Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
The Council for Aboriginal Reconciliation Act 1991 (Cwlth) presumes that Aboriginal and Torres Strait Islander peoples are, and will continue to be, members of the Australian community. It also assumes that they occupy a unique position and will continue to do so within that community. In seeking just recognition of the place of Australia's indigenous peoples, there is often talk of a treaty.
The Constitutional Commission noted in the second volume of its final report in 1988 that the treaty option proposes:
that two sovereign parties, the Commonwealth of Australia and the Aboriginal people, would enter into an agreement enforceable under the international law of treaties. Implicit in discussion of this option is the question of the existence of Aboriginal sovereignty in a sense of nationhood.
Since then the High Court has given its decision in the two Mabo cases making it clear that talk of sovereignty for indigenous Australians is at best a political claim rather than a legal reality.
Recently Isabel Coe on behalf of the Wiradjuri people initiated proceedings against the Commonwealth of Australia and New South Wales in the High Court. In pressing her sovereignty claim, she pleaded:
The Wiradjuri are a sovereign nation of people. In the alternative, the Wiradjuri are a domestic dependent nation, entitled to self-government and full rights over their traditional lands, save only the right to alienate them to whoever they please. In the further alternative, the Wiradjuri are a free and independent people entitled to the possession of those rights and interests (including rights and interests in land) which as such are valuable to them.
In striking out the statement of claim, Chief Justice Mason restated the effect of the Mabo decision that the indigenous inhabitants of Australia had rights in land which were recognised at common law. But on the sovereignty issue, he quoted with approval the earlier judgment of Mr Justice Gibbs in the 1979 case brought by Isabel Coe's brother, Paul, that:
The contention that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
Chief Justice Mason said:
Mabo (No. 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are 'a domestic dependent nation' entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.
Any instrument of reconciliation drafted as a treaty between sovereign peoples would mark a revolutionary change in Australian jurisprudence. There is no prospect of development in High Court jurisprudence to support such a notion, despite the continuing aspirations of many indigenous Australians. Neither is there any indication that any major political party would support such a concept. Probably, the best we can hope for is an agreement which accepts that Aboriginal and Torres Strait Islander peoples share the sovereignty of the Australian people, and that they have a special call on the people and their legislators to recognise their general rights and aspirations as citizens, and their special rights as indigenous peoples.