Crawford, James; Nettheim, Garth --- "Preamble Perils: Comment on the Proposed Preamble to Legislation to Establish an Aboriginal and Torres Strait Islander Commission" [1988] AboriginalLawB 13; (1988) 1(30) Aboriginal Law Bulletin 15

• Preamble Perils: Comment On The Proposed Preamble To Legislation To Establish An Aboriginal And Torres Strait Islander Commission

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Preamble Perils:

Comment on the Proposed Preamble to Legislation to Establish an Aboriginal and Torres Strait Islander Commission

by Garth Nettheim & James Crawford

In his statement "Foundations for the Future" to the House of Representatives on 9 December 1987. the Minister for Aboriginal Affairs, the Hon. Gerry Hand, MP spoke of the preamble he proposed in foreshadowed legislation to establish an Aboriginal and Torres Strait Islander Commission.

A preamble is sometimes included in an Act of Parliament to state the reasons why Parliament has chosen to enact it. A preamble is not itself part of the enactment so as to change the law, but it may have some influence on the interpretation of ambiguous provisions in the Act.

The earlier paragraphs in the proposed preamble stale matters of historical fact. The later paragraphs state the broad intentions underlying the particular provisions of the proposed enactment.

This paper focuses on the 2nd. 3rd and 4th paragraphs of the preamble.

The 2nd paragraph is an acknowledgment of historical fact that the indigenous peoples were the prior occupiers and owners of this land. The acknowledgment is of considerable symbolic importance in confronting the doctrine that Australia was terra nullius (no man's land). This doctrine seemed to deny the presence or the humanity of the indigenous inhabitants. It was frequently invoked in the past as a justification for the matters referred to in the 4th paragraph-the failure to negotiate with the indigenous people about land and the failure to compensate for dispossession.

The two paragraphs will not, in themselves, have the legal effect of establishing Aboriginal/Islander ownership of land or a right to compensation for dispossession. This is partly because of the limited legal effect of preambles generally It is also because any claim to ownership of land (or compensation) would require proof on many other issues. The issues that would need to be proved in a land claim include:

• the connection between the original owners and present day claimants;

• the nature of rights in Aboriginal law to the land in question:

• the absence of any government action validly extinguishing those rights.

The 3rd paragraph raises some distinct issues and requires clarification and rewording.

The statement that 'they were dispossessed of their land by subsequent European occupation' seems to suggest that all Aboriginal and Islander peoples were dispossessed of all their land. As a factual statement this is simply incorrect Some peoples were not dispossessed of their lands, and some still remain in occupation. The issue of legal ownership is distinct from the question of factual possession. That statement would be less problematical if the word "their" were removed.

The second part of the 3rd paragraph states that "they have no recognized rights over it [land) other than those granted by the Crown".

If this is intended as a statement of fact it may, perhaps, be harmless enough. The one judicial ruling to date that has directly addressed the question of the continuation of pre-extisting Aboriginal title is the decision of a single judge of the Northern Territory Supreme Court in Milirrpum v Nabalco Ply Ltd and Commonwealth (1971)17 FLR 141. Blackburn J did not recognize the continuation of Aboriginal title, so that it may be a fair account of that decision to say that they have "no recognised rights" - yet. But the correctness of Blackburn J's decision faces challenge in the High Court of Australia, and it is open to the High Court to recognise that the indigenous people do have rights over land other than those granted by the Crown. The Supreme Court of Canada has given such recognition in regard to the land rights of the aboriginal peoples of that country The High Court has expressly accepted that the issue is an important one, requiring full argument before it.

But the passage may well be cited in opposition to such recognition. Not only did Blackburn J himself not recognize pre-existing title-he did so, in part, on the basis that the British and subsequent Australian governments had not recognized such title. It was on this basis that he distinguished the Australian situation from that in North America and New Zealand. where there had been executive recognition of Aboriginal title in the form of treaties, proclamations, and so on. In Australia by contrast, according to Blackburn J, there had been no executive recognition. (This in itself is debatable see Henry Reynolds. The Law of the Land, Penguin, 1987). In the absence of such executive recognition, Blackburn J held, the only rights that indigenous peoples have are those specifically granted by the Crown, in terms of the feudal theory of English property law. Here again it is worth noting that the Supreme Court of Canada has directly refuted this proposition in later cases. But a possible interpretation of the passage in the preamble is that it would amount to a legislative affirmation of that proposition. This would not only be potentially wrong as a statement of legal doctrine, but it would also undercut the Aboriginal position in away that is inconsistent with the philosophy which the preamble and the Minister's statement apparently intend to adopt.

Accordingly it is recommended that the entire second part of the 3rd paragraph be deleted, so that the paragraph would now read:

AND WHEREAS they were dispossessed of land bysubsequent European occupation;