Brennan, Sean; Gunn, Brenda; Williams, George --- "Sovereignty' and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments" [2004] SydLawRw 15; (2004) 26(3) Sydney Law Review 307

* Director, Treaty Project, Gilbert + Tobin Centre of Public Law and Lecturer, Faculty of Law, University of New South Wales. This project is supported by the Australian Research Council.

[**] Intern, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Student, University of Toronto Faculty of Law.

[**] * Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Barrister, New South Wales Bar. This paper benefits from the comments of the participants in the Workshop on Sovereignty held at the Faculty of Law, University of New South Wales, on 13 June 2003. The authors also acknowledge Arthur Glass, Colin Hughes, Gig Moon, Thomas Poole, George Villaflor and the two anonymous referees who made comments on an earlier draft, David Yarrow for his particularly generous advice and Melanie Schwartz for her research assistance.

[1] John Howard, Reconciliation Documents (Media Release, 11 May 2000): <www.pm.gov.au/ news/media_releases/2000/reconciliation1105.htm> (23 December 2003). Howard responded to the Council for Aboriginal Reconciliation’s Australian Declaration Towards Reconciliation by saying there were several areas of disagreement which prevented the Government offering its full support for the document. ‘For the information of the public’ he attached a version of the document ‘to which the government would have given its full support’.

[2] John Laws, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000): <www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003). David Yarrow pointed out to the authors that Prime Minister Howard’s statement bears a striking similarity to an assertion made by former Canadian Prime Minister, Pierre Trudeau, at the time his newly elected government released its 1969 White Paper on Aboriginal policy: ‘We will recognise treaty rights. We will recognise forms of contract which have been made with the Indian people by the Crown and we will try to bring justice in that area and this will mean that perhaps the treaties shouldn’t go on forever. It’s inconceivable, I think, that in a given society one section of the society have a treaty with the other section of society. We must all be equal under the laws and we must not sign treaties amongst ourselves’: Peter Cumming & Neil Mickenberg (eds), Native Rights in Canada (2^nd ed, 1972) at 331.

[3] Robert French, ‘The Constitution and the People’ in Robert French, Geoffrey Lindell & Cheryl Saunders (eds), Reflections on the Australian Constitution (2003) 60 at 78.

[4] See George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 643.

[5] Australia is the only Commonwealth nation that does not have a treaty with its Indigenous peoples: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament (Canberra: AusInfo 2000) 6.

[6] See also on sovereignty in this context, Michael Dodson, ‘Sovereignty’ (2002) 4 Balayi: Culture Law and Colonisation 13; William Jonas, ‘Recognising Aboriginal Sovereignty — Implications for the Treaty Process’ (Paper presented at the ATSIC National Treaty Conference, Canberra, 27 August 2002) 6: <www.treatynow.org/docs/jonas.doc> (23 December 2003); Marcia Langton, ‘The Nations of Australia’, Alfred Deakin Lecture, 21 June 2001: <www.abc.net.au/ rn/deakin/stories/s300007.htm> (24 December 2003); Lisa Strelein, ‘Missed Meanings: The Language of Sovereignty in the Treaty Debate’ (2002– 2003) 20 Arena Journal 83. This article does not attempt to tackle the significance and status of treaties made between Indigenous peoples and governments under international law.

[7] In discussing Neil MacCormick’s recent book Questioning Sovereignty: Law, State and Nation in the European Commonwealth (1999) in the context of the ongoing controversy over national sovereignty within the European Union, Peter Oliver says that while a pluralistic notion of sovereignty sounds like a recipe for confusion ‘the rush for certainty is not always warranted’. Later he says it is MacCormick’s ‘distinctive contribution to point out that this question, the sovereignty question, does not need a definitive answer’. Peter C Oliver, ‘Sovereignty in the Twenty-First Century’ (2003) 14 KCLJ 137 at 171. See also the conclusion drawn by the Canadian Royal Commission on Aboriginal Peoples on the issue of sovereignty, text below at n124.

[8] See the discussion of what the term ‘treaty’ might encompass in Sean Brennan, Why ‘Treaty’ and Why This Project?, Discussion Paper No. 1, Treaty Project, Gilbert + Tobin Centre of Public Law, January 2003: <http://www.gtcentre.unsw.edu.au/publications.asp#Treaty%20Project% 20Discussion%20Papers> (30 June 2004). This Paper suggests that the idea of a treaty conveys certain ideas in terms of premise, process and outcome. The premise or starting point is acknowledgment, a mutual recognition of negotiating authority and also of the past exclusion of Indigenous people from the processes by which the Australian nation was constructed. The (default) process in a treaty relationship is that of negotiation as the primary way of doing business, ahead of litigation, legislation and administration, which have been more typical methods by which governments have dealt with Indigenous issues. The outcomes which treaty advocates have spoken of might be summarised as rights and opportunities.

[9] We note that in his landmark study as a Special Rapporteur for the UN’s Commission on Human Rights, Miguel Alfonso Martinez took a similarly broad approach to the characterisation of such agreements. At one point he referred to them as ‘formal and consensual bilateral juridical instruments’ (at [82]). More generally he said ‘the decision of the parties to a legal instrument to designate it as an “agreement” does not necessarily mean that its legal nature differs in any way from those formally denominated as “treaties”‘ (at [40]) and that ‘one should avoid making oneself a prisoner of existing terminology’ (at [53]). He went on to say that ‘a narrow definition of ‘a treaty’ and ‘treaty-making’ would hinder or pre-empt any innovative thinking in the field. Yet it is precisely innovative thinking that is needed to solve the predicament in which many indigenous peoples find themselves at present’. Miguel Alfonso Martinez, ‘Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations’, Final Report, E/CN.4/Sub.2/1999/20, 22 June 1999: <http://ods-dds-ny.un.org/ doc/UNDOC/GEN/G99/137/73/PDF/G9913773.pdf?OpenElement> (30 June 2004).

[10] There is a wealth of literature discussing the discriminatory assumptions embedded in the conclusive presumption that Indigenous and non-state societies lacked sovereignty. This body of literature is not dealt with in the present article, but see, eg, Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (1990). Kent McNeil has also noted that sovereignty is ‘a European concept, arising out of the development of the nation-state. So care needs to be taken in applying the concept in other parts of the world, where societies were not necessarily organized on the nation-state model, and where an equivalent conception of sovereignty may not have existed in the minds of the people’. Kent McNeil, ‘Sovereignty on the Northern Plains: Indian, European, American and Canadian Claims’ (2000) 39 Journal of the West 10 at 11.

[11] Stéphane Beaulac, ‘The Social Power of Bodin’s ‘Sovereignty’ and International Law’ [2003] MelbJlIntLaw 13; (2003) 4 Melbourne Journal of International Law 1 at 24–25. Marcia Langton has also dealt with this issue recently. She notes Stephen Krasner’s observation that ‘since Jean Bodin and Thomas Hobbes “first elaborated the notion sovereignty in the 16^th and 17^th centuries”, it has always been malleable in practice’. Marcia Langton, ‘Unsettling Sovereignties’ in Marcia Langton, Maureen Tehan, Lisa Palmer & Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) 31.

[12] Id at 22.

[13] Macquarie Dictionary (3^rd ed, 1997) at 2028.

[14] Butterworths Australian Legal Dictionary (1997) at 1094.

[15] Ralph Chandler (ed), The Constitutional Law Dictionary (1987) at 654.

[16] Dictionary of International and Comparative Law (3^rd ed, 2003).

[17] David Robertson, A Dictionary of Modern Politics (1985) at 305.

[18] Henry Wheaton, Elements of International Law (1878) at 28–29, quoted in New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 376 (McTiernan J).

[19] Albert Dicey wrote a highly influential analysis of the English Constitution at the end of the 19^th century and said that the ‘sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions’. He defined Parliamentary sovereignty by saying that under the English Constitution 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’. Albert Dicey, Introduction to the Study of the Law of the Constitution (10^th ed, 1962) at 39–40. For an interesting discussion of this traditional view of parliamentary sovereignty, Jeffrey Goldsworthy’s recent book which championed it and Neil MacCormick’s book which seeks to break from it in favour of a more ‘diffusionist’ perspective, see Peter C Oliver, ‘Sovereignty in the Twenty-First Century’ (2003) 14 KCLJ 137.

[20] Referring to economic deregulation in New Zealand which saw ‘much locally owned industry pass into foreign hands’, Stephen Turner said that this experience, common to many other countries over the last two decades, has led to claims that full national sovereignty no longer exists, ‘that no political body can fully control economic operations in the physical space over which it presides’. Stephen Turner, ‘Sovereignty, or the Art of Being Native’ (2002) 51 Cultural Critique 74 at 79. See also a recent statement by the Australian Foreign Minister Alexander Downer about overseas intervention by Australia. He told the National Press Club in an address on 26 June 2003: ‘Sovereignty in our view is not absolute. Acting for the benefit of humanity is more important’: <http://www.foreignminister.gov.au/speeches/2003/030626_unstableworld .html> (30 June 2004). Later in responding to a question he said ‘for people who think the only thing that matters is this 19^th Century notion of sovereignties, the only thing that matters in international relations. – I always say, it’s not the only thing that matters. It’s important, but it’s not the only thing that matters’: <http://www.dfat.gov.au/media/transcripts/2003/030626_ qanda.html> (30 June 2004).

[21] [1992] HCA 23; (1992) 175 CLR 1.

[22] Michael Mansell, Aboriginal Provisional Government: Finding the Foundation For a Treaty With the Indigenous Peoples of Australia (2002): <www.faira.org.au/issues/apg05.html> (23 December 2003). See Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (1996).

[23] Dodson, above n6 at 18.

[24] Irene Watson, ‘Aboriginal Laws and the Sovereignty of Terra Nullius’ (2002) 1(2) Borderlands e-journal at [49]: <www.borderlandsejournal.adelaide.edu.au/vol1no2_2002/watson_ laws.html> (31 May 2003).

[25] National Aboriginal and Islander Health Organisation, Sovereignty (1983) <www.kooriweb.org/foley/news/story8.html> (23 December 2003) quoted in Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) at 100.

[26] Dodson, above n6; William Jonas, ‘Recognising Aboriginal Sovereignty — Implications for the Treaty Process’ (Paper presented at the ATSIC National Treaty Conference, Canberra, 27 August 2002) at 6: <www.treatynow.org/docs/jonas.doc> (23 December 2003); Lisa Strelein, ‘Missed Meanings: The Language of Sovereignty in the Treaty Debate’(2002– 2003) 20 Arena Journal 83.

[27] See text accompanying nn10–20 above.

[28] Aboriginal Provisional Government, Intellectual Prisoners (1992) Foundation for Aboriginal and Islander Research Action: <www.faira.org.au/issues/apg01.html#prisoners> (23 December 2003).

[29] Kevin Gilbert, ‘Aboriginal Sovereignty: Justice, the Law and Land’ (1998): <www.aiatsis.gov.au/ lbry/dig_prgm/treaty/t88/m0066865_a/m0066865_p1_a.rtf> (31 May 2003).

[30] Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) at

[99] .

[31] See, for example, Marcia Langton & Lisa Palmer ‘Treaties, Agreement Making and the Recognition of Indigenous Customary Polities’ in Marcia Langton, Maureen Tehan, Lisa Palmer & Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004). See also the papers given at the Indigenous Governance Conference, Canberra, 3–5 April 2002: <www.reconciliationaustralia.org/graphics/info/publications/ governance/speeches.html> (23 December 2003), and at the Building Effective Indigenous Governance Conference, Jabiru, 4–7 November 2003: <www.nt.gov.au/cdsca/ indigenous_conference/web/html/papers.html> (23 December 2003). See generally the Harvard Project on American Indian Economic Development Harvard Project: <www.ksg.harvard.edu/ hpaied/> (23 December 2003).

[32] UN doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56.

[33] Noel Pearson, ‘Reconciliation: To Be or Not to Be: Separate Aboriginal Nationhood or Aboriginal Self-Determination and Self-Government Within the Australian Nation?’ [1993] AboriginalLawB 12; (1993) 3(61) ALB 14 at 15.

[34] Behrendt, above n30 at 101.

[35] Richard Ah Mat, ‘The Cape York View’, paper presented at the Treaty Conference, Murdoch University, Perth, 27 June 2002: <www.treaty.murdoch.edu.au/Conference%20Papers/ ah%20mat%20speech.htm> (23 December 2003).

[36] As Langton & Palmer put it recently, ‘Even if, as [Henry] Reynolds argues, there is a clear distinction to be made between the states and nations, or even if national sovereignty is an accretive and divisible bundle of things, the question remains: what of Aboriginal customary authority and forms of governance, and the modern-day adaptations of those traditions and customs in new political formations? How are they expressed and how do they mediate between the state and indigenous jurisdictions?’ Langton & Palmer, above n31 at 36.

[37] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament (Canberra, 2000) at 60.

[38] John Laws, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000): <www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003).

[39] Alan Jones, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000): <www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003).

[40] Transcript of the Prime Minister The Hon John Howard Interview with Tim Lester, 7.30 Report. 29 May 2000: <www.pm.gov.au/news/interviews/2000/7302905.htm> (19 December 2003).

[41] Executive Summary of the Commonwealth Government Response to the Council for Aboriginal Reconciliation Final Report — Reconciliation: Australia’s Challenge (September 2002) at 1.

[42] Other governments have taken a different approach to Indigenous issues. On the State government level see for example Western Australia, Statement of Commitment to a New and Just Relationship Between The Government of Western Australia and Aboriginal Western Australians (10 October 2001): <http://www.dia.wa.gov.au/Policies/StateStrategy/ StatementOfCommitment.aspx> (4 June 2004) which, amongst other things includes the following statement: ‘Aboriginal people have continuing rights and responsibilities as the first people of Western Australia, including traditional ownership and connection to land and waters. These rights should be respected and accommodated within the legal, political and economic system that has developed and evolved in Western Australia since 1829’. For a different approach at Federal level see for example the speech of then Prime Minister of Australia, Paul Keating, at Redfern Park in Sydney on 10 December 1992 in Paul Keating, ‘Redfern Park Speech’ (2001) 5(11) ILB 9, where he talked of ATSIC ‘emerging from the vision of Indigenous self-determination and self-management’.

[43] Executive Summary, above n41 at 1.

[44] Id at 2.

[45] Ibid.

[46] Ibid.

[47] Transcript of the Prime Minister the Hon John Howard MP, Joint Press Conference With Senator Amanda Vanstone, Parliament House, Canberra, 15 April 2004: <http:// www.pm.gov.au/news/interviews/Interview795.html> (24 June 2004). See Aboriginal and Torres Strait Islander Commission Amendment Bill 2004 (Cth).

[48] As Barwick CJ acknowledged, sovereignty ‘is a word, the meaning of which may vary according to context’ (New South Wales v Commonwealth (Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337 at 364). More recently, Gleeson CJ, Gaudron, Gummow and Hayne JJ of the High Court said that sovereignty has long been recognised as ‘a notoriously difficult concept which is applied in many, very different contexts’ (Yarmirr v Commonwealth (2001) 208 CLR 1 at 52–53).

[49] Seas and Submerged Lands Case, ibid.

[50] Id at 479. His approach was quoted with approval in Yarmirr, above n48 at 53 by Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[51] Seas and Submerged Lands Case, above n48 at 479.

[52] Id at 479–480.

[53] Id at 480.

[54] Id at 385 (Gibbs J), 444 (Stephen J). In Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 67 Brennan J, with Mason CJ and McHugh J agreeing, said that the ‘sovereign powers’ to grant interests in land, reserve it for particular purposes and extinguish native title, are vested in the State of Queensland.

[55] For example, Seas and Submerged Lands Case, above n48 at 408 (Gibbs J), 443 (Stephen J), 469 (Mason J). Federal Court judge Robert French has said recently that we ‘should not underestimate how large and for how long the imperial connection loomed in Australian constitutional jurisprudence’: French, above n3 at 72. Brad Morse writes in a similar vein of his own country: ‘Canada was formally confirmed as a semi-independent country in 1867, with Great Britain retaining ultimate control over all foreign affairs until the Statute of Westminster 1931 and over amendments to Canada’s Constitution until 1982.’ Bradford W Morse, ‘Indigenous-Settler Treaty Making in Canada’ in Marcia Langton, Maureen Tehan, Lisa Palmer & Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) at 59.

[56] Yarmirr, above n48 at 58 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[57] Id at 56 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[58] Id at 103 (McHugh J): ‘The sovereignty that the coastal state exercises over the territorial sea is also subject to the developing international law. As international law changes, so does the content of the sovereignty of the coastal state over its territorial sea.’

[59] Including as recently as 1994 in Australia, as reflected by the ratification of the United Nations Convention on the Law of the Sea, which entered into force in Australia on 16 November 1994: 1994 Australia Treaty Series No 31; 21 ILM 1261.

[60] See Seas and Submerged Lands Case, above n48 at 494 (Jacobs J) and Yarmirr, above n48 at 53–60 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[61] Yarmirr, above n48 at 56–57 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[62] Owen Dixon, ‘The Law and the Constitution’ (1935) 51 LQR 590 at 597 (‘It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions.’).

[63] See the Statute of Westminster 1931 (UK) (as applied in Australia by the Statute of Westminster Adoption Act 1942 (Cth)) and the Australia Acts of 1986. See generally Geoff Lindell, ‘Why is Australia’s Constitution Binding? — The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Fed LR 29.

[64] Under s 128 constitutional change cannot be initiated by popular will as such a power rests exclusively with the Commonwealth Parliament. See McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 274-275 (Gummow J).

[65] [1976] HCA 54; (1976) 135 CLR 552.

[66] Id at 566.

[67] [1992] HCA 45; (1992) 177 CLR 106 at 138.

[68] [1994] HCA 46; (1994) 182 CLR 104.

[69] Id at 171.

[70] Above n64 at 230.

[71] French, above n3 at 73 relying on the proposition to that effect made by Professor Leslie Zines.

[72] Mabo v Queensland (No 2), above n54 at 106 (Deane and Gaudron JJ) invoking words from the preamble to the Commonwealth of Australia Constitution Act 1900 (Cth).

[73] Indigenous people appear to have played no meaningful role in the drafting of the Australian Constitution (Frank Brennan, Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia (1994) at 6). This was reflected in s127 of the Constitution, which provided prior to its removal in 1967: ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’.

[74] Of the 44 referendum proposals put to the Australian people over more than a century, only eight have been passed. For the results of the referendums, see Tony Blackshield & George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3^rd ed, 2002) at 1303– 1308. For the relevance of this history to the Australian treaty process, see George Williams, ‘The Treaty Debate, Bills of Rights and the Republic: Strategies and Lessons for Reform’ (2002) 5 Balayi: Culture, Law and Colonialism 10.

[75] Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118.

[76] Id at 129.

[77] Id at 131.

[78] Id at 129.

[79] Id at 132.

[80] The four member Court split 2:2 on the outcome. Applying s 23 of the Judiciary Act 1903 (Cth), the decision of Mason J at first instance to dismiss the appellant’s application for leave to amend his statement of claim was affirmed.

[81] In Coe v Commonwealth, above n75 at 128–129, Gibbs J (with whom Aickin J agreed) noted that, in oral argument, the appellants argued for a subsidiary form of sovereignty based on American jurisprudence by asking the Court to recognise the Aboriginal people of Australia as a ‘domestic dependent nation’. He rejected this, insisting that the circumstances were different in Australia and that Aboriginal people had ‘no legislative, executive or judicial organs by which sovereignty might be exercised’.

[82] Above n54.

[83] Id at 33, 38–39 (Brennan J, with Mason CJ & McHugh J agreeing), 78 (Deane and Gaudron JJ).

[84] Id at 36 (Brennan J, with Mason CJ & McHugh J agreeing).

[85] Gerry Simpson is one of several commentators who have questioned the logic of this juxtaposition: ‘The logic employed in Western Sahara [an International Court of Justice decision on terra nullius] permitted the High Court to declare that Australia was not terra nullius at the time of settlement, but thereby obliged the Court to reject that Australia had been occupied. In the absence of either a treaty (cession) or a determination that Australia was terra nullius (occupation), the only method of acquisition was conquest. The Court refused to consider this possibility and instead produced a new method of acquisition combining the symbolism of one (occupation) with the consequences of another (conquest).’ Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 MULR 195 at 208.

[86] Mabo, above n54 at 32 (Brennan J, with Mason CJ & McHugh J agreeing).

[87] Id at 51 (Brennan J, with Mason CJ and McHugh J agreeing) referring to the ‘fallacy of equating sovereignty and beneficial ownership of land’.

[88] Id at 48 (Brennan J, with Mason CJ and McHugh J agreeing). ‘The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist. To adopt the words of Brennan J in Mabo (No 2), it explains how “[n]ative title to land survived the Crown’s acquisition of sovereignty” over a particular part of Australia.’ See Yarmirr, above n48 at 51 (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[89] Mabo, above n54 at 79 (Deane and Gaudron JJ).

[90] Id at 40.

[91] Id at 57, 59, 63 (Brennan J, with Mason CJ & McHugh J agreeing). See also the reference to ‘the change in sovereignty at settlement’ by Gleeson CJ, Gaudron, Gummow & Hayne JJ in Ward v Western Australia (2002) 191 ALR 1 at 55 and below n210.

[92] Mabo, above n54 at 58 (Brennan J, with Mason CJ & McHugh J agreeing).

[93] Id at 99–100 (Deane and Gaudron JJ). For similar judicial observations in relation to ‘sea country’, see Yarmirr, above n48 at 142 (Kirby J). See also the dissenting judgment of Gaudron and Kirby JJ in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 at 569.

[94] Yarmirr, id at 37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[95] Coe v Commonwealth (No 2) [1993] HCA 42; (1993) 68 ALJR 110 at 113.

[96] Id at 114.

[97] Id at 115.

[98] (1994) 182 CLR 45 at 48, 50.

[99] Above n48 at 99.

[100] Ibid.

[101] Id at 136.

[102] Ibid.

[103] Id at 133.

[104] Above n93.

[105] Id at 550.

[106] Id at 551.

[107] Id at 550, 555.

[108] Id at 551.

[109] Id at 552.

[110] Ibid.

[111] Id at 553.

[112] The release of the Trudeau Government’s White Paper on Aboriginal policy in 1969 is widely regarded as a catalyst for high profile Aboriginal initiatives in the courts and in the political sphere.

[113] Taiaiake Alfred, From Sovereignty to Freedom. Toward an Indigenous Political Discourse 2000: <http://www.taiaiake.com/pdf/sfp.pdf> (29 June 2004).

[114] ‘Using the sovereignty paradigm, indigenous people have made significant legal and political gains toward reconstructing the autonomous aspects of their individual, collective and social identities.’ Id at 8.

[115] Id at 1.

[116] Id at 11–12.

[117] Dale A Turner, ‘This is not a Peace Pipe’: Towards An Understanding of Aboriginal Sovereignty (D Phil Thesis, McGill University, 1997) at 189: <http://www.collectionscanada.ca/thesescanada/> (30 June 2004).

[118] Robert Warrior, Tribal Secrets: Recovering Indian Intellectual Traditions (1993) at 124; cited in id at 190.

[119] Roger Jones, Councillor and Elder of the Shawanaga First Nation, quoted in Report of the Royal Commission on Aboriginal Peoples: <http://www.ainc-inac.gc.ca/ch/rcap/sg/ch3a_e.pdf> Volume 2 — Restructuring the Relationship, Part 1, Chapter 3, Section 1.1 (29 June 2004).

[120] René Tenasco, Councillor of the Kitigan Zibi Anishinabeg Council, quoted in ibid.

[121] Ibid.

[122] Ibid.

[123] Ibid.

[124] Report of the Royal Commission on Aboriginal Peoples: <http://www.ainc-inac.gc.ca/ch/rcap/ sg/ch2_e.pdf> Volume 2 — Restructuring the Relationship, Part 1, Chapter 2, Section 1.3 (29 June 2004).

[125] The original British North America Act 1867 (Imp) was re-enacted as the Constitution Act 1867. It sits alongside the Constitution Act 1982, which includes in s35 protection of the rights of Canada’s aboriginal peoples.

[126] The Royal Proclamation of 1763 provided an earlier legal basis for recognition of Aboriginal people and their rights, with its acknowledgment of Indian ‘Nations’ and their lands.

[127] <www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html> 4: (1 July 2003).

[128] Id at 8.

[129] The commitment to establish the territory of Nunavut was part of the Nunavut Land Claim Agreement signed in 1993. This ‘public model of governance rather than an Inuit-exclusive government structure…does not benefit from protection under section 35’ of the Canadian Constitution. John J Borrows and Leonard I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary (2^nd ed, 2003) at 710.

[130] Brad Morse has written that while ‘Canada went through a period of slumber in the mid-20^th Century in which it thought that treaties were only of historic interest with no place in the modern world, First Nations used the courts, the media and the political process to remind everyone of the fallacy of those presumptions….[E]xisting Indian-Crown treaties are very much part of 21^st Century Canada with their numbers growing and their scope expanding through dozens and dozens of negotiation tables in all parts of our country.’ Bradford W Morse, ‘Treaty Relationships, Fiduciary Obligations and Crown Negotiators’, paper presented at the Ottawa Bar Association’s Annual Institute of 2003, February 2003 at 7. For an overview of what he says are the four distinct eras of treaty-making in Canada, see Morse, above n55 at 53–64.

[131] Indian and Northern Affairs Canada, Gathering Strength — Canada’s Aboriginal Action Plan: <www.ainc-inac.gc.ca/gs/chg_e.html> 3 (1 July 2003).

[132] Minister of Indian Affairs and Northern Development, A Guide to Understanding Bill C-7, the First Nations Governance Act (July 2003): <www.fng-gpn.gc.ca/PDF_files/crarevju_e.pdf> 3: (17 December 2003). According to Robert Nault, then Minister of Indian Affairs and Northern Development: ‘The objectives of this new legislation are to put in place provisions that reflect current realities, that would serve as an interim step towards self-government and put the power on reserves back where it belongs — in the hands of the people’ (‘Statement by Robert D Nault Minister of Indian Affairs and Northern Development’ 19 March 2003: <www.fng-gpn.gc.ca/ NR_FctFctnM19_e.html> (2 July 2003)).

[133] Robert D Nault, Minister of Indian Affairs and Northern Development, News Release Proposed First Nations Governance Act Moves Forward 28 May 2003: <www.ainc-inac.gc.ca/nr/prs/ma2003/2-02324_e.html> (12 June 2003).

[134] Assembly of First Nations, The Assembly of First Nations’ Position on Bill C-7: The First Nations Governance Act: <www.afn.ca/Legislation%20Info/The%20Assembly% 20of%20First%20Nations%E2%80%99%20Position%20on%20Bill%20C-7.htm> (12 June 2003).

[135] <http://www.ainc-inac.gc.ca/nr/prs/j-a2004/2-02462_e.html> (16 February 2004).

[136] Statement by National Chief Fontaine: <http://www.afn.ca/Assembly_of_First_Nations.htm> (16 February 2004).

[137] The Rt Hon Beverley McLachlin, ‘Reconciling Sovereignty: Canada and Australia’s Dialogue on Aboriginal Rights’ delivered at the High Court Centenary Conference, Canberra, 10 October 2003 at 2.

[138] R v Sioui [1990] 1 SCR 1025. Kent McNeil has noted that in Simon v The Queen [1985] 2 SCR 387 at 404 the Court denied international status to Indian treaties but that in the Sioui decision it did say ‘that, until 1760 at least when the treaty in question was made with the Hurons of Lorette, Britain and France maintained relations with the Indian nations “very close to those maintained between sovereign nations.” Nonetheless, the Supreme Court in Sioui did not question that the British Crown’s sovereignty over that part of Canada was derived from the French, regardless of Indian treaties.’ Kent McNeil, ‘The Decolonization of Canada: Moving Toward Recognition of Aboriginal Governments’ (1994) 7 Western Legal History 113 at 115 n7. McNeil points out that many Indigenous people have found no difficulty seeing these treaties as ‘entailing peer relations between equal sovereigns’ (at 115). See, for example, Mary Ellen Turpel, ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences’ (1989– 1990) Canadian Human Rights Yearbook 3 at 36: ‘There is no compelling reason, according to international law, not to view treaties between Aboriginal peoples and the Crown as treaties between sovereigns, that is, as international treaties.’

[139] R v Jones (sub nom R v Pamajewon) [1996] 2 SCR 821 at [24].

[140] [1996] 2 SCR 507 at [46] quoted in R v Jones, id at [25].

[141] The Court in R v Jones (id at [27]) provided additional guidance by stating that ‘Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right’.

[142] Delgamuukw v British Columbia [1997] 3 SCR 1010.

[143] Patrick Macklem, Indigenous Difference and the Constitution of Canada (2001) 174. Compare Mitchell v MNR [2001] 1 SCR 911 (Major and Binnie JJ).

[144] Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333.

[145] Id at [124].

[146] Id at [179].

[147] Id at [81].

[148] Id at [121]. See John Borrows, ‘Sovereignty’s Alchemy: An Analysis of Delgamuukw v British Columbia’ (1999) 37 Osgoode Hall LJ 537 at 574.

[149] Department of Interior, Fiscal Year 2003 Annual Report on Performance and Accountability (2003) at 43: <http://www.doi.gov/pfm/par2003/par03_mda_goal5.pdf> (29 June 2004).

[150] On the difference between the North American and Australian approaches see Morse, above n55 at 50–51: ‘One of the critical historical, political and legal elements that distinguishes the North American experience from that of Australia is that there was a recognition from the early points of contact that pre-existing societies were completely sovereign’.

[151] Department of Interior, Fiscal Year 1996 Interior Accountability Report at 50: <www.doi.gov/ pfm/acct96/entire.pdf> (8 July 2003). See also Department of Interior, Fiscal Year 2003 Annual Report on Performance and Accountability (2003) at 43, 200: <http://www.doi.gov/pfm/ par2003> (29 June 2004).

[152] Bureau of Indian Affairs, Government-to-Government Consultation Policy: <www.doi.gov/ oait/docs/g2gpolicy.htm> (8 July 2003).

[153] Federal Register, Volume 65, Number 218, 9 November 2000.

[154] Bureau of Indian Affairs, Government-to-Government Consultation Policy at 1: <www.doi.gov/ oait/docs/g2gpolicy.htm> (8 July 2003).

[155] Id at 3.

[156] Id at 2. Another indication of the Federal Government’s support of Indian sovereignty is the Office of Self-Governance, which administers Tribal Self-Governance in relation to Bureau of Indian Affairs programs. See Office of Self-Governance, <www.doi.gov/oait/osgwww> (8 July 2003).

[157] See Joseph William Singer, ‘Canons of Conquest: The Supreme Court’s Attack on Tribal Sovereignty’ (2003) 37 New Eng LR 641 at 648.

[158] Joseph P Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule (2003): <http://www.ksg.harvard.edu/hpaied/docs/Kalt-Singer%20Final%2001-04.pdf> (29 June 2004).

[159] The Rehnquist Court has, however, been extensively criticised by Federal Indian scholars for its interpretative emasculation of Indian sovereignty. See Robert N Clinton, ‘There is no Federal Supremacy Clause for Indian Tribes’ (2002) 34 Ariz St LJ 113.

[160] Johnson v M’Intosh, [1823] USSC 22; 21 US 543 (1823).

[161] Id at 586.

[162] Id at 574.

[163] The Cherokee Nation v Georgia, [1831] USSC 6; 30 US 1 (1831).

[164] Id at 16.

[165] Id at 17.

[166] Worcester v Georgia, [1832] USSC 39; 31 US 515 (1832).

[167] Id at 542–543.

[168] Id at 560–561.

[169] United States v Kagama [1886] USSC 194; 118 US 375 (1886).

[170] Id at 384.

[171] Id at 381–382.

[172] United States v Wheeler [1978] USSC 44; 435 US 313 (1978).

[173] Id at 322.

[174] Ibid.

[175] Id at 323.

[176] Ibid.

[177] Id at 328.

[178] Catherine T Struve, ‘Tribal Immunity and Tribal Courts’ (2004) 36 Ariz St LJ 137 at 146. See also Singer, above n157.

[179] The United States Constitution is not, however, silent on the Indian tribes. Article 8, for example, confers power upon Congress, among other things, ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes’.

[180] See Matthew Palmer & Geoffrey Palmer, Bridled Power: New Zealand’s Constitution and Government (4th ed, 2004) 22-38.

[181] (1877) 3 NZ Jur (NS) SC 72.

[182] Ngati Apa v Attorney-General (NZ) (NZ Court of Appeal, Elias CJ, Gault P, Keith, Tipping and Anderson JJ, CA173/01, 19 June 2003).

[183] Id at [139] (Keith and Anderson JJ).

[184] Joe Williams, ‘Not Ceded but Redistributed’ in William Renwick (ed), Sovereignty and Indigenous Rights. The Treaty of Waitangi in International Contexts (1991) at 190. See also Claire Charters, ‘Report on the Treaty of Waitangi 1840 Between Maori and the British Crown’, Background Paper for Expert Seminar on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Peoples, Geneva, 15–17 December 2003 at 6: <http://www.unhchr.ch/indigenous/charters-BP15.doc> (29 June 2004). Martinez notes that in Canada Indigenous parties to the so-called numbered treaties, officially regarded as ‘land surrenders’, insist rather that these agreements fall into the same category as earlier treaties of peace and friendship and ‘that they did not cede either their territories or their original juridical status as sovereigns’. Miguel Alfonso Martinez, ‘Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations’, Final Report, E/CN.4/ Sub.2/1999/20, 22 June 1999 at [122]: <http://ods-dds-ny.un.org/doc/UNDOC/GEN/G99/137/ 73/PDF/G9913773.pdf?OpenElement> (30 June 2004).

[185] Te Puni Kokiri (Ministry of Maori Development), Statement of Intent (2003) at 15: <www.tpk.govt.nz/publications/soi/eng_july03.pdf> (23 December 2003).

[186] Te Puni Kokiri (Ministry of Maori Development), Strategic Plan 2001/02-2003/04 at 13: <www.tpk.govt.nz/publications/docs/SP_2001-04eng.pdf> (9 July 2003).

[187] Charters, above n184 at 14.

[188] New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 690.

[189] Kaihau v Inland Revenue Department [1990] 3 NZLR 344 at 345–346.

[190] Ngati Apa v Attorney-General (NZ), above n182.

[191] See Keith and Anderson JJ at [139]–[140] and Elias CJ at [15] who quoted, without contradiction, the characterisation of the Treaty as one of cession of sovereignty by the Anglo-American Claims Tribunal. See also the trial judge’s adoption of a cession of sovereignty view, noted by Elias CJ at [7].

[192] Hoani Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308.

[193] Sir Robin Cooke, ‘Introduction’ (1990) 14 NZULR 1.

[194] The Rt Hon Dame Sian Elias GNZM, ‘Sovereignty in the 21^st Century: Another Spin on the Merry-Go-Round’ (2003) 14(3) PLR 148 at 153. McHugh says that in 1995 the New Zealand Court of Appeal ‘reaffirmed the orthodoxy that treaty rights, including those associated with the one concluded at Waitangi in 1840, required statutory incorporation and took effect only and subject to that manner of recognition’. Paul McHugh, ‘What a Difference a Treaty Makes — The Pathway of Aboriginal Rights Jurisprudence in New Zealand Public Law’ (2004) 15(2) PLR 87 at 91–92.

[195] Williams, above n184 at 193.

[196] See Charters, above n184 at 6.

[197] According to McHugh, ‘These statutes laid the platform for legal development into the new century. Indeed this activity was becoming so regular there was a suggestion at the time that the insertion of such clauses was becoming a constitutional convention. In any event, this statutory housing of “Treaty principles” facilitated their permeation into the institutional culture of public administration, as Government departments audited themselves for sensitivity and compliance.’ McHugh, above n194 at 91.

[198] Matthew Palmer, ‘The Treaty of Waitangi in Legislation’ [2001] NZLJ 207. McHugh said that ‘Treaty principles motored legal development in New Zealand during the 1990s (the first half in particular) as claims negotiation and resolution dominated, and substantially dictated the direction of, Crown-Maori relations.’ McHugh, above n194 at 92.

[199] Palmer, id at 207.

[200] Ibid.

[201] Morse, above n55.

[202] This section of the paper draws on the analysis of Paul McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (1991).

[203] See text at nn191, 193–194.

[204] As Simpson puts it, ‘The one element that could not be discarded, of course, was the sovereignty upon which the Court’s jurisdiction rested. In discussing the issue of sovereignty the Court followed the Coe judgment and that in the Seas and Submerged Lands case, warning that the acquisition of sovereignty itself was an unchallengeable act of state. In other words, the existence of Crown sovereignty over the Australian land mass was not a justiciable matter. Despite the reservations of many Aboriginal groups, this may be the only possible finding a court in Australia can make without undermining the very basis of its jurisdiction to hear the issue.’ [Emphasis added.] Simpson, above n85 at 206.

[205] See, for example, Seas and Submerged Lands Case, above n48. See also, for example, in the United States the following comment in the dissent of Justices Ginsburg, Stevens, Souter & Breyer in the 2000 election case of Bush v Gore, [2000] USSC 72; 531 US 98 (2000): ‘Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”’

[206] Coe v Commonwealth (No 2), above n95 at 115.

[207] See for example Native Title Act 1993 (Cth), ss251A and 251B, and Native Title (Prescribed Bodies Corporate) Regulations 1999, reg 8(4).

[208] Mabo, above n54 at 32 (Brennan J, with Mason CJ & McHugh J agreeing).

[209] Yorta Yorta, above n93 at 552.

[210] Id at 555. Six judges of the High Court had already categorised British colonisation as a change in sovereignty in the earlier native title case of Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 422–423 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ): ‘At common law, a mere change in sovereignty over a territory does not extinguish pre-existing rights and interests in land in that territory. Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended. That presumption is applicable by the municipal courts of this country in determining whether the acquisition of the several parts of Australia by the British Crown extinguished the antecedent title of the Aboriginal inhabitants.’

[211] Yorta Yorta, above n93 at 552 (Gleeson CJ, Gummow and Hayne JJ).

[212] At least for the purposes of its recognition by Western law. The joint judgment contains a qualification that account may need to be taken ‘of developments at least of a kind contemplated by that traditional law and custom’ but elsewhere it is quite insistent that the only rights eligible for recognition are ‘those that find their origin in pre-sovereignty law and custom’. [Id at 552.]

[213] Yarmirr, above n48 at 132 (Kirby J). Similarly, in 1992, Deane and Gaudron JJ pointed out: ‘The traditional law or custom is not … frozen as at the moment of establishment of a Colony’: Mabo, above n54 at 110.

[214] Yorta Yorta, above n93 at 553–554 (Gleeson CJ, Gummow and Hayne JJ).

[215] Ward v Western Australia (2002) 191 ALR 1 at 160 (Kirby J): ‘When evaluating native title rights and interests, a court should start by accepting the pressures that existed in relation to Aboriginal laws and customs to adjust and change after British sovereignty was asserted over Australia. In my opinion, it would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement.’

[216] Yorta Yorta, above n93 at 555 (Gleeson CJ, Gummow and Hayne JJ).

[217] Langton & Palmer, above n31 at 43. Later (at 48–49), after surveying a range of modern agreement making processes in Australia, they conclude that ‘the assertion of national sovereignty is contested by the assertion and exercise of Indigenous governance and customary authority. Indigenous forms of political legitimacy or jurisdiction compete both symbolically and politically with the declared nation-state sovereignty, which is often weakly exercised in the territory of the people, especially in remote areas. Some agreements in Australia today, while not treaties in the conventional sense of the term used in current international law, have effected mutual recognition of the respective jurisdictions of the Indigenous and settler parties, with the express purpose of constituting jural, political and economic relationships based in an agreed distribution of public and private rights in land.’

[218] Elias, above n194 at 162.

[219] William Jonas, ‘Recognising Aboriginal Sovereignty — Implications for the Treaty Process’ (Paper presented at the ATSIC National Treaty Conference, Canberra, 27 August 2002). See <www.treatynow.org/docs/jonas.doc> (23 December 2003).

[220] See also Oliver’s comments on MacCormick’s analysis of the relationship between Member States and the European Union at above n7. In the same passage he continues: ‘Even if both parties to the relationship have come out and staked claims to having the last word, it may be that the closest we can come to describing the situation accurately is to say, as MacCormick does regarding Member States and the European Union, that from the perspective of the UK (or Germany) sovereignty (or supremacy) of Parliament (or the Constitution) is claimed, whereas from a European perspective supremacy of European law is taken for granted.’ See also the comments of the Canadian Royal Commission on Aboriginal Peoples, above n124.

[221] Michael Mansell has advocated a compromise solution of this kind: ‘While the past spells out the basis of current and future entitlements, it has to be recognised that the nature of a treaty involves compromise. The past rights we had opens up the possibilities for our future, provides relevant information on which to base decisions and creates a political base from which a treaty can be entered into. The past is not a yoke around our neck: it opens our minds to the possibilities and gives our cause a focus. This point applies equally to governments, not just Aborigines. The competing claims and positions on sovereignty could be dealt with in a way that enables both sides to maintain their high moral positions while advancing an agreement.’ Michael Mansell, ‘A Treaty as a Final Settlement?’, speech delivered at Murdoch University Treaty — Advancing Reconciliation Conference, Perth, 27 June 2002: <www.treaty.murdoch.edu.au/ Conference%20Papers/Michael%20Mansell.htm> (16 August 2004).