Dodson, Michael; Strelein, Lisa --- "Australia's Nation-Building: Renegotiating the Relationship between Indigenous Peoples and the State" [2001] UNSWLawJl 68; (2001) 24(3) UNSW Law Journal 826
[*] Chair of the Australian
Institute of Aboriginal and Torres Strait Islander
Studies.
[**] BCom, LLB(Hons) (Murdoch), PhD (ANU); Research Fellow and Manager of Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies.
[1] [1992] HCA 23; (1992) 175 CLR 1. See, eg, the discussion by Brennan J at 58 referring to the ‘enlarged notion of terra nullius’.
[2] Reproduced in Garth Nettheim, ‘“The consent of the natives”: Mabo and Indigenous political rights’ [1993] SydLawRw 17; (1993) 15 Sydney Law Review 223.
[3] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291-2. This case gave rise to the notion that issues of sovereignty and the recognition of self-determination claims were matters of law regardless of the facts. The fundamental contradiction between law and fact created a dilemma for future courts in which evidence was actually adduced. In 1971, a single judge of the Supreme Court of the Northern Territory struggled with the incongruent facts and legal fiction: Milirrpum v Nabalco (1971) 17 FLR 141.
[4] See, eg, Samuel von Pufendorf (C H Oldfather (trans)), De Jure Naturae et Gentium Libri Octo (first published 1688, 1964) vol II; Christian Wolff (J H Drake (trans)), Jus Gentium Methodo Scientifica Pertractatum (first published 1764, 1964) vol II, xxxii, xxxix; Emmerich Vattel (C H Fenwick (trans)), The Law of Nations or the Principles of Natural Law Applied to the Conduct of the Affairs of Nations and Sovereigns (first published 1758, 1964) vol III, xii, xiii. See generally James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1995) 70-82. Cf Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (1983) 26, where Slattery argues that the law of nations is unreliable as a basis for claims because it was not settled and was determined largely by, or in the interests of, the powers.
[5] Fransiscus de Vitoria, ‘Des Indes [1539]’ in Anthony Pagden and Jeremy Lawrence (eds), Fransisco de Vitoria: Political Writings (1991) 251.
[6] See, eg, M F Lindley, The Acquisition and Government of Backward Territory in International Law (1928) 11.
[7] In the United States, this was rationalised in the ‘Marshall Cases’ as the recognition of ‘domestic dependent nations’: Cherokee Nation v Georgia, 30 US [1831] USSC 6; (5 Pet) 1 (1831), 18. See, earlier, Johnson v M’Intosh, 21 US [1823] USSC 22; (8 Wheat) 543 (1823) 547, 573-4.
[8] Miguel Alfonso Martinez, Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, Final Report, UN Doc E/CN.4/Sub.2/1999/20 (1999).
[9] On the central place of this kind of elitism in the liberal theories of government, particularly in the colonial administration of subject peoples, see Christine Helliwell and Barry Hindess, ‘The “Empire of Uniformity” and Government of Subject Peoples’ (2002) 1 The Journal of Cultural Research (forthcoming).
[10] See generally Australia, Official Report of the National Australasian Convention Debates, 1898 (1986).
[11] Instead, a provision that proscribed discrimination on the basis of residence in a particular State or Territory was included in s 177: see George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 645, 645-6.
[12] Section 41 of the Australian Constitution provided that no-one entitled to vote at State elections would be prevented from voting at federal elections, thereby protecting State legislation such as s 6 of the Elections Act 1885 (Qld). This section is reinforced by s 25 of the Constitution, which specifically recognises that where laws are in place to disqualify persons of a particular race from voting, those people will not be counted for the purpose of determining the population.
[13] Melbourne, Australasian Federal Convention Debates, 27 January 1898, 228-9 (Edmund Barton).
[14] See Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (‘Hindmarsh Island Bridge Case’). In that case, a majority of the High Court suggested that the power to legislate for the people of any race did not become a beneficial provision as a result of the 1967 amendment.
[15] At the same time, the Aboriginal Treaty Committee, led by H C Coombs, had garnered public support for a treaty from a number of prominent citizens. The word ‘treaty’ has been a source of irritation to successive Federal Governments.
[16] Council for Aboriginal Reconciliation Act 1991 (Cth) s 6(1).
[17] Geoff Clark, (Address to Corroboree 2000, Sydney, 27 May 2000). Corroboree 2000 was the culmination event in the work of the Council.
[18] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge, Final Report (2000) 103.
[19] Ibid app 3 and recommendations 5, 6.
[20] Malcolm Fraser, ‘The Past We Need to Understand’(Fifth Vincent Lingiari Memorial Lecture, Northern Territory University, Darwin, 24 August 2000).
[21] The International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘CERD’), signed and ratified by Australia, reinforces the prohibition on discrimination and the obligation on states to eliminate racial discrimination contained in all of the international human rights instruments: CERD preambular para 1, art 2 and expanded at art 5. In 1975, the Commonwealth Parliament passed the Racial Discrimination Act 1975 (Cth), which partially implements the Convention. The Act prohibits discrimination, by any arm of government, on the basis of race, nationality or ethnic origin. The only exception to this general rule is in the context of special measures, which may be introduced to overcome disadvantage or institutional or structural discrimination.
[22] Even the international legal system has rejected this interpretation of equality and non-discrimination. In 1997, the United Nations Human Rights Committee reaffirmed the application of the provisions of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), to Indigenous peoples and asked states to include reference to them in their periodic reports: Human Rights Committee, General Comment 23, Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 38 (1994). See generally Sarah Pritchard, ‘Native Title in an International Perspective’ in Research Institute for Humanities and Social Sciences, University of Sydney, Sharing Country: Land Rights, Human Rights and Reconciliation after Wik, Proceedings of a Public Forum Held at University of Sydney, February 28, 1997 (1997) 35-6.
[23] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, Jan-Jun 1994 (1995) 63.
[24] Human Rights Committee, above n 22, [6.2]. See also Pritchard, above n 22, 45. See also Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, Jun 1994-Jul 1995 (1995) 13. See the recent Human Rights Committee’s Concluding Observations on Canada regarding the implementation of art 1 of the ICCPR in relation to Aboriginal peoples: Human Rights Committee, Concluding Observations of the Human Rights Committee: Canada 07/04/99, UN Doc CCPR/C/79/Add.105 (1999).
[25] [1992] HCA 23; (1992) 175 CLR 1.
[26] [1889] UKLawRpAC 7; (1889) 14 App Cas 286.
[27] Mabo [1992] HCA 23; (1992) 175 CLR 1, 40 (Brennan J); 182, 197 (Toohey J).
[28] Ibid 60 (Brennan J).
[29] [1995] HCA 47; (1995) 183 CLR 373.
[30] Ibid 483-4. Cf the judgment of Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 59 ALJR 311, 339, where it was argued that ‘special measures may be necessary to achieve equality between groups’. See generally Michael Dodson, ‘Discrimination, Special Measures and the Right to Negotiate’ (Paper presented at the Humanities Research Centre/Australian Institute of Aboriginal and Torres Strait Islander Studies Conference, Is Racism Un-Australian?, Australian National University, Canberra, 21-22 February 1997) 10.
[31] Patrick Macklem, ‘Distributing Sovereignty: Indian Nations and Equality of Peoples’ (1993) 45 Stanford Law Review 1325. See also Menno Boldt and J Anthony Long, Surviving as Indians (1988) xv.
[32] See Mabo [1992] HCA 23; (1992) 175 CLR 1, 68-74 (Brennan J); 94, 100 (Deane and Gaudron JJ) (but cf 92); 194-5 (Toohey J).
[33] Ibid. Cf Deane and Gaudron JJ at 92 who initially commented on wrongful extinguishment, but reverted to the power of the state at 94, 100. Justice Toohey at 194-5 was the only judge to affirm the rights of Indigenous peoples against arbitrary exercise of power by the state. The brief judgement of Mason CJ and McHugh J confirmed the ratio decidendi of the case in this regard.
[34] Ibid 64 (Brennan J).
[35] Patrick Macklem, ‘First Nations Self-Government and the Borders of the Canadian Legal Imagination’ (1991) 36 McGill Law Journal 397.
[36] See Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 120-2. See also Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [271] (Kirby J).
[37] Mabo [1992] HCA 23; (1992) 175 CLR 1, 15 (Mason CJ and McHugh J). The judgement of Mason CJ and McHugh J was said to be made with the authority of the rest of the Court. Therefore the determination of the Racial Discrimination Act 1975 (Cth) and wrongful extinguishment issue in that judgement is taken to be the position of the majority. See also Mabo v Queensland [No 1] (1998) 166 CLR 186.
[38] Although whether the Native Title Amendment Act 1998 (Cth) complies with this formal equality standard has also been questioned. See Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Undertakings Freely Given: Australia’s International Obligations to Protect Indigenous Rights, Report (2000) 145ff.
[39] Australian Institute of Aboriginal and Torres Strait Islander Studies, The Past and Future of Land Rights, Native Title Legal Conference, Townsville, 28-30 August 2001 (convened by Greg McIntyre and Lisa Strelein). The conference commemorated the earlier James Cook Students Union and Townsville Treaty Committee Conference, Land Rights and the Future of Australian Race Relations, James Cook University, Townsville, 1981 (see the publication from that conference: Eric Olbrei (ed), Black Australians: The Prospects for Change (1982)). It was at the 1981 conference that a group of Torres Strait Islanders led by Eddie Koiki Mabo gave instructions to take their claim for recognition of their rights to their traditional lands on Murray Island to the Australian courts.
[**] BCom, LLB(Hons) (Murdoch), PhD (ANU); Research Fellow and Manager of Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies.
[1] [1992] HCA 23; (1992) 175 CLR 1. See, eg, the discussion by Brennan J at 58 referring to the ‘enlarged notion of terra nullius’.
[2] Reproduced in Garth Nettheim, ‘“The consent of the natives”: Mabo and Indigenous political rights’ [1993] SydLawRw 17; (1993) 15 Sydney Law Review 223.
[3] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291-2. This case gave rise to the notion that issues of sovereignty and the recognition of self-determination claims were matters of law regardless of the facts. The fundamental contradiction between law and fact created a dilemma for future courts in which evidence was actually adduced. In 1971, a single judge of the Supreme Court of the Northern Territory struggled with the incongruent facts and legal fiction: Milirrpum v Nabalco (1971) 17 FLR 141.
[4] See, eg, Samuel von Pufendorf (C H Oldfather (trans)), De Jure Naturae et Gentium Libri Octo (first published 1688, 1964) vol II; Christian Wolff (J H Drake (trans)), Jus Gentium Methodo Scientifica Pertractatum (first published 1764, 1964) vol II, xxxii, xxxix; Emmerich Vattel (C H Fenwick (trans)), The Law of Nations or the Principles of Natural Law Applied to the Conduct of the Affairs of Nations and Sovereigns (first published 1758, 1964) vol III, xii, xiii. See generally James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1995) 70-82. Cf Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (1983) 26, where Slattery argues that the law of nations is unreliable as a basis for claims because it was not settled and was determined largely by, or in the interests of, the powers.
[5] Fransiscus de Vitoria, ‘Des Indes [1539]’ in Anthony Pagden and Jeremy Lawrence (eds), Fransisco de Vitoria: Political Writings (1991) 251.
[6] See, eg, M F Lindley, The Acquisition and Government of Backward Territory in International Law (1928) 11.
[7] In the United States, this was rationalised in the ‘Marshall Cases’ as the recognition of ‘domestic dependent nations’: Cherokee Nation v Georgia, 30 US [1831] USSC 6; (5 Pet) 1 (1831), 18. See, earlier, Johnson v M’Intosh, 21 US [1823] USSC 22; (8 Wheat) 543 (1823) 547, 573-4.
[8] Miguel Alfonso Martinez, Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, Final Report, UN Doc E/CN.4/Sub.2/1999/20 (1999).
[9] On the central place of this kind of elitism in the liberal theories of government, particularly in the colonial administration of subject peoples, see Christine Helliwell and Barry Hindess, ‘The “Empire of Uniformity” and Government of Subject Peoples’ (2002) 1 The Journal of Cultural Research (forthcoming).
[10] See generally Australia, Official Report of the National Australasian Convention Debates, 1898 (1986).
[11] Instead, a provision that proscribed discrimination on the basis of residence in a particular State or Territory was included in s 177: see George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 645, 645-6.
[12] Section 41 of the Australian Constitution provided that no-one entitled to vote at State elections would be prevented from voting at federal elections, thereby protecting State legislation such as s 6 of the Elections Act 1885 (Qld). This section is reinforced by s 25 of the Constitution, which specifically recognises that where laws are in place to disqualify persons of a particular race from voting, those people will not be counted for the purpose of determining the population.
[13] Melbourne, Australasian Federal Convention Debates, 27 January 1898, 228-9 (Edmund Barton).
[14] See Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (‘Hindmarsh Island Bridge Case’). In that case, a majority of the High Court suggested that the power to legislate for the people of any race did not become a beneficial provision as a result of the 1967 amendment.
[15] At the same time, the Aboriginal Treaty Committee, led by H C Coombs, had garnered public support for a treaty from a number of prominent citizens. The word ‘treaty’ has been a source of irritation to successive Federal Governments.
[16] Council for Aboriginal Reconciliation Act 1991 (Cth) s 6(1).
[17] Geoff Clark, (Address to Corroboree 2000, Sydney, 27 May 2000). Corroboree 2000 was the culmination event in the work of the Council.
[18] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge, Final Report (2000) 103.
[19] Ibid app 3 and recommendations 5, 6.
[20] Malcolm Fraser, ‘The Past We Need to Understand’(Fifth Vincent Lingiari Memorial Lecture, Northern Territory University, Darwin, 24 August 2000).
[21] The International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘CERD’), signed and ratified by Australia, reinforces the prohibition on discrimination and the obligation on states to eliminate racial discrimination contained in all of the international human rights instruments: CERD preambular para 1, art 2 and expanded at art 5. In 1975, the Commonwealth Parliament passed the Racial Discrimination Act 1975 (Cth), which partially implements the Convention. The Act prohibits discrimination, by any arm of government, on the basis of race, nationality or ethnic origin. The only exception to this general rule is in the context of special measures, which may be introduced to overcome disadvantage or institutional or structural discrimination.
[22] Even the international legal system has rejected this interpretation of equality and non-discrimination. In 1997, the United Nations Human Rights Committee reaffirmed the application of the provisions of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), to Indigenous peoples and asked states to include reference to them in their periodic reports: Human Rights Committee, General Comment 23, Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 38 (1994). See generally Sarah Pritchard, ‘Native Title in an International Perspective’ in Research Institute for Humanities and Social Sciences, University of Sydney, Sharing Country: Land Rights, Human Rights and Reconciliation after Wik, Proceedings of a Public Forum Held at University of Sydney, February 28, 1997 (1997) 35-6.
[23] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, Jan-Jun 1994 (1995) 63.
[24] Human Rights Committee, above n 22, [6.2]. See also Pritchard, above n 22, 45. See also Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, Jun 1994-Jul 1995 (1995) 13. See the recent Human Rights Committee’s Concluding Observations on Canada regarding the implementation of art 1 of the ICCPR in relation to Aboriginal peoples: Human Rights Committee, Concluding Observations of the Human Rights Committee: Canada 07/04/99, UN Doc CCPR/C/79/Add.105 (1999).
[25] [1992] HCA 23; (1992) 175 CLR 1.
[26] [1889] UKLawRpAC 7; (1889) 14 App Cas 286.
[27] Mabo [1992] HCA 23; (1992) 175 CLR 1, 40 (Brennan J); 182, 197 (Toohey J).
[28] Ibid 60 (Brennan J).
[29] [1995] HCA 47; (1995) 183 CLR 373.
[30] Ibid 483-4. Cf the judgment of Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 59 ALJR 311, 339, where it was argued that ‘special measures may be necessary to achieve equality between groups’. See generally Michael Dodson, ‘Discrimination, Special Measures and the Right to Negotiate’ (Paper presented at the Humanities Research Centre/Australian Institute of Aboriginal and Torres Strait Islander Studies Conference, Is Racism Un-Australian?, Australian National University, Canberra, 21-22 February 1997) 10.
[31] Patrick Macklem, ‘Distributing Sovereignty: Indian Nations and Equality of Peoples’ (1993) 45 Stanford Law Review 1325. See also Menno Boldt and J Anthony Long, Surviving as Indians (1988) xv.
[32] See Mabo [1992] HCA 23; (1992) 175 CLR 1, 68-74 (Brennan J); 94, 100 (Deane and Gaudron JJ) (but cf 92); 194-5 (Toohey J).
[33] Ibid. Cf Deane and Gaudron JJ at 92 who initially commented on wrongful extinguishment, but reverted to the power of the state at 94, 100. Justice Toohey at 194-5 was the only judge to affirm the rights of Indigenous peoples against arbitrary exercise of power by the state. The brief judgement of Mason CJ and McHugh J confirmed the ratio decidendi of the case in this regard.
[34] Ibid 64 (Brennan J).
[35] Patrick Macklem, ‘First Nations Self-Government and the Borders of the Canadian Legal Imagination’ (1991) 36 McGill Law Journal 397.
[36] See Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 120-2. See also Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [271] (Kirby J).
[37] Mabo [1992] HCA 23; (1992) 175 CLR 1, 15 (Mason CJ and McHugh J). The judgement of Mason CJ and McHugh J was said to be made with the authority of the rest of the Court. Therefore the determination of the Racial Discrimination Act 1975 (Cth) and wrongful extinguishment issue in that judgement is taken to be the position of the majority. See also Mabo v Queensland [No 1] (1998) 166 CLR 186.
[38] Although whether the Native Title Amendment Act 1998 (Cth) complies with this formal equality standard has also been questioned. See Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Undertakings Freely Given: Australia’s International Obligations to Protect Indigenous Rights, Report (2000) 145ff.
[39] Australian Institute of Aboriginal and Torres Strait Islander Studies, The Past and Future of Land Rights, Native Title Legal Conference, Townsville, 28-30 August 2001 (convened by Greg McIntyre and Lisa Strelein). The conference commemorated the earlier James Cook Students Union and Townsville Treaty Committee Conference, Land Rights and the Future of Australian Race Relations, James Cook University, Townsville, 1981 (see the publication from that conference: Eric Olbrei (ed), Black Australians: The Prospects for Change (1982)). It was at the 1981 conference that a group of Torres Strait Islanders led by Eddie Koiki Mabo gave instructions to take their claim for recognition of their rights to their traditional lands on Murray Island to the Australian courts.