Strelein, Lisa --- "The 'Courts of the Conqueror': the Judicial System and the Assertion of Indigenous Peoples' Rights" [2000] AUIndigLawRpr 22; (2000) 5(3) Australian Indigenous Law Reporter 1

Commentary

The ‘Courts of the Conqueror’: the Judicial System and the Assertion of Indigenous Peoples’ Rights

Lisa Strelein[1]

Conquest gives a title which the Courts of the conqueror cannot deny.

Chief Justice Marshall Johnson v M’Intosh 21 US [1823] USSC 22; (8 Wheat) 543 (1823)

The recognition of common law native title in Mabo v Queensland [No 2][2] affirms the strategy of indigenous peoples’ in utilising the courts to assert their right to self-determination. However, this paper identifies limits to the judicial system in recognising and protecting these rights. The limits are divided into two categories. Firstly, there are constitutional or structural barriers, which limit the power and independence of the courts. These limits stem from the clash of the fundamental doctrines of separation of powers, the rule of law and parliamentary supremacy. Secondly, there are procedural barriers that limit the capacity of the courts to acknowledge and respect indigenous norms. These limits stem primarily from the judicial system’s cultural premises.

Strategic considerations need to be given at both levels. At the constitutional level, questions abound over the judiciary’s power to invalidate legislation. At the procedural level, it is a question of litigation strategies, with a focus on the admissibility and the weight given to indigenous cultural evidence. There are a number of outstanding legal issues relating to indigenous Australians that require consideration of these points, including compensation for the extinguishment of native title, the existence of a fiduciary obligation on the Crown in their dealings with native title and the challenge to the Native Title Amendment Act 1998 (Cth) (NTA Act).

I. The power and independence of the courts

In recent years, the tension between the courts and the legislature has at times been the subject of public discussion.[3] Following the Mabo decision, the High Court of Australia was ferociously criticised for ‘judicial activism’ and ‘usurping the role of parliament as lawmaker’.[4] However, the courts cannot avoid the responsibility of standing between the government and the governed where individual and minority rights are not guaranteed by a written Constitution, as in Australia. In fact, the courts assert their role both in protecting rights and in determining the common law of Australia.[5] But where is the line drawn between parliamentary and judicial power?

The doctrines of the separation of powers, the rule of law and parliamentary supremacy define the power and independence of the courts in relation to other institutions of government. Understanding this relationship is important when contemplating a judicial challenge to the law-making power of the legislature, as would be required by a challenge to the NTA Act or indeed by an argument for recognition of a fiduciary duty on the Crown’s dealings with native title.

The separation of powers

As the wind of political expediency now chills Parliament’s willingness to impose checks on the executive, and the executive now has a large measure of control over legislation, the courts alone retain their original function of standing between government and the governed.[6]

Australia bases its political structure on a separation of powers between the three arms of government — the legislature, the executive and the judiciary.[7] The system is directed to providing checks and balances against the exercise of arbitrary power. Rather than implying a hierarchy within the structures of the state, the independence of the judiciary depends upon it being equal in relations with the legislature and executive.[8] Yet, the power of the judiciary within the structure is often questioned. In institutional terms, Alexander Hamilton, in The Federalist Papers, stated that:

[the judiciary] has no influence over either the sword or the purse ... It may be truly said to have neither force nor will but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.[9]

Hamilton’s comments here are often invoked to support criticism of the courts’ ability to protect rights.[10] If it is true that the courts depend upon the executive for the efficacy of their decisions, then indigenous peoples must question the value of litigating a challenge to the state. But Hamilton himself was championing the separation of powers and the important role played by an independent judiciary.[11]

In Australia, Sir Gerard Brennan has argued, the power and independence of the judiciary is critical to the recognition and protection of minorities and individual interests, particularly in the face of increased control over parliament by the executive.[12]

The doctrine of separation of powers and the notion of representative government are entrenched in the Constitution, but the protection of human rights is left to the operation of those structures and to the central doctrine of the ‘rule of law’.

The rule of law

The capacity of the courts to impose upon the legislature for the protection of rights relies largely upon the rule of law tradition. The notion of the rule of law encapsulates the idea that there are fundamental principles that are ‘superior, and possibly anterior, to positive law’.[13] The rule of law is a constitutional principle, guiding the exercise of power by the state and imposing bounds on positive law.[14] While the rule of law can be explained as an institutional doctrine like the separation of powers, it is generally accepted that it carries certain values of the common law and is intrinsically linked to understandings of rights and freedoms. In recent times, the courts have relied on the common law values, supported by comparative common law jurisprudence and international human rights standards, as a basis for the recognition and protection of rights. The sources of law for identifying such fundamental rights and freedoms were considered and utilised in the Mabo decision to support the recognition of native title on the basis of equality and non-discrimination.

The International Commission of Jurists has argued that the rule of law is not limited to one model of rights, but maintains a continuing and inclusive relevance:

... the Rule of Law is a dynamic concept ... which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which legitimate aspirations and dignity may be realized.15

It is difficult to define the scope and content of the rule of law and, as a consequence, it is seldom invoked. The result is a failure to explicate and develop the doctrine of the rule of law as a constraining force upon the legislature, which, in turn, has led to a serious imbalance between the powers of the parliament and the judiciary in Australia.[16]

Parliamentary supremacy

Underlying many of the criticisms against the Mabo decision is the notion that the law-making power of parliament is supreme. While this is a view often touted by the legislature, it is not a view that sits comfortably with the doctrine of the separation of powers and the rule of law. In his treatise on the Law of the Constitution, Dicey juxtaposed the rule of law against the supremacy of British Parliament. Dicey argued that parliament:

[has] the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.[17]

The High Court has distanced itself from Dicey’s theory of parliamentary supremacy, although, as Sir Anthony Mason noted, ‘not entirely so’.[18] A residual adherence to the influence of Dicey has resulted in the interpretation of the separation of powers doctrine as a judicial deference to parliament in the absence of constitutional limitations. This remains a concern for the protection of rights in Australian law, particularly in relation to limiting the legislative power of parliament.

The new standard

Judicial deference

The approach of the High Court in recent times is described as ’deference to legislative judgement’ rather than a ‘concession to Parliamentary supremacy’.[19] To this end, Sir Anthony Mason argued that:

Judicial deference to legislative judgement — the refusal of the High Court to substitute its opinion for that of parliament on the question whether a law will achieve the legitimate end in view — ultimately rests on the separation of powers rather than on parliamentary supremacy.[20]

This suggests that while the courts may give greater weight to rights than would the political process, they will acquiesce to the power of parliament to abrogate those rights through unambiguous legislation.[21] For example, the power of parliament to abrogate the rights of indigenous people to their lands is a doctrine established in the Mabo decision.[22] The common law protection of indigenous rights falls short of protection against the parliament as sovereign. Arguably, this hierarchy leaves the judiciary vulnerable to the interests of the legislature or executive, creating the type of alliance between the arms of government originally feared by Hamilton.[23]

The significance of the distinction between deference and supremacy, however, is that while the courts respect the role of the legislature, pursuant to the Constitution, legislation must be reasonable and appropriate to the end in question.[24] There has been willingness on the part of the High Court in recent times to check the exercise of political power on this basis. The freedom of communication cases illustrate this point.[25] In Australian Capital Television[26] and Langer v Commonwealth,[27] the Court found that provisions of the proposed law intruded so far into the freedom of expression as not to be reasonably and appropriately adapted to the ends that lay within the limits of power. While the Court relied on a principle of representative government implied in the terms of the Constitution, the power of the Court to invalidate the legislation was founded on the separation of powers.[28]

Legislative interpretation

The courts are willing to presume an intention on the part of Parliament not to infringe upon the rights of citizens, so that ‘where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred’.[29] The text of a statute is interpreted, as far as possible, with respect for the values of the common law, ‘so that they do not trench upon interests by which the common law set great store’.[30] The limits to this protection are to force the legislature to be explicit if it intends to abrogate rights.[31]

These principles are explicit in the Mabo decision, where the High Court recognised a power of the Crown to take away native title arbitrarily, without consent or recompense, so long as the intention of the legislature is clear and plain on the face of the legislation or from its effect. This principle has been applied to limit the extent of extinguishment by legislation of general application. In Yanner v Eaton,[32] for example, the High Court considered the impact on native title of fauna conservation legislation, which asserts the Crown’s proprietary interest in fauna and clearly regulates the taking of fauna. The legislation was found not to display the clear intention of the legislature to extinguish indigenous peoples’ rights to hunt, and nor was such an intention a necessary implication of the construction of the legislation.

The willingness of the High Court to restrain the Commonwealth from interfering with rights is important. It illustrates the strength of the presumption that without unequivocal expression of intent, no statute will be read as authorising an abrogation or curtailment of a common law right. Moreover, it extends that presumption to the protection of fundamental rights and freedoms.[33] But what of the residual power of a parliament to legislate to extinguish all native title completely and forever?[34] On this view, it would seem that where parliament enacts legislation that is harmful to human rights, the courts are ‘helpless to remedy injustice in the face of unjust legislation, enacted within power’.[35]

Abuse of power

Judicial deference leaves scope for the courts to maintain their ultimate oversight function to ensure that no ‘manifest abuse’ of legislative power results in an abuse of the rights of individuals or groups within the Australian polity. This function builds on the notion that a law must be appropriate and adapted to legitimate ends. Early reference can be found to the powers vested in the courts to curb the arbitrary exercise of power by the legislature. The authority of the courts to reject an Act of Parliament was affirmed in Dr Bonham‘s Case in 1610, where Sir Edward Coke pronounced:

it appears in our books, that in many cases, the common law will ... controul Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.[36]

That notion has had little application in Australia.[37] Recent members of the High Court have criticised the earlier approach of the Court for ignoring the separation of powers and the rule of law for the protection of rights and judicial independence.[38] In recent years, it appears that the courts have taken on a renewed independence in recognising fundamental rights. Returning to the words of Hamilton, Sir Gerard Brennan argued that:

[the judiciary, as] the least dangerous branch of government, has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgement.[39]

Brennan argued that the community looks to the courts for the protection of minorities and individuals against any overreaching of their legal interests by the legislative or executive arms of government. In New Zealand, where there is no written constitution, there has been a resurgence of the power of the courts to protect minority and individual interests. In New Zealand Drivers Association v New Zealand Road,[40] President of the Court of Appeal, Justice Cooke, with McMullin, and Ongley JJ, questioned:

the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary Courts of law for the determination of their rights.[41]

In Fraser v State Services Commission, Cooke P felt that ‘some common law rights may go so deep that even parliament cannot be accepted by the Courts to have destroyed them’.[42] While these decisions and the principle that they support have been acknowledged in Australian cases, they have not been affirmed.[43] Mason describes the Australian jurisdiction as ‘more conservative’ in this respect than other jurisdictions.[44]

Testing the boundary: Kartinyeri v The Commonwealth

In the Kartinyeri decision,[45] the High Court of Australia discussed its role in reviewing legislation that affects rights and the limits of legislative power. In that case, a group of Ngarrindjeri women challenged the validity of legislation allowing the building of a bridge at Kumarangk Island, also known as Hindmarsh Island, by taking away the statutory rights of the group under Commonwealth heritage legislation. A majority of the Court upheld the legislation, saying that the Hindmarsh Island Bridge Act 1997 (Cth) was, of its essence, an Act to amend the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth), and that ‘the power to make laws includes the power to unmake them’.[46] The impact of this decision has made indigenous peoples wary of embarking upon a challenge to the NTA Act.

However, with the knowledge that a challenge to the NTA Act lays waiting in the wings, many of the judges of the Court took the opportunity to make further comment. Two of the six judges, Gaudron and Kirby JJ, found an inherent limit in the Commonwealth’s power to make laws with respect to Aboriginal peoples in the text of s 51(26) of the Constitution;[47] that is, any law enacted under s 51(26) would need to be a beneficial law in order to be considered ‘necessary’ and ‘special’ within the meaning of the section. The law must be ‘reasonably capable of being viewed as appropriate and adapted to the difference asserted’.[48]

Two other judges, Gummow and Hayne JJ, also agreed that the Court has the power to overturn legislation that demonstrated a ‘manifest abuse of power’.[49] Gaudron J explained:

A law which deals differently with the people of a particular race and which is not reasonably capable of being viewed as appropriate and adapted to a difference of the kind indicated has no rational basis and is, thus, a ‘manifest abuse of the races power’. So, too, it would be irrational and, thus, a manifest abuse of power if parliament were to enact a law requiring or providing for the difference of the people of a particular race if it could not reasonably form the view that there was some difference requiring different treatment ... it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid.[50]

Indeed, Gummow and Hayne JJ distinguished between the circumstances before the Court in this case, concerning an Act that curtails the operation of another Commonwealth law and one which affects the enjoyment of substantive common law rights. While the courts have been reticent to invoke this kind of power, they have reiterated their reserve capacity to do so. The severe infraction of native title rights may well be a case that invokes the courts’ capacity. Whether the NTA Act, despite the support of international opinion, is a sufficiently severe infraction to prompt such a response is a question yet to be considered.

The extent to which the courts can restrain parliament is as much a matter of judicial doctrine as political philosophy, and precedent exists for a strengthening of the power of the judiciary in this regard. After all, Sir Gerard Brennan observed,

the doctrine of the sovereignty of Parliament must itself be found in the common law which first distributed among the three branches of government their respective functions.[51]

The theory of the rule of law asserts that there are fundamental principles and rights against which the laws of the land can be judged, particularly as they relate to the exercise of power by the parliament against the vulnerable. In the end, the strength and security of common law rights such as native title, depend upon the courts determining the balance of power between the judicial and legislative arms of the state. Unless the courts assert their power to protect rights, parliament can prove its ‘sovereign power’ by interfering with those rights. It is clear that the rule of law and the idea of fundamental, inalienable rights are accepted by the courts. However, the relative balance drawn by the courts between fundamental rights and the intentions of parliament will continue to prove a difficult obstacle for indigenous peoples.

II. The Court as a cultural institution

Perhaps the independence that is most difficult for judges to achieve is independence from those influences which unconsciously affect our attitude to particular classes of people. Attitudes based on race, religion, ideology, gender or lifestyle that are irrelevant to the case in hand may unconsciously influence a judge who does not consciously address the possibility of prejudice and extirpate the gremlins of impermissible discrimination.[52]

There is a second institutional constraint on the capacity of the courts as a strategic tool for indigenous peoples’ claims, arising from the clash of cultures that occurs when indigenous peoples claim distinct collective and cultural rights. This occurs most sharply where indigenous peoples’ law and culture are the foundation for the claim, for example in the context of claims for jurisdiction and self-government.

Legal institutions and legal reasoning are not generally viewed as culturally biased. Nor is it readily acknowledged that for indigenous peoples, utilising the courts requires engaging with a foreign institution. The pervasive view of a universal law and legal institutions has so deeply affected the habits of thought of non-indigenous courts that it has become difficult to conceive of an alternative source of law within the borders of the Australian state and even more difficult to comprehend indigenous peoples’ claims in their own terms. The court procedures and structure reflect the culture from which they were derived, often requiring indigenous peoples to translate their claims.

There are a number of implications of this hidden culture of the legal system. Where the cultural bias of the system is not acknowledged, those who participate in the system act on a number of assumptions, which make it difficult to challenge the prevailing relations of power and recognition.[53]

Fragmenting indigenous peoples’ claims

While hopeful that the Mabo decision signifies a new approach to self-determination claims, Dr Michael Dodson observed what appears to be:

an addiction in the Australian legal system of isolating components of Aboriginal law in order to place them into the artificial compartments which western legal systems are familiar with.[54]

At the heart of this difficulty of translating indigenous claims for the courts is a fundamentally different understanding of what is relevant to the claim.

Nonie Sharp, an anthropologist who spent time with the Meriam people during and after the hearings, concluded that the ‘oral tradition and the absence of corporate political authority’ in Meriam culture tested the capacity of the courts: ‘the former tested the boundaries of the court’s rules of evidence; the latter stretched the court’s comprehension to its limits’.[55] Sharp argued that the legal process had not provided a ‘suitable medium through which to express Meriam people’s relationships to land’. Moreover, at the heart of this ‘badness of fit’ was the gulf between Meriam interrelationship with land and sea and the European idea of land as an economic commodity.[56]

The Meriam people viewed the court case as an opportunity to explain their law, and ‘to make things fair and square’.[57] They had an expectation that they would be given the opportunity to recall the facts of their land tenure and how they came to know these laws, that they would be judged fairly, and ‘that the truth of their ownership would then become evident to the judge’.[58] In this way, the evidence given by the Meriam witnesses was directed toward gaining the courts’ understanding of their law. One of the primary reasons for remittance to the Queensland Supreme Court had been to allow the Meriam people to have ‘the right to give evidence’.[59] Despite this enthusiasm it became apparent very early in the process that the hearing might not allow the Meriam people the opportunity that they had sought.[60]

There are characteristics of legal reasoning that make it difficult for indigenous peoples’ cultural claims to be successfully argued, particularly where assertions of an alternative system of law are made. Unfortunately, there is a number of aspects of legal decision-making that assume the universality of the Australian legal system, including the concept of law itself. In Mabo v State of Queensland,[61] Moynihan J concluded that the Meriam people were ruled more by custom or ‘good manners’ than by law.[62] His Honour dismissed the evidence of several Meriam witnesses who gave evidence as to the existence and exercise of Malo’s law stating that ‘it does not become a rule of law just because any number of witnesses call it a rule of law’.[63] Elsewhere Moynihan J remarked, ‘I would say it sounds more like a system of anarchy than a system of law that disputes are resolved by having a brawl or avoiding a brawl.’[64] As well, there was a perception of a progressive view of human history, in which indigenous peoples occupy some sort of Hobbesian state of nature.[65] To this end, Moynihan J remarked:

I suppose in those general senses any group of human beings — perhaps animals ... has a series of precepts which have to be abided [by, in order to] live together as a group.[66]

Justice Moynihan failed to appreciate his own perceptual biases and as a result, the ‘simplicity of his assumption coloured the summaries and interpretations he interpolated in the course of the hearings; they almost certainly coloured his evaluation of Meriam culture’.[67] Even at the High Court level, Dr Dodson argued that the treatment of indigenous interests in land under native title fails to take into account the spiritual and cultural dimensions of the relationship. Instead the courts focus on economic elements of land use with little understanding of the importance of activities such as hunting, fishing and gathering in the maintenance of indigenous cultural life.[68] Dodson is critical of the courts’ unwillingness to recognise other rights and derivations from a full acceptance of indigenous society as a source of law.[69] This would include much broader jurisdiction and self-government claims.

Demands for self-determination are dissected by the courts into separate piecemeal claims for traditional rights to land, sacred sites, hunting and fishing; claims for jurisdiction and the recognition of customary laws; and claims to inherent sovereignty.[70] Dodson explained further that:

[the] process of artificially selecting what is legitimate provides compromised justice for indigenous people ... [T]he Australian legal system must take a further step of accepting that native title is inseparable from the culture that gives it meaning.[71]

Indigenous peoples are explicit about the connection between law and culture in their society. The interrelationship between claims to land, jurisdiction and sovereignty underscores the difficulty for indigenous peoples of separating and fragmenting claims. In turn, the courts seem to approach each of these categories differently. While claims to land have been accepted, claims to jurisdiction have been rejected.[72] Of course, claims to land are intimately tied to and in fact are part of a broader indigenous law.

Receiving testimony: Kumurangk Island

Translating claims through the giving and receiving of testimony is central to considering how oral traditions are respected and accommodated within the court processes.[73] The unacknowledged biases of legal procedures and reasoning, and of legal practitioners, have a propensity to put indigenous culture on trial. Throughout the Kumarangk dispute, the beliefs of the Ngarrindjeri women were viewed with suspicion. Many of the Ngarrindjeri women refused to recognise the authority of the Royal Commission and did not give evidence.[74] For those who did give evidence, it was a frustrating experience. The following exchange between George Trevorrow, questioned by the Counsel assisting the Commission, David Smith, is illuminating:

Q. How did you know that by connecting the island to the mainland by a bridge ... was somehow offensive to its significance as a place of women’s business?

A. I think it is just common sense.

Q. But you didn’t know anything about the content of the women’s business.

A. No I still don’t know any of the content.

Q. It may be that a bridge from the island to the mainland would have no effect on ...

A. It is still going through our waters ...

Q. The importance of the waters is something to do with women’s business is it?

A. It very well could be, but it is important to the Ngarrindjeri culture because of the meeting of the waters. I didn’t want to say this, but the place of the waters relates to what we call — the Ngarrindjeri people call Ngaitji, which is each clan group’s symbolic totem so to speak. Those places like that is where these things breed, where they live, where they feed, all those things. To upset the totem area you are upsetting everybody. But I don’t expect you to understand that, the Ngarrindjeri Ngaitji.

Q. Let me put a suggestion to you: what you are talking about is a disturbance to the environment. Is that right?

A. No, more than that. To what those Ngaitji are to the people. They are not just animals and fish and snakes and things to us. They are real. They are more like people. Spiritual ...

Q. I want to put a label on it so that we can understand it. Is it the case that what you are talking about that is that a bridge cannot go to the island — is to do with some other spirituality of the island, not women’s business?

A. I’m talking about my business

Q. Can you tell us as much as you can about that?

A. I said it just now. N-G-A-I-T-J-I.

Q. Which is what you are talking about, is a question of protecting the island from a lot of people coming to the island and ruining it. That’s what it is isn’t it?

A. You interpret it as environment, I don’t. We have a different interpretation it seems. We cannot as Aboriginal people, separate environment and culture. They go hand in hand.

Q. The Ngaitjis, that is the bird symbols and totems for the clans and people, are in fact the wildlife, aren’t they?

A. As you view them yes.

Q. Why are they different from —

A. Because — no, I can’t talk to you about that. It is plain to see you would never understand about that anyway.

Q. I am suggesting that your objections to the bridge, in the end, boils down to really protecting the island from too many people coming onto it and degradation that would lead to in terms of wildlife, plants and that sort of thing. That’s what it is about, isn’t it?

A. Well, that’s what you are calling it.

Q. You say it is more than that do you?

A. Yes.[75]

Irene Watson points to the disrespect for and ignorance of indigenous peoples’ law and culture illustrated by this exchange.[76] It also illustrates the difficulty of translating indigenous peoples’ holistic conceptions of land and culture within the traditions of the colonial legal system.

The proceedings in this case highlight the continuing problem of legitimacy of the Australian legal system for indigenous peoples seeking protection of cultural interests.[77] The dispute involved a struggle over Aboriginal heritage protection for Kumarangk Island, also known as Hindmarsh Island, in South Australia, and a bid to halt development of a bridge to the mainland. The Ngarrindjeri people argued that the island and the surrounding waters were of special significance because of their importance to the spiritual and cultural beliefs of the Ngarrindjeri, including particular sacred and secret beliefs exclusive to Ngarrindjeri women. The integrity of the women claiming sacred knowledge and significance was directly challenged and a South Australian Government Royal Commission determined that the sacred knowledge was a fabrication. The Commissioner, Justice Iris Stevens, concluded that ‘the beliefs said to constitute the “women’s business” ... are not supported by any form of logic, or by what was already known of Ngarrindjeri culture’.[78] The question is: by ‘whose knowledge, and whose logic’ were these claims assessed?[79]

The Commonwealth Hindmarsh Island Report, prepared by Justice Jane Mathews, was highly critical of the findings of the Royal Commission but there too, Justice Mathews found it difficult ‘fitting Aboriginal beliefs about land into the language of the Heritage Protection Act’.[80] In greater detail, Justice Mathews went on to observe that:

the law requires that those who oppose a declaration [under the Act] must be given an opportunity to respond to the ‘case’ against them. And if that case depends upon ‘embargoes’ or ‘rules’ which are associated with a particular tradition, then the law says that the opponents of a declaration must be told of the details of that tradition. This no doubt places a heavy burden on applicants, particularly those who are relying on confidential traditions.[81]

Hilary Charlesworth noted that Justice Mathews’ comments here highlight the ‘irony of the inability of legislation designed to protect Aboriginal heritage to understand that heritage in its own context’.[82] Instead, indigenous peoples are forced to reformulate their claims.

In the proceedings of the Mabo case, there was an understandable expectation from the Meriam that testimony, as a form of evidence, would be capable of embracing the oral traditions of indigenous peoples. However, as Archie Zariski pointed out, it constitutes ‘a trap’ for those concerned with cultural claims.⁸³ Precisely because the courts are cultural institutions, their reasoning reflects the culture from which they were derived. Therefore, Zariski argued:

If testimony is ultimately justified by virtue of necessary contribution to the coherence and cohesiveness of a western world view then the giving of testimony will be perilous for those who do not share such a world.[84]

The formal rules of evidence, particularly the rule against the admission of hearsay, illustrate this trap. Justice Peter Gray described these difficulties as:

the stark contrast between the distrust by the Anglo-Australian legal system of information received second hand as opposed to the status and authority accorded in Aboriginal law to information received through other people.[85]

The rules of evidence rely on inductive logic and notions of objectivity.[86] It is arguable that Western legal ways of assessing truth are unable to do justice to the testimony of those who do not share the same traditions of thought.

The use of history in the Yorta Yorta determination

Sharp argued that the challenges for the courts in receiving indigenous peoples’ evidence in the Mabo case are not primarily problems of language but of understanding in a more complex sense.[87] While some judges accept the importance of oral evidence in such claims, the courts do not fully accept the legitimacy and authority of indigenous knowledge systems.

When Justice Olney of the Federal Court of Australia rejected the native title application of the Yorta Yorta, his Honour determined that ‘the tide of history’ had washed away any traditional rights of the Yorta Yorta.[88] Olney J relied on a concept of ‘traditional society’ to reject any title founded upon occupation because it was not occupation in the ‘relevant sense’. Justice Olney was distrustful of the evidence of members of the Yorta Yorta community because it was not corroborated by colonial histories of the area.[89] Moreover, the evidence and practices of the Yorta Yorta were seen as romanticised attempts at cultural revival.[90] Such disrespect and misunderstanding of the concepts of tradition, culture, society, and indeed law, continue to frustrate the native title process and the claimants.

The colonial law provides the terms in which claims must be stated. As such, indigenous peoples must frame what are essentially historical, moral challenges to the legitimacy of assertions by the state in terms acceptable to an arm of the state. The evidence of indigenous peoples has caused the courts to reconsider their familiar rules including, for example, the objectivity of written historical material. In Ward v Western Australia,[91] Justice Lee pointed, in particular, to the responsibility of the Crown in this regard, as the party that is most often the principal opponent to indigenous peoples’ claims. In relation to native title, his Honour argued that:

If it is accepted that the Crown is presumed to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources, there can be no suggestion of unfairness in a trial process in which Aboriginal applicants are permitted to present their case through use of oral histories and by reference to received knowledge.[92]

Moving forward: the Delgamuukw cases

The views of Justices Moynihan and Olney reflect those expressed in many decisions regarding indigenous systems of law throughout the common law world. One notable comparison is the decision of Justice McEachern of the Supreme Court of British Columbia in Delgamuukw v The Queen (1991).[93] In relation to the Gitksan and Wet’suwet’en peoples’ claim for the recognition of self-government and other rights, Chief Justice McEachern of the Supreme Court of British Columbia remarked:

I have heard much at this trial about beliefs, feelings and justice. I must again say, as I endeavoured to say during the trial, that courts of law are frequently unable to respond to these subjective considerations.[94]

This view was rejected by the Court on appeal. The decision of the Full Court of the Supreme Court of Canada in Delgamuukw v British Columbia[95] affirms the importance of adapting common law rules of evidence to accommodate the claims of indigenous peoples. Chief Justice Lamer held that:

aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples.[96]

Specifically, Lamer CJ stated that this would require the courts to ‘come to terms with oral histories’, recognising that for many indigenous peoples oral histories are the only record.[97] Lamer CJ expressed concern that although admitting the oral history evidence, the trial judge had not given any weight to them, presumably because the indigenous witnesses did not accurately convey historical truth as a court would normally understand it. Chief Justice Lamer suggested that McEachern CJ expected too much of the oral histories and placed an impossible burden on the claimants given the evidence that was available to them.[98] Moreover, Lamer CJ was fearful ‘that if this reasoning were followed, the oral histories of aboriginal people would be consistently and systematically undervalued by the Canadian legal system’.[99] These criticisms are equally applicable in the Australian context to the approach of Justice Olney in the Yorta Yorta determination.¹⁰⁰

More recently, the Canadian Supreme Court has gone further to place the issue of the objectivity of historical records squarely at the feet of the Crown, particularly in the interpretation of treaties. In R v Marshall,[101] the Court reaffirmed the principle that ‘the Honour of the Crown is always at stake in its dealings with aboriginal people’.[102] Therefore, particular care must be taken in interpreting treaties that were negotiated orally and then written up by the Crown.[103]

An alternative approach based on equality and respect

Michael Asch and Catherine Bell argue that the greatest difficulty facing indigenous peoples’ claims is the reluctance of judges to view the evidence from a perspective outside their own.[104] The failure to acknowledge the cultural bias of legal processes and reliance upon the myth of an objective, neutral, universal law is coupled with a conscious or unconscious stereotyping of indigenous society. Asch and Bell observed that:

The unfamiliar is characterised as subjective cultural belief rather than as factual and objective, leaving Aboriginal assertions of truth to be seen as untrustworthy and beyond proper consideration in a court of law.[105]

Specific instances of this form of institutional discrimination and its prevalence are evident in the examples used in the discussion so far. However, Sharp observes signs of ‘an awakening sensibility’ within the legal system, partly in response to the Mabo decision, at the heart of which is an evolving understanding and respect for indigenous peoples. Sharp argued that:

[there is] a break in ‘the natural inheritance’ of those born of the conquerors [and] an acceptance of the integrity of cultural difference and with it the tenet that the peoples who were dispossessed ‘are their moral equals’.[106]

The acceptance of indigenous evidence would face the greatest difficulty where, as in the case of the Gitksan and Wet’suwet’en, they were trying to explain their system of laws and government in a cultural context. However, in the Mabo decision, the High Court of Australia expressed concern that the difficulty of proving indigenous peoples’ claims should not preclude their recognition.[107] While the statements are not as strong as in the Canadian context, there is a presumption of respect for, and giving due weight to, the indigenous perspective of what is appropriate and cogent evidence.

As a first step, acknowledging that the law is a cultural institution would substantially alter the approach taken to the proof of claims. Examining these issues in the Canadian context, Asch and Bell called for a ‘new legal epistemology’, a ‘new jurisprudence’ that is premised upon the equality of peoples.[108] An approach based on equality of peoples would accommodate alternative worldviews rather than requiring the remoulding, or worse the rejection, of claims based on cultural assumptions. The result would be that courts would no longer denigrate indigenous evidence as subjective belief and hurt feelings. Such a reconstruction would require acknowledging cultural bias and introducing new laws admitting indigenous peoples’ cultural evidence. This includes recognition of, for example, story telling of dreaming tracks, responsibility for land and culture, ways of governing and of laws and relationships, as well as recognising the history of dispossession and genocide.

Given the limitations of the courts in their cultural context and the institutional or structural constraints on them, asking the courts to recognise and support claims by indigenous peoples is fraught with dilemmas. Such claims require reliance on an institution that is in part responsible for legitimising centuries of dispossession and denial of indigenous self-determination.

III. Utilising the courts

To ask [courts] to produce significant social reform is to forget their history and ignore their constraints. It is to cloud our vision with naive and romantic belief in the triumph of rights over politics. And while romance and even naiveté have their charms, they are not best exhibited in courtrooms.[109]

The state maintains relative power and often, as Nettheim noted, law ‘simply follows and legitimates power’.¹¹⁰ In both form and content, there is a pervasive legal bias in favour of the state, and the courts are therefore resistant to challenges to the legitimacy of the state.[111] The common law is not wholly accommodating of the claims themselves and defers to the sovereign to which it owes its authority; nor are courts accommodating of alternative worldviews, forms of expression and unfamiliar conceptions of order and authority. Moreover, the institutions of the common law require indigenous peoples to formulate their demands in a culturally specific language that does not adequately accommodate an indigenous perspective.

Critics argue that the result is an abdication of judicial responsibility for the actions of the state.[112] For example, Chief Justice Marshall of the US Supreme Court coined the phrase ‘courts of the conqueror’, arguing that the courts were powerless to interfere in the subjugation of Indian nations to the United States.[113] But the courts are an arm of the state; they are not the courts of the conqueror — they are the conqueror. They have used their authority to affect the rights of indigenous peoples and, in particular the relations between indigenous peoples and the state. Yet the courts perceive themselves in a hierarchy in which they assert that they are unable to entertain a challenge to state sovereignty.

Common law and indigenous law

The need to overcome an implicit assumption of universality is not exclusively a problem of the courts. Assumptions of superiority and an evangelical imposition of one vision of the truth is a feature of colonialism.[114] Arguably, the courts are best placed amongst the institutions of the state for bridging intercultural dialogue. Although indigenous peoples have always resisted colonisation, recent recognition from the non-indigenous state has come largely through acknowledgment of claims in the courts, as well as recognition in international law.

In the Canadian context, James Tully identified an ‘aboriginal and common law system’ of intercultural dialogue already in existence, in which the three principles of, mutual recognition, continuity and consent, constitute a system that is familiar to both indigenous law and common law systems.[115] The principles of mutual recognition and consent equate with the ideas of equality and respect already highlighted, whereas the principle of continuity embodies the idea of a dialogue, recognising that relationships between equals must be continually renegotiated. Tully argued that this aboriginal and common law system of inter-cultural dialogue has been ‘hidden beneath the empire of modern constitutionalism’.[116]

As Tully argued, the common law method should be more open to this type of reasoning because:

[in law] understanding a general concept consists in being able to give reasons why it should or should not be used in any particular case by describing examples with similar or related aspects, drawing analogies or disanalogies of various kinds, finding precedents and drawing attention to intermediate cases so that one can pass easily from familiar cases to the unfamiliar and see the relation between them.[117]

The value of analogical reasoning was also argued by Cass Sunstein, who suggested that the use of analogy allows for ‘incompletely theorised agreements’, in which there is no need to agree on universal principles but to recognise differences and similarities in order to reach a resolution.[118] Similarly, Tully pointed to the claimants in the Delgamuukw decision, arguing that indigenous peoples are adept at explaining concepts of indigenous culture and law, contrasting these with European understandings and finding intermediate examples to help the court understand.[119]

Enforceability of court decisions

The enforceability of court decisions depends, to a large degree, on other arms of government for their implementation. Dicey used the example of the Cherokee Nation case to illustrate the weakness of the courts when they are in conflict with the interests of the state and without the support of the executive.[120] When Chief Justice Marshall held that state government laws could not interfere with the sovereign-to-sovereign relationship between the Cherokee Nation and the Federal government, United States President Andrew Jackson is reputed to have remarked ‘John Marshall has made his decision, now let him enforce it’.[121] The decision in Worcester v Georgia was not implemented and the Cherokee were forcibly removed from their lands.[122] This classic example can be likened to the political and legislative response to the Wik decision. The decision of the High Court of Australia to recognise the co-existence of native title and other interests, in particular over pastoral leases, was met with open hostility leading to changes to the Native Title Act 1993, which restricted rather than built upon the High Court’s decision.

It has been argued that the courts’ inability to implement decisions is the critical factor in their failure as tools for social reform. In making this argument, Rosenberg relied on cases such as the US Supreme Court decision in Brown v Board of Education[123] in which the Supreme Court held that the segregation of schools on the basis of race was unconstitutional.[124] Rosenberg argued that due to insufficient popular support for the decision, the lower courts failed to implement the decision and there was no political will to enforce de-segregation.[125] It was more than 10 years before any significant change in segregated schooling occurred. Rosenberg suggested that the decision may have even heightened opposition to the civil rights movement. This criticism centres not only on the limits of the courts’ willingness to challenge the legitimacy of acts of state but also on their capacity to effect a change in the relations of power within the state.

However, these criticisms often fail to pay sufficient regard to the long term development of the law from a particular decision. The difficulty of implementing a particular decision can be contrasted with the value of the recognition of rights and the development of beneficial doctrines over time. Common law native title is a relatively undeveloped doctrine within Australian law and at times it appears that the promise of the Mabo decision is whittled away by restrictive decisions like Fejo v Northern Territory.[126] Then, there are cases such as the Wik and Yanner decisions that have expanded the doctrine to the advantage of indigenous rights. It is the nature of the common law, however, that the law of native title will take time to develop into a coherent set of principles.

For example, the findings in Worcester v Georgia form the basis of the ‘domestic dependent nation’ doctrine that recognised a limited form of sovereignty inherent in Indian nations.[127] Repeatedly, Indian nations have returned to the US Supreme Court to enforce this principle. The result is an evolving legal doctrine that limits the exercise of power by governments through recognition of a sovereign sphere of autonomy in the Indian nations. In this respect, the doctrine could be described as quasi-constitutional, although its genesis is from within the common law.

It took 10 years of litigation in the Mabo decision alone before the High Court recognised indigenous peoples’ laws and rights over their traditional lands. The Meriam people were declared to hold title to their lands ‘as against the whole world’.[128] However, the delay and expense in achieving reform through such a process appears to support arguments that courts are not structured for social reform.[129]

Indigenous peoples may question whether an alternative approach that concentrated efforts on direct political action would have a significant effect in relation to indigenous self-determination. The limits of the political, social and economic power of indigenous peoples in relation to the state constrain their ability to influence the political agenda. Thus, to a large degree, indigenous self-determination depends upon the will of the state to permit it, regardless of the theoretical, legal or moral authority of the claim.[130] Instead, it has been argued that the greatest self-determination gains have been achieved through indigenous peoples appropriating the state bureaucracies and using the legal processes to their own advantage.[131]

It is in this context that Werther argued the incremental nature of self-determination gains has been the essence of their success.[132] If an incremental approach is appropriate, then the courts may be better suited to the claims of indigenous peoples than is suggested by Rosenberg’s analysis. The development of doctrines over time, characteristic of the common law, fits within this incremental strategy. The implementation of specific decisions is therefore better understood as part of a broader, long term view of what is required to achieve social and political change from within the structures of the colonial state.

Advantages of the court process

There are strategic advantages as well as direct benefits in using the courts. As an institution and an arm of government, the courts provide an important public forum for the assertion of self-determination claims. The size of the indigenous population and the relative power of the state make it necessary for indigenous people to locate the forum where their voice will be heard. The courts provide an opportunity to assert rights, challenge the state, publicise claims and educate the community.

The strategic advantages of the courts make them one of the more useful tools in maintaining momentum toward self-determination. Noel Pearson has commented on devising strategies that:

[indigenous peoples] need to be realistic about the following: first, about the content and the nature of the tools which are available to us; second, about what these tools can positively achieve. They are limited tools and to optimise results we must use them wisely and skilfully.[133]

While accepting that the courts are not the answer to every claim of rights and having regard to their limitations, the advantages for indigenous peoples in accessing a central arm of government and public forum are important. The strategic advantages of the court as a forum are recognised but so too are the real advantages of attaining specific outcomes and the realisation of long term self-determination goals through the common law.

Apart from the common law, it is arguable that courts hold other advantages for indigenous peoples’ self-determination claims. The freedom of the courts from the vagaries of political and electoral pressures enables them to determine issues outside the public debate or popular opinion. This independence is imperative for the assertion of self-determination claims that may threaten the privileges of the majority or more powerful interests. Claims for the protection and promotion of the rights of minorities are bound to be politically unpopular as we have seen in recent political debate surrounding the Wik decision and the NTA Act. Therefore, the courts are often able to act where other arms of the state are unable or unwilling.

The adversarial system provides equal access and influence by allowing indigenous claimants to meet the state on a more equal footing, at least in terms of the presentation of argument.[134] It is argued that the legal processes provide greater assurance that all interested parties will be heard and that all relevant information will be brought to bear.[135] The rigorous assessment of the information ensures that the actions and views of the state are questioned outside the bureaucracy that supports them. Importantly, the arguments before a court can be based on principle, enabling self-determination claims to be asserted without compromise. The determinations of the courts, in turn, reflect the nature of the arguments. Thus, the courts are able to make aspirational and principled statements.[136] Abram Chayes argued that:

the ability of a judicial pronouncement to sustain itself ... and the power of judicial action to generate assent over the long haul become the ultimate touchstones of legitimacy.[137]

Chayes went further to suggest that ‘judicial action only achieves such legitimacy by responding to and indeed stirring the deep and durable demands for a just society’.[138] The principle advantage of the courts is the requirement to be objective. Impartiality requires more than the absence of actual bias; it requires respect for due process, that is, ‘treating equally all those who seek its remedies or against whom its remedies are sought’.[139] While acknowledging criticisms that reject the notion of judicial objectivity, those coming before the courts can demand impartiality and challenge the legitimacy of a court that is not seen to be objective. Political or personal preferences are expected to be excluded from the determination of the court and, through written reasons, determinations are often more transparent than political decisions.

As we have seen, however, the method of assessing information in the courts is a double edged sword and has marked implications for indigenous peoples’ claims. Concern has been raised that the consideration of what is relevant to the claims, as well as the methods of assessing claims, is biased in favour of information and evidence from within a particular sphere of thought.[140]

Courts as part of a broader strategy

Where indigenous peoples ground their claims in their sovereignty as peoples, they challenge the state’s need for formal legitimacy as a ‘law abiding polity’.[141] That is, they highlight the contradictions in the treatment of indigenous peoples under the law. To this end, there may be a strategic advantage gained by structuring the debate around the concept of indigenous status. Claiming indigenous status provides a legal and moral basis for achieving self-determination that courts find as difficult to ignore as it is to reconcile with the existing law. Specific doctrinal arguments are often overshadowed by the challenge that claims of indigenous status pose to the core of state claims to exclusive sovereignty and the primacy of individual rights. To the extent that the courts recognise self-determination claims, they are giving reality to indigenous peoples’ sovereignty and existence of collective rights. As a corollary, the assertion of indigenous self-determination claims in the courts challenge state assumptions regarding the applicability of individual or group rights within the liberal state.[142]

Arguing for the recognition and protection of indigenous rights through the courts may heighten the power of claims that can be suppressed or disregarded in the political sphere. While opponents may argue that framing questions for the courts strips the claims of popular appeal, there remain significant indirect benefits in terms of political leverage and ‘pricking powerful consciences’.[143] Success, or indeed failure, in the courts can be seen as a tool to agitate for policy and legislative change. Patrick Macklem observed that even small victories in the legal sphere can be quickly translated into political power.[144] Macklem argued that indigenous peoples have made far more gains in the legal sphere than in the political sphere because legal decisions often act as the impetus for political change.[145]

Where indigenous peoples lack the key resources that translate into political influence, the courts may strengthen the voice of the claimants within the other branches of government. Judicial delineation of rights, however limited, can be used as bargaining power in negotiations over specific policy outcomes. For example, in 1971 Justice Blackburn of the Supreme Court of the Northern Territory refused to recognise Aboriginal title to lands.[146] The decision prompted the Whitlam Labor Government to initiate discussion on national land rights. As a result land rights legislation was introduced in the Northern Territory and later in almost all other states.[147] Werther observes that ‘the political effect of this decision was to energise a national debate over Aboriginal rights and eventually lead to major concessions by the state’.[148]

Success in the courts can also provide indigenous peoples with tools that can be wielded in negotiations with the government for even greater measures of self-determination. In some instances, the threat or spectre of litigation can provide the necessary political pressure to facilitate negotiations. This process could be observed in Australia in the wake of the Mabo decision. The recognition of rights to traditional lands under the common law led to the introduction of the Native Title Act 1993, confirming native title in Australian law. The High Court decision also gave indigenous peoples greater power in negotiating the final form of the legislation than had been the case with previous land rights legislation.[149] Similarly, the inadequacy of the quality of native title recognised in the Mabo decision was highlighted and as a result the Government made an undertaking to introduce social justice measures and a land fund to make restitution for the past dispossession.[150] While the process in 1993 can be directly contrasted with the process surrounding the 1998 NTA Act, the recognition of rights in the Mabo decision fundamentally altered the relationship between indigenous peoples and the Australian state. It set a standard for decision making in relation to indigenous peoples’ rights that has been recognised internationally. The Committee on the Elimination of Racial Discrimination premised much of their recent criticism of Australia and the NTA Act on the lack of consultation and consent from indigenous peoples in relation to the legislation.[151]

This view directly contrasts with the criticisms of the courts’ implementation power and presents the courts as a public, and therefore political, forum from which to agitate for reform. While it may be true that in most respects the courts are an imperfect, or conservative, measure of ‘true relations’ between indigenous people and the state, they may also impel changes in ‘direction, trend and pattern’ of those relations.[152]

Conclusion

In the absence of constitutional recognition of indigenous peoples in Australia, the common law is often the only source of rights claimed by indigenous peoples against the state. The notion that the courts are the ‘least dangerous’ branch of government may explain indigenous peoples’ willingness to utilise the courts. Sir Gerard Brennan concluded that:

If we again ask the question ‘are the courts fitted to provide an effective check against any oppressive exercise of power by the other branches of government?’ the answer is not an unqualified yes or no ... The Judicial Branch of government is still the least dangerous branch to the political rights of the community and the most constant protector of those rights, but its strengthening is critical to the democratic freedom of which we boast and to the peace, order and good government that are the birthright of future generations.[153]

Indigenous peoples in Australia and elsewhere have found the courts, and the common law in particular, a useful instrument to achieve direct benefits in the recognition of rights, public recognition of their claims and political leverage in negotiating with the state. However, the vulnerability of the courts to the legislature and the executive must be considered, particularly where it impacts on the courts’ capacity to recognise indigenous peoples’ claims. The courts must also be acknowledged as a cultural institution with inherent limits to understanding, recognising and respecting indigenous claims. l

[1] Dr Strelein is a Visiting Research Fellow at the Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies. The author wishes to thank Professor Hilary Charlesworth and Dr Robert Jansen for their comments on earlier drafts.

[2] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1.

[3] Most notable perhaps is the response to the decision of the High Court in Wik Peoples v State of Queensland (1996) 187 CLR 1 as well as the recent fall out between the Northern Territory Government and the judiciary over mandatory sentencing laws.

[4] See for example, Lane P H, ‘The changing role of the High Court’ (1996) 70 Australian Law Journal 246-51. Controversy has not centred on that decision exclusively: see also Nationwide News Pty Ltd v Wells [1992] HCA 46; (1992) 177 CLR 1; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455; and Minister for Immigration v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353.

[5] [1992] HCA 23; (1992) 175 CLR 1 at 29 per Brennan J.

[6] Sir Gerard Brennan, ‘Courts, democracy and the law’ (1991) 65 Australian Law Journal 32.

[7] The separation of powers is explicit in the construction of the Constitution (Chapters I, II and III refer to the Parliament, the Executive and the Judicature respectively) and particularly the independence of the judiciary through security of tenure and guaranteed remuneration (s 72), and the constitutional protection of Chapter III Courts. The High Court has determined that representative government is implied by ss 7 and 24, referring to election ‘directly by the people’: see Nationwide News Pty Ltd v Wells [1992] HCA 46; (1992) 177 CLR 1; and Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[8] The independence of judiciary and the separation of powers was affirmed in R v Kirby: Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 and Attorney-General for the Commonwealth v The Queen [1957] HCA 12; (1957) 95 CLR 529.

[9] Hamilton A, ‘A view of the constitution of the judicial department in relation to the tenure of good behaviour’, chap LXXVIII in Hamilton, Madison and Jay, The Federalist Papers [1787-88] (Isaac Kramnick ed) Penguin Middlesex 1987, p 437.

[10] See for example, Rosenberg G, The Hollow Hope: Can Courts Bring About Social Change? University of Chicago Press Chicago 1991, pp 2-3.

[11] Hamilton, above note 8, p 437.

[12] Sir Gerard Brennan, ‘Justice resides in the courts’, Opening Address to the Symposium of the Australian Judicial Conference, Canberra, 2 November 1996, reproduced in edited form in The Australian 8 November 1996, p 15. The incomplete separation of the powers of the executive and legislature was recognised by the High Court in Brown v West (1990) 169 CLR 195 at 201. Sir Anthony Mason noted that the independence of the judiciary is therefore the strongest element of the separation of powers structure: Mason A, ‘A new perspective on the separation of powers’ paper delivered to the Reshaping Australian Institutions ANU Public Lecture Series, No 1, 25 July 1996, p 10.

[13] Walker G, The Rule of law: Foundation of Constitutional Democracy Melbourne University Press Melbourne 1988, p 3. Brennan G, above note 11, argued that ‘a free society only exists so long as it is governed by the rule of law — the rule which binds the governors and the governed’.

[14] Justice Toohey, ‘A government of laws, and not of men?’ (1993) 4 Public Law Review 158 at 160 footnote 10 admitted that the common law had not necessarily consistently protected the interests of minorities, but suggested that perhaps insufficient use was made of the common law prior to the introduction of discrimination legislation. See also Tatz C, ‘Aborigines and the civil law’, in Hanks and Keon-Cohen (eds), Aborigines and the Law Allen & Unwin 1984, pp 103-36.

[15] International Commission of Jurists, The Rule of Law in a Free Society Report of the International Congress of Jurists New Delhi 1959, p 3. Contrast Raz J, ‘The rule of law and its virtue’ (1977) 93 Law Quarterly Review at 195-6, who described the statement by the ICJ as a ‘perversion’ of the rule of law. See also Walker G, above note 13, pp 11-12.

[16] Allen T R S, ‘Legislative supremacy and the rule of law: Democracy and constitutionalism’ (1985) 44 Cambridge Law Journal 114 commented that the failure of the courts to develop a clear and coherent doctrine of the rule of law can be traced to Dicey’s failure to present his formulation ‘in clear juristic terms’.

[17] Dicey A V, Introduction to the Study of the Law of the Constitution (8th ed) McMillan London 1915, p 38.

[18] Mason A, ‘Defining the framework of government: judicial deference versus human rights and due process’ Paper presented to the Centre for Public Policy, Workshop on the Changing Role of the Judiciary University of Melbourne 7 June 1996, p 5: see also p 22. Some renowned constitutional commentators still affirm the doctrine: see for example Lane, above note 4, at 250. Perhaps the clearest rejection of parliamentary sovereignty can be found in Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[19] Mason, above note 18, p 23.

[20] A ‘legitimate end’ is the legitimate exercise of a constitutional head of power; see Mason, above note 11, p 33.

[21] Mason, ‘Future directions in Australian law’ (1987) 13 Monash University Law Review at 163 and Mason, above note 18, pp 24-25.

[22] [1992] HCA 23; (1992) 175 CLR 1 at 33-36 per Brennan J.

[23] Hamilton, above note 8, p 437. See also Werther G, Self Determination in Western Democracies: Aboriginal politics in comparative perspective Greenwood Press Westport 1992, p 36.

[24] Mason, above note 18, p 23. The test, originally adopted in reference to the external affairs power, has been applied more generally: see Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; compare Langer v Commonwealth (1996) [1996] HCA 43; (1996) 186 CLR 302 at 413.

[25] The High Court’s preference for tracing protection to a textual basis within the Constitution goes some way to explain the Court’s willingness to venture out in these decisions, although the link between free political communication and representative government to ss 7 and 24 is not direct: see Nationwide News Pty Ltd v Wells (1992) 177 CLR l; Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; and Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.

[26] [1992] HCA 45; (1992) 177 CLR 106.

[27] [1996] HCA 43; (1996) 134 ALR 400.

[28] Mason, above note 18, p 22 noted that parliamentary supremacy did not feature in the reasoning of the Court.

[29] Balog v Independent Commission against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 635-36.

[30] Mason, above note 21 at 162; Brennan, above note 11 at 37; Allen, above note 16 at 134. Affirmed in Coco v the Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-37.

[31] See Mason, above note 18, p 28; Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 100, and Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-37.

[32] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258.

[33] Mason, above note 18, p 28. See Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-37.

[34] This is at least the case in relation to Commonwealth legislation. State legislation in this regard has the additional constraint upon power imposed by the Racial Discrimination Act 1975 (Cth). See WA v Commonwealth (the Native Title Act case) [1995] HCA 47; (1995) 183 CLR 373.

[35] Brennan, above note 11 at 37.

[36] Dr Bonham‘s Case [1572] EngR 107; (1610) 8 Co Rep 113b 118a [1572] EngR 106; 77 ER 638 at 652 per Coke LJ with Warburton and Daniel JJ. This was not an isolated case: see Walker, above note 13, pp 118, 154. With respect to the power to void an act of the executive, see Prohibitions del Roy [1572] EngR 255; (1607) 12 Co Rep 63; 77 ER 1342.

[37] This was particularly the case during the time of Chief Justice Dixon, who reputedly had a ‘low opinion’ of the separation of powers doctrine: Mason, above note 11, p 13. See generally, Sir Owen Dixon, ‘The law and the constitution’ (1935) 51 Law Quarterly Review 590, especially at 606. Walker, above note 13, pp 118-19 suggested that the doctrine merely fell into disuse and as such has never been strictly overturned: see, for example, Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 101 at 117-18 per Evatt J.

[38] See generally, Mason, above note 18; Mason, above note 11; Toohey, above note 14; Brennan, above note 12.

[39] Brennan, above note 11, p 15 using the words of Hamilton, above note 8, p 437.

[40] [1982] 1 NZLR 374.

[41] [1982] 1 NZLR 374 at 390.

[42] [1984] 1 NZLR 116 at 121. That view was confirmed in Taylor v New Zealand Poultry Board [1984] 1 NZLR 294 at 398.

[43] See Employees and Builders Labourers Federation of NSW (BLF) v Minister for Industrial Relations (1986) 7 NSWLR 372 at 403-404 per Kirby P and at 386-387 per Street CJ. See also Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125 at 152 per Mahoney JA. Compare House of Lords decisions concerning Nazi war crimes, where legislation constituted ‘so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as law at all’: Oppenheimer v Cattermole [1976] AC 249 at 278. See also the House of Lords decision in R v Home Secretary, Ex Parte Brind [1991] UKHL 4; [1991] 1 AC 696 where Lord Bridge of Harwich at 748 did not deny the power of the courts to prevent the exercise of power by the executive, granted by parliament, where it would infringe fundamental human rights.

[44] Mason, above note 18, p 29.

[45] Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 152 ALR 540.

[46] [1998] HCA 22; (1998) 152 ALR 540 at para 13 per Brennan CJ and McHugh J. The proceedings in this case are discussed further in Part II below.

[47] [1998] HCA 22; (1998) 152 ALR 540 at paras 44-45 per Gaudron J and para 152 and following per Kirby J.

[48] [1998] HCA 22; (1998) 152 ALR 540 at para 41 per Gaudron J.

[49] [1998] HCA 22; (1998) 152 ALR 540 at paras 36-42 and para 117 per Kirby J and at para 82 per Gummow and Hayne JJ.

[50] [1998] HCA 22; (1998) 152 ALR 540 at para 44 per Gaudron J. See also Gummow and Hayne JJ at para 89.

[51] Brennan, above note 12, p 38.

[52] Brennan, above note 11, p 15.

[53] See discussion of the ‘empire of uniformity’ in Tully J, Strange Multiplicity: Constitutionalism in an Age of Diversity Cambridge University Press London 1995, p 41. See also Said E, Culture and Imperialism Knopf New York 1993, p 4.

[54] Dodson M, ‘From Lore to Law: Indigenous rights and Australian legal systems’ (1995) 20(1) Alternative Law Journal 3(72) Aboriginal Law Bulletin at 2.

[55] Sharp N, No Ordinary Judgement: Mabo, the Murray Islanders’ Land Case Aboriginal Studies Press Canberra 1996, p 166.

[56] As above, p xix.

[57] As above, p 39. Sharp suggested that this expression was used by the Meriam people to describe the court not as an adversarial experience but as a system to restore balance. See, for example, evidence by Reverend Dave Passi: Transcript of proceedings in the Queensland Supreme Court (TQ) 1682, in Sharp, p 37.

[58] As above, p 38.

[59] Greg McIntyre, interviewed by Sharp, as above, p 42.

[60] Sharp, as above p 42, suggested that counsel for the Meriam people feared that the witnesses were being subjected to behaviour that they may have construed as ridicule. Still, the witnesses showed few signs of frustration. See, for example, the evidence of Gobedar Noah, TQ 2159, in Sharp, p 72.

[61] [1992] 1 QdR 78.

[62] See discussion of Justice Moynihan’s judgement in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 18 per Brennan J.

[63] TQ 1811, in Sharp, above note 55, p 94. Malo’s law is central to the pre-Christian belief system of the Meriam people of the Torres Strait. On the question of proving authenticity, see Beckett J, ‘The Murray Islands land case and the problem of cultural continuity’ in Sanders W (ed), Mabo and Native Title: Origins and institutional implications CAEPR Research Monograph No 7 Australian National University 1994, pp 21-22.

[64] TQ 1807, in Sharp, above note 55, p 94.

[65] Sharp, above note 55, p 144.

[66] TQ 2235, in Sharp, above note 55, pp 141-142.

[67] Sharp, above note 55, p 167. At p 11, Sharp argues that these misperceptions filtered through from Moynihan J to the determination of issues of fact, and ultimately to the High Court decision in some degree.

[68] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report 1993 Canberra AGPS 1993, p 29.

[69] Dodson, above note 54 at 2.

[70] Macklem P, ‘First Nations self-government and the borders of the Canadian legal imagination’ (1991) 36 McGill Law Journal 382 argued that the result of this categorisation has been a set of principles that establish and maintain a hierarchical relationship between indigenous peoples and the state.

[71] Dodson, above note 54 at 2, referring specifically to the contrast between the Mabo and Walker decisions.

[72] See Walker v NSW [1994] HCA 64; (1994) 182 CLR 45.

[73] Although documentary evidence has grown and physical evidence continues to play a minor role, the general rule is that a witness can only give evidence of facts that have been perceived with one of their five senses. The statement is accepted as prima facie evidence of the possession of such knowledge. See generally, Byrne and Heydon, Cross on Evidence (4th Australian ed) Butterworths Sydney 1991, p 46.

[74] Repeated attempts were made to challenge the Royal Commission, see Aboriginal Legal Rights Movement v Stevens [No 1] (1994) 63 SASR 551; Aboriginal Legal Rights Movement v Stevens [No 2] (1994) 63 SASR 558; and Aboriginal Legal Rights Movement v Stevens [No 3] (1994) 63 SASR 566.

[75] Reproduced in Watson I, ‘Indigenous Peoples’ law-ways: Survival against the colonial state’ (1997) 8 Australian Feminist Law Journal 51.

[76] As above at 51.

[77] The Kumarangk Island dispute has been described as an epic saga. Charlesworth H, ‘Little boxes: A review of the Commonwealth Hindmarsh Island Report by Justice Jane Mathews’ (1997) 3(90) Aboriginal Law Bulletin at 19 suggested that it ‘will surely enter Australian folklore as one of the most complex and litigated of disputes’. A number of cases were argued in the Federal Court of Australia, the South Australian Supreme Court and the High Court of Australia, together with various official reports including a South Australian Government Royal Commission. In the final stage, legislation concerning the dispute was passed by the Commonwealth Parliament on the third attempt. The constitutionality of the legislation was affirmed by the High Court in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 152 ALR 540. For a time line of events, see Clarke J, ‘Chronology of the Kumarangk/Hindmarsh Island affair’ (1996) 3(84) Aboriginal Law Bulletin at 22-23. See also Fergie D, ‘Federal heritage protection, where to now? Cautionary tales from South Australia’ in Finalyson and Jackson-Nakano (eds), Heritage and Native title: Anthropological and Legal perspectives Proceedings from a workshop conducted by the Australian Anthropological Association and the Australian Institute of Aboriginal and Torres Strait Islander Studies, 14-15 February 1996, NTRU/AIATSIS, Canberra 1996, pp 129-46. For related litigation see recent assessment of defamation actions in Ogle G, ‘Defamation Processes and the Hindmarsh Island Bridge Campaign’ (December 1999/January [2000] IndigLawB 2; 2000) 4(26) Indigenous Law Bulletin 7.

[78] Royal Commission of South Australia, Report of the Hindmarsh Island Bridge Royal Commission (Iris Stevens, Royal Commissioner) Adelaide 1995, p 241. Watson I, above note 75 at 50-51, expressed concern that the finding of fabrication may be used to discredit indigenous peoples’ claims generally.

[79] Watson, above note 75 at 50.

[80] Justice Jane Mathews, Commonwealth Hindmarsh Island Report (under s 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984) June 1996, p 191. Although eventually tabled in Parliament, the Mathews report has no legal effect due to a successful challenge against Justice Mathews as Reporter under the separation of powers doctrine: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (unreported decision, High Court of Australia, Full Court, 6 September 1996). The Mathew’s report was not the first report to the Minister on this matter; Professor Cheryl Saunders reported to the Minister in 1995, but both the Report and the Minister’s order for protection were overturned by the Federal Court: Norvill and Milera v Chapman and Ors, Tickner v Chapman and Ors [1995] FCA 1726; (1995) 133 ALR 226. As a result however, the original application under the Act still stood. The validity of legislation introduced to frustrate the claim was affirmed in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 152 ALR 540. See Brennan F, ‘Building a bridge on a constitutional sea change’ [1997] IndigLawB 55; (1997) 4(3) Indigenous Law Bulletin 6, Clarke J, ‘Should Parliament enact the Hindmarsh Island Bill?’ (1997) 3(88) Aboriginal Law Bulletin 15.

[81] Mathews, as above, p 205.

[82] Charlesworth, above note 77, p 21.

[83] Zariski A, ‘The truth in judging — Testimony (fifty bare arsed highlanders): The dilemmas of inter-cultural testimony’ (1996) 21(1) Alternative Law Journal 24.

[84] As above.

[85] Justice Robert Gray, ‘Do the walls have ears? Indigenous title and the courts in Australia’ (2000) 5(1) Australian Indigenous Law Reporter at 1.

[86] Asch M and Bell C, ‘Definition and interpretation of fact in Canadian Aboriginal title litigation: an analysis of Delgamuukw’ (1994) 19(2) Queens Law Journal 505. See also Zariski, above note 83, at 24-5.

[87] Sharp, above note 55, p 74, also pp 96 and 142.

[88] Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] 1606 FCA (18 December 1998).

[89] Yorta Yorta determination, paras 22 and 25. On this issue of written histories versus oral histories see Gray, above note 85, p 1.

[90] Yorta Yorta determination, para 193.

[91] Ward on behalf of the Miriuwung Gajerrong People & Ningarmara v State of Western Australia & Chief Minister of the Northern Territory ([1998] FCA 1478; 1998) 159 ALR 483.

[92] [1998] FCA 1478; (1998) 159 ALR 483 at 504. The decision was subject to an appeal to the Full Federal Court, where some elements of the characterisation of native title were overturned, particularly as they related to extinguishment of native title by certain grants and interests. Justice Lee’s dealing with the evidence, however, was affirmed by the Court on appeal. See State of Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159.

[93] Delgamuukw v The Queen (1991) 79 DLR (4th) 185 (BCSC). For an interesting perspective on the trial, see Monet D and Skanu’u (Ardythe Wilson), Colonialism on Trial: Indigenous Land Rights and the Gitksan and Wet’suwet’en Sovereignty Case New Society Philadelphia, 1992.

[94] (1991) 79 DLR (4th) 185 (BCSC) at 201 per McEachern CJ. McEachern CJ drew a distinction between the ‘subjective considerations’ of beliefs feelings and justice, and admissible evidence — ‘the facts which permit the application of legal principle’.

[95] Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.

[96] (1997) 153 DLR (4th) 193 para 82 per Lamer CJ. See also R v Van der Peet [1996] 2 SCR 507 paras 49-50, 68.

[97] Paragraph 84.

[98] Paragraph 101.

[99] Paragraph 98.

[100] Compare comments of Justice Lee in relation to the Miriuwung Gajerrong determination whose comments embraced the approach of Chief Justice Lamer in Delgamuukw.

[101] (Unreported, Full Court Supreme Court of Canada, 17 September 1999).

[102] Paragraph 49.

[103] Paragraph 12.

[104] Asch and Bell, above note 86, at 505. This was also identified as a significant difficulty in Monet’s account of the Gitksan and Wet’suwet’en trial before Chief Justice McEachern. Monet and Skanu’u, above note 93, related parts of testimony given by Gitksan chiefs and the interjections of the court which continually questioned the evidentiary value of what the witnesses wanted the court to hear. See for example, pp 28-29, 38, 42 among others. Compare similar stories about the reception of evidence of titles to land in the Mabo decision in Sharp, above note 55. Although, in the Mabo case, the bulk of evidence was left unchallenged by Moynihan J who was in the unusual position of determining facts for another court. Therefore, Moynihan J was not able to exclude evidence because issues such as whether the Meriam law was law, and therefore allowable or hearsay, was a matter for the High Court.

[105] Asch and Bell, above 86.

[106] Sharp, above note 55, p 16.

[107] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 51 per Brennan J.

[108] Asch and Bell, above note 86 at 549.

[109] Rosenberg, above note 9, p 343.

[110] Nettheim G, ‘International legal notes: Seminar on the rights of indigenous peoples under law and practice, Canberra, Australia, May 1-2 1986’ (1986) 60 Australian Law Journal at 418.

[111] Werther, above note 23, p xviii.

[112] Rosenberg, above note 9, pp 13-14.

[113] Johnson v M’lntosh 21 US [1823] USSC 22; (8 Wheat) 543 (1823) at 588: ‘Conquest gives a title which the Courts of the conqueror cannot deny’. See also 572-73. In Worcester v Georgia 31 US [1832] USSC 39; (6 Pet) 515 (1832) see 542-3. More generally, Frickey P, ‘Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian law’ (1993) 107(2) Harvard Law Review at 389 suggested that in Johnson, Marshall CJ established ‘a rigid dichotomy between power and law’.

[114] See generally Williams R Jr, The American Indian in Western Legal Thought: The Discourses of Conquest Oxford University Press Oxford 1990.

[115] Tully, above note 53, pp 116-39; see also pp 140-82. Here Tully was speaking about the aboriginal peoples of Canada specifically, but it has application more broadly.

[116] As above, p 136.

[117] As above, p 108.

[118] See generally Sunstein C, ‘Incompletely theorized agreements’ (1995) 108 Harvard Law Review at 1733.

[119] Tully, above note 53, p 132. Indeed, Tully at p 134, suggested that the Gitksan and Wet’suwet’en understood the concepts that the judge used to dispossess them.

[120] Dicey, above note 17, p 173.

[121] Quoted in Cole D B, The Presidency of Andrew Jackson University Press of Kansas Lawrence 1993, p 114 in reference to Worcester v Georgia 31 US [1832] USSC 39; (6 Pet) 515 (1832). It is reported differently in Dicey, above note 17, p 173: ‘John Marshall has delivered his judgement; let him now enforce it, if he can.’

[122] The trek of the Cherokee, Choctaw, Creek, Chicksaw and Seminole Indians from their ancestral lands in Georgia to reservations 800 miles west (between 1831 and 1842) was characterised by acts of genocide, including poisoning and violence. The most devastating march of the Cherokee, in 1838-39, became known as the ‘trail of tears’; only one quarter of the Cherokee population survived the exodus. See briefly, Waldman C and Braun M, Atlas of the North American Indian Facts on File New York 1985, pp 183-5. For more discussion, see Wallace A, The Long Bitter Trail: Andrew Jackson and the Indians Hill & Wang New York 1993.

[123] [1954] USSC 42; 347 US 483 (1954)

[124] Rosenberg, above note 9, p 21.

[125] As above, pp 42-72.

[126] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96.

[127] See also Cherokee Nation v Georgia 31 US [1831] USSC 6; (5 Pet) 1 (1831). The Cherokee nation cases form the basis of the judicial recognition and therefore legislative recognition of the sovereignty (though limited domestically) of Indian nations, their jurisdiction over territory and their exclusive relationship with the federal government to the exclusion of the States. See generally Frickey, above note 113.

[128] [1992] HCA 23; (1992) 175 CLR 1.

[129] Rosenberg, above note 9, p 339.

[130] Werther, above note 23, pp 59-61, 82, and 98 argued that indigenous peoples are unable to have significant influence over non-Indigenous parties due to their small, dispersed population and their economic and social marginalisation.

[131] Werther, above note 23, p 60. See also Tatz, above note 14, pp 111-13. It appears from the evidence examined by Werther at pp 58-62, that this is in fact the approach taken by indigenous self-determination movements. The notable exception in this analysis is Aotearoa/New Zealand, in which Maori political parties and Maori Members of Parliament operate.

[132] Werther, above note 23, p 98.

[133] Pearson N, ‘Aboriginal law and colonial law since Mabo’ in Fletcher C (ed), Aboriginal Self-determination in Australia Aboriginal Studies Press Canberra 1994, p 158.

[134] See Cavanagh R and Sarat A, ‘Thinking about the courts: Toward and beyond a jurisprudence of judicial competence’ (1980) 1 Law and Society Review at 378.

[135] As above at 381-82.

[136] Bickel A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd ed) Yale University Press New Haven, 1986, p 26 argued that courts have the capacity to ‘appeal to [our] better natures, to call forth [our] aspirations, which may have been forgotten in a moments hue and cry’. See also Mason, above note 18, p 25 and Brennan, above note 11, p 15.

[137] Chayes A, ‘The role of the judge in public law litigation’ (1976) 89(7) Harvard Law Review at 1316.

[138] As above.

[139] Brennan, above note 11, p 15.

[140] See for example Zariski, above note 83, p 24.

[141] Werther, above note 23, p 33.

[142] Werther, above note 23, pp xi, xvi-xvii, 4, 14, 36, and 87-90.

[143] Rosenberg also argued that the educative role of judicial decisions and their ability to mobilise public support for a cause are vastly overstated, above note 9, pp 25-26 and 28-30. Compare Rosenberg, pp 12-13 with (1977) 91 Harvard Law Review 428 at 463. See Neier A, Only Judgement: The Limits of Litigation in Social Change Legislation Wesleyan University Press Connecticut 1982, p 12.

[144] Macklem P, ‘Indigenous peoples and the Canadian constitution: Lessons for Australia?’ (1994) 5 Public Law Review at 33.

[145] Macklem P, ‘First Nations Self-government and the Borders of the Canadian Legal Imagination’ (1991) 36 McGill Law Journal at 393, using the example of Guerin v R (1984) 13 DLR (4th) 321, argued that the recognition of the fiduciary duty of Canada toward indigenous peoples had an immediate impact on the accountability of parliament for political actions concerning indigenous peoples.

[146] Milirrpum v Nabalco (1971) 17 FLR 141.

[147] Western Australia is the notable exception. See Parliament of the Commonwealth, Aboriginal Land Rights Commission, Second (Final) Report April 1974 (Woodward Commissioner) AGPS Canberra 1975 and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

[148] Werther, above note 22, p 74 was able to point to similar dynamics in the wake of failed land cases in Canada and Norway.

[149] Pearson N, ‘Mabo: Toward respecting equality and difference’ in Voices From the Land: 1993 Boyer Lectures ABC Books Sydney 1994, p 101.

[150] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report 1993 AGPS Canberra 1993, pp 34-7. While the social justice package has not been rejected, it has not been acted upon.

[151] See the CERD Committee’s Decision on Australia, 54th Session, 18 March 1999 (UN Document CERD/C/54/Misc 40/Rev 2).

[152] Werther, above note 23, p 64.

[153] Brennan, above note 12, at 41-42.