Treaties with Elders: A Legal and Ethical Dilemma for King Charles III and Australia
King Charles III faces a complex issue regarding the recognition of prior occupant ownership of the land his subjects refer to as “Australia.” This problem extends beyond national borders and touches on global concerns related to the recognition of Indigenous land rights, historical dispossession, and the endurance of human societies.
The Core of the Issue: Prior Occupant Ownership
The concept of prior occupant ownership refers to the inherent rights of Indigenous peoples who lived on the land long before the arrival of European colonizers. In Australia, this refers to the Aboriginal and Torres Strait Islander peoples, who have occupied the continent for tens of thousands of years. Their deep connection to the land is not only a matter of cultural heritage but also a fundamental legal right under international law.
UN Resolution 1514 and the Duty of the Crown
As the constitutional Head of State, King Charles III has a legal obligation to address this issue, particularly in light of United Nations Resolution 1514 (1960). This resolution asserts the right of all people to self-determination and demands the end of colonialism in all its forms. It places a responsibility on nations and their leaders to rectify the injustices of colonial dispossession.
For King Charles III, this means negotiating treaties with the Elders of Australia’s Indigenous nations, who are recognized as the rightful Heads of State for their lands. These treaties would acknowledge the prior occupants’ sovereignty and establish legal frameworks to remedy the historical dispossession.
The Threat of Prosecution at the International Criminal Court (ICC)
Failure to act on this obligation has serious potential consequences. Evidence of Indigenous disadvantage has been collected annually since 2007 under Australia’s “Closing the Gap” initiative, which aims to reduce disparities in health, education, and employment between Indigenous and non-Indigenous Australians. The persistence of such disparities could be construed as evidence of ongoing genocide under international law, triggering prosecution at the International Criminal Court (ICC).
The charge of genocide would stem from the ongoing failure to address the systemic disadvantages caused by dispossession. Without treaties that recognize prior occupant ownership, the legal argument could be made that the Crown has failed to prevent the destruction of a people’s way of life—an act that fits within the ICC’s definition of genocide.
Failed Attempts at Treaty via Referenda
Australia has made previous attempts to reconcile its colonial past with Indigenous land rights. The 1999 referendum sought to establish Australia as a republic, which would have included discussions on Indigenous rights, but it failed to secure a majority. More recently, in 2023, another referendum sought to attach prior occupant ownership to the Australian Constitution, a colonial document established in 1901. This referendum also failed, signaling a lack of majority support for the constitutional recognition of Indigenous ownership.
Both referenda aimed to resolve the issue within the framework of an outdated colonial Constitution, which many argue is unfit for modern Australia’s diverse population and its complex history.
The Path Forward: Transacting Treaties
The failure of these referenda underscores the necessity of negotiating treaties directly with Indigenous Elders, rather than attempting to work within the colonial legal framework. These Elders, as representatives of their sovereign nations, must be recognized as Heads of State in their own right. Treaties would not only provide a legal remedy to dispossession but also acknowledge the sovereignty of the First Nations peoples.
Such treaties would signal a commitment to justice and reconciliation, potentially preventing further international legal action. They would also pave the way for a more inclusive and equitable future for Australia, one that honors the rights and dignity of its First Nations peoples.
Global Implications
This issue is not confined to Australia. Indigenous peoples around the world face similar challenges related to land rights, historical dispossession, and recognition of sovereignty. How Australia addresses its past will set a precedent for other nations grappling with the legacies of colonialism.
Failure to remedy dispossession, particularly in light of international legal obligations, risks undermining the global human rights framework. The endurance of human societies, including the peaceful coexistence of Indigenous and non-Indigenous populations, depends on how effectively such issues are resolved.
Conclusion
King Charles III’s obligation to address prior occupant ownership in Australia is not only a legal necessity but also a moral imperative. Negotiating treaties with Indigenous Elders, as Heads of State of their sovereign nations, offers a pathway to reconciliation and justice. Failure to do so risks international prosecution and continued harm to Australia’s First Nations peoples, as well as the broader global human rights framework. The time for meaningful action is now, as the world watches how Australia reconciles with its past and forges a path toward a more equitable future.
Disclaimer:
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any government, legal entity, or organization. The content is intended for informational purposes only and should not be construed as legal, political, or professional advice. Readers should consult relevant legal professionals or experts for specific guidance on issues discussed herein.
