North Sentinal Island and the Condominuim with Australia (written in 2016)

I was engaging in a bit of “research” the other day and got sidetracked. When I say sidetracked, that’s pretty much how I do all my research these days. I’ll find something about a topic I'm interested in then I’ll come across something I didn't know and find that interesting. Then I’ll find something else on that thread then get sidetracked again. If you allow yourself to meander in this way it is amazing what can be unearthed. I love spending a lazy few hours “researching” like this. And so it was I was reading about Aboriginal sovereignty when someone posted, at the bottom of a video, a link to a blog. When I went to the blog it was all about a mysterious island in Asia inhabited by a people essentially uncontacted by “civilisation” to this day. Eschewing all contact with the outside world, any attempt to meet with these people has resulted in a volley of arrows and spears. Huh? That’s impossible, I thought. It's the sort of colonial, paternal, racist click-bait which usually ruins my morning. The blogger didn't mention where the supposed uncontacted people were but there was a satellite image of the island. Ok, I thought, let’s see. I’ll identify the island and put a comment on the blog which exposes this person for the fraud they so obviously are. Haven’t Indigenous people around the world suffered enough from the noble savage trope already? Google Image Search is miraculous for this sort of thing and sure enough when I uploaded the image of the island it returned with a match. It was somewhere called “North Sentinel Island” in the middle of the Bay of Bengal and is politically a territory of India. Which means it was once a British “possession”. If those guys exist, I thought, there is no way the British would have left them “uncontacted”.

The missionaries would have gone in quick smart and... well, game over, they’re fucked. But upon looking up Wikipedia it all checked out! It turns out that the “Sentinelese” people have, through a mix of being isolated, located on a small, defensible island which presumably doesn't contain oil, gold, valuable forestries or arable cow pastures, managed to remain isolated to the point where even potential introduced diseases have not been able to enter. One reason there has been such limited outside contact is because the Sentinelese defend their island with extreme prejudice. As soon as they detect a boat has come beyond the reef which surrounds their island out they come with volleys of spears and arrows. The Indian government, to their eternal credit, has set up a no-go zone around the island to protect their way of life. India knows a bit themselves about being traumatised by colonialism. An example of the Sentinelese fierce independence occurred in 2006.

A boat from a group of Indian fishers strayed onto a beach after the anchor failed overnight when the sailors were drunk. The next day the Sentinelese attacked and killed the two fishermen and when an Indian army helicopter went to resume the bodies out came the Sentinelese shooting arrows at the helicopter. They had to abandon the search. The responses of the two Indian families to the tragic event is of interest. One father says that basically his son was trespassing and under Sentinelese law he was dealt with. The wife of the other fisherman wants the Sentinelese who killed her husband to be brought to justice under Indian law. Such an undertaking would lead to the destruction of Sentinelese society. There would need to be extraction of at least some islanders, which would involve bloodshed, the potential introduction of disease, the Sentinelese language, which is not spoken by anyone else – the neighbouring Indigenous peoples’ languages are not mutually intelligible – would need to be studied and learnt, involving, basically, destruction of the Sentinelese way of life.

And then there is the small question of sovereignty. If the Sentinelese have never left their island, are unaware of any geo-politics or international law, have their own strong system of laws and justice, have been self-sustaining for 50 thousand plus years and have never ceded or signed any part of their land or sovereignty away, then why are the deaths of these fishermen not taken as just another nation’s form of justice? That is, justice viewed the same way a public execution in Saudi Arabia or a caning in Singapore is viewed… not very nice, but it’s their law and they are exercising it. The local Indian police chief summed up the situation as he sees it, “We have witnesses, yes, illegal poachers who won't testify because they can be imprisoned. Then there are the language barriers; nobody speaks the Sentinelese language. This is before we think about identifying the culprits and compiling forensic evidence. We would have to arrest the entire tribe. We are in an impossible situation. If we raided the island there would be casualties on both sides.

If the tribesmen go inland we might be able to sneak back there and collect the bodies - that's as far as this will probably go.” Thinking of this event at North Sentinel island brings me back to those initial Australian contact days of 1788 and after. We have enough documentation from Watkin Tench and all the others which so closely parallel the description of the Sentinelese situation today. The desire to meddle in Sentinelese affairs is the same as it was back in 1788 Australia. The difference is no-one would swallow the “terra nullius” line with the Sentinelese in the present. And this is where sovereignty is important. Since the start of time Aboriginal people, like the present-day Sentinelese, were police officers, lawyers, judges, premiers, prime ministers, public servants, military personnel and border control. Then, hey presto the British arrive on the Australian continent and they call all the shots. Aboriginal people go to the bottom of the pile and - let’s not kid ourselves - have stayed there ever since. This is the great failing of the British system in Australia. Two systems with two hierarchies and two modes of operation which back then could have attempted to come together (they chose, unlike the Indian government, not to stay away) at the very least via those shonky treaties the British were so fond of signing in the 19th century. But… no. It was their way or the highway and Aboriginal people have been on a lonely dusty highway ever since. So invasion happened. This isn't North Sentinel Island. The British stayed.

It is day 83,337 of the occupation. What to do about it? The current thinking, strongly pursued by Governments in Australia, is for the inherited British system to continue on its merry way and just tinker a little with it by, say, adding some indigenous parliamentarians, maybe a constitutional preamble and, bingo, everything works fine and we’re all happy. The problem with that is it won’t solve anything. Whilst “mainstream” people say that “the past is the past, times have changed. I’m not guilty for what people did 200 years ago,” the thing which has not changed is the British legal system. And by that I don’t just mean the judiciary. I mean the parliaments, the executive and, most importantly, the people and culture perpetuating this power. It’s always the same white people from the same white schools in the same white suburbs making the same white laws looking after the same white interests. And, again, it isn't what blackfellas want. What do Blackfellas want? Time and time again Aboriginal people say they want sovereignty, self-determination. We've been told by “experts” like Gary Johns (who seems genuinely terrified by the prospect of true Aboriginal Self-Determination) that the dream of Self-Determination has failed and now is the era of Howard’s “practical reconciliation.”

As most Aboriginal people are aware this is code for assimilation. Unfortunately the democratic process in Australia is seen as divinely granted. It’s the rule of the(ir) people. It’s how they get out of their responsibility to us every time. The numbers are in their favour because it’s pretty much stacked with their people. It’s democracy, right? How can that ever be changed? I've thought a lot about what true self-determination for Aboriginal people would look like. I owe a debt to important essays such as Michael Mansell’s “Why Norfolk Island and not Aborigines” (2005) where Michael proposes what a sovereign Aboriginal state would look like. Then there’s Callum Clayton-Dixon’s “Aboriginal or Australian?” (2015) where the author challenges the usefulness and legitimacy of Aboriginal people thinking of themselves as being “Australian” and all the dispossession and appropriation that comes with that term. Irene Watson’s passionate “The future is our past: We once were sovereign and we still are” poses the question to the Australian state “by what lawful authority do you come to our lands? What authorises your efforts to dispossess us?”

It is one of my favourites. Of course, the United Nations Declaration on the Rights of Indigenous Peoples is required reading (if not memorisation) for all Aboriginal people. Articles 3, 4 and 5 give me strength daily when thinking about what is right and just for our mob:

Article 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

I still can’t believe such a beautiful document even exists.

How was it allowed? No wonder Australia (and Canada, New Zealand and the USA – what do they all share in common?) held out signing it. But the most important work I always turn to when thinking about Aboriginal sovereignty isn’t by an Aboriginal author at all. It is by an academic named Joel H. Samuels, a law professor from the University of South Carolina. In 2008 Professor Samuels published a little known essay titled “Condominium Arrangements in International Practice: Reviving an Abandoned Concept of International Boundary Dispute Resolution.” The essay provides a treaty and sovereignty framework for Indigenous people which everyone else seems to have missed. Which proceeds from a simple proposition... Why can’t two separate states exist on one piece of land? That is, in a radical overhaul of the status quo where nothing ever seems to change and gaps never seem to close, why not consider a Condominium arrangement between the Commonwealth of Australia and a new sovereign state which is a federation of Aboriginal nations? Give Aboriginal people full control to come up with their own solutions. Give Aboriginal people back their ancient right to govern themselves.

Give them full control of their culture, communities and future. But first, what is a condominium? Wikipedia gives a nice definition;

In international law, a condominium (plural either condominia, as in Latin, or condominiums) is a political territory (state or border area) in or over which multiple sovereign powers formally agree to share equally dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it up into 'national' zones.

The Samuels’ essay is so important is because the Professor gives the historical and theoretical underpinning, from a legal western perspective, as to how full Aboriginal sovereignty is not only possible but can in practice be implemented. It’s all done under western law. It’s in their legal history and theory. They can’t argue that it’s unworkable and impossible because it’s been done before under their system. In fact there are a few condominia which still exist in the world today. If one’s thinking about sovereignty, self-determination, healing, rights and dignity for Aboriginal people proceeds from the concept of condominium then the way forward for not only Aboriginal people but all Indigenous peoples around the world – except, hopefully, the Sentinelese… (but don’t hold your breath) – becomes pretty clear.

Talk about “empowered communities.” So what would a condominium between the Commonwealth of Australia and a federation of Aboriginal (and possibly Torres Strait Island) nations look like? Well to start with, condominium would have to be achieved through a treaty. It would be the centrepiece of a proper treaty. A treaty with substance. Not some mealy-mouthed piece of paper which does nothing but “authorise” the Australian state to carry on as usual and deliver nothing substantive to our mob. Which is what the current constitutional referendum debate is all about – white guilt-reduction. The central basis of a condominial treaty must involve the core economic basis of the new state. There can be no escaping... Australia must pay tribute. "Tribute” in this sense is perpetual payment for the use of our land. Land was never granted by us and it never will be.

I don’t think the Australian nation as a whole has ever understood the simple concept: This isn’t your land! But as the basis for treaty Aboriginal people are prepared to grant perpetual leasehold to much of the land deemed freehold, etc. today in Australia. Let this be the central plank of treaty negotiation. How would tribute be paid? In practice this is up for negotiation but my belief would be, say, a perpetual 1% levy on every land sale in Australia, freehold or other, to be collected and transferred by the states and the Commonwealth in perpetuity for the use of the new Aboriginal state without condition. Australia can afford it and it would go a long way toward finally creating “practical reconciliation”. It would mean Aboriginal people could cut the funding puppet strings the Australian state has been yanking since the end of the frontier war era. That’s the great myth about the endless white whining about “all this money we’re spending on Aboriginal people.” In reality it keeps them firmly in charge. It’s the modern form of state coercion since the missions got closed down and the protection acts got repealed. When I hear the old “we can’t keep throwing all this money at the blacks. What a waste!” I respond “then don’t… give them power instead.” Tribute would be the economic basis for the new state.

It is right and just that tribute is paid. Aboriginal land will never be ceded. Ever. But tribute is an acceptable and reasonable way for both peoples to move forward in the spirit of healing and goodwill. True and “practical” reconciliation. Tribute would be distributed centrally on an equitable basis for the use of all mobs. Just because the Sydney Aboriginal communities would be sitting on a tribute goldmine doesn’t mean they should keep it. Aboriginal people value reciprocity. It is a core cultural value. A world-view. Those remote communities will finally have the funding they need to function with dignity. What about all the jobs flowing from running their own hospitals, schools, local councils, media organisations. Not to mention their police forces, University campuses, prisons, fisheries, mines, emergency services, etc. Once the economic stability is established the fine-tuning could begin.

How would the laws of each state apply to individual citizens of both states? Aboriginal people would always be tried in Aboriginal courts, have Aboriginal passports, go to Aboriginal gaols. They would be subjected to the same laws as Australians on, say, the roads and in other equivalent areas. There would be many areas of the continent which were solely under the jurisdiction of the Aboriginal state. In others, there would be agreement as to how citizens of each nation would be policed by each separate law enforcement body. For example, the Australian police forces may detain an Aboriginal citizen for a few hours but must instantly contact Aboriginal police and have the prisoner transferred. Obviously the nutting out of these laws would be voluminous and beyond the scope of this article. This doesn't mean such a complex undertaking is not possible. Of course it is possible.

What would the name of the new state be? No-one will ever agree because we were all disparate nations, fiercely independent, but if Aboriginal people can adopt a flag in common they can adopt a name. My own belief is that it should honour Pemulwuy the great resistance leader of our people because he stood up for the maintenance of sovereignty from the start. He saw what Arthur Phillip - the most successful people smuggler in history - and what the rest of his lot had to offer and said an emphatic “no”. Pemulwuy’s death and the cruel saga of his remains are also an insight into the ruthlessness of the British. And that ruthlessness is the direct foundation of the Australian state. It’s exactly how it all came into being, not at Gallipoli as they’d like you to believe. Next, the location for a seat of government. A capital city would not be as important to Aboriginal people because our mobs are community based and much of their power would be retained at the local level. But you do need a supra-national body to deal with Australia, collect, distribute and maintain finances, resolve disputes between our nations and all that.

So you need a location. I believe that should be at Sydney. It is close to the important Australian centres of Sydney and Canberra for the ongoing close relationship needed between the two states. It would also be a symbol of resistance and triumph over the adversity Aboriginal people have faced since the European arrival in Sydney in 1788. Sydney is also an important centre for the evolution of the Aboriginal sovereignty movement from the 1930’s onward. Not to mention the political movement out of Redfern in the 1970's. The greatest value of a condominium arrangement with Australia though would be the removal of the Australian state in decision making over Aboriginal community life.

A condominium would mean the end of hundreds of years of entrenched suffering at the hands of the Australian state in many areas. Gone would be the various state Community Departments (for example, the dreaded Department of Community Services or “DOCS” in NSW) having ultimate power to remove children. It would be Aboriginal national or regional governments with those powers. Sure they’d make mistakes. But they would be our mistakes, which we would learn from. That’s empowerment. It’s also the Aboriginal gift to Australia… it would become truly legitimate as a nation state because Aboriginal people would finally recognise them as such. I think deep down Australians realise the lack of legitimacy Indigenous people regard them with.

So they go all quiet on Australia Day now. Well, some do. It’s been like that since the Bicentenary in 1988, really. Finally they could have a bit of real pride about their foundation knowing some amends have been made. And a treaty with condominium would allow Aboriginal people to well-wish them on Australia day. Why not… it would be a sign the Australian state had finally matured and been honest with itself. Of course it will always be a day of deep mourning for Aboriginal people. But I believe the 26 January 2038 is the perfect date for the birth of the new Pemulwuy state. Hopefully the “handover” would occur at the Australian Hall in Sydney. What a fantastic location to justify and honour those brave Kooris who organised the “Day of Mourning” in 1938, protesting the sesqui-centenary of the first-fleet landing. It’s the basis of NAIDOC week. Or maybe at Sydney Cove itself. The Pemulwuy state would not be perfect. Far from it.

No post-colonial national government ever has been. But that is the journey Aboriginal people must take. Has any former colony ever appealed for the colonial power to come back? Not many. That’s instructive. I don’t see Timor-Leste begging Indonesia to “come back all is forgiven.” Condominium is a radical solution to our problems. However, those problems are so profound and the trauma so deep there is practically no other way. I hope the people of North Sentinel Island never have to face the same bloody and traumatic history we have had since the colonials arrived here in 1788. It would be nice to think they could continue living their lives as they see fit. Aboriginal people have to exercise sovereignty in a different way. Through condominium there is hope for the future and for another 50000 years. And beyond.