connection with the land. My ancestors come from a different land, but I have felt and tuned into the beautiful and powerful current of this one. Doing so has fundamentally changed the course of my life. Going back to this land and connecting to it is how I stay sane in this poisoned and anti-human world. I revere it. The spirit of the Land is the spirit of Truth. Mother Nature is the tidal ocean of the universe. Life and death; night and day; light and shadow; the cycles and circles and seasons of meaning. Aboriginal and Torres Strait Islander people cared for and lived in communion with this powerful old land for hundreds of thousands of years. They would all still be doing so if they weren’t interrupted. And they’ve had to deal with a lot of interruptions. This Land holds a record of all of them.

I have been told time and time again that the Government’s assertion that Aboriginal/Torres Strait Islander people were appropriately, transparently and comprehensively consulted about the Voice is not only untrue, but that it betrays a lack of understanding of basic cultural Lore. There are over 300 Aboriginal and Torres Strait Islander nations on this land. Under cultural Lore no one Nation, or ‘Voice’, could ever speak on behalf of the 300+ Nations that cover this continent. It completely abdicates the ancient song lines which bind certain Nations together and keeps others entirely separate. It is a violation of those song lines and of that Lore. Will the Government claim that by consulting with the Voice that they are taking into account the views of Aboriginal and Torres Strait Islander people? How is that even possible, given that Aboriginal and Torres Strait Islander people do not operate within a hierarchical top-down authoritative structure? Are we seeking to force a particular model of Governance which we are used to onto a people who operate on an entirely different 'governmental' and cultural framework? Even if well intentioned, is that actually going to have a positive impact, given it fundamentally misunderstands the ancient systems and Lore of the people it is purporting to help? Besides all of that, I am told time and time again that the ‘consultation’ the Government refers to was selective based on Government relationships and interests. I cannot confirm that, but I must say it does not surprise me.

Agreeing to the Voice, many Elders have told me, is a contract they do not want to enter. They do not need to ask the majority non-indigenous Australian population for a Voice in Parliament – they have (and have always had) their own voice and voices. So far Australia does not listen. That doesn’t mean their voice isn’t there, and that doesn’t take away its Ancient and Truthful authority.

I must say, I am reluctant to criticise the Voice, or to comment on it at all. I would not be doing so if I had not been told by an Elder I respect greatly that I “have to”. I also have to vote, like everybody else. I understand that there are many Aboriginal and Torres Strait Islander people who support the Voice. Their opinion matters more than mine. Based on my experiences in the past year or so, I am concerned that many other Elders have simply not been consulted and/or are not being listened to.

I am also generally sceptical of this Government particularly in relation to Aboriginal and Torres Strait Islander people. They have been no friend to them in the past.

In the end, we are all bound by the Lore of this Land, whether we like it or not. Under that Lore, the ‘government’ of Aboriginal and Torres Strait Islander people is entirely a matter for them, not for us.

I do not want to make any decision that purports to regulate or assert authority over the lives and customs of Aboriginal and Torres Strait Islander people, and, if you're not Aboriginal or Torres Strait Islander, nor should you.