Leading Aboriginal barrister says referendum won't affect sovereignty

The right to govern their own affairs, also known as First Nations sovereignty, has never been acknowledged by Australian law, but remains an important aspiration for many.

The fear of giving up sovereignty has split some Aboriginal communities and driven the "progressive no" campaign, advocates say.

Leading Aboriginal barrister Tony McAvoy said these fears had been misplaced. He understood the views of some with a mistrust of government.

"I think it's a validly held concern of First Nations people that they mistrust government and they are fearful of losing the bits and pieces we have remaining. It comes from a legitimate place, but it's wrong," he said.

"In my view, there is no risk whatsoever of the referendum or the outcome having any affect on First Nations sovereignty.

"It's not so fragile that by a popular vote of the country that has sought to dispossess us that we can then have our sovereignty taken from us - it has to be an express act."

Members of the government including Senators Murray Watt, Malarndirri McCarthy and Prime Minister Anthony Albanese have made this point publicly, but it has been challenged by the No campaign.

Mr McAvoy was the acting Northern Territory Treaty Commissioner from December 8, 2021, to June 30, 2022, and a part of the referendum working group that established the referendum question.

He said the working group, that included other leading Indigenous lawyers, carefully considered this point in coming up with the referendum question.

"It's not an issue ... not for me, or any lawyer I'm aware of that understand the principles of international law, and has had a look at this issue," he said.

Internationally, many First Nations Groups assert competing or co-existing sovereignty over their native lands with governments.

Maori have retained a right to co-sovereignty in New Zealand, and a number of North American native tribes assert sovereignty over reservations that co-exist with other governments.

Mr McAvoy said the cases are similar enough that Australian First Nations groups have a valid legal claim to their own sovereignty under international law.

"There's decisions of the International Court of Justice (ICJ) that gives rise to some arguments about the validity of Australian claims to sovereign status over this whole continent.

"In that context, It's my view that First Nations Australians can validly assert a competing sovereignty."

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