When discussing whether constitutional recognition of First Peoples is a positive step towards achieving self-determination, it is important to analyse the relationship of the Australian state with First Peoples and if there is even room for compatibility between the Australian state and First Nations sovereignty and self-determination. Absorbing Indigenous voices into the Australian state in an attempt to provide Indigenous sovereignty and self-determination is inherently contradictory. Since colonisation, the Australian state has been built on oppressing and exploiting Indigenous peoples and the capitalist imperatives that continue to govern the colonial state will never be able to provide Indigenous sovereignty or self-determination because the foundational principles motivating the state’s decisions are entirely inconsiderate and oppressive towards Indigenous peoples.

Two of the foundational factors underpinning the Australian state are colonialism and capitalism. An ongoing aspect of this capitalist state formation, introduced alongside colonisation, is land commodification.The European tradition of treating land as abstract, separate from humanity, served as a guide for justifying its domination and commodification.This dualist tendency (to view nature and society as separate) perfectly coincides with the capitalist Australian state that exists today. This is fundamentally incompatible with First Peoples’ relationship with land and continues to have practical impacts today. The Aboriginal concept of interconnectedness – the earth not only exists to provide for us, but people exist to sustain and care for the earth – is in stark philosophical contrast to the colonial and neoliberal concept of land cultivation; to prioritise utility of the earth to pursue perceived human benefit (resources or profit). Practical impacts of these ideological incompatibilities have continued to be prevalent from initial colonisation up until today. The first (and most obvious) way that these different philosophies of land use interfered with Indigenous sovereignty is the ‘terra nullius’ myth. The fact that Western settlers did not recognise Australian land as ‘cultivated’ was the justification for colonial settlement, and the initiation of First Peoples dispossession. The continued dispossession by colonial Australia of Indigenous peoples, by disregarding their relationship to land in order to ‘cultivate’ and maximise profit, culminates in many ways today. Australia’s pervasive mining industry is one example of this.

Australia has a notorious mining industry, ranking as second highest coal exporter globally. The mining industry alone provides a plethora of devastating examples of the Australian state’s perpetual disregard of Indigenous sovereignty. A recent blatant example of the disregard of Indigenous connection to land specifically by the mining industry is the destruction of the 46,000 year old Aboriginal site, Juukan Gorge rock shelters, by Rio Tinto, in order to expand an iron ore mine. A third of Western Australia’s gross state product comes from mining (as do a significant amount of political donations). Since 2010, mining companies have applied to destroy or disturb more than 463 sites and the government has not refused any of the applications. Even under the façade of Aboriginal consultation or collaboration, the severe impacts of the mining industry have failed to be fully disclosed to Aboriginal communities and they continue to be disproportionately affected and their sacred connection to land vetoed in favour of cultivating capital. An even more recent example is the approval of the Santos Narrabri gas project. Despite advocacy of Gomeroi people against the Narrabri gas project, the Native Title Tribunal rejected the Gomeroi application in favour of approving the project. The Gomeroi people have been vocal about the devastating impact the project would have on the climate as well as the destruction of culturally significant land, including the Pilliga forest. Despite the dissent of traditional owners the government approved the project, citing it as ‘essential for economic reasons’. This statement perfectly exemplifies the Australian state’s – self professed – priorities of exploiting land for profit over respecting First Peoples’ sacred connection to land. This is also a direct example of the government attempting to evade accountability behind a mask of manufactured Indigenous consultation via the Native Title Tribune, while ignoring the grassroots opposition from First Peoples that are most impacted by the destruction of land.

Another way in which the Australian state asserts its incompatibility with Indigenous sovereignty is the criminal justice system. This stems from the fundamental values of the capitalist Australian state and how these values are historically and currently applied in the criminal justice system. A core tenet of capitalism is the concept of ‘individual responsibility’. This concept of individual responsibility is reflected in a neoliberal capitalist economic system, where those who economically flourish do so out of “hard work” and everyone else is considered a millionaire in waiting who just haven’t earned it yet. Where public amenities are privatised because people should earn their right to access them (if things were provided for free then people would all be lazy ‘dole-bludgers’), and people’s circumstances are supposedly a result of their own actions and not significantly impacted by a myriad of factors out of their control (e.g., access to education and health facilities, parents’ income, etc.). Despite the last 4 decades of growing tendency towards neoliberal frameworks in Australia, there are well documented proximal factors associated with Indigenous over-incarceration (financial strain, family dysfunction, mental illness, etc.).The lack of empathy in the punitive Australian criminal justice system reflects neoliberal individualism through prioritising personal accountability rather than adequately holistically and systemically addressing the roots of these issues. This is fundamentally opposed to traditional Indigenous conceptions of criminal justice. 

Aboriginal customary criminal law is primarily centred around the idea of payback. Its purpose is to achieve a restorative system, rather than a punitive one. One where the goal is to restore balance and maintain peace by ensuring the victim party is adequately compensated. Payback can take several forms, from imparting gifts to receiving physical punishment. While this aspect of customary law has come under particularly extensive scrutiny from people more familiar with Western carceral criminal justice, it is important to understand that Western values should not be the lens through which all cultures are viewed. For many people, incarceration is a far more harsh and physically violent form of punishment, with more long-term consequences and no aim of restoring balance or restitution to the victim party; punishment for punishment’s sake. Many Indigenous communities have strong adherence to traditional law and the alien concepts underpinning the ‘mainstream’ Australian criminal justice system are another barrier facing Indigenous people when dealing with the oppressive criminal justice system. On fundamental and practical levels the mainstream Australian criminal justice system is incompatible with traditional Aboriginal conceptions of criminal justice, yet the state continues to use the criminal justice system as a tool in its perpetual systemic genocide of First Peoples. 

The Australian police forces were founded on violence. Colonial violence towards First Peoples. The police were introduced in Australia to expand colonial boundaries and extinguish Aboriginal resistance. The Australian police were formed to murder Indigenous people, and this has continued to be a significant part of their job. Since the Royal Commission into Aboriginal Deaths in Custody, 544 Indigenous people have died in police custody and not a single police officer has been charged. Beyond the fact that mainstream Australian and traditional Indigenous systems of justice are fundamentally incompatible, how could Indigenous sovereignty possibly be compatible with Australian state sovereignty, when the state has sanctioned oppression and murder of Indigenous people since colonial settlement? Discrimination and targeting of Indigenous people by police and the criminal justice system manifest in veiled and blatant ways. Making up only 3% of the national population but a third of the prison population, Indigenous people are faced with not only extensive external factors contributing to likelihood of incarceration (trauma, poverty, etc.) but also engrained systemic bias. This has culminated in them becoming disproportionately large targets of the justice system. First Peoples are more likely to come to the attention of police, be questioned by police and be arrested rather than receive summons. They are more likely to be remanded in custody than get bail, more likely to plead guilty than go to trial, more likely to be convicted on trial and, if convicted, more likely to be imprisoned and less likely to get parole. To this day, none of the 339 recommendations made in the Royal Commission have adequately been implemented and rates of incarcerated Indigenous people continue to increase and preventable Indigenous deaths in custody continue to happen. Despite being directly handed thorough recommendations on how to empower First Peoples, minimise incarceration, and treat the traditional owners of Australia’s land with the bare minimum respect that is received by non-Indigenous people, the Australian state has refused to do these things. 

Instead, the state has implemented further punitive and biassed measures towards Indigenous people. This extensive prejudice has been reflected in 2017 with the NSW Police’s surveillance utilising the ‘Suspect Targeting Management Plan’ (functioning as a ‘blacklist’) comprising of 54% Indigenous targets, despite Indigenous people making up only 3.4% of the NSW population. The Northern Territory intervention is another form of ineffective and oppressive paternalistic interference into Indigenous communities. Rather than effectively providing resources, education and health services to vulnerable Indigenous communities, the purpose of the intervention was to increase punitive action in Indigenous communities. Even if Indigenous people were to receive constitutional recognition or formal acknowledgement of sovereignty, the history of the distorted and violent treatment of First Peoples by the Australian criminal justice system would not be compensated for, nor would this treatment cease. The racist inception and continued operation of Australia’s criminal justice system are so deeply engrained that it is impossible for Indigenous sovereignty to completely exist while the Australian criminal justice system continues operating as it has. 

The Australian state has demonstrated in many ways that it is not willing to facilitate real First Peoples sovereignty. No façade of Indigenous contribution to the decisions of the state can negate the fact that the primary motivations of the state will never allow for Indigenous self-determination. Neoliberal prioritisations of capital and individual responsibility are reflected in Australia’s mining industry and criminal justice system, which are just a minor glimpse into the many ways these values manifest in the functioning of the state. The state cannot provide Indigenous self-determination when it is foundationally built, and continues to operate on, the systemic oppression and abuse of First Peoples, in order to pursue the state’s own neoliberal interests. The colonial Australian state has perpetually shown that it is not only unwilling to make concessions in its own sovereignty or capital accumulation, but it will use a facade of Indigenous collaboration and consultative committees to approve violations of First Peoples sovereignty and justify the disregard of ongoing opposition from Indigenous communities.