Aboriginal Law Bulletin
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by Brad Morse
Having completed a four month stay in Australia as the Canadian Visiting Fellow of 1987 at Macquarie University, which has been the fourth trip to Australia in the last five years, Brad Morse has developed some distinct impressions and a number of questions. As an individual with some expertise in Aboriginal issues from a legal standpoint and fair degree of experience working for Indian and Metis peoples in Canada for a number of years, Brad Morse is hopeful his observations as an outsider may be of use.
One of the things which continues to amaze me as a Canadian is the national significance of the land rights case brought by the Aboriginal people of Yirrkala,[1] I readily appreciate its importance as being perhaps the first time an Aboriginal community took its struggle for justice to what was to them a foreign court. I also understand how it shaped the political movement that followed through the Woodward Reports and the Aboriginal Land Rights (Northern Territory) Act 1976. What surprises me, however, is the way in which the Gove case has been almost blindly accepted as determining that Aboriginal title and Aboriginal rights do not exist as part of Australian law. I can see why the state, territorial and Commonwealth governments have been happy to regard the decision as conclusively settling the law, but why has the legal profession done so?
Although there has been much criticism of Mr Justice Blackburn's view as being unfair, immoral and ethnocentric, there has been relatively little effort to attack the decision on legal grounds.[2] My surprise at this state of affairs is compounded by the presence of large numbers of lawyers who have worked for Aboriginals through the Aboriginal Legal Services (ALS) and Land Councils over the years. It must be emphasised that the Gove case is a decision of only a single judge of the Northern Territory Supreme Court. Based on my own research and the replies of dozens of practitioners and law teachers throughout Australia to my questions, it appears that this is the only instance in which a judgement of that Court has ever been accepted outside the Northern Territory as conclusively determining a point of law. The fact that this has happened and that Aboriginals have been advised that Milirrpum is the law has entirely shaped, in my view, the land rights struggle since 1971. It has meant, then, that Aboriginal groups have sought land through legislation or purchase. Governments have felt that they are completely in control and can 'give' or refuse land rights. Public debate has focused on questions of morality, equality and what it will cost. Aboriginal groups and their supporters are required to lobby governments with little negotiating leverage while the Australian Mining Industry Council (AMIC) can respond with a campaign that suggests that non-Aboriginal Australians will lose what is largely theirs.
One might try to explain this reaction from the legal community by pointing to the decisions of the Privy Council in 1889[3] and the High Court in 1979[4]. This is inadequate as both Cooper and Coe can be readily distinguished. Many people have identified Australian law on Aboriginal title as an aberration within the common law world[5] yet Gove has still gone unchallenged for 16 years until Mabo v Queensland and the Commonwealth is heard by the High Court later this year. Is it simply because Blackburn's judgement is so long that few have actually read it? Although Henry Reynolds' recent work[6] will help demonstrate the historical inaccuracies that underlay this decision, it is eminently attackable by lawyers on several grounds:
(1) it misapplied Cooper v Stuart;
(2) it misunderstands the American and Canadian jurisprudence;
(3) it relies heavily on the British Columbia Court of Appeal decision in Calder et al. v A G of British Columbia which was rejected by the Supreme Court of Canada'[7] after Milirrpum;
(4) it has been analysed and expressly rejected by Canadian courts[8];
(5) its view of property' law is unnecessarily narrow.
The willingness of the legal profession to allow Gore to go unchallenged must be a cause for concern and self-criticism.
Aboriginal land rights in Australia has evolved within very limited parameters. Both the demands for land rights and the legislative regimes have been pursued solely within the context of a few issues, namely, the extent of land to be granted; the nature of the title of reality; regulating mineral exploration and/or development; who holds the title; who benefits from land rights; and power to restrict access. These are clearly all factors fundamental to Aboriginal land rights, however, they largely do not speak to control over the lands and lives of Aboriginals. That is, land rights has been defined to a significant degree as if Aboriginal people were simply pastoralists with large families, what I mean by that provocative statement is that land rights has neither addressed matters regarding the power of Aboriginal communities to decide their own future nor structured the relationship between these communities and the dominant society.
By comparison, Aboriginal title settlements in Canada not only cover the land issues but they also have included provisions regulating control over health care, education, social services, policing, administration of justice, environmental protection, wildlife, water rights, resource ownership and commercial development. Furthermore, land claims are seen as a subject for direct negotiation rather than legislatively imposed terms.
Another essential aspect to the Australian scene is that land rights are not viewed as permanent even once they are granted. Legislation can and is regularly amended without Aboriginal consent[9] such that successful communities and Land Councils are always vulnerable to changing political winds. The High Court has also suggested that land rights statues may only be valid as a 'special measure' to help Aboriginals as disadvantaged peoples on a temporary basis otherwise it would be discriminatory and violate the Racial Discrimination Act 1975 (Cwth).[10] This reflects an all too common tendency to confuse land rights with social service programs. The former speak to the concept of rights that are tied to the unique position of Aboriginals as the original owners and as sovereign nations, whereas programs are generally made available due to their incredibly poor socio-economic condition in a way similar to that for other Australians but with different emphases and delivery systems.
Land rights also remains something that is raised in reference to Crown land that is not otherwise in use. Thus, claims occur in NSW and the NT under restrictive statutory criteria for eligibility, surviving reserves (trust lands) are conveyed in NSW. Victoria and the NT, or remote areas are transferred in South Australia. What about the other parts of those three states and the NT? Only Victoria has made very tentative steps to confront the question of compensation for lands now in private hands or used for essential purposes by the Crown and this has yet to bear fruit in almost three years.[11]
State, territorial and federal governments all appear to this outsider as either being negative or fearful of a backlash by the majority. The promise of national land rights legislation has been broken as has the one for state legislation in Western Australia. The recent federal election campaign saw the Coalition promise to end all federal programs and legislation while the ALP offered the status quo. The Victorian government moved on two progressive statues but had to get the Commonwealth to pass them when the Upper House said no. The government is making other positive moves but it (eels it must do so very quietly to avoid conflict. The preamble to the new land rights law for Framlingham and Lake Condah is itself very revealing of the Hawke government's refection of Aboriginal rights. I would feel more positive about the Commonwealth's proposal to transfer DAA's functions to a statutory corporation if it appeared to be based on consultation and a commitment to Aboriginal self-determination. In Canada we are also trying to dissolve decades of paternalism and governmental bureaucracies, however, this must occur through empowering Aboriginal communities and organisations while retaining a federal commitment to continued full financial resources as necessary.
The Indian, Inuit and Metis peoples of Canada are also locked in a struggle to expand their gains of recent years and ensure their power to determine their own future. The courts clearly recognise that Aboriginal title is not only part of the law but that it pre-exists any Crown recognition. The Constitution now affirms the paramountcy of Aboriginal and treaty rights over federal and provincial law. Yet much more remains to be done, including further land claims settlements, renovating treaties to make them fit the present and amending the Constitution to recognise their right to self-government.
I cannot, however, help but be seriously distressed by how the optimism that prevailed four years ago in Australia has been shattered. The ALSs have survived their big threat, however, they remain buried under criminal casework and have not been able to alter the status quo significantly. The increase in effort on the international dimension by Aboriginal groups is a positive development but must be linked to a determined domestic strategy. For example, Pope John Paul II issued a strong statement yet the Catholic Church has not been taking an active role in support. The ACTU is being helpful within the International Labour Organization, however, it can be far more vocal here. Valuable alliances are being made that can change the current situation, particularly in persuading the ALP that a pro-Aboriginal posture will not sponsor a backlash.
Although I personally regard litigation as a last resort, it seems that court battles are now essential. Clear rulings from the High Court on Aboriginal title in Mabo and on a federal fiduciary obligation in the Ranger Agreement case could dramatically revitalise the pressure for change while altering the negotiating power of Aboriginals. What could be a more fitting way to approach the 200th anniversary of invasion than by finally recognising the rights of the original owners. One can also hope that the Report of the Individual and Democratic Rights Committee of the Constitutional Review Commission reflects the beginning of a change in attitude. Although its recommendations are exceedingly modest, it does open a door to another avenue for change that, based on the Canadian experience is worth seizing.
Instead, I am left with a feeling that governments believe they can act unilaterally regardless of the consequences. This high-handed approach ranges from threatening funding cuts to the Tasmanian Aboriginal Centre, to enacting statutes solely designed to destroy the foundation for impending litigation.[12] It is also apparent in the general absence of funding to Aboriginal communities as communities to govern their own affairs.
A related issue is the refusal to fund Land Councils in NSW and the NT to pursue land claims under the legislation. It is both unfair and improper to expect Land Councils to use their own limited funds (derived through the state land tax and mineral royalties respectively) to cover the costs of prolonged, complex claims to Crown land that was (if not still is) Aboriginal land. Canada provides a contrast in that the expense of claims research and submission or litigation is funded by the federal government through grants while negotiation costs are covered through loans whose repayment is itself an item for negotiation.
As a Canadian I find the general sense of pessimism very disturbing. I have encountered many, many non-Aboriginals who are very supportive yet they all feel they are part of a small minority. But is this true? Is racism and antagonism to the rights of Aboriginals really on the rise in Australia or is it that media coverage, an AMIC scare campaign and governmental passivity has caused people to believe this? Although the result may be the same in the short run, the presence of more public support than is thought directly affects the chances of positive action.
The media plays a vital role in shaping both public attitudes and the political agenda. The Australian media appears to me to be having a tragically negative impact. There are virtually no success stories about Aboriginal initiatives or communities only the odd one about an individual. Instead, the media largely Ignores Aboriginals altogether except for occasional sensationalism or massive tragedies like the deaths in custody issue. The latter is not news by any means in the sense of just occurring recently,[13] yet only now when the tragic loss of human lives unnecessarily has hit staggering proportions does the media respond. Why has the legal profession again been so silent? The Commonwealth is also finally reacting, but only once the media spotlight has been turned on. Furthermore, the federal Cabinet still feels able to reject a reasonable call for a royal commission by the Committee to Defend Black Rights. It is a very sad condemnation of the media, the criminal justice system and the Hawke government that dozens can die and a crisis can exist in the goals before attention is drawn to the situation.
Brad Morse is Professor of taw at the University of Ottawa and a legal adviser to a number of Indian and Metis organisations and communities in Canada.
[1] Milirrpum v Nabalco Pty Ltd 119711 17 FLR.
[2] There have, of course, been a few law journal articles since 1971 that attempt to criticise it.
[3] Cooper v Stuart (1889) 14 AC 86
[4] Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403.
[5] See. e.g., Bryan Keon-Cohen and Bradford Morse, 'Indigenous land rights in Australia and Canada' in Peter Hanks and Bryan Keon-Cohen, eds., Aborigines and the Law (Sydney: George Allen & Unwin, 1984).
[6] Frontier (1987) and Law of the Law (in press).
[7] (1973) SCR 313.
[8] See. e.g., Hamlet of Baker Lake et al. v Ministered Indian Affairs and Northern Development et al. 1107 DCR (3d) 513 (FCTD).
[9] See. e.g., the Aboriginal Land Rights (Amendment) Act 1986 INS W) and the almost constant amendments to the Northern Territory scheme.
[10] Gerhardy v Brown [1985] HCA 11; (1985) 57 ALR 472.
[11] Social Development Committee. Report upon Inquiry Into Compensation for Dispossession and Dispersal of the Aboriginal People (October 1984).
[12] See, Queensland Coast Islands Declaratory Act 1985 (Qld). ss.3 and 5 vesting the Torres Strait Islands as part of Queensland without Aboriginal consent or compensation to try and frustrate Mabo v Queensland; and the legislation in NSW In ;1983 that retroactively validated the revocation of former reserves.
[13] See. e.g.. the coverage of this issue four years ago, Christine McIlvanie. 'Death in the Cells' [1983] AboriginalLB 17; 1(8)pg4.
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