Aboriginal Law Bulletin
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by Michael Mansell
Michael Mansell works for the Tasmanian Aboriginal Legal centre . His responsibilities include representing people in court and acting as an advisor to Aboriginal groups, locally and nationally, about legal and political matters that affect Aboriginal communities. The following paper is extracted from his address to the Aboriginal Peoples and Treaties Conference held at the University of NSW on 11 February 1989 (see Conference Report p13).
In discussing the proposed treaty negotiations I need to make some preliminary points.
I am not expressing the view of any particular Aboriginal organisation; rather I'm contributing to the discussion about whether or not Aboriginal people should enter into an agreement with Australia. It can be fairly safely said that we are still in the process of considering all of the issues and trying to provide some of the answers. And, if nothing else, trying to provide our communities around the country with the range of options they are going to have to consider.
The second thing I want to mention is a common assumption that any agreement between Aborigines and Australia will be formed within the context of the Australian Government's capacity to entrench it either in the Australian Constitution or by way of legislative powers. I challenge all assumptions that limit our scope to consider the options available to us in the future. I don't intend to talk at length about the powers of the Federal Government to entrench some agreement they make with Aborigines. Instead, I want to concentrate on the status that any agreement that is made with Aborigines ought to have.
The question before this gathering is: If there is to be an agreement, what should it look like and what should it's status be? Considering the options that have been thrown around over the last few years, it seems that there are basically five options for people to consider. The Senate Committee has outlined four of them.
If an agreement is going to be reached with Aborigines, it has been assumed that one of the first four options would be adopted. Most of the articles which I have read assume that Aborigines are Australian citizens and ought to be. In times gone by there was good reason why that ought to have been the case. It is my argument that that assumption and the practical change that took place in 1967 are ironically working against us.
It was suggested earlier that I would speak about the powers of the Federal Government to enact an agreement with Aborigines. If the discussion is going to be around one of the four options, then it does open up a hornet's nest. There will be academics submitting documents saying the Government doesn't have the power under, for example, External Affairs powers or Race powers and so on. Immediately after legislative or constitutional power is enacted, I can imagine any one of the state governments taking an action in the High Court and the matter would be litigated from here to the foreseeable future. Does the Australian Government have the power to entrench rights for Aborigines either in the Constitution or by way of legislation? The short answer is: "who knows?"
I have some criticisms should any of those first four options I outlined be taken:
First, if we are going to have an agreement with Australia and accept that it must be one of those four options, then we accept the legitimacy of the invasion of this country 201 years ago. Some people may say, "Well, what else is there? Maybe we have no choice!". I think there are choices. I don't think we should sell ourselves short or legitimise the invasion of this country.
My second criticism is of the assumption that in this country there is one nation of people. It is a big melting pot where we should all live together in peace and harmony; the Aborigine down the road should live in harmony with the big police sergeant who bashes him up every Saturday night; the racist publican who refuses to serve Aborigines in the hotel is really part of the same community; we are all one and the same! It is an assumption that persists in a world of unreality and it has done so for the last 200 years.
My third criticism flows from that point: we need to clearly define some of the terms we use, particularly where they have important implications or legal connotations.
Are we Aboriginal Australians or are we in fact Australian Aborigines?
The former suggests that our lot is chucked in with the lot of Australians. We are Australian citizens, albeit we happen to be Aboriginal, therefore our rights are determined by the rights which accrue to Australians except for some special considerations because we happen to be Aboriginal.
However, if we are Australian Aborigines, the emphasis is upon us being Aboriginal people who happen to live in this country called Australia and our indigenous rights flow from that separate and different description of us. A whole range of political considerations also flow from that difference of approach.
Are we Aboriginal Australians? If we are, then our whole aim is to get the best deal we can for our people within the Australian society. But if we are Australian Aborigines, we are aiming to get the best deal possible from the world, which includes the nation of Australia, to which we are not subordinate.
I don't intend to go into the first four options because the fifth option, in my view, is the better one. Prior to invasion, Aboriginal people were a nation of people. It is on the issue of Aboriginal sovereignty - the fifth option - that I think the Aboriginal people ought to move.
Aboriginal people ought not to sell ourselves short by perceiving ourselves in terms of a unit of Australian society - an ethnic or minority - who are just getting a hard time. We are in fact a nation of people and we ought to stand up and acknowledge it. If this is the case, then any agreement between Aborigines and Australia takes on a different status. It is not a status capable of being unilaterally enforced or not enforced by a white government as has been the case in New Zealand and the United States. It means it comes under the purview of international law.
Now I can change from using the word 'agreement' to using the word 'treaty'. The distinction between a legal treaty and other agreements is important. Bob Hawke was told by his legal advisors to stop using the word treaty, and this is exactly what he did. It is useful to look at what the actual definition of a treaty is. The Vienna Convention of the Law of Treaties, 1969 says:
A Treaty means an international agreement [so the distinction there is that it is not a national agreement] concluded between states [I'll call up the definition of states shortly] in written form and governed by international law whether it embodies a single instrument or two.
The essential difference is that a treaty is an acknowledgement that there are two states, two entities in international law, and not one state - Australia - dealing with citizens of its own country. In that context, John Howard was right when he said you can't have a treaty between citizens; you can't. If his statement wasn't constructively delivered, it was certainly accurate.
A state, for the purposes of international law, is achieved when you can point to four things: First, a permanent population; second, a defined territory; third, a government; fourth, a capacity to enter into relations with other states.
The first two criterion don't present any problems to us. We do have a permanent population. The figures vary but there are at least a quarter of a million Aborigines in this country. Nauru, for example, has a population of 8000 and is a nation state. In terms of territory, the Vatican state is a state in international law. Whatever land they claim elsewhere, they only have 100 acres on Earth.
The two problems I do see are in relation to government and the capacity to enter into relations with other states.
In regard to these, there are some significant developments. One is the Advisory Opinion of the International Court of Justice on the Western Sahara case in the mid-1970s. In the 1880s Spain invaded Western Sahara. In the mid-1970s when they were being forced to move out they believed, unlike the Australian Government, that the nomadic indigenous people had a right to Western Sahara and wanted to annex it to them. There were a lot of phosphates in the area and Morocco saw control of these phosphates by indigenous people as a threat to their world market. Mauritania also decided to get in on the action because they saw some money for themselves. Spain was confronted by claims from two states who said they had rights prior to those of the indigenous people. Because it was unclear what should happen, the matter went before the Advisory Committee of the International Court of Justice for an opinion. The Advisory Opinion compares interestingly with the decision of Mr Justice Blackburn in the Gove land rights case in the Northern Territory.(Milirrpum v Nabalco Ply Ltd and Commonwealth) (1971) 17 FLR 141 [AboriginalLB: 3/10,4/1,5/5, 5/7, 9/2, 11/2, 11/12, 13/4, 24/8, 27/4 ]
The Committee said that providing there is some social and political organisation in nomadic tribal societies, that is enough to conclude that the area of land is not terra nullius. Therefore the indigenous people not only have rights but also have the capacity to control the lands and be regarded as a sovereign state. Although this was only an Advisory Opinion, it does suggest that there is some hope. The fourth area is our capacity to enter into relations with other states. The main problem is that, in practice, we do not have a body capable of going and negotiating with foreign governments. If we are going to move in that direction, then we have to establish some national Aboriginal body capable of carrying out that function. Unless we do, it simply will not be recognised in international law - and certainly not by Australians - that we are in fact a nation of people.
Some years ago I considered the question of how Aborigines could be recognised as a nation of people as distinct from Australian society. There is the interesting example of Biafra in Nigeria where they had a war with Nigeria from 1967 to 1970. During those three years, a number of African states said to the Biafrans "we recognise you as a nation, as a state, and we will deal with you on that basis." It was never tested in an international court or anywhere else and no one expressed an opinion on it. But it did raise the question; if you did get a number of foreign governments to acknowledge your status, does that not amount to an arguable case that you are in fact a state, provided you satisfy the other requirements?
Having outlined the four areas essential to statehood, where do we go from here? I think it is more appropriate to discuss the approach that is likely to come from the Australian government. First, we've all heard statements from the Prime Minister and the leader of the opposition who jump into the same bed whenever this question of Aboriginal statehood arises. They join together to say
"We are all Australians." I think this is a very strong statement of principle. It is not just rhetoric. They are indicating that there will be no agreement concluded with Aborigines that has an international status. Many people argue that Gerry Hand is strongly on side with Aborigines. I argue the contrary, based particularly on what he says in the forward to Barbara Hocking's book, "International Law and Aboriginal Human Rights" (see Book review p 13). He says:
Self-determination for Aboriginal and Torres Strait Islander people within the Australian nation is a principle to which the Australian Government is committed. Being prepared to negotiate a treaty with Aboriginal and Torres Strait Islander people is necessary if it is to happpen. Without a just settlement which acknowledges the rightful place of the Aboriginal and Torres Strait Islander people there can be no lasting reconciliation or a united nation within Australia.
The warning really must be: If we don't lay down the political agenda on this discussion of an agreement, Hawke and Howard will, and we all know the consequences of allowing them control over debate on Aboriginal issues.
The promises on land rights legislation have gone and it is my opinion that no more will we see land rights legislation in this country. I think the political climate has gone and we have to accept that. They are now more into rhetorical discussions on concepts like treat, without taking action, unless we force their hand. The message for Aboriginal people (if there is one) is this: We have to make a harsh decision; we have to decide if we are part of Australian society. If we are, then we need to get the lawyers and determine what powers the federal government will be prepared to enact and what we want them to enact. If we are not part of the Australian nation but a separate nation of people unto ourselves, then we have to get our act together.
The Aboriginal Peoples and Treaties Seminar was jointly sponsored by the Aboriginal Law Centre (University of NSW) and the International Law Association (Australian Branch). A Seminar report has been compiled which includes all the speeches, discussions, briefing handouts, other materials about the issues covered, and summary profiles of the speakers.
The Report will be available for $23 (includes postage) from
Conventions Coverage International
60 Alexander Street, Hunters Hill NSW 2110.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1989/14.html