Keon-Cohen, Brian --- "Makarrata Legal Issues" [1981] AboriginalLawB 2; (1981) 1(1) Aboriginal Law Bulletin 2

• Makarrata Legal Issues
• The Legal Problem
• Objectives
• Content

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Makarrata Legal Issues

Bryan Keon-Cohen

On 15 August 1979, a full-page advertisement appeared in the National Times. Organised by the Canberra-based Aboriginal Treaty Committee, the advertisement called upon white Australians (through the Commonwealth Government) to negotiate and implement a treaty or 'Makarrata'[1] with Aborigines (acting, it seems, through the National Aboriginal Confetence). In the past two years, much political rhetoric and some substantive discussion by way of books[2], articles[3], and conferences have occurred; and NAC grass-roots consultatibn throughout Australia with Aboriginal communities has been pursued. Not much more has been achieved. There is a long way to go, and time is already running short if one suggested implementation date, the bicentennial year 1988, is to be met. Here, there is space to mention only some of the legal issues which have been raised in discussion to date. A host of political, social and economic issues - wherein lies the heart of the matter - I leave aside.

The legal problem

The basic legal problem the Makarrata seeks to overcome is the historical constitutional doctrine whereby Aboriginal sovereign rights - e.g. to land, government and cultural survival - were denied upon British discovery and colonization of Australia. This doctrine declared that Australia was a 'settled' and not 'conquered' colony; that the land was to be considered vacant since no recognisable civilization was found to be dwelling on it at settlement; and that there was thus no resident Aboriginal civilization or law to recognise. Thus since 1788, only British law applied to the new colony, and that law was applied equally to all persons - black, white or in-between. From that beginning, unlike American Indians and New Zealand Maoris, Aboriginal sovereign rights have never been recognised in Australia, despite widespread criticism[4]. Any rights Aborigines might enjoy under the law (e.g. to land, self-government, welfare) are rights given (and taken away) by governments.

Objectives

Precisely what, at base level, the Makarrata proponents are attempting to achieve is still uncertain. Two broad approaches are now evident. First, and more radical, is a concern to recognise the Aboriginal community as a separate, sovereign nation exercising inherent powers of government derived from its original occupation of Australia from time immemorial. On this basis, an international 'treaty' proper would be the appropriate form of the final agreement. However, Aborigines under the above historical doctrines do not constitute a separate sovereign nation in the international community. Under international law, it is not possible to 'treat' with them. Thus, before a treaty could be entered into, the Aboriginal community Australia-wide, or (as a suggested alternative) selected individual Aboriginal communities (e.g. isolated tradition-oriented tribes which have never been 'settled') must be accorded sufficient sovereign character to enable international treating to go ahead. I secure such characterisation, appropriate declarations would need to be first sough from the International Court of Justice which declarations would need, in turn to be recognised by the international community. Such a scenario has been dicussed[5] but in my view, the prospect are not good.

An alternative route to the same end might be found in that much maligne.. document, the Australian Constiturion. For example, the Commonwealth and the States, it is suggested, could jointly treat a new State[6],and that State could then by referendum, secede from theCommonwealth. A number of people (both black and white) might favour the sovereig. course but politically it is simply not or and is not, so far as one can tell, bein seriously contemplated by either th NAC or the Treaty Committee. However constitutionally, the secessionist route at least is a clear possibility. West Australia held a secession referendum in 1933 which came to nought, but the prospect is now under discussion again[7], this time based on WA's mineral wealth. 'Aborigirnaland', based on NT uranium deposit and successful land claims pursuant to the NT Land Rights Act, might not b such a far-fetched prospect after all though to lose that mineral wealth to the new sovereign power would be the supreme irony resulting from the resources 'boom'. Still, some argue we have lost that wealth already.

The second, less radical objective, is to merely grant (rather than acknowledge) certain rights to Aborigines as Australian citizens, whether by constitutional amendment or by Commonwealth and, where necessary, State -legislation. Here, a `treaty' is not necessary. The most secure source would be an agreement entrenched into the Constitution, e.g. a Bill of Aboriginal Rights, or akin to the Financial Agreement of 1927 between the Commonwealth and the States, which was entrenched by referendum into the Constitution in 1929.[8] Alternatively, a series of Commonwealth and State'mirror' Acts of Parliament would suffice, though these can be easily amended. The political difficulties facing those wishing to achieve this type of Makarrata are pretty obvious, and very formidable. Unless the Commonwealth chose to use its undoubted constitutional powers[9] to override resisting States the Commonwealth and the States, on the one hand, would first have to agree on the objectives, content, and implementation of the Makarrata. Once that position was achieved, the Aboriginal negotiators would then have to seek their constitutents' agreement, or disagreement, with it. The negotiation process, once it gets going, could become a long haul indeed. The current debate suggests, however, that this second broad path is preferred by the NAC and, in so far as it has spoken at all, the Federal Government, but with considerable reservations.

Content

The basic objectives, once isolated, will need to be translated into a 'shopping-list' of Aboriginal demands, about which negotiations can take place. On the Aboriginal 'side, two years of consultation by an NAC subcommittee with its Aboriginal constituency does not appear to have resulted in a settled list of topics. This disappointing result was, perhaps, to be expected, given the difficult and contentious subject matter under discussion, and the NAC's own credibility problems in many parts of Aboriginal Australia. However, NAC consultations have led to a pamphlet being produced. This speaks, inter alia, of land rights, cultural affirmation, cash compensation for lost lands; abolition of discrimination; tribal law; minimal representation in the three levels of government; and affirmative employment programmes. Secondly, and quite separately, the Treaty Committee, in the above-mentioned advertisement, has set out and discussed a number of suggested demands, concerning broad social and cultural matters; land and resources; and political control.

The Makarrata debate raises a host of interesting legal, and somewhat daunting political and logistical questions. Those interested in further details should contact:

The Makarrata sub-committee,

NAC,

PO Box 259,

WODEN. ACT. 2606.

The Aboriginal Treaty Committee,

PO Box 1242,

CANBERRA CITY. ACT. 2601. References

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[1] Makarrata is an Arnhem land word meaning 'coming together after a struggle.'

[2] See S. Harris, It's Coming Yet, (Canberra. 1979).

[3] See B.Keen-Cohen,'The Makarrata'(1981) 57 Current Affairs Bulletin, pp. 4-19, (February, 1981.)

[4] Including from Murphy J in Co, v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403. at 412, where his honour described the doctrines as a 'convenient falsehood.'

[5] For example, at a Makarrata conference, Canberra, 2 May 1981.

[6] Constitution, ss. 121-124.

[7] Bolton, 'A Secessionists's Guide to WA' The Age, 27 June 1981.

[8] Constitution, s. 105A.

[9] Constitution, s. Sl(xxvi). See also Senate Standing Committee on Constitutional and Legal Affairs, Report on Aboriginals and Torres Strait Islanders On Queensland Reserves (AGPS 1978) where the power was interpreted widely.