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“How does your proposed constitutionally enshrined Indigenous voice to parliament affect First Nations peoples’ sovereignty in this country?” Greens Senator Lidia Thorpe asked Labor Senator Penny Wong .

This question asserts the chief concern First Nations rights advocates have been raising in regard to the prioritisation of constitutional reform — or the constitutionally-enshrined Indigenous voice to parliament — since the ���ɲ�����.

Thorpe posed the question just two days after Prime Minister Anthony Albanese gave his in Arnhem Land where he outlined that a referendum on the voice will be held during this term of parliament and flagged the broad voice proposal and the referendum question will be put to the vote.

Momentum for the voice is growing. But, as Thorpe suggested, incorporating Aboriginal and Torres Strait Islander peoples into Australia’s Constitution, via the enshrining of a First Nations parliamentary advisory body known as the voice, may undermine Indigenous sovereignty.

That’s why the are proposing that issues involving the genocidal founding of the nation, First Nations sovereignty and “free, prior and informed consent” be addressed prior to any advisory body entering into the Constitution.

A constitutional grey area

“The colonisers say that they are ‘sovereign’. We say that we are sovereign,” Thorpe said. “In entering the colonial project, their constitution, we need to be 100% satisfied that we’re not ceding our sovereign rights by going into the colonisers ‘sovereign’ rule book.”

“When constitutional lawyers have been asked, the response continues to be that it’s up to the interpretation of the law at the time,” the Gunnai Gunditjmara and Djab Wurrung woman told .

The Uluru Statement, that contains the proposal for a voice, was produced by the Referendum Council in May 2017 at a national conference of Indigenous delegates in central Australia.

It was the culmination of a  that considered the original plan for constitutional recognition.

Thorpe was among  who walked out of the national conference, claiming the approach being taken would threaten Indigenous sovereignty. Addressing reporters at the time, Thorpe said that the way forward would be establishing “a sovereign treaty”.

“I want all the legal experts out there to prove to me that we are not ceding any of our sovereignty by entering into the colonial so-called ‘sovereign system,” Thorpe added in relation to the voice.

Extinguishing sovereignty

Coalition PM John Howard  of incorporating First Nations people into the nation’s founding document, via a preamble, in 1998. This same PM ensured Australia was  adopting the United Nations’ Declaration on the Rights of Indigenous Peoples in 2007.

The Julia Gillard Labor government picked up constitutional recognition in early 2012. This led to the “Recognise” campaign. It was at the Referendum Council’s May 2017 meeting that a more robust voice to parliament advisory body was put on the agenda.

Albanese, in his Garma speech, pointed to a number of reasons why this “Aboriginal and Torres Strait Islander voice” should not be seen as a threat to those opposing the idea because it will have no veto power.

This means it is intended that the voice can advise parliament on issues affecting First Nations communities, but there’s no guarantee it will be acted on.

This is where the push for a treaty or treaties differs.

Treaty-making is an agreement negotiated between two sovereign entities, recognising the independence of each party. Any such compact would involve the nation acknowledging Indigenous sovereignty as a foundation to be built upon.

Simply inserting First Nations people into the constitution — a document that does not recognise First Nations’ sovereignty, but rather asserts European sovereignty over the continent will disadvantage them.

The Native Title Act 1993 is a prime example of how official policy can usurp Indigenous sovereignty. Native title law guarantees limited sovereignty to First Nations peoples, but when it conflicts with European rights to land, native title is .

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To improve First Nations rights, Thorpe introduced the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Bill 2022 . It is designed to incorporate the UN principles into Australian law and is currently before the Senate.

“The United Nations Declaration on the Rights of Indigenous People is like a First Nations Bill of Rights,” Thorpe explained. “It talks about our right to self-government, autonomy and self-determination because First Peoples had our own laws before colonisation.”

The Senator’s bill provides that the PM creates a plan on how to enshrine the Indigenous rights set out in the declaration into local laws, in consultation with First Nations communities and the Australian Human Rights Commission.

“Key articles talk about free, prior and informed consent. This is critical because we need to stop colonial governments making decisions about us, without us,” she said.

“Self-determination and free, prior and informed consent need to be at the foundation of any referendum.”

Truth-telling

As Albanese indicated in his Garma speech, the Uluru Statement does not just propose the Indigenous voice to parliament, it recommends establishing a Makarrata Commission to supervise “agreement-making” or treaty-making as well as truth-telling.

According to Thorpe, the Uluru Statement gets the process around the wrong way. She asserts that truth-telling needs to happen first and through what is acknowledged via that process, treaty-making should then take place. Only after this, should a voice be contemplated.

In recognition that the true history of invasion, dispossession and genocide must be recognised prior to any other path being taken, the Greens released a policy in January to establish a  to oversee this truth-telling process.

The Senator has announced that she and Greens leader Adam Bandt will be entering into negotiations with the Labor government, aiming to incorporate the other elements of the statement into the national vote.

The Greens are also insisting that the recommendations from the Royal Commission into Aboriginal Deaths in Custody and the Bringing them Home report be fully implemented. As the party now holds balance of power in the Senate, its support is essential to the government moving on any referendum.

“We need to do all elements of the Uluru Statement together, underpinned by the UNDRIP, to ensure that it’s not an invitation-only process and that all Aboriginal and Torres Strait Islander people — who this will ultimately affect — have an opportunity and the accessibility to participate and make decisions for their own clans and nations,” Thorpe said.

“Those that already support the statement need to open their minds to understand why truth and treaty is the way to ensure a successful referendum.”

[Paul Gregoire writes for Sydney Criminal Lawyers, where this piece was .]